Grounds and procedure for restricting the legal capacity of citizens. Recognition of a citizen incompetent

Faced with legal issues, unfortunately, not every citizen can properly respond to them and take the right actions. As a rule, this is due to a lack of necessary knowledge in this area. Therefore, it is sometimes important to pay some attention to finding answers to legal questions that interest you on your own. You should not wait for the case when an urgent need arises. Indeed, decisions often have to be made immediately, and if there is no necessary knowledge, then it is almost impossible to do it in the right way.

In this article, we will look at what legal capacity is. Why is it important to understand this issue? When does the legal capacity of a citizen arise? Can it be limited? How is capacity related to capacity? What is important for citizens and legal entities to know about this? You will receive detailed answers to these questions by reading this article.

Legal capacity of a citizen

This phenomenon occurs immediately at the birth of a person, and can be stopped, as a rule, at the time of his death. Thus, the subjects of legal capacity are all people. No citizen has the right to refuse it.

What is legal capacity? It is the basis for the acquisition of subjective rights and obligations. This means that a certain person has the opportunity to have some civil rights, but it does not in itself guarantee their existence.

The limitation of legal capacity is referred to in Art. 22 of the Civil Code of the Russian Federation. Interestingly, its volume is the same for absolutely all citizens. So, from birth, everyone can receive the same rights as any other person. Among the fundamental rights that general and special legal capacity grants to a person, the following are distinguished:

• become heirs of any property or bequeath it;
• independently choose a place to live;
• own property;
• create legal entities on their own initiative;
• use copyright;
• make transactions that are within the law;
• engage in legitimate professional activities;
• become an entrepreneur;
• have other rights.

This must be taken into account when considering this topic.

legal capacity

Legal capacity is also necessary for a person in order to become a full participant in legal relations between citizens. Its presence and completeness depend to a greater extent on the age of the person, as well as on the state of his physical and psychological health.

Capacity is divided into four full-fledged categories:

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

Complete

All individuals who have reached the age of majority and are mentally healthy are recognized as fully capable. Sometimes it can happen even at an earlier age. These are the following cases:

• Marriage by minors. The law allows, in certain cases, persons who have not yet attained eighteen years of age to marry. In this case, they acquire absolute legal capacity from the date indicated in the certificate issued to the couple. In some parts of the Russian Federation, local law allows marriage for those under the age of sixteen. Such spouses also acquire legal capacity. Moreover, it will be preserved even if the marriage in question is dissolved by them before both or one spouse reaches the age of eighteen. And only if the marriage is declared invalid by the court, then the minor spouses may lose their legal capacity.
• Emancipation. Also a weighty reason to acquire full legal capacity. It represents the fact of declaring a minor, who, however, has already reached the age of sixteen, as such, who has acquired full legal capacity with the consent of both parents or guardians. Sometimes the court can provide such a decision on its own. When is emancipation announced? If the minor is engaged in entrepreneurial activity or is employed under an employment contract.

After all, it is full legal capacity that makes it possible to acquire civil rights on your own. However, the situation is similar with civic obligations.

Partial

As a rule, specialists call partially capable persons minors, that is, those who have not yet reached the age of eighteen. How is this expressed in practice? Civil human rights by minors may not be acquired in full on their own. A number of such rights can only be granted to them with the consent of their parents or through the conclusion of transactions by parents on behalf of these minors. Specific situations depend in particular on the age of the minor concerned.

Juveniles are also recognized as partially capable (children between the ages of six and fourteen are called minors). They cannot enter into any transactions, only their parents can do this on their behalf.

Nevertheless, even minors are able to make certain decisions. These are the following cases:

• receiving or giving gifts, if this does not require state registration or notarization;
• conclusion of small household transactions;
• the ability to dispose of the funds provided to them.

