Case introduction
Zheng died in a traffic accident in November 2005, leaving a huge legacy.
Jeong died suddenly, had not yet made any will, but not with others signed any legacy support agreement. Wife Zhang Zheng (hereinafter referred to as Zheng Qi), two married a cause that has small Zheng, property disputes to avoid marriage, Zheng Zheng and his wife agreed to two people all of the property before marriage and after marriage to Zheng Zheng and his wife are all. Zheng Zheng and his wife maintained a woman underage (hereinafter referred to as Zheng Nv). Jeong's mother Kwak (hereinafter referred to as Zheng Mu) prior to Jeong died in 1998, Jeong's father (hereinafter referred to as Zheng father) due to Jeong died grief over the death in 2006 of May. Zheng and Zheng mother in addition to the eldest brother of Zheng, but also has two sons (hereinafter referred to as Zheng brother) and daughter (hereinafter referred to as Zheng Mei), the two people, Zheng Zheng wife, Zheng Nv, Zheng Di, Zheng Zheng Zheng's heritage for the division.
Zheng's wife, Zheng Nv, the father of Zheng Zheng based inheritance legal relationship exists in this case, there may be Zheng Nv and Zheng Zheng father of subrogation inheritance subrogation inheritance legal relationship and Zheng Zheng brother, sister of Zheng heritage to inherit the legal relationship. In accordance with the current inheritance law and the relevant judicial interpretation, the legal relationship between the inheritance of the standard and the confirmation of the legal relationship of inheritance, the theoretical and practical circles have basically no objection. However, in this case there is a question of subrogation inheritance. In practice, however, there is the existence of the legal relationship between the basic people's court and the people's court
In the case of the case as a reference, the specific analysis of the transfer of inheritance in the practice of notary may encounter problems.
Two, the focus of controversy
Zheng Zheng Zheng inherited from the property of the share of Zheng female whether there is a succession of rights, that is, the transfer of inheritance can be inherited. In this regard, the theory of the formation of two different views:
The essence of transfer is the transfer of the right of inheritance, not the inheritance of inheritance. When dividing the estate, if there be heir (as in the case of Zheng father) heir (such as in the case of Zheng) death, unless the law expressly provides that subrogation successor (as in the case of Zheng Nv) do not have access to be transferred (as heir in the case of Zheng father) from the deceased (such as in the case of Zheng not inherit) segmentation of the right of inheritance. That is, in this case, Zheng female can not be obtained from the parent Zheng Zheng inherited property. The main reason is the "Inheritance Law" provisions of article eleventh, "subrogation generally shall take only his father or mother have the right inheritance share", subrogation heirs can only inherit their father or mother based inheritance in the share of the estate, but could not inherit his father or mother to get from the legal relationship of inheritance inheritance heritage right. As in the case of the transferred heir heir Zheng Zheng father died, because the heir Jeong lost the capacity for civil rights, the right to obtain Zheng Zheng father's inheritance rights, which is more natural to get Zheng Zheng female parent heritage. So in this view, in turn by inheritance people before transferred heir to the case of death, so death was subsuccession heir inheritance rights ", the heirs lose, children are certainly not entitled to inherit in subrogation.
[analysis] careful analysis of legislative intent "Inheritance Law" can be seen, the state set up the inheritance system fundamentally is to protect the private property of citizens to citizens in the closest affinity and consanguinity in effective, orderly and reasonable in circulation after the death of the citizen, to avoid falling into the hands of others of private property of citizens. "Inheritance Law" provisions of article tenth, statutory succession of first order of succession including spouses, children and parents, lineal marriage marriage relationship that most closely with citizens -- a couple and the first generation -- parents and children to inherit the rights is to protect the rights of the first law of succession, only in the absence of the first marriage and marriage generation of lineal inheritance cases, only consider the brothers and sisters and grandparents inheritance. In this case, if the result of Zheng's death denied Zheng Zheng father of female subrogation inheritance rights, will inherit from Zheng Zheng father somewhere heritage all assigned to the Cheng brothers and Zheng Mei, is clearly contrary to the original intention of legislation, Zheng female lost father unfortunate circumstances, also watched his father hard work down property was its uncle and aunt segmentation, how can this be good for?
