Karel
Schelle –Ilona Schelleová
Masaryk
University, Faculty of Law, Czech Republic
Legal
regulation of decision-making about certifying dead in the Czech Republic
The loss of legal capacity in case
of a physical entity is in all legal codes connected with their death. A dead
physical entity ceises to be a subject of all legal relations. The death of a
physical entity is proven by a prescribed way, i.e. by official finding of
death (by examination of a dead person) and by issuing a death certificate (§
2, article 1 regulation No 19/1988 of the Code). If for any reason it is impossible to
officially find the death of a physical entity and issue a death certificate,
the court decides about certifying dead at the motion of a person who is
legally interested in the matter (survivor spouse, inheritor, creditor,
debtor).
1. Legal regulations in ABGB from 1811
In the Czech Legal Code the legal
regulations about certifying dead have considerably rich history. We should
naturally start in 1811 by a General Civil Code (ABGB). Certifying dead
was regulated in § 24 there. This clause
required two materially legal conditions:
a) missingness
b) request of an interested person
to begin proceedings of certifying dead.
According to the provision § 24 of
ABGB (article I.) a missing person about whom have not been any reports for
some time could have been certified dead. This was thus a qualified absence
that we call missingness. This missingness must have been qualified by two
ways: first by the time of missingness, second by the circumstances how this
missingness happened.
ABGB distinguished two types of
missingness:
a) simple missingness which was
characterised only by certain time
b) qualified missingness where there
was required not only missingness for certain time period, but also some
notably dangerous circumstances under which this missingness occured.
First let´s talk about the
legal regulations of simple missingness. The time limit of this missingness was
originally determined for ten years, but it was shortened to five years if the
missing person had reached the age of 70 at the time of certifying dead, so as
it was stated in the Civil Code if it was 70 years after his birth and five
years since there was the latest report about him. However, if the person had
not reached the age of seventy at the time of certifying dead, he could only
have been certified dead after the time of his missingness which lasted ten
years. This time was also qualified by the fact that the respective person had
to reach at least the age of 30.
The qualified missingness was
characterised by the fact that the latest report of a missing person was from
the time when this person was in exceptional situation which was dangerous to
life. This situation included:
a) an event that meant close risk of
death,
b) seaway,
c) war.
Ad a) According to the ABGB it had
to be such an event when the risk of death was extraordinarily intensified. The
qualification of missingness required that the latest report had to be from the
time when the person was in such a risk. Three-year time period started to run
on the last day of the year when the dangerous event happened.
Ad b) A dangerous event according to
ABGB was a doom of the vessel. Persons that were on this sunk vessel were at the time of the doom
in the danger of close death. However, that time´s Civil Code mentioned
also another case of sea missingness. If the vessel became missing in a way
that it either did not reach the port where it could have come or did not
return to the home port in case of voyage without a certain target. A
three-year time period from the shipwreck or from reaching the vessel´s
missingness counted from the end of the year when it shipwrecked or when its
missingness was reached.
Ad c) War missingness was generally
defined partly in the cited article 24 ABGB, partly subsequently in acts No
128/1918 of the Code, and No 252/1921 of the Code. These two acts
understandably referred to the war missingness from World War I. The time
period of missingness counted from the end of the year when the war was either
legally or really finished. There was a three-year time period. The
precondition of the missingness was either a missingness that happened during
the participation in operating army or as a consequence of a serious injury in
war operations.
The legal proceedings about
certifying dead was defined by acts No 20/1883, No 128/1918 of the Code, and No
252/1921 of the Code. Such legal proceeding was of course an indisputable
proceeding which was regulated by relevant directives, mainly by the act No
100/1931 of the Code, about basic provisions of an indisputable
proceeding.
An authorised regional court where
the missing person resided had the responsibility of certifying somebody dead,
and if he did not reside in our country, it was the responsibility of the
regional court where the missing person had his last address.[1]
2. Legal regulations from 1945
As
World War I, also World War II required special legal regulations of certifying
dead. This was a decree of the president No 117/1945 of the Code which became
valid on 20th November 1945. According to this decree the beginning of the
proceeding about certifying dead was the responsibility of the authorized
district court where the missing person had his local court in our country. If
the missing person did not have his local court in our country, the
responsibility was taken by the district court where the proponent had his
local court. The motion of certifying a missing person dead or proceeding of
death evidence could have been done by anybody who was legally interested in
identifying a missing person dead. If it was in a public interest, this motion
could also have been done by a prosecution.
