Study On Party Autonomy In Applicable Law Of Foreign Testamentary Succession

After centuries of development,the principle of party autonomy has continued to expand in its applicable fields,including the field of foreign-related succession.Foreign successive problems are complicated,and the differentiation of conflict law increased the uncertainty of law application.The value of the principle is increasingly reflected in the significance of law application on testamentary succession.In Regulation(EU)No 650/2012 of the European Parliament and of the Council of 4 July 2012 on Jurisdiction,Applicable Law,Recognition and Enforcement of Authentic Instruments in Matters of Succession and on the Creation of a European Certificate of Succession(Hereinafter as EU Regulation(EC)No.650/2012),there are further regulations on the application of the principle of party autonomy.In the application of law on foreign testamentary succession,the principle not only has the applicable foundation in this field,but also be confirmed by international and national legislation.Although the principle gives testator the freedom to choice law,the principle should be restricted.On one hand,the restrictions on the principle are the ways of choosing the law and the scope of the choice of law,etc.On the other hand,the regulation on public order,etc.In The Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China(hereinafter as Application of Law for Foreign-related relationship),there are two regulations about testamentary succession,one is the form of will and the other is the validity.In this field,there are no mention of the application of patty autonomy.According to our legislation and judicial practice,the principle of party autonomy could be applied in application of law on testamentary succession.In this article,it is accepted that party autonomy should applied in the application of law on testamentary succession,so as to perfect the application of law in this field.In this article,there are four parts:Firstly,study on the foundation of applying the principle on the application of law in foreign-related testamentary succession to make sense that the reason why the principle can be used in law application for foreign relationship.From three aspects to discuss the point: the special connotation for the principle in application of law for foreign testamentary succession,the influence of party autonomy in substantial law on testament and the significance of the principle in conflict law of testamentary succession.Secondly,introduce and compare the international unification legislation on foreign-related testamentary succession and the legislation in different countries.It is indicated that the principle is reasonable in the application of law on testamentary succession.The legislation reflects the feature and development of the principle.Thirdly,summarize and analyze the restrictions on the principle of party autonomy in the application of law on foreign-related testamentary succession.In two parts,one is to discuss the restrictions on the process of choice of law,such as the way and the scope of choosing law.For example,the way for choice is mainly the clear choice,the scope of the choice mainly includes the nationality and national laws,the law of habitual residence and so on.The other is to concern the restrictions on institution that will influence the conflict law including party autonomy,for example,order public.Last,based on the reality of our country and in accordance with the regulations,there is no relevant provision for the principle of party autonomy in the application of law on foreign testamentary succession in China.However,the consciousness and demand of the testator to choice the law is appeared in practice.If there is the principle of party autonomy,some problem should be considered,such as restrictions.Through this,referring to the relevant legislation and judicial practice in this field,there are some proposal for the application of the principle in the relevant field in China.