Discussion On The Establishment Of Legal Portion System In China

In almost every country of the world, the testators are generally entitled to dispose their heritage freely by law. However, there is no absolute freedom in law. If the testator goes beyond his or her authority, then the legal heir’s legitimate rights will certainly be infringed. At this point, it is necessary in order to impose a proper limitation on testamentary freedom, to limit it in a reasonable range.Legal portion system was generated in the period of ancient Roman law, which had become an important part of the restrictive system of testamentary freedom after being constantly enriched and developed for thousands of years. Legal portion system aims to prevent the testators’ misuse of rights about testament and to protect the legal heir’s right of succession through limitation of part of the testamentary freedom. It plays a major role in the maintenance of ethics, family harmony and social harmony. But there are no regulations about legal portion system in Chinese inheritance law, only the compulsory portion system is stipulated. Compulsory portion system has a long tradition with quite a lot of defects, which can’t completely adapt to the social reality of our country. In recent years, China’s economy develops rapidly, and people’s values and ideas have also changed dramatically, some new societal problems are rising along. Compulsory portion system seems to be unable to cope with this situation.The author calls for establishing legal portion system in our country in order to make the legal system adapt to the social development, better play its value, and connect with the development of civil laws in the world. First of all, this paper illustrates the basic theory of the legal portion system, making clear the concept, characteristics and properties of this system. At the same time, in order to further explore the connotation of this system, a detailed analysis of its origin and historical evolution is made in this paper, and has discussed the necessity of establishing legalportion system in China in combination with our country’s current social status. Secondly, this paper uses the method of comparative analysis to research and analyze the legal portion systems of other countries in the world, providing experience and reference for our country’s establishment of this system. There are many countries that have established legal portion system. Yet only the typical and representative countries within two law systems are selected in this paper, mainly including Germany, France, Japan, Britain and the United States. Because Chinese legislation is closer to the continental law system, therefore, this paper focuses on the research of legal portion system of the countries within the continental law system. Thirdly, this paper analyzes the current situation of the restrictive system of testament freedom in Chinese inheritance law, and points out the deficiencies. Lastly, this paper proposes the detailed conception of establishing Chinese legal portion system specifically by summarizing the above mentioned, from the perspectives of legal portion system’s legislation pattern, legal portion system’s subject of right, legal portion’s shares, legal portion’s deduction, elimination of legal portion right, and the connection of legal portion system with compulsory portion system.