Minors who are between the ages of fourteen and eighteen, unlike others, can independently enter into various transactions if they have the consent of their parents. If this does not happen, then such a transaction may be declared invalid by the court. But minors can make some decisions on their own. Among them are the following:

• the ability to deposit funds in credit institutions and freely dispose of them;
• making small household transactions;
• exercise of copyright;
• the ability to manage their own income.

Limited

The inadmissibility of deprivation and restriction of legal capacity and legal capacity is enshrined in law. However, there are certain exceptions that the law also provides. For example, experts consider one of such cases to be a situation where a court has legally restricted the legal capacity of an individual who, for example, abuses drugs or alcohol.

If this happened, then this citizen needs permanent guardianship, which is established over him directly by the court. He is able to independently dispose of his property, make various kinds of transactions, receive various types of income (be it a pension, salary or any other), but only after coordinating his actions with the trustee.

At the same time, such a person bears full responsibility for the consequences of the transactions concluded or the damage caused.

incapacity

Considering the legal capacity and legal capacity of individuals and legal entities, it is necessary to pay attention to the concept of incapacity. What does she represent?

So, disabled citizens are those individuals who, due to the development of any mental disorder, do not have the physical ability to independently make decisions, realize the meaning and consequences of their own actions, and also manage them.

Who can give an appropriate assessment of the condition of such a person? It is not the court that is responsible for this, but a specialized forensic psychiatric examination. But it is up to the court to make the final decision on incapacity. Such a citizen needs constant guardianship. The fact of recognizing someone as legally incompetent means that a citizen cannot, by his actions, in any way receive or exercise his civil duties and rights. Can such a person make any transactions? On his behalf, this is done by his legal guardian. If an incapacitated person has caused any harm to himself, others or property, his guardian (whether an individual or an organization) is responsible for this.

Disability limitation

Limitation of the legal capacity of a citizen, as well as his legal capacity, is also provided for by law in a number of cases. As for legal entities, in this case we are talking more about the possibility of restricting their rights. This is regulated by the following articles of the law: Art. 22 of the Civil Code of the Russian Federation for individuals and Art. 49 of the Civil Code of the Russian Federation for legal entities. This applies equally to the capacity of organizations.

Describing the restriction of the legal capacity of a citizen and his legal capacity, attention should be paid to several nuances. Among them are the following:

• legal capacity cannot be terminated voluntarily; this procedure is carried out only by force;
• the possibility of limiting legal capacity exists only if the latter is shared with legal capacity that does not cease;
• limitation of legal capacity does not imply an obligation to refrain from certain actions;
• if the legal capacity of the subject is limited, his rights continue to be exercised, while the obligations are assumed by those bodies or persons who still have the right to make decisions independently.

Restrictions for legal entities

Limitation of the legal capacity of a citizen or legal entity may be expressed in the need to obtain the consent of another person in order to exercise certain rights. This is true for both individuals and legal entities. After all, the limitation of legal capacity and legal capacity, in essence, is the inability to independently choose their actions and the need to transfer the performance of their duties to third parties. Also, situations are not uncommon when such legal entities are forced to fulfill their duties and exercise the rights guaranteed to them through the actions of third parties or special bodies that are defined and provided by the state specifically for these purposes, regardless of how they would like to dispose of their rights. in this situation, a legal entity.

How can this be put into practice? For example, sometimes you have to do taxation with the help of third-party agents. This is provided for by the Civil Code of the Russian Federation. In this case, funds for paying taxes are withdrawn from the taxpayer's account, but the very procedure for their payment is carried out directly by agents. Why? Because the responsibility for the timely payment of taxes lies with them. This means that if any violations are detected, it is the agents who will have to be punished and compensated.

It is important to understand that even in the case of legal entities there are grounds for a complete separation of legal capacity and legal capacity, although some experts insist that they should not be separated. So, for example, the inability to independently make management and any other decisions by an enterprise invariably leads to the inability to independently implement business relations with third parties, which, in essence, is a limitation of legal capacity. Such a restriction is considered effective from the moment the head of the enterprise ceases to have the authority to manage and transfer them to another, external manager. Such a replacement, as a rule, is forced, does not take into account the opinion of the legal entity.

