Can a creditor apply for a declaration of death for the debtor?

The application for a declaration of death must be made by an interested person of the missing person. Including: (1) spouse; (2) Parents and children; (3) Siblings, grandparents, grandchildren, and grandchildren; (4) Other persons with civil rights and obligations.

Applications must be made in this order, with the applicants in the first order having exclusive effect, and those in the first order being excluded in the lower order, and having equal rights in the same order.

Although the creditor has a civil rights and obligations relationship with the creditor, the court will not accept the creditor's application if the interested parties in the first three order are still alive.

Article 26 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China stipulates that: "If one of the husband or wife dies, the surviving party shall be jointly and severally liable for the joint debts incurred during the existence of the marital relationship. ”

Article 33 of the Inheritance Law of the People's Republic of China stipulates that: "The inheritance shall pay off the taxes and debts that the decedent shall pay in accordance with the law, and the payment of taxes and debts shall be limited to the actual value of his estate." The part exceeding the actual value of the estate shall not be subject to voluntary repayment by the heirs.

If the heir renounces the inheritance, he may not be liable for repaying the taxes and debts that the decedent should pay in accordance with the law. ”

Hopefully, these materials will be helpful in resolving the legal issues you are experiencing. In fact, in practice, regardless of whether the debtor is alive or not, as long as the debt has not been repaid when the debt is due, the creditor should collect the debt in a timely manner and not miss the statutory statute of limitations. If you don't know how to collect your debts, it is recommended that you consult a professional lawyer and let them help you.

If the debtor is unable to pay off the debts due, the creditor may apply to the people's court for reorganization or bankruptcy liquidation of the debtor.

Article 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases stipulates that a creditor applying for bankruptcy of a debtor shall submit the following materials to the people's court in addition to submitting an application:

1) Facts and evidence of the occurrence of the creditor's right (2) The nature, amount, and whether there is security for the creditor's right, and evidence (3) Evidence that the debtor cannot pay off the debts due. In practice, the general court requires creditors to submit the following documents when filing for bankruptcy:

1.Application. In accordance with the corresponding provisions of the law, it should be explained that the debtor defaults on the applicant's debts and cannot pay off the debts due to the applicant, and the debtor has met the bankruptcy conditions, so the applicant applies for a declaration of bankruptcy as a creditor.

2.Applicant's qualification certificate, business license, identity certificate.

3.The nature and amount of the creditor's rights, whether there is any property security, and the corresponding evidence shall be attached.

4.Evidence that the debtor is unable to pay off its debts as they fall due and that they are in a continuing state.

5.Audit report. The audit report filed by the debtor with the administrative authority for industry and commerce and the tax authority may be submitted.

The above is my answer to this question, I hope it helps you, thanks.

Article 7 of the Provisions of the High People's Court on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases.

When a creditor applies for bankruptcy of the debtor, in addition to submitting the application, the following materials shall be submitted to the people's court: (1) the facts and evidence of the occurrence of the creditor's right, (2) the nature, amount, and whether there is security for the creditor's right, and evidence (3) evidence that the debtor cannot pay off the debts due.

After borrowing 100,000 yuan, the debtor ran away and had a house where his parents lived, and the creditor could sue, but there needs to be a process of finding someone or chasing him.

Article 23 of the current General Principles of the Civil Law of China stipulates that if a citizen falls under any of the following circumstances, the interested party may apply to the people's court for a declaration of his death:

1.where their whereabouts have been unknown for four years;

2.Two years have elapsed since the date of the accident and the whereabouts are unknown due to the accident.

Where a person is unaccounted for during the war, the time of his whereabouts is unknown is calculated from the date on which the war ends. Declaring a person dead is related to the termination of his civil subject qualifications, which must be done carefully, so it is necessary to have a long period of disappearance.

After a declaration of death, the legal consequences are the same as those of natural death.

