PHAM DIEM
State and Law Institute of Vietnam
Setting great store by family and ancestry has long been a Vietnamese tradition. As a result, inheritance has been one of the fundamental institutions of such codes as the Hong Duc Code (the 15th century) and the Gia Long Code (the 19th century) during the feudal time, the Tonkin Civil Code (1931) and the Central Vietnam Civil Code (1936) during the French rule.
Following the victorious August 1945 Revolution, the Democratic Republic of Vietnam came into being, which, though still very young, had to confront complicated and vital issues such as fighting domestic enemies and foreign invaders and building a new society.
In order to normalize social relations, the Democratic Republic of Vietnam government on May 22, 1950 promulgated a decree amending a number of provisions in the former civil laws and setting forth a number of new principles applicable to civil relations, suitable to the new regime. Regarding inheritance, this decree provided that husband and wife might inherit each other’s property, that sons and daughters were all entitled to inherit their parents’ property, that widowers and widows and their adult children were all entitled to ask for division of estates, that offspring or widowers or widows were not obliged to receive estates of decedents, and that the decedents’ creditors were not entitled to demand heirs to pay the debts in excess of the estates they enjoyed, etc. All these provisions were the substantive changes as compared to the regulations and rules of the former regimes.
The 1959 Constitution recognized for the first time inheritance as a constitutional principle. It provided in Article 19: “The State protects citizens’ right to inherit property in accordance with law.”
The Marriage and Family Law, promulgated for the first time in Vietnam in 1959, stated: “Children are all equal in families and in property inheritance, regardless of whether they are sons or daughters, in-wedlock children or out-of-wedlock children or adopted children.” The Supreme People’s Court issued Circular No. 549 of August 27, 1968, guiding courts in handling disputes over inheritance, and Circular No. 2 of August 2, 1973, guiding the inheritance of war martyrs’ property.
The 1980 Constitution continued recognizing: “The law protects citizens’ right to inherit property.” To detail some provisions of the new Constitution, the Supreme People’s Court issued Circular No. 81 of July 24, 1981, guiding the settlement of disputes over inheritance (inheritable estates, testamentary inheritance, at-law inheritance, division of estate, etc.). The new Marriage and Family Law, promulgated in 1986, devoted a number of articles (Articles 14, 16, 17,...) to inheritance rights of wives, husbands and children.
Panoramically, during the 1945-1980 period of protracted wars, the economy was centrally planned and state-subsidized, the public ownership regime was established while the private ownership of means of production was not recognized. Naturally, such a socio-economic environment could not spur the legislation on inheritance. The provisions on inheritance during this period were found only in the Marriage and Family Law and a number of documents issued by the Supreme People’s Court, which were scattered and incomprehensive. In this period, inheritance was one of the most underdeveloped institutions in the system of Vietnamese laws.
In the late 1980s, Vietnam embarked on the process of “doi moi dat nuoc” (national renewal), starting to shift to a market economy, recognize the private ownership of means of production, initially build a civil society and integrate into the world. Such renewal process demands the legal system in general and inheritance law in particular be developed and renewed.
On August 30, 1990, the State Council (now the National Assembly Standing Committee) adopted the Ordinance on Inheritance, marking a substantive development of the law on inheritance in Vietnam. With this Ordinance, the contents of the inheritance institution were, for the first time, provided concentratedly and comprehensively in a single legal document. Realities in five years’ implementation of the Ordinance as well as in the settlement of disputes over inheritance showed that the Ordinance had been basically suitable to the practical situation of inheritance relations in Vietnam and ensured the inheritance rights of citizens. For that reason, Vietnam’s first Civil Code, which was promulgated in 1995, inherited most provisions of the Ordinance while adding a number of new issues, particularly concerning the inheritance of land use rights of individuals and family members. The Code devoted a whole part - Part Four - to the provisions on inheritance. With 56 articles (from Articles 634 thru 689) arranged in 4 chapters, the Civil Code provided the transfer of decedents’ property to living persons, basic principles of inheritance, estate leavers and inheritable estates, heirs, basic principles on estate transfer and order of estate transfer, testamentary inheritance and at-law inheritance. In May 2005, the National Assembly passed the new Civil Code (amended), which will come into force as from January 2006. Though containing many amendments, the new Code has basically maintained the inheritance provisions of the 1995 Code.
The Civil Code has put forth four basic principles on inheritance:
First, the law protects the inheritance rights of individuals. This principle is provided right in the first article (Article 634) of Part Four on Inheritance, under which individuals have the right to dispose of their property after they die through making their testaments. All property under individuals’ lawful ownership shall become inheritable estates after such individuals die. Testamentary or at-law heirs shall be guaranteed by law to enjoy estates left by decedents.
