New Thoughts on Testamentary Freedom and Restriction from the Perspective of the Civil Code of China

Civil law observes a basic principle, “Absence of legal prohibition means freedom”. Testamentary freedom embodies the civil subject’s rights and interests in disposing of private property freely; nevertheless, such freedom is not absolute, and law places moderate restraints upon testamentary freedom. China is standing as one of those countries which place fewer restraints upon testamentary freedom. The Succession Part of the Civil Code of China currently in force only provides for the Compulsory Portion system. However, there are narrow scope of application, vague share, applicable uncertainty and many other defects. Moreover, both connotation and denotation of “Public order and good custom” are difficult to grasp, and it is difficult to maintain modesty among order values. Therefore, the academic circle of China has initiated a heated discussion on the introduction of Forced Heirship system. Most of these scholars hold that the introduction of this system can make up for the defects in our current inheritance law. However, a blind introduction of extra-territorial system may not comply with the national conditions, and those potential defects in Forced Heirship system have not received thorough scrutiny. In a word, while safeguarding the testamentary freedom, the law system shall protect the interests of the heirs, avoid disputes among family members over assets and properties, and guarantee the legitimate rights of citizens and the stable development in both the society and economy to a greater extent. With the actual situation of China as starting point, an in-depth analysis will be conducted in this paper upon the issue concerning the testamentary freedom principle in China. Then, extra-territorial experience concerning this issue will be selectively absorbed and referred to so as to comply with global legislative trend and establish a complete inheritance system.