PROBLEMS OF INTERPRETATION AND APPLICATION OF THE ARTICLE 46 OF THE CIVIL CODE OF UKRAINE IN THE PROCEDURE FOR DECLARING A PERSON DEAD IN CONNECTION WITH COMBAT OPERATIONS

Abstract

The article updates and analyzes judicial practice regarding the procedure for recognizing a missing person as deаd in the context of the death of civilians and military personnel associated with injuries as a result of the ongoing hostilities on the territory of Ukraine. The reasons for discrepancies in the application by courts of the provisions of Article 46 of the Civil Code of Ukraine have been identified. The need to change the morally outdated provisions of Part 2 of Article 46 of the Civil Code of Ukraine is justified. The re-actualization and problems of the legal regulation regarding the declaration of combatants and civilians as deceased in modern life realities are caused by the availability of digital technologies, wide access to the Internet, and new technological and scientific capabilities in the field of DNA analysis, which, in turn, leads to quite ambiguous judicial practice. Changes proposed to Article 46 of the Civil Code of Ukraine are also subject to scientific analysis. Attention is paid to the distinction between substantive and procedural legal differences in establishing the fact of death and declaring an individual deceased. It is argued that in lawsuits regarding declaring a serviceman deceased, the involvement of a representative of the Ministry of Defense of Ukraine and relevant military units is a procedurally justified procedure. The interpretation of the provisions of Part 1 and Part 2 of Article 42 of the Civil Code of Ukraine is subjected to scientific analysis, which indicates the ambiguity of its understanding and application. It is substantiated that there is a correlation between Part 1 and Part 2 of the mentioned Article 42 of Ukraine as a general and special rule (a special «exclusion rule»). The need to apply exactly Part 2 of Article 46 of the Civil Code of Ukraine to individuals who died in connection with hostilities, at the same time narrows the rights of citizens regarding the possibility of proving this fact with modern evidence. Thus, it is argued that the provisions of Part 2 of Article 46 of the Civil Code of Ukraine are currently morally outdated and need changes. The draft law on the relevant changes has, as of today, been adopted by the parlament of Ukraine as a basis