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

Residential land of husband and wife. According to the provisions of Article 668 of the Civil Code, the inheritance is only divided after the wife or husband is the last to die or both husband and wife die at the same time; during the time the wife or husband is still alive, has used the house and the right to use the undivided residential land of the husband or wife who died first to rent or not used it all, is this newly generated income considered the common property of the husband and wife? Meanwhile, the heirs according to the will of the house and the right to use the residential land have a real need to own and use those types of assets but have not been divided, because the wife or husband of the person leaving the joint will has not died?

3.2.3. The interests of creditors will be violated : According to the provisions of Article 683 of the Civil Code, property obligations and expenses related to the inheritance of housing and land use rights are paid before the inheritance is divided in order of priority. Assuming that, while alive, the husband or wife who died first had property obligations to others, how will the property rights of those creditors be resolved, when the heirs have not yet received the inheritance? The debts of the deceased are only paid from that person's estate, which is determined by what principle, and the statute of limitations for creditors to file a lawsuit requesting the heir to pay the property obligations of the deceased is only within 03 years, from the time of opening the inheritance (Article 645 of the Civil Code). With the above shortcomings, do students propose to amend Article 668 of the 2005 Civil Code, as prescribed for the same event? According to students, regarding the validity of the will of a married couple, it would be more reasonable to amend it according to the provisions of Article 671 of the 1995 Civil Code. Changing the law according to this option will effectively resolve disputes over inherited property such as housing and land use rights; helping courts at all levels in Vietnam promptly and thoroughly resolve disputes over

Heritage is housing and land use rights, which are assets that have value not only economically, but also socially.

As joint owners of property, husband and wife have the right to dispose of their property in many ways, including the right to dispose of their property by making a will.

Currently, the joint will of husband and wife continues to be regulated in Article 646 of the Draft Civil Code 2005 (amended), in terms of form and content, there is absolutely no difference compared to the provisions on the rights and obligations of co-owners of common property stipulated in the Civil Code. As co-owners of property, husband and wife have the right to dispose of common property by making a will, this provision does not need further discussion. The issue we are concerned with is the provision on the legal effect of the joint will of husband and wife stipulated in Article 651 of the Draft:

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In case a husband and wife make a joint will and one of them dies first, only the part of the will related to the deceased's inheritance in the joint property shall be legally effective; if the husband and wife have agreed in the will that the effective time of the will is the time the last person dies, then the inheritance of the husband and wife according to the joint will shall only be divided from that time [2, Article 651].

There is nothing to discuss about the form of the law, but there are many issues that need to be discussed about how the content of the law is applied in real life. The issues that need to be discussed are based on the content of Article 668 of the Civil Code:

1) Regarding the validity of the will: The will is only valid from the time of inheritance opening, which is the time when the person leaving the inheritance dies or is determined to be dead according to a legally effective judgment declaring that person dead. According to

As stipulated in Article 651 of the Draft Civil Code 2005 (amended), it seems that lawmakers only focus on the effective time of the joint will without paying attention to the reality and principles of inheritance law, and at the same time, there is no individualization of each subject, whether husband or wife, who jointly made the joint will.

The first paragraph of Article 651 (Draft) reiterates the provisions of Article 671 of the 1995 Civil Code as follows:

If based on the first paragraph of Article 651 (Draft), the making of a joint will by husband and wife has no meaning in the husband and wife's determination of joint property according to the will! But if according to the provisions of paragraph two of the law, it is contrary to the principle of determining the time of inheritance opening as the time of the will's effectiveness, regardless of whether there is an agreement or not, the will's effectiveness still arises.

According to the provisions of paragraph two of Article 651 (Draft), a will made jointly by a husband and wife is only effective from the time the last person dies, if the husband and wife agree in the will.

Thus, the provision of joint wills of husband and wife in the Draft Civil Code 2005 (amended) does not have much legal significance.

According to students, when the 2005 Civil Code is amended and supplemented, the provision on joint wills of husband and wife should be removed.

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

Article 642 of the 2005 Civil Code stipulates the refusal to receive inheritance: Regarding this issue, before 1945 in our country, according to Article 376 of the Northern Civil Code and Article 308 of the Central Civil Code, heirs who are children, grandchildren, wife or husband of the deceased do not have the right to refuse the inheritance. The Central Civil Code only requires the wife or husband and children, grandsons to receive the inheritance. In the South, according to established precedent, children do not have the right to refuse the inheritance left by their father. Children and grandchildren of the person who refuses are not entitled to inherit the inheritance that their father or mother has refused. The form of refusal must be carried out at the clerk's office of the Court of First Instance at the place where the inheritance is opened within 1 year from the date the heir knows the time of opening the inheritance of the deceased. Currently, the refusal of the heir's right to inherit is stipulated in Article 642 of the Civil Code [30]. The above-mentioned provision prescribes the validity period of the waiver, the form and procedure for waiver of entitlement and the cases in which there is no right to waive entitlement.

An heir has the right to refuse to receive an inheritance, except in cases where the refusal is intended to avoid fulfilling his or her property obligations to others... The refusal to receive an inheritance must be made in writing, and the person refusing must notify other heirs, the person assigned to divide the inheritance, the state notary or the People's Committee of the commune, ward or town where the inheritance is opened about the refusal to receive the inheritance. The time limit for refusing to receive the inheritance is 6 months from the date of opening the inheritance [23; Article 642].

Knowing that Article 642 of the Civil Code does not specifically regulate the case of refusing to inherit housing and land use rights, but housing and land are inherited assets, the heir also has the right to refuse to inherit these types of assets. Therefore, the student also boldly pointed out the inadequacies of the provisions in Article 642 of the 2005 Civil Code in order to perfect the provisions on refusing to inherit in general and refusing to inherit housing and land use rights in particular.

