ОСОБЛИВОСТІ УКЛАДЕННЯ СПАДКОВОГО ДОГОВОРУ ЗА ЗАКОНОДАВСТВОМ УКРАЇНИ ТА ЗАКОНОДАВСТВОМ КРАЇН ЄВРОПЕЙСЬКОГО СОЮЗУ

Abstract

The article deals with the legal nature of an inheritance contract, specifies the essential terms of an agreement as well as the legal status of the parties under the legislation of Ukraine and the European Union. The significance of the inheritance contract in the system of contracts of civil law of Ukraine is analyzed. It is proved that the legal relations arising in the case of entering into an inheritance agreement are also regulated by the general provisions of the Civil Code of Ukraine on transactions. Chapter 90 of the Civil Code of Ukraine stipulates that the inheritance contract should contain a binding legal model and a succession model. Having examined the legislation of Ukraine, it is concluded that the inheritance contract should be considered as a part of contract law. This contract regulates the transfer of property. Despite the fact that the inheritance agreement is included in the sixth book of the Civil Code of Ukraine, and despite the name of the agreement, the legal relationship of inheritance in this case does not arise. The similarity of the inheritance agreement with succession reveals in the commonality of the main legal basis for the right to inherit from the heirs and the acquirer’s right to ownership that occurs in the case the death of a natural person – the alienator. It is found out that according to the provisions of the Civil Code of Ukraine, the essence of the inheritance contract is that such an agreement defines the disposal of the alienator’s property during his lifetime, but with the acquirer’s acquisition of the right to property after the alienator’s death. The feature of an inheritance contract is that the property that is the subject matter of the inheritance agreement is not applicable to the norm ensuring the right to a mandatory share in the heritage. The comparative analysis of the institute of the inheritance agreement by the legislations of Ukraine and Germany is carried out. To be specific, the legal essence of the inheritance agreement is determined, the problems of concluding and terminating the inheritance contract are investigated, as well as the gaps concerning this legal structure in the domestic judicial system are discovered. It is also defined that the inheritance agreement was approved and received its further development in German law. According to the doctrine of German law, the legal nature of this type of agreement is that, on the one hand, it is an order in case of death, and, accordingly, is one of the grounds of inheritance, and, on the other hand, it is a contract, i.e. agreement of the parties on the heritage right in favour of a certain person, preventing it from unilateral change or cancellation. The inheritance contract in German law has the following features, including: 1) it is an order in case of death; 2) it is a bilateral transaction, i.e. agreement; 3) the subject matter of the contract is the right of inheritance; 4) the inheritance contract is one of the grounds for inheritance.