| Answers of the Higher People Court of Beijing to Certain Difficult Problems concerning Trial of Cases Involving Succession Disputes | | 北京高院关于审理继承纠纷案件若干疑难问题的解答 |
| (June 19, 2018) | | （2018年6月19日） |
| Over recent years, some new situations and new problems have appeared in the cases involving succession disputes accepted by the courts in Beijing. For the purposes of properly settling such disputes, upon the extensive survey by the Higher People's Court of Beijing and a request for broad comments, the courts at three levels in Beijing have reached a basic consensus or mainstream opinion on the relevant difficult problems. On that basis, the Answers of the Higher People Court of Beijing to Certain Difficult Problems concerning Trial of Cases Involving Succession Disputes was adopted at the Ninth Meeting [2018] of the Judicial Committee of the Higher People's Court of Beijing on June 11, 2018. | | 近年来，北京市法院受理的继承纠纷案件中出现了一些新情况、新问题。为妥善处理好此类纠纷，经北京市高级人民法院深入调研，并广泛征求意见，就相关疑难问题北京三级法院达成基本共识或主流意见。在此基础上，2018年6月11日，北京市高级人民法院审判委员会［2018］第9次会议通过《北京市高级人民法院关于审理继承纠纷案件若干疑难问题的解答》。 |
| I. Successors | | 一、继承主体 |
| 1. If legal proceedings are instituted for intestate succession, testate succession, or any other cause of action in the classification of single succession, and, in the trial, the parties put forward more than one succession claim including intestate succession, testate succession, legacy, and legacy-based support agreement, what to do? | | 1.以法定继承或遗嘱继承等单一继承类案由提起诉讼，审理中当事人提出包括法定继承、遗嘱继承、遗赠、遗赠抚养协议等在内的多个继承类请求，如何处理？ |
| If, in the trial of a succession case, the parties respectively put forward intestate succession, testate succession, legacy, and legacy-based support agreement, and other succession claims which are different causes of action, the people's court shall grant concurrent trial and describe the cause of action as succession dispute. If numerous parties are involved, and the concurrent trial of different classifications of succession claims renders the legal proceedings inconvenient, the parties shall be provided with clarification for them to bring actions respectively. | | 继承案件审理中，当事人分别提出法定继承、遗嘱继承、遗赠、遗赠扶养协议等分属不同案由的继承类请求，原则上人民法院应一并予以审理，案由列为继承纠纷。确因涉及当事人众多且不同种类继承请求一并审理不便于诉讼的，可释明当事人分别提起诉讼。 |
| 2. What to do if the succession has not been separated from property held in co-ownership? What to do when the succession contains the interests of an outside party? | | 2.遗产尚未从共有财产中析出如何处理？遗产中有案外人权益时如何处理？ |
| If the succession involved in a succession case has not been separated from the property held in co-ownership, and all the co-owners of said property participate in the legal proceedings as parties to the succession case, the people's court shall provide parties with clarification for them to put forward the claim for separation of family property, grant concurrent trial in the succession case, and describe the concurrent causes of action as separation of family property and succession. If the parties fail to claim separation of family property upon clarification but claim succession to the whole of the property held in co-ownership, the people's court shall decide to dismiss the claim. | | 继承案件所涉遗产未从共有财产中析出，如共有财产的共有权人均作为继承案件当事人参加诉讼，人民法院应释明当事人提出分家析产诉讼请求，在继承案件中一并审理，列为分家析产、继承并列案由。经释明后当事人不提出分家析产诉讼请求的，仍对全部共有财产提出继承请求的，人民法院应判决驳回诉讼请求。 |
| If there is evidence of a dispute over the ownership of the succession involved in a succession case with an outside party, the parties shall be provided with clarification for them to first settle the ownership dispute in another case. | | 确有证据表明继承案件所涉遗产与案外人存在权属争议的，应释明当事人另案先行处理该权属争议。 |
| 3. What to do if there is evidence of possible existence of successors not participating in legal proceedings? Shall the court ascertain the issue by its power? | | 3.有证据表明可能存在未参加诉讼的其他继承人存在，如何处理？是否应由法院依职权查明？ |
| If in a succession case, there is prima facie evidence of possible existence of successors not participating in legal proceedings, the people's court shall conduct investigation and verification by its power in the substantial trial. If there is no existing evidence, or evidence found and verified by power, of the existence or the successor qualify of a natural person, the people's court shall grant no joinder. | | 在继承案件中有初步证据表明可能有其他未参加诉讼的继承人存在，人民法院在实体审判中应依职权进行调查核实。依已有证据及依职权调查核实的证据均无法确证该自然人的存在及继承人身份的，人民法院不予追加。 |
| II. Scope and partition of succession | | 二、遗产范围与分割 |
| 4. Can death compensation, funeral benefits, and survivor benefits be dealt with together in a succession case? | | 4.死亡赔偿金、丧葬补助费、死亡抚恤金能否在继承案件中一并处理？ |
| If, in a succession case, each close relation who has the right to death compensation, funeral benefits, survivor benefits, or any other property is involved in the trial of the case as a party and put forward a claim for the partition of said property, the people's court may deal with the partition of the above-mentioned property together in the succession case. | | 继承案件中，如有权获得死亡赔偿金、丧葬补助费、死亡抚恤金等财产的近亲属均作为当事人参加案件审理，并提出死亡赔偿金、丧葬补助费、死亡抚恤金等财产的分割请求，人民法院可以在继承案件中一并处理上述财产的分割。 |
| 5. Can tenancy of public housing be passed as succession? | | 5.公房承租权能否作为遗产继承？ |
