Declaring a citizen dead: grounds, procedure, consequences.

Confession or declaration of death?

For a “non-lawyer” there is no problem here: recognition and declaration of death seem synonymous. That is why our visitors very often call the procedure “death recognition.” However, from a legal point of view, it is important that the procedure is called “declaration of death.” This is how you should write down the requirement in your application to the court.

If a person goes missing and is absent for a long time, there is no information about him, his family and friends find themselves in a difficult situation. On the one hand, they do not want to lose hope of his return. On the other hand, they face many problems, including financial ones. There is no person, but utility bills have to be paid for him. If a given person has any debts to banks and other financial institutions, relatives are subject to pressure, and sometimes prefer to pay off the debts with their own funds. What to do in such a situation?

In this situation, it would be legally correct to declare the person dead. First of all, this is necessary in the interests of the person himself and in the interests of his relatives. It is worth immediately noting that this category of cases is quite complex and requires special delicacy. In addition, given how difficult it is for relatives to deal with this issue, it is best to contact a competent, tactful lawyer who will resolve your issue quickly and without emotional turmoil on the part of the client. If there is no opportunity to seek help from a lawyer in civil cases, the information contained in this article will be useful to you.

Cheat sheet: Recognizing a citizen as missing and declaring him dead

Recognizing a citizen as missing and declaring him dead

The absence of information at a citizen’s place of residence about his place of stay during the year creates uncertainty in his property rights and obligations. This period is calculated according to the following rules: if it is impossible to determine the specific day of receipt of the latest information, the period is calculated from 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, from January 1 of the next year.

A citizen is recognized as missing at the request of interested parties by the court in the manner prescribed by Chapter. 30 Code of Civil Procedure (Articles 276-280). After recognizing a citizen as missing (Article 43 of the Civil Code), his property, if permanent management is necessary, is transferred by court decision to a person who is determined by the guardianship and trusteeship body and acts on the basis of a trust management agreement concluded with this body.

The guardianship and trusteeship authority may, even before the expiration of a year from the date of receipt of information about the place of residence of an absent citizen, appoint a manager of his property. From this property, maintenance is provided to the citizens whom the missing person is obliged to support, and the debt on other obligations of the missing person is repaid.

In addition, if a citizen is recognized as missing:

grounds arise for divorce upon the application of one of the spouses to the civil registry office (clause 2 of article 19 of the Family Code);

terminate the power of attorney (subclauses 6 and 7, clause 1, article 188 of the Civil Code);

contracts concluded with the participation of the missing person (clause 1 of Article 977 of the Civil Code), commissions (Article 1002 of the Civil Code), agency agreement (Article 1010 of the Civil Code), trust management agreement (clause 1 of Article 1024 of the Civil Code), agreement simple partnership (clause 1 of article 1050 of the Civil Code).

The decision to recognize a citizen as missing may be canceled if he appears or his place of residence is discovered. The consequences of cancellation are as follows: management of the property of this citizen is canceled; in the event of the appearance of a spouse recognized by the court as missing and the corresponding court decision is canceled, the marriage can be restored by the civil registry office upon a joint application of the spouses, except if the other spouse has entered into a new marriage (Article 26 of the Family Code).

The condition for recognizing a citizen as dead (clauses 1 and 2 of Article 45 of the Civil Code) 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.

1) Under circumstances threatening death or giving reason to assume his death from a certain accident - within 6 months.

2) In connection with hostilities - no earlier than 2 years from the date of the end of hostilities.

A citizen is recognized as dead only by a court in the manner prescribed by the Code of Civil Procedure (Articles 276-280).

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 entails the same consequences as physical death, with one exception: if the citizen declared dead is actually alive, then his legal capacity does not cease.

The consequences of the appearance of a citizen declared dead (Article 46 of the Civil Code) are as follows: the court cancels its decision, and the citizen may demand the return of the remaining property that passed to other persons after he was declared dead. The exercise of this right is subject to the following conditions.

If property (except for 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.

In accordance with Art. 26 of the Family Code, in the event of the appearance of a spouse declared dead by the court and the cancellation of the relevant court decisions, the marriage can be restored by the civil registry office upon a joint application of the spouses, except if the other spouse has entered into a new marriage.

