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The Law Of Succession. A Comparison between Russia and Germany

Seminararbeit 2008 18 Seiten

Jura - Andere Rechtssysteme, Rechtsvergleichung



I. Introduction

II. Historic Development
1) Germany
2) Russian Federation

III. Current legal situation
1) Constitutional basis
2) Sub-constitutional regulations and discussion of selected aspects

IV. Conclusion

V. Bibliography

I. Introduction

This assignment deals with the law of succession in Russian Federation and Germany. First of all, I would like to explain why I have chosen this topic. In my opinion, the law of succession does not seem very interesting to the majority of the law students – and wrongly so! It is one of the oldest areas of law which roots go back almost to the Stone Age. It is based on the fundamental human right of property since it obviously does not exist in societies where the individual right to own and to transfer the ownership is not recognized by law or custom. It reflects the prevalent legal und moral ideas of the given society at the given time and is at any one time closely connected with the ethic values, role of the religion and the gender situation. The fundamental changes of these ideas always cause amendments of the succession law. In addition, this topic never stops being actual because nowadays almost everyone is confronted with it sooner or later by inheriting and/or bequeathing.[1]

In case of Russia, we can additionally observe the particular situation of a state challenged to establish a new legal system after the collapse of the Soviet Union taking into account human rights in a relatively short period of time. The law of succession as part of legal order had also to be adapted to the new reality determined by the free market economy and developed rapidly.

Finally, I wanted to compare Russia with Germany because Germany is one of the leading European countries with a very elaborated codification and broad scope of the judicial review whose example among others is bound to influence the Russian legal experts searching for time-tested patterns and trying to combine foreign experience with the peculiarities of the own country in order to create modern legislation.

In the following, we will overview the historic development of the law of inheritance both in Germany and Russia. After this, we will analyze the current legal situation in both countries, attempting to establish its relationship with the respective constitutional law as well as trying to show the similarities and find possible explanations for the differences. The conclusion will then summarize the findings obtained.

II. Historic Development

1) Germany

The current legal concepts of the examined countries passed through retrospectively different stages. The German civil law including the law of succession derives mainly from the ancient Roman law with some elements of traditional Germanic law and – later – of General state laws for the Prussian states.[2] The main mission of this area of law, regardless codified or not, was to combine the right to bequeath with the – within certain limits legitimate – endeavour to protect the bereaved und to maintain the property in one hand, avoiding its deconcentration and decay.[3] It was not easy to find a proper balance. In the Middle Age, for instance, the individual rights and liberties were not very distinctive, hence the interests of the family and sovereign prevailed.[4] Generally, the devisor could not leave anything to any person not belonging to his family or – in wider sense – clan. In case of childlessness, the option of adoption of an adult was provided.[5] Very interesting is the fact that women could be adopted and then mentioned in the testament: it can be considered the first sign of woman’s transformation from the age-long passive role of object of man’s rights to the subject in the law of inheritance.[6]

At this time, also the Catholic Church played a very important role that should not be underestimated. Motivated by its own interests, it brought forward the old Roman idea of the freedom to make a will with any content that had been partially overshadowed by the efforts to concentrate the property within the family: according to the propaganda, bequeathing the Church in this world meant getting advantages in the afterlife.[7] If family members tried to contest such attributions, they were threatened with bane, excommunication and fine.[8] The intensively developing cities and single German states (let us keep in mind that the German national state was founded only in the 19th century) attempted to diminish this influence but, for instance, even in 1671 one-third of all immovable property in Bavaria was owned by the Catholic Church.[9]

With the formation of the “Deutsches Reich” in 1871, the need to create a common civil code replacing divergent rules of different states, cities and provinces became evidential.[10] The 1900 German Civil Code[11], a masterpiece of juridical abstraction, dedicated one of its four specific books following the abstract general part to the law of succession.[12] The norms were determined by the prevailing conservative ideas of a patriarchal society.[13] The freedom of will as an important component of the private autonomy was implemented only partially: e.g. a mistress could not receive any benefits even if she would have cohabitated for many years and be mentioned in the testament; the same was held good for the illegitimate children. Such testaments were considered “immoral” and “against public policy” and thus void by court.[14]

During the Third Reich 1933 – 1945, the BGB remained in force even if the scholars started working at the concept of the so-called “Volksgesetzbuch”/”National Civil Code” that should replace the BGB.[15] The abstract style of the BGB with its numerous blanket clauses[16] allowed interpreting any norms in the light of the nationalistic ideology, discriminating certain as “inferior” considered groups or races.[17]

After the Second World War, Germany was divided into two parts: the GDR (German Democratic Republic) and the FRG (Federal Republic of Germany). The former orientated itself on the Soviet Union in its legislation and jurisprudence making the creation of new civil legislation[18] inevitable, while the latter let the BGB in force. As far as the law of succession is concerned, the 1949 Constitution[19] influenced it considerably by upraising the right to property and the freedom of the will at the constitutional level.[20] After the German reunification the BGB, completed by some temporary arrangements, was introduced also to the five new federal states (Bundesländer).

