公证遗嘱的优先效力研究民商法专业论文.docx

1 1 2 2 Abstract Notary testament is one of our five forms of statutory wills, and probate system should have a characteristic of private law which stems from the law of succession. Being made under the guidance of notary public who possess legal knowledge and by the rigorous procedure of notary, the will is not easy to bring out a dispute. Thereby when the probate system is enacted, it should be kept the rigorous characteristic which notary law claim. At present, the provisions’ quantity about probate system is very small in Chinese legal status; there are only one or two relevant provisions which are related to probate system in Chinese Inheritance Law. I observe and study relevant provisions about probate system in Inheritance Law、Notary Law、Will Notarization Rules and Notarization Procedure Rules by hermeneutics, and then sum up that the notarized will have prior effect in Chinese legal status by designing the system of will cancellation . However, in practice, the prior effect of notary testament sometimes causes the adverse effect that the ultimately true meaning of testator is difficult to achieve. This disadvantage induces the academic controversy about whether notary testament should have prior effect or not. In detail, I introduce three theories(Negative Theory、Certain Theory、Compromise Theory)and the reasons of their legislative proposals about this controversy. After brief review of the Certain Theory and the Compromise Theory, taking a stand on this question and I am in favor of the Negative Theory. My view is that notary testament should have priority on weight of evidence rather than the supreme effect. I believe that the theory of notary testament without prior effect has a lot of advantages: firstly, my view has strong vitality because we find it meet the value of modern law and testament system by value analysis. It takes into consideration the value of freedom、justice and gives attention to two or more things efficiency and order; Seco