Second, all individuals are equal in inheritance. Under the Civil Code, all individuals, regardless of their sexes, ages, social classes, religions and social status, have the right to bequeath their property to other persons or to enjoy testamentary inheritance or inheritance at law. In families, husbands and wives are entitled to inherit each other’s property, sons, daughters, in-wedlock children and out-of-wedlock children are all equal in case of estate divisions according to law. The principle on equality in inheritance has stemmed from the constitutional principle that all citizens are equal before law, ensuring that all family members are equal, jointly build their families into harmonious and sustainable ones according to the oriental tradition.
Third, the property owners’ right to dispose of their property by testaments is respected. According to Article 634, individuals have the right to make testaments to dispose of their property and to bequeath their property to other persons.
Fourth, family love and unity must be consolidated and maintained. This principle has stemmed from a common principle of Vietnam’s civil law, i.e., the establishment and performance of civil rights and obligations must ensure unity, mutual love and mutual assistance. It has also reflected the tradition of Vietnamese families, where exist harmony and mutual love among members.
Regarding estate leavers, under Vietnam’s current law, property owners, when still alive, may put their property into civil circulation and make testaments to bequeath their property to others after they die. In cases where property owners do not make testaments, their property shall be divided for inheritance at law after they pass away. Inheritable estates include the entire property under the lawful ownership of the decedents and their property rights, specifically as follows:
The decedents’ private property, including their lawful incomes, means of subsistence, means of consumption, capital, shares, means of production, etc.
The decedents’ property portions in the common property with other persons. That is the decedents’ portion of property in the form of ownership by portion, portion of property in the common property of husbands and wives during their marriage life. When either of them dies, half of their common property belongs to the decedent.
Property rights left by decedents, including property-related civil rights having arisen from contractual relations or damage compensations, rights to claim debts, claim leased, lent property, to redeem mortgaged or pledged property, to claim civil damages, copyright, industrial property rights, etc.
Land use rights. In Vietnam, land belongs to the ownership of all the people, is uniformly managed by the State and assigned by the State to organizations and individuals for long-term use. To create favorable conditions for organizations and individuals to invest their money and labor in production, and to exploit land efficiently, individuals are permitted by law bequeath their land use rights.
Regarding heirs, at-law heirs must be persons having marital relations, blood or nurturing relations with estate leavers. Testamentary heirs may be individuals or legal persons. Heirs must be still alive at the time of opening inheritance, if they are individuals, or must still exist at the time of opening inheritance, if they are legal persons. They must fulfill the property obligations left by decedents. In cases where estates are not yet divided, the property obligations left by decedents shall be performed by the estate managers under the heirs’ agreement. When estates were already divided, each heir shall perform the property obligations left by decedents corresponding to the portion of estate he/she has received. Under Article 645 of the Civil Code, “a heir shall have the right to disclaim an inheritance, unless such disclaimer is aimed at shirking his/her property obligations toward another person.” For example, a heir has a payable debt or is having to pay damages to another person; hence, he/she has declined to receive the estate in order to shirk his/her obligation to pay such debt or damages. The time limit for disclaiming an inheritance is six months from the date of opening inheritance.
According to Article 646 of the Civil Code, the following persons shall not be entitled to enjoy inheritance:
Persons who are convicted of having intentionally infringed upon the life or health of the estate leavers or of having maltreated, or physically or mentally abused the estate leavers, or of having seriously infringed upon the honor or dignity of such persons;
Persons who seriously breach their obligations to support the estate leavers;
Persons who are convicted of having intentionally infringed upon the life of another heir for the purpose of appropriating part or all of the portion of the estate to which such heir is entitled;
Persons who deceive, coerce or hinder the estate leavers while the latter make their testaments; persons who forge, change or destroy the testaments in order to appropriate part or all of the estate against the will of the estate leavers.
However, to ensure the estate leavers’ right to dispose of their property, the law permits them to make testaments for violating persons to enjoy inheritance.
Regarding the time and place for opening inheritance, according to Article 636 of the Civil Code, the time for opening inheritance is the time the property owner dies. If the time the property owner dies cannot be identified, the time the court declares that such person is dead shall be the time for opening inheritance. The place for opening inheritance is the last place of residence of the estate leaver. If such place cannot be identified, the place of opening inheritance shall be the place where all or most of his/her estate is located.
On estate administrators, according to Article 642 of the Civil Code, an estate administrator is the person who is designated in the testament or appointed under the heirs’ agreement. In cases where heirs are not yet identified and the estate has no administrator, the estate shall be managed by a competent state agency. Estate administrators have the obligations:
To draw up the lists of estates, to preserve estates;
Not to sell, exchange, donate, mortgage, pledge or dispose of it in any other manners, unless with the written consent of the heirs;
To notify the heirs of the estates;
To compensate for damage, if they breach their obligations, causing damage;
To hand back the estates at request of heirs.
Estate administrators also have the rights:
To represent the heirs in their relations with a third person related to the estates;
To enjoy remuneration if so permitted by the estate leavers in their testaments or so agreed by the heirs.-