A person may be legally declared dead ( declare death in absentia or alleged death law ) although there is no direct evidence of a person's death, such as the discovery of the remains (for example, corpse or skeleton) attributed to that person. Such statements are usually made when a person has been lost for a long period of time and without any evidence that the person is alive - or after a much shorter period but where circumstances surrounding a person's loss strongly support the belief that the person has died (eg. , plane crash).
A statement that someone died resembles another form of "preventive adjudication", such as the declaration's decision. Different jurisdictions have different legal standards for obtaining such declarations and in some jurisdictions the presumption of death law can arise after a person has been lost in certain circumstances and at a certain time.
Video Declared death in absentia
Facts, circumstances, and "balance of probabilities"
In most jurisdictions of common law and civil jurisdiction, it is usually necessary to obtain a court order directing the registrar to issue a death certificate in the absence of a certified physician that the person identified has died. However, if there is any indirect evidence that will lead a reasonable person to believe that the individual has died in the balance of probability, the jurisdiction may agree to issue a death certificate without such an order. For example, passengers and crew of RMS Titanic unsupported by RMS
If there is not enough evidence that death has occurred, it may take longer, because simple absence does not always prove death. The requirement to declare a legally dead individual may vary depending on many details including the following:
- Jurisdiction lived by an individual before death
- Jurisdiction where they are deemed to have died
- How someone is considered dead (murder, suicide, accident, etc.)
- A balance of possibilities that makes it more likely than not that the individual dies
Most countries have a certain period of time (seven years in many jurisdictions of common law) after which an individual is considered dead if there is no conflicting evidence. However, if the lost individual is a significant planter, the court may delay the issuance of a death certificate if there is no real effort to find the missing person. If death is expected to occur in international waters or at locations without centralized and reliable police force or a vital statistical registration system, other laws may apply.
Maps Declared death in absentia
Legal aspects
India
The presumption of death is governed by sections 107 and 108 of the Proof Act, which allows the presumption of death for a person who has been lost for 7 years to be raised in the appropriate process before the court.
Ireland
If there is strong evidence the missing person is dead coronary may request an examination under Section 23 of the Coroner Act 1962. If the Minister of Justice provides an examination then the person may be declared dead legally if it is the result of the examination. Alternatively, an application may be submitted to a high court, usually this after at least 7 years is lost, but may be earlier if there are strong implications of the person's circumstances.
Italy
It takes 20 years in Italy to announce the missing person who died. After ten years of a person's disappearance, a motion to declare a person who is legally dead can be brought to justice. After that, another ten years must pass before the person can finally be declared dead legally.
Polish
The declaration of death in absentia comes from articles 29-32 of the Civil Code of Poland and is carried out as a court sentence. In the general case, 10 years is the period of removal required for the declaration of law, but the following exceptions apply:
- no one is declared dead before the end of the year in which a person becomes 23 years old;
- the disappearance period is reduced to 5 years if the person is 70 years of age or older at the time of the declaration;
- if a person will be a victim of an air or sea disaster or "other extraordinary event", the removal period is reduced to 6 months, but if the vessel may be lost, the start time calculates 1 year after the unspecified date of arrival or 2 years after the last known existence;
- If a person is lost in another life-threatening event (different from the one above), the time period is 1 year since the life-threatening event stops.
The court statements about death in absentia resulted in legal effects prevailing prior to the date of the declaration, and returned to the day of assumed death (as declared by the court).
Russian
According to article 45 of the Russian Civil Code, a person may be declared dead in absentia only by a court decision, for the following reasons:
- He has been missing for 5 years
- If the person disappears in a life-threatening situation, which allows him to die by accident, the person may be considered dead after 6 months
- A military or civilian, who disappears during a military conflict, may be declared dead no earlier than 2 years after the conflict ends
A valid date of death is considered to be the date when a court decision declared a dead person has been made. If a person disappears in a life-threatening situation, the actual day of his disappearance can also be considered a valid date of death.
The death claim in absentia by the court has the same legal consequences as if the fact of death is proven:
- People depend on being eligible for state pension
- Assets can be inherited
- If the person is married, marriage is legally ended
- Personal liability terminated
If the decision is a mistake and the person then returns, the decision is canceled and the person is entitled to request most of his assets back. However, if the husband or wife of the person remarries, the marriage will not be restored. Funds and securities, taken under bona fide conditions, also can not be reissued.
United Kingdom
England and Wales
Before 2013
English law generally considers a person to die if, after seven years:
- There is no evidence that they are still alive.
- People who most likely have heard of them have no contacts.
- Questions made by that person did not work.
This is a commonly denied contention in common law - if the person then appears, the law no longer considers them dead.
Otherwise, the court may grant the applicant permission to swear that a person has died (within or after a period of seven years). For example, an executor can create such an application so they can be given a will for a will. Such applications will only be made faster than seven years where deaths may occur, but uncertain (such as unfinished plane crashes at sea), after inspection (see below). Such applications are specific to the courts where they are made - so separate applications must be made on coronary examination, for the process under the Matrimonial Cause and the Civil Partnership Story (for remarriage), for the will, and under the Social Security Act.
Presumption of Death Act 2013
These processes are not considered satisfactory, so in February-March 2013, the Presumption of Death Act 2013 was passed to simplify this process. The new act, based on the 1977 Presumption of Death (Scotland) Act, allows appeals to the High Court to declare a person who is considered dead. This statement is conclusive and can not be appealed. It is recorded on the Promised Death List, and has the same effect as the registration of death. Death must occur on (a) the last day they can live (if the court believes that they are dead), or (b) the seventh day after their last date is seen (if death is considered by the time elapsed).
