The Legal Effect Of Declaration Of Death And Its Revocation

The article aims to start from the interpretation of the law,draw lessons from and reflect on the existing research results,combined with the judicial case,using the method of interest measurement,to study the legal effect of declaration of death and its revocation.The main body of the thesis consists of three parts.The first part is about the nature of the declaration of death and its revocation.First,this part clears the essential difference between fiction doctrine and the doctrine of presumption,that is when the missing person is still living,whether through the proof of its existence fact directly overthrow the declaration of death sentence.Then demonstrates the nature of the declaration of death is a legal fiction.And demonstrates the revocation of the declaration of death is a necessary procedure to determine the existence of a natural person in law,rather than a confirmation procedure.When a declared dead person is still alive,the declaration of death will be overturned only by the revocation of the declaration of death.The second part is the legal effect of declaration of death.First summarized the difference between the legal effect of declaration of death and physiological death: on the one hand,in principle the legal effect of the former is only on the field of private law,the legal effect of the latter is on all areas of law,including the public law;on the other hand,the radiation category of the legal effect is special,if declared dead people are still survive,he has the capacity for civil rights,except for the original subject of civil legal relationship,the civil legal relationship will not be affected by the declaration of death.The death time of the declared dead shall be deemed to be the date of the expiration of the period for which the declaration of death is required by law,and shall be confirmed by the court in the judgment.Then discuss the effect on personal law of the declaration of death,in principle the original marriage is terminated,of course,if he still exist,this should be declared in three aspects: marriage between declared dead man and former spouse,former spouse and the third man,declared dead man and third man,consider all subjective situation and discuss separately.Finally,the effect of declaration of death on law of property: when the effect of declaration of death on property law conflict with the implementation of the civil legal act of survivor,the civil legal act should be implemented first,but the effect of declaration of death on law of property will be maintained before the revocation of the declaration of death;the same with physiological death,in the declaration of death,death compensation,funeral expenses and other tort liability is a result of tort compensation for death;when death is the premise of insurance payment in the insurance contract,the declaration of death shall not be ruled out of insurance payment conditions,missing time is the time of insurance accident,before the revocation of death,the insurer shall not refuse to pay insurance indemnity only by proving the insured person is still living.The third part is the legal effect of revocation of death declaration.The effect of marriage should be discussed separately from three aspects: the survivor and the original spouse,the original spouse and the third people,the survivor and the third people.After the revocation of declaration of death,the parent-child relationship should be restored,if the survivor or their children is adopted,the adoptee parents shall not deny the adoption for the reason that the adoption don't have their consent,except the adopter and the adoptee agree.The adoptive relationship shall be null and void from the beginning if the adoption is malicious.As for property law,the return inheritance scope is limited to the existing interests of stakeholders,people who get the property by concealing the fact of survival and make the survivor be declared dead shall return the original and fruits and compensate for the losses,the right to request the return of property should have a limitation,since the survivor knows the declaration of his death;after the revocation of death declaration,tort liability compensation obligor and the insurer may request the return of unjust enrichment.