论遗嘱自由与限制
发布时间：2018-08-24 14:13
【摘要】：1985年出台的《中华人民共和国继承法》到现在已经历29个年头。这期间我国社会政治、经济、文化、法律等各个方面，从经济基础到上层建筑变化之速，大有一日千里之势。尤其是人们在财产大幅度增加的同时相关的法律意识也大为提高。有一部完善的继承法来调整人们的人身财产关系，已是迫在眉睫之事。在这种形势下，笔者以“论遗嘱自由与限制”为题写出此篇拙作，作为沧海一粟来表达自己的观点。 本文分为四个部分。开篇以对遗嘱继承的历史回顾为出发点展开论述，论述了继承制度和古罗马的遗嘱继承制度的演进：即从无遗嘱继承到最初的遗嘱继承、再到绝对自由的遗嘱继承、最终到对遗嘱自由进行限制的过程。其中既回顾了遗嘱继承制度的法制发展史，又引发思考、提出问题，为后续的论述做出铺垫。 本文的第二部分，笔者有一个独立思考。笔者在此处借用了胡适先生的一个观点--“没有容忍就没有自由”，将“容忍”引入到自由与限制之间，提出了“自由、容忍、限制”这个法理学观点并加以论述。在论述“以容忍作为自由与限制的桥梁”后得出：在遗嘱继承中采用“对遗嘱自由的限制”这项规定最终的结果是：“既保障了被继承人的权利，又维护了继承人的利益，社会整体都因此获利，是一项多赢的制度”这个结论。 本文的第三部分，笔者对当今世界两大法系的遗嘱继承制度进行了列举与比较。文中列举了法国、德国、瑞士、日本、美国、英国、澳大利亚以及我国港、澳、台地区的遗嘱继承制度后，论证了对遗嘱限制的有效制度--特留份制度及其意义，并论述了在我国修改继承法时应当加以参考的内容。 本文的最后一部分，笔者以“对我国遗嘱自由与限制制度的再思考”为题，以四川泸州遗嘱继承案为案例，论述了我国现行继承法遗嘱继承篇的立法缺陷与不足，提出了修改建议，即在我国须引入特留份制度，用该制度来完善我国的遗嘱继承制度。在遗嘱自由的基础上，对绝对的自由进行限制，，最终会使个人、家庭乃至整个社会都从中获益；在继承法修改后，应让每一个个案都体现法律所代表的“公平与正义”，以此推动社会整体的和谐、文明与进步。 在本文的结论部分，笔者对论文全文进行了总结概括，提出了自己的结论并对特留份制度试写了相关的若干法条，作为个人的立法建议。
[Abstract]:The inheritance Law of the people's Republic of China, promulgated in 1985, has now gone through 29 years. During this period, China's social politics, economy, culture, law and other aspects, from the economic base to the superstructure of the rapid changes, great momentum. In particular, people in the property increase significantly at the same time the related legal awareness also greatly improved. It is urgent to have a perfect inheritance law to adjust people's personal and property relations. In this situation, the author wrote this article on the subject of "on the Freedom and restriction of Wills" as a drop in the ocean to express his views. This paper is divided into four parts. At the beginning of the article, the author discusses the evolution of the succession system and the intestate succession system in ancient Rome, from intestate succession to the first intestate succession, and then to absolute free testamentary succession, starting with reviewing the history of testate succession, and discussing the evolution of the succession system and the intestate succession system in ancient Rome. Finally, the process of restricting the freedom of wills. It not only reviews the history of legal development of testate succession system, but also raises questions and lays the groundwork for further discussion. The second part of this paper, the author has an independent thinking. The author borrows one of Hu Shi's opinion, "without tolerance, there is no freedom", introduces "tolerance" between freedom and restriction, puts forward "freedom, tolerance, restriction", and discusses it. After discussing "tolerance as a bridge between freedom and restriction", it is concluded that the ultimate result of the adoption of the "restriction on will freedom" in testamentary succession is: "not only the rights of the heirs are protected, but also the interests of the heirs are safeguarded. Society as a whole profits from this, is a win-win system, "the conclusion. In the third part, the author enumerates and compares the testamentary succession system of two legal systems in the world. After enumerating the testamentary succession systems of France, Germany, Switzerland, Japan, the United States, Britain, Australia, and Hong Kong, Australia and Taiwan, this paper demonstrates the effective system of testamentary restriction-the retention system and its significance. It also discusses the contents that should be referred to in the revision of inheritance law in our country. In the last part of this paper, the author discusses the legislative defects and deficiencies of the testamentary succession in the present inheritance law of our country with the title of "Rethinking on the Freedom of Wills and restriction system" and the case of testamentary succession in Luzhou, Sichuan Province. Some suggestions are put forward, that is, the system of special retention should be introduced in our country, and the system of testamentary succession should be perfected in our country. On the basis of freedom of will, the restriction of absolute freedom will ultimately benefit individuals, families and society as a whole. After the amendment of the inheritance law, each case should be made to reflect the "fairness and justice" represented by the law. To promote the overall social harmony, civilization and progress. In the part of the conclusion, the author summarizes the whole thesis, puts forward his own conclusion and tries to write some relevant laws and regulations as a personal legislative suggestion.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.5
