The Discussion Of How To Establish Statutory Reserved Share System

"The Inheritance Law of People’s Republic of China"(hereinafter referred to as the "Law of Succession") has promulgated for thirty years, and has not been amended over the period. Over the past three decades, the social family structure has undergone tremendous change, from the extended family to the nuclear family; people’s thinking has also been a great impact on the market economy, while the phenomenon as "heavy favorite, light human relations" often happens, especially at the beginning of this century, two cases with completely different results occurred. It has aroused widespread concern about the "Law of Succession" defects. The existing legal system pursues freedom wills, intestates succession precedence over statutory succession, and restricts the freedom of the will only by "Inheritance Law" Article 19, the Supreme Court "on the implementation of <People’s Republic of China Inheritance Law> Several issue opinions "(hereinafter referred to as " the law of succession Opinion ") section 37, and the provisions in the " Civil Law " in the general principles of civil law, such as public order and good morals. This is the current law of succession in the country will remain part system. Enjoy body parts is the lack of ability to work and have no source of livelihood. So the system suitable for the main range is severely restricted. Therefore, the current law of succession has no rules to address conflict between social mores and wills freedom.The law of succession in civil law countries equips Legal Portion system. Its legislative purpose is to restrict the freedom of testamentary disposition; although common law countries have the will to pursue freedom, but now have established a family dependents system to restrict the will of freedom and meet the livelihood security needs of family members. In comparison, the Legal Portion system would better reflect the balance of freedom and sense of family relations. Our Portion system has significant defect. The value of Legal Portion system is worth of recognition. The social reality needs to limit our freedom of wills, maintaining ethical sense of family relationships. Therefore the current view is that Legal Portion system should be added when modifying the system of legal inheritance law.Based on the above social context, the revised "Law of Succession" and increased restrictions on the freedom of the will has a strong urgency. This paper aims to sort out the different countries’ system, analyzes China’s special conditions, the addition of special sort of theoretical and difficulties of the system remain, hoping to put forward a different view on the "Law of Succession" amendments.This paper is divided into the following chapters:The first chapter is an overview of Portion system. In this section the author talks about the origin and historical development of the system and reveal its legislative purpose in different historical periods and under different legal traditions; the system of legal analysis of the meaning and characteristics, so that readers can more clearly understand the special of Legal Portion system; analyze the nature of the system and thus lay the foundation for the subsequent vision system.The second chapter is from the perspective of comparative law analysis of the system design in different countries. First is the characteristic of the Legal Portion system in civil law countries. I selected France, Germany, Japan, as the analysis object, like France and Japan are based on inheritance rights, allowing only legal heirs enjoy Portion, while Germany allows Portion inheritance, transfer. Secondly, I will talk about the British and American family dependent system. This system is similar to the Compulsory Portion system, and takes precedence over claims. Finally, analysis of their respective advantages of the Legal Portion system and family dependents system, combined with China’s national conditions offered to add the system.The third chapter analyzes the reasonableness and necessity of setting Portion system. First is a brief introduction of the system points out its deficiencies. Secondly is the comparative analysis of the legal legislative purpose and content of the two systems, concluded that there is no Portion system. Finally, According to the actual situation of our country and relevant judicial practice point of view, arguments add the urgency and the real value of a system.The fourth chapter analyzes how to establish the Portion system based on the actual situation. Firstly, the bodies who enjoy the Portion should be parent children and the spouse. Secondly, the heritage should be including the property and special gift before death. Finally is about how to coordinate the relationship of different legal systems.In summary, the point of view of this paper is that we should add the Portion system in order to limiting the freedom of testament.