继承准据法确定中区别制与同一制的理性抉择——兼评《涉外民事关系法律适用法》第31条

Rational Choice of Applicable Law of Succession Between Unitary System and Scission System——Comment on Article 31 of the Law of the Application of Law for Foreign-related Civil Relations of P.R.China

国际私法历史中存在两种确定继承准据法的制度:同一制和区别制,它们在较长时期势均力敌。在区别制的弊害越来越明显以后,同一制逐渐为更多国家和地区接受。这一发展体现了国际社会对继承准据法确定的合理性的理性追求。但中国国际私法却与国际趋势相悖,在最新国际私法立法——《涉外民事关系法律适用法》——中仍坚持了继承准据法确定的区别制。中国立法中的区别制与英美法系的区别制在制度、理论和法系渊源等方面都不具同源性,更多的是迁就司法的便利,显示了不够理性的态度。

There are two systems to determine the applicable law of succession in the history of private international law: unitary system and scission system, and they are evenly matched in a comparatively long term. With the defect of scission system being more and more obvious, the unitary system was gradually accepted by more and more countries and regions, which reflects the international community's rational pursuit of justifiability to determine the applicable law of succession. However, China^ legislation is inconsistent with the international trends, with the Law of the Application of Law for Foreign-related Civil Relations of P. R. China still insisting on the scission system. China^ legislation does not have the same homology in system, theory and sources of law and other aspects of scission system with the legislation of common law system. The reason for the scission system adopted in the China^ legislation is for the convenience of judicial practices, which does not show enough rationality or justifiability.