Research On The Forced Heirship System

The current<Inheritance law> in China has taken effect since1985, in the first validation phase, both economic and national demand stay in relative low level. Although the specific system reflets the limitation of the freedom of testament, the current <Inheritance law> fails to meet the new requirements of society, especially with the continuous development of economy and the adaptation of social concept brought by deepening economic reforms during past two decade. On occasion of the amendment of<Inheritance law>, adding or not the Forced Heirship became a heated topic.The <Inheritance law> in China gives great freedom of testament to citizens, mainly by the article19th and the Compulsory Portion in the article28th of <Inheritance law> which regulate the’limit’ of freedom. In practice, it often performs as cases of protecting the rights of the legal heir by the reason of’public order and good customs’. However, it is obvious that the safeguarding inheritance is incompetent in that the harsh applicable condition and the uncertainty of calculating numbers of Compulsory Portion. Besides, the provision of’public order and good customs’faces censure more and more frequently as the rules of’no escape to the general clause’and’the law regardless of motivation’. The previous two are incapable of taking take effective control to the’limit’of freedom, consequently, the situation when the testator abuses the freedom by depriving the right of inheritance of the heir or gifts all his heritage to others is occurring commonly, in this light, the Forced Heirship becomes a must mechanism to introduce for the perfection of the the testament succession system in China. Because of the differences exist between the Forced Heirship and the Compulsory Portion in legislative goals and their liquidation order of heritage debt, they should be in parallel and concurrently aimed at to balance and secure multiple interests.Since first created in Roma, most countries in the world are following and undertaking the Forced Heirship. Although the reasons of appearance are different in the systems of law, no matter for the prevention of abuse of freedom or for the internal circulation of family property, they are all become the common realistic foundation of its appearance. In that enlightenment, the Forced Heirship is certainly a reflection of development and legislative progress. China should perfect the Forced Heirship system by referencing to the construction achievements in other countries and regions, regarding to both Chinese legal theory and the domestic situation. Besides of the introduction part, this paper is divided into five parts, with a total of morethan30000words, the main contents are as follows:The first part discusses the defects of inheritance system in China and the problems inapplying. Inheritance Testament system of our country does not explicitly given the freedomof testament reasonable restrictions, only rely on the Compulsory Portion System and thepirnciple of public order and good morals to decide whether the testamentary freedom isbeyond the limit and the effect of the will，causing the imbalance of interests among theinherit rights of legal heirs, interests expectations of the devisee and the testamentary freedomof the testator.The second part is the legislative enlightenment of the Forced Heirship System. From theintroduction and comparison of some of the world developed countries and regions in thelegislative status of the Forced Heirship System，points out the absence of the Forced HeirshipSystem in our country and puts forward the legislation enlightenment for constructing therelevant legal system in China.The third part is about the comparison between the Compulsory Portion System and theForced Heirship System. By comparing the difference between the Compulsory PortionSystem in our country and the Forced Heirship System in international legal system, such asthe protection of the object, the settlement order of legacy of debt，the base of calculation,concluding that the two systems should run parallelly in our country〈Inheritance law〉inorder to balance and security multiple interests.The fourth part is discussing the necessity and urgency of constructing the ForcedHeirship System in china.The iffth part is the legislative proposals in constructing the Forced Heirship System inchina. Referencing to the experience of other countries and regions of the Forced HeirshipSystem, combined with China’s national conditions, discusses the hot issues of the ForcedHeirship Right of stepchildren, widoAved daughter-in-law and son-in-law, deriving thelegislative suggestion in constructing the Forced Heirship System in China from aspects ofthe subjects of Forced Heirship Right, the amount，the deduction system, the Deduction Right,waiving and losing of irght and the extinctive prescription etc..