Nheritance law according to the civil law of the socialist republic of Vietnam in 2015

ss of the resolution of inter-related disputes. related to this content. 3. Research subject and scope 3.1. Research subjects The subject of the thesis is the law on inheritance according to the Civil Code of the Socialist Republic of Vietnam in 2015. 3.2. Research scope - Scope of research content: The thesis focuses on studying the provisions of the Civil Code of the Socialist Republic of Vietnam in 2015 on inheritance according to law, however the thesis does not study inheritance according to law. foreign elements. - Scope of space: The thesis focuses on research on inheritance according to law within the territory of Vietnam, besides comparing with some regulations of laws of some countries in the world. . - Time range: The dissertation studies theoretical and practical issues related to inheritance according to law, the provisions of the Civil Code 2015 on inheritance according to law and focuses on understanding the reality of resolving inheritance disputes according to law. laws from 2015 Civil Code. In the context of the Civil Code 2015 only taking effect from January 1, 2017, the author still compares and compares the theoretical and legal issues in the 4 previous Civil Code (Civil Code 1995 and Civil Code 2005), some legal documents in the old period 4. The research method of the thesis The thesis uses the methodology of dialectical materialism and historical materialism based on the Party's views, goals and guidelines, the State's legal policies, and scientific research methods. The human society and the method of scientific research are also used by the author. 5. New contributions of the thesis The thesis "Inheritance at law under the Civil Code of the Socialist Republic of Vietnam in 2015" has shown the following new points: Firstly, supplement and complete some basic theoretical issues about inheritance according to law. Secondly, systematic analysis of the provisions of the Civil Code 2015 on legal inheritance on the basis of theoretical issues studied in the chapter on theory and comparison with the law. laws of some countries, through which there are individual views on the reasonable or limited points of these regulations compared to the previous regulations. Thirdly, the thesis has analyzed and commented on some typical judgments, some practical situations on inheritance disputes under the law during the period when the Civil Code 2015 became legally effective. . From there, point out the causes and propose 5 some recommendations to improve the law on inheritance according to law. 6. The meaning of the thesis 6.1. Scientific significance: The thesis supplements and contributes to perfecting the theory of inheritance according to law in ensuring and protecting the right to inherit and inheritance of each citizen. 6.2. Practical significance: The thesis can be a valuable reference for lawmakers, teaching experts, jurisprudence training facilities ... 7. The structure of the thesis In addition to the introduction, conclusion, list of references, the thesis is structured with 04 chapters: Chapter 1: Overview of research situation and issues related to the topic Chapter 2: Some theoretical issues about inheritance according to law Chapter 3: Actual situation of legal provisions on inheritance according to law Chapter 4: Practical application of the law on inheritance according to law and some recommendations 6 Chapter 1 OVERVIEW OF THE RESEARCH SITUATION AND ISSUES RELATED TO THE TOPIC 1.1. Overview of research situation 1.1.1. Research situation 1.1.1.1. Theoretical studies on inheritance according to law There have been many studies on inheritance according to law in many different angles and perspectives, each project has its own research method and approach but in general, it has analyzed and reflected the mechanical features. The first version of research issues is as follows: * Regarding the concept of inheritance according to law: The concept of inheritance according to law has been studied by some authors in works such as the book "Inheritance according to the law of Vietnamese citizens from 1945 up to now" by Phung Trung Tap, published by Justice Publishing House. 