Chapter 7 Choice of Law in Succession (继承的法律适用)

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1 Chapter 7 Choice of Law in Succession (继承的法律适用)
Section 1 Intestate Succession (法定继承\无遗嘱继承) Section 2 Will(遗嘱) Section 3 Ownerless Property (无人继承财产)

2 KEYWORDS: intestate Succession 法定继承\无遗嘱继承 testate Sucession 遗嘱继承 ownerless Property 无人继承财产 estate (property) 遗产 will 遗嘱 testator 立遗嘱人 administration of an estate 遗产管理 personal representative 遗产管理人 distribution of the estate 遗产分配 lex fori 法院地法 the lex situs 财产所在地法 the law of the last domicile of the deceased 死者最后住所地法 the law of the place where the will was made 遗嘱订立地法 succession to movables 动产继承 succession to immovables 不动产继承 capacity to make a will 立遗嘱能力 formal validity of a will 遗嘱的形式有效性 essential validity of a will 遗嘱的实质有效性 interpretation or construction of wills 遗嘱的解释 revocation of wills 遗嘱的撤销

3 涉外民事关系法律适用法 第31条　法定继承，适用被继承人死亡时经常居所地法律，但不动产法定继承，适用不动产所在地法律。 第32条　遗嘱方式，符合遗嘱人立遗嘱时或者死亡时经常居所地法律、国籍国法律或者遗嘱行为地法律的，遗嘱均为成立。 第33条　遗嘱效力，适用遗嘱人立遗嘱时或者死亡时经常居所地法律或者国籍国法律。 第34条　遗产管理等事项，适用遗产所在地法律。 第35条　无人继承遗产的归属，适用被继承人死亡时遗产所在地法律。 第51条　《中华人民共和国民法通则》第一百四十六条、第一百四十七条，《中华人民共和国继承法》第三十六条，与本法的规定不一致的，适用本法。

4 Section 1 Intestate Succession
法定继承是被继承人未留下遗嘱或遗嘱无效或遗嘱继承人拒绝继承财产时，按法律的规定进行继承的制度。世界各国在法定继承问题上的立法与实践不尽相同，在继承人的范围、继承人的顺序、代位继承、应继承份额、继承权的丧失和继承权的放弃等方面，存在着差异。

5 案例1 甲系中国公民，居住在杭州市。甲死于杭州并在英国遗有不动产。甲有丈夫乙和胞弟丙，都是中国公民，也都居住在杭州。除了乙与丙，甲死亡时没有其他亲人，并且没有立遗嘱。乙与丙因该不动产继承闹起纠纷，乙起诉至杭州市某法院。问题： （1）杭州法院有无管辖权？为什么？ （2）如果杭州法院有管辖权，应适用哪国法律？为什么？

6 案例2 一中国公民在法国定居，回国探亲时突发疾病，未留遗嘱而死，死后在法国留有动产若干，在国内留有不动产一处，其国内亲属与其在法国的亲属因遗产继承在中国法院涉诉。 问题：我国法院在该案中应该如何适用法律?为什么？

7 1.法定继承的法律适用上的区别制与同一制 (1)区别制也称分割制，是指在涉外继承中，将遗产区分为动产和不动产，对动产和不动产分别适用不同的冲突规范所指向的实体法，即动产适用被继承人的属人法，不动产适用物之所在地法。利弊？ (2)同一制也称单一制，指不管遗产是动产还是不动产，继承关系作为一个整体适用同一冲突规范所指向的实体法，即被继承人的属人法(本国法或住所地法) 。利弊？ 海牙国际私法会议1989年制定了《CONVENTION ON THE LAW APPLICABLE TO SUCCESSION TO THE ESTATES OF DECEASED PERSONS》（《关于死者遗产继承的准据法公约》），但该公约至今未生效。

8 2.Choice of Law Rules for Intestate Succession in China 区别制
PRC Law on the Law Applicable to Civil Relations Containing Foreign Element Article 31 Intestate succession shall be governed by the law of the habitual residence of the deceased at the time of death, but intestate succession to immovable property shall be governed by the law of the location of the property. (1) Succession to movable property and other property: the law of the habitual residence of the deceased at the time of death (2) Succession to immovable property：the law of the location of the property

9 《涉外民事关系法律适用法》 第31条 法定继承，适用被继承人死亡时经常居所地法律，但不动产法定继承，适用不动产所在地法律。 《民法通则》第149条：“遗产的法定继承，动产适用被继承人死亡时住所地法律，不动产适用不动产所在地法律。” [《继承法》第36条：“中国公民继承在中华人民共和国境外的遗产或者继承在中华人民共和国境内的外国人的遗产，动产适用被继承人住所地法律，不动产适用不动产所在地法律。外国人继承在中华人民共和国境内的遗产或者继承在中华人民共和国境外的中国公民的遗产，动产适用被继承人住所地法律，不动产适用不动产所在地法律。中华人民共和国与外国订有条约、协定的，按照条约、协定办理。” 最高院关于贯彻执行《继承法》若干问题的意见第63条：“涉外继承，遗产为动产的，适用被继承人住所地法律，即适用被继承人生前最后住所地国家的法律。”]

