Publication: La ausencia y la declaración de fallecimiento en Derecho internacional privado
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1995
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Abstract
Este trabajo estudia las cuestiones de competencia judicial internacional, derecho aplicable y reconocimiento de decisiones que plantean los supuestos de ausencia y declaración de fallecimiento vinculados con varios ordenamientos jurídicos. Como presupuesto, incluye un análisis sobre los diversos modelos de regulación de la ausencia y declaración de fallecimiento en el panorama comparado. ----
The Private International Law questions raised by the disappearance of persons are diverse and complex. This complexity is partly due to the different methods used by the various legal orders to regulate these factual situations. Spanish law is a typical representative of the so-called mixed systems, which includes both declaration of absence and declaration of death.
As regards jurisdiction issues, a number of significant legal systems show a trend to admit flexible bases of competence. Such an approach is helpful to guarantee the fulfilment of the protective nature of these proceedings. In Spain the terms of Article 22.3 LOPJ (which includes only the last domicile of the absent person as basis of competence) make necessary an interpretation providing a widening of the circumstances in what is appropriate for our courts to intervene (as they do in practice).
Concerning choice of law the idea of applying the lex causae –the legal order which governs the relationship (marriage, succession…) affected by the disappearance- seems only reasonable in those legal systems based on judicial presumptions of death without generally binding effect (as is typical of the common law countries). In Spanish law, according to article 9.1 C.c., the basic criterion is that absence and declaration of death questions are governed by the law of the nationality of the absentee at the time of the disappearance. However, the distinction between procedure (governed by the lex fori) and substance raises here special difficulties.
As far as recognition of foreign decisions in Spain is concerned, it is generally accepted that exequatur is not required due to the non-contentious nature of these proceedings. However, opinions vary regarding the conditions which these foreign decisions must fulfil. Finally the lack of effect of substantive res judicata which is proper of the non-contentious decisions for protective assistance and the possibility of revoking these decisions bring up special questions for discussion.