| If a party claims to succeed to the tenancy of public housing of the decedent, the people's court shall inform the party of applying for the modification of the tenant of public housing to the administrative agency or entity having ownership of the public housing, but if the party insists on the succession claim, the people's court shall rule that the claim be dismissed. | | 当事人请求继承被继承人生前的公房承租权，人民法院应告知当事人向公房所有权所在的行政机关或单位申请办理公房承租人变更手续，当事人坚持继承请求的，人民法院裁定驳回起诉。 |
| 6. If, at the purchase of public housing, the decedent offsets the seniority benefits of his/her deceased spouse against the housing price according to the seniority benefit policy, can the seniority benefits be converted into a sum of money and partitioned as succession? | | 6.被继承人购买公房时根据工龄政策福利，使用已死亡配偶工龄折抵房款的，所获工龄政策福利能否折算后作为遗产分割？ |
| If, at the purchase of public housing at a cost price or a standard price, policy benefits are acquired against the seniority of the deceased spouse according to the relevant policy issued by the state, the individual part of the value of the property corresponding to the policy benefits shall be devolved as the succession of the deceased spouse. | | 按成本价或标准价购买公房时，依国家有关政策折算已死亡配偶一方工龄而获得政策性福利的，该政策性福利所对应财产价值的个人部分应作为已死亡配偶的遗产予以继承。 |
| The reference formula to calculate the value of property corresponding to the policy benefits: (the individual part of the value of the property corresponding to the seniority of a deceased spouse ÷ the market value of public housing at the time of purchase) × the present value of the housing. | | 该政策性福利所对应的财产价值计算参考公式：（已死亡配偶工龄对应财产价值的个人部分÷购买公房时房屋市值）×房屋现值。 |
| 7. Can legacy apply to buildings on rural land for residential use? | | 7.农村宅基地上房屋能否适用遗赠？ |
| If a testator makes a legacy of a building on rural land for residential use to a person other than a member of the collective economic organization, and the legatee claims the acquisition of ownership of such building on account of legacy upon the decease of the testator, the people's court shall not grant support. | | 遗赠人生前将宅基地上房屋遗赠本集体经济组织以外的人，受遗赠人在遗赠人死后主张因遗赠取得宅基地上房屋所有权的，人民法院不予支持。 |
| 8. If a rural household consists of parents and their child, and the child neither lives separate nor has been assigned new land for residential use, when a parent dies, can another child who lives separate claim to succeed to a building on the corresponding rural land for residential use? | | 8.农户家庭中父母与部分子女共为一户，该子女未另行分家并新分宅基地。父母死亡时，已另行分家的子女能否主张对相应宅基地上房屋进行继承？ |
| If a child lives separate from parents, and another child lives with the parents as a rural household and has not been assigned rural land for residential use, and if when a parent dies, the child who lives separate claims to succeed to the building on the rural land for residential use, the people's court shall not grant support. The people's court shall provide clarification that the party may claim to succeed to the value of the building on the corresponding rural land for residential use. | | 农户家庭中部分子女与父母分家另过；部分子女与父母共为一户且未新分宅基地。父母死亡时，已分家另过的子女主张对相应宅基地上房屋进行继承的，人民法院不予支持。人民法院应释明当事人可对相应宅基地上房屋折算价值主张继承。 |
| If the above-mentioned child who lives separate remains a member of the rural collective economic organization and has not acquired rural land for residential use, his/her claim for the right to the building on the corresponding rural land for residential use shall be supported. | | 上述分家另过子女仍为农村集体经济组织成员身份且未取得宅基地的，主张相应宅基地上房屋权利的，应予支持。 |
| 9. What to do if a building on rural land for residential use left by the decedent is rebuilt or expanded? | | 9.被继承人死亡后所遗宅基地房屋被翻扩建，如何处理？ |
| The rebuilding or expansion, without the permission of successors, of a building on rural land for residential use, which was owned by the decedent, does not affect the determined portions of the succession of the building on the rural land for residential use. | | 被继承人死亡后，未经继承人同意，擅自对被继承人生前所有的宅基地上房屋进行翻扩建的，不影响已确定的该宅基地上房屋遗产份额划分。 |
| A successor has the right to require the person making such rebuilding or expansion to be liable to restoring the building to its original state and making compensation for damage, among others, unless the successor actually occupying and managing the building makes such rebuilding or expansion with the aim of residential use or maintenance and management. | | 继承人有权要求上述擅自改扩建人承担回复原状、赔偿损失等责任，但实际居住管理房屋的继承人出于居住使用、维护管理目的对房屋进行翻扩建的除外。 |
| 10. What to do if a person who contributes to the rebuilding or expansion of a building on rural land of residential use before the decease of the decedent claims the right to such building? | | 10.在被继承人生前对宅基地房屋翻扩建存在贡献的人，主张宅基地房屋权利的，如何处理？ |
If a person contributes to the rebuilding or expansion of a building on rural land of residential use before the decease of the decedent and thus claims the co-ownership of such building, or an increase in the corresponding portion of the succession, the people's court shall not grant support. For the corresponding compensation claimed by the person, the people's court shall decide whether to grant support according to corresponding evidence, by customs and practices, from the perspective of equity, and on the basis of determining whether the nature of the legal relationship is gift, gratuitous assistance, or debt between relations.
．．．．．． | | 对被继承人生前宅基地上房屋翻扩建确存在贡献的人，据此主张享有宅基地上房屋共有权或增加相应继承份额的，人民法院不予支持。对于其据此主张的相应补偿请求，人民法院应根据相应证据，尊重风俗习惯，从公平角度出发，在判断法律关系性质属于赠予、亲属间无偿帮扶亦或债务的基础上，确定是否支持。
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