Notice of search for persons who are absent from their places of residence in Vietnam

Notice of search for persons who are absent from their places of residence is an important legal procedure. Let’s find out this issue with Lawyer X through the following situation: “Dear Lawyer! I want to ask how can I make request for notice of search for persons who are absent in Vietnam? How are management of property of person absent from his/her place of residence regulated under Vietnam Law? Thanks for answering me!”

Legal grounds

• 2015 Vietnam Civil Code

Request for notice of search for persons who are absent from their places of residence and the management of their property

When a person has disappeared for six consecutive months or longer, any person with related rights or interests may request a court to issue a notice of search for the person absent from his/her place of residence under the provisions of civil procedure law and may request the court to apply measures for management of the property of the absent person in accordance with the provisions of Article 65 of Civil Code.

Management of property of person absent from his/her place of residence

– At the request of a person with related rights or interests, a court shall hand over the property of a person absent from his/her place of residence to one of the following persons for management:

• With respect to property of which the management has been authorized to person by the absent person, such person shall continue to manage the property;
• With respect to joint property, the remaining co-owner(s) shall manage the property;
• The property being currently managed by the spouse’s absent person shall continue to be managed by such spouse; if that spouse dies or that spouse is legally incapacitated, has limited cognition or behavior control or has limited legal capacity, his/her adult children or parents shall manage the property.

– If there is no person defined in Clause 1 of Article 65, a court shall appoint a person among the relatives of the absent person to manage his/her property; if the absent person does not have any relative, the court shall appoint another person to manage the property.

Obligations of persons managing property of person absent from his/her place of residence

– Keep and preserve the property of the absent persons as if it were his/her own property.

– Sell immediately any property being crops or other products being in danger of decay;

– Perform the absent persons’ obligations to pay maintenance their dependents and/or pay due debts or financial obligations with such persons’ property under the court’s decisions.

– Return the property to the absent persons upon their return and to notify a court thereof; or compensate for any damage caused during the course of management of the property due to his/her fault.

Rights of persons managing property of person absent from his/her place of residence

– Manage the property of the absent persons.

– Deduct a portion from the property of the absent person in order to perform the obligations of such person to pay maintenance to his/her dependents, due debts or financial obligations.

– Receive payment of all necessary expenditures on management of the property of the absent person.

Declaration of 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.

– 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.

– 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.

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 Civil 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 Civil 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.

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.

Declaration of person dead

– A person with related rights or interests may request a court to issue a decision declaring that a person is dead in any of the following cases:

• After three years from the effective date of a court’s decision declaring a person missing, there is still no reliable information that such person is alive;
• The person has disappeared during a war and there is still no reliable information that such person is alive for five years from the end of the war;
• The person met with an accident, catastrophe or a natural disaster and there is still no reliable information that such person is alive for two years from the end of such accident, catastrophe or natural disaster, unless otherwise provided for by law;
• The person has been missing for five consecutive years or longer and there is no reliable information that such person is still alive; this time limit shall be calculated in accordance with Clause 1 Article 68 of Civil Code.

– A court shall, according to the cases specified in Clause 1 of Article 71, determine the date of death of a person declared dead.

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

Personal relations and property relations of persons declared dead by courts

– When a decision of a court declaring that a person is dead becomes legally effective, all marriage and family relations and other personal relations of such person shall be resolved in the same manner as if the person were dead.

– The property relations of a person who is declared dead by a Court shall be resolved in the same manners as if such person were dead; the property of such person shall be dealt with in accordance with the law on inheritance.

Annulment of decision declaring person dead

– When a person who has been declared dead 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 dead.

– The personal relations of the person who has been declared dead shall be restored when a court issues a decision on annulment of the decision which declared that such person was dead, except for the following cases:

• If the wife or the husband of the person who has been declared dead was permitted by the Court for her or his divorce in accordance with the provisions of Clause 2 Article 68 of Civil Code, the decision granting the divorce shall remain legally effective;
• If the wife or the husband of the person who has been declared dead has married to another person, such marriage shall remain legally effective.

– A person who has been declared dead but is still alive shall have the right to claim his/her property from the persons who received that his/her inheritance and/or the value of the remaining property.

If the heir of a person whom a court has declared dead is aware that such person is still alive, but intentionally conceals such information for the purpose of enjoying the inheritance, he/she must return all of the property received, including any benefits and income derived; if any damage has been caused, he/she must also pay compensation therefor.

– Property relations between spouses shall be dealt with in accordance with Civil Code and the Law on marriage and families.

– The decision on annulment of a decision declaring a person dead issued by a court must be sent to the People’s Committees of commune where the dead person resides for record as prescribed in law on civil status affairs.

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