19. Conditions, procedure and legal consequences of recognizing a citizen as missing. Consequences of the appearance of a citizen declared missing.

Unknown absence is a fact of a long-term absence of a citizen from his place of residence, certified by a court, if it was not possible to establish his place of stay.

A citizen can be recognized as missing only in court at the request of interested parties (dependents, his spouse, his creditors). According to the Civil Code of the Russian Federation, a court may recognize a citizen as missing if there is a legal composition consisting of the following legal facts:

The absence of a person from his place of permanent residence for a long time and the impossibility of establishing his place of residence

Lack of information about his whereabouts

Expiration of a period of one year from the date of receipt of the latest information about the location of this person.

The day of receipt of the latest information can be confirmed in various ways (receipt of the last letter, filming and photography, testimony). If it is impossible to determine the day of receipt of the latest information about the missing person, the beginning of the unknown absence is considered to be the first day of the month following the one in which the last information about the missing person was received, and if it is impossible to determine this month, it will be the first of January of the next year. According to the Code of Civil Procedure, the judge, when preparing the case for hearing, must also find out who can provide information about the absent citizen. The judge requests information about the person’s possible stay at the place of birth, previous place of residence and work; police departments and military units are requested. If lengthy searches do not produce results, only then a decision is made to recognize the citizen as missing. This entails the following legal consequences: if the property belonging to such a citizen needs to be maintained in proper condition, this property is transferred to trust management. After the court decision on the transfer, the guardianship and trusteeship authority appoints a trustee and concludes a property trust management agreement with him. Property is transferred to trust management usually if there are no close relatives. From this property, maintenance is given to the citizens whom the missing person was supposed to provide, and the debt on other obligations of the missing person is also repaid.

In the event of the appearance or discovery of the place of residence of a citizen recognized as missing, the court cancels the decision to recognize him as missing. Based on a court decision, management of the citizen’s property is cancelled.

20. Conditions, procedure and legal consequences of declaring a citizen dead. Consequences of the appearance of a citizen declared dead.

Declaration of death is recognition by official authorities (usually by court decision) of the fact of death of an individual in the absence of his identified body. The decision is made on the basis of circumstantial evidence or automatically due to a prolonged unknown absence. It entails the same legal consequences as death confirmed in the usual way, that is, the opening of an inheritance, termination of marriage, tenure, etc.

According to the Civil Code of Russia, declaring dead is possible only by court decision:

* in case of unknown absence - five years after the disappearance;

* if a person disappeared “under circumstances that threatened death or gave reason to assume his death from a certain accident” - after six months;

* missing persons due to hostilities - two years after the end of hostilities.

The date of death is established, in the event of a three-year unknown absence, as the date the court verdict enters into legal force; in the case of a specific accident, the date of death may be the day of this event.

According to Russian law, if the declaration of death was made by mistake and the citizen declared dead turned up alive, then the corresponding decision is canceled and the death record is annulled. A “resurrected” person has the right, according to Russian laws, to claim everything for himself, except for his spouse, if she (he) is already in a new marriage, and money and securities taken free of charge and in good faith. If his spouse does not enter into a new marriage, then the marriage is restored. If some of his property was sold during his “death” or otherwise transferred to others for compensation, then it can also be claimed, provided that the buyer knew that the true owner of the property was alive; if it cannot be returned in kind, the cost will be charged.

21. The concept of a legal entity, characteristics of a legal entity.

A legal entity is a collective entity with legal personality.

A legal entity is recognized as an organization that has separate property in ownership, economic management or operational management, can acquire property rights, bear obligations, and be a plaintiff or defendant in court.

Four formal legal principles can be distinguished:

1. Organizational unity. Organizational unity must be understood as the internal structure of an organization, manifested in the delimitation and interconnection of individual structural divisions of legal entities, regulation of relations between participants and subordination to a single body. Being a single whole, an organization often consists of structural divisions. The structure and composition are determined in different ways: by a higher authority or by the person himself. This is enshrined in the charter or in the constituent agreement (Constituent documents).

