Thừa kế theo pháp luật theo bộ luật dân sự nước cộng hòa xã hội chủ nghĩa việt nam năm 2015 tt

VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES DANG THU HA NHERITANCE LAW ACCORDING TO THE CIVIL LAW OF THE SOCIALIST REPUBLIC OF VIETNAM IN 2015 Major: Economic Law Code: 38 01 07 ABSTRACT SUMMARY OF DISCIPLINE STUDY HA NOI, 2019 THIS WORK IS COMPLETED AT GRADUATE ACADEMY OF SOCIAL SCIENCES SCIENCE INSTRUCTOR: Associate Professor PhD Pham Van Tuyet Reviewer 1: Prof PhD Pham Van Tuyet Reviewer 2: Assoc Prof PhD Tran Thi Hue Reviewer 3: Assoc Prof PhD Nguyen Thi Que Anh The thesis is defended before the thesis appraisal board of the Academy at the Graduate Academy of Social Sciences at: hours, date month 2019 This thesis can be found at: - Library of Graduate Academy of Social Sciences - National Library of Vietnam LIST OF SCIENTIFIC WORKS PUBLISHED Dang Thu Ha (2018), "Categories and inheritance according to the laws of Vietnam and some countries in the world", Law Profession Journal, ISSN: 1859-3631, No in 2018, pp.85-90 Dang Thu Ha (2018), "Legal inheritance in Vietnam", Journal of Human Resources for Social Sciences, ISSN 0866-756X, No 09 (64) 2018, Tr.32-40 Dang Thu Ha (2019), Inheritance and succession in accordance with the Civil Code 2015 Human Resources Journal of Social Sciences, No 05 (72) 2019, pp.27-35 PREAMBLE The urgency of the topic Civil Code 2015 stipulates issues related to inheritance according to law and willary inheritance However, the practice of solving inheritance disputes has shown that there are many disputes related to inheritance cases according to law There are even cases where the testator has made a will but the will did not give rise to a partial legal effect, or because the inheritance was misidentified leading to inheritance disputes under the law Although the issue of inheritance according to law has been studied by many domestic and foreign authors, but along with the development of economy, culture and society, it has been changing day by day This is no longer just a traditional heritage, so the inheritance disputes have also changed about the object, the subject, the nature and the scale of the case The Civil Code 2015 is only valid, the author thinks that the study of theoretical as well as practical basis of inheritance issues according to law, thereby making assessments and recommendations to complete the regulations The current legislation on this content, creating a stronger legal basis for the application of the law of the court in resolving inheritance disputes under the law is always a necessary and worthwhile job care and respect Corresponding to the change and development of the socioeconomy, disputes on inheritance are also increasingly complex, so the thesis researches and proposes new solutions to improve the law and further improve it Effective application of the law on inheritance according to law From the above reasons, the author decided to choose the topic: "Inheritance law according to the Civil Law of the Socialist Republic of Vietnam 2015" as his thesis research topic.2 The purpose and research tasks of the thesis The purpose and research tasks of the thesis 2.1 Research purposes Research the theoretical basis for inheritance according to law to point out the inconsistencies in the provisions of the Civil Code on the issue of inheritance according to law compared to the practice of resolving disputes related to this content, from It is aimed at making recommendations to improve the law on inheritance according to law, creating a firmer legal corridor for the application of the law by competent state agencies 2.2 Research mission To achieve the purpose of the research, the thesis sets out the task to solve the following issues: More clarifying theoretical issues on inheritance according to law, researching and analyzing current legal provisions on inheritance according to law, comparing and comparing with legal provisions of some countries around the world, doing practical research on resolving disputes about legal inheritance in recent times so that, there are perceptions about the rationality or unreasonable points in the legal regulations, leading to difficulties in the process of applying law to solve the case in practice and proposing recommendations to improve the law on inheritance according to law in order to improve the effectiveness of the resolution of inter-related disputes related to this content 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 previous Civil Code (Civil Code 1995 and Civil Code 2005), some legal documents in the old period 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 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 some recommendations to improve the law on inheritance according to law 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 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 Chapter 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 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] 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 10 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 11 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, socioeconomic 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 socioeconomy, 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 12 CHAPTER 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 13 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 