[two] subrogation inheritance is the "Inheritance Law" provisions of article eleventh of the statutory and inherent rights, as long as the emergence of the decedent's children (such as in the case of Zheng) the decedent before (as in the case of Zheng father) death, subrogation successor (as in this case the Zheng Nv) enjoys the subrogation inheritance. The key to judge whether there is "the right of subrogation has two facts, the existence of" death "the decedent before the children of the deceased", regardless of whether the inheritance is directly inherited (such as Zheng Nv in the case of direct subrogation Zheng Zheng father inherited the heritage), or in turn inheritance (such as in the case of Zheng female subsuccession turned heir Zheng father's heritage). Therefore, in this case, Zheng Zheng Zheng Zheng can be obtained from the inheritance of property. To this reason and, according to the "Inheritance Law" provisions of article eleventh, "the decedent before the children of the deceased, inherited" by the heirs of the children of the direct lineal descendants of subrogation, subrogation inheritance is a one-time indirect subrogation inheritance is inheritance inheritance. In this case, since the death of Zheng Zheng before the father, in accordance with "antecedent conditions as stipulated in article eleventh of the law of succession", which subrogation in the legal relationship between Zheng and Zheng female parent, Zheng Zheng became the first woman to replace the order of Zheng father of the heir Zheng father's legacy, namely to Zheng father to Zheng Zheng female inheritance process, rather than to Zheng father as a springboard, formed by Zheng Zheng Zheng to father to two female inheritance to inherit the legacy of Zheng father. Therefore, the subrogation successor in the transfer of inheritance also enjoy the right of subrogation
[analysis] negative transfer inheritance are the logical starting point is the object of subrogation inheritance of transfer inheritance is inheritance rights, the logical starting point and certainly applicable in the legal relationship of transfer inheritance subrogation inheritance behind is the object of transfer inheritance is the inheritance share, rather than the heritage of the right of succession. Therefore, if there is a succession of subrogation in the legal relationship, that is to say, all the cases that have the inheritance will inevitably inherit the subrogation. In this case, if the Cheng brothers and Zheng Nv also appeared in the case of death, so there will be a succession of Zheng Zheng property by the property of the father or brother Zheng Zheng female offspring the situation by Jeong nephew and niece will inherit that Zheng's part of the property, some female Zheng watched his father work hard down the property is a strange phenomenon, cousin cousin segmentation.
In summary, regardless of whether or not to inherit in subrogation inheritance, or must turn in succession of subrogation, will appear substantial violation of "law of succession" legislation situation in practice. And behind this are rooted in turn inherited defects of the legal system design, namely "after the opening of succession, had no heirs that abandon inheritance, and died before the partition of the inheritance, the right of inheritance to his lawful heir". The author believes that the discussion of transfer inheritance in the presence of subrogation inheritance itself is a a false proposition, but from the "inheritance" of the intention of legislation to re recognize the inheritance system in the family property in the transfer of meaning, so as to adapt to the development and perfection of public order and good morals and the time to modify subsuccession provides that "a number of opinions" inheritance law provisions of article fifty-second.
