论遗产债权人利益的法律保护
发布时间：2018-08-07 15:14
【摘要】： 在遗产继承中如何有效平衡保护继承人和遗产债权人的利益,不仅反映一国继承法的价值取向,也决定着继承法基本制度的设计。我国继承法十分重视遗产继承中继承人的利益保护,并建立了以有限继承为原则的继承制度。但我国继承法对遗产债权人的利益保护则无具体的制度规定。现实生活中,遗产债权人的利益屡屡遭受侵犯,表现形式各种各样,既有被继承人的生前侵权行为,也有继承人、受遗赠人、遗产管理人的违反义务的侵权行为。遗产债权人利益被侵犯的原因既有法律层面的,也有社会层面的。域外对遗产债权人利益的保护形成了较为完善的制度。大陆法系直接继承制度下对遗产债权人利益的保护制度主要有无限继承的推定与适用制度和遗产管理请求权的赋予制度。英美法系则主要通过间接继承制度实现对遗产债权人利益的保护。我国继承法对遗产债权人的利益保护不力,主要表现为实行无条件的限定继承制度不合理,遗产范围界定不周全,选择和放弃继承无明确的期限,遗产债权的受偿顺序规定不明确,遗产债权人利益遭受侵犯缺乏有效法律救济手段。学习和借鉴域外的先进的遗产债权人利益保护制度,我国继承法应改无条件的有限继承制度为有条件的有限继承,完善遗产范围的界定,完善遗产管理制度,引入遗产破产制度,赋予遗产债权人以代位权和撤销权。对遗产债权人的程序保护则包括：启动遗产的诉前保全程序,确定放弃继承的继承人或遗产保管人的被告资格,实行遗产的公示催告程序,建议遗产债权债务诉讼中举证责任的倒置。
[Abstract]:How to effectively balance the interests of heirs and creditors in inheritance not only reflects the value orientation of a country's inheritance law, but also determines the design of the basic system of inheritance law. China's inheritance law attaches great importance to the protection of the interests of the heirs in inheritance, and establishes the inheritance system based on the principle of limited inheritance. However, there are no specific regulations on the protection of the interests of estate creditors in China's inheritance law. In real life, the interests of estate creditors are frequently infringed in various forms, including the tort of the deceased, the successor, the bequeath and the administrator of the estate. The reasons for infringement of the interests of estate creditors are both legal and social. The protection of the interests of estate creditors outside the country has formed a relatively perfect system. The system of protecting the interests of estate creditors under the system of direct inheritance in the civil law system mainly includes the presumption and application system of infinite inheritance and the system of endowing the claim of estate management. Anglo-American law system mainly through indirect inheritance system to protect the interests of estate creditors. The inheritance law of our country fails to protect the interests of the estate creditors, which mainly shows that the system of unconditional limited inheritance is unreasonable, the scope of the estate is not well defined, and there is no definite time limit for the selection and abandonment of inheritance. The order of payment of estate creditor's rights is not clear, and the infringement of estate creditor's interests is lack of effective legal remedy. To learn from and learn from the advanced system of protecting the interests of estate creditors abroad, China's inheritance law should change the unconditional limited inheritance system into conditional limited inheritance, perfect the definition of the scope of heritage, and perfect the system of estate management. The introduction of estate bankruptcy system endows estate creditors with subrogation and rescission rights. The procedural protection of the estate creditors includes: initiating the pre-litigation preservation proceedings of the estate, determining the defendant's qualifications of the heirs or estate custodians who have given up their inheritance, and carrying out the procedures of public notice of the estate, It is suggested that the burden of proof should be reversed in the litigation of estate creditor's rights and liabilities.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923.5
本文编号：2170434
[Abstract]:How to effectively balance the interests of heirs and creditors in inheritance not only reflects the value orientation of a country's inheritance law, but also determines the design of the basic system of inheritance law. China's inheritance law attaches great importance to the protection of the interests of the heirs in inheritance, and establishes the inheritance system based on the principle of limited inheritance. However, there are no specific regulations on the protection of the interests of estate creditors in China's inheritance law. In real life, the interests of estate creditors are frequently infringed in various forms, including the tort of the deceased, the successor, the bequeath and the administrator of the estate. The reasons for infringement of the interests of estate creditors are both legal and social. The protection of the interests of estate creditors outside the country has formed a relatively perfect system. The system of protecting the interests of estate creditors under the system of direct inheritance in the civil law system mainly includes the presumption and application system of infinite inheritance and the system of endowing the claim of estate management. Anglo-American law system mainly through indirect inheritance system to protect the interests of estate creditors. The inheritance law of our country fails to protect the interests of the estate creditors, which mainly shows that the system of unconditional limited inheritance is unreasonable, the scope of the estate is not well defined, and there is no definite time limit for the selection and abandonment of inheritance. The order of payment of estate creditor's rights is not clear, and the infringement of estate creditor's interests is lack of effective legal remedy. To learn from and learn from the advanced system of protecting the interests of estate creditors abroad, China's inheritance law should change the unconditional limited inheritance system into conditional limited inheritance, perfect the definition of the scope of heritage, and perfect the system of estate management. The introduction of estate bankruptcy system endows estate creditors with subrogation and rescission rights. The procedural protection of the estate creditors includes: initiating the pre-litigation preservation proceedings of the estate, determining the defendant's qualifications of the heirs or estate custodians who have given up their inheritance, and carrying out the procedures of public notice of the estate, It is suggested that the burden of proof should be reversed in the litigation of estate creditor's rights and liabilities.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923.5
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