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The lack of information about a citizen, his place of residence, data on activities, place of work or any other data with which one can determine the existence of this person is a reason to recognize him as missing. This procedure is regulated by Chapter 30 of the Code of Civil Procedure of the Russian Federation and Article 42 of the Civil Code of the Russian Federation.
Grounds for recognizing a citizen as missing
For a person to be declared missing, two mandatory conditions must be met:
- The potentially missing person has not been seen at his/her place of residence for 1 year or more.
- All acquaintances or relatives do not have information about the current location of the specified person and there is no way to determine this location.
If both conditions are met, you can file an application with the court to declare the person missing.
A person hiding from justice or for any other reasons (for example, evading alimony or paying a debt) cannot be recognized as missing.
It should be borne in mind that relatives or interested parties may not be aware of the reasons why the citizen is hiding. This is not a valid reason. If during the trial the true reasons for what happened “come to light”, no decision will be made.
Example : Ivan Ivanovich goes on a business trip and no longer gets in touch. His search turns up nothing. After waiting a year, his wife Maria submits an application to the court to be declared missing, but it is denied. As it turns out, right before his business trip he was accused of bribery on an especially large scale. There is speculation that he is now in hiding.
Consequences for the missing person
Recognizing a subject as missing carries a number of legal consequences for him that must be remembered. They can be of two types.
Intangible
This category includes consequences related to the protection of citizen rights (labor, personal, constitutional). This includes other personal consequences that are not legal.
Material
This refers to situations that have financial consequences for the disappeared person:
- transfer of property to trustee bodies for management.
- privatization of material assets belonging to the subject.
- official divorce.
- adoption and other situations that allow children to be taken away for upbringing.
- maintenance of citizens who are dependent on the missing person, etc.
It is worth considering that these decisions are canceled if a person appears.
How to recognize a person or citizen as missing
To recognize a citizen as missing, a court decision is required. Even if the authorized bodies (for example, the police) conducted an investigation and really did not find any information about the location of the wanted person, this is only evidence for the court.
Recognition procedure
- Determine when the last time anything was known about the person.
- From this moment, count the year (for more details on the timing, see below). You must also file a police report. It will be needed in court later.
- If during this period the citizen does not show himself in any way and at the same time he is not hiding from justice, debts or alimony, he can file an application to the court.
- Pay the state fee.
- Submit an application to the court with attached documents and evidence.
- The judge will determine the circle of persons capable of providing any information about the location of the potentially missing person and will request relevant information from government agencies.
- The application is being considered in court. The prosecutor must be present at the meeting.
- By decision of the court, the guardianship authorities appoint a property manager for the missing person (see below for more details on the consequences).
Who can file a lawsuit
Interested persons can file a claim in court, but there is no clear wording in the law of who this could be. Based on the general principle and similar situations, it can be assumed that the following fall under this category:
- Relatives of the missing person.
- Creditors.
- Heirs under the will (if there is one).
Statement of claim
Mandatory elements that must be present in such a document:
- The name of the court in which the claim is filed. Placed in the upper right corner.
- Below are the details of the plaintiff and/or interested party. In this case, it is understood that a representative of the interested party can file a claim.
- The title of the document is written in the middle.
- Next comes the text of the statement itself. It describes the situation when a person disappeared and the actions taken to search.
- A request to recognize him as missing and an indication of why the applicant needs this. If the plaintiff does not have any motive for recognizing the person as missing, the court may refuse to consider the case.
- List of witnesses.
- List of attached documents.
- Signature and date.
The application can be submitted to the court in person or sent by registered mail with notification.
Attached documents
The following package of documents must be attached to the statement of claim:
- Passport or other documents (if any) confirming the identity of the missing citizen.
- Documents confirming relationship (for applicants who are relatives). For example, a birth or marriage certificate.
- A statement to the police, as part of which the search for the missing person was carried out.
- The result of the police search.
- Certificate of the last known place of residence of the disappeared person.
- Confirmation of the fact that the missing person is not wanted for committing crimes.
- Witness interviews.
- Certificate from last known place of employment.
