The Perfection Of Our Country’s Compulsory Portion System

Testament freedom is a basic article specified in the Law of Succession of every country. To handle the heritage after the death of ancestor by the testament is every citizen’s right. However, rights are always closely linked to the obligations and the freedom is relative instead of absolute. Therefore, in relative specifications in the Law of Succession of every country, there are always necessary restrictions to the freedom of testament. The special share system formulated in ancient Rome is very popular because of the balance artistic value it reflects, which also becomes a pivot point of the Law of Succession that is raced to follow by other countries in the world. The Law of Succession in China is relatively backward and there are a lot of shortcomings and insufficiencies in the freedom restrictions in consideration of the national conditions. For example, the restrictions on testament freedom are only concentrated on the protection of succession rights of fetus and "double-lack" persons, i.e. Chinese necessary heirship system. Even so, a lot of problems are brought forth due to the difficulty in operating in judiciary practice because of the ambiguousness and inaccuracy of specifications, thus large amounts of puzzles occur in judicial working and the discretionary power of judiciary is enlarged. On the other hand, proper protection to the rights and interests of other heirs at law is in shortage, and consequently, it sharply impacts public order and moral of the society. In this thesis, by the introduction to the testament freedom and restrictions and special share system and on the foundation of the deep analysis on relative system requirements of Chinese testate succession, the proposal to perfect the necessary heirship system is put forward.In this thesis, there are four parts in total:identification of the natures of necessary heirship system; evaluation on necessary heirship system of China; reference to overseas special share system of China; the perfection of necessary heirship system of China. In the first part, it introduces the concept, characteristics, and natures of necessary heirship system and from the point of history; it introduces the origination of necessary heirship system and gives a brief introduction to the relative provisions of Chinese necessary heirship system. In the second part, evaluation on the current situations of the active necessary heirship system of China through typical cases is conducted and legislation deficiency of necessary heirship system in judicial acting is presented and five primal problems are discussed. In the third part, it is analyzed the special share system in representative countries of the continental law system and system of Anglo-American law, and hence the advanced overseas legislation experience is adopted for reference and then it proposed the ways to perfect the necessary heirship system to adapt to the tendency of current international legislation. In the fourth part, on the foundation of reference to the special share system of various countries, from the aspects of the subject of compulsory portion, shares of compulsory portion, and deduction of compulsory portion and so on, specific legislation suggestions on the perfection of necessary heirship system of China is proposed.