The legal capacity of a citizen of the Russian Federation is measured by his rights and obligations. This concept underlies the possession of subjective rights by a person, arising only if there are certain legal facts, actions and events.
It is also a general (abstract) opportunity recognized by the state to have the duties and rights established by law. However, the law does not have an exhaustive list of the rights of each of the subjects of legal relations. There is only a listing of the most significant features.
Types of legal capacity will be considered in this article.
The main differences from subjective law
Many cannot distinguish subjective law from legal capacity. We list the signs of the latter:
- she is inseparable from the person; it is impossible to deprive someone of legal capacity or limit its use;
- it does not depend on such characteristics as gender, age, profession, nationality, property status, etc .;
- it cannot be transferred to other persons;
- it is a prerequisite for subjective law, i.e. primary;
- unlike subjective law (which specifically), legal capacity is abstract.
Civil legal capacity does not arise in full immediately.
It is included in the determination of the legal personality of a citizen, along with legal capacity, sanity and tort, i.e. liability for civil wrongs.
Legal capacity is understood to mean the general ability of a person recognized by the state to possess subjective rights and legal duties. Without exception, all citizens possess it, since it arises from the moment it is born, and ends with the passing away of life. This is a socio-legal (as opposed to natural) concept. The duty of the state is to protect this quality.
It is important to note that civil legal capacity arises in full in a person from eighteen years of age.
However, the equality of all citizens in this regard does not mean that the volume of subjective rights will be the same for them. Since in fact the moment when a person becomes the owner of certain rights occurs at different periods of time and continues until the death of a citizen.
Kinds
The theory of law distinguishes several types of legal capacity. Firstly, general - i.e. it is a fundamental, generalized ability of a citizen to possess any subjective rights, as well as to bear all types of legal duties stipulated by law. Secondly, industry - this type of legal capacity provides a person with the opportunity to acquire certain subjective rights (as well as bear legal obligations) in certain branches of law. She can be labor or marriage. And thirdly, special. Its implementation requires special knowledge, talent, a document confirming the existence of a specialty, etc. For example - medical legal capacity, etc.
Civil and legal capacity - differences
When they mean legal capacity, they talk about a person’s ability to have civil rights and obligations. The legal capacity is the ability to acquire and exercise civil rights through their actions, to create obligations for themselves and to fulfill them. If the first is recognized for all citizens from the moment of birth to death equally, the second appears from the moment of reaching a certain age.But full legal capacity and legal capacity are similar concepts. Since both the one and the other come at the time of adulthood (from the age of 18).
These concepts are inseparable from each other in legal entities.
Legal capacity is understood as the ability of a citizen to use subjective rights and legal duties, the ability to exercise their own actions, and also be responsible for the consequences. All this means the opportunity to be a party to legal relations. Legal capacity depends on the age and mental state of the person.
That's the difference between civil legal capacity and legal capacity.
Full and partial
By types of legal capacity is divided into full (from 18 years), partial (from 14 years to 18) and limited (by court order). Subjects of legal capacity can be individuals and legal entities, as well as public entities. Therefore, all of the above can participate in civil law relations, if they have the legal capacity. Individuals are understood to mean all citizens of the Russian Federation, as well as foreign individuals and without citizenship.
There is a concept of emancipation in the Civil Code. It means the right of a minor citizen (under 16 years of age) to be considered fully capable if he works (has an employment contract) or is engaged in business with the consent of his parents.
And from what moment does legal capacity arise?
How legal capacity is defined by law
You can not put an equal sign between the legal capacity and natural rights of the individual, since it is the state that endows it with its citizens, and also determines the extent of legal capacity. This concept is closely related to the concept of "citizenship". Those. if a person has changed citizenship, then he will be the subject of legal capacity in another country.
Foreigners can also be its subject, except for some cases prescribed by law. And this means that the rights of foreigners in Russia are determined by the laws of Russia, and not of the state where the foreigner has citizenship. T.O. a foreign person does not have a wider range of rights than citizens of the Russian Federation. All of this is collectively called the national regime.
In the 18th article of the Civil Code, persons recognize the right of ownership of property, the right to inherit and testamentary property, the right to engage in business and other activities not prohibited by law. The right to form legal entities (alone or together with someone), to commit illegal transactions and agreements, to choose their own place of residence, etc., is also spelled out.
Civil legal capacity arises in full from the age of 18.
