How is Chinese inheritance law nowadays

Contributions of the scientific drafts to the reform of inheritance law in the PRC A legal and legal terminological investigation 1

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1 Essays Contributions of the scientific drafts for the reform of inheritance law in the PRC A legal and legal terminological investigation 1 WANG Qiang 2 I. Introduction 1 2 The inheritance law applicable in the PRC consists of the Inheritance Act 3 and its supreme court interpretation 4. Since both came from 1985 and Both are comparatively too short in view of the complex subject matter of the regulations 5, they are not entirely in line with today's life, economic and social situation as the legal basis for the material inheritance law of the People's Republic. 6 Das 1 This article was funded by the Program for Young Innovative Research Team at China University of Political Science and Law. The abbreviations used in the article: a. F .: old version; Alt .: alternative; Note: Note; Art .: Article; BGB: (German) Civil Code; German translation: German translation; ff .: also following; Fn .: footnote; ed .: published; hm: prevailing opinion; i. e .: id est (that is); i. e. S .: in the narrower sense; InsO: Insolvency Code; i. S. d .: in the sense of; i. V. m .: in connection with; i. w. S .: in the broader sense; JOR: Yearbook for Eastern Law; Latin: Latin; m. a. W .: in other words; o .: above; above: mentioned above; Rn: paragraph; s .: see; see above: see above; so-called: so-called; v .: from; w .: literal translation or meaning. The abbreviations of other laws or the draft proposals are explained in the course of the article. 2 The author (doctorate at the University of Mainz) is Asso. Professor at the Chinese University of Political Science and Law (CUPL China University of Political Science and Law) in Beijing with research focus on comparative law, translation and linguistics as well as property law, inheritance law, animal owner liability law and business law, dean of the German department. He would like to take this opportunity to thank Prof. Christina Eberl-Borges for helping clarify the German term of legacy and also to David Siegel, Ass. Jur.-candidate, for proofreading. 3 中华人民共和国 继承法 (Inheritance Law of the PR China), adopted on and in force since, in: Succession Law of the People s Republic of China (中华人民共和国 继承法), Beijing 2010, p. 1 23; German trans. in: Frank Münzel (Ed.), Chinas Recht / 1; hereinafter also referred to as the Inheritance Act and, when referring to its individual provisions, abbreviated as ErbG. 4 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 (Views of the Supreme People's Court on Certain Issues in the Application and Implementation of the PRC Succession Law), in force since, in: Succession Law of the People s Republic of China (footnote 3), p. hereinafter referred to as the highest court views, views or ErbG views and, when referring to their individual provisions, abbreviated as ErbG views. 5 The Inheritance Act comprises only 37 provisions and the views only 64 articles. 6 An example is a case from 2012 in which a married couple and their only 6-year-old daughter died in a traffic accident (one behind the other). At first the daughter inherited her parents alone because she had outlived her parents by a few hours. However, since she had no heirs herself, the entire estate had to go to the state in a considerable amount (around euros). According to the current inheritance law (10 ErbG), her 33-year-old aunt, i.e. the sister of the deceased mother, was not entitled to any estate, although her entire family has now grown thanks to the economic development and privatization compared to the level thanks to the inheritable private wealth of the Chinese multiplied three decades ago. The Chinese people are also becoming increasingly aware of their private rights. It is undisputed among lawyers, judges, other officials in the legal system, for example heads of the authorities responsible for the legal system, as well as among ordinary citizens that inheritance law is considered out of date and adapted to the current living conditions of the population in legal dealings must be. 7 The need for reform of the inheritance law can be seen not least in the repeated calls by influential representatives (MPs and mostly lawyers at the same time) at several annual meetings of the National People's Congress to thoroughly revise it. 8 According to Mediden had lost in accident. Detailed information on this can be found in the report by ZHAO Yinan, China Daily v, (viewed on). 7 In detail in the report Thorough revision of the inheritance law for the first time since its entry into force (继承法 实施 27 年 将 首 迎 大修) by LIU Wei (刘 炜), Democracy and Law Times (民主 与 法制 时报) v, (viewed on). This is especially the case when one takes into account the inheritance cases, which are unclearly and unsuccessfully regulated by the case law, are often cited as examples and therefore also legally significant, and which affected some famous personalities in Chinese society as testators and triggered violent inheritance disputes. These testators include: the scholar JI Xianlin (季羡林) (in detail at , <2075f b852b73717c088ccd> and (viewed on) and the media star HOU Yaowen (侯耀文) (for details under <% 97% E4% BA% A7% E6% A1% 88> and ) (viewed on). 8 For details see LIU Wei (fn. 7); ZHAO Yinan (Footnote 6). Both cited WANG Shengming (王胜明), director of the civil law bureau of the Legal Working Committee of the Standing Committee of the National People's Congress, who strongly advocates a thorough change in the law of succession. The calls for inheritance reform are made even more pressing by the more urgent Legal claims of those involved in inheritance disputes as mentioned above and who were directly affected by the relevant case law, underlined The desire to adapt the inheritance law to the changing social and economic conditions is increasing day by day, so to speak ; see the report on the calls for a thorough revision of the inheritance law at Legal Daily (法制 日报) v, (viewed on 5