Article 23 of the General Principles of the Civil Law stipulates that an interested party may apply to the court for a declaration of death of a natural person. Stakeholders here include creditors.

Legal Analysis Bureau: It is useless for a creditor to go to the court to declare the debtor dead, and the declaration of death must be related by status, or blood relationship is spouse, children, and parents. The creditor may not be able to judge and enforce the debtor's property.

Legal basis: "Civil Procedure Law of the People's Republic of China" Article 144: Where the defendant is summoned by summons and refuses to appear in court without a legitimate reason, or leaves court without the court's permission, a judgment may be rendered in absentia.

1. How to apply for the death of the debtor

If the debtor's whereabouts have been unknown for 4 years, the creditor may apply to the people's court for a declaration of the debtor's death.

Civil Code of the People's Republic of China

Article 46: [Conditions for Declaring Death]In any of the following circumstances, interested parties may apply to the people's court for a declaration of death of the natural person:

1) Whereabouts have been unknown for four years;

2) Due to an accident, the whereabouts have been unknown for two years.

Where the whereabouts of the natural person are unknown due to an accident, and it is proved by the relevant authorities that it is impossible for the natural person to survive, the application for a declaration of death is not subject to the two-year time limit.

Article 47: [Priority Application of Declarations of Death]Where some interested parties apply for a declaration of death and some interested parties apply for a declaration of disappearance for the same natural person, and the requirements for a declaration of death as provided for in this Law are met, the people's court shall declare them dead.

2. If the debtor dies, can he make his son repay the loan?

In fact, the debt of the father to the son is not necessarily correct in the eyes of the law.

First of all, if the money borrowed by the borrower is a joint debt of the husband and wife, the surviving party is jointly and severally liable for repayment.

If the borrowed money is used for the treatment of illness by one or both spouses, debts incurred for the treatment of a person who has a legal obligation, the maintenance of children, or the maintenance of an elderly person who has a legal obligation to support, etc., it is a joint debt of the husband and wife, and the spouse may be required to repay the debt. If the debt is gambling or if the spouse can prove that it is a personal debt, the spouse is not obligated to repay.

Second, if the loan is a personal debt, the heir can be asked to repay it, but the heir is not the son.

1. If the borrower dies, the will will will be inherited according to the will, and the heirs of the will will will inherit the creditor's rights and debts in general, and need to repay the money owed by the borrower.

2. If there is no testamentary succession, it shall be inherited in accordance with the law. Whereas, legal succession is in the following order:

First order: spouse, children, parents of the creditor.

Second order: siblings, grandparents, maternal grandparents of the creditor.

After inheriting the estate, the legal heirs also have the obligation to pay off the debts, and each heir pays off the money owed by the borrower before his death within the scope of the inherited property.

If the heir gives up the right of inheritance, he does not need to bear the obligation to repay the loan, and can only be repaid by other heirs. This means that if the borrower's son is unwilling to inherit his father's estate, he does not need to repay the money for his father, and the lender cannot force the lender's son to repay the money, but has to find another heir.

Through the above analysis, it is known that, according to the provisions of the Civil Code, if the whereabouts of a natural person have been unknown for 4 years, the interested party may apply for the death of the natural person. Therefore, if the debtor's whereabouts have been unknown for 4 years, the creditor may apply to the people's court for a declaration of the debtor's death, and the people's court shall declare the debtor dead.

If the creditor dies, the debtor still needs to repay the debt, and after the creditor dies, the creditor's heirs can inherit the creditor's right in accordance with the law. Article 1122 of the Civil Code stipulates that an estate is the legal property left by a natural person upon his death. An inheritance that is not allowed to be inherited in accordance with the law or by its nature shall not be inherited.

