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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES -L NGUYEN VIET GIANG INHERITANCE BY SUBSTITUTION UNDER THE VIETNAMESE LAW Major: Economic Law Major code: 9.38.01.07 SUMMARY OF THE DOCTORAL DISSERTATION IN LAW Hanoi - 2022 The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Supervisor: Assoc Prof Dr Ha Thi Mai Hien Reviewer 1: Assoc Prof Dr Nguyen Huu Chi Reviewer 2: Assoc Prof Dr Pham Huu Nghi Reviewer 3: Assoc Prof Dr Tang Van Nghia The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi Time: ………… date ……… month …… …year 2022 The dissertation may be found at: - Vietnam National Library; - Graduate Academy of Social Sciences Library INTRODUCTION The necessity of the research topic Inheritance refers to the assets a person leaves to others after they die According to the current Vietnamese law, inheritance right is one of the basic rights of citizens recognized and protected by the law, and recognized by the 2013 Constitution as “Private ownership and inheritance rights are protected by law”1 The current legal provisions on inheritance are quite fully regulated in the Civil Code 2015 Inheritance has two forms: testamentary inheritance and inheritance at law Inheritance by substitution is a case arising from inheritance at law, in which child and grandchild of the heir shall be entitled to inherit the part of the estate that left by the deceased In the context of current international integration and the industrial revolution 4.0, the number and value of assets of individuals are increasingly large and diverse in form, many disputes over inheritance of the estate left by the deceased have also arisen, including cases related to inheritance by substitution However, there are still many problems to solve cases related to inheritance by substitution at the Court in practice and not all cases can be resolved sensibly These problems still exist because there are still many obstacles and inadequacies in both theory and practice in applying legal provisions on inheritance by substitution Therefore, it is very necessary to examine theoretical issues on the provisions of the law and applying the provisions of the law on inheritance by substitution in Vietnam today in order to propose direction and solutions to improve the provisions of the law on inheritance by substitution in Vietnam in the coming years From above reasons, the author has conducted research titled “Inheritance by substitution under the Vietnamese law” as his doctoral dissertation in law Research purpose and tasks 2.1 Research purpose The study aims to clarify theoretical issues on inheritance by substitution, assess the current situation of legal provisions and practices of applying provisions on inheritance by substitution in Vietnam today, thenceforth, it proposes directions and solutions to improve the provisions of the law on inheritance by substitution in Vietnam 2.2 Research tasks Clause 2, Article 32 of the 2013 Constitution - Examine, analyze and clarify theoretical issues on inheritance by substitution - Examine, assess the current situation of the law and the law enforcement on inheritance by substitution in the Vietnamese legal documents and compare with the law on inheritance by substitution of some countries in the world, and the the study indicates inadequacies in applying the provisions of the law on the issues in Vietnam today - Propose directions and solutions to improve the law on inheritance by substitution in Vietnam Research subject and scope 3.1 Research subject The research subject of the dissertation is theoretical issues, the content of the provisions of the law on inheritance by substitution, situation of the law and applying the provisions of the law on these issues in practice in Vietnam 3.2 Research scope The dissertation seeks to examine theoretical issues, the provisions of the law on inheritance by substitution in Vietnam through legal documents, especially Civil Code 1995, 2005 and 2015; the situation of applying legal provisions, problems and inadequacies in applying provisions on inheritance by substitution, and then its proposes directions and solutions to improve the provisions of the law on these issues in Vietnam Methodology and research methods 4.1 Methodology The dissertation is based on historical and dialectical materialism of MarxismLeninism, Ho Chi Minh’s thought on the state and law, perspective of the Communist Party of Vietnam on judicial reform and building a socialist rule-oflaw state, ownership and inheritance In addition, the dissertation has also learned legal ideas and the provisions of the law of some countries in the world on inheritance by substitution 4.2 Research methods Chapter uses methods of analysis, synthetics, comparison and induction to generalize issues related to the previous research works to find out valuable contents which should be inherited and further examined in the dissertation Chapter uses methods of analysis, deduction and synthetics to clarify theoretical issues on inheritance by substitution In addition, the author uses the historical method to summarize the history of the provisions of the law on inheritance by substitution Chapter uses methods of analysis, deduction and comparison to clarify the provisions of the law on inheritance by substitution under the Vietnamese law Chapter uses methods of deduction, comparison, analysis, synthesis and logical method to analyze direction and solutions to improve the provisions of the law on inheritance by substitution in Vietnam in the coming years New contributions of the dissertation The dissertation is the first separate and intensive research work on inheritance by substitution under the provisions of Vietnamese law It has collected and evaluated fully and systematically scientific works that examine the provisions of the law on inheritance and inheritance by substitution in Vietnam By using many research methods, the dissertation seeks to examine, analyze and clarify a number of theoretical issues on inheritance by substitution, amendments to the law, factors affecting the law on inheritance and inheritance by substitution and it points out significance of inheritance by substitution in strengthening relationship between members in the family, serving the basis for sustainable development of society The dissertation analyzes and assesses the content of the provision of Vietnamese law on inheritance by substitution in legal documents, especially the provisions of the law on inheritance by substitution in the