2. Property isolation. It manifests itself in the fact that he must either have his own property, which constitutes the material basis of his activities. This property is separated from the property of other subjects of civil law. The external manifestation is in the accounting of property on the balance sheet. Thus, of course, they all must have an independent balance.

3. Independent property liability. Independent civil liability legal. of a person is expressed in the fact that he himself is responsible for failure to fulfill or improper performance of duties, and for causing harm. Creditors with claims can only contact him. The organization is responsible for all property. There is recourse.

4. Speaking in civil proceedings and in courts on one’s own behalf. Manages property on its own behalf. Property is held under different rights:

The right of ownership prevails, which allows you to dispose of property in your own interests.

Commentary on Article 43 The main legal consequences of recognizing a citizen as missing are as follows: 1) the property belonging to such a citizen, when permanent management of it is necessary, is transferred to trust management. In accordance with the court decision to transfer property into trust management, the guardianship and trusteeship body appoints a manager and concludes an agreement with him on trust management of property (Articles 1012 - 1026 of the Civil Code). The law allows the appointment of a property manager for an absent citizen even before the expiration of a year from the date of receipt of information about his place of residence. In this case, the manager is appointed by the guardianship and trusteeship body by its decision without going to court; 2) from this property, the manager issues funds to citizens whom the missing person was required by law to support (minor children, disabled parents, etc.); 3) from the same property the debt on monetary and other obligations of the missing person is repaid; 4) if a citizen is recognized as missing, the disabled family members who are dependent on him or her have the right to a survivor’s pension in accordance with pension legislation; 5) the power of attorney issued to the missing person, as well as issued in his name, is terminated (Article 188 of the Civil Code); 6) the spouse of a citizen recognized as missing has the right to divorce in a simplified manner through the registry office (clause 2 of article 19 of the Family Code). Article 44. Cancellation of a decision to recognize a citizen as missing. Commentary on Article 44 When recognizing a citizen as missing, his death is not assumed. The article under comment provides two grounds for overturning a court decision to recognize a citizen as missing: 1) his appearance and 2) discovery of his place of residence. Both the citizen himself and the person on whose initiative the case of recognizing the citizen as missing has the right to apply to cancel a court decision. In accordance with Art. 64 of the Law on Acts of Civil Status, a court decision to declare a person dead, which has entered into legal force, is the basis for state registration of death.

45 of Part 1 of the Civil Code of the Russian Federation, a citizen may be at the request of interested persons

1. recognized by the court as missing - if during the year there is no information about his stay at his place of residence;
2. declared dead by the court - if at the citizen’s place of residence there is no information about his place of stay for 5 years.

The concept and conditions for recognizing a citizen as missing

The long absence of a citizen from his place of residence, if his place of stay is unknown, is not indifferent to organizations and citizens with whom he was in legal relations.

An unknown absence - special legal status; a judicially certified fact of a citizen’s long absence from his place of residence, if it was not possible to establish his place of residence.

The purpose of recognizing a citizen as missing:

• elimination of legal uncertainty caused by the long absence of a citizen, and
• preventing possible adverse consequences for his property.

The concept of “interested parties” is not defined in the law.

Within the meaning of the law, interested parties include:

• a spouse who may be interested in a simplified divorce;
• dependents of the absentee who may acquire the right to a survivor's pension;
• other persons who need it to protect a violated or disputed right or interest protected by law (for example, creditors of an absent person, tax authorities, etc.);
• prosecutor, state and local government bodies, organizations and individual citizens, if by law they have the right to go to court to protect the rights and interests of other persons.

The day of receipt of the latest news about a citizen can be confirmed, for example, by the testimony of witnesses. If it is impossible to establish this day, the beginning of the unknown absence is considered to be the first day of the month following the one in which the last news was received, and if it is impossible to establish this month, the first day of January of the next year (paragraph 2 of Article 42 of the Civil Code).

