Title
Povreda i zaštita prava na nužni deo
Creator
Krstić, Novak M. 1980-
Copyright date
2015
Object Links
Select license
Autorstvo-Nekomercijalno-Bez prerade 3.0 Srbija (CC BY-NC-ND 3.0)
License description
Dozvoljavate samo preuzimanje i distribuciju dela, ako/dok se pravilno naznačava ime autora, bez ikakvih promena dela i bez prava komercijalnog korišćenja dela. Ova licenca je najstroža CC licenca. Osnovni opis Licence: http://creativecommons.org/licenses/by-nc-nd/3.0/rs/deed.sr_LATN. Sadržaj ugovora u celini: http://creativecommons.org/licenses/by-nc-nd/3.0/rs/legalcode.sr-Latn
Language
Serbian
Cobiss-ID
Theses Type
Doktorska disertacija
description
Datum odbrane: 19.02.2016.
Other responsibilities
mentor
Stojanović, Nataša D. 1968-
član komisije
Petrušić, Nevena N. 1958-
član komisije
Živojinović, Dragica.
član komisije
Janićijević, Dejan T. 1972-
član komisije
Vidić Trninić, Jelena
Academic Expertise
Društveno-humanističke nauke
University
Univerzitet u Nišu
Faculty
Pravni fakultet
Group
Katedra za građansko-pravne nauke
Alternative title
Violation and legal protection of the right to compulsory portion
Publisher
[N. Krstić]
Format
VI, 392 lista
description
Napomene i bibliografske reference uz tekst
description
Civil Law: persons, family, marriage agreements, inheritance,
donations, property, obligations, guaranties
Abstract (en)
In the countries of the European-continental legal system, the legal institute of
compulsory portion is substantively the most effective and direct limitation of the testator’s
freedom of testamentary disposition and, in a broader context, the decedent’s freedom of
gratuitous distribution of property rights. This complex legal institute clearly reflects the familyoriented
dimension of succession. The imperative nature of legal rules regulating the area of
compulsory succession ensures the protection of property rights and interests of the decedent’s
close family members from excessive gratuitous dispositions mortis causa and/or inter vivos, by
which they have been unjustly evaded from succession. Compulsory heirs are guaranteed the
right to request their compulsory portion of the succession estate, a predetermined reserved
amount explicitly prescribed by the law, irrespective of the decedent’s express will on the
distribution of the succession assets.
The major issue in compulsory succession is the violation of the right to a compulsory
portion and the mechanisms for the protection of this right. The norms regulating this issue are
aimed at establishing whether the right to a compulsory portion has been infringed or not, to
whom and in what amount, and ensuring its protection in court proceedings. In order to discuss
these issues comprehensively, it is essential to examine the basic issues pertaining to the institute
of compulsory portion, in an attempt to come to a definition which will include the constituent
elements of this concept. Then, we explore the historical development of this institute and
provide arguments justifying its presence in the contemporary legislation. Further on, we observe
the overall genesis and developments of this institute over centuries, by reviewing the legislative
frameworks of a number of foreign legislations and the Serbian law. In particular, we analyze the
current trends in the regulation of forced succession in the contemporary comparative law
expressing ideas about the directions for further changes in regulations de lege ferenda in this
area of succession relations.
Yet, a further analysis of issues concerning the violation of the right to a compulsory
portion largely rests on drawing a clear distinction between the concepts of a violation of and a
threat to the right to a compulsory portion. It is important because the legal options for the
protection of the right to a compulsory portion are significantly different depending on whether
there is just a threat of the violation of this right or there is a definite violation of the right to a
compulsory portion due to the testator’s excessive gratuitous disposition. In this regard, we paid
special attention to the method of calculating the size and value of compulsory portion, to the
possibilities of its settlement, calculation of assessed value of the succession estate. Emphasis is
placed on the importance of gifts that are calculated in the assessed value of the succession
estate, in order to explore whether the norms regulating the method of the compulsory portion
settlement, as well as the order among debtors obligated to settle compulsory portion.
The dissertation also focuses on examining specific legal instruments for the protection of
the threatened and violated right to a compulsory portion, respectively. Depending on the
circumstances of each case, there is a wide range of procedural instruments at the disposal of a
compulsory heir that may be used for the protection of one’s rights and interests in cases where
the compulsory portion is not definitely violated by the testator’s disposition. These instruments
include: filing a claim to establish that a will, a donation contract or a lifetime maintenance
contract are legally void; filing an objection against an unjustified exclusion from succession
(exheredatio nota causa), or an objection against being deprived of the right to a compulsory
portion (exheredatio bona mente); filing motions to modify a testamentary disposition or motions
to include gifts and legacies into the statutory or compulsory portion, etc.). The use of these
instruments is opportune because the compulsory heir is given the opportunity not only to
exercise the right to a compulsory portion in an efficient and cost-effective manner but also to
obtain the full statutory amount of the entire statutory portion and thus fully protect his
succession rights and interests.
When the right to a compulsory portion is violated by decedent’s excessive and valid
gratuitous dispositions, a compulsory hair is legally entitled to pursue the protection of this right
in front of the court of law, and within the explicitly prescribed time limits. The compulsory heir
is entitled to demand compulsory portion, but when he does that, the order of the steps and of the
debtors from whom he should ask the settlement of compulsory share is pre-determened by the
law, except the testator didn’t privilege one or more testamentary acquirers to the extent
authorized by the law. The legal ways of protection of the compulsory share in probate
proceedings, as wel as in civil proceedings were subject of a separate analysis, although
empirical research that we conducted showed that the protection of the right to the compulsory
share in the domestic jurisprudence has been realizing only in civil proceedings.