2004 version of the book "Legislation on inheritance and dispute resolution practices", Hanoi Justice Publishing House published in 2017 by Pham Van Tuyet and Le Kim Giang shows that there is a high unity and is based on provisions of the Civil Code such as Article 677 Civil Code 1995, Article 674 Civil Code 2005, Article 649 Civil Code 2015: "Inheritance by law means inheritance according to inheritance goods, conditions and order of inheritance prescribed by law". * About the characteristics of inheritance according to law 7 In research works on inheritance in general and inheritance according to law in particular, there are very few studies that mention the characteristics of inheritance according to law. Although the characteristics mentioned by the authors are different, the authors derive from the reason that the inheritance of the inheritance does not show their will to the fortune. property they had before they died, so the law replaces the will of the person who left the estate to dispose of their properties after they died. The law divides those who are closest to the person who leaves the estate based on three relationships: marriage, bloodline or upbringing according to the conditions and order of the law. * About the meaning of regulations on inheritance according to law Regarding the meaning of the law on inheritance, there have been many studies on the meaning of the law on inheritance as follows: Article: "A number of issues about inheritance rights in the Civil Law" by author Ha Thi Mai Hien State Magazine and Law, No. 5, 1995. [17; p.31], book: "Scientific commentary on some basic issues of Civil Code", Institute of Legal Science Research (1997), edited by author Hoang The Lien, [91. Tr 262], Doctoral thesis of law: "Inheritance according to the law of Vietnamese citizens from 1945 up to now", by Phung Trung Tap (2002), [52], book: "Inheritance according to law of Vietnamese citizens from 1945 to now ”by Phung Trung Tap (2004) [54, P.5] ... 8 The above studies all mention the meaning of the law on inheritance but there have not been any specific studies on the meaning of the law on inheritance. Each perspective of a different author brings up a different meaning of inheritance rules. But from any perspective, we can see the significance and the huge role of the provisions on inheritance in regulating relationships in society today. * Regarding the cases of inheritance according to law The research works on inheritance cases according to law, there are works such as: Book: "Scientific commentary on some basic issues of Civil Code", Legal Research Institute (1997) [91], edited by author Hoang The Lien, book: "Inheritance according to the law of Vietnamese citizens from 1945 to the present ”by Phung Trung Tap (2004) [54], book:" Legislation on inheritance and dispute resolution practices "by Pham Van Tuyet and Le Kim Giang ( 2017) [81] ... The above constructions have an agreement on raising inheritance cases according to law according to the current law provisions at the time such works are announced. Particularly, the book "Inheritance according to the law of Vietnamese citizens from 1945 up to now" (2004) [54], the author of the author Phung Trung Tap pointed out and analyzed the cases of inheritance according to the law in our country before the August Revolution and after the period after the August Revolution to 2004. 9 * About the inheritance and the heirs according to law In recent years, there have been many research works on issues of inheritance according to law, such as: "Scientific commentary on some basic issues of Civil Code", Institute of Legal Science Research ( 1997) [91], authored by author Hoang The Lien, wrote: "Children's rights to property and inheritance, some theoretical and practical issues", by Ha Thi Mai Hien published in the Journal of State and Law, No. 5, 1998 [18], Book: "Some thoughts on inheritance in Vietnam Civil Law" (1999) [11] by Nguyen Ngoc Dien, The article "Discussing the inheritance relationship between stepchild and stepfather" by Thai Cong Khanh published in Journal of People's Court, No. 2/2002. Book: "Legal inheritance of Vietnamese citizens from 1945 to present" by Phung Trung Tap (2004) [54], book: "Legislation on inheritance and dispute resolution practices" (2017 ) by authors Pham Van Tuyet and Le Kim Giang [81] ... The above works are all about inheritance and the scope of people inheriting inheritance according to the law, the suitability or non-conformity of the provisions of Vietnamese law, the limitations of law. Vietnam has not stipulated the right to inherit the position of children and grandchildren when their parents and grandparents are deprived of the right to inherit ... from which the authors propose solutions to amend and supplement the provisions of the law. on inheritance according to law. 10 1.1.1.2. The research works on the actual situation prescribed by law on inheritance according to law Book: "Some thoughts on inheritance in Vietnam Civil Law" by author Nguyen Ngoc Dien (1999), book: "Inheritance according to law of Vietnamese citizens from 1945 to present" by Phung. Trung Trung (2004) [54], the article: "Inheritance in civil laws of some countries in the world" by Tran Thi Hue "[19] published in the State magazine and law in October 2006, No. 222, p.78 - 83 Book: "Legislation on inheritance and dispute resolution practices" by