scholarly journals Statut spadkowy w postępowaniu dotyczącym podatku od spadku. Glosa do wyroku Naczelnego Sądu Administracyjnego z dnia 16 maja 2019 r., II FSK 1811/18

2021 ◽  
Vol 29 ◽  
pp. 151-167
Author(s):  
Jacek Górecki
Keyword(s):  
Civil Law ◽  
Inheritance Law ◽  
Conflict Of Law

The Supreme Administrative Court has correctly adjudicated that without determining which inheritance law is applicable to the inheritance from the testator, the tax authority cannot categorically claim that an heir subject to inheritance and donation tax acquired the ownership of things or rights by inheritance at the time of the testator’s death. The ruling of the Supreme Administrative Court is also an opportunity to take a broader look at the provisions of the Act of the 28th of July 1983 on inheritance and donation tax which go beyond the issues covered by this jurisdiction. That act also raises other issues the resolution of which requires the application of conflict-of-law rules or, at the very least, of the methods of qualification specific to private international law.The position adopted by the Supreme Administrative Court in this verdict should contribute to the increase of the interest of tax authorities in conflict-of-law issues. Inheritance and donation tax is a public levy with which, due to the nature of the legal events covered by it, there are cases with the so-called „foreign element”. These are also of interest to the conflict-of-law rules. When considering them, as follows from the ruling of the Supreme Administrative Court, it is necessary to refer not only to our own (Polish) provisions of civil law, but also, by applying appropriate conflict-of-law rules, to the provisions of foreign civil law.

scholarly journals KAJIAN KRITIS TERHADAP HUKUM PERDATA (KUHPERDATA) DALAM ASPEK FILOSOFIS

2019 ◽  
Vol 4 (1) ◽  
pp. 20-31
Author(s):  
Anwar Hidayat
Keyword(s):  
Civil Law ◽  
Critical Study ◽  
Private Law ◽  
Inheritance Law ◽  
Social Community ◽  
Current Classification ◽  
Race Ethnicity ◽  
The Law ◽  
Important System

Abstrak Hukum merupakan suatu sistem terpenting di dalam masyarakat untuk mengatur kehidupan yang berkaitan dengan sebuat tatanan yang selalu bergerak baik secara evolutif maupun revolusioner. Tatanan diatur dalam hukum itu sendiri meliputi tatanan transendetal, tatanan sosial/masyarakat dan tatanan politik. Hukum perdata yang merupakan ketentuan atau peraturan yang berkaitan dengan pribadi seseorang dengan orang lain, atau juga hukum sipil memiliki ruang lingkup yang luas dalam pengaturannya. Salah satu bidang hukum yang mengatur hubungan-hubungan antara individu-individu dalam masayrakat dengan sarana tertentu. Penggolongan dari hukum perdata yang ada saat ini antara lain meliputi: Hukum keluarga, Hukum harta kekayaan, Hukum kebendaan, Hukum perikatan, dan Hukum waris. Kajian kritis terhadap hukum perdata yang telah berlaku di Indonesia dengan menggunakan metode filsafat (filosofis), maka seharusya yang dijadikan dasar pemikirannya ialah falsafah Pancasila. Sebagaimana diketahui bahwa Pancasila merupakan sumber dari segala sumber hukum negara Indonesia. Hal yang demikian ini dirasa sesuai mengingat falsafah Pancasila adalah merupakan ruh perjuangan dari para pejuang bangsa, sebagai alat pemersatu, dari yang sebelumnya terkotak-kotak oleh suatu daerah/wilayah, ras, suku, golongan dan agama. Kata Kunci: Hukum Perdata, Filosofis, Pancasila   Abstract The law is the most important system in society to regulate life in relation to an order that is always moving both evolutionarily and revolutionarily. Order is regulated in the law itself including transcendental order, social/community order and political order. Private law which is a provision or regulation relating to someone's personal with others, or also civil law has a broad scope in its regulation. One area of ​​law that regulates the relationships between individuals in society with certain means. The current classification of private law includes: Family law, Property law, Material law, Engagement law, and inheritance law. Critical study of private law that has prevailed in Indonesia using philoshopy (philosophical) methods, then the basis for thinking should be the philosophy of Pancasila. As is known that Pancasila is the source of all sources of Indonesian state law. This is considered appropriate given the philosophy of Pancasila is the spirit of the struggle of the nation's fighters, as a unifying tool, from previously divided by a region / region, race, ethnicity, class and religion. Keyword: Private Law, Philosophical, Pancasila.

scholarly journals Czy przebaczenie niweczy skutki uprzedniego wydziedziczenia?

