The inheritance relationship between the heir and the person leaving the legacy is a relationship between people who are close and related to each other. Inheritance under the law depends on the will of the person making the law, not on the will of the person leaving the legacy. Therefore, Vietnamese law always strives to protect the rights and interests of heirs according to the law. However, after a period of time when the legal inheritance regulations were promulgated and took effect, some limitations were revealed, specifically in the inheritance relationship.
1. Ask a problem
In our country, from 1945 until now, the law on inheritance has been built and perfected in accordance with civil society relations, whereby the property rights and interests of citizens are given special attention by the State. attention and protection to suit the country’s socio-economic development situation. Inheritance is a legal institution that plays an important role in transferring the assets of the deceased to one or several survivors. One of the important contents of inheritance law is the law on inheritance. Along with the socio-economic development over time, the law on inheritance in Vietnam has also changed and developed.
Since the Civil Code (hereinafter referred to as the Civil Code) was born, including: Civil Code 1995, Civil Code 2005 and Civil Code 2015. Civil Code 2015 is considered Legal documents provide the most detailed, specific and clear regulations on inheritance law. However, after more than 4 years of implementation from January 1, 2017 until now, the 2015 Civil Code has revealed many certain inadequacies that are not consistent with the practical application of the law. And among those shortcomings and limitations, it is impossible not to mention the issue of inheritance.
2. Law provisions on inheritance
According to the provisions of Article 652 of the 2015 Civil Code : “In case the child of the person leaving the legacy dies before or at the same time as the person leaving the legacy, the child is entitled to a part of the inheritance that the parent left behind. grandchildren will receive benefits if they are still alive; If the grandchild also dies before or at the same time as the person leaving the estate, the great-grandchild will enjoy the inheritance that the great-grandchild’s father or mother would enjoy if still alive”. Substitution in Sino-Vietnamese means “substitution” in “substitution” and “position” in “position”.
In principle, from the time of opening the inheritance, the heir, considered an individual, must be alive at that time or born and alive after the time of opening the inheritance but conceived before the death of the person leaving the inheritance. stipulated in Article 613 of the 2015 Civil Code. However, there are still exceptional cases when the heir is no longer alive at the time of opening the inheritance, then that person’s children will enjoy their inheritance if they are still alive. living, such cases are called hereditary succession.
Besides, according to the above regulations, it can be understood that if the child of the person leaving the legacy does not die but does not have the right to inherit or refuses to receive inheritance, then the grandchildren of the person leaving the legacy will not automatically become the heirs. succession.
If the legatee’s children and grandchildren die at the same time as the legatee, or the legatee’s children die before the legatee, or the legatee’s grandchildren die before the legatee. estate but dies after the legatee’s children or dies at the same time as the legatee, then the legatee’s great-grandchildren will be entitled to enjoy the estate of the legatee’s grandchild if still alive.
According to Article 652, we can draw the following conditions for grandchildren or great-grandchildren to inherit:
First , there must be an event where the grandchild’s or great-grandchild’s father or mother dies before or at the same time as the grandparents (paternal, maternal) or great-grandparents (paternal, maternal). That is, the child of the person leaving the legacy dies before or at the same time as the person leaving the legacy, and the grandchildren also die before or at the same time as the person leaving the legacy.
Second, the successors must be related to the first line of succession and the successor is always in the next generation. That is, only children replace their parents to enjoy the inheritance of their grandparents or great-grandparents, but there is no case where a father or mother replaces their biological children to enjoy the inheritance of their grandparents or great-grandparents.
Third, there must be a direct blood relationship between them (only biological children can replace the biological father and mother). That is, the relationship between relatives in which one person gives birth to the other.
Fourth, the successor heir must be alive at the time of the death of the person leaving the legacy or born and alive after the time of opening the inheritance but conceived before the death of the person leaving the legacy.
Fifth, the father or mother of the successor heir while still alive is not deprived of inheritance rights. That is, the father or mother of the successor does not fall into the cases specified in Clause 1, Article 621 of the 2015 Civil Code).
Sixth, the successor must have the right to enjoy the deceased’s estate.
Regarding the inheritance relationship related to adopted children, it is stipulated in Article 653 of the 2015 Civil Code as follows: ” Adopted children and adoptive fathers and adoptive mothers inherit each other’s inheritance and also inherit inheritance according to prescribed in Article 651 and Article 652 of this Code . The above regulations show that adopted children have the right to enjoy the inheritance regulations specified in Article 651 (legal heirs) and Article 652 (substituent inheritance).
