There are two main types of succession in civil law . They have their own specific features. However, they have in common the basis for the occurrence. Succession in civil law takes place in the event of the death of a citizen or reorganization of legal entities. faces. Current legislation regulates this institution in sufficient detail. In the article we consider in detail the concept and signs of a singular succession .
Classification
Inheritance of property of citizens is carried out, as is known, either by will or by law. In the latter case, they speak of universal succession . After the death of a citizen, his heirs receive property rights and obligations.
Universal succession arises during the reorganization of the enterprise. The law provides for several of its forms: merger, transformation, accession, etc.
In what cases does a singular succession take place ? It is possible in a variety of legal relationships. A singular succession is a partial transfer of duties and rights of one person to another (others). What does it mean? Simply put, with universal succession, the subject takes the place of a person in all legal relations, and with a singular one - only in some.
Types of Legal Relations
The law provides for many cases in which a singular succession is possible . This , for example, the transfer of a thing with the simultaneous transfer of ownership (including in the framework of the sale, gift, exchange), assignment of claims (cession), transfer of debt.
Limitations
Some duties and rights cannot be transferred in the manner of a singular succession. This is due to their inalienability. We are talking about the moral rights of the subject associated with his personality.
Alimony rights, a claim for compensation for harm to health / life, copyright, etc. cannot transfer to successors.
Features of a singular succession in obligations
Partial transfer of duties and rights is carried out in accordance with special rules of the 24th chapter of the Civil Code. The key provisions governing singular succession are the norms on the change of persons in legal relations. At the same time, the rules of cession and transfer of debt must be observed.
Assignment of claims based on a transaction made in writing (simple) or notarial form must also be carried out. That is, the assignment agreement must be written and, if necessary, certified by the appropriate specialist.
If the initial transaction has passed state registration, then the assignment of rights under it is also registered. Another rule may be established exclusively by law. Assignment of order paper should be made by endorsement (endorsement) on this paper.
Transition rights
According to Article 387 of the Civil Code, the right of a creditor under an obligation transfers to another entity on the basis of law or as a result of certain legal events. These include:
- the entry into force of a court order if the possibility of transfer is permitted by law;
- performance of an obligation by a surety / pledgor who is not a debtor, etc.
Debt transfer may be carried out exclusively with the consent of the creditor. Based on the 2nd paragraph of Article 388 of the Civil Code, assignment is not allowed without the consent of the debtor, if for him the identity of the creditor is significant.
A special case
An example of a change in subjects in a material relationship can be the rule enshrined in the first paragraph of Article 700 of the Civil Code. According to the norm, the lender receives the right to alienation of the thing or its transfer to third parties for free use. In the latter case, the new owner receives the rights under the agreement concluded earlier, and his legal capabilities in relation to the thing are encumbered with the right of the borrower.
Giving
If the law does not allow the transfer of duties and rights from one participant in material relations to another, no procedural succession arises. A case in point is the situation regulated by Article 581 of the Civil Code.
According to the norm, the right of the donee, to whom the thing is promised under the contract, does not pass to his successors, unless otherwise provided by law or by the agreement itself. The situation with the donor is somewhat different. According to paragraph 2 of the 581st article of the Civil Code, his obligation passes to his heirs, unless otherwise provided in the contract.
Consequently, in the event of a property dispute between the donor and the donee, the outcome of the proceedings depends on who dies. If the death of the plaintiff-donee occurs, the proceedings will be terminated. If the donor, acting as a defendant, dies, consideration will continue. Moreover, instead of him, his successors will enter the process.
Recovery of non-pecuniary damage
A situation similar to that described above arises in the case of compensation for physical and moral suffering. At the death of their causer, the obligation to pay rests with his heirs. If the victim dies, his successors do not receive the right to demand compensation. This is due to the close connection of law with the personality of a citizen.
With regard to claims for compensation for non-pecuniary damage, the assignment may serve as the basis for procedural succession exclusively at the stage of enforcement proceedings. In this case, the legal relations related to compensation are already established by a court decision that has entered into force.
Singular Succession in Corporate Law
As mentioned above, the succession of jur. persons is possible during the reorganization. Moreover, as a rule, the transfer of duties and rights is carried out in full.
A singular succession is possible with a reorganization in the form of separation and separation. In the first case, part of the duties and rights goes to the created (allocated) legal entity. face.
The question of the possibility of a singular succession in the division remains debatable today. In fact, the whole complex of objects of legal relations passes to newly created subjects. But when considering each jur. individuals individually, one may note the limited scope of rights.
Organization termination
The legislation does not fix the institution of succession in the liquidation of jur. faces. In this regard, the opinions of experts on the issue of transfer of duties and rights to other entities after the termination of the enterprise significantly differ.
When a legal entity is liquidated, the succession is singular if restrictions are established on the property, that is, it acts as a pledge for the unpaid obligations of the organization that ceased to exist.
In other cases, material values pass to successors in a universal manner.
Partial transfer of functions
Such a succession arises from the restructuring of departments, ministries or other government agencies. In particular, such a model was used in relation to the Ministry of Justice. Certain enforcement functions of the Ministry of Justice, according to Presidential Decree No. 314 of 2004, were transferred to the newly created FSSP and the Fed.
In fact, with a singular succession, duties and rights were transferred within the framework of existing legal relations.
Family law
In a number of legal sectors, a singular succession cannot arise. It is, in particular, family law. This is due to the following circumstances.
Family legal relationships are formed by a complex composition. They arise during the registration of marriage in the authorized bodies of the Civil Registry Office on the voluntary mutual expression of will of persons, in the presence of circumstances that allow registration (achievement of legal capacity) and the absence of obstacles (kinship of future spouses, another registered marriage).
Meanwhile, in the 2nd article of the Insurance Code, other legal relations are provided for, regulated by the norms of family law. These, for example, include personal and property relations between relatives (spouses, children and parents, adopted children and adoptive parents), family members and outside entities. In addition, the SC establishes the rules and forms of placement of children left orphans in the family.
Within the framework of family law, exclusively universal succession may take place.
Fideikomissy
As you know, Roman law formed the basis for the development of the modern legal system. Today, many of its elements are used. The order of inheritance is no exception.
In ancient Rome there were fideomisses - written or oral recommendations (requests) on the fulfillment of any instructions, providing a certain subject with part of the hereditary mass. They were addressed by the property owner to his successors.
Often such requests were reflected in a will drawn up in improper form, or in the usual expression of will addressed to the heirs under the law. The key feature of the fidecomissa was that a certain part of the property passed to the successors, as, in fact, this is happening with the singular succession at the present time.
There was no defense of this institution during the Republic period. The heir independently decided to fulfill or not to fulfill the request. During the period of principle, judicial protection of fideomikisses was introduced.
Sometimes it turned out that the majority of the inheritance passed to the third person, and the successors remained with the debts of the deceased owner and a small amount of material assets. In order to avoid such an injustice, a rule was approved according to which the heir could keep 1/4 of the inheritance, and the remaining share along with the debts was transferred to a third party in accordance with the record in the will. Thus, a universal succession appeared under the shared fideomiss. During Justinian's reign, the singular order and legates (inheritance of a certain value) were equalized.