Division of inheritance of houses and land use rights according to Vietnamese law

HANOI NATIONAL UNIVERSITY

FACULTY OF LAW

NGO THI VAN

DIVIDING THE INHERITANCE OF HOUSING AND LAND USE RIGHTS ACCORDING TO VIETNAMESE LAW

Major : Civil Law and Civil Procedure

Code: 60 38 01 03

MASTER'S THESIS IN LAW

Scientific supervisor : Associate Professor, Dr. PHUNG TRUNG TAP

HANOI - 2014

COMMITMENT

I hereby declare that this Thesis is my own research work. The results stated in this Thesis have not been published in any other work. The figures, examples and quotations in this Thesis ensure accuracy, reliability and honesty. I have completed all subjects and paid all financial obligations as prescribed by the Faculty of Law, Vietnam National University, Hanoi.

So I write this Declaration to request the Faculty of Law to consider so that I can defend my Thesis.

Thank you very much!

GUARANTEE

Ngo Thi Van

Cover Page Pledge Table of Contents

List of abbreviations List of tables

INDEX

Page

INTRODUCTION 1

Chapter 1: GENERAL ISSUES ON INHERITANCE AND HERITAGE

DIVIDING THE INHERITANCE OF HOUSING AND LAND USE RIGHTS 7

1.1. Concept of inheritance and inheritance rights 7

1.1.1. Concept of inheritance 7

1.1.2. Concept of inheritance rights 10

1.2. Concept of inheritance 11

1.2.1. Inheritance is the personal property of the deceased 12

1.2.2. The deceased's share of the assets in the joint assets with others 13

1.3. Concept of dividing inheritance as housing and land use rights 15

1.3.1. Heritage is housing and land use rights in 15

1.3.2. The basis for dividing inherited assets is housing and land use rights in 20

1.3.3. Characteristics of housing inheritance and land use rights in 26

1.3.4. Methods of dividing inherited assets such as houses and land use rights at 30

Chapter 1 Conclusion 34

Chapter 2: PRACTICAL APPLICATION OF THE LAW ON DIVIDING RESIDENTIAL HERITAGES AND LAND USE RIGHTS 35

2.1. Division of inheritance of housing and land use rights according to will 38

2.2. Division of inheritance is housing and land use rights for which the inheritance is used

Worship and legacy 47

2.2.1. Housing and land use rights are heritage used for worship 47

2.2.2. Division of inheritance of houses and land use rights in case of inheritance 53

2.3. Division of inheritance of houses and land use rights with heirs does not depend on the content of the will 54

2.4. Division of inheritance of houses and land use rights according to law 56

2.5. Division of inheritance of houses and land use rights with new heirs or people whose inheritance rights are rejected and succession by replacement 65

2.5.1. In case of new heir 65

2.5.2. Cases where someone is denied the right to inherit 66

2.5.3. Division of inheritance including housing and land use rights to the successor 67

2.6. Restrictions on dividing inheritance of houses and land use rights in 69

2.7. Statute of limitations for filing a lawsuit regarding inheritance 71

Chapter 2 Conclusion 78

Chapter 3: SOLUTIONS TO IMPROVE LEGAL REGULATIONS

ON DIVIDING RESIDENTIAL HERITAGES AND LAND USE RIGHTS 79

3.1. Regarding the division of inheritance including housing and land use rights in cases

have new heir 80

3.2. On the division of inheritance including housing and land use rights according to the will

common property of husband and wife 81

3.3. Regarding the person who refuses the right to inherit the house and the right to

land use in 86

3.4. Regarding the heritage used for worship related to inheritance,

housing, land use rights 88

Chapter 3 Conclusion 90

GENERAL CONCLUSION 91

LIST OF REFERENCES 93

LIST OF ABBREVIATIONS

BLDS: Civil Code 2005 SRVN: Socialist Republic of Vietnam GCNQSDD: Land use right certificate HĐCP: Government Council

Socialist: Socialism

LIST OF TABLES

Plate number

Table name

Page

TABLE 2.1:

STATISTICS OF RECEIVING AND RESOLVING DISPUTES

ABOUT INHERITANCE

Maybe you are interested!

INTRODUCTION

1. Urgency of the topic

In recent years, since the 1995 Civil Code and now the 2005 Civil Code came into effect, in fact, in Vietnam at the present stage, more than ever, there is an urgent need to build and perfect the legal system to be more and more complete, in order to effectively regulate social relations, including inheritance relations in general and inheritance of housing and land use rights in particular. Therefore, the 2005 Civil Code is currently in the process of amendment and supplementation; there is a Draft of the 2005 Civil Code (amended) and it is being widely discussed at agencies under the Government Office, the Ministry of Justice and the Vietnam Lawyers Association, the Vietnam Bar Federation..., in which the provisions on inheritance rights in the Civil Code are also being considered for amendment and supplementation.

In general, the provisions on inheritance rights stipulated in the current Civil Code are relatively complete, creating a solid legal basis for the application and implementation of the law in the past to achieve certain results. However, the provisions on inheritance rights in the Civil Code cannot foresee all the cases and situations that occur in reality, which are complex, diverse and constantly changing. Disputes over inheritance rights are increasing and becoming more complicated, so the settlement of inheritance cases, especially the inheritance of houses and land use rights, is becoming more and more difficult. Due to the value of houses and land, the parties often dispute the inheritance of such assets. Some cases have lasted for many years without being resolved. This situation is due to many reasons. First, the provisions on inheritance rights in general regulate the inheritance of houses and land use rights that were established during the period of implementing the economic management mechanism of the State.

The country follows the market mechanism. Therefore, the law on inheritance and other legal regulations related to the inheritance of housing and land use rights are not really unified and synchronous. Determining inheritance in general and the inheritance of housing and land use rights in particular is an important factor in resolving inheritance lawsuits that still have many controversial issues both in theory and in practice.

As a long-time employee in the Court sector in districts in Hanoi, the student boldly chose the topic to research and conduct his master's thesis in law: Division of inheritance of houses and land use rights according to Vietnamese law , to be considered as the comment of a practical worker on the implementation of inheritance law in resolving disputes over inheritance of houses and land use rights in the past time, which has special features and is a lesson in the trial of inheritance of houses and land use rights in Vietnam in the current period. In fact, during the student's years of working in the Court sector, disputes over inheritance of houses and land use rights often occur. Because the value of housing and land is not only economically significant, but also socially significant in relation to the interests of individuals in the development stage of the socialist-oriented market economy in Vietnam at the present stage. In the face of this situation, research and analysis to clarify the theoretical basis and practical application of legal regulations to resolve disputes over housing inheritance and land use rights is important in both theoretical and practical aspects. For the above reasons, the student has chosen this topic to research and carry out a master's thesis in law to ensure the urgency of the research topic.

2. Research status of the topic

In our country, since 1945 until now, inheritance law has been established and