A Study Of The Limitations Of Testamentary Freedom

Testamentary freedom is the embodiment of the principle of autonomy of will in the private law in the law of succession.It originated from the ancient Roman period and took the disposition power as its legal basis,which played a certain role in promoting the development of the early individual-oriented thought.However,with the gradual acceptance of the idea of private property,abuse of the right of testamentary liberty to deprive the legal heir of the right to inherit and other situations occur frequently,and there are many cases of testamentary succession disputes that violate public order and good customs and cause social concern,so it is imperative to restrict the freedom of testamentary.China's Inheritance Law has a weak restriction on testamentary succession,which may cause the legal heir to lose the right to inherit any inheritance on the basis of the protection of testamentary freedom.Comply with the development trend of inheritance law,draw lessons from foreign legislative model,build treu copy system in Chinese inheritance law,the decedent(i.e.the testator)properly limit testamentary freedom to exercise,thus a reasonable balance between wills successor and heir apparent sharp opposition,that may occur in the freedom and restrictions,civil rights,and to seek a reasonable balance between social responsibility,in the protection of liberty on the basis of the decedent a will to a certain extent promote the accumulation of wealth and family traditions.In terms of the structure,the text of this paper can be divided into four chapters except the conclusion:The first chapter is the reason and justification of the restriction of testamentary freedom.Firstly,it briefly introduces the historical evolution of the testamentary freedom restriction system in China and the West,as well as the legal and ethical status of the system under the social background at that time,showing the reasons and social significance of the existence of testamentary freedom restriction,and reflecting the historical reasons why the restriction of testamentary freedom is still in use today.Then through two cases of testamentary succession dispute which has attracted much attention in today's society,it reflects the lack of restrictions on testamentary freedom in today's society and the arbitrariness of applying the principleof public order and good customs,and emphasizes the practical significance of the existence of restrictions on testamentary freedom.Secondly,it explains the legal basis and function of the restriction of testamentary freedom to strengthen the justification of the restriction of testamentary freedom.The juristical basis of the restriction of testamentary freedom refers to the viewpoints of the world legal circle,which mainly include the prohibition of dispositionalism,testamentary liberalism and the doctrine of special retention.Finally,the functions of the testator freedom restriction system for the family and society mainly include preventing excessive abuse of the testator freedom,ensuring the inheritance of family wealth,controlling the reasonable distribution of property and maintaining the value of specific inheritance.The second chapter is the introduction and analysis of the limitations of the testamentary freedom legislation in China.For limit testamentary freedom legislation in China,including the principle of disgraceful consideration in "the general civil law" and "will remain a" system of "inheritance law" provisions,the first part of this chapter from three aspects introduced the form,content and subject "inheritance law" to the limit of freedom,for below points out the flaws of the system to provide direction to guide.The second part of this chapter points out the shortcomings of China's testamentary freedom restriction legislation in four aspects,including the vague definition of the way and nature of the realization of rights,the narrow scope of the subject of application,the fuzzy standard for the calculation of rights and the lack of effective remedies and restrictions on rights.The third chapter introduces the legislative model of the restriction of foreign will freedom and its reference to Our country.This paper introduces the legislation of freedom restriction of will in civil law countries and Common law countries respectively.To be specific,it introduces the legislation on the restriction of testamentary freedom in the civil law system with the French model and the German model as typical representatives.At the same time,it introduces the legislation of testamentary freedom restriction in common law system by taking the legislation of England and America as an example.The focus of this chapter is the last part.By taking the legislation of two legal systems and four typical countries as examples,the legislation models of different countries are compared horizontally and their advanced experience is summarized,so as to provide reference for improving the legislation of testamentary freedom restriction in China.In the last chapter of this article,based on the analysis summary less thanour current will limit freedom system,on the basis of reference the advanced experience of extraterritorial legislation,and points out that the introduction of special leave a system of the integration of the existing system of "will remain a" modified perfect,is our country the will freedom restriction system of educational world mainstream view,and adhere to the views and positions in this paper.According to this direction,this paper puts forward specific measures to restrict the freedom of will,including clarifying the way and nature of the realization of rights,appropriately expanding the scope of the subject of rights,refining the standard of calculating the share of rights and supplementing the restriction rules of right relief.At the same time,in order to build a complete system of special retention system,the rules of rights conflict are added to match the aforementioned rules.