2 enreport 9, a change in the law has already been planned as a legislative project for 2013. However, so far there is no official draft law on the renewal of inheritance law. Renowned lawyers have been referring to and constructively criticizing the numerous shortcomings in inheritance law from academic circles for years, and have spoken or are expressly in favor of a thorough revision. 10 Representative results of these efforts are now concretized in the two draft proposals for the revision of the PRC inheritance law, the draft by LIANG Huixing 11 et al., And that by YANG Lixin 12 et al. The two academic drafts, apart from the fact that the scope for their renewal initiative is severely limited in view of China's legislative situation, 13 are much more detailed and systematic than the existing regulations). 9 S. for example Legal Evening News (法制 晚报) from Cf. for example MA Junju (马俊 驹) / YU Yanman (于 延 满), Basic Theory of Civil Law (民法 原 论), 4th edition, Beijing 2010, S A comprehensive, Systematic and in-depth analysis of various problems relating to the PRC's inheritance law by influential Chinese lawyers, including Prof. YANG Lixin (杨立新), whose draft inheritance law will be examined in this article, can be found in the contributions to the discussion on the from to from the Southwestern University of Politics and Law (西南 政法 大学) held a symposium on the difficult problems in the focus of the revision of the PRC inheritance law (中国 继承法 修改 热点 难点 问题 研讨会),

) (viewed on) . 11 Currently Professor at the Chinese Academy of Social Sciences (CASS) in Beijing and member of the Law Commission of the National People's Congress; was already head of the drafting committee for the Contract Act and also co-author of the Act on Liability for Legal Infringements and the Property Law Act; more detailed information about himself and his publications can be found at <(viewed on). After he had already submitted a draft for a civil code of the PRC in 2003, the extensive draft proposal for a civil code of the PRC, consisting of seven books, was published under his leadership in 2013. The seventh book of this draft proposal represents the law of inheritance, while general provisions, property law, general law of obligations, contract law, unlawful acts and family law make up the other six books. The book on inheritance law in the draft proposal, LIANG Huixing (梁慧星), draft proposal for a civil code of the PR China with justifications Book 7: Inheritance law (中国 民法典 草案 建议 稿 附 理由: 继承 编), Beijing 2013 (hereinafter: LIANG draft) , is largely identical to the draft proposal submitted by LIANG Huixing in 2011 for the revision of the Inheritance Act of the People's Republic of China (hereinafter: LIANG Draft 1), (viewed on) . 12 civil and commercial lawyers, former judge in the civil division of the Supreme People's Court, currently professor at Renmin University in Beijing; More detailed information about himself and his publications can be found at (viewed on). The Chinese version of the draft proposal drafted under his leadership in 2012 for the revision of the Succession Act of the People's Republic of China (hereinafter: the YANG draft) is available at (accessed on ). 13 On the one hand, many of the basic terms and principles that apply in the Inheritance Act cannot be redefined, as this will otherwise lead to difficulties or contradictions to the basic rules when implementing the drafts; on the other hand, the renewals cannot be carried out thoroughly enough, since the two drafts, like their predecessors, still have to be coordinated with several other individual laws, which in turn contain contradictions or discrepancies. The latter problem is not only considered to be the main cause of the deficiencies in the current law of inheritance, but also of the restrictions on its amendment. In the area of ​​inheritance law, the People's Republic initially relied on Soviet civil law, primarily for the period from 1949 to 1978 but also after the introduction of the reform and opening policy in this Soviet character can be seen in some places in the inheritance law. 14 Nevertheless, the Chinese civil law of both the Republic and the People's Republic was in fact and largely based on German law in the sense of statutory law, the birth of which is due to the legal modernization initiated at the beginning of the last century. 15 Only after the 30-year hiatus (), which in the end turned out to be detrimental to the development of civil law in the People's Republic, does the change take place. The fact that neither of the two drafts was included in the formal legislative process may be due to the fact that, due to the separate regulatory system of Chinese civil law, the revision of the inheritance law is also mutually related to changes to numerous other individual laws. These laws include, to name just a few, 中华人民共和国 民法 通则 (General Principles of Civil Law of the People's Republic of China; hereinafter: AGZR), passed on and in force since, <(viewed on), Ger. with reference to the source: Frank Münzel (Ed.), Chinas Recht, / 1;中华人民共和国 合同 法 (Contract Law of the PR China), passed on and entered into force on, <(viewed on), German Ü. in: Jörg-Michael Scheil / Tanja Gargulla / Christoph Schröder / Jakob Riemenschneider, Contract Law of the People's Republic of China Translation and Introduction (Communications from the Institute for Asian Studies Hamburg, No. 309), Hamburg 1999, p;中华人民共和国 物权 法 (Property Law of the PR China), passed on and in force since, Chinese-German version in: ZChinR 2007, p. 78 ff .;中华人民共和国 婚姻法 (marriage law of the PR China), in force since and revised on, (viewed on), German Ü. with: Frank Münzel (Ed.), Chinas Recht, / 1;中华人民共和国 信托 法 (Trust Act of the PR China), passed on and in force since, <(viewed on), German Ü. with: Frank Münzel (Ed.), Chinas Recht, / 1;中华人民共和国 保险 法 (Insurance Act of the PR China), revised version adopted on and in force since, <(viewed on), German Ü. with: Frank Münzel (Ed.), Chinas Recht, / 1;中华人民共和国 侵权 责任 法 (Law on Liability for Violations of Rights / Tort Liability Law of the PR China), passed on and in force since, (viewed on), German Ü. at: Frank Münzel (Ed.), Chinas Recht, / 1. 