Legal capacity. Emancipation

Civil capacity It is the ability to have civil rights and bear responsibilities.

Legal capacity of a citizen occurs at birth and ceases at death(Article 17 part 1 of the Civil Code of the Russian Federation).

Subjectivity of rights and obligations

A citizen can waive a subjective right, but cannot waive legal capacity.

The ability to have civil rights must be distinguished from the possession of these rights. Legal capacity is only a general prerequisite for the emergence of subjective rights and obligations. The presence of legal capacity only indicates that a person may have certain civil rights, for example, for example, to a car, but this does not mean that this person currently has a car. The right of ownership as a subjective right arises for a citizen as a result of certain legally significant actions (), for example, as a result of concluding a contract for the sale of a car. Before buying a car, a citizen had only civil legal capacity, i.e., the ability to have civil rights and bear obligations, and after buying this opportunity, this opportunity became a reality and he became the owner of a subjective civil right - the right to own a car.

Scope of legal capacity all citizens are the same. Each of the citizens can have the same rights as any other (general legal capacity). An approximate list of civil rights that may belong to individual citizens is contained in Art. 18 hours 1 of the Civil Code of the Russian Federation.

Citizens can:

• own property;
• inherit and bequeath property;
• engage in entrepreneurial and any other activities not prohibited by law;
• create legal entities;
• make any transactions that do not contradict the law;
• choose a place of residence;
• have the rights of the author of works of science, literature and art;
• have other property and personal non-property rights.

Civil capacity

To be a full participant in civil law relations, a citizen must also have legal capacity.

legal capacity- this is the ability of a citizen, by his actions, to acquire and exercise civil rights and create civil obligations for himself and fulfill them (Article 21 Part 1 of the Civil Code of the Russian Federation).

The possibility of taking actions, as a result of which a citizen has or terminates certain rights or obligations, depends both on the age of the citizen and on the state of his health, as a result of which unlike legal capacity, the capacity of individual citizens may not be the same.

Citizens are divided into four groups according to the volume of legal capacity:

• fully capable;
• partially capable;
• limited capacity;
• incompetent.

Full legal capacity

Fully capable citizens- these are citizens who have reached the age of 18 (adult citizens), - Art. 21 h. 1 of the Civil Code of the Russian Federation.

In some cases, full legal capacity occurs before the age of 18, namely:

When the law allows marriage before reaching the age of 18, a citizen who has not reached this age acquires legal capacity in full from the time of marriage.

Reducing the age of marriage below 16 years is possible only in those subjects of the Russian Federation where marriage is allowed before the age of sixteen. Legal capacity acquired as a result of marriage is retained in full even in the event of dissolution of the barque before reaching the age of eighteen. If the bark is declared invalid (for example, a fictitious marriage), the court may decide that the minor spouse will lose full legal capacity from the moment determined by the court.

Another basis for acquiring full legal capacity is emancipation.

Emancipation- declaration of a minor who has reached the age of 16, fully capable by decision of the guardianship and guardianship authority - with the consent of both parents, adoptive parents or guardian, or in the absence of such consent - by a court decision.

The grounds for emancipation are work under an employment contract or entrepreneurial activity.

Full civil capacity allows citizens to independently acquire any civil rights, as well as to assume and perform any civil duties.

Partial capacity

Partially capable it is customary to call citizens under the age of 18, that is, minors.

Minors by their actions, that is, independently, can acquire not all, but only a certain range of civil rights. They may acquire other rights only with the consent of their parents, adoptive parents or guardians, or only through transactions made on their behalf by parents, adoptive parents or guardians. It depends on the age of the minor.

For minors under 14 years old(minors), transactions can be made on their behalf only by their parents, adoptive parents or guardians. But minors aged 6 to 14 years have the right to independently commit:

• small household transactions;
• transactions aimed at gratuitous receipt of benefits (gifts) that do not require notarization or state registration;
• transactions for the disposal of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal.

juvenile aged 14 to 18 years old have the right to make transactions. However, this requires the written consent of parents, adoptive parents or trustees (Article 26 Part 1 of the Civil Code of the Russian Federation). Otherwise, a transaction made by a minor between the ages of 15 and 18 without the consent of parents, adoptive parents or trustees may be declared invalid by a court (Article 175 Part 1 of the Civil Code of the Russian Federation). At the same time, minors between the ages of 14 and 18 can make a number of transactions on their own. These include:

• small household transactions;
• transactions for the disposal of their earnings, scholarships and other incomes;
• exercising the rights of the author of a work of science, literature and art, an invention and a similar object;
• making deposits in credit institutions and managing them.

Limited legal capacity

Disability limitation citizens is not allowed, except in cases expressly provided by law. One of these cases is the restriction by the court of the legal capacity of citizens who abuse alcohol or drugs (Article 30 Part 1 of the Civil Code of the Russian Federation).

In case of restriction of the legal capacity of a citizen over him guardianship is established, and he can make transactions on the disposal of property, as well as receive, pension or other types of income and dispose of them only with the consent of the trustee, otherwise it may be declared invalid by the court.

However, such a citizen independently bears property liability for transactions made by him and for the harm caused to him.

incapacity

Incompetent by a court decision, citizens are recognized who, due to a mental disorder, cannot understand the meaning of their actions or manage them (Article 29 Part 1 of the Civil Code of the Russian Federation).

