Above a citizen with limited capacity is established. Grounds, procedure and legal consequences for limiting the legal capacity of citizens. General Provisions on Incapacity
Restriction of the legal capacity of citizens is possible only in cases and in the manner prescribed by law (clause 1 of article 22 of the Civil Code):
1. restriction of the partial legal capacity of citizens: if there are sufficient grounds (clause 4 of article 26 of the Civil Code of the Russian Federation);
2. restriction of a citizen's legal capacity: "a citizen who, due to the abuse of alcohol or drugs, puts his family in a difficult financial situation" (clause 1, article 30 of the Civil Code of the Russian Federation).
Restriction of legal capacity of citizens is possible only in cases and in the manner prescribed by law (paragraph 1 of article 22 of the Civil Code). It lies in the fact that a citizen is deprived of the ability by his actions to acquire such civil rights and create such civil duties that he, by virtue of the law, could already acquire and create. It is, therefore, about reducing the amount of legal capacity that a person had.
Civil cases on the restriction of the legal capacity of citizens are considered by the court in the manner of special proceedings (Chapter 31 of the Civil Procedure Code of the Russian Federation) Both a person with incomplete (partial) legal capacity and a person with full legal capacity can be limited in legal capacity.
According to paragraph 4 of Art. 26 of the Civil Code, restriction of legal capacity of minors aged 14 to 18 years is allowed only by a court decision. It is impossible to restrict the legal capacity of a minor if he has acquired full legal capacity in connection with marriage before reaching the age of 18 or by way of emancipation. Consequently, in relation to minors aged 14 to 18 years, this means the restriction of their partial legal capacity. It can be expressed in the restriction or even deprivation of the minor's right to independently dispose of earnings, scholarships or other income. After the court makes such a decision, the minor will have the opportunity to dispose of earnings, scholarships and other income (in full or in part) only with the consent of the parents, adoptive parents, guardian.
The decision to restrict the legal capacity of a minor between the ages of 14 and 18 may be taken by the court "if there are sufficient grounds." Such grounds should be recognized as spending money for purposes that are contrary to the law and moral standards (purchasing alcoholic beverages, drugs, gambling, etc.), or their unreasonable spending, without taking into account the needs for food, clothing, etc. The number of persons who may apply to the court with a petition to restrict or deprive a minor of the right to independently dispose of earnings, scholarships or other income includes his parents, adoptive parents or trustees, as well as the guardianship and guardianship authority.
Depending on the specific circumstances, the court may either limit the minor's right to freely dispose of earnings, scholarships or other income, or completely deprive him of this right. On the basis of a court decision, the earnings, stipend, other income of a minor, in whole or in part, must be given not to him, but to his legal representatives - parents, adoptive parents, guardian.
If the court decision does not indicate the period for which the legal capacity of a minor is limited, then the restriction is valid until the minor reaches the age of 18 or until the restriction is canceled by the court at the request of those persons who applied for the restriction.
Restriction of the full legal capacity of citizens
The law allows limiting the full legal capacity of adult citizens who abuse alcohol or drugs (Article 30 of the Civil Code). This provision also applies to minors who, before reaching the age of 18, have acquired full legal capacity in connection with marriage or by way of emancipation. Restriction of legal capacity of an adult citizen is a very significant intrusion into his civil legal status and is therefore permitted by law on serious grounds to be established by the court.
Limitation of legal capacity is provided by law only for persons who abuse alcohol or drugs. Other abuses and vices (for example, gambling, betting, etc.) cannot lead to disability, even if they cause material difficulties for the family. The basis forlimiting the capacity of a citizen under Art. 30 of the Civil Code is such excessive use of alcoholic beverages or narcotic substances, which entails significant expenses for their purchase, which puts the family in a difficult financial situation.
The limitation of the citizen’s legal capacity in the case under consideration is expressed in the fact that, in accordance with the decision of the court, guardianship is established over him and to make transactions on the disposal of property, as well as to receive wages, pension or other types of income and he can dispose of them only with the consent of the trustee. He has the right to independently make only small household transactions (paragraph 1 of article 30 of the Civil Code). However, such a citizen independently bears property liability for transactions made by him or for harm caused.
When a citizen ceases to abuse alcohol or drugs, the court cancels the restriction of his legal capacity. On the basis of a court decision, the guardianship established over him is cancelled. If a citizen, after the abolition of the restriction of his legal capacity, again begins to abuse alcohol or narcotic drugs, the court, at the request of the interested parties, may again restrict his legal capacity.
A citizen who, due to a mental disorder, cannot understand the meaning of his actions or manage them, may be recognized by the court as incapable in the manner established by civil procedural legislation (Article 29 of the Civil Code of the Russian Federation).
It follows from the foregoing that in order to recognize a citizen as incompetent, the presence of medical and legal criteria together must be established. The medical criterion includes the presence of a mental disorder, and the legal criterion is the inability to understand the meaning of one's actions (intellectual aspect) or the inability to control one's actions (volitional moment). From the combination of medical and legal (either volitional or intellectual) criteria, the main material and legal circumstances of the subject of proof are formed.
So, the subject of proof in cases of recognizing a citizen as incompetent includes the establishment of the following facts:
1) the presence of a mental disorder;
2) facts confirming that a citizen cannot understand the meaning of his actions or control them;
3) a causal relationship between a mental disorder and the fact that a citizen does not understand the meaning of his actions or cannot control them;
4) the achievement of the age established by law by a citizen in respect of which the question of recognizing him as incapacitated is raised;
5) other circumstances. Such circumstances include the fact of belonging to the family members of the person in respect of whom the case is being considered for declaring him incompetent. Family members are parents, adult children, spouse. These persons do not have to live together with the citizen and conduct a joint household with him.
Required evidence:
The conclusion of the forensic psychiatric examination. Cases on recognizing a citizen as incapacitated is the only case when the Code of Civil Procedure provides for the appointment of a forensic psychiatric examination. However, an examination is appointed only if there is sufficient evidence of a citizen's mental disorder (Article 283 of the Code of Civil Procedure). Sufficient data for the purpose of an expert examination can be understood as any information that makes it possible to assume that a person has a certain mental disorder. Materials of previously conducted forensic psychiatric examinations in a criminal case can also be recognized as sufficient data for the appointment of an examination. If, at the discretion of the court, there is not enough data to order a forensic psychiatric examination, then it refuses to order it. The case will be considered on the merits, and the application is denied;
References from medical institution;
Certificates of status registered in a psychiatric dispensary;
Extract from the medical history;
MSEC references;
Evidence confirming that a citizen, due to a mental disorder, cannot understand the meaning of his actions or direct them ( witness's testimonies, materials of the investigating authorities, previously conducted forensic psychiatric examinations, etc.);
Other evidence.
