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💴 | It is difficult to take over farmland other than inheritance due to the wall of "Agricultural Land Law"!


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It is difficult to take over farmland other than inheritance due to the wall of "Agricultural Land Law"!

 
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By making such a description, the legal treatment of "specific bequest" will change.
 

When a farmland owner transfers farmland by a method other than "inheritance", it is necessary to meet the requirements of the "Agricultural Land Law" ... → Continue reading

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Bequest

BequestWhat is (Izo)?willBy people (Natural person,CorporationThe property of the testator is to be transferred free of charge (meaning that it is legally free of charge. A certain burden can be requested, but there must be no compensation).BequestAct aloneIn that respectAgreementIt is different from the donation of the cause of death.

  • Regarding the Civil Code, only the number of articles is described below.

Bequest party

Recipient

Those who receive the bequestRecipientThat.

The beneficiary must be alive at the beginning of the inheritance of the decedent.However,FetusIs bequestable because bequests are considered to have already been born (965 article-886 article).If the bequest dies before the death of the testator, the bequest will not take effect (994 article1).Stop conditionIn the case of a bequest, if the bequest dies before the conditions are fulfilled, the bequest will not take effect, but the testatorwillIn anotherManifestation of intentionIf you do, follow it (Article 994, Paragraph 2).

Also, for the beneficiariesinheritanceIt is also necessary that there is no reason for disqualification as in the case of (965 article-891 article).

In the case of a comprehensive bequest, the comprehensive bequestHeirIt is said that it has the same rights and obligations as the heir and has the same legal status as the heir (990 article).Therefore, as will be described later, the legal treatment differs between the comprehensive beneficiary and the specific beneficiary.

What the bequest should have received if the bequest did not take effect or became ineffective due to abandonmentHeirBelongs to, but the testatorwillIf you make a special manifestation in, follow it (995 article).

If the bequest dies without abandoning or approving the bequest,HeirMay approve or waive the bequest within the scope of his inheritance rights, but the testatorwillIf you make a special manifestation in, follow it (988 article).

Bequest obligee

As a general rule, the obligation to fulfill a bequestHeirBears (Article 896).Comprehensive bequests are also obliged to fulfill their bequests (990 article-896 article).If it is not clear that there is an heir, the inheritance manager (957 article1),ExecutorWhen there is, the person is obliged to fulfill the bequest (1012 article1).

Purpose of bequest

Types of bequests

Comprehensive bequest

When all or part of the heritage is shown as a percentage and targetedComprehensive bequestThat.

Comprehensive beneficiariesHeirHas the same rights and obligations as (990 article).Therefore, if the testator has a negative property such as debt, he / she must accept it according to the proportion of bequests.[1]..In addition, the waiver of a comprehensive bequest must be filed with the family court within three months from the date of learning that the bequest was made for oneself (Article 3, ・).915 article(Section 1)[1].

In addition, "Give all property to wife X (or orinheritanceLet).However, when the child Y reaches the age of 18, Y will inherit the property, "a bequest in the form of designating the person who will inherit the property in sequence.Successor bequestThat is.About successor bequestCivil lawHas not stipulated anything, so no interpretation has been determined as to whether or not this form of bequest is permitted.Precedent(March 1983, 58 (Showa 3), Vol. 18, No. 36, p. 3), but the negative theory is also influential.In addition, even if a successor bequest is accepted, it will cause adverse effects such as destabilization of the legal status and complicated procedures after the start of inheritance.

Current enforcement on September 2007, 9Trust lawHas newly approved a successor bequest-type bequest continuous trust (Trust Law Article 3No. 2, Article 88, Paragraph 1, Article 89, Paragraph 2).As a result, the same effect as the successor bequest can be obtained.However, in this caseinheritance taxIt is necessary to be careful because the taxation relationship of is not clear.

Specific bequest

When targeting a specific specific propertySpecific bequestThat is.In the case of a specific bequest, we will not take over negative property such as debt unless specified by a will.[1]..Abandonment of a specific bequest can be made at any time after the bequest's death (986 article).However, interested parties are allowed to notify specific beneficiaries.[1]..There is a judicial precedent that the object of a specific bequest is transferred directly to the bequest at the same time as the death of the testator (Taisho, November 5, 11, Minroku 8nd page 22).

Bequest with burden

When the bequest asks the bequest to bear a non-compensatory obligationBequest with burdenThat is.The bequest must fulfill its obligations only to the extent that it does not exceed the value of the purpose of the bequest (1002 article1).

If the bequest abandons the bequest, the person who should benefit from the burden can become the bequest himself, but the testatorwillIf you make a special manifestation in, follow it (1002 article2).

When a person who receives a bequest with a burden does not fulfill his / her obligationsHeirorExecutorCan announce performance for a reasonable period of time, and if there is still no performancewillCancellationFamily courtCan be charged to (1027 article-1015 article).

