正本清源:我国法定继承准据法确定的完善之道

Radical Reform: The Improvement Path for Determining the Applicable Law to Intestate Succession

区别制和同一制是涉外遗产继承法律适用的两种制度。前者将遗产分为动产和不动产,动产适用被继承人属人法,不动产适用物之所在地法;后者对遗产不做区分,整体适用被继承人属人法。从理论依据、制度运行和司法理性方面考察,同一制占有优势,被更多的国家或地区采行,代表了涉外遗产继承准据法确定规则的发展方向。我国《涉外民事关系法律适用法》坚持了《民法通则》和《继承法》中对于涉外法定继承准据法确定的区别制,此并非理性的抉择,更多地是对司法便利的让步。继承关系的本源为人身关系,财产关系是其间接关系,同一制可充分契合并反映继承关系的本质。我国涉外法定继承的法律适用规则应回归同一制。

The scission system and the unitary system are two different systems of determining the applicable law of foreign-related succession. In the former one, heritage is categorized into personal estate to which the personal law of the deceased is applicable and real estate to which the law of the place of the property is applicable;in the later system, heritage is not categorized and the personal law of the deceased is applicable. From perspectives of theoretical basis, system operation and judicial rationality, unitary system enjoys obvious advantages. Meanwhile, it is adopted by more countries and regions, representing the development trend of rules on determination of the applicable law of foreign-related succession. The Law of China on Application of Law to Foreign-related Civil Relationship continues adopting the scission system in General Principle of Civil Law and Inheritance Law to determine the applicable law of intestate succession, which is not a rational choice but a concession to the judicial convenience. The origin of the succession is the personal relation and the property relation is indirect, so the unitary system fully matches and reflects the nature of succession. The unitary system should be adopted in rules of China on the application of law to foreign-related succession.