China Declared Missing And Declared The Death System Integration And Reconfiguration

Declaration of death and declaration of disappearance are the system which to process the missing person' property. In the Roman civil Law, there is no system of declaration of death, however, there is property super intendance system of missing persons. Began in the medieval, people has to be study the declaration of death, but there were provided expressly originated from the Germany civil law. From the French Civil Law of 1804, all of the modern civil law were provided the declaration of death or declaration of disappearance expressly, but because of the different legislative policy, different countries select the different legislative style. The General Principles of civil law of china provided the declaration of death and declaration of disappearance system, but in practical operation, the system existed many shortcomings, and it resulted in a greater waste of judicial resources. However, the academic had seldom study of this issue, so I choose the system, try to reconstruct the declaration of death and declaration of disappearance system from the systematize analysis of the system. This thesis consists of three parts: preface, text and conclusion. The text is the main part, which include four parts.Part one, The declaration of death and declaration of disappearance system in foreign country. By two different legal traditions, different countries had formed a different legislative style, included the German-style system, the French-style system, and the Soviet-declared system. But after the reform and development of the system, especially in France, the essential difference between the German-style system and the French-style system has ceased to exist. This gave rise to think the system of China.Part two, Declaration of death and declaration of disappearance in China's civil law. In China Civil Procedure Law (Trial), 1982, it is provided the declaration of death for the first time, but there is no declaration of disappearance on the system. The General Principles of Civil Law of china, 1986, had completely provided this system which followed with the Soviet Union system. However, we ignored the background of the system in transplant, and didn't pay fully attention to the comprehensive and adaptability of the system. The legislative intent can not be full realized. Then China's judicial interpretation stipulates declared missing declared dead is not a necessary procedure, it has given interested parties the right to choose, it is detrimental to protect the interest party. We must choose a suitable system.Part three, Rational analysis of integrating and reconstructing declaration of death and declaration of disappearance. About the choice of the system, the academic style has three legislative supporters. I believe that China should establish the German model of the system declaration of death. Firstly, we should abolish our declaration of disappearance. The reason is that: First, there is many logical mistake in our system; Second, the substantive requirement and procedure requirement of the declaration of disappearance is harm to protect the missing person' interests; Third, declaration of disappearance system is harm to solve the debtor-creditor relationship and the marriage relationship; Four, declared missing system is not mandatory, it is not conducive to debts and marriage settlement. Secondly, declaration of death is reasonable: pronounced declaration of death is beneficial to protect the interest party. After the revision, there is no essential difference between the German model and the French model. Then "the law is the moral minimum", moral and emotional factors acceptance should not become obstacles to modern legislation. Therefore, it is reasonable that cancel declared missing system, establish a single declaration of death system.Part four, The special program to integrate the declaration of death and declaration of disappearance system. We must make legislation with German mode, that is to say, we should establish a system to replace missing person declaration of the property superintended system, this system must base on our General Principle of the Civil Law. The death declaration system must be made further perfect in preserving primary regulation. About the conditions and legal effect, the period of declaration of death should be divided into general and special, the period of 2 years is reasonable. The application right of declaration of death should not regulate in sequence with the missing persons' interest relation. We should stick to the system that procurator have right to apply for declaration of death. Finally, perfect the system of revocation of the declaration of death. Return of property and treat of marriage relationship must distinguish the goodwill and malice, and the right of claim must be applied in one year.This article wants to declare the defects of the current system, and integrate the declaration of death and declaration of disappearance system in our civil law. Based on the study of foreign advanced legislation ,we wants to abolished declared missing , then establish a system to replace missing persons declaration of the property superintended system, and prefect the declaration of death . Then enable the system to play a greater value, and promote the rule of law further improved.