A Study On The Construction Of A Joint Testamentary System In China

The nature of a joint will differs from that of a separate will in the traditional sense,as it is a joint or mutual legal act according to its type,and its essential characteristic lies in the correlation or mutuality of the disposition.China’s current Civil Code does not include joint wills in its scope of regulation,and due to the lack of clear legal provisions,issues relating to the validity of joint wills are often the focus of disputes among judges.At the same time,this issue is also quite controversial in the theoretical community,and it is difficult to form a unanimous view.Based on China’s national conditions and practical needs,the legal effect of this system should be explicitly recognised by way of legislation based on reference to the legislative examples of other countries,and specific provisions should be made on the elements of its establishment,effective time,alteration or revocation,as well as invalidity and ineffectiveness,in order to construct a joint testamentary system in China.The body of this article is divided into four parts.The first part analyses the basic theories involved in joint wills,sorts out the controversies in the academic community regarding their nature and types,analyses them and gives its own views and reasons.At the same time,it expands its scope to overseas countries and regions,summarising the legislation on the validity of joint wills in major countries and regions in comparative law,and then combining it with the academic debate on its validity in China,with a view to gaining useful experience.The second part is an analysis of the practical dilemmas of joint wills in China.The second part is an analysis of the real-life dilemma of joint wills in China,which is a review of the legislative shortcomings of the system,leading to the judicial chaos of different judgments in the same case caused by the lack of a clear legal basis.Specifically,firstly,an overall overview of the last ten years of joint will disputes is given,presenting the number of decisions,the way they were concluded,the status of the trial level and the outcome of the trials in the form of a data chart,and concluding that there is a high objective demand for joint wills to be made and that disputes occur frequently.Secondly,the cases of the last five years are screened and integrated,and 83 representative cases are selected as a model to investigate some key issues of adjudication differences in practice,highlighting the divergence of judicial decisions on joint wills.The third part is an analysis of the need and feasibility of the establishment of a mutual regime of wills,following on from the first two parts.The necessity is to respond to the traditional inheritance customs of the people in real life and to clarify the legal basis for dispute resolution,so as to provide clear guidelines for judicial decisions;the feasibility is mainly from the perspective of China’s legislation,judiciary and the material basis for making wills.The fourth part is the prospect of the rules for the construction of a joint testamentary system in China.It is mainly a response to some of the theoretical controversies and the differences in judicial practice,mainly from the four major aspects of establishment,time of entry into force,alteration or revocation,invalidity and ineffectiveness,and the construction of specific rules.In this regard,the rules on the elements of formation are refined down to the subject matter,form,content and object;in respect of the time of entry into force,the distinction is made on the basis of type,supported by the approach of the German Civil Code;in respect of alteration or revocation,the provisions are made on the axis of time and their legal effects are explored;in respect of invalidity and non-validity,the distinction between the two is mainly based on the generalization of specific causes.