14 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 15 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 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 16 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 17 Article 650 of the Civil Code 2015, the cases of inheritance according to the law 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, grandmother, elder sister, maternal younger grandmother, siblings of maternal 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, 18 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 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 19 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 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, 20 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 highest rate of increase, increasing 0.4% each year of the general civil sentence The appeal court also has a faster growth rate than the first instance, in 2017 the inheritance sentence accounted for 5.5% of the general civil sentence, in 2018 increased by 1.0%, accounting for 6.5% of the general civil sentence Table 4.1 The data of inheritance disputes compared with general civil disputes in Vietnam Unit: the case Appeal Instance Year General civil Inherit Ratio(%) General civil Iheritance Ratio (%) 2014 115589 3449 3.0 % 10869 499 4.6 % 2015 109260 3429 3.1 % 10164 504 5.0 % 2016 113092 3384 3.0 % 10994 672 6.1 % 2017 126178 4288 3.4 % 9866 547 5.5 % 2018 142369 5422 3.8 % 11248 735 6.5 % 2019 170779 6894 4,0% 13302 971 7,2% (Source: Annex of report of the Supreme People's Court at the October annual meetings of the National Assembly (from 2014 to 2019) Regarding the dispute on inheritance according to law, there are no specific statistics, but out of 609 cases of first instance, 377 appellate cases were tried by the People's Courts at all levels in 21 2017 [63] , 64, 65, 66, 67, 68], the author studied 250 judgments published by the Supreme People's Court on the author's web portal that found the majority were inheritance division disputes legal Only about 2% of the cases require the Court to determine the validity of a will and the will recognized by the Court to be valid without giving rise to a request for division of inheritance according to law There are a small number (about 3%) of disputes related to wills but after that there were still more inheritance disputes under the law Thus it can be seen that most inheritance disputes are related to inheritance according to law General court of inheritance 10000 Án sơ thẩm thừa kế 5000 2014 2015 2016 2017 2018 2019 Diagram 4.1 Dispute inheritance in Vietnam from 2014 to 2019 (Instance) (Source: Annex of report of the Supreme People's Court at the October annual meetings of the National Assembly (from 2014 to 2019) Looking at the chart above, we see the rate of inheritance disputes increasing rapidly over the years On January 1, 2017, although the Civil Code 2015 took effect, the rate of inheritance disputes still increased The number of inheritance disputes tends to 22 increase rapidly: in 2017, the number of first instance cases handled increased by 26% compared to 2016, and in 2018 compared to 2017 increased by the same rate This is also a problem to be solved in the practical application of the law on inheritance according to law 4.2 Restrictions and shortcomings in practice of applying the law on inheritance according to laws and the causes of these limitations and shortcomings 4.2.1 Restrictions and limitations in the practice of applying the law on inheritance according to law Practical application of the law on inheritance still has limitations and shortcomings related to the following issues: the will of the will, the inheritance status of the heir according to the law, and the heir not dependent on contents of wills and statute of limitations requiring the heir to fulfill the obligations of the deceased's property, the intellectual property formed during the marriage period and determine that the property is the property of the private enterprise multiply 4.2.2 The cause of the limitations and shortcomings 4.2.2.1 Objective reasons Due to a number of unregulated legal issues, inappropriate regulations or unclear regulations, no detailed regulations and specific implementation guidelines that are the reasons for the inadequate application of laws High efficiency in practice 23 4.2.2.2 Subjective reasons Due to the limited awareness and legal knowledge of a large number of people, the professional ethics and professional qualifications of the procedural agencies' officials 4.3 Some recommendations to improve the law on inheritance according to law 4.3.1 For the provisions of law have not been clearly specified, detailed and specific guidelines for implementation Competent state agencies need clear, detailed regulations and specific implementation guidelines 4.3.2 For issues not yet stipulated by law The competent state authority should issue a new regulation to regulate 4.3.3 For those issues that the law does not yet suitable Competent state agencies should amend and supplement accordingly 24 ... 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 General court of inheritance 10000 Án sơ thẩm thừa kế 5000 2014 2015 2016 2017 2018 2019 Diagram 4.1 Dispute inheritance in Vietnam from 2014 to 2019 (Instance) (Source: Annex of report... 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