Recognition as missing and a declaration of death is issued by the court on the basis of confirmed facts and the procedure. The process of the Civil Code of the Russian Federation is regulated by Article 42. The provisions have been developed in the Civil Procedure Code of the Russian Federation, where Chapter 30 and Articles 276-280 disclose the procedure for filing an application by interested parties and in the necessary period for initiating proceedings.
Usually, after 3 days of lack of information about a person and his place of residence, the police begin to search. If during the year the searches did not lead to a result, close people in a judicial proceeding initiate the recognition of being missing and the declaration of death.
What is the purpose of paperwork?
When a person disappears in an unknown direction, first of all, it is grief for his family and friends. Statistics show disappointing data: the growth of loss for reasons not fully understood.
It is difficult not to notice the absence of a person, especially if he is socially active or has relatives. If this happens, friends and relatives, as a rule, start phoning hospitals and morgues, and if this does not work, they file a police report with the missing person. This step is taken not only to ensure that their loved one is put on the wanted list, but also because official recognition of the missing persons and the announcement of the dead are necessary in order to:
- eliminate legal uncertainty due to the prolonged absence of a specific person;
- prevent adverse effects on material assets, property of a citizen.
One of the most difficult cases is the absence of people due to uncertain circumstances. The court accepts recognition as missing and declares a person dead in such a situation only after lengthy police investigations into the absence / presence of a crime in his disappearance. To obtain confirmation at the legislative level, relatives must submit an application that is not considered a lawsuit. Initiated cases in these cases pass into the category of special production.
Who is turning?
The legislative acts mention that applications for recognition of a person as missing, declaration of death, are submitted by citizens who are interested in the process. Who belongs to them, in the provisions there are no clear instructions. The circle of citizens with whom the missing person was connected in one way or another can be quite diverse, where relatives and completely strangers are present:
- prosecutors;
- representatives of power structures;
- legal entities and individuals;
- family members;
- dependents.
After official recognition, the children of the disappeared citizen will be assigned pensions.
How to determine the time parameters?
The terms for recognizing a citizen as missing and declaring him dead have a great influence. It is not always possible to remember when a person was last seen or heard. This fact can be confirmed by any witness. If there is no such indication, the beginning of the month from the first day for the latest news may become a starting point.
It happens that nothing is known, then the first day of the new year after the disappearance will become the basis for calculating the time of the unknown location of a citizen. Only the court can recognize or establish the fact of the legal status of a particular person. The investigation is conducted according to answers to inquiries in the following places:
- last employment;
- birth;
- temporary and permanent residence.
The investigator interviews:
- relatives;
- friends and acquaintances;
- persons from the circle of friends.
Time limits and impact of elements
No lawsuit is filed to recognize a citizen as missing and declare him dead, although the procedure is declarative in nature.
They give official status to people who are missing for unknown reasons and being found after a year. Declare dead if they have not shown themselves anywhere, after 5 years. The timing is affected by the circumstances in which people disappeared. If life-threatening conditions have been created, a case that involves only death, the declaration of death occurs after six months of the disappearance of a person.
The special relation to the disappeared military personnel, participants of fights. If the search does not lead to anything after the completion of the military operation, after 2 years the soldier is declared dead.
What is the attitude of missing people internationally?
Although the notion of recognition as missing and deceased in MPE (international private law) and other legal sources are close by, these are 2 separate legal facts. An institution with similar functions does not exist in all states. Some countries have created their own laws, where there must be concrete evidence, so that the court expresses its attitude to the case, for example:
- Germany.
- Austria.
- Italy.
In some states, developed standards exist:
- RF
- Hungary.
- Poland.
There are no announcements in France, but legal proceedings in specific cases determine whether there are no persons if the question arises. England and America generally dispense with such scrupulous institutions that are created according to the principles of European rights. The jurists of these states have transferred the problems associated with the unknown location of people in the procedural field.
What are the consequences of official recognition?
The legal fact in the form of recognizing as missing and declaring dead, the Civil Code does not contradict, but in each case an individual approach is used. If the court decided that the citizen is still only absent and is in an unknown place, then:
- All material assets pass under the control of a trusted representative. The procedure takes place after a court decision, on this basis property is transferred, and the guardianship and trusteeship proceed to the appointment of a manager, the conclusion of an agreement. If there are dependents, money is allocated from the missing person to support them. This source can serve to repay debts on various obligations. Social protection authorities can independently appoint a person to manage property, but his powers are extended only to protection.
- Disabled citizens are assigned pensions.
- The powers of attorney issued related to the name of the disappeared person cease.
- The spouse (a) begins the divorce procedure in the registry office.
Upon detection of a person in a certain territory or upon his independent return, the court ruling (according to Article 44 of the Civil Code of the Russian Federation) on recognizing a citizen as missing and declaring him dead is terminated.
Under what conditions is a death recognized?
When a person is absent for a long time and no one knows where he may be, an allegation is not enough to recognize him dead or missing. The court establishes an official procedure for recognition, makes a decision, and then draws up documents, they give the right to grant pensions to children who have lost breadwinners.
If there is a death warrant, an interim procedure for the missing person is not required. After the decision comes into force, from that time the date is considered the fact of the death of a citizen.
When people are in extraordinary circumstances: on ships in a shipwreck or on airplanes that have crashed, death is declared after six months of searches. This example does not apply to a legally established fact of absence, but to a presumption in the event of an accident. A trial and an official certificate are required, in which the date of death may coincide with the death of the liner.
What awaits living citizens from recognizing them dead?
Judicial decisions declaring deaths do not affect the legal capacity of citizens in respect of whom an error has occurred. Legally, all transactions made during this period are considered valid. Subjective property rights to be restored. You may need to return property that was illegally seized or transferred under inheritance rights.
A citizen after the appearance cannot demand the return of money and securities. Sold property is seized from new owners after a court order on unfair acquisition. It is necessary to prove that the buyers knew about the state of the owner in good health, deliberately made a deal with the property of the allegedly deceased person. Heirs or acquirers who did not know that they were involved in illegal transactions do not compensate for the damage, the property also remains with the buyer.
Total
For a long and difficult time, the court resolves the issue of this or that recognition. During the proceedings, it remains to be seen whether the person is hiding from responsibility for committing a crime, fraudulent atrocities. It is no secret that there are many โspotsโ in the legislation that have yet to be corrected. For now, we need to hope for the professionalism of the interrogators and the competence of the judges that themis will lose sight of the blindfold during the decision.