The assessment of the health of a citizen is not given by the court, but by a forensic psychiatric examination. But only a court has the right to recognize a citizen as incompetent. guardianship is established over a citizen recognized as incompetent. Recognition of a citizen as legally incompetent means that he has no right to acquire and exercise civil rights and obligations by his actions. On behalf of the legally incompetent, the transaction is made by his guardian. Responsibility for harm caused by a citizen recognized as incompetent shall be borne by his guardian or an organization obliged to supervise him.

The law allows restriction (under certain conditions) of the legal capacity of citizens who abuse alcohol or drugs (Article 30 of the Civil Code). This rule applies only to citizens with full legal capacity, since citizens aged 14 to 18, if there are sufficient grounds, are limited in legal capacity in the manner discussed above. However, it should be recognized that the provision of Art. 30 of the Civil Code also applies to minors who, before reaching the age of 18, have acquired full legal capacity in connection with marriage (clause 2 of article 21 of the Civil Code) or in the manner of emancipation (article 27 of the Civil Code). Such citizens must be subject to all the rules relating to fully capable persons, and the rules defining the legal status of minors cannot be applied.

Restriction of legal capacity of an adult citizen is a very significant intrusion into his legal status and therefore is allowed by law if there are serious grounds that must be established by the court.

First, the limitation of legal capacity is provided for by Art. 30 of the Civil Code only for persons who abuse alcohol or drugs. Other abuses and vices (for example, gambling, betting, etc.) cannot lead to disability, even if they cause material difficulties for the family.

Secondly, the basis for limiting the legal capacity of a citizen under Art. 30 of the Civil Code is such excessive consumption of alcoholic beverages or narcotic substances, which entails significant expenses for their purchase, which causes financial difficulties and puts the family in a difficult situation.

The limitation of the citizen’s legal capacity in the case under consideration is expressed in the fact that, in accordance with the decision of the court, guardianship is established over him and he can make transactions on the disposal of property, as well as receive wages, pensions or other types of income and dispose of them only with the consent of the guardian. He has the right to independently make only small household transactions (paragraph 1 of article 30 of the Civil Code).

When a citizen ceases to abuse alcohol or drugs, the court cancels the restriction of his legal capacity.

Cases and procedure for restricting the legal capacity of a citizen (including absolute restriction, i.e. declaring incompetent) in accordance with Art. 22 of the Civil Code can only be established by federal law.

Article 29 of the Civil Code, as the only basis for recognizing a citizen as incompetent, establishes the mental state of a citizen - the presence of a mental disorder, due to which he either cannot understand the meaning of his actions, or can understand, but cannot manage them.

"A case on recognizing a citizen as legally incompetent may be initiated at the request of members of his family, the prosecutor, the guardianship and guardianship authority, a psychiatric medical institution, and other persons specified in Article 258 of the Code of Civil Procedure." The presence of a mental disorder in a citizen must be confirmed by the conclusion of a forensic psychiatric examination.

On the basis of a court decision declaring a citizen incompetent, guardianship is established over him (clause 1, article 29 of the Civil Code), and a guardian is appointed to him, who, on his behalf and in his interests, makes all necessary transactions (clause 2, article 29, article 32 GK).

A transaction made by an incapacitated person personally is void from the moment of its conclusion, except for the case when it is recognized by the court at the request of the guardian as valid if it is made to the benefit of the incapacitated person (Article 171 of the Civil Code).

The incapacitated are non-dictatorial persons (Article 1076 of the Civil Code). “Responsibility for harm caused by a legally incapacitated person shall be borne by his guardian or an organization obliged to supervise him ... their obligation to compensate for damage does not stop if the tortfeasor is subsequently recognized as capable ..., and they, by virtue of paragraph 4 of Article 1081, do not have rights of recourse to the latter." The novelty of the Civil Code is the rule on the possibility, under certain conditions, of imposing responsibility for the harm caused on the tortfeasor himself (paragraph 3 of article 1076 of the Civil Code).

“Deprivation of legal capacity is not irrevocable. If the grounds on which the citizen was declared incapacitated disappear, the court makes a decision on recognizing him as capable, and on the basis of the decision, the guardianship established over him is canceled” (paragraph 3 of article 29 of the Civil Code).

The grounds for limiting the legal capacity of a citizen are established in paragraph 1 of Art. 30 GK:

• 1) a citizen abuses alcohol or drugs;
• 2) such actions of a citizen put his family in a difficult financial situation.

"If a citizen lives alone (does not have a family), he cannot be limited in capacity."

“The limitation of a citizen’s legal capacity and the abolition of its restriction are carried out in the manner established by civil law, which is in many respects similar to the procedure for recognizing a citizen as incapacitated ... To make a decision on limiting a citizen’s legal capacity, the court should not appoint a medical examination, and the consideration of the case is carried out with the obligatory participation of the relevant citizen, the citizen himself can apply for the cancellation of the case.

A citizen with limited legal capacity is placed under guardianship (clause 1, article 30 of the Civil Code), and a trustee is appointed to him.

The capacity of a citizen with limited capacity is narrower than even the capacity of minors. On his own, he has the right to make only small household transactions. He can make other transactions, as well as receive earnings, pensions and other incomes and dispose of them only with the consent of the trustee (paragraphs 2 and 3 of article 30 of the Civil Code).

At the same time, such a citizen independently bears property liability for transactions made by him and remains fully capable of delinquency (paragraph 3, clause 1, article 30, article 1077 of the Civil Code).

A transaction on the disposal of property, made without the consent of the trustee by a citizen limited by the court in capacity (with the exception of small household transactions), may be recognized by the court as invalid at the suit of the trustee (i.e., it is voidable; clause 1 of article 176 of the Civil Code). In case of such recognition, the consequences of a void transaction made by an incapacitated person are applied to it.

