Restriction of the capacity of a citizen, recognition of a citizen as incompetent: grounds, procedure and consequences. Restriction of legal capacity of a citizen

- the basis for recognizing a citizen as completely incompetent is his mental disorder, but not any, but only such, by virtue of which he cannot understand the meaning of his actions or control them. These circumstances are established by a forensic psychiatric examination;

- in the presence of these grounds, a citizen can be recognized as incapacitated only by a court decision; the procedure for making such a decision is established by civil procedural legislation;

- guardianship is established over a person recognized by the court as incompetent; the guardian makes transactions on behalf of a person recognized by the court as incompetent; transactions of the most incompetent are void (Article 171 of the Civil Code);

- when the grounds for declaring a person incompetent disappear, the court recognizes the citizen as capable and cancels the guardianship established over him.

Such a decision may be made by the court, firstly, at the request of the guardian, family members of the citizen, public organizations, the prosecutor or guardianship authority, psychiatric medical institution; secondly, on the basis of the conclusion of a forensic psychiatric examination that the person no longer suffers from a mental disorder, he can understand the meaning of his actions and manage them;

- on general rule the harm caused by a citizen recognized as legally incompetent shall be compensated by the guardian or organization obliged to supervise him, unless they prove that the harm arose not through their fault. At the same time, the obligation of these persons to compensate for the harm caused by a citizen recognized as incapacitated does not terminate in the event of his subsequent recognition as capable;

- if the guardian has died or does not have sufficient funds to compensate for the harm, and the tortfeasor himself has such funds, the court, taking into account the property status of the victim and the tortfeasor, as well as other circumstances, has the right to decide on the release of the latter from compensation for harm in whole or in part;

- the institution of recognizing a citizen as completely incapacitated applies to individuals with both full and partial legal capacity.

Restriction of legal capacity of natural persons

This institution is also not new to civil law. However, in the Civil Code of the Russian Federation it was further developed. The main provisions on the limitation of the legal capacity of citizens are as follows:

a) article 30 of the Civil Code of the Russian Federation specifies the grounds for limiting legal capacity. The hypothesis of the norm, concluded in this article, is complex, it includes several legal facts that must take place in the aggregate in order to limit the legal capacity of a citizen. First, the fact of abuse by a citizen of alcoholic beverages or narcotic substances must be established. Secondly, it must be established that by abusing alcohol or drugs, a citizen puts the family in a difficult financial situation;

b) restriction of the legal capacity of a citizen on the specified grounds is possible only by a court decision issued in the manner prescribed by civil procedural legislation;

c) a guardianship is established over a person who, by a court decision, is limited in legal capacity;

d) when making judgment on limiting the legal capacity of a citizen, the volume of his bargaining capacity is reduced. He has the right to independently 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;

e) a citizen with limited legal capacity independently bears property liability for transactions made by him;

f) the harm caused by a citizen, limited in capacity on the grounds under consideration, is compensated by the tortfeasor himself.

g) part 4 of article 26 of the Civil Code of the Russian Federation provides for the restriction of partial legal capacity of minors aged 14 to 18 years, provided that they have not acquired full legal capacity in the order of emancipation (Article 27 of the Civil Code) or marriage (Article 21 of the Civil Code) .

It states:

- if there are sufficient grounds, the court may restrict or deprive a minor between the ages of 14 and 18 of the right to independently manage his earnings, scholarships or other income;

– the article itself does not indicate the specific grounds for such a restriction. Such grounds may be a clear unreasonable disposal of funds (their use for the purchase of alcoholic beverages, gambling, etc.);

- the court makes a decision at the request of the parents, adoptive parents or guardian or the guardianship and guardianship authority, which substantiate their petition with references to circumstances indicating the need to restrict or deprive the minor of the above right.

The ability of a citizen by his actions to acquire and exercise civil rights, create for himself civil duties and fulfill them (civil capacity) arises in full with the onset of adulthood, that is, upon reaching the age of eighteen.