14 For example in the ranking of the legal heirs (10 ErbG), in the special consideration for the needy but incapable of work heirs (13 ErbG) and non-heirs (14 ErbG) within the framework of the legal succession as well as in the testamentary dispositions of such dependent heirs (19 ErbG) and the accrual of the inherited or not taken over estate to the so-called state organization (32 ErbG). See the presentation of the draft of a civil code from 1956 in CHEN Jianfu, Chinese Law: Context and Transformation, Boston 2008, p. 49; Harro von Senger, The first law of inheritance in the PR China (La première loi sur les successions en République Populaire de Chine), in: Revue de droit international et de droit comparé 64 (1987), pp. 65, 73; ZHANG Shuhan, The Testament in China. History, law and custom, in: ZChinR 2013, pp. 75, 81; Law Dictionary (法律 辞典), ed. v. Editorial Committee for Law Dictionary, Institute of Law, CASS, Beijing 2004, S For the history of the origins of Chinese civil law and its orientation towards the German Civil Code as the most important model with the background and reasons, see for example WANG Qiang, Contributions from the late Qing period on China's modern property law terminology A legal, translation and linguistic study on the draft civil code based on the German Civil Code, Frankfurt a. M. 2012, p. 12 ff. Or p. 26 ff. And others. also for further references. 6th

3 This orientation on the mainland continues 16 and is even more pronounced today 17. Despite the influences of Soviet law, the decisive influence of Chinese civil law by German, among other things with regard to the basic terminology of inheritance law, is also reflected in the inheritance law. The two draft proposals are all the more and more directly based on German inheritance law. It is precisely thanks to their orientation of this kind 18 that they are more extensive in content than the applicable inheritance law, more systematic in terms of legal engineering and significantly more precise with regard to the conceptual regulations. In the course of China's possible reform of inheritance law, the BGB is moving closer again, primarily with its inheritance law as the most important foreign source of law. An examination of the contributions of the draft revisions based on the BGB to the current but incomplete inheritance law of China, especially through a comparison of legal language with an emphasis on legal terminology, technology and concepts, is therefore a desideratum.The comparative analysis was intended to systematize the terms of inheritance law and the relevant legal terms in two languages, to clarify the relevant legal technique and to deepen its understanding, not least in order to contribute to its more precise application. If necessary, a comparison is made at some points between the LIANG and YANG drafts, and possibly also between the drafts and their common German model. With the above objective, the approach of the present work is jurisprudential 16 The Civil Code of the Republic of China (中華民國 民法 [hereinafter: ZGB]; original book title: 民法 [civil law], Taibei 2002; German version in: Karl Bünger, civil - and Commercial Code as well as Exchange and Check Law of China, Marburg 1934, p. 101 ff.), the first and so far only Chinese civil code, had been in effect throughout China until 1949 after the successive enactment of its five books between 1929 and 1931 and has been in force ever since only in Taiwan. It was preceded by two drafts of civil law that could not come into force as a law: one from 1911 from the late imperial era and another from 1925, see WANG Qiang (fn. 15), pp. 15 f. And p. 20 ff. The present work mainly examines the law of inheritance of the PRC. Therefore, when one speaks in the following of the Chinese legal literature, the Chinese inheritance law, the Chinese lawyers etc. or of China, this usually or only refers to those of the People's Republic. This is emphasized because, despite the increasing affinity of the latter for the former, there is still a considerable difference between the individual civil law areas of the republic and the people's republic. can also be traced back to the following fact: the civil law of the republic is in many respects, for example with regard to the general part (a substantial part of the AGZR in the people's republican civil law), family and inheritance law, regulated more deeply and systematically than that of the people's republic. 17 S. for example, the Contract Law of 1999, which is comparable to the BGB contract law (fn. 13), the Property Law of 2007, which is comparable to the BGB property law (fn. 13), and the Tort Liability Act of 2010, which is comparable to the BGB provisions on tortious acts ( Footnote 13). 18 See the legislative models for the LIANG draft in LIANG Huixing (fn. 11), p. 5 ff. And systematically structured. 19 The terms are examined with the respective regulatory content in the case of the applicable inheritance law with the provisions of the inheritance law, its interpretation by the highest court and, in the case of the academic drafts, with their legal provisions as a framework. The literature serves as a guide for the terms that are not yet regulated by law. The analysis of inheritance law terminology and at the same time comparative language with explanations, clarifications and, if necessary, questions is based on the corresponding legal system and is carried out with the order of rules as the starting point for the comparison. II. Basic concepts and principles 1. Content and nature of inheritance law The fact that Chinese legal language distinguishes law in the sense of the objective legal order or laws 20 from that with the meaning of subjective rights 21, 22 applies without exception to inheritance law. The right of inheritance in the sense of objective law, i.e. the totality of the legal propositions concerning the property of a deceased natural person, 23 is called in Chinese jìchéngfǎ 24. For the term subjective right, which, as in German law, applies to the death of the testator for a or several other persons arising entitlement to the inheritance 25 expires, the Chinese legal language provides another expression jìchéngquán 26. While the People's Republican literature, when dealing with the nature of inheritance law (in the sense of justification), perceives the different perspectives 27, 28 classifies 19 The advantages and disadvantages of this approach for the present work can be found in WANG Qiang (fn. 15), P. 4 ff. 20 客观 法. 21 主观 权利. 22 For details, see WANG Qiang (fn. 15), S cf. Gerhard Köbler, Legal Dictionary, 15th edition, Munich 2012, S 继承法 (w .: Erbgesetz i. W. S.), d. H. in the sense of all legal provisions concerning the property of a deceased person, in the case of the PRC the inheritance law and the views of the Supreme People's Court. 