Civil Code 2015, as well as the current situation of legal provisions on inheritance by substitution in Vietnam and inadequacies in applying these provisions in Vietnam today The dissertation proposes some solutions to improve the law and enhance the efficiency of implementing the law on inheritance and inheritance by substitution in Vietnam today Theoretical and practical significance of the dissertation Theoretically: the dissertation examines fully, comprehensively and systematically theoretical issues on inheritance by substitution, the content of the provisions of the law relating to inheritance by substitution The research results of the dissertation contribute to further development and improvement of reasoning of inheritance by substitution and the content of the provisions of the law relating to inheritance by substitution in Vietnam today Practically: the dissertation can be seen reference for researching in the institutions of law, agencies of law enforcement and for those interested in this issue The recommendations on directions and solutions to improve the provisions of the law on inheritance by substitution in the dissertation are significant scientific contributions to the amendment and improvement of the provisions of the law on inheritance by substitution in Vietnam in the coming years Structure of the dissertation Besides the introduction, conclusion, and references, the dissertation includes chapters: Chapter 1: Literature review Chapter 2: Some basic theoretical issues on inheritance and inheritance by substitution Chapter 3: Situation of the law and practical application of the law on inheritance by substitution in Vietnam today Chapter 4: Directions and solutions to improve the law on inheritance by substitution in Vietnam today Chapter LITERATURE REVIEW 1.1 Reviewing literature 1.1.1 Research works on inheritance and inheritance by substitution under the law (1) Property regime in Vietnamese family by Vu Van Hien, 1960 (2) Studying the Vietnamese legal system in the fifteenth and eighteenth centuries by Dao Tri Uc, 1994 (3) Some issues of Vietnamese civil law from the 15th century to the French colonial period, Ministry of Justice - Legal Science Research Institute, 1998 (4) Some thoughts on inheritance in Vietnamese civil law by Nguyen Ngoc Dien, 1999 (5) Scientific commentary on inheritance in the Civil Code by Nguyen Ngoc Dien, 2001 (6) 110 questions – answers of law on inheritance by Le Kim Que, 2001 (7) Inheritance - the provisions of the law and application in practice by Pham Van Tuyet, 2007 (8) Learn the legal provisions on inheritance by Duong Bach Long, 2008 (9) Inheritance law of Vietnam - Theoretical and practical issues by Nguyen Minh Tuan, 2009 (10) Civil law and trial practice by Tuong Duy Luong, 2009 (11) Vietnamese inheritance law by Phung Trung Tap, 2010 (12) Inheritance under the law of Vietnamese since 1945 by Phung Trung Tap, 2010 (13) Inheritance under Vietnamese civil law - theoretical and practical issues by Tran Thi Hue, 2012 (14) Inheritance law of Vietnam, judgment and judgment commentary by Do Van Dai, 2013, volumes (15) Ownership rights of Vietnamese citizens by Ha Thi Mai Hien, doctoral dissertation, 1996 (16) Ownership of individuals and methods of protection by Hoang Ngoc Thinh, doctoral dissertation, 2000 (17) Inheritance under the law of Vietnamese citizens since 1945 by Phung Trung Tap, doctoral dissertation, 2002 (18) Theoretical and practical basis of the general provisions on inheritance in the Civil Code by Nguyen Minh Tuan, doctoral dissertation, 2007 (19) Inheritance under the law in the Civil Code of Vietnam by Che My Phuong Dai, Master thesis, 2000 (20) Heirs under the provisions of the Civil Code 2005 by Phan Thi Kim Chi, Master thesis, 2006 (21) Heirs under the Vietnamese civil law by Do Quang Oai, Master thesis, 2006 (22) “Payment and division of inheritance in Vietnamese civil law” by Do Thi Van Gain, Master thesis, 2007 (23) “Those who are not entitled to inherit according to the provisions of current law” by Ha Dieu Hang, Master thesis, 2009 (24) “Theoretical, social and practical basis for determining inheritance and division of inheritance under the law in Vietnam Civil Code 2005” by Le Thu Nga, Master thesis, 2009 (25) “Heirs under the provisions of Civil Code 2005” by Vu Thi Huong, 2013 (26) “Theoretical and practical issues to improve the efficiency of the settlement of inheritance disputes at the People's Court” by Tuong Duy Luong, Ministerial project, 2001 (27) “Inheritance disputes at the People's Court and recommendations” by Hoang Van Lien, Ministerial project, 2011 (28) “Completing the institution of inheritance in the Civil Code” by Nguyen Van Manh, Journal of Legislative Studies, No 4, 2002 (29) “Some issues on inheritance according to law” by Nguyen Dinh Toan, People's Court Journal, No 9, 2009 (30) “Practical application of the provisions of the Civil Code 2005 on the institution of inheritance” by Nguyen Hai An, People's Court Journal, No 17, 2012 (31) “Some inadequacies on the institution of inheritance need to be amended and supplemented in the 2005 Civil Code” by Tran Thi Hue, People's Court Journal, No 11, 2013 (32) “Inheritance according to the relationship between the stepchild and the stepfather or the actual marriage relationship?” by Dang Thi Thom, People's Court Journal, No 13, 2014 (33) “Some Inadequacies on Inheritance in the Civil Code 2005” by Do Van Dai, Journal of Legislative Studies, No 2, 2014 (34) “Inheritance rights of the adopted person” by Nguyen Van Canh, People's Court Journal, No 23, 2015 1.1.2 Research works on inheritance by substitution (1) “Inheritance by substitution under the provisions of the Vietnamese law” by Pham Thi Bich Phuong, Master thesis, 2006 (2) “Inheritance of grandchild and great-grandchild under the provisions of the Vietnamese law” by Le Duc Ben, 2009 (3) “Inheritance by substitution under Vietnamese Civil Code 2015” by Nguyen Viet Giang, Master thesis, 2013 (4) “Some theoretical and practical issues on inheritance by substitution” by Deo Thi Lan Huong, Master thesis, 2014 (5) “Some thoughts on Article 680 of the Civil Code (inheritance by substitution)” by Nguyen Hai An, People's Court Journal, No 4, 2004 (6) “Difficulties and obstacles in implementing Article 679 of the Civil Code 2005 on inheritance relations between stepchildren and stepfather and stepmother” by Thai Cong Khanh, People's Court Journal, No 16, 2006 (7) “Inheritance by substitution under the Civil Code 2015 – Some theoretical and practical issues” by Nguyen