In the case when the law allows marriage before the age of eighteen, a citizen who has not reached the age of eighteen acquires legal capacity in full from the time of marriage. Legal capacity acquired as a result of marriage shall be retained in full even in the event of dissolution of marriage before the age of eighteen. When declaring a marriage invalid, the court may decide on the loss of full legal capacity by the minor spouse from the moment determined by the court.

No one may be limited in legal capacity and capacity otherwise than in cases and in the manner prescribed by law.

Failure to comply with the conditions and procedure established by law for restricting the legal capacity of citizens or their right to engage in entrepreneurial or other activities entails the invalidity of the act of the state or other body establishing the relevant restriction.

Full or partial waiver of a citizen's legal capacity or capacity and other transactions aimed at limiting legal capacity or capacity are void, except when such transactions are permitted by law.

Legal capacity of minors

For minors under the age of fourteen (minors), transactions, with the exception of those specified below, can only be made on their behalf by their parents, adoptive parents or guardians.

The rules provided for by paragraphs 2 and 3 of Article 37 of the Civil Code are applied to transactions of legal representatives of a minor with his property. The guardian shall not have the right, without the prior permission of the body of guardianship and guardianship, to make, and the trustee - to give consent to the conclusion of transactions for the alienation, including the exchange or donation of the property of the ward, its leasing (lease), for gratuitous use or as a pledge, transactions entailing renunciation of the rights belonging to the ward, the division of his property or the allocation of shares from it, as well as any other transactions that entail a decrease in the property of the ward.

The procedure for managing the property of a ward is determined by law.

At present, the Rules for the management of the property of minor wards, the storage and alienation of this property, approved by the Ministry of Education of the RSFSR on October 30, 1969, are in force.

The guardian, trustee, their spouses and close relatives are not entitled to make transactions with the ward, except for the transfer of property to the ward as a gift or for free use, as well as to represent the ward in the conclusion of transactions or in court cases between the ward and the spouse of the guardian or trustee and their relatives relatives.

Juveniles aged six to fourteen years have the right to independently commit:

1) small household transactions;

2) transactions aimed at gratuitous receipt of benefits that do not require notarization or state registration;

3) transactions for the disposal of funds provided by a legal representative or with the consent of last third person for a specific purpose or for free disposal.

Property liability for transactions of a minor, including transactions made by him independently, shall be borne by his parents, adoptive parents or guardians, unless they prove that the obligation was violated through no fault of theirs. These persons, in accordance with the law, are also liable for harm caused by minors.

Legal capacity of minors aged fourteen to eighteen years

Minors between the ages of fourteen and eighteen make transactions, with the exception of those mentioned below, with the written consent of their legal representatives - parents, adoptive parents or guardian.

A transaction made by such a minor is also valid if it is subsequently approved in writing by his parents, adoptive parents or guardian.

Minors between the ages of fourteen and eighteen have the right to independently, without the consent of their parents, adoptive parents and guardian:

1) dispose of their earnings, scholarships and other incomes;

3) in accordance with the law, make deposits in credit institutions and dispose of them;

4) make small household transactions; transactions aimed at gratuitous receipt of benefits 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.

Upon reaching the age of sixteen, minors are also entitled to be members of cooperatives in accordance with the laws on cooperatives.

Minors between the ages of fourteen and eighteen years shall independently bear property liability for the above-mentioned transactions made by them. For the harm caused by them, such minors are liable in accordance with the Civil Code.

If there are sufficient grounds, the court, at the request of parents, adoptive parents or a guardian or a guardianship and guardianship authority, may restrict or deprive a minor aged fourteen to eighteen years of the right to independently dispose of his earnings, stipend or other income, except in cases where such a minor has acquired legal capacity in in full upon marriage before reaching the age of 18 or by way of emancipation.

Emancipation

A minor who has reached sixteen years of age may be declared fully capable if he works under an employment contract, including under a contract, or, with the consent of his parents, adoptive parents or guardian, is engaged in entrepreneurial activities.

A minor is declared fully capable (emancipation) by decision of the guardianship and guardianship body - with the consent of both parents, adoptive parents or guardian, or in the absence of such consent - by a court decision.

Parents, adoptive parents and a guardian shall not be liable for the obligations of an emancipated minor, in particular for obligations arising as a result of causing harm to them.

