Recognition of a citizen as missing.

Recognizing a citizen as missing and declaring a citizen dead. Actions of the judge after accepting the application. The court's decision

The legal goals and consequences of this proceeding are similar to the establishment of facts that have legal significance. The main difference is the degree of reliability of judicial findings. Establishing the fact of death, for example, means establishing the truth in the case. Conclusions about unknown absence are reliable only in relation to a certain area and certain persons. It is by no means excluded that the missing person is located in another place. Since the declaration of death is based on an unknown absence, it is also characterized by relativity, that is, death is not established, it is only assumed.

The application submitted at the place of residence or location of the interested person specifies the purpose of recognizing the citizen as missing. The period of unknown absence and the search measures taken by the applicant are indicated. In preparation, the circle of interested parties is clarified, participants, including the prosecutor, are notified, and if necessary, additional inquiries are made about the probable location of the absent person. Establishing the place of residence of a missing person usually entails termination of the proceedings due to the applicant’s refusal of his demands. Otherwise, a decision is made to reject the stated request.

Cases on recognizing a citizen as missing are considered with the mandatory participation of a prosecutor (Article 278 of the Code of Civil Procedure). Having become convinced that the search was fruitless and that there is no information about the citizen at his place of permanent residence for a year or more, the court makes a decision to recognize the citizen as missing. This fact has serious legal consequences: the possibility of divorce in a simplified manner (Article 19 of the Family Code), the establishment of guardianship over property (Article 52 of the Code of Civil Procedure), the right to a pension in the event of the loss of a breadwinner, etc.

By virtue of Art. 45 of the Civil Code, unknown absence for five or more years serves as a legal basis for declaring a citizen dead. Disappearance under extreme life-threatening circumstances (flood, earthquake, etc.) entitles the citizen to be declared dead after six months.

An unknown absence in connection with hostilities allows a citizen to be declared dead only after two years from the end of the war (Clause 2 of Article 45 of the Civil Code). No prior recognition as missing is required. The possibility of declaring a citizen dead does not prevent him from being recognized as missing; the right to choose between one or the other, due to the principle of discretion, belongs to the applicant. Declaring a citizen dead entails the same legal consequences as physical death, i.e. termination of marriage, opening of inheritance, right of dependents for retirement, etc.

The procedural procedure for declaring a person dead is similar to declaring a person missing. Within three days after the decision to declare the person deceased enters into legal force, a copy of it is sent by the court to the registry office at the place of consideration of the case to register the death. The date of death is the day the decision enters into legal force. In case of disappearance under circumstances threatening death, the court may recognize the day of death as the day of the alleged death (clause 3 of Article 45 of the Civil Code).

The appearance or discovery of a person declared missing or declared dead leads to the resumption of proceedings in the case. Due to the obvious contradiction of the decision with objective reality, its cancellation is carried out by the court itself that considered the case, and not by the supervisory authority. A new decision is made in the same proceeding. It cancels the previously issued one and serves as the basis for removing guardianship from the property and canceling the death record in the registry office book (Article 280 of the Code of Civil Procedure). The citizen who appears has the right to demand the return of his property, which was transferred free of charge to other persons. Property transferred through compensated transactions is returned if the acquirer knew that the owner declared dead was alive. If it is impossible to return such property in kind, its value is reimbursed (Article 46 of the Civil Code).

No. 15. Guardianship, trusteeship, patronage.

Every citizen (FL), regardless of age and health status, has legal capacity, i.e. capable of having rights and responsibilities. But not all citizens (FL) are able to independently exercise their rights and fulfill their duties due to lack of legal capacity or its complete absence. To compensate for the missing or absent legal capacity of these citizens and protect their rights and interests, the institution of guardianship and trusteeship is used, which is one of the forms of state protection of the individual. Until 1994, O&P issues were regulated by family law. At the same time, it was recognized that OIP is closely related to the institutions of civil law on the legal capacity and capacity of citizens, and therefore should be considered by the science of civil law. O&P can be considered a mixed institution of GP, joint venture and AP (MA control over O&P). This provision is also enshrined in the current legislation: the Civil Code contains norms on O&P (Articles 30-40); The Insurance Code regulates the education of minors under OiP (Clause 1, Article 150), etc.

Guardianship is established over children under the age of 14, as well as over citizens recognized by the court as incompetent due to a mental disorder (clause 1 of Article 32). The essence of O is that instead of the named persons, all rights and responsibilities are exercised by a specially appointed person - the guardian. Guardians are representatives of wards by force of law and completely replace wards in property relations: they make transactions on their behalf and in their interests; act in defense of the rights and interests of their wards in relations with other persons, incl. in the courts. The guardian acts on behalf of the ward(s) without special authority, on the basis of a certificate or decision issued by the E&P body.

Guardianship differs from guardianship in the content of the duties that the law imposes on guardians and trustees. Guardianship is established over citizens who are partially capable - minors aged 14-18 years and citizens whose legal capacity is limited by the court due to the abuse of alcoholic beverages or drugs (Clause 1, Article 33). Guardianship consists of the fact that a specially appointed person - a trustee - helps a partially capable or partially capable person to exercise their rights and fulfill their duties with his advice, as well as by giving his consent or prohibiting the execution of transactions and other transactions by these persons. legal actions. The trustee does not completely replace the person over whom guardianship is established, but only helps him make reasonable decisions and protects them from abuse by 3 persons.

Patronage (Article 41) is a special form of ensuring the interests of adult and fully capable citizens who, for health reasons, cannot independently exercise and protect their rights and fulfill their duties (sick people unable to move and care for themselves, persons with severe injuries, the elderly and etc.). The E&P body may assign him an assistant, who assumes the responsibility to provide regular assistance to the ward.

Guardianship, in accordance with the Civil Code of the Russian Federation, is established over citizens who, due to a mental disorder, cannot understand the meaning of their actions or manage them and are recognized as legally incompetent.