Viet Giang, People's Court Journal, No 3, 2014 (8) “Some issues on inheritance by substitution in cases of stepchildren with stepfather, stepmother” by Pham Thi Bich Phuong, People's Court Journal, No 15, 2014 (9) “Comments on amending the Civil Code to the regulations on inheritance by substitution” by Nguyen Thi My Linh, Journal of State and Law, No 10, 2015 (10) “Inheritance by substitution under the civil law” by Doan Thi Ngoc Hai, People's Court Journal online, April 2019 (11) “La représentation successorale au lendemain de la loi du 23 juin 2006 » by Sophie Gaudemet, Defrénois Journal, 2006, p 1266 (12) « Persones, Famile et Successions” by Marilyn Piccint Roy, Yvons Blais Publishing House 2003, p 371 (13) La substitution (articles 739-743 du Code civil) http://socialsante.wallonie.be/surendettement/professionnel/ ?q=informationsobligations-personnes-successions-devotion-substitution (14) Legs universels, prédécès de l'un des légataires by Jean Patarin, Journal of RTD Civ, 2001, p 410 (15) Successions et familles au Liban in Les successions by Alexa MoukarzelHechaim, Bruylant Publishing House, 2012, p 107 (16) European Judicial Network, General information – Lithuania, 2015 https://e-justice.europa.eu/content succession-166-lt-en.do (17) Brief overview of the Norwegian inheritance law, NorJus, 2018 http://www.norjus.no/visartikkel.asp?art=254#4 (18) Yelena Anatolyevna Kirillova and Varvara Vladimirovna Bogdan, Institution of Hereditary Substitution in the Inheritance Law: A Rather-Legal Analysis, South-West State University Kursk, Kursk, Russia, 2013 https://www.idosi.org/wasj/wasj27(elelc)13/109.pdf (19) Regulations on inheritance in Roman law, Nguyen Thong Quang, 2017 https://dethi.violet.vn/present/quy-dinh-ve-thua-ke-trong-luat-la-ma12036875.html (20) J.C.B.Mohr, International Enclopedia of Comparative Law, International Association of Legal Science, BRILL Publishing House, Volume I – National Reports (Viktor Knapp - Chief Editor), 1976 (21) Charles Holbech, The Residential Nil Rate Band: A Path through the Maze, Radcliffe Chambersm, 2015 (22) Law and society of Vietnam in the XVII-XVIII centuries by Insun Yu, Radcliffe Chambersm 1994 1.2 Comments on the research situation 1.2.1 General comments The amount of research works related to the dissertation is relatively rich and diverse The research results of the above works have provided a great amount of knowledge and have a certain significance to further improve the provisions of the law on inheritance in general and inheritance by substitution in particular in Vietnam today However, previous research works have just analyzed some provisions on inheritance in a number of specific legal documents, meanwhile the issue of inheritance by substitution is mentioned partly or in a particular aspect For research works on inheritance by substitution, they have generally mentioned this issue from perspective of actual legal provisions, analyzed the situation of applying the provisions on inheritance by substitution, and pointed out inadequacies in applying these regulations in practice, thereby, they have proposed directions for amending and improving these regulations but there haven’t been systematic and comprehensive research works on inheritance by substitution by multi-dimensional approach and inheritance over time of the provisions of the law on inheritance by substitution 1.2.2 Unified contents of research Theoretically: issues of general perception of inheritance by substitution and the meaning of this provision have been clarified Research works have suggested that there should be regulations on inheritance by substitution The regulations contribute to ensuring the inheritance rights of citizens, the right to dispose of their property while they are alive or dead, and to ensure that the deceased's estate is left to their closest people in accordance with traditional customs of the Vietnamese people Regarding the content of legal provisions on inheritance by substitution: Research works have pointed out a number of problems and inadequacies in the process of applying legal provisions on inheritance by substitution in Vietnam always associated with ownership issues As society develops, the assets owned by individuals are increasingly large, rich and diverse, so it is necessary to effectively protect ownership of the owners, in which the law on inheritance in general and inheritance by substitution in particular, is one of the most effective tools to protect property Studying this issue contributes to improve the provisions of the law on inheritance in general and inheritance by substitution in particular, in accordance with the characteristics of each country in each period By reviewing literature, the author found that these research works have solved many issues related to inheritance in general and inheritance by substitution in particular Thus, the author might have experiences, approaches, and appropriate methods, at the same time the author can make content, purpose, meaning, and direction in the dissertation The research results of previous works as the basis for the author to analyze the theoretical issues on inheritance by substitution, the provisions of the law of some countries in the world and Vietnam in terms of inheritance by substitution so as to further clarify the theoretical issues on inheritance by substitution and point out inadequacies and limitation of the legal provisions on this issue under the Vietnamese law, at the same time giving directions and solutions to improve the provisions on this issue Chapter SOME THEORETICAL ISSUES ON INHERITANCE AND INHERITANCE BY SUBSTITUTION 2.1 Some theoretical issues on inheritance law 2.1.1 Concept of inheritance, inheritance rights, inheritance law 2.1.1.1 Concept of inheritance According to the Vietnamese Great Dictionary, inheritance is inherited property left by the deceased person: Inheritance of property.2 According to the Dictionary of Jurisprudence, “Inheritance is the transfer of the deceased’s property to the heirs.3 The dictionary explaining jurisprudence of Hanoi Law University defines: “Inheritance means property is transferred to the legal heirs of the owner after his death”.4 Thus, according to this definition, the nature of inheritance is the transfer Vietnamese Great Dictionary, National University Publishing House, HCM city, 2011, p 1553 Dictionary of Jurisprudence, Justice Publishing House, 2006, p 754 The dictionary explaining jurisprudence, Hanoi Law University, People's Public Security Publishing House, 1999, p 123 11 