A minor declared emancipated has full civil rights and bears civil obligations, with the exception of those rights and obligations for the acquisition of which the age limit is established by federal law (for example, under the law "On weapons", military duties, etc.)

The Civil Code does not provide for the possibility of canceling or depriving emancipation.

Recognition of a citizen incompetent

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.

On behalf of a citizen recognized as incompetent, transactions are made by his guardian.

If the grounds by virtue of which the citizen was declared incompetent have disappeared, the court recognizes him as capable. On the basis of a court decision, the guardianship established over him is cancelled.

In accordance with Part 3 of Art. 5 of the Law of the Russian Federation "On psychiatric care and guarantees of the rights of citizens in its provision" restriction of the rights and freedoms of persons suffering from mental disorders, only on the basis of a psychiatric diagnosis, the facts of being under dispensary observation in a psychiatric hospital or in a psycho-neurological institution for social security or special education is not allowed. Officials guilty of such violations are liable in accordance with the legislation of the Russian Federation. Conclusion of a doctor of another specialty on the condition mental health person is preliminary in nature and is not a basis for resolving the issue of restricting his rights and legitimate interests, as well as for providing him with benefits provided by law for persons suffering from mental disorders (part 3 of article 20 of the said Law). Recognition of a citizen as incompetent is carried out only in court, which is a guarantee of the protection of his rights.

The case on declaring incompetent is considered by the court with the obligatory participation of the prosecutor and a representative of the guardianship and guardianship body. If it is necessary and possible to be present for health reasons, this citizen is also summoned to the court session.

The court makes a decision on declaring a citizen incompetent on the basis of a forensic psychiatric examination. In turn, the decision of the court on recognition as incapacitated is the basis for the appointment of guardianship over this citizen.

Restriction of legal capacity of a citizen

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 capacity in the manner prescribed by civil procedural legislation. Guardianship is established over him.

At the same time, it should be taken into account that the law does not make the possibility of limiting the legal capacity of a citizen dependent on recognizing him as a chronic alcoholic or drug addict. The fact that other family members have earnings or other income in itself is not a reason to refuse to satisfy the applicant's request for recognition of a citizen with limited legal capacity, if the family does not receive the necessary material support from a person who abuses alcohol or drugs, or is forced to support him in full or partially.

At the same time, the difficult financial situation in which the citizen's family finds itself, caused by a different reason, is not a basis for limiting his legal capacity.

Disability should be understood as the deprivation by the court of a citizen of the right to perform the following actions without the consent of the trustee:

Sell, donate, bequeath, exchange, buy property, as well as make other transactions for the disposal of property, with the exception of small household ones;

Directly receive wages, pensions and other types of income (royalty, remuneration for discoveries, inventions, amounts due for the performance of work under a work contract, all kinds of benefits, etc.).

The family members of a citizen who abuses alcohol or drugs include: a spouse, adult children, parents, other relatives, disabled dependents who live with him and run a common household.

A citizen recognized as having limited legal capacity has the right to independently make 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. However, such a citizen independently bears property liability for transactions made by him and for the harm caused to him.

If the grounds by virtue of which the citizen was limited in legal capacity have disappeared, the court cancels the restriction of his legal capacity. On the basis of a court decision, the guardianship established over a citizen is cancelled.

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 rule 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) can take part in litigation. 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 Russian Federation. Local governments municipalities(including local self-government bodies of settlements) in whose territories there are no guardianship and guardianship bodies formed in accordance with the Federal Law, the law of the constituent entity of the Russian Federation may be vested with the powers of guardianship and guardianship. The powers of the guardianship and guardianship authorities to identify persons in need of establishing a OP, 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 living wage;

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.

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. After all, often decisions have to be made immediately, and if necessary knowledge No, it's almost impossible to do it right.

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 availability and completeness depend on more 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 this can happen even more early 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:

• opportunity to deposit money into credit organizations 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 civic obligations 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 far as legal entities are concerned, this case it is more about the possibility of limiting 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 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

Restriction 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.