Guardianship in accordance with the Civil Code of the Russian Federation is established over citizens whose legal capacity is limited by the court and who, due to the abuse of alcoholic beverages or drugs, put their family in a difficult financial situation.

Patronage of adult capable citizens who, for health reasons, are unable to exercise and protect their rights and perform duties, is established on the basis of Article 41 of the Civil Code of the Russian Federation. The basis for establishing patronage is the citizen’s state of health, which prevents him from personally exercising his rights and fulfilling his duties due to illness, physical disabilities, age-related infirmities, etc., confirmed by the conclusion of a clinical expert commission of a medical institution.

Despite the legal identification of the consequences of the fact of death and the declaration of a citizen as deceased, the legislator establishes the procedures and legal consequences of the appearance of a citizen (appearance or discovery).

Legal consequences are established by Art. 46 of the Civil Code of the Russian Federation, and the procedure is Art. 280 of the Code of Civil Procedure of the Russian Federation, on the basis of which the court, with a new decision, cancels its previously adopted decision. Isaenkova O.V., Demichev A.A., Solovyova T.V., Tkacheva N.N. Claim in civil proceedings: Collection. M.: Wolters Kluwer, 2009. P. 123. In the event of the appearance of a citizen who was previously declared dead by the court, the court, at the request of the interested party, resumes the proceedings and makes a new decision in the same proceedings in which the citizen was declared dead. Initiation of a new case is not required See: Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 26, 2008 N 13 “On the application of the norms of the Civil Procedure Code Russian Federation when considering and resolving cases in the court of first instance" // RG. 2008. July 2..

The declared citizen has the right to demand from any persons the return of the remaining property that was transferred to them free of charge after this citizen was declared dead, with the exception of money and valuable papers to bearer.

As for property alienated for compensation, the declared citizen has the right to claim it only in cases where the acquirer knew that the citizen declared dead was alive. In this case, if it is impossible to return the property, its cost is reimbursed. In accordance with Art. 303 of the Civil Code of the Russian Federation, when reclaiming property from someone else’s illegal possession, the owner also has the right to demand from a person who knew or should have known that his possession was illegal (unfair owner), the return or compensation of all income that this person received or should have received for the entire time possessions; from the bona fide owner the return or reimbursement of all income which he has received or should have received since the time when he knew or should have known about the adverse possession or received a summons in the owner's claim for the return of the property.

The owner, both in good faith and in bad faith, in turn, has the right to demand from the owner compensation for the necessary expenses incurred on the property from the time from which the owner is due income from the property.

A bona fide owner has the right to retain the improvements he has made if they can be separated without damaging the property. If such separation of improvements is impossible, the bona fide owner has the right to demand compensation for the costs incurred for improvement, but not in excess of the increase in the value of the property.

To return property to a citizen in respect of whom a decision was previously made to declare him dead, the following must be established:

• w the presence of property (and what kind of property it is) of a given citizen;
• w the basis for the transfer of this property to other persons (on the basis of a compensated transaction or on a gratuitous basis);
• w did the person who acquired the property know that the citizen whose property he acquired, although declared dead, is actually alive. Commentary on the Civil Procedure Code of the Russian Federation (article-by-article) / ed. E.L. Zabarchuk. M.: Peter Press, 2009. P. 395.

In the event of the appearance of the spouse announced in in the prescribed manner deceased, and the corresponding court decision is canceled, the marriage can be restored by the registry office upon a joint application of the spouses, if the other spouse has not entered into a new marriage (Article 26 of the RF IC).

A new court decision is the basis for canceling the death record in the book state registration acts of civil status when declaring a citizen dead.

And in conclusion, I would like to note that the work of law enforcement to solve murders related to the unknown disappearance of citizens.

The success of the fight depends on the effectiveness and timeliness of investigative actions and operational investigative measures taken. However, the established practice of responding to reports of missing people continues to differ significantly from the work of solving intentional murders. Criminal cases based on such materials are not initiated in a timely manner. The suddenness and causelessness of the disappearance are not considered signs of a crime. Instruction of the Prosecutor General's Office of the Russian Federation dated November 20, 1998 N 83/36, the Ministry of Internal Affairs of the Russian Federation dated September 24, 1998 N 1/19934 “On improving the activities of solving murders associated with the unknown disappearance of citizens and searching for missing persons.” The document was not published. The instruction, taking into account established practice, identifies a number of signs that give reason to believe that the wanted person has become a victim of a crime. In addition, in order to ensure the constitutional rights of citizens, improve the work on solving murders associated with the unknown disappearance of people, optimize the search, prosecutorial supervision over the resolution of applications and reports of missing persons, timely identification of signs of crimes and initiation of criminal cases, a set of measures has been proposed.

IN modern conditions, when migration processes are intensively developing and people disappear unknown as a result of moving from one region to another, the time has come to develop joint measures with the Federal Migration Service of the Russian Federation aimed at establishing the whereabouts of persons against whom the internal affairs bodies have opened search cases. As part of the development of interaction between internal affairs bodies and courts, it also seems appropriate to ensure that judicial authorities are informed about the presence of applications for the search for missing citizens in the relevant administrative-territorial unit. It is the targeted interaction of the Federal Migration Service of the Russian Federation, the Ministry of Internal Affairs, the prosecutor's office, and the judicial authorities of Russia that will more effectively ensure the protection of the rights and legally protected interests of citizens in this area. Portyankina S.P. On recognizing a citizen as missing or declaring him dead // Lawyer, 2008, No. 2.

Considering the state of legislation and judicial practice on the application of the norms of the Civil Code of the Russian Federation, the Code of Civil Procedure of the Russian Federation when considering and resolving this category of cases, it seems necessary to continue a comprehensive study of the problems associated with cases of declaring a citizen missing or declaring a citizen dead in order to develop constructive proposals aimed at identifying and eliminating the causes of missing people , improving the legal regulation of legal proceedings in the categories of cases under consideration.

1. In the event of the appearance or discovery of the place of residence of a citizen declared dead, the court shall cancel the decision to declare him dead.