Recognizing a citizen as missing is permissible provided that it is impossible to establish his whereabouts, therefore, before considering the case, contact the relevant organizations at the citizen’s last known place of residence, place of work, place of birth, etc. requests are sent about information available about him, his relatives, friends, and other persons with whom he communicated are interviewed.

Consequences of recognizing a citizen as missing:

1. Property belonging to such a citizen, if permanent management of it is necessary, is transferred to trust management (in accordance with a court decision, the guardianship and trusteeship authority appoints a manager and enters into a trust management agreement with him; the law allows the appointment of a property manager for an absent citizen even before the expiration of a year from the date of receipt information about his place of residence, without going to court - clause 2 of Article 43 of the Civil Code, however, according to the meaning of the law, in this case the guardian is appointed only to protect the property and cannot make any payments from it).
2. If a citizen is recognized as missing, the disabled dependent family members have the right to a survivor's pension in accordance with the rules of pension legislation.
3. A power of attorney issued in the name of a missing person, as well as one issued by him himself, is terminated (Article 188 of the Civil Code).
4. The spouse of a citizen recognized as missing has the right to divorce in a simplified manner through the registry office (clause 2 of article 19 of the Family Code).

In the event of the appearance or discovery of the place of residence of a citizen recognized as missing, the court cancels the decision to recognize him as missing (Article 44 of the Civil Code). Based on a court decision, the trust management of the citizen’s property is canceled and other legal relations arising from the fact of recognizing him as missing are terminated.

Declaring a citizen dead

In the event of a long-term absence of a citizen, if it is impossible to establish his place of residence, there is reason to assume that he has died. However, legal consequences cannot be associated with such an assumption until the facts giving rise to it are established officially, because an error in resolving this issue can lead to serious violations of the rights and interests of the individual.

Persons to whom the property of a citizen who was mistakenly declared dead was transferred through compensated transactions (purchase and sale and barter) are obliged to return this property to him only if it is proven that when acquiring it they knew that the citizen declared dead is still alive (i.e. they were dishonest purchasers).

In addition, the law does not provide for the recovery of the value of things that, after their gratuitous acquisition, were lost by the owners or alienated by them for money. If, for example, the heirs of a citizen declared dead sold a house acquired by inheritance, then this house cannot be reclaimed from the purchaser, who did not know that the person declared dead was alive, and its value cannot be recovered from the heirs. But if the property of a citizen who was mistakenly declared dead was lost or alienated by an unscrupulous acquirer (who knew that the citizen was alive), then the latter must compensate for the losses caused to the citizen by the loss of his property.

In the event of the appearance of a citizen declared dead, only those of his rights that have passed to the heirs and other persons are subject to restoration (subject to the conditions discussed above). Rights that have ceased, i.e. were canceled due to the declaration of a citizen as dead, cannot be restored. Thus, the effect of personal obligations (obligations to perform any work, perform legal actions, create a work, etc.) is not restored. The issue of maintaining or terminating a marriage with a citizen who has been declared dead is decided in accordance with the norms of family law (Article 26 of the Family Code).

What is such a procedure as recognizing a citizen as missing? It’s unlikely to be possible to tell in a nutshell. Therefore, it is worth paying more attention to this topic and discussing it in detail.

What you need to know

So, if a particular citizen is absent for a long period of time from the place where he is registered or must reside on a permanent basis, some legal uncertainty arises. And the consequences of this may infringe on the rights of other participants in legal relations. What is meant? In such a situation, the creditor, for example, can no longer collect from the missing person the debt owed to him. And disabled individuals who are dependent on him (if any) lose care and maintenance. And they cannot even apply for a pension, since in this situation they are considered to have a breadwinner. And the interests of the missing person also remain unprotected for a long time. No one guarantees that his property, which he left without his supervision, will not be damaged in any way.

And the elimination of that same legal uncertainty is regulated by the institution of unknown absence. The citizen is recognized as missing and declared dead. But! This is only possible in court. In these situations, the special procedure is followed.

