On the common inheritance of qualitative and System Reconstruction of Reflection

Keywords: inheritance; common heritage; common relationship; of the common; by shares; by shares responsibility

Abstract: A total of cohabitation by the wealth of our traditional legal culture of the family property there will become a social phenomenon. China will also follow the relevant judicial interpretation of the common heritage concept as a joint tenancy legislation, which made the design of the system corresponding . With a total wealth of the living together formed the basis of the gradual disintegration of family patterns, as co-inheritors of the common basis between the joint probability of the relationship between fall, will remain as the common heritage of the rationality of the common increasingly diminished. increasingly seen as the common heritage by shares, co-inheritors of the legacy of debt outstanding commitments in accordance with its share of responsibility by shares, "<People's Republic of Succession>> the system should be carried out in the future revision of the reconstruction.



Real life is only one heir to the case is extremely rare, the number of heirs who inherit the legacy of being the common heritage of succession has become the main form. Although there will be Civil Law countries and regions as a common heritage and common there by shares The two legislation, but <<People's Republic of Succession> "(hereinafter referred to as <<Succession>> but not the common heritage as a common shared clearly defined. However, the relevant judicial interpretations of the draft and some scholars The Draft Law of Succession to shift as the common heritage of common ownership. [1] drafted by China's Qing Dynasty <"The Great Qing Civil Law>> Following that will be divided by total common shares and common legislative cases, and has been continues today. [2] because of the common and the press were there, there are many significant differences, [3] and to the common heritage as a common design in the system there are demonstrated inconsistent with the nature of the common features, so it is necessary to review will be considered the common heritage of the legitimacy of the common, and then be reconstructed in the system.


First, the formation of the common heritage of qualitative logic: History and Tradition

Civil Law countries and regions will be considered the common heritage shared by shares and in fact there were two legislative examples from Roman and Germanic Law. In ancient Rome <<Twelve Tables Law "> period, with rural commune gradual disintegration of the extended family system, in principle, common to their respective heirs of the decedent's estate should continue to enjoy the rights were: Ruopi heirs estate to be divided into objects, then by their successors were to be allocated following, if they are estate for the heirs can not be separated material, the jointly owned by the heirs, but still have the right at any time by agreement, arbitration or judicial separation. [4] Modern France, Portugal, Japan and other countries affected by such succession following the philosophy of individualism legislation will common heritage as by shares. On the contrary, strong sense of group mentality of "Germanic law did not abstract concepts about people, families, clans, villages and other groups not only for the sum of the individual, but also really enjoy the personality of the body ... ... the performance of the entire family as a community of friendship and trust. parents are representative of all family members ... ... all possessions belong to the families of a total, after the death of the father, the brother of adult usually does not split the family property, inherited by the elder brother management of family property rights, and assume the obligations of ancestor worship, continue to live together, but the family property belonged to the whole family. "[5] As a result, its successor system to the principle of common heritage. To ease the maintenance and the common inheritance of immovable property the conflict between the heirs then form a common heritage between the total relationship, but not heirs of estates, still living in the old family home to live together. [6] Modern Germany, Switzerland, by the law of succession following the doctrine of such legislative bodies philosophy, the common heritage as a common ownership.


China's feudal society, the legal or moral are based on the stability of social order, promote national consciousness with his family, the family becomes China's feudal society based legal culture of the typical characteristics, cohabitation has become the social norm were financial, family common property has become a common phenomenon in society . China's feudal society, not only in the type of immediate family was living with my father-type total wealth, but there are a large number of types of collateral pro-brother, nephew and uncle and cousins ​​living together total wealth, labor income each person be put to the benefit of all members of the formation of single pool of funds, each person in life has all the necessary expenditures from the fund pool, also left after spending all the members of the joint family property. [7] In other words, the elders in their lifetime as family property managers, elders After the death in the general analysis of the situation is still the separation of production, not a separate residence, is still composed of the common relationship, family system is still the family property to maintain the existence of a large family, family property is pArt of the common parents and family members, in addition to the need for separation analysis of production, the total of such relations should continue to co-exist. [8]

