Inheritance according to current Vietnamese law - Theoretical and practical issues

Only children conceived during that period or conceived before that but recognized as common children are considered common children of the couple. But with modern science

In modern times, a wife can absolutely keep her husband's sperm in a sperm bank and conceive after her husband dies. In terms of bloodline, the child

If a child is born as a child of the couple, the biological child of the deceased father, will it be entitled to inherit from its father? In another case, during the marriage, the husband is unable to have children, the couple discusses and agrees to have a child through scientific intervention; or suppose the wife, without discussing with her husband, conceives herself in that way without the husband knowing, is the child born considered the child of the couple or just the wife's own child? Determine

Determining the status of a child will determine its inheritance rights with the person it calls its father. This puts before the law a requirement for a legal framework for determining the parents of a child born by scientific methods to better protect civil rights in general, the right to inherit property in particular, and also to ensure social humanitarian issues.

3.2.2. Some recommendations to improve the law on inheritance

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Based on the analysis of the successes and shortcomings of current Vietnamese law on inheritance, and based on the need to improve the law on inheritance, the author would like to boldly make some recommendations as follows:

* About the content of inheritance

- The regulation that husband and wife belong to the first order of inheritance, have equal rights and are given top priority in inheriting each other's inheritance according to the law is a remarkable progress of the current Vietnamese inheritance law, affirming the position of marital relations in the family alongside the position of blood relations and foster relationships, and at the same time having great significance in protecting family order, affirming the equality between husband and wife and the indispensable role of the wife in the family. However, in my personal opinion, I think that the regulation on the inheritance rights of husband and wife must take into account the contribution of

In reality, husband and wife have the obligation to help and create conditions for each other to develop in all aspects, including economic activities - activities aimed at creating wealth. If the husband and wife do not fully perform the above legal obligations when they are married or divorced, the legal provisions on the division of property between husband and wife during marriage or divorce take this into account. Although inheritance is not the enjoyment of property based on their efforts, if a person has no role in creating the property of the husband (wife) and when the husband (wife) dies, he or she is the first priority to receive the inheritance, it is clearly not in accordance with social ethics. Moreover, according to the provisions of the Law on Marriage and Family, husband and wife have the obligation to help and create conditions for each other to develop in all aspects, including indispensable economic activities - activities aimed at creating wealth. If when the husband (wife) is alive, the wife (husband) does not fully perform the above legal obligations, the relationship between husband and wife is really very loose, then when the husband (wife) dies, is it reasonable for the surviving person to inherit the property left by the other?

- It is completely appropriate for biological children and biological parents to inherit each other's inheritance according to the law, both economically and morally, in terms of the issue of inheritance transfer, satisfying the common aspirations of the whole society and according to the common practice of world law. However, according to the provisions of current law, only children conceived before and during marriage are considered children.

joint birth of husband and wife, is the biological child of husband and wife. This viewpoint will encounter some problems in modern society. Nowadays, thanks to the brilliant development of medicine, it is completely possible for a woman to give birth to a child that is the blood of her husband after he has passed away. The child is born

Of course, a child is a biological child of a married couple, carrying the blood of both the mother and the deceased father, but according to current legal regulations, it is not considered the biological child of its biological father. Therefore, the author believes that lawmakers need to reconsider the concept of a child of a married couple as a solid basis for resolving not only reasonable but also appropriate inheritance disputes.

Also from the fact that a child is born by scientific methods, the issue of determining the legal status of the father, mother and child born in this case also becomes

an urgent requirement for the law. This is directly related to the issue of determining the heirs of the first order of inheritance, specifically determining the biological father, biological mother and biological children. Therefore, the law also needs to promptly regulate the above issue specifically, thereby creating a basis for resolving all aspects of the rights of the people involved, including the right to inheritance.

- As a supplement to the inheritance relationship in the first line of inheritance, stepchildren and stepfathers and stepmothers can also inherit from each other if they have fulfilled their obligation to raise each other as father and child, mother and child. However, Vietnamese law has not yet officially explained this concept.

This may lead to a situation where the person leaving the inheritance dies, because he does not want the stepchild of the testator's spouse to inherit the inheritance according to the law, but the other heirs do not recognize the inheritance relationship between the stepchild and the stepfather or stepmother. In the context of an incomplete legal framework, the courts have difficulty protecting the legitimate rights of the stepchild and the stepfather or stepmother. Thus, although the provisions on the foster relationship do not belong to the inheritance field, they are also the basis for resolving the inheritance relationship according to the law. Therefore, the concept of "fostering" in general, the concept of "care and nurturing like father and child, mother and child" in particular need to be clarified in the law, to contribute to better protecting the personal and property rights of citizens, including the right to inheritance between people who have a foster relationship with each other, the right to inheritance between the stepchild and the stepfather or stepmother.

