Establishing custody of the property of a missing person in special circumstances: theoretical and practical aspects

Abstract

The scientific article emphasizes the special relevance of the study of ensuring the rights and legitimate interests of a person who has disappeared in special circumstances, in the context of establishing custody of property. Urgent resolution of the issue of the legal status of persons missing in special circumstances has led to a number of inaccuracies, inconsistencies and omissions, which can be traced in the provisions of the Law of Ukraine "On Legal Status of Persons Missing in Special Circumstances" of July 12, 2018 № 2505-VIII. The mechanism of protection of the rights and interests of persons missing in special circumstances is significantly complicated by the delay in approving the Regulations on the Unified Register of Persons Missing in Special Circumstances. Legislative editing of the unified concept of "missing person in special circumstances" is positively assessed. An important guarantee is that the acquisition of legal status from the moment of entering information about a person in the Unified Register of Missing Persons in special circumstances does not deprive interested parties of the right to apply to the court to declare a missing person, which allows to sell a number of other personal property. and non-property rights in relation to this category of persons. It was stated that the guardian should manage the property not on behalf of, but in the interests of the missing person. The possibility provided by law to apply to a notary for the establishment of guardianship over the property of such persons, determines the feasibility of establishing a separate special procedure for this notarial act. The use of this procedure, which is used to take measures to protect inherited property, violates the principle of legal certainty and can lead to numerous violations of the rights of missing persons in special circumstances. Emphasis is placed on the absence of a legally prescribed procedure for termination of custody of property in the event of the appearance of a missing person in special circumstances. It is argued that it is expedient to develop a form of a guardian's certificate on the property of a person who has disappeared under special conditions.