论法学视域下的违法性继承理论

On the Theory of Illegal Inheritance from the Perspective of Legal Science

我国的违法性继承理论源于日本的行政法,经历了由早期完全否定违法性继承到后来逐渐承认的转变过程,形成了目前的不继承原则、例外继承的基本适用规则。该理论是法学基础理论的重要组成部分,不仅关涉到法律行为中的先行行为与后续行为之间的关系,还关涉到法律制定与法律实施之间的关系,是贯穿于法律施行各环节的重要理论支撑,因此有必要将该理论纳入法学范畴进行讨论,重构其理论基础。并在此基础上,对违法性继承的适用范围、原则以及继承模式等进行更深入的探讨,以完善和发展该理论本身及我国的法学基础理论。

The theory of illegal inheritance in China derives from the Japanese administrative law,which went through a process of transformation from early stage of negation to later stage of recognition,and formed the current basic rule of non-inheritance and exceptional inheritance. This theory is an important part of the basic theories of law. It relates not only to the relationship between the antecedent and follow-up actions in legal acts,but also to the relationship between law making and law enforcement. It is an important theoretical support for each link in the execution of law,so it is necessary to include this theory into the legal category to discuss and reconstruct its theoretical basis,on which the scope,principles,and inheritance patterns of illegal inheritance are discussed more deeply to improve and develop the theory itself and the local legal basic theory of China.