of assets and property ownership of the deceased to organizations and individuals with the right to inherit (referred to as heirs) and the heir becomes the owner of the property under testament or the law 2.1.1.2 Concept of inheritance right Inheritance right is understood as the right of individuals and non-personal subjects related to the transfer of property of the deceased to the living person under the testament or a certain order, in which individuals have the right to leave their assets to others or to inherit another's inheritance under the testament or the law, while subjects other than individuals have the right to inherit property under testament 2.1.1.3 Concept of inheritance law Inheritance law is a system of legal norms governing the transfer of the deceased property to the living in a certain order and procedure 2.1.2 Basic principles of inheritance law 2.1.2.1 Principle of respecting the will of the heir 2.1.2.3 Principle that the heir must be alive at the time of opening the inheritance 2.1.2.4 Principle of unity between rights and obligations in inheritance 2.1.2.5 Principle of protecting the rights of heirs who are not inheritance 2.1.3 Inheritance The term “inheritance” is used in many different fields such as archeology, culture, art, economics, and law However, in the field of inheritance, this concept is understood as the inheritance including all assets owned by the deceased According to current Vietnamese law, “inheritance includes the separate property of the deceased, the part of the deceased's separate property in the common property with other people”.5 2.1.4 Heirs Heirs are people who enjoy inheritance left by the deceased under a will or the provisions of the law According to current Vietnamese law, heirs include testamentary heirs and heirs at law In addition, an heir must be someone who was still alive at the time of opening the inheritance or was born but still alive after the time of opening the inheritance but became pregnant before that person died In Article 612 of the Civil Code 2015 12 case the testamentary heirs are not individuals, must be present at the time of opening the inheritance.6 2.1.5 The meaning of the inheritance institution in modern law First, the inheritance law has institutionalized the guidelines and policies of the Party and State for several basic human rights in the civil field Second, the inheritance law is important in establishing, consolidating, and protecting property Inheritance is the continuation between leaving the deceased’s estate and receiving the estate of the living person Third, the inheritance law contributes to the adjustment of social relations in stable order so as to resolve disputes and conflicts 2.2 Some theoretical issues on inheritance by substitution 2.2.1 Concept of inheritance by substitution According to the Sino-Vietnamese dictionary, “substitution” means the replacement of position According to the dictionary explaining jurisprudence of Hanoi Law University, “inheritance by substitution means inheritance by replacing position to inherit”.7 From definition mentioned above, we can understand that inheritance by substitution means someone was replaced the position of a deceased to be entitled the inheritance of another person who died or died after the deceased According to current Vietnamese law8, inheritance by substitution means a child shall replace farther or mother to receive assets from grandfathers, grandmothers or great-grandparents if his/her father or mother died before or at the same time as the estate leaver However, this regulation has only listed the cases of inheritance by substitution without defining what is inheritance by substitution In addition, the 2015 Civil Code also stipulates on the inheritance relationship between the adopted child and the adopted father and mother in Article 653 and the inheritance relationship between stepchild and stepfather and stepmother in Article 654 Therefore, it can be defined “Inheritance by substitution means someone is in the next class (heirs) shall replace position of the previous class to be entitled to inherit the estate that his/her father or mother would have inherited if he or she was still alive at the time of opening the inheritance or was born and was still alive after the time of opening the inheritance but became pregnant before the estate leaver died Article 613 of the Civil Code 2015 The dictionary explaining jurisprudence, Hanoi Law University, p 125 Article 652 of Civil Code 2015 13 2.2.2 Principle of inheritance by substitution Inheritance by substitution is a part of the inheritance law, so it must be consistent with the general principles of the law in general and inheritance law in particular According to current Vietnamese law, there are four basic principles of inheriting substitution: 2.2.2.1 Inheritance by substitution does not rely on testamentary inheritance 2.2.2.2 The heirs must be direct descendants of someone who died before or died at the same time as the estate leaver 2.2.2.3 The heirs must be still alive at the time of opening the inheritance or were born and still alive after the time of opening the inheritance but became pregnant before the estate leaver 2.2.2.4 The heirs are entitled to the only estate that their parents shall be entitled if they are still alive 2.2.3 Conditions for inheriting substitution Inheritance by substitution must comply with the general principles of inheritance law, in addition to inheriting substitution, the heir must also satisfy specific conditions in Article 652 of the Civil Code 2015 According to this provision, inheritance by substitution just apply for case where a child of an estate leaver dies before or at the same time as the estate leaver Inheritance by substitution just arises when child and grandchild of the estate leave die before or at the same time as the leaver In principle, according to Article 619 of the Civil Code 2015, for those who have the rights to inherit each other die at the same time, they are not entitled to each other’s inheritance However, Article 652 of the Civil Code 2015 is an exception to Article 619 of the Civil Code 2015, that is, in the case where the child of the estate leaver dies before or at the same time as the estate leaver, the grandchild shall be entitled to inherit The application is similar to the greatgrandchild Accordingly, the first prerequisite for inheritance by substitution is that a child of an estate leaver dies before or at the same time as the estate leaver, then his/her grandchild shall be entitled