Inheritance by Blood Relationship

Chapter 2

INHERITANCE AND PROPERTY IN THE PROVISIONS OF VIETNAMESE LAW

2.1. Inheritance

One of the main issues of the inheritance system according to law is the determination of the inheritance category. Vietnamese law in different social regimes has different provisions on the inheritance category. However, regardless of the social regime, regardless of the stage of development, the inheritance category stipulated in the law has a common feature that is governed by the relationship between marriage and family.

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2.1.1. Inheritance by blood relationship

In Vietnam, from ancient times to the present, there has been a custom of ancestor worship. Inheritance is not simply the use of assets to satisfy personal needs, but also contains emotional and religious meanings. The assets left by the deceased will become heritage, and in many cases, those heritages are evaluated not only by their current economic value at the time of death or the time of actual inheritance division, but by the number of generations of families that have survived in succession, creating a strong development of the family line. Each individual becomes a link in the flow of bloodline, of the history of each family line, so those assets are not only a simple material expression, but for many people, they are also associated with memories and sacred feelings between the living and the deceased. The transfer of heritage according to the inheritance regime is the continuation of ownership. Therefore, a person is considered dead but some part of them still exists, exists in their descendants through the heritage they leave behind. Therefore, Vietnamese inheritance law from the past to the present has always taken bloodline as one of the bases to determine the legal inheritance status.

Under the Feudal Regime, with the consciousness of protecting the private property system to maintain its exploitation, the ruling class considered the right to private property as a sacred, inviolable right. Inheritance in this period was seen as a means to maintain and protect the property of those with the same blood relationship. First of all, if we consider the relationship between biological parents and biological children, from ancient times to the present day, it is stipulated that children inherit the property left by their parents. Although the law of the feudal period had inequality between men and women, between sons and daughters, it attached great importance to the factor of bloodline, lineage and regulated social relationships according to feudal principles and etiquette. Hong Duc Law stipulates that daughters are considered heirs, sons and daughters are given equal shares of inheritance, but the ancestral land is always given to the eldest son to keep, if there is no eldest son, it is given to the eldest daughter, the eldest daughter is only entitled to the ancestral land for her lifetime, then it must be returned to the paternal clan to ensure the continuous flow of bloodline, the ancestral land always belongs to the paternal clan. Article 388 of Hong Duc Law stipulates: "If both parents die, have land, and have not yet left a will, but the siblings divide it among themselves, one-twentieth of the ancestral land is given to the eldest son to keep, if there is no eldest son, it is given to the eldest daughter " [42].

During the colonial period, blood relations were still considered the first and most important basis for determining the inheritance status according to the law. The biological children, adopted children, grandchildren, parents, grandparents, paternal great-grandparents, and siblings of the testator were the first to inherit. Only when there were no longer any relatives on the paternal side did the inheritance belong to the maternal side. This provision reflected the blood relations that the lawmakers of this period placed first when determining the inheritance status.

During this period, children's inheritance rights to their parents' property

leave behind is legally recognized. Article 332 of the Central Civil Code stipulates that a person who, while alive, does not divide his property and does not make a will, when he dies, his inheritance, if he has children, will be left to his children. When a person who has died before does not divide his property and does not make a will but clearly states which children to give it to, then both sons and daughters will receive an equal share of that property, each. The content of this provision reflects that children are entitled to inherit their parents' property regardless of whether they are sons or daughters. In the case that the parents do not leave a will to divide, sons and daughters will receive equal shares.

After the August Revolution of 1945, along with the promulgation of the 1946 Constitution, the 1959 Constitution determined that " women are equal to men in all aspects ". Decree No. 97/SL dated May 22, 1950 (hereinafter referred to as Decree No. 97) determined that the inheritance based on blood relations and marriage relations includes children, spouses, and the inheritance based on blood relations only includes children and grandchildren. Circular No. 1742 dated September 18, 1956 issued by the Ministry of Justice (hereinafter referred to as Circular No. 1742) to guide courts at all levels in resolving inheritance disputes, the inheritance based on blood relations was expanded to include biological children, grandchildren, parents of the testator and other heirs. However, this Circular did not clearly define who the other heirs were, so inheritance disputes continuously arose. By Circular 594 dated August 27, 1968 of the Supreme People's Court (TC) (hereinafter referred to as Circular No. 594), on the basis of consolidating and developing solidarity and love within the family, the inheritance based on blood relations continued to be expanded to include biological children, biological parents, paternal and maternal grandparents, and siblings. In this circular, other people such as uncles, aunts, cousins, paternal and maternal grandparents are not eligible to inherit according to the law of the person leaving the inheritance.

