On The Construction Of The System Of Special Retention In China

China’s "Inheritance Law" only provides essential portion system to protect the lack of "legal heirs and fetal right of inheritance nowadays. But when the ancestor will abuse freedom rights, and deprived of the legal heir of the inheritance, the legal inheritance rights can not be guaranteed. Such as representative of the " Hangzhou bequest case " and " Luzhou legacy case ", because there is no clear legal provisions, so the court in a dilemma of realm, and even appear the same case different court decision, then there is the debate of what kind of rights and interests is should be protected between " freedom of will ", " law of succession " and " public order and good custom. The radical reason that the currently law lack of the special retention in the absence of legitim system, and only have the essential portion system without special leave a system function, that is mean it did not play a role of rational limitation on the freedom of testament and caused by lack of protection of affection and ethics. Based on this, this article mainly carries on the proof from the following three parts:Firstly, the article start by the dispute from the law circles of our country whether the current inheritance laws have or not special retention, and then pointed out the point view that relevant laws about special retention is deficient of in our country.The judge have to use the agency’s discretion to make judgment,so lead to lack the special law guidance. The judicial application of further demonstrates the necessity of constructing of the special retention in our country. At first it could solve the conflict of rights in testate succession, that is,to solve the contention between the testator’s free disposition of property right and statutory succession of statutory succession; secondly, it is to protect the private law ethics and social, that is special retention maintain consistency of the law and the consistency, and play a positive role in stabilizing the social order.Secondly, the author use the historical analysis method to explore the legislative style of the system of civil law countries, and adopt the comparative analysis to analyze the characteristics of the legislation of the countries. At present, almost all the countries of the continental law system have adopted "special leave" system to limit the freedom of Testament, meanwhile form a set of independent and complete system and have specific guidance of special subject such as sequence, share, calculated on the basis of detailed provisions. The experience of legitim system inspire to construct the basic theory and designing styles in China’s construction of legitim system.Finally, article put forward to construct our country special retention system combining the real situation.the specific legislative proposals, mainly including: the legislative form of special retention, the restrictions of exercise of special retention, a percentage share of fundamental method of special retention, the system of forced heirship rights protection and relief of buckle reduction, in order to achieve inheritance law within the law between the connection and coordination, promote the inheritance law modification and perfect.