to inherit the part of the estate that his/her father or mother would have inherited if he or she was still alive; if such grandchild also dies before or at the same time as the estate leaver, then the great-grandchild of the estate leaver shall be entitled to inherit 2.2.4 Inheritance of inheriting substitution As mentioned in Section 2.1.3, inheritance is determined by the provisions of Articles 612 of the Civil Code 2015 and other relevant articles 14 Inheritance of inheriting substitution is also determined by the provisions of Article 612 of the Civil Code 2015 but it may be the whole or only part of the deceased’s estate due to depending on the heirs in the same line with father, mother of grandchild or great-grandchild to be one person or more and this is only the part of the estate of his/her father, mother shall be entitled if they are still alive 2.2.5 Heirs by substitution As mentioned in Section 2.1.4, the heir is someone who inherits the estate left by the deceased under a will or the provisions of the law However, inheritance by substitution is a special case arising from inheritance at law, just apply for the estate under the law without arising from testamentary inheritance According to the provisions of Article 652 of the Civil Code 2015, the heir by substitution can be individual including grandchild or great-grandchild of the estate leaver 2.2.6 Meaning of the provisions of the law on inheritance by substitution First, the regulation on inheritance by substitution is a part of the legal system of inheritance that aims to transfer of the deceased’s property to the alive person, which is closely linked to the interests of individuals, families, communities, and clans Second, inheritance by substitution is important for the basic nucleus in society that is the family Third, inheritance by substitution contributes to maintaining and protecting traditions and ethics in the relationship among the closest relatives of the estate leaver and it reflects moral, economic and social aspects 2.3 History of the provisions of the law on inheritance by substitution Regulations on inheritance by substitution have appeared for a long time in the process of human development In Vietnam, regulations on inheritance by substitution have appeared different regulations over periods such as feudalism, French colonialism, and the period after the August 1945 revolution Sub-summary of chapter Inheritance by substitution is a special case arising from inheritance at law This provision allows natural children to replace their father or mother to inherit the estate of maternal and paternal grandfather, grandmother for the estate that father or mother shall be entitled to if they are still alive or if their parents died before maternal and paternal grandfather, grandmother 15 Examining theoretical issues related to inheritance by substitution plays an important role to further understanding the nature, advantages and disadvantages of current regulations on this issue From theoretical issues on inheritance by substitution, comparing with the current legal provisions on inheritance by substitution and applying these regulations in practice, the author can find out inadequacies of the legal provisions, the causes of these inadequacies so as to propose directions and solutions to improve the provisions of the law on inheritance by substitution in Vietnam in the coming years Chapter SITUATION OF THE LAW AND PRACTICAL APPLICATION OF THE LAW ON INHERITANCE BY SUBSTITUTION IN VIETNAM TODAY 3.1 Situation of the law on inheritance by substitution in Vietnam today 3.1.1 Those who are inherited by substitution 3.1.1.1 Inheritance by substitution under blood relations Grandchildren and great-grandchildren may inherit substitution at law However, at present, in addition to the grandchildren and great-grandchildren who are inherited, in fact, there have been many cases where both grandchildren and great-grandchildren died before or died in the same time with estate leaver, so there is the next general only However, the law does not have provisions on inheritance by substitution toward these subjects, so the court cannot protect their interests 3.1.1.2 Inheritance by substitution according to the care and nurturing relationship * Inheritance by substitution toward adopted children According to Article 653 of the Civil Code 2015, an adopted child, in addition to inheriting biological father and mother’s estate, he/she is also entitled to inherit adoptive father and adoptive mother because he/she is an heir in the first line under the law on adoptive parents However, according to the above provisions, it can be understood that the adopted child is also entitled to the estate of the adopter because Article 652 of the Civil Code just stipulated such a child without specifying whether natural child or adopted child So, it is necessary to have specific guidance on this issue * Inheritance by substitution toward stepchild of stepfather and stepmother According to Article 654 of the Civil Code 2015, stepchild, stepfather and stepmother are entitled to inheritance in general and inheritance by substitution in 16 particular when they “have a caring and nurturing relationship” Currently, although the Supreme People's Court has an explanation of inheritance between stepchild and stepfather, stepmother in the direction of the stepchild, stepfather and stepmother just have a relationship of mutual care and support, they might inherit each other’s estate without living together.9 However, this issue just answers partially the stepchild, stepfather and stepmother just need to have a relationship of caring and nurturing each other without being forced to live together, they are still inherited each other’s estates In cases where they have a relationship of mutual care and support but one side violates obligation of caring and nurturing but not too serious, can they inherit each other’s estate? Is the nurture similar to “maintenance” under the law on marriage and family? Therefore, it is necessary to have specific guidelines on these issues 3.1.1.3 Inheritance by substitution in the case of childbirth in vitro fertilization (IVF) According to Article 93 of the law on marriage and family 2014, a child was born by IVF technique is determined to be the child of the couple applying this technology, he/she shall have all rights and obligations as prescribed by law including the right to inheritance Therefore, when this child dies before or at the same time as the father or mother, his/her child will be