China formally implemented in 1985, the <<Succession>> No specific provision of the common heritage. This is because taking into account the co-heirs after the death of the decedent's first task is to deal with buried issues of heritage and customs straight division does not match and is an integral property of the estate also need some time to be sold or valued. In addition, real-life family size shrinking, the father or the mother's estate after the death of one pArty by the survival of one general management, use or dispose of, as a child to be heir parents can be divided after the death of heritage, natural heritage before the split will jointly for a common successor. [9] Based on the above considerations, June 1987 Supreme Court <"On the housing estate by the parents, brothers and sisters in the house of a person receiving certificates of title and as a result of a dispute has been how to deal with the approval>> that pArtition before the estate should be "Total", October 1987 Supreme Court <"On the succession of heirs is not a waiver after the stArt of inheritance and can not split cases treated by analysis of production approval>> and further that the estate should be divided before the "common share", in 1988 the Supreme <"On the implementation of" Civil Code "number of views on the issue (try>> the provisions of Article 177 of the Suiyou" undivided estate, is the joint owners. "Accordingly, our legal profession generally considered as the common heritage of shared ownership.


At present, in China, with the traditional concept of a family-based increasingly diluted, to live together and form the basis of total wealth of family patterns will gradually disintegrate, especially with the family planning policy, family size has become increasingly small. This makes the common life between the co-heir to the possibility of a sharp decrease in the formation of a joint tenancy relationship between the probability based on the common will decline, as the basis of the common relationship between the common heritage of declining. In the small family size and core families (spouses and minor children of families common background, the adult heirs of the common less likely to live together, regardless of social reality and that the co-heirs straight relationship between the common it is barely there, even if the force such a requirement, can only result in the relationship between co-heirs complicated. and <<PRC Property Law "" (hereinafter referred to as <<Property Law "> 103 because of the" common people with family relationship "and the formation of the common property also considered the provisions of the common difficulties that reasonable.


In essence, the total area is divided into national legislation by shares and common there is nothing more than the existence of the common foundation based on the number of people there is a common purpose for the establishment of the common relations considerations. This relationship is different from the common property relations exist independently of personal relationships, although associated with own property relations, but the purpose of property relations is to maintain the existence of such a personal relationship. [10] based on the identification of common property relations arising from the relationship between range and for the co-participants, consider the interests of trading partners, national and regional legislation to legalize the common type of relationship, the relationship of the common limited partnership property, without division of the inheritance, matrimonial property, including "" German Civil Code>> Section 105,161,718,1415,2032 Articles, In addition, Taiwan, China so-called "civil law" will be the first 668,1031,1151 established tradition by the impact of China in reality there are a lot of festival fields, worship, production, industry, public worship, fellow Hall and family, were also included in the common Total relations areas. [11] on the basis of the common as the common partnership between husband and wife relationship and the common inheritance relations, and the husband-wife relationship as a partnership the purpose of existence is to continuously co-operation or common life, it is more easy to establish a stable community, but the common heritage of the relationship formed with only a temporary, it is not easy to form a stable community. [12] In other words, formed for different purposes between the various common among subjects The combination of tightness is not the same, [13] relationship will continue as the common heritage of the common relationship based on common practices worthy of reflection.


Second, the common heritage: Or by shares of the common

Debt due to the decedent during his lifetime need to be settled, common heirs of the decedent before his death only after the debt repayment to split the remaining estate. Legacy inherited from the start and certainly did not become co-heir, the heir only after settlement of the debt before being officially become co-heirs property remaining after the debt before the estate was involved in the split ownership, and therefore can not go straight to the legacy of outstanding debt as a co-heir of all. Although it is possible after the debt to the heritage of pre-split common heritage as a total state However, as the common heritage of the common legislative rules are and will be considered the common heritage shared by legislative rules were essentially consistent. This is mainly manifested in the following areas:

