同一制与区别制的对立及解释

Conflicts between Unity and Scission and Its Explanation

同一制与区别制是涉外继承法律适用的两种基本制度选项。从历史基础和继承法律关系性质出发进行考察,同一制较之区别制具有理论优势。《涉外民事关系法律适用法》富有特色地划分法定继承和遗嘱继承的法律适用,前者采用区别制,后者采用同一制。但区别制与同一制简明的立法结构的表象背后,各自隐藏着一系列难以具体规范的复杂问题。无论是最高人民法院未来制定司法解释,还是法官在个案中适用涉外继承冲突规则,都应遵循的基本思路是:区别制的制度运行有时需要同一制的思维方式作为补充,同一制的制度运行需要格外注意不动产所在地法的积极作用。

Both unity and scission are options of the basic system for the conflicts rule applied to the foreign-related succession.Based on historical roots and the nature of succession,unity has much more advantages than scission from a theoretical perspective.The Law of the Application of Law for Foreign-related Civil Relations is characterized by its distinction between intestate succession and testate succession.Scission is applied to intestate succession,while unity is applied to testate succession.Although their legislative structures are simple and clear,each of them contains a series of complicated problems which are tough to deal with.In order to solve all these questions,both the Supreme Court＇s prospective legal interpretation and judges should follow a basic idea：the unity＇s way of thinking should be deemed as the supplement for carrying out the scission,while carrying out the unity should pay attention to the positive aspects of lex situs of immovable.