Article 1128
Where the decedent's children die before the decedent, the decedent's children are to be subrogated by the blood relatives of the decedent's children.
If the decedent's siblings die before the decedent, the children of the decedent's siblings shall inherit by subrogation.
Subrogated heirs can generally only inherit the share of the estate to which the subrogated heir is entitled.
1. The main purpose of this article
This article is about subrogation.
II. Evolution of the Provisions
Article 11 of the original Inheritance Law stipulates: "If the children of the decedent die before the decedent, the descendants of the decedent's children shall inherit by subrogation." "This provision limits the scope of subrogation to the children of the decedent. Although this provision guarantees the transfer of inheritance to the blood relatives of the decedent's immediate descendants, due to the acceleration of the aging of the population, the population structure of Chinese families generally appears an inverted pyramid structure, and there may be a result that the inheritance of the decedent is not inherited after the only child loses the right to inherit, and the result is that it will eventually be returned to the state. Therefore, it is imperative to expand the scope of heirs, in addition to the direct blood relatives of the decedent, the brothers and sisters of the decedent are the collateral blood relatives closest to the blood relationship of the decedent, and the children of the brothers and sisters, i.e., the nieces and nephews of the decedent, also have a relatively close relationship with the decedent in blood and emotion. In addition, based on the consideration of the pension and the end of the year, in the absence of direct blood relatives of the younger generations, according to the habit, most people will also think of their nieces and nephews for the first time. Therefore, on the basis of Article 11 of the original Inheritance Law, the inheritance section of the Civil Code includes the children of the heir's siblings in the scope of subrogation, which is also to promote mutual support between relatives and minimize the occurrence of uninherited inheritance.
3. Interpretation of Provisions
This article is about subrogation.
Subrogation refers to a legal inheritance system in which the heirs of the decedent die before the decedent, and the descendants of the decedent's heirs inherit the decedent's estate instead of the heirs of the decedent. This article provides for two types of subrogation: one is the subrogation of the direct descendants of the decedent's children, and the other is the subrogation of the children of the decedent's siblings. In subrogation, the children or siblings of the decedent are the subrogated heirs, and the children or blood relatives of the descendants of the decedent or siblings who inherit the inherited share are the subrogated heirs. The share of succession refers to the percentage or proportion that each heir can inherit all rights and obligations on the estate.
The requirements for subrogation are: (1) the children or siblings of the decedent have died or lost the right of inheritance before the commencement of the inheritance, (2) the subrogated person is a direct blood relative of the decedent's children or siblings, and (3) the subrogated heir must be the direct descendant blood relatives of the subrogated person.
The legal effect of subrogation is mainly that the subrogated heir can inherit the successor's share, and the subrogated heir's successor's share should be determined according to the subrogated person's successor's share, and the estate should be divided according to the house or branch.
4. Cases
Wang Moude v. Wang Mouxue et al
Facts: The decedent Wang and Li had five children in marriage: Wang Mouxue, Wang Moufang, Wang Mouchang, Wang Mouxian, and Wang Mougang. Wang Mouchang died earlier than the decedent and had no spouse and children. Wang Moufang died earlier than the decedent, and had a spouse and legitimate children Wang Moude, Wang Mouwen and Wang Mouxia. Wang Moufang's wife remarried with three children after the death of the heir Wang, but when the heir Li was alive, she still often corresponded and cared for his life. When the heir Li died, Wang Moude and Wang Mouxue, Wang Mougang, and Wang Mouxian jointly handled the funeral, and the house left by Li was lived by Wang Mouxue, Wang Mougang and Zhou Moufa, who was not involved in the case. Wang Moude, the son of Wang Moufang, filed a lawsuit on the grounds of subrogation to inherit the property left by the decedent. The court of first instance held that the three defendants, Wang Mouxue, Wang Mougang and Wang Mouxian, and the plaintiff Wang Moude had fulfilled their obligations to support the decedent and were all legal heirs, so it ruled that the property left by the decedent should be inherited equally by the three defendants and the plaintiff. Wang Mouxue and the other three appealed on the grounds that Wang Moude's father had not fulfilled his obligation to support the decedent, and that Wang Moude's brothers and sisters were blood relatives of the younger generations and had no right to inherit the decedent's estate. The court of second instance held that although Wang Moufang, the father of the appellee Wang Moude, died before the decedent, he fulfilled the obligation to support the decedent during his lifetime and should enjoy the right of inheritance. The appellee, Wang Moude, is a direct blood relative of Wang Moufang's younger generation, and has the right to inherit his father's share of the estate by subrogation in accordance with the law. The original judgment was affirmed.
5. Analysis
When the heirs Wang and Li died, the five children Wang Mouxue, Wang Moufang, Wang Mouchang, Wang Mouxian, and Wang Mougang enjoyed the right of inheritance, and they were all first-order legal heirs. Since Wang Mouchang has long died and has no spouse and children, there is no subrogation. Although Wang Moufang died before the heirs Wang and Li, he left three children, Wang Moude, Wang Mouwen and Wang Mouxia. According to the provisions of the "Inheritance Law" in effect at the time of the case, under the circumstance that Wang Moufang was not deprived or lost the right of inheritance, although Wang Moufang's wife remarried with three children, this did not cause her children to lose the right of subrogation, and their children Wang Moude, Wang Mouwen and Wang Mouxia brothers and sisters have the right to jointly inherit the estate of the decedent Wang and Li on behalf of Wang Moufang, Wang Mouxue, Wang Mougang and Wang Mouxian, but the share of the inheritance inherited by the three is limited to the share that their father is entitled to inherit.