On Construction Of The Special Portion System

Nowadays, restricting the freedom of testament is prevailing worldwide in legislation. In China, the Compulsory Portion, which aims to protect the interest of the heirs at law while restricting the testators'freedom, is also stated in the Inheritance law, but because the Compulsory Portion is relatively weak in protecting the interest of the heirs at law, the testators'freedom in dealing with their heritage is not virtually restricted. Thus, there exist flaws in the system of testament in China. With the change of the social life, marriage and family are also changing, for instance, love affairs or cohabitation outside marriage occurs constantly, which urges us to reconsider the system of testament and inheritance. According to the author, amendment is needed in the system of testament. The freedom of testament should be further restricted, for the sake of the old and the young in correspondence with the Chinese traditional moral values. Then the problem facing us is how to effectively and properly restrict the freedom of testament. From the author's viewpoint, the System of Special Portion in the Continental Law System can be a good example.The Special Portion System, which is a restriction of freedom of testament, can be found in many of the countries in the Continental Law System. According to the System of Special Portion, testators can only deal with part of the heritage except the Special Portion. That is to say, if the testator set aside the Special Portion, he can deal with the other heritage freely without violating the customs and habits. And the heirs at law, especially the spouse, children, and parents, are entitled to the Special Portion, and in this way their interest of inheritance is partly protected. The Special Portion System effectively balances the conflict between the interest of inheritance of the heirs at law and the testators'freedom of dealing with their heritage. Moreover, the Special Portion System as an intervention of personal conducts has been used by many other countries for years and is regarded as a mature system.This paper looks into some basic issues of the Special Portion System in the Inheritance Law of other countries, compares the relevant regulations in the Civil Laws of other countries, and comments on the deficiencies of regulations of Compulsory Portion in the Inheritance Law of China, and proposes a notion of constructing a of Special Portion System in China.This paper falls into four parts:The first part explains the concept and characteristics of the Special Portion, introduces the historical origin of the Special Portion System, and then introduces the history of the relevant regulations in China, analyzes the pros and cons of the Inheritance Law in China.The second part analyzes some typical systems of Special Portion in Continental Law System and Common Law System, compares them to the System of Compulsory Portion in China, and then points out that it is high time for China to construct her own of Special Portion System.The third part focuses on the necessity of constructing the Special Portion System in china by analyzing the relationship between the Special Portion System and the restriction of the freedom of testament, the rationality of the Special Portion System, the its practical significance in China.The forth part puts forward some legislative suggestions on constructing the Special Portion System in China from the aspect of subject, portion, and abatement of the Special Portion.