Учебный год 22-23 / William_Simons_Private_and_Civil_Law_in_the_R

In particular, if the “Conclusions of the Parliamentary Commission Investigating the Reasons for and Circumstances Surrounding the Crisis Situation in the Chechen Republic” had not been published by the Loventa publishing house but, rather, only approved and distributed by the RF State Duma itself as its own document, then insofar as the Duma is not a legal person, the only means of protection for those whose honor and dignity have been infringed upon by the publication of the “Conclusions” would be to petition a court in accordance with the RF Law “On Appealing in Court Acts and Decisions”. In the Russian Federation, state bodies are not immune from administrative liability.

The RF Law “On Appealing in Court Acts and Decisions”, as follows from it title, only applies to citizens.

However, Article 46 of the 1993 RF Constitution accords to “each” (kazhdyi) person the right to appeal decisions and acts (inaction) of “agencies of state power, agencies of local self-government, social public associations and officials” in court.

AlthoughArticle 46 is located in Chapter 2 of the Constitution, titled

“The Rights and Freedoms of Citizens”, a widespread opinion exists— expressed in a decree (postanovlenie) of the RF Constitutional Court No.17-P of 24 October 1996 in a case involving the constitutionality of Article 2(1) of the Federal Law of 7 March 1996 “OnAmendments andAddenda to the

LawoftheRussianFederation‘OnExciseDuties’”—thattheconstitutional rights of persons and citizens also belong to legal persons “to the degree to which such right may be applied thereto”.

In our view, the main task before courts in considering cases involving the protection of honor, dignity, and business reputation is not so much in determining the accuracy or fallacy of disseminated information, as it is in determining what one may (or may not) say regarding others in a free society.

This circumstance pointedly characterizes the condition of minds in a society where freedom of speech has come into existence only recently, whereas previously subjective evaluations of events would have been unthinkable.

In addition, Russian society—as evident from the ruling on the case of the Russian National Unity Party—has become accustomed to deal- ing not with factual information or critical discussions but, rather, with symbolic meanings.

Today, judicial practice in cases involving the protection of honor, dignity, and business reputation reflect two contradictory tendencies: on the one hand, an attempt to ensure the protection of individuals’ rights,

and on the other hand, the imposition of censorship of statements as well as the deprivation of the possibility for society to evaluate things itself.

This makes it all the more important to promptly establish judicial practice based on the Russian Constitution and generally accepted norms of international law. It seems that this will require the adoption of a new resolution of the RF Plenum of the Supreme Court which should assist thecourtsinclearlydefiningthedifferencebetweenstatementsofvarious kinds so as to discourage any indirect infringement of honor, dignity, and business reputation, and to bring the practice of compensation for moral damages into accordance with the law.

Quite possibly, it would have made sense to have provided for a greater variety in the means for protecting—through court actions—the honor, dignity, and business reputation. But that is a matter for the legislator.

However, the deciding factor in the formation of judicial practice in the field of the protection of honor, dignity, and business reputation will be the experience of free social and political life, and the need to accept a variety of ideas and opinions. Judicial practice must itself, in fact, encourage freedom of thought and common sense to take root in society.

the former Soviet Union. The same provision is found in Article 10 of the USSRConstitution of 1936, the concept behind it being that in a country of victorious­socialism—inwhichtheexploitingclasseshavebeeneliminated— inheritance law cannot become a source of exploitation; rather, it should protect the personal ownership of the toilers, increase the productivity of labor, and strengthen the Soviet family, fortifying in this way the relations uniting the citizens of the USSR with socialist society.4 As we shall see, some important elements of the law of inheritance even go back to the times before 1917.

This chapter intends to draw attention to some of the most character- istic features of this tradition and the difficulties that might be expected there from.