In civil proceedings, there is a presumption of legal capacity of a person: a person is capable, unless otherwise established by a court decision that has entered into legal force. Because of this, the applicant is obliged to prove the existence of circumstances indicating the incapacity of the citizen concerned. Other interested persons (for example, family members) who object to the stated requirement have the right to provide evidence of the absence of grounds for declaring a person incompetent.
A feature of the collection of evidence is the receipt of medical data on the mental state of a citizen, which is possible only at the request of the court. Another feature is the appointment and conduct of a forensic psychiatric examination if there are sufficient grounds for it. Questions are put before the expert: 1) whether the citizen suffers from a mental disorder (which one, what is the degree and nature of the disorder); 2) whether, due to a mental disorder, he can understand the meaning of his actions or control them; 3) can take part in litigation. Issues of incapacity of a person are resolved for the future, so the prospects for the development of the disease are important. As a rule, a stationary forensic psychiatric examination is carried out with the placement of a person in a psychiatric dispensary. It is possible to conduct a compulsory forensic psychiatric examination (this issue is resolved in court with the obligatory participation of the prosecutor).
When considering cases of this category, the participation of the body of guardianship and guardianship, as well as the prosecutor, who give their opinion, is mandatory.
The Code of Civil Procedure provides for the procedure for recognizing a citizen as capable in the event of his recovery. To recognize a citizen as capable, a steady improvement in the mental state of a person is required, due to which he can understand the meaning of his actions or manage them. At the same time, a forensic psychiatric examination is also carried out. The procedural rule on the obligation to conduct a forensic psychiatric examination is an integral part of the admissibility of evidence.
11. Guardianship and guardianship. Patronage over able-bodied citizens.
Guardianship and trusteeship is a form of implementation of state protection of the individual. Their necessity is due to the fact that not all citizens (individuals) are able to independently exercise their rights and fulfill their duties due to a lack of legal capacity or incapacity, as well as for the purpose of educating minors.
Before the adoption of the Civil Code of the Russian Federation, guardianship and guardianship were regulated exclusively by family law, but now there is a complex nature of the legal regulation of this institution. The fundamental norms are contained in the Civil Code (Articles 31-40), in Art. 150 SK, as well as the registered Federal Law of April 24, 2008 N 48-FZ "On guardianship and guardianship". The subject of study in the course civil law are the relevant civil law aspects of guardianship and guardianship.
Guardianship (Article 32) is established over minors and citizens recognized by the court as incompetent due to a mental disorder. Guardians are representatives of the wards by virtue of the law and make all necessary transactions on their behalf and in their interests, i.e. essentially "replacing" their wards in civil circulation. Guardians also act to protect the rights and interests of their wards in relations with any persons, incl. in courts, without special powers, but only on the basis of a decision of the guardianship and guardianship body on the appointment of a guardian or a certificate issued by him. Guardianship is established not only over completely incompetent, because. children from 6 to 14 years old have limited legal capacity (!).
Guardianship (Article 33) differs in the content of duties and persons over whom guardianship is established. It is established only over partially capable citizens: minors aged 14 to 18 years, over citizens limited by the court in their legal capacity. The guardian helps his ward to exercise his rights and fulfill his duties through advice. The trustee gives or does not give consent to transactions and other legal actions (except for those that a minor or a person with limited legal capacity can carry out independently). That. the trustee does not replace the person over whom guardianship has been established, but only helps him navigate the civil circulation, also protecting him from abuse by third parties.
The bodies of guardianship and guardianship are the executive authorities of the subject Russian Federation. Local governments municipalities(including local self-government bodies of settlements), on the territories of which there are no guardianship and guardianship bodies formed in accordance with the Federal Law, may be vested with the powers of guardianship and guardianship by the law of the constituent entity of the Russian Federation. The powers of guardianship and guardianship authorities to identify persons in need of establishment of OPs, as well as to select and train potential guardians may be exercised educational organizations, medical organizations, organizations providing social services, or other organizations.
Decisions on the appointment of guardianship and guardianship are made on the basis of a court decision, which is obliged within three days from the date of its entry into force, notify the guardianship and guardianship authority at the place of residence of the person in need of the OP.
1) protection of the rights and legitimate interests of citizens who need to establish guardianship or guardianship over them, and citizens who are under guardianship or guardianship;
2) supervision of the activities of guardians and trustees, as well as organizations in which incapacitated or not fully capable citizens are placed;
3) control over the safety of property and property management of citizens under guardianship or guardianship or placed under supervision in educational organizations, medical organizations, organizations providing social services, or other organizations, including for orphans and children left without care parents.
The powers of guardianship and guardianship authorities include:
1) identification and registration of citizens who need to establish guardianship or guardianship over them;
2) applying to the court with an application for recognizing a citizen as legally incapable or for limiting his legal capacity, as well as for recognizing the ward as legally capable, if the grounds for restriction or incapacity have disappeared;
3) establishment of guardianship or guardianship;
4) exercising supervision over the activities of guardians and curators, the activities of organizations in which incompetent or not fully capable citizens are placed;
5) release and removal of guardians and trustees from the performance of their duties;
6) issuance of permits for making transactions with the property of wards;
7) conclusion of agreements on trust management of property;
8) representation of the legitimate interests of minor citizens and incompetent citizens under guardianship or guardianship in relations with any persons (including in courts), if the actions of guardians or trustees to represent the legitimate interests of wards are contrary to the legislation of the Russian Federation and (or) the legislation of the subjects the Russian Federation or the interests of the wards, or if the guardians or trustees do not protect the legitimate interests of the wards;
9) issuance of a permit for separation of trustees and their minor wards;
10) selection, registration and training of citizens who have expressed a desire to become guardians or trustees or to accept children left without parental care into a family for upbringing in other forms established by family legislation;
11) rendering assistance to guardians and custodians, checking the living conditions of the wards, observance by the guardians and custodians of the rights and legitimate interests of the wards, ensuring the safety of their property, as well as the fulfillment by the guardians and custodians of the requirements for exercising their rights and fulfilling the duties of guardians or custodians.
When changing the place of residence of the ward, the body of guardianship and guardianship, which established guardianship or guardianship, is obliged to send the case of the ward to the body of guardianship and guardianship at his new place of residence within three days from the date of receipt from the guardian or trustee of the notice of the change of place of residence of the ward.
Fully capable adult citizens may be appointed guardians and trustees. That is, citizens who are limited in capacity, emancipated, as well as those who have acquired capacity in connection with marriage, cannot be guardians and trustees. The law also prohibits this for persons deprived of parental rights, or who have a criminal record for an intentional crime against the life and health of citizens. If guardianship is established over children, the guardian cannot also be: persons suffering from chronic alcoholism/drug addiction; persons with limited parental rights; persons suspended from the duties of guardians / trustees; former adoptive parents (if the adoption is canceled due to their fault); persons who, for health reasons, cannot carry out the upbringing of children.
