Perfection Of The Missing Person System

Flight MH370 aircraft lost contact, Alzheimer’s patient missing and unaccounted for young women in the past year, the overwhelming news reports lead "lost contact" become a network of hot words, causing widespread concern in the community. In fact, natural persons unaccounted for in real life events often occur, the cause of the incident is varied, such as participation in natural disasters, accidents, war, and the occurrence of marine, aviation, mountaineering, scientific expeditions and other activities. Sorrow will only bring short-term missing loved ones, long missing but also cause legal problems. After a certain period of missing individuals, their property relations that are in no particular state, is not conducive to the protection of the interests of the missing person and interested parties, and is not conducive to the normal social order. Natural persons unaccounted for after a certain period, the property is in a state of neglect, in order to protect its property interests, our law which interested parties may apply to the court for a judgment declared missing in order to establish the property custodian, which declared missing system. With the extension of the period missing, missing person’s status is gradually weakening equity, property and the identity of the interested party whose interests are more in need of protection, so that interested parties apply the law by the court to be legally declared dead given program for judgment property and relationships to solve a missing person’s identity, which declared dead system.Declared missing system and declared dead on the civil system is an important system, and has great significance in terms of the interests of the missing person and interested property protection, identity interests, but also conducive to promoting the effective use of material, maintain normal economic, social order. However, the missing person system in real-life applications are few. Although there are no official statistics, but certainly missing in our country is not in the minority. Through investigation of the case against China over the judgment documents published online, the statistics showed that: 2013 about 46 cases nationwide declared missing, declare death case about 45 pieces; 2014 about 195 and 264 respectively. Although the number of statistical errors exist, but the court accepts the case number is far less than the actual missing population each year. The serious imbalance between the number of missing and the number of declared missing and declared dead cases accepted reflects our system of declare a missing person does not play a role as it should, and there is no good solution to the problems caused by natural persons missing. The reasons include all aspects of citizens legal consciousness, redneck and other reasons, but I think the main reason is that there are many problems in our system design. The history of our country on the lack of an independent private law tradition, resulting in weakness, in the former Soviet Union declared missing transplant system and declared dead regime private research process appeared on many mistakes, such as ignoring the former Soviet Union’s property regulatory system, pension system, etc., which led to the disappearance of our people become more and more institutional problems. For example, according to our current law, subject to the statutory period of two years missing by interested parties in order to apply to the court, in the program subject to a three-month notice period. Therefore, at least two years and three months after the court was able to make a judgment declared missing, while establishing property custodian. But before missing person property managing agent established two years and three months, its property is unsupervised, is likely to cause unnecessary loss, obviously and declared to be missing the legislation purpose intended. In addition, the system also exist poor interface with other systems, provisions are not clear, even problems such as unreasonable. So after the review of the choice of legislative mode in our country, the writer argues that draw lessons from the German legislation mode, establishing the system of property in the custody system to replace the current declared missing, at the same time improve the system of declaration of death.This article from the current declared missing system existence question, hosting of property system advantages and rationality of the existence of dead system three aspects should draw lessons from the German legislation mode. And escrow procedures and elements from the property, subject scope and sequence, escrow behavior category, custodian and escrow right to terminate the liability raised five people missing property escrow system established specific programs.Article argues that to keep the dead system, but need to clear the contents of unreasonable for further improvements. Therefore, after the concrete scheme of property in the custody system is put forward, the article declared elements from death, declared after the death of the legal effect and make recommendations to improve three aspects revocation declaration of death. For example in the constitutive requirements, suggest cancel the interested parties have applied the provisions of the order, add procuratorial organs as legal applicant; In the aspect of legal effect, it is recommended that the dead after the legal effect and the property of legal relation and personal legal relationship, but for marriage should make special provisions; In terms of revocation of declaration of death, the proposed introduction of "time of death has been declared a natural death and time inconsistency" as the reason for revocation of declaration, etc.Hope through the study of this article, the missing person system can better improve, better play to the function, better to protect the interests of a missing person, and the other party, maintaining the order of social life, is expected in this paper, the research for the creation of "civil code".