Article 17. Legal capacity of a citizen
1. The ability to have civil rights and bear responsibilities (civil capacity) is recognized equally for all citizens.
2. The legal capacity of a citizen arises at the moment of his birth and ends with death.
Article 18. Contents of the legal capacity of citizens
Citizens may have property by right of ownership; inherit and bequeath property; engage in business and any other activity not prohibited by law; create legal entities independently or jointly with other citizens and legal entities; make any transactions that do not contradict the law and participate in obligations; choose a place of residence; have the rights of authors of works of science, literature and art, inventions and other results of intellectual activity protected by law; have other property and personal non-property rights.
Article 19. Citizen's name
1. A citizen acquires and exercises rights and obligations under his own name, including the surname and first name, as well as the patronymic, unless otherwise follows from the law or national custom.
In cases and in the manner provided by law, a citizen may use a pseudonym (fictitious name).
2. A citizen has the right to change his name in the manner prescribed by law. A citizen’s change of name is not grounds for termination or change of his rights and obligations acquired under his former name.
A citizen is obliged to take the necessary measures to notify his debtors and creditors about the change of his name and bears the risk of consequences caused by the lack of information from these persons about the change of his name.
A citizen who has changed his name has the right to demand that appropriate changes be made at his own expense to documents issued in his former name.
3. The name received by a citizen at birth, as well as a change of name, are subject to registration in the manner established for registration of acts of civil status.
4. Acquiring rights and obligations under the name of another person is not permitted.
5. Harm caused to a citizen as a result of the unlawful use of his name is subject to compensation in accordance with this Code.
When a citizen’s name is distorted or used in ways or in a form that affects his honor, dignity or business reputation, the rules provided for in Article 152 of this Code are applied.
Article 20. Place of residence of a citizen
1. The place of residence is the place where a citizen permanently or primarily resides.
2. The place of residence of minors under fourteen years of age or citizens under guardianship is recognized as the place of residence of their legal representatives - parents, adoptive parents or guardians.
Article 21. Legal capacity of a citizen
1. The ability of a citizen, through his actions, to acquire and exercise civil rights, to create civil responsibilities for himself and to fulfill them (civil capacity) arises in full with the onset of adulthood, that is, upon reaching the age of eighteen.
2. In cases where the law allows marriage before the age of eighteen, a citizen who has not reached the age of eighteen acquires full legal capacity from the time of marriage.
The legal capacity acquired as a result of marriage is retained in full even in the event of divorce before reaching the age of eighteen.
If a marriage is declared invalid, the court may decide that the minor spouse loses full legal capacity from the moment determined by the court.
Article 22. Inadmissibility of deprivation and limitation of the legal capacity and capacity of a citizen
1. No one can be limited in legal capacity and capacity other than in cases and in the manner established by law.
2. Failure to comply with the conditions and procedure established by law for limiting the legal capacity of citizens or their right to engage in entrepreneurial or other activities entails the invalidity of the act of a state or other body establishing the corresponding restriction.
3. A citizen’s complete or partial renunciation of legal capacity or legal capacity and other transactions aimed at limiting legal capacity or legal capacity are void, except in cases where such transactions are permitted by law.
Article 23. Entrepreneurial activity of a citizen
1. A citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur.
3. The rules of this Code, which regulate the activities of legal entities that are commercial organizations, are applied to entrepreneurial activities of citizens carried out without forming a legal entity, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.
4. A citizen who carries out entrepreneurial activities without forming a legal entity in violation of the requirements of paragraph 1 of this article does not have the right to refer to the transactions concluded by him on the fact that he is not an entrepreneur. The court may apply to such transactions the rules of this Code on obligations associated with carrying out entrepreneurial activities.
5. Citizens have the right to engage in production or other economic activities in the field of agriculture without forming a legal entity on the basis of an agreement on the creation of a peasant (farm) enterprise, concluded in accordance with the law on peasant (farm) economy.
The head of a peasant (farm) enterprise can be a citizen registered as an individual entrepreneur.
(Clause 5 introduced by Federal Law dated December 30, 2012 N 302-FZ)
Article 24. Property liability of a citizen
A citizen is liable for his obligations with all the property belonging to him, with the exception of property that cannot be foreclosed on in accordance with the law.
The list of citizens' property that cannot be foreclosed on is established by civil procedural legislation.
Article 25. Insolvency (bankruptcy) of an individual entrepreneur
1. An individual entrepreneur who is unable to satisfy the claims of creditors related to his business activities may be declared insolvent (bankrupt) by a court decision. From the moment such a decision is made, his registration as an individual entrepreneur becomes invalid.
2. When carrying out the procedure for declaring an individual entrepreneur bankrupt, his creditors for obligations not related to his entrepreneurial activities also have the right to present their claims. The claims of these creditors, which were not declared by them in this manner, remain in force after the completion of the bankruptcy procedure of an individual entrepreneur.
3. The claims of creditors of an individual entrepreneur in the event of his being declared bankrupt are satisfied at the expense of the property belonging to him in the manner and in the order of priority provided for by the law on insolvency (bankruptcy). (Clause 3 as amended by Federal Law No. 6-FZ dated January 3, 2006)
4. After completing settlements with creditors, an individual entrepreneur declared bankrupt is released from fulfilling the remaining obligations related to his business activities and other requirements presented for execution and taken into account when declaring the entrepreneur bankrupt.
The claims of citizens to whom the person declared bankrupt is liable for causing harm to life or health, as well as other claims of a personal nature, remain in force.
5. The grounds and procedure for declaring an individual entrepreneur bankrupt by a court or declaring his bankruptcy are established by the law on insolvency (bankruptcy).
Article 26. Legal capacity of minors aged fourteen to eighteen years
1. Minors aged fourteen to eighteen years old make transactions, with the exception of those mentioned in paragraph 2 of this article, with the written consent of their legal representatives - parents, adoptive parents or guardian.
A transaction made by such a minor is also valid with its subsequent written approval by his parents, adoptive parents or guardian.
2. Minors aged fourteen to eighteen years have the right, independently, without the consent of parents, adoptive parents and guardians:
1) manage your earnings, scholarships and other income;
3) in accordance with the law, make deposits in credit organizations and manage them; (as amended by Federal Law dated December 30, 2012 N 302-FZ)
4) carry out small household transactions and other transactions provided for in paragraph 2 of Article 28 of this Code.
Upon reaching the age of sixteen, minors are also eligible to be members of cooperatives in accordance with cooperative laws.
3. Minors aged fourteen to eighteen years independently bear property liability for transactions made by them in accordance with paragraphs 1 and 2 of this article. For the harm caused by them, such minors are liable in accordance with this Code.
4. If there are sufficient grounds, the court, at the request of parents, adoptive parents or a trustee or a guardianship and trusteeship body, may limit or deprive a minor aged fourteen to eighteen years of the right to independently dispose of his earnings, scholarship or other income, except for cases where such a minor has acquired full legal capacity in accordance with paragraph 2 of Article 21 or Article 27 of this Code.
Article 27. Emancipation
1. A minor who has reached the age of sixteen may be declared fully capable if he works under an employment contract, including a contract, or with the consent of his parents, adoptive parents or guardian is engaged in entrepreneurial activity.
A minor is declared fully capable (emancipation) by decision of the guardianship and trusteeship authority with the consent of both parents, adoptive parents or trustee, or in the absence of such consent by a court decision.
2. Parents, adoptive parents and guardians are not liable for the obligations of an emancipated minor, in particular, for obligations arising as a result of harm caused to them.
Article 28. Legal capacity of minors
1. For minors under fourteen years of age (minors), transactions, with the exception of those specified in paragraph 2 of this article, can only be made on their behalf by their parents, adoptive parents or guardians.
The rules provided for in paragraphs 2 and 3 of Article 37 of this Code apply to transactions of legal representatives of a minor with his property.
2. Minors aged six to fourteen years have the right to independently commit:
1) small household transactions;
2) transactions aimed at obtaining benefits free of charge, which do not require notarization or state registration;
3) 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.
3. 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 responsible for damage caused by minors.
Article 29. Recognition of a citizen as incompetent
1. A citizen who, due to a mental disorder, cannot understand the meaning of his actions or manage them, may be declared incompetent by the court in the manner established by civil procedural legislation. Guardianship is established over him.
2. On behalf of a citizen declared incompetent, transactions are carried out by his guardian.
3. If the grounds on which the citizen was declared legally incompetent no longer exist, the court will recognize him as legally competent. Based on a court decision, the guardianship established over him is canceled.