Before the reunification of the country in 1975, the inheritance law in South Vietnam under the Saigon puppet regime was stipulated in the Civil Code promulgated on December 20, 1972. The law of the Saigon regime stipulated that if the testator had no children, grandchildren, father, mother, grandparents, brothers, sisters, or children of brothers, sisters, or children of brothers, sisters, or children of brothers, sisters, or children of brothers, sisters, or children of brothers, sisters, or children of brothers, sisters, or children of paternal grandparents, the inheritance would be inherited by the paternal grandparents. If the grandparents were also no longer alive, the paternal uncles, paternal aunts, and paternal aunts would inherit equally, and the children of the testator who were paternal uncles, paternal aunts, and paternal aunts would inherit when their father or mother died. The testator's maternal relatives would only inherit when the testator's paternal relatives had no heirs. The testator's maternal relatives would inherit according to the principle that the maternal grandfather, paternal grandmother, or maternal great-grandparents would inherit. If there is no maternal grandfather, paternal grandmother, or maternal great-grandparents of the testator, the testator's paternal uncle, paternal aunt, or paternal uncle shall inherit the inheritance. The testator's paternal uncle, paternal aunt, or paternal uncle's siblings shall inherit the inheritance if their father or mother has died. The deceased's inheritance shall belong to the public treasury when there is no legal heir. Circular No. 81 of the Supreme People's Court dated July 24, 1981 (hereinafter referred to as Circular No. 81) guiding the courts in resolving disputes over inheritance rights stipulates more clearly the legal heirs, including those who have direct and collateral blood relations with the testator. Those who have direct blood relations include biological parents, paternal and maternal grandparents, biological children, and paternal and maternal grandchildren. Those who have collateral blood relations include biological siblings. Expanding the scope of inheritance based on bloodline in this way aims to further strengthen the stability and sustainability of relationships among family members and clans, but there are still many shortcomings and it does not cover all the heirs.

By the Inheritance Ordinance (PLTK) dated August 30, 1990, the scope of inheritance based on blood relations was regulated to include not only those who

Circular No. 81 defines and also includes other direct and collateral blood relatives, such as paternal and maternal grandparents, paternal and maternal uncles, paternal and maternal aunts, paternal and maternal aunts of the testator and those whose aunts, paternal and maternal uncles the testator is.

When the 1995 Civil Code was promulgated and took effect on July 1, 1996, it marked a remarkable development of the inheritance regime, the legal heirs were first stipulated in a legal document with high legal effect. The legal heirs based on blood relations were stipulated in this Code on the scope of inheritance from the 1990 Civil Code. Accordingly, it is stipulated that the grandchildren of the deceased whose grandparents were the paternal and maternal grandparents are not eligible to inherit from their grandparents, and the great-grandchildren of the deceased whose grandparents were the paternal and maternal grandparents are not eligible to inherit from their grandparents.

The 2005 Civil Code has inherited the essence of previous legal documents, according to which there are many people who are eligible to inherit based on blood relations, such as biological fathers, biological mothers, biological children, paternal and maternal grandparents, siblings, paternal and maternal great-grandparents, paternal and maternal uncles, paternal and maternal aunts, biological nieces and nephews, and great-grandchildren. Compared to the provisions of the 1995 Civil Code, the scope of inheritance based on blood relations continues to be expanded. Grandchildren are also eligible to inherit from paternal and maternal grandparents, and great-grandchildren are also eligible to inherit from paternal and maternal grandparents. The expansion of the scope of people eligible to inherit based on blood relations of the 2005 Civil Code is completely reasonable, in line with the fine moral traditions of our nation. There is no reason to stipulate that paternal and maternal grandparents, paternal and maternal grandparents are eligible to inherit from grandchildren, but grandchildren are not eligible to inherit from paternal and maternal grandparents, paternal and maternal grandparents. Therefore, adding grandchildren to the list of legal heirs is timely and necessary.

On the basis of blood relations, the scope of inheritance has been expanded much more than before. From the place where the scope of inheritance was only determined based on

On the basis of direct blood relations, children are entitled to inherit from their parents, then extended to their parents who are entitled to inherit according to the law of their children; paternal and maternal grandparents are entitled to inherit from their grandchildren and vice versa; paternal and maternal great-grandparents are entitled to inherit from their great-grandchildren and vice versa; siblings are entitled to inherit from each other; paternal and maternal aunts and uncles are entitled to inherit from their grandchildren and vice versa. The regulation of expanding the scope of inheritance according to blood relations reflects the nature of inheritance relations as a special type of property relationship closely related to the obligation to love, care for and nurture each other among relatives in Vietnamese families. On the other hand, it is consistent with the wishes of people who want their property left after death to be enjoyed by those who love and are closest to them.

