“A citizen who, due to the abuse of alcoholic beverages or narcotic substances, puts his family in a difficult financial situation, may be limited by the court in legal capacity in the manner established by the Civil Procedure Code of the Republic of Kazakhstan. Guardianship is established over him. He has the right to independently carry out small household transactions. Make others transactions, as well as receive earnings, pensions and other income and dispose of them only with the consent of the trustee.”

Restriction of legal capacity is possible only in cases in accordance with the procedure provided by law. It lies in the fact that a citizen is deprived of the ability, through his actions, to acquire such civil rights and create such civil responsibilities that he, by virtue of the law, could already acquire and create. We are talking, therefore, about reducing the amount of legal capacity a person has.

Both a person who has incomplete (partial) legal capacity and a person who has full legal capacity can be limited in legal capacity.

Limitation of the incomplete (partial) legal capacity of a minor according to the norms of the current Civil Code is carried out by the court if there are sufficient grounds and at the request of the parents, adoptive parents or trustee or the guardianship and trusteeship authority. According to the Civil Code of 1964, this issue was resolved by the guardianship and trusteeship authorities. In addition, the new Civil Code clearly defined the circle of subjects at whose request legal proceedings are initiated in the case of restricting or depriving a minor of the right to independently dispose of earnings - these are legal representatives or the guardianship and trusteeship authority. Previously, in addition to these entities, public organizations or other interested persons could submit a petition. In addition to this, there are cases where restriction or deprivation of this right is not permitted. The right to dispose of earnings cannot be limited or deprived of minors who have acquired full legal capacity due to marriage before the age of 18 and emancipated citizens.

The grounds for restricting or depriving a minor of the right to independently dispose of earnings are, in particular, unreasonable spending of earnings, consumption of alcoholic beverages and drugs. But since the list of grounds sufficient to recognize a minor as having limited legal capacity is not defined by the Civil Code, these may also be other grounds that are sufficient at the discretion of the court.

If this right is limited, a minor can dispose of his earnings only with the consent of his legal representatives, and if the right is deprived, his parents dispose of his earnings in the interests of the minor.

It is permissible by court decision to limit the legal capacity of citizens who abuse alcoholic beverages or narcotic substances (Article 27 of the Civil Code of the Republic of Kazakhstan). This rule applies only to fully capable citizens. Restricting the legal capacity of a fully capable citizen is a very significant invasion of his legal status and is therefore permitted by law if there are serious grounds that must be established by the court.

The grounds for limiting the legal capacity of a citizen are his abuse of alcoholic beverages or drugs and the difficult financial situation of the family as a result of such abuse. From the point of view of law, the abuse of alcoholic beverages and narcotic drugs in the context of other provisions of Article 27 of the Civil Code should be considered not the ideas that have developed in society about the extent of their use, but such use by a citizen of alcoholic beverages or narcotic drugs, in which his family is largely deprived of what she could have gotten from him if the citizen had not used them.

Restriction of a citizen’s legal capacity and the abolition of its restriction are carried out in accordance with the procedure of civil legislation and civil procedural legislation, which is in many ways similar to the procedure for declaring a citizen incompetent. To make a decision to limit the legal capacity of a citizen, the court should not order a medical examination, and the consideration of the case is carried out with the mandatory participation of the relevant citizen, as well as the prosecutor. The citizen himself can petition to cancel the case.

Guardianship is established over a citizen limited in legal capacity in the manner prescribed by Article 27 of the Civil Code of the Republic of Kazakhstan.

The limitation on the legal capacity of a citizen who abuses alcohol or drugs is that he can only carry out small everyday transactions. Transactions involving the purchase of alcoholic beverages and narcotic drugs cannot be classified as small household transactions. Therefore, the trustee should be recognized with the right to control the ward’s spending of the funds that the trustee gives him to meet everyday needs. Thus, the scope of limited legal capacity of a citizen over whom guardianship has been established is narrower than the volume of legal capacity of minors. He can carry out all transactions, except for everyday ones, only with the consent of the trustee. Without the consent of the trustee, a citizen cannot receive wages or other income, dispose of them and his other property (sell, donate, bequeath, etc.), or exercise property copyright on the results of his intellectual activity. Transactions made without the consent of the trustee by a citizen whose legal capacity is limited are invalid, except for small household transactions.

The citizen himself bears property liability for all transactions made with the consent of the trustee and for the damage caused by him.