Article 30. Limitation of a citizen’s legal capacity
1. A citizen who, due to addiction to gambling, alcohol or drug abuse, puts his family in a difficult financial situation, may be limited by the court in legal capacity in the manner established by civil procedural legislation. Guardianship is established over him. (as amended by Federal Law dated December 30, 2012 N 302-FZ)
He has the right to independently carry out small household transactions.
He can carry out other transactions only with the consent of the trustee. However, such a citizen independently bears property liability for the transactions he has made and for the damage he has caused. The trustee receives and spends the earnings, pension and other income of a citizen whose legal capacity is limited by the court, in the interests of the ward in the manner prescribed by Article 37 of this Code. (as amended by Federal Law dated December 30, 2012 N 302-FZ)
2. If the grounds due to which a citizen was limited in legal capacity no longer exist, the court cancels the restriction of his legal capacity. Based on a court decision, the guardianship established over the citizen is cancelled.
Article 31. Guardianship and trusteeship
1. Guardianship and trusteeship are established to protect the rights and interests of incapacitated or not fully capable citizens. Guardianship and trusteeship of minors are also established for the purpose of their education. The corresponding rights and obligations of guardians and trustees are determined by family law. (as amended by Federal Law No. 49-FZ dated April 24, 2008)
2. Guardians and trustees act in defense of the rights and interests of their wards in relations with any persons, including in the courts, without special authority.
3. Guardianship and trusteeship of minors are established in the absence of their parents, adoptive parents, deprivation of parental rights by the court, as well as in cases where such citizens for other reasons were left without parental care, in particular, when parents evade their upbringing or protection of them rights and interests.
4. The provisions of the Federal Law “On Guardianship and Trusteeship” and other regulatory legal acts of the Russian Federation adopted in accordance with it apply to relations arising in connection with the establishment, implementation and termination of guardianship or trusteeship and not regulated by this Code. (Clause 4 introduced by Federal Law dated April 24, 2008 N 49-FZ)
Article 32. Guardianship
1. Guardianship is established over minors, as well as over citizens recognized by the court as incompetent due to a mental disorder.
2. Guardians are representatives of wards by force of law and make all necessary transactions on their behalf and in their interests.
Article 33. Guardianship
1. Guardianship is established over minors aged fourteen to eighteen years, as well as over citizens limited by the court in legal capacity. (Clause 1 as amended by Federal Law dated December 30, 2012 N 302-FZ)
2. Trustees give consent to carry out those transactions that citizens under trusteeship do not have the right to carry out independently.
Guardians of minor citizens assist their wards in exercising their rights and fulfilling their duties, and also protect them from abuse by third parties. (as amended by Federal Law No. 49-FZ dated April 24, 2008)
Article 34. Guardianship and trusteeship bodies
1. The guardianship and trusteeship bodies are the executive authorities of the constituent entity of the Russian Federation. Guardianship and trusteeship bodies are also local government bodies if the law of a constituent entity of the Russian Federation vests them with powers of guardianship and trusteeship in accordance with federal laws. (as amended by Federal Laws dated December 29, 2006 N 258-FZ, dated July 2, 2013 N 167-FZ)
Issues of the organization and activities of guardianship and trusteeship bodies for the implementation of guardianship and trusteeship of children left without parental care are determined by this Code, the Family Code of the Russian Federation, Federal Law of October 6, 1999 N 184-FZ "On the general principles of organizing legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation", Federal Law of October 6, 2003 N 131-FZ "On the general principles of the organization of local self-government in the Russian Federation", other federal laws and laws of the constituent entities of the Russian Federation. (paragraph introduced by Federal Law dated July 2, 2013 N 167-FZ)
The powers of the guardianship and trusteeship body in relation to the ward are vested in the body that established the guardianship or trusteeship. When the place of residence of the ward changes, the powers of the guardianship and trusteeship body are assigned to the guardianship and trusteeship body at the new place of residence of the ward in the manner prescribed by the Federal Law “On Guardianship and Trusteeship”. (paragraph introduced by Federal Law dated April 24, 2008 N 49-FZ)
2. The court is obliged, within three days from the date of entry into legal force of the decision to recognize a citizen as incompetent or to limit his legal capacity, to inform the guardianship and trusteeship authority at the place of residence of such a citizen about this in order to establish guardianship or trusteeship over him.
3. The guardianship and trusteeship authority at the place of residence of wards exercises supervision over the activities of their guardians and trustees.
Article 35. Guardians and trustees
1. A guardian or trustee is appointed by the guardianship and trusteeship authority at the place of residence of the person in need of guardianship or trusteeship, within a month from the moment when the said bodies became aware of the need to establish guardianship or trusteeship over the citizen. If there are circumstances worthy of attention, a guardian or trustee may be appointed by the guardianship and trusteeship authority at the place of residence of the guardian (trustee). If a person in need of guardianship or trusteeship is not appointed a guardian or trustee within a month, the performance of the duties of a guardian or trustee is temporarily assigned to the guardianship and trusteeship body.
The appointment of a guardian or trustee may be challenged in court by interested parties. (as amended by Federal Law dated December 18, 2006 N 231-FZ)
2. Only adults and capable citizens can be appointed as guardians and trustees. Citizens deprived of parental rights, as well as citizens who, at the time of establishment of guardianship or trusteeship, have a criminal record for a deliberate crime against the life or health of citizens cannot be appointed as guardians and trustees. (as amended by Federal Law No. 49-FZ dated April 24, 2008)
3. A guardian or trustee may be appointed only with his consent. In this case, his moral and other personal qualities, ability to fulfill the duties of a guardian or trustee, the relationship existing between him and the person in need of guardianship or trusteeship, and, if possible, the desire of the ward must be taken into account.
4. Incompetent or not fully capable citizens placed under the supervision of educational organizations, medical organizations, organizations providing social services, or other organizations, including organizations for orphans and children left without parental care, guardians or trustees are not are appointed. The fulfillment of the duties of guardians or trustees is assigned to these organizations. (as amended by Federal Law No. 49-FZ dated April 24, 2008)
Article 36. Fulfillment of their duties by guardians and trustees
1. Responsibilities for guardianship and trusteeship are performed free of charge, except in cases provided for by law.
2. Guardians and trustees of minor citizens are required to live together with their wards. Separate residence of a guardian with a ward who has reached sixteen years of age is permitted with the permission of the guardianship and trusteeship authority, provided that this does not adversely affect the education and protection of the rights and interests of the ward.
Guardians and trustees are required to notify the guardianship and trusteeship authorities of a change of place of residence.
3. Guardians and trustees are obliged to take care of the maintenance of their wards, provide them with care and treatment, and protect their rights and interests.
Guardians and trustees of minors must take care of their education and upbringing.
4. The responsibilities specified in paragraph 3 of this article are not assigned to trustees of adult citizens whose legal capacity has been limited by the court.
5. If the grounds on which a citizen was declared incompetent or partially incompetent due to alcohol or drug abuse have disappeared, the guardian or trustee is obliged to petition the court to recognize the ward as legally competent and to remove guardianship or trusteeship from him.
Article 37. Disposal of the property of a ward
1. The income of a ward, including the amount of alimony, pensions, benefits and other social payments provided for his maintenance, as well as income due to the ward from the management of his property, with the exception of income that the ward has the right to dispose of independently, shall be spent by the guardian or trustee exclusively for interests of the ward and with the prior permission of the guardianship and trusteeship authority. Without the prior permission of the guardianship and trusteeship authority, the guardian or trustee has the right to spend monthly money on the maintenance of the ward within the limits of the minimum subsistence level per capita established in accordance with the law for the entire Russian Federation. (as amended by Federal Laws dated April 24, 2008 N 49-FZ, dated November 30, 2011 N 363-FZ)
2. The guardian does not have the right, without the prior permission of the guardianship and trusteeship body, to carry out, and the trustee does not have the right to consent to, transactions involving the alienation, including the exchange or donation of the ward’s property, leasing it (lease), for gratuitous use or as a pledge, transactions , entailing the 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 actions entailing a decrease in the property of the ward. (as amended by Federal Law dated December 30, 2012 N 302-FZ)
The procedure for managing the property of a ward is determined by the Federal Law “On Guardianship and Trusteeship”. (as amended by Federal Law No. 49-FZ dated April 24, 2008)
3. The guardian, trustee, their spouses and close relatives do not have the right to enter into transactions with the ward, with the exception of transferring property to the ward as a gift or for free use, as well as to represent the ward when concluding transactions or conducting legal cases between the ward and the spouse of the guardian or trustee and their close relatives.
