On The Compulsory Portion Of Succession Editing Of Chinese Civil Code And The Forced Heirship Of Civil Law System

Regarding what legal means should be used to limit the freedom of the will,before the promulgation of our national code,there have been many discussions between scholars,scholars and legislators.On the one hand,it is the compulsory portion that has been implemented in China for more than 30 years,and on the other hand,it is the forced heirship with a long history and a sound system in civil law countries.Most scholars support the latter,but legislators still insist on the former.This lead to the study of the compulsory portion and forced heirship in this article.This article includes four chapters.The first chapter is an overview of basic theory.It introduces the common basic knowledge of the compulsory portion and forced heirship:meaning,nature,etc.,and the unique deduction right for the forced heirship.On this basis,the similarities and differences between the two are analyzed,and the theory is paved for the following discussion.The second chapter expounds the reasons why our legislators choose to keep the compulsory portion from three aspects,positive and negative.It is concluded that the "compulsory portion is more in line with the inherited traditions and practices of the patriarchal family property system in our country,better meets the needs of China’s economic development and pension,and more in line with the requirements of legislative technology and saves judicial resources".Although in the contest between compulsory portion and forced heirship,compulsory portion has won,but it has many problems in the process of operation.Therefore,the third chapter further elaborated the problems of the current compulsory portion,which mainly includes the main standard of the compulsory portion is unclear and narrow in scope,the share is ambiguous and the supporting measures are incomplete.In response to these problems,Chapter Ⅳ draws on the relevant provisions of the forced heirship and the extra-legislative legislation of the compulsory portion in the legislative theory,and uses the methods of purpose interpretation,system interpretation,and expanded interpretation in the interpretation theory,proposes improvement measures:"expanding the main body of the compulsory portion,enhancing the certainty of the compulsory portion,improving the remedies for the compulsory portion,improving the loss and recovery system of the compulsory portion,and clarifying the relationship between the compulsory portion and other relevant laws".