A guardian or custodian can be appointed only with his consent (the principle of voluntariness). At the same time, moral and other personal qualities, the ability to perform duties, the relationship between him and the ward, if possible, the desire of the ward, must be taken into account.
Guardians or trustees are not appointed to incapacitated / not fully capable citizens placed under supervision in the relevant organizations. They also play the role of guardians / trustees.
Rights and obligations:
1) the obligation to take care of the maintenance of the wards, to provide them with care and treatment, for minors - education;
2) to make transactions on behalf of the ward (guardians) or give consent to their completion (trustees). Without the prior permission of the PLO, it is impossible to carry out transactions on the alienation of the property of the ward, its leasing, gratuitous use, pledge; as well as transactions entailing the waiver of the rights belonging to the ward, the division of his property, the allocation of shares from it; any other transactions entailing a decrease in the property of the ward. Guardians and trustees, as well as their spouses and close relatives, are prohibited from making transactions with wards, except for donations. free use;
3) to spend the income of the ward in his interests within the limits of the subsistence level;
4) guardians and curators of minor citizens are obliged to live with their wards, from the age of 16 - separately with the permission of the authorities;
5) notify the PLO about the change of residence;
6) if the grounds for incapacity or limitation of legal capacity have disappeared, to apply to the court for recognition of the ward as legally capable and removal of guardianship or guardianship;
7) guardians and custodians are not obliged to support their wards; guardianship and trusteeship are also carried out free of charge.
If it is necessary to permanently manage the immovable and valuable movable property of the ward, the PLO concludes a trust management agreement with the manager determined by this body. The guardian or custodian shall retain their rights only in relation to the remaining property.
Termination of guardianship and guardianship:
1) release: return of a minor to parents or adoption; premises for permanent stay in an educational / medical or other institution; release is also possible at the request of the guardian / trustee, if this is due to good reasons;
2) suspension: in case of improper performance of duties, use of guardianship or guardianship for personal gain, leaving the ward without supervision and necessary assistance;
3) other grounds: a court decision on recognizing a citizen as capable/removing the restriction of legal capacity at the request of a guardian, custodian or guardianship and guardianship authority; when a minor reaches the age of 14, guardianship is transformed into guardianship; when the minor reaches the age of 18/emancipation/marriage, guardianship is terminated.
PATRONAGE is a form of ensuring the interests of minors who are fully capable citizens who, for health reasons, cannot independently exercise and protect their rights and fulfill their duties. An assistant is appointed by the guardianship and guardianship authorities within a month from the date of identification of a citizen in need of establishing patronage. The assistant is appointed with the consent of the citizen. An assistant performs actions in the interests of a citizen on the basis of contracts of agency, trust management or other agreement. All issues related to the exercise of property rights are resolved with the consent of the citizen (domestic and other transactions). Patronage may be terminated in connection with the termination of the contract of agency, trust management of property or other contract on the grounds provided for by law or the contract.
Civil capacity is defined in the law as the ability of a citizen to acquire and exercise civil rights, create civil obligations for himself and fulfill them (clause 1, article 21 of the Civil Code).
To have legal capacity means to have the ability to personally perform various legal actions: conclude contracts, issue powers of attorney, etc., as well as be responsible for property damage (damage or destruction of other people's property, damage to health, etc.), for failure to fulfill contractual and other responsibilities. Thus, legal capacity includes, first of all, the ability to make transactions (dealability) and the ability to bear responsibility for illegal actions (tortiousness).
But in addition, legal capacity includes the ability of a citizen to exercise his civil rights and perform duties by his actions. For the first time in our legislation, such an ability is provided for in the Civil Code (clause 1, article 21 of the Civil Code of the Russian Federation).
The value of this category is determined by the fact that legal capacity legally ensures the active participation of the individual in the economic turnover, entrepreneurial and other activities, the implementation of their property rights, primarily property rights, as well as personal non-property rights. At the same time, all other participants in the turnover can always count on the application of liability measures to a capable entity that has violated obligations or caused property damage in the absence of contractual relations. Consequently, the category of legal capacity of citizens is of great value due to the fact that it is a legal means of expressing the freedom of the individual in the field of property and personal non-property relations 1 .
Legal capacity, as well as legal capacity, by its legal nature is a subjective right of a citizen. This right differs from other subjective rights in its content: it means the possibility of a certain behavior for the citizen himself, who has legal capacity, and at the same time, this right corresponds to the obligation of all persons surrounding the citizen not to allow its violations.
the ability of a citizen by his actions to acquire civil rights and create civic obligations for himself;
the ability to independently exercise civil rights and perform duties;
ability to bear responsibility for civil wrongs.
You can also point to the possibility of protecting this subjective right from violations. However, this possibility is typical for any subjective right and cannot individualize the content of legal capacity as a subjective right.
The content of the legal capacity of citizens is closely related to the content of their legal capacity. If the content of legal capacity is the rights and obligations that an individual may have, then the content of legal capacity is characterized by the ability of a person to acquire and exercise these rights and obligations. own actions. Therefore, it can be concluded that legal capacity is the opportunity granted to a citizen by law to exercise his legal capacity by his own actions. one
Legal capacity, as well as legal capacity, cannot be considered as a natural property of a person, they are granted to citizens by law and are legal categories. Therefore, in relation to legal capacity, the law establishes its inalienability and the impossibility of restriction at the will of a citizen.
With regard to the possibility of compulsory limitation of legal capacity, according to paragraph 1 of Art. 22 of the Civil Code, no one can be limited in legal capacity except in cases and in the manner prescribed by law. An example is the provision of art. 30 of the Civil Code, which provides for the restriction of the legal capacity of citizens who abuse alcohol or drugs.
Unlike legal capacity, which is equally recognized for all citizens, the legal capacity of citizens cannot be the same. In order to acquire rights and exercise them by one's own actions, to assume and fulfill duties, one must reason reasonably, understand the meaning of the rules of law, be aware of the consequences of one's actions, and have life experience. These qualities differ significantly depending on the age of citizens, their mental health.
Given these factors, the law distinguishes several varieties of legal capacity:
full capacity;
legal capacity of minors aged 14 to 18;
legal capacity of minors aged 6 to 14;
legal capacity of minors under the age of 6 years.
It also provides for the recognition of a citizen as incapable and the restriction of the legal capacity of citizens on grounds specified by law.
Full legal capacity - the ability of a citizen to acquire and exercise any property and personal non-property rights permitted by law, to assume and perform any duties, i.e. to exercise his legal capacity in full. one
Such legal capacity arises with age, and the limit of this age is determined by the law. According to paragraph 1 of Art. 21 of the Civil Code, civil capacity arises in full with the onset of adulthood, i.e. upon reaching the age of 18.
