On Constrsuction Of The Special Portion System

Nowadays, restricting the freedom of testament is prevailing worldwide in legislation. The Special Portion System,which is a restriction of freedom of testament,can be found in many of the countries in the Continental Law System. According to the System of Special Portion,testators can only deal with part of the heritage except the Special Portion. That is to say,if the testator set aside the Special Portion,he can deal with the other heritage freely without violating the customs and habits. And the heirsat law,especially the spouse,children,and parents,are entitled to the Special Portion, and in this way their interest of inheritance is partly protected. The Special Portion System effectively balances the conflict between the interest of inheritance of the heirs at law and the testators'freedom of dealing with their heritage.Moreover,the Special Portion System as an intervention of personal conducts has been used by many other countries for years and is regarded as a mature system.This paper looks into some basic issues of the Special Portion System in the Inheritance Law of other countries,compares the relevant regulations in the Civil Laws of other countries,and comments on the deficiencies of regulations of Compulsory Portion in the Inheritance Law of China,and proposes a notion of constructing a of Special Portion System in China.This paper falls into four parts:The first part analyzes the historic and realistic factors leading to the lack of force heirship system in China. It comparatively analyzes the similarities and differences of our necessary and forced heirship systems,and the irrespective disadvantages as well.The second part focuses on the necessity of constructing the Special Portion System in china by analyzing the relationship between the Special Portion System and the restriction of the freedom of testament,the rationality of the Special Portion System,the its practical significance in China.The third part analyzes some typical systems of Special Portion in Continental Law System and Common Law System,compares them to the System of Compulsory Portion in China,and then points out that it is high time for China to construct her own of Special Portion System.The forth part puts forward some legislative suggestions on constructing the Special Portion System in China from the aspect of subject,portion,and abatement of the Special Portion.