2. Regardless of the time of his appearance, a citizen may demand from any person the return of the remaining property that was transferred to this person free of charge after the citizen was declared dead, except for the cases provided for in paragraph 3 of Article 302 of this Code.

Persons to whom the property of a citizen declared dead was transferred through compensated transactions are obliged to return this property to him if it is proven that, when acquiring the property, they knew that the citizen declared dead was alive. If it is impossible to return such property in kind, its cost will be reimbursed.

Commentary on Article 46 of the Civil Code of the Russian Federation

1. When a citizen declared dead appears or his place of residence is discovered, the court, at the request of this citizen or other interested parties, with a new decision cancels the previously issued one, which is the basis for canceling the entry of his death in the book of the registry office.

2. The return of property that belonged to a citizen depends on whether it has been preserved in kind, and on the grounds for its transfer to other persons. Property received free of charge, for example by inheritance, under a gift agreement and other grounds, is subject to return, with the exception of money and bearer securities (see Article 302 and commentary thereto).

Persons who acquired the property of a citizen declared dead by the court are obliged to return this property or its value if they knew that the citizen was alive. Then they must be recognized as dishonest owners and the provisions of Art. 301 (see commentary to it). In all other cases, the property or its value cannot be returned.

3. When returning property to a citizen who was previously declared dead, disputes often arise regarding income and expenses received and incurred during its use by another person. These issues are resolved in accordance with the provisions of Art. 303 Civil Code. The owner has the right to demand from the owner the return or reimbursement of income, taking into account the necessary expenses incurred by the owner on the property. The issue of improvements made by the owner is decided depending on whether they are separable without damaging the property or not. In the first case, the owner has the right to retain the improvements he has made. If separating them is impossible, he has the right to demand compensation for the costs of improving the property. Costs should not exceed the increase in the value of the property.

4. Based on Art. 26 of the Family Code, the marriage of a citizen declared dead can be restored by the registry office upon a joint application of the spouses, if none of them has entered into a new marriage.

Another commentary on Article 46 of the Civil Code of the Russian Federation

1. The commented article contains two grounds for the court to cancel a previous decision to declare a citizen dead: the appearance of the citizen or the discovery of his place of residence. Therefore, not only the citizen himself, who was previously declared dead, but also the persons who discovered his place of residence can apply to the court.

Based on a court decision to cancel a previous decision to declare a citizen dead, the entry of his death in the civil registry book is canceled (Article 75 of the Civil Status Law).

2. The fate of a citizen’s property after the decision to declare him dead is canceled depends on on what grounds and under what conditions the property of this citizen was transferred to other persons.

In para. Clause 1, clause 2 of the commented article defines the procedure for reclaiming property from a bona fide purchaser to whom the property of a citizen declared dead was transferred free of charge. An exception is the impossibility of demanding money and bearer securities from a bona fide purchaser (clause 3 of Article 302 of the Civil Code).

Persons to whom the property of a citizen declared dead was transferred through compensation transactions are obliged to return this property to him only if it is proven that, when acquiring this property, they knew that the citizen declared dead was alive. Since in this case the return of property is carried out in court, only the court can decide the issue of proving the circumstances mentioned above.

All calculations when returning property from illegal possession are carried out in the manner prescribed by Art. 303 Civil Code.

3. In the event of the appearance of a spouse declared dead in the prescribed manner and the corresponding court decision is canceled, the marriage can be restored by the registry office upon a joint application of the spouses, if the other spouse has not entered into a new marriage (Article 26 of the Family Code). In this case, the reasons for the absence, its duration or the guilt of the absent spouse do not matter.

Introduction

In the context of the development of modern society, the problem of declaring a citizen dead has become especially relevant, since every year great amount citizens. The strengthening of the crime situation in the Russian Federation leads to the commission of various crimes against a significant number of citizens, which often cause their disappearance. In addition, an important factor that gives this problem relevance are local military actions that almost regularly occur on the territory of the Russian Federation, terrorist acts, as well as natural disasters that occur not only in Russia, but also in other parts of the planet, but at the same time Their victims often include Russian citizens who are outside the country, various types of disasters, and unknown disappearances of people during migration processes. The number of applications in the courts of the Russian Federation to declare citizens dead is constantly growing.

Cases of declaring citizens dead are considered as special proceedings in a court of general jurisdiction. Before entry into force Civil Code and the Civil Procedural Code of the RSFSR of 1964, the cases under consideration most often had notarial jurisdiction, and only after the entry into force of the Civil Code and the Civil Procedural Code of the RSFSR, exclusively judicial jurisdiction of these cases was established. The same judicial procedure is enshrined in the current Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Civil Procedure Code of the Russian Federation). A decision that has entered into legal force is a legal fact entailing the emergence, change or termination of legal relations among persons who had any legal relations with such a citizen. The special significance of court decisions that have entered into legal force in these cases, the legal force of which extends to citizens of this category, requires completeness, clarity, and thoroughness from the courts not only when considering and resolving these cases, but also, no less, at the stages of initiation and preparation cases for trial.

The main purpose of the institution of declaring a citizen dead is to protect the interests of applicants and interested parties.

The Civil Code of the Russian Federation has made some changes to the substantive grounds for declaring a citizen dead: declaring a citizen dead current legislation preceded by a five-year period of absence of information at the place of his permanent residence instead of the previously established three-year period. The Code of Civil Procedure of the Russian Federation has established a provision according to which an application to declare a citizen dead is submitted to the court at the location of the interested person, and not at the place of residence of the applicant, as provided for by the Code of Civil Procedure of the RSFSR. In accordance with the Civil Procedure Code of the Russian Federation, the court, after accepting such an application, may invite the guardianship and trusteeship body to appoint a trustee for the property of this citizen, and in accordance with the Civil Code of the Russian Federation, the guardianship and trusteeship body can, even before the expiration of a year from the date of receipt of information about the place of residence of the absent citizen, appoint a manager for it property. The legislator has taken measures to eliminate gaps in legal regulation the case under consideration and the creation of mechanisms to ensure the protection of the interests of interested parties, etc.