Ways to limit the competence of a legal entity

There are several alternative methods to limit the exercise of the rights of a legal entity. Among them are the following:

1. Complete cessation of the activities of organizations, which does not provide for the subsequent restoration of the powers of such organizations. One of the methods in this case is the suspension of the enterprise license or its absolute revocation. This implies that within a certain time such an organization must be liquidated.

2. The activity of the enterprise is terminated in order to be able to be resumed in the future.

3. Temporary limitation of the authority of the organization. It implies the introduction of an interim administration. That is, the management bodies of the enterprise have the right to make decisions, but only with the official permission of the latter. This is relevant for the following cases:

• when transactions are related to decisions about the real estate of the enterprise;
• transactions are carried out with interested parties;
• disposal of any movable property of the organization.

Conclusion

After reading this article, it seems that it became clear what a restriction of the legal capacity of a citizen is and in what cases it is possible. As you can see, this issue is easy to understand. It just takes a little effort. The concept and content of legal capacity were considered. As well as its connection with the legal capacity and the implementation of basic civil rights. Remember that legal capacity may be limited if sufficiently serious prerequisites have been found for this by the court. In all other cases, a citizen has a guaranteed right to exercise his civil rights and fulfill the duties assigned to him independently, without the involvement of third parties.

Gaining a certain base of knowledge in legal matters will help you protect yourself legally if the need arises.

Answer Legal capacity - the ability of a citizen to acquire and exercise civil rights, as well as to create and perform duties by their actions. Legal capacity is acquired from the moment of reaching the age of majority, i.e. from the age of eighteen. An exception is marriage before the age of 18; at emancipation - from 16 years.

Restriction of legal capacity means, in the cases and in the procedure established by law, depriving a citizen of the ability by his actions to acquire such civil rights and create for himself such civil obligations that he could already acquire and create by virtue of the law. Guardianship is established over such a person. Only such an element as the ability to deal with a citizen is subject to restriction, and he independently bears responsibility for the transactions he has made and for the harm caused to him.

The basis for limiting the legal capacity of a citizen is the presence of a complex legal composition: the abuse of alcohol or drugs by a citizen and the difficult financial situation of the family in connection with this. Both of these conditions, as well as the presence of a causal relationship between them, are necessary to limit legal capacity. Other abuses and vices (for example, gambling, betting, waste of money, etc.) cannot lead to disability, even if they are the cause of financial difficulties for the family.

Civil cases on the restriction of the legal capacity of citizens are considered by the court in the order of special proceedings. This category of cases is considered with the obligatory participation of the prosecutor and a representative of the guardianship and guardianship authority. Cases on recognizing a citizen with limited legal capacity are considered by the court at the place of residence of this citizen.

The law clearly defines the circle of subjects of the right to apply to the court for recognition of a citizen with limited legal capacity. Such subjects are family members of a citizen (spouse, adult children, parents, other relatives, disabled dependents who live with him and maintain a common household), guardianship and guardianship authorities, a psychiatric or neuropsychiatric institution, a prosecutor.
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This list is exhaustive.

In the course of the proceedings, the court must establish, firstly, whether the citizen really abuses alcohol or drugs, secondly, whether the family is in a difficult financial situation and, thirdly, whether there is a causal relationship between the aforementioned abuse of the citizen and the difficult financial family position. A copy of the decision on the limitation of legal capacity that has entered into legal force is sent within three days to the guardianship and guardianship authorities, which decide on the appointment of a trustee.

The court cancels the restriction of legal capacity if one of the above conditions disappears; firstly, if there is sufficient evidence that the citizen has ceased to abuse alcohol or drugs, in connection with which he should be entrusted with independent disposal of property and funds; secondly, in the event of the termination of the existence of the family.

Conditions and procedure for limiting the legal capacity of a citizen. - concept and types. Classification and features of the category "Conditions and procedure for restricting the legal capacity of a citizen." 2015, 2017-2018.