- Recognizing the inheritance rights of the testator's children and parents is the right thing to do, because more than anyone else, they are the closest blood relatives to the testator. However, the laws of some countries do not put fathers, mothers and children in the same line of inheritance as in current Vietnamese law, but give priority to the testator's children in the first line, while the fathers and mothers

are ranked as the next heir. That can be explained by quite convincing arguments. Although the father and mother are ranked as the first heir if considered

In terms of ethics alone, it has shown a high level of protection for the lives of the elderly according to the folk concept of "old people rely on their children", if unfortunately children die before their parents, the inheritance left by their children will help their parents reduce some of the difficulties when they are old and weak. However, if considering the economic significance of transferring assets, this regulation will not bring about good results compared to the inheritance being transferred only to the children. Because if the inheritance portion for the father and mother is reduced, the inheritance will be transferred in a more concentrated manner and create conditions for the children - the next generation - to continue the family's economic career. On this point, I think that Vietnamese lawmakers can completely refer to it for consideration when regulating the order of inheritance.

- Regarding the second and third order of inheritance, as analyzed in subsections 2.1.2 and 2.1.3, the regulation that paternal grandparents, maternal grandparents and paternal and maternal great-grandparents are heirs of grandchildren and great-grandchildren is not really convincing. If the inheritance contributes to ensuring the lives of grandparents and great-grandparents, this is often just a theory. In reality, grandchildren and great-grandchildren rarely have to shoulder the obligation to support grandparents, especially great-grandparents. Moreover, according to the law of nature, grandparents, especially great-grandparents, often die before their children and grandchildren. Moreover, if the inheritance is divided among grandparents and great-grandparents, there is a high risk of fragmentation (because grandparents and great-grandparents are old and cannot easily manage the inheritance directly; when they die, this inheritance will continue to be divided among the heirs). For these reasons, the author would like to

It is recommended not to regulate these subjects in the inheritance lines.

- In addition, when between uncles, aunts, nieces and nephews, they have truly raised each other as father and child, mother and child, then when one party in that relationship dies, the other party is the legal heir as a third-order heir, is it really fair to them? Especially when we consider the correlation of inheritance rights between stepchildren and stepfathers, stepmothers, between adoptive parents and adopted children. According to current legal regulations, there is probably no better solution than considering and resolving inheritance rights between these people with the view of

It is a form of de facto adoption relationship, whereby these people will have the right to inherit from each other as adopted children and adoptive parents. However, it is only

This is a widely accepted view, not yet an orthodox view, with a solid scientific basis. So, to solve this problem, should the law have specific adjustments to the above special relationship?

In general, we believe that the right to inherit according to the order of inheritance should only be given to those who are relatives and are capable of inheriting according to the law of life. It is possible to take into account the main theoretical heirs as "reserves" for special cases that may occur, avoiding the case where no heir receives the inheritance. To avoid the inheritance being fragmented due to division among many heirs, each order of inheritance should only include a few subjects and be arranged from the closest to the most distant relationship. Particularly for those who are blood relatives, those with direct blood relations must be given priority over those with collateral blood relations, with a balance

Regarding the generation gap factor in the relationship with the person leaving the legacy, priority should be given to those with lower blood relations first according to the social concept of "tears flowing down", while at the same time creating conditions to concentrate social wealth in the hands of young workers, thereby "creating momentum" for development. So, should the heirs be regulated into the following ranks:

The first order of heirs includes: wife, husband, biological children, adopted children of the deceased; The second order of heirs includes: biological father, biological mother, adoptive father, adoptive mother of the deceased; The third order of heirs includes: biological brothers, biological sisters, and younger siblings of the deceased;

The fourth order of heirs includes: grandchildren of the deceased, of whom the deceased is a

grandfather, grandmother, maternal grandfather, maternal grandmother;

The fifth order of inheritance includes: grandchildren of the deceased whose deceased is a paternal uncle, paternal aunt, paternal aunt;

The sixth line of heirs includes: paternal uncles, maternal aunts, paternal aunts of the deceased.

In addition, the law may also provide for certain lines of inheritance which include people who are more distantly related to the testator.

