The Limitations Of Testamentary Freedom

The principle of the freedom of will is an important principle of testamentary ofsuccession system. And it is directly related to the exercise of the rights of the testator.The provision of succession law which was made by our country in1985ontestament clearly shows inadaptability with social reality in many years later, so thatthe restrictions of the principle of inheritance freedom are also faced with beingmodified and perfected. Seeing the sanctity of freedom, we should also see therelativity of freedom in the law. Therefore, in order to the coordination anddevelopment of the interests of individuals, families and society, we should makeappropriate restrictions on the principle when the freedom is exercised excessively.There are also many academic articles about the limits of the principle of inheritancefreedom, but few from the ethical perspective. Ethical is one of the basic features ofcivil law and it is the criteria of the relationship between people and dealing with therelationship in society. Morality is a kind of value with personalized subjectivitywhile ethic is a kind of value specification which is prone to be socialized andeveryone must abide by it. In this meaning, both the morality and ethical have nomuch difference in actual use. From an ethical perspective, the ethical characteristicshowed from the principle of the freedom of will in inheritance law is stronger andcan more accurately grasp entry point of restriction at the time of study. In the processof the implementing the principle of freedom of testament can inevitably meet theconflict situations of individual interests, family interests and social interests. Underthis situation, we need seek equity measures which are neither make freedom withoutlimit nor make excessive restrictions on this principle to coordinate the problemabove. Under this background, this article hope to summarize its own point based onthe ethical analysis on the restriction of the principle of the freedom in will, so as toprovide beneficial reference for legislation and legal research.This paper makes all-round and multi-level discourse and discussions on thelegal limit of the principle of inheritance freedom from the angle of ethical valueswith the methods of historical analysis, comparative law and so on. The full text isconstituted of introduction, main body and conclusion. The introduction introduces the writing background, motivation, the paper research methods and the structure andthe internal logic of the article, also further express the purpose expected. The mainbody is roughly divided into four levels on the structure. First of all, it makessystematic overview about testament and its freedom which pointing out its historicalorigin and development trend on the testament and the testament freedom, generallyunderstanding the legislation background and development process, summarizing thecurrent situation and the contemporary civil law for protection of the principle ofinheritance freedom. Secondly, it analyzes the reason that the principle should berestricted in the rapid development of the contemporary society from ethicalperspective. In the interests of individual level, it points out the positive effect ofthe personal freedom, autonomy or private law autonomy, freedom punishment, andat the same time it also points out the negative influence of excessive exercise andimproper dispose of the three above, so it further reveals the proper limits of theprinciples of the freedom of will. From the family interest perspective, it analyzes thegreat role which family plays, and family’s indispensability, and points out that weshould make restrictions when the freedom is exercised excessively in order tomaintain the family interests. Starting from the interests of the whole society, itmainly analyzes the limited effect of the principle of public order and morals, andstresses the necessity of using the public order and morals to limit the principle of thefreedom in inheritance. Again, it raises our regulation measures for the principle ofinheritance freedom and its existing shortcomings and unreasonable place on thebasis of the combination of mistress legacy case in Luzhou. Finally, it puts forwardsome suggestions on value orientation and system construction in view of deficiencyof the principle of will freedom in our current inheritance law in order to contribute tothe succession law modification in the future.