In addition to limiting the legal capacity of citizens within the framework of civil legal relations, it is necessary to note other ways of limiting legal capacity, provided, in particular, by the Criminal Code.

The main way to limit the legal capacity of citizens who have committed a crime is to apply to them measures of state coercion in the form of punishment. Punishment is applied to a person found guilty of committing a crime and consists of the deprivation or restriction of the rights and freedoms of this person as provided for in the Criminal Code of the Republic of Kazakhstan (Article 43 of the Criminal Code of the Republic of Kazakhstan). The content of punishment is the deprivation or restriction of rights and freedoms. Any potential deprivation or restriction of the rights and freedoms of a person serving a sentence or a person to whom a punishment has been applied must have a legal basis and comply with the law. It is illegal to deprive a convicted person of the means of maintaining his existence provided for by law, which leads to harm to health, the spread of epidemics, as well as depriving a convicted person of state protection from attacks or other forms of negative influence from third parties.

Within the meaning of the above article, the content of punishment, based on its state-legal nature and goals, includes various actions carried out by the bodies executing the punishment, both to protect those rights and freedoms that the convicted person was not deprived of by a court verdict.

"Types of punishments:

• 1. fine
• 2. deprivation of the right to hold certain positions or engage in certain activities
• 3. deprivation of a special, military or honorary title, class rank and state awards
• 4. mandatory work
• 5. correctional labor
• 6. restrictions on military service
• 7. confiscation of property
• 8. restriction of freedom
• 9. arrest
• 10. detention in a disciplinary military unit
• 11. imprisonment for a certain period
• 12. life imprisonment
• 13. death penalty"

The list of types of punishment is exhaustive and is not subject to broad interpretation. The types of punishment specified in this article form a system of types of punishment that allows the court, on the basis of the law, taking into account the experience of judicial practice, public legal consciousness and scientific recommendations, to rationally and, if possible, effectively use various measures of influence on the convicted person, combining property deprivations, restrictions on personal non-property inalienable rights and interests, impact on the psychological structure of the individual, limitations on the possibilities of professional and other behavior in the future.

Limitation of legal capacity is a measure of legislative influence on a citizen, which makes it possible to preserve his material values ​​and physical health without changes in those moments when a person may unintentionally cause harm to himself.

The reasons for this may be various psychological disorders and diseases, as well as abuse of alcohol-containing products or drug addiction. Limitation of legal capacity, as opposed to deprivation of it, has its own characteristics and grounds for this procedure, which will be discussed below.

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 enter into certain financial arrangements to varying degrees.

Full legal capacity

These include the following 2 scenarios:

1. A minor enters into a marriage when he is under 18 years of age. According to Article 16 of the RF IC, such a possibility is provided for by law. In this case, there must be compelling reasons, which are considered by regional representatives of self-government bodies. The status of full legal capacity in this case occurs immediately after registration of the marriage certificate in the registry office. Legal capacity is fully preserved due to the dissolution of the marriage until the citizen reaches the age of majority. Judicial authorities can deprive a person of legal capacity ahead of schedule; to do this, they will need to declare the marriage invalid;
2. Emancipation. To assign this status to an individual, the following list of conditions must be met:
   • the citizen has reached 16 years of age;
   • he carries out labor activities under a contract or is engaged in business with the permission of his legal representatives;
   • There is voluntary consent of parents, adoptive relatives, as well as by court decision.

The emancipation procedure is carried out by the guardianship and guardianship authorities; an alternative option may be an individual’s appeal to the court to obtain this status.

An emancipated minor is given full rights and is authorized to carry out transactions with his own property. In parallel, this person bears full responsibility for further actions, in accordance with 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 a minor citizen to enter into a marriage union or act as an adoptive parent.

Partial capacity

Incomplete for teenagers aged 6-18 years. The amount of reduction of certain rights and freedoms in the field of transactions is determined based on the age of the citizen:

1. 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 household nature. Classified in the area of ​​purchasing inexpensive goods (groceries, literature, stationery), sold at a relatively low cost;
   • carry out transactions for the purpose of gratuitous benefits that are not necessarily subject to registration by the relevant government authorities (gifts, minor repairs, training);
   • transactions with larger amounts of money occurring with the participation of the 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 liability for the piecework operations they carry out. Responsibility rests entirely with their official representatives.
2. Persons aged 14-18 years have the right to manage their own property based on the written permission of their representatives. To do this, the approval of one of the person's parents 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 opportunity to freely dispose of one’s own earnings or funds from scholarships, as well as other income received from entrepreneurial activities;
   • the disposal of income may be limited or completely canceled by a court decision. This will require a written application to the court by its representatives and the presence of weighty arguments for this;
   • the possibility of copyright ownership of creative products and other results of intellectual work;
   • permission to enter into transactions accessible to persons aged 6-14 years.

