The Russian legal system has undergone significant changes since the moment the Soviet state system disappeared. The new rules by which socio-economic relations began to be built since then also required a new legal justification. In this regard, the issue of civil legal capacity seems extremely urgent, because it is in the field of realization of civil rights. An application for recognition of incompetence is filed with the court; the sample can be found in the public domain.
Accordingly, the recognition of incompetence implies proof through a court of the lack of ability of an adult to acquire and exercise their rights, as well as incur corresponding obligations. The regulation of these concepts in the legislative field structured disability and recognition of a citizen as legally incompetent in order to transfer his civil rights and obligations to guardians.
Legal capacity characterizes the active manifestation of a citizen's legal capacity and is expressed in his direct participation in legal and economic activities, free management of his private property right and other non-property rights. At the same time, it gives grounds for his vis-à-vis to expect the citizen to fulfill property and other obligations, as well as the fact that in case of violation of obligations they can receive a satisfaction established by law.
Definition of Terms
Legislatively established that civil legal capacity is expressed in the ability to acquire and exercise their rights, as well as in the creation and fulfillment of duties. Its presence is confirmed by the fact that a person is able to independently carry out legal actions, such as, for example, concluding transactions, drawing up letters of attorney, and also fully respond in case of property damage or for non-fulfillment of the terms of contracts and other obligations. In addition, legal capacity involves the exercise of civil rights and obligations. And this last statement was enshrined precisely in the Russian Civil Code in recent historical times.
Legal capacity is the subjective right of every citizen. It differs from other types of similar law in its content. Legal capacity presupposes the possibility of choosing the definition of one's own behavior for oneself. At the same time, others must not violate this right.
Accordingly, incapacity means the inability of a person to make reasonable decisions, as well as the lack of the ability to fully exercise their rights and obligations. Legally incompetent, can be recognized in whole or in part. Partially incompetent are children from 6 to 14 years old, adolescents from 14 to 18 years old, as well as adults. Complete incapacity can be established only by the fact of the presence of serious mental disorders, proven in court. In any case, the court shall establish guardianship or trusteeship over a person recognized as legally incompetent or limited in legal capacity. This option assumes that all the rights and interests of the person are protected and protected. Depriving a person of legal capacity or even restricting it implies a significant and very sensitive invasion of a person’s personal space and significantly changes the quality of his legal status.It is precisely in view of these circumstances that only a court can make decisions regarding someone's legal capacity.
Legal capacity to determine legal personality
The position of the subject of civil relations, formed in the legal field, is called legal personality, the elements of which are legal capacity and legal capacity. Legal capacity requires the ability to exercise civil rights and fulfill obligations. According to the Civil Code, all citizens possess it from the moment of birth until death. At the same time, it is noted that certain rights are seized before reaching adulthood, since they must be exercised by a person personally. Other provisions of the Civil Code reflect the emergence of certain rights in the unborn. For example, this concerns the right of inheritance after the death of the testator, as well as the right to compensation for the loss of the breadwinner in the event that the child of the victim was born after his death.
Legal capacity unites a wide range of human rights and obligations. These include the right to inherit and bequest property, property, doing business, entering into transactions, contractual obligations, creating legal entities, copyrights, choosing a place of residence and other property and non-property rights.
Legal capacity implies the ability of a person to independently acquire and exercise rights, as well as bear responsibility for them. All three components are directly connected to each other and cannot be implemented autonomously. In other words, legal capacity is the passive side of legal personality, and legal capacity is the active side.
Offensive
Full legal capacity with a full range of rights and obligations occurs upon reaching adulthood. Under Russian law, this age is eighteen. There are also a number of exceptions to this provision. These include: marriage before the age of eighteen and the emancipation of minors.
The provision regarding marriage and the expansion of legal capacity in connection with this existed earlier, even in Soviet times. But emancipation has become a new element of civil relations. Its introduction was due to the rapid development of entrepreneurship, namely, a significant increase in the number of minors doing their own business. The innovation was associated not only with the interests of adolescents, but also with the provision of certain guarantees to creditors.
