The Research Of Legal Portion System

Freedom is relative and the Freedom of Wills is same.The method of restricting freedom of the wills is established by the Legal Portion System for most countries.In Chinese "Inheritance Law",there is no the Legal Portion System,Only regulating the freedom of wills by the "Inheritance Law" artcle 19.Because changes happened in the background of the "Inheritance Law" artcle 19,which causes the law fails to demonstrate the spirit of protecting the weaker,so it is necessary to revise and supplement the "Inheritance Law" artcle 19.This article is based on the research background,significance,and literature review of the Legal Portion System.The research of this proposition is divided into four parts: The first part is the basic theory of the Legal Portion System.Define the concept of Legal Portion by adopting a method of conceptual analysis that the deceased must have a part of the legal inheritance system for the legal heirs within the minimum limit prescribed by law.Legal Portion has the expectation of the inheritance of the testator,the specific character of the right holder,the partiality of the inheritance,subject expanded to the gift property etc.Summarizing the origin and development of the system through historical research methods,analyzing the integrating degree of our country's historical background and the historical background(The Germanic Law and The Roman Law)of the Legal Portion System,Propose a point of the Legal Portion System with pre-regulatory attributes or suiting our country's social reality.Analyzing the relationship between the “Inheritance Law”Article 19 and the Legal Portion System by the comparative analysis,Toexplicitly deny the idea that the identity of the Legal Portion System and the“Inheritance Law” article 19.The second part is the necessity of construction the Legal Portion System in china.The author analyzed current situation of legislation and the historical reasons of establishing the “Inheritance Law” artcle 19 in china,Pointed out the defects in the "Inheritance Law" artcle 19,such as the specific provisions are simple and poor operability,narrow rights subject,vague definition of share standard,and the poor scope of the heritage,to clearly construct our Legal Portion System which is necessary to remedy the defects of the existing system and the protection of the property rights and interests of the multi parties,advocating correct values and ensuring the freedom of the will.The third part is about the Legal Portion System in foreign countires and its enlightenment.Clear the specific provisions that concerning the nature of Legal Portion,the scope and order of the right subject of legal portion,the share of legal portion,the deductions of legal portion,etc which in the civil law of the main countries of the continental law system,like France,German,Japan and the specific provisions of the Family Support System in the main countries of the common law system like United Kingdom and the United States of American;The inspiration of the Legal Portion System in foreign countries: the viewpoint of inheriting the inheritance in the special nature;in the scope and order of the subject of the rights,the German civil law is used for reference,that is,the direct relative(the first heir),the spouse(zero heir),the parent of the direct relative(the second heir);The share of legal portion,using individual reserved share,in the deduction system,referring to the basic practice of Japanese law,combine the Taiwan region and the Macao region of the relevant provisions of the civil law.The fourth part is the assumption of constructing Chinese Legal Portion System.In the legislative mode of establishing the Legal Portion System,the legislation of "individual extra share doctrine" is adopted in a single column,and the specific contents of the Legal Portion System are as follows: the subject and scope of the exclusive rights are using the German civil law.At the same time,whether the posthumous child can be the subject of the right should be consistent with the provisions of the general principles of the civil law,The adoptive children and stepchild who Formed a dependency relationship will be incorporated into the subject of therights.The widowed daughter-in-law and the widowed son-in-law,which have made the main support obligation will be incorporated into the subject of the rights,the second heirs stipulated in the inheritance law are not included in the rights subject.According to the close relationship with the heirs,the share of the inheritance of the child is 1/2,and the share of inheritance of the parent's legal portion is 1/3,and the spouse carries out the zero sequence inheritance,the share of the inheritance of the spouse is 1/2,and the share of the inheritance of the widowed daughter-in-law and the widowed son-in-law which have made the main support obligation is 1/3.As a right,Legal Portion can be abandoned in an express way,the legal situation of losing the inheritance of the inheritance law of China is also deprived of the circumstances of Legal Portion,which should be carried out in the manner of the court,and the scope of the reduction is deducted from the bequest and the property given before the inheritance and the inheritance under the limits of a certain time and amount.The scope of subject of the right is limited to Legal Portion rights holder and the heir of Legal Portion rights holder.The order of deduction is in turn the bequest property,the gift property,the proportion deducted,and the way of deduction to return the original object or the discount compensation according to the value of the deductions.As for the combination between the Legal Portion System with the current system,on the basis of the integration of the Legal Portion System,“Inheritance Law”Article 19,Inheritance Law”Article 31 and the multiple,small,or undivided legal provisions,it is suggested that “Inheritance Law”Article 19 should be placed in the chapter of the Legal Portion System as an exception on the basis of the implementation of a single Legal Portion System.