Article 38. Trust management of the ward’s property
1. If it is necessary to permanently manage the immovable and valuable movable property of the ward, the guardianship and trusteeship body enters into an agreement on trust management of such property with the manager determined by this body. In this case, the guardian or trustee retains his powers in relation to the property of the ward that has not been transferred to trust management.
When the manager exercises the powers to manage the property of the ward, the manager is subject to the rules provided for in paragraphs 2 and 3 of Article 37 of this Code.
2. Trust management of the ward’s property is terminated on the grounds provided for by law for termination of the agreement on trust management of property, as well as in cases of termination of guardianship and trusteeship.
Article 39. Release and removal of guardians and trustees from the performance of their duties
1. The guardianship and trusteeship authority shall release the guardian or trustee from the performance of his duties in cases of the return of a minor to his parents or his adoption.
When placing a ward under supervision in an educational organization, medical organization, organization providing social services, or other organization, including an organization for orphans and children left without parental care, the guardianship and trusteeship authority releases the previously appointed guardian or trustee from performance of their duties, if this does not contradict the interests of the ward. (as amended by Federal Law No. 49-FZ dated April 24, 2008)
2. A guardian or trustee may be released from performing their duties at their request.
A guardian or trustee may be relieved from performing his duties on the initiative of the guardianship and trusteeship body in the event of conflicts between the interests of the ward and the interests of the guardian or trustee, including temporarily. (clause 2 as amended by Federal Law dated April 24, 2008 N 49-FZ)
3. In cases of improper performance by a guardian or trustee of his duties, including when he uses guardianship or trusteeship for personal gain or when leaving a ward without supervision and necessary assistance, the guardianship and trusteeship body may remove the guardian or trustee from the performance of these duties and take the necessary measures to bring the guilty citizen to justice established by law.
Article 40. Termination of guardianship and trusteeship
1. Guardianship and trusteeship of adult citizens shall be terminated in cases where the court makes a decision recognizing the ward as capable or lifting restrictions on his legal capacity at the request of the guardian, trustee or guardianship and trusteeship body.
Article 41. Patronage of adult capable citizens
(Article 41 as amended by Federal Law No. 49-FZ dated April 24, 2008)
1. Patronage may be established over an adult capable citizen who, for health reasons, is not able to independently exercise and protect his rights and fulfill his duties.
2. Within a month from the date of identification of an adult capable citizen who, for health reasons, cannot independently exercise and protect his rights and fulfill his duties, an assistant is assigned to him by the guardianship and trusteeship body. An assistant can be appointed with his consent in writing, as well as with the consent in writing of the citizen over whom patronage is established. An employee of an organization providing social services to an adult capable citizen who needs patronage over him cannot be appointed as an assistant to such a citizen.
3. An assistant of an adult capable citizen performs actions in the interests of a citizen under patronage, on the basis of an agency agreement, a property trust management agreement, or another agreement concluded with this person.
4. The guardianship and trusteeship body is obliged to monitor the performance by an assistant of an adult capable citizen of his duties and notify the citizen under patronage of violations committed by his assistant and which are the basis for termination of the agency agreement, property trust management agreement or other agreement concluded between them.
5. Patronage of an adult capable citizen, established in accordance with paragraph 1 of this article, shall be terminated in connection with the termination of the agency agreement, property trust management agreement or other agreement on the grounds provided for by law or agreement.
Article 42. Recognition of a citizen as missing
A citizen may, at the request of interested parties, be recognized by the court as missing if during the course of a year there is no information about his place of residence at his place of residence.
If it is impossible to determine the day of receipt of the latest information about the absentee, the beginning of the calculation of the period for recognizing an unknown absence is considered to be the first day of the month following the one in which the latest information about the absentee was received, and if it is impossible to determine this month, the first of January of the next year.
Article 43. Consequences of recognizing a citizen as missing
1. The property of a citizen recognized as missing, if it is necessary to permanently manage it, is transferred on the basis of a court decision to a person who is determined by the guardianship and trusteeship body and acts on the basis of a trust management agreement concluded with this body.
From this property, maintenance is given to citizens whom the missing person is obliged to support, and the debt on other obligations of the missing person is repaid.
2. The guardianship and trusteeship body may, even before the expiration of a year from the date of receipt of information about the place of residence of an absent citizen, appoint a manager of his property.
3. The consequences of declaring a person missing, not provided for by this article, are determined by law.
Article 44. Cancellation of a decision to recognize a citizen as missing
In the event of the appearance or discovery of the place of residence of a citizen recognized as missing, the court cancels the decision to recognize him as missing. Based on a court decision, management of the citizen’s property is cancelled.
Article 45. Declaring a citizen dead
1. A citizen may be declared dead by a court if at his place of residence there is no information about his place of stay for five years, and if he went missing under circumstances that threatened death or giving reason to assume his death from a certain accident - within six months.
2. A military serviceman or other citizen who has gone missing in connection with hostilities may be declared dead by a court no earlier than two years from the date of the end of hostilities.
3. The day of death of a citizen declared dead is the day the court decision to declare him dead comes into force. If a citizen who has gone missing under circumstances threatening death or giving reason to assume his death from a certain accident is declared dead, the court may recognize the day of death of this citizen as the day of his alleged death.
Article 46. Consequences of the appearance of a citizen declared dead
1. In the event of the appearance or discovery of the place of stay of a citizen declared dead, the court shall cancel the decision to declare him dead.
2. Regardless of the time of his appearance, a citizen may demand from any person the return of the remaining property that was transferred to this person free of charge after the citizen was declared dead, except for the cases provided for in paragraph 3 of Article 302 of this Code.
Persons to whom the property of a citizen declared dead was transferred through compensated transactions are obliged to return this property to him if it is proven that, when acquiring the property, they knew that the citizen declared dead was alive. If it is impossible to return such property in kind, its cost will be reimbursed.
Article 47. Civil registration
1. The following acts of civil status are subject to state registration:
1) birth;
2) marriage;
3) divorce;
4) adoption;
5) establishing paternity;
6) change of name;
7) death of a citizen.
2. Registration of acts of civil status is carried out by the civil registry authorities by making appropriate entries in the civil registration books (act books) and issuing certificates to citizens based on these entries.
3. Corrections and changes in civil status records are carried out by the civil registry office if there are sufficient grounds and there is no dispute between interested parties.
If there is a dispute between interested parties or the civil registry office refuses to correct or change the record, the dispute is resolved by the court.
Cancellation and restoration of civil status records are carried out by the civil registry office on the basis of a court decision.
4. Bodies carrying out registration of acts of civil status, the procedure for registering these acts, the procedure for changing, restoring and canceling civil status records, forms of act books and certificates, as well as the procedure and terms of storage of act books are determined by the law on acts of civil status.
Legal capacity is the ability to have civil rights and bear responsibilities. Civil legal capacity is recognized equally for all citizens, regardless of gender, race, nationality and religion. The legal capacity of a citizen arises at the moment of his birth and ends with death (declaring a person dead by the court).
No one can be limited in legal capacity, except in cases and in accordance with the procedure established by law. A citizen’s complete or partial renunciation of legal capacity and legal capacity and other transactions aimed at limiting legal capacity or legal capacity are void, except in cases where such transactions are permitted by law.
Legal capacity is the ability of a citizen, through his actions, to acquire and exercise civil rights, to create civil responsibilities for himself and to fulfill them.
Full legal capacity is recognized for citizens who have reached the age of 18, with the exception of the case where a citizen who got married before reaching 18 years of age is declared fully capable; as well as in the case of emancipation, i.e. declaring a minor who has reached the age of 16 fully capable if he works under an employment contract or is engaged in business with the consent of his parents. Minors (from 14 to 18 years old) and minors (from 6 to 14 years old) have partial legal capacity.
A citizen who, due to the abuse of alcoholic beverages or drugs, puts his family in a difficult financial situation, may be limited by the court in his legal capacity.
A citizen who, due to a mental disorder, cannot understand the meaning of his actions and be guided by them, is recognized by the court as incompetent.
Guardianship and trusteeship are established to protect the rights and interests of incapacitated or partially capable citizens. Guardianship and trusteeship of minors is established when the court deprives parents of parental rights, in the absence of such, or when minors are left without parental care for other reasons (parents evade their upbringing or protection of their rights and interests).
Guardianship is established over minors (from 6 to 14 years old) and citizens recognized as incompetent, trusteeship - over minors (from 14 to 18 years old) and citizens with limited legal capacity. Only adults and capable citizens can be appointed as guardians and trustees. Guardianship is terminated if the ward is recognized as legally competent, as well as when the minor reaches 14 years of age. Guardianship is terminated in the following cases: when the restriction on the legal capacity of the ward is lifted, when the minor reaches 18 years of age, upon his marriage or emancipation.