First, and by shares entitled to certain people should share the common property than of the common people during the existence of the common common common property can not be entitled to determine the share of each co-owner will enjoy together, regardless of share of common property rights, and only after the termination of joint tenancy can determine the total of the specific person entitled to share in the property. Therefore, after the debt prior to the split of the common as the common heritage of the legislation should follow the co-heirs of the total property in joint tenancy during the existence of big share of the basic legal rights. However, based on the concept of equal inheritance rights practice, regardless of the scope of the order of succession and successors how to determine, in addition to some clearly defined legal heirs of the inheritance share and meet the legal conditions people should be given to the appropriate case, the same overall should continue to share a common successor is generally evenly distributed. Meanwhile, the practice also keeps the legal heirs of the decedent by intestate succession specified share and specify a particular gift to the legal heirs of property other than the case of a third party. In fact, the common inheritance heir before the relative share of inheritance to be determined, but in the estates will be determined after the specific amount. In other words, the law directly to the common heritage as a common total joint heirs did not fully consider A successor should continue when the copies. In fact, the common heritage should continue to start in succession were prominent, even if the duration of the common heritage will also show that the estate should continue in accordance with copies of the division, [14] and co-heirs shall Following were the equal of, and were already in existence shall be for the fact that, following further description of the share of the common heritage has been specifically identified in the succession of the former, co-heir is in fact the common heritage status by shares, the common heritage of a common essence heirs according to share of the total. [15] Thus the joint heirs of the former estate to be divided following the inevitable uncertainty were regarded as inconsistent with the legislative reality.


Second, since the condominium owners, joint owners of the common people during the existence of the common property can not be entitled to determine the share of people by shares can not be the same as the transfer of their shares. Although joint heirs were entitled to equality should continue, but After the debts to the pre-split common as the common heritage of shared circumstances, without the consent of other co-heirs, can not transfer any common successors should be following their own copies. However, following by this legislation <<Switzerland, China and France Code>> Section 635,636 articles are permitted after the start of the common inherited by heirs to enter into contracts in the form of copies to be following the transfer to other heirs, and the third person. Following the legislation of the country affected by this so-called Taiwan's "civil" does not such provisions. However, in practice there are scholars claim to the estate after the commencement of the inheritance before the division, without the consent of the other heirs to the whole and to the other person's heirs and the following were the third (sale, donation is still valid, just so with a third person were only to have the claim to be following the effectiveness of that third party can not split their request, the request can only be separated from heir to transfer their property due to, and shall not be enforceable following were the object of . [16] Similarly, although scholars generally believe that our co-heirs of the estate should be divided before the following copies of itself shall not be transferred to the third person, and yet allow the joint heirs have accepted the inheritance will be following their transfer to other heirs were , but also allow individual heirs have the right in exceptional cases should continue in its share of the estate in advance to enjoy. [17] Because people can by shares his share of the free transfer, according to copies of the joint property owner should have copies on the the rights enjoyed by common ownership with no doubt has, therefore regarded as the common heritage of universal legislation by shares common heirs to allow the transfer of the statutory conditions shall be following their own copies. [18] Thus, as the common heritage legislation on the heritage of the common arrange for disposal will be treated as common heritage to be addressed by shares of the enactment of legislation is actually the same. In other words, regardless of the enactment of legislation to allow co-heirs before partitioning the estate should continue were transferred under certain conditions. Therefore, the common heritage of pre-split of the common practice is undoubtedly regarded as superfluous.



Third, since the co-owners shared the same property rights and obligations, all of the common people during the existence of the common joint property disposition and the exercise of other rights to be subject to the consent of all owners, the management of the common property of all joint implementation consent principle. However, based on the best use of principles, laws, contracts, and used by the majority owner has allowed the principles of management. Taiwan, China so-called "civil" provisions of Section 828 of the total disposition of property and other rights shall be exercised because of all the principle of consent to an extent which rendered it the large number of owners can not be effectively applied for separately in accordance with the provisions of the common differences between typical of the common types of partnership property, a couple of the common property, common heritage of the action and the exercise of other rights, in the practice thus formed a majority agreed to the principle of dealing with many of the common property of the habit. [19] In other words, of the common property management is also agreed to the principle of majority consent of all the exceptions. On the other hand, the mainland of the common law the relevant provisions, for <<Property Law "> there on the formulation process is the implementation of the common disposition of property, or the principle of majority decision to make major repairs of all movable property shall be subject to the consent of all joint owners, but owners unless otherwise agreed upon between the . "Clearly, the legislation will manage the rules of the common property of the option gives the owner himself actually, only when no agreement can apply the principle of consent of all, the management of the common consent of the controversy, [20] <<Property Law"> s 79 then specifies that "total punishment as well as real estate or movable or immovable property shared by all the principle of consent also appeared to ease the trend. [21] This is essentially managed by shares with the majority of the property away from the principle of consent has been right close by.


