论夫妻一方婚内单独放弃继承的效力——兼评我国《继承法》第25条与《婚姻法》第17条

The study of the effect on a separate marital spouse to give up inheritance——Review of Rule 25,Law of Succession and Rule 17,Marriage Law

在夫妻关系存续期间,若被继承人未立遗嘱或所立遗嘱未明确表明遗产只归作为继承人的夫或妻一方,夫或妻可否在继承开始后、遗产分割前,不征得其配偶的同意而单独作出放弃继承的意思表示?对此,有两种相互冲突的观点,冲突的实质其实是法律规范的内部冲突,而问题产生的根源在于《婚姻法》第17条关于夫妻一方在婚姻关系存续期间因继承而获得的财产为夫妻共同财产的规定不当。鉴于此,应在将来的《婚姻法》修订中明确夫妻一方婚内继承的财产作为夫妻一方个人财产。

In the marital relationship, If there are no will or the will does not clearly show that the heritage as the husband or the wife＇s personal property as the heir, whether the husband or the wife as the heir can give up inheritance without his or her spouse＇s content during this period from the beginning of succession to the partitioning of the heritage？ There are two conflicting views, whose core is an internal conflict of legal norms, while the source of the problem is the wrong provision of the Rule 17, Marriage Law about the property accepted by one of the spouses as heir from inheriting during the marital relationship should be- come the common property. So, the law should provide that the property accepted by one of the spouses as heir from inheriting during the marital relationship as his or her personal property in the amendment of the Marriage Law in the future.