清算手続きを欠く日本相続法の困難

Abstract

Under the modern civil code that originated from Western European laws, the inheritance law is a liquidation proceeding that processes the loss of an individual to which rights and obligations pertain. The Japanese society was originally adopted a “family” property system centered on “families,” a certain kind of juridical person, rather than a personal property system, and the Meiji Civil Code used such tradition and designed a system of inheritance of family estate by constituting family property as the individual property of the head of the family. Under the postwar Civil Code that abolished the system of inheritance of family estate, stable liquidation proceedings should have been legislated; however, the postwar amendments failed to provide for such proceedings and left the matter to private partition of estate among the heirs. As a result, various difficulties have arisen due to the lack of liquidation proceedings, but the structural difficulties are not resolved by the amendments to the inheritance law made this year. Since the statutory share in inheritance can be easily proved against third parties through family registers and real estate registries, legal precedents in the Showa era ensured the safety of transactions in inherited property based on statutory share in inheritance; however, such safety has collapsed through the increase of wills. The amendments are basically stopgap measures merely to address limitations and difficulties of various post-war inheritance practices to respond to structural difficulties by extending such practices through legislation of requirements for perfection of registration and other provisions.。The difficulty in the application of the Japanese inheritance law seems to continue.