A citizen who has reached the age of majority and is capable of independently acquiring and exercising his rights and obligations, that is, fully aware of the meaning of his actions, is considered capable. This noma is enshrined in Russian law. In certain cases, it is envisaged to limit the legal capacity of a citizen and recognize a citizen as incapable. These two procedures will be discussed in this article.

Although the law provides for the inadmissibility of depriving and restricting the legal capacity and capacity of a citizen, but in some cases, under certain circumstances, this is possible. The procedure is regulated by civil law.

General Provisions on Incapacity

Based on Article 29 of the Civil Code of the Russian Federation, the following can be distinguished:

1. Deprivation of legal capacity is possible only in the course of judicial proceedings due to a serious illness or mental disorder.

2. All transactions on behalf of a person deprived of legal capacity may be made by a guardian appointed by the court. When making a decision, he must take into account the opinion of the person deprived of legal capacity. In the absence of such an opportunity, take into account the available information about the preferences of the incapacitated person or information provided by persons who have such information.

3. If a person completely deprived of legal capacity at a certain point in time recovers mentally and understands the meaning of his actions, then in the course of judicial proceedings such a citizen may be recognized as limited in legal capacity, that is, capable of partially exercising rights and obligations under the supervision of a guardian.

A citizen recognized as legally incompetent in the event of a complete restoration of previously lost abilities is recognized as capable on the basis of a court decision.

The restoration of legal capacity in relation to a citizen entails the complete abolition of the guardianship established in relation to him.

Partial restoration of legal capacity involves the appointment of guardianship.

General provisions on the restriction of citizens in legal capacity

Art. 30 of the Civil Code of the Russian Federation. This norm regulates the limitation of the legal capacity of a citizen, the grounds, procedure and consequences.

Such a procedure is possible only in court proceedings if it is established that as a result of uncontrolled use of alcohol or drugs or addiction to gambling, such a citizen poses a threat to the material well-being of the family.

Restriction of legal capacity allows a citizen to partially exercise his rights and obligations.

Such persons have the right to participate in the commission of minor household transactions without outside interference. Making more serious decisions is possible only with the consent of the trustee.

The guardian of a person with limited legal capacity has the right to receive and spend the income of the ward within the limits established by the current legislation, with the exception of the amounts of money that the person manages independently.

Restriction in legal capacity is possible due to a partial loss of a person's ability to adequately perceive his actions as a result of a mental disorder. In such cases, a person with limited legal capacity has the ability to understand and realize the meaning of his actions, provided the guidance of third parties, that is, with the direct participation of a trustee appointed by the court.

A person limited in legal capacity has the right, without the participation of other persons, to make transactions at the household level (of little value, to meet the needs of a citizen, not subject to notarization), as well as to dispose of the income received by him.

The list of income received by a limited person, which he has the right to dispose of with the permission of the trustee, includes: pensions, alimony payments, compensation for moral damage, damage to health, payments for the loss of a breadwinner and other income for his maintenance.

The exceptions are the following types: wages, scholarships and others. The person disposes of the indicated income independently for the period permitted by the trustee.

If necessary, a person with limited legal capacity may be deprived of the right to dispose of the income received (earnings or scholarships) at the request of the relevant authorities (guardianship).

Citizens with limited rights are not released from property liability for transactions they have made, as well as from liability for harm caused.

A citizen may be restored to legal capacity on the basis of a court decision if he fully acquires his former abilities.

The restoration of legal capacity entails the abolition of guardianship.

If the mental state worsens, a person may be completely deprived of legal capacity on the basis of a court decision.

The rights of the guardian in relation to the ward

The guardian of a disabled citizen is appointed by the court from among relatives or persons who have the opportunity to care for and look after a citizen deprived of legal capacity.

The list of guardian rights includes:

• performance of any actions on behalf of the ward, including the conclusion of all types of transactions;
• protection of the rights and interests of a disabled citizen;
• the right to receive income from a citizen deprived of legal capacity, as well as to dispose of the funds received.

