Disclaims Inheritance of Legal Effect before the Beginning Inheritance

谷明慧

Abstract：According to Chinese "inheritance law" in article 25，after succession opens， the successor who disclaims inheritance， need to make known his decision before heritage processing. But in the practice， there the successor by oral or agreement to give up the promise of future inheritance. The "inheritance law" to the commitment when inheritance effect and no rules. The author thinks that we should refer to the Anglo-American law system and continental law system cannot simply deny the heir in before the start of succession， disclaims inheritance act， should be admitted that this behaviour is has the certain legal effect.

Key Words：Disclaims Inheritance；Time Limit

The Force of Law

Inheritance， refers to all the deceased property to death when all of the legal system in accordance with law， transfer to others. Heir in accordance with the law or legal successors who have made the will shall have the right to be heir to the inheritance of is inheritance.

The Overview of the Disclaims Inheritance

Disclaims inheritance "refers to a successor in succession opens， made before the split to give up its inheritance rights of the decedent heritage. In practice， some legal heir willing to accept the decedent's estate， others are willing to give up inheritance， but whether he accepts it or disclaims all should have a certain form.

（1）The form of expressing to abandon inheritance

According to the "inheritance law" after the start of successor of succession， disclaims inheritance， should deal with the estate， make known his decision. Not said as accept inheritance. The rules for the express to give up in the form of inheritance. The successor who disclaims inheritance， only by a written or oral made clear.

（2）In the form of giving up inheritance in the implied According to the "inheritance law" the provisions of paragraph 2 of article 25， legatee shall know whether after two months， to accept or abandon bequest said. Due to no said， considered as a waiver of inheritance. The rules for implied to give up in the form of inheritance. The succession opens， heirs didn't give up the meaning of inheritance， said the inheritance as accepted.

（3） The time of disclaims inheritance

According to the "inheritance law" in article 25， after the succession opens， the successor who disclaims inheritance， need to make known his decision before heritage processing.

The force of disclaims inheritance before the beginning inheritance

As mentioned above， according to the "inheritance law"， the relevant provisions of the inheritance from the decedent died， and the promise of the successor who disclaims inheritance should be in succession opens， that on the death of the decedent， heritage segmentation before， and this commitment must be made clear， if there is no clear make known his intention， as accept inheritance. Before the start of the inheritance， namely the decedent before death， by some form of commitment disclaims inheritance heir？ What legal nature of this kind of give up commitment has？

In real judicial practice， there the successor by oral or agreement to give up the promise of future inheritance， the promise of the other party may be heir， is also likely to be other's heir. The author thinks that， the beginning of inheritance is different from the implementation of inheritance， inherit in the beginning， heir is the right of inheritance， inheritance. The implementation of inheritance was the heir by rightful inheritance shall inherit legacy. As a result， the successor who disclaims inheritance of mark is inheritance instead of property rights. Heir in made before the start of succession， disclaims inheritance is committed to the inheritance shall be regarded as to be expected. This can expect sex inheritance refers to the presumed successor before the inheritance legal status at the beginning of inheritance with legal inheritance. Whether the commitment in the inheritance law？

Second， before the start of succession， disclaims inheritance law

According to civil law behavior analysis， promising disclaims inheritance is a kind of unilateral legal act， general is to make effective the situation does not exist to withdraw but may be revoked. If the successor who disclaims inheritance said the meaning of the intention not real defects， should be allowed to its revocation. Because disclaims inheritance involving major， heir interests should be allowed to heirs according to the regulation of civil juristic act shall be revoked. Other countries and regions in the world inheritance law have specific provision on this question.

As mentioned earlier， according to the regulation of law， disclaims inheritance of time is after the start of the inheritance. Whether heir can in succession on the basis of inheriting agreement prior to the start to give up， can be expected to inherit the inheritance law in our country and no relevant provisions in this regard. Most of the continental law system countries think disclaims inheritance only in succession opens， prior to the start of succession， disclaims inheritance shall be void. The civil code of Japan and Russia， and our country Taiwan area of the relevant law does not recognize prior to the start of succession， disclaims inheritance commitment， must after the succession began to implement this behavior. But as the civil law of civil code of Germany and Switzerland have provisions on inheritance protocol， allow heirs and successors who have to conclude a contract in the decedent's disclaims inheritance. Common law countries acknowledge disclaims inheritance contract legal effect. Heir to the British law allows by way of conclusion of the contract before the start of the inheritance disclaims inheritance.

In real judicial practice， the younger generation and their elders， between brothers and sisters often a volunteer to give up after the death of parents and inheritance protocol， which often occurs before the parents' death. Heir also because of the inheritance law of the agreement， when inheritance dispute in court. The author thinks that we should refer to the Anglo-American law system and continental law system cannot simply deny the heir in before the start of succession， disclaims inheritance act， should be admitted that this behaviour is has the certain legal effect.

Before the start of succession， disclaims inheritance behavior cannot be equated with legal disclaims inheritance. Before the start of succession， disclaims inheritance behavior as long as it is for actor's real intention， not in violation of the provisions of the law shall be deemed as the behavior is effective. The effect to inherit in the beginning， heir will lose inheritance. Heir in before the start of succession， disclaims inheritance behavior， in fact the nature is the successor to abandon their own expectations right， rather than inheritance.

After the succession began heir will the person who lost his inheritance. The author thinks that， we can refer to our country "inheritance law" the 25th the 2nd regulation， in the form of implied to abandon. As the heir in made clear before the start of succession， disclaims inheritance， in succession opens， if there is no reasonable basis and heir to the clear requirements of inheritance， is deemed abandoned its inheritance. If heir made it clear that to give up before the， succession opens again for inheritance， unless there is justified， shall not be inheritanced the decedent's inheritance. Based on the principle of honesty and credibility， so that more conducive to family harmony， social stability.

References

[1] Chen Wei： "the marriage and family inheritance law" （second edition）， Beijing： people publishing house， 2012 edition.

[2]Shi Shangkuan： "inheritance law theory"， Beijing： China university of political science and law press， 2000.

[3] Refer "German civil code" article 2275， 2278/2347， the Swiss civil code 495， 494The article.

[4] [British] Andrew ivo than （Andrew Iwobi）： "inheritance law foundation" （Essential on a（English version， the second edition）， wuhan university press， 2004.