Commentary to article 31. Declaring a citizen dead The Civil Code of the Republic of Kazakhstan
The law connects the possibility of declaring a citizen dead with a fairly reliable assumption about his death.
The procedure for such an announcement is determined by a special chapter of the CPC (Chapter 28).
Declaring a citizen dead should be distinguished from recognizing the fact of a citizen's death, although a judicial procedure has been established for both cases.
The establishment of the fact of a person's death, unlike declaring a citizen deceased, is not regulated by the Civil Code. The procedure for establishing the fact of death is defined in the CPC (Chapter 27 "Establishing facts of legal significance"). The court establishes such a fact when there is evidence of the death of a citizen at a certain time and under certain circumstances, but the civil registration authorities refuse to register the death (paragraph 7 of art. 244 of the CPC). When establishing the fact of death, it is not necessary to comply with the deadlines set by the commented article for declaring a citizen deceased.
Declaring a citizen dead does not require prior recognition of his missing person, just as the existence of a court decision declaring a citizen missing does not prevent the consideration of a case on declaring him dead.
The commented article establishes general and special grounds and deadlines for declaring a citizen deceased.
The general grounds and the general term are provided for in paragraph 1 of the commented article. This is the absence of information about a citizen who is declared dead at the place of residence for three years or more.
Special grounds and deadlines are provided for in paragraphs 1 and 2 of the commented article. Paragraph 1 indicates the case of a missing citizen in circumstances threatening death or giving grounds to assume his death by accident. Circumstances that threaten death include natural phenomena, such as earthquakes, mudslides, floods, etc. Circumstances that give grounds to assume death from an accident include fires, explosions, plane crashes, etc. The time limit in this case is set at 6 months.
The listed grounds, and not the fact of death, must be proved during the trial.
Declaring a citizen dead by the court, followed by recording his death in the civil registry book, entails the same consequences as the registered death of a citizen, in particular, termination of marriage (art. 33 of the KBS), opening of inheritance. But at the same time, the citizen himself, declared dead, if he turns out to be alive, protects his legal capacity and legal capacity. For example, he is not deprived of the right to enter into contracts, own things, etc.
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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