The task of the institute is to protect the interests of the interested person, if this cannot be done out of court, by making a lawful and justified court decision aimed at eliminating uncertainty in family, civil, housing and other legal relations in which a citizen recognized as deceased is associated with individuals and organizations.

The object of study of this work is the institution of declaring a citizen of the Russian Federation dead.

Subject of research defining the topic course work, is the civil law regulation of declaring a citizen dead.

The main goal of the study is to take into account the achievements of domestic legal science and experience in the application of relevant legal norms conduct the most complete study of the current position of the institution of declaring a citizen dead in the field of civil legal relations.

According to the purpose of the study, the following tasks were set:

1. Carry out a general analysis of the institution of declaring a citizen dead.

2. Identify and analyze the procedure for declaring a citizen dead.

3. Study the features of the legal consequences of declaring a citizen dead.

4. Determine the characteristics of the legal consequences of discovering the place of residence or appearance of a person declared dead.

The structure of the work is determined by the objectives of the study and consists of an introduction, two main chapters, including subchapters, a conclusion, a list of sources and literature used, as well as an appendix that allows us to consider in practice the mechanism of declaring a citizen dead.

Chapter 1. Declaring a citizen dead.

1.1. The concept and conditions for declaring a citizen dead.

According to the current civil legislation of the Russian Federation, a citizen under certain conditions and in a certain procedure can be declared dead. Institute for declaring a citizen dead naturally is closely related to the institution of recognizing a citizen as missing, for the consideration of which a separate study is necessary, however, it should be noted that a citizen can be declared dead regardless of whether this was preceded by recognition of him as missing. It is important to note that the basis decision taken When a court declares a citizen dead, there is a presumption of his death, legally confirmed by a court decision. Given legal status a citizen is associated with his legal personality, the implementation of which is legally suspended, but upon the appearance of this citizen, legal capacity and legal capacity are restored in full, and therefore the declaration of a person as deceased must be distinguished from the establishment of the fact of death.

According to paragraph 1 of Article 45 of the Civil Code of the Russian Federation, a citizen can be declared dead by a court if at his place of residence there is no information about his place of stay for five years, and if he went missing under circumstances that threatened death or give reason to assume his death from a certain accident - within six months.

When considering the history of the formation of this article of the Civil Code of the Russian Federation, it should be noted that in comparison with Article 21 of the Civil Code of 1964, the legislator increased the period required to raise the issue of declaring a citizen dead from 3 years to 5. This is explained by the legislator’s attention to the realities of modern life , in which citizens of the Russian Federation began to leave their places of permanent residence much more often and for longer periods of time, often traveling abroad, and maintaining a rather short three-year period of absence puts citizens in a difficult situation, which can lead to significant harm to their property and other interests, as well as adverse consequences for other participants in civil law relations. However, the six-month period specified in paragraph 1 of the article in question of the Civil Code of the Russian Federation remained the same as in the Civil Code of 1964, which is also explained by the need to protect by law the interests of other subjects of civil law, and delaying the period necessary to declare a citizen dead can cause harm as his close relatives, as well as other citizens or legal entities. At the same time, reducing the period of absence of a citizen to 6 months is allowed only in cases where he went missing under circumstances that threatened his life, for example, when the citizen participated in rescue operations during earthquakes, fire, volcanic eruption, terrorist act, or giving reason to assume his death from an accident, for example, in a railway or plane accident, the death of a sea vessel on which this citizen was located, or other similar emergency situations.

The absence of information about the citizen’s place of residence in the article in question means that there is no information to establish his place of residence, just as the measures taken by the court during the preparation of the case for trial to locate him did not yield results.

Participation in hostilities is the most significant circumstance that gives grounds for declaring a citizen dead. However, the term “in connection with hostilities” cannot be limited to direct participation in hostilities only. The latter concept is broader: a person can go missing in the rear of enemy troops, in the front line, and in territory temporarily occupied by the enemy. The two-year period established by the provisions of the article precisely from the moment of the end of hostilities, and not the actual disappearance of a citizen, is due to the recognition of the possibility of a citizen being, for example, in captivity of the enemy, as well as the very uncertainty of the consequences of military operations for the population of the territory in which he was located during them a citizen declared dead.

In addition, the article in question contains an important provision on the possibility of officially declaring a citizen dead only in court, which, when considering the institution of declaring a citizen dead, must be given special attention.

1.2. Judicial order declaring a citizen dead.

The legislator devoted a separate chapter 30 of the Code of Civil Procedure of the Russian Federation to the issue of compliance with procedural rules when declaring a citizen dead.

According to Article 276 of the Code of Civil Procedure of the Russian Federation, the initiation by a court of general jurisdiction of civil proceedings in the case of declaring a citizen dead occurs only upon the application of an interested person submitted by him to the court at his place of residence or location.

The concept of “interested person” is not defined in the law. Within the meaning of the law, interested persons include the spouse and persons dependent on the citizen. Other persons may also be interested in declaring a citizen dead, if this is necessary for them to protect a violated or contested right or an interest protected by law, as well as the prosecutor, authorities state power, 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.

It should be noted that, in contrast to Article 252 of the Code of Civil Procedure of 1964, Article 276 of the Code of Civil Procedure of the Russian Federation specifies the possibility of filing an application to declare a citizen dead at the location of the interested person. At the same time, he independently decides which court to submit the application to, but does not have the right to submit the application, for example, at the place of the last known place of residence of the absent citizen. In addition, the interested party may also be entity, since the phrase “location” refers specifically to legal entities.

In accordance with the requirements of Article 277 of the Civil Code of the Russian Federation, the content of the application to declare a citizen dead, submitted to the court, must indicate:

1. The legal purpose of declaring a citizen dead (for example, divorce or termination of marital relations; assignment of a pension; termination of certain material legal relations that do not allow succession).

