中国继承法修改的热点问题

• 영문명: Hot Spots in the Modification of the Inheritance Law of China
• 발행기관: 충북대학교 법학연구소
• 저자명: 费 煊(Fei Xuan)
• 간행물 정보: 『법학연구』第24卷 第2號, 105~120쪽, 전체 15쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2013.12.31

영문 초록

The current Inheritance Law of China was enacted 28 years ago. The National People's Congress of China has included the modification of Inheritance Law in the legislative program of 2012 and 2013. Some well-known scholars have published a draft amendment of inheritance law. Among the latest drafts, one is drawn up by professor Yang Lixin and Yang Zhen etc (hereinafter referred to as Yang’s draft), and another one is by Professor Liang Huixing(hereinafter referred to as Liang’s draft). This article introduces and reviews the important hotspot issues on amending the Inheritance Law mainly in the light of these two drafts. Firstly, the range of estates should be broadened. Liang’s draft enlarges the range of estates by the approach of definition and exclusion. Besides using the same approach, Yang’s draft also enumerates some more types of estates, including the contractual operation right of rural land, the right to using land for construction and the virtual right on internet. Secondly, the scope and sequence of legal heirs should be adjusted. Many scholars thought that the current scope of the legal heirs is too narrow and suggested to add the heirs of Third order. Thirdly, the rules of the validity and forms of wills should be changed. Yang’s draft adds four more forms of wills: the printed will, the electronic data will, the video will and the sealed will. The mutual will of husband and wife is also recognized in Yang’s draft. Fourthly, the legal portion system should be established. Fifthly, the estate administrator system and the link rules of executors and administrators should be stipulated. Sixthly, the protection of creditors should be taken seriously. The heritage liquidation proceeding activated by unsatisfied creditors and the creditor’s right to cancel testator’s improper disposal of property in Yang’s draft are more desirable. Through the comparison between Liang’s draft and Yang’s draft on these six issues, the author concludes her own opinions. In conclusion, the modification of inheritance law is very complicated and will have a significant social impact, so more research has to be done so that the modification can be done in a proper way.

목차

Ⅰ. 遗产的范围

Ⅱ. 法定继承人的范围及顺序

Ⅲ. 遗嘱的形式与效力规则

Ⅳ. 关于特留份制度

Ⅴ. 遗产管理人制度

Ⅵ. 债权人保护制度

Ⅶ. 结语

参考文献

Abstract

키워드

中国 继 承法 修改 热 点问 题 杨 氏草案 梁氏草案 比较 Inheritance Law of China modification hotspot issues Liang’s draft Yang’s draft comparison