With the above basic methods, we hope that the topic will be seriously, fully and logically researched.
4. THESIS STRUCTURE
The structure of the thesis is divided as follows:
Foreword
CHAPTER 1: General theory on payment and division of inheritance. CHAPTER 2: Regulations on payment and division of inheritance in Vietnamese civil law.
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Division of inheritance of houses and land use rights according to Vietnamese law - 1 -
Division of inheritance of houses and land use rights according to Vietnamese law - 12 -
Division of common property of spouses during marriage under Vietnamese law - 14 -
Division of common property of spouses according to Vietnamese law - Practical application and improvement direction - 16 -
Division of common property of spouses according to Vietnamese law - Practical application and improvement direction - 10
CHAPTER 3: Practical application, causes and some recommendations to improve legal regulations on payment and division of inheritance.
Conclude
References
CHAPTER 1
GENERAL THEORY ON PAYMENT AND DIVISION OF INHERITANCE
1. INHERITANCE RIGHTS AND INHERITANCE HERITAGE
1.1.1 Inheritance rights:
The emergence of private ownership was accompanied by class differentiation in society. The emergence of the State and law was not a random phenomenon but an inevitable product of the above premise. The right to private ownership of production tools and products resulting from the process of labor, possession, exploitation, etc. that people have gradually been protected by the State and the law. The ownership regime developed over the years has contributed to protecting the fruits of labor of each individual in the process of living, existing and developing in society.
One of the bases for establishing ownership is inheritance. The Vietnamese dictionary defines “Inheritance is the enjoyment of what the deceased leaves behind ”. In other words, inheritance is a legal institution to ensure the transfer of assets from the deceased to the living . This legal institution is very necessary and important to protect ownership rights, preserve and increase wealth for society. If after death, the owner of the property knows that his inheritance will be transferred to his descendants and relatives, it will stimulate the dynamism in developing the assets while he is alive and thus indirectly increase wealth for society.
Inheritance relationship is a legal relationship, appearing simultaneously with ownership relationship and developing with the development of human society. The State appears, by means of law, the State recognizes, regulates and ensures the implementation of social relations according to its will, including the right to leave property as well as the right to inherit of the subjects. Inheritance is a legal institution, a synthesis of legal norms regulating the transfer of property of the deceased to others according to a will or according to a procedure prescribed by law.
and at the same time regulates the scope of rights, obligations and methods of protecting the rights and obligations of heirs. The right to inheritance is a legal institution that protects the rights of individuals to the property they own in transferring the property left after their death to the living, the right to inherit according to a will or according to the law. The forms of transferring the inheritance of a deceased person to the living according to a will or according to the law are the basis for establishing ownership of the inheritance. Thus, the right to inheritance is closely related to the right to ownership and has the following characteristics:
- Inheritance is a method of inheriting the ownership of the deceased's property. Therefore, inheritance is one of the bases for establishing ownership.
- The right of inheritance only takes effect after the testator dies and his or her assets still exist.
- Ownership and inheritance rights are both tools to maintain and protect the private property regime;
- Ownership and inheritance rights both reflect the level of economic development.
- society of the regime in class society.
In feudal society, Vietnamese families follow patriarchal traditions, so the assets created by family members are not only to ensure daily life but also to accumulate and transfer to future generations. Inequality in feudal inheritance relations occurs due to the purpose of preserving moral standards such as ancestor worship, the rights and obligations of the eldest son and eldest grandson in the family... The wife's inheritance rights in the family are bound by the "Three Obediences" theory and are also obscured by the husband's family's internal relations.
At present, the marriage relationship is respected according to the principle of equality between husband and wife in leaving legacy and the right to inherit each other's property when one party dies first. The right to inheritance also ensures that citizens have equal rights to inherit, regardless of gender, age, or ability.
Civil capacity or lack of civil capacity, Article 634 of the 2005 Civil Code: " All individuals are equal in the right to leave their property to others and the right to inherit according to a will or according to the law". The legal provisions on inheritance of our state not only ensure the freedom of individuals in expressing their will but also harmoniously combine with good traditions in family relationships and within the clan.
1.1.2. Inheritance
In each historical period of State and law development, the inheritance system has always been of special interest to States since ancient times. Although the nature of each State is different, for example, the slave-owning State, the feudal State... but they all have the common concept that the inheritance is what belongs to the legal ownership of the deceased. However, if in the slave-owning State, the nature of the State is the slave-owning regime, then slaves are considered a type of property and therefore the "slave" is also considered the inheritance left behind. One of the most valuable assets in all times is land, this is the most important means of production not only for individuals but also for different forms of State. Therefore, the laws of all States are relatively strict on the issue of land, especially in the feudal State. In Vietnam, under the Le Dynasty, Land was the top priority. According to Professor Vu Van Mau in the book Hong Duc Thien Chinh Thu [Saigon, 1959, page 15], "this point is also easy to understand because in an agricultural economy, only land is considered the main factor, other movable assets are just things of little value ". Therefore, in the National Dynasty Penal Code, there are not many provisions on inheritance because one of the bases for establishing land ownership is inheritance, so Articles 374, 375, 376 and Article 390 stipulate inheritance in the Land Property chapter. Western European feudal law recognizes land ownership of entities such as communal ownership, private ownership, the Law states " No land is land without an owner". However,
The feudal system only recognized the land ownership of the feudal nobility and that was their privilege.
In the bourgeois state, when the development of productive forces is the use of mechanical tools to replace human labor, and more wealth is created to promote trade, then the valuable assets of people are not only land, the wealth of merchants is not only assessed by how many square meters of land they own but also by how many shares they own in economic corporations. The legacy left to descendants is not only the transmission of economic power but also the transmission of political power to maintain oppression and exploitation.