25 See Gerhard Köbler (fn. 23), S 继承 权; w .: the right or the right to inherit (the property of a deceased). 27 For example, as an option or right of choice (选择 权), i.e. a kind of right to design (形成 权), as property law (物权), as the legal status of the heir to take over the property rights and obligations of the testator as a whole, as property right (财产权) or as professional law (身份 权); see MA Junju / YU Yanman (fn. 10), p. ZHANG Junhao (张俊浩), Principles of Civil Law Science (民 法学 原理), Beijing 1997, S While according to MA Junju and YU Yanman ([fn. 10], S) the law of inheritance is objectively not a right, but only a legal position and subjectively a Represents kind of property right, ZHANG Junhao ([Fn. 27], p. 956) sees therein the right based on the professional law as a close relative (近 亲属) of the testator to acquire the estate. 7th

4 the AGZR assigns inheritance law to property rights with regard to ownership of property without further clarification. 30 Furthermore, the right of inheritance is defined in the literature on two levels: on the one hand, objectively as the authorization 31 or, in a broader sense, only as the inheritance 32 of a natural person to accept the estate of the testator by virtue of law or testamentary provisions before the succession; on the other hand, subjectively or in the narrower sense than the actual right 33, which is due to the heir to the inheritance left by the testator after the inheritance and if the necessary prerequisites 34 are met, also by virtue of statutory provisions or testamentary provisions. 35 The fact that China's inheritance law consistently ascribes the function of realizing inheritance law to the death of the testator 36 is primarily based on the legal definition of inheritance 37. More precisely, the inheritance occurs with the death of the testator (2 ErbG) Legal subjects of inheritance law By 1922, paragraph 1 BGB, German inheritance law not only provides a legal definition of the inheritance but also the definition of the testator. 39 In China, the LIANG draft (1933 para. 2) formally defines the term testator 40 as the deceased person whose property, which belonged to him during his lifetime 41, and from death to 29 与 财产 所有权 有关 的 财产权. 30 S. Chapter 5 (civil rights) section 1 (property ownership and property rights related to property ownership) of the AGZR and 76 below, which only affirmed the legal protection for the property inheritance right (财产 继承 权) of a private person. 31 资格; see MA Junju / YU Yanman (fn. 10), p. Chinese lawyers also regard inheritance law as the legal capacity of the heir to inherit the estate; see GUO Mingrui (郭明瑞) / FANG Shaokun (房 绍坤) / GUAN Tao (关 涛), Research on Inheritance Law (继承法 研究), Beijing 2003, S 继承 期待 权; d. H. Entitlement to succession; see Law Dictionary (fn. 14), S 事实 权利 or 既得 权利 (actually acquired right); see MA Junju / YU Yanman (fn. 10), p. 895 and Law Dictionary (fn. 14), S These include: 1. The death of the testator must be ascertained. 2. The testator left an inheritance. 3. The heir has not forfeited his right of inheritance or his right of inheritance has not been withdrawn; cf. MA Junju / YU Yanman (fn. 10), S From a different perspective, German inheritance law is divided into statutory law, which arises exclusively from the law, and voluntary law, which is based on a declaration of intent in a will or contract of inheritance; see Gerhard Köbler (fn. 23), in summary: Before the death of the testator, the heir only has a prospective right to the succession, while he can already exercise his inheritance right with the death of the testator; see ZHANG Junhao (fn. 27), S 继承 开始 (w .: beginning of succession or entry into succession). Terminologically, the expression 继承 开始 (inheritance) already indicates that only then does the inheritance relationship (继承 关系) actually come about; see 5 ErbG; ZHANG Junhao (fn. 27), S Likewise according to the YANG draft (3 para. 1) and LIANG draft (1934). 39 Cf. Dirk Olzen, Erbrecht, 3rd edition, Berlin 2009, S 被 继承人 (w .: the person who is inherited). 41 生前 所 享有 的 财产. other persons passes over, and on the other hand the heir 42 as the person who takes over the property of the (deceased) testator by virtue of law, namely in the case of legal or testamentary successes 43. Chinese inheritance law only allows a natural person to be a testator, since legal persons do not die, but rather only expire. 44 Likewise, it excludes the legal person, other organization or the state as heir, 45 because they cannot be related to or married to the testator and are therefore incapable of inheritance 46. A definition of the heir as one who is living at the time of the inheritance , natural person only takes place in the two academic drafts 47. In terms of the German inheritance law, the heirs are also distinguished from the persons to whom the inheritance only gives rise to claims, but who are not universal successors themselves 48 of the testator, but only participate in the estate under the law of obligations and thus no heirs can become heirs 49. In China, too, only those who acquire the estate by virtue of the right of inheritance due to them are regarded as heirs. 50 Persons who are entitled to inheritance 51 but are not entitled by virtue of inheritance law are expressly not considered heirs. Such persons include, for example, the legatee 52, the person entitled to the appropriate estate allocation 53 and the person liable for maintenance under the Legacy and Maintenance Agreement 54. Finally, China's inheritance law limits the 42 继承人 (i.e. the successor of the testator or the person who [the estate] inherits). 