В данной статье рассматриваются нормы гражданского права Российской Федерации, регулирующие вопрос дееспособности граждан. Проводится сравнительный анализ категорий гражданской правоспособности и субъективного гражданского права. Дана характеристика условий приобретения полной дееспособности до наступления совершеннолетия, а также приведены основания и последствия ограничения дееспособности несовершеннолетних.
Ключевые слова: гражданская правоспособность, субъективное гражданское право, эмансипация, ограничение дееспособности несовершеннолетних.
In accordance with the legislation of the Russian Federation, the legal capacity of a citizen arises at the time of his birth and ends with death. But the civil legal capacity of an individual in accordance with the norms of the Civil Code of the Russian Federation on the relevant civil legal relations may arise not from the moment of birth, but at a different, later date, depending on the type of civil obligations and rights. So, for example, paragraph 2 of Art. 26 of the Civil Code of the Russian Federation gives the right to minors, upon reaching the age of sixteen, to be members of cooperatives in accordance with the laws on cooperatives.
When analyzing civil legal capacity, special attention is paid to the question of the correlation between the categories of civil legal capacity and subjective civil law. The main distinguishing features of legal capacity from subjective right are:
— legal capacity is the primary source of the emergence of subjective rights, while the emergence of subjective rights requires the presence of certain legal facts;
— legal capacity is an abstract possibility to have rights, subjective right corresponds to certain subjective duties;
— legal capacity is an integral quality of a citizen, and subjective right is considered as an element of legal relations.
Thus, we can talk about the inseparable connection of civil legal capacity and subjective civil rights. The realization of legal capacity is carried out by acquiring and possessing specific subjective rights.
So, O. S. Ioffe, considering legal capacity as the legal capacity of a person, on the one hand, noted the similarity between legal capacity and subjective right. On the other hand, the scientist pointed out a significant difference, consisting in the fact that the subjective right is not only a measure of behavior permitted to the authorized person, but also the ability to demand certain behavior from other obliged persons [3, p.104].
The law may restrict civil rights, but only to the extent necessary to protect the legitimate rights and interests of others.
Another element of the material and legal status of an individual is legal capacity. Legal capacity is the ability of citizens to acquire and exercise civil rights, create and perform civil duties. The norms of the Civil Code of the Russian Federation establish the inadmissibility of restricting the legal capacity and capacity of a citizen. Civil legal capacity and legal capacity fully arise in a citizen from the moment of coming of age. At the same time, the level of development of volition depends not only and not so much on age, but on a certain set of social, psychological, psychophysical, communicative qualities that the subject acquires just after reaching a certain age [5].
In special cases, the legislation provides an opportunity to fully exercise their rights and obligations until the age of 18. So, if there are valid reasons, marriage is allowed for persons who have reached the age of 16, while they acquire full legal capacity. In turn, the legal capacity acquired as a result of marriage is retained in full in the event of divorce before the age of 18 [1, p. 41].
Also, by decision of the guardianship and guardianship authority or the court, a minor who has reached sixteen years of age may be declared fully capable if he works under an employment contract or is engaged in entrepreneurial activity. At the same time, the evaluation criterion is not directly the income itself, but the fact of carrying out activities that lead to income generation. That is, receiving income without the use of efforts on the part of a minor, for example, receiving income from deposits, cannot be considered a condition for emancipation. In modern conditions of the development of a market economy, emancipation contributes to minors in gaining economic independence, developing their abilities and skills to participate in entrepreneurial activities [2, p.188]. At the same time, it should be noted that emancipation makes a citizen a full-fledged participant in civil legal relations, without abolishing electoral and other restrictions.
Minors between the ages of 14 and 18 have limited civil capacity. To make transactions, they need to obtain the written consent of the representatives. Without the consent of legal representatives, minors can dispose of their income, make small everyday transactions, exercise copyrights and make deposits in credit institutions.
Art. 26 of the Civil Code of the Russian Federation provides for the possibility of restricting or depriving a minor of the right to dispose of his income. Currently, the restriction of legal capacity of minors is carried out only by a court decision. An application to restrict the rights of a minor is filed with the court at the place of residence of this citizen, the applicant may be parents, adoptive parents or guardians or guardianship and guardianship authorities. Sufficient grounds for limiting legal capacity can be considered the use of alcohol and drugs, gambling, the presence of a mental disorder. Guardianship is established over persons with limited legal capacity [4, p. 205].
Upon the expiration of the period of incapacitation established by a court decision, the limited rights are restored in full. If the court decision did not establish a period for restricting the legal capacity of a minor, then the rights are restored at the request of the persons who applied to the court with an application for restriction of rights or upon reaching the age of majority.
When restricting the right to dispose of income, a minor may exercise the above rights, having received the consent of his legal representatives. When depriving a minor of the right to dispose of income, on his behalf and in his interests, the disposal of income is carried out by legal representatives.
In conclusion, consideration of the issue, we can conclude that the law considers age as the main condition for a citizen to achieve the opportunity to acquire rights and bear obligations by his own actions, since this implies that a person has reached a certain level of mental maturity. It should be noted that the restriction of the right to independently manage their income for educational purposes is more effective than the deprivation of this right. In this situation, the minor retains an incentive to carry out labor activity in the form of the opportunity to dispose of the income received as a result, even despite the need to obtain the consent of legal representatives.
References:
- Ablyatipova N. A., Fadeeva O. A. Problems of implementation of the procedure for acquiring full civil capacity by minors // Tauride Scientific Reviewer. 2017. No. 10–1 (27). pp. 39–48.
- Demieva A. G. Emancipation as a legal incentive for entrepreneurial detail without the formation of a legal entity // VEPS. 2012. No. 1. pp. 188–190.
- Ioffe O. S. Soviet civil law. M., 1967.
- Kulagina A.Yu. Limitation of legal capacity of an individual: problems of law enforcement // Bulletin of MIEP. 2015. No. Conference. pp. 205–209.
- Skorobogatova Victoria Vladimirovna Recognition of a minor as incapable or partially capable: a comparative legal aspect // Baikal Research Journal. 2017. No. 4. URL: https://cyberleninka.ru/article/n/priznanie-nedeesposobnym-ili-ogranichenno-deesposobnym-nesovershennoletnego-litsa-sravnitelno-pravovoy-aspekt (date of access: 10/15/2018).
