Declaring a person missing in Vietnam

Declaring a person missing in Vietnam

1. Denifition of declaring a person missing in Vietnam.

a. A person is declared missing when the competent Court decides to declare a person missing.

b. Cases of declaring a person missing:
- When a person has disappeared for two consecutive years or longer and there is no reliable information on whether such person is still alive or dead even though notification and search measures have been fully applied in accordance with the civil procedure law, a court may, at the request of a person with related rights or interests, declare such person is missing.
- The two-year time limit shall commence from the date the last information on such person is obtained; if the date of the last information cannot be determined, this time limit shall commence from the first day of the month succeeding the month when the last information is received; if the date and month of the last information cannot be determined, this time limit shall commence from the first day of the year succeeding the year when the last information is received.

c. In cases where the wife or the husband of a person who has been declared missing files for a divorce, a court shall grant the divorce as prescribed in law on marriage and family.

d. The decision on declaration of a missing person issued by a court must be sent to the People’s Committees of commune where the missing person last resides for record as prescribed in law on civil status affairs.

e. Management of property of persons declared missing
- The person currently managing the property of a person absent from his/her place of residence as provided for in Article 65 of this Code shall continue to manage the property of such person when he/she is declared missing by a court and such person shall have the rights and obligations specified in Article 66 and Article 67 of this Code.
- If a court has granted divorce to the wife or the husband of the person who has been declared missing, the property of the missing person shall be handed over to the adult children or to the parents of the missing person for management. If there is no such person, the property shall be handed over to a relative of the missing person for management; if there is no relative, the court shall appoint another person to manage the property.

f. Annulment of decision declaring person missing
- When a person who has been declared missing returns or when there is reliable information that such person is still alive, a court shall, at the request of such person or a person with related rights or interests, issue a decision on annulment of the decision declaring the person missing.
- A person who has been declared missing shall, upon his/her return, be permitted to receive his/her property back from the person managing the property after paying the management expenses.
- If the wife or the husband of a person who has been declared missing has been granted a divorce, the decision granting the divorce shall retain legal effect notwithstanding the return of the person who has been declared missing or the reliable information that such person is still alive.
- The decision on annulment of a decision declaring a person missing issued by a court must be sent to the People’s Committees of commune where the missing person resides for record as prescribed in law on civil status affairs.

2.Procedures for resolution of petitions for declaring a person missing in Vietnam

a. Petition for declaring a person missing
- Persons with related rights and interests shall be entitled to request the Court to declare a person missing under the provisions of the Civil Code.
- The petitions must be accompanied by materials and evidences to prove that the persons who are requested to be declared missing have been absent for 02 consecutive years or more without reliable information on whether they are still alive or dead and prove that the petitioners have taken sufficient measures for search notices. In cases where the Courts have issued decisions on notice on search of the persons absent from their residence places, copies of such decisions must also be submitted.

b. Preparation for consideration of petition for declaring a person missing
- Within 20 days as from the date of receiving a petition for declaring a person missing, the Court shall issue a decision on a notice on search of the person who is requested to be declared missing.
- The content of such a notice and the announcement of the notice shall comply with the provisions of Articles 384 and 385 of this Code. The time limit for such a search notice shall be 04 months from the day on which such notice is posted or broadcasted for the first time.
- Within the time limit for announcing a notice, if the petitioner withdraws his/her petition or the person who is requested to be declared missing returns and requests the Court to stop considering the petition, the Court shall issue a decision to terminate the consideration of the petition for declaring that person missing.
- Within 10 days from the day on which the time limit for search notice prescribed in clause 2 of this Article expires, the Court must open meeting for considering the petition.

c. Decision to declare a person missing
- In case of accepting a petition, the Court shall issue a decision declaring a person missing. In cases where the Court is requested to take measures to manage properties of the person who is declared missing and the request is accepted, the decision declaring a person missing must also indicate specific measures to be taken to manage properties of that person according to the provisions of the Civil Code.

d. Annulment of a decision to declare a person missing
- The person who returns after being declared missing or persons with related rights and interests is entitled to request the Court to annul the decisions to declare a person missing as provided for in the Civil Code.
- In case of accepting a petition, the Court shall issue a decision to annul the decision that has declared a person missing, deciding on the legal consequences of the annulment of the decision declaring such person missing under the provisions of the Civil Code.

Source:
- Viet Nam Civil Law 2015: Articles 68, 69.70
- Vietnam Civil Procedure Code 2015: Articles 387,388,389, 390

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