海峡两岸涉外继承法律适用法之比较研究

A Comparative Study on the Cross-Strait Foreign-related Succession Law

海峡两岸新近制定或修订的国际私法立法中均有关于涉外继承法律适用的规定。两岸涉外继承法律适用立法分别就继承、遗嘱、无人继承财产的处理等问题作了规定。两岸立法不仅立法体例不同,在具体的条文设计上,除了在遗嘱形式要件与无人继承财产处理等个别方面相对较为接近外,在其他大部分问题的规定上均差异较大。通过对比两岸立法可以看出,由于借鉴了西方法制发达国家的法律理念,台湾地区的立法相对更为合理、完善,而大陆地区的立法不仅在立法体例的选择上不够妥当,在具体条文设计上,有些条文如第33条也有进一步完善的必要。

The private international law legislation recently enacted or amended by the two sides of the Strait includes some provisions relating to foreign-related law of succession,which involve such issues as succession, wills, the disposition of a vacant estate and so on. As far as foreign-related succession is concerned, there exist the differences not only in the legislative struc- ture of both laws, but in most of the provisions as well. It can be clearly seen through comparison that Taiwan＇s legislation is much more reasonable because of their successfully drawing lessons from Germany and Japan, while the Mainland＇s legislation is not only unreasonable in the legislative structure but also some of its important articles such as article 33 also need further amendment.