Basic principles

Firstly, cases of recognizing a citizen as missing can be closed only if he has really disappeared for a long time. This fact is usually verified. It must also be proven that at the moment there is no information regarding his whereabouts. And that there is no way to get them, either. And of course, the deadlines established by law regarding waiting for information about the location of a particular citizen must expire. Only then is it possible to recognize a citizen as missing.

But! If a person disappeared deliberately and there are some grounds to suspect it, then the court cannot do this. But some citizens actually disappear on purpose. To hide from the damage caused, so as not to pay alimony, or to find shelter in connection with a crime committed. If any of the above may concern the missing person, then recognition of the citizen as missing is impossible.

Consequences

Such a process as recognizing a citizen as missing clearly entails legal consequences. So, the calculation of the period of absence of information about a person’s place of residence begins from the day the last information about him was received. If it is not possible to establish the date, then the period is calculated in this case from the first day of the month following the one when news was still received from the citizen. And if the month cannot be established, then the countdown begins on the first of January of the following year.

After this case is closed, the property of the missing person is transferred (by court decision) to the person who is determined as the heir by the guardianship and guardianship authority. But not all. From this property, maintenance must be given to those people who were dependent on the missing person. Also, the debts and debts of the disappeared citizen are paid at the expense of existing valuables. Dependents, by the way, acquire the right to receive a pension due to the loss of a breadwinner.

As soon as a citizen is recognized as missing and declared dead, the action in which the disappeared person participated ceases. The power of attorney that was either given to him or he provided it to someone loses its significance. And finally, the spouse of the disappeared citizen has the right to divorce, and in a simplified manner.

Important nuances

So, if a citizen was recognized as missing, but then, after some time, the person showed up (either himself or was found), the decision made is canceled. And accordingly, all property returns to his rightful possession. In principle, everything falls into place: all legal and other relations that arose due to the recognition of a person as dead are terminated.

A citizen can also be considered dead if there is no information in the place where he was registered or lived for five years. But it is not necessary to first recognize him as missing.

Reduced term

The five-year period can be reduced to 6 months if the person goes missing. And at the same time there were circumstances that threatened his life. For example, a person was a member of an expedition whose group worked in close proximity to a volcanic crater that had recently erupted. If researchers disappear during their work, then after 6 months they will be declared dead due to an accident. Because there is every reason to assume this.

The five-year period can be reduced to 2 years. This is the case if the citizen is in connection with actions of a military nature. The period in this situation is calculated from the day they ended.

About dates

Naturally, if a citizen is recognized as missing and dead, then a date of death is set. It is considered the day when the relevant court decision came into force. In those situations where a person who went missing under circumstances that could threaten his life or gave clear grounds for assuming his death is declared dead, the day of death is often recognized as the date when he could presumably have passed away. How to understand this? It's actually simple. A person often shared with one of his acquaintances, friends or relatives that it seemed to him that he was being persecuted or wanted to kill him. And then one day he disappears. There is every reason to believe that he was killed after all.

How to proceed?

So, the principle by which a citizen is recognized as missing (declared dead) is clear. Now we need to talk about something else. How should those people whose loved one has disappeared act? There is a certain order here. It is necessary to achieve recognition of a citizen as missing.

You need to write a statement. It can be drawn up by any person who is interested in this matter. That is, for example, if the closest relatives of the missing person do not care, then a friend or colleague who was on good terms with the disappeared person has every right to file an application to recognize the citizen as missing. The paper will need to be filed with the court at the applicant’s place of residence.

At the meeting, he will be required to prove that for a long period of time this citizen did not appear at home, at work and, in principle, was considered missing by everyone else. The most compelling written evidence is the investigation materials taken from the local police department. Therefore, it is imperative to first contact the police so that they take all possible actions to find the person. And only then go to court.

Identifying Stakeholders

Who can go to court? It was said above that these are interested parties. But who are they? Firstly, this is the spouse of the missing person. Secondly, dependents who are in the care of the disappeared person. Thirdly, other people who need to protect their disputed or violated right/interest. These include creditors, tax authorities, etc. And finally, prosecutors and local government/state authorities - they also have the right to submit an application.