A citizen recognized as legally incompetent cannot, in fact, be an individual entrepreneur, tk. its ability to trade is non-existent.

The same should be recognized in relation to a person with limited legal capacity, t.to. the volume of his bargaining power is insufficient to conduct entrepreneurial activity (entrepreneurial activity, in accordance with paragraph 3 of clause 1 of article 2 of the Civil Code, is independent, and on his own he can only make small household transactions).

Restriction of the legal capacity of citizens is possible only in cases and in the manner prescribed by law (part 1 of article 12 of the Civil Code). It lies in the fact that a citizen is deprived of the ability by his actions to exercise civil rights and fulfill duties that, by virtue of the law, he could already have. It is therefore a question of reducing the volume of the person's legal capacity.

Limited in legal capacity can be both a person with full legal capacity and a person with incomplete legal capacity.

Restriction of incomplete legal capacity of minors is allowed by decision of the guardianship and guardianship authorities (Chapter 13 of the Code on Marriage and Family of the Russian Federation), which he takes either on his own initiative or at the request of public organizations or other interested persons (parents, adoptive parent, guardian, close relatives).

Let us clarify that the interest of these organizations or persons may lie both in the fact that the improper disposal of their money by a minor affects someone's property interests, and in the fact that the wrong actions of a minor harm his own development, the formation of a worldview.

Part 13 of Art. 13 of the Civil Code states that restriction or deprivation of the right to dispose of a minor's own earnings or a scholarship is possible if there are "sufficient grounds". Such grounds should be recognized as spending money for purposes that are contrary to the law and moral standards (purchase of drugs, gambling, etc.).

The guardianship authority can either restrict the minor in the right to dispose of earnings or scholarships, or completely deprive him of this right. On the basis of such a decision, the earnings (stipend) of a minor, in whole or in part, should be given not to him, but to the persons indicated in the decision of the guardianship and guardianship body - his parents, adoptive parents, guardian.

If the decision of the body of guardianship and guardianship indicated a period of restriction or deprivation of the right of a minor to dispose of his earnings (stipend), then at the end of this period, legal capacity is restored in full. If the period of validity has not been specified, then it is valid until the minor reaches the age of 18, or until it is canceled by the guardianship and guardianship body on its own initiative or at the request of public organizations and other interested persons.

Such an extrajudicial procedure for limiting legal capacity is an exception to the general rule. Taking into account the shortcomings in the practice of its application, the new Civil Code is supposed to replace it with a general (judicial) procedure.

Restriction of the full legal capacity of adult citizens is allowed in Article 16 of the Civil Code. Such a restriction is a serious intrusion into the legal status of an adult citizen and is therefore allowed by law only if there are serious grounds.

This article provides for the restriction of legal capacity for persons who abuse alcohol or drugs. Other abuses and vices cannot lead to disability, even if they cause material difficulties for the family, and "put the family in a difficult financial situation."

Such a citizen may be limited in capacity only by a court, in the manner prescribed by the Code of Civil Procedure (Chapter 29 of the Code of Civil Procedure). Guardianship is established over him. Such a person may make transactions for the disposal of property, as well as receive wages, pensions or other types of income and dispose of them only with the consent of the trustee, with the exception of small household transactions.

When a citizen ceases to abuse alcohol or narcotic substances, the court cancels the restriction of his legal capacity, and also cancels the guardianship established over him.

According to Article 15 of the Civil Code, the basis for recognizing a citizen as incapacitated is a mental illness or an abnormality of mental development (dementia), as a result of which a citizen is not able to understand the meaning of his actions and manage them.

However, the mere fact of mental illness or dementia, even if it is obvious to others or confirmed by a certificate from a medical institution, does not yet give grounds to consider a citizen incompetent.

He can only be declared incompetent by a court, and according to Article 258 of the Code of Civil Procedure, only family members of a citizen, a prosecutor, a guardianship and guardianship agency, a psychiatric medical institution can apply to the court. To consider such a case, a conclusion on the state of the citizen's mentality is required, issued by a forensic psychiatric examination at the request of the court. All this is an important guarantee of the personal rights and interests of a citizen, preventing arbitrary intrusion into his legal status. Such a citizen is considered completely incompetent and, by a court decision, guardianship is established over him.

One of the constituent elements of the legal status of minors is the possibility of their independent participation in civil law relations. The rules for participation in civil circulation of individuals under the age of 18 are determined, in particular, by Art. 26 of the Civil Code of the Russian Federation. Accordingly, the legal capacity of such minors is called incomplete (partial).

At the same time, it is noted that the terms "incomplete capacity" and "limited capacity" should be distinguished, and it is indicated that only full capacity can be limited. Indeed, the limitation of legal capacity is possible only in court in cases established by law. In particular, art. 30 of the Civil Code of the Russian Federation establishes the possibility of limiting the legal capacity of a citizen if he abuses alcohol or drugs and thereby puts his family in a difficult financial situation.

Comparing the civil law status of adult citizens with limited legal capacity with the status of minors aged 14 to 18, it can be noted that both of them themselves participate in transactions. The similarity of the legal status of a citizen with limited capacity and a minor between the ages of 14 and 18 is also manifested in the need to obtain the consent of the guardian (parent) to make transactions.

However, minors between the ages of 14 and 18 can, with the consent of the guardian, make not only small household transactions, but also other transactions listed in Art. 26 and 28 of the Civil Code of the Russian Federation. Consequently, from the point of view of the law, the legal personality of minors aged 14 to 18 years is considered to be more complete than the legal personality of an adult person with limited legal capacity.

