Absenteeism is the status of a person who is defined identically in German and Austrian law as follows:
“Anyone whose whereabouts have been unknown for a long time is missing , without any information being available as to whether they lived or died during this period, provided that the circumstances give rise to serious doubts as to their continued existence.
What is missing is not whose death is not in doubt under the circumstances. "
According to Swiss law, a person who breaks off contact with their previous environment without leaving a message can be declared missing. Doubts that the person is still alive may not matter.
For most deaths , the fact of death and the time of death are relatively easy to determine. Since for many reasons ( widow's pension , inheritance law , marriage law ) there is a need for the determination of a death and a time of death even in the case of events that do not or only with difficulty enable the determination of death or its time, the legislators have created appropriate legal bases:
The requirements for the declaration of missing and subsequently the declaration of death are regulated in Germany by the Absence Act (VerschG), in Austria by the Declaration of Death Act (TEG), which is largely identical in content from the Act on Absence, Declaration of Death and Determination of the Time of Death of July 4, 1939 were taken over.
A special case in linguistic usage, but not legally, is the missing person , whose disappearance can be attributed to a triggering event (e.g. war or disaster).
Requirements for a declaration of death
The Absence Act knows different deadlines for a declaration of death:
- General disappearance: 10 years from the last sign of life (5 years for people older than 80 years), Paragraph 1 VerschG
- Children: from the age of 25, Subsection 1, VerschG
- Soldiers in war: 1 year from the end of the year in which the war ended (missing from the war), (1) VerschG
- Seafaring, in particular the sinking of a ship: 6 months from the sinking or the other event causing the disappearance (disappearance at sea), (1) of the VerschG
- Airplane crash: 3 months after the crash (lack of air), VerschG
- Other disappearance with mortal danger: 1 year from the end of the mortal danger, VerschG
Application (public notice procedure)
- Legal representative of the missing person (e.g. absentee carer according to BGB ) with approval from family or guardianship court according to Paragraph 3, VerschG
- Spouse / registered partner
- Parents and children
- Public prosecutor
- anyone with a legitimate interest in the declaration of death
Public notice procedure
The district court of the last place of residence or stay is responsible. The district court (responsible is the Rechtspfleger ) carries out the public notice procedure according to ff. This gives the missing person, if he is still alive, or other people who know something about the whereabouts of the missing person, the opportunity to report. The list is published on the court notice board, in the Federal Gazette and, if necessary, in suitable daily newspapers. The principle of official investigation applies .
If the notice period of at least six weeks passes without a reaction, the court will issue the death declaration. The resolution must also be published (Paragraph 1 Sentence 1 VerschG).
Survival of the missing
If it subsequently turns out that the missing person survived the declaration of death, he or the public prosecutor's office can apply for the declaration of death to be repealed (VerschG).
Articles 35 to 38 of the Swiss Civil Code regulate disappearance. Swiss law does not distinguish between the type of missing person. It is only relevant whether there was a mortal danger or not.
One year after a person's life was in danger or five years after the last sign of life (the law speaks of a “message” here), an application for a declaration of disappearance can be submitted.
Procedure and effect
Then the missing person - or persons who could provide information about the missing person - are searched for at least one year via public calls. If a sign of life is received during this time, or if the death of the person is confirmed, the application expires. Otherwise the missing person will be declared missing.
The disappearance of the person has the same effects under civil law as the death of the person concerned. Since January 1, 2000, married persons have been considered divorced - not widowed - if one of the spouses is missing.
The declaration of absence is retroactive to the point in time at which the danger to life existed or to the point in time at which the last sign of life arrived; however, the marriage of the person concerned is only dissolved on the date of the declaration of absence.
Heirs must provide security for the possibility that the missing person will reappear alive. Only then can you apply for a certificate of inheritance . This security must be kept ready for five years in the event of a death for the missing person; in the case of dormant absence even for fifteen years. The five-year period starts from the delivery of the inheritance to the heirs; the fifteen year period from the time of the last sign of life. In no case does this retention period last longer than the day on which the missing person would have been one hundred years old ( ZGB).
Heir does not have enough capacity for the security and can no guarantor muster the freezing period, a legacy management arranged to elapse ( CC).
If the person's last known place of residence was in Switzerland, if the last place of residence is completely unknown or if there is an “interest worthy of protection” (such as assets within Switzerland), the Swiss authorities are responsible ( PILA ).
Foreign declarations of disappearance are valid in Switzerland if they were issued in the country of the last known place of residence or if they were issued by the home country of the person concerned (PILA).
In Austria, the declaration of death after missing is regulated in the Death Declaration Act of 1950 , which is closely based on the German Absence Act. The deadlines for a declaration of death in the event of general disappearance, absence by sea or air as well as missing in war are identical. Responsible for declaring death after missing is the district court in whose district the missing person was last resided. The District Court of Inner City Vienna is responsible for Austrian citizens with their last place of residence abroad . An edict is issued by the court, in which, depending on the circumstances of the individual case, a period of 6 weeks to 12 months is set. The request is issued to the missing person to report by the end of the edictal period, otherwise he can be declared dead.
Reception in the cinema
Hollywood, too, took on the subject of being lost in a humorous way several times. In the 1963 feature film One Too Much in Bed with Doris Day and James Garner in the lead roles, Day plays a woman who was lost in a plane crash and who was pronounced dead before the man's remarriage, but suddenly reappears.
- Anja Bertrand: On the development of the law of disappearance. A legal historical consideration with a special comparative presentation of the regulations of the Prussian Landrecht of 1794, the Code Civil of 1804 and the German codifications of the 20th century (= legal historical studies . Volume 62 ). Kovač, Hamburg 2013, ISBN 978-3-8300-7172-3 .