Inheritance Law and Inheritance Rights: Corrective and Distributive Justice issues

Postgraduate Thesis uoadl:2864596 813 Read counter

Κατεύθυνση Φιλοσοφία Δικαίου
Library of the School of Law
Deposit date:
Vallianatos Panagiotis
Supervisors info:
Φίλιππος Βασιλόγιαννης, Αναπληρωτής Καθηγητής, Νομική Σχολή, Εθνικό και Καποδιστριακό Πανεπιστήμιο Αθηνών

Βασίλειος Βουτσάκης, Αναπληρωτής Καθηγητής, Νομική Σχολή, Εθνικό και Καποδιστριακό Πανεπιστήμιο Αθηνών

Νικόλαος Παπασπύρου, Επίκουρος Καθηγητής, Νομική Σχολή, Εθνικό και Καποδιστριακό Πανεπιστήμιο Αθηνών
Original Title:
Κληρονομικό Δίκαιο και Κληρονομικό Δικαίωμα: Ζητήματα Διανεμητικής και Μη Διανεμητικής Δικαιοσύνης
Translated title:
Inheritance Law and Inheritance Rights: Corrective and Distributive Justice issues
In this paper I attempted to approach the inheritance right. By the term inheritance I refer both to the right of the possessor to designate heirs in the property he had at the time of his death and to the right of the heirs - especially the relatives - to succeed the deceased in his property. By this I do not mean anything other than the issues of non-distributive and distributive justice arising from the recognition of such a right.

I started with the approach and the critical assessment of the principles of inheritance as they can be found in the Greek Civil Code and in the relevant literature. I proceeded to examine the basic assumption on which the right of inheritance is based on the part of the possessor, namely that his right to determine the fortune of his property as a person - alive - after his death necessarily implies the right to private property , which I have argued that there are reasons why it is not considered correct and true. At this point, I attempted to demonstrate that by adopting even the most libertarian assumptions supporting the property, disrespect for the will of the deceased can not be regarded as violating the right to property, because that can not be established by based on the assumptions of these theories. Regarding the rights of the deceased's innocent relatives - willing to succeed in his property, I believe that the foundation of family protection at least in Greek law and literature is devoid of argumentative and normative density. With regard to the surviving spouse, the law itself as it is today has given an extremely successful solution, which draws on principles of non-distributive justice: The surviving spouse is initially called as a lender of inheritance with the right to participate in the acquisitions. This claim, together with a wider claim for maintenance, which can be considered to be well founded in the context of family law relations, seems to me to be the best foundation for both the surviving spouse and the children of the deceased of their right to property.

The correct approach from the point of view of the principles of non-distributive justice regarding the right of relatives to school property is that of treating them as lenders and even privileged compared to other potential lenders. The law by indivisible succession - which is based on the supposed intention of the possessor - but even more clearly the forced succession - which is in direct contrast to the expressed will of the possessor - I think serious issues of inconsistency with the assumed self-evident recognizing the right of the deceased to define the fate of his property as a fundamental reason for recognizing the right of inheritance. The already existing legislation violates its own fundamental premise, the right of the deceased to his property. And justifying this by recognizing as conflicting sizes of the right to property of the possessor and the protection of the family (I presume the constitutional purpose of the state) is extremely weak, as it limits, in addition, a right for the sake of a state's most moral objective. At this point, I reiterate my position on the recognition of the relatives as creditors of the deceased - the children as entitled to maintenance and the surviving spouse as entitled to the return of the increase of the deceased's property through the claim of participation in the acquisitions - in order to establish in accordance with the principles of non-distributive justice, the right of family members to enjoy part of the deceased's property, which belong to them not for the sake of inheritance I and - that is not because the testator wanted and already dead and could pass them. But surely neither because the state protects the family.

Next, and in particular the approach of the right of succession in terms of distributive justice, we started by examining the possibility and the justification for imposing a inheritance tax. I examined two distributive justice theories, that of Rawls and that of Nozick, and I presented this justifiable as much as possible to taxing as some forced labor, as impressed by Robert Nozick. The imposition of the inheritance tax, as it does not violate the right of the possessor - since he is now a non-person as dead - in his property is justified. The tax is imposed on the heir, who becomes more wealthy by accepting the inheritance than a transfer to that wealth for which he has not worked and therefore I think it is justified, even a tax in the full value of the inherited property. Moreover, for practical reasons, it is worth mentioning whether or not a donation tax is justified. An argument arises of the usefulness of imposing a high inheritance tax as there is always a living donation path through which the future heir can receive earlier property free from the obligation to pay him assume a particularly high tax inheritance. At this point I acknowledge that the reasons justifying and establishing a inheritance tax can not be met for the imposition of a donation tax. The right to property can not be considered to be restricted by the choice of authority over its subject matter, so a donation tax imposed on the transferor of the property is indeed unjustified. Nevertheless, I argue in favor of the justified charging of a donation tax to the acquirer, which becomes richer. In any case, however, I believe that even with the practical difficulties of relevance, the high inheritance tax is also practical - because it is not necessary that the estate is transferred in full through living donations - but also ethically imposed for reasons of distributive justice.
Main subject category:
Law and Legislation
Other subject categories:
Philosophy of Law
Hereditary Law, Inheritance, Law Philosophy, Distribution Justice, Corrective Justice, Property, Political Philosophy, Taxation
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Παναγιώτης Βαλλιανάτος_Κληρονομικό Δίκαιο και Κληρονομικό Δικαίωμα_ΠΜΣ ΦΙλοσοφίας_2018.pdf (576 KB) Open in new window