It seems that the legislative provision, which provides for the possibility for minors aged 14 to 18 to make a wider range of transactions compared to individuals with limited legal capacity, is based on the following assumption. When using the volume of civil capacity provided by law, it is assumed that actions are taken that do not contradict the interests of other persons or society as a whole, in particular, economically expedient actions. In the same case, when a citizen by his actions demonstrates his inability to comply with the established requirements, he may be limited by law in capacity.

Speaking about the circle of persons to whom Article 30 of the Civil Code of the Russian Federation applies, it can be noted that the wording of this article does not allow an unequivocal answer to the question of its application (or non-application) to minors. Legal consequences of the restriction of the civil capacity of citizens on the basis of Art. 30 of the Civil Code of the Russian Federation is wider than those provided for in paragraph 4 of Art. 26 of the Civil Code of the Russian Federation. At the same time, the possibility of limiting the legal capacity of an individual in the first case is made dependent on the presence of the facts named in the law (for example, the abuse of alcohol or drugs by a citizen, which puts the family in a difficult financial situation), and in the second case, the law does not specify the reasons for applying such a sanction.

Determining the legal nature of legal capacity, one cannot but agree with the opinion that legal capacity, like legal capacity, by its legal nature is a subjective right of a citizen. The content of legal capacity as a subjective right is the possibility of a certain behavior.

In our opinion, the level of development of a person's mental abilities is quite justifiably put forward as the basis for the emergence of full legal capacity, along with the moment of will. It is hardly legitimate to consider separately the opportunity to correctly and comprehensively assess the situation and the formation of the will of the person.

Indeed, at present, the Civil Code of the Russian Federation clearly defines the age at which a minor citizen acquires incomplete legal capacity, which does not leave the law enforcement officer the opportunity to derogate from this rule, even in cases where this would be objectively necessary.

By establishing the age limit of full legal capacity, the legislator proceeds from the assumption that the fact of reaching the age of 14 confirms that a person has reached the required level of mental, intellectual maturity. By the age of 14, a citizen, as a rule, acquires a certain life experience that allows him to independently act in civil circulation, exercise some of his rights, create and fulfill duties. But it should be noted that, initially based on this presumption, the legislator does not fix it in the law, but clearly and definitely sets the age of incapacity for all citizens. RF.

The ability to understand, to comprehend the meaning of one's actions belongs more to the field of intellect. The development of intellectual abilities depends on a number of factors, and in real life the ability to comprehend the meaning of their actions is different for different people. Consequently, some citizens may reach the level of mental maturity recognized by law even before the age of 18, while others - much later. Thus, a lag in mental development certainly affects a person's ability to comprehend the legally significant actions he takes, as well as to foresee the possible consequences of these actions.

In addition, as grounds for the emergence of full legal capacity, the Civil Code of the Russian Federation provides for such legal facts as marriage before the age of 18 and emancipation. The age limit of legal capacity is determined by the legislator, taking into account not only psychological factors, but also economic factors. The legislator assumes the possibility of situations when it is necessary to recognize for minors the ability to comprehend their actions and to qualitatively form their will that meets the requirements of the law.

The grounds for emancipation under the current civil legislation may be the work of a minor citizen under an employment contract or entrepreneurial activity (Article 27 of the Civil Code of the Russian Federation). Thus, according to the legislator, full civil capacity, i.e. First of all, the opportunity to make transactions without the consent of parents, adoptive parents or guardian, can be granted to a minor only on condition that he is sufficiently capable of directing his actions and being aware of their consequences. Accordingly, the actual prerequisite for the emergence of full civil capacity of a person must be considered a sufficient level of mental maturity of a minor. However, it should be noted that the degree of readiness of a teenager to acquire full civil capacity is determined very subjectively, since the decision on emancipation is made by the guardianship and guardianship authority or the court, guided by its own discretion.

At the same time, the entry of a minor into marriage does not at all prove that he has reached the level of intellectual maturity and the ability to qualitatively form his will that the law assumes. Valid reasons that give grounds for lowering the age of marriage are, for example, pregnancy or the birth of a child, although, in our opinion, these circumstances indicate that minors are not yet fully aware of their interests, be aware of their actions and in sufficient degree to guide them.

Regulating the legal capacity of a minor citizen, the law uses precisely the presumption of the emergence of the required level of mental maturity. However, the rule of paragraph 4 of Art. 26 of the Civil Code of the Russian Federation allows to refute this presumption. Given that for a minor, the most common way to dispose of property is to dispose of money, in particular, it is precisely this right that he may be deprived of.

In our opinion, the inability of a minor to reasonably spend his property should be considered the basis for such a restriction. Such behavior does not correspond to the appointment of legal capacity as a special subjective right. The inability to spend money wisely most often in practice is caused by the abuse of alcohol or drugs by minors, i.e. precisely those circumstances with which Art. 30 of the Civil Code binds the restriction of the civil capacity of an adult.

However, the abuse of alcohol or drugs is not the only reason for the economically inefficient use of property. The need to improve the approach to the grounds for restrictions on full legal capacity has already been discussed in the science of civil law.

Among the variety of measures taken by the state and society in order to prevent and reduce the consequences of such harmful social phenomena as alcoholism and drug addiction, it is impossible to single out any individual, especially effective measures. Achieving the result to which such efforts are directed is possible only with the use of a complex of social, psychological, medical, legal and other measures. The central place among them belongs, of course, to measures of a social nature of a fairly wide range, which include, first of all, a balanced social policy of the state.

