К ПРОБЛЕМЕ ОСПАРИВАЕМОСТИ СДЕЛОК ОТКАЗА ОТ НАСЛЕДСТВА В ПРОЦЕДУРАХ НЕСОСТОЯТЕЛЬНОСТИ В РОССИИ И ГЕРМАНИИ

Abstract

The possibility of inheritance refusal deals of an insolvent debtor was a subject of discus-sion even in Roman law, in which there were ideas about the impossibility of challenging such a transaction using Actio Pauliana. The problem of the contestability of inheritance refusal deals is investigated using the method of comparative studies with the aim of a deeper scientific and theoretical knowledge of the legal nature of rejection of inheritance in the legal system of Germany, which had a significant impact on Russian law. Main approaches of German legislators to the regulation of refusal of inheritance by the debtor, over whose property an insolvency procedure has been introduced, are indicated, ac-cording to which § 83 Insolvenzordnung specifies that such a transaction was made exclusively by the debtor himself. The author analyzes the German jurisprudence on the disputability of inheritance refusal deals by the insolvent debtor, reveals the legal positions of the Supreme Court of Germany that there are no grounds for challenging such a transaction as aimed at the withdrawal of the assets of the insolvent debtor. Arguments are also presented in favor of the impossibility of challenging the inheritance refusal deals in the doctrine of Germany. The analysis of the Russian inheritance legislation on the rejection of inheritance is carried out. The author defines the nature of the right to acquire an inheritance as a personal right of the heir when deciding to renounce the inheritance both before and after the introduction of the insolvency procedure. In accordance with this definition of the essence of the right to acquire an inheritance, it was concluded that there is no need to receive an approval on the decision of the debtor to accept or refuse the inheritance with the arbitration manager if the debtor enters into inheritance refusal deals during the course of insolvency procedures. The article analyzes the judicial practice that is developing in the Russian legal system re-garding challenging inheritance refusal deals. In jurisprudence, a tendency has been revealed to challenge inheritance refusal deals as suspicious transactions causing property damage to the creditors of the insolvent debtor. It is pointed out that in the modern Russian doctrine, the features of inheritance refusal deals have not been studied. An aspect of current legal system is the concept of “rejection of the inheritance”, which is qualified as the inaction of the debtor, through which he expresses his will to refuse the inheritance. The heir's inaction cannot be challenged on general civil grounds due to his lack of signs of a transaction in the sense in which it is used in the Civil Code of the Russian Federation.The author proves that the rejection of the inheritance does not cause property damage to the creditors, since in this case there is no reduction in the property of the insolvent debtor, and the withdrawal of the debtor's assets is not carried out. The conclusion is made about the possibility of challenging the transaction of rejection of the inheritance on general civil grounds if defects are found in the transaction and there are no conditions for the application of Actio Pauliana.