A Comparative Study Of Forced Heirship System

Forced heirship,as an ancient system which has its origin in the Roman law,has come into being an important system limiting the testamentary freedom in many countries after the development of a few thousand years. It was brought out with the appearance of the system of private property and family,so it necessarily changes with their changes.The Chinese “law of inheritance” does not legislate the forced heirship system,only to protect the "double-free persons" using “necessary share of the heritage”.However,the “necessary share of the heritage” system cannot protect the legal heir of the inheritance,because of the strict applicable conditions,the narrow extent of protecting the right holder,lack of remedies and other defects.When such "Hangzhou small nurse legacy case" occurs in real life, the “necessary share of the heritage” system would have no way to protect the heir of the inheritance.Therefore,the legislative status quo of this in our country lags behind that of the real life have apparently can’t meet the need of real life contradiction,it necessarily changes with other laws,so,it is of great realistic important to stipulate it.This article set about from the restriction of the testamentary freedom and historical investigation,reviewed the historical origins of the forced heirship system and analyzed its nature and function.Through to introduce and compare with the Legislation Model of the continental legal system and Anglo-American law system countries,analyzed the “necessary share of the heritage” system and its defects,on the basis of fully considering the situation of our country, this paper puts forward the basic idea of constructing the forced heirship system.Except the foreword,the main text may divide into four Part:The first part:The forced heirship system overview.By introduce the restriction of the testamentary freedom and historical investigation,the historical origins of the forced heirship system.and analyze its nature,function and characteristics.The second part:The legislative investigation of extraterritorial forced heirship system.First investigate the forced heirship system of the typical country ofcontinental legal system,and analyze the correlative legislation both Britain and America,finally compare in obligee and the quotient of the share aspects.The third part:The necessity of constructing the Special Portion System in China.This chapter introduces the related system in Chinese inheritance law,then compare the Special Portion System and the “necessary share of the heritage”,based on the reality of our country,to explain the necessity of the establishment of the Special Portion System in our country.The fourth part:The formation of the legitim system constructing assumption in China.Firstly, to analyze three theories and compare which theory is the most suitable for our realistic conditions.Then drawing on other civil law countries Portion system based on the proposed Portion System Construction of specific content, including:the range of the forced heirship obligees 、 the line of the forced heirship obligees 、deducted setting、loss and abandon of the forced heirship、aging Portion request、request aging of the forced heirship.