Recognition of a citizen as missing or declaring a citizen dead may be initiated at the request of family members, the prosecutor, public associations, the guardianship authority and other interested persons.
A case on recognizing a citizen as missing or declaring a citizen dead may be initiated at the request of family members, the prosecutor, public associations, the guardianship authority and other interested persons (part 2 of Article 317 of the CPC). The concept of "interested parties" is not given in the law. At the same time, paragraph 3 of the normative resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of recognizing a person as missing or declaring a person dead" states that individuals and legal entities, state bodies that, in accordance with Article 8 of the CPC, have the right to apply to the court for protection of rights and protected the interests of other persons or an indefinite circle of persons, in cases provided for by law, and for whom recognition as missing or declaring deceased entails the occurrence of, termination or modification of personal and property rights. In terms of meaning, such persons include: - the spouse, since he may be interested in the dissolution of the marriage; -persons who are dependent on the absent person, since if they are recognized as missing, they acquire the right to survivor's benefits in accordance with pension legislation. Other persons may also be interested in recognizing a citizen as missing if it is necessary for them to protect a violated or disputed right or legally protected interest (for example, tax authorities), as well as the prosecutor, public authorities, organizations and individual citizens, if they are legally entitled to apply to the court for protection of the rights and interests of others. citizens.
Recognition of a citizen as missing or declaring a citizen dead may be initiated at the request of family members, the prosecutor, public associations, the guardianship authority and other interested persons.
The content of the statement (Article 318 of the CPC) has a special feature, which is that it must specify: 1) the purpose of the applicant's appeal to the court (for example, receiving inheritance or benefits, divorce in a simplified manner, the need for adoption); 2) circumstances confirming the unknown absence of a citizen, or circumstances threatening the missing person with death, or suggesting his death from an accident. These circumstances can be confirmed by the response of the police authorities about the search for the missing person and the inability to find him, documents about the accident, etc. In respect of military personnel or other persons missing in connection with military operations, the statement indicates the date of the end of hostilities. This date may be a well-known fact that does not require proof. In case of failure by the applicant to comply with the mandatory requirements to indicate the purpose of the appeal and the circumstances confirming the stated claims, in accordance with Article 152 of the CPC, the application is returned without consideration (paragraph 3 of the normative resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of recognizing a person as missing or declaring a person deceased"). In this case, the shortcomings of the application should be explained to the applicant in order to bring them into line with the procedural law. Also, this paragraph of the regulatory resolution focuses on the fact that if there is data on the death of a citizen at a certain time and under certain circumstances, the courts should decide on the establishment of the fact of death, and not on declaring the citizen deceased. However, not all courts comply with these requirements. An example of this is the following case. T. applied to the court to declare K. dead, stating that on October 14, 2013, her husband was admitted to the hospital. Taking into account the severity of the disease and the further unfavorable prognosis, he was discharged on October 16. On the same day, her husband died at home. A funeral was held on October 18, 2013. She did not contact the Civil Registration Department (hereinafter referred to as the RAGS) on time due to illness. In May 2016, the RAGS department refused to issue her a death certificate. Recognizing a spouse as deceased is necessary for accepting an inheritance. By the decision of the Saryarkinsky District Court of Astana dated November 7, 2016, K., born on June 14, 1938, a native of the Akmola region, was declared dead (the operative part is set out in the wording of the court). This position of the court is incorrect. Thus, in accordance with paragraph 10 of the normative resolution of the Supreme Court "On Judicial Practice in cases of establishing facts of legal significance", an application for establishing the fact of a person's death at a certain time under certain circumstances (subparagraph 8) of part two of Article 305 of the CPC) is accepted for court proceedings and is considered only upon the applicant's submission of a document of refusal. the civil registry office in registering the death event. The applicant provided the court with evidence of the refusal of the RAGS department to register the death event, a certificate from the medical advisory commission dated October 31, 2013 stating that K. was registered at the dispensary and died on October 16, 2013. In this case, the court should have established the fact of K.'s death rather than declaring him dead. Thus, the courts need to distinguish between declaring a person dead and establishing the fact of death under certain circumstances and at a certain time, since establishing the fact of death does not require observing the time interval for the absence of information about the person's place of residence. And declaring a citizen dead is a likely assumption about the death of a person, but it does not exclude the possibility that this person may be alive.
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