10 1. Last domicile in Switzerland
Swiss PIL 同一制 Art. 90 II. Applicable law 1. Last domicile in Switzerland 1 The estate of a person last domiciled in Switzerland shall be governed by Swiss law. 2 A foreigner may, however, submit his estate by will or by testamentary contract to the law of the States of which he is a citizen. The choice shall be void if the decedent was no longer a citizen of the chosen State at his death or if he had acquired Swiss citizenship.

11 Art. 91 2. Last domicile abroad 1 The estate of a person who had his last domicile abroad shall be governed by the law designated by the private international law rules of the State in which the decedent was domiciled. 2 To the extent that Swiss judicial or administrative authorities have jurisdiction under Article 87, the estate of a Swiss decedent who had his last domicile abroad shall be governed by Swiss law unless the decedent had expressly reserved the law of his last domicile by will or testamentary contract.

12 Art. 92 3. Scope of the law applicable to the estate and its devolution 1 The law applicable to the estate shall determine what belongs to the estate, who is entitled thereto and to what extent, who shall meet the debts of the estate, the legal remedies and measures that may be invoked and under what conditions. 2 The procedures for execution shall be governed by the law of the State of the authority having jurisdiction. In particular, that law shall govern protective measures and the devolution of the estate, including the execution of the will.

13 UK rules 1. Administration of estate: the law of the country where the personal representative obtained his power to act (lex fori) English grant of representation 2.Distribution of estate: 区别制 1)movable property Sucession to movable property is governed by the law of the last domicile of the deceased. 2) immovable property: the lex situs

14 Section 2 Will 1. The form of the will: PRC Law on the Law Applicable to Civil Relations Containing Foreign Element Article 32 The form of the will shall be valid if it conforms to the law of the habitual residence or nationality of the testator at the time he made the will or when he died, or the law of the place where the will was made. Whichever law favorable to the formal validity of the will: (1)the law of the habitual residence of the testator at the time he made the will; (2)the law of the habitual residence of the testator at the time he died; (3)the law of the nationality of the testator at the time he made the will; (4)the law of the nationality of the testator at the time he died; (5)The law of the place where the will was made

15 2. The validity of the will:
PRC Law on the Law Applicable to Civil Relations Containing Foreign Element Article 33 The validity of the will shall be governed by the law of the habitual residence or nationality of the testator at the time he made the will or when he died. (1)the law of the habitual residence of the testator at the time he made the will; (2)the law of the habitual residence of the testator at the time he died; (3)the law of the nationality of the testator at the time he made the will; (4)the law of the nationality of the testator at the time he died; Question? How to choose?

16 3. The administration of estate
PRC Law on the Law Applicable to Civil Relations Containing Foreign Element Article 34 The administration of estate and related issues shall be governed by the law of the place where the estate is located. the law of the place where the estate is located Question? If the estate is located in more than one country, then ……

17 涉外民事关系法律适用法 第32条　遗嘱方式，符合遗嘱人立遗嘱时或者死亡时经常居所地法律、国籍国法律或者遗嘱行为地法律的，遗嘱均为成立。 第33条　遗嘱效力，适用遗嘱人立遗嘱时或者死亡时经常居所地法律或者国籍国法律。 第34条　遗产管理等事项，适用遗产所在地法律。

18 (Swiss PIL) Art. 93 4. Form 1 The form of the will shall be governed by The Hague Convention of October 5, 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. 2 the Convention shall apply by analogy to the form of other dispositions by reason of death. Art. 94 5. Testamentary capacity A person may make a disposition by reason of death if, at the time of disposition, he had testamentary capacity under the law of the State of his domicile or habitual residence or under the law of one of the States of which he was citizen.

19 Art. 95 6. Testamentary contracts and mutual dispositions by reason of death 1 A testamentary contract shall be governed by the law of the State in which the disposing party was domiciled when the contract was executed. 2 If, in a testamentary contract, the disposing party subjects his entire estate to the law of the State of his citizenship, that law shall apply in place of the law of his domicile. 3 Mutual dispositions by reason of death are valid if they conform to the law of the State of domicile of each of the disposing parties or the law of the State of their common citizenship if that law was chosen. 4 The provisions of this Code concerning form and testamentary capacity (Art. 93 and 94) take precedence.

