On 12 December 2020, the Draft Law “On making addenda to the RA Civil Code” was placed for public discussion.
HCA Vanadzor office presented their position by recommending to remove the draft from circulation based on the justification presented below.
The draft envisages regulations restricting the exercise of heirs’ rights. In particular, it was envisaged that the succession of persons who died as a result of COVID-19 or military actions can be accepted within 7 working days since the date of the opening of the succession. It is obvious that the term envisaged by the Draft hinders the subjects to implement their rights by disproportionately reducing the reasonable time period during which it is realistic to put into effect the civil legal relations under discussion.
The draft also does not present proper and substantiated justification why double standards are used with regards to heirs just based on the conditions in which the person leaving inheritance died. Therefore, the adoption of the draft will create certain unequal conditions between heirs of the persons leaving succession who died as a result of various conditions.
When determining the term of accepting the succession, the legislator should ensure reasonable balance between a private interest (when the heir should be given a reasonable time period to decide on the purposefulness of accepting the succession) and public interest (when the stability of civil legal circulation may be compromised due to the long absence of the owner of the property). Moreover, in such a case, based on the principle of proportionality, the legislator should strike a balance between the rights of different participants of the legal relations. Setting stricter preconditions for the acceptance of the succession should not take place disproportionately by creating obstacles for persons to enjoy their rights.
The seven-day term proposed by the draft does not ensure the above-mentioned reasonable balance. It is obvious that the private interest, i.e. the heir’s possibility to decide on the purposefulness of accepting the succession, is disproportionately restricted in favor of “unhindered activity of the legal entity”. Moreover, not only did the draft not take into account the principle of ensuring a reasonable balance, but also the psychological state of the participants to the legal relations in terms of entering civil legal relations by manifesting a conscious and volitional behaviour.
Besides, the Draft does not envisage a different term for the creditors of the person leaving inheritance who died as a result of COVID-19 or war actions. This means that in this case, the general term envisaged by Article 1243 part 1 of the Code shall be applied, “Creditors shall have the right to file their claims within six months from the day of opening of the succession”.
It turns out that the heir is “forced” to accept the succession without clarifying the purposefulness of the acceptance, as the composition of the succession includes both the assets (i.e., the property, monetary means) and the duties of the testator.
The position was presented on the e-draft.am platform.
HCA Vanadzor position on the Draft Law is available to read HERE.