During the following decades, rapid social changes and sexual revolution brought fresh wind into the rigid law of succession. The conservative regulations were abolished, altered or simply began to be interpreted in a different, more liberal way by the judiciary. Coming back to our example above, mistresses could claim their rights resulting from a valid testament and illegitimate children were regarded as being on par with the children born in wedlock, al least from the legal point of view. The main principles, however, were left untouched. As a conclusion, we can say that the law of succession in Germany developed continuously and culminated in the creating of the German Civil Code with just a few groundbreaking changes since it came into force.

2) Russian Federation

The Russian civil law and especially the area of the law of succession, in contrast, underwent turbulent changes during the several last centuries.

The epoch of feudalism changed the society of “Ancient Russia” (Древняя Русь/Drevnaja Rus´) where the law of succession was scarcely developed.[21] The broad right to hold land property with a freehold title gradually replaced the lease title granted by Tsar[22]. Ivan the Terrible[23] introduced the possibility to hand down the patrimony to the son unless he was not considered fit for military service.[24] This provision excluded therefore “inferior” classes from the right to bequeath because only privileged classes could be called up.[25] Unlike Russkaia Pravda, the 1497 Sudebnik (the Collection of Laws) allowed passing over the property to sons, daughters only if there were no sons and nearest relatives in case of childlessness also to the “inferior” classes.[26]

From the 17th century on, under Tsar Alexej Mikhailovich (Алексей Михайлович), also wives and children regardless whether minors or of full age, fit to military service or not, received the right to inherit the patrimony.[27] Significant is that according to the dogmas of the Russian Orthodox Church absorbed by law, the fourth matrimony was considered invalid so that children emanated from it could not inherit.[28] Only free men (no serfs) could bequeath. Women’s property was governed by their fathers, brothers and husbands.


[1] Translation from/to German and Russian as well as transliteration was made by the Author unless otherwise noted; the same refers to the bibliography.

[2] The original German term is Preussisches Allgemeines Landrecht.


[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Helmut Köhler, from the introduction to the Basic Collection of Private Law, p. XI.

[11] Bürgerliches Gesetzbuch (hereinafter BGB), in force since January 1, 1900, for location s. Bibliography.

[12] §§ 1922 ff. BGB.

[13] Helmut Köhler, op. cit. note 10, p. XIII.

[14] This legal consequence arises from the § 138 BGB in the general part. Due to the so-called “pandects” structure of the BGB the general, abstractly drafted rules apply for the specific books: Law of Obligation, Property Law, Family Law, Law of Succession, if not derogated by a lex specialis.

[15] Helmut Köhler, op. cit. note 10, p. XXII.

[16] E.g. § 138 BGB “morality” (gute Sitten); § 242 bona fide (Treu und Glauben).

[17] Helmut Köhler, op. cit. note 10, p. XXII.

[18] Familiengesetzbuch/Family Code from 1966, Arbeitsgesetzbuch/Employment Code from 1966, Zivilgesetzbuch/Civil Code from 1976 and Vertragsgesetz/Law of Contracts from 1982.

[19] Grundgesetz der Bundesrepublik Deutschland (hereinafter GG), in force since May 24, 1949, for location s. Bibliography.

[20] Art. 14 GG.

[21] W.W. Diakonov,

[22] Царь; the term will be used for the Supreme Ruler Ruler regardless whether officially crowned as a Tsar or Emperor.

[23] Иван Грозный (Ivan Groznyj), the first Russian Tsar.

[24] W.W. Diakonov, op.cit. note 22.

[25] Id.

[26] Id.

[27] Id.

[28] Id.


ISBN (eBook)
ISBN (Buch)
486 KB
Institution / Hochschule
Universitá degli Studi di Trento
Erbrecht Deutsches Recht Russland Russisches Recht Rechtsvergleichung Law of Succession Comparative Law Jura Recht



Titel: The Law Of Succession. A Comparison between Russia and Germany