Testament Freedom And Its Restrictions ——A Perspective On The Codification Of Inheritance In The Civil Code

The existing law of Succession of People’s Republic of China（hereinafter referred to as "Inheritance Law"）was promulgated on October 1.1985 and has been in force for 34 years.During this period,many areas of China,including the social,political,economic and cultural,have undergone tremendous changes,and the"Inheritance Law" has been unable to meet the practical needs of modern society.The economic development and wealth growth of China have provided people with more room for property disposal.Meanwhile,the generally enhanced awareness of the rule of law throughout society has also made more people want to dispose of their property through testaments.Testamentary succession,in comparison with legal succession.can better reflect the testator’s personal will,which is the continuation of private property rights after the death of an individual.This paper analyzes the existing problems in the testament system of the"Inheritance Law".The form of the testament is too strict,the degree of freedom in substantial disposition is too high,the lack of a guarantee system to execute of the testament,and the difficulty in implementing the testament,etc.Further,in light of the amendment and codification of the "Inheritance Law",the author’s viewpoints,ideas and suggestions on the amendment of the "Inheritance Law" are put forward from the perspective of the testament freedom and its restrictions.This paper is divided into the following four parts:The first part discusses the jurisprudence basis of the testament freedom and its restrictions from the perspective of the origin of rights,value pursuit,and social functions,and demonstrates the principles of testament freedom with the system origin of proper restrictions.The second part examines the institutional changes,evolutions,and causes of testament freedom around the world from a vertical perspective of history.By comparing the legislative ideas and socio-cultural backgrounds of different historical periods and countries,this paper explores the derivation and development of these systems,and provides references for the testamentary succession system that is suitable for Chin’s current economic and cultural development.The third part is the core content of this paper.Through comparative research,empirical research,case studies and other methods,this article analyzes the legislative disadvantages and omissions of China’s testament freedom and its restriction system.It demonstrates the rationality and necessity of adopting the moderated formalism,and puts forward specific suggestions to improve the existing mandatory heirship system,and demonstrates why China should not establish a universal special reservation system in terms of the different right-related subjects.It also demonstrates the practical significance of reconstructing the right heritage claim under discretion according to the current social phenomenon,and makes specific legislative suggestions on the subject scope,share,priority,and exercise of the heritage claim under discretion.In addition.unlike most of the treatise on testament freedom,this paper also pays attention to the practical significance of testament execution,testament trust,and other systems for testament freedom.It clarifies the harm of the absence of the executor system to the testament freedom,and demonstrates the feasibility and necessity of establishing and perfecting the testament trust system in China through comparative and empirical research.The fourth part summarizes the arguments of this paper.