Civil capacity - the ability of a citizen to acquire and exercise civil rights, create for himself civil duties and fulfill them. It occurs in full with the onset of adulthood, i.e.

E. upon reaching the age of 18.

The legal capacity of a citizen can only be limited by a court.

A citizen who, due to a mental disorder, cannot understand the meaning of his actions or control them, may be recognized by the court as incompetent.

The legal capacity of a citizen is limited by a court decision if he abuses alcohol or drugs and, as a result, puts his family in a difficult financial situation.

The consequence of the limitation of legal capacity is expressed in the deprivation by the court of a citizen of the right to make any transactions, except for small household ones, without the consent of the trustee. The trustee receives the right to directly receive wages, pensions and other types of income, i.e., trusteeship is established over a citizen with limited legal capacity.

The consequence of declaring a citizen incompetent is the establishment of guardianship over him and the performance of all transactions on his behalf by the guardian.

The law establishes an exhaustive list of persons and organizations that have the right to apply to the court with an appropriate application.

A case on the restriction of a citizen's legal capacity may be initiated on the basis of an application from members of his family, a guardianship and guardianship authority, a psychiatric or neuropsychiatric institution.

The spouse, adult children, parents, other close relatives (brothers, sisters), disabled dependents living with him and leading a common household, as well as competent state bodies have the right to apply for recognition of a citizen as incapacitated due to a mental disorder.

The application for the limitation of a citizen's legal capacity must state the circumstances indicating that a citizen who abuses alcohol or drugs puts his family in a difficult financial situation.

An application for recognizing a citizen as incompetent must state the circumstances indicating that the citizen has a mental disorder, as a result of which he cannot understand the meaning of his actions or control them.

The judge, in order to prepare for the trial of a case on declaring a citizen incompetent, if there is sufficient data on the mental disorder of the citizen, appoints a forensic psychiatric examination to determine his mental state.

After that, all the materials of the case are examined and a decision is made on the basis of this.

The decision of the court, by which a citizen is limited in legal capacity, is the basis for the appointment of a trustee by the body of guardianship and guardianship. The decision of the court, by which the citizen is declared incompetent, is the basis for the appointment of a guardian by the body of guardianship and guardianship.

circumstances threatening the missing person with death or giving grounds to assume his death from a certain accident. With regard to servicemen or other citizens missing in connection with hostilities, the statement shall indicate the day the hostilities ended.

The persons involved in cases of recognizing a citizen as missing or declaring a citizen dead are the applicant and interested persons. These cases are considered with the obligatory participation of the prosecutor.

After examining all the circumstances of the case, the judge makes a decision. The recognition of a citizen as missing entails certain legal consequences: disabled family members have the right to a pension, divorce at the request of a spouse is carried out in the civil registry offices, and the consent of the missing child to adopt his child is not required.

The decision to declare a citizen dead is the basis for registration by the registry office of his death.

In the event of the appearance or discovery of the place of residence of a citizen recognized as missing or declared dead, the court by a new decision cancels its earlier decision. The new court decision is, accordingly, the basis for the abolition of the management of the property of a citizen and for the annulment of the record of death in the book of state registration of acts of civil status.

More on the topic 62. Partially capable, incapacitated.:

1. Special grounds for the invalidity of transactions Invalidity of a transaction related to the legal capacity of citizens
2. 2.3. Recognition of a citizen as legally incompetent and limitation of legal capacity of citizens.
3. Chapter 10 LEGAL CAPACITY AND CAPABILITY IN FAMILY LAW
4. § 5. Recognition of a citizen as partially capable, incapacitated, restriction or deprivation of a minor's right to independently dispose of income 1. Recognition of a citizen as partially capable

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 upon its subsequent written approval 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 restricted 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 these payments within a 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.

