Study On Application Of Law For Legal Succession Concerning Foreign Interests In China

Legal succession concerning foreign interests means that in the legal relation of intestate succession, factors of foreign interests should be included in at least one item of the principal part, object or legal fact related to inheritance. Due to the diversity of legal rules among various countries on the issue of legal succession concerning foreign interests, ,for instance, there are broad ranges of inheritors prescribed in some countries, while some narrow ranges of inheritors are prescribed in other countries; Some countries prescribe more orders of succession for inheritors, while some countries has less prescripts on orders of succession inheritors.It is inevitable to bring conflict of law in International Private Law. As the conflict is generated, how to discuss applicable rule of law, which is unavoidable in international private law, and at the same time it is necessary for us to investigate applicable rule of legal succession concerning foreign interests in China. It is tried to start with the basic theory of legal succession concerning foreign interests in this dissertation and make a comparative study on the two applicable rules in the field of legal succession concerning foreign interests; on the basis of investigating specific conflicts of law, new theoretical trend in international private law is combined with Chinese specific fact, and then their standpoints and suggestions are put forward.This thesis is divided into three chapters, in which Chapter One concerns about summary of legal succession concerning foreign interests, Chapter Two is about conflict of law and applicable rule of law of legal succession, and our national applicable rule of law of legal succession concerning foreign interests is analyzed and settled in Chapter Three.Chapter One expounds basic theory of legal succession concerning foreign interests including its concept, characteristics and applicable rules, and compared unitary system with scission system. Legal succession concerning foreign interests means that in the legal relation of intestate succession, factors of foreign interests should be included in at least one item of the principal part, object or legal fact related to inheriting. First, at least one factor of foreign interests is possessed in legal relation concerning foreign interests. Second, legal succession concerning foreign interests refers to issues of international private law, whose normative contents usually dispersedly appear in some special enactment civil rules of law instead of uniform and general criterion. Third, right of supervision of succession concerning foreign interests should involve the interests of native citizens or the nation; cases of succession concerning foreign interests are dominated exclusively by relative national court. Confirming applicable law of legal succession concerning foreign interests, each county each country generally adopts"unitary system"and"scission system". So-called unitary system refers that all heritages are not distinguished as ambulatory chattel and immovable things but unified as adoptable applicable law. The so-called"scission system"refers to divide the heritages into ambulatory chattel and immovable things and apply to different applicable laws. The advantages and disadvantages between unitary system and scission system cannot be treated in an undiscriminating manner. Objectively speaking, the two systems of application of law have advantages and disadvantages respectively. The civil relation is simply compartmentalized as property relationship and personal relationship, while succession happens to belong to the two fields interlaced, and succession system has dualism of property law and capacity law, and it is emphasized that scission system is adopted more in nations and regions of property, and that unitary system is canonized in nations and regions of capacity.Conflict of law and applicable rule related to legal succession concerning foreign interests are stated in Chapter Two. Representations of conflict of law among countries are analyzed on one side, and the conflicts between our nation and the districts of Hong Kong, Macao and Taiwan are discussed simultaneously. Relative provisions on legal succession have been made by various countries with different specific contents, including the following aspects of conflicts: range of inheritor, order of succession and share of inheritance, and procedure of succession etc; legal succession is the main inherited manner in our national legislations. Range of inheritor, order of succession and share of inheritance are prescribed differently in different legal fields of legislations. The conflicts of legal succession between our nation and the districts of Hong Kong, Macao, and Taiwan mainly show in aspects of range of inheritor, order of succession and share of inheritance. Owing to different provisions in confirming applicable law for intestate succession in international private law, the issue of inheritance should be dealt according to provisions respectively as adoptable international private law treating interregional inheritance is reasoned by analogy. Different systems are adopted in confirming applicable law for intestate succession concerning foreign interests in various fields of law of our nation.Chapter Three elaborates on the analysis and settlement of our national applicable rule of legal succession concerning foreign interests, which is the core of the thesis and reflects intensively suggestions and claims of the author. This chapter concerns about the provisions of applicable rule of legal succession concerning foreign interests and the deficiencies of our national current provisions towards legal succession concerning foreign interests, and our national applicable rules of legal succession concerning foreign interests are finally discussed. On the provisions of our national applicable law for inheritance concerning foreign interests shown in the 36th item of"Law of Succession"and the 149th item of"General Principles of Civil Law", scission system is adopted in our national applicable rules for legal succession concerning foreign interests, namely personal law adopted by inheritance of personal property which refers to the territorial law when the inheritor is dead, law of place where a thing is situated adopted by inheritance of immovable things, namely lex situs of ambulatory chattel. There is no clear provision on that foreign succession refers to foreign legal succession or that including foreign testate succession in the 36th item of"Law of Succession"."General Principles of Civil Law"has made up the limitations of the legislations in"Law of Succession". The 149th item in"General Principles of Civil Law"prescribes that"legal inheritance of personal property refers that the law in the place where the ancestor is dead is applicable to ambulatory chattel while the law in the place where the immovable things are located is applicable to immovable things."The prescript explicitly directs towards applicable law for legal succession, adopts scission system and confirms that the territorial law for the dead ancestor is applicable to inheritance of personal property, which makes the determination of applicable law for intestate succession more explicit and more precise. Finally, the applicable rules for our national legal succession concerning foreign interests are investigated. First, the balance of definitude and agility should be achieved in application of law. Second, in addition to subjective rule of conflict replacing or complementing objective rule of conflict, another representation is to soften the traditional objective rule of conflict. Third, plural point of contract is adopted to soften objective rule of conflict, which actually reflects that the principles for confirming applicable law are paid more attention in international private law nowadays, namely"Favor Rules". Fourth, on account of the characteristics of both capacity and property held by inheritance result in the transfer of property right, the combination of law of inheritance and law of transfer of property right should be considered. Fifth, various factors should be synthesized to consider the legislative choice of"unitary system"and"scission system"in our country. Finally, in the conflict of law for legal succession concerning foreign interests, rules of conflict and the relative decree should be admitted and carried out conditionally by each other so as to protect peoples'basic interests from various countries and regions, which could be said to be the best approach for dealing with the redress afterwards in the conflict of law.