In this short publication, we will consider two interesting civil legal facts:

If within one year at the citizen’s place of residence there is no information about him or his place of stay, then, upon the application of an interested person, he may be recognized by the court as missing. If it is impossible to establish the day of receipt of the latest information about an absent person, then the beginning of the period for recognizing such a person as missing is the first day of the month following the month when the last information about this person was received, and if it is impossible to establish this date - the first of January next year. If there is a need for permanent management of the property of a citizen recognized as missing, then, on the basis of a court decision, it is transferred to a person who is determined by the guardianship and trusteeship authority and acts on the basis of a trust management agreement concluded with him. From this property, maintenance is given to citizens whom the missing person was obliged to support, and debts on other obligations are also repaid. It should be taken into account that the guardianship and trusteeship authority can appoint such a trustee even before the expiration of a year from the date of receipt of information about the location of the missing person.

If a citizen recognized as missing occurs or his place of residence is discovered, the court cancels its decision to recognize him as missing, on the basis of which the trust management of the property of this citizen is terminated.

If at the citizen’s place of residence there is no information about his place of stay for five years, and in the event of a disappearance under circumstances that threatened him with death or giving reason to assume his death from a certain accident - within six months, in the event of a missing person in the military or other citizen military actions - within two years from the date of the end of hostilities, then such a citizen or serviceman may be declared dead by the court. The day a court decision to declare a citizen dead comes into force is considered the day of death of the citizen declared dead. If a citizen declared dead is missing under circumstances that threaten death or give reason to assume his death, then the court may recognize the day of his death as the day of his alleged death.

If an appearance occurs or the place of residence of a person declared dead is discovered, the court cancels its decision to declare him dead. If the persons to whom the property of a citizen declared dead was transferred through compensation transactions knew that he was actually alive, and this was proven, then these persons are obliged to return this property to him, and if it is impossible to return it in kind, to compensate its cost. 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 he was declared dead, with the exception of cases where money or bearer securities are held by a bona fide purchaser.

Guardianship and trusteeship

Guardianship and trusteeship are legal forms of protection of personal and property rights and interests of citizens who are unable (in whole or in part) to independently perform these functions, provided for by the legislation on marriage and family. Guardianship is established over children under 15 years of age in the event of the death of their parents, as well as during the life of the parents, if: they are deprived of parental rights by court, recognized by the court as incompetent or with limited legal capacity; the court made a decision to remove the child from the parents without depriving parental rights; parents who do not live together with the child shirk their responsibilities for raising him; the whereabouts of the parents are unknown; both parents have been unable to raise their children for more than 6 months for valid reasons (illness, business trip, etc.). Guardianship can also be established over adults who are recognized by the court as incompetent due to mental illness or dementia.

Guardianship is established over children aged 15 to 18 years who are left without parental care. Guardianship is also established over adults who, for health reasons, cannot independently exercise their rights and fulfill their duties, as well as over persons whose legal capacity has been limited by the court due to the abuse of alcoholic beverages or narcotic substances. Guardians and trustees are not legally equal to parents, but they solve basically the same problems as them.

In addition to guardianship over persons, it is allowed to appoint guardianship over the property of citizens recognized as missing in the prescribed manner. The main purpose of such guardianship is to ensure the safety of property. Guardianship can be established over the property of the ward if this property is located in another area.

The guardianship and trusteeship bodies are the executive committees of district, city, city district, township and village Councils of People's Deputies. The named bodies establish and cancel guardianship and trusteeship, appoint guardians and trustees, release or remove them from fulfilling guardianship duties, and perform other actions provided for by law. Decisions made by guardianship and trusteeship bodies on issues within their competence are binding on all enterprises, institutions and organizations, officials and citizens.

The implementation of the functions of guardianship and trusteeship is assigned to the relevant departments of the executive committees of district (city) Councils of People's Deputies. Thus, departments of public education are entrusted with the functions of guardianship and trusteeship in relation to minors; to health departments - in relation to persons recognized by the court as incompetent or partially capable; to social security departments - in relation to capable persons who need care for health reasons. In rural areas, the functions of guardianship and trusteeship are carried out by the executive committees of township and rural Soviets of People's Deputies.