According to the provisions of Article 654 of the 2015 Civil Code: ” Stepchildren and stepfathers and stepmothers, if they have a relationship of caring and nurturing each other like father, son, and mother, will inherit each other’s inheritance and also inherit each other’s inheritance. estate design according to the provisions of Article 652 and Article 653 of this Code . Thus, in order to have the right to inherit the inheritance between a stepchild and a stepfather or stepmother according to the provisions of Article 652 (inheritance) and Article 654, the law stipulates that they must have a caring relationship with each other like fathers. child, mother.
3. Current status and recommendations
3.1. Current status of applying the law on inheritance of grandchildren and great-grandchildren and recommendations for improvement
One of the conditions for a grandchild or great-grandchild to enjoy legal inheritance is that the parent of the grandchild or great-grandchild, when alive, does not fall into the cases specified in Clause 1, Article 621 of the 2015 Civil Code (persons not entitled to inherit the law). heritage).
Thus, in case the parent of a grandchild or great-grandchild commits one of the acts mentioned in Clause 1, Article 621 of the 2015 Civil Code, the grandchild or great-grandchild is not at fault and is not responsible for the act. caused by their father and mother.
On the other hand, Clause 1, Article 2 of the 2015 Penal Code stipulates: ” Only a person who commits a crime prescribed by the Penal Code shall be held criminally responsible .” For that reason, there is no reason why the grandchildren or great-grandchildren of the person leaving the estate should have to bear the consequences of their parents’ independent actions. For example: serious acts of violence against the person leaving behind the estate,…
In addition, the regulation on people not having the right to inherit is a sanction prescribed by law to apply only to those at fault. Therefore, the right to inherit the position of a grandchild or great-grandchild cannot be taken away by law when the father, mother and children are completely criminally responsible independently of each other.
If the father, mother of a grandchild or great-grandchild does not have the right to inherit the inheritance while alive, then the grandchild or great-grandchild also does not have the right to inherit. This is no different from the idea of ”work hard and endure”, not in accordance with the general trend of current law and contrary to the concept of inheritance among the People.
It can be seen that the 2015 Civil Code also has the same regulations as the 1804 French Civil Code: the portion of the person not entitled to the inheritance is transferred to the co-heirs; This person’s children and grandchildren are not entitled to the inheritance that the person who is not entitled to inherit would have enjoyed. However, French law has changed on this issue since 2001. Article 729-1 of the French Civil Code stipulates that in cases where an heir is not entitled to the inheritance due to violations is serious to the person leaving the legacy, then the child of the person who is not entitled to the legacy will take his or her place, that is, exercise the rights of the heir who is not entitled to the legacy. If so, it would be different from the fact that Vietnam’s inheritance system is trending against the world. Or in other words, moving slowly compared to the times.
In fact, Vietnamese law also has regulations on this issue. Specifically, in the 1931 Northern Civil Code (Article 315) and the 1936 Central Civil Code (Article 307), if the parents are still alive but deprived of the right to enjoy their inheritance, their descendants still have the right to enjoy it. Therefore, in the author’s opinion, in order to ensure the rights and interests of the grandchildren and great-grandchildren of the person leaving the estate, the 2015 Civil Code needs to additionally stipulate the case where grandchildren and great-grandchildren still enjoy inheritance in the future. In cases where the parents of the grandchild and great-grandchild were convicted of one of the acts specified in Clause 1, Article 621 of the 2015 Civil Code while still alive, except in cases where the grandchild and great-grandchild committed one of the acts specified in Clause 1, Article 621 of the 2015 Civil Code, prescribed in Clause 1, Article 621 of the 2015 Civil Code.
3.2. The current situation of applying the law on inheritance between stepchildren and stepfathers and stepmothers and recommendations for improvement
According to the provisions of Article 654 of the 2015 Civil Code : “Stepchildren and stepfathers and stepmothers, if they have a relationship of caring and nurturing each other like father and son, mother and child, will inherit each other’s inheritance and also inherit each other’s inheritance. estate design according to the provisions of Article 652 and Article 653 of this Code . In fact, because some people are influenced by the idea that “every generation of bread has bones, several generations of stepmothers love their husband’s children”, the relationship between stepchildren and stepfathers or stepchildren and stepmothers is often very difficult. far. The fact that the 2015 Civil Code stipulates that stepfathers, stepmothers and stepchildren can inherit each other’s inheritance has contributed to narrowing the gap between them. Helps satisfactorily resolve the legal inheritance rights between stepchildren and stepparents. Ensuring legal inheritance rights between stepchildren and stepfather and stepmother. However, understanding what it means to nurture and care for each other like father and child, mother and child, Vietnamese law does not have specific regulations on this.
