论《民法典》继父母与继子女间的法定继承权基于99份典型判决书展开

On the Legal Right of Inheritance Between Stepparents and Stepchildren in the Civil CodeBased on 99 typical judgments

  • 摘要: 继父母与继子女间的法定继承权的立法,符合我国人口老龄化程度加剧、社会化扶养压力骤增的现实情况。《民法典》相关规范承袭此前部门立法实践。当前司法裁判面临既有规范解释和规范空白补充的双重困境。继父母与继子女间的法定继承权的法理基础,是功能主义思想、平等原则和权利义务相一致原则的多重构造。该类继承权应以《民法典》第1127条为请求权基础,需要在姻亲关系存续期间形成扶养关系。扶养关系作为社会事实上的身份关系,在形成后不因姻亲关系解除而解除。扶养关系的认定应当同时满足行为要件与时间要件,需要根据案情酌情判断。抚养教育与扶养的内涵不应等同视之。法定继承权的消灭应当尊重当事人的意愿,允许通过诉讼或协议等方式自主决策。当事人存在拒绝扶养等行为的,应推定为意图解除扶养关系,消灭法定继承权。继父母子女间法定继承权的消灭,并不消灭其他情形下的法定扶养义务。

     

    Abstract: The legislation on the legal inheritance right between stepparents and stepchildren is in line with the reality of the increasing degree of population aging and the increasing pressure of socialized support in China. The relevant norms of the civil code inherit the legislative practice of previous departments. At present, judicial adjudication faces the dual dilemma of existing normative interpretation and normative blank supplement. The legal basis of legal inheritance between stepparents and stepchildren is the multiple structure of functionalism, the principle of equality and the principle of consistency of rights and obligations. This kind of inheritance right should be based on article 1127 of the civil code as the claim right, and it is necessary to form a dependency relationship during the existence of the marriage relationship. As a social de facto identity relationship, the support relationship is not dissolved due to the dissolution of marriage in laws after its formation. The determination of maintenance relationship should meet the requirements of behavior and time at the same time, and it needs to be judged according to the circumstances of the case. The upbringing education and upbringing connotation should not be regarded as the same. The elimination of legal inheritance should respect the wishes of the parties and allow independent decision-making through litigation or agreement. If the party refuses to support, it shall be presumed that he intends to terminate the support relationship and eliminate the legal inheritance right. The elimination of the legal inheritance right between stepparents and children does not eliminate the legal maintenance obligations under other circumstances.

     

/

返回文章
返回