It is recommended to prepare copies of all documents, including statements, one copy for each person participating in the meeting.
Which court should I apply to?
In Art. 276 of the Code of Civil Procedure of the Russian Federation states that it is necessary to submit an application to the court at the place of residence of the interested person. Even if the missing person was last in touch from another city, region or even country, the case will be considered exactly where the applicant is located.
Expenses
There will be only one official payment - state duty. It will be 300 rubles (Article 333.19 of the Tax Code of the Russian Federation). There are no additional costs, but the applicant has the right to take any actions (including paid ones) to search for the missing person. For example, hire a private detective. This will cost from 5 thousand rubles and more, depending on the region of search and the actions taken.
Deadlines
If it is impossible to establish a specific date when the potentially missing person was last contacted, 1 year should be counted from the first day of the month following the last information about the missing person was received. If it is impossible to determine the month, then the countdown begins on January 1 of the next year.
If a person is declared missing, another 5 years can be counted. After this, he can be recognized as dead.
Example : The last time Maria communicated with her husband Ivan was in April 2021. However, later, in June, he got in touch again and talked to the children. The year must be counted from the first of July (the next month after the one in which the person supposedly disappeared).
Commentary on Article 42 of the Civil Code of the Russian Federation
1. The absence of a citizen at his place of residence (Article 20 of the Civil Code) may remain a matter of fact, but it may become the basis for recognizing him as missing (Articles 42 - 44 of the Civil Code) and declaring him dead (Article 45 - 46 of the Civil Code), if, in conditions of factual uncertainty of his location, legal certainty in relations with his participation is important. Both of these legal procedures, taking place in the regime of special judicial proceedings, give rise to different substantive legal consequences and are not related to each other: a citizen recognized as missing may not subsequently be declared dead (if the consequences of recognizing him as missing ensure the achievement of all necessary goals, and also because he may appear or be discovered - Article 44 of the Civil Code), in turn, declaring a citizen dead is not due to the need to first recognize him as missing. Rules Art. Art. 42 - 44 and 45 - 46 of the Civil Code apply to any citizen, regardless of age and scope of legal capacity. Procedural issues of recognition as missing and declaration as dead are uniformly regulated by Chapter. 30 Civil Procedure Code.
2. Article 42, dedicated to recognizing a citizen as missing, contains a general rule on the possibility of applying this measure (Part 1) and formulates the rules for calculating the period for its application (Part 2). An application to recognize a citizen as missing is submitted to the court at the place of residence (location) of the applicant, who must indicate the purpose and set out the circumstances confirming the missing absence. After accepting the application, the judge may invite the guardianship and trusteeship authority to appoint a property manager for the absentee. When preparing a case for trial, the judge finds out who can provide information about it, asks the housing organization at the last known place of residence and work, internal affairs bodies, and military units about the information available about it. The prosecutor participates in the consideration of the case (Articles 276 - 278 of the Code of Civil Procedure).
Recognition of a citizen as missing is based on the factual composition of the following legal facts: a) the absence of a citizen at his place of residence; b) the absence for one year of information about his place of residence and the impossibility of obtaining it through various measures - factual and legal (including procedural); c) appeal of interested parties to court; d) a court decision recognizing a citizen as missing. The latter establishes and states the fact of his absence in court, and since this fact is irrefutable even by the subsequent appearance (detection) of the citizen, the measure itself is not associated with any presumption.
3. To recognize a citizen as missing, a single period is established - one year (Part 1 of Article 42) and different rules for calculating it: a) if the day of receipt of the last information about the missing person is known, it is calculated from the next day; b) if the day of receipt of the latest information cannot be determined, it is calculated from the 1st day of the month following the one in which the last information about the absentee was received; c) if it is impossible to determine the month of receipt of the latest information, it is calculated from January 1 of the year following the one in which the latest information about the absent person was received (Part 2 of Article 42). The same rules are used to calculate the 5-year period when declaring a citizen dead in absence in Art. 45 of the Civil Code (Clause 1, Article 6 of the Civil Code).
