Will Discretion And It's Boundary

Will discretion is the embodiment of party autonomy in the field of inheritance law, which is also the reflection of respecting the will of individual and representation of personal autonomy. Will discretion is a kind of restriction on the public power, and it can maintain the individual's interest, who is in the relatively weak position. Moreover, will discretion can protect individual's right of disposition, sustain family ethical relations and family relationships, and lighten burden on society. However, if will discretion surpasses certain limitation, it will produce opposite effect-testator disposes it's property according to his own willingness regardless of family bond and it can lead to unfair property distribution. Family is the basic unit, playing an important part in the society. The testator's behavior of damaging family member's inheriting interest only can produce one result-it will break family relationship, and push some people who should be fostered by family to society, blocking the development of society. Nowadays, our country is lack in limitation to will discretion. We can see that from a phenomenon that similar case get different verdict in different district. So we should restrict will discretion in certain extent in order to perfect succession ex testament.This dissertation is divided into five parts.The first part summarizes the basic meaning of will discretion and then points out that will discretion is the bended product of personal and national interests. With respect to the powerful nation, only give individual a certain degree of freedom can maintain individual legitimate rights. Then points out the value of will discretion. It is the expression of principle of free will, exercising property ownership。Meanwhile, will discretion can reduce disputes, keep family relationship harmonious, make up deficiency of statutory succession. The second part mainly talks about principle foundation of will discretion's boundary. This text divides the principle foundation into three parts: the relationship between freedom and restriction; the regulating significance of natural law; the theory of act and legal act can't be divided.The third part introduces the limitation of will discretion abroad briefly, and then talks about connotation of forced heirship system abroad.The forth part is the centre of gravity of text, and it illustrates the restriction of will discretion. Will discretion can't disobey the regulation of law, socialist morality, good customs. The obligate points system for fetus and the necessary patrimony system are also limitation to will discretion. Mutual will system is gradually recognized in our country, and becomes the restriction for will discretion.The fifth part emphasizes some suggestions for the restriction of will discretion. We should establish forced heirship system, perfect obligate points system for fetus and the necessary patrimony system, and we should also make some limitation on the testator's property disposition.