Fourth, the existence of the common purpose is to maintain a common relationship, as long as the co-relationship exists, of the common people together, regardless of share rights, the exercise of the rights of the common people and the entire common property, not just, and the total property a part of the common people and therefore not permitted to request a total of thing. Thus, if the debt settlement to the division after the common heritage as former condominium owners, heirs of estates should not be requested at any time. However, after the debt repayment to before the split of the common as the common heritage of the country or region is prohibited in the legal or agreed upon the request of estates, the co-heirs are allowed to split the request made at any time heritage. [22] The reason is simply aimed at the general maintenance of the common of the common relations, and will specify the common heritage shared a common purpose being to split the estate to manage. Despite the common heritage as heirs of the common legislation gives the right to request at any time of estates together with the termination of the relationship between meaning [23] However, the right to request at any time of estates is not terminated in the joint between the premise of the exercise, only to end after the split of the common heritage. This is precisely the legal and common in total joint tenancy can be split after the termination of the rules of the common property not, the co-inheritors of estates at any time terminate the joint relations claim as naturally irrational. will be considered the common heritage of the legislation by shares, based on owners by shares is based on its due share of the ownership , in addition to the use of materials for a total of purpose or the indivisible contract, the straight to give the statutory or common heirs have agreed, at any time request the right to split the estate. [24] Thus, as the common heritage and by shares of the common There are two kinds of legislation to allow co-heirs have the right to request at any time of estates, there is no longer necessary as the common heritage of shared ownership.


In short, the total area is divided into a total by shares and common country or region of the common in well-defined rules, while the general, but also in the common heritage as a common basis of shared common heirs according to the special needs of the design together with the general There are special rules of the common heritage of different rules. Interestingly, the common heritage of special rules and contrary to the general rules of the common, but as with the common heritage formed by shares of the rules. Thus, the current will without distinction, the common heritage of the common and direct as practice contrary to national legislation. Such departure from the jurisprudence of the common legislative practice of the common heritage that will be considered the common heritage of the common fact be regarded as by shares consistent in nature, essentially as a common heritage by shares, which contrasts the common heritage as the practices of the misconduct of the common place.


Third, the system of the common heritage of Reconstruction: to <<Succession>> changes as the center


Given <<Succession>> In the common heritage shared by the qualitative basis for the common design the appropriate system, and the lack of estate liquidation corresponding norms, so in the future should focus on amending the law in the reconstruction of these two aspects of the system .


(A settlement should be the common heritage of liability rules were adopted by

The common heritage of the common legislation as the common heritage of not only the rights and obligations within the legal basis of the common design, but also the common heritage of the external relations of the common legal basis for the design. Because of the common people of the total property rights and obligations regardless of the share, based on mutual obligations arising from the common property will be joint and several liabilities. [25] Since the common heritage of our country about to adopt common legislation as a common mode of co-heirs of the estate will inevitably pay off debt jointly and severally liable. [26] But in reality, due to the common heritage as a common shared common heritage legislation and will be considered by shares with the consistency of legislation, the judicial practice of China in the long run to form a common successor proportional share of the inheritance share, according to the outstanding debt liability of the decedent, [27] and has been proposed in the relevant legislation and relevant judicial interpretations in the draft to be adopted. [28] In this case, the legislative provisions should not continue to co- heirs of the estate settlement of the debt jointly and severally liable.


