遗产破产制度研究

发布时间：2019-03-24 16:11

【摘要】：我国《继承法》于1985年颁布,以实现养老育幼原则为目标,主要对遗产继承人的利益进行保护,关于维护遗产债权人权益的规定很少,不便于实践中对遗产继承纠纷、遗产债权纠纷的解决。而我国《企业破产法》只针对企业法人适用,难以适应社会需求和目前世界各国和地区采取一般破产主义的趋势。遗产破产制度的构建将补充破产法的不足,给解决遗产破产相关问题提供法律方面的依据。本文将通过介绍遗产破产制度,使更多人认识、了解此制度;通过对社会发展需要和维护相关人权益需要等方面的分析,阐述我国设立遗产破产制度的必要性,为其设立提供现实依据;通过对设立遗产破产制度的基础制度、具体问题的详细说明,使得其设立更加具有现实可行性。本文通过对其他国家和地区遗产破产制度设立情况进行分析,结合我国的具体情况,对一些争议点做出合理的建议。例如,(1)对于遗产破产制度的性质,存在不同观点,有的学者认为遗产破产兼具破产法和继承法双重性质,但本文认为遗产破产属于破产制度,从性质上来说属于破产法,不仅体现遗产养老育幼的社会功能,而且保护遗产债权人得到平等清偿的权利。(2)对于遗产破产的主体,有被继承人主体说、继承人主体说等观点,笔者赞同把遗产本身视作破产主体的观点,通过立法让遗产具有破产能力,使之获得破产资格,便于遗产破产制度施行。(3)对于遗产破产的原因,日本、英国和台湾地区破产法均设定为资不抵债,但是笔者更赞同德国的规定,把支付不能和资不抵债均规定为遗产破产的原因。资不抵债的成立,需要使债务人的资产状况和负债状况相对比。而支付不能无需使遗产和债务相对比,只要求遗产满足支付不能的条件,相关权利主体即可申请遗产破产。遗产破产制度的建立,会满足多方面需求:(1)使得遗产债务偿还等问题有法可依,使遗产债务人与遗产债权人的权益得到平衡,从而更好的解决遗产纠纷。(2)填补我国破产法的空白,从一定程度上解决我国法律制度不够完善的问题,是完善我国法制体系的必然要求。(3)有利于我国破产制度方面与国际接轨,可以更好的进行各国间的司法协助与交流,促进我国法律制度的现代化、全球化发展。
[Abstract]:The inheritance Law of our country was promulgated in 1985, with the aim of realizing the principle of providing for the aged, protecting the interests of inheritance heirs mainly. There are few provisions on safeguarding the rights and interests of the estate creditors, so it is not convenient to dispute the inheritance in practice. Settlement of disputes over inheritance claims. However, China's Enterprise bankruptcy Law is only applicable to enterprises as legal persons, so it is difficult to adapt to the social needs and the trend of general bankruptcy is adopted in all countries and regions of the world at present. The construction of estate bankruptcy system will supplement the inadequacies of bankruptcy law and provide legal basis for solving the problems related to estate bankruptcy. This article will introduce the estate bankruptcy system, make more people know, understand this system; Through the analysis of the needs of social development and the need to safeguard the rights and interests of the people concerned, this paper expounds the necessity of setting up the estate bankruptcy system in China, and provides a realistic basis for its establishment. Through the establishment of the basic system of estate bankruptcy system and the detailed explanation of the specific problems, it is more practical and feasible to set up the estate bankruptcy system. Based on the analysis of the establishment of estate bankruptcy system in other countries and regions, this paper makes some reasonable suggestions on some controversial points according to the specific situation of our country. For example, (1) there are different views on the nature of estate bankruptcy system. Some scholars think that estate bankruptcy has both the nature of bankruptcy law and inheritance law, but this paper thinks that estate bankruptcy belongs to bankruptcy system and belongs to bankruptcy law in nature. It not only embodies the social function of providing for the aged and children of the estate, but also protects the right of the estate creditor to be paid off equally. (2) for the subject of the bankruptcy of the estate, there are the views of the subject of the heir and the theory of the subject of the heir. The author agrees with the view that the estate itself is regarded as the subject of bankruptcy, so that the estate can be qualified for bankruptcy through legislation. (3) for the reasons of the bankruptcy of the estate, Japan, The bankruptcy laws of Britain and Taiwan are both set as insolvency, but the author agrees with the German rule that payment incapacity and insolvency are the reasons for estate bankruptcy. The establishment of insolvent debt requires a comparison between the debtor's assets and liabilities. And the payment can not need to make the estate and the debt contrast, only requires the estate to satisfy the non-payment condition, the related right subject can apply for estate bankruptcy. The establishment of the estate bankruptcy system will satisfy many needs: (1) make the problems such as the repayment of the estate debt have a legal basis, so that the interests of the estate debtor and the estate creditor can be balanced and the interests of the estate debtor and the estate creditor can be balanced. In order to solve the legacy dispute better. (2) to fill the blank of the bankruptcy law of our country, to solve the problem that the legal system of our country is not perfect to a certain extent. It is necessary to perfect the legal system of our country. (3) it is beneficial for the bankruptcy system of our country to be in line with the international standards, can better carry on the mutual legal assistance and exchange among the countries, promote the modernization of the legal system of our country, and the development of globalization.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.5

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