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The Conflicts Of Laws And Solutions On Testamentary Succession Among Chinese Mainland, Hong Kong Sar, Macao Sar, Taiwan District

Posted on:2011-09-26Degree:MasterType:Thesis
Country:ChinaCandidate:X CaoFull Text:PDF
GTID:2166360305973095Subject:International Law
Abstract/Summary:PDF Full Text Request
The Interregional Conflict of Laws has always been a real phenomenon in the world, but there is not a uniform model to solve it. Since Hong Kong and Macao Special Administrative Region returned to the mainland, the Interregional Conflict of Laws had become a real problem in China. Now China has been a "one country, two systems, triple legal systems, four jurisdictions " situation,and has become a multi-legal territories state. In recent years, interregional civil and commercial exchanges in China have been developing unprecedentedly, so interregional legal disputes seem to more and more diversified and complex. Among them, inheritance disputes of Mainland, Hong Kong, Macao, Taiwan have been emerging. As an importance area in the civil and commercial matters, testamentary succession has been provided completed in Mainland, Hong Kong, Macao and Taiwan. How to deal with inheritance disputes between Mainland and Hong Kong, Macao, Taiwan is a practical problem.The will and its effectiveness is the core of testamentary succession. A valid will must comply with certain substance and form elements. The substance elements mainly refer to the testator's capacity, the will's content, the will's alteration and revocation. The form elements mainly refer to the form of a will, including the writing wills, probate wills, oral wills and so on. Since there are many effective elements in the testamentary succession, we will find that their difference is key, general; their same is secondary, individual.Mainland, Hong Kong, Macao and Taiwan now has its own private international law or common law, which contains more or less the conflicts rules of testamentary succession. The Chinese mainland's related conflict rules focus on "Inheritance" and "Civil Law". But there is still no clear solution to the conflict rules of testamentary succession. Hong Kong law on testamentary succession is mainly reflected in the "Wills Regulations". Macao law is a civil law, claiming discrimination between the international conflicts and the interregional conflicts. But so far there is no special law on interregional conflicts on the testamentary succession. The international rules of conflicts in "Macau Civil Code" should be applied by analogy to resolve interregional conflicts. Taiwan is the most abundant area of the adjustment legislation on the interregional conflicts. On July 31,1992 Taiwan authorities announced the "Taiwan Area and Mainland Area Relations Ordinance ", and amended several times. The current is the "regulations" promulgated on July 1,2009. By comparing the conflict rules on testamentary succession of various regions, we could find the common ground and provide reference for the unity of the conflict rules of testamentary succession. Interregional testamentary succession conflicts belong to interregional civil conflicts, solved by conflict laws or by unity substantive laws. The unity substantive laws method seems to still only be viewed as an ideal. It is impossible.In the conflict laws approach, we could continue to employ their existing settlement means, or to reach regional arrangements, or to develop a unified law of the interregional conflict of laws. From a practical point of view, whether continuing to employ their existing settlement or developing a unified law, reference to the Hague International Convention (mainly referring to the "Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions" and the "Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons") is the most feasible method. In terms of regional arrangements, the purpose should be the actual enforceability of the arrangement, and the full protection of the individual regions and citizens interests.
Keywords/Search Tags:testamentary succession, interregional conflicts of laws, Hague Conference Convention
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