本文编号：2201070
[Abstract]:The inheritance Law of the people's Republic of China, promulgated in 1985, has now gone through 29 years. During this period, China's social politics, economy, culture, law and other aspects, from the economic base to the superstructure of the rapid changes, great momentum. In particular, people in the property increase significantly at the same time the related legal awareness also greatly improved. It is urgent to have a perfect inheritance law to adjust people's personal and property relations. In this situation, the author wrote this article on the subject of "on the Freedom and restriction of Wills" as a drop in the ocean to express his views. This paper is divided into four parts. At the beginning of the article, the author discusses the evolution of the succession system and the intestate succession system in ancient Rome, from intestate succession to the first intestate succession, and then to absolute free testamentary succession, starting with reviewing the history of testate succession, and discussing the evolution of the succession system and the intestate succession system in ancient Rome. Finally, the process of restricting the freedom of wills. It not only reviews the history of legal development of testate succession system, but also raises questions and lays the groundwork for further discussion. The second part of this paper, the author has an independent thinking. The author borrows one of Hu Shi's opinion, "without tolerance, there is no freedom", introduces "tolerance" between freedom and restriction, puts forward "freedom, tolerance, restriction", and discusses it. After discussing "tolerance as a bridge between freedom and restriction", it is concluded that the ultimate result of the adoption of the "restriction on will freedom" in testamentary succession is: "not only the rights of the heirs are protected, but also the interests of the heirs are safeguarded. Society as a whole profits from this, is a win-win system, "the conclusion. In the third part, the author enumerates and compares the testamentary succession system of two legal systems in the world. After enumerating the testamentary succession systems of France, Germany, Switzerland, Japan, the United States, Britain, Australia, and Hong Kong, Australia and Taiwan, this paper demonstrates the effective system of testamentary restriction-the retention system and its significance. It also discusses the contents that should be referred to in the revision of inheritance law in our country. In the last part of this paper, the author discusses the legislative defects and deficiencies of the testamentary succession in the present inheritance law of our country with the title of "Rethinking on the Freedom of Wills and restriction system" and the case of testamentary succession in Luzhou, Sichuan Province. Some suggestions are put forward, that is, the system of special retention should be introduced in our country, and the system of testamentary succession should be perfected in our country. On the basis of freedom of will, the restriction of absolute freedom will ultimately benefit individuals, families and society as a whole. After the amendment of the inheritance law, each case should be made to reflect the "fairness and justice" represented by the law. To promote the overall social harmony, civilization and progress. In the part of the conclusion, the author summarizes the whole thesis, puts forward his own conclusion and tries to write some relevant laws and regulations as a personal legislative suggestion.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.5
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本文编号：2201070
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