Article 23 of the same code spells out the right of citizens to carry out entrepreneurial activities without creating a legal entity, but only subject to registration as an individual entrepreneur. The most important of these rights are enshrined in the Constitution.
The provision on the legal capacity of citizens of the Russian Federation from the moment they were born is enshrined in article 17 of the Civil Code of the Russian Federation. This moment is defined by medicine as the beginning of breathing in a child. At the same time, the viability of the born one does not matter. Even if it happened that the baby lived only a few hours - he was already a subject of legal capacity. This will last until a person dies.
However, the protection of the rights of the unborn child and the moment of determining its legal capacity are not the same thing. For example, there is a provision stating that the testator’s children born to the world after his death can be heirs, does not at all lead to the fact that they have the legal capacity before birth. Biological death means its end.
When a Legal Restriction Appears
Article 22 of the Civil Code states that it is impossible to limit the legal capacity of citizens in addition to cases established by law.For example, the state can limit it - if necessary, protect the foundations of the constitutional order, health, legitimate interests and rights of individuals, ensure the country's defense, but this can only be done under the letter of federal law.
The fifty-sixth article of the Constitution speaks of the possibility of such a limitation in case of emergency. But at the same time, the limits should be set limits, as well as the validity period. This does not concern the restriction of the most fundamental rights - to life, to the dignity of an individual, to privacy, to housing and some others.
Court sentence
A verdict or court ruling may also cause a limitation of legal capacity. For example, a citizen may be forbidden to occupy any position or engage in any activity. A recognizance not to leave is also a limitation of this order.
Also, the Russian government has established reciprocal restrictions (or retorsions) regarding certain rights of foreign citizens relating to states that have specially established restrictions for citizens or organizations of Russia.
So, civil legal capacity arises in full with the onset of adulthood, that is, when a person turns 18 years old.
Name and surname of a citizen as an attribute of his legal capacity
The name as a distinctive feature and method of designating a person is an attribute of his legal capacity. The name is associated both with the socio-social assessment of the individual, and with the fixation of its participation in civil law relations. On the other hand, the name is not the property of a citizen, since it cannot be sold or mortgaged, nor be denied. It is the name given to the citizen at birth. Patronymic is a generic name, and a person inherits a surname from ancestors.
middle name
So, the middle name is assigned to a newborn by the name of his father. The surname is determined by the one worn by his parents. If they have different surnames, then the child is assigned one of them, by agreement between the mother and father. If there is no such agreement, the decision is made by the guardianship authorities.
These are the rights that children have from birth.
Name Rights
So, the right to a name is a personal non-property right of a minor exercised by his parents. He has no economic basis, it is inextricably linked with the person, he cannot be transferred, and also the person has the right to demand to contact him in accordance with his name. The law provides for the possibility to change the name (first and second paragraphs of the Act on Civil Status Acts under number 58). Usually it changes during the registration or termination of marriage, during the establishment of paternity, during adoption, and also on the personal initiative of a citizen. Upon marriage, spouses have the opportunity to change their name or leave the same. Also, one of the spouses has the right to add the surname of the other to his. If the spouse, who changed his name during marriage registration, wants to leave it after the divorce, he also has such a right.
The notion of "good name" is indirectly related to the right to a name. But he has his own sphere of implementation and methods of protection. Not everyone can have a good reputation, but a good name is a presumption, unless proven otherwise.
Also, divorce does not imply a change in the names of children. The establishment of paternity may oblige (or this decision will be voluntary) to change the child's middle name, assign him the name of the father. In the case where the father and mother live separately from each other, the one with whom the child lives may wish to give him his last name. Then the decision is made by the guardianship authorities, guided by the interests of the child and taking into account the opinion of the second parent. The inability to determine the location of the other parent, the fact of deprivation of parental rights, established incompetence, etc., removes the obligation to take into account his opinion.
Adoption can also be a situation of changing the name of the child, but after reaching 10 years of age, his opinion must be taken into account. The exception will be cases if the child considers those who adopted him as his own parents. Guardianship (or otherwise - guardianship, foster family) does not give grounds according to which you can change the name of the adopted child.
Conclusion
So, absolutely every citizen of the country has legal capacity, from the moment of birth to death. Foreigners have legal capacity, according to the definition of the country in whose territory they are located. Legal capacity along with a number of other factors is the basis for civil law relations.
We examined the concept of legal capacity and legal capacity.