Subjects of the Right to Appeal to the Court in Cases of Recognition of Inheritance as Escheat

Abstract

The article explores certain problems of law enforcement practice in recognizing inheritance as escheat. The subject of scientific analysis is the subject composition of these procedural relations. Applicants in this category of cases can be conditionally divided into two groups: 1) persons obliged to submit an application to the court for recognition of the inheritance as escheat, and 2) persons who have the right to do so. The persons who are obliged to apply to the court for recognition of the inheritance as escheat are territorial communities. On the basis of an analysis of the legislation, it was established that in the case where a united territorial community was formed in a certain territory, it is authorized to apply to the court for recognition of the inheritance as escheat. On behalf of the local self-government body as a representative of the territorial community (united territorial community), a lawsuit may be initiated to recognize the inheritance as escheat: 1)by its headman or 2) another person authorized to do so according to the law, statute, regulation, employment contract. That is, there can be both self-representation and representation on the basis of a special assignment. It received additional justification for the ability of the prosecutor’s office to submit an application for recognition of the inheritance as escheat in the absence of a territorial community. In such a case, the public prosecutor's office shall represent the legitimate interests of the State in court, in accordance with article 56 of the Code of Criminal Procedure, as a body or person entitled to defend the rights, freedoms and interests of others (human rights defender). The possibility of participating not only as an applicant but also as a human rights defender is justified. The possibility of self-representation of local self-governments in cases of recognition of inheritance as escheat by a headman is proposed. It is further argued that such a possibility should be provided for in the Headman’s Regulations, which are approved by the relevant local councils. The peculiarities of initiation of production by subjects for whom the application to the court for recognition of the inheritance as escheat is a right, not an obligation (creditors of the testator, owners and/or users of adjacent land plots) are analyzed. If an applicant in cases of recognition of the inheritance as escheat is a creditor, documents confirming the existing obligations in relation to the debtor-testator should be attached to the application. Recommendations are made on a list of documents that can confirm the status of an applicant-related land user to apply to the court for recognition of the inheritance as escheat. It is proposed to amend Art. 335 CPC of Ukraine on the necessity to provide the originals of written evidence together with a statement on the recognition of the inheritance as escheat. The role of a notary in cases of recognition of inheritance as escheat has been investigated. It is proposed to provide in the legislation the right of a notary to submit to the court an application for recognition of the inheritance as escheat. It is proposed to improve the way of informing the public about the discovery of an inheritance that has no heirs.