On Restriction Of Testamentary Freedom

The revision of "inheritance law" has always been an issue of great contention in recent years. Testamentary freedom is no exception. The mainstream view is that Chinese inheritance law has practically no effects on the restriction of testamentary freedom and therefore can not guarantee the rightful succession. Property inheritance strides over the two fields of family and property, and it usually happens within the family. As the testator is within the family, wills sanctions are therefore different from the general behavior of the property. As a result, a will is supposed to undertake obligation. However, the question is that testamentary disposition is the disposition of property in nature. Ownership rules of the law of property confirm that property owner has the freedom of disposition. Following the principle of autonomy of private law, can testator fulfill the exercise the testamentary disposition? Can testator remove the inheritance of legal successor? Is it necessary to impose restrictions on testamentary freedom? These questions should be solved before the revision of Chinese inheritance law. Thus, it is of theoretical and practical significance to explore the restriction of testamentary freedom.This PhD. Dissertation includes the introduction, the main body which has five chapters and the conclusion, about200thousands words.The introduction explains the background and significance of subject selection, researches on the subject both home and abroad, research methods adopted, outlining of the thesis, and potential findings and drawbacks of the research.In chapter one, the dissertation explores historical origin of restriction of testamentary freedom in both china and the west, identifying rules and characteristics of the historical development of restriction of testamentary freedom. The results show that both China and the west have testamentary system, but not on the same level or sharing the same history of evolution. Testamentary system originates from the ancient Rome law, and almost all western countries’testamentary system either directly descends from ancient Rome law or draws from it. In the ancient Rome law, testamentary system has established fundamental principles of inheritance under a will——freedom of will——and along with it comes a system of restrictions on freedom of the will. After the fall of Rome, Nordic established many realms. With the spread of Christianity, testamentary system of Roman law blends with Nordic unwritten law and was adopted in many Nordic powers such as France, Germany, and England, gradually evolving into two totally different styles of testamentary system of Civil law and common law. Due to collide and confluence of interests among individuals, family and society, the restriction of testamentary freedom exhibits different historical characteristics in different periods. In ancient china, succession system emphasizes intestate succession, and has remained so the next one thousand years with testamentary system being an exception. However, the situation began to change at the end of the Qing dynasty when Western laws were introduced into China. It is then that a modern testamentary system was established. In one word, the development of will undergo from absolute liberalism to relative liberalism.In chapter two, the dissertation elaborates theoretical principles of testamentary freedom. The system of testamentary is the principle of autonomy of private law in nature. In the modern civil law, the material basis of testamentary is private property right, which possesses legitimacy and rightfulness by the standards of natural law or positive law or from the view of utilitarianism. Thus, private property right constitutes the kernel and cornerstone of disposal of legacy. The theoretical basis of testamentary freedom is based on an assumption that testator is a rational human being and law-makers thus have enough reasons to suppose that testator can make a right decision. At the same time, testator is also a kind-hearted member of family, so he can handle reasonably the interests among individuals, family and society. The legal effect of testamentary disposition occurred after the death of testator. The source of validity is an extending of personal property right. Whatever this extension is natural or logical, testamentary freedom is necessary for the development of people’s life and society. The reasons are as follows:it may complement the intestate succession; reduce disputes in inheritance; promote family harmony; solve the problems of the elderly maintenance; encourage people’s self-reliance; promote the development of social welfare issues and make it possible for the testator to bear social responsibilities. Therefore, the principle of freedom of testament should be the fundamental principle of inheritance under a will.In chapter three, it is mainly about the theoretical basis of restrictions on testamentary freedom. Any right or freedom is provided with relativity. There should be restrictions. This is also true with the property right. The right of will, as the extending of property right which, like any forms of freedom as well, should be governed by human rationality and law. The abstract concept of a rational human being is the basis of testamentary freedom, while the actual testator who is not perfectly rational serves as the foundation of restrictions on the right of will. The finiteness of the people’s rational thoughts make one do some wrong things that legislators do not expect during the civil legally activities. Thus legislators should put a limit to testamentary freedom. Any behavior that is a violation of individuals’ right or public interests should be banned. Otherwise, it should be free. The right of will is opposed to the right of heritance, providing a different viewpoint to the rightful inheritance of successors. When taking into consideration of the nature and source of heritage, the absoluteness of property rights determines the principle of the testamentary freedom. Thus, the testator has the right to full heritage disposition and he can deprive the right of legal heir to the heritage in his will. However, from a different point of view of the family, which is a team formed by individuals, its ethical characteristic determines the legal successor to expect the natural inheritance, for a individual’s property shall be transferred into family property after one’s death, if not all, at least a part of property should. Thus, these kinds of rights originating from morality should be acknowledged by the society and law. So, results depend on the point of view. However, no matter examined from what point of view, it is both legitimate and rightful to acknowledge a will’s disposal of heritage. This is because to fulfill a will is an extension of the testators’ obligations after death. Meanwhile, it is also based on the needs of social and public interests:testators should not abandon the people who need support themselves to society or country. There are two kinds of models in family for the limitation of freedom:the traditional one, and the modern one. Both of them can have great disparities in the extent of restrictions. The testators in family standard can not deprive the rights of rightful heirs, while the testators in individual standard can deprive their rights to the heritage. Different cultural traditions and values are manifested in different countries. Family models and legislation standards also vary from country to country. As a result, the restrictions of testamentary freedom also differ in different countries.In chapter four, a comparison of the system of restrictions on testamentary freedom is conducted between mainland legal system and Anglo-American law system. These two legal systems have both similarities and differences."Relative liberalism" is practiced in both systems, imposing a certain extent restriction on testamentary freedom. Thus, testators are not able to dispose their possessions freely in both systems. Civil law countries are characterized by Specific Reservation System, which determines that the heritage of the legal heirs of the decedent are entitled to a fixed share of the inheritance and the testator can not rule out their rights in the will. This is the result of the influence of the traditional family. In common law countries, with the rise of individualism, the testamentary disposition of property are thus more highlighted. Consequently, testators have greater freedom in property disposition. Still, dependency on family members is what testator can not be circumvented. These two legal systems differ in legal concepts. As well, specific legislative mode and operation rules are also quite different. Civil law predetermines restrictions on testamentary disposition legally while common law countries, usually by way of judicial discretion, correct deviations from the legislative purpose. As for the range and qualifications of rightful successors, the reserved amount of heritage and the protection of the survivors’rights, both systems exhibit advantages as well as some shortcomings.Chapter five examines China’s legislative drawbacks manifested in a shortage of reservation system and offers some legislation proposals. Of the current law of succession in China, a small range of the rights of beneficiaries of the reservation system is small. At the same, the system also provides no guarantee for the rights of the spouse, or a definite amount, or temporary protections and measures. So, the inheritance law amendment should be developed to cover this point. In this principle, it should be adherent to freedom of will and support its theories. The legislative interim measures of protection should be established in "anti-circumvention support obligation" security system. In addition, the introduction of a new model is not in accordance with the current legal traditions in our country. As for the perfection of the reservation system, legislation should enlarge the range of beneficiaries to include all the family members, and specify different standards for the different situations. Meanwhile, as for reserved amount, the law of succession should be taken to judicial discretion, to be determined by the court in accordance with the conditions determined by the legislative. Furthermore, the rights of spouse should be preserved in particular. Lastly, in order to make sure that rights of beneficiaries are not to be violated, the legislative interim measures of protection should be established in "anti-circumvention support obligation" security system.