Prescriptive periods with respect to inheritance in Vietnam before January 1, 2017

Judgment 10/2020/DS-PT dated January 15, 2020 on property inheritance disputes, cancellation of land use right certificates contains the following content:

“Mr. L died on February 2, 1985 (without leaving a will), and Mrs. Nhn died on June 2, 2016, the two of them had property and land with an area of ​​1185.6 m2 of land, ponds, and gardens in Quynh Cu 2, Hung Vuong ward, Hbg district, Hpg city. Mr. L and Mrs. Nhn gave birth to 5 children, Mr. Hng, Mrs. O, Mrs. Chm, Mrs. Km and Mrs. Hn. On November 15, 2016, Mr. Hng filed a lawsuit asking for the division of the inheritance left by Mr. L and Mr. Nhn and requested the cancellation of the land use right certificate.

According to the judgment of the High Court in Hanoi on the statute of limitations for initiating lawsuits: Clause 1, Article 623 of the Civil Code 2015 on the statute of limitations for inheritance shall be applied to accept and settle. For the case of inheritance opened before September 10, 1990, the statute of limitations for initiating a lawsuit shall comply with Article 36 of the Ordinance on Inheritance 1990 and the statute of limitations for initiating a lawsuit shall be from September 10, 1990; Therefore, the case is still within the statute of limitations for initiating a lawsuit as prescribed.”

Inheritance is one of the basic rights to protect the property rights of each citizen. However, the right of inheritance is not indefinite but must have a certain period prescribed by law, which is the statute of limitations. The issue of determining the statute of limitations for initiating a lawsuit to divide the inheritance is very important for the Court to accept, settle the case or issue a decision to suspend the settlement of the case.

The 2015 Civil Code of Vietnam stipulates:

Article 623. Prescriptive periods with respect to inheritance

1. The prescriptive period with respect to a claim of an heir for distribution of an estate shall be thirty years regarding immovable property or ten years regarding movable property from the time of commencement of the inheritance. 

…

According to the regulation, for disputes over division of inheritance which is the immovable property in which the estate leaver dies after January 1, 2017, it is obvious that the applicable statute of limitations is 30 years from the time of opening the inheritance. Therefore, Mr. L died in 1985, before the effective date of the Civil Code 2015 the Court can apply the statute of limitations as prescribed?

Article 688. Transitional regulations

1. With respect to civil transactions established before the effective date of this Code, the law shall be implemented as follows:

2 a) …

According to the expression in Clause 1, Article 688 of the 2015 Civil Code, only civil transactions shall apply the statute of limitations for division of inheritance for real estate which is 30 years from the time of inheritance opening. In the case of the above case, Mr. L did not leave a will before his death, which is legal inheritance. If the inheritance is divided according to the will, the 30-year statute of limitations is reasonable.

However, in Article 116 of the 2015 Civil Code, it has been defined as "Civil transaction is a contract or unilateral legal act that gives rise to, changes or terminates civil rights and obligations ". Thus, inheritance according to law is not a civil transaction, can the statute of limitations for division of inheritance be applied for 30 years in this case?

Compared to Precedent No. 26/2018/AL, the general content is as follows:

"However, according to the regulations of Clause 1, Article 623 of the Civil Code 2015 (effective from January 1, 2017), the statute of limitations for an heir to request the division of the estate is 30 years for real estate, from the time of opening the inheritance.

…

Therefore, from the effective date of the 2015 Civil Code, the Court shall apply the provisions of Article 623 of the 2015 Civil Code to determine the statute of limitations for the case of opening an inheritance before January 1, 2015. 2017 ”

The case law has accepted the application of the 30-year statute of limitations from the time of opening the inheritance to the requests for division of the inheritance that is the real estate that the leaver dies before the effective date of the Civil Code 2015.

The development of the content of precedents has supplemented the shortcomings in the regulations of the statute of limitations of the law, and at the same time opened up a new resolution for the court, helping to prevent disputes over inheritance division from being left open because the expiration of the statute of limitations.