遗产继承中遗产债权人的利益保护研究

　　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。现行继承法非常重视对遗产继承人利益的保护，受到当时立法环境的局限只是笼统规定了一个限定继承原则。但现实生活中继承人、受遗赠人、遗产管理人为了自己的继承利益常常侵犯到遗产债权人的权益，遗产债权人的利益同样值得关注，制度设计上不能顾此失彼、有失偏颇，而应寻找二者利益之间最佳的平衡点，才能体现公平、平等地对待每一位民事主体的法律价值。本文针对现行继承法对遗产债权人利益保护的现状及问题予以分析，更对其原因从法律层面和社会层面予以探讨。通过对瑞士、法国、日本等域外制度的考察，来反思我国继承制度改革的路径选择，既包括实体上的制度完善也包括程序上的立法建议，以平衡遗产债权人与继承人的利益，在财产的继承过程中给予债权人和继承人平等之保护。

　　关键词 制度完善 遗产管理 限定继承 遗产债权人 保护。

　　Abstract

　　In inheritance how to effectively balance the protection to heritance and creditors equity,not only reflects the value orientation of the inheritance law of a country, but also determinesthe law of succession of the basic system design. The current inheritance law attaches greatimportance to the protection of heritage successors in interest by the principle, the limitationof the environment is only the general provisions of an entail principle. But in real life, theheir, legatee, heritage management in order to inherit her interests often infringe the rights andinterests of heritage creditors, the interests of heritage creditors are equally deserving ofattention, the system design can not attend to one thing and lose another, but should find thebest balance point between the two interests, in order to reflect the legal value of fairness,equality treat every civil subject. In this paper, according to the situation and problems ofthe protection of the creditors' interests in the current inheritance law to be analyzed, more toits reason from the legal aspect and social aspect to be discussed. Through the investigation ofSwitzerland, France, Japan and other foreign systems, the choice of path to reflect China'sinheritance system reform, both entities on the system improvement also includes suggestionsof legislation procedure, in order to balance the interests of heritage creditors and heirs, givethe creditor and the heir of the inheritance of the equal protection of property.

　　Keywords Improve the Inheritance law Administration of estates Limited to InheritInheritor Protection.

    目 录

　　序 言······································································································································1

　　第 1 章 遗产债权人及其利益保护的基本理论···································································2

　　1.1 遗产债权人的概念界定 ··························································································2

　　1.2 遗产债权人利益保护的理论基础 ··········································································2

　　1.3 遗产继承中有关债权人利益保护的基本制度·······················································3

　　第 2 章 我国继承法对遗产债权人利益保护的现状及不足···············································5

　　2.1 现行继承法对债权人利益保护的有关规定及不足 ···············································5

　　2.1.1 现行继承法对债权人利益保护的有关规定·················································5

　　2.1.2 现行继承法对遗产债权人利益保护的不足·················································6

　　2.2 司法实践中对遗产债权人利益保护的现状及不足 ···············································9

　　2.2.1 “难了的生死债案” ····················································································9

　　2.2.2 “放弃继承权案”························································································9

　　2.2.3 我国司法实践中对遗产债权人利益保护的不足之处 ·································9

　　2.3 现行继承法对遗产债权人利益保护不足的原因 ·················································10

　　2.3.1 现行继承法立法时的环境发生变化 ··························································10

　　2.3.2 社会对遗产继承中债权人利益保护观念淡薄···········································10

　　2.3.3 受当时立法指导思想所限 ··········································································11

　　2.3.4 当时的继承法理论研究尚且薄弱。 ··························································11

　　第 3 章 遗产债权人利益保护制度的比较考察·································································12

　　3.1 境外继承法中有关遗产债权人利益保护的立法例 ·············································12

　　3.1.1 瑞士 ·············································································································12

　　3.1.2 法国 ·············································································································13

　　3.1.3 日本 ·············································································································13

　　3.2 继承法学者建议稿中相关规定的分析·································································14

　　3.2.1 将笼统的无条件限定继承变为有条件的限定继承···································14

　　3.2.2 限制继承人选择放弃或接受继承的期间···················································15

　　3.2.3 遗产债权人的救济途径 ··············································································15

　　3.2.4 遗产管理制度······························································································16

　　第 4 章 完善我国遗产债权人利益保护制度的立法建议·················································17

　　4.1 遗产债权人利益保护实体之完善 ········································································17

　　4.1.1 设立有条件的限定继承 ··············································································17

　　4.1.2 完善遗产范围的界定 ··················································································20

　　4.1.3 明确多个继承人之间对遗产债务承担连带责任·······································21

　　4.1.4 赋予遗产债权人救济制度 ··········································································22

　　4.1.5 设立遗产管理制度······················································································23

　　4.1.6 允许遗产债权人行使代位权、撤销权 ······················································25

　　4.2 遗产债权人利益保护程序之完善 ········································································26

　　4.2.1 启动遗产的诉前保全程序 ··········································································26

　　4.2.2 确定继承人与遗产存有人的被告地位 ······················································27

　　4.2.3 遗产诉讼中采用举证责任倒置 ··································································27

　　结 论····································································································································29

　　参考文献································································································································30

　　致 谢····································································································································32