In England and Wales, if the authorities believe there should be an inquiry, the local coroner will send a report. This can be done to help families receive death certificates that can bring some closure. The inquiry seeks to bring suspicious circumstances into the light. The coroner then applies to the Secretary of State for Justice, under the Coroner Act 1988 section 15, for a bodyless examination. The seven-year rule only applies to the Court of Appeal on the completion of a plantation. According to a Justice Department spokesman, the number of requests received each year is less than ten, but few are rejected. Without bodies, the examination depends on the evidence provided by the police, and whether senior officers believe that the missing person is dead. One of the famous people suspected to have died under the Act is the 7th Earl of Lucan (Lord Lucan), who last seen alive in 1974 (although there are many alleged sightings since then), and whose death certificates were issued in February 2016.
The suspected death incidence in England and Wales is considered low - in September 2011, it is estimated that only 1% of the 200,000 people lost each year remain not found after 12 months, with a cumulative total of 5,500 missing people in September 2011.
Scotland
In Scotland, the legal aspects of death in absentia are described in Presumption of Death (Scotland) Act 1977 . If a person resides in Scotland on the last known date of life, the authorities may use this action to declare a person who is legally dead after a standard seven-year period.
United States
The US Constitution stipulates that all forces that are not explicitly or implicitly assigned to the federal state are reserved for the 50 united states. The declaration of the disappeared as a legal death so that it is under the jurisdiction of the state unless there is a reason for the federal government to have jurisdiction (for example the party is lost military personnel while on active duty). Otherwise, there are 57 US jurisdictions consisting of the United States, each of which has its own law on the question.
People who disappear are usually called missing , or sometimes absent . Some criteria are evaluated to determine whether a person can be declared dead legally:
- The party usually must have been lost from home or residence for a long period of time, most often seven years
- Their absence must be continuous and unexplained (ie the person does not say they have found a new job and are moving away)
- There must be no communication from the party with the people most likely to hear from them during the period the person has disappeared
- There must be a diligent but unsuccessful search for people and/or diligent but unsuccessful examinations into their existence.
Professor Jeanne Carriere, in "The Rights of the Living Dead: Absent Person in Private Law" (published in the Louisiana Law Review), states that in 1990, the number of such cases in the United States. estimated between 60,000 and 100,000. Often the missing person's bank account is checked for activity, and observations that may be investigated.
According to Edgar Sentell, a retired senior vice president and general counselor of the Life Insurance Company of the Southern Life Bureau, almost all countries recognize the presumption of death, by law or the judicial recognition of common law rules. Some states have changed their laws to reduce the seven-year period to five years in a row, and some, such as Minnesota and Georgia, have reduced the period to four years.
If a person disappears, those interested can petition them to be declared legally dead. They must prove by the above criteria that the person is actually dead. There are constitutional restrictions on these procedures: The presumption must arise only after a reasonable period of time has elapsed. The absentee should be notified. The court allows publication of claims by publication. Adequate security of property provisions should be made in the event that an absent person appears.
Some countries require those who receive the assets of a lost person to return it if the person is still alive. If a person is declared dead when only lost, their property is distributed as if they were dead. In some cases, the assumption of death can be denied. According to Sentell, the court will consider evidence that the absentee is a fugitive from the court, has money problems, has a bad relationship, or does not have family ties or community ties as an excuse not to consider death.
A person can be declared dead legally after they are exposed to "imminent danger" and fail to return - as in a plane crash, as depicted in Cast Away film. In these cases the court generally considers the person killed, although the usual waiting time to declare a deceased person has not passed. Sentell also said, "The element of danger speeds up the presumption of death." This rule was imposed after an attack on the World Trade Center, so the authorities could issue death certificates. Although people who allegedly died sometimes live again, it's not as common as it used to be. In one case where this happened, a man named John Burney disappeared in 1976 while experiencing financial problems, and then reappeared in December 1982. The company and his wife had received death benefits - so, on return, the life insurance company sued him. , his wife, and his company. In the end, the court decided Burney's actions were cheating.
Chinese People's Republic
Chinese law treats death declarations and disappearances differently. Relevant provisions can be found in Section 3 ( Declaration on Disappearance and Death Statement ), Chapter 2 ( Natural People ) of General Provisions of the Civil Code of the People's Republic of China promulgated on year 2017.
In the case of a declaration of disappearance, in which the natural person has been lost for two years, the interested party may file a petition to the people's court for a declaration of absence of a natural person. The period of natural disappearance will be counted from the day he or she is not heard. If a person disappears during a war, the period of disappearance must be calculated from the day when the war ends or from the date of absence as defined by the relevant authorities.
As for the declaration of death, where a natural person falls under one of the following circumstances, an interested party may apply to a people's court for the declaration of death of natural persons: (1) natural persons have disappeared for four years; (2) The natural person has disappeared for two years from an accident. Where a person has disappeared from an accident, and it is impossible for a person to survive an accident certified by the relevant authority, the application for a declaration of death of that person is not subject to a two-year period.
In the case of conflicting applications for the declaration, meaning that both applications for death statements and applications for the declaration of the absence of the same natural persons are filed by parties concerned with the people's courts, the public court shall declare the death of the person if the conditions for death statements as set out in This law is fulfilled.
Chinese law specifically speaks of the return of the absent. The validity of declarations of previous declarations of death is not threatened by the facts behind the truth. Absentees or interested parties (or parties) must file a request for revocation of the declaration's decision, it may be canceled. The legal consequences of lifting the declaration decision are basically about recovery, namely the return of property and the restoration of marriage. The Chinese legislator made a rather strange choice to return the marriage between the absent and her spouse, on condition that the couple is not married yet or expressed unwillingness to return the marriage. This is very unusual among legal regimes around the world.
Reappearance
Source of the article : Wikipedia
0 Comments