Pham Van Tuyet, Le Kim Giang (2013) [79], book "Inheritance in America from coloninal times to the present ”(1987) from Carole Shammas, Marylyn Salmon, Michel Dililin and Publisher Rutgers [98], book“ A survey of Canadian and German ” Succession Law ”(A survey The Law on Inheritance Law of Canada and Germany by Eric P. Polten (2011) [99], book “Inheritance Law in Germany and Australia” by Schuweizei Kobras (2012) [102]. In the above works, in addition to the authors citing the applicable cases of inheritance according to law, there is a comparison highlighting the perfection, translating over time on the applicable cases of inheritance. According to the law, the comments on the provisions of the law on inheritance for readers to understand and apply those rules in real life. The authors have made their comments on the current situation of the law on inheritance according to law. 1.1.1.3. Practical studies applying the provisions of inheritance according to law 11 Article: "Children's rights to property and inheritance: some theoretical and practical issues", by Ha Thi Mai Hien, published in the State and Legal Journal, No. 5, 1998 [18], "Vietnam's inheritance law - Judgment and judgment" (Volume 1, Volume 2), Do Van Dai (2016), Book: "Scientific commentary on Civil Code 2015 of the Socialist Republic of Vietnam Vietnam National Assembly ”, Nguyen Van Cu, Tran Thi Hue (2017). Book: "Legislation on inheritance and dispute resolution practices" by Pham Van Tuyet - Le Kim Giang, 2017 [81] ... 1.1.2. Evaluate the overview of research works 1.1.2.1. The results have been achieved Theoretically: on the basis of acquiring and inheriting the provisions of the Civil Code, the research works that these works have been achieved, the author uses to serve as the foundation for the theoretical basis of the thesis. In terms of practice: Many works have studied the practical implementation of the law on inheritance in general and inheritance according to the law in particular. These works basically have approaches and data processing in accordance with the evolution of reality over time. The author of the thesis also inherits these methods to conduct research, pointing out the advantages and limitations of the implementation of the law on inheritance according to the law in practice. In terms of proposed solutions: Most of the works are aimed at solutions to ensure the effective application of regulations on 12 inheritance in general and inheritance according to law. The author inherits the spirit of the solutions in general with the basic contents of improving the quality of the contingent of Court and Procuracy staff as well as improving the people's legal knowledge level and making recommendations. a number of other recommendations to ensure the effective application of the law on inheritance. 1.1.2.2. The issues related to the thesis topic posed should be further studied Firstly, although there have been many research works and articles on inheritance in general, there have not been any researches on inheritance according to the law in particular. Therefore, the thesis will give a comprehensive view of inheritance according to law, clarifying the theoretical issues related to this issue. Secondly, culture, science and technology change, socio- economic development, inheritance has changed today compared to traditional heritage, so the subject of disputes also changed, that is also is one of the new points that the thesis needs to study. Corresponding to the change and development of the socio- economy, disputes on inheritance are also increasingly complex in the number and nature of the case, so the thesis researches and proposes new solutions to correct. change laws and improve the effectiveness of the law on inheritance. 13 CHAPTER 2 A NUMBER OF THEORETICAL ISSUES ABOUT LEGAL DEFINITION 2.1. Concept and characteristics of inheritance according to law 2.1.1. Inheritance and inheritance rights Social history has proven that inheritance is an indispensable element of the development process. The wealth that is left unused before death will be left to others and often to the relatives of the dead. Inheritance and the right to inheritance have a close relationship with each other. Inheritance rights are a legal category whose contents define the scope of rights and obligations of entities in the field of inheritance [54, p. 23]. 