entitled to inherit the estate of grandparents However, the IVF also has many problems, especially the cases of “birth from sperm, ovum, embryo of a deceased person”, so it is necessary to consider inheritance by substitution of these cases 3.1.2 Those who are not entitled to inheritance by substitution 3.1.2.1 Those who are not entitled to inheritance For those who are not entitled to inheritance to be specified in Clause 1, Article 621 of the Civil Code 2015 including: - Persons convicted of intentionally infringing upon life, health, or of serious mistreatment towards the estate leaver and seriously infringe upon honor and dignity of the estate leavers - Persons who seriously violate the obligation to nurture the estate leaver - Persons convicted of intentionally infringing upon other heirs' lives in order to enjoy part or all of the estate that such heirs are entitled Section 8, Part III, document No 212/TANDTC-PC dated September 13, 2019 of the Supreme People's Court on answering online some problems in the trial 17 - Persons who deceive, coerce or prevent the estate leaver from making a will, forging a will, modifying a will, destroying a will, or concealing a will in order to enjoy part or all of estates against the will of the estate leaver 3.1.2.2 In cases of the heir refuses the estate An heir who refuses the estate must also ensure the order and procedures prescribed by law and he/she does not refuse when dodging his/her property obligations towards other people 3.1.2.3 In cases of the heir to be deprivated the right to inherit the estate Deprivation of the right to inherit the estate is one of the powers of the estate leavers, they have the right to make a will to express their will to dispose of property after death and the deprivation of the heir’s estate through a testament For those whose names are in the testament shall be considered to be deprivated the right to inherit the estate, including grandchild and great-grandchild, unless the heirs not depend on the content of the testament under Article 644 of the Civil Code 2015 3.2 Practical application of legal provisions on inheritance by substitution in Vietnam 3.2.1 Inheritance by substitution of grandchildren and great-grandchildren Article 652 of the Civil Code 2015 only stipulates that the heirs are grandchildren and great-grandchildren but the estate leaver may still have the fifth generation and in fact, children, grandchildren and great-grandchildren of the estate leaver died before or at the same time as the estate leaver However, due to the law does not stipulate the fifth generation of the estate leaver is entitled to inherit, when these cases occur, the Court has no grounds to protect the interests of the subjects 3.2.2 Inheritance by substitution of adopted child According to the provisions of Article 653 of the Civil Code 2015, the adopted child’s children are still inherited when their mother/father dies before or at the same time as the estate leaver However, according to the above provisions, it can be understood that the adopted child of that adopted child is also entitled to inherit because Article 652 of the Civil Code just stipulates such “child” without specifying whether natural child or adopted child Therefore, there are many different views on this provision and makes difficult for the Courts to handle related cases So, it is necessary to have specific guidance on this case for a uniform understanding and application 18 3.2.3 Inheritance by substitution of stepchild As analyzed in section 3.1.1.2 on the situation of this regulation, there are still many shortcomings in applying this regulation in practice For example, how long does it take for these subjects to care for and nurture, and how is the extent of providing financial for nurturing to be considered to have a relationship of nurturing and caring for each other in practice? In case there is a relationship of caring and nurturing each other but one side does not seriously violate the obligation to nurture, they can inherit each other? Does this “nurture” mean “support” under the law on marriage and family? In addition, in fact, there is no unified understanding of the meaning of stepfather and stepmother because in many cases where mother’s first husband or father’s first wife has a relationship of caring and nurturing like father and child, mother and child with the child of second wife or second husband of parents Thus, whether these people can be identified as stepfathers, stepmothers or not, and there is still controversy about whether arising inheritance by substitution in this case or not Therefore, it is necessary to have specific guiding documents on this issue 3.2.4 Inheritance by substitution in the case where birth in vitro fertilization In fact, there are still several problems in the case where birth in vitro fertilization, especially the cases of birth from sperm and ovum of a deceased person According to the provisions of the Law on Marriage and Family 2014, Decree 10/2015/ND-CP dated January 28, 2015 of the Government and Decree 98/2016/ND-CP dated July 1, 2016 of the Government amending some articles of Decree 10/2015/ND-CP dated January 28, 2015 on the issue of childbirth in vitro fertilization, if sperm banking receives notice from the family that sperm and oocyte donor dies, they must destroy the sperms and oocytes, except donor’s wife or husband agrees and pays storage fees However, these documents also not mention how long to store sperms and oocytes and who and how is entitled to use these sperms and oocytes? Moreover, the law just also stipulates father and mother of a child who was born within 300 days from the time his/her father or mother dies while the storage of sperms and oocytes can be prolonged for many years, so children were born after 300 days from the death of their parents will not guarantee several rights including inheritance Therefore, it is necessary to have specific regulations and guidelines on this issue to ensure these children’s rights 19 Sub-summary of chapter Inheritance by substitution is a special inheritance case arising from inheritance at law, so the heirs also have a very special status According to the provisions of the Civil Code 2015, every individual has similar rights to inherit the estate under the will or the law When the deceased does not have a will, his/her estate will be divided to the line of inheritance under the law, the first heir is father, mother, wife, husband, and children of the deceased Grandchildren or great-grandchildren will be heirs at