Cases about recognizing a citizen as missing or declaring a citizen dead
The current legislation recognizes the citizen as missing and the announcement of the citizen is attributed to the deceased with different time intervals.
In accordance with Art. 42, 45 of the Civil Code, a citizen can be recognized by the court as a missing person, if during the year at the place of his residence there is no information about the place of his stay. If it is not possible to determine the day when the latest information is received about the missing beginning of the calculation of the time limit for recognizing an unknown absence, the first day of the month following the one in which the last information was received about the missing is considered, and if this month is impossible to be established, on January 1 of the next year.
If the place of residence of a citizen is not known about the place of his stay for five years, then he can be declared a court of death. If a citizen is missing in circumstances threatening to die (for example, during an earthquake) or giving grounds for assuming his death from a certain accident (for example, a plane crash, a shipwreck, an earthquake, etc.), he may be declared dead if his place of residence has no information about the place of his stay for six months.
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A serviceman or other citizen missing in connection with military actions may be declared dead by the court not earlier than two years after the end of hostilities.
The day of the death of a citizen declared dead is considered to be the day when a court decision comes into force on declaring him deceased. In the event that a deceased citizen is declared missing in circumstances threatening to die or giving grounds for assuming his death from a certain accident, the court may recognize the day of his death as the day of his alleged death.
In the application for recognizing a citizen as missing or on declaring a citizen dead, the following information must be contained without fail:
- for what purpose is it necessary for an applicant to recognize a citizen as missing or to declare him dead?
- circumstances confirming the unknown absence of a citizen, or circumstances that threatened the missing death or giving grounds to assume his death from a certain accident;
- with respect to servicemen or other citizens missing in connection with military operations, the day of the end of hostilities.
If the applicant does not specify the purpose of initiating the case, then in accordance with Art. 136 of the CCP statement remains without motion, and the applicant is given a period to eliminate this shortcoming.
In preparing the case for trial, the judge identifies a circle of persons who can provide information about the absent citizen, sends inquiries to the organization at the last known place of residence and work of the absent citizen, to the internal affairs bodies, military units, etc. As noted by EA Borisova, the case can not be assigned to a hearing in a court session until answers are received to all the judge's requests.
Taking into account the legal consequences of recognizing a citizen as missing or declaring a citizen dead, the law recognizes the participation of the prosecutor in the consideration of these cases.
Based on the results of the consideration of the case, the judge makes a decision to recognize the citizen as missing or to declare the citizen deceased, which is the basis for transferring his property to the person with whom the guardianship authority enters into a trust management agreement for this property, if necessary, to manage it permanently, or for the entry by the registrar's office of a record of death in the book of state registration of acts of civil status.
When recognizing a citizen as missing, his spouse has the right to dissolve the marriage through the registrar's office, and the child can be adopted without his consent. In addition, when recognizing a citizen as missing, the effect of powers of attorney issued in his name or by himself is terminated.
If a citizen is declared dead, the same consequences occur as in the case of a person's death: the termination or transfer to the heirs of all rights and obligations that belonged to the citizen declared dead.
In case of appearance or location of a citizen who was previously recognized by the court as missing or declared dead, the court, at the request of the interested person, resumes the proceedings and makes a new decision in the same proceedings in which the citizen was declared missing or declared dead, on the cancellation of the earlier decision. Excitation of a new case in this situation is not required.
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The new court decision is the ground for canceling the management of the citizen's property and for annulling the death record in the civil registration book.
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