2. LIMITATION OF CIVIL CAPACITY OF A CITIZEN
Restriction of legal capacity of citizens is possible only in cases and in the manner prescribed by law (paragraph 1 of article 22 of the Civil Code). It lies in the fact that a citizen is deprived of the ability by his actions to acquire such civil rights and create such civil duties that he, by virtue of the law, could already acquire and create. It is, therefore, about reducing the amount of legal capacity that a person had. Limited in capacity can be both a person with incomplete (partial) capacity, and a person with full capacity. Civil cases on the restriction of the legal capacity of citizens are considered by the court in the order of special proceedings (Chapter 31 of the Code of Civil Procedure of the Russian Federation).
The law allows restriction (under certain conditions) of the legal capacity of citizens who abuse alcohol or drugs (Article 30 of the Civil Code). This rule applies only to citizens with full legal capacity, since citizens aged 14 to 18, if there are sufficient grounds, are limited in legal capacity in the manner discussed above. However, it should be recognized that the provision of Art. 30 of the Civil Code also applies to minors who, before reaching the age of 18, have acquired full legal capacity in connection with marriage (clause 2 of article 21 of the Civil Code) or in the manner of emancipation (article 27 of the Civil Code). Such citizens must be subject to all the rules relating to fully capable persons, and the rules defining the legal status of minors cannot be applied. one
Restriction of the legal capacity of an adult citizen is a very significant intrusion into his legal status and therefore is allowed by law if there are serious grounds that must be established by the court.
First, the limitation of legal capacity is provided for by Art. 30 of the Civil Code only for persons who abuse alcohol or drugs. Other abuses and vices (for example, gambling, betting, etc.) cannot lead to disability, even if they cause material difficulties for the family.
Secondly, the basis for limiting the legal capacity of a citizen under Art. 30 of the Civil Code is such excessive consumption of alcoholic beverages or narcotic substances, which entails significant expenses for their purchase, which causes financial difficulties and puts the family in a difficult situation.
The limitation of the citizen’s legal capacity in the case under consideration is expressed in the fact that, in accordance with the decision of the court, guardianship is established over him and he can make transactions on the disposal of property, as well as receive wages, pensions or other types of income and dispose of them only with the consent of the guardian. He has the right to independently make only small household transactions (paragraph 1 of article 30 of the Civil Code) 1 .
The legislation of some countries recognizes wastefulness as one of the grounds for restriction or deprivation of legal capacity. Thus, the German Civil Code until 1992 contained a rule according to which anyone who, by his extravagance, puts himself or his family in a difficult financial situation, may be deprived of legal capacity and placed under guardianship. According to the Civil Code of France, the spendthrift is not deprived of legal capacity, but can make transactions and other legal actions only with the permission of an adviser appointed by the tribunal (Article 513).
The legislation of pre-revolutionary Russia recognized "immeasurable and ruinous luxury, excesses, debauchery and extravagance" as the basis for limiting the capacity of spenders. The literature pointed out the difficulty of establishing the very fact of extravagance. It was suggested that the most correct criterion be considered "purposelessness of spending, regardless of profitability" 1 . The civil legislation of the Soviet period did not know the concept of "wastefulness". The current Civil Code of the Russian Federation also does not mention wastefulness as a basis for limiting legal capacity, although similar phenomena occur in life and entail adverse consequences both for the spendthrift himself and for his family. 2
One of important factors affecting the capacity of a citizen is mental health. According to paragraph 1 of Art. 29 of the Civil Code, a citizen who, due to a mental disorder, cannot understand the meaning of his actions or control them, may be declared legally incompetent by a court.
However, the mere fact of mental illness or dementia, even if it is obvious to others or even confirmed by a certificate from a medical institution, does not yet give grounds to consider a citizen incompetent. He can be declared incompetent only by a court, and with a statement to the court in accordance with Art. 281 of the Code of Civil Procedure of the Russian Federation, members of his family, close relatives (parents, children, brothers, sisters), regardless of their joint residence, a guardianship and guardianship authority, a psychiatric or neuropsychiatric institution, can apply.
To consider such a case, a conclusion on the state of the citizen's psyche is required, issued by a forensic psychiatric examination at the request of the court; the participation of a prosecutor and a representative of the body of guardianship and guardianship is mandatory (Articles 283 and 284 of the Code of Civil Procedure of the Russian Federation). All this is an important guarantee of the personal rights and interests of a citizen, preventing arbitrary intrusion into his legal status. A citizen is considered incompetent only after a court decision has been issued. At the same time, on the basis of a court decision, guardianship is established over him.
If the state of mental health of a citizen recognized as incompetent has improved, he may be recognized as capable by a court decision. The basis for such a decision should be the corresponding conclusion of a forensic psychiatric examination. Recognition of a citizen as capable entails the abolition of the guardianship established over him.
According to paragraph 4 of Art. 26 of the Civil Code, restriction of legal capacity of minors aged 14 to 18 years is allowed only by a court decision. Restriction of legal capacity may be expressed in the restriction or even deprivation of the minor's right to independently dispose of earnings, scholarships or other income. After the court makes such a decision, the minor will have the opportunity to dispose of earnings, scholarships and other income (in full or in part) only with the consent of the parents, adoptive parents, guardian.
The Civil Code defines the circle of persons who may apply to the court to restrict or deprive a minor of the right to independently dispose of earnings, scholarships or other income: they include parents, adoptive parents or trustees, as well as a guardianship and guardianship authority. Neither public organizations nor any interested persons have the right to make such a petition. one
The decision to restrict the legal capacity of a minor between the ages of 14 and 18 may be taken by the court "if there are sufficient grounds." Such grounds should be recognized as spending money for purposes that are contrary to the law and moral standards (purchasing alcoholic beverages, drugs, gambling, etc.), or their unreasonable spending, without taking into account the needs for food, clothing, etc.
Depending on the specific circumstances, the court may either limit the minor's right to freely dispose of earnings, scholarships or other income, or completely deprive him of this right. The choice of solution depends on how strong the minor's bad inclinations are and how serious his mistakes are in the management of earnings, scholarships, and other incomes. On the basis of a court decision, the earnings, stipend, other income of a minor, in whole or in part, must be given not to him, but to his legal representatives - parents, adoptive parents, guardian.
The Civil Code does not directly provide for the possibility of restricting the legal capacity of a minor for a certain period. It seems that the court has the right to establish such a period in its decision. In this case, after the expiration of the period established by the court, the partial legal capacity of the minor must be considered restored to the extent that he had before its restriction. If the period for which the legal capacity of a minor is limited has not been specified, then the restriction is valid until the minor reaches the age of 18 or until the restriction is lifted by the court at the request of those persons who applied for the restriction. one
It is impossible to restrict the legal capacity of a minor if he has acquired full legal capacity in connection with marriage before reaching the age of 18 or by way of emancipation. Consequently, in relation to minors aged 14 to 18 years, this means the restriction of their partial legal capacity.
