A Research Of Declared Missing And Declared Dead System

In real life, there often appears such state that individuals missed due to war, natural disaster, accidents and voluntary recluse missing, which are hard to be confirmed whether they are living or dead. If this state stays for some time, the personal and property relationship between the missing person and others would be in an uncertain condition. The declared missing and declared dead system is particularly established in civil law intending to deal with the unstable situation of social and economic order due to this state. Because of the gap between practical needs and China's legal regulation and theoretical discussion, this thesis attempts to discuss about the declared missing and declared dead system so that to present some plain personal view on improving the two systems in our country.This thesis has four parts:The first part is about some basic issues of declared missing and declared dead system. First of all, this thesis introduces what is declared missing and declared dead system. And then introduces the qualification, the legal consequence and the validity of revocation of declared missing system. Secondly, the thesis introduces some basic issues of declared dead system such as its concept, its legislative intention and its qualification, etc.The second part is about the legal derivation of declared missing and declared dead system and the process of China's relevant legislation. At first, this thesis reviews Roman law and Germanic law which are considered as the origin of civil law. There is no declared dead system in Roman law. However, there has turned up the rudiment of declared dead system. It was begun in the Middle Ages that the declaration of death was taken for the object of study by the Glossators and was regulated by law from German common law. Secondly, this thesis states that the declared missing and declared dead system is established as a legal system in civil law in modern times by introducing the successors and development of three typical countries such as France, Japan and UK. Thirdly, this thesis introduces the contemporary successors and development of declared missing and declared dead system of German, Italy, USSR and Taiwan district. First of all, this thesis reviews the system's derivation in our country by thoroughly introducing the legislation of ancient china, the first formulation in Qing dynasty and the system structuring in the General Rule of the Civil Law presented in 1986. Secondly, this thesis introduces the declared missing system in our country. It is begun from the legal derivation and analysis of declared missing system. At last, this thesis introduces the declared dead system in our country from two aspects of the legal derivation and the analysis of declared dead system.The fourth part is about the improvement of declared missing and declared dead system. First of all, this thesis issues how to improve the declared missing system. In accordance to various defects in the declared missing system of our country and scanning other countries'legislation, the thesis finds out three substitute measure:the patriarch system and family system of ancient China, the missing person litigation representatives system of UK, the system of trustee of property applied by many foreign countries and Taiwan district of our country and finally suggests substitute the system of trustee of property for our current declared missing system. Secondly, the thesis issues how to improve the declared dead system in aspects of the declaring subject, the declaring right of procuratorate and its legal consequence.This thesis attempts to point out the existing problems of declared missing and declared dead system by analyzing the declared missing and declared dead system and to find out the advantage of other countries' relevant legislation in order to remedy our country's defects. At the end of the paper, this thesis suggests to substitute the system of trustee of property for our country's declared missing system and to further improve the declared dead system of our country so that to let this system play a more important role in adjusting the relationship between rights and obligations of missing people and to accommodate the development of the rule of law of our country.