The law obliges citizens and organizations to immediately notify the guardianship and trusteeship authorities about minor children who have lost parental care. An inspection of the living conditions of such children is carried out by an inspector from the department of public education or an employee of the executive committee of the village (rural) Council of People's Deputies. If the examination confirms the lack of parental care, the guardianship and trusteeship authorities are obliged to place the child temporarily in one of the children's or medical institutions (orphanage, boarding school, etc.) or transfer it to the persons taking the child into care until the issue of child care is resolved. establishing guardianship or trusteeship over him.

According to current legislation, a guardian or trustee must be appointed no later than one month from the moment when the guardianship and trusteeship authorities became aware of the need to establish guardianship and trusteeship. When choosing a guardian (trustee), his personal qualities and ability to perform such duties are taken into account; As a rule, a person from among the close relatives of the ward with whom he often communicated (grandfather, grandmother, adult brother, sister, etc.) is appointed as a guardian and trustee, but there may also be persons who are not related to the ward. A guardian and trustee can be appointed only with the consent of the ward.

A guardian (trustee) is not appointed if the child’s upbringing is carried out entirely by a child care institution (for example, a boarding school) or if an adult capable citizen in need of outside assistance is placed, for example, in a home for the disabled.

The main responsibility of a guardian (trustee) over children is to ensure proper upbringing. This personal responsibility cannot be transferred to another person. The guardian's family must create normal living conditions for the ward. The guardian must ensure that his ward spends his earnings or stipend wisely and spends his leisure time culturally. The guardian (trustee) is obliged to protect the personal and property rights and interests of the ward. He is responsible for the actions of his ward to the same extent as the parents.

Guardians and trustees are required to live together with their minor wards. Therefore, the guardian must either move the ward into his own living space or move into his living space. Only as an exception, the guardianship and trusteeship authority can give permission for their separation (if the ward has reached the age of 16 and provided that the separation does not negatively affect the upbringing and protection of the rights and interests of the ward). Guardians and trustees of adults are obliged to take care of creating the necessary living conditions for these persons, providing them with care and treatment, and must protect their rights and interests. The guardian of a mentally ill person, in the event of recovery of this person, is obliged, in accordance with the procedure established by law, to file a petition to recognize him as capable and terminate guardianship.

Along with their duties, guardians and trustees have certain rights: they can send their minor wards for upbringing and education to children's institutions (kindergartens, schools, etc.), they have the right to demand the return of their wards from any person who holds them without legal grounds to demand termination of the contract concluded by the ward if it is proven that this contract infringes on his rights and interests. Guardians are the legal representatives of their wards and carry out all necessary transactions on their behalf and in their interests. Trustees act not instead of the ward, but along with him.

Guardians and trustees are not obliged to financially support persons under their guardianship or trusteeship. Expenses incurred by them for the maintenance of the ward are reimbursed in the manner prescribed by law from the ward’s funds (pensions, alimony, and other income). In the absence of sufficient funds for the maintenance of the ward, the guardianship and trusteeship authorities assign an allowance for his maintenance. The funds due to the ward are at the disposal of the guardian (trustee) and must be spent by him on the maintenance of the ward (for the purchase of food, clothing, etc.). Every year, the guardian (trustee) is obliged to submit a written report on the management of the ward’s property to the guardianship and trusteeship authorities. Supporting documents (copies of sales receipts, tax receipts, etc.) must be attached to the report.

Guardianship over a minor who has reached 15 years of age is terminated without a special decision on this issue being made by the guardianship and trusteeship authority. The person who provided guardianship automatically becomes the guardian of a minor who has reached 15 years of age. Guardianship ends when the minor reaches 18 years of age. In exceptional cases, guardianship and trusteeship are terminated when guardians and trustees are released from their duties at their personal request due to valid reasons (illness, lack of necessary contact with the ward, etc.). Upon termination of guardianship or trusteeship, the guardian (trustee) submits to the guardianship and trusteeship authorities a report on his activities in raising the ward and managing his property. In case of improper performance by the guardian (trustee) of the duties assigned to him, the guardianship and trusteeship body removes him from performing these duties. In case of use of guardianship or trusteeship for personal gain, as well as leaving the ward without supervision and necessary assistance, the guardianship and trusteeship body, removing the guardian (trustee), is obliged to transfer to the prosecutor the necessary materials to resolve the issue of bringing the guilty person to criminal liability, and he must compensate material damage caused to the ward, in the manner prescribed by law.

