RULING and OPPOSITION lawmakers have reached a consensus in their discussion of amending the civil code's rules on inheritance and debt inheritance. for many years i have done my utmost to push for amendments to these rules, and it looks as though finally there are some results. but there are positive and negative aspects to the content of the draft amendment.
the positive aspect is that the ministry of justice is finally allowing people with little or no legal capacity, especially unmarried minors, to benefit from limited debt inheritance without needing to go to court anymore to request this. the negative side is that if the law is amended this way, it does not do anything to help the weak group of people who are of age but do not have sufficient understanding of the law. also, it is retroactive for too limited a period of time. people who have been put at a disadvantage by the old law have little chance to benefit from the amendment.
in the proposed amendment, people under the age of 20 automatically fall under the system of limited debt inheritance, without needing to make an inventory of the inheritance. it's clear that there is no absolute need for inventories. in accordance with the current civil procedures act (民事辜訟法) and the compulsory execution act (強制執行法), that use the legal principle of the "adversary system," in which lawyers representing each side give their view of the case, creditors will still have their rights. in the past, creditors had to take action themselves to invoke that right, and request the compulsory execution of a debtor's possessions or inheritance.
currently, when compulsory executions and consequent debt collections are carried out, they are mostly aimed at the sale of real estate, and only secondly at property with set prices, like cars. the property that is usually sold in compulsory executions for debt collection is already registered, and is extremely hard for heirs to conceal. creditors have a right to search for proof of such property, regardless of whether there is an inventory of the inheritance.
if we look at the inventories of heirs who have applied for limited inheritance under the current law, we see that most of them are identical to information available to the national tax administration. so making an inventory of the inheritance is superfluous, and only adds to the troubles of heirs and the workload and responsibilities of the courts, while actual benefits are small.
the law should be amended so that an inventory of the inheritance is no longer necessary for partial inheritance.
unfortunately, the current amendments are still not sufficient. they will be like helping the orphans, but leaving the widows out in the cold.
there should be no time limit on the retroactive application of the amendment. the limit of three years proposed under the draft amendment is not sufficient. all that is necessary is the addition of an article that stipulates that heirs whose cases have already been processed cannot ask for a reversal.
this way, business transactions are still protected, and it is also fully in accordance with the principle that businesses should have the option to assess the credit of a potential debtor. when a bank has lent money, it has only assessed the credit and property of the deceased, it does not involve the possessions of a later heir.
under the law currently in effect, that lets the heir automatically inherit the entire estate and the rights of the creditor are expanded to include the heir's own property without proper reason. this contradicts the legal idea of individual responsibility that lies at the basis of the current civil code. there was never a need for a limited period in which the law could be retroactive.
apart from that, people who leave an inheritance are not the only ones who can be in debt, the heirs themselves might be debtors too. under the current law, the heir automatically inherits the entire estate, including debts. creditors of a deceased can also get a share of the possessions of heirs. this disadvantages creditors of the deceased, including banks.
the banking world opposes amending the inheritance rules to a complete guaranteed limited inheritance. this is not a sensible course of action: it means overly protecting the benefits of banks that are creditors of the deceased, through the current system where the heir automatically inherits the entire estate, at the price of harming the interests of banks that are creditors of heirs.
adopting a full system of limited inheritance is not at all a dangerous thing. on the contrary, it is in line with the concept of individual responsibility that lies at the core of a modern civil code. it is fair to both debtors and creditors. if a system of limited inheritance would give rise to any negative consequences, then the law should be amended to end the system where heirs must request limited inheritance. it should not be the case that only people who understand the law so well that they know they can request limited inheritance can actually receive it. both the law as it is now and the draft amendment that is being discussed by the legislature serve to avert the risks of creditors in lending money, instead of shifting the burden to people that do not understand the law.
this is a law that helps end the oppression of weak groups in society. i strongly appeal to both the opposition and ruling parties in the legislature that they understand how special an occasion this is: it is the first time in more than 20 years that the inheritance section of the civil code is to be amended. this is a rare opportunity to change the inheritance system into automatic full limited inheritance. this way lawmakers can solve a problem for a weak group on the bottom rungs of society.
chen ye-sin is a judge at the kaohsiung district court.
translated by anna stiggelbout";
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