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Publication date: 26.05.2024
lawyer, 23 years of experience in enforcement.
Difference between statuses: "PERSON MISSING" AND "ACQUISITION OF THE STATUS OF A PERSON MISSING"
As Russia launched a full-scale invasion of Ukraine, the actions of the Russian invaders posed a serious threat to the lives and well-being of tens of thousands of people. In cases where people lose contact with their loved ones, it is important to establish the legal status of those whose whereabouts remain unknown.
If the person's whereabouts are unknown at the time of the search request, the person is classified as missing. The criteria for officially recognizing a person as missing are defined by Article 43 of the Civil Code of Ukraine. The Civil Procedure Code of Ukraine regulates the procedure for recognizing a natural person as missing. Until the absence of a person is established by law, it is assumed that he is actively exercising his rights and fulfilling his duties.
When a person disappeared under unique circumstances, it refers to the situation when he disappeared in connection with an armed conflict, hostile acts, temporary occupation of a part of the territory of Ukraine, or natural and man-made emergencies. The legal capacity of persons who have disappeared under these circumstances is established by the Law of Ukraine "On the Legal Status of Persons Disappeared Under Special Circumstances" (hereinafter - the Law), as well as other laws of Ukraine. and international treaties, which have received approval for issuance by the Verkhovna Rada of Ukraine.
It is important to note that, despite the fact that the concepts set forth in Ukrainian national legislation may be somewhat similar, there are notable differences in their respective legal statuses. In particular, the legislation defines various procedures for obtaining these statuses. For example, the status of a missing person can only be officially recognized by a court. Conversely, a person is considered missing from the moment the information about him, specified in the notice of his disappearance, is entered in the relevant Register.
According to Article 43 of the Civil Code of Ukraine, a person may be recognized by the court as missing if there is no information about his whereabouts at his place of permanent residence within one year. In addition, the second part of this article establishes that if the exact date of receiving the last information about the person's whereabouts cannot be established, the unknown absence is considered to have started on the first day of the month following the date of receiving the information. received If it is impossible to determine the month, then it is considered to have started on the first day of January of the following year.
According to Article 4 of the Law, if information about a missing person is entered into the Unified Register of Persons Disappeared Under Special Circumstances, such a person is recognized as missing under special circumstances in accordance with the established procedure. This status is granted from the moment the applicant submits an application confirming the fact of the person's disappearance. A person is considered missing under special circumstances until the search for him is completed, as provided by the Law of Ukraine. This concerns the legal status of persons who have disappeared under special circumstances.
Under special circumstances, if a person is recognized as missing in accordance with this Law, this does not deprive his relatives or other persons of the right to request the court to recognize him as missing or dead in accordance with the legal procedure (part three of Article 4 of the Law). In addition, part four of Article 4 of the Law establishes that if a person who has disappeared under special circumstances is declared dead, but the exact whereabouts, burial place or location of his remains are unknown, the search measures provided for by this Law must be continued. until their location, place of burial or location of their remains is established.
Chapter 4 of Section IV of the Civil Code of Ukraine defines the specifics and instructions of courts when considering cases of recognition of a natural person as missing. According to Article 305 of the Civil Code of Ukraine, persons claiming to be recognized as a missing person must submit an application to the court at their place of residence or at the last known place of residence (stay) of the missing person. persons, or alternatively, in the place where their property is located.
An application to recognize a natural person as missing, as specified in Article 306 of the Civil Code of Ukraine, must contain certain information. It is necessary to indicate the purpose for which the applicant requests to declare a person missing or to declare him dead. In addition, the statement must contain details about the circumstances that support the opinion that the person is missing, or the circumstances that indicate the potential danger or death of the missing person, or the circumstances that indicate his death as a result of a specific incident.
The first part of Article 307 of the Civil Procedure Code of Ukraine stipulates that before opening proceedings in the case, the court must find out the persons (relatives or employees) who have information and can testify about the whereabouts of a person whose whereabouts are currently unknown. In addition, the court is obliged to demand from the relevant organizations, for example, housing and operating organizations, bodies of registration of the place of residence of citizens, local self-government bodies, information about the last known place of residence and work of the citizen. missing person
At the same time, the court takes measures using guardianship and guardianship authorities to establish guardianship over the property of a person whose location is unknown, if guardianship over his property has not yet been established (in accordance with the second part of Article 307 of the Criminal Code). Order of Ukraine). After the court makes a decision to officially recognize a natural person as missing, as specified in the first part of the mentioned article, the notary at the last place of residence processes his property and establishes guardianship over it.
It is important to know that Article 44 of the Civil Code of Ukraine defines actions to establish guardianship over the property of a person who is recognized as missing. The appointed guardian is responsible for fulfilling civil obligations on behalf of the missing person, repaying debts at the expense of his property and disposing of property in his interests (according to the third part of Article 44 of the Civil Code of Ukraine).
In the event that a natural person is recognized as missing or missing under special circumstances, the guardian of his property, as provided for in Article 44 of the Civil Code of Ukraine, is responsible for the material support of his dependents. This assistance is financed from the property of the missing person. However, in the case of annulment of the court decision on recognition of a person as missing or the appearance of a missing person under special circumstances, the guardianship of property is terminated, as specified in the fifth part of Article 44 of the Civil Code of Ukraine.
It is important to note that according to the third part of Article 26 of the Law of Ukraine "On the Legal Regime of Martial Law", in cases where the courts within the zone of martial law cannot administer justice, the laws of Ukraine have the right to change the territorial jurisdiction of court cases.
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.
