论后位继承制度的立法选择及法的构成

后位继承是遗产利益在继承过程中需要发生多次转移的产物 ,自罗马法的遗赠制度逐渐演化而来。后位继承法律关系是前位继承人与后位继承人之间基于后位继承权而产生的债权关系。后位继承权转化为既得继承权时对前位继承人的期待权亦同时产生。立法上应当大量采用推定的方式来弥补遗嘱人意思表示的不足

On the Legislative Selection of the Institution of Surrogate Succession and the Makeup of Law

Surrogate succession is an outcome of multiple transfers of estate interests in the process of succession evolving from the institution of bequeath in the Roman law. The legal relationship of surrogate succession is one of obligation between prior heir and surrogate heir on the basis of surrogate right of succession. When surrogate right of succession transforms into acquired right of succession the right of expectancy for the prior heir results. In legislation, considerable use of presumption should be made to make up for the inadequacy of declaration of will by the testator.