On The Restriction Of Testamentary Freedom

As one basic principle of modern inheritance law, testamentary freedom is the embodiment of the autonomy principle of civil law, and it’s also the respect and guarantee of individuals’property rights. However, any freedom is relative. As the legalization of interests, right is the freedom in the scope of law, so there is also a boundary of testamentary freedom. On the premise of upholding the testamentary freedom principle, imposing adequate constraints upon China’s existing testamentary freedom not only conforms to the nature of private law, but also is in line with the traditional family ethics. What’s more, it’s conducive to the promotion of social harmony and progress and the balance of legal value such as freedom, justice, order and efficiency. This dissertation demonstrates the theoretical basis to restrict the testamentary freedom and reveals the real problems caused by the excessive testamentary freedom in our country through statistical analysis of judicial practice in recent years. Also, it collects the public’s opinions of restricting the testamentary freedom through questionnaires. Feasible suggestions which are based on the comparative research of restrictions on testamentary freedom of two important legal systems and connecting with the concrete situation in our country are put forward to improve our restriction system of testamentary freedom.In addition to the preface and conclusion, this dissertation is divided to three chapters.The first chapter mainly demonstrates the legitimacy to restrict the testamentary freedom from the theoretical basis and empirical study perspectives. Freedom implies appropriate restrictions, so reasonable restrictions on testamentary freedom is not only consistent with private law and social ethics, but also reflects the pursuit of legal justice. Overly broad testamentary freedom will destroy the harmony and stability within the family and increase the social economic burden and impact of social ethics which will seriously affect the balance between fairness and order, individual interests and social interests. In recent years, inheritance disputes caused by excessive freedom of testamentary tends to be increasingly complex and the number is also rising which can reveal the defects of our existing inheritance law to some extent. By questionnaire survey of "testamentary freedom and restriction", I understand the general public’s attitudes towards the restriction, the degree of acceptable restriction, the range of beneficiaries and other related issues which can provide advice for specific design of the system.Chapter Two classifies and analyzes the two legal systems’ representative nations’legislation of restricting the testamentary freedom through comparative study method. Common law adopts "abstract restrictions", which establishes the alimony system and gives judges discretion to determine cases at the same time, while "specific restrictions " of civil law directly provides forced heirship system to leave fixed share of the estate to particular beneficiaries. The shift from individual-based to social-based standard gives new meaning to rights such as freedom, ownership, etc., so interests balance and good social effects have become a new goal except for protecting private rights. Therefore, imposing adequate constraints upon testamentary freedom has become an international trend.Chapter three discusses the improvements of our existing testamentary freedom system. Firstly, under the guidance of principles of interests balance and necessity, we should delineate the scope of testamentary freedom which can make testators know the share of estate they can dispose clearly, so as to achieve testamentary freedom better and balance the interests of all parties. At the meantime, determine the range of heirs and protect their legitimate interests with the property which the testators are forbidden to dispose. Finally, the specific system establishment of the suggestions above can be complemented by improving our existing compulsory heirship system and introduce the forced heirship system of the western countries,.