2.1.2. The concept of inheritance according to law Inheritance at law is the mode of moving the inheritance of the deceased to the survivors but between them and the person leaving the inheritance related to marriage, bloodline or nurture according to the conditions of inheritance, inheritance and The order of inheritance is prescribed by law. 2.1.3. Inheritance characteristics by law An heir at law can only be an individual, only enjoy inheritance according to the conditions prescribed by law. In inheritance according to law, the inheritance must be transferred according to the inheritance line and the inheritance sequence 14 2.2. Meaning of provisions on inheritance according to law Ensuring the inheritance of the heirs is always determined, ensuring the right to inherit of the relatives in the family, contributing to maintaining the social order 2.3. Some issues related to inheritance according to law 2.3.1. Legacy and how to determine it 2.3.1.1. Heritage Definition An inheritance is all property owned by an individual that they leave to their heirs after death. An inheritance includes the following types of property legally owned by the person who leaves an estate: tangible objects, money, valuable papers, property rights. 2.3.1.2. How to determine an estate Inheritance consists of two types: the first is the private property of the dead, the second is the property part of the dead in common property with others. Firstly, the deceased's personal property includes the personal property of a spouse prior to marriage, the property inherited separately from and given to him / her during the marriage period; , husband according to the case of division of common property during the marriage period, property in service of essential needs of the spouse and other properties which, according to law provisions, are privately owned by husband and wife. 15 Secondly, one-half of the assets in the property block are jointly owned by the deceased with their spouses. Third, the assets of the dead are in the part-owned properties. Fourthly, the assets of the deceased due to their capital contribution to various types of enterprises, such as limited liability companies, purchased shares of joint stock companies 2.3.2. Inheritance according to law Inheritance is the range of people who can inherit inheritance determined based on close relationships between the inheritor and the heir. The inheritance area is divided into different rows and the latter only inherits the inheritance when no one is enjoyed in the previous row. 2.3.3. Some common issues about position inheritance Civil Code 2015 does not define what is inheritance, but only lists the cases of inheritance as follows: the case of the child of the person who left the estate died before or at the same time with the person who left the inheritance then the child is entitled to the estate enjoyed by his / her father or mother if still alive; if the grandchild also dies before or at the same time with the person who left the inheritance, the great-grandchildren shall inherit the part of the inheritance of the great-grandchild if they are alive [51; Đ 652]. Thereby, it is possible to draw the concept: Succession is a law prescribed when a parent dies before or dies at the same time with his grandfather, grandmother or grandfather, maternal grandmother, the child is replaced of a father or mother in order to 16 inherit a part of the inheritance which a parent should have been entitled to enjoy from the grandfather, grandmother or grandfather, grandmother and also the case when the parent died before or died at the same time with In particular, the child may replace the position of the father or mother to inherit the part of the inheritance that the father or the mother is still entitled to. CHAPTER 3 CURRENT SITUATION OF LEGAL REGULATIONS ON INHERITANCE 3.1. The principles of Vietnamese law on inheritance according to law. 3.1.1. Every individual is equal in inheritance. Equality reflected in the right to leave an inheritance and the right to inherit it (between father, mother, son and daughter, grandparents and grandparents ...) 3.1.2. Respect the will of the subjects in inheritance relation Is respect for the rights of the person who leaves the estate as well as the right of the beneficiary. For intangible property, being the subject of intellectual property rights, the right to leave the estate of the person leaving the estate is prescribed by law with a number of separate provisions. 3.1.3. Ensuring the right to inherit of some heirs according to law. 3.2. Cases of inheritance according to law 3.2.1. There is no testament 17 Can be interpreted as a person who has an estate that does not make a will or a person who leaves an estate with a will, but their will falls into one of the following conditions: revoke the will itself, or the will was so damaged that it could not be read ... 