A minor citizen aged 14-18 with limited legal capacity is liable in the field of civil law. Responsibility for harm and damage caused is paid by the teenager himself or his guardian in cases where he does not have this opportunity.

Limited capacity

Manage your own property. For 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 tort liability for his actions.

Incompetent 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 assets.

In this situation, guardianship is established over the citizen by the relevant government bodies. An incapacitated member of society is not responsible for his own actions and actions, therefore he is automatically released from it immediately after being granted this status.

And her cuts can equally be rejected by the judge's verdict. Reasons for this procedure may include remission of drug addiction or alcohol abuse, as well as stabilization of a person’s mental state.

Presumption of 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 identify his own problem, so a medical examination is carried out to identify mental disorders and a diagnosis of the disease is made, based on which the person may be limited in his own legal capacity.

The presumption of capacity is a legal aspect, so it can be challenged through the courts and the contrary can be proven. This measure is aimed at protecting an individual, his property and finances.

Grounds for restricting legal capacity

Only a court can recognize a civilian as having limited legal capacity. The following conditions must be met:

1. fact of alcohol or drug abuse;
2. 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 absence 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.

Limitation of legal capacity, in other words, is called wastefulness; this term is recognized as official and approved in Article 8 of the Civil Code of the RSFSR.

The procedure for limiting legal capacity

Limitation of the legal capacity of citizens, the grounds for this, the procedure and consequences are regulated by law. If a citizen is diagnosed with problems with alcohol, drugs or mental health, his legal capacity is limited in a specific order:

1. a medical examination is carried out and a diagnosis is made;
2. a petition is written to the court (relatives, the prosecutor's office, guardianship authorities, and doctors can petition);
3. judicial proceedings are conducted and a court decision is made;
4. within 3 days from the moment the decision is made, a guardian is appointed to the citizen.

Who can go to court

The court may decide to recognize a person as having limited legal capacity or completely incompetent based on 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 the citizen;
• employees of the guardianship and trusteeship authorities responsible for the ward;
• specialists from specialized medical institutions, subject to the identification of mental disorders.

In any case, before submitting the relevant application, a thorough medical examination of the individual is always carried out.

Filing an application for limitation of legal capacity

An application to recognize a citizen as having limited or full legal capacity is written in a generally accepted form.

The document is submitted to local courts located at the place of registration of the person, whose legal capacity will be examined further as part of the paperwork.

Sample application

Complaints and petitions in the form of an application to recognize a citizen as fully or partially capable are filled out based on 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 household scale with minimal funds (larger ones are permitted with the approval of a representative of this person);
• a citizen can dispose of cash payments, benefits, alimony and other small incomes he receives with the written permission of the guardianship and trusteeship 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 workers 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 when concluding transactions with his wards.

Guardians of teenagers are required to live with them, and their duties are provided absolutely free of charge in accordance with the legislation of our country. The fulfillment of the duties of incapacitated and partially capable persons is strictly controlled by the guardianship and trusteeship authorities.

Cancellation of restrictions on legal capacity

Recognition of a citizen as having limited legal capacity, as well as removal of this status, is a legal aspect. This decision can be overturned in court in the following cases:

• a commission of medical specialists confirmed positive changes in the person’s mental state;
• the main defendant has recovered from alcohol or drug addiction;
• he does not bring unnecessary material costs to his family;
• restrictions on the legal capacity of minors and minors are lifted when they reach the age of majority.

The procedure for canceling restrictions on legal capacity is completely opposite to the procedure for assigning this status.

Most members of society position themselves as completely adequate citizens in mental and moral terms, as well as responsible citizens who are able to keep their emotions and actions under control, analyze the surrounding context, and be critical of their actions.

On this basis, they obviously have the opportunity to act as full rights. The loss of these qualities gradually deprives a person of social involvement. Citizens are restricted from external contacts to a greater extent than others, whose status corresponds to certain standards of behavior and degree of responsibility.

When determining the conditions of legal capacity, it is necessary to determine its main difference from legal capacity, which every citizen has from birth to death, regardless of the contribution he makes to the development of society and his recognition as a legally capable person.

