Will Freedom And Necessary Restriction

The will is one kind of legal act by which the citizen disposes of property before his death under the law and which becomes effective when the citizen dies. Regardless of the ancient and modern, all countries, to a greater or lesser degree, established the will freedom principle and caused the will inheritance to be accepted by the modern society generally.Our country's law of succession also affirms will freedom, but it lacks restriction, thereby cannot avoid effectively testators' abuse of will freedom. The two cases 'Zhang Xueying vs. Jiang Lunfang 'and 'Million Legacy in Hangzhou' demonstrate that our country's law of succession has flaws. When will freedom and restriction conflict, should we choice one or keep the balance of will freedom and restriction through analyzing in methods of economics, sociology, philosophy of law and comparative law.There are five parts in this dissertation.The first part summarizes will freedom by analyzing the law rule and historical origin. Will freedom principle is the important principle of the law of succession, because its functions are to respect testators' autonomy of will and to protect ownership drastically.The second part points out the reason why the principle needs necessary restriction, in methods of philosophy of law, ethnics, sociology and economics. The first reason for restriction is the ethical factor of private law. The second is the functions of private property to the family and society.The third part, by comparing the restrictions of two legal systems, points out the flaws of the necessary patrimony system, in order to perfect the inheritance law in China.The fourth part emphasizes that testament freedom and restriction will cause conflicts of rights, which will be solved through the jurisdiction and legislation. On the one hand the judge can exercise the "rights of balance" principle and the "good and honest customs" principle to solve the conflicts. On the other hand, our own forced heirship system should be constructed in legislation.The final part is to construct our own forced heirship system, including possessor, the proportion regulation, the calculation basis, the method of deduction and deprival of forced heirship.