| Freedom of testation is a significant reflection of theautonomy of private law in the field of succession laws. Freedomis a right endowed by law, however, as Montesquieu once said:“freedom is not unlimited freedom and is permitted by law to dothings.â€Freedom must be restricted by law which is also limitedby various factors such as society, politics, economy and etc.Therefore, freedom of testation ought to be constrained by thefactors including society, politics, economy and etc as well.Along with the constant development of economy in China, as wellas the improvement of material living standards, more and morecitizens lean to distribute their property in the manner of will.Then more shortcomings in the succession law of China becomeapparent. Heated topics such as cases involving nannies of Hangzhouand of Luzhou tend to make us fold books and ponder that: the freedomof testation must be restrained. In fact, the system of forcedheirship will appropriately solve this problem and provide a basicrestriction on the excessive freedom of testation. System of forced heirship is reflected in both continental lawsystem and civil law system, and is also widely applied. It is aneffective method for balancing the interests of heirs and freedomof the distribution of testators. As a system for the state tointervene with individual dispositions, it has been applied inother countries for years with relatively developed legislativeskills. Therefore, this article will starts from discussing thenecessity of limiting freedom of testation, combining with relatedregulations on system of forced heirship in succession laws fromhome and broad, then further analyzes the feasibility of foundingforced heirship system in China, and lastly proposes some ideas onconstructing forced heirship system in China relying on legislativeexperience from abroad.This article includes four sections besides introduction andconclusion:The first part observes the necessity of limiting freedom oftestation from a theoretical depth mainly using philosophical andsociological analyses through the examination of heated casesrecently occurred due to excessive freedom of testation to introduce the study of necessary restrictions of freedom oftestation.The second section introduces the basic situations of forcedheirship system employed by foreign countries to overcome excessivefreedom of testation chiefly using historical and comparativeanalytical methods. Firstly, it refers to legislative experienceof foreign countries to find that forced heirship system is the mainapproach for restrictions on excessive freedom of testationemployed abroad, based on which it introduces the basic situationof forced heirship system such as its birth, development, value,functions and etc. to set foundation for introducing forcedheirship system to China. At last, it observes relevant statues fromcodes of five countries including Germany, Japan, France, Swiss,Britain, and the United States, and of two legal systems and alsoit studies their major similarities to provide references for theconstruction of forced heirship system in China.The third section mostly explains the necessity and feasibilityof constructing forced heirship system in China. This part employsrelevant knowledge from disciplines such as jurisprudence, economy, ethics and etc. to clarify the necessity, feasibility andreasonability of constructing forced heirship system in China fromthe view of various angles and situations. In the discussion ofnecessity, it makes use of comparable approach to compare forcedheirship system with current system employed in China todemonstrate the advantages of forced heirship system. In theexplanation of feasibility, it chiefly observes by using relatedunderstandings of jurisprudence, economy, and ethics.At the end of this present endeavor, the author collects nearlyall the materials of suggestions experts have on the section ofsuccession in civil law code and discovers that scholars alltogether choose to build the system of forced heirship though eachreserving some differences on specific arrangements which is a verypersuasive point in stressing the necessity of construction forcedheirship system. The comparative analysis of suggestions ofrelevant regulations provides vital references for the legislativeconstruction of forced heirship system in China proposed at the endof the article. This article offers specific conceptions ofbuilding forced heirship system in China through the above mentioned sections. It is advised by the author that forced heirshipsystem shall be set down in an individual chapter in civil law codeto show its importance. Specific contents conceived for forcedheirship system consist of the following: the subject of forcedheirship, the determination of amounts and computation standardsof forced heirship, relevant regulations of deduction, the forfeitand waiver of forced heirship, and the prescription of forced heirship. |
