On Restraint Of Testament Freedom

Testament system originates from Roman law, whose connotation is same as be unable completely in different history periods. Free principle of testament has been that the modern inheritance act is hit by important one base, it has embodied meaning sufficiently exercising autonomy, thoroughness being also right of ownership of property to citizen individual has protected. Any freedom is relative, the testament is free the exception, has to give to the person neither restricting rationally. According to the tradition family ethics concept and the private law, this essence is beneficial to defending individual rights and harmony and progress helping promote society better, too.There are a little different on continent genealogy of law and UK-US genealogy of law design restricting system freely in testament, but the way of the work of most countries choose at present is the legitim system to restrict the freedom of testament, Legitim system passes content clearly such as regulating the range of oblige, portion of the legitim, buckling subtraction right, is useful to restricting the freedom of testament, adjusting public wealth assigning the unfair effect, realizes the balance between the individual benefit and the society benefit, between freedom and order, it is also easy to operate comparatively.Our country also pursues the relative liberalism of testament, but it is unable to do as well as one would wish that only depend on necessary reserved portion system to restrict testament liberty evidently. As far as real national conditions and law tradition of our country be concerned, should restrict the system mainly from two the following aspect to testament liberty additionally perfect: First, the legislation experience using continent genealogy of law for reference structures the legitim system being suitable to our national condition and being able to blend with our country legal system each other; Secondly, reserve the necessary reserved portion system and improving and perfecting, system goes side by side with it and the legitim suitable for use, adopt one’s strong points while overcoming one’s weak points.This article consist five parts. The first part, by analyzing the law rule and historical origin of freedom of testament, point out the essence of testament; the second, expounds the necessity of restriction to freedom of testament; the third, the legislative and analysis of foreign freedom of testament and restrictions on freedom of testament, leads to legitim system; the forth, analyses the flaws of the inheritance law in China; the final part is to construct our own forced heirship system, including possessor, the proportion regulation, the calculation basis, the method of deduction and deprival of forced heirship.