Testamentary Freedom And Restrictions On Research

Great changes have taken place since reform and opening up, with China's rapid socio-economic development, many families now have accumulated a certain amount of property, so natural beings will use testament to sanctions more and more property, which has fully demonstrated the strengthening of consciousness and the rising ability to exercise their rights according to law. However, some people think that they can completely in accordance with their wishes treat property without being influenced by any factor. Thus, the number of inheritance disputes is growing. However, because of historical and technical reasons, there are some drawbacks in China's "law of succession". During the course of judicial practice, also because of defects in the law, the same situation brought about a different verdict, and the controversy triggered many academics. Fortunately, at present, China is formulating its Civil Code, and the law of succession will be one of the series. The author hopes that by analysing the wills' freedom and restriction, the relevant legislation is put forward to improve our proposals,and promote the improvement of the system.This paper is divided into the following four parts:The first part, "the proposal." Briefly on the three related cases, and the issues raised should be straightened out, the main problem is whether testament free is absolutely free? And how to restrict testament freedom? Whether the customs can determine the validity of testament wills?The second part," freedom of testament and the need for restrictions." This part mainly from the theoretical level explains separately the need for freedom of testament and restrictions. the existence of freedom of testament lies in the requirements of family functions ,the respect to the party autonomy, and the protection of property ownership and so on. Restrictions on freedom of testament and probate are based on the need to prohibit the abuse of rights and on the demands of marriage and family system requirements.The third part, " the legislative and Analysis of overseas freedom of testament and restrictions on freedom of testament." This part firstly introduces restrictions on freedom of f testament abroad, and then assess two aspects about Legal portion and customsIn the comparative analysis, we can see that the special characteristics of Legal portion is legally mandatory, inherent, as legal successor of the conditions ,the advantages is a workable, conducive to the realization of next of kin dependency, emotional comfort and protection of the interests of the community. In the customs, after the type of foreign countries, universality, clarity, to the actual operation, to a large extent, which solve the public order and good customs areas' difficulty to be wavering, the lack of practical application of the disadvantages. freedom and the need for.The fouth Part "China restrict freedom of testament and the legislative restrictions status, the deficiencies and the proposal of improveing." Firstly, the freedom of testament and the legislative restrictions should be straightened out. China's Law of Succession offers the citizens the broader freedom of testament and the freedom are also limited. Secondly, our existing legislation is obviously inadequate. For example, the intensity on restrictions on freedom of testament is not enough, and the existing provisions exist in name only, which is difficult to achieve the protection for the heirs. About whether it constitutes a breach of social morality, although the request will not harm the interests of the social public, however, due to the lack of specific provisions, it is difficult to apply it to solve practical problems. Finally, the analysis presented should be based on its national conditions, learning from foreign legislative, on the basis of perfecting China's restrictions on freedom of testament legislation to conform to the trend of world legislation, and the maximum realization of fairness and justice. In the specific restrictions on the methods of free testament, the proposal of building a special use will stay in the Legal portion and the system of customs restricting the type of free testament.