On The Construction Of The System Of The Husband And Wife's Common Wills

The husband and wife's common wills is an ancient form of will,which has been embodied in the legislation of many countries (regions).In the practice of our country,there are also many husband and wife's common wills.However,except Macao,there is no provision in the legislation of this kind of will in our country,which brings civil practice and judgment by judge trouble,it is a gap between law and reality.Therefore,China should incorporate husband and wife's common wills in the inheritance law system,admitted to the legal effect of husband and wife's common wills,and to regulate it.This article discusses the system of husband and wife's common wills from the following several parts.The first part is introduction.In the second part,the article expounds the necessity of building system of husband and wife's common wills.The necessity of this system is embodied in the following respects:the necessity of respecting the traditional inheritance habits in China,the necessity of promoting family unity and social stability,the necessity of guiding citizens' behavior,the necessity of resolving judicial disputes.In the third part,the article discusses the theoretical basis of common wills,and demonstrates the legitimacy of the husband and wife's common wills on private property rights theory and the theory of relative testamentary freedom.The fourth part content extraterritorial system of husband and wife's common wills.The article investigates Germany and Britain's legal system,and finds the uses for reference to China.The fifth part is about the system building about husband and wife's common wills.In this part,the article answered the problems in practical and judicial of common wills.The requirements of validity of couple's common wills contains the requirements of validity of individual wills and the special requirements of validity of couple's common wills.The special requirements contain the following two aspects:first,the subject of common wills should be couples with legal relationship;second,the form of common wills should be more strictness than individual wills.The effective time of couple's common wills should be discusses combine with the type of wills.By using the husband and wife's common wills,people can disposes the individual property and the couple's joint property.When study the changing and withdrawing of common wills,unilateral disposition and mutual disposition should be distinguish,and the different types of common wills should be distinguish.