The right to refuse to receive inheritance is permitted by law if it complies with the conditions, principles, and time limits prescribed above. However, if the inheritor refuses to receive the inheritance in order to avoid his or her personal property obligations to others, the law will not accept it. The economic conditions of the inheritor before receiving the inheritance are not sufficient to fulfill his or her property obligations to others, but because he or she wants to avoid fulfilling that property obligation, he or she has expressed his or her free will by not receiving the inheritance, which is not recognized by law. This inheritor is forced to receive the inheritance to fulfill his or her property obligations to the entitled person.

Refusal of inheritance rights under a will is also an expression of the will of the person designated as an heir under the will who has not accepted the inheritance according to the decision of the person leaving the legacy.

In case the testamentary heir is also a legal heir entitled to inherit the estate, the expression of that person's will may occur in the following cases (these cases will inevitably cause trouble for the application of the law in practice):

- Only refusing to inherit according to the will but not refusing the right to inherit according to the law. If the inheritance is divided according to the law, this person still expresses the will to receive the portion of the inheritance according to the law;

- Only refuse to inherit according to the law but not refuse the right to inherit according to the will;

- Refuse both the right to inherit according to the will and the right to inherit according to the law.

With the above shortcomings, when the 2005 Civil Code is amended and supplemented, it should be clearly stipulated that refusal to inherit is understood as refusal to inherit and refusal to receive inheritance both according to the will.

will and according to the law. With such provisions, the application of the law will be clear, specific and avoid troubles and misunderstandings. Regarding the refusal to receive inheritance, it must be clearly regulated to avoid disputes, maintain stability in social relations in general and the relationship of dividing inheritance in particular. Therefore, Article 642 of the 2005 Civil Code needs to be amended according to the solution that the student has boldly proposed.

3.4. Regarding the heritage used for worship related to inherited heritage such as housing and land use rights

Under the socialist regime, the worship of ancestors, grandparents, and parents of citizens is recognized by law and protected by regulations. Before Circular No. 81-TANDTC dated July 24, 1981 of the Supreme People's Court guiding the settlement of inheritance disputes, under the new regime there were no regulations on inheritance used for worship. Circular No. 81-TANDTC only guided the settlement of disputes over family temples. When the Inheritance Ordinance was promulgated, inheritance used for worship was regulated in Article 21: "If the testator leaves an inheritance for worship, that inheritance shall be considered as undivided inheritance" [31; Article 21].

. But regarding the inheritance used for worship according to the provisions of Article 673 of the 1995 Civil Code and currently stipulated in Article 670 of the 2005 Civil Code:

In case the testator leaves a part of the inheritance for worship, that part of the inheritance shall not be divided and shall be assigned to a person designated in the will to manage and perform the worship; if the designated person fails to properly carry out the will or does not comply with the agreement of the heirs, the heirs have the right to assign the part of the inheritance for worship to another person to manage and perform the worship.

In case the testator does not appoint a person to manage the ancestral estate, the heirs shall appoint a person to manage the ancestral estate.

In case all the heirs according to the will have died, the portion of the inheritance used for worship belongs to the person who is legally managing the inheritance among those eligible to inherit according to the law.

According to the above provisions, how should legal issues related to inheritance used for worship be determined when that inheritance is a house and the right to use residential land? Article 670 of the Civil Code does not define the inheritance used for worship, but only quantifies that inheritance. The inheritance used for worship is understood as property used for worship purposes. Thus, the inheritance used for worship is first of all property, this property, in terms of value, serves the purpose of worship. Therefore, the house and the right to use residential land are assets that can be inheritance used for worship in the case where the testator disposes of the house, a part of the house area, a part of the residential land area used for worship and appoints a manager for this type of inheritance used for worship? According to the provisions of Article 670, the inheritance used for worship is not owned by the manager, nor is it owned by anyone? This unclear provision is difficult to resolve when there is an act of infringement of the heritage used for worship, who will be the one to initiate the lawsuit and in what capacity, the law does not clearly stipulate. Thus, the area of the house and land used for worship is not under the ownership of the individual manager, so the issuance of the Certificate of ownership of the house and land that has been determined to be heritage used for worship cannot be determined to whom? How is it issued? And what is the name of that type of Certificate? Furthermore, land is owned by the entire people and the land users, although they have the right to use it for a long time, therefore the heritage used for worship is not eternal, and can be eliminated when the land is cleared to implement large projects of the State. The heritage used for worship is the house and the right to use the land is understood as the entire area of the house and land used for worship or only a part is left, in the case the testator decides to dispose of the entire house.

and the right to use residential land for worship purposes? If understood in part, how is that part determined? There are currently no regulations on this issue, so according to students, the law needs to supplement the inheritance used for worship purposes in Article 670 of the Civil Code and closely combine with the Housing Law and the Land Law to have consistency in regulating this type of relationship.

Chapter 3 Conclusion

With the shortcomings of the law regulating the division of inheritance in general and the division of inheritance of houses and land use rights in particular, in reality there are still significant difficulties in applying unclear regulations to resolve disputes in the division of inheritance in general and the division of inheritance of houses and land use rights at all levels of the Court in Vietnam. Therefore, the shortcomings of the law need to be identified in order to have solutions to improve the regulations on factors affecting the division of inheritance in general and the division of inheritance of houses and land use rights in particular. These shortcomings need to be amended and supplemented in the 2005 Civil Code, which are legal standards that effectively regulate disputes in the division of inheritance of houses and land use rights. These disputes occur commonly in social life and can only be resolved effectively and promptly when the law has regulations suitable to social life.

Division of inheritance of houses and land use rights according to Vietnamese law - 12

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