| 摘要: |
| 《民法典》继承制度延续了《继承法》，最终并未采纳特留份制度。自比较法角度看，《民法典》继承制度的重要特色在于注重扶养或需要，避免不加限制的“不劳而获”。在向婚外同居者遗赠情形中，生存配偶非基于扶养或需要而主张违反遗嘱意思的继承，不符合我国继承制度缓解“不劳而获”思想的特点，可不予支持。向婚外同居者遗赠的法律行为，若不涉及金钱和婚外同居的交换——如与婚外同居者订立遗赠扶养协议，则不应以违反公序良俗为由认定其无效。婚外同居者违反夫妻忠实义务可在夫妻关系的法律规定中寻求解决之道。 |
| 关键词: 遗赠 婚外同居 公序良俗 |
| DOI： |
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| 基金项目: |
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| Testamentary Gift, Cohabitation Outside Marriage and Public Order or Good Morals |
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Sun Weifei
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| Abstract: |
| The inheritance system in the Civil Code continued the Inheritance Law, and ultimately did not adopt the rules of forced heirship. From the perspective of comparative law, the important feature of the inheritance system in the Civil Code is its emphasis on support or needs, avoiding unrestricted “gain without labor”. In the case of bequests to cohabitants outside marriage, the surviving spouses claim for inheritance that violates the will is not based on support or needs, which is not in line with the characteristics of China's inheritance system to alleviate the ideology of “gain without labor” and can not be supported. A civil juristic act of bequest to a cohabitant outside marriage, if it does not involve the exchange between money and cohabitation - such as an agreement on testamentary gift for inter vivos support with the cohabitant outside marriage, should not be deemed invalid on the grounds of violation of public order or good morals. When the obligation of fidelity to the couple is violated by cohabitation outside marriage, solutions can be sought in the legal provisions of the marital relationship. |
| Key words: Testamentary Gift, Cohabitation Outside Marriage, Public Order or Good Morals |
