On The Conflict And Coordination Between China's Inheritance Of Customary Law And State Law

The inheritance system is an important part of the civil system.Since the promulgation of China's inheritance law more than 30 years ago,China's economic society has undergone great changes.At the same time,our country's customary law has a long history of inheritance,which has a significant conflict with the national law.in the context of the compilation of the civil code,It is of great theoretical and practical significance to explore the conflict and coordination between inheritance law and national law for both perfecting the inheritance system and compiling a civil code suitable for China's national conditions.This paper is divided into four chapters.The first chapter,the inheritance system of customary law and national law.Summarizing the concept of inheritance system,the essential characteristics of inheritance and the relationship between inheritance custom law and national law.and summarizing the historical changes in customary law,national law and church law in Western countries.Through the historical and international perspective this chapter give preliminary discussion on the changes of the relationship between the customary law and national law.The second chapter,our inheritance customary tradition and reality application.This chapter introduces the ancient law of our country,focusing on the system of close relationship between today's customary law and the one in Tang and Song dynasties,and analyzing the characteristics of the ancient inheritance system and the inheritance of the customary law today.In the end,it analyzes the application of the customary law.The third chapter,analysis of the conflict between inheritance law and national law in our country.This chapter firstly analyzes the realization of the conflict between inheritance custom law and national law,from aspects including the inheritance sequence the restriction of the freedom of testament,the existence of customary law without relevant provisions of national law,and the conflict in procedure,etc.Then,this chapter analyzes the reasons of cultural background,Legal transplant and national habits,legislative techniques and so on.The fourth chapter,the coordination and suggestion about our country inherits custom law and national law.This chapter is the focus of this article.The author first gives the principles and paths that should be followed in harmonizing customary law and national law.It is suggested that we should draw lessons from our ancient inheritance tradition and inheritance customary law and the western legislation experience,and suggestions are mainly given form the aspects including inheritance position,the restriction the freedom of testament,the legislation blank and so on.On the restriction of the freedom of testament,the author suggested to restrict the testament in consideration of three aspects: beneficiaries,the distribution of wills and the burden of proof to limit the testament.Sequence of the testament,the author suggested that the first pick is the children and heirs,the parents for the second overall,spouse as a special overall position,Reasons are given from several perspectives.In short,the author hopes to provide a new perspective for the conflict and coordination between the customary law and national law of China at the positon of Chinese national characteristic and cultural inheritance.