3. RECOGNIZING A CITIZEN INcapacitated
The legal capacity of a citizen may be limited only in cases strictly established by law.
In accordance with Art. 29 of the Civil Code of the Russian Federation, a citizen who, due to a mental disorder, cannot understand the meaning of his actions or control them, may be declared legally incompetent by a court.
The legal capacity of a citizen is limited by a court decision if he abuses alcohol or drugs and, as a result, puts his family in a difficult financial situation (Article 30 of the Civil Code of the Russian Federation).
If there are sufficient grounds, the court may restrict or deprive a minor between the ages of 14 and 18 of the right to independently dispose of his income, except in cases where such a minor has acquired legal capacity in full through marriage or as a result of emancipation (part 2 of article 21 , part 4, article 26, article 27 of the Civil Code of the Russian Federation).
The consequence of the limitation of legal capacity will be expressed in the deprivation by the court of a citizen of the right to perform, without the consent of the trustee, such actions as selling, donating, bequeathing, exchanging, buying property, as well as making other transactions for the disposal of property, with the exception of small household ones; directly receive wages, pensions and other types of income (author's fees, remuneration for discoveries, inventions, earnings on the collective farm, amounts due for the performance of work under a contract, all kinds of benefits, etc.). Guardianship is established over a citizen with limited capacity. one
The consequence of declaring a citizen incompetent is the establishment of guardianship over him and the performance of all transactions on his behalf by the guardian.
The law (part 1 of article 281 of the Code of Civil Procedure) establishes an exhaustive list of persons and organizations that have the right to apply to the court with an appropriate application.
A case on the restriction of a citizen's legal capacity may be initiated on the basis of an application from members of his family, a guardianship and guardianship agency, a psychiatric or neuropsychiatric institution. The family members of a citizen who abuses alcohol or drugs include: a spouse, adult children, parents, other relatives, disabled dependents who live with him and run a common household. Family members living separately are not entitled to initiate a case on recognizing a citizen with limited legal capacity, since his behavior does not put these persons in a difficult financial situation. In the event that a citizen lives alone (has no family), a case for recognizing him as having limited legal capacity cannot also be initiated 1 .
The spouse, adult children, parents, other close relatives (brothers, sisters), disabled dependents living with him and leading a common household have the right to file an application for recognition of a citizen as incapacitated due to a mental disorder. Close relatives can initiate a case on recognizing a citizen as incapacitated, regardless of whether they live together with this citizen or separately from him. A case on recognizing a citizen as incompetent is also initiated at the request of a guardianship and guardianship agency, a psychiatric or neuropsychiatric institution.
A case on limiting or depriving a minor aged 14 to 18 of the right to independently dispose of his income may be initiated on the basis of an application from parents, adoptive parents or a guardian or a guardianship and guardianship authority.
In the interests of a person in respect of whom the issue of limiting a citizen's legal capacity, declaring him incompetent, or restricting or depriving a minor aged 14 to 18 of the right to independently manage his income is raised, as well as in order to most fully and quickly clarify the actual circumstances of the case in part 4 of Art. 281 of the Code of Civil Procedure establishes territorial jurisdiction, according to which an application to restrict a citizen in legal capacity, to recognize a citizen as incapable, or to restrict or deprive a minor aged 14 to 18 of the right to independently manage his income is filed with the court at the place of residence of this citizen or at the place finding a psychiatric or psycho-neurological institution in which he is placed.
The decision of the court, by which a citizen is limited in legal capacity or recognized as incapable, is the basis for appointing a trustee with limited legal capacity, and a guardian for an incapable person. For this reason, a copy judgment must be sent to the body of guardianship and guardianship within three days.
In the event that the grounds on which the citizen was restricted by the court in legal capacity have disappeared, the court, on the basis of the application of the citizen himself, his representative, a member of his family, guardian, guardianship and guardianship agency, psychiatric or neuropsychiatric institution, decides to cancel the restriction of the citizen in legal capacity. On the basis of a court decision, the guardianship established over him is cancelled.
If the grounds by virtue of which the citizen was declared incompetent have disappeared, the court recognizes him as capable. A citizen recognized by a court as incapable cannot file an application with a court with a request to restore his legal capacity, since an application filed by an incompetent person, in accordance with paragraph 3 of part 1 of Art. 13 of the Code of Civil Procedure must be returned. A guardian, a family member, a psychiatric or psycho-neurological institution, a body of guardianship and trusteeship 1 has the right to submit such an application.
The decision to recognize a citizen as capable is taken by the court on the basis of the conclusion of a forensic psychiatric examination. On the basis of a court decision, the guardianship established for a citizen is canceled (part 2 of article 286 of the Code of Civil Procedure).
On the basis of a court decision on the restoration of legal capacity, the guardianship or guardianship established over a citizen is cancelled.
Civil Code, N 51-FZ | Art. 30 of the Civil Code of the Russian Federation
Article 30 of the Civil Code of the Russian Federation. Restriction of legal capacity of a citizen (current version)
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 capacity in the manner prescribed by civil procedural legislation. Guardianship is established over him.
He has the right to independently make small household transactions.
He can make other transactions only with the consent of the trustee. However, such a citizen independently bears property liability for transactions made by him and for the harm caused to him. The trustee receives and spends the earnings, pension and other incomes of a citizen restricted by the court in his legal capacity, in the interests of the ward in the manner prescribed by Article 37 of this Code.
2. A citizen who, due to a mental disorder, can understand the meaning of his actions or manage them only with the help of other persons, may be limited by the court in his legal capacity in the manner prescribed by the civil procedural legislation. Guardianship is established over him.
Such a citizen makes transactions, with the exception of transactions provided for by subparagraphs 1 and 4 of paragraph 2 of Article 26 of this Code, with the written consent of the trustee. A transaction made by such a citizen is also valid if it is subsequently approved in writing by his trustee. Transactions provided for by subparagraphs 1 and 4 of paragraph 2 of Article 26 of this Code, such a citizen has the right to make independently.
A citizen who has been limited by the court in his legal capacity on the grounds provided for in this paragraph may dispose of the alimony paid to him, social pension, compensation for harm to health and in connection with the death of the breadwinner and other payments provided for his maintenance with the written consent of the trustee, with the exception of payments that are specified in subparagraph 1 of paragraph 2 of Article 26 of this Code and which he has the right to dispose of independently. Such a citizen has the right to dispose of the specified payments within the period determined by the trustee. The disposal of these payments may be terminated before the expiration of this period at the discretion of the trustee.
