域外配偶继承权制度立法修法之争及启示——以配偶继承权与夫妻财产制的关联性为中心

Enlightenment from the Argument over Extraterritorial Legislations on Spouse Heirship and Legislative Amendments——Centered on the Relevance of Surviving Spouse Heirship and Rules on Marital Property

域外配偶继承权制度立法或修法之争显示,配偶继承权是和夫妻财产制紧密相联的,要构建配偶继承权制度,必须注意与夫妻财产制相对应,以平衡对配偶继承权和对直系血亲继承权的保护。因此,在夫妻财产共有制下,无需修改现行《继承法》有关配偶的继承顺序及份额,亦无必要通过规定居住权即用益权以及先取权再行保护;但在夫妻约定财产制下,则有必要通过明确配偶的继承份额和特留份这一有效方法,保障别产制下的生存配偶在另一方死亡时的财产清算。另一方面,通过完善老年配偶的必继份制度、建立后位继承制度来保障老年配偶的继承权,构建少子高龄化下的我国配偶继承权制度。

The arguments over extraterritorial legislations on spouse heirship and legislative amendmentsshows that spouse heirship is closed connected to rules on marital property, thus in order to establish thespouse heirship system, rules on marital property should be developed accordingly so as to balance protectionof the spouse heirship and the lineal inheritance rights. In accordance with community property system, it isnot necessary to modify the current Succession Law on provisions of the order and percentage of spouse inherit-ance. Besides, there is no need to formulate rule on the usufruct and the priority to claim for property. How-ever, in accordance with the contractual marital property system, the explicit percentage of inheritance andforced heirship should be determined so that this effective method can protect the property liquidation right ofthe surviving spouse upon the death of the other under the separate property system. Further, rules on statutoryinheritance for senior spouse should be improved and subsequent succession should be set up so as to protectthe heirship of senior spouse and to establish the spouse heirship system for the ageing society with fewer chil-dren in our country.