According to Art. 41 of the Civil Code of the Russian Federation, at the request of an adult capable citizen who, for health reasons, cannot independently exercise and protect his rights and fulfill his duties, guardianship in the form of patronage may be established over him.
A trustee (assistant) of an adult capable citizen can be appointed by the guardianship and trusteeship body only with the consent of such a citizen.
Legal capacity is not only the ability of a citizen to acquire civil rights through his actions, but also to exercise them; not only the ability to create civic responsibilities for oneself, but also to fulfill them.
The general rule about the moment when full legal capacity arises has two exceptions. The first applies to persons who married before reaching adulthood. The Family Code of the Russian Federation (Article 13) sets the marriageable age for men and women at 18 years. When registering a marriage, minors acquire full legal capacity. If a marriage is dissolved before reaching the age of majority, the legal capacity of the person is retained.
The second exception to the general rule about the emergence of full legal capacity with the onset of adulthood is that provided for in Art. 27 of the Civil Code of the Russian Federation - emancipation.
Those who are legally capable, but do not have full legal capacity (for example, minors) acquire civil rights and create responsibilities not through independent actions, but through the actions of capable persons - legal representatives - parents, adoptive parents, guardians or trustees.
Article 28 of the Civil Code of the Russian Federation provides that for minors under fourteen years of age (minors), transactions can be made on their behalf only by their parents, adoptive parents or guardians.
Minors aged six to fourteen years have the right to independently:
Small household transactions;
Transactions aimed at obtaining benefits free of charge, which do not require notarization or state registration;
Transactions involving 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.
Property liability for transactions of a minor, including transactions made by him independently, is 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 responsible for damage caused by minors.
In accordance with Art. 26 of the Civil Code of the Russian Federation, minors aged fourteen to eighteen years make transactions with the written consent of their legal representatives - parents, adoptive parents or guardian.
A transaction made by such a minor is also valid with its subsequent written approval by his parents, adoptive parents or guardian.
Minors aged fourteen to eighteen years have the right, independently, without the consent of parents, adoptive parents and guardians:
Manage your earnings, scholarships and other income;
In accordance with the law, make deposits in credit institutions and manage them;
Conduct small household transactions and other transactions provided for in Article 28 of the Civil Code of the Russian Federation.
Upon reaching the age of sixteen, minors are also eligible to be members of cooperatives in accordance with cooperative laws.
Minors aged fourteen to eighteen years independently bear property liability for transactions made by them independently, listed above in accordance with the specified article of the Civil Code. Such minors are liable for the harm they cause in accordance with the Civil Code of the Russian Federation.
If there are sufficient grounds, the court, at the request of parents, adoptive parents or a trustee or a guardianship authority, may limit or deprive a minor aged fourteen to eighteen years of the right to independently dispose of his earnings, scholarship or other income, except for cases where such a minor has acquired legal capacity in fully in accordance with paragraph 2 of Article 21 or Article 27 of the Civil Code of the Russian Federation (emancipation).
Emancipation is the second special basis for a citizen to acquire full legal capacity until he reaches eighteen years of age. To declare a person emancipated, as follows from Art. 27 of the Civil Code of the Russian Federation, a combination of two conditions is necessary:
a) reaching the age of sixteen;
b) labor or entrepreneurial activity.
The Civil Code does not allow, as a second condition for emancipation, the presence of a minor other (other than salary or business income), such as income from securities, bank deposits, etc. This provision means that the main content of the second condition is not the income itself, but the recognition of the possibility of independent activity of the minor himself, the result of which is a permanent income. In view of this, termination of an employment contract or entrepreneurial activity by an emancipated minor is not grounds for canceling emancipation.
In contrast to marriage when the age of consent for a minor is reduced, which entails his acquiring full legal capacity “automatically,” emancipation requires an announcement.
A minor is declared fully capable (emancipation) by decision of the guardianship and trusteeship authority - with the consent of both parents, adoptive parents or trustee, or in the absence of such consent - by a court decision.
It should be borne in mind that an emancipated person is a full participant only in civil legal relations. Other age restrictions and qualifications (electoral, administrative, etc.) are not canceled by declaring a person emancipated.
Parents, adoptive parents and guardians are not liable for the obligations of an emancipated minor, in particular for obligations arising as a result of harm caused to them.
In accordance with Article 19 (“Citizen’s name”), each person participates in the civil defense under a certain name and only in rare cases - under a pseudonym (fictitious name) or anonymously. The name is one of the means of individualizing a citizen as a participant in civil defense. In the Russian Federation, in a broad sense, “name” covers the full name, but some national customs of the peoples of the Russian Federation do not know such a thing as “patronymic” and it is not indicated in official documents. The custom in Western countries of indicating only F and I, inculcated in the media since the early 90s, is a “liberty” used in a certain environment. Official documents must indicate the full “name” – full name.
The law recognizes that a name is a category of civil law; according to the law, a citizen acquires and carries out civil law and civil law under his own name, their acquisition under the name of another person is not allowed. The right to a name is the most important right of a citizen (FL), an individual. A good name, as a benefit belonging to a citizen, is protected in cases and in the manner provided for by the Civil Code and other laws, and is one of the inalienable and non-transferable benefits (clause 1 of Article 150). In particular, protection of the right to a name is provided in cases of distortion or use of a citizen’s name in ways or in a form that affect his honor, dignity or business reputation (paragraph 2, paragraph 5, article 19).
Upon reaching the age of 16, a citizen has the right to change his name in the manner prescribed by law and has the right to demand (at his own expense) changes to documents issued in his previous name or their replacement. A change of name is not a basis for termination or modification of his rights and obligations acquired under the previous name. A citizen is obliged to take the necessary measures to notify his debtors and creditors of the change of his name. Some cases of name change are provided for by the RF IC (marriage, divorce, adoption). Information about the name received by a citizen at birth, as well as a change of name, are subject to registration in the manner established for registration of the AGS.
Place of residence (clause 1 of Article 20) is recognized as the place where a citizen permanently or primarily resides. This can be a residential building, apartment, office premises, specialized houses (dormitories, hotels, shelters), as well as other residential premises in which a citizen permanently or primarily resides as the owner, under a rental agreement, lease or on other grounds provided by law. MF must be determined with sufficient accuracy (locality, street, house and apartment number).
Permanent residence means that, due to the existing conditions, the citizen has settled in a given place. Predominant residence means the place where a citizen lives more than in other places (geologists, sailors, builders). Article 27 of the Russian Federation proclaims the principle of freedom to choose a place of residence, but at the same time the law (Article 8 of the Federal Law of June 25, 1993 “On the right of citizens of the Russian Federation to freedom of movement, VMPiZh within the Russian Federation”) establishes restrictions on this right. It may be limited: in the border zone, in closed military camps, in closed administrative territories, in zones of environmental disasters, etc.
According to the laws, citizens of the Russian Federation are required to register at the place of residence and for the MF. The place of residence of minors under 14 years of age is the place of residence of their parents, adoptive parents or trustees (one of the parents with whom the minor lives). The place of residence of incapacitated citizens under guardianship is considered to be the place of residence of their guardians.
Legal significance: An accurate definition of MF is essential for protecting the civil rights and interests of citizens, ensuring the sustainability of civil rights, as well as state interests. The need to know the exact MF of a citizen arises when resolving legal issues: where the obligation must be fulfilled, the place where the inheritance is opened, official calls and notices are sent to the permanent MF.
A legal entity is understood to be an organization that has the following characteristics: the presence of separate property with the right of ownership or economic management, or with the right of operational management; liability of property for its obligations; independent participation in civil transactions (acquisition and exercise of property and personal non-property rights and obligations on one’s own behalf); ability to be a plaintiff and defendant in court. A legal entity must have an independent balance sheet or estimate and be registered as a legal entity.
A legal entity has legal capacity and legal capacity, which arise simultaneously and cease at the moment of its liquidation. Legal capacity can be general (for commercial organizations, with the exception of unitary enterprises) and special (for non-profit and unitary organizations). General legal capacity means the ability of a legal entity to engage in any type of activity not prohibited by law. Special legal capacity is a limitation of types of activities (possible types of activities are listed in the constituent documents of a legal entity); for this, a legal entity must have a license.
A legal entity may have separate divisions located outside its location: branches (carry out all the functions of the legal entity or part of them) and representative offices (represent the interests of the legal entity and protect it).
The legal capacity of a legal entity is exercised through its bodies: individual (director, manager, chairman, president) and collegial (directorate, board of managers, general meeting of the workforce).