If there are sufficient grounds, the court, at the request of the trustee or guardianship and guardianship authority, may restrict or deprive such a citizen of the right to independently dispose of his income, specified in subparagraph 1 of paragraph 2 of Article 26 of this Code.
A citizen whose legal capacity is limited due to a mental disorder shall independently bear property liability for transactions made by him in accordance with this article. For the harm caused by him, such a citizen shall be liable in accordance with this Code.
3. If the grounds by virtue of which the citizen was limited in legal capacity have disappeared, the court cancels the restriction of his legal capacity. On the basis of a court decision, the guardianship established over a citizen is cancelled.
If the mental state of a citizen who, due to a mental disorder, was limited in capacity in accordance with paragraph 2 of this article, has changed, the court recognizes him as incapable in accordance with Article 29 of this Code or cancels the restriction of his capacity.
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Restriction of legal capacity - a measure of legislative influence on a citizen, allowing him to remain unchanged material values and physical health in those moments when a person can unintentionally cause harm to himself.
The reasons for this can be various psychological disorders and diseases, as well as the abuse of alcohol-containing products or drug addiction. The limitation of legal capacity, in contrast to its deprivation, has its own characteristics and grounds for this procedure, which will be discussed later.
Types of legal capacity
The legislation of our country strictly regulates 3 main types of legal capacity, according to each of which, a citizen may have restrictions in the ability to dispose of his own property and conclude certain financial agreements to one degree or another.
Full legal capacity
These include the following 2 scenarios:
- A minor enters into a marriage union at the moment when he is not yet 18 years old. According to Article 16 of the RF IC, such an opportunity is provided for by the legislation. At the same time, there must be good reasons, which are considered by regional representatives of self-government bodies. The status of full legal capacity in this case occurs immediately after the registration of the marriage certificate in the registry office. Legal capacity is fully preserved due to the dissolution of the marriage union until the citizen reaches the age of majority. The judicial authorities can deprive a person of legal capacity ahead of schedule, for this they will need to recognize the marriage as invalid;
- Emancipation. To assign this status to an individual, the following list of conditions must be met:
- the citizen has reached the age of 16;
- he carries out labor activities under a contract or is engaged in entrepreneurship with the permission of his legal representatives;
- there is a voluntary consent of parents, adoptive relatives, as well as by a court decision.
The emancipation procedure takes place on the part of the guardianship and guardianship authorities, an alternative option may be an appeal individual to the court to obtain this status.
An emancipated minor is endowed with all rights in full and is authorized to carry out transactions with his own property. In parallel, this person is fully responsible for further actions, according to the legislation of our country.
The status of emancipation operates exclusively within the framework of civil law and does not provide for the procedure for entering into a marriage union of a minor citizen or acting as an adoptive parent.
Partial capacity
Incomplete teenagers who are in the age range of 6-18 years. The amount of curtailment of certain rights and freedoms in the field of transactions is determined based on the age of the citizen:
- Children aged 6-14 years are entitled to perform the following list of operations in accordance with the legislation of our country:
- Conclude small transactions of a domestic nature. They are classified in the field of purchasing inexpensive goods (food, literature, stationery), sold at a relatively low cost;
- carry out transactions for the purpose of gratuitous benefits that are not subject to mandatory registration by the relevant government agencies(gifts, minor repairs, training);
- transactions with larger funds that take place with the participation of a legal representative of a minor;
- Partial or incomplete legal capacity of minors is provided for the reason that minors do not bear civil and legal responsibility for the piecework transactions they perform. Responsibility is fully assigned to their official representatives.
- Persons aged 14-18 have the right to manage their own property based on the written permission of their representatives. For this, the approval of one of the parents of this person is sufficient. This category of adolescents is also endowed with the following list of rights and freedoms, the exercise of which is available without the consent of official representatives:
- the ability to freely dispose of their own earned or money from scholarships, as well as other income received from entrepreneurial activities;
- the disposal of income may be limited or completely canceled by a decision of the court. This will require a written appeal to the court of its representatives and the presence of weighty arguments for this;
- the possibility of owning copyrights to creative products and other results of intellectual work;
- permission to conclude transactions available to persons aged 6-14 years.
A minor with limited legal capacity aged 14-18 is liable in the field of civil law. Responsibility for the harm and damage caused is paid by the teenager himself or his guardian in cases where he does not have this opportunity.
Limited legal capacity
Manage your own property. To such a person, the court appoints an official representative to control his contracts, finances and real estate transactions. At the same time, such an individual retains the capacity to delict for his actions.
Disabled Citizen
Deprivation of legal capacity implies an absolute taboo on the performance by an individual of certain legal transactions with his own property, finances and other additional material values.
In this situation, there is an establishment of guardianship over the citizen by the relevant state bodies. An incompetent member of society is not responsible for his own deeds and deeds, therefore, he is automatically released from it immediately after he is granted this status.
And its cuts can equally be rejected by the judge's verdict. The reasons for this procedure may be the remission of drug addiction or alcohol abuse, as well as the stabilization of the mental state of a person.
Presumption of legal capacity
This term has its legal force until the moment when close people and relatives of a citizen have doubts related to the state of his mental health.
Due to a mental disorder, a person is not able to determine his own problem, therefore, a medical examination is carried out to identify mental abnormalities and a diagnosis of the disease is made, based on which a person can be limited in his own capacity.
The presumption of legal capacity is a legal aspect, so it can be challenged through the judiciary and proven otherwise. This measure is aimed at protecting the individual, his property and finances.
Grounds for limiting legal capacity
Only a court can recognize a civilian as having limited legal capacity. The following conditions must be met:
- the fact of abuse of alcohol or drugs;
- there is a difficult financial situation of the family due to his fault.
It is worth noting that a single person does not fall under the second reason due to the lack of a family. The grounds for limiting legal capacity do not apply to other aspects, such as a person's participation in gambling, casinos, and so on.
Restriction of legal capacity in other words is called extravagance, this term is recognized as official and approved in article 8 of the Civil Code of the RSFSR.
The procedure for limiting legal capacity
Restriction of legal capacity of citizens, the grounds for this, the procedure and consequences are regulated by law. If a citizen has problems with alcohol, narcotic drugs or the psyche, the restriction of his legal capacity occurs in a specific order:
- a medical examination is carried out and a diagnosis is made;
- a petition is written to the court (relatives, the prosecutor's office, guardianship authorities, doctors can petition);
- litigation is conducted and a court decision is made;
- within 3 days from the date of the decision, a guardian is appointed to the citizen.
Who can sue
The court may decide to recognize a person as partially or completely incompetent on the basis of an application. This petition can be submitted to the court by the following categories of persons interested in this:
- immediate relatives and family members of a citizen;
- employees of guardianship and guardianship bodies responsible for this ward;
- specialists of specialized medical institutions, subject to the identification of mental disorders.