2017 ◽  
Vol 21 ◽  
pp. 143-153
Author(s):  
Anna Moskal
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Dominant Position ◽  
Legal Nature ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Subject ◽  
Made In

Does forgiveness nullify the effects of previous disinheritance? The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.]]>

The Civil Cassation Department of the Senate as an Instrument of Progressive Reform in Post-Emancipation Russia: The Case of Property and Inheritance Law

Slavic Review ◽  
1983 ◽  
Vol 42 (1) ◽  
pp. 36-59 ◽  
Author(s):  
William G. Wagner
Keyword(s):  
Civil Law ◽  
Inheritance Law ◽  
Economic Changes ◽  
Political Issues ◽  
Progressive Reform ◽  
Accurate Picture ◽  
The Social ◽  
Lower Courts ◽  
Important Means ◽  
Civil Laws

Both Western and, sometimes more grudgingly, Soviet historians have praised certain aspects of the Russian judicial reforms of 1864 and their effects. Judicial transformation of the law proved to be an important means both of adapting traditional law to the social and economic changes occurring in Russia after the emancipation of the serfs in 1861 and of fostering and facilitating further change. Moreover, the effects and implications of some of the reforms of civil law introduced by the new courts inevitably drew these institutions into many of the political controversies besetting Russia at this time. These issues surprisingly, however, have attracted little scholarly attention.This paper seeks to assess the significance of the new courts’ reforming activities and to relate these activities to broader social and political issues by examining the development of property and inheritance law by the Civil Cassation Department of the Senate. As the highest court of appeal for civil actions in the new judicial structure, the Civil Cassation Department rendered definitive interpretations of civil law and exercised tremendous influence over the decisions of lower courts. An examination of its practice therefore would not only reveal the policy of the highest court in the land, but would also provide a fairly accurate picture of the way particular civil laws were interpreted and enforced throughout the empire. While the Civil Cassation Department affected all areas of civil law more or less extensively, a study of its development of property and inheritance law would be especially useful in assessing the extent, nature, and significance of its reformist activity both because of the crucial, multifarious functions of these branches of law in any society and because of particular controversies surrounding them in Russia.

scholarly journals Time of Opening of Inheritance According to the Legislation of Ukraine

2020 ◽  
pp. 89-96
Author(s):  
Denys FEDOSEIEV
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Legal Personality ◽  
Legal Literature ◽  
Relevant Field ◽  
The Relationship ◽  
Legal Consequences

The article explores time of opening of inheritance under the legislation of Ukraine. The legislation of the category “opening of inheritance” enshrined in the Civil Code of Ukraine is established. The definitions of the concept of «opening of inheritance» available in the legal literature are analyzed and the most substantiated and that corresponds to the legal reality among all analyzed definitions of the category «opening of inheritance» is established. Emphasis is placed on the fact that a significant number of definitions of the concept of «opening of inheritance» is identified with the onset of certain legal facts, and not always taken into account all the necessary circumstances. It is emphasized that for the opening of the inheritance it is also important to have a rule of civil law, which regulates the issue and civil legal personality of the participants in the inheritance. It is noted that the time of heritage opening is an integral part of the concept of «opening of inheritance». The normative and scientific definitions of the concept of «time of heritage opening» are clarified. The analysis is carried out and it is emphasized that some statements are incorrect in the context of understanding the time of heritage opening, in particular, regarding the identification of understandings of the concepts «time of heritage opening», «opening of inheritance», «death of the testator». The own approach to understanding of a category «time of heritage opening» is offered. Circumstances that are directly related to the time of the opening of the inheritance and for which the time of the opening of the inheritance has legal consequences have been established. Attention is drawn to the fact that the time of the opening of the inheritance is in direct interdependence and interaction with such categories of civil law as «term», «term», and «moment». The relationship between the concepts of «term», «term», and «moment» is analyzed. It is proved that with the time of the opening of the inheritance, the terms that have a direct significance for the inheritance process begin. The list of terms in the inheritance law which begin from the date of death of the person (testator) or the announcement of its deceased is defined. The legal significance of the opening of inheritance and the time of heritage opening for inheritance law and inheritance, as well as the need for further research in the relevant field are substantiated.

scholarly journals LEGAL ANALYSIS OF LEGITIME PORTIE FOR CHILDREN IN INSIDE AND OUTSIDE LEGITIMATE MARRIAGE IN CIVIL CODE (BURGERLIJK WETBOEK)