Legal capacity is the constitutional qualities that citizens of the Russian Federation (and others) are endowed with in accordance with the rights that every person has by the right of his birth as a human being, which is legislatively reflected in Article 17 of the Civil Code of the Russian Federation.

The legal basis remains unshakable and stable. But in reality they are limited by the right of another person. For example :

1. A citizen generally has the right to provide housing, but does not have the right to live in someone else’s apartment.
2. He has the right to dispose of property, but only that which belongs to him.
3. He has the right to use a car, but to do this he must comply with many legal procedures.

Definitions of legal capacity and the nuances of its implementation are the basis of the legal system.

For full functioning in society and the ability to take part in property transactions and legal forms of interaction, a citizen will need legally capable status– the presence of a quality that distinguishes a morally and mentally mature person, capable of taking responsibility for his actions, then corresponds to the criterion presented in Article 21 of the Civil Code of the Russian Federation.

If legal capacity is inherent in a subject a priori, then legal capacity is confirmed by his social adaptability, ability to interact with other members of society, and in some cases may be called into question.

Can the legal capacity of citizens be limited? Yes. Those who meet the status of capable citizens may have their rights limited. Deprivation of legal capacity as a legal precedent does not exist, but in this case the concepts are intertwined, and restrictions on legal capacity entail the inability of a citizen to carry out legal activities in those aspects for which he is recognized as incompetent.

In accordance with the provisions of the Civil Code of Russia, a citizen who is unable to direct his actions may be declared legally incompetent, in accordance with Article 29 of the Civil Code of the Russian Federation.

Civil Code, Chapter 3, 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, taking into account the opinion of such a citizen, and if it is impossible to establish his opinion, taking into account information about his preferences received from the parents of such a citizen, his previous guardians, other persons who provided services to such a citizen and in good faith fulfilled their duties.
3. When developing the ability of a citizen who has been declared incompetent to understand the meaning of his actions or manage them only with the help of other persons, the court recognizes such a citizen as having limited legal capacity in accordance with paragraph 2 of Article 30 of this Code.

If there are no grounds for complete deprivation of legal capacity, since the citizen is sane in many areas of life, the court may only see the need to limit legal capacity to certain, problematic areas of the citizen’s activity. In this case, the judicial panel will be guided by Article 30 of the Civil Code of the Russian Federation.

Civil Code, Chapter 3, 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. He has the right to independently carry out small everyday transactions. He can make 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.
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 legal capacity in the manner established by civil procedural legislation. Guardianship is established over him.

Such a citizen makes transactions, with the exception of transactions provided for in 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 with its subsequent written approval by his trustee. Such a citizen has the right to carry out transactions provided for by subparagraphs 1 and 4 of paragraph 2 of Article 26 of this Code independently.

Grounds and conditions for recognizing a citizen’s incapacity

Recognition of incapacity is made on the basis of a mental illness of a person who may begin to deteriorate morally or intellectually. Provided that a person ceases to direct his actions or loses the ability to exist independently, at the request of relatives (doctors), the issue of termination of legal capacity is decided by the court. In this case, the issue of legal capacity is not affected, and a person recognized as incompetent reserves the right to use the property benefits that he has, without the right to dispose of them.

This decision is made under the following conditions:

1. Conducting a forensic psychiatric examination and its positive decision.
2. Presence at the court hearing of the prosecutor and representatives of the guardianship and trusteeship authorities.
3. The presence of the patient in court in person, except in cases where he is deprived of the ability to move.

After a positive decision of the court, the patient subsequently lives under the care of neighbors or in a specialized institution (read about). In case of significant recovery of mental health, a citizen can obtain recognition of legal capacity at the next court hearing.

The procedure for limiting legal capacity

Recognition of the need to limit a person's legal capacity is also carried out exclusively by a court decision. It can be recognized as follows:

1. Based on an application for recognition of incapacity, but in the absence of such grounds from the point of view of the judicial panel.
2. Based on relatives (other persons) in accordance with the prevailing circumstances.

Such circumstances primarily include:

• alcohol addiction;
• drug addiction.

The main criterion is the suffering of family members associated with the deprivation of income for subsistence, which is almost entirely spent on maintaining dependence on the vice.

Another factor may be the person’s aggressive, illegal behavior. But it more often finds a way out in divorce, and in some cases in.

Who can limit a person’s legal capacity?