Arbitrage practice
In most cases, the court recognizes a citizen as missing, provided there is evidence that he really has no contact, does not live anywhere, and the police could not find any information about the person. Let's look at a couple of cases from judicial practice.
Example : Tver region. Case No. 2-759/2017 dated 09.11.2017. A woman files a lawsuit on the grounds that her children’s husband, who previously paid alimony, suddenly stopped doing so and there has been no information about him for 4 years. She needs court recognition in order to receive a survivor's pension. During the trial, the fact of the husband's absence is confirmed. He does not live at the registered address, is not undergoing treatment, there is no information in Rosreestr about the missing person’s other property, he does not appear in the employment center and does not officially work anywhere. Court decision: satisfy the plaintiff's application.
Example : Krasnoyarsk region. Case No. 2-497/2017 dated October 25, 2017. The application is submitted by the adoptive mother of children whose blood relative, who previously paid alimony, does not get in touch. A court decision is required to receive a survivor's pension. As a result of searching for information, it turned out that the allegedly disappeared person lives at a different address. Court decision: to reject the application.
Another commentary on Article 42 of the Civil Code of the Russian Federation
1. The main purpose of recognizing a citizen as missing is to protect his rights and preserve his property, because the prolonged absence of a person and the uncertainty of his whereabouts pose a threat to these rights. The interests of his creditors, as well as those dependent on him, also suffer. To recognize a citizen as missing, it is necessary to establish two facts: 1) his constant absence during the year from his place of residence (see Article 20 and commentary thereto) and 2) the lack of information about his place of residence and the impossibility of establishing this place.
2. The procedure for recognizing a person as missing is determined by Art. 276 - 280 Civil Procedure Code. An application to the court is submitted by the interested person at his place of residence. Whether the applicant is an interested party is determined by the court; the application must indicate for what purpose it is necessary to recognize the citizen as missing. The applicant and the court take measures to establish the citizen’s place of residence and find out when the last information about him was received. In relation to military personnel or other citizens missing in action in connection with hostilities, the application indicates the date of the end of hostilities. The court considers the case in a special proceeding with the mandatory participation of a prosecutor. If the decision is positive, the beginning of the calculation of the period for recognizing a citizen as missing is determined by the calendar date according to the rules of Part 2 of the commented article.
Legal consequences of recognizing a citizen as missing
- If the missing company has a manager, a manager is appointed.
- If there are persons who needed to be supported, they are paid an allowance.
- All debt is repaid.
- It is not allowed to sell or inherit property that has disappeared until it is declared dead.
- The housing remains the property of the missing person and his family.
- Payment of utilities and other obligatory payments for the property of the missing person is made by the family of the missing person or, if there is none, by the representative of the guardianship authorities.
- Minor children of the missing person receive benefits for the loss of a breadwinner. Adoption is possible.
- Payments of pensions and other payments from the state are stopped.
Legal consequences
- A survivor's pension is issued for the disabled dependents of the missing person;
- The spouse can dissolve the marriage by presenting a court decision;
- Debts to creditors are repaid from the property of the missing person;
- Debts for alimony or simply loans are also issued from the property of the missing person;
- The missing person can be discharged from the apartment based on a court decision;
- The remaining property is transferred to a trustee for permanent management;
- 5 years after a citizen is recognized as missing, he can be declared dead and the remaining property can be inherited.
If a person was discovered
A citizen who has previously been declared missing regains all rights to his property and due payments. Moreover, if more than 5 years have passed since the disappearance and he is already declared dead, he is reinstated by government authorities and at the place of registration. Also, he can demand from the heirs all the property that has passed to them.
Example : Ivan Ivanovich returns home after a year and a half. As it turned out, he lost his memory as a result of an accident and all this time he lived in a remote village, sincerely believing that he came from somewhere in these places. A year and a half later, his memory has returned and he is going home. All previously acquired property is waiting for him there.
Preparing documents, working with the police and the court can be a serious problem for a non-specialist. We offer a free consultation where we will answer all difficult questions. We are also ready to take on all the problems of the process of recognizing a person as missing, including documentation and work with government agencies.
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