Conflicts between the Current Succession Law and the Folk Habit of Separation of Family Proper and Solutions Thereto
|School||Southwest University of Political Science|
|Keywords||division of family inheritance autonomy of will mandatory norm|
Division of family is one of the common phenomena in traditional Chinese families. Division of families generally indicates the new families formed after the division. In ancient society, it was a social movement to make land, housing and property belong to different families. Division of property is an agreement on property of family members, which according to certain standard. It is generally occurring when a large share of property in the process. It is generally occurring within big family and divorcing couple.The thesis consists of three parts, totally over twenty thousand charactersThe first part introduces the concept of division of family and analysis of some aspects like the time, subject, object and instrument and so on. Having discussed the relationship between folk customsof division of family, traditional inheritance and current law of succession. Finding that there are a lot of consistency between the folk customs of division on the Property and traditional inheritance, for example, both of them emphasized the right of the men, approved the principle that the younger generation have to pay for the debt of the parents, the wealth flew from the elder generation to the younger; and there are many differences between folk customs and the current inheritance system, which happen in the nature, causes, scope and distribution principles and so on.The second part describes the conflicts and the reasons of them. There are many major conflicts between the two: whether male and female have equal inheritance rights or not, whether the younger generation has to pay for all the debt of their parents, "the flow of property from elder to younger " or "from the living to dead "These conflicts were formed because of the role of traditions and customs forces, the nature of property inheritance laws and the contribution of autonomy.The third part discusses the settlement of the conflicts between folk customs and current succession law. The action of inheritance has the nature of family, determining its impact limited to within the family or village, which provides a good soil for interaction of succession law and customary law. The ethical nature of inheritance also determines customary law applicable in the need for succession. So producing harmonious solution to conflicts is necessary and feasible. On the legislative front, as a form of civil law origin, folk customs share the same ethical foundation, forms and systems with current succession law, so to solve the conflict between the two is feasible. We should recognize that dividing family is a way to form an agreement, showing an unity meaning of family members, which is the multi-party legal action. We should respect the autonomy of all family members. At the same time, this autonomy can’t be contrary to the mandatory and prohibitions of succession laws and regulations. On the judicial front: Judges should be flexibility in the use of legal interpretation and application of the rules, making up the legal loopholes. We also have to unify the folk customs and current law, which increases the social acceptance of the referee and unify the legal effects and social effects.