How and why is an application for declaring a citizen dead? What features are provided by law for this procedure? They are aimed at protecting the rights and interests of all who find themselves in such a situation.
Fixation of human death
The death of a person gives rise to certain consequences. However, what to do if there is no exact certainty that a person is alive?
There are many cases that need to be resolved or settled after his death, especially when it comes to children or property. Paperwork is not difficult if a death certificate is issued. If he is not there, all questions become unsolvable. In this regard, the law allows the submission of an application for the recognition of a citizen as dead.
Legislative regulation
The Civil Code lists all the reasons for considering a person dead. The Code of Civil Procedure describes the procedure for considering applications of this kind. The application for the recognition of a citizen as deceased is examined according to the rules of special proceedings, which gives the court the right to take the initiative in seeking evidence, calling witnesses. The court is not limited to the arguments set forth in the application. In addition, the court’s refusal to acknowledge the fact gives the right to appeal again to the court.
A feature of the review is the participation of the prosecutor and the mandatory conclusion of the case.
Reasons to consider a person dead
All grounds are listed in Art. 45 GK:
- the citizen is absent for 5 years in the place of his stay, there is no information about where he is, what is with him;
- the term is reduced to 6 months if there was a threat to life or an accident (natural disaster, terrorist attacks, accidents, etc.);
- a soldier who disappeared in the area of hostilities after 2 years from the date of their completion.
An application for the recognition of a citizen as dead is submitted in cases stipulated exclusively by the provisions of the Civil Code.
Death Recognition Procedure
Where is the application for declaring a citizen dead? To court. Only she has the right to solve this problem. An application is drawn up in accordance with the Code of Civil Procedure. The case is considered solely by the judge. Neither the prosecutor nor the police have such powers. They only provide assistance within their authority.
Who has the right to appeal to a judge
The Code of Civil Procedure indicates persons at their location or residence. This refers to legal entities and citizens who are interested in resolving some difficulties. As a rule, relatives, spouses. They are most affected by the fact that a person is missing. There are questions about the termination of marriage, the disposal of property, the placement of children (with whom and where they will continue to live), the receipt of a pension for the loss of the breadwinner.
An employer or lender may be of interest. The first, for example, needs to resolve problems with the employment of a former employee. The municipality decides the fate of property that has been left unattended (land, houses).
Guardianship authorities or prosecutors go to court if children are left without parents or guardians. Thus, a statement of recognition of a citizen as a deceased is entitled to be submitted by a person with a personal or public interest (authorities).
What evidence is presented?
In the framework of the trial, documents obtained from the authorities or witness statements are used. Basically, the case is resolved on the basis of documents. And the witnesses provide additional, clarifying information. However, their words are not replaced by papers.
The absence of documents or incomplete data and slurred testimonies of witnesses are the reason for the refusal of the application, no matter how it was drawn up.
Where to get documents?
First of all, the applicant needs to achieve the opening of a police search case. With its help, the fact of the loss of a person is officially confirmed. Field investigators interview neighbors, acquaintances, relatives, make inquiries to various bodies that can provide at least some information (a pension fund, social funds, where deductions from income are made).
Duration of business is determined by the duration of the absence of the person. In the case of military personnel, the situation is somewhat different. Confirmation of a person’s loss is given, first of all, by the military command and control bodies (unit commanders, military commissariats). They issue documents on the official direction of the citizen to the area where hostilities were fought.
The fact of hostilities is confirmed by official documents (the law "On Veterans", which lists the conflicts in which the Russian Federation took part, Presidential Decrees on the introduction and withdrawal of troops).
Papers regarding accidents, natural disasters, rescue operations in the respective areas are issued by the Ministry of Emergencies.
Witness statements
They are eyewitnesses who were directly at the scene of the event or they knew something from other people's words and they can indicate the source of awareness. Another group of witnesses is neighbors or relatives: they confirm that the person is really not in his place of residence, there is no news from him, etc.
How to write a court appeal?
How to draw up a declaration recognizing a citizen as dead? The sample posted in the article is suitable for those who are not able to contact a lawyer. Note that the circumstances of the cases, despite their similarities, are different, so you should carefully consider rewriting the text.
Case study
Consider the example of an application for the recognition of a citizen as dead. Citizen G. asks the court to recognize her husband dead, since he disappeared more than 5 years ago. The marriage between them was concluded 10 years ago. The applicant and the missing woman have a common daughter, who is 10 years old. A copy of the marriage and birth certificate is attached.
In response to the appeal to the police, a search case was instituted, however, measures by the police did not produce results. As witnesses, the applicant asks to call the mother-in-law - the mother of her husband, as well as the residents who have been living in the neighboring house for more than 15 years.
Inquiries were sent to the Pension Fund, social funds, but there is no information there, responses to the requests are attached. Extracts from the house book and the search file are attached.
A court decision is necessary to obtain a pension for the loss of a breadwinner and inheritance property.
Statement Structure
Here is a list of the necessary points of the statement:
- The name of the court to which the application is submitted (city or district, justices of the peace do not deal with such cases).
- The applicant's full name, place of residence or location.
- Name of the interested parties (children, if the application is submitted by the mother or one of the relatives).
- Indication of the city or district prosecutor's office (she certainly participates in the case).
- Indication of local guardianship department if children’s interests are affected.
- A statement of circumstances, facts in chronological order, a reference to the available documents, witness statements, a description of the actions taken by the applicant.
- Reason for applying (pension, termination of marriage, etc.).
- Request to the court for recognition of the fact.
- The list of attached documents.
- Receipt of payment of duty.
If the application does not ask for the date of death to indicate the day the person was actually lost, that day will be the date the court decision comes into force.
Papers are submitted in at least 2 sets: one for the court, the second for the prosecutor. If someone else’s interests, including guardianship authorities, are affected, sets of copies are also prepared for them.
And one more thing: using the model of the statement of claim on the recognition of a citizen as dead, you should call your document simply a statement.It is not a lawsuit, although people often call it that.