遗嘱继承冲突法问题研究
发布时间：2019-04-18 17:18
【摘要】：《中华人民共和国涉外民事关系法律适用法》第四章第31、32、33条分别规定了"法定继承""遗嘱方式""遗嘱效力"的法律适用规则。其中,"遗嘱方式" "遗嘱效力"的冲突规则首次出现,遗嘱继承冲突法摆脱了之前的空白状态,但由于"遗嘱效力"一词的模糊性,以及第31条对"法定继承"的专门独立规定,使得我国法在立法的逻辑结构上不够周延。在涉外继承领域,采取同一制还是区别制的争论一直没有停止,但大都没有具体到遗嘱和遗嘱继承冲突法上来讨论这一原则选择。关于遗嘱法律适用的特殊分割问题,通过解释"遗嘱效力" 一词并不能弥补这些"遗嘱本身的问题"的法律适用不明确的不足。针对上述问题,本文从框架结构到原则选择再到具体规则分层次展开论述:第一部分通过对世界多个主要国家在遗嘱继承冲突法方面的立法设计的分析,笔者认为,尽管世界范围内的继承冲突法立法大抵存在两种主要的立法模式——继承和遗嘱分立的立法模式及无遗嘱继承和遗嘱继承分立的立法模式,但是两种立法模式都以明确区分遗嘱和遗嘱继承为特征,只是囿于各自的实体法传统,在如何规定遗嘱(遗嘱本身的问题)和遗嘱继承(根据遗嘱所为得遗产继承的行为)的法律适用规则上存在区别,而在逻辑上却不失严谨和周延。第二部分就遗嘱继承冲突法的原则之争——采纳同一制还是区别制,展开论述。同一制和区别制在产生之初均有其历史或理论基础,在实际的运行过程中也各有利弊,但随着封建制度的消亡,区别制继续存在的理由被削弱。同时,相较于同一制的制度弊端,区别制的运行难题还未找到解决的途径。因此,同一制的采纳更应成为一种趋势。第三部分讨论了颇具争议的遗嘱法律适用的特殊分割问题,立遗嘱的能力、遗嘱的撤销、遗嘱的解释等问题相对独立于遗嘱的实质内容,具有各自的特点。立遗嘱能力作为准行为能力问题应独立于遗嘱的实质内容,遗嘱的可撤销性问题和撤销旧遗嘱的手段问题不能完全等同于新遗嘱的成立问题,遗嘱的解释由于其探寻遗嘱人真实意思的特性也宜单独规定其法律适用规则。经过前三部分的讨论,反观我国《法律适用法》中涉外遗嘱继承的规定,第四部分对我国遗嘱继承冲突规则的结构安排和具体内容设计做出评价,并提出有针对性的完善建议。我国《法律适用法》第四章采用的法定继承与遗嘱分立的立法模式,显然未将遗嘱和遗嘱继承加以区分,没有认识到二者在逻辑上并非包含关系而只是存在交叉,因此,需要借鉴其他国家的相关立法经验以完善逻辑结构。关于遗嘱的法律适用,遗嘱效力一词内涵模糊,有待有权机关进一步明确,宜明确遗嘱能力、遗嘱的撤销、遗嘱解释的法律适用规则。
[Abstract]:Article 31, 32 and 33 of Chapter 4 of the Law of the people's Republic of China on the Application of Law concerning Foreign Civil Relations stipulate the applicable rules of law for "legal succession", "wills", "wills" and "wills" respectively. Among them, the conflict rule of "testamentary mode" and "testamentary effect" appeared for the first time, and the conflict law of testamentary succession got rid of the blank state before, but because of the fuzziness of the word "wills effect", As well as article 31's special independent regulation on "legal succession", the logic structure of our country's law is not long enough. In the field of foreign-related succession, the argument of adopting the same system or the distinction system has not stopped, but most of them have not discussed the choice of the principle in terms of testamentary law and the conflict law of testamentary succession. With regard to the special division of the application of testamentary law, the unclear application of the term "testamentary effect" can not be made up by interpreting the term "testamentary effect" in the application of the law of these "problems of testamentary itself". In view of the above problems, this paper discusses from the frame structure to the choice of principles and then to the specific rules at different levels. The first part analyzes the legislative design of several major countries in the world in the aspect of the conflict of testamentary succession law, and the author thinks that: Despite the fact that there are generally two main legislative models in worldwide legislation on conflict of succession law-inheritance and testamentary separation, and intestate succession and testamentary succession, there are two main legislative models, that is, succession and testamentary separation and intestate succession and testamentary separation. However, both legislative models are characterized by a clear distinction between testamentary will and testamentary succession, but are confined to their substantive law traditions. There is a distinction between the rules governing the application of the law of the will (the problem of the will itself) and the succession of the will (the act of inheritance according to the will), but logically there is no lack of rigour and delay. The second part discusses the dispute of the principle of conflict of testamentary succession law-adopting the same system or the difference system. Both the same system and the distinction system have their historical or theoretical basis at the beginning of their emergence, and have their own advantages and disadvantages in the actual operation process. However, with the demise of the feudal system, the reasons for the continued existence of the distinction system have been weakened. At the same time, compared with the system malpractice of the same system, the difficult problem of distinguishing system has not been solved. Therefore, the adoption of the same system should be a trend. The third part discusses the special division of the application of the testamentary law, the ability to make a will, the revocation of the will, the interpretation of the will and so on, which are relatively independent of the substance of the will and have their own characteristics. The ability to make a will as a quasi-capacity problem should be independent of the substance of the will, and the question of the revocability of the will and the means of revoking the old will cannot be fully equated with the question of the establishment of the new will. The interpretation of testamentary will, because of its characteristic of exploring the true meaning of testator, should also stipulate the applicable rules of law separately. Through the discussion of the first three parts, this paper looks at the provisions of foreign testamentary succession in the Law of Application of Law in our country. The fourth part evaluates the structure arrangement and concrete content design of the conflict rules of testamentary succession in China, and puts forward some suggestions for improving it. The legislative model of legal succession and testamentary separation adopted in Chapter IV of the Law on the Application of Law of our country clearly does not distinguish between testamentary succession and testamentary succession, and does not realize that the two are not logically related but only intersected, therefore, It is necessary to learn from the relevant legislative experience of other countries in order to improve the logical structure. As for the legal application of testamentary will, the meaning of the term testamentary effect is vague, which should be further clarified by the competent organs, and the rules governing the legal application of testamentary capacity, annulment of will and interpretation of will should be clarified.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.5
