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DOI 10.37749/2308-9636-2020-8(212)-1

Nelin O.I. The formation and development of the doctrine of disinheritance (vacancies) in Ukraine

The author investigated the formation and development of the doctrine of disinheritance (vacancies) in Ukraine.  It was established that inheritance law in Ukraine, like other legal phenomena, underwent its evolution, development and enrichment at different historical stages of the Ukrainian people and was closely related to the existence or absence of Ukrainian statehood. Modern standards in this specific area of ​​legal relations were formed gradually.  In the Kievan state there was no institute of disinheritance, since the household property of the Old Russian clan was in the collective ownership of the entire family, and not in the ownership of a separate father-householder.  That is why it was not an inheritance, but only a redistribution of household property, which remained in common ownership within the family.

The term “property without heirs” was first defined in the Lithuanian-Ruthenian state in the Lithuanian Statutes (1566):  if there were no heirs by law or by will, the property was recognized as inherited and passed to the state.

For the legal system  of the Hetmanate era, the primary source was the hereditary nature of inheritance, and the transfer of hereditary property to a public institution was an exception.  Moreover, in the Ukrainian legal tradition, there is a noticeable competition between the recognition of vacant inheritance as property without heirs and the extension of the institution of inheritance to these relations.

In the Ukrainian SSR,  the right of inheritance without heirs passed to the state. 

In modern civil law of Ukraine there is no concept of property without heirs (inheritance).  The new Civil Code of Ukraine (2003) introduces the concept of “inheritance without heirs” (Article 1277).  Ukrainian legislation applies European and international norms and standards.  Along with this, the process must correspond to the legal mentality of the Ukrainian people, the values ​​and authenticity of its legal culture.  By adopting the Civil Code, Ukraine has taken an important step towards integration into the continental legal system, and inheritance law has acquired a new concept of inheritance without heirs, when: first, the existing inheritance can be recognized in court as inheritance-free, after which it passes to the territorial community where it was initiated; secondly, the state is excluded both from the circle of heirs by law and from the circle of subjects-heirs of the inheritance recognized as inheritance-free.

The author points out that  Ukrainian legislators did not take into account European experience during the codification of civil legislation, therefore there are a number of issues that need to be resolved so that the Ukrainian legal system fully complies with international standards.  In EU countries, the bearer of the right to property without heirs is the state, in Ukraine – the territorial community, which outweighs the effectiveness of the function of eliminating non-subjectivity, for which disinheritance is intended.  Since the territorial community does not have and cannot have as much civil legal capacity as the state.

The author identifies some shortcomings in the legal regulation of this issue and develops proposals for improving inheritance legislation in Ukraine.

Keywords:  succession, inheritance, property without heirs, testator, heir, territorial community.

Link

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