It seems that in order to increase the effectiveness of measures aimed at preventing alcoholism, advertising of alcoholic beverages as such should be banned altogether. Despite the fact that such an opinion has been expressed for a long time, the legislator does not consider it necessary to make appropriate changes to the regulations. Probably; this state of affairs is explained by the high economic efficiency of the production and sale of these drinks, which has a positive effect on the replenishment of the state budget. However, in our opinion, in the long run, the costs of social (including rehabilitation) measures may exceed the profit received by the state. Therefore, there is every reason to enshrine in the law the obligation of companies producing drinks containing * alcohol to form a fund of funds directed to the implementation of measures to organize the treatment of minors from alcohol dependence.

In conclusion, we note that such a preventive civil law measure as restricting the legal capacity of a minor will not in itself give the expected result if norms are not enshrined in various branches of domestic law that ensure the reduction of alcohol and drug consumption. One of the priority directions of the influence of law is the formation of the correct life orientation of minors. As noted above, the amount of legal capacity is associated with a sufficient level of mental maturity and the ability to refrain from economically unprofitable actions. In this sense, the task of legal norms is to contribute to the optimal formation of the intellectual and volitional aspects of the civil capacity of minors.

"A citizen who, due to the abuse of alcohol or drugs, puts his family in a difficult financial situation, may be limited by the court in his legal capacity in the manner established by the Civil Procedure Code of the Republic of Kazakhstan. Guardianship is established over him. He has the right to independently make small household transactions. Make other transaction, as well as receive earnings, pensions and other incomes and dispose of them only with the consent of the trustee.

Restriction of legal capacity is possible only in cases with in the manner prescribed by law. It lies in the fact that a citizen is deprived of the ability by his actions to acquire such civil rights and create such civil duties that he, by virtue of the law, could already acquire and create. It is, therefore, about reducing the amount of legal capacity that a person had.

Limited in capacity can be both a person with incomplete (partial) capacity, and a person with full capacity.

The restriction of incomplete (partial) legal capacity of a minor according to the norms of the current Civil Code is carried out by the court if there are sufficient grounds and at the request of the parents, adoptive parents or guardian or guardianship and guardianship authority. According to the Civil Code of 1964, this issue was resolved by the guardianship and guardianship authorities. In addition, the new Civil Code clearly defined the circle of subjects at the request of which court proceedings are initiated in the case of limiting or depriving a minor of the right to independently dispose of earnings - these are legal representatives or a guardianship and guardianship authority. Previously, in addition to these entities, public organizations or other interested persons could make a petition. In addition, there are cases where the restriction or deprivation of this right is not allowed. Minors who have acquired legal capacity in full in connection with marriage before reaching the age of 18 and emancipated citizens cannot be limited in the right to dispose of their earnings or deprived of it.

The grounds for restricting or depriving a minor of the right to independently dispose of earnings are, in particular, the unreasonable spending of earnings, the use of alcoholic beverages and narcotic drugs. But since the list of grounds sufficient to recognize a minor as having limited legal capacity is not defined by the Civil Code, there may be other grounds that are sufficient at the discretion of the court.

When this right is restricted, a minor may dispose of his earnings only with the consent of legal representatives, and when depriving him of the right, in the interests of a minor, his parents dispose of his earnings.

It is allowed by a court decision to restrict the legal capacity of citizens who abuse alcohol or drugs (Article 27 of the Civil Code of the Republic of Kazakhstan). This rule applies only to fully capable citizens. Restriction of legal capacity of a fully capable citizen is a very significant intrusion into his legal status and therefore is allowed by law if there are serious grounds that must be established by the court.

The grounds for limiting the legal capacity of a citizen are the abuse of alcohol or drugs by him and the difficult financial situation of the family as a result of such abuse. From the point of view of law, the abuse of alcoholic beverages and narcotic drugs in the context of other provisions of Article 27 of the Civil Code should be considered not ideas that have developed in society about the extent of their use, but such use by a citizen of alcoholic beverages or narcotic drugs, in which his family is largely deprived what she could get from him if the citizen did not use them.

The limitation of the legal capacity of a citizen and the abolition of its restriction are carried out in the manner, civil legislation and civil procedural legislation, which is in many respects similar to the procedure for recognizing a citizen as incapacitated. In order to make a decision on limiting the legal capacity of a citizen, the court should not appoint a medical examination, and the consideration of the case is carried out with the obligatory participation of the relevant citizen, as well as the prosecutor. The citizen himself can apply for the cancellation of the case.

A citizen with limited legal capacity is placed under guardianship in the manner prescribed by Article 27 of the Civil Code of the Republic of Kazakhstan.

The limitation of the legal capacity of a citizen who abuses alcohol or drugs is that he can only make small household transactions. Small household transactions cannot include transactions for the purchase of alcoholic beverages and narcotic drugs. Therefore, the trustee should be recognized the right to control the spending by the ward of the funds that the trustee gives him to meet daily needs. Thus, the scope of the limited legal capacity of a citizen over whom guardianship has been established is narrower than the scope of the legal capacity of minors. He can make all transactions, except for household ones, only with the consent of the trustee. Without the consent of the trustee, a citizen cannot receive wages or other income, dispose of them and his other property (sell, donate, bequeath, etc.), exercise property copyrights on the results of his intellectual activity. Transactions made without the consent of the trustee by a citizen whose legal capacity is limited are invalid, except for small household transactions.

The citizen himself bears property liability for all transactions made with the consent of the trustee, and for the harm caused by him.

