The court's decision to declare him missing under Art. 42 Civil Code of the Russian Federation

Why is it necessary to recognize a person as missing?

Establishing a legal fact is necessary for various reasons. Here are some of them:

• receiving a pension or benefit from the state;
• deregistration of a deceased citizen;
• registration of a relative at the registration address (owner's consent is required);
• privatization of housing, which citizens use under a social rental agreement;
• distribution of housing to citizens registered on the housing register;
• assignment of orphan status;
• adoption of a child.

Important! Recognizing a citizen as missing is not a basis for his heirs to receive his property. Art. 1113 of the Civil Code of the Russian Federation establishes as the basis for opening an inheritance the death of the owner or recognition of him as dead in court.

Recognition of a citizen as missing: grounds

A citizen of the Russian Federation, at the request of an interested person, may be declared missing by a court decision.

Recognition of a citizen as missing is carried out on the basis of his actual absence at his place of residence of information about his place of stay during the year.

The calculation of this period begins from the day the last information about the absentee is received.

And if it is impossible to establish this day, the period is calculated from the first day of the month following the one in which the last information about the absentee was received.

If it is impossible to establish the exact month in which the latest information about the missing person was received, the period of unknown absence of the citizen begins to run from the first day of the first month of the next year.

The rules for recognizing a citizen as missing are provided for by the Civil Code of the Russian Federation (Article 42 of the Civil Code of the Russian Federation).

Grounds for recognizing a citizen as missing

The main sign of the disappearance of a person is his absence from his last known place of residence for a year (Article 42 of the Civil Code of the Russian Federation). If it is impossible to establish the estimated date of disappearance, then the connection is made to the first day of the next month.

The starting point is the month when information about the disappearance of a citizen was last received. If it is impossible to determine the month, then the first day of the month of the next year is taken as a basis.

What factors are taken into account in court when considering a case of disappearance of an individual?

Courts pay attention to the presence/absence of:

1. Information about the deliberate concealment of a person from the investigation or creditors.
2. Intentions to leave for work or change place of residence to another region/country.
3. A serious illness that could lead to death or memory loss.
4. Personal documents at the residence address, without which the missing citizen cannot do without.
5. Serious conflicts in the family, which could provoke a person to move into rented housing and break off any relationships with relatives.
6. Statements regarding the search for a missing person.
7. Facts of hasty re-registration of property.

The concept and conditions for recognizing a citizen as missing

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

The purpose of recognizing a citizen as missing:

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

Unknown absence is a special legal condition; a judicially certified fact of a citizen’s long absence from his place of residence, if it was not possible to establish his place of residence.

According to para. 1 tbsp. 42 of the Civil Code, a citizen may, at the request of interested parties, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence.

Thus, going to court is called in this case not a claim, but a statement, and the case is considered in a special proceeding (Chapter 30 of the Code of Civil Procedure). The concept of “interested parties” is not defined in the law. According to the law, these include:

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

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

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

Consequences of recognizing a citizen as missing

The main legal consequences of recognizing a citizen as missing:

1. Property owned by such a citizen, if permanent management is necessary, is transferred to trust management. In accordance with the court decision to transfer property into trust management, the guardianship and trusteeship body appoints a manager and concludes a trust management agreement with him. From this property, maintenance is given to citizens whom the missing person is obliged to support, and the debt on other obligations of the missing person is repaid. The law allows the appointment of a property manager for an absent citizen by decision of the guardianship and trusteeship authority and before the expiration of a year from the date of receipt of information about his place of residence, without going to court (Clause 2 of Article 43 of the Civil Code). At the request of interested parties, the guardianship and trusteeship authority may appoint a guardian to protect the property of a citizen if he is absent for less than a year and is not recognized as missing. However, within the meaning of the law, in this case the guardian is appointed only to protect the property and cannot make any payments from it.
2. If a citizen is recognized as missing, the disabled dependent family members have the right to a survivor's pension in accordance with the rules of pension legislation.
3. A power of attorney issued in the name of a missing person, as well as one issued by him himself, is terminated (Article 188 of the Civil Code).
4. The spouse of a citizen recognized as missing has the right to divorce in a simplified manner through the registry office (clause 2 of article 19 of the Family Code).