Collateral liability, etc.

  • Bequest liability of unspecified items
    • In the case where an unspecified item is the purpose of bequest, if the bequest is robbed by a third party, the bequest obligee will be liable for collateral (998 article1).
    • In the case where an unspecified item is the purpose of bequest, if there is a defect in the item, the bequest obligee must replace it with a defect-free item (998 article2).
  • Bequest
    • If the testator has the right to claim compensation from a third party due to the loss, alteration, or loss of possession of the object of the bequest, it is presumed that the right was the purpose of the bequest (999 article1).
    • When the object of the bequest is associated with or mixed with other things, and the testator becomes the sole owner or co-owner of the compound or mixture, the entire ownership or ownership of the compound or mixture is the purpose of the bequest. Presumed to be (999 article2).
  • Bequest of property, which is the purpose of the rights of a third party
    • If the object or right of the bequest is the object of the right of a third party at the time of the death of the testator, the bequest cannot request the bequest obligee to extinguish the right. ..However, this does not apply when the testator expresses his opposition to the will (1000 article).
  • Bequest of debt
    • If the claim is for the purpose of bequest and the testator has been reimbursed and the received item is still in the inherited property, it is presumed that the item was for the purpose of bequest (1001 article1).
    • When a claim for the purpose of money is the purpose of bequest, it is presumed that the amount is the purpose of bequest even if there is no money equivalent to the amount of the claim in the inherited property (1001 article2).

Perfection requirements for bequests

For convenience of explanation, the following abbreviations are used.

Bequest and registration

By bequest不動産 OfOwnershipIf you moveregistrationIf you do not do it, you will not be able to compete with a third party (second judgment March 39, 3)[2]).

on the other hand,HeirTo "inherit" a specific heritage to a part ofwillA person who has acquired real estate through the above can oppose a third party without registering the right (second judgment, June 14, 6).[3]).

Description of will and cause of registration

  • principle
    • WillDetermine the cause of registration according to the wording of.The classification is as follows.
      • Regarding the will to "inherit" to all heirs, "inheritance" (answered by Minko 47 on August 8, 21)
      • Regarding the will to "give a specific bequest" to all heirs, "bequest" (answered by Minsan No. 58 on October 10, 17)
      • "Inheritance" for the will to "inherit" some of the heirs (see the precedents mentioned above)
      • Regarding the will to "bequest" to some of the heirs, "bequest" (answered by Minsan No. 48 on December 12, 11 for a specific bequest)
      • For a will to "inherit" to a person other than the heir, "bequest" (a person who is not the heirinheritanceCan't do)
  • exception
    • Regarding the will to "comprehensive bequest" to all heirs, the cause of registration shall be "inheritance" (November 38, 11, Minko 20 telegram reply).In addition, regarding the will to "inherit" to a person other than the heir, the cause of registration is "bequest" because a person who is not the heir cannot inherit (Registration Research pp. 3119-480).

Registration application information (partial)

Purpose of registration(Registration Ordinance Article 3No. 5) is for real estateOwnershipIf all are acquired by bequest, describe as "the purpose of registration, transfer of ownership" (Record Example 198).For other specific examplesRegistration of ownership transferSee.

Registration cause and its dateOf the (Real Estate Registration Ordinance, Article 3), the cause of registration is a "bequest" regardless of whether it is a comprehensive bequest or a specific bequest (Record Example 6).

The cause date is, in principle, the date of death of the testator (985 article1) isStop conditionIf the condition is fulfilled after the death of the testator in the bequest with, it is the date when the condition is fulfilled (Article 985, paragraph 2).

The cause and date are combined and described as "cause, what month, what day, and bequest" (record example 198).

Registration applicant(Real Estate Registration Ordinance Article 3) applies to those who obtain ownershipRegistration right holderAnd the one who losesRegistration obligorIt is described as.It cannot be applied independently by the beneficiary (Notice No. 33 of Minko on April 4, 28).In addition, it should be notedCorporationIf is an applicant, the following items must also be stated.

  • As a general rule, the name of the representative of the corporation that is the applicant (Registration Ordinance Article 3)
  • ManagerWhen applying, the name of the manager (one-shot prompt answer, page 14)
  • Equity companyIf is the applicant and the representative of the company is a corporation, the trade name or name of the corporation and the name of the person who should perform the duties (March 18, 3, Minji No. 29 Circular 755).

In the case of a comprehensive bequest, the bequest is under the Civil Code.HeirAlthough it has the same rights and obligations as, in the registration procedure, heirs or heirs as registration right holdersExecutorJoint application with (April 33, 4, Notification of Minko 28).However, if the beneficiary is designated as the executor, he / she will make a de facto independent application as a registration right holder and registration obligor (answered by Civil No. 779 on May 9, 5).