The actions of guardians and trustees can be appealed by any person, including the ward, to the guardianship and trusteeship authority at the place of residence of the ward.

General provisions on guardianship and trusteeship

Guardianship is established over minors and over citizens recognized as legally incompetent due to a mental disorder. Guardians are the legal representatives of their wards and make necessary transactions on their behalf and in their interests.

Guardianship is established over minors aged fourteen to eighteen years and over citizens whose legal capacity is limited by the court in accordance with the established procedure due to alcohol or drug abuse. Trustees:

a) Give consent to carry out those transactions that citizens under guardianship do not have the right to carry out independently.

b) Provide assistance to their wards in the exercise of their rights and performance of duties.

c) Protect their wards from abuse by third parties.

Both guardians and trustees act to protect the rights and interests of citizens under guardianship and trusteeship in relations with any persons (including in the courts) without special powers.

Guardianship and trusteeship authorities

The guardianship and trusteeship bodies are local government bodies, which, at the place of residence of such citizens, supervise the activities of their guardians and trustees.

Guardian and trustee

The Civil Code of the Russian Federation establishes several provisions on guardians and trustees:

Only adult capable citizens can be appointed as guardians or trustees with their consent, taking into account moral and other personal qualities, abilities to perform the duties of a guardian or trustee, the relationship that has developed between the future guardian or trustee and the person in need of guardianship or trusteeship, and if appropriate - taking into account the wishes of the person himself.

A guardian or trustee is appointed by the guardianship and trusteeship authority at the place of residence of the person in need of guardianship or trusteeship, within one month from the moment when the said body became aware of the need to establish guardianship or trusteeship over the citizen (it should be borne in mind that the court is obliged within three days from the moment the court decision on recognizing a citizen as incompetent or partially capable comes into legal force, notify the guardianship and trusteeship authority at the place of residence of such a citizen about this in order to establish guardianship or trusteeship over him), and in the presence of noteworthy circumstances - at the place of residence of the guardian or trustee. It should be noted that if, within one month, a guardian or trustee is not appointed to a person in need of guardianship or trusteeship, then the duties of the guardian or trustee are temporarily assigned to the guardianship and trusteeship body. The appointment of a guardian and trustee may be appealed to the court by interested parties.

The guardians and trustees of citizens in need of guardianship or trusteeship and who are or are placed in educational, medical institutions, social welfare institutions or other similar institutions are the relevant institutions.

The guardian and trustee are obliged:

Perform duties of guardianship and trusteeship free of charge, except in cases established by law.

Live together with persons over whom guardianship or trusteeship is established, in the case where a guardian or trustee is appointed for guardianship or trusteeship of minors.

Notify the guardianship and trusteeship authorities of a change of residence.

To take care of the maintenance of persons over whom guardianship or guardianship has been established, to provide them with care and treatment, to protect their rights and interests, to ensure the education and upbringing of minors.

It should be noted that if the grounds on which a citizen was declared incompetent (due to a mental disorder) or partially capable due to alcohol or drug abuse no longer exist, then the guardian or trustee is obliged to petition the court to recognize such a person as legally competent and to remove him from guardianship or guardianship.

Change and termination of guardianship and trusteeship

The guardianship and trusteeship authorities release the guardian and trustee from the performance of their duties in the event of the return of a minor to his parents or his adoption, placement of the relevant person in a medical, educational institution, social protection institution and other similar institution (if this does not contradict the interests of this person), the presence of valid reasons (in particular, illness, financial status). If the guardian and trustee perform the duties assigned to them improperly (in particular, using guardianship and trusteeship for their own selfish purposes, leaving the relevant person without supervision and necessary assistance), then the guardianship and trusteeship authorities may remove the guardian and trustee from the performance of these duties and accept measures to bring them to legal responsibility.

In addition to the above, guardianship and trusteeship are changed or terminated:

Over an adult citizen in the event that a court makes a decision recognizing him as capable or lifting the restriction on his legal capacity at the request of a guardian, trustee, guardianship and trusteeship authority.