2019 ◽  
Vol 11 (2) ◽  
pp. 106
Author(s):  
Prasasti Dyah Nugraheni
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Legal Analysis ◽  
Inheritance Law ◽  
The Law

Inheritance law in a Civil Code is one part of a civil law that has basic nature of regulating something and there’s no element of coercion in the inheritance law. Because this inheritance law is one part of a civil law that has basic nature of regulating, then in this inheritance law there are rules governing an heir to his assets as long as an heir’s still alive. To obtain an inheritance, it can be done in two ways, which include obtaining an inheritance based on the law and obtaining an inheritance based on a will. To obtain an inheritance based on the law, then there must be an absolute part (legitime portie) of an inheritance, namely the existence of an absolute part that’s used to protect an inheritance from the actions of an heir who can make a will which deviates from an absolute part (legitime portie). An absolute part (legitime portie) is protected by a law, this is because in an absolute part (legitime portie) there’s a right that can be used to make a claim to the court in order to obtain a part of its rights an inheritance that’s and has been regulated in a will.

scholarly journals Position Replacement By Inheritee Who Refuses A Heritage According To Heir Civil Law Dan Islamic Heir Law

2018 ◽  
Vol 2 (2) ◽  
pp. 153-165
Author(s):  
Gibtha Wilda Permatasari ◽  
Yuliati Yuliati ◽  
Herman Suryokumoro
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Civil Law ◽  
Legal Issues ◽  
Comparative Approach ◽  
Legal Certainty ◽  
Inheritance Law ◽  
Research Journal ◽  
The Law

This research journal discusses legal issues relating to the substitution of places made by the heirs who previously rejected the inheritance which falls to him by comparison of the perspectives of civil inheritance law and Islamic inheritance law. Pursuant to Article 848 and Article 1060 of the Civil Code on the replacement of the place by the heirs who reject the inheritance and the notary's role as a general official in providing legal certainty to prevent the issue of inheritance according to the law of civil inheritance and the Islamic inheritance law. The purpose of this research is to know and to analyze whether or not the heirs who have rejected inheritance replace other heirs as well as to know the role of notary in giving legal certainty to prevent problems in the civil inheritance law and Islamic inheritance law. The research method used by the writer is the statue approach and comparative approach. Heirs who reject inheritance under civil law of inheritance cannot change place (plaatsvervulling) because the requirement of replacement of place according to the law of civil inheritance is derived from families of blood in the same degree and not reject the inheritance. The replacement of places in Islamic inheritance law is known as mawali however, Islamic law does not recognize the denial of inheritance only known in the law of civil inheritance.

ON THE QUESTION OF THE STRUCTURE OF INHERITANCE LAW

2021 ◽  
Vol 14 (2) ◽  
pp. 59-67
Author(s):  
EKATERINA KHODYREVA ◽  
Keyword(s):  
Legal System ◽  
Civil Law ◽  
Central Place ◽  
Legal Regulation ◽  
Inheritance Law ◽  
Law System ◽  
Legal Norms ◽  
The Subject ◽  
The Right ◽  
Civil Law System

In the present article, the author considers various doctrinal judgments on the question of what constitutes inheritance law and what place it occupies in the legal system. The purpose of the research is to determine the structural divisions of the sub-branch of inheritance law and substantiate the view on the recognition of inheritance law as a sub-branch of civil law with the designation of its inherent institutions and subinstitutions. Results. Based on the results of the study, the author came to the conclusion that inheritance law, taking into account the content of the legal norms forming it, can only be recognized as a sub-branch of civil law. There are no sufficient grounds to consider inheritance law as an institution of civil law or as an independent legal branch as a structural unit of the legal system. Due to the subject of legal regulation, inheritance law is separated from other sub-sectors in the civil law system. Taking into account the specifics of the subject and method of legal regulation, the sub-branch "inheritance law" is subject to further differentiation into its constituent institutions and sub-institutes. It is concluded that it is necessary to distinguish five main institutions within the studied sub-sector, the central place among which belongs to the institute of inheritance law. The legal norms of this institution are currently dispersed in separate chapters of section V of the Civil Code of the Russian Federation and cover the specifics of regulating both hereditary and some related legal relations. It is this diversity to be included in the Institute of law of inheritance relations allows to conclude on the need for it subinstitute three: hereditary sub instructions, sub succession and sub the exercise of the right of inheritance.

