Virtual currency in draft civil code can be used as inheritance
Civil code (Draft)
Article 1122 estate is the personal legal property left by a natural person at the time of death, except for those that cannot be inherited according to the law or their nature
therefore, since the implementation of the civil code in 2021, the scope of heritage has been extended to the legal property of natural persons, and the legal parts of virtual currency and network property can be inherited
as early as 2003, UNESCO clearly put forward in the Charter for the preservation of digital heritage that digital heritage is the unique knowledge and expression of human beings, which includes culture, ecation, science, management information and technology, law, medicine and other information existing in digital form, or converted from the existing similar mode into digital form
it is generally believed that digital heritage can be divided into material and spiritual categories. Material digital heritage refers to directly linked to property, such as Alipay balance, bitcoin and other virtual currencies. The spiritual ones are social accounts, personal files, etc., which are virtual properties formed by users who spend a lot of time and energy. They are not only the spiritual home of users' daily life, but also the spiritual comfort of relatives through inheritance< According to Article 127 of the general provisions of the civil law, "if there are laws on the protection of data and network virtual property, such provisions shall prevail."
in this regard, Chen Kai believes that the general provisions of the civil law have made principled provisions for the protection of virtual property“ When the definition and scope of virtual property have not been fully determined, it may be more appropriate to make provisions in principle. "<
after consulting relevant laws and regulations, the reporter found that the property law, inheritance law and relevant instructions only regulate the tangible property, and the inheritance of intangible property that may be involved in digital heritage can not be found<
Liu Junhai, director of the Institute of commercial law of Renmin University of China, pointed out that at present, China only takes a relatively conservative attitude towards this, affirming that data should be protected by law, but not affirming the independent civil rights to data“ China's current inheritance law only provides for the inheritance of physical property, but does not provide for the inheritance of virtual property on the Internet. As a result, it is difficult to realize the inheritance of digital heritage in essence, which needs to be revised in the future. "
e to the lack of clear legal provisions, at present, the treatment of digital heritage is mainly determined by Internet platform operators. This also lays a hidden danger for disputes
some scholars have proposed that e to the multiple attributes of communication and social accounts, such as personal privacy, user property and personality, the discussion of inheritance behind them needs to be more carefully grasped< Chen Kai pointed out to the reporter that at present, the virtual property written into the will as a legacy has some problems, such as difficult to confirm the ownership, difficult to find and difficult to transfer“ Because the virtual property is scattered in the servers of various operators, and some virtual properties, such as QQ space, are relatively private. "
it is understood that at present, the platform mainly has two ways to deal with the user's Digital Heritage: first, the user only has the right to use the account, while the network service provider has the ownership. At this time, the account cannot be inherited, and the network service provider can choose to close, delete or cancel the user's account; The second is that the user has the ownership, and the digital heritage can be inherited. At this time, the inheritance of digital heritage needs to provide a series of proof materials
in most cases, Internet companies stipulate that the ownership and use right of user accounts are separated. For example, Sina Weibo, Tencent QQ and other user service use agreements stipulate that if the user does not actually use the service within a period of time after applying for the service, the operator has the right to choose to recycle the user's nickname, account number or stop the service within the scope permitted by laws and regulations<
Liu Junhai believes that there are two aspects to deal with digital heritage: first, the platform should plan the rules of Digital Heritage Inheritance in detail, and make clear the process of inheritors inheriting digital heritage. When a successor appears, the platform has the obligation to assist the successor to inherit the digital heritage according to law. When dealing with digital heritage, the platform should fulfill the obligations of notice, disclosure, assistance and confidentiality, which are also the basic legal requirements to be followed when dealing with digital heritage. Secondly, in terms of legislation, it is suggested that the legislature should take the issue of digital heritage into consideration when amending relevant laws.
Change 1: the scope of property is expanded
in the current inheritance law, the scope of heritage is enumerated, including citizens' income, houses, trees, cultural relics, right, etc., while the draft civil code is no longer listed one by one, but expanded to "heritage is the personal legal property left by a natural person at the time of death", which means that as long as it is the property legally acquired by a natural person, All belong to the heritage, can be inherited, network property, virtual currency are summarized among them
The second change is: the scope of legal heirs is expanded.