An important aspect is the understanding that legal capacity is not the same as legal capacity. The latter occurs from the moment of birth. And legal capacity, limited by law, first comes from the age of six. It follows that up to six years the child is recognized as completely incompetent. Recognition of a citizen as legally incompetent is based on determining the age and assessing the mental state, which may also be related to age. This justifies the fact that all persons participating in the civil turnover must be sure of the adequacy of the will of the subject of relations, his understanding of their actions and consequences. Thus, recognition of a person as incompetent or limitation of legal capacity due to mental problems serves to protect the interests of other participants in the relationship.
Elements of capacity
It contains three essential elements. The first determines the ability of a person to independently conduct legal activities, namely, to conclude transactions. This is the so-called dealability. Another important element of legal capacity is the ability to adequately bear responsibility for their actions and decisions. In legal practice, this is called tort.And finally, the right to be an entrepreneur, to fully engage in economic activities. All these elements are manifested differently in competent, adolescents and minors.
Types of legal capacity
Since legal capacity is the ability to acquire rights, exercise them, bear responsibility for their actions, the Civil Code stipulates that it is necessarily characterized by the ability to make reasonable judgments, an understanding of legal norms, consequences and, of course, the presence of life experience. Manifestations of these qualities depend on age and mental state. This characteristic implies the presence of three types of legal capacity: full, aged 14 to 18 years and aged six to 14 years. In accordance with this, certain restrictions are also imposed on the last two species. In the same framework, the law prescribes the grounds for declaring incompetent or restricting legal capacity.
The first type assumes that a person can independently acquire and exercise his rights of a property and non-property nature, take on the relevant duties and fulfill them, and also bear full responsibility for his actions. Its onset is the moment of coming of age. Marriage before the age of 18 or the emancipation established by law also imply the onset of full legal capacity. In the first case, this is due to the necessary equality of those who have married, as well as the protection of parental rights.
The right to emancipation comes from the age of 16. If the teenager is officially employed, works with the consent of the parents or guardians, and also acts as an entrepreneur, he can prove through the court his right to be recognized as fully capable, if the parents or guardians are not willing to voluntarily acknowledge this fact. This significantly changes the legal positioning of the adolescent, since he is vested with all rights and obligations to the fullest, just as it would be when he reached adulthood. In particular, he has the right to independently manage his earnings without consulting with anyone. It is worth noting that the established practice of emancipation allows a greater number of people to be involved in civilian circulation, and enables adolescents to gain economic independence and develop work skills as early as possible.
Recognition of a citizen as legally incompetent
The law sets out in separate provisions the possibilities for recognizing a citizen as legally incompetent in court. This implies that the law establishes a person’s lack of the ability to acquire and exercise such rights, create and bear such duties, the ability to which he, according to civil law, should be. Moreover, law enforcement practice admits recognition of both full and partial incompetence. The reverse process is also possible - recognition of the legally incompetent.
Until a certain decision time guardianship authorities was enough to limit the teenager’s partial legal capacity. However, not so long ago, lawmakers decided to strengthen the protection of the interests of adolescents and decided that this decision can only be made in court. This applies to young people aged 14 to 18 years. Recognizing a court as incompetent for a teenager means that he will not be able to manage his earnings, as well as scholarships or other types of income, without parental or guardian consent.
The legislation also established a circle of persons who can write a statement recognizing a citizen as legally incompetent, in particular, demanding to limit or deny the legal capacity of a teenager in terms of disposing of their income. With respect to a teenager, parents, guardians, adoptive parents, as well as guardianship authorities have this right.For a teenager, a sufficient basis for limiting or depriving him of his legal capacity may be a waste of income for purposes that are contrary to law and moral standards, such as drugs, gambling, alcohol, etc., as well as unreasonable expenses that do not take into account the need for food or clothing . As a result, a teenager may be limited or unable to manage their income on their own. A court decision depends on how stable these tendencies are. After a legal assessment of these inclinations, the court may decide to issue the income of the teenager to his legal representatives. The term of restriction or deprivation in this case is established by the court and is not separately prescribed by law. It is assumed that if the deadline is not established, legal capacity is returned upon reaching adulthood or upon the request of those who requested restriction or deprivation.
It is worth making a reservation: if a teenager has acquired full legal capacity due to marriage or due to emancipation, recognition of incompetence is impossible.
