| In the system of civil law principles,the most important is the principle of will autonomy,and testamentary freedom is shown in detail in the Civil Code of the People’s Republic of China（hereinafter referred to as the Civil Code）,which is a kind of respect and protection for the free will and private ownership of citizens.The establishment and development of testamentary freedom has protected the property rights and interests of the deceased,maintained the harmony of family and social relations,stimulated the rise of social welfare undertakings and promoted the development of the national economy.In recent years,with the vigorous development of the private economy in our country,national policies are changing,and people’s awareness of rights is also increasing.More and more people dispose of their legal property by exercising their right to freedom of will,which is obviously a good trend.However,everything has two sides.As Rousseau said: Man is born free,but everywhere he is in chains.Although the freedom of testament is a right generally recognized by modern countries,it does not mean that it is complete freedom.Any freedom is relative,there is no absolute freedom,and there is no exception to freedom of testament.The original purpose of the testamentary system is to make the individual,family and society in a balanced state.Of course,this system will change with the development of the times,but there is a lag in the law.There will always be some problems and deficiencies in the process.Excessive exercise of the rights enjoyed by the obligee leads to the continuous abuse of the right to freedom of will in judicial practice.This not only destroys social harmony and stability,but also hurts the interests and feelings of some heirs.Although the general provisions and the Inheritance Part of China’s Civil Code restrict the freedom of will to a certain extent,these restrictive provisions are still too few and often lead to different judgments in similar cases in judicial practice.The conflict between law and morality is also more intense.Can the relevant provisions of China’s civil law on testamentary freedom still meet the needs of social development? Is it necessary to further restrict the testamentary freedom? The abuse of testamentary freedom is an urgent problem that needs to be solved.The main body of this paper is divided into four parts.The first part,combined with the typical cases of the deceased abusing testamentary freedom,summed up the decedent abuse of testamentary freedom of the main situation,objectively expounds the trial status of testamentary succession cases in China.And analyzes the reasons that easily cause the abuse of testamentary freedom.In the second part,it discusses some restrictive regulations in order to prevent the abuse of testamentary freedom in China,explains the necessity of restricting testamentary freedom,and points out that the existing legal system is not enough to conduct out targeted research.The third part,introduces the relevant legislative ideas and trial experience of countries with relatively perfect legislation in the field of restricting testamentary freedom,such as the United States,Germany,Britain and Japan.Many of the system design and trial methods are worthy of our reference.The fourth part,the key part of this paper,on the basis of summarizing and analyzing the previous text,puts forward several countermeasures to improve the legal control of the abuse of testamentary freedom in China,in order to be helpful to the study of the testamentary succession system in China. |