In addition to limiting the legal capacity of citizens in the framework of civil legal relations, it is necessary to note other ways of limiting the legal capacity provided, in particular, by the Criminal Code.

The main way to limit the legal capacity of citizens who have committed a crime is to apply to them a measure of state coercion in the form of punishment. Punishment is applied to a person found guilty of committing a crime, and consists in the deprivation or restriction of the rights and freedoms of this person provided for in the Criminal Code of the Republic of Kazakhstan (Article 43 of the Criminal Code of the Republic of Kazakhstan). The content of punishment is the deprivation or restriction of rights and freedoms. Any potential deprivation or restriction of the rights and freedoms of a person serving a sentence, or a person to whom a sentence has been applied, must have a legal justification and comply with the law. It is illegal to deprive a convict of the means of maintaining his existence provided by law, which leads to harm to health, the spread of epidemics, as well as depriving a convict of state protection from encroachments or other forms of negative impact on the part of third parties.

According to the meaning of the above article, the content of the punishment, based on its state-legal nature and goals, includes various actions carried out by the bodies executing the punishment, both to protect those rights and freedoms that the convicted person was not deprived of by a court sentence.

"Types of penalties:

• 1. fine
• 2. deprivation of the right to hold certain positions or engage in certain activities
• 3. deprivation of a special, military or honorary title, class rank and state awards
• 4. compulsory works
• 5. correctional work
• 6. restrictions on military service
• 7. confiscation of property
• 8. restriction of freedom
• 9. arrest
• 10. detention in a disciplinary military unit
• 11. deprivation of liberty for a fixed period
• 12. life imprisonment
• 13. death penalty"

The list of types of punishment is exhaustive and is not subject to broad interpretation. The types of punishment specified in this article form a system of types of punishment that allows the court, on the basis of the law, taking into account the experience of judicial practice, social legal awareness and scientific recommendations, rationally and, if possible, effectively use various measures of influence on the convict, combining property deprivation, restrictions on personal non-property inalienable rights and interests, impact on the psychological structure of the individual, limiting the possibilities of professional and other behavior in the future.

1. A citizen who, due to addiction to gambling, alcohol or drug abuse, puts his family in a difficult financial situation, may be limited by the court in legal capacity in accordance with the procedure

He has the right to independently make small household transactions.

He can make other transactions only with the consent of the trustee. However, such a citizen independently bears property liability for transactions made by him and for the harm caused to him. The trustee receives and spends the earnings, pension and other incomes of a citizen restricted by the court in his legal capacity, in the interests of the ward in the manner prescribed by Article 37 of this Code.

(see text in previous edition)

2. A citizen who, due to a mental disorder, can understand the meaning of his actions or manage them only with the help of other persons, may be limited by the court in his legal capacity in the manner prescribed by the civil procedural legislation. Guardianship is established over him.

Such a citizen makes transactions, with the exception of transactions provided for by subparagraphs 1 and 4 of paragraph 2 of Article 26 of this Code, with the written consent of the trustee. A transaction made by such a citizen is also valid if it is subsequently approved in writing by his trustee. Transactions provided for by subparagraphs 1 and 4 of paragraph 2 of Article 26 of this Code, such a citizen has the right to make independently.

A citizen limited by the court in his legal capacity on the grounds provided for in this paragraph may dispose of the alimony paid to him, social pension, compensation for harm to health and in connection with the death of the breadwinner and other payments provided for his maintenance with the written consent of the trustee, with the exception of the payments that are indicated in this Code and which he has the right to dispose of independently. Such a citizen has the right to dispose of the specified payments within the period determined by the trustee. The disposal of these payments may be terminated before the expiration of this period by decision of the trustee.

If there are sufficient grounds, the court, at the request of the trustee or guardianship and guardianship authority, may restrict or deprive such a citizen of the right to independently dispose of his income, specified in subparagraph 1 of paragraph 2 of Article 26 of this Code.

A citizen whose legal capacity is limited due to a mental disorder shall independently bear property liability for transactions made by him in accordance with this article. For the harm caused by him, such a citizen shall be liable in accordance with this Code.

Most members of society position themselves as quite adequate citizens mentally and morally, as well as responsible citizens who are able to keep their emotions and actions under control, analyze the surrounding context, and be critical of their actions.

On this basis, they certainly have the opportunity to act as full-fledged,. The loss of these qualities gradually deprives a person of social involvement. Citizens are limited from external contacts to a greater extent than others, whose status corresponds to certain standards of behavior and a degree of responsibility.

When determining the conditions of legal capacity, it is necessary to determine its main difference from legal capacity which every citizen has from birth to death, regardless of the contribution he makes to the development of society and his recognition as a capable person.

Legal capacity is the constitutional qualities that citizens of the Russian Federation (and others) are endowed with in accordance with the rights that every person has by the right of his birth as a person, which is legally reflected in Article 17 of the Civil Code of the Russian Federation.

The legal foundations remain unshakable and stable. But in reality they are limited to the right of another person. For instance :

1. A citizen as a whole has the right to provide housing, but does not have the right to live in someone else's apartment.
2. He has the right to dispose of property, but only that which belongs to him.
3. He has the right to use the car, but for this he needs to follow many legal procedures.

The definitions of legal capacity and the nuances of its implementation are the basis of the legal system.

For full functioning in society and the ability to take part in property transactions and legal forms of interaction, a citizen will need capable status- the presence of a quality that distinguishes a morally and mentally mature person who is able to take responsibility for his actions, then it meets the criterion presented in Article 21 of the Civil Code of the Russian Federation.