43 See MA Junju / YU Yanman (fn. 10), p. 896; see Law Dictionary (fn. 14), p. also for a comprehensive explanation of the term heir. 44 See ZHANG Junhao (fn. 27), p. MA Junju / YU Yanman (fn. 10), p; ZHANG Junhao (fn. 27), S Apart from that, however, they can become legatees of the estate left by the testator; see MA Junju / YU Yanman (fn. 10), S LIANG draft: 1938; YANG draft: 10 para. 2 S cf. 1922 para. 1 BGB (universal succession). 49 The BGB includes, for example, the legatee, the person entitled to a compulsory portion or the so-called person entitled to substitute heirs. For the relevant provisions see 1939, 2147 ff., 2303 ff. BGB; on this, see Kroiß / Ann / Mayer, Nomos Commentary on BGB-Inheritance Law Volume 5:, 4th edition, Baden-Baden 2014, 1922 Rn 6 (hereinafter cited in this way: NK-BGB / Kroiß [editor], 1922 Rn 6); Dirk Olzen (fn. 39), S MA Junju / YU Yanman (fn. 10), S 有权 取得 遗产 的 人 (w .: persons entitled to inheritance). In this case, they apply as a generic term for heirs (= those entitled to inheritance by virtue of inheritance law) and those who are not entitled to inheritance by virtue of inheritance law; see MA Junju / YU Yanman (fn. 10), p. see about 18 ErbG; LIANG draft: 1974; YANG draft: 31, 酌情 分得 遗产 人; see about 14 ErbG; especially 1957 LIANG draft and 61 YANG draft, among others. also for similar designations as 继承人 以外 可 适当 分得 遗产 的 人 (non-heirs with claims to an appropriate distribution of the estate) or 遗产 酌 分 请求 权 人 (person entitled to an appropriate distribution of the estate). 54 遗赠 扶养 协议 中 的 抚养 人; see about 31 ErbG; LIANG draft: 1997; 8th

5 Heirs to the following persons: 55 the conceptually imprecisely defined close relatives 56 and the widowed children-in-law who predominantly supported their in-laws 57. The aforementioned persons are not included. 58 Furthermore, three conditions are presupposed in China's literature 59 for the legal status of the heir: he must have inheritance capacity 60, he has not forfeited his right of inheritance 61 and he is either covered by the (legal) succession 62 or determined as an heir by testamentary succession 63 . Anyone who dies before or at the same time as the testator is independent of the manner in which he or she is appointed YANG draft: cf. 10, 12 ErbG; MA Junju / YU Yanman (fn. 10), p. 896; ZHANG Junhao (fn. 27), p. The close relatives are the relatives of a person who are legally and legally obliged to do so. They represent a cross-legal concept that is peculiar to Chinese inheritance and family law. According to the Law Dictionary ([fn. 14], p. 353), they consist of spouses, children, parents, siblings, grandparents and grandchildren. Based on 106 No. 6 Criminal Procedure Act of the People's Republic of China (passed on and last revised on, (viewed on), close relatives include spouses, parents, children and siblings by blood. 57 对 公婆 岳 父母 尽 了 主要 赡养. 的丧偶 儿媳 女婿. Such designations occur in 12 ErbG and 60 YANG draft, but no longer directly in the LIANG draft. According to 1957 No. 2 of the LIANG draft, they probably belong to a group of non-heirs with claims to an appropriate allocation of the estate (继承人 以外 可 适当 分得 遗产 的 人). 58 With regard to the acquisition of a right in rem (associated with the entry into succession or legacy), according to 29 Property Law, no distinction is made between inheritance law and the right to receive legacies. that no distinction is made between the heirs and legatees. This argument itself is not necessarily valid, since the same legal nature of both rights, especially from only one perspective, ie app and the legal assignment of the inherited or bequeathed object does not necessarily mean that both rightholders have the same position. Nevertheless, it indicates that the institute of the legacy is inadequately and unclearly regulated in the current law of inheritance (at the same time in the academic drafts). In terms of inheritance law, heirs and legatees have different positions: The heir is empowered to dispose of and administer and handle the estate. In other words, he is also obliged to settle the debt of the estate. The legatee can demand the inheritance from the heir that remains after the obligations have been settled. A legal clarification of the legal nature of the legacy or the legal position of the legatee, inter alia. also in accordance with the Property Law Act, should have been proposed as a solution to this legislative loophole in inheritance law. Finally, it should be noted that under the Chinese Inheritance Act, legatees, similar to German inheritance law, are not considered heirs and inheritance law differs from the right to receive bequests; see the explanations of the legacy below in IV; MA Junju / YU Yanman (fn. 10), S (on the nature of the right of inheritance and the property of the heir); WEI Zhenying (魏振瀛), Civil Law (民法), 1st ed., Beijing 2000, S, (on the detailed distinction between inheritance and legacy, between both rights and between both rightholders; the 2000 edition of WEI's civil law textbook was used primarily because it was processed more thoroughly than the subsequent requirements). 59 S. for example MA Junju / YU Yanman (fn. 10), S 继承 能力 (w .: ability to inherit an estate). There are no differences in China and Germany regarding the fact that inheritance is a property of general legal capacity under inheritance law; see e.g. MA Junju / YU Yanman (fn. 10), p.896; NK-BGB / Kroiß 1923 Rn 1 (fn. 49). 61 未 丧失 继承 权. 62 继承 顺序. 63 遗嘱 继承. incapable of inheritance. 64 The inheritance of the womb 65 as a borderline case is regulated by China's inheritance law with several regulations. As a principle, the fruit of the womb is initially granted a share of the inheritance when the estate is divided. 66 The restriction of the principle much discussed in the literature 67 is only substantiated by the LIANG draft (1939): Only if the womb that was conceived before the inheritance is born alive (afterwards) is it considered to have been born before, and thus also to be hereditary . 68 The ErbG views (in section 45 (2) sentence 1) 69 provide for a legal consequence of this hereditary capacity: in the event of the death of the womb after birth 70, her share of the inheritance is passed on to her own heirs. But if the womb is dead at birth 71, it falls out of the inheritance 72. Consequently, the portion of the inheritance intended for it then falls into the hands of the co-heirs. 