Nowadays, when the economy develops freely along with the development of information technology, assets are not simply what can be seen or touched immediately, or in other words, not simply what exists at the present time but also what will exist and will be formed in the future, for example: Income; priority rights; options; bank accounts; deposit certificates; patents; literary works; brand names; real estate formed in the future. All are assets and of course also heritage when their owners pass away.
Vietnamese law in the process of developing inheritance regime also introduces the concept of what is inheritance. This is one of the important bases to accurately determine what the deceased's inheritance includes, where it is, and how much it is worth in order to properly resolve inheritance disputes, divide inheritance among co-heirs, and determine inheritance for worship and inheritance for donation.
As we know, after 1945, with Decree 97-SL dated May 22, 1950 of President Ho Chi Minh, there were no specific regulations on inheritance, but initially, the basic regulations of the Decree indirectly mentioned that a person's inheritance after death included property but did not include
That person's property obligations to others. When Circular No. 594/NCPL dated August 27, 1968 of the Supreme People's Court guiding the settlement of inheritance disputes was issued, the issue of inheritance was initially guided to be determined as follows:
“ Inheritance includes not only personal ownership of the assets left by the deceased, but also property rights and property obligations arising from contractual relationships or from damage caused by the deceased.”
Thus, the inheritance according to this Circular includes not only the assets and property rights but also the property obligations of a deceased person transferred to the legal heir.
On July 24, 1981, the Supreme People's Court issued Circular No. 81/TATC guiding courts at all levels in adjudicating disputes regarding the inconsistency of civil law at that time. This Circular guides:
“ Inheritance includes:
- The assets owned by the testator and legal income, savings, housing, means of living and production tools in cases where individual labor is permitted.
- Property rights that the heir enjoys under contractual relationships or as a result of compensation for damages.
- The property obligations of the heir arise due to contractual relationships, due to damage caused or due to decisions of competent authorities .
The context of the Circular was that shortly before, the State had just promulgated the first Constitution of the unified and socialist State of Vietnam (the 1980 Constitution) with the economic foundation being the public ownership of the means of production concentrated mostly in the hands of the State and Cooperatives. Therefore, the objects of citizens' ownership were mainly legal income, savings, housing, and means of production. Citizens' ownership was limited to "tools of production in cases where individual labor was permitted" (Article 27, 1980 Constitution). Therefore, inheritance could not go beyond
The framework of assets that the law stipulates that citizens have the right to own. On the other hand, when a person dies, he or she not only leaves behind assets that he or she owns, but also property rights such as the right to claim debt from a loan contract, the right to claim compensation for damages arising outside the contract, or property obligations such as a debt payable, a compensation for damages outside the contract but not yet performed. Meanwhile, in terms of legislation, we do not have any document that specifically regulates the concept and classification of assets.
The Inheritance Ordinance was passed by the State Council on August 30, 1991.
has been considered the document with the highest legal value, the most comprehensive and complete regulations on inheritance in Article 4 - Clause 1 stipulates: " Inheritance includes the deceased's private property, the deceased's share of the property in the common property with others, the right to property left by the deceased. Property includes means of living, means of production, legal income." This is a sub-law document so it must strictly comply with the Constitution and the law. The 1980 Constitution and the 1988 Land Law stipulate that land belongs to the entire people and do not stipulate that the State allocates land to organizations and individuals with the right to use land stably and permanently, so the right to use land is not yet defined as inheritance. However, at this time, our State has begun to implement the policy of innovation, building a multi-sector economy, so the right to ownership of citizens according to the general policy is also expanded to certain means of production.
According to the above regulation, the property obligations left by the deceased are not part of the inheritance. This point comes from the social reality that the majority of Vietnamese people believe that before closing their eyes, they always try to pay off debts and expenses related to themselves, including setting aside a little for their own funeral so as not to bother their children. Moreover, when alive, everyone thinks about the responsibility and duty to create assets to improve their own lives and then feel secure in leaving an inheritance for their children and grandchildren, while leaving property obligations is an unintended matter. If it happens
The inheritance is guaranteed by the inheritance portion or divided according to the inheritance portion that each heir receives.
The birth of the 1992 Constitution, the Constitution of the renovation period and the 1995 Civil Code focused on fully and closely regulating civil relations in the conditions of building a multi-sector commodity economy according to the market mechanism, with State management in a socialist orientation. Article 637 of the 1995 Civil Code has provided more complete, concise and succinct provisions on heritage:
-“ 1- Inheritance includes the deceased's personal property and the deceased's share of property jointly owned with others.
-2- Land use rights are also part of the inheritance and are left as inheritance according to regulations..." and in Article 172, it is stipulated on property: " Property includes real objects, money, valuable papers and property rights". Land use rights are also part of the inheritance and are left according to separate regulations stipulated in another part of the Civil Code. This provision is consistent with the Party and State's policy of innovation in land management in recent years. However, the affirmation of land use rights as inheritance has had certain limitations. If land use rights are left as inheritance, are other property rights considered as inheritance? Because of this unclear provision, in the past, there have been different understandings about inheritance, causing difficulties in application.
By the 2005 Civil Code, Article 634 removed Clause 2 and only retained the provision: "Inheritance includes the deceased's private property, the deceased's share of property in common property with others". Such a provision has expanded the concept of property. Land use rights are considered almost like owned property because the person with land use rights can convert, transfer, lease, sublease, inherit, donate, give, mortgage, guarantee, contribute capital with land use rights, and be compensated when the State recovers (Article 106 of the 2004 Land Law) and land use rights have been affirmed as a property in Article 174 of the Civil Code regulating real estate and movable property as real estate including: land; houses, constructions