Brief History of Formation and Development of Law on Testator's Rights in Vietnam

of the whole society, the inheritance law of our state on the one hand always respects the right of self-determination of the testator, on the other hand, always places that right of self-determination within a certain framework, in order to create a legal corridor to clearly determine what rights the testator has, and in what cases those rights are limited. Because "Rights must be associated with the scope of rights, obligations and capacities of individuals and must be affected within the limits of the law or a certain territory. The rights of individuals are only deprived by law and end when that person dies" [34] .

The right to inheritance comes from the view that the family is the cell of society, and must ensure the legitimate rights of all members and family stability. On the other hand, through the right to inheritance, each member's sense of responsibility towards the family is educated. Therefore, in addition to stipulating that the testator enjoys certain rights, the law also limits the testator's rights within certain scopes to protect the interests of the people involved. The testator's rights are limited in the following cases: Limitation on assigning obligations to the heir; must reserve a part of the inheritance for the heir regardless of the content of the will; limitation in the case of leaving an inheritance for worship or donation; limitation on dividing the inheritance.

Thus, it can be said that the law both recognizes and limits the rights of the testator, which are two sides of the same issue, two opposing categories but are unified with each other with the goal of contributing to strengthening and maintaining family love, protecting the rights and legitimate interests of related people, those who are directly affected by the free disposition of the testator's property, but still respecting and ensuring the rights of the testator.

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1.4. Brief history of the formation and development of the law on the rights of testators in Vietnam

1.4.1. Period before 1945

The inheritance system was stipulated very early in Vietnamese law. During the feudal period, according to documents preserved to this day, the inheritance system was stipulated in the National Dynasty Penal Code (Hong Duc Code) under the Le Dynasty and the Hoang Viet Law Code (Gia Long Code) under the Nguyen Dynasty.

In the National Dynasty Penal Code, although the law does not establish inheritance regulations into parts and chapters, through the content of the laws, it can be seen that the inheritance issue is regulated from Article 374 to Article 400 and scattered in a number of other articles. The regulations have shown respect for the wishes and decision-making power of the property owner. In the Hong Duc Code, it is stipulated that children (sons, daughters, adopted children) have the right to inherit from their parents. Everyone has the right to leave incense to their descendants. Article 388 of the Hong Duc Code stipulates: “If both parents die, have a land plot, and have not yet left a will, but the siblings divide it among themselves, then take one-twentieth part of the land plot as incense, and give it to the eldest son to keep, and the rest is divided among themselves. The portion of the children of concubines and maids must be less. If there is an order from the parents and a will, then it must be followed correctly, otherwise, one loses one's share .” Article 390 of the Hong Duc Code stipulates: “ Parents must prepare for old age and make a will. Parents make a will to divide property and establish incense in the will ” [1].

Thus, the Hong Duc Code has stipulated the right to make a will to leave an inheritance, especially for the elderly. Parents have the right to make a will to divide property for their children and determine the incense portion in the will.

In the Royal Vietnamese Law, the issue of inheritance is regulated in Book 6 - Household Law. However, according to the comments of the late Professor Vu Van Mau about the Royal

As for the Vietnamese Law, “… All the new and novelties in the Le Dynasty Law Code no longer remain in the Nguyen Dynasty Law. Through the provisions of this Code, the beloved image of the Vietnamese people has given way to the cold and strange image of the Manchu people… Because of such an unconscious act, in the Nguyen Dynasty Law Code, there are no longer provisions related to incense, wills, marriage conditions, or the property regime of husband and wife ” [19]. The Gia Long Code (also known as the Hoang Viet Law Code) is a version of the Manchu Qing Code (China). The Code does not recognize the inheritance rights of daughters but focuses on the rights of sons, clearly showing the preference for sons over women. However, the Code also recognizes the role of inheritance by will, as shown in Article 388 of this Code, which stipulates: “ If there is an order from the parents, it must be followed. Violating this will result in losing one’s share ” [2].