The
decree defined an exception considering the arising situation according to
which the motion of certifying dead could have been done already one year
before the end of the time period given in § 24 of the Civil Code (ABGB). But
if the missing person was in a close risk of death the motion could have been
done immediately after the event when his life was endangered.
The
proceeding was as follows: the court called with a public notice where they
stated all relevant circumstances of the case on the missing person to report,
and everybody who have some information about him to report at the court or to
the trustee if he was appointed. The public notice said that after the given
time period and at the repeated motion if the court does not acknowledge
otherwise that the missing person is alive, the court will decide about certifying
this person dead. The edictal period was determined for one year from placing
the public notice on a court board.
Furthermore,
the presidential decree enabled in case of those who participated in war
between the years 1939 and 1945 and became missing that they could be certified
dead not only when the preconditions defined by valid regulations were
fulfilled, but also in case when two years since they were last seen alive
passed. Also when the Ministry of labour protection and social services or an authority
(body) commisioned for this action, that the missing person was affected by an
event which according to general experience meant that all the affected people
died (transport of political prisoners
and other persons kept in concentration camps to certain places, air strike,
and the like); this missing person could have been certified dead even in case
when six months since he was last reported to be alive passed.
In the
proceedings of certifying somebody dead the participants of war were considered
to be mainly members of military forces of one of the states in war,
participants of national resistance movement, including guerillas, fighters in
revolutionary uprising of Czech and Slovak nations, and persons who were at the
time of submission caused by occupation or national, racial or political
persecution dragged, moved out, interned or imprisoned, and also persons who
were together with armed detachment or with detachments of national fight
before they became missing and they stayed in placed where extraordinary war
events happened (e.g. battles, bombardment, explosions, air strikes, vessel
accidents, fires, and the like).
The
motion of certifying a missing participant of the war dead could have been done
already one year after the day when the missing person was reported to be
alive. If the missing person was in a close risk of death, the motion could
have been done immediately.
The
edictal period was one year. The presidential decree however enabled some other
exceptions.
3. Legal regulations from 1950
With a
new Civil Code (Act No 141/1950 of the Code) and Civil Legal Code from 1950
(Act No 142/1950 of the Code) there was a new legal regulation about
proceedings of certifying somebody dead. According to § 7 of the new Civil Code
the missing person could have been, at the motion of a procurator or anybody
who was legally interested, certified dead if the time period of five years
since the end of the year when he was last reported to be alive passed if this
last report was at least one year old. If a court certified somebody dead, they
determined a day which was considered to be the day of his death. If it was
impossible to determine a day when the missing person probably died or probably
did not survive, the court determined as the day of the death the last day of
given five-year of one-year time period.
According
to the valid Civil Legal Code, the authorised court for certifying somebody
dead was a court which was the missing person´s last local court in the
Czechoslovakian Republic. In case the missing Czechoslovakian citizen did not
reside in the Czechoslovakian Republic, the authorised court was determined by
the Supreme Court. The procedural regulation enabled to file a motion already
one year before the time period necessary for certifying a missing person dead
passed. However, this motion could not be decided sooner than the necessary
time period passed.
An
authorised court had to issue a public notice where they called on a missing
person to report or on anybody who knew about the missing person to report at
the court or an attorney stated in the public notice. At the same time they
held all necessary enquiries about the missing person and found participants of
the proceedings.
After
the time limit determined in the public notice passed, the court decided about
certifying dead. The resolution was enforceable as soon as it came into force.[2]
Even
after the new Civil Code and Civil Legal Code became valid, in case of the
participants of World War II it was possible to use the decree No 117/1945 of
the Code.
4. Legal regulations from 1963
Legal regulations included in the
Civil Code and Civil Legal Code from 1950 were valid until 1963, resp. 1964,
when a new edition (and the last on the territory of the Czech Republic) of the
Civil Code (Act No 40/1964 of the Code)
and a new Civil Legal Code (Act No 99/1963 of the Code) came into force.
Currently valid Civil Code, in
connection with previous amendments, defines two cases when the court can
certify a certain physical entity dead based on legal proceedings:
a) If the death of a physical entity
is determined by other evidence than post-mortem examination and issuing a
death certificate. The court certifies such a physical entity dead by its
decision without any other proceedings, and the court also determines the
person´s day of death. The legal decision replaces an official document
about the person´s death, i.e. a death certificate.
b) If it is possible that the
missing physical entity considering all circumstances of the case does not live
any more. A missing person is such a physical entity that is according to the
circumstances of the case absent for an adequatly long time period and at the
same time there are no reports that the person is alive. An adequate time
period of absence is not defined by the law, but is determined by the court
according to circumstances of every single case.