Regarding the name of the person who is obliged to register, it is a practical practice to describe "Death A" if there is an executor and "Death A Heir B" if there is no executor (Format Explanation-page 469, page 471). XNUMX).There is a theory that the executor is described and a theory that is not described.

Attached information(Registration Rule Article 34Item 1, item 6, part)Registration cause proof information(Registration Law Article 61-Registration Ordinance Article 7Paragraph 1, Item 5 (b)), of the person obliged to register (will)Registration identification information(Registration Law Article 22Body) orRegistered certificate, In the case of a written application, the person who is obliged to register (the heir or the executor because there is no will)Seal certificate(Registration Ordinance Article 16Item 2Registration Rule Article 48Item 1 No. 5 andArticle 47 of the same ruleNo. 3 a (1),Article 18 of the same orderItem 2Article 49 of the same ruleItem 2 No. 4 andArticle 48 of the same ruleParagraph 1, Item 5 and Article 47, Item 3 (a) of the same rule, of the registration right holderAddress proof information(Attachment information b in Appendix 30 of the Real Estate Registration Ordinance) is attached.Further if the corporation is the applicantRepresentative credential information(Registration Ordinance Article 7In principle, item 1) must also be attached.

Incidentally,FarmlandOr pasture grazing land (Farmland lawIf you give a specific bequest of Article 2)Agricultural Land Law Article 3Permit (Real Estate Registration Ordinance, Article 7, Paragraph 1, Item 5 C) must be attached (Reply from Minsan No. 43, March 3, 2).On the other hand, in the case of a comprehensive bequest, it is not necessary to attach it (Agricultural Land Law Enforcement Regulations Article 170)[4])

If there is an executor, information certifying the qualification must be attached (Real Estate Registration Ordinance, Article 7, Paragraph 1, Item 2).Specifically, if the executor is designated by the will, it indicates that the will and the death of the executor have made the bequest effective.Family register・ It is a copy of the expulsion (answered by Minsan No. 59 on January 1, 10).Family courtIf a will executor is appointed in, it is not clear whether the will executor has the authority to execute the will for the real estate related to the application only from the will and testament in principle (usually the trial for appointment of the family court alone). (From, October 44, 10, Minko 16 response, registered study pp. 2204-265), and since the fact of death will be judged by the family court, a copy of the family register, etc. is unnecessary (registered study pp. 60-447). ).

If there is no executor, information proving that the person applying for the will is the heir of the will must be attached (Real Estate Registration Ordinance, Article 7, Paragraph 1, Item 5a).Specifically, it is a will (Registration Study pp. 733-157), a copy of the family register / expulsion certifying the death of the testator, and a copy of the family register / extract of the heir.

Registration license tax(The first sentence of Article 189, Paragraph 1 of the Real Estate Registration Regulations) is 1,000 / 20 of the value of real estate if the beneficiary is not an heir (Registration license tax law別表第1-1(2)ハ)。受遺者が相続人である場合は相続による所有権移転登記の場合(登録免許税法別表第1-1(2)イ)と同様に不動産の価額の1,000分の4であるとされたが、この税率の適用を受けるには申請書に受遺者が相続人であることを証する書面(戸籍謄本等)の添付が必要である(平成15年4月1日民二1032号通達第1-2)。なお、端数処理など算出方法の通則についてはReal estate registration #registration license taxSee.

footnote

[How to use footnotes]
  1. ^ a b c d Thorough commentary! Bequest My Town Law Office
  2. ^ Supreme Court Second Small Court Judgment March 39, 3.Minshu Vol. 6, No. 18, p. 3.Case law search system, Viewed May 2014, 8.
  3. ^ Supreme Court Second Small Court Decision June 14, 6.Shumin No. 10, p. 206.Case law search system, Viewed May 2014, 8.
  4. ^ Agricultural Land Law Enforcement Regulations - e-Gov Law Search

References

  • Yasukazu Kagawa (ed.), "Commentary on New Real Estate Registration Form (2006)", XNUMX.ISBN 978-4860960230.
  • Kazuo Yamada (ed.), Sadakatsu Fujitani (supervised) "New Real Estate Registration Law, 800 Questions"Japan Kayo Publishing, 2007.ISBN 978-4-8178-3758-5.
  • "Instructions, Circulars, Answers-4020 Regarding qualifications of executors in applications for registration of transfer of ownership by bequest," "Registration Research," No. 265, Imperial Judgment Law Publisher (later Teihan), 1969, p. 58.
  • "Q & A-6538 Registration by bequest (necessity of attaching a copy of the family register of the testator)", "Registration Study" No. 447, Teihan, 1985, p. 84.
  • "Questions and Answers-6909 Registration Application Based on Will", Registration Study, No. 480, Teihan, 1988, p. 131.
  • "Questions and Answers-7883 Registration Cause Proof Information to be Provided When Applying for Registration of Transfer of Ownership Caused by Bequest", Registration Study, No. 733, Teihan, 2009, p. 157.

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