On the basis of the analysis of the protection of violated compulsory share in comparative
law, as well as of the legal solutions and legal attitudes in our jurisprudence and judicature, the
author tried to answer numerous moot, still open questions about the protection of violated
compulsory portion and offer solutions in order to provide more efficient and economical
protection of interests of the compulsory heirs, but also to protect legal position of the
compulsory portion debtors, when that is justified.
Authors Key words
nužno nasleđivanje, nužni naslednici, povreda i zaštita prava
na nužni deo
Authors Key words
compulsory succession, compulsory heirs, violation and legal protection of
the right to compulsory portion
Classification
347.65/.68(043.3)
Subject
(C 130)
Type
Tekst
Abstract (en)
In the countries of the European-continental legal system, the legal institute of
compulsory portion is substantively the most effective and direct limitation of the testator’s
freedom of testamentary disposition and, in a broader context, the decedent’s freedom of
gratuitous distribution of property rights. This complex legal institute clearly reflects the familyoriented
dimension of succession. The imperative nature of legal rules regulating the area of
compulsory succession ensures the protection of property rights and interests of the decedent’s
close family members from excessive gratuitous dispositions mortis causa and/or inter vivos, by
which they have been unjustly evaded from succession. Compulsory heirs are guaranteed the
right to request their compulsory portion of the succession estate, a predetermined reserved
amount explicitly prescribed by the law, irrespective of the decedent’s express will on the
distribution of the succession assets.
The major issue in compulsory succession is the violation of the right to a compulsory
portion and the mechanisms for the protection of this right. The norms regulating this issue are
aimed at establishing whether the right to a compulsory portion has been infringed or not, to
whom and in what amount, and ensuring its protection in court proceedings. In order to discuss
these issues comprehensively, it is essential to examine the basic issues pertaining to the institute
of compulsory portion, in an attempt to come to a definition which will include the constituent
elements of this concept. Then, we explore the historical development of this institute and
provide arguments justifying its presence in the contemporary legislation. Further on, we observe
the overall genesis and developments of this institute over centuries, by reviewing the legislative
frameworks of a number of foreign legislations and the Serbian law. In particular, we analyze the
current trends in the regulation of forced succession in the contemporary comparative law
expressing ideas about the directions for further changes in regulations de lege ferenda in this
area of succession relations.
Yet, a further analysis of issues concerning the violation of the right to a compulsory
portion largely rests on drawing a clear distinction between the concepts of a violation of and a
threat to the right to a compulsory portion. It is important because the legal options for the
protection of the right to a compulsory portion are significantly different depending on whether
there is just a threat of the violation of this right or there is a definite violation of the right to a
compulsory portion due to the testator’s excessive gratuitous disposition. In this regard, we paid
special attention to the method of calculating the size and value of compulsory portion, to the
possibilities of its settlement, calculation of assessed value of the succession estate. Emphasis is
placed on the importance of gifts that are calculated in the assessed value of the succession
estate, in order to explore whether the norms regulating the method of the compulsory portion
settlement, as well as the order among debtors obligated to settle compulsory portion.
The dissertation also focuses on examining specific legal instruments for the protection of
the threatened and violated right to a compulsory portion, respectively. Depending on the
circumstances of each case, there is a wide range of procedural instruments at the disposal of a
compulsory heir that may be used for the protection of one’s rights and interests in cases where
the compulsory portion is not definitely violated by the testator’s disposition. These instruments
include: filing a claim to establish that a will, a donation contract or a lifetime maintenance
contract are legally void; filing an objection against an unjustified exclusion from succession
(exheredatio nota causa), or an objection against being deprived of the right to a compulsory
portion (exheredatio bona mente); filing motions to modify a testamentary disposition or motions
to include gifts and legacies into the statutory or compulsory portion, etc.). The use of these
instruments is opportune because the compulsory heir is given the opportunity not only to
exercise the right to a compulsory portion in an efficient and cost-effective manner but also to
obtain the full statutory amount of the entire statutory portion and thus fully protect his
succession rights and interests.
When the right to a compulsory portion is violated by decedent’s excessive and valid
gratuitous dispositions, a compulsory hair is legally entitled to pursue the protection of this right
in front of the court of law, and within the explicitly prescribed time limits. The compulsory heir
is entitled to demand compulsory portion, but when he does that, the order of the steps and of the
debtors from whom he should ask the settlement of compulsory share is pre-determened by the
law, except the testator didn’t privilege one or more testamentary acquirers to the extent
authorized by the law. The legal ways of protection of the compulsory share in probate
proceedings, as wel as in civil proceedings were subject of a separate analysis, although
empirical research that we conducted showed that the protection of the right to the compulsory
share in the domestic jurisprudence has been realizing only in civil proceedings.
On the basis of the analysis of the protection of violated compulsory share in comparative
law, as well as of the legal solutions and legal attitudes in our jurisprudence and judicature, the
author tried to answer numerous moot, still open questions about the protection of violated
compulsory portion and offer solutions in order to provide more efficient and economical
protection of interests of the compulsory heirs, but also to protect legal position of the
compulsory portion debtors, when that is justified.
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