In any case, a thorough medical examination of the natural person is always carried out before the relevant application is made.
Filing an application for disability
An application for recognition of a citizen with limited or full legal capacity is written in the generally accepted form.
The document is submitted to the local courts located at the place of registration of a person whose legal capacity will be investigated in the future as part of office work.
Sample Application
Complaints, petitions in the form of an application for recognizing a citizen as fully or partially capable are filled out on the basis of the following sample:
Rights of disabled citizens
A person with reduced legal capacity is endowed with a number of certain freedoms, the list of which includes the following items by law:
- it is allowed to conclude small transactions of a domestic scale with minimal funds (larger ones are allowed with the approval of the representative of this person);
- a citizen may dispose of the cash payments, allowances, alimony and other small incomes with the written permission of the guardianship and guardianship authorities.
Establishment of guardianship
Guardianship is established over partially capable individuals and adolescents aged 14-18 years. Persons suffering from alcoholism, drug addiction or mental illness also have caregivers. These employees are appointed in accordance with a court decision.
The essence of guardianship is to provide partial assistance to a person with limited legal capacity. The trustee helps with advice, and also gives consent or refusal to conclude transactions to his wards.
Guardians of teenagers are obliged to live with them, and their duties are absolutely free of charge according to the legislation of our country. The fulfillment of the duties of incapacitated and partially capable persons is strictly controlled by the guardianship and guardianship authorities.
Cancellation of disability restrictions
Recognition of a citizen with limited legal capacity, as well as the removal of this status, is a legal aspect. This decision can be reversed in court in the following cases:
- a commission of medical specialists confirmed the positive changes in the mental state of a person;
- the main defendant recovered from alcohol addiction or addiction;
- he does not bring unnecessary material costs to his family;
- restrictions on the legal capacity of minors and minors are removed when the latter reach the age of majority.
The procedure for the abolition of disability restrictions is completely opposite to the procedure for assigning this status.
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 capacity in the manner prescribed by civil procedural legislation. Guardianship is established over him.
He has the right to independently make small household transactions.
He can make other transactions only with the consent of the trustee. However, such a citizen independently bears property liability for transactions made by him and for the harm caused to him. The trustee receives and spends the earnings, pension and other incomes of a citizen restricted by the court in his legal capacity, in the interests of the ward in the manner prescribed by Article 37 of this Code.
2. A citizen who, due to a mental disorder, can understand the meaning of his actions or manage them only with the help of other persons, may be limited by the court in his legal capacity in the manner prescribed by the civil procedural legislation. Guardianship is established over him.
Such a citizen makes transactions, with the exception of transactions provided for, with the written consent of the trustee. A transaction made by such a citizen is also valid if it is subsequently approved in writing by his trustee. Transactions provided for by subparagraphs 1 and 4 of paragraph 2 of Article 26 of this Code, such a citizen has the right to make independently.
A citizen restricted by a court in legal capacity on the grounds provided for in this paragraph may dispose of the alimony paid to him, social pension, compensation for harm to health and in connection with the death of the breadwinner and other payments provided for his maintenance with the written consent of the trustee, with the exception of the payments that are indicated in subparagraph 1 of paragraph 2 of Article 26 of this Code and which he has the right to dispose of independently. Such a citizen has the right to dispose of the specified payments within the period determined by the trustee. The disposal of these payments may be terminated before the expiration of this period by decision of the trustee.
If there are sufficient grounds, the court, at the request of the trustee or guardianship and guardianship authority, may restrict or deprive such a citizen of the right to independently dispose of his income, specified in subparagraph 1 of paragraph 2 of Article 26 of this Code.
A citizen whose legal capacity is limited due to a mental disorder shall independently bear property liability for transactions made by him in accordance with this article. For the harm caused by him, such a citizen shall be liable in accordance with this Code.
3. If the grounds by virtue of which the citizen was limited in legal capacity have disappeared, the court cancels the restriction of his legal capacity. On the basis of a court decision, the guardianship established over a citizen is cancelled.
If the mental state of a citizen who, due to a mental disorder, was limited in capacity in accordance with paragraph 2 of this article, has changed, the court recognizes him as incapable in accordance with Article 29 of this Code or cancels the restriction of his capacity.
Commentary on Art. 30 of the Civil Code of the Russian Federation
1. The institution of limiting a citizen's legal capacity was known even to pre-revolutionary legislation. Waste and drunkenness (part 1, vol. X of the Code of Civil Laws), namely, when the extravagance of citizens threatened to plunge them or their families into distress, was the basis for the restriction in legal capacity; when they are subject to habitual drunkenness which deprives them of the ability to act judiciously in regard to transactions and the management of their property, or threatens to plunge them or their families into distress.
Articles 8 and 9 of the Civil Code of the RSFSR of 1922 provided for the possibility of declaring adults incompetent if they “ruin the property at their disposal by their excessive wastefulness.” However, on November 14, 1927, this rule was excluded.
2. Restriction in legal capacity is known not only to Russian civil law, but also to the laws of other countries. So, in accordance with Art. 36 of the Civil Code of Ukraine, the court may restrict the civil capacity of an individual if he abuses alcohol, narcotic drugs, toxic drugs, etc. and thereby puts himself or his family, as well as other persons whom he is legally obliged to support, in a difficult financial situation.
However, the legislator does not always distinguish between deprivation and limitation of legal capacity. Thus, the grounds mentioned in the commented article, according to the German Code until 1992, entailed the recognition of a citizen as incompetent. According to Art. 488 of the French Civil Code of 1804, an adult was subject to protection by law, who “as a result of his extravagance, immoderation or idleness risks falling into poverty or endangers the fulfillment of his family duties” .
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Civil, commercial and family law of capitalist countries: Collection of normative acts: civil and commercial codes: Tutorial/ Ed. VC. Puchinsky, M.I. Kulagin. M., 1986. S. 28 - 29.
In science and lawmaking, the question is often raised about expanding the list of grounds for limiting legal capacity. So, in 2006 in State Duma project was submitted federal law“On Amendments to Article 30 of Part One of the Civil Code of the Russian Federation”, which proposed expanding the list of grounds due to the so-called gambling addiction (propensity to gamble). As noted in the explanatory note, the disease, qualified in 1980 by the American Psychiatric Association under the name "ludomania", is included in the list of diseases of the World Health Organization under the international code F63.0.
Research by the US National Gambling Association has shown that any average city dweller in the world has a 6% chance of becoming a criminal, 34% of an alcoholic, 32% of a drug addict and 48% of a game addict. Doctors believe that a painful addiction to the game in the vast majority of cases develops against the background of other mental changes, layering on them. This disorder consists in frequent repeated episodes of participation in gambling, which dominate the life of the subject and lead to a decrease in social, professional, material and family values.