2. My first remarks regard the Russian system of access to the inheri- tance. The heir is obliged to accept the inheritance within a time limit of six months from the date of its opening, which is the day of the death of the individual concerned. Later acceptance is only possible with the consent of all other heirs who have accepted the inheritance or on the basis of an extension of the time limit granted by a court if it recognizes thattherewereadequategroundsforthedelay.Accesstotheinheritance, moreover, requires a certificate of the right to inherit, issued by a notary at the place of the opening of the inheritance. This certificate is to be issued to the heirs who have accepted the inheritance on their application upon the expiry of six months from the opening of the inheritance. It may be issued prior to the expiry of six months if there is proof that no other heirs exist other than the person(s) who has (have) applied for the certificate.This system evolves fromArticles 546, 557, and 558 of the

Civil Code of 1964 (going back to Arts.425 and 435 of the Code of 1922) and has—for all intents and purposes—been maintained in the draft of

January 1997. It applies to intestate succession, as well as to succession under a will.

It is interesting to compare this system with the various solutions that existinWesternEuropeinthisfield.5 Roughly speaking, they can be divided into three groups. In all three groups, there seems to be a relation between the admitting of holograph wills and the formalities required for access to the inheritance.

4See the passages cited by V. Gsovski, Soviet Civil Law, Vol.I, Ann Arbor 1948, 619621.

5For a recent overview of the law of inheritance of Western European countries see D. Hayton, (ed.), European Succession Laws, Bristol 1998.

(a)In countries where a holographic will is normal, access to the inheritance can only be obtained by means of some form of interference of a court. The probation procedure and the “letters of administration” in common-law countries should be mentioned here, as well as the German Erbschein, which is issued by the Nachlassgericht, and the Swiss requirement of homologation of holographs by a court.

(b)In France and in Belgium, wills are usually made with the help of a notary, although often essentially still in the form of a holograph that is entrusted by the testator to the notary who takes it into custody. This leads, roughly speaking, to the following system. The holograph cannot be executed without the cooperation of the legal heirs or—where this cooperation is not forthcoming—without an order of the president of a court. In case of intestate succession, access to the inheritance can be obtained by means of an acte de notoriété of a notary, which gives the person indicated therein the position of “apparent heir”. In Belgium, this rather complicated institution is only applicable as far as movables are concerned and is aimed at the protection of third parties even where the true heir turns up.

(c)The third group, to whichThe Netherlands belong, takes as a starting point that a will in practice is made in the form of a notarial deed. In The Netherlands, other forms are not entirely excluded but are only rarely applied. Even a holograph is only valid when it is put into the custody of a notary who has to draw up a statement certifying that s/ he indeed received this will, which statement has to be signed by the notary, the testator, and two witnesses. In The Netherlands, access to the inheritance is given on the simple basis of a statement of the notaryindicatingwhoisentitledtotheinheritance.Thisissufficient in case of intestacy as well as in case of a will. This system is quite reliable because a Dutch notary who has been involved in drawing up awillisobligedtoinformacentralregistrationofficeofitsexistence, the date on which it was made, and the name of the notary in whose officeitiskept.6 That means that at the moment the testator dies, it is very easy to know at short notice if there is a will or, in case there are several wills, which one is the latest. Theoretically, this does not excludeuncertaintiesasaconsequenceofwillsthataremadeabroad but, in practice, this complication rarely yields any significant prob- lems.

6Similar registrations exist in other countries, but it should be kept in mind that registration usually is not obligatory­ and that the possibility to make a holograph without interference of a notary will probably lead to gaps in registration.

Moreover, these problems are reduced considerably by a Council of Europe convention on the establishment of a scheme of registration of wills of 16 May 1972. This convention7 obliges the contracting states to establish a scheme of registration of wills and to appoint a national body that, without anyintermediary,isrequiredtoarrangeforregistrationinothercontracting statesandtoreceiveandanswerrequestsforinformationarrivingfromthe national bodies of other contracting states. The notary (or other person) who has recorded the will may request registration thereof not only in the state where the will is made or deposited but also through the intermediary of the national bodies in other contracting states.

Evidently,theRussiansystembelongstoGroupC.Russianlawrequires, for a will, the notarial form with a few exceptions for emergency cases. Ac- cesstotheinheritancecanbeobtainedbymeansofasimplecertificateofa notary. There is much to be said for this approach. It avoids interference of a court, which, in practice, often causes considerable delays in the countries thatprescribesuchprocedures.ItisnotnecessarytorefertoDickens’Bleak House to be aware of the classical danger of a court charged with ex officio investigations by judges who are hardly equipped for such tasks.

