| Testamentary succession is individual property and social wealth to flow and continue, one of the important ways of freedom is necessarily its proper meaning of, because everybody should respect the dead to his front of entrust behind things. It is taking such idea, wills freedom has been identified as big law countries all over the world of the succession is an important principle, namely before fully guarantee the wills life by wills disposition of property ownership of their freedom. But at the same time, we should also be aware that the world there is no absolute freedom, freedom is always relative, no restrictions freedom and not really free, we should insist on the premise of will of its freedom shall be reasonably limit, this accords with the traditional family ethic in China, also can better for individual rights, as well as in protection to maintain and promote social harmony and progress. And our country in recent years some frequent "mistresses" legacy is highlighted the case law in this field in China the blank and weak. Therefore, this requires our inevitable to build a makes maintenance will freedom and rights and interests of family members and social welfare to achieve a relative balance between the inheritance law system state. In China's civil code is being made under the background of building, the more it is of great theoretical significance, and will also help solve our current caused by excessive freedom will judicature practice of all kinds of problems, such as reasonable legal conflict, with the specific provisions or missing, etc, which is what this meaning the purpose of writing.This article through the law sociology, comparative law and the philosophy of law and so on many kinds of methods and Angle of the free legal restrictions will intersectorial multiple level analysis and studies, The article is divided into seven parts:The first part preface, described in this paper expatiates the purpose and meaning and the domestic and foreign relevant research tendency; The second part is free legal restrictions will, expounds the general theory and its legal restrictions will free concept, characteristic and its historical origin, and through our country after a system and the west will leave a system, a comparative analysis of the differences in China, so as to improve the relevant system make matting.The third part is the wills free legal restrictions theory and practice and reflection, the 2000 after more influential in real life the three cases, combined with the analytic related theory, pointed out that our country will review the western world of system and the special leave a system is two kinds of disparate legal system and from the realistic level of wills, freedom is completely necessary legal restrictions.The fourth part for a will free legal restrictions theoretical basis, completely from the perspective of jurisprudence will free legal restrictions on the basic theory, necessity and feasibility are analyzed theoretically, and from the view of the relation of the law and the morals of wills explains the rationality of the need to restrict the freedom.The fifth part is the value of free legal restrictions will mainly to a positioning problem; for the value in the face of wills point, analysis of free legal restrictions the value of existing in the method of conflict problem, we should be how to choose and how to the value of the corresponding method for reasonably counterparts ranking and selection.The sixth into relevant legislative Suggestions on the legal issues and some feeling, expounds the author to perfect our country's legal system, constructing inherited the suitable for China's national conditions of "special leave some view system.The seventh into epilogue, emphasizes the freedom to will the necessity and importance of the legal limit in our country, points out that in this field is "too free" situation, in order to maintain fairness and justice, we deal with a lifetime of its property of freedom more necessary and reasonable disposition to limit. Anyhow, from wills freedom and its legal restrictions, the general theory of foothold in recent years to some focus of discussion of case and reflection, to its theoretical basis, and finally find the freedom of will realize the value of legal restrictions on judgment tradeoffs and, through such context, the author tries to find its legal restrictions will free the balance between this one contradiction, in order to realize citizens and legal restrictions will free the virtuous circle between, as far as possible to reduce unnecessary conflict. Finally, conclusions won't get bogged down in the freedom of all mount for the highest standard and value all laws, the value of all the norms are all serve people this subject, we should according to the different needs of case the decision more freedom to also or maintenance will be more restrictions, the third person and he focuses on investigation of family members, and subjective and objective in this process more consider public morality and social benefit needs. Can't dozen respect personal freedom of the cover of wanton infringes upon the lawful rights and interests and social order. |
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