Legal and Jurisprudential Examination of the Discovery of Life of a Missing Person After the Issuance of a Presumptive Death Judgment in Relation to His Financial Affairs

Abstract

The present article aims to elucidate the effects and consequences of a presumptive death judgment, particularly with respect to the financial affairs of the missing person, through a descriptive–analytical method. It seeks to answer the following questions: What are the legal effects of presumptive death, and if the life of the missing person is definitively established after the issuance of a presumptive death judgment, which authority is competent to revoke and invalidate such judgment, and through what procedure? Furthermore, if dispositions concerning the property and financial rights of the missing person have occurred during the interval between the issuance of the presumptive death judgment and the establishment of the person’s survival, to what extent can such dispositions be reversed? Ultimately, the study concludes that the legislator, for the purpose of determining the status of the property of the absent person, has equated presumptive death with natural death; therefore, presumptive death carries the same consequences as actual death. However, the legislator has remained silent regarding the dissolution or continuation of the marriage contract following the issuance of such judgment. Another conclusion is that the competent authority for revoking and invalidating a presumptive death judgment is the same court that originally issued the judgment, and any interested person or persons may submit a request to that court. Considering the nature of judicial decisions in non-contentious matters, the court may depart from its previous ruling. Moreover, except in cases expressly provided by law, the affairs of the absent person should, as far as possible, be restored to the status existing prior to the person’s disappearance.