Still,itshouldbekeptinmindthataregistration—asprescribedbythe conventionof1972—wouldbeausefulguaranteeagainstsurprisesthatseem difficult to avoid in a large country wrestling with transitional problems, such as Russia. However, it seems too ambitious a task to organize such a registration on the ground. As a result, the task of the Russian notaries in this area is a heavy one and, if I am well informed, there is a shortage of well-qualifiednotariesintheRussianFederation.ThatmeansthattheRus- sian system will depend heavily on the information given to the local notary by the next of kin or the close neighbors of the deceased. This explains the time limit for acceptance of the inheritance in relation to the time limit aftertheexpiryofwhichthenotarybecomesentitledtoissuethecertificate giving access to the inheritance. Both time limits (of six months) obviously are based on the consideration that six months are usually necessary (and sufficient) to obtain all the information that can be expected from the two sources mentioned above.

The Russian system, notwithstanding these drawbacks, is for the time being probably the best solution. It is true that fraud and error in relation to wills of rich testators are a popular, though somewhat old-fashioned, subject for romantic detective stories. But, in practice, the environment of the deceased person, still under the impression of her/his recent death, usually is not reluctant to give honestly all the information needed to find out who is entitled to the inheri­tance.And this is obviously facilitated by the

7The convention has had a moderate success, now being in force in Cyprus, Spain, Luxembourg, Turkey, Belgium, France, The Netherlands, Portugal, and Italy.

fact that a testator normally takes care to ensure that her/his will cannot be overlooked­ by informing her/his closest relatives where it is to be found.

3. An additional characteristic feature of the Russian law of inheritance is the circle of heirs in case of intestate succession and the system of obligatory shares (legitim). Interesting here is the rule determining the heirs of the first priority. The draft of 1997, similar to the 1964 Civil

Code (Art.532), unites here the children, the spouse, and the parents of the deceased. This corresponds to the reality of Russian family life where children, parents, and grandparents often live together. It is also interesting to note the extension of each group of heirs, including the group of the first priority, to persons unable to work who were dependent upon the deceased for not less than one year prior to her/his death. Under the 1964 Code, continuing Article 418 of the 1922 Code, this means that children, spouse, and parents eventually have to share the inheritance with other relatives, such as brothers and sisters who are disabled, or even with disabled persons who are not relatives at all. Here, the 1997 draft brings some modifications. Persons who may be legal heirs on the basis of their family relation to the deceased and who are disabled succeed on the same footing as under the 1964 Code. But disabled persons who are not relatives can only become legal heirs when they have jointly resided with the deceased at the moment of her (his) death for a period of not less than one year prior thereto. Moreover, according to the draft, the dependent persons of each kind cannot succeed to more than one-fourth of the inheritance.

An obligatory share is accorded to children who are minors or who are disabled, as well as to a disabled spouse or disabled parents. In the 1964 Code (Art.535), other persons dependent upon the deceased are added to this list, regardless of family ties, but the draft seems to abandon this rule. Under the 1964 Code, the obligatory share is two-thirds of the share that would have been due in case of intestacy. The 1997 draft establishes the obligatory share as being one-half of the share that would have been due in case of intestacy.

The whole system seems to be influenced by a concept of the fam- ily as a collective unit where living together and dependence might be as important as ties of blood. One might suspect here a relation with the existing situation in urban areas,8 as well as with local peasant customs as they existed in Tsarist times and inspired later by separate Soviet legislation

8See Art.292 of the RF Civil Code, which gives extensive rights to the members of the family of the owner of residenti­al premises to enjoy these premises. Those rights are not terminated by the passing of ownership to another person.

concerning succession in farming families.9 We see here, in fact, a typical social function of the Russian tradition, which has not lost its significance.

At least it can be said that the actual situation is certainly no incentive to neglect this function.

Anew development is the extension of the groups of intestate heirs that might be called to a succession on the base of family ties. The 1964 Code stops after brothers, sisters, and grandparents, forming the second priority. The draft gives brothers and sisters the second priority, grandparents the third priority, and adds aunts and uncles as a fourth priority. Moreover, it includes,infurtherpriorities,evenkintothefourth,fifth,andsixthdegree.

