遺囑繼承沖突法問題研究
發(fā)布時(shí)間：2019-04-18 17:18
【摘要】：《中華人民共和國(guó)涉外民事關(guān)系法律適用法》第四章第31、32、33條分別規(guī)定了"法定繼承""遺囑方式""遺囑效力"的法律適用規(guī)則。其中,"遺囑方式" "遺囑效力"的沖突規(guī)則首次出現(xiàn),遺囑繼承沖突法擺脫了之前的空白狀態(tài),但由于"遺囑效力"一詞的模糊性,以及第31條對(duì)"法定繼承"的專門獨(dú)立規(guī)定,使得我國(guó)法在立法的邏輯結(jié)構(gòu)上不夠周延。在涉外繼承領(lǐng)域,采取同一制還是區(qū)別制的爭(zhēng)論一直沒有停止,但大都沒有具體到遺囑和遺囑繼承沖突法上來討論這一原則選擇。關(guān)于遺囑法律適用的特殊分割問題,通過解釋"遺囑效力" 一詞并不能彌補(bǔ)這些"遺囑本身的問題"的法律適用不明確的不足。針對(duì)上述問題,本文從框架結(jié)構(gòu)到原則選擇再到具體規(guī)則分層次展開論述:第一部分通過對(duì)世界多個(gè)主要國(guó)家在遺囑繼承沖突法方面的立法設(shè)計(jì)的分析,筆者認(rèn)為,盡管世界范圍內(nèi)的繼承沖突法立法大抵存在兩種主要的立法模式——繼承和遺囑分立的立法模式及無遺囑繼承和遺囑繼承分立的立法模式,但是兩種立法模式都以明確區(qū)分遺囑和遺囑繼承為特征,只是囿于各自的實(shí)體法傳統(tǒng),在如何規(guī)定遺囑(遺囑本身的問題)和遺囑繼承(根據(jù)遺囑所為得遺產(chǎn)繼承的行為)的法律適用規(guī)則上存在區(qū)別,而在邏輯上卻不失嚴(yán)謹(jǐn)和周延。第二部分就遺囑繼承沖突法的原則之爭(zhēng)——采納同一制還是區(qū)別制,展開論述。同一制和區(qū)別制在產(chǎn)生之初均有其歷史或理論基礎(chǔ),在實(shí)際的運(yùn)行過程中也各有利弊,但隨著封建制度的消亡,區(qū)別制繼續(xù)存在的理由被削弱。同時(shí),相較于同一制的制度弊端,區(qū)別制的運(yùn)行難題還未找到解決的途徑。因此,同一制的采納更應(yīng)成為一種趨勢(shì)。第三部分討論了頗具爭(zhēng)議的遺囑法律適用的特殊分割問題,立遺囑的能力、遺囑的撤銷、遺囑的解釋等問題相對(duì)獨(dú)立于遺囑的實(shí)質(zhì)內(nèi)容,具有各自的特點(diǎn)。立遺囑能力作為準(zhǔn)行為能力問題應(yīng)獨(dú)立于遺囑的實(shí)質(zhì)內(nèi)容,遺囑的可撤銷性問題和撤銷舊遺囑的手段問題不能完全等同于新遺囑的成立問題,遺囑的解釋由于其探尋遺囑人真實(shí)意思的特性也宜單獨(dú)規(guī)定其法律適用規(guī)則。經(jīng)過前三部分的討論,反觀我國(guó)《法律適用法》中涉外遺囑繼承的規(guī)定,第四部分對(duì)我國(guó)遺囑繼承沖突規(guī)則的結(jié)構(gòu)安排和具體內(nèi)容設(shè)計(jì)做出評(píng)價(jià),并提出有針對(duì)性的完善建議。我國(guó)《法律適用法》第四章采用的法定繼承與遺囑分立的立法模式,顯然未將遺囑和遺囑繼承加以區(qū)分,沒有認(rèn)識(shí)到二者在邏輯上并非包含關(guān)系而只是存在交叉,因此,需要借鑒其他國(guó)家的相關(guān)立法經(jīng)驗(yàn)以完善邏輯結(jié)構(gòu)。關(guān)于遺囑的法律適用,遺囑效力一詞內(nèi)涵模糊,有待有權(quán)機(jī)關(guān)進(jìn)一步明確,宜明確遺囑能力、遺囑的撤銷、遺囑解釋的法律適用規(guī)則。
[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.
【學(xué)位授予單位】：南京大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D923.5
本文編號(hào)：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.
【學(xué)位授予單位】：南京大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D923.5
【參考文獻(xiàn)】
相關(guān)博士學(xué)位論文 前1條
1 高璐;涉外遺囑繼承的法律適用問題研究[D];中國(guó)政法大學(xué);2007年
相關(guān)碩士學(xué)位論文 前2條
1 趙嬌;我國(guó)涉外繼承的法律適用研究[D];遼寧大學(xué);2011年
2 陳娟;論遺囑繼承的法律適用[D];西南政法大學(xué);2006年
，本文編號(hào)：2460197
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