In general, the debtor shall be jointly and severally liable to the creditors, the main reason for this is shared between the debtor is an inalienable interest. Although China's second heir to the estate by a common heritage of the debt shall bear joint and several liability within the legislation, but have yet to be allowed to continue co-heirs were, and were designated to be following the claim at any time of estates there, that shared heritage as reflected in a share of common interest. In other words, the common relationship between the common lack of heirs , only to split for the purpose of temporary total estate property relations, therefore not an integral with a common interest. In addition, the legacy of the existence of the debt is not based on reason but by a joint heirs of the decedent's own reasons, regardless of whether heritage should not change the legacy of debt divided by the settlement of the estate of the decedent the right way, has completed the partitioning of the estate should be held only with the return of co-heir to the estate duty. Therefore, the requirement to obtain the co-heir to the estate bear full responsibility for their outstanding debt legislation blatantly unfair, but also with the concept of the modern civil law contrary to your own risk. [29] In view of the lack of co-heirs jointly and severally liable among the foundation, settlement of estate debts of the decedent's estate should be limited, in addition to the voluntary co-heirs and agreements jointly and severally liable for the debt legacy, the part of the successor insolvent, the creditors have no reason to request to pay off the other heirs. Legislation should be designed according enjoyed by the heir's share of the common heritage of debt repayment on the rules, the provisions should not be indiscriminately straight the co-heirs jointly and severally liable.


In general, legislation in different countries or regions according to the subjective state of heirs can pay off the debt in the form of inheritance is divided into an infinite succession, inheritance and give up the inheritance limited to three types. To give up heir to inherit is the abandoned right of inheritance and the inheritance from the inheritance, since heirs have abandoned the right to inherit the estate, there can be no heir to the estate deals which assumed responsibility for the form of debt. unlimited inheritance is fully acknowledged following the successor of the decedent's rights and obligations under the premise, the successor will not only pay off the debt legacy limited to the settlement of the existing heritage, the need to own all the property settlement, but in view of the common heritage of the reasons for the debt is not caused by the co-inheritors of debt, in order to avoid increasing the burden on heirs, in addition to the common successor expressly and severally liable for the debt legacy other than legislation co-heirs are often defined according to their own copies of the estate should continue to pay off the debt. limited succession is the heir to the legacy they inherit the legacy of the debt limit and pay off an inheritance. because of heritage legacy debt must be settled before segmentation, the estate does not of course from start to become heirs inherit the property, only after the settlement of estate debt to become heir, joint heir to the request were divided according to their estate should continue. As a limited inheritance, estate debt settlement is the common heritage of co-heirs to inherit the split before, so generally does not exist on the estate liable for the debt situation again. Even if I do not know the needs of heirs and the settlement of the common heritage of creditors within the prescribed period in the undeclared debt situation , the co-heirs to repay the debt also has its share of heritage just limited to the settlement, according to copies of responsibility rather than assume joint and several liability.

Links to Research Papers Download http://www.hi138.com (II Heritage Building Clearing System

Following the concept of group mentality by Germanic law, the common heritage as a common desire shared by this legislation is actually given for the common co-owner eligible heirs, [30] play all of the common people on the estate administrator and related matters liquidation, to achieve the interests of creditors, heirs and estate protection. because of legislation, following the Roman Law concept of individualism as the common heritage of legislation by shares in the same manner actually matters related to the liquidation of the estate, including "< Quebec Civil Code>> III fifth title, the sixth title to respectively provide the "Liquidation of Heritage" and "partitioning of the estate." In other words, will be considered the common heritage shared by shares or on the liquidation does not affect the total matters relating to the common heritage of established stakeholders. by giving the common heritage of the common arguments for the heirs of the common organization of the ideas and unreasonable, "<Succession>> need to re-examine the idea of ​​such legislation.