Individualization of a legal entity is carried out using the name of the enterprise, as well as using trademarks, service marks, names of places of origin of goods, which are the intellectual property of the legal entity. The location of a legal entity is determined by the place of its state registration, unless otherwise stated in the constituent documents. A commercial legal entity must have a business name. A legal entity may have a commercial or official secret. A legal entity has a business reputation.
Classification of legal entities. According to the degree of participation of labor and capital - association of persons (business partnerships) and association of capital (business companies). According to the order of creation of the property base - corporations (voluntary associations) and institutions (subsidiaries). According to the form of ownership of their property - state, municipal and private. Depending on the organizational and legal form - business partnerships and societies, cooperatives, unitary enterprises (state and municipal), institutions financed by the owner, non-profit organizations. Depending on the purpose - commercial (the main purpose of their creation is to make a profit) and non-commercial (the main purpose of their creation is to perform certain socially useful functions not related to making a profit). The last type of classification is the most common in modern civil law.
Legal personality- the ability of a person to have and exercise, directly or through his representatives, subjective rights and legal obligations, that is, to act as a subject of legal relations.
The Russian Federation, constituent entities of the Russian Federation and municipalities, like other subjects of civil law, can participate in civil law relations. However, their legal capacity has a number of features related primarily to the fact that they are the main subjects of public law - bearers of power. At the same time, in private law relations, observing such an important principle of civil law as equality of parties, the Russian Federation, the constituent entities of the Russian Federation and municipalities renounce their special position. According to paragraph 1 of Art. 124 of the Civil Code, they participate in civil legal relations on an equal basis with other entities. And yet, the powers of the Russian Federation, constituent entities of the Russian Federation and municipalities to intervene in civil legal relations are quite large.
The nature of the state as a subject of civil law is expressed in the fact that although it is an organization, it nevertheless does not act as a legal entity in civil circulation. Therefore, in Russian civil law, the classification of subjects consists of individuals, legal entities and a special person - the state. However, the legislator extends to the state the rules that determine the participation of legal entities in civil relations. Thus, the state is equated to a legal entity, but is not named as such.
The legal capacity of the Russian Federation, constituent entities of the Russian Federation and municipalities cannot be identical to the legal capacity of individuals and legal entities. This is due to the fact that their legal nature, on the one hand, allows (or, on the contrary, does not allow) the Russian Federation, constituent entities of the Russian Federation and municipalities to acquire a number of rights available (not available) to individuals and legal entities and assign (not assign) some duties are available (or not available) to individuals and legal entities. For example, the state may acquire property without heirs or issue government securities. But at the same time, he cannot transfer property by inheritance or have his own name. On the other hand, the Russian Federation, constituent entities of the Russian Federation and municipalities participate in civil circulation for the purpose of the most effective administration of public power, and not to satisfy their private interests. These goals predetermine the legal capacity of the Russian Federation, its constituent entities and municipalities. On behalf of the Russian Federation and the constituent entities of the Russian Federation, by their actions they can acquire and exercise civil rights and obligations, and act in court, public authorities within the framework of their competence established by acts defining the status of these bodies (clause 1 of Article 125 of the Civil Code).
Municipalities are special participants in civil circulation. Municipal entities are understood as an urban, rural settlement, several settlements united by a common territory, part of a settlement, other populated territory, within which local self-government is exercised, there is municipal property, a local budget and elected bodies of local self-government. On behalf of municipalities, through their actions, local government bodies can acquire and exercise civil rights and obligations within the framework of their competence established by acts defining the status of these bodies (clause 2 of Article 125 of the Civil Code). The role of such bodies may be a representative body of local government, an elected head of the municipality (if such a position is provided) and other local government bodies.
The objects of civil rights are material and intangible benefits or activities to create them, regarding which subjects of civil law enter into legal relations with each other and acquire civil rights and obligations. The law includes things as objects of civil rights, including money and securities, other property, including property rights; works and services; information; results of intellectual activity, including exclusive rights to them (intellectual property); intangible benefits (Article 128 of the Civil Code of the Russian Federation).
It is obvious that these groups of objects are different in their properties and manifestations. Some exist in tangible form, others represent certain human actions, and others can only be perceived at the level of awareness and emotional experience. In civil law, objects of the real and ideal world are combined into categories and types mainly in order to establish a legal regime that reflects the essence, characteristics of these objects, their role in human life and to formulate rules of behavior in relation to these objects. The legal regime of objects of civil rights is a normatively established set of rules that make it possible to determine whether this or that object can be the subject of transactions and what kind of transactions, on what grounds rights to it arise and terminate and to what extent and limits they are exercised.
Objects of civil rights are divided into tangible and intangible (ideal). The first group includes: things; works and services, as well as their results that have a tangible or other material effect (for example, repair work, transportation services, storage of things); property rights of claim (such as funds in a bank account, share in property). The second group includes: the results of creative activity (inventions, works of art); methods of individualization of goods and their manufacturers (trademarks, service marks, brand names, etc.); personal non-property rights (the right to a name, the right to protection of honor and dignity, the right to personal integrity, etc.).
Transaction concept. Among all the lawful actions of citizens and legal entities as legal facts, all kinds of transactions are the most common. According to Art. 153 of the Civil Code, a transaction recognizes the actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations. From this definition follow the main general features of the transaction. First, the transaction constitutes legal action. Secondly, a transaction is always an act of will, since its completion requires the desire of the person making the transaction. Thirdly, the transaction is aimed at the emergence, termination or change of civil legal relations. Finally, the transaction gives rise to civil legal relations.
Types of transactions. Transactions are classified on various grounds.
1. Depending on the number of parties involved in the transaction, whose expression of will is required to complete transactions, the latter are divided into unilateral, bi- and multilateral transactions (or contracts). Here it should be borne in mind that the party making the transaction is understood as the party expressing its will to generate any legal consequences. Persons who participate in a transaction, but do not express their will, are referred to as third parties or participants in the transaction.
A transaction is considered unilateral, for the completion of which the expression of the will of one party is sufficient (clause 1 of Article 154 of the Civil Code). A typical example of a one-sided transaction is the drawing up of a will, acceptance of an inheritance, or the announcement of a competition. All these actions do not require anyone’s consent and are performed by one person. Rights under a unilateral transaction may arise both from the person making the transaction and from third parties in whose interest the transaction was completed. But the obligee under a unilateral transaction is the person who made the transaction, since the emergence of an obligation on a third party as a result of the actions of only one subject would contradict the general provisions of law. A unilateral transaction can give rise to legal obligations for other persons not participating in this transaction only in cases established by law or agreement with these persons (Article 155 of the Civil Code). Transactions that require the agreement of the will of two or more persons are bi- and multilateral. Such transactions are called contracts. An example of a bilateral transaction is a retail purchase and sale agreement, a multilateral transaction is an agreement on joint activities (or a simple partnership agreement).
2. Based on their economic content, a distinction is made between paid transactions (lease agreement) and gratuitous transactions (donation agreement, gratuitous use agreement (loan)).
3. Based on the moment at which the transaction occurs, real transactions are distinguished (from the Latin res - thing) and consensual (from the Latin consensus - agreement). Transactions for which it is sufficient to reach an agreement on the transaction are considered consensual. For example, a contract of sale is considered completed when an agreement is reached between the seller and the buyer. However, following the above example, a transaction concluded only upon the transfer of the thing by one of the participants is real, since the rights and obligations under it cannot arise until the transfer of the thing. However, one should not confuse the actual execution of a transaction with the moment of its occurrence. Thus, the parties have the right to agree that the transfer of an item under a purchase and sale agreement may coincide with the moment of conclusion of the agreement, but such an agreement does not make the purchase and sale agreement real.
4. According to the significance of the basis of a transaction for its validity, transactions are distinguished between causal (from the Latin causa - cause) and abstract. A transaction is causal, the validity of which directly depends on the presence of a reason. However, the law may provide for cases where the basis is legally indifferent; such transactions are recognized as abstract. For the validity of abstract transactions, it is necessary to indicate their abstract nature in the law. A typical example of an abstract transaction is a promissory note issued as payment for specific goods or services and representing a general promise, unconditional on any consideration, to pay a specified sum of money. According to the norm of Art. 370 of the Civil Code, a bank guarantee is also recognized as abstract, since it does not depend on the main obligation in respect of which it is provided.
5. Depending on the period of time during which the transaction must be executed, fixed-term and open-ended transactions are distinguished. An open-ended transaction comes into force immediately, since it does not define either the moment of its entry into force or the moment of its termination. Urgent transactions are those in which either the moment of entry into force of the transaction, or the moment of its termination, or both specified moments are determined.
