The Study Of The Restriction Of Freedom Of Testament

The principle of autonomy is the basis of modern civil law. Freedom of testament is the particular principle in the law of inheritance. However, the restriction of freedom is good to freedom itself, so does the freedom of testament. The way to restrict freedom is diverse, such as the restriction of formal and substantial elements. As for the freedom of testament in China, there are so many problems, such as the abuse of the freedom of testament and public order and good customs. Therefore, the innovation of will system cannot separate from the mature system in other countries, of course, before we have a very clear strand of the regulations in China. Specifically, on one hand, the judges should balance the principles among the freedom of testament, efficiency, justice and order, and then make them objective. On the other hand, they should also deal with the controversy between the principle of public order and good customs and autonomy. As follows are the main contents.Chapter I "origin":From a historical point, this chapter analyzes the development of will system in eastern and western countries. From the view of western Asia to ancient Rome, and then to the medieval church law, and finally settled into the modern law. As for China where there is no civil code, the chapter analyzes the will system before and after Tang, song dynasty, as well as Qing dynasty.Chapter Ⅱ "controversy":The chapter analyzes the will system in civil and common law system. For the former, France and Germen are the representatives; England and America are the representatives of the latter.ChapterⅢ "theory":The chapter lists different levels of principles between the controversy of the freedom of testament and order, efficiency, justice. Then, Kos theorem and welfare economics are cited in the situation when the judges have no idea about how to deal with the controversy.ChapterⅣ "humble opinions":Firstly, the judges should consider the rules in law of inheritance in the first place, because the laws are more important than systems. Secondly, to the defeats of the laws, we can turn to some methodologies for help. About this, Alexy’s theory of "the principle of collision" is cited to make the principles objective.