Legislation on the estate liquidation, the common law countries and regions, the legislation generally provides for estate settlement system, after the start of the main provisions of the legacy inherited transferred to the administrator, the administrator made by the estate inventory, cleaning and care of heritage, to receive claims , debts, distribution of surplus property to heirs, on the contrary, some civil law countries and regions have adopted legislative provisions heritage management, estate debt settlement, heritage segmentation system replaces the legacy clearing systems, such as Germany, France, Switzerland, or provides clearing system at the same heritage, but also clearly defines the partitioning of the estate system, such as the Quebec region. Clearly, the legacy of clearing on the common law system of civil law in fact includes the Heritage Management, Heritage debt settlement, heritage segmentation system, and only after the settlement of the remaining legacy of debt can be involved in partitioning of the estate when the estate, pay off debt and liquidation of estates for the heritage of the first two tasks. co-inheritors of the legacy of responsibility in the form of debt and whether the legislation will establish the relevant estate settlement system. In the establishment of the common law system of inheritance case of liquidation, common heritage only after the debt has to be addressed before the partitioning of the estate or by shares of the common, which will be split to avoid the civil law before the common heritage as by shares or while of the common heritage management and heritage, without repayment of debt and went straight to the joint heirs of estates on the estate after the debts to be re-settlement of the annoyance. because of the renounced his inheritance because there is an infinite succession of estate or heirs can not pay off the debt bankruptcy situation, combined with infinite succession of heirs and creditors, the creditors of the decedent, regardless of the order of access to heritage may harm the interests of creditors of the decedent, [31] <<Succession>> amending the law in the future should be clear that an infinite succession, inheritance, or limited give up the inheritance as well as to be no liquidation of inheritance, in order to avoid disturbing breeding.


System in the estate liquidation, estate liquidators in charge of matters related to cleaning up legacy, estate liquidator by the heirs, executors, and related professionals to take, whether to pay compensation, estate liquidator shall be the duty of care bears good manager, [ 32] estate liquidator breach of this obligation and heir to the estate caused by the loss of creditors, the liquidator should bear the liability if there is a common heritage of the liquidator of subjective fault, then the liquidator should be borne by the estate and several liability, even if the co-heirs as estate liquidator is also true. to Taiwan, China so-called "Civil Code" section 1151,1152 provides a "common heritage as before the split of the common heritage, the heirs jointly select one person to manage, and the legacy of debt settlement jointly and severally liable "is concerned, as the administrator to act as co-heirs of the estate liquidator in fact. the common heritage of heirs have managerial responsibilities, co-heir to the estate the creditor may request reimbursement, the common heritage of the liquidator as successor Zeyi within the estate settlement of estate debt. If the joint heirs do not fulfill their management responsibilities and the loss of estate creditors, heirs should bear joint and several liability, tort liability but the scope of such responsibility is not part of the debt settlement estate duty areas. Similarly, although on obligation to bear the heir to make heritage inventory liquidation in the estate during the hidden legacy of fabricating such false acts against other creditors to force heritage assume unlimited liability on the heritage provisions in the nominal debt obligations known as settlement of estates, but in essence it is a species of tort liability. joint heirs in the estate liquidation process different decision as a joint heir must assume the responsibility of different nature, "<Succession>> amending the law in the future deal with tort liability and to pay the estate debt obligations after the distinction between the two requirements.



Note that the common heritage of legislation as a common shared or determined by shares a common heritage of heir to the satisfaction of the debt jointly and severally liable or responsible according to copies of: the common heritage as a common shared a common successor legislation clearly defined on settle estate debts jointly and severally liable, as the common heritage of legislation by shares of common heirs specified debt settlement should be based on its share of the heritage of commitment to press copies of responsibility. civil law countries and regions on the legacy of debt repayment and then form two legislation of different types: one is the common heritage of the provisions of the joint owners, will pay off the debt by the estate jointly and severally liable co-heir, the second is the common heritage of the provisions will be by shares, will pay off the debt from the co-heirs estate assume responsibility by shares. In other words, these two legislative system is to distinguish between the boundary partitioning of the estate, the estate should be divided by the debt before the estate is limited to the settlement of estates, estate debt outstanding share of the estate should have been shared by the heir commitment. Although our inheritance legislation since the late Qing dynasty inherited the common heritage as the legislative tradition of the common, but already the judicial practice as a common heritage handled by shares. Therefore, China should set up a legacy inherited settlement legislation system will pay off estate debts of estates as the heritage of the two tasks before and after the liquidation, the common heritage of heirs only after the debt settlement to split estate, co-inheritors of the legacy of debt outstanding natural heritage should be limited share of the responsibility borne by copies .


