继承权本质的法理透视

关于继承权的本质 ,从被继承人的角度观察 ,主要有家族本位说、死后抚养说、意思说、无主财产归属说四种见解。随着社会、经济的发展 ,前两种已无人主张 ,唯有后两种仍有人对其研究 ,而且也践行各国的立法中。但我国继承法基于当时特殊国情的影响 ,遂采纳了死后抚养说 ,由此产生了许多弊端。鉴于此 ,我国现今继承法对继承权本质的理解 ,应确立以意思说为主 ,死后抚养说为辅的理念。

The Jurisprudence Perspective of the Nature of Succession Right

As to the nature of succession right, there are four doctrines of family standard, postmortem maintenance, intention and unclaimed property attribution from the deceased's viewpoints. With the development of society and economy, the doctrines of family standard and postmortem maintenance have been given up, but the doctrines of intention and unclaimed property are still being studied and applied in the legislation of many countries. Owing to the special situations of that time, the doctrine of postmortem maintenance was adopted in the Chinese succession law. So there are many shortcomings in it. Because of this, it is suggested that the nature of succession right in the present succession law should be understood with the intention doctrine as the main ideal and with the postmortem maintenance as the auxiliary ideal.