6. Depending on the definition of the terms of the transaction, the latter are divided into nay puff and unconditional. At the same time, conditional transactions, in turn, are divided into those concluded under a suspensive or under a dispositive condition. Thus, if the parties have made the emergence of rights and obligations dependent on a circumstance for which it is unknown whether it will occur or not (for example, on the admission to a university of one of the parties to the transaction), then the transaction is considered to be completed under a suspensive condition. A transaction in which the parties have made the termination of rights and obligations dependent on the occurrence of a similar circumstance is considered to be completed under a severable condition.
7. Depending on the volume of financial investments necessary to implement the terms of the transaction, small household transactions and large transactions are distinguished. The first are allowed to be concluded independently, in particular, by minors (from 6 to 14 years old), adolescents (from 14 to 18 years old) and persons limited in legal capacity by a court decision. The category of large transactions is mentioned for the first time in the Law on Joint Stock Companies. In accordance with paragraph 1 of Art. 78 of this Law, a major transaction is usually considered a transaction (including a loan, credit, pledge, guarantee) or several interrelated transactions related to the acquisition, alienation or possibility of alienation by the company, directly or indirectly, of property, the value of which is 25 percent or more of the book value of the company’s assets determined according to its financial statements as of the last reporting date. A major transaction must be approved by the board of directors (supervisory board) of the company or the general meeting of shareholders (Article 79 of the said Law).
8. By the subject of transactions, we can distinguish transactions with real estate (purchase and sale, rent, pledge of real estate, transfer of it into trust management, etc.), transactions with securities, including bill transactions for issuance, acceptance, endorsement, avalization bill, its acceptance through mediation and payment of the bill, as well as many other transactions regulated by both special, for example bill, legislation and Art. 153–181, 307–419 of the Civil Code. A separate category includes forward transactions on the securities market - futures contracts, the acquisition and disposal of options with such varieties as deliverable and settlement options and futures contracts. In recent years, so-called margin transactions have appeared. Their definition is given in the Rules for brokerage activities when making transactions on the securities market using funds and/or securities lent by the broker to the client (margin transactions), approved by order of the Federal Service for Financial Markets (FSFM) dated 03/07/2006 No. 06–24/pz-n.
There are also fiduciary transactions (from the Latin fiducia - trust) transactions that are of a confidential nature. The peculiarity of fiduciary transactions is that a change in the nature of the relationship between the parties, the loss of their trusting nature can lead to the termination of the relationship unilaterally. For example, the attorney and principal in a contract of agency have the right to withdraw from the contract at any time.
9. It is important to classify transactions according to their form: transactions can be made either orally or in writing (simple or notarial). If a transaction can be concluded orally, then it is considered completed even in the case when the will to complete it is clear from the behavior of the person, i.e., his so-called implied actions. As a general rule, any transaction for which a written (simple or notarial) form is not established by law or agreement of the parties can be concluded orally. Moreover, transactions can also be made orally (even those that by law require written form), which are executed upon their very completion (except for those that require notarization). As a rule, the following must be made in simple written form (with the exception of transactions requiring notarization): a) transactions of legal entities among themselves and with citizens; b) transactions between citizens for an amount not less than 10 times the minimum wage.
A written transaction must be concluded by drawing up one document. However, it is also possible to execute transactions in a simplified manner, i.e. by exchanging letters, telegrams and other information. Failure to comply with the simple written form of a transaction deprives the parties in the event of a dispute of the opportunity to refer to witness testimony in support of the transaction, although it does not deprive them of the right to provide written and other evidence. The law, other legal acts and agreement of the parties may establish additional requirements for the form of the transaction (making it on a letterhead, sealing it, etc.) and provide for the consequences of non-compliance. Only in cases and in the manner provided for by law, other legal acts or agreement of the parties, it is permitted to use a facsimile reproduction of a signature using mechanical or other means of copying, as well as an electronic digital signature or another analogue of a handwritten signature when making transactions (Clause 2 of Art. 160 of the Civil Code). In particular, in accordance with the norms of the Civil Code, the Law on Information Protection, federal laws dated January 10, 2002 No. 1-FZ “On Electronic Digital Signature” (hereinafter referred to as the Law on Electronic Signature), dated July 7, 2003 No. 126-FZ “On Communications” » etc. when making transactions in electronic digital form, the use of an electronic digital signature is allowed. According to Art. 3 of the Law on Electronic Signature, an electronic digital signature is a requisite of an electronic document, intended to protect this electronic document, obtained as a result of cryptographic transformation of information using the private key of an electronic signature and allowing to identify the owner of the signature key certificate, as well as to establish the absence of distortion of information in the electronic document.
Notarization of transactions is mandatory in all cases specified by law (for example, in relation to an agreement between the pledgee and the pledgor - paragraph 1 of Article 349 of the Civil Code), and in cases provided for by agreement of the parties. Some written transactions also require state registration.
Transaction form- external expression of the will of its participants. A transaction can be concluded orally or in writing, as well as through implied actions or silence. The written form, in turn, can be simple or qualified (notarial). Often the transaction is preceded by a framework agreement. To carry out currency control of a transaction, a transaction passport can be issued.
Oral form
The oral form of a transaction is a verbal expression of will, in which the participant verbally formulates his intention to enter into a transaction, as well as the conditions for its completion. According to Art. 159 of the Civil Code of the Russian Federation, in all cases where the law or agreement does not provide otherwise, transactions can be made orally.
The execution of a transaction made orally may be accompanied by the issuance of documents confirming its execution (for example, a sales receipt). This does not change the essence of the oral form.
Conclusive actions[edit | edit source text]
A transaction that can be concluded orally can also be concluded through the implementation of implied actions by a person. Implicit actions (lat. concludere - to conclude, draw a conclusion) - behavior from which the person’s intention to enter into a transaction is clear (for example, by putting money into the machine, the person expresses his will to purchase the goods contained in the machine).
In cases directly provided for by law or agreement, silence, which in the strict sense is inaction, may act as an implied action (for example, the rule of automatic renewal in a lease agreement: if, in the absence of objections from the lessor, the tenant continues to use the property after the expiration of the agreement, the agreement is considered renewed on the same terms for an indefinite period; thus, the will of the lessor to continue the rental relationship is expressed by silence).
Simple written form[edit | edit source text]
A simple written form of a transaction involves drawing up a special document or a set of documents that reflect the content of the transaction and the will of the parties to the transaction to conclude it. The will to conclude a transaction is confirmed by the signatures of the parties or their representatives. Sometimes additional requirements may be established for a simple written form of a transaction: execution on a special form, sealed, etc. Transactions are concluded in a simple written form:
a) if at least one of its participants is a legal entity;
b) between individuals for an amount exceeding 10 minimum wages;
c) if this is established by law or agreement of the parties.
The general consequence of failure to comply with the simple written form of a transaction is the deprivation of the parties in the event of a dispute of the right to refer to witness testimony to confirm the transaction and its terms. In these cases, the parties retain the right to provide written (letters, receipts, receipts, etc.) and other evidence.
Failure to comply with the simple written form of a transaction entails its invalidity if this is expressly stated in the law or in the agreement of the parties
Qualified Form[edit | edit source text]
The qualified, or notarial form of a transaction is a special case of a written transaction and consists in the fact that on a document corresponding to a simple written form, a notary or an official who has the right to perform notarial acts puts a certification inscription. In accordance with Art. 163 of the Civil Code of the Russian Federation and Art. 53 Fundamentals of the legislation of the Russian Federation on notaries, transactions are subject to notarization in the following cases:
If the law establishes a mandatory notarial form for them.
If a mandatory notarial form is established by agreement of the parties, even if the law does not provide for such a requirement.
Failure to comply with the notarial form entails the invalidity of the transaction.
Transactions requiring notarization:
Will;
Power of attorney:
a) to carry out transactions requiring a notarial form;
b) issued by way of subrogation;
c) to obtain a repeated certificate of state registration of a civil status act;
An annuity agreement, including a lifelong maintenance agreement with a dependent;
An agreement on the pledge of movable property or rights to property to secure obligations under an agreement that must be notarized, a mortgage agreement;
Assignment of a claim based on a transaction completed in notarial form;
Marriage contract;
Agreement on payment of alimony;
Consent of the spouse to complete a transaction requiring notarization or state registration;
A transaction aimed at alienating a share or part of a share in the authorized capital of a limited liability company, except for the following cases:
a) transfer of the share to the company;
b) distribution of shares between company participants;
c) sale of shares to all or some participants of the company;
d) use of the preemptive right to purchase;
A shareholder’s demand for the company to repurchase his shares, as well as the withdrawal of such a demand;
Consent of the pledgor to an extrajudicial procedure for foreclosure on pledged movable property
Among various property rights, the right of ownership is a fundamental (original) and absolute right. All other real rights are derived from it and, as we already know, are limited real rights. Property rights can be considered in both an objective and a subjective sense. In an objective sense, it is a set of rules that establish the ownership of things (physical property) to certain subjects, establish the rights of these subjects to own, use and dispose of things and ensure the implementation and protection of these rights. In a subjective sense, this is the possibility of certain behavior permitted by law to an authorized person. In this sense, it represents a property right, which allows only the owner to determine the nature and directions of use of the property belonging to him, exercising complete dominance over it and at the same time taking upon himself the burden and risk of its maintenance.
