| 英文摘要 |
The situation about a decedent is in debts with one of the heirs, has no settled law like that “If one of the heirs is in debts with the deceased, the amount of the debt shall at the time of partition of the inheritance, be deducted from that heir’s entitled portion” provided by the article 1172 of the Civil Code to solve the problem of repayment from the heirs at the time of partition of the inheritance. There are three explanations under the current law, which are influenced by the opinions under the old law. The theory of equality of creditors would insist that the heirs should discharge the debts of the inheritance, before the partition of the inheritance. The theory of the article 1171 by way of exception is still staying at the age of the old law. The theory of the article 1172 to be applied by analogy was accepted by Taiwan’s legal practice. However, it could get the consequences of ignoring the equality of creditors to be separated into the heirs and non-heir. In my opinion, we should follow the existing legislation to integrate all the theories above, for taking into consideration about the equality of creditors, and admitting the difference between repayment and partition of the inheritance, and the protection of the heirs at the same time. |