the current inheritance law mainly deals with the following aspects: succession order and property distribution:
Article 10:
inheritance follows the following order: the first order: spouse, children and parents. The second order: brothers and sisters, grandparents, grandparents. After the succession begins, the successors in the first order shall inherit, and the successors in the second order shall not. If there is no successor in the first order, the successor in the second order shall inherit. "Children" mentioned in this Law include legitimate children, illegitimate children, adopted children and step children who are supported. The term "parents" as mentioned in this Law includes birth parents, adoptive parents and stepparents who are in a supporting relationship. "Brothers and sisters" mentioned in this Law include brothers and sisters of the same parents, brothers and sisters of the same or different parents, adopted brothers and sisters, and stepbrothers and sisters who have a supporting relationship
Article 11:
if the decedent's children die before the decedent, the lineal blood relatives of the decedent's children shall inherit by subrogation. Generally, a subrogation successor can only inherit the share of the estate that his father or mother has the right to inherit
Article 12:a widowed daughter-in-law who has done his main ty of supporting his father-in-law and his mother-in-law shall be regarded as the first heir
Article 13: Generally speaking, the share of inheritors in the same order shall be equal. Heirs who lack the ability to work and have special difficulties in life shall be taken care of when distributing their inheritance. The heirs who have done their main ty to support the decedent or live with the decedent may share more of the inheritance when distributing it. If the heirs who are able to support and have the conditions to support fail to fulfill their obligations of support, no or less portion of the inheritance shall be allocated. If the heirs agree through consultation, they may also be unequal However, in the general part of the draft civil code, the content of the dispute is clarified: the right of succession of the fetusif the father dies before a fetus is born, does the fetus have the right to inherit the father's property? In the draft of the general provisions, the protection of the interests of the fetus is added, which stipulates: "if the protection of the interests of the fetus involves inheritance, acceptance of gifts, etc., the fetus shall be regarded as having the capacity for civil rights; However, if the fetus is dead at the time of delivery, its capacity for civil rights does not exist from the beginning. " This means that the fetus can also inherit or receive a gift
In addition, the draft civil code also expands the above-mentioned Article 11 of the inheritance law and expands the scope of successors:
Article 907 of the draft succession code of the civil code adds the scope of application of subrogation, which is specifically revised as: "if the brother and sister of the decedent dies before the decedent, the child of the brother and sister of the decedent shall inherit in subrogation." That is to say, nephew and nephew of the decedent are also included in the scope of subrogation
what is the specific situation? For example:
Xiao Ming's parents and grandparents are gone, only Xiao Ming and his uncle depend on each other. Xiao Ming's uncle died one day. He never got married in his whole life. Xiao Ming has only one family member. Can Xiao Ming inherit his uncle's legacy
according to the current inheritance law, Xiaoming is not in the scope of legal subrogation inheritance, and can not inherit his uncle's legacy. The legacy should be regarded as ownerless property and handed over to the state
In the draft civil code, nephew and nephew can inherit by subrogation, and Xiao Ming can inherit the great uncle's legacy Change 3: the situation of losing the right of inheritance has been revised. The current inheritance law stipulates that the successor who has one of the following acts shall lose the right of inheritance: (1) intentionally killing the decedent 2 Killing other heirs in order to fight for inheritance 3 Abandoning or maltreating the decedent to a serious extent 4 Forging, altering or destroying a will, if the circumstances are serious However, in the draft civil code, two situations have been added:situation 1: concealment of wills. Concealing a will can lead to the loss of the right of inheritance
case 2: deceitful coercion of the decedent to set up a will
For example, Aunt Wang has a son and a daughter. The daughter is filial to Aunt Wang, but the son is the opposite. One day, Auntie Wang's son hoped to get her property. He forced Auntie Wang to write a will and let him inherit all her property by beating, swearing, threatening and intimidating her at homeaccording to the provisions on the loss of inheritance added in the draft, Aunt Wang's son lost the right of inheritance
change 4: new successor forgiveness system
in the succession section of the draft civil code, the system of forgiveness for heirs is specially added, which makes it clear that if the heirs do show repentance, the heirs show forgiveness or list them as heirs in their wills afterwards, the heirs will not lose the right of inheritance
according to the above example, Aunt Wang's son really understood his mistake and showed repentance, and Aunt Wang was willing to forgive his son. Then Aunt Wang's son will not lose the right of inheritance
change 5: delete the provision of "notarial will has priority in effect" and add new forms of wills such as printing and video.
some old people will make several wills, but which will be recognized by law in the end? In the original inheritance law, the principle of priority is the effect of notarized will. In the succession part of the draft of the civil code, the provision of "notarial will has priority in effect" has been deleted
what has changed? For example:
Mr. Zhang and his wife have two sons and two daughters. They once notarized a will, and the property of their four children is divided equally. But in the last few years of his life, the old couple spent time with his youngest son. The younger son's family took care of the old couple more than other children. So the two of them made a will to give half of their property to the younger son
However, after the death of Uncle Zhang, the self written will was ruled invalid by the courtthe draft of the civil code will delete the principle of notarial will priority, notarial will no longer have the priority of validity, in determining the validity of each will, the last will shall prevail
new forms of wills such as printing and video recording are added.
