Ways To Exercise The Right To Accept Of Inheritance Under The Laws Of Ukraine And Other European Countries
The article examines the ways of exercising the right to accept of inheritance in the comparative legal aspect. Based on the analysis of the civil legislation of the countries of continental Europe, two systems of transition to the heirs of the right to inheritance are characterized - “system of acceptance” or “Roman system” (France, Italy, Spain, Latvia, Lithuania, Belarus, Georgia, etc.) and “system of refusal” or “German system” (Germany, Moldova, etc.).
The first one is based on the fact that in order to acquire inheritance rights, the heirs must take active steps to accept the inheritance. At the same time, at the level of national legislation of the countries where such a system is established, there are different types of actions to be taken by the heir in order to accept the inheritance. Accordingly, if the heir fails to commit such actions within the period prescribed by law, the inheritance is considered unaccepted by him. The second system provides for the acquisition of inheritance by the heirs by law, but with the right of the heir to refuse it for a certain period. That is, in this case there is a kind of presumption of acceptance of the inheritance by the heirs, which can be refuted by each of the heirs by renouncing the inheritance committed within the term prescribed by law. Accordingly, if the heir does not renounce the inheritance, he is considered to have accepted it.
The evolution of legislative approaches to determining the order of acceptance of inheritance in codified acts that were in force in Ukraine has been studied. Civil law, which was in force at different times in Ukraine, differently regulated the question of ways of inheritance. The Civil Code of the Ukrainian SSR of 1922 combined elements of the German system (for heirs present at the site of the opening of the inheritance) and the Roman system (for the heirs absent at the site of the opening of the inheritance). The Civil Code of the Ukrainian SSR of 1963 enshrined the Roman model, which provided for the need for heirs to take active action to accept the inheritance, regardless of whether they lived with the testator or not. There were two alternative ways of accepting the inheritance: 1) the actual entry into the management or possession of inherited property; 2) submission to the state notary office at the place of opening the inheritance of an application for acceptance of the inheritance.
The Civil Code of Ukraine of2003 stipulates that in order to accept an inheritance, the heir, as a general rule, must take an active action - to submit to the notary an application for acceptance of the inheritance within the time limits established by law. If such an application is not filed, the heir is considered not to have accepted the inheritance. Only for certain categories of heirs (who permanently lived with the testator at the time of the opening of the inheritance, minors, juvenile, incapacitated, partially incapacitated) the law provides that they are considered to have accepted the inheritance, if within the time limits for acceptance of the inheritance legal representatives will not refuse to accept it.
Analysis of the provisions of inheritance law of Ukraine through the prism of two systems of inheritance - Roman and German - allows to state that the Civil Code of Ukraine currently enshrines elements of both systems: Roman - as a general rule, German - for the categories of heirs. Such a legislative approach does not correspond to modern socio-economic realities and puts the heirs in an unequal position in terms of their acceptance of the inheritance. Under such conditions, we consider it appropriate to further reform the inheritance law of Ukraine in the direction of consolidating the German system as common to all categories of heirs.