Limitation of legal capacity can only be carried out by a court. In other cases, obstacles to property transactions addressed to a person by a spouse or other relatives will be unlawful. In order to control expenses incurred:

• spouse;
• adult children;
• parents -

an application must be made to the court. Only after a positive decision made on the application of a relative will he be able to manage his funds. In this case, he must register with the accounting department at the place of work of the person with limited legal capacity for permission to receive his salary (pension, other payments). In addition, he is charged with a ban on all types of property transactions.

The reason for the restriction is not:

1. None of the circumstances, before the court makes a decision.
2. None of the circumstances if the citizen lives alone and has no family.
3. None of the circumstances, unless the citizen has been diagnosed with addiction.

In the absence of property, income or poor communication with society, the possibility of limiting legal capacity may be minimal and impractical.

Consequences of recognizing a citizen's incapacity

Recognized as such by a court decision, a citizen is almost completely deprived of the opportunity to function in society.

In particular, he loses the ability to:

1. Manage property and carry out transactions. If they are committed, they are considered void.
2. Participate in elections.
3. Get married and raise children. If there is a marital relationship, it can be dissolved without his consent, and the children can be adopted.
4. Make a will.

However, he retains legal capacity in relation to the use of existing property. The guardianship authorities properly monitor the observance of his rights by persons authorized to guardianship.

What actions are people entitled to take after their legal capacity has been limited?

Unlike a person deprived of legal capacity, a citizen whose legal capacity is limited by a court has the right to independently lead an almost full-fledged lifestyle. He does not need the guardianship and control of trustees, his spouse is obliged to give him permission in the event of a divorce, and he also has the right to leave an inheritance at his own discretion.

Naturally, if he is denied participation in voting for the desired candidate, a fairly serious scandal with corresponding, including political, implications may arise.

He has the right to communicate with his children as he wishes, even in the event of a divorce.. A ban on raising children may be imposed by a separate hearing in case of restriction (deprivation) of parental rights.

Subject to long-term remission and the ability to keep the vicious addiction under control, he can fully restore his legal capacity and continue to live a full life.

Step-by-step instructions when going to court

If you have an intention to take control of a close relative’s money, which is spent on alcohol or drugs, you need to file an application with the court.

You can choose the arbitration court of the district that is located at the place of residence where you live with the offender. If you do not live together, questions will arise for you, but in this case the application must be submitted at the place of registration. The questions will have the nature of the legality of the application in the event that you are no longer running a common household. If your marriage is not registered or you are divorced, you don’t have to bother submitting an application, since your application most likely will not be considered.

If it is more convenient for you, you can submit an application to the district court at the location of the medical institution. If a citizen is not registered as dependent on alcohol or suffering from drug addiction, there is no point in filing an application. In this case, you must first obtain registration.

Required documents and evidence

A certificate from a drug treatment clinic will be one of the main reasons for considering the application. The remaining documents and evidence must reflect the real picture in which the family finds itself due to the fault of the dependent member. In addition to passport documents, you will need documents determining the degree of relationship.

Spouses must be in a registered marriage and present a marriage certificate.

The documents must be accompanied by evidence that reflects the real picture of the family’s difficult financial situation and the exorbitant expenses on alcohol and drugs on the part of the applicant for the restriction.

This can be proven with documents:

1. About the applicant's low average earnings.
2. A certificate stating that the applicant has no income, for example, is on parental leave.
3. A certificate from the clinic stating that the child needs more careful care or funds for treatment.

All documents and witness statements confirming the family's dire financial situation must be included in the case.

Writing an application

The application is written to the court, but will be considered in the presence of the guardianship and trusteeship authorities. Therefore, it must contain information:

• about the judge;
• about the prosecutor;
• about the representative of the guardianship authorities.

In the application, it must be noted that a citizen (indicating his full name) who is your close relative (specify which one), as confirmed by documents (list) that are attached to the application, cannot be held responsible. It lies in property relations that are at risk due to the exorbitant expenses that he requires on alcoholic products (drugs).

Briefly and correctly list the main characteristics of his destructive behavior.

Ask the court:

1. Limit his property rights and appoint you as his guardian.
2. Appoint a forensic psychiatric examination to confirm its partial inadequacy.

You will not be charged any state fee when submitting your application.

This statement does not indicate the parties, as is the case in a statement of claim. The legislation is guided by the fact that a partially incompetent person, even potentially recognized as such, cannot be fully responsible for his actions. Therefore, representatives of the prosecutor’s office and guardianship authorities are on his side.

