一、基本案情

原告（被上诉人）杨某玉。

被告（上诉人）杨某来。

被告（原审被告）杨某陆。

杨某陆、杨某来与杨某玉系兄弟姐妹关系，父母为杨某林（已于2001年5月10日死亡）和陆某某（已于2004年3月3日死亡）。位于北京市丰台区××号的宅基地使用权人及其地上北房五间的产权人系杨某林。杨某来曾在1998年间在北京市丰台区××号院内被批新建南房三间。2000年3月院内五间北房经北京市丰台区花乡人民政府批准翻建。

杨某玉诉称：坐落于北京市丰台区××号院内共有北房五间，有本村村委会宅基地、房屋等审批证明，该房产属于我父亲杨某林的遗产，应依法进行分割，现我只要求回来居住房屋，但我二哥杨某来不同意，无奈起诉，现请求法院依法对北京市丰台区××号房产进行分割，判令杨某来返还应当由我继承的房产。

杨某来辩称：东房3间已拆除、西房2间、南房3间，北房5间均为我与妻子所建，不应作为遗产处理，杨某林和陆某某生前对房屋曾作出处理，我对父母尽了赡养义务，房屋应归我所有，不同意杨某玉的诉讼请求。

杨某陆辩称，我同意杨某玉要求分割父母遗产的诉讼请求，北房5间我要一间，我要求继承我的份额。

二、审理结果

原审法院经审理认为：本案争议之宅基地使用权人及其地上五间北房的产权人已经有关部门认定为杨某林，因杨某林已过世，该北房五间应属被继承人杨某林之遗产，依照继承法有关规定，由于杨某林生前未立有遗嘱或遗赠扶养协议，故本案争议房产应按法定继承进行处理；考虑本案各继承人的实际居住和生活状况，对老人的赡养情况等，对本案争议房产，法院依法酌情予以处理。被告杨某来的辩解，缺乏相关充分证据予以佐证，法院对此不予采信。依据中华人民共和国继承法》第五条，《最高人民法院关于民事诉讼证据的若干规定》第二条之规定，判决：坐落于北京市丰台区××号北房五间房屋，其中北房东侧第一间归原告杨某玉所有；北房西侧第一间归被告杨某陆所有；其余北房中间三间归被告杨某来所有。

一审判决后，杨某来不服，上诉称：一审法院事实认定错误，诉争北房五间系我与妻子共同翻建，父母在世时已将房屋分家给我，故该北房五间系我与妻子的共同财产，并非父母遗产。杨某玉、杨某陆的起诉均已超过法定诉讼时效。为此，上诉要求二审法院依法改判驳回杨某玉的全部诉讼请求。杨某玉、杨某陆均表示同意原判。

二审法院经审理认为：本案二审争议的焦点之一是诉争北房五间是否为杨某林、陆某某遗产的问题。根据已查明的事实，诉争五间北房系2000年3月经北京市丰台区花乡人民政府批准翻建，房屋所在的宅基地使用权人登记为杨某林。经原审法院向黄土岗村委会询问，该村委会亦认可诉争北房五间产权归杨某林所有。杨某来等作为家庭成员，其虽称建房时自己有出资行为，但鉴于诉争北房五间系在杨某林、陆某某夫妇的宅基地及原有旧房基础上翻建，故诉争房屋的产权理应归杨某林、陆某某夫妇所有。杨某来的出资行为，应当被认定为对父母房屋的添附行为，该出资并不能直接改变房屋的所有权性质。杨某来向原审法院出示的协议书中，亦未明确约定翻建房屋归杨某来所有，而是约定所有财产由杨某来继承。鉴于该协议书杨某林、杨某玉均未签字认可，故原审法院认定诉争房屋系杨某林、陆某某的遗产并无不当，应予维持。本案二审争议的焦点之二是原审法院判决当事人享有的遗产份额是否适当的问题。杨某来上诉称杨某陆已通过分家的方式取得了父母财产，故无权再取得诉争北房五间中的财产。杨某陆在其父母生前虽取得了父母的部分财产，并不妨碍其依照继承法的相关规定，继承父母的遗产。原审法院考虑到杨某来对房屋的贡献较大，且对父母所尽赡养义务较多，在分配遗产的时候予以了适当多分，该遗产的分配于法有据，应予维持。本案二审争议的焦点之三是杨某玉的主张是否超过法定诉讼时效的问题。根据已查明的事实，双方当事人之父母去世后，并未办理遗产继承，故诉争的遗产处于双方当事人共有的状态，现杨某玉提出要求继承，并未超过法定诉讼时效。故对于杨某来上诉称杨某玉的主张超过诉讼时效的主张，不予采信。综上所述，依照《中华人民共和国民事诉讼法》第一百五十三条第一款第（一）项之规定，判决：驳回上诉，维持原判。

