论我国特留份制度的立法完善

发布时间：2018-10-26 18:16

【摘要】：遗嘱自由是当代遗嘱继承制度的基本理念,但为维护家庭伦理和秩序,世界各国在坚持遗嘱自由的同时,也通过设立特留份制度等制度对遗嘱自由予以必要的限制。我国在现行的继承法虽然以法律条文形式对遗嘱自由做出了一定的限制规定,但是继承法仅对继承人中的“双无”人员和未出生的胎儿给予了一定的必继份继承权,这一规定对遗嘱自由的限制力相较于外国的特留份制度是较弱的,只是从扶弱济贫的人道主义角度出发,对“双无”人员和胎儿设定了必继份,相比于西方国家的特留份制度,由于我国必继份不仅涉及的主体范围非常狭窄,而且主体认定标准不明确,份额的多少没有具体标准,使得立遗嘱人的个人意志过度放任。这种立法方式与继承法身份法性质不符,也与家庭法养老育幼功能不对应,且容易引起家庭伦理关系基础的日渐淡薄,甚至造成对家庭秩序与社会公正的破坏。随着社会生产的发展,生产力的提高,社会财富日益增加,人们的维权意识也被日益激发,人们对自己的利益变得越来越小心翼翼,再加上社会日渐开放,遗嘱自由得到更加普遍的适用,使得很多人在利用法律的空隙,滥用遗嘱自由,让一些人在遗产分割上吃了亏,没有分得自己应得的利益,这样也使得家庭矛盾越演越烈,近亲属之间的友好和睦关系受到冲击,如此一来,特留份制度作为继承法中的一项规定就变得日渐重要,需要加以完善。本文将分析我国必继份制度的立法现状及其所存在的缺陷和不足,通过观察国外各国特留份制度的立法规定以及对其价值理念的分析对我国特留份制度的立法完善提出一些具体的个人的想法和建议。本文主要观点认为我国目前的遗嘱继承制度存在严重的不足和缺陷,需要进一步改进和完善。继承法作为身份财产法,遗嘱继承不能完全的一味遵循遗嘱自由原则,也要适当的考虑其他价值之间的衡平,应该在法律中对遗嘱自由做出明确的限制,构建适应我国国情发展的特留份制度。
[Abstract]:The freedom of will is the basic idea of the system of testamentary succession, but in order to maintain the family ethics and order, countries all over the world insist on the freedom of will at the same time, they also restrict the freedom of will by setting up the system of special share retention. Although the present inheritance law in our country has made some restrictions on the freedom of will in the form of legal provisions, the inheritance law only gives a certain necessary inheritance right to the "double none" person and the unborn fetus among the heirs. The restriction of this provision on the freedom of will is weaker than the foreign retention system, but from the humanitarian point of view of helping the weak to help the poor, it sets a necessary share for the "double nil" persons and foetus, compared with the special retention system in the western countries. Due to the narrow scope of the subject involved, the uncertainty of the standard of the subject and the lack of specific standard of the share, the will of the testator is excessive. This kind of legislation is inconsistent with the nature of the status law of inheritance law and does not correspond to the function of providing for the aged and raising children in the family law, and it can easily lead to the weakening of the family ethical relationship and even the destruction of the family order and social justice. With the development of social production, the improvement of productivity, the increasing of social wealth, people's awareness of protecting their rights is increasingly aroused, people become more and more cautious about their own interests, and the society is opening up day by day. The more general application of the freedom of will has led many people to take advantage of the gap in the law, to abuse the freedom of will, to let some people suffer losses in the division of the estate and not to get the benefits they deserve, which also makes the family conflicts become more and more serious. The friendly and harmonious relations among close relatives are under attack, so the retention system as a stipulation of inheritance law becomes more and more important and needs to be perfected. This paper will analyze the legislative status quo, defects and shortcomings of the system of compulsory succession in China. By observing the legislative provisions of the special retention system in foreign countries and analyzing its value concept, this paper puts forward some concrete personal ideas and suggestions for the legislative perfection of the special retention system in our country. The main point of this paper is that the present testate succession system of our country has serious shortcomings and defects, which need to be further improved and perfected. Inheritance law as the status of property law, testamentary succession can not completely follow the principle of freedom of will, but also should take due account of the balance between other values, we should make clear restrictions on the freedom of will in the law, To build a special system for the development of China's national conditions.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.5

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