A Research On The Testamentary Freedom

The system of testamentary succession was originated from the ancient Roman period. Primarily, it was to prevent the dispersion of family property by endowing the master of a family to designate heirs in the form of testament. With the development of Middle Age, the system of testamentary succession got a further development. Since the modern times, with the gradual penetration of such conceptions of capitalism as freedom, human right, and philanthropy into the law system, the principle of testamentary freedom was established in which it is recognized that the testator can exclude the scope of heirs, order of succession and allocation principles of heritage shares which are stipulated in law in the form of testament, and make his or her own way to appoint heirs by testament or devisees, settle allocation principles of heritage shares, dispose partial or whole heritage or bequeath heritage to the state, other social organizations or anybody beyond the scope of legal heirs. In the meanwhile, with the development of testamentary succession, the autonomy of the will which was gradually formed and perfected is the foundation of the principle of testamentary freedom, moreover, the system of legal act theory is the origin of testamentary freedom, and also, the Constitution is the basic legal theory and system structure of testamentary freedom.However, with the development of society, considering the protection of public interests, public morality and the heritance right of legal heirs, most countries have established the system that restricts testamentary freedom, for example, form requirements of testament, legitimacy of the content of testament, content in accordance with public order and good customs, all of which are restrictions on the testamentary freedom and regulated in the form of compulsory laws. Among all restrictions, the most important is the establishment of legal portion system in testamentary succession, which plays a significant role in constraining the testamentary freedom and protecting legal interest and rights of legal heirs.Chinese Law of Inheritance adopted in 1985 also confirms the principle of testamentary freedom, which is mainly reflected in provisions of Article 16: Citizens can dispose their personal property by making a will in accordance with provisions of this law and specify the executor. Citizens can designate one or several heirs to inherit their personal property by making a will. Citizens can also bequeath their personal property to the state, collective or other people beyond the range of legal heirs. The principle of testamentary freedom stipulated in Chinese Law of Inheritance plays a tremendous role in protecting citizens'ownership of property fully, giving full play to the family function, preventing and reducing family disputes, and etc.When the principle of testamentary freedom is stipulated in Law of Inheritance, at the same time, the system of obligatory portion is taken as the vital way to restrict the principle. The system of obligatory portion refers to the provisions of Article 19 and 28 of Law of Inheritance: in the will, the necessary share must be retained for those heirs who are lack of the ability to work and also have no source of living. In heritage division, the fetal share of heritage must be retained. When the fetus was born dead body, the reserved share should be allocated according to the statutory succession. The system of Obligatory portion has important significance in strengthening the economical function of the family, protecting the legal interests and rights of dual deficient people and fetuses, and in adjusting to the world trend of inheritance legislature; but, with the social economic development of China and the increase of personal wealth, there are many new problems emerge in the application of the principle of testamentary freedom, what is more, many cases in social life indicate conflicts between the principle of testamentary freedom and the purpose of inheritance system, public morality and other related laws. These conflicts shows that the system of obligatory portion in Law of Inheritance more and more reveals that it can not achieve full restriction on the testamentary freedom in the process of application. Shortcomings are mainly reflected in aspects of inadequate protection of most legal heirs, harsh standards of obliges of obligatory portion, uncertain standard of share, and unsound protection system of the obligatory portion right, and etc.In essence, principles of testamentary freedom in other countries are also ones of limited freedom, in which the system of legal portion is the major way taken by other countries to constrain the testamentary freedom. The system of legal portion which can dates back to Roman Law is that when disposing heritage, the testator must retain certain heritage shares for legal heirs in a certain range, or can only dispose part of his or her heritage. If certain heritage shares are not reserved, heirs who enjoy the right of legal portion have the right to require heritage complement that deserved. The part that testamentary disposition is over the power is invalid. In the development process of legal portion system, the Germanic Family of Laws has played a decisive role in the formation of legal portion system in countries with Mainland Family of Laws, especially French Family of Law. In today's world, many countries set up the system of legal portion, such as countries of Mainland Family of Laws: France, German, Switzerland, Italy, and Japan, etc. Anglo-American Family of Laws: England and America, etc. All of these countries restrict the testamentary freedom through the way of legal portion system with basic aims of protecting the legal interests and rights of legal heirs and maintaining the system of inheritance.Though system of obligatory portion in Chinese Law of Inheritance is also a way to restrict the testamentary freedom, there are still many differences compared with system of legal portion in other countries, such as in aspects of the nature of right, the scope of application, the certainty of quantity, the scope of subject of right, the restriction degree of the testamentary freedom, the applicable procedure, the discretion right of the judge's in judicial practice. Compared these two systems, it is discovered that system of legal portion is more scientific that obligatory portion of Chinese Law of Inheritance in aspects of restriction on the testamentary freedom, protection legal interests and rights of legal heirs, realization of basic aims of inheritance system, and etc.Due to the imperfection of system of obligatory portion, the system of legal portion should be established in Law of Inheritance in order to preserve the concept of family ethnics, protect adequately legal heirs'right of inheritance, coordinate relations among specific systems of inheritance law, enhance the protection of the spouse's inheritance right, meet requirements of dependency by near relation and protection of social interests, and promote the unity and integrity of Chinese civil law and other countries.As to design the system in detailed, the system of legal portion in Chinese Law of Inheritance should learn from the experience of legislation in other countries. Through clearly define the range of the obligee subjects, establish the fixed standards, clarify the specified calculating method, regulate the right of relief and the deprived systems depending on the laws for the system of legal portion, totally these other aspects, in order to formed, and complete the domestic system of legal portion, with a hope of perfecting the inheritance law of China, enriching the connotation of the principle of testamentary freedom and protecting fully legal interests and rights of the testator and heirs.