分家协议与继承法的冲突与融合

发布时间：2018-06-28 05:38

本文选题：分家协议 + 继承法　；参考：《宁波大学》2015年硕士论文

【摘要】：以嫡长子继承制为核心的分家协议制度自战国中期以来在中国社会已经延续二千多年,主要调整土地和房屋等家产在多子家庭中的传承与流动。在这一体系内部,已经形成较为稳定的内容与程序,效力也受到历代封建王朝的肯定。但是,随着清末基于政治要求移植西方法运动的盛行,继承制度正式取代了分家制度,成为了我国法律意义上正统的财产传承制度,而分家协议则悄然退出了国家法舞台。然时至今日,分家协议仍然作为一种风俗习惯广泛存在于中国民间,尤其是广大农村地区,并实际发挥着重要的作用。由于法律的缺失,学界与司法界对分家协议的性质与效力意见不一。在涉分家协议的案件审理过程中,法官往往因其内容的不公允而否定其效力,忽视了签订协议时各方的真实意思表示情况。一味如此,既无法保护协议各方当事人的预期利益,也无益于纠纷的真正解决,甚至可能导致民间法与国家法矛盾冲突的日益加剧。继承行为的家庭属性及继承的伦理特质决定了分家协议在继承法中适用的必要性,也为在继承法重构过程中扬弃分家协议提供了良好的土壤。鉴于此,本文从分家协议的性质入手,指出其契约性的本质,在继承法修订的过程中提议认可其协议的本质,并辅之以特留份、必留份等制度,尽可能在私产处分领域以尊重当事人的意思自治作为首要原则,肯定分家协议的效力,同时对协议中不尽完善之处予以法律的强行性干预,从而兼顾契约自由与法律规制间的冲突,真正实现二者的融合,同时也为司法领域提供切实可行的裁判依据,真正实现定纷止争。
[Abstract]:Since the middle period of the warring States period, the system of family separation agreement with the system of succession of the eldest son as the core has lasted for more than 2,000 years in Chinese society, mainly adjusting the inheritance and flow of land and houses among the multi-child families. Within this system, relatively stable contents and procedures have been formed, and their effectiveness has been affirmed by the feudal dynasties. However, with the popularity of the movement of transplanting western methods based on political demands in the late Qing Dynasty, the inheritance system formally replaced the separation system and became the orthodox property inheritance system in the legal sense of our country, and the separation agreement quietly withdrew from the stage of state law. Today, however, as a custom, the agreement of separation still exists widely in the Chinese folk, especially in the rural areas, and plays an important role in practice. Due to the lack of law, scholars and the judiciary have different opinions on the nature and validity of the separation agreement. In the trial process of the case involving the separation agreement, the judge often negates its effect because of its unfair content, neglecting the real intention of the parties when signing the agreement. Blindly, it can neither protect the expected interests of the parties to the agreement, nor is it conducive to the real settlement of disputes, and may even lead to the increasing conflict between civil law and national law. The family attribute of inheritance behavior and the ethical characteristics of inheritance determine the necessity of the application of the separation agreement in the inheritance law, and also provide a good soil for the sublation and abandonment of the separation agreement in the process of reconstruction of the inheritance law. In view of this, this paper starts with the nature of the division agreement, points out the nature of its contractual nature, proposes to approve the nature of the agreement in the course of the amendment of the succession law, and adjusts it with the system of special retention, mandatory retention, and so on. As far as possible, in the field of disposition of private property, respect for the autonomy of the parties' will is the first principle to affirm the validity of the separation agreement, and at the same time to impose legal intervention on the imperfect aspects of the agreement. Thus, the conflict between the freedom of contract and legal regulation can be taken into account, and the fusion of the two can be realized. At the same time, it can also provide a practical basis for adjudication in the judicial field, so as to realize the resolution of disputes and disputes.
【学位授予单位】：宁波大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.5

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