1, pension is not an inheritance. Article 3 of the Inheritance Law of People's Republic of China (PRC) stipulates: "Heritage is the personal legal property left by a citizen when he dies, including: (1) the income of a citizen; (2) Houses, savings and daily necessities of citizens; (3) Citizens' trees, livestock and poultry; (4) Cultural relics, books and materials of citizens; (five) the means of production that the law allows citizens to own; (six) the property rights in the copyright and patent rights of citizens; (7) Other lawful property of citizens. " The time of a citizen's death is the specific time limit for delineating the estate, which is the personal legal property left by the citizen when he dies. The pension is generated after the death of the deceased, and it is the property right based on a specific identity, not the property of the deceased before his death. Therefore, pension is not an inheritance. At the same time, only when citizens have the capacity for civil conduct and civil rights can they obtain property ownership or other legal creditor's rights by exercising certain civil acts. The pension is paid by the unit where the citizen works when he dies, not based on the civil acts before his death. The Higher People's Court of Gansu Province, in hearing the administrative ruling [(20 18) Gan No.202] of Yang Fenglian and Linxia Hui Autonomous Prefecture Industry and Information Technology Committee on the retrial review and trial supervision of their pension responsibilities, held that: "Paragraph 2 of Article 77 of the Civil Service Law of People's Republic of China (PRC) stipulates:' Civil servants who are disabled on duty shall enjoy the disability treatment prescribed by the state. If a civil servant dies or dies in the line of duty, his relatives shall enjoy the pension and preferential treatment prescribed by the state. "Article 3 of the Inheritance Law of People's Republic of China (PRC) stipulates:' Heritage is the personal legal property left by a citizen when he dies, including: (1) the income of a citizen; (2) Houses, savings and daily necessities of citizens; (3) Citizens' trees, livestock and poultry; (4) Cultural relics, books and materials of citizens; (five) the means of production that the law allows citizens to own; (six) the property rights in the copyright and patent rights of citizens; (7) Other lawful properties of citizens. Accordingly, the death pension is a living allowance given by the deceased unit to the close relatives and dependents of the deceased after the death of a citizen, and the funeral expenses are a subsidy given by the deceased unit to the relatives of the deceased to handle the funeral affairs of the deceased, which belongs to the scope of' survivor's allowance'. Because the death pension occurs after the death of the deceased and does not belong to the legal property left by the citizen when he dies, the death pension is not an inheritance, but should be included in the family's property. Pensions can be distributed equally, but priority should be given to close relatives who supported the deceased before his death and lost their source of livelihood. "Because of this, the creditors of the deceased may not claim to repay the debt with the death pension of the deceased. The Higher People's Court of Anhui Province holds that "the pension is the expense paid by the relevant unit to the close relatives of the deceased after his death, and it is used for special care and relief for the close relatives of the deceased" (20 19) No.95 in the Execution Ruling on the Execution Review of the Construction Project Contract Dispute between Chaohu Binhu Construction Engineering Co., Ltd. and Wang Yongsheng. They have clear personal attributes and are not the personal property of the executed Hu Jiaji. The death pension proposed by the reconsideration applicants Chaohu Binhu Construction Engineering Co., Ltd. and Wang Yongsheng does not belong to the eight cases of seizure, seizure and freezing stipulated in Article 5 of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Execution of People's Courts, and can be executed. However, the pension is not all the property of Hu Jiaji, and there is nothing wrong with lifting the freeze. "
2. Pension is not the same property of husband and wife. Article 17 of the Marriage Law of the People's Republic of China stipulates: "The following property acquired by husband and wife during the marriage relationship shall be owned by both husband and wife: (1) wages and bonuses; (2) Income from production and operation; (3) Income from intellectual property rights; (4) Inherited or donated property, except as provided for in Item 3 of Article 18 of this Law; (five) other property that should be owned by * * *. Husband and wife have equal rights to dispose of all property. " As a fee paid to the disabled or the family members of the deceased, pension is neither a salary nor a bonus, nor a property inherited or donated, which does not conform to the category of husband and wife's property. Therefore, as a husband and wife, one party cannot claim half of the pension right according to the marriage law, and with the support of legal provisions, the possibility of pension as husband and wife's property is ruled out. The People's Court of Neihuang County, Henan Province, in the first-instance civil judgment of the case of Kang Xiuzhi's dispute with Kang Guoan and Kang Maie (20 19) Yu 0527 at the beginning of the Republic of China, held that: "After Kang Fade's death, the Social Security Bureau of Neihuang County compensated his relatives for a one-time pension of 53,353.2 yuan, and the pension was paid to the families of the deceased only after the death of the citizen, not based on the civil behavior before his death. The object of the pension should be All parties in this case have the same property. " The People's Court of Xincheng District, Xi City, Shaanxi Province also expressed the same view in the first-instance civil judgment of (20 19) Shaanxi 0 102 at the beginning of the Republic of China: "Pensions are the expenses paid by the state to the relatives of the deceased after his death. The state subsidizes such expenses to give special care and relief to the families of the deceased, especially to minors who depend on the deceased and relatives who have lost their ability to work. Pension is not the property of husband and wife, nor is it the legacy of the deceased. But the property rights belonging to the immediate family members of the deceased. "
_ Second, how to pay the pension? In real life, there is no clear regulation and unified view on the distribution of pension in law, but the mainstream view is relatively concentrated.