Upon reaching the age of fourteen by the person in respect of whom guardianship or trusteeship has been established. At the same time, the citizen who performed the duties of a guardian becomes a trustee without an additional decision on this.

Over a minor upon reaching eighteen years of age or acquiring full legal capacity before reaching adulthood in cases established by law.

A few words need to be said about the mechanism of patronage over a capable citizen. If an adult capable citizen, due to his health condition, cannot independently exercise and defend his rights, then guardianship in the form of patronage may be established over him with his consent. The disposal of the property of such a person is carried out by the trustee on the basis of an agency agreement or a trust management agreement. With the consent of such a person, the trustee makes small household transactions and other transactions aimed at his maintenance and satisfaction of household needs.

Article 41. Patronage of capable citizens

1. At the request of an adult capable citizen who, for health reasons, cannot independently exercise and protect his rights and fulfill his duties, guardianship in the form of patronage may be established over him.

2. A trustee (assistant) of an adult capable citizen may be appointed by the guardianship and trusteeship body only with the consent of such a citizen.

3. The disposal of property belonging to an adult capable ward is carried out by a trustee (assistant) on the basis of an agency or trust agreement concluded with the ward. The execution of household and other transactions aimed at maintaining and satisfying the everyday needs of the ward is carried out by his trustee (assistant) with the consent of the ward.

4. Patronage of an adult capable citizen, established in accordance with paragraph 1 of this article, is terminated at the request of the citizen under patronage.

A guardian (assistant) of a citizen under patronage is exempt from performing his duties in the cases provided for in Article 39 of this Code

The concept and types of legal capacity of citizens. Emancipation

Civil capacity is the ability of a citizen, through his actions, to acquire and exercise civil rights, create civil responsibilities for himself and fulfill them (clause 1 of Article 21). Legal capacity includes: transactional capacity (the ability to make transactions) and tortious capacity (the ability to bear responsibility for unlawful actions). Legal capacity is not a natural property of a person; it is provided by law and is a legal category. The civil law establishes its inalienability and the impossibility of limiting it at the will of a citizen (Part 3 of Article 22). Forced restriction of legal capacity can occur only in cases and in the manner prescribed by law (Part 1 of Article 22).

Legal capacity, like legal capacity, is a subjective right of a citizen. If legal capacity constitutes the rights and obligations that an individual may have, then legal capacity is the opportunity granted to a citizen by law to exercise his legal capacity through his own actions.

The content of legal capacity includes the following capabilities (component parts): a) the ability of a citizen to acquire civil rights through his actions and create civil rights for himself; b) the ability to independently carry out GP and execute civil defense; c) the ability to bear responsibility for civil offenses.

Unlike legal capacity, which belongs equally to all citizens, the legal capacity of citizens cannot be the same. In order to acquire rights, exercise them through their own actions, assume and fulfill responsibilities, a person must reach a certain age and have mental health. The Civil Law distinguishes several types of legal capacity:

a) full legal capacity – the ability of a citizen to fully, through his actions, acquire and implement any civil rights permitted by law, take over and carry out any civil rights obligations. It occurs when a citizen reaches 18 years of age (Clause 1, Article 21). There are 2 exceptions: a person who, by way of exception, gets married before reaching 18 years of age, acquires full legal capacity from the time of marriage (clause 2 of Article 21); emancipation.

b) the legal capacity of minors aged 14 to 18 years - its scope is quite wide. They can acquire a state enterprise and create a state enterprise for themselves independently (in cases specified by law), or with the written consent of their representatives (parents, adoptive parents or trustees). Consent may also be expressed in subsequent approval of the transaction. Minors aged 14 to 18 years have the right independently (clause 2, article 26): to manage their earnings, scholarships and other income; exercise the rights of the author of a work of science, literature or art, invention or other result of his intellectual activity protected by law; in accordance with the law, make deposits in credit institutions and manage them; make small household transactions and other transactions (clause 2, article 28). Upon reaching 16 years of age, minors have the right to be members of cooperatives in accordance with the law. They are considered tortious, i.e. themselves are responsible for property damage caused by their actions. They have the right to make wills (Article 534).

c) legal capacity of minors aged 6 to 14 years - minors have the right to independently carry out: small household transactions; transactions aimed at obtaining benefits free of charge, which do not require notarization or state registration; transactions for the disposal of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal. Other transactions on their behalf are carried out by their parents, adoptive parents or trustees. Their representatives are responsible for harm caused to minors, unless they prove that the harm arose not through their fault, that is, minors are not recognized as tortious. Children under 6 years of age are completely incapacitated.