本文编号：2460197
[Abstract]:Article 31, 32 and 33 of Chapter 4 of the Law of the people's Republic of China on the Application of Law concerning Foreign Civil Relations stipulate the applicable rules of law for "legal succession", "wills", "wills" and "wills" respectively. Among them, the conflict rule of "testamentary mode" and "testamentary effect" appeared for the first time, and the conflict law of testamentary succession got rid of the blank state before, but because of the fuzziness of the word "wills effect", As well as article 31's special independent regulation on "legal succession", the logic structure of our country's law is not long enough. In the field of foreign-related succession, the argument of adopting the same system or the distinction system has not stopped, but most of them have not discussed the choice of the principle in terms of testamentary law and the conflict law of testamentary succession. With regard to the special division of the application of testamentary law, the unclear application of the term "testamentary effect" can not be made up by interpreting the term "testamentary effect" in the application of the law of these "problems of testamentary itself". In view of the above problems, this paper discusses from the frame structure to the choice of principles and then to the specific rules at different levels. The first part analyzes the legislative design of several major countries in the world in the aspect of the conflict of testamentary succession law, and the author thinks that: Despite the fact that there are generally two main legislative models in worldwide legislation on conflict of succession law-inheritance and testamentary separation, and intestate succession and testamentary succession, there are two main legislative models, that is, succession and testamentary separation and intestate succession and testamentary separation. However, both legislative models are characterized by a clear distinction between testamentary will and testamentary succession, but are confined to their substantive law traditions. There is a distinction between the rules governing the application of the law of the will (the problem of the will itself) and the succession of the will (the act of inheritance according to the will), but logically there is no lack of rigour and delay. The second part discusses the dispute of the principle of conflict of testamentary succession law-adopting the same system or the difference system. Both the same system and the distinction system have their historical or theoretical basis at the beginning of their emergence, and have their own advantages and disadvantages in the actual operation process. However, with the demise of the feudal system, the reasons for the continued existence of the distinction system have been weakened. At the same time, compared with the system malpractice of the same system, the difficult problem of distinguishing system has not been solved. Therefore, the adoption of the same system should be a trend. The third part discusses the special division of the application of the testamentary law, the ability to make a will, the revocation of the will, the interpretation of the will and so on, which are relatively independent of the substance of the will and have their own characteristics. The ability to make a will as a quasi-capacity problem should be independent of the substance of the will, and the question of the revocability of the will and the means of revoking the old will cannot be fully equated with the question of the establishment of the new will. The interpretation of testamentary will, because of its characteristic of exploring the true meaning of testator, should also stipulate the applicable rules of law separately. Through the discussion of the first three parts, this paper looks at the provisions of foreign testamentary succession in the Law of Application of Law in our country. The fourth part evaluates the structure arrangement and concrete content design of the conflict rules of testamentary succession in China, and puts forward some suggestions for improving it. The legislative model of legal succession and testamentary separation adopted in Chapter IV of the Law on the Application of Law of our country clearly does not distinguish between testamentary succession and testamentary succession, and does not realize that the two are not logically related but only intersected, therefore, It is necessary to learn from the relevant legislative experience of other countries in order to improve the logical structure. As for the legal application of testamentary will, the meaning of the term testamentary effect is vague, which should be further clarified by the competent organs, and the rules governing the legal application of testamentary capacity, annulment of will and interpretation of will should be clarified.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.5
【参考文献】
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1 高璐;涉外遗嘱继承的法律适用问题研究[D];中国政法大学;2007年
相关硕士学位论文 前2条
1 赵娇;我国涉外继承的法律适用研究[D];辽宁大学;2011年
2 陈娟;论遗嘱继承的法律适用[D];西南政法大学;2006年
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