3.2.2. The testament is not legal An illegal will or a will that is not enforceable is also one of the cases where the estate will be divided according to law. 3.2.3. The heirs at the testament die before or at the same time as the testator; Agencies and organizations entitled to inheritance according to wills no longer exist at the time of opening the inheritance 3.2.4. Those who are appointed as heirs by will without having the right to inherit or refuse to receive the estate The deceased has left a will which clearly states that heirs but the appointed person is not entitled to inheritance because he / she falls into one of the cases specified in Clause 1, Article 621 of the Civil Code 2015 or they refuse receive heritage. In this case, legal inheritance will be applied to resolve the issues that arise. 3.2.5. The estate part is not determined in the will If there are parts of the estate that have not been decided in the will, the properties that have been decided in the will will be divided according to the will, the remaining part that has not been decided in the will will be divided according to the law. 3.2.6 The recipient of the estate does not depend on the content of the will 18 Article 650 of the Civil Code 2015, the cases of inheritance according to the law do not stipulate the case that the recipient of the estate does not depend on the content of the will. However, these are cases where the law stipulates that the person leaving the estate must give those who are closest to them to enjoy the compulsory inheritance (2/3 of the inheritance by law) if disqualify their estate without any inheritor or less than two-thirds of the inheritance prescribed by law. 3.3. Inheritance according to law Inheritance by law is a group of people who have the same degree of closeness to the dead and, accordingly, they share the same inheritance with the inheritance left by the dead [81, p.296]. Civil Code 2015 has the provisions on inheritance in Article 651 as follows: - The first inheritance includes: spouse, natural father, natural mother, adoptive father, adoptive mother, natural children and adopted children of the dead; - The second inheritance includes: paternal grandmother, paternal grandmother, maternal grandmother, maternal grandmother, elder sister, younger siblings of the dead; grandchildren of the dead, of whom the dead are paternal grandfather, maternal grandmother, maternal grandmother; - Third inheritance includes: maternal and maternal grandparents of the dead; uncle, uncle, aunt, aunt of the dead; grandchildren of the dead and deceased are uncle, uncle, aunt, aunt, 19 aunt; great-grandchildren of the deceased whose paternal and maternal grandparents died. From inheritors, the law divides in order into succession rows. However, there are many differences in national regulations on inheritance. Like the civil laws of France, England, USA, Japan, Thailand ... there are other provisions of Vietnamese law such as not dividing inheritance people into three inheritance lines, or spouses. belongs to the first inheritance of each other, or children belong to the first inheritance of the parents but the parents do not belong to the first inheritance of the children ... 3.4. Inherited position Civil Code stipulated in Article 652 on inheritance is as follows: “If the children of the deceased leave before or at the same time with the person who left the estate, then they will inherit the part of their inheritance from their father or mother to be enjoyed if alive; if the grandchild also dies before or at the same time with the person who leaves the inheritance, then the great-grandchild will be entitled to the part of the inheritance of the great-great-grandchild if they are still alive. ” Inheritance is the position of the children, replacing the position of their parents to inherit. 20 3.5. Division of inheritance according to law When studying the provisions of law as well as heritage division practices, some key contents may be given: First, identify the heirs according to the law in the previous inheritance Second, the estate is equally divided among those who inherit it in the same row. Third, if there is a situation where the heir inherits an inheritance in kind, the difference (if any) must be paid. Fourthly, cases of restriction on division of inheritance according to law. Article 661 of the Civil Code 2015 provides for cases of restriction of division of inheritance [51, Article 661]. Fifth, dividing the estate in case of having new heir or having inheritance denied Sixth, regarding the division of inheritance as intellectual property rights, the law has a number of separate provisions CHAPTER 4 PRACTICE OF APPLICATION OF LEGISLATION ON INHERITANCE ACCORDING TO LAW AND A NUMBER OF RECOMMENDATIONS 4.1. General assessment of inheritance disputes under the law in Vietnam in recent years According to figures of the Supreme People's Court reported to the National Assembly at the October annual meeting, 21 the ratio of inheritance disputes to the general civil disputes is filed by all Courts (including Appellate and appeal) increasing acceptance. The first instance trial in 2017 and 2018 had the high