73 The BGB clarifies the ability of the Nasciturus to inherit 74 with a single provision of 1923 para. 2 under the same condition that he is later born alive. 75 With regard to the inheritance status of the person not yet born at the time of inheritance, China's inheritance law follows the individual case principle 76. The YANG draft even goes one step further (in 10 para. 1 p. 2, 3) and also does not require the heirs or legatees to be born at the time of the inheritance. In case of doubt, such persons are regarded as subsequent heirs. Since family law (in particular the law of parentage) and inheritance law are not coordinated in the People's Republic, attempts are also being made in the context of the reform of inheritance law to reduce the inheritance law position of children, which is caused by artificial infestation. 49). 65 胎儿 S. 1 ErbG; Section 45, Paragraph 1 of the ErbG views; LIANG draft: 2021 para. 2 sentence 1; YANG draft: 65 para. 1 S Cf. MA Junju / YU Yanman (fn. 10), p. 897; ZHANG Junhao (fn. 27), S Likewise with MA Junju / YU Yanman (fn. 10), S The other view that the womb is not to be considered inheritable according to China's current inheritance law, among others. in GUO Mingrui / FANG Shaokun / GUAN Tao (fn. 31), S Likewise in the YANG draft: 65 para. 1 S 出生 后 死亡. 71 出生 时 是 死 体. 72 p. 28 p. 2 ErbG; LIANG draft: 2021, Paragraph 2, Clause 2. The formulation of the two legal clauses If the womb is dead at birth, the legal succession is misleading. It rather gives the impression that the legal succession does not intervene even if the womb dies after birth. 73 number 45 para. 2 sentence 2 ErbG views; YANG draft: 65 para. 1 S Lat. (w .: one who will be born), refers to the unborn womb (尚不 具 权利 能力 之 未 出生), according to the Latin legal sentence Nasciturus pro iam nato habetur (the developing person is treated like the one who has already been born)胎儿); on this, see Gerhard Köbler (fn. 23), S cf. NK-BGB / Kroiß 1923 Rn 1, 12 (fn. 49). 76 个别 主义. I. E. a womb is generally not recognized as having legal capacity (hence no hereditary capacity). However, if the womb is born alive, it is still regarded as inheritable; see MA Junju / YU Yanman (fn. 10), p. 897; LI Fengzhang (李凤 章) / WU Minxu (吴 民 许) / BAI Zhe (白 哲), Basic Theory of Civil Law: Principles, Rules and Cases (民法 总论: 原理 规则 案例), Beijing 2006, pp. 73 ff. 9

6 tung were born 77, to be confirmed. Such children are already considered to be alive when the inheritance occurs and to this extent enjoy the same inheritance status as those born in the body (16 para. 2 LI-ANG draft 1 78; 10 para. 2 YANG draft). In Germany, on the other hand, the consequences of artificial insemination are not regulated by inheritance law. Rather, such questions are left to family law (with regard to descent) and are therefore no longer discussed in German inheritance law. In this respect, too, the two drafts kept China's legal position under constant consideration. 3. Legal object of inheritance law German inheritance law refers to inheritance as the testator's property which, by virtue of the law, passes to the heir (s) in its entirety upon death. 79 The assets bequeathed by the testator are therefore not limited in content to the assets, as in common usage, namely assets in the narrower sense.Rather, debts that arise from the life of the testator, arise with the inheritance or are justified by the heirs, at any rate fall behind prevailing view also under the concept of inheritance. Such liabilities are the inheritance liabilities that the heir has to correct (1967 para. 1 BGB), while the assets only include the pecuniary goods and rights of the testator, in other words all of his real and personal property rights 80. In summary, the inheritance includes both the testator's assets and liabilities. The German legal language also uses the term Nachlass 81 for the same term of the testator's property, without any difference in content being associated with it. The term inheritance is often used, especially when the relationship between the bequeathed property and the heir should be emphasized, while the word inheritance mostly refers to the property as such, namely the active property. 82 In contrast to this, the Chinese have more of a uniform term for the testamentary property, namely yíchǎn 83. Due to the legal definition of inheritance as the legal, per- 77 人工 生育 left behind by citizens when they die. 78 According to 16 (2) LIANG Draft 1 (fn. 11), children born through artificial insemination enjoy the same status as those born in the body. In contrast to this, this is no longer an issue in the post-processed and already published LIANG draft. 79 S Abs. 1 BGB; on this, see Gerhard Köbler (fn. 23), p. 124; Dirk Olzen (fn. 39), p. It is assumed that they are not personally, such as B. the life annuity according to 759 BGB or the usufruct according to 1061 BGB; see Dirk Olzen (fn. 39), p. 37; NK-BGB / Kroiß 1922 Rn. 7 (fn. 49). 81 E.g. in the regulations of the 1960 f., 1967, 1975 BGB. 82 Cf. Dirk Olzen (fn. 39), S 遗产 (w .: bequest or inheritance). personal assets (according to 3 ErbG 84) the conceptual scope of the estate is limited to the assets in China. 85 Only the object of inheritance law is regarded as the epitome of both inheritance in the sense of assets 86 and liabilities in the sense of liabilities 87. 88 Similar to the principle of universal succession (universal succession 89) laid down in the German Civil Code (1922 para. 1), the principle of overall succession 90 applies to China's inheritance law, namely the entire succession of the heir (s) to the (all) property rights arising during the life of the testator obligations. 91 While the principle is not clearly expressed in the current Inheritance Act, 92 it is expressly regulated in the YANG draft (5) Furthermore, the overall success is conditional 95 and limited 96, which is reflected in 33 sentence 1 Hs. 2 ErbG: the ( of the heirs) taxes 97 and debts 98 to be paid are limited to the actual value 99 of the estate. 