Study On The Limitation Of Testamentary Freedom Of China

The freedom of testament means the deceased’s devolution of property right ondeath. As one of the important principles of the inheritance law, the freedom oftestament embodies the protection of citizen’s private ownership and the respect forthe individual will, like the party autonomy principle. It is a symbol of the evolutionof human civilization, and shinning with the brilliance of the modern civil law.However there is a limit to any freedom, there is no exception. The excessiveexpansion of power is always accompanied by the abuse of power.The Human naturedetermines that human’s behavior always affected by personal likes and dislikes andinfluenced by emotional factors, it is the reason that people do harmful to theinterests of the state, society and other family members. The phenomenon isinevitable just rely on moral. So we should not only respect the freedom of testamentbut also set up a safety barrier. The testators should exercise their freedom oftestament within the scope of the barrier reasonably, then he can exert his maximumautonomy and does not damage the interests of others.Countries all around the world have a positive attitude on the problems oflimitation of testamentary freedom. They all taken same measures to limit thetestament freedom. The formulation of the measures are influenced by ethical,marriage family system, and so on. Many countries have setted up some rules inprinciple, include that the will behavior shall not conflict the law, shall not violatethe public order and good customs. In addition they have legislated some regulationsto limit the freedom of testament according to their own national conditions. Intoday’s world, many countries set up the measure of forced heirship to restrict thefreedom of testament, such as countries of Mainland Family Laws: France, German,Italy, etc. Anglo-American family of laws have the measures of maintenance fee,dower, curtesy, elective share of surviving spouse to restrict the freedom of testament.Though the measures in Mainland Family of Laws and Anglo-American family oflaws are different from each other, they are all an equilibrium between freedom of Testament and other benefits.China’s restrict to the freedom of testament reflect on the nineteenth article in“inheritance law”, the twenty-eighth article in “inheritance law”, the thirty-seventharticle in “some suggestion on the implement of ‘succession law in China”’, theforty-fifth article in “some suggestion on the implement of ‘succession law inChina’”,the sixth-eighth article in “some suggestion on the implement of ‘successionlaw in China’”.We always call them “mandatory share”, the “mandatory share” hasmade a “restricted area” in micro. Besides, the seventh article of the civillaw-principle of public order and good customs defines certain boundary for theprinciple of testament freedom in the macro. Macro principles and the micro shallcooperate with each other, to make contributions for restrictions on freedom oftestament in a certain extent. However, this contribution is far from enough, thesystem has many defects.In this paper the author will summarize these defects.There is less restriction in our testamentary freedom legislation is not thepursuit of freedom of testament, but decided by the specific political, economic,social background. China’s inheritance law has been more than thirty years, the legof legal makes the system can not effectively regulated the behavior. At present,China is making “Civil Code” on the occasion, I hope inheritance law in the future"Civil Code" can make the relevant provisions to find the right bottom line for thefreedom of testament. To improve our limitation of testamentary freedom oflegislation, the article proposes the following suggestions:(1) to improve thenecessary heirship system in china.(2) to construct “spouse of legitim system”.(3)excluding interest protection of health adult children.