2. Circumstances confirming the disappearance of a citizen, or circumstances that threatened the missing person with death or giving reason to assume his death from a certain accident.

3. In relation to military personnel or citizens missing in action in connection with hostilities - the day of the end of hostilities.

If the requirements for the content of the application are not met, the consequences of Article 136 of the Code of Civil Procedure of the Russian Federation occur, that is, the application is left without progress. The presence or absence of the circumstances specified in the application is established during the consideration of the case on the merits at the court hearing. The legal nature of the purpose specified by the applicant is checked at the initiation stage - thereby determining whether declaring the citizen dead will have legal significance for the applicant or not. If the establishment of these facts cannot have legal significance for the applicant, the judge refuses to accept the application on the basis of the relevant article of the Code of Civil Procedure of the Russian Federation.

At the stage of initiating a case, it is not allowed to establish the material and legal circumstances with which the rules of civil law link the possibility of declaring a citizen dead. Therefore, if the applicant applied to the court before the expiration of the period provided for in Article 45 of the Civil Code of the Russian Federation, the application cannot be refused. These circumstances may serve as grounds for refusing to satisfy the claim.

The subject of proof in this category of cases can be divided into general, characteristic of declaring a citizen dead in the absence of exceptional circumstances, and special, when these exceptional circumstances are present.

The general subject of proof refers to cases where it is required to establish the absence of information about the place of residence of a citizen at the place of residence for five years. This subject of proof covers the establishment of the following circumstances:

1. Determination of the last place of residence of the citizen.

2. Absence at the citizen’s place of residence of information about his place of stay for five years. In this case, the five-year period established by law for declaring a citizen dead is calculated in the same way as in cases of recognizing a citizen as missing, that is, in accordance with the provisions of Article 42 of the Civil Code of the Russian Federation, according to which the period established for recognizing a citizen as missing begins to run from the date of receipt of the latest information about it. 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 absent person was received, and if it is impossible to determine this month - January 1 of the next year).

3. Facts of active and passive legitimation - the presence of legal interest of the person submitting an application to declare a citizen dead, and the existence of substantive legal relations between the applicant and the citizen in respect of whom the question of declaring him dead is raised. Since the applicant is required to indicate the purpose of recognizing the citizen as missing, facts confirming the existence of relevant legal relations must be proven. For example, if an application is submitted for the purpose of subsequently ending a marriage, then a marital relationship is established.

4. The applicant takes measures to search for the person.

5. Impossibility of establishing the location of this person.

6. The existence of circumstances giving reason to believe that the person may be intentionally hiding: he is wanted, does not want to pay alimony or comply with other decisions of the court and other authorities.

7. No dispute about the right. This means that if, during the consideration of a case of special proceedings, a dispute arises about the law within the jurisdiction of the courts, the court leaves the application without consideration and explains to interested parties that they have the right to bring a claim on a general basis. At the same time, it is impossible to consider declaring a citizen dead and a dispute about law in one process. In any case, it is first necessary to declare the citizen dead, and then consider the dispute about the right.

The special subject of proof relates to two cases of declaring a citizen dead, specified in parts 1 and 2 of Article 45 of the Civil Code of the Russian Federation:

1. If at the place of residence of a citizen who has gone missing under circumstances threatening death or giving reason to assume his death from a certain accident, there is no information about his place of stay for six months. Here, in addition to the above circumstances, the subject of proof includes facts confirming the presence of circumstances threatening death or giving reason to assume the death of a person from a certain accident. Circumstances that threaten death or give reason to assume his death from a certain accident may be of a generally known nature, for example, a flood, an earthquake, a terrorist attack, and then they are not subject to proof. However, such circumstances may not be considered generally known, and then they should be established in court. In addition, for this case, a shortened time period has been established - the absence of a citizen for six months;

2. A military serviceman or other citizen who has gone missing in connection with hostilities may be declared dead by a court no earlier than two years from the date of the end of hostilities. In this case, the subject of proof additionally includes establishing the fact of being in military service (for a serviceman) or being a citizen in the area of ​​military operations. The law establishes a period no earlier than two years from the date of the end of hostilities. The fact of hostilities and their end, as a rule, is generally known and therefore cannot be proven. However, if the court did not recognize this fact as generally known, then it must be established in court proceedings. In cases where there is a special subject of proof and if individual facts included in it are not recognized as generally known, the presentation of appropriate evidence is required. For example, evidence that a serviceman or citizen went missing in connection with military operations is messages from the military registration and enlistment office, travel certificates to the area of ​​military operations, witness statements, etc. In any case, the necessary evidence is a notification to the military registration and enlistment office about the disappearance of this person.

Since during the preparation of a case for trial it is necessary to check the impossibility of establishing the location of a person, the court, in accordance with the provisions of Article 278 of the Code of Civil Procedure of the Russian Federation, has the right to make inquiries to the relevant organizations. These are housing maintenance organizations that, for example, may have data on when a citizen paid public utilities, police authorities, which can provide protocols on the imposition of an administrative penalty on the relevant person, local government authorities at the last place of residence and place of work of the absent person. If necessary, inquiries may be made regarding the person's probable location. The identification of the impossibility of establishing the location of a citizen is associated with the likelihood of deliberate behavior by a citizen who is hiding from punishment, payment of alimony, or for other reasons. To do this, a request may be made to the internal affairs bodies to order a search for this person, or to the bailiff service to enforce court decisions or acts of other bodies against the citizen.

Cases of declaring a citizen dead are considered in open court by a single judge with the obligatory participation of a prosecutor in accordance with Part 3 of Article 278 of the Code of Civil Procedure of the Russian Federation, giving an opinion on the case. With the participation of the prosecutor in the consideration of cases of this category, the legislator pursued several goals: the prosecutor supervises compliance with the laws, as well as the rights and interests of a person who may be recognized as missing or deceased; the prosecutor can be both an applicant in the interests of the state and a person representing the interests of the state. The court is obliged to notify the prosecutor of the time and place of the court hearing in the manner established by Articles 113-117 of the Code of Civil Procedure of the Russian Federation. If he does not appear, the court, by its ruling, postpones the consideration of the case in the manner established by Article 169 of the Code of Civil Procedure of the Russian Federation.