20 UK rules: 区别制 1) movable property Capacity to make a will is determined by the law of the domicile of the deceased. Capacity to take as a legatee (受遗赠人)is determined by the law of the testator’s last domicile or by that of the legatee’s domicile, whichever is the more favourable. The 1963 Wills Act provides a selection of seven laws by which the formal validity of a will can be established: the law of the place where the will was made and the law of the domicile, nationality or habitual residence of the testator, at the time he made the will, or when he died. The essential validity of a will is governed by the law of the last domicile. Renvoi has been applied. Interpretation or construction of wills of movables is governed by the law intended by the testator. In the absence of an express statement, the law is presumed to be the law of his domicile at the time he made the will. In principle the question whether a will has been revoked should be answered by the law of the testator’s docimile at the date of revocation.

21 2)immovable property This is generally governed by the lex situs. Renvoi has been applied in this area. The lex situs should govern capacity to make a will, the revocation of the will, the formal validity of the will, the essential validity of a disposition under a will. The interpretation of a will of immovables is governed by the law intended by the testator, normally the law of his domicile at the time he makes the will.

22 The Hague Convention of October 5, 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. Status(26-I-2009)(Number of Contracting States) : 39 France , Germany , Belgium , Netherlands , Luxembourg , Denmark , Norway , Sweden , Finland , Spain , United Kingdom of Great Britain and Northern Ireland , Ireland , Greece , Austria , Poland ,The former Yugoslav Republic of Macedonia , Slovenia , Serbia , Montenegro , Estonia , Croatia , Bosnia and Herzegovina , Switzerland , South Africa , Turkey , Israel , Japan , Australia ,the Special Administrative Region of Hong Kong, Antigua and Barbuda, Armenia, Brunei, Darussalam, Fiji, Grenada, Lesotho, Mauritius, Swaziland, Tonga .

23 Article 1 A testamentary disposition shall be valid as regards form if its form complies with the internal law: a) of the place where the testator made it, or b) of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or c) of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or d) of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or e) so far as immovables are concerned, of the place where they are situated. For the purposes of the present Convention, if a national law consists of a non-unified system, the law to be applied shall be determined by the rules in force in that system and, failing any such rules, by the most real connection which the testator had with any one of the various laws within that system. The determination of whether or not the testator had his domicile in a particular place shall be governed by the law of that place.

24 Section 3 Ownerless Property
1.无人继承财产的确定 [识别问题v财产继承问题]? 2.无人继承财产的归属 1）国家根据领土主权原则将无人继承财产视为无主物，通过先占权而取得无人继承财产。 2）将国家作为最终的法定继承人取得无人继承财产。

25 2. Choice of law rules for ownerless property
PRC Law on the Law Applicable to Civil Relations Containing Foreign Element Article 35 The disposition of a vacant estate shall be governed by the law of the place where the estate is located when the deceased died. the law of the place where the estate is located when the deceased died.

26 《涉外民事关系法律适用法》第35条　无人继承遗产的归属，适用被继承人死亡时遗产所在地法律。
最高人民法院《关于贯彻执行(中华人民共和国民法通则)若干问题的意见(试行)》第19l条规定，“在我国境内死亡的外国人，遗留在我国境内的财产如果无人继承又无人受遗赠的，依照我国法律处理，两国缔结或者参加的国际条约另有规定的除外。”即，有条约规定的适用条约的规定，无条约规定的，适用我国《继承法》第32条的规定，即归国家所有。

27 English rule: The law of the last domicile governs intestacy. It ceases to operate, however, when there is , or remains, no one who, under that law, can succeed on intestacy. If the property is in England, then, as with other ownerless property or bona vacantia such as treasure trove and wreck, it will, under English law as the lex situs, go to the Crown by prerogative right. If, under the law of the country of the last domicile, the foreign state, government or treasury would take the deceased’s property in default of successors, by way of bona vacantia or jus regale (what are known as ’caduciary’ rights), the Crown will take the property. But if it would be entitled under its law to take by way of succession in the absence of anyone else entitled to succeed it will be entitle to claim the property in England.

28 Re Maldonado ([1954] p 223 CA) Maldonado died domiciled in Spain by whose law, in default of any other successor, the Spanish state was entitled to all the intestate’s property as ultimus heres and not by caduciary right. It was held that the Spanish state was entitled to his property here, to the exclusion of the Crown.

29 思考题 1．比较在法定继承的法律适用上的区别制与同一制。 2．甲、乙两人为兄弟，甲为中国籍人，乙为美国籍人，其母已故，其父为美籍华人，在美国和中国大陆均有动产和不动产。其父病故后，甲、乙为继承其父在大陆和美国的遗产产生了争执。如果中国法院受理此案，甲和乙应适用何国法律继承其父在美国和中国财产？请说明法律依据。 3．试述无人继承财产归属问题的法律适用。