Further actions

Missing citizens must pay 200 rubles. This is a state fee. It is also worth indicating the persons interested in carrying out this process. These are usually close relatives of the missing person or the authorities, where the court decision made in this case will then be transferred.

Individuals who are witnesses will need to be invited to the court. They must confirm the fact that the person has been absent from his place of registration for a long time. Not only close relatives and people who lived in the same house with the missing person are suitable as witnesses. You can also invite colleagues, friends, buddies. They will also testify, and this may play in favor of a quick resolution of the issue.

The application is easy to fill out. There are special forms that can be taken either in court or downloaded from the Internet - they are freely available.

Property related issues

Now it’s worth talking in a little more detail about the consequences of recognizing a citizen as missing. So, if the disappeared person had a spouse, then the marriage is dissolved. An inheritance is also opened and any obligations of a personal nature are terminated. If a person declared dead is found, the death record made in the civil registry book is canceled. And the returning person has every right to demand the return of the remaining property, regardless of whether it passed into the possession of another person or not. The only exceptions are money and bearer securities. And the persons who become the owners of the property not only have to, but they are obliged to return everything to the returning owner. If this cannot be done, then you must compensate with money. For example, after a person was declared dead, his cousin inherited a car. But since he already had one car, he decided to sell the second one. Accordingly, the returning citizen will no longer receive his car. Instead, he has the right to demand compensation in the amount of the value of the car.

On a note

It is worth taking into account that the fact of death established in court is a completely different thing, in no way connected with the declaration of a missing person as deceased. And we must remember this, because all sorts of situations happen. For example, some facts came to light - evidence of the death of a missing person at a specific time and under certain, clarified circumstances was discovered. Often the civil registry office refuses to register the death in such cases. What to do? In this situation, there is no need to wait until the deadline for declaring a person dead expires. Every person interested in this issue can submit a corresponding application to the court. And the decision that is made there will become the basis for the registry office to record the fact of death.

Recognizing a missing person as missing is not a simple process, the intricacies and nuances of the procedure, the main legal consequences and participants will be discussed in this article.

Missing people are not always found...

For there to be a need to recognize a person as missing, it is necessary that information about his permanent or whereabouts be completely absent. This refers to the continued absence of news from such a citizen.

As a result, there is legal uncertainty, the consequences of which may violate the legal rights of other parties to legal relations. Let's consider possible options for legal uncertainty:

• the creditor of the missing citizen does not have the opportunity to legally receive the amounts of money due to him;
• dependents of the absent person are deprived of the necessary care (and in case of incapacity, such care is the only possible source of their existence);
• legitimate interests remain unprotected for a long period of time;
• property belonging to the missing person remains without proper protection and may be subject to unlawful encroachment or even lost altogether.

Overcoming such legal uncertainty is the main purpose of the existence of the institution of unknown absence. There are two ways to resolve the current situation: recognizing the missing person as missing or declaring him dead. Both ways have a judicial procedure for their consideration on the merits and are characterized by special proceedings.

Principles of application of the institution of unknown absence

To recognize a person as missing, you must provide evidence of his absence

Cases on applications for declaring a citizen missing are accepted for judicial consideration only in the case of a long-standing disappearance of a person. This fact is subject to careful verification and reliable confirmation.

The interested party must provide the court with evidence of the absence of any more or less significant data about the missing citizen.

In addition, it is necessary to confirm that it is currently impossible to obtain such data in any way. Before filing an application, you must wait for the deadlines prescribed by law, which require a period of waiting for information about the location or appearance of a person to appear. And only then does the right to go to court to be declared missing appear.

However, when there are reasonable doubts about the unintentionality of a person’s disappearance, the court cannot accept the application for consideration. Practice shows that there is a whole category of citizens who specifically and intentionally hide their location. This is usually done for selfish reasons, for example, to avoid paying a debt or fulfilling a debt.

In addition, a citizen may be hiding in an attempt to avoid responsibility for an offense committed. If any of the above circumstances applies to a missing person, it is impossible to recognize him as missing.