Based on the results of the consideration of a civil case by the court in the manner prescribed by Articles 194-196 of the Code of Civil Procedure of the Russian Federation, an appropriate decision is made in the name of the Russian Federation, which is stated, signed and declared, enters into force in accordance with the rules of Article 197 of the Code of Civil Procedure of the Russian Federation and comes into force in accordance with the rules of the article 209 Code of Civil Procedure of the Russian Federation.

1.3. Legal consequences of declaring a citizen dead.

In accordance with paragraph 3 of Article 45 of the Civil Code of the Russian Federation, the day of death of a citizen declared dead by a court decision is considered the day the court decision to declare him dead comes into force. If a citizen who has gone missing under circumstances threatening death or giving reason to assume his death from a certain accident is declared dead, the court may recognize the day of death of this citizen as the day of his alleged death, which must certainly be reflected in the operative part of the court decision.

In accordance with Part 2 of Article 279 of the Code of Civil Procedure of the Russian Federation, a court decision by which a citizen is declared dead is the basis for the civil registry office to enter a death record in the state civil registration book. However, the court decision does not replace either this record or the death certificate issued by a specialized registry office.

Based on a court decision to declare a citizen dead, it is the civil registry office that issues a death certificate to interested parties.

Legal consequences declaring a citizen dead is the termination or transfer to the heirs of all rights and obligations that belonged to him as a subject of law, that is, in fact, these are the same consequences that the death of a person entails.

Chapter 2. Consequences of the appearance or discovery of the place of residence of a citizen declared dead .

2.1. Legal consequences of appearance or discovering the place of residence of a citizen declared dead.

Declaring a citizen dead, in contrast to death, establishes only a presumption, but not the fact of death itself. Therefore, in those exceptional cases when a citizen declared dead is actually alive, the court’s decision will in no way affect his legal capacity. If the citizen really died, then his legal capacity is terminated by virtue of natural death regardless of when a court decision is made to declare him dead.

In the event of the appearance of a citizen declared dead, it is not necessary to restore his legal capacity. While alive, he remains fully competent, despite the court's decision to declare him dead. All legal actions performed by him at a time when he, without knowing it, was mistakenly declared dead somewhere, for example, contracts concluded by him, powers of attorney issued to him, are considered fully valid and have full force. Declaring him dead does not affect his subjective rights acquired in the place where he was not known to be declared dead.

Consequently, regardless of the court decision declaring a citizen dead, he is capable of being a bearer of rights and obligations. Declaring a citizen dead creates a presumption of his death. But any presumption, even a very reliable one, can be rebutted. So, in accordance with paragraph 1 of Article 46 of the Civil Code of the Russian Federation, in the event of the appearance or discovery of the place of residence of a citizen declared dead, the court cancels the decision to declare him dead.

Appearance should be considered the appearance of a citizen declared dead at his place of permanent residence. It does not matter whether he came to his place of permanent residence temporarily or permanently. In contrast to appearance, discovery of the place of residence of such a person is considered to be any reliable information that he is in a specific place, for example, information about studying in another city, information that he works in another locality, information from a place of imprisonment about that he is serving his sentence there, including abroad.

A court decision to cancel a decision declaring a citizen dead can be made by the court upon the application of both the citizen who appeared, and his representative, another authorized person, as well as the prosecutor. Often, when appearing on general rule An application to cancel a previously made decision to recognize a citizen as dead is submitted by him, and if his whereabouts are discovered, by an interested person.

Along with information about the cancellation of the decision declaring the citizen dead, and the information provided for in Article 198 of the Code of Civil Procedure of the Russian Federation, the court decision must reflect information about the circumstances that served as the basis for the cancellation of the relevant decision.

It should also be noted that the decision to cancel the decision declaring a citizen dead is made by the court after the resumption of proceedings in the case, and a new case is not initiated.

After the court makes a decision to cancel the decision declaring a citizen dead, a copy of this decision must be sent to the civil registry office, which previously recorded the death of this citizen, no later than three days from the date of its issuance.

In accordance with Article 280 of the Code of Civil Procedure of the Russian Federation, the court decision in question is the basis for canceling the death record in the state civil registration book.

It should be noted that the mentioned decision in itself does not cancel the entry of death in the civil registration book.

Regarding the scope of family law, it should be noted that if the marriage was terminated due to the declaration of a citizen as deceased, after the decision is canceled, it is possible to restore the marriage upon a joint application of the spouses in accordance with paragraph 1 of Article 26 of the Family Law Code of the Russian Federation. However, if the spouse entered into a new marriage, it is valid, as follows from the provisions of paragraph 2 of the above article. If dependent persons of a citizen previously declared dead were assigned a pension in the event of the loss of a breadwinner, its payment is terminated with the issuance of a new court decision.

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. Rights that have ceased, that is, were canceled due to the declaration of a citizen as deceased, cannot be restored. Thus, the validity of personal obligations is not restored, for example, the obligation to perform any work, perform certain legal actions, etc.

However, to the greatest extent, Article 46 of the Civil Code of the Russian Federation determines the need to restore the property rights of a citizen who was previously declared dead by a court decision.

2.2. Property relations arising in the event of the appearance or discovery of the place of residence of a citizen declared dead.

The legislator devoted paragraph 2 of Article 46 of the Civil Code of the Russian Federation to the restoration of the property rights of a citizen in respect of whom the court has made a decision to cancel the decision to declare him dead. In accordance with it, regardless of the time of his appearance, a citizen may demand from any person the return of the remaining property that was transferred free of charge to this person after the citizen was declared dead. This rule is fully consistent with the principle of justice, since citizens to whom the property was transferred free of charge, in the event of the return of this property to the owner, as a rule, do not suffer material damage.