the second and third lines when all heirs at the first line died These grandchildren or great-grandchildren of this deceased can still enjoy the estate similar to those in the same line of their grandfather, grandmother, father or mother as a substitute for their parents to inherit the estate of the deceased in accordance with the law on inheritance by substitution However, by analyzing the situation of the law on inheritance by substitution in Vietnam and the practical application of these regulations, it can be seen that there are still many inadequacies of the legal provisions on inheritance by substitution in Vietnam, this leads to many different interpretations and application for the legal provisions on inheritance by substitution Therefore, it is necessary to have appropriate directions and solutions to improve the provisions of the law on inheritance by substitution at present Chapter DIRECTIONS AND SOLUTIONS TO IMPROVE THE LAW ON INHERITANCE BY SUBSTITUTION IN VIETNAM TODAY 4.1 Directions to improve the law on inheritance by substitution Improving the provisions of the law on inheritance by substitution must ensure compliance with the guidelines and policies of the Party and State, ensure human rights and citizen’s rights and in accordance with the fine customs and traditions of the nation as well as the process of international integration 4.2 Solutions to improve the law on inheritance by substitution in Vietnam today 4.2.1 Solutions to improve the provisions of the law on inheritance by substitution 4.2.1.1 Inheritance by substitution of grandchildren and great-grandchildren under Article 652 of the Civil Code 2015 From inadequacies in applying the provisions of Article 652 of the Civil Code 2015, the author thought that this law should remove the phrase “grandchild is entitled to inherit the part of the estate that his/her father or mother would have inherited if he or she was still alive” (paragraph 1) and also remove the same phrase 20 in paragraph for great-grandchild Accordingly, Article 652 should be amended and supplemented as follows: In the case where a child of the estate leaver dies before or at the same time as the leaver, the grandchild will replace father or mother to inherit the estate’s grandfather or grandmother If the grandchild also died before or at the same time as the estate leaver, the great-grandchild will replace his/her father or mother to inherit the estate’s great-grandparent Likewise, inheritance by substitution is infinite to the next generation While still alive, if father or mother of grandchild or great-grandchild violates provisions in Clause 1, Article 643 of this Code, the grandchild or greatgrandchild is still entitled to inheritance by substitution unless the grandchild or great-grandchild himself/herself violates this provision If a child of an estate leaver, while still alive, refuses to receive his/her father or mother’s estate or is dispossessed the right to inherit by his/her father or mother, grandchild and great-grandchild are not entitled to inheritance by substitution As such, there will be no misunderstanding and inconsistent application of regulations on inheritance by substitution of grandchildren and great-grandchildren, and expand the inheritance to the next generations of the estate leaver 4.2.1.2 Inheritance by substitution between adopted children and their adoptive father and adoptive mother under Article 653 of the Civil Code 2015 The author thought that Article 653 of the Civil Code 2015 should be amended and supplemented as follows: Article 653: inheritance relationship between adopted children and their adoptive fathers, adoptive mothers and their biological parents According to Article 651 of this Code, adopted children and adoptive fathers and adoptive mothers are entitled to each other's inheritance In cases where the adopted child dies before or at the same time as the adoptive father and adoptive mother, only the biological children In cases where the adopted child dies before or at the same time as the adoptive father and adoptive mother, only the biological children of the adopted child are entitled to inheritance by substitution Amending this article as mentioned above will avoid different understandings of adopted children or biological children who are entitled to inheritance by substitution and clearly define the heirs are just biological children of the adopted child In case the adopted child dies before or at the same time as the adoptive father and adoptive mother, his/her adopted children are not entitled to inheritance by substitution 21 4.2.1.3 Inheritance by substitution between stepchildren and stepfather, stepmother In order to overcome inadequacies in the regulations on inheritance by substitution, the author thought that Article 654 of the Civil Code 2015 should be amended as follows: Article 654: inheritance relationship between stepchildren and stepfather and/or stepmother If a stepchild and his/her stepfather and/or stepmother have a relationship of mutual care and support, as between a biological father and a biological child or between a biological mother and a biological child, then they shall be entitled to inherit each other’s estate under the provisions of Articles 651 Children or grandchildren of such stepchildren may also inherit the estate under the provisions of Article 652 of this code Amending this article as mentioned above will overcome the limitations in the current regulations on inheritance between stepchildren and stepfathers and/or stepmothers, and at the same time solve the inheritance relationship between father's previous wife and mother's previous husband, which currently has no regulations on this issue 4.2.1.4 Inheritance by substitution in the cases where birth by assisted reproductive technology (ART) As analyzed in Chapter 3, currently, there are also many problems relating to birth by ART, the media has mentioned many cases but so far there have not been specific regulations on this issue In my opinion, in cases where birth from sperm, oocyte or embryo of a deceased, it is necessary to have regulations on the order of confirming the child’s father and mother Therefore, in this case, it is necessary to carry out the procedure to request the Court to identify the child’s parents who birth by ART at health facilities and perform an ADN test between the child and his/her mother and/or father died On the basis of this evidence, if there are grounds to determine that he/she is the deceased’s child, the Court will recognize he/she is the