The Trade-Offs on Major Controversial Issues in Book Six Succession of the Civil Code of the People’s Republic of China

Abstract

Book Six Succession of the Civil Code of the People’s Republic of China (hereinafter the Civil Code) introduces three new substantive systems: establishing the two-stage mechanism for the transfer of real rights in the estate, creating the estate administrator system, and enriching the rules on forms of wills. These systems represent fundamental institutional frameworks that cannot be adequately refined through judicial interpretation and therefore, necessitate legislative intervention. To preserve the legal traditions developed since the founding of the People’s Republic of China, Book Six Succession of the Civil Code maintains the existing order of intestate succession, refrains from adopting the statutory reserved share system, and excludes the collation system. The objectives of substitute succession can be achieved through the conditional juristic act system; the functions served by subsequent succession may likewise be fulfilled through the right of habitation and estate trust arrangements. Joint wills are merely formal combinations of two wills as unilateral juristic acts, with conditional correlation between the wills being justifiable only in exceptional cases like mutual wills, and in most scenarios, such conditional correlation proves untenable. Therefore, based on considerations of legal interpretation techniques, Book Six Succession of the Civil Code does not incorporate these three systems.

Keywords

estate administrator / collation / substitute succession / subsequent succession / joint will

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