Three, this article view
China's "Inheritance Law" to protect the first order of the rights and interests of heirs, in the presence of the first order of succession, the second order does not allow the successor to inherit the estate. However, according to the "Inheritance Law" provisions of judicial interpretation, to inheritance system may lead to the first order of succession still exist (in the case of Zheng Zheng's wife and daughter) under the condition of the decedent heritage by the second order of succession of other people even second order heir inheritance which violates the "inheritance law" intended to happen. This paper argues that should be amended to "some opinions" inheritance law provisions of article fifty-second, adding a suitable premise based on the terms, namely strictly to the terms of the applicable restrictions on the scope of its peers or younger successor, to the terms of the revised "succession after the start of their peers the younger generation had no heirs or waive inheritance, and died before the partition of the inheritance, the right of inheritance to his lawful heir". The reasons are as follows:
First, the full realization of the first order of the interests of the greatest protection. The revised provisions of the transfer inheritance system excludes its predecessor successor death before the partition of the inheritance, thus expanding the scope of the inheritance, the inheritance as much as possible in the transfer range is heir to the first order of succession within the. In this case, if the transfer inheritance system limits the range of peers or younger in Zheng heir, is to heir is only Zheng peers (in the case of Zheng Qi) or younger Zheng female, will not appear when the father dies by Zheng Zheng Zheng brother and sister inheritance heritage, when Zheng father died, because do not apply to the property inheritance system, Jeong by first order Zheng Qi and Zheng heiress. Under the condition that Zheng father has already died, at the same time, the inheritance of Zheng's successor has lost the original intention of the legislation, that is to say, the property of Zheng has not inherited from the father, but should belong to Zheng and zheng.
Two is more in line with the trend of the development of today's family relations. It is of great significance for the protection of the rights and interests of citizens' marriage, family and property to give the family a certain legal effect. However, due to the mobility of the modern industrial society and the openness of the urban community, the traditional family relationship as the link between the family relations tend to shrink, family ties weakened gradually, family relations are becoming increasingly tense. It can be said that the desalination of kinship, the formation of individual consciousness and modern ideas has become an irreversible trend, and the inheritance of the most direct impact is the inheritance relationship should not be complicated, but should make the inheritance relationship more simple and convenient, that should not be a marriage now in laws as well as the first generation of direct couple blood, parents and children can inherit in normal circumstances, by far the relatives of people to inherit the legacy of citizens. Fifty-second amendments to the several opinions of the law of succession, which are more suitable for the weakening tendency of the development of kinship relations.
Three is more conducive to improving judicial efficiency. In the current judicial practice, the right of inheritance disputes relating to the legal relations are becoming increasingly complex, turn the subrogation inheritance problem has plagued the judicial existence of inheritance legal relationship, but also increase the difficulty of judicial practice, judicial efficiency is reduced. As mentioned earlier, in practice there is a party in the first instance court judgment to determine or deny the right of subrogation, the other party repeatedly appeal, appeal. Similarly, in the practice of notarization, the problem also increases the workload and the practice risk of the complicated notarization business. In this case, in accordance with the "opinions" inheritance law article fifty-second of the existing provisions, if the death has been in the Zheng, Zheng Fu after the younger brother or sister Zheng Zheng occurrence of death, which then turn right will continue to heir or second order in the first order of Zheng Zheng brother or sister's heir among stay, turn, is bound to the judiciary has been complex and difficult to bring greater judicial costs. If the "some opinions" inheritance law article fifty-second are heirs to limit the scope of peers or younger heir, to inherit the legal relationship of the inheritance relationship in this case by cutting out the superfluous, defined in the scope of his wife, Zheng Nv Zheng and its successors in the following involves complex, simple bearing so that can save the cost of justice, improving judicial efficiency.
Four is more in line with public order and good customs of the legal spirit. The spirit of the law of public order and good customs refers to the civil subject in the specific process in civil activities, must abide by the business has formed a public good order and the history of the formation of good social customs, and can not violate the social public order of basic operation and basic social public moral cognition.
Transfer inheritance system was designed to protect the reasonable transfer of the family as a unit of private property, especially the succession law about the succession sequence rules, fully explain the inheritance law give priority to the protection of the legitimate rights and interests of the first order heir good legal order and good social customs in mind. However, the existing provisions, the legislation can not be taken into account when judicial practice may occur in special circumstances, the existing transfer inheritance system to expand the scope of transferred heir, leading to a certain extent subsuccession against the social customs and good, so it is necessary to carry on the corresponding revision of the provisions, in order to fully realize the turn the inheritance system of good law and good governance.