Grounds for limiting full legal capacity
Recognition of a limited legal capacity may take place on grounds such as alcohol or drug abuse. These grounds may apply only to those who have already entered into full legal capacity. However, they also apply to adolescents who have entered into legal marriage before the age of 18 or have received emancipation. It is worth noting that other signs immoral behavior such as, for example, addiction to gambling, are not grounds for court, although they can cause significant damage to the family budget and members of the family of a person who is addicted to addiction. Meanwhile, in a number of countries, Germany and France, for example, wastefulness may be one of the grounds for limiting legal capacity. In pre-revolutionary Russia, too, there was something similar, however, in Soviet reality, such a concept, as well as the fact itself, did not exist, and therefore the corresponding norm did not appear.
Such a measure with respect to adults significantly changes their legal status, therefore serious reasons are required with a full evidence base. An application for recognition of incompetence on restrictive grounds is submitted to the court, which must give a legal assessment of all the evidence presented. Such reasons can only be addiction to alcohol or drugs. Further - this addiction should significantly affect the family budget, which puts family members in an extremely difficult position.
If the court, having made the appropriate legal assessment, takes the side of the applicants, guardianship will be established over the person. From this moment, he will be able to make property transactions and manage his income only with the consent of the trustees established by the court. The restriction may also be lifted in court in the event of termination of the actions that caused the limitation of legal capacity.
Total incapacitation
According to the law, the recognition of incompetence is possible with significant mental disorders. At the same time, the presence of such disorders or dementia as a fact, even confirmed by certificates and obvious to others, cannot serve as an absolute basis due to which recognition of a person as incapable will take place. This decision is made only by the court. An application for recognition of a citizen as legally incompetent can be submitted by both family members and employees of the psychiatric clinic, guardianship and trusteeship bodies, as well as the prosecutor himself. The procedure for declaring incompetent provides for the mandatory conduct of forensic psychiatric examination, which should confirm the state of the human psyche. At the trial, the prosecutor and guardianship authorities must be present.These conditions are necessary to guarantee the protection of personal rights and freedoms of a person and his legal status.
It is also important that the case on recognition of a citizen as legally incompetent can be reviewed if his mental health is restored and significantly improved. In this case, the examination is repeated, on the basis of which a new court decision is made.
The main tasks of guardianship
Recognition of the incompetence of any of the listed citizens entails the appointment of either guardianship or guardianship. The development of this institution is associated with the desire to make up for the legal capacity that a person was deprived of or partially limited, as well as to preserve his interests and rights. It is worth noting that the functioning of this institution until 1994 was regulated only by the Family Code. At the same time, its close relationship with civil law, regulating legal capacity and legal capacity, was affirmed. That is why it was decided to introduce regulation of the institution of guardianship in the field of civil law.
Since the basic norms of action of this institution are spelled out in the Civil Code, in the case when a person writes a statement of recognition as incompetent (a lawyer can help fill out a sample), this case is considered primarily in the framework of civil law relations.
The main tasks that the institution of guardianship and trusteeship must fulfill are the protection and preservation of the rights and interests of those to whom they are assigned by the court.
Differences between guardianship and trusteeship
Guardianship is the care provided for and regulated by law for children under 14 years of age or for citizens recognized as legally incapable of mental health. The meaning is that it is the guardian who exercises the rights and obligations of the person for the period of incapacity, is his legal representative in court and when making property transactions. Its main task is to protect and lawfully respect the interests and rights of its wards.
The assertion about establishing custody only of citizens deprived of full legal capacity can be considered not quite true. The inaccuracy of the wording is related to the provision in the Civil Code, according to which children from six to 14 years old are only partially incompetent.
As a kind of spies on children aged 14 to 18 years, whose disability is considered partial, as well as people who were limited in their legal capacity, trustees are established. The fundamental difference from the guardian is that the trustee does not replace his ward, but only helps him realize his rights and obligations. Help consists of advice, as well as the right to give or not to consent to the commission of certain legal actions. Thus, the trustee is called upon to keep a citizen partially limited in incapacity from unreasonable decisions or to fill in his experience with the minor’s missing knowledge.
