Naslednopravna singularna sukcesija na osnovu zakona
Committee membersVidić-Trninić, Jelena
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The subject of this doctoral dissertation research is inheritance-law singular succession in intestacy. Generally, it is about the acquisition of rights from the estate, as a rule, without any liabilities as per the testator's obligations. Studying such various forms of singular intestate succession in the event of death in some European legal systems, the author comes to conclusion that, singular succession mortis causa by operation of law, can also be named an intervention succession. This, because through it, law drafters in contemporary inheritance-law systems intervene and provide for, in the event of death, such category of subjects, which is particularly sensitive and close to an intestate person. The research goal is to point out to the Serbian law drafter that within the inheritance-law regulations of the Republic of Serbia, there is room both for amending some legal provisions and for completely new solutions, which will serve ensuring continuity of family-law protection and ...will be firmly founded within the constitution-law framework of the Republic of Serbia and the ratified international documents as well. This doctoral dissertation is composed of the introductory part, four chapters and conclusion. In the first chapter of the doctoral dissertation, the author deals with defining inheritance-law singular intestate succession and suggests that it can be defined from objective, subjective and functional aspects. Additionally, the author distinguishes and analysis the most significant characteristics of singular succession in intestacy in the event of death. Also, the author comes to conclusion that inheritance-law singular intestate succession is compatible with inheritance-law universal succession. Although the basic function of inheritance-law singular intestate succession is reflected in existential care, maintenance or adjusting to new living circumstances of persons close to the intestate person, indirectly it has the function of preserving security in legal transactions. Within the framework of the first chapter of the dissertation, the author studies the similarities and differences between inheritance-law singular intestate succession and singular succession that is directly based in the last will of a testator, and comes to conclusion that the concerned acquisitions are similar in their characteristics, but not identical. Dealing with the issue of realising special rights from the probate estate stipulated by some contemporary law drafters, the author concludes that regarding their opposed relationships, the rights having direct foundation in the law are prioritised by law drafters. The author comes to conclusion that such condition is a consequence of the function belonging to the special rights arising from the estate, which are stipulated by law drafters. The second part of this doctoral dissertation is dedicated to the evolution of inheritance-law singular intestate succession. Within the framework of this chapter, the author first analyses individual provisions of preserved legal texts originating in the ancient age and concludes that even within the framework of this phase of development of human civilisation we can speak about inheritance-law singular intestate succession. Also, the author concludes that, even in this period, the forms of intestate singular succession in the event of death, represent one-of-a-kind correctives of social and legislative policy of the inferiority of women and female descendants. Within the framework of this chapter, the author also speaks about inheritance-law singular succession based on law and other legal documents originating in the middle ages. Also, the subject of research were also some individual provisions contained in bourgeois codifications and in inheritance-law regulations in the regions of the after-war Yugoslavia. Within the framework of this part of the paper, the author comes to conclusion that during a transition from feudal to capitalistic way of life and business, inheritance-law singular intestate succession also changes its function. Thus, while it had the function of preventing the division of feudal estates in the period of middle ages, singular intestate succession in the event of death, in bourgeois society, had the function of family solidarity, as a newly proclaimed social value. Within the third chapter of this doctoral dissertation, the author analyses the forms of inheritance-law singular intestate succession in individual contemporary European legal systems using legally-dogmatic and comparative law methods. The author concludes that, if it is necessary to make the inheritance-law position of a person more favourable or to adapt inheritance-law regulations in a social reality, contemporary law drafters more frequently resort to inheritance-law singular intestate succession, than to intervene and enter amendments within the framework of regular legal succession. Also, although each of the studied legal systems has its own unique solutions, what they all have in common is the function of existential care, maintenance and adaptation to the changed circumstances to the intestate person’s close persons. Therefore, one of the specificities of inheritance-law singular intestate succession is that in contemporary inheritance-law systems, it has a function of providing continuity of family-law protection. Continuity of family-law protection, however, can also be successfully provided through inheritance-law universal succession, which is also pointed out in this paper by the author. The fourth chapter of this doctoral dissertation is dedicated to inheritance-law singular intestate succession in contemporary Serbian law. The Constitution and the Family Law of the Republic of Serbia standardise special protection of family, mother, single parent, and child. In this part, the authors comes to conclusion that the Law on Inheritance of the Republic of Serbia does not provide any continuity of such protection in the event that the succession is opened to any of the subjects of family-law relationship, while the other subjects from that relationship do not belong to the circle of intestate heirs, who are, in such concrete case invited to succession (e.g. step-child, extramarital partner expecting a child from the deceased, until the baby has been born, divorced spouse, any other person supported by the deceased during his/her lifetime). Also, the author concludes that the Commission for Drafting the Civil Code of the Republic of Serbia has not offered any new solutions that will be an act of harmonisation of inheritance-law regulations with the changed social circumstances and which will be in the function of providing a continuity of family-law protection, for instance, of the extramarital partner of the deceased, mother of the heir-to-be, divorced spouse, step-child, or any other person supported by the deceased during his/her lifetime. Considering the historical and comparative-law experiences, the author advocates that a set of legal provisions finds its place in the future civil codification of the Republic of Serbia, which will serve to provide for the continuity of family-law protection. Also, the author sees the offered solutions as an act of harmonisation of the inheritance-law regulations with the constitutional-law regulations of the Republic of Serbia and the ratified international documents as well.