1) possession, i.e., the ability of a person to dominate a thing based on the law (hold, move in space, count on one’s balance sheet, divide into parts, etc.);
2) use, i.e. the ability to extract useful properties from a thing in the process of both personal consumption and entrepreneurial activity;
3) disposal, i.e. the ability to determine the legal fate of a thing. This power means that the owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and do not violate the rights of other persons, including he can sell his property, rent it out, transfer it as collateral or in trust. .
An important feature of the three specified powers of the owner is that they allow him to eliminate, exclude all other persons from any influence on the property belonging to him, if there is no his will. At the same time, the owner bears the burden of maintaining the property and the risk of its accidental loss or damage (Articles 210, 211 of the Civil Code).
Like most real rights, ownership is perpetual. Restrictions (limits) on the exercise of property rights may be provided for by law or contract.
An obligation is a legal relationship between two persons, by virtue of which the debtor is obliged to perform something in favor of the creditor, who has the right to demand this performance.
The subject of the obligation was what must be provided by virtue of the obligation.
The subjects of the obligation were the creditor and the debtor.
1) dare (give) - transfer of ownership;
2) facere (to do) - committing and not committing actions;
3) praestare (provide) - providing personal service or accepting responsibility for another.
Characteristic features of obligation:
1) participation of at least two persons;
2) arising from certain grounds;
3) presence of parties to the obligation;
4) compliance with each obligation of your claim;
5) termination of the obligation in connection with execution.
Types of obligations:
1) civil - obligations that enjoyed legal protection;
2) natural - obligations that did not enjoy legal protection, but still had legal consequences;
3) contractual;
4) as if contractual;
5) tort;
6) as if tortious.
In Roman law, the following grounds for the emergence of obligations were identified:
1) agreement, or contractual obligation;
2) offense (tort), or tortious obligation;
3) as if it were a contract, when a person performed actions leading to the emergence of an obligation that did not directly fall under any of the types of contracts known at that time. In this case, the agreement that was most similar to the obligation that arose was used, so it turned out that the obligation arose as if from an agreement;
4) as if it were a tort, when the obligation arose due to a committed offense that did not fall under any of the torts known to Roman law.
With the development of economic relations in Roman law, concepts such as:
1) novation, i.e. actions to transfer the right of claim with the general consent of the creditor, debtor and the person to whom the creditor wished to transfer his right of claim;
2) assignment, i.e. direct assignment of the right of claim without the consent of the debtor, who was notified only of the assignment that had occurred and after that was obliged to pay the debt to the new creditor.
Commitment- a relative civil legal relationship, by virtue of which one party (debtor) is obliged to perform certain actions or refrain from certain actions in favor of the other party (creditor). Such actions may be: transfer of certain property, performance of work, payment of money, as well as other actions. The creditor, in whose favor such an action should be performed, has the right to demand that the debtor fulfill his obligation.
Civil legal capacity - the ability to have civil rights and bear responsibilities is recognized equally for all citizens (Article 17 of the Civil Code) The content of the legal capacity of citizens (Article 18 of the Civil Code) 1. have property on the right of ownership of citizens 2. make any transactions and participate in obligations 3 . inherit and bequeath property 4. choose a place of residence 5. engage in business and any other activity not prohibited by law 6. have copyright and other legally protected rights to the results of intellectual activity 7. have other rights The legal capacity of citizens is the ability of a citizen to acquire and exercise civil rights through his actions. rights, create civil duties for oneself and fulfill them (Article 21 of the Civil Code of the Russian Federation).
Types of legal capacity of citizens FULL legal capacity - occurs upon reaching 18 years of age, upon marriage before 18 years from the date of marriage registration, as well as upon emancipation. The Civil Code, as an element of a citizen’s full legal capacity, also highlighted the ability of a citizen to engage in entrepreneurial activity (without forming a legal entity) from the moment of state registration as an individual entrepreneur INCOMPLETE (partial) legal capacity - from the age of 14, a minor is given the right to independently carry out any transactions, subject to the written consent of his legal parents representatives. A citizen may be recognized by a court as having limited legal capacity if, due to alcohol or drug abuse, he puts his family in a difficult financial situation. Guardianship is established over him. He can make transactions (except for small household ones), receive income and dispose of them only with the consent of the trustee
INCOMPATIBLE citizens - under 14 years of age (minors), all transactions on their behalf are carried out only by their parents, adoptive parents or guardians (minors from 6 to 14 years old can make small household transactions) A citizen may be recognized by the court as incompetent due to a mental disorder that excludes their understanding of their actions. Guardianship is established over him, and transactions are carried out on his behalf by the guardian
CUSTODY is established over minors and incompetent citizens. Guardians carry out all transactions on their behalf and in their interests, being representatives by force of law (Article 32 of the Civil Code of the Russian Federation). GUARDIANESS is established over partially capable, partially capable persons, and PATRONAGE is established at the request of an adult capable citizen who, for health reasons, is not able to independently exercise and protect your rights and fulfill your duties; terminated due to the termination of the agency agreement, property trust management agreement or other agreement on the grounds provided for by law or agreement (clause 5 of Article 41 of the Civil Code of the Russian Federation)
The main legal consequences of declaring a citizen missing are declaring a dead citizen missing from his place of last residence for a year; on the basis of a court decision recognizing a citizen as missing, the guardianship and trusteeship body transfers the property of the absent citizen into trust management to a person determined by this body; in the event of the appearance or discovery of the place of residence of the absent citizen, the court cancels the decision to recognize him as missing and, accordingly, the administration of his property is canceled; the citizen has been absent from his place of last residence for 5 years; a citizen went missing under circumstances that threatened death or gave reason to assume his death from a certain accident - within 6 months; he went missing in connection with hostilities - no earlier than two years from the date of the end of hostilities; in case of appearance or discovery of the place of residence of a citizen declared dead, it is returned, except for the cases provided for in paragraph 3 of Art. 302 of the Civil Code of the Russian Federation, property received free of charge, if it is proven that the acquirer
Legal entities (Chapter 4 of the Civil Code of the Russian Federation) A legal entity is an organization that has separate property in ownership, economic control or operational management and is liable for its obligations with this property, can, in its own name, acquire and exercise property and personal non-property rights, bear responsibilities, be a plaintiff and defendant in court. Legal entities must have an independent balance sheet or estimate
two types of legal entities: commercial and non-profit organizations. Commercial organizations are organizations (legal entities) that pursue profit as the main goal of their activities. Non-profit - organizations (legal entities) that do not have profit as such a goal and do not distribute the profit received among participants.
Commercial legal entities l. Business partnerships and societies, production cooperatives, state and municipal unitary enterprises. In turn, business partnerships can be created in the form of a general partnership and a limited partnership (limited partnership), business companies - in the form of a joint-stock company, a limited or additional liability company. Non-profit organizations that are legal entities can be created in the form of consumer cooperatives, public and religious organizations (associations), charitable and other funds and institutions.
Signs of a legal entity ORGANIZATIONAL UNITY internal structure of the organization; presence of controls; availability of constituent documents PROPERTY SEPARATION Availability of property: on the right of ownership; the right of economic management; right of operational management. Mandatory accounting of property on an independent balance sheet or according to an estimate INDEPENDENT CIVIL LIABILITY Possibility for creditors to foreclose on the property of a legal entity, and not its founders (participants) ACTIVITY IN CIVIL CIRCULATION AND JUDICIAL BODIES ON YOUR OWN NAME Availability of means of individualization of a legal entity, goods produced by it, services provided: name (company name); trademark (service mark); commercial designation; appellation of origin of goods
The procedure for the formation (creation) of a legal entity The administrative procedure involves the formation of a legal entity based solely on the order of the founder; special state registration of the organization is not required. PERMISSION PROCEDURE assumes that the creation of a legal entity is authorized by one or another competent authority. For example, to create associations of legal entities (unions or associations), the prior consent of the federal antimonopoly authority is required. REGULATIVE ORDER assumes that a legal entity is created on the basis of a normative act providing for the creation of a legal entity, and the consent of any third parties, including government bodies, is not required. The registration authority only checks whether the organization's constituent documents comply with the law and whether the established procedure for its formation is followed, after which it is obliged to register the legal entity.