Restriction of the legal capacity of citizens is possible only in cases and in the manner prescribed by law (clause 1 of article 22 of the Civil Code):

1. restriction of the partial legal capacity of citizens: if there are sufficient grounds (clause 4 of article 26 of the Civil Code of the Russian Federation);

2. limitation of a citizen's legal capacity: "a citizen who, due to the abuse of alcohol or drugs, puts his family in a difficult financial situation" (clause 1, article 30 of the Civil Code of the Russian Federation).

Restriction of legal capacity of citizens is possible only in cases and in the manner prescribed by law (paragraph 1 of article 22 of the Civil Code). 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 obligations 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.

Civil cases on the restriction of the legal capacity of citizens are considered by the court in the manner of special proceedings (Chapter 31 of the Civil Procedure Code of the Russian Federation) Both a person with incomplete (partial) legal capacity and a person with full legal capacity can be limited in legal capacity.

According to paragraph 4 of Art. 26 of the Civil Code, restriction of legal capacity of minors aged 14 to 18 years is allowed only by a court decision. It is impossible to restrict the legal capacity of a minor if he has acquired full legal capacity in connection with marriage before reaching the age of 18 or by way of emancipation. Consequently, in relation to minors aged 14 to 18 years, this means the restriction of their partial legal capacity. It can be expressed in the restriction or even deprivation of the minor's right to independently dispose of earnings, scholarships or other income. After the court makes such a decision, the minor will have the opportunity to dispose of earnings, scholarships and other income (in full or in part) only with the consent of the parents, adoptive parents, guardian.

The decision to restrict the legal capacity of a minor between the ages of 14 and 18 may be taken by the court "if there are sufficient grounds." Such grounds should be recognized as spending money for purposes that are contrary to the law and moral standards (purchasing alcoholic beverages, drugs, gambling, etc.), or their unreasonable spending, without taking into account the needs for food, clothing, etc. The number of persons who may apply to the court with a petition to restrict or deprive a minor of the right to independently dispose of earnings, scholarships or other income includes his parents, adoptive parents or guardians, as well as the guardianship and guardianship authority.

Depending on the specific circumstances, the court may either limit the minor's right to freely dispose of earnings, scholarships or other income, or completely deprive him of this right. On the basis of a court decision, the earnings, stipend, other income of a minor, in whole or in part, must be given not to him, but to his legal representatives - parents, adoptive parents, guardian.

If the court decision does not indicate the period for which the legal capacity of a minor is limited, then the restriction is valid until the minor reaches the age of 18 or until the restriction is lifted by the court at the request of those persons who applied for the restriction.

Restriction of the full legal capacity of citizens

The law allows limiting the full legal capacity of adult citizens who abuse alcohol or drugs (Article 30 of the Civil Code). This provision also applies to minors who, before reaching the age of 18, have acquired full legal capacity in connection with marriage or by way of emancipation. Restriction of legal capacity of an adult citizen is a very significant intrusion into his civil status and therefore is allowed by law if there are serious grounds that must be established by the court.

Limitation of legal capacity is provided by law 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. The basis forlimiting the capacity of a citizen under Art. 30 of the Civil Code is such excessive use of alcoholic beverages or narcotic substances, which entails significant expenses for their purchase, which puts the family in a difficult financial 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). However, such a citizen independently bears property liability for transactions made by him or for harm caused.

When a citizen ceases to abuse alcohol or drugs, the court cancels the restriction of his legal capacity. On the basis of a court decision, the guardianship established over him is cancelled. If a citizen, after the abolition of the restriction of his legal capacity, again begins to abuse alcohol or drugs, the court, at the request of the interested parties, may again restrict his legal capacity.

A citizen who, due to a mental disorder, cannot understand the meaning of his actions or manage them, may be recognized by a court as incapable in the manner established by civil procedural legislation (Article 29 of the Civil Code of the Russian Federation).

It follows from the foregoing that in order to recognize a citizen as incompetent, the presence of medical and legal criteria together must be established. The medical criterion includes the presence of a mental disorder, and the legal criterion is the inability to understand the meaning of one's actions (intellectual aspect) or the inability to control one's actions (volitional moment). From the combination of medical and legal (either volitional or intellectual) criteria, the main material and legal circumstances of the subject of proof are formed.