Though the systems of priorities in Western countries vary widely, it can be said that drawing the line after kin in the sixth degree is in accordance with many jurisdictions, including the Dutch one.10

4. Another topic that should be mentioned here is the goods that are deemed to be part of the inheritance. Generally speaking, the answer is: all the goods owned by the deceased person. In contrast to the 1964 Code,11 the 1997 draft expressly formulates this main rule. But it contains some interesting exceptions.

The first of these concerns rights that are deemed to be inseparably linked to the person of the deceased. These include, for instance, the right to alimony, the right to salary or pension and similar allowances, the right to compensation for damage caused to life or death, and personal non-property rights. There seems to be a certain degree of confusion here between two categories: rights that are so closely bound to the person of the deceased that, by their very nature, they must end at her (his) death, and on the other hand, rights that, although terminated as a result of her (his) death, accorded the deceased a money claim during her (his) life, which, at the moment of her/ hisdeath,wasnotyetpaid.Inthefirstcase,thereisnoreasonforaspecial rule: it is self-evident that no one can succeed as to rights that are terminated by the death of their owner. In the last case, there is no real objection to considering the already-born claim as a part of the inheritance; certainly there is no reason to free the debtor of her (his) obligation to pay what was already due. However, the draft comes here with another solution: in first instance, the claim is not part of the inheritance but should be paid to the members of the family who resided together with the deceased and to the

9Comp. Gsovski, op.cit. note 4, 623 and Chs.18 and 21.

10See Art.4:908 of the Dutch Civil Code and Art.4.2.6 of the draft of Book 4 of the new Dutch Civil Code.

11Between 1922 and 1926, the Civil Code of 1922 permitted inheritance by law or under a will only to a maximum value of the estate of 10,000 gold rubles after deduction of the debts of the deceased. This maximum was abandoned in 1926.

latter’sdisableddependants,regardlessofwhetherornotthesedependants resided together with the deceased. Only in default of such members of the family and such dependants, or if such persons fail to exercise their rights within four months after the opening of the successi­on, will the amounts due be included in the inheritance and only in that case will they be dealt with according­ to the rules of the law of inheritance­. It is clear that this rule meets the interests of the persons who probably most need the money. We see here once again the social function of the Russian system.

There is another curious exception concerning the rights to a bank deposit. According to Article 561 of the 1964 Code, it is possible to instruct the bank to pay the deposit in the event of death to some other person, in whichcasethedepositformsnopartofthedeceased’sestate.Theresultis that the rules of the law of inheritance do not apply. Under the 1991 Principles of Civil Legislation, this rule seemed to be abolished. But, as far as deposits in the savings bank of the Russian Federation are concerned, it was restored in a decree of the Russian Supreme Soviet of 3 March 1993.And it returns in the 1997 draft for all monetary funds deposited with banks or other lending institutions that are authorized to keep deposits. In this draft, this rule has been embedded in the law of inheritance in general. The deposit is deemed to remain a part of the inheritance and fundamentally the law of inheritance applies. The instruction to the bank indicating the person(s) entitled to the deposit in the event of death is considered to be a testamentary disposition, having the legal force of a notarially certified will.

The possibility of a separate disposition of a bank deposit in the case of death has been heavily criticized.12 But it seems to serve an important practical need. As I pointed out under II above, the main rule of the Russian system of access to the inheritance is that, after six months from the opening of the succession, a notarial certificate is issued, which is required for such access. Without a special rule, it would impossible to access the deposit pending this period, which might be very inconvenient because the heir(s) often will have to take all kinds of (more or less) costly measures immediately after the death of owner of the deposit. The special rule under consideration here makes it possible to break through this impasse, under the 1964 Code because the law of inheritance does not apply, under the

1997 draft because it says expressly that—prior to the presentation of the notarial certificate—the heirs, indicated in the disposition with the bank, are entitled to receive from the testator’s account a total amount not ex-

12Y.I. Luryi, “History of Soviet Inheritance Abroad”, in George Ginsburgs, Donald D. Barry,William B. Simons, (eds.), The Revival of Private Law in Central and Eastern Europe, Essays in Honor of F.J.M. Feldbrugge, in F.J.M. Feldbrugge, (ed.), Law in Eastern Europe, No.46, The Hague, London, Boston 1996, 193-221, esp. 214-218.