三、评析意见

本案的主要法律焦点是被继承人原有农村房屋翻建后所有权归属认定问题。关于这个问题在审判实践中存在两种观点，第一种观点认为父母原有的农村房屋经合法申请翻建后，原有房屋已被拆除，作为遗产的原有房屋即告灭失，翻建人因新建而取得翻建后房屋的所有权；第二种观点认为原有房屋的翻建行为并不必然导致原有房屋作为遗产全部消灭，应当综合考量翻建前原有房屋的权属和宅基地使用权权属、翻建申请人、实施人、翻建资金来源以及翻建前后的房屋状况等具体情况进行判断。笔者赞同第二种观点，主要理由为：

第一，翻建行为并不必然构成新建，从而使翻建人取得翻建后房屋的所有权。翻建过程并不必然是将原有房屋完全拆除重建，也可能是在原有房屋的基础上利用原有房屋的地基，或者使用原有房屋拆除后的建筑材料翻建而成，翻建行为并没有改变原有房屋的结构，翻建后的房屋中包含着原有房屋的价值，翻建行为不能必然构成物权取得上的新建，从而认为翻建人取得翻建后房屋的全部所有权。

第二，翻建人并不必然是翻建后房屋的所有人。在农村房屋的翻建过程，通常不是一个个人行为而是一个家族行为，经常出现翻建申请人、翻建实施人与翻建出资人不一致的情形，即由某一位家庭成员提出翻建申请，而由所有或者部分家庭成员共同出资、出力完成翻建行为，翻建后的房屋应按照翻建出资、出力的情况视为共同财产。如果在翻建过程中，被继承人有出资或出力的情况，则应当认定被继承人是翻建后房屋的共同所有人，其份额应当作为遗产进行分割。

综上，第一种观点的情况只适用在翻建申请人、翻建实施人和翻建出资人都是相同，没有被继承人参与，并且翻建后的房屋不包括任何原有房屋的价值的情形。而第二种观点更加全面的我国农村的社会现实，更能实现继承法的原意，取得较好的法律效果和社会效果。当然，造成这一问题难以认定的原因也在于我国特殊的土地制度以及现实中农村房屋产权登记的困境，这一问题的进一步明确有待相关法律、法规不断完善。

所以本案中诉争北房五间系在杨某林、陆某某夫妇的宅基地及原有旧房基础上翻建，产权理应归杨某林、陆某某夫妇所有。杨某来的出资行为，应当被认定为对父母房屋的添附行为，该出资并不能直接改变房屋的所有权性质。诉争房产应当认定为被继承人杨某林、陆某某的遗产，在进行分割时则应考虑杨某来的出资行为和其尽了较多的赡养义务进行多分。

1、 Basic facts of the case

The plaintiff (appellant) Yang Mouyu.

Defendant (appellant) Yang Moulai.

Defendant (original trial defendant) Yang Moulu.

Yang Moulu and Yang Moulai are related to Yang Mouyu's brother and sister, Yang Moulin (died on May 10, 2001) and Lu Moumou (died on March 3, 2004). Located in Fengtai District, Beijing ×× The owner of the right to use the homestead and the property owner of the five rooms above the ground in the north are Yang Moulin. Yang Moulai worked in Fengtai District, Beijing in 1998 ×× Three new south rooms have been approved for construction in the courtyard. In March 2000, the five northern rooms in the courtyard were renovated with the approval of the Huaxiang People's Government of Fengtai District, Beijing.

