Study On Testamentary Succession In Conflicts Law

The 31st,32ed,33rd articles of Chapter 4 in<Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationship>provide the rules of law application about statutory succession,testamentary forms and will effect.The first regulation of conflict rules about testamentary forms and will effect fill the void of testamentary succession in conflict law,but the logical structure of our legislation is not distributive because of the ambiguity of will effect and the independence of statutory succession.In the foreign-related succession field,the discussion has never been ceased on adopting the unitary system or scission system,but it never specialized on testamentary and testamentary succession in conflict law.Concerning on the special division of testamentary legal application,that is not enough to make up the obscure deficiency of legal application on these testamentary-self issues through the interpretation of will effect.On account of the above puzzles,this thesis will discuss hierarchically from frame structure,to system selection,then to concrete rules.The first chapter analyzes the legislation design on testamentary succession in conflict law of multiple main countries in the world.Although there are two main legislative modes of successive conflict law that one is the separation of succession and testamentary and another is the separation of no-testamentary succession and testamentary succession,both of the two modes definitely separate testamentary and testamentary succession.Just because of the respective substantive law tradition,the rules of legal application differ from each other on how to regulate testamentary(issue on itself)and testamentary succession(heritage successive action according to testamentary),but their logical structures are very rigorous and distributive.The second part focuses on the controversy about the system of testamentary succession in conflict law,which one should be chosen,unitary system or scission system.Unitary system or scission system set up on its own historical or theoretical foundation,and both of them have pros and cons during the practical procession.Nevertheless,along with the abolishment of feudal system,the existing reason of scission system had been weakened.Meanwhile,compared with the disadvantages of unitary system,the processing puzzle of scission system hasn't found the solution.Therefore,adoption of unitary system should be prevailing.The third one debates on the special division of controversial testamentary legal application.Such issues as the capability of will,the revoke of will,the interpretation of will,with their own specialty,are independent of the essential content of will.The capability of will,as quasi-capacity for act,should stand out from the will's essential content.The revoke of will and the means of revoking the outdated will can not be equal to the establishment of new will.In order to make out the real meaning of testator,the interpretation of will is also proper to make its own legal application rules.Depending on the above three chapters' discussion and reflecting on the regulation of foreign-related testamentary succession in Law Applicable Law,the last part comments on the structure arrangement and specific content design about our testamentary succession conflict rules,and then puts forward targeted perfect advice.We adopt the legislative mode of separation of statutory succession and testamentary in Chapter 4 of Law Applicable Law,which obviously doesn't distinguish between testamentary and its succession.It also confuses their cross relation into inclusion relation.Therefore,we need to refer on other countries' concerning legislative experience to perfect the logical structure.With respect to testamentary legal application,because the phrase of will effect is ambiguous,it also needs authority to definite its meaning in order to make clear the legal application rules on capacity of will,revoke of will and interpretation of will.