对遗嘱自由限制法律制度的思考-民商法专业论文.docxVIP

因此，本文首先对遗嘱制度和遗嘱自由及其限制进行论述，接着介绍两大 法系主要国家和地区的遗嘱自由限制制度并对其进行比较评析，进而对我国当 前遗嘱自由限制的相关法律制度的现状及其缺陷和由此引发的司法实践中越来 越多的矛盾和争论进行分析，从而提出对完善我国遗嘱自由限制立法的思考。 建议在分析相关制度融合性及延续性的基础上，参照国外特留份制度，对我国 必留份制度进行适度的调整，在保留必留份制度的前提下对其进行适当改革。 建议修正我国《继承法》中的个别规定，使特留份制度与必留份制度协调并用， 以完善我国的遗嘱自由限制制度。 关键词：遗嘱自由；特留份制度；必留份制度 ABSTRACT Testament system was originated from Rome law, the Twelve Tables article III of V said: A decision in the dying about property or related to custody for processing, shall not be violated. The owner’s will was reflected well by this provision and it’s fit for the values of freedom. For the reason that the inheritance was adopted by most countries gradually and formed a system of inheritance, named testamentary inheritance system; freedom of testament is becoming one of the most important principles of modern law of succession, which reflected autonomy and has a complete protective for the property of citizens. However, there is no absolute freedom in law. The freedom of testament in the law of succession is not excepting; the most of countries also imposes restrictions on freedom of the testament, such as the forced heirship system which requires ancestor must leave some heritage in the family. The freedom of the testator is limited by the forced heirship in a certain range, but the limitation is good for the freedom of testament and the benefit if the relatives. Sometimes the dispose of property will take a infringement to the heirs. But the forced heirship can avoid this situation. However, there is not forced heirship system in the law of inheritance of our country, just in some judicial interpretation have take a protection for the fetus and the people who lose their labor capacity and source of life, named will share system. In current law of succession of our country, freedom of testament is limited, named will share system. Although the will share system is play a positive role too, but compare to the forced heirship system, it has serious limitations. Along with the fast dev