| At present,global trade exchanges and humanistic exchanges are getting closer and closer.There are more and more people who choose to immigrate,marry,work or invest across borders.Some Chinese families are characterized by the diversity of nationality of members and globalization of asset allocation.Consequently,the issue of foreign-related testamentary succession arises.The legal provisions regarding the form and substantive effects of the will vary greatly from country to country,and conflicts of laws inevitably arise.Therefore,it is necessary to use private international law to solve the problem of conflict of laws concerning foreign-related testamentary succession.Compared with the previous legislative provisions,Article 32 and 33 of the 2010 PIL Act has significantly developed on the issue of testamentary succession.The law explicitly adopts the principle of homogeneous system and separately provides for unconditional selective conflict of laws on both the form and the validity of the testament,enhancing the clarity and flexibility of the application of law.However,by examining the implementation of Articles 32 and 33 of the 2010 PIL Act in judicial practice through relevant cases,we can find that the following problems still exist in the application of the rules.First,the legal application of the issue of the will’s validity is uncertain,which is mainly manifested by the arbitrary choice of the connection points and the ambiguous interpretation of the law of the testator’s habitual residence.Second,the legal application of the issue of the will’s form doesn’t implement the principle of preferential treatment of the will,which is mainly manifested by the lack of the connection point of the real estate location in the legislation and the deviation of the result-oriented application of the law in judicial practice.With regard to the validity of the will,on the one hand,we should clarify the main basis for the application of existing points of contact in Article 33 of the 2010 PIL Act in conjunction with the substantive law nature of testamentary succession.Guided by the value of substantive law,we should apply Article 33 be based primarily on respecting the will of the testator.On the other hand,judges should clearly explain the testator’s habitual residence in judicial practice,taking the Center of the Party’s Current Interests as the guide,using the time standard and the Center of Life standard as mutual reference factors,strengthening the reasoning and improving the accuracy and rigor of the adjudication language.At the same time,the improvement of legislation and legal interpretation complement each other.The introduction of party autonomy in the validity of wills,allowing the parties to choose the applicable law,can promote a higher degree of certainty in the application of the law.However,in order to avoid malicious circumvention of the law by the parties,reasonable restrictions should be placed on the subject,manner,scope and object of application of the chosen law,and it should not violate the relevant mandatory rules and public order.With regard to the form of the will,first of all,the connotation of the principle of preferential treatment of the will embodied in Article 32 should be clarified.The application of Article 32 should be clearly oriented to the result of making the testamentary form as effective as possible.It is not advisable to determine the applicable law as the general order of application of conflict of laws,determining the applicable law and then determining the validity of the testamentary form.Judges should judge the validity of the testamentary form one by one according to the law to which the points of contact listed in Article 32 refer.Secondly,the introduction of the law of the real estate location can help to implement the principle of preferential treatment of wills more comprehensively,further increasing the possibility of the testamentary form being effective,and more completely protecting the testator’s will and the heirs’ inheritance interests.The real estate location can only be used as a point of contact with the same effect as other existing points of contact,and doesn’t have the effect of priority application to avoid the division of the application of the law.With the increase of people’s personal wealth and the enhancement of legal awareness,testamentary succession as one of the important ways of property inheritance is receiving more and more attention.Testamentary succession is not only related to the orderly flow of family property,but also to the harmony of family relations and the long-term stability of the whole society.Therefore,we should pay attention to the research on the theory and practice of testamentary succession to provide strong legal support for the operation of the testamentary succession system.From the perspective of private international law,it is important to improve the rules on the application of the law of testamentary succession and try to balance the flexibility and certainty of it to achieve the value goal of substantive justice in the field of testamentary succession. |
