Legislation Of Special Share System In China

The existing Law of Succession of the People’s Republic of China has been implemented for over 30 years. During these 30 years, China has undergone great changes, as a result the drawbacks in the law of succession become more and more evident and unique. Therefore the society advocates revision of this law. Through analysis of the current vital points in the academic field, basic features can be viewed like this:to extend heritage range; to amend relevant provisions about inherited succession and legacy; to augment legal heirs and their succession order; to modify conditions for deprivation of inheritance right; to stipulate special share system and so on. Taking special share system as its topic, this paper first presents the system’s connotation, evolution, functions and relevant legislation broad. Then it analyzes with rationality to erect special share system and proposes suggestions to localize it in China.When it comes to testament freedom, one of the vital principles of testamentary succession, "family ethical attribute of law of succession as well as its claim for justice and order, in the meanwhile, impose certain restrictions on this kind of liberty". They demand that testament freedom must go hand in hand with the guarantee of rights of successors relying on testators. To achieve this goal, lots of countries have established special share system in their provisions concerning testamentary succession. Chinese academic community is prone to take the 19th (about "double-lack" people:lack of work ability and source of income) and the 28th (about reserved shares for fetuses) stipulations as our terms on forced heirdom. While our law of succession under ferment to be revised, it is vital to contrast special share with our forced heirdom system and decide whether and how to build special share system with Chinese characteristics. In consideration of the fact that China hasn’t had this kind of system, the academic community is casting their vision more to the field through comparing methods.To erect our special share system, it is advised to build a system which distinguishes forced testamentary share from special legacy share as well as it matches them based on researches on mainstream legislation modes about special share system around the world. That means to keep the perfect forced heirdom system to balance succession shares among successors while protect groups who are disadvantaged and in want of attention. Therefore, forced heirdom system must adopt the doctrine of fostering. Then establish legacy special share system only to equalize relations among successors and non-successors, defend successors’ legal shares, and adopt the doctrine of statutory succession. Legislative intent of legacy special share system should not be directed on fostering property or justice among successors. Because, if the classical special share systems in France and Japan are statutory-succession-centered and the one in Germany focuses on testamentary succession, then China today has more reasons to amend its law of succession based on dependents-oriented compulsory share system. In this way, we can avoid injustice and irrationality in testaments and allow them to function. This has already been achieved in England and America, whose laws also take doctrine of fostering as the core, which is a shortcoming of Chinese law of succession. American, British and French system relies heavily on fostering doctrine. China has still not constructed this system up till now. so its new construction by china should eliminate its worse effects. What’s more, to erect such a system which can refrain ourselves from clashes appeared in the Japanese and French law mode. And it will not confront with the current Chinese institutional laws and current legislations.