ISSN 1008-2204
CN 11-3979/C

论代位继承中的归扣

Research the Legal Issues of Deduction in Representation

  • 摘要: 代位继承与归扣之创设均在于践行继承过程中的公平理念。代位继承制度的基本精神在于谋求子股或房份的纵向公平,而归扣制度之基本精神却在于谋求共同继承中共同继承人间之横向公平。被代位人生前从被继承人处受有特种赠与的,其死亡后应由代位继承人负归扣之义务。反之,代位继承人从被继承人处受有特种赠与时,则应区分其接受赠与之时期以决定其应否负归扣之义务。被继承人如有免除归扣的意思表示,自应尊重被继承人之意思。

     

    Abstract: The creation of subrogation inheritance and deduction lies in practicing the concept of fairness in the succession process. The basic spirit of representation is to seek the longitudinal fairness of sub share independent,and the deduction lies in seeking the horizontal equity of joint heirs in common inheritance. Representative heir should undertake the obligation of deduction,when the subrogated successor receives the special gift from ancestor during his lifetime. Conversely, when the descendant who inherits in subrogation receives special gift from the decedent, difference should made as to the period to accept donation to decide whether the representative heir undertakes the obligation of deduction. If the ancestor has the wish to exempt the deduction, we should respect the wish.

     

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