If the legal capacity is inherent in the subject a priori, then the legal capacity is confirmed by his social adaptability, the ability to interact with other members of society, and in some cases may be called into question.

Can the legal capacity of citizens be limited? Yes. Those corresponding to the status of capable citizens may be limited in their rights. Deprivation of legal capacity as a legal precedent does not exist, but in this case the concepts are intertwined, and the limitation of legal capacity entails the inability of a citizen to carry out legal activities in those aspects for which he is declared incompetent.

In accordance with the provisions of the Civil Code of Russia, a citizen who is not able to control his actions may be recognized as legally incompetent, in accordance with Article 29 of the Civil Code of the Russian Federation.

Civil Code, Chapter 3, Article 29.

Recognition of a citizen incompetent

1. A citizen who, due to a mental disorder, cannot understand the meaning of his actions or control them, may be declared legally incompetent by a court in the manner prescribed by civil procedural legislation. He is placed under guardianship.
2. On behalf of a citizen recognized as legally incompetent, transactions are made by his guardian, taking into account the opinion of such a citizen, and if it is impossible to establish his opinion, taking into account information about his preferences received from the parents of such a citizen, his former guardians, other persons who provided services to such a citizen and in good faith performing their duties.
3. With the development of the ability of a citizen who has been declared legally incompetent, to understand the meaning of his actions or to manage them only with the help of other persons, the court recognizes such a citizen as having limited legal capacity in accordance with paragraph 2 of Article 30 of this Code.

If there are no grounds for the complete deprivation of legal capacity, since the citizen is sane in many areas of life, the court can only see the need to limit the legal capacity to certain, problematic areas of the citizen's activity. In this case, the judicial panel will be guided by article 30 of the Civil Code of the Russian Federation.

Civil Code, Chapter 3, Article 30.

Restriction of legal capacity of a citizen

1. A citizen who, due to addiction to gambling, alcohol or drug abuse, puts his family in a difficult financial situation, may be limited by the court in legal capacity in the manner prescribed by civil procedural legislation. Trusteeship is established over him. He has the right to independently make small household transactions. He can make other transactions only with the consent of the trustee. However, such a citizen independently bears property liability for transactions made by him and for the harm caused to him. The trustee receives and spends the earnings, pension and other incomes of a citizen restricted by the court in his legal capacity, in the interests of the ward in the manner prescribed by Article 37 of this Code.
2. A citizen who, due to a mental disorder, can understand the meaning of his actions or manage them only with the help of other persons, may be limited by the court in his legal capacity in the manner prescribed by the civil procedural legislation. Guardianship is established over him.

Such a citizen makes transactions, with the exception of transactions provided for by subparagraphs 1 and 4 of paragraph 2 of Article 26 of this Code, with the written consent of the trustee. A transaction made by such a citizen is also valid if it is subsequently approved in writing by his trustee. Transactions provided for by subparagraphs 1 and 4 of paragraph 2 of Article 26 of this Code, such a citizen has the right to make independently.

Grounds and conditions for declaring a citizen incapacitated

The recognition of incapacity is made on the basis of a mental illness of a person who may begin to degrade morally or intellectually. Provided that a person ceases to control his actions or loses the ability to exist independently, at the request of relatives (doctors), the issue of termination of legal capacity is decided by the court. At the same time, the issue of legal capacity is not affected, and a person recognized as incompetent reserves the right to use those property benefits that he has, without the right to dispose of them.

This decision is made under the following conditions:

1. Conducting a forensic psychiatric examination and its positive decision.
2. Presence at the court session of the prosecutor and representatives of guardianship and guardianship authorities.
3. Presence in court of the patient personally, except when he is deprived of the ability to move.

After a positive court decision, the patient carries out the subsequent existence under the care of loved ones or in a specialized institution (read about). In the event of a significant recovery of mental health, a citizen may receive recognition of legal capacity at the next court hearing.

The procedure for limiting legal capacity

Recognition of the need to restrict a person in legal capacity is also carried out exclusively by a court decision. It can be recognized as follows:

1. On the basis of an application for recognition of incapacity, but in the absence of such grounds from the point of view of the judicial board.
2. On the basis of relatives (other persons) in accordance with the circumstances.

These circumstances predominately include:

• alcohol addiction;
• drug addiction.

The main criterion is the suffering of family members associated with the deprivation of income for subsistence, which is almost completely spent on maintaining dependence on vice.

Another factor may be aggressive, illegal behavior of the person. But it often finds a way out in divorce, and in some cases in.

Who can limit a person in his legal capacity?

Disability can only be restricted by a court. In other cases, obstacles to property transactions against a person on the part of the spouse (spouse) or other relatives will be unlawful. To control spending:

• spouse
• adult children;
• parents -

must apply to the court. Only after a positive decision made at the request of a relative, he will be able to dispose of his money. In this case, he must issue a permit to receive his salary (pension, other payments) in the accounting department at the place of work of the person with limited legal capacity. In addition, he is charged with a ban on all types of property transactions.

The basis for the restriction is not:

1. None of the circumstances before the decision of the court.
2. None of the circumstances, if a citizen lives alone and does not have a family.
3. None of the circumstances, if the citizen is not diagnosed with addiction.

In the absence of property, income, or weak communications with society, the possibility of limiting legal capacity may be minimal and inappropriate.

Consequences of recognition of the incapacity of a citizen

Recognized as such by a court decision, a citizen is almost completely deprived of the opportunity to function in society.

