2005 Fiscal Year Final Research Report Summary
preventing conflicts partition and preevention of conflicts
| Project/Area Number |
14520056
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Civil law
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| Research Institution | Osaka University |
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Principal Investigator |
MASTUKAWA Tadaki Osaka University, Law School, Professor, 高等司法研究科, 教授 (80190429)
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| Project Period (FY) |
2002 – 2005
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| Keywords | Partition / Succession / Notaires / French Law / Representation / Intestate Succession / Conciliation |
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| Research Abstract |
It was concluded that in French law succession has traditionally been settled by notaires, who carry out an important role in preventing conflicts.
Regarding partition of estates, all the heirs assemble at a notaire's office, and sometimes even the deceased's creditors and the heirs' creditors are present as well. In this way, all the parties involved with the estate meet to decide on the proposal for partition, which will be made under the guidance of a notaire.
On this occasion, it must be noted that the notaires' guide is the civil code. There is a belief that following the civil code it is possible to realize justice. The proposal for partition is made based on the civil code, considering especially the cases of collation and abatement of dispositions which exceed the disposable portion, as well as problems such as the way of determining the heirs, inheritance range and estate administration. It is said that this kind of partition has almost the same content of a judicial partition.
… More
The procedure for partition of an estate finishes when all the heirs agree with the proposal made by the notaire. The degree of belief in the civil code and the notaires' positive participation in partition proceedings are significant differences between Japanese and French law that have became clear. It can be said that the reason why notaires carry out a role in preventing conflict is explained by their position or participation, because different from the lawyers, who defend the interest of one of the parties, they are committed to realizing justice among all the concerned parties.
French civil code has a system of partition that permits to realize justice, what is very helpful. The most important element of the preventing conflict function is present in the civil code. In that sense, it is important to enhance the provisions regarding intestate succession in Japanese law. For this purpose, an analysis of the system of representation has been carried out.
In the point of preventing conflicts, it was concluded that partition of estates is a legal problem that has a meaning which can be developed by legal experts. Less
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