So, the subject of proof in cases of recognizing a citizen as incompetent includes the establishment of the following facts:

1) the presence of a mental disorder;

2) facts confirming that a citizen cannot understand the meaning of his actions or control them;

3) a causal relationship between a mental disorder and the fact that a citizen does not understand the meaning of his actions or cannot control them;

4) the achievement of the age established by law by a citizen in respect of which the question of recognizing him as incapacitated is raised;

5) other circumstances. Such circumstances include the fact of belonging to the family members of the person in respect of whom the case is being considered for declaring him incompetent. Family members are parents, adult children, spouse. These persons do not have to live together with the citizen and conduct a joint household with him.

Required evidence:

The conclusion of the forensic psychiatric examination. Cases on recognizing a citizen as incapacitated is the only case when the Code of Civil Procedure provides for the appointment of a forensic psychiatric examination. However, an examination is appointed only if there is sufficient evidence of a citizen's mental disorder (Article 283 of the Code of Civil Procedure). Sufficient data for the purpose of an expert examination can be understood as any information that makes it possible to assume that a person has a certain mental disorder. Materials of previously conducted forensic psychiatric examinations in a criminal case can also be recognized as sufficient data for the appointment of an examination. If, at the discretion of the court, there is not enough data to order a forensic psychiatric examination, then it refuses to order it. The case will be considered on the merits, and the application is denied;

Certificates from a medical institution;

Certificates of status registered in a psychiatric dispensary;

Extract from the medical history;

MSEC references;

Evidence confirming that a citizen, due to a mental disorder, cannot understand the meaning of his actions or control them (witness testimony, materials from the investigating authorities, previously conducted forensic psychiatric examinations, etc.);

Other evidence.

In civil proceedings, there is a presumption of legal capacity of a person: a person is capable, unless otherwise established by a court decision that has entered into legal force. Because of this, the applicant is obliged to prove the existence of circumstances indicating the incapacity of the citizen concerned. Other interested persons (for example, family members) who object to the stated requirement have the right to provide evidence of the absence of grounds for declaring a person incompetent.

A feature of the collection of evidence is the receipt of medical data on the mental state of a citizen, which is possible only at the request of the court. Another feature is the appointment and conduct of a forensic psychiatric examination if there are sufficient grounds for it. Questions are put before the expert: 1) whether the citizen suffers from a mental disorder (which one, what is the degree and nature of the disorder); 2) whether, due to a mental disorder, he can understand the meaning of his actions or control them; 3) whether he can take part in court proceedings. Issues of incapacity of a person are resolved for the future, so the prospects for the development of the disease are important. As a rule, a stationary forensic psychiatric examination is carried out with the placement of a person in a psychiatric dispensary. It is possible to conduct a compulsory forensic psychiatric examination (this issue is resolved in court with the obligatory participation of the prosecutor).

When considering cases of this category, the participation of the body of guardianship and guardianship, as well as the prosecutor, who give their opinion, is mandatory.

The Code of Civil Procedure provides for the procedure for recognizing a citizen as capable in the event of his recovery. To recognize a citizen as capable, a steady improvement in the mental state of a person is required, due to which he can understand the meaning of his actions or manage them. At the same time, a forensic psychiatric examination is also carried out. The procedural rule on the obligation to conduct a forensic psychiatric examination is an integral part of the admissibility of evidence.

11. Guardianship and guardianship. Patronage over able-bodied citizens.

Guardianship and trusteeship is a form of implementation of state protection of the individual. Their necessity is due to the fact that not all citizens (individuals) are able to independently exercise their rights and fulfill their duties due to a lack of legal capacity or incapacity, as well as for the purpose of educating minors.

