Between System And Rule

The dynamic coupling between system and rules is the key issue in the construction of legal system.Inheritance contract in German law is a dual rule with inheritance rules and contract forms.The investigation of how the rules with overlapping concepts are placed on the German civil law system can be carried out through how the natural law school,the historical law school and the Pandekton school construct their contract systems,and how to analyze and take out the inheritance contract rules from the internal consistency requirements of the systems.Through this investigation,the methods of dynamic coupling between the coordination system and rules of the above schools can be classified.Typing-based analysis will lead to the intrinsic motivation of this coupling.This paper mainly contains three parts:The first part discusses the inheritance contract construction of natural law school.In the contract system constructed by Grotius’ commitment theory,the timeliness of commitment and the materiality of rights are based on the requirement of consistency.According to this,Pfendorff thinks that testamentary succession can not achieve the same time as assignment commitment and assignment commitment,so the inheritance contract belonging to testamentary succession cannot be placed in the system.Wolff advocates that the two kinds of commitments only need to be sorted in time,and creatively derives the right to request the transfer of inheritance according to his right to request payment and act.He advocates that at the beginning of inheritance,the heirs will first obtain the right to request and become heirs by accepting the inheritance.Wolff’s construction leads to loopholes in his overall inheritance theory: either an "infinite retrogression" right acceptance or an "ownerless" period of inheritance before accepting inheritance rights,which makes testamentary inheritance,as the background rule of inheritance contract,be falsified.In order to fill this loophole,Darjes thinks that after the decedent dies,the estate becomes ownerless,and the right to obtain the estate is constructed as a preemption right.At the same time,Daljes created the theory of "relief of rights",which combined the right of inheritance to form an inheritance system that combines people and objects,and endowed the inheritance rules with obligation content,thus on the one hand,the inheritance contract can be placed in its system,and it does not affect the establishment of testamentary inheritance.Starting from solving the "infinite retrogression" of Wolff’s theory,Kant argues that the so-called right to request the transfer of inheritance is a default right.However,Kant opposes the "contractualization" of testator’s inheritance,which is due to the fact that although the transfer of this right is obtained through the joint will of testator and heir,it is not obtained through the temporary combination of will,on the contrary,it is obtained through the order of the former’s will left at the time of death and the successor’s inheritance at a later time,and the intermediate succession is about the right to accept inheritance,so he juxtaposes inheritance contract with testamentary inheritance,but does not classify it as a special contract type.The second part discusses the construction of inheritance contract between historical law school and Pendleton school.In the early school of historical law,the school of natural law still has its end effect,and the inheritance contract rules of Mittermaier and Eichhorn have already conveyed the basic right transfer model of the contract system of the school of natural law.On the basis of savigny’s legal fact system,Haas advocates that the appointed person "is expected to be guaranteed" after inheriting the contract,and thus obtains the inheritance right in the future.Bessel simplified the former theory into "expectation right" about inheritance,and the two theories were called the new construction of inheritance contract.On the contrary,savigny disagrees with the idea of bringing inheritance contract into the department of inheritance law,but only constructs it as a kind of inheritance of creditor’s rights similar to bequest.However,this view is not universally accepted.On the basis of opposing the new construction,Hartman proposed to re-divide the inheritance contract from the angle that the contractor waives the right and the heir obtains the right,and divided it into two parts: inheritance designation and abandonment designation.With the change of causality between legal behavior and subjective rights shaken by normative jurisprudence,Hartman’s construction is becoming redundant.Hoffman regards the inheritance contract as a legal act that sets the sprout of others’ rights and restricts the freedom of the contractor,and Bilin further constructs the inheritance contract as a dual rule including both parties’ legal acts and unilateral legal acts.The third part answers a series of questions about the dynamic coupling between system and rules according to the combing of inheritance contract construction in the first two parts.Based on the above research,this paper holds that the inheritance contract rules and contract system are continuously and dynamically coupled based on the essence that concepts are constantly improved through self-development.In the work of jurists of natural law school,historical law school and Pendleton school from 17 th to 19 th century,this dynamic coupling was presented as three methods: "limited interpretation","analogical interpretation" and "expanded interpretation" between systems and rules.On the basis of these three methods,the construction of inheritance contract rules aims at constantly meeting the internal consistency requirements of contract system,and finally constructs the logical structure of combining death penalty with contract form in German Civil Code today.