Vous êtes sur la page 1sur 4

Sec. 1. Appointment of representative.

- When a person disappears


from his domicile, his whereabouts being unknown, and without
having left an agent to administer his property, or the power
conferred upon the agent has expired, any interested party, relative
or friend, may petition the Court of First Instance of the place where
the absentee resided before his disappearance for the appointment
of a person to represent him provisionally in all that may be
necessary. In the City of Manila, the petition shall be filed in the
Juvenile and Domestic Relations Court.
What is absence and an absentee?
Absence means not being present; hence, an absentee is one who is
not in the place where he should be found, actively of passively, either for
making effective some right or using some power, or for the purpose of
enabling another to exercise or to use against him those corresponding to
such other1.
However, the absence refer to in the Civil Code is the special legal status of
one who is not in his domicile, his whereabouts unknown, and it is uncertain
whether he is dead or alive.
Kinds of Absence
1. Ordinary Absence: where the absentee disappeared under normal
circumstances and without apparent danger.
2. Qualified
Absence: where the disappearance was under
extraordinary circumstances, or with apparent danger.
Stages of Absence
1. Temporary or provisional absence: Happens as soon as a person
disappears from his domicile and his whereabouts are unknown,
leaving no administrator of his property.
2. Normal or declared absence: One judicially declared after two years
since the last news was heard from such absentee, or five years if such
absentee left an administrator.
3. Definite absence or Presumptive Death: Takes place when after the
period provided by law, a person is presumed dead; this period is

1 Tolentino, Arturo. Commentaries and Jurisprudence on the Civil Code of the


Philippines. Volume I. Central Professional Books, Inc. 1990.

provided under Article 391 of the New Civil Code providing for the
presumption of death in extraordinary circumstance.
This section refers to a Petition for Appointment of Representative to
represent an absentee, in a provisional manner, in all that may be necessary.
The provisions from this section had been adopted from the provision of
Article 381 of the New Civil Code which states:
Art. 381. When a person disappears from his domicile, his
whereabouts being unknown, and without leaving an agent
to administer his property, the judge, at the instance of an
interested party, a relative, or a friend, may appoint a
person to represent him in all that may be necessary.
This same rule shall be observed when under similar
circumstances the power conferred by the absentee has
expired. (181a)
After an appointment had already been made Article 382 of the New
Civil Code provides for the duties and powers of the judge with respect to the
grant of a representative of an absentee. The said Article provides:
Art. 382. The appointment referred to in the preceding
article having been made, the judge shall take the
necessary measures to safeguard the rights and interests
of the absentee and shall specify the powers, obligations
and remuneration of his representative, regulating them,
according to the circumstances, by the rules concerning
guardians. (182)
Requisites for the Appointment of a Representative
1. A person disappears from his domicile;
2. Whereabouts of such person is unknown;
3. Such person has not left an agent to administer his property or even if
he left such agent, the power conferred upon such agent has expired;
4. The persons disappearance is less than two years.
Who may file Petition for Appointment
1. Relative
2. Friend
3. Any Interested Party

In cases of a married person, it is to be remembered that the preceding


enumeration refers to those person who may file the petition not to those
who may be appointed. Though this person may be appointed in certain
cases it must be remembered that there is a preference for the spouse to be
the representative of the absentee. The same preference goes for the
appointment of a trustee or administrator.
Where to File Petition
The Court which has jurisdiction over the petition is the Regional Trial
Court of the last place of residence of the absentee before his
disappearance. In cases where the absentee had his residence in the City of
Manila the last sentence of this section provides that such petition be filed in
the Juvenile and Domestics Court of the said city.
Sec. 2. Declaration of absence; who may petition. - After the lapse
of two (2) years from his disappearance and without any news about
the absentee or since the receipt of the last news, or of five (5)
years in case the absentee has left a person in charge of the
administration of his property, the declaration of his absence and
appointment of a trustee or administrator may be applied for by any
of the following:
(a) The spouse present;
(b) The heirs instituted in a will, who may present an authentic copy
of the same;
(c) The relatives who would succeed by the law of intestacy; and
(d) Those who have over the property of the absentee some right
subordinated to the condition of his death.
This section refers to a petition for the declaration of absence and the
appointment of a trustee or administrator. 2 This is adopted from Article 384
and Article 385 of the New Civil Code. This is actually a reiteration and
combination of the two articles into one. The first paragraph of Section 2 is
taken from Article 384 of the New Civil Code which provides:
Art. 384. Two years having elapsed without any news
about the absentee or since the receipt of the last news,
2 Tabingan, Monroe. Special Proceedings. 2nd Edition. Central Professional
Books. 2005

and five years in case the absentee has left a person in


charge of the administration of his property, his absence
may be declared. (184)
The enumeration of those people who may file for the petition for Declaration
of Absence is taken from Article 385 of the New Civil Code providing:
Art. 385. The following may ask for the declaration of
absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an
authentic copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee
some right subordinated to the condition of his death.
(185)
When Petition Proper
1.) After the lapse of two years from an absentees// disappearance; or
2.)
After the lapse of five years, in case the absentee left a person in
charge.