遗赠扶养协议性质探析——我国继承法及其司法解释相关法条评析

从大多数遗赠扶养协议纠纷的判例来看,受扶养人的利益得到更多保护,其原因在于继承法侧重保护被继承人.但是,遗赠扶养协议之"协议性"也给合同法的适用提供可能,适用平等保护当事人的合同法会得出不同的结论.调和法律之间的冲突进而解决实践中的纠纷,需要以遗赠扶养协议的制度价值和社会需求为基础,明确遗赠扶养协议的合同属性,公平分配当事人之间的权利义务.

On the Character of the Legacy-Support Agreement——comment on our Inheritance Law and its judicial interpretation

From most prejudications about the legacy-support agreement,the dependent persons were given more protection.The reason is that the purpose of the Inheritance Law is to protect the ancestors.But the Contract Law can also take effect on the legacy-support agreement because it appears to be a contract.If we apply it to the legacy-support agreement,we may get a quite different conclusion since all the parties are equal in front of the Contract Law.The neglect of the use of Contract Law could not lead to the proper settlement of the dispute about the legacy-support agreement.To harmonize the two laws is based on the analysis of the value and necessity of the legacy-support agreement.