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

Reasons for refusing an application

Not every fact of disappearance is grounds for recognizing a person as missing. The court must establish the circumstances of the case that led to the disappearance.

If a person simply hides from the investigation or creditors, then the claims will be rejected.

If a person actually disappeared, but the relatives did not take the necessary measures and did not contact the police, then there are also no grounds for satisfying the claims.

Who can initiate legal proceedings

The applicant can be any interested person . Most often, relatives of a missing person – a spouse or children – go to court. However, the application is often submitted by third parties - creditors, local authorities, co-owners of property, co-founders of an enterprise.

Since 2021, such an opportunity has appeared for alimony collectors. The legal representative of a child who has collected alimony from a relative of a minor may apply to the court to declare the payer missing if there is no information about him for more than 1 year.

This allows the child to receive a survivor's pension until the parent shows up.

Example. The court received an application from the City Administration to recognize the citizen as missing. The circumstances of the case are that the missing person is a tenant of social housing. The apartment is municipal property. During the citizen's absence, arrears for utility services arose. The maintenance of the residential premises is carried out at the expense of funds from the local budget. The administration conducted an inspection of the apartment. However, she has not identified persons who can confirm the absence of the missing person at the specified address for more than one year. A corresponding Act was drawn up regarding this. The register of corpses at the city morgue lists a man without documents. There is reason to believe that this is the user of the apartment. Establishment of a legal fact is required for the distribution of housing to citizens. The administration cannot resolve this issue on its own, since the missing citizen is registered in the apartment. The court recognized the claims (Decision of the Kalininsky District Court of Chelyabinsk dated September 14, 2012, case No. 2-3162/2012).

Article 43 of the Civil Code of the Russian Federation. Consequences of recognizing a citizen as missing (current version)

1. Recognition of a citizen as missing, which is discussed in the commented article, entails a number of legal consequences. The property of this person is transferred, on the basis of a court decision, to a person determined by the guardianship and trusteeship authority for permanent management on the basis of a trust agreement (see commentary to Article 38). From this property, maintenance is allocated to citizens who are dependent on the missing person, and debts on other obligations are repaid. Dependents of a missing person acquire the right to receive a survivor's pension. The contract of agency to which the missing person was a party is terminated, as well as the validity of the power of attorney issued by him or her. The spouse of a missing person has the right to divorce him in a simplified manner.

2. As an exception to the general rule, the legislator, in accordance with paragraph 2 of the commented article, establishes the possibility, before a court decision, of the guardianship and trusteeship authority to appoint a manager of the property of an absent citizen, if the one-year period established by the commented article has not expired, but the property, for various reasons, needs in continuous management.

This is a right, but not an obligation of the guardianship and trusteeship authority,

Such measures are necessary to protect the property rights of a missing citizen in order to prevent loss, damage, and theft of his property. Clause 2 of Art. 43 of the Civil Code of the Russian Federation does not provide for the conclusion of a trust management agreement with a manager before a court decision recognizing a citizen as missing comes into force. Because of this, the guardianship and trusteeship authority must take special measures to protect property.

3. Paragraph 3 of the commented article refers to the law when it talks about other consequences of declaring a person missing than those provided for in the commented article. Taking into account the norm of paragraph 2 of Art. Part 3 of the first Civil Code of the Russian Federation (see the commentary to it) refers to both the commented Code and the federal laws adopted in accordance with it. So, according to paragraph 1 of Art. 188 of the Civil Code of the Russian Federation, the power of attorney is terminated due to the recognition of the person as missing.

In addition, the agency agreement (Article 977 of the Civil Code of the Russian Federation), the commission agreement (Article 1002 of the Civil Code of the Russian Federation), the trust management agreement (Article 1024 of the Civil Code of the Russian Federation) and the agency agreement (Article 1010 of the Civil Code of the Russian Federation) are terminated.