100 This principle of liability, known in the PRC as xiàndìng jìchéng 101, is now clarified, for example, in the LIANG draft 103. The inheritance content prescribed in the Inheritance Act (3) is limited to that of the 84 The definition of The legacies in 3 ErbG have retained both the LIANG draft (in 1941 paragraph 1) and the YANG draft (in 7 paragraph 1). 85 On this, MA Junju / YU Yanman (fn. 10), p. 899; Law Dictionary (note 14), S S 遗产; d. H. Right. 87 消极 遗产; d. H. Duties. 88 Another view, which allegedly is based on 33 ErbG and Section 62 ErbG views, and which the present work does not follow, that the estate includes both the active assets or the so-called active estate and the passive assets or the so-called passive estate and the estate itself is directly an object of inheritance law, can be found among others in WEI Zhenying (fn. 58), p; ZHANG Junhao (note 27), S 总括 的 权利 继 受; for the Chinese name see i.a. Civil Code (德国 民法典), translated from German and with a note from CHEN Weizuo (陈卫 佐), 2nd ed., Beijing 2010, S 概括 继承; for the designation see i.a. MA Junju / YU Yanman (fn. 10), p. 892; ZHANG Junhao (fn. 27), S cf. MA Junju / YU Yanman (fn. 10), S By 33 p. 1 Hs. 1 ErbG it is only regulated that with regard to the inherited estate the taxes and debts owed to the testator are to be settled are. 93 The heading of the 5 YANG draft is just complete takeover (概括 承受). 94 On this, see 2013 LIANG draft: Scope of inheritance liabilities and joint and several liability of co-heirs. 95 有条件. 96 有 限制; see MA Junju / YU Yanman (fn. 10), S 应 缴纳 税款. 98 应 清偿 债务. 99 实际 价值. 100 The principle is retained in the two draft proposals; s LIANG draft: Limitation of the heirs' liability in the settlement [of the estate's liabilities] (继承人 偿还 责任 的 限制); 77 YANG draft: Conditional and limited succession (有条件 的 限定 继承). 101 限定 继承 (limited succession). 102 See MA Junju / YU Yanman (fn. 10), p. 892, and 2014 LIANG draft. 10

7 Time since the law was drawn up, primarily on a fixed income 104, items that are primarily necessary for daily needs or essential for survival, 105 production means 106 in limited quantities, 107 cultural goods 108, printed works and documents 109 as well as property rights in the form of copyrights 110 and patent rights 111. Such a list was, but is no longer up-to-date, as it can hardly be exhaustive in practice. 112 Many Chinese jurists 113 advocate the strategy practiced in German inheritance law of not defining the exact content of the inheritance by law, but by means of interpretation and legal development through jurisprudence and literature 114.Similar to its German model 115, literature counts 116 In general property rights 117, obligations 118, property rights of intellectual property 119, design rights 120 such as rights of avoidance 121 and rights of revocation or withdrawal 122 etc. to the objects of inheritance. Despite this trend, it should be noted that the two academic drafts have taken into account the current economic, social and legal developments in mainland China by expanding the specific content of inheritable property and specifying its scope in terms of legal terms. The YANG draft (in 7 para. 1), for example, adds rights to the contractual takeover of property management 123 and the income 124, property claims 125 and their securities 126, property rights registered in securities 127, to the inheritance objects specified in the inheritance law, Company shares 收入; in No. In No. 2 and 生产资料. 107 In No. 109 图书 资料; in No. 111 专利权; in No. S. on this, MA Junju / YU Yanman (footnote 10), p. 899; ZHANG Junhao (fn. 27), S. ZHANG Junhao (fn. 27), p. 976; MA Junju / YU Yanman (fn. 10), p. 899 mwn. 114 A systematic presentation and explanation of the objects of inheritance law in German inheritance law in NK-BGB / Kroiss, 1922 Rn 7 ff. (Fn. 49). 115 S. on this NK-BGB / Kroiß, 1922 Rn. 7 ff. (Fn. 49). 116 S. MA Junju / YU Yanman (fn. 10), p. 118 债权. 119 知识产权 中 的 财产 权益. 120 形成 权. 121 撤销 权. 122 解除权. 123 土地 承包 经营 权. 124 承包 收益; approvingly, MA Junju / YU Yanman (fn. 10), S 财产 债权. 126 担保. 127 有价证券. 128 股权. or property rights in a partnership 129, property rights from intellectual property 130, the pecuniary advantages 132 derived from the personal rights 131 due to the testator, and virtual property on the Internet 133. In addition, the draft takes into account the new development of personality protection in this context and prohibits the inheritance of such virtual property on the Internet that relates to the personal information rights 134 or the rights to privacy 135 of the testator (7 para. 3). In 1941, the LIANG draft also takes a position on some of the objects of inheritance law currently controversial in the People's Republic 136, on the one hand including the sum insured 137, compensation sum 138 and compensation sum 139 obtained by the testator as inheritable property, and on the other hand those to the person The testator's bound personal rights 140 and the personal claims and liabilities 141 related to the testator are excluded from the estate 合伙 中 的 财产 权益. 130 知识产权. 131 被 继承人 享有 的 人格 权. 132 衍生 的 财产 利益. 133 互联 网络 中 的 虚拟 财产. 134 个人 信息 权. 135 隐私权. 136 For examples of such disputed legal objects, see inter alia. MA Junju / YU Yanman (fn. 10), S 保险 金. 138 补偿 金. 139 赔偿 金. The insurance, compensation and compensation amounts are part of the discount only if the beneficiaries have not been personally determined. In accordance with section 17 of the explanations of some questions about the applicable laws in the case law on compensation for physical damage by the Supreme People's Court (最高人民法院 关于 审理 人身 损害 赔偿 案件 适用 法律 若干 问题 的 解释;