It can be seen that clarifying the concept of how to care for and raise stepchildren to be like father and mother is an important issue in applying the law to resolve disputes related to children. private.
On the other hand, in practice, the trial has allowed children of the stepchildren of the husband or wife of the person leaving the estate to inherit, typically Judgment No. 33/2011/DS-ST dated July 5, 2011. 2011 of the People’s Court of District 2, Ho Chi Minh City:
Mr. Cung and Mrs. Truyen have three children, Mr. Kinh, Mr. Nhuong and Mr. Nhu. After that, Mrs. Truyen died, Mr. Cung lived as husband and wife with Mrs. Tram but the two had no children together. Mr. Kinh has a child, Mrs. Tho. Mr. Cung, Ms. Tram and Ms. Truyen died (Mrs. Tram died in 2005) without leaving a will, so based on point a, clause 1, Article 675 of the amended Civil Code effective from January 1, 2006, this is an inheritance. legal. Pursuant to Article 676 of the Civil Code, the Trial Panel determined that the first line of heirs of Mr. Cung, Ms. Truyen and Ms. Tram are Mr. Kinh, Nhuong and Nhu. Mr. Nhu died in 1972 without a wife and children, so the remaining heirs were Mr. Kinh and Mr. Nhuong. Mr. Kinh is a martyr who died in 1974 before the opening of inheritance, so based on Article 677 of the Civil Code, Mrs. Tho is the successor to Mr. Kinh’s position. Before Mr. Kinh joined the army, he lived and lived in the same house with Mrs. Tram. Mr. Nhuong also lived and took care of Mrs. Tram later, so they were all considered the same inheritance rights. This was acknowledged by Mr. Nhuong and committed to let Mrs. Tho inherit Mr. Kinh’s position as Mrs. Tha’s father in the minutes of conciliation in Thanh My Loi ward on January 25, 2005, but during the investigation process conciliation and at the trial Mr. Nhuong changed his mind not to acknowledge Ms. Dear’s status as heir. The Trial Panel said that Mr. Nhuong’s change was unfounded.
The jury found that Mr. Cung’s first line of heirs was Mr. Tram, Mr. Nhuong and Mr. Kinh, with Mrs. Tho being the heir to replace Mr. Kinh; Mr. Tram’s first line of heirs are Mr. Nhuong and Mr. Kinh, with Mrs. Tho being Mr. Kinh’s successor.
The author agrees with the Court’s point of view of accepting the inheritance. Specifically, Mr. Tram is Mr. Cung’s wife and Mr. Kinh is Mr. Cung’s stepson (ie Mr. Tram is Mr. Kinh’s stepmother) and the Court determined that Mr. Tram’s first line of inheritance is Mr. Kinh, Nhuong and Nhu. However, Mr. Kinh died before Mr. Tram and Mrs. Tho was identified as Mr. Kinh’s child. The court followed the direction of Mr. Nhuong and Mr. Kinh, with Mrs. Tho as the heir in place of Mrs. Tram’s heirs, and all considered the same inheritance and inheritance rights and decided to determine the first line of inheritance of Mr. Tram. Tram is Mr. Nhuong and Mr. Kinh, and Mrs. Tho is Mr. Kinh’s successor. The 2015 Civil Code stipulates that stepchildren are entitled to inherit their stepmother’s inheritance if they satisfy all the conditions of caring for, nurturing and considering each other as father and mother, and the stepchild’s children have the right to do so. inherit the inheritance that a stepchild would receive if still alive.
Therefore, in the near future, it is necessary to soon issue documents guiding the implementation of Article 654 of the 2015 Civil Code on what is care such as father-child, mother-child, and step-children and step-father and step-mother, if any. The relationship of caring for and nurturing each other such as father and child or mother and child, if they enjoy each other’s inheritance, will be determined as which inheritance line among the inheritance lines specified in Clause 1, Article 651 of the 2015 Civil Code.
In addition, the law does not stipulate that in this case, stepchildren, stepfathers, and stepmothers will belong to the family of heirs after determining the care and nurturing relationship such as father, child, and mother. What is the next line of inheritance if compared with the provisions in Clause 1, Article 651 of the 2015 Civil Code regarding heirs at law?
4. Conclusion
Right from the moment of opening the inheritance, the heir has the right to request a division of the estate. To protect the spirit of solidarity between family members, protect the rights of the wife and minor children of the person leaving the estate, and maintain the stability of the family estate, the law sets out specific regulations. legal inheritance division, including substitutional inheritance. However, the continuous development of society causes the institution of inheritance to encounter many difficulties when applied to real life.