At the same time, pathological addiction to gambling should be distinguished from gambling and betting, this addiction is indicated by a separate line in the International Classification of Diseases ICD-10 under the code Z72.6. This fact should be taken into account when analyzing the actual circumstances, taking into account the current judicial practice. So, in the Decree of the Plenum of the Supreme Court of the Russian Federation of May 4, 1990 N 4 “On the practice of consideration by the courts of the Russian Federation of cases on limiting the legal capacity of citizens who abuse alcohol or drugs” (as amended on October 25, 1996), it was explained to the courts, that the abuse of alcoholic beverages or narcotic drugs, which gives grounds for restricting the legal capacity of a citizen, is such excessive or systematic use that is in conflict with the interests of his family members and entails unbearable expenses Money for their purchase. The law (the current version of the commented article) does not make the possibility of restricting the legal capacity of a citizen dependent on recognizing him as a chronic alcoholic or drug addict.
However, it should be noted that at present there are no medical means capable of confirming that a citizen has a tendency to gamble. Expansion of the list of grounds due to gambling addiction, the presence of which cannot be reliably established, can lead to arbitrariness and give rise to contradictory law enforcement practice.
3. The procedure for limiting a citizen's legal capacity is determined by Ch. 31 Code of Civil Procedure of the Russian Federation. An application to limit the legal capacity of a natural person may be filed by: members of his family, a guardianship and guardianship authority, a psychiatric or neuropsychiatric institution. The family members of a citizen who abuses alcohol or drugs include: a spouse, adult children, parents, other relatives, disabled dependents who live with him and run a common household (for the definition of family members, see the commentary to Article 29) . Until April 26, 2007, in order to clarify the provision of the commented article and the relevant provisions of the Code of Civil Procedure of the Russian Federation, Resolution of the Plenum of the Supreme Court of the Russian Federation of May 4, 1990 N 4 was applied in this part. With the adoption of the Resolution of the Plenum of the Supreme Court of the Russian Federation of April 26, 2007 N 15 "On the invalidation of certain decisions of the Plenum of the Supreme Court of the Russian Federation" these explanations have become invalid.
At the same time, the provisions of the aforementioned Decree No. 4 may be relevant for the interpretation of individual terms that give rise to the restriction of the citizen’s legal capacity, in particular, “abuse of alcohol or drugs” should be understood as such excessive or systematic use by a citizen that is in conflict with the interests of his family and entails unbearable expenses of funds for their acquisition, which causes financial difficulties and puts the family in a difficult situation. The fact that other family members have earnings or other income in itself is not a reason to refuse to satisfy the applicant's request if the family does not receive the necessary material support from a person who abuses alcohol or drugs, or is forced to support him in whole or in part. At the same time, it must also be taken into account that the law (Article 30 of the Civil Code) does not make the possibility of restricting a citizen's legal capacity dependent on recognizing him as a chronic alcoholic or drug addict.
A single citizen who does not have a family cannot be recognized as having limited capacity.
4. As evidence of the abuse of alcoholic beverages or narcotic drugs, giving grounds for limiting the legal capacity of a citizen, witness statements, police reports, certificates from medical sobering-up stations, acts of the administration on the suspension of a person from work due to the appearance in a state of intoxication or in a state of drug intoxication, evidence of dismissal on the above grounds, documents on family income and the number of its members, as well as other materials confirming the facts of alcohol or drug abuse and characterizing the financial situation of the family.
Having established that a citizen abuses alcohol or drugs and, as a result, his family is in a difficult financial situation, the court does not have the right to refuse to satisfy the application only on the grounds that the person against whom the case on disability has been initiated has undertaken to change his behavior to the best.
However, in some exceptional cases, if by the time the case is considered, a citizen has ceased to abuse alcohol or drugs and claims that he has made a final decision on this issue, however, the period of time during which he changed his behavior for the better is short and does not gives confidence that the citizen will comply with the decision made by him, the court, in order to verify this circumstance, has the right, taking into account the opinion of the applicant and the adult family members of the citizen, to postpone the trial of the case, since the civil procedural legislation does not contain rules restricting the ability of the court to do this to clarify the actual circumstances of the case .
If, after adjourning the case, the court comes to the conclusion that the citizen has really changed his behavior, then, refusing to satisfy the application, it is advisable to discuss the need to warn the citizen about the inadmissibility of repeating the abuse of alcohol or drugs.
In the event that the proceedings on the case are terminated due to the applicant's refusal of his claim, this circumstance does not exclude the possibility of subsequently initiating a case by the same applicant on limiting the legal capacity of the same citizen, if the latter, according to the applicant, continues to abuse alcohol or drugs. means and after the termination of the proceedings.
5. The decision of the court, by which a citizen is limited in legal capacity, is the basis for the appointment of a trustee by the body of guardianship and guardianship. The limitation of legal capacity should be understood as the deprivation by the court of a citizen of the right to perform the following actions without the consent of the trustee:
- sell, donate, bequeath, exchange, buy, pledge property, as well as make other transactions for the disposal of property, with the exception of small household transactions;
- directly receive wages, pensions and other types of income (income from the disposal of rights to the results of intellectual activity, from participation in business companies and partnerships, amounts due for the performance of work under contracts, all kinds of benefits, etc.).
6. From the moment the court decision enters into legal force, a citizen is not entitled to make any transactions without the consent of the trustee, except for small household ones. A person limited in legal capacity is not entitled to make a will even with the consent of the trustee. According to Art. 176 of the Civil Code of the Russian Federation, a transaction on the disposal of property, made without the consent of the trustee by a citizen limited by the court in legal capacity due to the abuse of alcohol or drugs, may be declared invalid by the court at the suit of the trustee. Each of the parties to such a transaction is obliged to return to the other everything received in kind, and if it is impossible to return in kind, to reimburse its value in money. In addition, the capable party is obliged to compensate the other party for the real damage it has suffered if the capable party knew or should have known about the limited legal capacity of the other party.
Restriction in legal capacity does not affect family legal relations, including marriage, divorce, maintenance obligations.
7. According to the commented article and art. 1077 of the Civil Code of the Russian Federation, a person limited in legal capacity himself bears civil liability. The harm caused by a citizen, limited in capacity due to the abuse of alcohol or drugs, is compensated by the tortfeasor himself. The trustee does not bear subsidiary liability.
8. Cancellation of limitation in legal capacity is determined by Art. 286 of the Code of Civil Procedure of the Russian Federation, according to which, if the grounds provided for in the commented article have disappeared, the court, on the basis of an application by the citizen himself, his representative, a member of his family, a trustee, a guardianship and guardianship authority, a psychiatric or neuropsychiatric institution, decides to cancel the restriction of a citizen in capacity. On the basis of a court decision, the guardianship established over him is cancelled.