Study On The Legitim System

The will discretion is the concentrated expression of party autonomy in Inheritance Law and the best manifestation that law provides ownership of citizen's property with overall protection. But no restrictions of absolute freedom is not reasonable and unrealistic, absolute freedom will inevitably lead to rights abuse and therefore freedom is relative, and there is no exception with the will discretion. Only to limit the will discretion properly, can we truly achieve the overall protection of citizens'property ownership goals. So the will discretion restrictions stipulated in China's Inheritance Law is:Wills must for those who have neither life source nor Labour force heir retain the necessary share of property.This rule in a certain extent restricts the will discretion and is regarded as the legitim system in China's Inheritance Law.But what we must realize soberly is that,compared with abroad,the legitim system in our country still exists many gaps and defects, such as, right subject range, special leave portion of the share and system integrity. At present, the legitim system in our country can not adapt to the social life of the actual need, therefore, it is necessary to modify and improve it to make it play a better role, based on the foreign advanced experience.By brushing up with the historical origin of the legitim system, this paper studies detailedly on the legitim system in typical countries of Continental Law system and Common Law, and analyzes the defects of our legitim system and the perfect necessity, as to put forward some concrete ideas and suggestions on how to perfect our country's legitim system.The main body of this paper is divided into three parts,The first part is on the history origin and comparative investigation of the legitim system. In this part, the paper first carries on careful combing the history origin of the legitim system. Appearing as to restrict the will discretion, the legitim system originated in ancient Rome, and in Roman law times played a tremendous value. Putting eyeses on the great value of the legitim system, European countries inheried it and combined it with the national actual, and furtherly developed it. Next, the paper summes up its unique value. In addition to limiting the will freedom, balancing the value of the relations between various conflicts of interest, the legitim system but also can help maintain family functions, safeguard social harmony and mitigate the family relationships and social burden etc.The second part is on the legitim system of foreign law comparatition and legislation and defection of our legitim system. Firstly, the paper is about the comparative investigation on the current state of the two law systems. Continental Law system of typical countries such as Germany, France's legitim system has been quite complete and mature. Continental Law system country's legitim right subjects are mainly spouse, children, parents and other legal heir, and they also state clearly and definitly about the leave share. They also generally and detailedly stipulate the deduct right of the holder of the right, effectively protect the right of the legitim system. Although there is no such" legitim system" expression in Common Law system countries, a similar appellation in essence with the legitim system is identical.Countries of Common Law system's subject arrange is much smaller than Continental Law system countries, and is basically limited to their spouses and children. But Britiain dose not define the share of the legitim system clearly, just stipulated a fuzzy standard-- "appropriate".By comparison, we find that the legitim system in continental law system country is more complete and mature, many advanced experience and practice are worth our using for reference.Next, this paper analyses the three defects of the legitim system of our country:the one is which makes the right subject excessively strict, resulting in the right subject range too narrow. The second one is we have no definite stipulation of the share of the legitim system, and the only existing fuzzy standard "necessity" greatly reduces the operability of the legitim system. The last defect is our legitim system is too simple to conform a complete system, and too many related contends are not stated into the law, resulting in the legitim system hard to play its proper function.The third part analysis the defect of the legitim system of our country and the necessity to perfect it. This part is divided into the necessity to perfect and suggestions to the legitim system of our country. First of all, based on the actual situation in our country at present in China, the paper discusses the the necessity of perfecting the legitim system.Next, the specific idea is from five aspects to perfect our legitim system, which are stylistic mode of the legitim system, right subject, share, rights of give up and deprived, protection of the right of the legitim system. As to the stylistic mode of the legitim system, a detailed analysis on the countries'legislation in four typical style mode, points out that China should be based on the future of civil law structure to determine the appropriate style. About the right subject of the legitim system, the author advocates profits from the continental law system country practice, gage legal heir perceptron as the right subject, and compares the first order and second order legal heir apparent to the provisions for the first order and the order of the legitim system right holder. About the share of the legitim system, the author thinks that the share of the statutory successors shall, on the basis of inheriting share to provisions, to leave portion of the share, the first order and second order of the right holder enjoys their share of inherited one half and one third respectively. About rights of give up and deprived, the author considers that abandon inheritance means giving up compulsory portion rights, but give up compulsory portion rights does not means giving up abandon inheritance. Depriving compulsory portion rights, can apply the provisions of the succession law on inheritance deprivation, and take some serious harm to the decedent feelings and behavior of interests into the deprivation of situations. About compulsory portion protection, the author holds the idea that, our country should adopt the practices of the continental law system country to make rules on deduct right allowing the right holder of the decedent was given, will dispose of and bequest property proposed deduct request, in order to protect their compulsory portion.