See more
Publication date: 24.05.2024
lawyer, 23 years of experience in enforcement.
Recognition of a person as missing and missing under special circumstances
With the beginning of the full-scale Russian invasion of Ukraine, the lives and well-being of tens of thousands of people were threatened by the actions of the Russian invaders, and it is impossible to establish the whereabouts of many citizens of our country today.
According to the decision of the Supreme Court in case No. 225/1297/17, the establishment of an unknown absence of a person is a judicial certificate of a long-term absence of a physical person from his place of permanent residence, provided that it was not possible to establish his whereabouts (residence).
It is worth noting that today there are two statuses of a missing person, namely:
- A person who has disappeared is a natural person about whom there is no information about his whereabouts at the time the applicant submits an application for his search.
According to part three of Article 43 of the Civil Code of Ukraine (hereinafter, the Civil Code of Ukraine), the procedure for recognizing a natural person as missing is determined by the Civil Procedural Code of Ukraine (hereinafter, the Civil Procedure Code of Ukraine). Until the fact of a person's absence is established in accordance with the procedure established by law, it is considered that the person is exercising his rights and obligations.
- A person who has gone missing under special circumstances is a person who has gone missing in connection with an armed conflict, hostilities, temporary occupation of a part of the territory of Ukraine, natural or man-made emergencies.
The legal status of persons missing under special circumstances is determined by the Law of Ukraine "On the Legal Status of Persons Missing under Special Circumstances" (hereinafter - the Law) and other laws of Ukraine, as well as international treaties of Ukraine, the binding consent of which has been granted by the Verkhovna Rada of Ukraine.
ТекстI would like to draw your attention to the fact that despite some similarity of the specified concepts defined by the national legislation of Ukraine, there are significant differences in the corresponding legal statuses. In particular, the legislation defines various methods of their acquisition. Yes, a natural person can be recognized as missing only in court. In turn, a person acquires the status of missing from the moment of entering the information about him, contained in the statement about the fact of disappearance, into the relevant Register.
The legal status of missing persons is determined by the provisions of Art. 43 of the Civil Code of Ukraine, if during one year there is no information about her whereabouts in her place of permanent residence. According to part 2 of the mentioned article, if it is impossible to establish the place of stay of a natural person, the beginning of his/her unknown absence is considered to be the first day of the month following the one in which such information was received, and in case of impossibility to establish this month, the first day of January of the following year.
Article 306 of the Civil Procedure Code of Ukraine establishes a list of facts that must be specified in the application to declare a person missing.
The procedure for recognizing a natural person as missing is established by the Civil Procedure Code of Ukraine.
According to Art. 305 of the Civil Procedure Code, the application is submitted to the court at the place of residence of the applicant, at the last known location of the absent person, or at the location of his property.
In accordance with Part 2 of Art. 293 of the Civil Procedure Code, the court considers the case of recognition of a natural person as missing in a separate proceeding.
When a person is recognized as missing, the presumption is that the person is alive, but it is impossible to establish his whereabouts at this time, and this presumption is rebuttable. Moreover, the court's recognition of a natural person as missing (Article 43 of the Civil Code of Ukraine) in no way indicates the death of such a person, nor does it exclude the very possibility of death. This causes the simultaneous presence of two assumptions regarding two mutually exclusive life states of an unknown missing physical person (the person is alive, the person is dead).
At the stage of preparing the case for consideration, the court takes measures to establish guardianship over the property of the missing person.
As long as the fact of the person's absence is not proven in accordance with the procedure established by law, it is assumed that the person is exercising his rights and obligations (provides for his family, pays taxes, etc.). The entry into force of a decision to declare a natural person deceased has the consequences of terminating obligations related to the identity of the missing person, as well as, on the contrary, the availability of additional rights for the family of such a person (for example, the right to a simplified divorce procedure) .
So, as can be seen from the above, in order to settle the issue of determining the status of a missing person, it is advisable to get the services of a lawyer or sound advice of a lawyer.
Legal service "Consultant" provides all types of legal services, including online legal services. Specialists of our service will make a legal analysis of the situation to determine the procedure for obtaining the status of a missing relative and will help collect the necessary documents and, if necessary, accompany the court process.
