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| On the Legitimacy Basis and Protection Path of the Priority Effect of the Legacy and Maintenance Agreement |
| FANG Shaokun, MAO Junlong |
| School of Law, Jilin University |
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Abstract: Article 1123 of the Civil Code stipulates the priority effect of legacy maintenance agreements over testamentary inheritance, legacy, and statutory inheritance, but the legitimacy basis of such priority effect is not fully clarified in theory. By using the legal loophole filling technique of overall analogy, the general legal norms embodied in the rules of the legal status of the real estate buyer in the notice registration, the consumer of commercial housing are summarized. This can be deduced into similar situations where the priority effect of the legacy and maintenance agreement is given, the legitimacy basis of the priority effect lies in the legislator providing special protection to specific creditors, granting certain property rights to specific creditors, in order to ensure the realization of the creditor's rights in accordance with the contract; The specific safeguard path lies in the protection of the disposal of legacy property by the dependent, which means that the dependent can block the effectiveness of the disposal of legacy property without his or her consent. Given the dual legal structure of the legacy and maintenance agreement, when the legacy property specified in the legacy maintenance agreement is specified, the dependent can claim disposal protection from the time the agreement takes effect. When the legacy property is not specified, the dependent can only claim protection from the heir or inheritance administrator after the inheritance begins.
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Received: 19 August 2023
Published: 15 November 2023
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2023, Vol. 37 
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