IV Epilogue: Reflections on the total legal

Although some civil law countries there are clear areas of legislation will be divided by shares and condominium owners, but of the common rules applicable to no longer limited to the established general rules of the common, all of the common rules have been based on their actual conditions in their respective special effect, the established of the common rules have been strictly enforced, and can not summarize the common abstraction for the common property of all the general rules. by shares and common there are differences between the two is difficult to form common to all the different type, in fact, just the same type of arrangement common to all the different systems, common to all nature is merely the legal effect of total performance. [33] of the common should become a separate legislation will need to reflect on the issue. will be as common heritage of legislation for the common total, according to the design of the common legal rights and obligations of the common internal and external successors to follow the rules as the common heritage of the legislation by shares common design rules of successor rights and obligations inside and outside are the same, the common reality In fact, inheritance is by shares, the legislature if it continues to be regarded as the common heritage of the common will no longer be reasonable. the best legislative model should no longer regarded as the common heritage of joint tenancy or by shares, just directly to the common successor rights and obligations between the norms can be clearly defined. [34]



Notes:
[1] of the current respectively Yumin, Professor Liang, Wang Liming, Xu Guodong, Li Ho presided over the drafting of a new five professors of the five scholars have suggested that issued the draft law of succession, but apart from Professor Xu Guodong charge of drafting the <"Green Civil Code" Draft> " Inheritance ", and Professor He Lixin charge of drafting the <<Civil Code draft Bill proposed changes Succession>> outside, Professor Zhang Yumin charge of drafting the <" China inheritance legislative proposals issued>> Article 12, Professor Liang Huixing presided over the drafting of the << China's Civil Code "Proposal Draft> Section 1855, Professor Wang Liming, presided over the drafting of the <" China scholars have suggested that the Civil Code draft Succession>> section 548 are defined as the common heritage of common ownership.

[2], Italy, Japan, China and France only provides the type by shares, Germany, Switzerland and China provided for by law of the common shares and two types. <<PRC Property Law "> Article 93 specifies that" the total, including by shares common and joint tenancy. "
[3] bringing the total difference is by shares and common There are two types of the enactment of legislation that, by shares and the establishment of the common reasons though, the right to enjoy, action should be part of the division limit, a total waste management, on the third exercise of rights, subject matter, the existence of their terms differ, but the main focus on the establishment of reasons, have the right to the existence of share, can claim segmentation common property and so on. See GT level: <<Property Law of the original theory> "(under the China Legal Press, 2001, p. 990.

[4] See weeks nan: <<Roman Law on the> "(on the books, Commercial Press, 1994, p. 532.

[5] Li Xiuqing: <<Germanic Law Research ">, the Commercial Press, 2005 edition, p. 452.

[6] See Li Yichen: <<Germanic Law Summary>> China Politics and Law University Press, 2003 edition, p. 209-210 pages.

[7] See [Japanese] Shiga show three: <"China Family Law Principles>>, Zhang Jianguo, Li Li, translation, Law Press, 2002 edition, p. 149-217 pages.

[8] [16] See Shi Shangkuan: <<Succession of>> China Politics and Law University Press, 2000, 182 pages, 195 pages.

[9] See Liu Chunmao: <<On the legacy of the partition>> containing Xi Jin Tao editor: <<Civil Proceedings>>, Shanxi People's Publishing House 1985 edition, p. 367.

[10] See GT level: <<Property Law of the original theory>>, China Legal Press, 2001, p. 989.

[11] See Shi Shangkuan: <<Property Law of>> China Politics and Law University Press, 2000, p. 179-184 pages.

[12] See Chan Kay go far: <<civil law on inheritance of new>>, Taiwan, San Min Book 2001 Edition, p. 135.

[13] See Pei Hua: <<marital community property Research ">, Law Press, 2009 edition, p. 23.

[14] See Yang Lixin, Zhu Chengyi: <<Succession monographs>>, Higher Education Press, 2006, p. 284.