the amendment of the draft adds two forms of determination of wills, and recognizes the forms of printing wills and video recording wills
the printed will added to the draft stipulates that more than two witnesses should be present to witness the will, and the testator and the witness should sign on each page of the will, noting next year, month and day
it is stipulated in the recording and video wills that more than two witnesses should be present, and the testator and the witness should record their names or portraits, as well as the year, month and day in the recording and video wills
the above is the change content of inheritance provisions in the draft civil code. In fact, many people don't understand the current inheritance law. They think that the only child can inherit all the property of their parents. This understanding is really wrong, children inherit their parents' property (especially real estate) is not as simple as imagined! Today, I'd like to make up for you to popularize science. After all, if you don't pay attention, the only child may not be able to fully inherit their parents' property
if we don't, even the only child can't inherit their parents' real estate completely
Generally speaking, the inherited house is the most convenient, but in reality, even the only child may not be able to inherit the house completely if they don't pay attention According to the announcement, for the free gift of real estate, the recipient's income from the free gift of the house is "accidental income" and pays a 20% tax rate. However, in the following cases, both parties do not levy indivial income tax:that is to say, if the property is inherited according to law, or the parents give the property to their children, the children and parents do not need to pay indivial income tax
it seems very simple, but the reality is much more complex, even when children inherit and accept the donated house, there will be many situations! Let's see how to protect our rights and interests to the greatest extent Xiaobian specially made a picture for you to explain. If it helps you, please remember to give me the bottom right corner, you know)
when your parents give you the house, which one is the most cost-effective one
Generally speaking, the common means for children to transfer their house from their parents are donation, inheritance and sale. These three ways will involve related taxes. As mentioned above, inheritance and gift are tax-free, but it doesn't mean that other taxes can't be exempted. Other taxes can't be exempted, or deed tax should be paid. So, which one is the most economical
detailed list of taxes and fees to be paid between the buyer and the seller
how to pay tax when parents give their children housing free of charge and their children transfer the housing after receiving the donation
now the problem comes again. If the house transferred from parents wants to be sold again, how much tax and fees will they have to pay? Let's see from the picture:
in the donation process, we have explained that the giver only needs to pay stamp tax, not VAT, land VAT and personal income tax, while the donee does not need to pay personal income tax, but deed tax and stamp tax
our civil code is made up of seven parts, which is centered on civil rights and has an internal logic system
the core of the rule of law is to limit public rights and protect private rights, which is also the core value of the civil code
there are more than 1300 articles in the civil code and more than 500 articles in the contract series, which shows the significance of the contract series< Contract law should give full play to the function of general principles of debt law. The system of general principles of contract law is regulated according to the order of transactions. From the occurrence to the elimination of transactions, we should try our best to keep the integrity of general principles of contract law instead of focusing too much on debt. All along, we only have contract law, no debt law, and we don't set up the general provisions of debt law, which also takes into account the adaptability of judges< In order to give full play to the function of the general provisions of the debt law, we should incorporate the performance rules of the debt into the performance of the contract. Therefore, we should expand the chapter of performance of contract to absorb the rules of debt law< 3. It is necessary to set up a section of "quasi contract" in the contract to stipulate various legal liabilities. Wang Yi's suggestion is to adopt the concepts of common law and French law, and adopt the concept of quasi contract, which should be put at the end of the contract. The concept of quasi contract originated from Roman law and was later absorbed by common law. It is no problem to put the management without cause in the quasi contract, and it is no problem to put the payment type unjust enrichment in the quasi contract, but the injuring type unjust enrichment is a typical tort, and there is doubt in the quasi contract. My suggestion is to add an applicable clause to apply the provisions of the Tort Code< The legal status of Internet trading platform is controversial. In the first case, it provides trading opportunities and places for both parties, which is more similar to the position of intermediary. Therefore, the rules of intermediary should be applied. The second case is the seller in the sales contract, so the rules of the sales contract can be directly applied without special provisions. In the third case, it exists as the agent of the seller, and the rules of agency can be applied. In this way, the existing provisions can basically be covered, and it seems that there is no need to make special provisions< Article 10 of the contract law stipulates that contracts can be concluded orally, in writing or in other forms. The other forms here are mainly based on actual performance. We believe that at this time, one party must perform its main obligations, which must include the main terms of the future contract. What are the main terms of the contract? Article 1 of judicial interpretation of Contract Law (2) once made a provision, which I think is reasonable. However, the three factors of parties, subject matter and quantity can not summarize all the main terms of the contract, so a series of detailed provisions need to be made.