Under the French colonial period, our country was divided into territories with different political regimes. Cochinchina was a French colony, Bac Ky and Trung Ky were protectorates, and the three cities of Hanoi, Hai Phong and Da Nang were French concessions. Corresponding to the different political regimes were different judicial systems and separate codes of law. Accordingly, the issue of inheritance in the three regions was regulated in different legal documents. In Bac Ky and Trung Ky, the issue of inheritance was regulated in turn in the Bac Ky Civil Code promulgated in 1931 with the official title of the Civil Code enforced at the Bac Ky Courts and the Trung Ky Civil Code promulgated in 1936 with the name of Hoang Viet Trung Ky Ho Luat. The inheritance regime in the Bac Ky Civil Code 1931 and Hoang Viet Trung Ky Ho Luat are relatively similar. In these two codes, inheritance is divided into general provisions, inheritance with a will, inheritance by law and other provisions such as inheritance, land, and land registration... The Northern Civil Code stipulates: Adults or those who have escaped

Any person of sound mind may make a will to dispose of all his property (Article 321). The father may make a will to dispose of his property, but must preserve the rights of his first wife. The first wife and the second wife, while still married, may dispose of their own property if the husband consents (Article 320). The testator may disinherit one or more of the heirs. The disinheritance must be made in writing by the Notary or by the Village Chief of the place where the testator resides. The testator has the right to reserve a portion of the inheritance for worship. The will must be made in writing or by the Notary or by a notary. A will without a notary must be written by the testator and signed by him. If the testator dictates it to someone else to write on his behalf, there must be at least two adults as witnesses. The witness is usually the village chief at the place of residence of the testator. If the testator is far away and cannot return to his/her place of residence, the will must be witnessed by the village chief at the place of residence of the testator (Article 316).

When the testator wants to change part or all of the will, the subsequent will must follow the above procedures and must clearly state that the testator is changing part or all of the will. If it is not clearly stated, only the provisions that are inconsistent with or contrary to the subsequent will will be discarded.

The Central Vietnam Civil Code, also known as the Hoang Viet Central Vietnam Household Code, consists of 1,709 articles, divided into 5 volumes. It can be said that this Code almost copies many provisions in the Northern Vietnam Civil Code, for example, Article 341 of the Central Vietnam Civil Code is similar to Article 346 of the Northern Vietnam Civil Code; Article 359 of the Central Vietnam Civil Code is similar to Article 360 of the Northern Vietnam Civil Code; Article 111 of the Central Vietnam Civil Code is similar to Article 113 of the Northern Vietnam Civil Code; Article 313 of the Central Vietnam Civil Code is similar to Article 321 of the Northern Vietnam Civil Code; Article 312 ...

320 Civil Code of Tonkin…

In Cochinchina, the Simplified Civil Code was issued with the Decree of October 3, 1883 of the French President, "but unlike the two Civil Codes of the North and Central regions, the Simplified Civil Code only regulates all the issues mentioned in Volume 1 of the French Civil Code. All of these issues are related to human law (that is, the law about people, including issues related to family and human status and capacity). Issues of inheritance and the property regime of husband and wife are not mentioned" [19, p.215]. Therefore, in litigation related to inheritance, "judges before 1949 still had to rely on the Gia Long Law for judgment" [18, p.215], and in many cases "had to resort to provisions in the Le Dynasty Law to supplement the Nguyen Dynasty Law" [19, p.216].

1.4.2. Period from 1945 to before July 1, 1996

1.4.2.1. Period 1945 to 1975

Not long after the success of the August Revolution and the birth of the Democratic Republic of Vietnam, on October 10, 1945, President Ho Chi Minh issued Decree No. 47/SL on the temporary application of old laws, according to which, " Until the promulgation of a single set of laws for the entire country of Vietnam, the current laws in the North, Central and South will remain temporarily unchanged " [11, Article 1], if the provisions in the old laws "are not contrary to the independence of Vietnam and the democratic republican regime" [11, Article 12]. In accordance with the provisions of this Decree, the Civil Code of Tonkin promulgated in 1931, the Civil Code of Hoang Viet Central Vietnam promulgated in 1936 and the Simplified Civil Code of Cochinchina promulgated in 1883 remained in effect in Vietnam after the establishment of the people's government. On June 22, 1950, President Ho Chi Minh signed Decree No. 97/SL on amending a number of rules and regulations in civil law, according to which Article 1 of this Decree stipulates: "Civil rights are protected by law when

people act in accordance with the people's interests" [12]. The birth of the 1959 Constitution marked a great step forward in the legislative work of our country. The right to inheritance is recognized in Article 19 of the Constitution: " The State shall protect citizens' right to inheritance of property in accordance with the law " [22]. This is a constitutional principle, the basis for competent state agencies to protect citizens' right to inheritance.

