History of state and law of foreign countries. Development of institutions of bourgeois civil law. Inheritance law (most important)

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History of state and law of foreign countries. Development of institutions of bourgeois civil law. Inheritance law (most important)

Lecture notes, cheat sheets

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Development of institutions of bourgeois civil law. inheritance law

The Napoleonic Code reinforces the bourgeois principle of unity of the hereditary mass: no one kind of property has privileges over another.

The Napoleonic Code abolished the feudal system of inheritance. While recognizing inheritance by law and inheritance by will, the code, nevertheless, limited testamentary freedom and made the possibility of a testament dependent on whether the testator left children or not.

Property free from testamentary disposition is inherited by law. In this area, the principle of birthright was destroyed. The closest degree of kinship excluded the right to inherit further ones. In the absence of relatives with inheritance rights, the property passed to the surviving spouse. Illegitimate recognized children received hereditary rights to the father's property, but in a limited amount: their share was equal to 1/3 of the share of the legitimate child, and they could not inherit even after the ascendants. nor after the lateral relatives of the testator.

legal heirs recognized first of all direct descending (children, grandchildren). They exclude all others. Then, i.e. in the absence of direct descendants, there are lateral relatives (brothers and sisters), who share property with the parents of the heir - and so on, up to the 12th degree of relationship, i.e. six-fold brothers and sisters. Law 1917 BC limited the circle of legitimate heirs to the sixth degree of kinship. As far as wills are concerned, the Code adheres to the principle of "obligatory succession". With one child, the testator has the right to freely dispose of half of the property (the other half remains under all conditions for the child), with two children - one third, with three - one fourth of the property.

The German Civil Code also requires a mandatory share in favor of descendants. But it does not limit the circle of legitimate heirs to any degree of kinship: the inheritance must find an owner.

Concerning the issue of inheritance law in the system of English law, it should be noted that since the time of the bourgeois revolution, complete freedom of testament has been established, extending to all types of hereditary property. The situation was different with inheritance by law. Up to the Property Administration Act issued in 1925 BC, in English inheritance law there is a shaft, as he writes jenks, "a striking feature" - two types of inheritance were established by law: real inheritance and personal.

Real estate (with the exception of rental rights to real estate) was considered real inheritance. In the absence of clear instructions in the testamentary disposition, real property (mainly the old landed estates of the nobility) passed to the "nearest relative", that is, to the eldest son, when he was available. Descendants excluded everyone else, men excluded women, the eldest, the heir excluded all others. Personal inheritance (that is, mainly movables) was distributed according to rules that differed little from continental ones.

Thus, bourgeois legislation England, France, Germany fixed identical provisions defining the freedom of will, extending to all types of hereditary property.

Author: Selyanin A.V.

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