Comment source:

“CIVIL CODE OF THE RUSSIAN FEDERATION. PART ONE. ARTICLE-BY-ARTICLE COMMENT"

S.P. Grishaev, T.V. Bogacheva, Yu.P. Sweet, 2019

How to recognize a person or citizen as missing

Establishment of a legal fact is carried out in court. The hearing of the case takes place within the framework of special proceedings.

The hearing of the case takes place at the applicant’s place of residence (Article 276 of the Code of Civil Procedure of the Russian Federation). The key is to have indisputable evidence of the person's absence.

The applicant's assumptions are not taken into account. When submitting an application, you must pay a state fee. Based on the results of the trial, a decision is made to satisfy or reject the stated claims.

Recognition procedure

The applicant needs to prepare a package of documents and apply to the district/city court. The application is submitted at the place of residence of the plaintiff.

The application must consistently state the circumstances of the case and indicate the purpose of going to court. Additionally, you must attach evidence of the stated facts.

If necessary, you can invite witnesses who know about the circumstances of the person’s disappearance. Cases on recognition of citizens as missing are considered necessarily with the participation of a prosecutor (Article 278 of the Code of Civil Procedure of the Russian Federation).

Statement of claim

When drawing up a claim, it is necessary to take into account the provisions of Art. 131 Code of Civil Procedure of the Russian Federation. It establishes the form and content of the application.

At the same time, it is necessary to take into account the specifics of the application, which is submitted in a special proceeding. The key point is to display the reason for recognizing a citizen as missing (Article 277 of the Code of Civil Procedure of the Russian Federation).

The application must indicate:

1. Name of the district court.
2. Information about the applicant/interested parties.
3. Title of the document.
4. Circumstances of the case. For example, a person’s life was in danger or he found himself in a natural disaster area.
5. The purpose of recognizing a citizen as missing.
6. List of attached papers.
7. Date, signature of the applicant.

Sample statement of claim to recognize a citizen as missing

Attached documents

The list of documents depends on various circumstances. For example, how exactly a person disappeared, and where relatives went to find him.

Basic package of documents

Expenses

When filing an application with the court, you must pay a state fee. Its size is 300 rubles. (Article 333.19 of the Tax Code of the Russian Federation).

Additional costs are usually caused by the participation of a lawyer in court proceedings, the invitation of witnesses/interpreter, travel and accommodation costs for third parties (Article 94 of the Code of Civil Procedure of the Russian Federation).

Deadlines

You can file a claim at any time, but not earlier than 1 year after the disappearance of an individual (Article 42 of the Civil Code of the Russian Federation). However, if a person is absent for more than 5 years, then he is declared dead in court (Article 45 of the Civil Code of the Russian Federation).

The period for consideration of the claim should not exceed 2 months (Article 154 of the Code of Civil Procedure of the Russian Federation). However, quite often the hearing of the case is delayed for a longer period.

Adjudication

The hearing of the case ends with the adoption and announcement of a court decision. The procedural document comes into force 1 month after its announcement (Article 209 of the Code of Civil Procedure of the Russian Federation).

However, participants in the trial can challenge the judicial act by filing an appeal. In this case, the court decision comes into force after consideration of the appeal (Article 335 of the Code of Civil Procedure of the Russian Federation).

The procedure for recognizing a citizen as missing

The process is carried out within the framework of a court hearing in accordance with the regulatory provisions of Chapter 30 of the Code of Civil Procedure of the Russian Federation.

Application to a judicial authority

To start the procedure, a written application to recognize a citizen as missing, submitted by persons whose interests are affected by the current situation, is required. The current legislation does not define the list of applicants who have the opportunity to petition the court for this reason.

Thus, the process can be initiated upon the application of a person whose interests or intended goals are directly or indirectly violated in the presence of legal uncertainty.

Examples of stakeholder categories:

• creditors to whom the disappeared person has outstanding debts;
• disabled persons who are dependent on the missing person.