Yang Mouyu claims to be located in Fengtai District, Beijing ×× There are a total of five northern houses in the courtyard, with approval certificates from the village committee for homesteads and houses. The property belongs to my father Yang Moulin's inheritance and should be divided according to law. I only request to return to live in the house, but my second brother Yang Moulai does not agree and has no choice but to sue. I now request the court to legally file a lawsuit against Fengtai District, Beijing ×× Divide the property and order Yang to return the property that should be inherited by me.

Yang Moulai argued that three rooms in the east have been demolished, two rooms in the west, three rooms in the south, and five rooms in the north were all built by my wife and me, and should not be treated as an inheritance. Yang Moulin and Lu Moumou had dealt with the house before their death, and I fulfilled my obligation to support my parents. The house should belong to me, which does not agree with Yang Mouyu's lawsuit request.

Yang Moulu argued that I agree with Yang Mouyu's request to divide his parents' inheritance. I want one of the five northern rooms and I request to inherit my share.

2、 Review results

After trial, the original court held that the owner of the disputed homestead land and the property owners of the five northern houses on the ground in this case have been identified by relevant departments as Yang Moulin. As Yang Moulin has passed away, the five northern houses should belong to the inheritance of the deceased Yang Moulin. According to relevant provisions of the Inheritance Law, since Yang Moulin did not have a will or a legacy and maintenance agreement before his death, the disputed property in this case should be handled according to legal inheritance; Considering the actual living and living conditions of the heirs in this case, as well as their support for the elderly, the court will handle the disputed property in accordance with the law. The defense of defendant Yang Moulai lacks sufficient evidence to support it, and the court does not accept it. According to Article 5 of the Inheritance Law of the People's Republic of China and Article 2 of the Several Provisions of the Supreme People's Court on Evidence in Civil Litigation, the judgment is that it is located in Fengtai District, Beijing ×× There are five houses in the north room, of which the first one on the east side of the north room belongs to the plaintiff Yang Mouyu; The first room on the west side of the north room belongs to the defendant Yang Moulu; The remaining three rooms in the middle of the North Room belong to the defendant Yang Moulai.

After the first instance judgment, Yang Moulai was dissatisfied and appealed, stating that the first instance court found the facts wrong. The five rooms in the North Room were jointly renovated by me and my wife, and my parents had already divided the house between me during their lifetime. Therefore, the five rooms in the North Room are the joint property of me and my wife, and not the inheritance of my parents. The lawsuits of Yang Mouyu and Yang Moulu have both exceeded the statutory statute of limitations. Therefore, the appeal requests the second instance court to revise the ruling and reject all of Yang Mouyu's litigation claims in accordance with the law. Yang Mouyu and Yang Moulu both agreed to the original verdict.