The provisions on children's inheritance of their parents continued to be inherited and developed in later legal documents of the new regime. The law on marriage and family of the new regime always protects the legitimate interests of children in terms of blood relations with their parents and the obligations of parents towards their children. Decree No. 97 officially stipulates that the legal inheritance includes children, grandchildren, spouses of the testator. And the documents issued later to regulate inheritance relations such as Circular No. 81, PLTK dated August 30, 1990, the 1995 Civil Code and the 2005 Civil Code all stipulate that children are entitled to inherit according to the law of their parents, and the children's right to inherit according to the law does not depend on the form of marriage of their biological father and mother. The biological children of the testator, regardless of whether they are sons or daughters, legitimate or illegitimate, with or without civil capacity, are all subject to the inheritance of their parents. However, determining the parents of a child is still a complicated and difficult issue. But this is extremely necessary because it is the determination of the bloodline between parents and children, which is an important legal basis for protecting the personal rights and property rights of citizens, including the right to inherit property if a dispute arises.

According to the provisions of the Law on Marriage and Family 2000 and the Law on Marriage and Family 2014, sons and daughters have equal rights to inherit the inheritance left by their parents. Biological children include biological children and stepchildren. Stepchildren include legitimate children and illegitimate children.

"Common children " previously referred to by the law of our country as " official children " are children born from a legal marriage. In principle, the following cases are considered common children of a married couple:

- A child born during marriage or conceived by the wife during marriage is the common child of the couple.

- A child born within 300 days from the date of termination of marriage is considered a child conceived by the wife during the marriage.

- Children born before the date of marriage registration and recognized by their parents as the common child of the couple.

In principle, a common child is naturally the legal heir of his or her parents when the parents pass away.

“Illegitimate child” is a term used to refer to children born outside of a legal marriage. In other words, an illegitimate child is a child whose parents are not married or whose parents live together as husband and wife but are not registered as married.

In the Feudal System, children born outside of a formal marriage received less inheritance than legitimate children. Currently, the law provides that illegitimate children have the same rights and obligations as legitimate children. Therefore, legitimate and illegitimate children both inherit from their biological parents, and biological parents both inherit from their children. This provision is consistent with modern concepts of human rights and children's rights and also brings equality, without discrimination between children.

In case the paternal and maternal grandparents are eligible to inherit according to the law from the great-grandchildren and vice versa. The 2005 Civil Code stipulates that paternal and maternal grandparents are eligible to inherit from the great-grandchildren and vice versa.

vice versa. Paternal great-grandfather is the person who gave birth to the paternal grandfather or grandmother. Maternal great-grandfather is the person who gave birth to the maternal grandfather or grandmother. Thus, a person's great-grandfather includes the biological father and mother of paternal and maternal grandparents; that person is the great-grandchild of those great-grandfathers. The regulation that great-grandfathers are the legal heirs of great-grandchildren and vice versa aims to strengthen the good traditions of the Vietnamese family, connecting generations together with love and humanity and the obligations and responsibilities of children and grandchildren.

Article 47 of the 2000 Law on Marriage and Family stipulates the rights and obligations of paternal grandparents, maternal grandparents and grandchildren. Currently stipulated in Article 104 of the 2014 Law on Marriage and Family: Rights and obligations of paternal grandparents, maternal grandparents and grandchildren:

Paternal and maternal grandparents have the right and obligation to look after, care for, and educate their grandchildren, live exemplary lives, and set good examples for their children and grandchildren; in the case of minor grandchildren, adult grandchildren who have lost their civil act capacity or are unable to work and have no property to support themselves without anyone to support them [28].

According to Article 676 of the 2005 Civil Code, paternal and maternal grandparents are legal heirs of their grandchildren and vice versa. Paternal grandparents and maternal grandparents are people with a blood relationship of superiors. The regulation that paternal and maternal grandparents are legal heirs of their grandchildren and vice versa is consistent with Vietnamese morality and promotes family cultural traditions.

In the past, during the feudal period, there was a distinction between paternal grandparents and maternal grandparents. Paternal grandparents belonged to the paternal family and were in the priority order, while maternal grandparents were only eligible to inherit from their grandchildren in the event that there was no one left in the paternal family. Current law no longer has this distinction, but has clearly stipulated that paternal grandparents and maternal grandparents are both eligible to inherit from their grandchildren and vice versa.

In addition, Article 677 of the 2005 Civil Code also stipulates the case of inheritance by grandchildren and great-grandchildren of the estate of grandparents or great-grandparents. Inheritance by succession is

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