deceased’s child, then the rights of the child who was born from sperm, oocyte or embryo of the deceased will be guaranteed, in which his/her inheritance rights in general and inheritance by substitution in particular 4.2.2 Solutions to ensure effective law enforcement on inheritance by substitution in Vietnam 4.2.2.1 Solutions to raise legal awareness 22 4.2.2.2 Solutions to improve law enforcement capacity 4.2.3 Solutions related to the functions and tasks of the people's court system in Vietnam today - Select and issue a number of case law related to inheritance by substitution - Issue professional guidance documents on a number of difficulties in applying the provisions of the law related to inheritance by substitution Sub-summary of chapter From the situation of the law, practical application, and inadequacies of the provisions of the law on inheritance by substitution in Vietnam today as analyzed above, it is necessary to improve the provisions of the law However, improving the provisions of the law must ensure compliance with the guidelines and policies of the Party and State, human rights, citizen’s rights and in line with the fine customs and traditions of the nation as well as the process of international integration In the dissertation, the author has given directions and solutions to improve the provisions of the law on inheritance by substitution in Vietnam today Although these solutions may not be applied immediately in practice to overcome inadequacies of the provisions of the law on inheritance by substitution, they are scientific recommendations and solutions for competent authorities to study and amend the provisions of the law on inheritance by substitution in Vietnam In addition, while waiting for amending relevant regulations, these recommendations can be seen as a basis for promulgating professional answers of the Supreme People’s Court, contributing to solve difficulties and obstacles of cases related to inheritance by substitution at the Court, and contributing to protecting the rights of the heirs who are the closest ones of the estate leaver, in line with the good ethics and traditions of the nation CONCLUSION In any society with classes, the institution of inheritance always has an important role in legal institutions and it also reflects the nature of each historical period in the process of developing each society Inheritance by substitution is an important part of inheritance law It has directly protected the legitimate rights and interests of grandchildren and great-grandchildren of the estate leaver, avoiding the estate being left unclosed people In Vietnam, regulations on inheritance by substitution came out and gradually improved over each historical period and specifically reflected in legal documents related to inheritance by substitution The Ordinance on inheritance was 23 promulgated in 1990, for the first time the issue of inheritance by substitution was specifically regulated into a law After that, this regulation continued to be inherited and developed in the Civil Code 1995 and further improved in the Civil Code 2005 and 2015 It cannot be denied that the Civil Code 2005 and the Civil Code 2015 have specific and detailed regulations, and more progressive than previous regulations on inheritance by substitution and have a positive impact to solving cases on inheritance by substitution in practice However, in addition to this positive aspect, the current regulations on inheritance by substitution in the Civil Code 2015 still have many limitations and inadequacies in the process of applying these regulations as analyzed above Therefore, it is necessary to amend and supplement these regulations to protect the legitimate rights and interests of those who participate in the inheritance relationship By examining regulations on inheritance by substitution under the Vietnamese law, especially the provisions of the law on inheritance by substitution from 1990 to the present, and compared with regulations of other countries, the study has analyzed and clarified regulations on inheritance by substitution, inheritance, and development of these regulations At the same time, by analyzing the situation of the provisions of the law on inheritance by substitution in Vietnam and the practical application of these provisions, thenceforth, the study presented inadequacies of the provisions on inheritance by substitution in the Civil Code 2015 The author has also pointed out the objective and subjective reasons leading to the inadequacies so as to propose directions and solutions to improve the institution of inheritance by substitution in the future However, this is the first time the issue of inheritance by substitution has been examined in a doctoral dissertation in law, not many references, so the author hopes that the dissertation might further clarify some theoretical and practical issues on this issue Solutions of the dissertation will contribute to further improve legal regulations on inheritance by substitution in the coming years In addition, the author also hopes that the dissertation will be a valuable document for lawmakers in the process of amending the legal provisions on inheritance by substitution in the coming years, and as teaching material for those who are interested in this issue 24 The author’s published-papers list related to the dissertation Nguyen Viet Giang (2020), “Discussing the issue of inheritance and inheritance by substitution between stepchildren and stepfather and/or stepmother under the provisions of the Civil Code 2015”, People's Court Journal, No Nguyen Viet Giang (2020), “Discussing those who are entitled to inheritance by substitution under the provisions of the Civil Code 2015”, People's Court Journal, No 13, 14 Nguyen Viet Giang & Nguyen Dinh Anh (2014), “Inheritance by substitution under the provisions of the Civil Code 2005: Some theoretical and practical issues”, People's Court Journal, No 25 ... substitution in Vietnam today Theoretical and practical significance of the dissertation Theoretically: the dissertation examines fully, comprehensively and systematically theoretical issues on inheritance... obstacles and inadequacies in both theory and practice in applying legal provisions on inheritance by substitution Therefore, it is very necessary to examine theoretical issues on the provisions... the theoretical issues on inheritance by substitution, the provisions of the law of some countries in the world and Vietnam in terms of inheritance by substitution so as to further clarify the theoretical