At the same time, the considered paragraph of Article 46 of the Civil Code of the Russian Federation stipulates that certain types of property specified in paragraph 3 of Article 302 of the Civil Code of the Russian Federation, that is, money and bearer securities, cannot be returned.

The rule on the return of property belonging to a person who was mistakenly declared dead is closely related to the norms of Articles 301-303 of the Civil Code of the Russian Federation, which regulate relations regarding the reclaiming of property from someone else’s illegal possession (vindication). In relation to the claim of his property by a citizen after the court has canceled the decision to declare him dead, if this property was acquired quite legally by his heirs and other persons, it should be recognized that after the cancellation said decision the basis of their possession disappears, and thus possession becomes illegal. If they refuse to return property belonging to him to a citizen who was mistakenly declared dead, he will have grounds for filing a claim to recover this property from their illegal possession, or a vindication claim. If the illegal owners were in good faith, that is, they did not know that the citizen declared dead was alive, then their property can be demanded only in the cases specified in paragraph 1 of Article 302 of the Civil Code of the Russian Federation. If a citizen is declared dead, his property ends up in the possession of other persons against his will, and therefore it can also be demanded from bona fide purchasers.

By satisfying the requirement to seize property from an illegal, albeit bona fide purchaser, the court also resolves the related requirements. In particular, a bona fide purchaser, in the event of seizure of property from him, has the right to demand compensation for the necessary expenses incurred on him, subject to the conditions provided for in Article 303 of the Civil Code of the Russian Federation. In addition, a bona fide owner has the right to retain the improvements he has made if they can be separated without damaging the property. At the same time, he is obliged to return or compensate the owner for all income that he received or should have received from the time when he learned or should have learned about the illegality of possession or received a summons on the owner’s claim for the return of property.

A citizen who was mistakenly declared dead has the right to demand the return of the remaining property from persons who received it free of charge, provided that this property belonged to this citizen. If he was married and there was property acquired jointly by the spouses, it is possible to demand the return of only the part of the common property due to him.

When providing for the return of preserved property, the law refers to property that has been preserved in kind. The law does not provide for the recovery of the value of things that, after their gratuitous acquisition, were alienated by their owners for money or were lost. For example, if 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, but its value cannot be recovered from the heirs. However, if the person to whom the property of a citizen who was mistakenly declared dead was transferred free of charge was an unscrupulous acquirer, that is, he knew that the citizen was alive, then the citizen must be compensated for losses caused by the loss of property. The bulk of these losses will be the value of the lost property.

The legal consequences of the case where the property of a person declared dead is acquired by someone on a remunerative basis are significantly different from the one considered. Persons to whom the property of such a citizen was transferred through compensated transactions are not obliged to return this property to him.

However, in accordance with the provisions of paragraph 2 of paragraph 2 of Article 46 of the Civil Code of the Russian Federation, a paid acquirer of property that belonged to a person declared dead is obliged to return this property to him if it is proven that, when purchasing it, he knew that the citizen declared dead was alive. If it is impossible to return such property in kind, its cost will be reimbursed. Consequently, the obligation to return the property or reimburse its value arises in this case only in relation to persons who acted in bad faith at the time of acquisition of the property. The claim for the return of property presented to such an unscrupulous owner is, in its content, a claim for the recovery of property from someone else’s illegal possession, or a vindication claim. It should be subject to the rules of Article 303 of the Civil Code of the Russian Federation, according to which not only property in kind is subject to return, but also the income that the unscrupulous owner received or should have received during the entire period of ownership. Accordingly, an unscrupulous owner has the right to demand compensation for the necessary expenses incurred on the property.

Conclusion

In general, the condition for recognizing a citizen as dead is the absence at his place of residence of information about his place of stay for 5 years. There are special deadlines in case of missing persons. In circumstances threatening death or giving reason to assume his death from a certain accident, the period is 6 months. In connection with hostilities - no earlier than 2 years from the date of the end of hostilities.

As a general rule, the moment of death is considered the day the court decision to declare a citizen dead comes into force. However, if he went missing under circumstances that threatened death or gave reason to assume his death from a certain accident, the court may recognize the day of death of this citizen as the day of his alleged death.

Declaring a citizen dead, in contrast to death, establishes only a presumption, but not the fact of death itself. Therefore, in those exceptional cases when a citizen declared dead is actually alive, the court’s decision will in no way affect his legal capacity.

The consequences of the appearance of a citizen who was previously declared dead by the court are as follows: the court cancels its decision, those of his rights that passed to the heirs and other persons are subject to restoration, the rights that ceased, that is, were canceled in connection with the declaration of the citizen as deceased, cannot be restored.

A citizen may demand the return of surviving property that was transferred to other persons after he was declared dead. The exercise of this right depends on certain conditions, enshrined in the relevant articles of the Civil Code of the Russian Federation and the Code of Civil Procedure of the Russian Federation.

If property, with the exception of money and bearer securities, was transferred under a gratuitous transaction, this property can be reclaimed from any person; if it was transferred through a compensated transaction - from persons who, when purchasing property, knew that the citizen declared dead was alive. If it is impossible to return such property in kind, its cost will be reimbursed.

List of sources and used literature

Regulations

1. Civil Code of the Russian Federation. Part one: Federal Law of November 30, 1994 No. 51-FZ (as amended on December 27, 2009) // Russian newspaper. 1994. December 8.