Local compentence of the court about
certifying a missing person dead is exclusive according to § 88 letter f) of
the Civil Legal Code. Legal proceedings are executed by the court which was the
last local court of the person who should be certified dead in the Czech
Republic.
Proceedings about certifying someone
dead could begin at the motion or without it. The motion could be done by
anyone who is legally interested.
Participants of the proceedings are,
except the proposer, also a spouse of the person who should be certified dead,
their children, all all those who are involved according to the law of
inheritance. (§ 94 article 1 of the Civil Legal Code).
A public prosecutor is entitled to
enter the proceedings about certifying somebody dead according to § 35 article
1 letter b) of the Civil Legal Code.
The Civil Code does not connect the
proceedings about certifying somebody dead with passing certain minimum time
periods. Minimum time period is thus not a precondition for the beginning of
the proceedings.
If the court recognises that
according to the data of the motion there are conditions for certifying the
missing person dead, they appoint a trustee for the missing person. A trustee
is not necessary for those who have a legal representative. The task of the
trustee is to protect interests of the missing person. Considering the conflict
of interests, the spouse of the missing person cannot be appointed as a
trustee.
The basis of another procedure of
the court is that they call on the missing person with the help of a public
notice or another suitable way (e.g. in local newspaper, local radio, etc.) to
report within one year, and on everybody who knows something about the missing
person to report to the court or the trustee, or the legal representative
stated in the public notice within the same time period. At the same time the
court hold all necessary enquiries about the missing person. In the public
notice the court state all relevant circumstances of the case and announce that
if the missing person does not report or is not reported about within the time
period given in the public notice, the court decide about certifying this
person dead. The time period is determined by the court and it is one year from
issuing the public notice. The day of the end of this time period must be
stated in the public notice.
If the court during the proceedings
finds out that the conditions of certifying somebody dead are not fulfiled, the
proceeding is stopped. Stopping the proceedings is decided by the court in the
form of a resolution against which not only the proposer, but also other known
participants can appeal. The resolution about stopping the proceedings is a
decision on the merits, because its basis is the coclusion of the court that
materially-legal conditions are not fulfiled.
After the one-year period stated in
the public notice, the court issue a judgment about certifying dead where they
state day which is valid as the day of death of the missing person, or the day
that the missing person did not survive. The judgment about certifying dead is
valid ex nunc, and thus has no retrospective force.
However, if the court find out later
that the person who was certified dead is alive or or was alive on the day
since which there was not the time period long enough for him to be certified
dead, the court cancel their decision about certifying dead.
There could be a situation when the
court later finds out the incorrect determination of the day of the dead (or
the day that the person did not survive). Based on the proposal, but even
without it they issue a resolution where they correct this data. The resolution
where the court corrects this data is valid ex tunc.
So far we have talked about the
proceeding of certifying a missing person dead. As we have stated above, there
could be a situation when it is obvious that the person died (e.g. air crash or
mining accident), but his dead cannot be proven by given way, ie. by examining
the body and issuing the death certificate. In this case the court issues a
decision in which they certify a physical entity dead. It is the so called
evidence of death. In this case the court do not only express their speculation
about death as it is in case of certifying a missing person dead, but they
authoritatively determine that a certain person has died and they state the
date of his death in their resolution. This legitimate decision of the court
has the same effects as a death certificate.[3]
[1] Komentář k československému obecnému zákoníku občanskému a občanské právo platné na Slovensku a v Podkarpatské Rusi, volume I., Praha 1935, p. 223 and the following.; Heller, J.: O prohlášení za mrtva nebo o důkazu smrti zvlášt po válce, Právník 1917, p. 1, 33, 70, 100, 129; Rouček, F.: Prohlášení za mrtva a nový sňatek pozůstalého manžela, Právny obzor VII, p. 229; Teute, J.: Ku kterým účelům lze žádati, aby kdo za mrtva byl prohlášen, Právník, XXVII, p. 322.
[2] Rubeš, J. a kol.: Komentář k občanskému soudnímu řádu, díl druhý, Praha 1959, page 261 and the following
[3] Bureš, J. - Drápal, L. - Mazanec, M.: Občanský soudní řád (Komentář), Praha 1996, p. 520 - 523; Halouzka, V.: Právní způsobilost (subjektivita) občana, Socialistická zákonnost, 1976, No 7, page 387 and the following