In addition, the procedure can be carried out by:

• bodies and institutions of state and municipal authorities;
• other organizations whose interests and stated goals are affected due to the lack of information about a certain citizen.

Article 276 of the Code of Civil Procedure of the Russian Federation regulates that the initiation of the trial is carried out at the place of residence or at the actual location of the applicant.

The contents of the submitted document are described in Article 277 of the Code of Civil Procedure of the Russian Federation. The written application must contain the following information:

• in order to achieve what task the applicant is applying for recognition of the corresponding status for a citizen;
• a list of circumstances confirming the disappearance.

Arbitrage practice

When filing a claim, the key factor is the availability of undisputed evidence. Failure to provide proper documentation usually results in claims being denied.

One of the common reasons for refusal is that the missing person has not been put on the federal wanted list. At the same time, judicial practice contains many positive decisions.

Example. Citizen Zh. applied to the court to declare her husband missing. The circumstances of the case - the husband went to a neighboring area to harvest wood, but never returned from there. The woman contacted the police. The husband was put on the federal wanted list. Search efforts were unsuccessful. Establishing a legal fact is necessary to register a son in an apartment at the place of registration of the missing citizen. Third parties did not object to the claim. Witnesses confirmed the stated facts. The application was granted (Decision of the Leninsky District Court of Smolensk dated February 18, 2013, case No. 2-1319/13).

Legal consequences of recognizing a citizen as missing

The main consequences of recognizing a citizen as missing:

1. Transfer of property into trust management . If the property of a missing citizen requires trust management, then during the trial the court appoints a manager on the proposal of the guardianship authority (Article 43 of the Civil Code of the Russian Federation).

Property is transferred under a trust management agreement. If necessary, the guardianship authority can transfer the property to the manager before the expiration of 1 year . The trust management agreement is concluded taking into account the provisions of the law.

The transfer of property by agreement does not deprive the owner of the right of ownership (Article 1012 of the Civil Code of the Russian Federation). The trustee must take the necessary legally significant actions in the interests of the beneficiary.

1. Possibility of unilateral divorce . The spouse of a missing citizen can dissolve the marriage through the civil registry office in a simplified manner (Article 19 of the RF IC). The necessary registration actions are carried out by the registration authority at the request of the interested person. A divorce certificate is issued one month after filing the application.
2. Assignment of a survivor's pension . If the missing person had dependents, then such persons are entitled to a pension for their maintenance.

Sample application for recognizing a citizen as missing

IN _____________

(name of court)

Applicant: __________________________

(full name, residence address, telephone, e-mail)

Interested party: ____________

(full full name, residential address,

if known: date and place of birth, place of work, identifier (one of) - SNILS, INN, passport,

driver's license, transport certificate,

telephone, e-mail)

Application for recognition as missing

I am _________ (indicate the relationship of the applicant to the person recognized as missing), who until “___”_________ ____ permanently resided at the address: _________ (full address of the missing person’s place of residence).

“___”_________ ____ city _________ (full name of the citizen) left home and never returned _________ (it is necessary to indicate in detail the circumstances of the citizen’s disappearance).

The measures taken to search _________ (indicate what measures were taken to search) did not produce results. The applicant did not receive information about him for more than a year

Recognition of _________ (full name of the person) is necessary for _________ (indicate the purpose of recognition as missing).

Based on the above, guided by Articles 131-132, 276-277 of the Civil Procedure Code of the Russian Federation,

Ask:

1. Recognize _________ (full name of the citizen) as missing since “___”_________ ____

List of documents attached to the application:

1. Notification of sending (delivery) a copy of the application to interested parties
2. Receipt for payment of state duty
3. Documents confirming that the applicant is interested in recognizing the citizen as missing
4. Certificate from the place of residence of the missing person
5. Certificate from the police department or from bailiffs about search activities
6. Other evidence confirming that the citizen has been missing from his place of residence for more than a year

Date of application “___”_________ ____ Signature of the applicant _______

statements:

Application for recognition of a citizen as missing