On Legislation And Perfection Of Applicable Law Of Foreign-Related Testament

The "Law Of The People’s Republic Of China Concerning Foreign-Related Civil Relations Law Applicable Law" (hereinafter referred to as the "Legal Applicable Law") is China’s first specialized foreign legal relationship of civil law, the Legal Applicable Law has a number of breakthroughs in foreign-related testamentary provisions, but still too lean, in a subsequent Interpretation Of The Supreme People’s Court On Issues Concerning The Application Of "People’s Republic of China Concerning Foreign-Related Civil Relations Law Applicable Law" (hereinafter referred to as the "Application Of Law Interpretation") is not in accordance with the provisions of foreign testamentary directly related. Elements of the will is the formal requirements and substantial requirements, Conflicts rules of Legal Applicable Law in foreign-related testamentary Divide into mode and effectiveness, the concept of mode less than the concept of formal requirement, the concept of effectiveness is greater than the substantial elements, it will lead to the judges do not understand the scope of the conflict rules. Will mode join points less the real location of the connection point comparing with the international trend, this is a major omission. At present, the citizens of a country in the overseas purchase real estate or real estate in China after the immigration. The connection point will effectiveness include habitual residence or nationality law in time of making a will or death, no provisions on how to apply this rule. According to the third article of Legal Applicable Law and sixth article of Application Of Law Interpretation, China does not recognize the principle of party autonomy in the field of foreign testament, it not only did not implement the freedom of testament in the judicial practice, also caused trouble.The imperfect law tends to cause judicial injustice, Legal Applicable Law have implemented more than four years, foreign testamentary succession trial experience increases, trial problems are not resolved. China’s foreign testamentary succession cases mostly involve Hong Kong inheritance disputes, the court in Hong Kong will dispute the applicable law is inconsistent, the courts view the retroactivity of Legal Applicable Law inconsistent, the choice of applicable law in will effectiveness tend to Chinese, for the part of people make selection intention in wills, he court almost have no response.Since the rise of the economic strength of our country, foreign trade and immigration is frequent, the number of China’s foreign-related disputes will gradually rise, so to perfect Legal Applicable Law for the maintenance of the testator’s rights and our social public interests is essential. In the field of foreign will introduce the principle of autonomy of the parties, people can choose a law in the way of express and implied, they also can set up and change the law before die. Through the discussion on the rationality and the international trend, China’s foreign-related testamentary conflict rules can be simply devided into two parts, formal requirements and substantial requirements, corresponding substantive law. The form elements include not only mode, but also qualification of people who participate in the will and revocation of the will, the connection point form elements increase location of real estate. The connotation of essential elements includes five elements, testamentary capacity, the qualification of beneficiary, will retain copies, meaning true, will explanation, while limiting the time factor and the space factor of substantive conflict rules, the wills are effective while conforms to the law of habitual residence and nationality in the time of making a will. These connection points are selected on in close contact and the testator meant presumption, add to the principle of party autonomy, it will as far as possible achieve the balance of formal justice and substantive justice, the progressive realization of the goal of private international law.