On Restriction Of Testament Freedom

The testament freedom is an important principle of inheritance laws. It fully reflects the respect of individual will, and helps to protect the private property completely. But, excessive freedom of testament also can bring bad consequences. It violates the right of succession of legal heir without any protection, and the function of raising the young and supporting the old of the family is destroyed. Thus the traditional morality is impacted, and resulting in social instability.To solve this problem, all countries in the world are looking for a system, which can balance the conflict of interests between the testament freedom of the decedent and the right of the legal heir. Based on investigation of the two main legal systems in the world, the author found that two legal systems all constructed a system of forced heirship to restrict the decedents’freedom of testament. The value of the system of forced heirship is that it limits the decedent’s testament freedom reasonably, and maintains the harmony and unity of family relationships and lightens the burden on society.The current inheritance law of our country formulated at the beginning of the reform and opening up, and based on the legislative principle of "be broad rather than fine". After nearly30years, many regulations of the inheritance law of are out of date. In legislation to restrict the principle of testamentary freedom, we established so-called the system of mandatory share. And it played certain limits to testament freedom objectively, but it is not a mature system of limiting testament freedom and protecting the right of succession of legal heir from its principle and construction. The system of mandatory share also had some dilemma in judicial process in our country. Therefore, establish the system of forced heirship is imperative.The main body of the thesis was divided into five chapters:Chapter One is mainly on the theory of testament freedom and restriction, and it went to the result of reasonable restriction of testament freedom from three aspects. The second part of the thesis mainly introduced the limits of testament freedom and the system of forced heirship in the world. The author compared and analyzed the forced heirship of the countries, and obtained the main content of the forced heirship. Then, the author introduced theory of testament freedom and restriction in China, and analyzed the system of mandatory share combine the case in live, and came to a conclusion of the necessity of establishment of the system of forced heirship in our country. Along with the process of legislation of civil law code in our country, many scholars suggested that the establishment of forced heirship to limit testament freedom was necessary. In the forth part of the thesis, the author selected three representative provisions civil law codes. With the comparing of the forced heirship in the codes, the author concluded the newest theoretical research and legislative practice results in China. In the last part of the thesis, the author based on legislation of forced heirship around the world, meanwhile, referred to scholars’suggestion of construction of forced heirship in the civil law code in our country, to table a proposal of construction of forced heirship in our country, expecting provide a benefit consultant.