| Summary: | 碩士 === 中原大學 === 財經法律研究所 === 97 === This thesis is studying the problems of the restitution of the right of inheritance, so as to clarify the effectiveness of the restitution of the right of inheritance. It begins with the property, experience of legislation, exercise, extinguishment and the coexistence of other claim rights for the restitution of the right of inheritance. Furthermore, also there is review on the Supreme Court's Precedent, and expecting to find out the solution for the dispute about the restitution of the right of inheritance.
The Article 1146 of Civil Code：「Where the right to inherit has been infringed upon, the injured party or his statutory agent may claim its restitution. The right to claim as provided in the preceding Paragraph is extinguished if not exercised within two years from the date of knowing such infringement. The same rule applies where ten years have elapsed from the time of the opening of the succession.」The preceding Paragraph indicate the restitution of the right of inheritance, and the latter Paragraph indicate the exercise period of it.
The above Article of Civil Code is unique to the restitution of the right of inheritance, but it lacks explanations for properties, elements, results and exercise of the rule. Consequently, it results in disputes about how to exercise the right. Scholars of Taiwan, have presented lots of theses for the restitution of the right of inheritance, and still existing differences among opinions. The Judicial Yaun Interpretation No. 437 declared on 10/17/1997, explained the existence reason and property etc. of the right, but disputes are existing, especially in Precedent of practice. There is a little confusion resulting from the disobeying to Interpretation No. 437 or differences between Precedents.
The restitution of the right of inheritance in Taiwan, which copied the model from Japanese Civil Code Article No.884. The Japanese Article No. 884 follow their ancient law, its purpose was to confirm heir of the family, but currently because the inheritance only focus on estate of inheritance, the shorter expiration result in complex problems. Besides, the right in Taiwan, is not as detailed as rules of Germany and Switzerland, and it can’t achieve the purpose of the restitution of the right of inheritance like the rule in Germany and Switzerland to protect interest of heirs and reduce heir’s duty for evidence. Also when happens an infringement of the right of inheritance, depend on the situation, the injured party is entitled to claim the right to demand its return, the right to return the interest without any legal ground and prejudice to the other , the right for compensation due to any injury arising intentionally or negligently and the right for the interests derived from the management when the manager knew it was another person's affair but still managed for his own interests, the injured party has the choice between these rights above to compensate his loss. Therefore, there is little interest to exercise the restitution of the right of inheritance.
Consequently, the thesis begins with definition property, experience of legislation, exercise, extinguishment and the coexistence of other claim rights for the restitution of the right of inheritance. to study, and review the Supreme Court’s Precedents to give suggestions and comments for legislation.
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