Grounds for deprivation of legal capacity

established by the legislator. The basis for recognizing the incapacity of a citizen may be a severe form of mental illness (insanity) of a person or another disease, the consequence of which is the loss by a citizen of the ability to adequately perceive his actions and the inability to realize the meaning of his actions.

The fundamental argument in favor of the recognition of incapacity is the expert opinion drawn up on the basis of the SPE. Such cases are considered with the obligatory participation of a representative of the prosecutor's office and guardianship and guardianship authorities. The presence of the patient at the meeting is necessary for an objective assessment of his condition.

The consequences of recognizing the incapacity of a citizen are:

• the appointment of a guardian with the subsequent transfer of an incompetent citizen to his maintenance and under his supervision;
• placement of a disabled person in a specialized medical institution.

Grounds for limiting legal capacity

Strictly regulated. AT judicial practice more often decisions are made to limit the legal capacity of a citizen. Recognition of a citizen as incompetent is carried out only on the basis of a medical report. A person may be restricted in the following cases:

• in the presence of alcohol, drug addiction or uncontrolled addiction to games;
• on the basis of an application for recognizing a citizen as incompetent in the absence of sufficient grounds for making such a decision (if the court sees no grounds for the complete restriction of the citizen).

An important condition in proving the validity of the claims made by relatives is their suffering and significant deterioration material well-being due to the lifestyle that a citizen leads (uses drugs, alcohol, loses all earnings). As practice shows, most often the court decides to limit the legal capacity of citizens who abuse alcohol.

The rights of the guardian in relation to the ward

In the event of a positive decision, a citizen with limited legal capacity loses part of his rights and guardianship is established over him.

The trustee, on the contrary, acquires the right to control the income and expenses of his limited relative. The rights of a trustee are exercised as follows:

• applying to an organization that makes payments to a citizen with limited capacity (earnings, pension, etc.), and issuing a permit, on the basis of which the income will be issued directly to the trustee;
• in addition, the trustee has the right to control transactions made by the ward, with the exception of small household ones.

What is not a reason for restriction?

The law provides exclusively for judicial recognition limited capacity and only on the basis of those circumstances that are determined by the current legislation:

• Any basis is not accepted by the court if the citizen is single and does not have his own family (wife and children);
• None of the presented circumstances is accepted by the court if the citizen is not diagnosed with alcohol, drug addiction, gambling addiction or a mental disorder.

Who has the right to go to court?

An application for recognizing a citizen as incapable or restricting him in exercising his rights has the right to submit:

• family members and relatives;
• guardian representatives;
• specialized medical institution (for diagnosing a mental illness).

Nuances of consideration

Consideration of cases on the limitation of the legal capacity of a citizen and its deprivation is carried out by the courts general jurisdiction. In particular, federal district courts at the place of residence or stay of a person.

If it is impossible for a person to directly participate in a court session in the consideration of a case on limiting the legal capacity of a citizen or declaring a citizen incompetent, the latter may be held at the location of this person, for example, in a medical institution.

The costs of the PPA are not recoverable from the applicant. An exception is cases when the court has established the groundlessness of the plaintiff's request to restrict the citizen's legal capacity or to recognize the citizen as incompetent. For example, if the applicant's actions are due to the desire to denigrate a person or selfish intent.

Possible consequences of such decisions

It must be understood that a person recognized as legally incompetent (Article 29 of the Civil Code of the Russian Federation) is completely deprived of the right to take part in public life, in particular to participate in elections, formalize marriage relations with someone, raise their own children, and also exercise testamentary dispositions in relation to their property and income.

However, such a person has the full right to enjoy the material benefits available to him, in particular property and in cash, of course, with the participation and assistance of a guardian.

Citizens with limited legal capacity (Article 30 of the Civil Code of the Russian Federation) have great rights. In addition to their remaining rights, such people are legally responsible for their actions, in particular, responsibility for harm caused to another person. The dependence of a person with limited legal capacity, on the contrary, is an aggravating circumstance in establishing the harm caused to him.

Conclusion

Deprivation and limitation of legal capacity of a citizen, grounds, procedure and consequences are regulated by civil law. Such cases are considered by the district court at the place of residence of the person in respect of whom the procedure is being carried out.