Before the adoption of the Civil Code of the Russian Federation, guardianship and guardianship were regulated exclusively by family law, but now there is a complex nature of the legal regulation of this institution. The fundamental norms are contained in the Civil Code (Articles 31-40), in Art. 150 SK, as well as the registered Federal Law of April 24, 2008 N 48-FZ "On guardianship and guardianship". The subject of study in the civil law course is the relevant civil law aspects of guardianship and guardianship.

Guardianship (Article 32) is established over minors and citizens recognized by the court as incompetent due to a mental disorder. Guardians are representatives of the wards by virtue of the law and make all necessary transactions on their behalf and in their interests, i.e. essentially "replacing" their wards in civil circulation. Guardians also act to protect the rights and interests of their wards in relations with any persons, incl. in courts, without special powers, but only on the basis of a decision of the guardianship and guardianship body on the appointment of a guardian or a certificate issued by him. Guardianship is established not only over completely incompetent, because. children from 6 to 14 years old have limited legal capacity (!).

Guardianship (Article 33) differs in the content of duties and persons over whom guardianship is established. It is established only over partially capable citizens: minors aged 14 to 18 years, over citizens limited by the court in their legal capacity. The trustee helps his ward to exercise his rights and fulfill his duties through advice. The trustee gives or does not give consent to transactions and other legal actions (except for those that a minor or a person with limited legal capacity can carry out independently). That. the trustee does not replace the person over whom guardianship has been established, but only helps him navigate the civil circulation, also protecting him from abuse by third parties.

The bodies of guardianship and guardianship are the executive authorities of the subject of the Russian Federation. Local self-government bodies of municipal formations (including local self-government bodies of settlements), on the territories of which there are no guardianship and guardianship bodies formed in accordance with the Federal Law, may be vested with the powers of guardianship and guardianship by the law of the constituent entity of the Russian Federation. The powers of the guardianship and guardianship authorities to identify persons in need of establishment of OPs, as well as to select and train potential guardians, may be exercised by educational organizations, medical organizations, organizations providing social services, or other organizations.

Decisions on the appointment of guardianship and guardianship are made on the basis of a court decision, which is obliged, within three days from the date of its entry into force, to notify the guardianship and guardianship authority at the place of residence of the person in need of OP.

1) protection of the rights and legitimate interests of citizens who need to establish guardianship or guardianship over them, and citizens who are under guardianship or guardianship;

2) supervision of the activities of guardians and trustees, as well as organizations in which incapacitated or not fully capable citizens are placed;

3) control over the safety of property and property management of citizens under guardianship or guardianship or placed under supervision in educational organizations, medical organizations, organizations providing social services, or other organizations, including for orphans and children left without care parents.

The powers of guardianship and guardianship authorities include:

1) identification and registration of citizens who need to establish guardianship or guardianship over them;

2) applying to the court with an application for recognizing a citizen as incapable or for limiting his legal capacity, as well as for recognizing the ward as capable, if the grounds for restriction or incapacity have disappeared;

3) establishment of guardianship or guardianship;

4) exercising supervision over the activities of guardians and curators, the activities of organizations in which incompetent or not fully capable citizens are placed;

5) release and removal of guardians and trustees from the performance of their duties;

6) issuance of permits for making transactions with the property of wards;

7) conclusion of agreements on trust management of property;

8) representation of the legitimate interests of minor citizens and incompetent citizens under guardianship or guardianship in relations with any persons (including in courts), if the actions of guardians or trustees to represent the legitimate interests of wards are contrary to the legislation of the Russian Federation and (or) the legislation of the subjects the Russian Federation or the interests of the wards, or if the guardians or trustees do not protect the legitimate interests of the wards;

9) issuance of a permit for separation of trustees and their minor wards;

10) selection, registration and training of citizens who have expressed a desire to become guardians or trustees or to accept children left without parental care into a family for upbringing in other forms established by family legislation;

11) rendering assistance to guardians and custodians, checking the living conditions of the wards, observance by the guardians and custodians of the rights and legitimate interests of the wards, ensuring the safety of their property, as well as the fulfillment by the guardians and custodians of the requirements for exercising their rights and fulfilling the duties of guardians or custodians.