A minor who has reached the age of 16, according to Article 27, can be declared fully capable if he works under an employment contract, incl. under a contract, or with the consent of parents, adoptive parents or trustees, is engaged in entrepreneurial activities and is registered as an entrepreneur. The legal act of declaring a minor fully capable is called emancipation, and is carried out by decision of the guardianship and trusteeship authority, with the consent of parents, adoptive parents or trustees, and in the absence of consent, by a court decision.

Legal capacity of citizens: concept, content, limits

Legal capacity is the ability to have civil rights and bear responsibilities (clause 1 of Article 17).

Thus, only with legal capacity can specific subjective rights and obligations arise. Legal capacity is recognized for all citizens of the country, it arises at the moment of a person’s birth and ends with his death, it is inseparable from a person, he has legal capacity throughout his life, regardless of age and health.

But legal capacity is not a natural property of a person; it is acquired not from nature, but by force of law and is a socio-legal property. We know of periods in history when large groups of people were deprived of legal capacity due to the laws in force at that time. Legal capacity means the legal ability (subjective right) of everyone to have rights and obligations. This right corresponds with the corresponding obligation - not to violate the legal capacity of persons with whom the person has entered into any PA.

Legal capacity differs from other subjective rights in the following: a) specific, independent content - the ability to have GP and GO provided by law; b) purpose – provides each citizen with the legal opportunity to acquire state enterprises and civil defense; c) the close connection of legal capacity with the personality of its bearer and the impossibility of its alienation or transfer to another person. The Civil Law recognizes all transactions aimed at limiting legal capacity as void (clause 3 of Article 22).

Civil legal capacity is a right belonging to every citizen and inalienable from him, the content of which is the ability (opportunity) to have any civil rights and obligations permitted by law. Realization of legal capacity – acquisition of specific subjective rights and possession of them.

The content of civil legal capacity is not the rights themselves, but the opportunity to have both personal and NI rights and obligations. The Civil Law provides an approximate list of rights. which Russian citizens may have (Article 18): a) have property by right of ownership; b) inherit and bequeath property; c) engage in business and any other activities not prohibited by law; d) create a legal entity independently or jointly with other citizens and legal entities; e) make any transactions that do not contradict the law and participate in obligations; f) choose a place of residence; g) have the rights of authors of works of science, literature and art, inventions and other results of intellectual activity protected by law; h) have other property and personal non-property rights.

In principle, it was possible to write in the civil law that a citizen could have any civil law and civil law not prohibited by law. But it cannot be argued that the content of the legal capacity of citizens is unlimited - it, like any subjective right, is characterized by certain limits. These limits are reflected in the provision that a citizen may engage in any “activity not prohibited by law” and that the possession of certain rights may be expressly prohibited.

According to Article 160 of the Civil Code, foreign citizens and stateless persons in the Russian Federation are provided with national treatment and they enjoy civil legal capacity on an equal basis with citizens of the Russian Federation.

Civil legal capacity is the ability to have civil rights and bear responsibilities (clause 1 of article 17 of the Civil Code). Legal capacity belongs to all natural persons, regardless of whether they have legal capacity. Legal capacity must be distinguished from subjective right.

Subjective law is based on legal capacity as its necessary general prerequisite, but does not directly arise from legal capacity, but from legal facts provided for by law, with which the law associates legal consequences. Legal capacity is only a prerequisite for the existence of subjective civil rights.

The signs of civil legal capacity include equality and inalienability.

Equality of legal capacity. Legal capacity is recognized equally for all citizens. Equality of legal capacity does not mean that the volume of civil rights belonging to one citizen is equal to the volume of civil rights belonging to another. Equality of legal capacity means equal opportunity to acquire rights.

Inalienability of legal capacity. The Civil Code of the Russian Federation establishes a general rule about the inadmissibility of limiting legal capacity. An exception may be cases directly named in the law (clause 1 of article 22 of the Civil Code). These include, for example, deprivation of the right to hold certain positions or engage in certain activities (Article 47 of the Criminal Code of the Russian Federation) or a prohibition on a civil servant to carry out business activities, etc.