8 III. Legal Succession 1. Principles In the case of legal succession 143, the Chinese inheritance law aligns succession 144 primarily with marriage 145 and kinship 146. Pursuant to Section 10 (1) Inheritance Act, the deceased's spouses, children and parents 147 are his heirs of the first order 148, siblings and grandparents on the paternal and maternal side as his heirs of the second order 149 German inheritance law (1924 ff. BGB) is much more limited and inheritances therefore fall more and more often to the state.As a focus of their renewal initiative, the two draft proposals 150 expand the group of legal heirs 151 by a third order 152, which consists of other blood relatives of the straight line or side line 153 up to the fourth degree 154 of the testator. Accordingly, they also order to a greater extent 155 that the heirs of a closer order 156 exclude those of the more distant 157 from the succession. 158 According to 10 paras. 3 and 4 ErbG, children and parents in the first order include legitimate children 159, illegitimate children 160, adopted children 161 and Punkt. 143 法定 继承. 144 继承 顺序 (w .: order of succession); In the case of legal succession, rank is the decisive category and heirs within the same rank are usually entitled to an equal share of the claim. Therefore, succession order is better suited as an equivalent for the Chinese name 继承 顺序, although in Chinese it can literally be more often referred to as 继承 序 位 / 继承. 145 婚姻 关系. 146 血缘 关系 (w .: consanguinity). 147 The view that parents should actually belong to the second order can be found in ZHANG Yumin (张玉敏), Research on the Succession System (继承 制度 研究), Chengdu 1994, p. 258; that in view of the increasingly aging population structure and the still far from extensive old-age provision system in the PRC, parents should remain legal heirs in the first order, in GUO Mingrui / FANG Shaokun / GUAN Tao (fn. 31), S 第一 顺序 继承人. 149 第二 顺序 继承人; by 57, the YANG design still adds grandchildren to heirs of the second order. 150 YANG draft: 57; LIANG draft: 法定继承人. 152 第三 顺序. 153 直系 或者 旁系 血亲. 154 四 亲 等 之 内. The YANG draft leads them in 57 inter alia. as great-grandparents on paternal and maternal side, uncles on paternal and maternal side, aunts on paternal and maternal side, cousins ​​and cousins ​​on paternal and maternal side, nephews, nieces, grand-nephews and great-nieces on paternal and maternal side, great-grandchildren on paternal and maternal side. 155 Draft YANG: 58 para. 1; LIANG draft: 前 一 顺序 继承人. 157 后 一 顺序 继承人. 158 According to 10 para. 2 ErbG, heirs (only) of the first order exclude (only) those of the second order from the succession. 159 婚生子女. 160 非婚生子女. 161 养 子女. If the adoptive children have fulfilled their maintenance obligation towards their adoptive parents (13 para. 4 ErbG), and at the same time stepchildren in a maintenance relationship 162 or birth parents 163, adoptive parents 164 and step-parents in a maintenance relationship First-order heirs are included in the Inheritance Act (12) 167 nor the widowed children-in-law who mostly supported their in-laws, even if they remarry. 168 In addition, their children can also take their place in the succession without hindrance (cf. Section 29 ErbG views 169). 170 The term “siblings 171” in the second order, which is regulated in detail, includes siblings with common parents 172, siblings with one parent 173, adoptive siblings 174 and step-siblings in a maintenance relationship 175 have maintained a larger volume, they are entitled to receive an appropriate share of the estate of the latter (14 ErbG; expressly in Section 19 ErbG views, YANG draft: 61 para. 2), even though they are no longer their heirs as a result of the adoption are; see MA Junju / YU Yanman (fn. 10), S relationship in which the stepchild is entertained by the stepparents or a stepparent (有 扶养 关系 的 继 子女); see also the German Ü. of the Inheritance Act v. Frank Münzel (fn. 3), note 10. This relationship amounts to the so-called quasi-blood relationship. Therefore, the stepchildren in such a relationship who have inherited the estate of their stepparents can inherit the estate of their birth parents unhindered (expressly in Section 21, Paragraph 1 of the ErbG views and LIANG draft: 1948, Paragraph 2); see MA Junju / YU Yanman (fn. 10), S S 父母. If, however, their biological children have been adopted by other persons, they then lose their right of inheritance to the estate of their biological children; see MA Junju / YU Yanman (fn. 10), p. If the adoption relationship expires, the adoptive parents can no longer inherit the estate of their adoptive children; see MA Junju / YU Yanman (fn. 10), S 有 扶养 关系 的 继 父母. Relationship in which the stepparent or stepparent entertains the stepchild; see also the German Ü. of the Inheritance Act v. Frank Münzel (fn. 3), note 10. The stepparents in such a relationship can, after having inherited the estate of their stepchildren, inherit the estate of their biological children without hindrance (expressly in Section 21, Paragraph 2 of the ErbG views and LIANG - Draft: 1949 para. 2). 166 Likewise in the YANG draft: 59 paras. 1, 2; LIANG draft: 1948 para. 1, 1949 para. 1. If other people are adopted as adoptive grandchildren (养 孙子 女) and their relationship to their adoptive grandparents (养 祖父母) corresponds to that of the adoptive parents to the adopted children, they can also mutually inherit the first order (section 22 ErbG views; LIANG draft: 1948 para. 3). 167 Likewise in the YANG draft: See section 29 ErbG views; YANG draft: From point 29 of the ErbG views, however, it cannot be clearly concluded whether the children come from the previous marriage (with the deceased spouse) or from the later marriage. Presumably, the children here refer to those from the latter marriage, since children from the previous marriage usually already have a right to join in the place of their deceased parent. 170 Critical views on the legal institution et al. in GUO Mingrui / FANG Shaokun / GUAN Tao (fn. 31), p; MA Junju / YU Yanman (fn. 10), p. 921 including fn 兄弟 姐妹. 172 同 父母 的 兄弟 姐妹. 173 同父异母 或者 同母异父 的 兄弟 姐妹. 174 养 兄弟 姐妹. The so-called fraternal relationship between adoptive children and biological children, as well as between several adopted children. The inheritance relationship between the adopted persons and their biological siblings expires when the adoption relationship is established (Section 23 ErbG views). 175 有 扶养 关系 的 继 兄弟 姐妹. The maintenance relationship here refers to that which is based on the maintenance paid by one step-sibling to another. Without the maintenance relationship, there can be no mutual right of inheritance between them (Section 24 Paragraph 1 Hs. 2 ErbG views). In accordance with 29 of the Marriage Act (fn. 13), siblings who are capable of maintenance are obliged to keep minors 12