On The Establishment Of Special Retention System In China

The Freedom of Testamentary means the freedom of the decedent to dispose of his property ownership by making a will,which includes the freedom to appoint successors,the freedom to bequeath,the freedom to set up a will,the freedom to withdraw or change the will and so on.The Freedom of Testamentary is the embodiment of civil subject’s autonomy of will and is an important principle in civil law.Civil subjects have the right to dispose of all their property.When they make a will,they will generally make corresponding expressions of intention according to their own subjective feelings,which may cause the abuse of the Freedom of Testamentary.This will have a bad impact on ethics,family stability and social harmony.Therefore,most countries in the world have stipulated Special Retention System to reasonably restrict the Freedom of Testamentary.Special Retention refers to the legal provisions of the testator shall not cancel the share of the estate inherited by a specific legal heir.The “Special Retention” originated from Roman law,developed from Germanic law,and was later inherited by Germany,France,Switzerland,Japan and other civil law countries.After thousands of years of inheritance and development,Special Retention System has been constantly improved,and now it has become an important means to restrict the freedom of testamentary.There is no Special Retention System in China,only Mandatory Retention System.The subjects of Mandatory Retention System include the fetus and the heirs who lack the ability to work and have no source of income.In recent years,with the rapid development of China’s economy and the increasing wealth in the hands of individuals,the traditional kinship ethical relationship has been challenged by the freedom of individual will.In practice,there are a lot of inheritance disputes.The testator gives all or most of the inheritance to somebody other than the near relatives to his personal desires,which infringes the right of inheritance expectation of the near relatives and also leads to an impact on the good social customs.With the rapid development of China’s society,the importance of socialist core values is particularly prominent in the face of new problems and challenges.“Freedom,Civilization,Harmony,Equality and Justice” should be rooted in the legislative value orientation of the Civil Code.In the compilation stage of the Civil Code of the People’s Republic of China,many Chinese experts and scholars suggested that Special Retention System should be established in the Civil Code,but the Civil Code did not stipulate Special Retention System.In order to adapt to the development of China’s economy and society at the present stage and realize the socialist core values,the suggestions of experts and scholars on the establishment of Special Retention System cannot be ignored.Special Retention System was established based on kinship ethic relationship,regardless of whether the successor has the ability to work and life source,its essence is to the protection of the right of inheritance expectation of specific close relatives,the purpose is to maintain the kinship ethic relationship,so as to achieve family stability and social harmony.Mandatory Retention System and Special Retention System cannot be replaced by each other,so the establishment of Special Retention System in China should adopt the parallel mode of the two legislative paths.The law should clearly stipulate the scope and share of the subject of Special Retention,and stipulate the abandonment,loss and recovery of the right of Special Retention.When the right of Special Retention is infringed,the law should give the right holder of Special Retention the right of deduction.The establishment of a perfect Special Retention System is helpful to maintain the kinship ethical relationship,reduce the occurrence of inheritance disputes,so as to realize mutual respect and love between family members and reduce the social burden.