2. Civil Procedure Code of the Russian Federation No. 138-FZ dated November 14, 2002 // Russian newspaper No. 220 dated November 20, 2002 (with subsequent amendments dated November 9, 2009)

3. Family Code of the Russian Federation No. 223-FZ of December 29, 1995 // Collection of legislation of the Russian Federation. 1996. No. 1. Article 16 (as last amended on June 30, 2008)

4. Federal Law “On Acts of Civil Status” No. 143-FZ of November 15, 1997 // Russian newspaper No. 224 of November 20, 1997

Literature

5. Civil law. Part one: textbook / ed. V.P.Mozolin, A.I.Maslyaev. – M.: Yurist, 2007. - 719 p.

6. Civil law: In 2 volumes. Volume I. / rep. ed. E. A. Sukhanov. – M.: BEK, 2000. – 764 p.

7. Civil law: textbook in 3 volumes. Volume 1. – 6th ed., revised and supplemented/rep. ed. A.P. Sergeev and Yu.K. Tolosta. – M.: TK Welby, Prospekt Publishing House, 2003. – 776 p.

8. Civil law: Textbook. Volume I / ed. HE. Sadikov. – M.: INFRA-M, 2006. – 724 p.

9. Commentary on the Civil Procedure Code of the Russian Federation (article-by-article) / ed. G.A. Zhilina. – 2nd ed., revised. and additional – M.: TK Velby, 2004. – 916 p.

10. Likhachev G.D. Civil law. General part: Course of lectures. – M.: Justitsinform, 2005. – 420 p.

11. Mikhailova I.A. Theoretical and practical problems of recognizing a citizen as missing and declaring him dead // Inheritance Law. 2006. No. 2. P.29-31.

12. Popova Yu.A. Recognition of citizens as missing / ed. M.A. Shapkin. – M.: Legal literature, 1985. – 80 p.

13. Portyankina S.P. On recognizing a citizen as missing or declaring him dead // Lawyer. 2008. No. 2. P.13-16.

14. Article-by-article commentary to part one of the Civil Code of the Russian Federation / Guev A.N. – 3rd ed., add. and processed – M.: INFRA-M, 2003. – 972 p.

15. Pchelintseva L.M. Commentary on the Family Code of the Russian Federation. 4th ed., revised. - M.: Norma, 2006. – 808 p.

16. Sakhnova T.V. Course of civil procedure: theoretical principles and basic institutions. – M.: Wolters Kluwer, 2008. – 648 p.

Applications

Appendix 1. Sample application to declare a citizen dead.

IN ______________________________________

(name of court)

________________________________________

(Applicant’s full name, address)

Interested people:

________________________________________

(Full name of the person entitled to receive

labor pension in case of loss

breadwinner, address)

________________________________________

(other interested parties, e.g.

territorial body Pension Fund RF)

Statement

declaring a citizen dead

I, _____________________________________________, am married to

(Full name of the applicant)

citizen _____________________________________, "____" ________________

(Full name of the missing person)

year of birth, native __________________________________________. Marriage

(indicate place of birth of spouse)

registered __________________________________________________________.

(indicate the name of the civil registry office, the date of marriage registration

and registration number)

Married to my wife, we have a common child ________________________________,

"_____" ______________ the year of birth. "_____" _____________ 20___

at about ______ hours ______ minutes my wife left for work. Her place

work is: _______________________________________________________.

(indicate the full name of the organization, address

location)

However, on this day ___________________________________ was still not at work.

(surname and initials of spouse)

appeared (confirmed by the Act on the absence of the employee from the workplace

during the entire working day from "_____" _______________ 20___. N _____),

She also did not return home. All attempts to find her on my own

ended unsuccessfully. "____" _____________ 20____ it was submitted by me

application to ________________________________________________________________

search activities)

about the disappearance of ________________________________, but the search for my

spouses for _______ years did not give positive results.

Thus, from "_____" ________________ 20___ until now

time, I (relatives, acquaintances) do not know about my place of stay

These circumstances are confirmed

(surname and initials of spouse)

testimony of witnesses: ________________________________________________,

________________________________________________________________________.

(indicate full name, address of residence)

At the spouse’s place of residence at: ___________________________________

(indicate city, house number, building,

apartment number)

there is also no information about her whereabouts. This fact

confirmed by a certificate issued by ________________________________________________

(indicate the name of the housing department, housing department, homeowners' association)

from "_____" ______________ 20___ N ______.

I need recognition of my wife as deceased to register her death.

civil status"), divorce (clause 2 of article 16 of the Family

Code of the Russian Federation), receiving ___________________________________________________

(indicate the full name of the person entitled to receive

labor pension in case of loss of a breadwinner)

labor pension in case of loss of a breadwinner (Article 9 Federal Law RF

Federation") and opening of inheritance (Article 1113 of the Civil Code of the Russian Federation).

Based on the aforesaid and guided by Article. 45 Civil

Code of the Russian Federation, Art. Art. 276, 277 of the Civil Procedure Code of the Russian Federation,

Declare __________________________________________________________ deceased

(Full name, date and place of birth)

"____" _____________ 20____

Application:

1. _____________________________________________________________________.

(documents confirming payment of state duty)

2. Application to _____________________________ from "_____" _________________

(indicate the name of the court)

20____ (copy - 1 copy).

3. Marriage certificate, issued by ________________________________________

(indicate the name of the civil registry office,

who issued the certificate)

4. Child’s birth certificate, issued _____________________________

(indicate the name of the authority

Civil registry office that issued the certificate)

"_____" ______________ 20___ N _____.

5. Application to __________________________________________________________

(indicate the name of the body carrying out operational

search activities)

about the missing person __________________________ from "_____" _______________

20____ (copy).

6. Act on the employee’s absence from the workplace during the entire working period

days from "_____" ________________ 20___ N _____.

7. Certificate from ___________________________ dated "_____" ____________ 20___

(indicate the name of the housing department, health department,

8. Interrogation protocol _____________________________________, certified

(indicate the full name of the witness)

(specify notarial district, surname and initials

notary)

9. Interrogation protocol _____________________________________, certified

(indicate the full name of the witness)

notary ___________________________________________________ according to the register

(indicate the notarial district, surname and initials of the notary)

N _______ from "_____" _____________ 20____

10. ____________________________________________________________________.

(other evidence indicating the missing spouse)

"_____" ______________ 20___

____________________ ________________________________________

(signature) (surname, initials)