论文部分内容阅读
对于通常由夫妻间订立的共同遗嘱究竟应该如何认定,国外立法各树旗帜,我国继承法未作明确规定,而理论界和司法实践都持肯定态度。其主要理由是夫妻间订立共同遗嘱有利于财产所有人意志的自由体现。笔者认为,共同遗嘱这种遗嘱形式不仅在理论上背离民法学原理,且在实践中弊多利少,隐患很大,故不宜提倡。民法学原理告诉我们,民事法律行为有效的主要条件之一,是体现当事人的真实意思表示。而不同的民事行为对当事人意思表示的方式要求各有不同。在合同行为中,双方意思表示不仅要真买,而且要求合意。而对遗嘱行为,法律所强调保护的,是遗嘱人单方真实意志的自由体现。道理很简单,因为遗嘱是财产所有人在生前对自己财产所作的预先
As for what should be the common wills that are usually made between husband and wife, the flags of foreign legislation and the law of succession of our country are not clearly stipulated, and both the theoretical circles and judicial practices hold a positive attitude. The main reason is that the establishment of a common will between husband and wife is conducive to the free expression of the will of property owners. The author believes that the will of the common will not only in theory from the principle of civil law, and in practice more harm than good, a lot of hidden dangers, it should not be promoted. The principle of civil law tells us that one of the main conditions for the validity of civil legal acts is to represent the true meaning of the parties. Different civil behaviors have different requirements on the way the parties express themselves. In contractual conduct, both parties mean that they should not only buy it but also ask for it. The testament, the law emphasizes the protection of the testament is the free will of the unilateral real will. The reason is simple, because the will is the property owner in advance of the property made by their predecessor