[15] Some scholars also believe that, with the property owners by shares entitled to share than the common property of the common people to enjoy the abstract level, the equal share of the common essence, but also by share ownership. See Fuding Sheng, etc.: <<关于物权法几个问题的探讨>>,<<华东政法学院学报>>２００２年第４期,薛军:<<〈物权法〉关于共同共有的规定在适用中的若干问题>>,<<华东政法大学学报>>２００７年第６期.

[17][26]参见刘春茂主编:<<中国民法学·财产继承>>,中国人民公安大学出版社１９９０年版,第５２７－５２８页,第５６１页.

[18]参见<<日本民法典>>第９０５条、<<法国民法典>>第８４１条、<<澳门民法典>>第１９６４－１９７０条.

[19][23]参见谢在全:<<民法物权论>>(上,中国政法大学出版社１９９９年版,第３２９－３４２页,第３３９页.

[20]参见全国人大法工委民法室编:<<物权法立法背景与观点全集>>,法律出版社２００７年版,第４３９页.

[21]参见王泽鉴:<<民法物权(１通则·所有权>>,中国政法大学出版社２００１年版,第３７９页.

[22]参见我国台湾地区所谓的"民法"第１１６４条、<<德国民法典>>第２０４２条、<<瑞士民法典>>第６０４条.

[24]参见<<法国民法典>>第８１５条、<<日本民法典>>第９０７条、<<澳门民法典>>第１９３９条.

[25]参见<<瑞士民法典>>第６０３、６３９条、我国台湾地区所谓的"民法"第１１５３条.

[26]参见西南政法学院民法教研室编:<<民法讲义(初稿>>,１９８０年印刷,第３６２页,佟柔等编:<<民法概论>>,中国人民大学出版社１９８２年版,第３２６页,北京政法学院民法教研室编:<<民法讲义>>,１９８３年印刷,第２７２页,佟柔:<<继承法学>>,法律出版社１９８６年版,第１７１页.

[28]１９５８年３月的<<中华人民共和国继承法草稿>>第２４条、１９８０年８月的<<中华人民共和国民法草案〈征求意见稿〉>>第４９８条和１９８１年４月的<<中华人民共和国民法草案〈征求意见二稿〉>>第４２３条均规定"继承人有两人或两人以上的时候,根据个人继承遗产的多少,按比例分担债务",但１９８１年７月的<<中华人民共和国民法草案(第三稿>>以及１９８２年５月的<<中华人民共和国民法草案(第四稿>>中关于遗产债务清偿的规定却删除了共同继承人按比例分担债务的规定.另外,最高人民法院<<关于贯彻执行〈中华人民共和国继承法〉若干问题的意见>>第６２条的规定也体现了应以按份责任为标准清偿遗产债务的思想.

[29]参见刘春茂主编:<<中国民法学·财产继承>>,中国人民公安大学出版社１９９０年版,第５５４－５６１页.

[30]参见史尚宽:<<共同继承之研究>>,载戴东雄主编:<<民法亲属继承论文选辑>>,台湾五南图书出版公司１９８４年版,第４９８页.

[31]参见张玉敏:<<继承法律制度研究>>,法律出版社１９９９年版,第１７２页.

[32参见林秀雄:<<遗产管理人>>,载林秀雄主编:<<民法亲属继承争议问题研究>>,台湾五南图书出版公司２００１年版,第３１１页.

[33]参见高富平:<<物权法原论>>(下,中国法制出版社２００１年版,第７８５页,张双根:<<共有中的两个问题>>,<<比较法研究>>２００６年第２期.

[34]徐国栋教授主持起草的<<绿色民法典草案>>"继承编"和何丽新教授主持起草的<<民法典草案继承编修改建议稿>>均没有明确规定共同继承遗产可视为共同共有或按份共有,径直规定了共同继承人之间的权利义务,此种立法模式符合共同继承遗产的现实状况,值得立法借鉴.参见徐国栋主编:<<绿色民法典草案>>,社会科学文献出版社２００４年版,第２２３－２９８页,何丽新等:<<民法典草案继承编修改建议稿>>,载柳经纬主编:<<厦门大学法律评论>>第７辑,厦门大学出版社２００４年版,第２５１－３０１页.转贴于 免费论文下载中心 http://www.hi138.com