After 1954, the North was completely liberated, the South was dominated by the US imperialists and their puppet government. Therefore, in the two regions of the South and North of Vietnam from 1954 to 1975, there were basically two different legal systems. However, the State could not immediately promulgate a new legal system, so the State assigned the Supreme People's Court to guide the People's Courts at all levels not to apply the old law but to apply the law of the Democratic Republic of Vietnam and the policies of the Party and the State for trial. On July 10, 1959, the Supreme People's Court issued Directive No. 772-CT/TANDTC on suspending the application of imperialist and feudal laws. To unify the policy for resolving inheritance disputes, the Supreme People's Court issued a number of documents guiding the People's Courts at all levels on the adjudication policy, including the following documents: Circular No. 549/NCPL dated August 27, 1968 Summarizing experiences and providing guidance on the policy for resolving inheritance disputes; Circular No. 02/TATC dated August 2, 1973 Providing guidance on the policy for resolving inheritance disputes of martyrs.

In the South of Vietnam, at the beginning, to resolve civil disputes in general and inheritance issues in particular, "the laws and precedents applied in the South were roughly no different from the current Tonkin Civil Code in the North and the current Hoang Viet Trung Ky Civil Code in the Central region " [29, pp. 161-162]. In 1972, the Civil Code of the Republic of Vietnam regime was promulgated together with Decree No. 028/TT/SLU dated December 20, 1972 of the President.

Republic of Vietnam. The content of this Civil Code is similar to the content of the Civil Code of Tonkin and the Hoang Viet Trung Ky Household Law. In particular, the inheritance system has also been specifically regulated in this Civil Code. Article 498 of the 1972 Civil Code affirms: " The inheritance is transmitted to whom according to the law or the will of the deceased " [5].

The rights of the testator are stipulated in a number of articles:

Article 503 of the 1972 Civil Code stipulates: “ An heir may also be deprived of his rights by a will left by the deceased with a reason cited. Regarding the revocation and invalidity of a will” ; Article 582 of the 1972 Civil Code stipulates: “ The testator has the full right to revoke the whole or part of his will, either by a later will made in the same manner as above, or by a certificate of revocation drawn up at the notary office in accordance with the conditions prescribed by law” ; Article 583 of the 1972 Civil Code stipulates: “ If a later will does not clearly state that the previous will is revoked, only those provisions in the previous will that are contrary to the later will or appear to be irreconcilable shall be considered to be revoked” ; Article 585 of the 1972 Civil Code stipulates: “ Any sale or exchange agreed by the testator regarding a property that has been bequeathed in the will shall have the effect of revoking the bequest of that property, even if the sale or exchange is invalid for any reason. If the bequeathed property is mortgaged or sold, the beneficiary shall still enjoy the property, but must redeem it ”; Article 586 of the 1972 Civil Code stipulates: “If the beneficiary dies before the testator, the bequest to that person shall automatically become invalid ”; Article 587 of the 1972 Civil Code stipulates: “ The disqualification or disenfranchisement of the beneficiary shall have the effect of revoking the bequest to that person” ; Article 588 of the 1972 Civil Code stipulates: “ The bequest may also be revoked if the beneficiary refuses to fulfill the obligations imposed by the testator” [5].

Incense issues are regulated in the following articles:

Article 600 of the 1972 Civil Code stipulates: “ Incense is property assigned to the heir to use for the benefit of the deceased or of his or her spouse and ancestors. Incense cannot be sold or destroyed at any time”. Regarding the establishment of incense: Article 601 of the 1972 Civil Code stipulates: “ The establishment of incense must have documents to be effective. If the property established to establish incense is real estate, it must be certified by a notary or a notarized certificate. If it is movable property, a private certificate is sufficient, provided that the person establishing the incense can read and write. Incense can be established in a will or a property division certificate. In these cases, it is only necessary to follow the procedures for establishing such certificates. The person establishing incense must be 18 years of age, unless he or she has previously been released from the right by marriage” ; Article 605 of the 1972 Civil Code stipulates: “ The incense portion must never exceed one-fifth of the founder’s total assets, nor must it exceed the maximum area limit prescribed by law. If, in addition to incense, other assets such as ky dien and hau dien are established, the above limit must be applied to all assets combined ”; Article 606 of the 1972 Civil Code stipulates: “ Exceeding the above limit, incense may be reduced to the permitted level, at the request of the heirs and creditors of this person” [5].

Thus, studying the issue of inheritance from 1945 to 1975, we see that although the Vietnamese inheritance law in this period basically continued to be maintained according to three legal codes: the Civil Code of Tonkin, the Civil Code of Central Vietnam and the Simplified Law (1873), it had a new and very progressive content, aiming to eliminate backward concepts, male-dominated and female-disparaging thoughts, and to achieve gender equality and equality for all citizens in the field of inheritance.

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