Article 1123 stipulates that after the commencement of succession, it shall be handled in accordance with the statutory succession; If there is a will, it shall be handled in accordance with the will or town inheritance or bequest; If there is a bequest and maintenance agreement, it shall be handled in accordance with the agreement. Article 530 stipulates that a creditor may refuse the debtor to perform its debts in advance, except where the early performance does not harm the interests of the creditor. The debtor shall bear the additional costs incurred by the creditor for the debtor's early performance of the debt.

Article 1122 of the Civil Code provides that an estate is the lawful property left by a natural person when he or she dies. An inheritance that is not allowed to be inherited in accordance with the law or by its nature shall not be inherited. Article 1123:After the commencement of succession, it shall be handled in accordance with statutory succession; If there is a will, it shall be handled in accordance with the testamentary inheritance or bequest; If there is a bequest and maintenance agreement, it shall be handled in accordance with the agreement.

Article 530:Creditors may refuse the debtor's early performance of debts, except where the early performance does not harm the interests of the creditor. The debtor shall bear the additional costs incurred by the creditor for the debtor's early performance of the debt.

Legal analysis: 1. The notary office hereby conserves and keeps the subject matter or collateral (including the substitute for the collateral) delivered by the debtor or guarantor for the benefit of the creditor in accordance with the statutory conditions and procedures;

2. When the conditions are fulfilled, the debtor of the activity to deliver the creditor submits an application for deposit and withdrawal to a notary office with jurisdiction.

The law is based on the bright victoryArticle 570 of the Civil Code of the People's Republic of China: In any of the following circumstances, where it is difficult to perform the debt, the debtor may deposit the subject matter:

1) The creditor refuses to receive it without justifiable reasons;

2) the whereabouts of the creditor are unknown;

3) The creditor dies without determining the heir or estate administrator, or loses civil capacity and does not determine the guardian;

4) Other circumstances provided for by law.

In the event of the death of the debtor, the creditor's remedies are:

1. If the debt is a joint debt of the husband and wife, the creditor can recover from the spouse of the deceased. According to the law, if one of the husband or wife dies of starvation, the surviving spouse shall be jointly and severally liable for the joint debts incurred during the marriage.

2. Require the heirs who inherited the deceased's estate to repay the debts. The heirs are also obligated to pay off the debts while inheriting the estate of the deceased. Unless the heirs renounce the right to inheritance.

Therefore, the creditor can require the heirs and family members of the deceased to pay off the debts of the deceased within the scope of the inherited property.

1. Do you still need to repay the arrears after the death of the finch or the returnee?

Whether or not the arrears still need to be repaid depends on the circumstances. If the deceased has an inheritance, the heirs shall bear the relevant debts within the scope of the inheritance, and there is no obligation to repay the excess part; If there is no heir or the heir renounces the inheritance, the creditor may enforce the deceased's estate; If there is no inheritance, the debt is eliminated. According to the provisions of the Civil Code of the People's Republic of China, the inheritance of the estate shall be paid off in accordance with the law to pay off the taxes and debts payable by the deceased, and the taxes and debts shall be limited to the actual value of the deceased's estate.

If the heir renounces the inheritance, he may not be responsible for repaying the taxes and debts that the decedent shall pay in accordance with law.

2. Can the person who owes the money still ask for the money back when he dies?

If you have an estate or a debt guarantor, you can get it back.

1.If it can be proved that it is a joint debt, the creditor can demand repayment from the spouse who is still in trouble;

1.If it is a personal debt of the deceased, it is repaid by his estate. If the entire estate is insufficient to pay off the debts, the heirs have no obligation to repay the remaining debts after the debts have been repaid with the estate.

Of course, the law also allows the heirs to voluntarily repay the part of the debt for the deceased that exceeds the actual value of the estate.

2.If the borrower does not have an estate, the guarantor is liable for debt repayment and can sue the guarantor.

Article 1159 of the Civil Code provides that the division of the estate shall pay off the taxes and debts that the decedent shall pay in accordance with the law; However, the necessary inheritance should be reserved for the heirs who lack the ability to work and do not have a livelihood.