我国特留份制度之建构研究——基于比较法视角

Discussion on the Establishment of Legal Portion System in China——Based on the Perspective of Comparative Law

特留份制度是各国限制遗嘱自由的重要措施,我国《继承法》未作规定,应当在修订《继承法》时引进该项制度,通过对被继承人强制性引导,以平衡继承利益与遗嘱自由,防止因滥用遗嘱自由而违背公序良俗,从而维护社会公益与社会公德。文章以学者制定的已有的民法典草案及继承法草案为研究对象,在比较考察域外法规定的基础上,结合我国继承法的现状,通过分析特留份制度的理论基础,从"必留份"条文的存废问题、特留份权利人的范围、特留份额的确定、扣减权的行使以及特留份权的丧失等方面提出自己的看法,以为将来《民法典》继承编的制定尽微薄之力。

Legal portion system is an important measure of restriction to freedom of testament,but Inheritance Law has not been stipulated.The system should be introduced in the procession of revising Inheritance Law,for balance is maintained in the interests of inheritance and freedom of testament by mandatory guidance to the inheritors.Violating public order and good customs is prevented from abusing freedom of testament,so as to maintain the social welfare and social morality.By taking the draft of the civil law and inheritance law as the research objects,on the basis of comparative study of extraterritorial law,combined with the current situation of the inheritance law in our country,and through the analysis of the theoretical basis of the legal portion system,the paper presents some views from existence and abolishment of＂certain heirdom＂,the range of the obligee of legal portion,the share of the legal portion,the exercise of the right of deduction and the loss of the legal portion,so as to make a contribution to the stipulation of Civil Law.