Upcoming legal consequences

Application: sample

Such a socially significant procedure is certainly accompanied by significant legal consequences. The period for not receiving information about a missing person is calculated from the date of receipt of the latest news about his location or residence.

If objective difficulties arise in determining a specific date, as a general rule, the period is counted from the first day of the month following the date of the month of the last available news about the person. In cases where it is difficult to determine the month, the count begins from the first day of the first month of the year following the one in which data about the missing citizen was still available.

Upon completion of the proceedings, the property of the missing person passes into the possession of the heir. It is true that we are not talking about all existing property. Part of the valuables at the disposal of the missing person is transferred as maintenance to the disabled dependents of the latter, part goes to repay various types of debts and loans taken out by the missing person. Dependents of a person, with a court decision, acquire the right to receive pensions for themselves in connection with the loss of a breadwinner.

With the recognition of a person as missing, in which he participated automatically terminates its validity. A power of attorney issued to a missing person to perform certain actions, or vice versa, written out in his name and giving the right to perform actions on behalf of another person, also loses its legal significance.

The remaining legal spouse of the missing person receives the legal possibility of a simplified dissolution of the registered marriage.

Legal consequences of the appearance of man

Time frames vary according to circumstances

If, after a lapse of time after a court decision was made to declare a person missing, he appears, this cancels the court decision. The property must return to its rightful owner. Everything becomes the same as it was before going to court in the case of recognition as absent.

Shortened calculation of the established period

The established period for not receiving information about the whereabouts of a citizen can be reduced to six months if the citizen’s disappearance occurred under circumstances that objectively put his life at risk. So, if the disappearance of a research group occurred near an active volcano crater, this can be considered a life-threatening circumstance.

Members of such a research group may be declared by a court to have died due to an accident within 6 months of their disappearance. The five-year length of the term can be reduced by three years - up to 2 years. To do this, it is necessary that the disappearance of a person be accompanied by events of an emergency or military nature. The required period in this case is counted from the day of the official end of military events.

Determining the date of death

If a person is simultaneously recognized as missing and declared dead, a specific date of death of the person must be determined. As a general rule, it coincides with the moment it gains legal force.

If a life-threatening situation accompanying the disappearance of a person who was subsequently declared dead gave reason to assume the possible moment of death of a citizen, then this date can be determined as the day of death. So, a person could inform his relatives about threats to his life and subsequently disappear; in this case, the date of such a message can be set as the date of his death.

Procedural aspects of judicial appeal

There is a very specific procedure that must be observed by the relatives of the missing person in order to recognize him as such through the court. First of all, the interested party writes a statement. Such paper must be submitted in writing to the court located territorially at the location of the applicant.

During the meeting, the interested person presents evidence of the long-term absence of the missing person from home or work. We recommend that you take care of this in advance and file a police report to search for the person. Then a search file can be added to the court case, serving as evidence of the facts stated in the facts.

Determining the circle of stakeholders

Sitting with your hands folded is just a waste of time!

Who are the interested parties who have the right to file a complaint with the court? Let's look at a sample list:

1. legal spouse of the missing person;
2. disabled dependents who were provided for by the missing person;
3. persons whose rights were violated by the missing citizen;
4. and a local government representative.

Submitting an application

You can ask for the application form in court or download it yourself online from free access. By filling out all the fields and paying a fee of 200 rubles. You can take it to court, not forgetting to attach a list of evidence and witnesses available in the case.

Consequences of a positive decision to recognize a person as missing:

• existing ;
• the property opens ;
• personal obligations assumed by the missing person are terminated.

If a person is declared dead by the court, the death record must be deleted. The citizen himself receives the right to return his property, even if the latter was transferred to other persons. If the return of property in kind is impossible due to its loss, its full value is reimbursed in money. So, even if the returning citizen does not receive the previous property in the form of things, he is entitled to its full value.

Recognition of a person as missing or dead - 7 questions for a lawyer: