the presumption of absence Nancy Chamorro Mauricio Our Civil Code states that "within two years since you last had news of the disappeared, anyone with a legitimate interest or the public prosecutor may apply for a judicial declaration of absence. "
"competent Judge's last known address was the late Judge or where you are most of their bins."
The presumption of absence, was taken into account by the Romans, leaving a clear notion of what might happen in case someone we disappear without trace. Well as differentiating between what is known as absence and loss, but basically coincide, in that both aim to find the missing and take care of their property, while this is not in the place of residence.
then said there is no, when you have no news of a particular person, much less is at home where they usually live. This term shows the uncertainty of the existence of a human being or not, because there is a split between the individual and the social environment in which it operates. For most cases, a guardian appointed to take charge of managing assets of the deceased, as he appears or just take healer property and showing the total disappearance of the alleged.
But here's a problem, the person responsible for the missing assets can be bad or good faith. How I can prove, or what makes you think that this person is acting only out of charity and it does with the double intention of appropriating the property? In seeking the beneficial use of certain goods, there are always people who want to take what is not theirs, but ultimately it is up to the judge to determine that people are in the ability to take over the assets of the deceased.
SOME THEORIES APPLICABLE TO THE PRESUMPTION OF ABSENCE
The loss is a factual situation that the person was not at home, but this is not enough, also requires that, not knowing where you are and that there is no information on his whereabouts .
The word absence is, in legal language a meaning very different from the current language. In the language of law, it is said in such cases there is, not absence, but simply not present.
This definition provides for certain limitations, since it says that is not the same absence, not presence, one could argue that the non-presence is the physical act of not being a person in one place, and the absence is the condition of the person whose whereabouts are unknown, both terms mean the same thing apparently, but the difference lies essentially in the time period, the first shorter than the second.
A person is absent, not when it simply is not present or missing in your home or residence, but when it has disappeared, no word from him.
Then there is absence, and inside it as well subdistingue:
1. A person simply disappeared with no news.
2. A person whose absence can be judicially declared.
3. A person who can declare his death, something possible if the disappearance No news in some time lasts not long.
On the other hand, to appoint the absence of the person, it is said that there are certain requirements, such as his disappearance has not news, that protective measures are accurate and that the party will constitute the defense of the missing and also takes into account the appointment of a guardian either spouse, descendants, ancestors, and if they do not exist, a person who is solvent and good standing.
REQUIREMENTS FOR THE DECLARATION OF ABSENCE
We
:
1. Within two years from the latest news, or lack thereof, since the disappearance, if the disappeared had not left empowered with authority to manage all assets.
2. The court ruling: The absence has to be judicially declared and registered, according to Article 44, subsection H, the National Registry of Identification and Civil Status - RENIEC (Law 26,497), to be of value to third parties.
3. Requested that anyone who has a legitimate interest or the public prosecutor.
4. That is declared by a judge, under the provisions of the final part of Article 49 of the Civil Code is the judge of last known address was the missing, or the place where they are most of their property.
THE EFFECTS OF THE DECLARATION OF ABSENCE
Produced judicial declaration of absence and entered RENIEC this resolution, the effects are as follows:
1. Granted temporary possession of the property of the absentee, who were his heirs at the time of making the order. If there is no person with this quality will continue, for the absentee property, the guardianship set forth in Article 47 of the Civil Code, which could then access the temporary possession of the assets would be absent: the children, their absence the other descendants, in the absence of these parents and other ancestors, and in all cases the spouse. The heirs apparent before taking temporary possession, should make a valued inventory of property of absentee.
2. Access to the possession of the property will allow the use and enjoyment and obviously the perception of the fruit. However, the Civil Code imposes a limitation in terms of perception of the fruit, when available, reserve a portion equal to the amount of free disposal of the absentee.
3. Holders are entitled to administer the estate, are not permitted to sell or encumber, unless, as noted by the latter part of Article 52 of the bounded code, either in case of need and utility, also subject to provisions of Article 56 of that body of law, which states, moreover, must be prior judicial authorization.
4. If the estate regarding temporary possession warrants, the holders may proceed to appoint a receiver to administer the estate according to the rules of Article 55 of the Civil Code, which states "The Rights and Obligations of the Judicial Administrator, being the most important: those designed to receive the fruits "," pay the debts of the absent "," pay the cats own administration, "" exercise the legal representation of the absent "," distribute among heirs, the available balances in proportion to their eventual inheritance rights, and, if warranted, "giving the allocation of maintenance for the spouse of the absentee and their heirs economically dependent."
5. It concluded the regime of community of property by a declaration of absence, as provided by Article 380 of the Civil Code. They are social marital property, after deducting the debts of the company, charges, reimbursement of separate property to spouses. The remainder is Strictly speaking, the marital to be shared equally between the spouses.
6. The situation of the illegitimate son, the expression of the absentee, may be recognized by the grandfathers and grandmothers of the respective line, as stated in Article 389 of the Civil Code.
7. Declared extinct de facto unions, following a judicial declaration of absence, under the third part of Article 326 of the Civil Code, in which case proceed to liquidate the assets of the union convivial.
8. Custody was suspended absentee, according to the provisions of Article 461 of the bounded code.
FOOD FOR FORCED HEIRS OF ABSENT
Our current Civil Code its Article 58 states that the heirs of judicially absent, that is, your spouse or other financially dependent on the absent heirs, who do not have sufficient income to cover their food needs, they can ask the judge, the allocation of maintenance. The judge, taking into account the particular circumstances, namely the economic status of applicants and the amount of affected assets, fixed amount as alimony. This claim is being processed at present as the sole process in what is meritorious.
CESSATION OF THE EFFECTS OF THE DECLARATION OF ABSENCE
The fact that a person has been judicially declared absent does not mean that later reinstated to his medium, recovering the full rights and obligations. The current code in our country, making these references to end the presumption of absence, as well as taking other laws, and in that vein, laws in Article 59, "stop the effects of a judicial declaration of absence" by:
1. Return of the absent: If the person returns to normal within families and it is obvious that it is not an absentee, and then recover its property in the state where you are. This request is processed as non-contentious proceedings, with citation of those who requested declaration of absence, Article 60 of the Civil Code.
2. On the appointment of a guardian with powers sufficiently made by the absent, after the statement: This assumes that the missing alive, the attorney for the best performance of his powers, has the power to start with non-contentious proceedings, order that will restore the property of his principal, and to fulfill the task conferred by it, with citation of those who sought a judicial declaration of absence.
3. Verification of Death Away: The code says just checking, but it is undeniable that in this case, to prove the death of the absentee as evidence would have to be based on the death certificate, to proceed as a consequence of the above, the opening of the succession, in harmony with what is stated in the last part of Article 660 of the Civil Code.
4. Death On Alleged Judicial Declaration: the declaration of presumed death should be made by the judge, and entered in the National Registry of Identification and Civil Status - RENIEC, and this, happens, "when they have spent over 10 years since the latest of the deceased, or five years if it had the 80 years of age, "" If, after two years if the disappearance occurred in circumstances constituting a danger of death ", as is the case of forced disappearances, and" where there is certainty of death, without which the body has not been found or identified, "that is, when the death occurred in a accident and is not feasible to locate his body. In these cases also proceed to the opening of the succession.
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