In accordance with paragraph 3 of Art. 22 of the Civil Code, a complete or partial renunciation of legal capacity by a citizen and other transactions aimed at limiting legal capacity are void, except in cases where such transactions are permitted by law.

According to paragraph 2 of Art. 17 of the Civil Code, the legal capacity of a citizen arises at the moment of his birth and ends with death.

The content of civil legal capacity in accordance with Art. 18 of the Civil Code includes a number of rights. Thus, citizens can have property by right of ownership; inherit and bequeath property; engage in business and any other activity not prohibited by law; create legal entities independently or jointly with other citizens and legal entities; make any transactions that do not contradict the law and participate in obligations; choose a place of residence; have the rights of authors of works of science, literature and art, inventions and other results of intellectual activity protected by law; have other property and personal non-property rights.

The significance of the declaration of death procedure

Declaration of death is a special institution of civil law designed to eliminate the uncertainty that has arisen in relation to a person whose fact of life is called into question. Thus, there is a real opportunity to ensure effective protection of the legal rights of interested citizens (in particular, heirs).

Important: in accordance with paragraph 1 of Art. 45 of the Civil Code of the Russian Federation, only a court has the right to declare a citizen dead, subject to the mandatory participation of a prosecutor in the court hearing.

Time limits for declaring a citizen dead

A missing citizen may be declared dead in court if there is no information about his whereabouts at his place of permanent residence for 5 years. In the event that it is known or assumed on the basis of specific facts that a person disappeared under circumstances that pose a threat of death or give reason to assume his death from an accident, the court will only need 6 months of absence of information about the citizen to declare him dead.

A special period is provided for persons who disappeared without trace during hostilities. It is calculated not from the date of the citizen’s disappearance, but after 2 years have passed from the date of the end of hostilities.

Since the Civil Code of the Russian Federation establishes one important condition for declaring a person deceased, namely the absence of any information about his place of stay for a specific period, such information will be requested by the court from organizations at the last place of residence or work of the missing person, from the police department, etc. .d. And if the mandatory condition regarding pre-trial investigative measures is not met, the court will either refuse to consider the case or recognize the applicant’s request to the court as unfounded. Therefore, do not rush to go to court, but first take all possible measures to search for the missing person - with the obligatory involvement of the local police authority and get evidence that all possible measures were taken, but were not successful.

Cancellation of a court decision declaring a citizen dead

What are the consequences of the appearance of a citizen declared dead? The law allows for the possibility of making an error and allows the court to reverse its decision if a citizen declared dead appears.

This can only be done in court. It is on the basis of a court decision that the death record of a given person is annulled.

The application can be submitted by either the citizen himself or an interested person.

By appearance, the law means the arrival of a person previously declared dead at his place of permanent residence. And it makes no difference whether the citizen has arrived for good or is going to stay for a while.

Also, the basis for canceling a decision is the discovery of the person’s place of residence. To do this, the applicant must have evidence that the citizen declared dead is in a certain place.

Application to court

To declare (recognize) deceased, an application to the court (not a statement of claim) is drawn up. Any interested person can take the initiative to declare a missing person dead. A statement of claim to declare a citizen dead must be filed with the court at the place of residence of the missing person or at the location of the applicant himself.

When drawing up an application, the main thing you should pay attention to is that the application must indicate the purpose that the applicant is pursuing when taking the initiative to declare the citizen dead. In addition, the application must set out the circumstances that confirm the long-term absence of the citizen, as well as facts and evidence that give reason to assume the death of the person from an accident or death at the hands of unknown persons.

56. RECOGNIZING A CITIZEN AS MISSING AND DECLARING DEAD

Recognizing a citizen as missing and declaring a citizen as dead is possible only by court decision.

Grounds for recognition as missing

– absence at his place of residence of information about his place of stay for 1 year.

Grounds for declaring a citizen dead

– absence of information at his place of residence about his place of stay for 5 years.

If a citizen goes missing under circumstances that threaten death or give reason to assume his death from a certain accident, he may be declared dead within 6 months.