Termination of the activities of legal entities Termination of the activities of a legal entity occurs as a result of its reorganization or liquidation and, as a rule, is final. Liquidation of legal entities is a method of terminating the activities of a legal entity without transferring rights and obligations through succession to other persons
Types of reorganization of legal entities MERGER During the MERGER of legal entities, the rights and obligations of each of them are transferred to the newly created legal entity in accordance with the transfer act. MERGER when a legal entity joins another legal entity, the rights and obligations of the merged legal entity are transferred to the latter in accordance with the transfer act. DIVISION when a legal entity is divided, its rights and obligations are transferred to the newly emerged legal entities in accordance with the separation balance sheet. When one or more legal entities are separated from a legal entity, the rights and obligations of the reorganized legal entity are transferred to each of them in accordance with the separation balance sheet. TRANSFORMATION during transformation. a legal entity of one type into a legal entity of another type, the rights and obligations of the reorganized legal entity are transferred to the newly emerged legal entity in accordance with the transfer act
The general concept of legal capacity is given in the law.
Legal capacity - the ability to have civil rights and bear responsibilities (clause 1 of Article 17 of the Civil Code)
Consequently, legal capacity means the ability to be the subject of these rights and obligations, the ability to have any right or obligation provided for or permitted by law. The value of this category lies in the fact that only if there is legal capacity, specific subjective rights and obligations can arise. It is a necessary general prerequisite for their emergence and thereby their implementation.
Legal capacity is recognized for all citizens of the country. It arises at the moment of a person’s birth and ends with his death. Consequently, legal capacity is inseparable from a person; he is legally capable throughout his life, regardless of age and state of health.
However, one cannot conclude from this that legal capacity is a natural property of a person, like vision, hearing, etc. Although legal capacity arises at the moment of birth, it is acquired not by nature, but by force of law, i.e. it represents a social -legal property, a certain legal possibility. There were times in history when large groups of people, due to the laws in force at that time, were completely or almost completely deprived of legal capacity (for example, slaves under the slave system).
In legal literature, civil legal capacity is often considered as a certain quality (or property) inherent in a citizen1. This quality, as follows from the law, is the ability to have rights and duties. Ability means nothing more than a legal possibility: a person is capable, that is, may have rights and obligations. Since such a possibility is provided for and ensured by law, it represents a certain subjective right of each individual person. “Legal capacity,” wrote S. N. Bratus, “is the right to be a subject of rights and obligations”2.
1 See Alekseev S S General theory of law T 2 M, 1982 P 141
2 Bratus S N Subjects of civil law M, 1950 C 6
This right is also accompanied by corresponding obligations: everyone who enters into any relationship with this citizen must not violate his legal capacity. Legal capacity enjoys legal protection, which is typical for all subjective rights.
The understanding of legal capacity as a certain subjective right has received convincing justification in our legal literature1. It is important to note that the rules on legal capacity are placed in the law ahead of the rules relating to all other subjective rights (see Article 17 of the Civil Code). Thus, the legislator seems to emphasize its special purpose - to be in inextricably linked with any of the subjective rights, since without civil legal capacity no subjective civil rights are possible.
If legal capacity is a subjective right, then it is necessary to reveal its features and distinguish it from other subjective rights. Legal capacity differs from other subjective rights primarily in its specific, independent content, which, as already mentioned, lies in the ability (legal possibility) to have civil rights and obligations provided for by law.
In addition, civil legal capacity differs from other subjective rights in purpose. It is designed to provide every citizen with the legal opportunity to acquire specific civil rights and responsibilities, using which he can satisfy his needs and realize his interests. The third difference lies in the close connection of legal capacity with the personality of its bearer, since the law does not allow its alienation or transfer to another person: according to paragraph 3 of Art. 22 of the Civil Code, transactions aimed at limiting legal capacity are void.
civil legal capacity is a right belonging to every citizen and inalienable from him, the content of which is the ability (opportunity) to have any civil rights and obligations permitted by law
1 See Alekseev S Decree op. C 141, Soviet civil law Subjects of civil law / Edited by S N Bratusya S 17-18, 20, Webers Y R Legal subjectivity of citizens in Soviet civil and family law Riga, 1976 S 51
Legal capacity of individuals represents the ability to have civil rights and bear civic responsibilities enshrined in the rules of law(Article 17 of the Civil Code of the Russian Federation). By its legal nature, legal capacity is a general prerequisite on the basis of which, in the presence of certain legal facts, a particular individual has specific subjective rights, i.e. this is an abstract opportunity to have civil rights and obligations provided for in the norms of current legislation. Legal capacity differs from subjective law in that it is a property of each individual, and subjective civil law is a measure of the possible behavior of an authorized person provided for by law.
Legal capacity arises at the moment of birth: “By the act of birth, a person enters into the society of people; this same act should be considered the beginning of his legal capacity”; “Since a person’s independent existence begins from the moment of his birth, from that same moment he becomes a person with legal capacity.” This provision is enshrined in the vast majority of modern legal systems, and exceptions to this rule are very few (for example, the American Convention on Human Rights proclaims the right to respect for human life from the moment of conception).
Legal capacity ceases at the moment of the citizen’s death. The establishment of this point is determined by the Instructions for ascertaining the death of a person based on the diagnosis of brain death, approved by order of the Ministry of Health of the Russian Federation of December 20, 2001 No. 460.
All individuals residing on the territory of Russia have equal legal capacity, i.e. Russian citizens, foreign citizens, stateless persons or persons with dual citizenship. Individual exceptions to the content of the legal capacity of foreign citizens can only be established by federal laws. So, for example, in Art. 1194 of the Civil Code of the Russian Federation establishes the grounds and conditions of so-called retorsions - legal restrictions of a reciprocal nature that can be established by the Government of the Russian Federation in relation to the property and personal non-property rights of citizens of those foreign states that have special restrictions on the rights of Russian citizens.
Legal capacity, which arises in a citizen from birth, is an integral property of his personality throughout his life. No one can be limited in legal capacity except in the case and in the manner established by law (Clause 1 of Article 22 of the Civil Code of the Russian Federation). A citizen’s complete or partial renunciation of legal capacity and any transactions aimed at limiting it are void, i.e. do not give rise to any legal consequences, except in cases where such transactions are permitted by law (clause 3 of article 22 of the Civil Code of the Russian Federation).
The content of legal capacity is ability to have civil rights provided by law. Currently, this content includes almost the entire range of subjective civil rights enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950) and in other major international acts and documents. In accordance with Art. 18 of the Civil Code of the Russian Federation, citizens of Russia and other individuals residing on the territory of Russia have the right to:
- – have property on the right of ownership;
- – inherit and bequeath property;
- – engage in entrepreneurial and other activities not prohibited by law;
- – make any transactions that do not contradict the law;
- – participate in obligations;
- – choose a place of residence;
- – have the rights of authors of works of literature, science and art, inventions and other results of intellectual activity;
- – have other property rights.
The content of legal capacity also includes a number of personal non-property rights and other intangible benefits enshrined in Art. 150 Civil Code of the Russian Federation. These include: life and health; personal dignity; personal integrity; honor and good name; business reputation; privacy; inviolability of home; personal and family secrets; the right to free movement, choice of place of stay and residence; right to a name; right of authorship; other intangible benefits that belong to a citizen from birth or by force of law are inalienable and non-transferable in any other way, which, in particular, should include the right to respect for personal and family life, enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms.
IMPORTANT!
Legal capacity is the same for all individuals living on the territory of Russia, regardless of any factors and circumstances, however, the property and personal non-property rights that constitute its content are not realized by everyone and not in full, since their implementation often requires only desire, but also certain conditions and corresponding personal qualities (education, abilities, talent, entrepreneurship, etc.).
The definition of legal capacity enshrined in Art. 17 of the Civil Code of the Russian Federation, contains an indication not only of rights, but also of subjective obligations. This means that citizens (individuals) must properly fulfill their obligations, refrain from actions that violate the rights of others, compensate for the harm caused to them and fulfill other obligations provided for by law or contract. For his civil obligations, a citizen is liable with all the property belonging to him, with the exception of property that cannot be foreclosed on in accordance with the law.
Individual entrepreneurs who are unable to satisfy the demands of creditors related to their business activities may be declared insolvent (bankrupt) by a court decision. From the moment such a decision is made, their registration as an individual entrepreneur becomes invalid (Article 25 of the Civil Code of the Russian Federation).