共同遗嘱的效力认定与制度构造

Joint Will: Confirmation of Legal Validity and Establishment of Legal Rules

共同遗嘱与单独遗嘱不同,其性质上属于共同法律行为或双方法律行为,其本质特征在于处分的相关性或关联性。我国现行《继承法》在共同遗嘱方面存在立法空白,尚未明确规定共同遗嘱,司法实务中对于共同遗嘱在效力认定、生效时间、能否撤销等问题上做法不一,导致理论界对是否承认共同遗嘱也存在争议。在我国民法典编纂过程中,应在继承编中明确承认夫妻共同遗嘱的法律效力,并对其成立条件、生效时间、撤销等具体规则做出明确规定,同时借鉴德国民法中关联性处分的相关理论,构建我国的共同遗嘱制度。

Differing from an individual will, a joint will is essentially a joint juristic act or a juristic act between both parties. And it is substantively characterized by the relevance of the will between both parties.At present, the joint will has not been stipulated by the Law of Succession of P. R. China. In the meantime,there are different opinions on the issues of the legal validity and the time of entry-into-force of joint will in the judicial practice of China. It is controversial whether the rules of revocation can be applied in joint will as well. Thus it is theoretically disputed whether the joint will should be provided in our Law of Succession. In the process of codification of the Civil Code of China, the legal validity of joint in statutory matrimonial relation should be explicitly stipulated in the Part of Law of Succession. And there should be specific provisions about the rules of conditions of establishment, the time of entry-into-force and revocation of joint will. Besides, the theory of wechselbezügliche Verfügungen in German civil law could be used for reference when we establish the rules of joint will in our Civil Code.