A serviceman or other citizen who goes missing in connection with hostilities may be declared dead no earlier than 2 years from the date of the end of hostilities.

Application for recognition is submitted by interested parties

– persons for whom declaring a citizen missing or declaring a citizen dead may entail legal consequences.

The case is considered at the place of residence or location of the interested person.

Applications to recognize a citizen as missing or to declare a citizen dead are considered in a special proceeding by a single judge.

The application to recognize a citizen as missing or to declare a citizen as deceased must indicate

for what purpose does the applicant need to recognize the citizen as missing or declare him dead, and the circumstances confirming the unknown absence of the citizen, or the circumstances that threatened the missing person with death or giving reason to assume his death from a certain accident must be stated. In relation to military personnel or other citizens missing in connection with hostilities, the application indicates the day the hostilities ended.

The persons involved in cases of declaring a citizen missing or declaring a citizen dead are the applicant and interested parties. These cases are considered with the mandatory participation of the prosecutor.

After examining all the circumstances of the case, the judge makes a decision. Recognition of a citizen as missing entails certain legal consequences: disabled family members have the right to a pension, divorce at the request of the spouse is carried out in the civil registry office, the consent of the absent person to adopt his child is not required.

The decision to declare a citizen dead is the basis for the registration of his death by the registry office.

In the event of the appearance or discovery of the place of residence of a citizen recognized as missing or declared dead, the court, with a new decision, cancels its previously adopted decision. The new court decision is, accordingly, the basis for canceling the management of the citizen’s property and for canceling the death record in the state civil registration book.

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Legal consequences of declaring a citizen dead

The legal consequences of declaring a citizen dead by a court are equivalent to natural death.

The day of death of a person declared dead by the court is the day of entry into force of the court decision declaring the citizen dead, or, at the discretion of the court, the day of the presumed death of the missing person.

The decision to recognize a citizen as missing is based on:

• to open an inheritance;
• to end a marriage;
• to terminate an employment contract with a declared deceased person;
• to terminate the obligations of this person.

The difference between declaring someone dead and establishing the fact of death

Declaring a missing citizen dead, unlike establishing the fact of death, does not entail the termination of his rights and legal capacity, since in fact a person can be alive and carry out all sorts of legally significant operations and transactions at his place of residence. But at the place of his permanent residence, that is, in the locality in which the citizen is declared dead, the same consequences arise for his family members as in the case of the citizen’s death, including the termination of all his obligations.

If a citizen shows up

In the event that a person declared dead turns up, the court, at his request, or at the request of an interested person, cancels the previous decision and makes a new one, which will be the basis for restoring the rights and obligations of this citizen.

He has the right to return, in accordance with the procedure established by law, the property belonging to him, taking into account its safety and on the basis of transfer to third parties. Property transferred free of charge, for example, inherited or transferred into the ownership of other persons under a gift agreement, is subject to return, except for cash and securities. Sold property cannot be returned, with one exception: the person who sold the property is obliged to return it or its value if there are reasonable grounds to believe and it is possible to prove that this person knew that the citizen was alive. If the property of a citizen declared dead became the property of the state and was sold, the cancellation of the decision to declare him dead is the basis for the return of the amount proceeds from the sale of this property.

The dissolved marriage of a person declared dead can be restored in a simplified manner by the joint will of the spouses.

A person has the right to be reinstated at his previous place of employment.

Restoration of a marriage terminated due to a citizen being declared dead

According to Family Law, if a person is declared dead by a court, his marriage automatically ends.

If the citizen appears, the marriage can be restored only by mutual consent of the spouses.

If during the absence of a citizen the spouse registered a new marriage, according to the law it is considered valid.

In the case where the family of a person recognized as deceased received a pension for the loss of a breadwinner, with his appearance they lose the right to these payments.

Judicial practice on declaring dead

Examples of court decisions declaring a citizen dead:

• The application to declare the citizen dead shall be refused.

If you need qualified assistance in resolving issues related to the procedure for recognizing a citizen as deceased, you can contact a reliable civil law lawyer who:

• Conduct detailed oral or written consultation;
• Will help you collect all the necessary documents and draw up a statement of claim in court;
• Will adequately represent your interests in court;
• We will make every effort to successfully resolve your issue.