If the legal inheritance lines are regulated as above, they will be consistent with national cultural traditions and social ethics, contributing to protecting and preserving family solidarity, while creating favorable conditions for heirs to continue managing and using the inheritance.

In addition to general provisions on inheritance lines, the law also needs to continue to supplement and perfect regulations on specific cases of inheritance according to law such as inheritance rights between husband and wife in cases where they do not have common contributions; between children born by scientific methods and their parents; between stepchildren and stepfathers, stepmothers, between grandchildren and paternal uncles, paternal aunts in cases where they have cared for and raised each other as father and child, mother and child;...

* About the succession of the throne

Inheritance by substitution is not essentially inheritance by rank but is closely related to inheritance by rank. Thoroughly resolving the issue of inheritance by substitution contributes to perfecting the legal basis for thoroughly resolving inheritance relations by law. Currently, the law does not have specific regulations on the relationship between inheritance by law and inheritance by substitution, therefore, in practice, the application of the law related to this issue still has certain problems. In the case of inheritance by substitution, can the person who is entitled to the throne (the heir who dies before the time of inheritance) be named when determining the legal inheritance line? The courts handle this quite differently. Some courts do not mention that person but still count their inheritance as a share, while others still classify them as heirs. Personally, I support the second approach, because in essence, they are still heirs, it is just that they do not actually receive the inheritance. However, to overcome such disagreements, the law needs to have specific guidelines in this case.

* Regarding refusal of inheritance

To thoroughly resolve the inheritance relationship according to the line, the law also needs to have specific regulations on the issue of refusing inheritance rights. In practice, resolving the

Inheritance cases according to the law show that the refusal of inheritance rights is quite common and diverse. Some heirs refuse the entire inheritance, others refuse a part of the inheritance, may only accept a proportion or only accept this inheritance without accepting other assets, etc. The current regulations on refusal of inheritance rights are still quite general, the courts may have different ways of applying them, may or may not allow a person to refuse a part of the inheritance rights, the legal consequences of refusing the right to inherit are also not regulated, causing a lot of confusion in the application of the law. Therefore, the law in the future needs to resolve all of these problems as a basis for the unified resolution of similar practical cases related to this issue.

* On the transfer of inheritance rights

In addition to the provisions on refusal of inheritance, additional provisions are added.

The provision on inheritance rights is also an effective solution to handle many cases of inheritance according to the law in practice. For the benefit of some other heirs, there are heirs who do not accept their inheritance but designate others to receive it. When facing these cases, the courts today always respect the will of the people involved. In essence, that is the transfer of inheritance rights, but the current law has no regulations on this issue. Therefore, I think that the concept of inheritance rights transfer, the subjects in the inheritance rights transfer relationship, the legal consequences of inheritance rights transfer, etc. need to be regulated in detail soon to serve as a solid basis for the process of resolving cases in practice.

Above are some of my recommendations to improve the current Vietnamese law on inheritance, hoping to contribute to the work of building the country's law in the coming time. I fully believe that our inheritance law in general, and inheritance law in particular, will soon be completed, effectively meeting social needs.

Conclude

1. Inheritance is the transfer of property from the deceased to the living, and is one of the bases for creating, changing, and terminating ownership rights - a basic human power. Since ancient times, inheritance

has appeared as an objective necessity of history and has become increasingly popular with the development of society. Regulating inheritance relations as well as regulating all relations related to ownership and transfer of other assets has never been considered a simple matter, but has now become more complicated in the context of diverse development of ownership relations and types of assets. The inheritance regime - an important part of civil law - with general provisions on inheritance and specific provisions on two forms of inheritance by will and inheritance by law are the legal bases for regulating issues arising in inheritance relations. In inheritance by law, determining the order of inheritance is a key issue. Therefore, in order to perfect the law on inheritance by law, lawmakers need to pay attention to perfecting the provisions on the order of inheritance.

2. Heritage is property, but it is not just an ordinary property, but also carries within it the great significance of family values, of sacred and close human feelings. Relationships regarding inheritance of property are therefore always governed by socio-economic factors, heavily influenced by cultural identity, national traditions and significantly influenced by beliefs and religions. There seems to be a general principle in the transfer of heritage according to the law, which is that the heritage must be given priority to relatives in the family, especially those to whom the deceased is bound by the obligations of nurturing and economic support.

3. In our country, the law on inheritance in general and the law on inheritance in particular from 1945 to present have been continuously built, amended and supplemented.

Inheritance according to current Vietnamese law - Theoretical and practical issues - 11

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