The court of second instance held that one of the focuses of the dispute in the second instance of this case is the issue of whether the five rooms in Beifang belong to the heritage of Yang Moulin and Lu Moumou. According to the confirmed facts, the five northern houses in dispute were renovated in March 2000 with the approval of the Huaxiang People's Government in Fengtai District, Beijing. The owner of the homestead land where the house is located was registered as Yang Moulin. After the original trial court inquired with the Huangtu Gang Village Committee, the village committee also recognized that the property rights of the five rooms in the disputed North Room belonged to Yang Moulin. As family members, Yang and others claimed to have contributed to the construction of the house, but considering that the five rooms of the disputed North House were renovated on the homestead and existing old house of Yang and Lu, the property rights of the disputed house should belong to Yang and Lu. The investment behavior of Yang Moulai should be recognized as an attachment to the parents' house, and this investment cannot directly change the ownership nature of the house. In the agreement presented by Yang to the original trial court, it was not explicitly stipulated that the renovated house should belong to Yang, but rather that all property should be inherited by Yang. Given that neither Yang Moulin nor Yang Mouyu signed and recognized the agreement, the original trial court found that the disputed property belongs to the inheritance of Yang Moulin and Lu Mouyu, which is not inappropriate and should be maintained. The second focus of the dispute in the second instance of this case is the issue of whether the original trial court has ruled that the share of the estate enjoyed by the parties is appropriate. Yang appealed and claimed that Yang and Lu had already acquired their parents' property through family separation, so they had no right to acquire the property in the disputed North Room 5. Although Yang Moulu acquired some of his parents' property before their death, it does not prevent him from inheriting their parents' inheritance in accordance with the relevant provisions of the Inheritance Law. The original trial court considered that Yang Moulai had made a significant contribution to the house and had a greater obligation to support his parents. When distributing the estate, it was appropriately distributed, and the distribution of the estate was legally justified and should be maintained. The third focus of controversy in the second instance of this case is whether Yang Mouyu's claim exceeds the statutory statute of limitations. According to the confirmed facts, after the parents of both parties passed away, they did not handle inheritance, so the disputed estate is in a state jointly owned by both parties. Yang Mouyu now requests inheritance, which does not exceed the statutory statute of limitations. Therefore, the appeal by Yang Moulai stating that Yang Mouyu's claim exceeds the statute of limitations will not be accepted. In summary, in accordance with Article 153, Paragraph 1 (1) of the Civil Procedure Law of the People's Republic of China, the judgment is to dismiss the appeal and uphold the original judgment.

3、 Evaluation opinions

The main legal focus of this case is the issue of determining the ownership of the renovated rural houses of the deceased. There are two views on this issue in judicial practice. The first view is that after the parents' original rural houses have been legally applied for renovation, the original houses have been demolished, and the original houses as heritage have been destroyed. The renovater obtains ownership of the renovated houses due to the new construction; The second viewpoint holds that the renovation of existing houses does not necessarily lead to the complete elimination of the original houses as heritage. A comprehensive consideration should be given to the ownership of the original houses and the right to use the homestead before the renovation, the applicant, implementer, source of renovation funds, and the condition of the houses before and after the renovation. The author agrees with the second viewpoint, mainly for the following reasons:

Firstly, the act of renovation does not necessarily constitute a new construction, thus allowing the renovater to acquire ownership of the renovated house. The process of renovation does not necessarily involve the complete demolition and reconstruction of the original house, but may also involve the use of the foundation of the original house or the use of building materials from the demolition of the original house. The renovation does not change the structure of the original house, and the renovated house contains the value of the original house. The renovation cannot necessarily constitute a new construction on the acquisition of property rights, Therefore, it is believed that the renovater has obtained full ownership of the renovated house.

Secondly, the renovater is not necessarily the owner of the renovated house. In the process of rural housing renovation, it is usually not an individual behavior but a family behavior, and there is often a situation where the renovation applicant, renovation implementer, and renovation investor are inconsistent. That is, a family member applies for renovation, and all or part of the family members jointly contribute and contribute to complete the renovation behavior. The renovated house should be considered as joint property according to the situation of renovation investment and contribution. If the deceased contributes or contributes during the renovation process, it should be recognized that the deceased is the co owner of the renovated house, and their share should be divided as inheritance.

In summary, the first viewpoint only applies when the applicant, implementer, and investor of the renovation are the same, without the participation of any heirs, and the renovated house does not include the value of any original house. The second perspective, which is more comprehensive in the social reality of rural areas in China, can better achieve the original intention of inheritance law and achieve better legal and social effects. Of course, the reason for the difficulty in identifying this issue is also due to China's special land system and the difficulties in registering rural housing property rights in reality. Further clarification of this issue requires continuous improvement in relevant laws and regulations.

Therefore, in this case, the five rooms of Beifang were renovated on the homestead and existing old house of Yang and Lu, and the property rights should belong to Yang and Lu. The investment behavior of Yang Moulai should be recognized as an attachment to the parents' house, and this investment cannot directly change the ownership nature of the house. The disputed property should be recognized as the inheritance of the heirs Yang Moulin and Lu Moumou, and when dividing it, consideration should be given to Yang Moulai's investment behavior and his excessive maintenance obligations.