When changing the place of residence of the ward, the body of guardianship and guardianship, which established guardianship or guardianship, is obliged to send the case of the ward to the body of guardianship and guardianship at his new place of residence within three days from the date of receipt from the guardian or trustee of the notice of the change of place of residence of the ward.

Fully capable adult citizens may be appointed guardians and trustees. That is, citizens who are limited in capacity, emancipated, as well as those who have acquired capacity in connection with marriage, cannot be guardians and trustees. The law also prohibits this for persons deprived of parental rights, or who have a criminal record for an intentional crime against the life and health of citizens. If guardianship is established over children, the guardian cannot also be: persons suffering from chronic alcoholism/drug addiction; persons with limited parental rights; persons suspended from the duties of guardians / trustees; former adoptive parents (if the adoption is canceled due to their fault); persons who, for health reasons, cannot carry out the upbringing of children.

A guardian or custodian can be appointed only with his consent (the principle of voluntariness). At the same time, moral and other personal qualities, the ability to perform duties, the relationship between him and the ward, if possible, the desire of the ward, must be taken into account.

Guardians or trustees are not appointed to incapacitated / not fully capable citizens placed under supervision in the relevant organizations. They also play the role of guardians / trustees.

Rights and obligations:

1) the obligation to take care of the maintenance of the wards, to provide them with care and treatment, for minors - education;

2) to make transactions on behalf of the ward (guardians) or give consent to their completion (trustees). Without the prior permission of the PLO, it is impossible to carry out transactions on the alienation of the property of the ward, its leasing, gratuitous use, pledge; as well as transactions entailing the waiver of the rights belonging to the ward, the division of his property, the allocation of shares from it; any other transactions entailing a decrease in the property of the ward. Guardians and trustees, as well as their spouses and close relatives, are prohibited from making transactions with wards, except for donations and gratuitous use;

3) to spend the income of the ward in his interests within the limits of the subsistence level;

4) guardians and curators of minor citizens are obliged to live with their wards, from the age of 16 - separately with the permission of the authorities;

5) notify the PLO about the change of residence;

6) if the grounds for incapacity or limitation of legal capacity have disappeared, to apply to the court for recognition of the ward as legally capable and removal of guardianship or guardianship;

7) guardians and custodians are not obliged to support their wards; guardianship and trusteeship are also carried out free of charge.

If it is necessary to permanently manage the immovable and valuable movable property of the ward, the PLO concludes a trust management agreement with the manager determined by this body. The guardian or custodian shall retain their rights only in relation to the remaining property.

Termination of guardianship and guardianship:

1) release: return of a minor to parents or adoption; premises for permanent stay in an educational / medical or other institution; release is also possible at the request of the guardian / trustee, if this is due to good reasons;

2) suspension: in case of improper performance of duties, use of guardianship or guardianship for personal gain, leaving the ward without supervision and necessary assistance;

3) other grounds: a court decision on recognizing a citizen as capable/removing the restriction of legal capacity at the request of a guardian, custodian or guardianship and guardianship authority; when a minor reaches the age of 14, guardianship is transformed into guardianship; when the minor reaches the age of 18/emancipation/marriage, guardianship is terminated.

PATRONAGE is a form of ensuring the interests of minors who are fully capable citizens who, for health reasons, cannot independently exercise and protect their rights and fulfill their duties. An assistant is appointed by the guardianship and guardianship authorities within a month from the date of identification of a citizen in need of establishing patronage. The assistant is appointed with the consent of the citizen. An assistant performs actions in the interests of a citizen on the basis of contracts of agency, trust management or other agreement. All issues related to the exercise of property rights are resolved with the consent of the citizen (household and other transactions). Patronage may be terminated in connection with the termination of the contract of agency, trust management of property or other contract on the grounds provided for by law or the contract.