Study Of Principle Of Applicable Law Of Foreign-related Testate Succession

Unity and scission are two types of systems which handle the issue of applicable law in foreign-related successions. In countries that belong to different legal families, they play important roles in adjusting conflicts of laws in the testate succession area. However, as economic and cultural communication has become increasingly frequent, and the amount of population flows has grown, although unity and scission both have their own advantages, their disadvantages are more and more apparent in today’s complicated judicial practice of international practice law, thus further increasing the complexity of judicial practice. In The Law of the Application of Law for Foreign-related Civil Relations of The People’s Republic of China, the rules of testate succession are left unclear and have neither taken the full advantage of unity nor scission as guidance. Thus, the purpose of this dissertation is to combine the legislation and judicial practice of foreign-related testate succession and to analyse the advantages and disadvantages of unity and scission, so as to find out which one is superior. Subsequently a discussion of possible solutions with respect to major issues follows, after which recommendations for the legislation of application of law for foreign-related testate succession in China are made.This dissertation is divided into four chapters:Chapter 1 surveys different countries legislation, analyses the options of these countries with respect to unity or scission, and finds out that civil law countries tend to choose unity, while common law countries tend to choose scission. It then combine this finding with the rules of application of law for foreign-related testate succession in China and presents the existing problems in the system designs of unity and succession. I cover how these two systems divisions formed, which system offers the greater advantages, how to solve obvious problems, and what can be done about the systems in China.Chapter 2 uses a historical perspective and covers the historic origin of and background on unity and succession. I discuss the advantages and disadvantages of both systems, review them in context of the current social situation, and find that as the feudal land system faded and international communication has become more and more frequent, unity as the leading principle of application of law for foreign-related testate succession is more advantageous than succession.Chapter 3 identifies the validity issue of application of law and the uncertainty of junction of personal law as the two main problems of unity. It discusses both and identifies suitable solutions by addressing the validity issue from the angle of jurisdiction and by applying habitual residence as junction with respect to the uncertainty of junction of personal law.Chapter 4 considers the regulations of application of law for foreign-related testate succession in China. It combine these with the legislation in China and points out the two key insufficiencies in the application of unity in the current legislation, namely: the uncertainty w.r.t. the choice of system and the junction of personal law is too loose. The chapter concludes by outlining solutions, precisely:to immerse unity into every element of application of law for foreign-related testate succession and to comply with the trend of international legislation by taking habitual residence as junction.