Testament Freedom And Its Restriction

Testament freedom is one of citizens' most important rights. It incarnates parties'autonomy of will which is the value of civil law, nation's regard for citizens' freedom,and comprehensive legal protection of ownership. However, any freedom is relativeand limited, including will freedom, which needs proper restriction based on socialbenefits and legalization of morality. This dissertation's logic is firstly to analyze thehistory origin of will freedom principle, secondly to affirm the value of will freedomprinciple, thirdly to discuss the reason why this principle needs proper restriction andthe method of restriction, and finally to construct the will restriction system in ChinaThe dissertation starts with Jus romanum, which has perfect will restrictionsystem, reviews will and succession in Middle Ages and modern times, and sorts out thehistory of will freedom principle. It affirms that will freedom principle is the basicprinciple of the law of succession. Our country's law of succession also affirms willfreedom, but it lacks restriction, thereby cannot avoid effectively testators' abuse ofwill freedom. The dissertation demonstrates that our country's will freedom needsproper restriction, through analyzing in methods of philosophy of law, ethnics andcomparative law. Finally the dissertation constructs China's restriction system of willfreedom according to the situation of our country.There are five parts in this dissertation:The first part starts with Jus romanum, which has perfect will restriction system,then sorts out will restriction systems from ancient Rome, Middle Ages to modern times.This part analyzes in the angle of history the reason why will freedom principle wasestablished.The second part is to analyze legislation value of will freedom principle. Itsfunctions are to respect testators' autonomy of will and to protect ownershipdrastically. Both functions are the reason why modern countries affirm will freedomprinciple, and also why the active law of succession in our country reestablishes suchprinciple.The third part is to research the reason why the principle needs proper restriction, inangles of philosophy of law, ethnics and economics. It illuminates that any freedom isrelative and limited, so will freedom principle should be restricted properly andreasonably.The fourth part brings forward justice, the standard to evaluate the restrictionsystem of will freedom. The author also use such standard to evaluate the activerestriction system of will freedom in China and the current "" system in civil lawcontries. Through analyzing at the aspect of comparative law, the author illuminatesthat there is some improperness in our county's restriction system of will freedom,while the current ligitim system in civil law countries accords with justice more. Sowe should construct our own ligitim system referring that in civil law countries.The final part is to try to construct our own ligitim system, through analyzing atthe respect of comparative law the juris possessor of ligitim, the proportion regulation,the calculation basis, the method of deduction and deprival of ligitim.