1, principle of pension payment. According to China's current relevant policies, people who enjoy pension benefits must meet two conditions at the same time: first, they must be immediate family members and spouses of the deceased; The second is the person who was mainly or partially supported by the deceased before his death. Zhangqiu District People's Court of Jinan City, Shandong Province, in the first-instance civil judgment (20 17) Lu 0 18 1 5388 at the beginning of the Republic of China, held that: "Pensions are the expenses paid by the state or the unit where the deceased works after the death of the deceased, and they are spiritual comfort and economic compensation to the close relatives of the deceased. It should be the close relatives of the deceased who enjoy the pension, although it is not an inheritance. After Shi's death, her husband, mother Zhai Quanzhen and daughter actually had * * * and * *. Although Feng Li is not Shi's illegitimate child, he should get this pension, because he brought him up and has close kinship. Therefore, Zhai Quanzhen and Shi Wenyan advocated splitting the pension involved with Li Zhaoxin and Li Feng. Regarding the specific distribution of the pension of 36,540 yuan, considering that Zhai Quanzhen is Mei Jian's mother, she is older and has lost her ability to work; It's Shi's husband, and his wife's death has brought him greater mental harm. At our discretion, Li Zhaoxin and Zhai Quanzhen will each split 30% of the pension of 36,540 yuan, that is, 10962 yuan. Feng Li and Shi Wenyan have their own sources of income, and our hospital decided that they each get 20% of the pension of 36,540 yuan, that is, 7,308 yuan. Li Zhaoxin's failure to appear in court after being legally summoned by our hospital is a waiver of his litigation rights such as the right to defense, the right to adduce evidence and the right to cross-examination, and should bear the corresponding legal consequences. "
2, the scope of participation in pension payment. Pension is given to a certain range of objects, or to people who meet certain standards. "Family" is not a legal term, but the court's judgment has been very clear. Family members are close relatives, that is, spouses, parents, children, brothers and sisters, grandparents, grandparents, grandchildren and grandchildren, all of whom can participate in pension distribution, which is not limited to the first order, that is, not limited to the provisions of the fourth paragraph of Article 10 of the People's Republic of China (PRC) Inheritance Law. If there is no successor in the first order, it is inherited by the successor in the second order. "Both the first order and the second order can participate in the distribution of pensions, taking into account the closeness and dependence.
3. Determination of pension amount. Those who participate in the distribution are not necessarily equally distributing the death benefits of the deceased, but should be appropriately divided according to the length of time they live with the deceased, the degree of intimacy with the deceased and the degree of dependence. In the civil ruling of Xie Qingquan v. Xie Shusen for retrial (20 19), Chongqing Higher People's Court held that: "Death pension is not the legacy of the deceased before his death, but a monetary payment with the nature of spiritual comfort and material compensation for the spouse, immediate family members and dependents of the deceased before his death, with the purpose of giving special care and relief to the families of the deceased, especially the minors who depend on the deceased and lose their sources of livelihood. The distribution of death pension should be appropriately divided according to the length of life with the deceased, the degree of intimacy and dependence with the deceased, and cannot be divided equally. 1. The court of second instance held that Xie Shusen and Wang Niannian have lived together for decades, and now they are 90 years old and suffering from various diseases, so they should be taken care of. There is nothing wrong with taking more appropriately. Xie Qingquan's application for retrial of more death claims is unfounded in the law, and the reasons for his application for retrial cannot be established. "