In particular, he loses the opportunity:

1. Dispose of property, carry out transactions. If so, they are considered null and void.
2. Participate in elections.
3. Get married and raise children. In the presence of marital relations, they can be terminated without his consent, and children are adopted.
4. Make a will.

However, he retains legal capacity in relation to the use of existing property. Guardianship authorities properly monitor the observance of his rights by persons authorized to guardianship.

What actions can people take after the restriction of their legal capacity

Unlike a person deprived of legal capacity, a citizen limited by the court in legal capacity has the right to independently lead an almost full-fledged lifestyle. He does not need guardianship and control of trustees, the spouse (husband) is obliged to give him permission in the event of a divorce, and he also has the right to leave an inheritance at his own discretion.

Naturally, if he is denied participation in voting for the desired candidate, a rather serious scandal may arise with a corresponding, including political, background.

He has the right to communicate with his children as he wishes, even in the event of a divorce. A prohibition on raising children may be appointed by a separate hearing in case of restriction (deprivation) of parental rights.

Provided long-term remission and the ability to control the vicious addiction, he can fully restore the rights of legal capacity and continue to live a full life.

Step-by-step instructions for going to court

If you have the intention to take control of the money of a close relative that goes to alcohol or drugs, you need to file an application with the court.

You can choose the arbitration court of the district that is located in the place of residence where you live with the perpetrator. If you do not live together, you will have questions, but in this case, the application must be submitted at the place of its registration. Questions will have the nature of the legitimacy of the application in the event that you are no longer running a common household. If your marriage is not registered or you are divorced, you can not bother to apply, as your application will most likely not be considered.

If it is more convenient for you, you can file an application with the district court at the location of the medical institution. If a citizen is not registered as addicted to alcohol or suffering from drug addiction, it is pointless to apply. In this case, you first need to achieve registration.

Required documents and evidence

A certificate from the narcological dispensary will be one of the main motives for considering the application. The rest of the documents and evidence must reflect the real picture in which the family ended up due to the fault of the dependent member. In addition to passport documents, you will need documents that determine the degree of relationship.

Spouses must be in a registered marriage and present a marriage certificate.

Evidence must be attached to the documents that reflect the real picture of the difficult financial situation of the family and the exorbitant spending on alcohol and drugs by the applicant for the restriction.

You can prove it with documents:

1. About the low average earnings of the applicant.
2. A certificate stating that the applicant has no income, for example, is on parental leave.
3. A certificate from the clinic stating that the child needs more careful care or funds for treatment.

All documents and testimonies confirming the disastrous financial situation of the family should go into the case.

Writing an application

The application is written to the court, but will be considered in the presence of guardianship and guardianship authorities. Therefore, it must contain information:

• about the judge;
• about the prosecutor;
• about a guardian.

It should be noted in the application that a citizen (with full name) who is your close relative (indicate which one), which is confirmed by the documents (list) that are attached to the application, cannot be held liable. It consists in property relations that are at risk due to the exorbitant spending that he requires on alcoholic products (drugs).

Briefly and correctly list the main characteristics of his destructive behavior.

Ask the court:

1. Restrict his property rights and appoint you as his guardian.
2. Assign a forensic psychiatric examination to confirm its partial inadequacy.

You will not be charged a state fee when submitting an application.

This statement does not indicate the parties in the same way as it happens in the statement of claim. Legislation focuses on the fact that a partially incapacitated person, even potentially recognized as such, cannot be fully responsible for his actions. Therefore, representatives of the prosecutor's office and guardianship authorities are on his side.

Making a judgment

The decision of the court is the result of court sessions, the members of which came to a certain, unambiguous conclusion. The decision will be issued to you in the form of an extract three days after its adoption. With a positive decision, on the basis of an extract, you will need to take responsibility for the income, expenses of a relative, as well as for participating in his property transactions. To do this, you will need to arrange guardianship in the guardianship and guardianship authorities, to which you will be accountable for your actions.

Appeal against a court decision

If you were denied the satisfaction of the stated, but you are sure that you are right, within 10 days after receiving the extract and on its basis, you can file an appeal with the regional court. To do this, it makes sense to strengthen with evidence and facts those circumstances that were taken into account as motives for refusal.

The case of limitation of legal capacity occupy a special place in domestic judicial practice. Very often you can hear stories about how a citizen abuses alcohol or alcoholic beverages, which leads to material difficulties in the family and even poses a danger to its members.

If a person does not understand the meaning of his actions, then he can be legally or partially incapacitated.

Making Decisions Regarding Juveniles

Despite the fact that minors under the age of 18 do not have full legal capacity, there are cases that suggest the need for their restriction in court. These include:

1. , that is, the recognition of their full rights, for example, in connection with marriage, with the permission of their parents or guardians.
2. Subject to receiving earnings or scholarships, which he illegally disposes of - drinks or spends on drugs.

The issue of limiting the rights of such a subject is considered additionally by a court decision, which is adopted according to a similar algorithm, but limited by the period of reaching the age of majority. Until this period, the guardian will manage the income of the minor.

Upon reaching the age of 18, the restriction is lifted, in accordance with which:

1. Disability is restored automatically.
2. A new court session is held, at which the restriction of a citizen's legal capacity is again determined.

The limitation of the legal capacity of a minor is dictated by the fact that public opinion considers certain forms of communication unacceptable, protecting conscientious citizens from them.

Regardless of the motivating reasons, the very fact of disability, with a properly organized and lawfully applied mechanism for the protection of human rights, is a progressive step in social development. It gives protection to the relatives of a person suffering from alcoholism or drug addiction, and allows the dependent person to exist under their supervision.