HAK WARIS ANAK PEREMPUAN TIONGHUA DALAM PRESFEKTIF HUKUM (STUDI DI KABUPATEN SEKADAU)

2021 ◽  
Vol 9 (1) ◽  
Author(s):  
Michell Eko Hardian
Keyword(s):  
Legal System ◽  
Civil Law ◽  
Legal Pluralism ◽  
Customary Law ◽  
Essential Difference ◽  
Inheritance Law ◽  
High Position ◽  
Middle Way ◽  
Inheritance System ◽  
Long Time

The Tionghoa community is one ofLegislation of Civil Law (Burgelijk Wetboek), it is displaying the existence of legal pluralism in Indonesia.the societies that populated for a long time and it is almost evenly spread in Indonesia. In several case of Tionghoa communities especially in terms of inheritance, a Tionghoa customs is continued to be used which are intended to regulate the differences rghts of boys and girls. In Tionghoa culture, boys are at high position because they are the successors of the clan (clan), contrariwise in Legislation of Civil Law (KUH Perdata) the position of girls and boys are equal. The gap of this differences fascinates the author to apply a research that will be published as a journal with the identification of the problem: How is the inheritance rights of Tionghoa girls toward the inheritance distribution in a legal perspective.This research uses a sociological juridical approach as means of a qualitative method. It is intended to provide a detailed explanation of the phenomenon which difficult to convey in form of quantitative method, to describe the differences between inheritance law that applies to Tionghoa communities and the inheritance legal system according to theThe results of this research confirm an essential difference between the customs and habits of Tionghoa communities and the inheritance legal system according to the Legislation of Civil Law (Burgelijk Wetboek), namely the Tionghoa Indonesian community assign the son as a truly successors of the inheritance of their parents. Therefore, the position of sons is more higher than girls because of the inheritance of the clan. In other hand, the girl does not obtain rights to inherit because the girl will follow her husbands when married.In Legislation of Civil Law (The position of girls and boys are equals, because the Legislation of Civil Law especially adheres to an individual inheritance system, bilateral and parental. In addition to these, the Legislation of Civil Law also know the terms of absolute part of the inheritance (legitime portie), whereas according to customary law; the position of Chinese is different, where the position of boys is higher than girls, this is because boys will take a responsibility to carry the name of their clan (clan) endlessly to the next descendants.The author recommend suggestions consider with with today’s developments and to accomplish the demands of a sense of justice, it is better for girls inherit without being discriminated. Meanwhile, the customs and culture are entrenched. However, a compromise is the middle way as resolution. It is consider with the inheritance law of Indonesia occurs a legal pluralism that influenced by religion, ethnicity and customs, therefore customary laws that was born from the traditions of the Tionghoa community enable to be enforced.

scholarly journals HAK DAN KEDUDUKAN CUCU SEBAGAI AHLI WARIS PENGGANTI DALAM SISTEM PEMBAGIAN WARIS DITINJAU DARI HUKUM WARIS ISLAM DAN KOMPILASI HUKUM ISLAM

2019 ◽  
Vol 19 (1) ◽  
pp. 68
Author(s):  
HAZAR KUSMAYANTI ◽  
Lisa Krisnayanti
Keyword(s):  
Islamic Law ◽  
Family Law ◽  
Human Life ◽  
Civil Law ◽  
Legal Protection ◽  
Human Being ◽  
Inheritance Law ◽  
Legal Consequences

Inheritance law is a part of civil law and is part of family law in particular. Inheritance law is closely related to human life, because every human being will experience a legal event, namely death. These legal events will cause legal consequences regarding the continuation of the rights and obligations of a person who has died and also in relation to his family or other people who have rights to their property. The purpose of this research is to know and understand the rights and position of grandchildren in the system of replacing the heirs in Islamic Inheritance Law and Compilation of Islamic Law and to know and understand the legal protection of grandchildren as heirs in the Islamic Inheritance Law and Compilation of Islamic Law. Based on the research, it can be concluded that the position of grandchild as a substitute heir in Islamic inheritance law is not listed in the Al-Quran and Hadith, only recognized through the Ijtihad conducted by the scholars. But in the Islamic Law Compilation the existence of grandchildren is recognized as a substitute for the parents who have died beforehand from the heirs and legal protection against grandchildren as successor heirs through the Compilation of Islamic Law which gives recognition of the position of substitute heirs through confirmation of the existence of heirs substitutes get full legalization where the provisions are not contained in the classic Islamic inheritance law. In addition, most Religious Judges in considering their decisions in terms of inheritance also see the arrangements contained in the Compilation of Islamic Law as a guide.

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