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《中华人民共和国继承法》(下简称《继承法》)第11条规定,“被继承人的子女先于被继承人死亡的,由被继承人的子女的晚辈直系血亲代位继承。”关于代位继承,我国民法学界已有不少论述。但是对被代位继承人的有扶养关系的继子女是否有权代位继承,尚有不同看法。某些大专院校法学教材、继承法的专著等,明确并十分肯定地认为继子女可作为被代位继承人的代位人;在司法实践中也是各持己见,争论颇多。下面拟就此问题,谈谈我们的看法。
Article 11 of the Law of Succession of the People's Republic of China (hereinafter referred to as the “Succession Law”) stipulates that “children of an heir shall be succeeded by the immediate descendants of the children of the deceased's ancestors before their deceased person dies.” As to the succession of subrogation, China Civil law scholars have a lot of discussion. However, there are different views on whether or not stepchildren who are dependent in support of their ancestors should have the right to take the place of succession. Some universities and colleges law textbooks, inheritance law monographs, clearly and very sure that the stepchildren can be replaced by the heirs of substitutes; in judicial practice is also their own views, a lot of controversy. The following is intended to address this issue and talk about our views.