论共同继承遗产的分割规则——以《物权法》的解释和《继承法》的修改为视角

The Rules of Partitioning the Common Successor to an Estate——according to The Explain of the <Property Law > and The Modification of the <Law of Succession>

基于继承权而对被继承人的财产享有的财产权利,首先应确定属于共有,其次应确定为按份共有,而其份额即为应继份。分割请求权是一种形成权,通常行使分割请求权的主体是共同继承人。继承开始后遗产分割前具体情形的改变,可能扩张分割请求权主体的范围。共同继承遗产分割的三种分割依据中,协议分割和诉讼分割应是选择性的。遗产分割后没有溯及力,分割后共同继承人之间应负担瑕疵担保责任。

According to the right of succession that the successor enjoys the property right, firstly, we should make sure that the property right belongs to the common; secondly, it should be the co - ownership of shared ownership,and the share of the succes- sor should be identified. The right of claim for dividing co - ownership is a kind of formation, and the common ancestors are the subjects for dividing co - ownership . But the change of partitioning of the inheritance condition that is after the beginning of suc- cession but before the partitioning of the inheritance may expand the range of the claim of the partitioning. The agreement seg- mentation and litigation segmentation should be selective among the methods of the common partitioning. There is no retrospective effect after the partitioning of the inheritance and the common successor should bear the responsibility for flaw warranty.