Making a court decision

A court decision is the result of court hearings, the members of which came to a definite, unambiguous conclusion. The decision will be delivered to you in the form of an extract three days after its adoption. If the decision is positive, based on the extract, you will need to accept responsibility for the relative’s income and expenses, as well as for participation in his property transactions. To do this, you will need to register guardianship with the guardianship and trusteeship authorities, to which you will be accountable for your actions.

Appealing a court decision

If your request was denied, but you are confident that you are right, within 10 days after receiving the extract and on its basis, you can file an appeal to the regional court. To do this, it makes sense to strengthen with evidence and facts those circumstances that were taken into account as the reasons for the refusal.

Cases of limitation of legal capacity occupy a special place in domestic judicial practice. Very often you can hear stories about how a citizen abuses alcohol or alcoholic beverages, which leads to financial difficulties in the family and even poses a danger to its members.

If a person does not understand the meaning of his actions, then he may or may not have legal capacity in court.

Making decisions regarding minors

Despite the fact that minors do not have full legal capacity until they reach the age of 18, cases arise that suggest the need to limit them in court. These include:

1. , that is, recognition of their full rights, for example, in connection with marriage, with the permission of parents or guardians.
2. Subject to receiving earnings or scholarships, which he misuses - drinks or spends on drugs.

The issue of restricting the rights of such a subject is considered additionally by a court decision, which is adopted according to a similar algorithm, but is limited by the period of reaching the age of majority. Until this period, the guardian will manage the income of the minor.

Upon reaching the age of 18 years, the restriction is lifted, according to which:

1. Capacity is restored automatically.
2. A new court hearing is held, at which the citizen’s legal capacity is again determined.

The limitation of the legal capacity of a minor is dictated by the fact that public opinion considers certain forms of communications unacceptable, protecting conscientious citizens from them.

Regardless of the motivating reasons, the very fact of limiting legal capacity, with a properly organized and lawfully applied mechanism for the protection of human rights, is a progressive step in social development. It provides protection to the relatives of a person suffering from alcoholism or drug addiction, and allows the dependent person to exist under their care.

Civil capacity is defined in the law as the ability of a citizen, through his actions, to acquire and exercise civil rights, to create civil responsibilities for himself and to fulfill them (clause 1 of Article 21 of the Civil Code).

To have legal capacity means to have the ability to personally perform various legal actions: enter into contracts, issue powers of attorney, etc., as well as be responsible for property damage caused (damage or destruction of someone else’s property, damage to health, etc.), for failure to fulfill contractual and other duties. Thus, legal capacity includes, first of all, the ability to make transactions (transactional capacity) and the ability to bear responsibility for unlawful actions (delictual capacity).

But in addition, legal capacity includes the ability of a citizen, through his actions, to exercise his civil rights and fulfill his duties. For the first time in our legislation, such an ability is provided for in the Civil Code (clause 1 of 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 an individual in economic turnover, entrepreneurial and other activities, the realization 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 subject who has violated obligations or caused property damage in the absence of contractual relations. Consequently, the category of citizens' legal capacity is of great value due to the fact that it is a legal means of expressing personal freedom in the sphere of property and personal non-property relations 1.

Legal capacity, like legal capacity, by legal nature is a subjective right of a citizen. This right differs from other subjective rights in its content: it means the possibility of certain behavior for the citizen himself who has legal capacity, and at the same time, this right corresponds to the obligation of all those around the citizen to prevent its violations.

the ability of a citizen, through his actions, to acquire civil rights and create civic responsibilities for himself;


the ability to independently exercise civil rights and perform duties;


ability to bear liability for civil wrongdoing.


You can also point out 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 consists of the rights and obligations that an individual may have, then the content of legal capacity is characterized by the person’s ability to acquire and exercise these rights and obligations through his own actions. Therefore, we can conclude that legal capacity is the opportunity provided to a citizen by law to exercise his legal capacity through his own actions. 1


Legal capacity, like legal capacity, cannot be considered as a natural property of a person; they are provided to citizens by law and are legal categories. Therefore, with regard to legal capacity, the law establishes its inalienability and the impossibility of limitation at the will of the citizen.


With regard to the possibility of forced limitation of legal capacity, then, 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 established by law. An example is the norm of Art. 30 of the Civil Code, which provides for the limitation of legal capacity of citizens who abuse alcoholic beverages or narcotic substances.


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 through one’s own actions, to assume and fulfill responsibilities, one must reason intelligently, understand the meaning of the rules of law, be aware of the consequences of one’s actions, and have life experience. These qualities vary significantly depending on the age of citizens and their mental health.


Taking into account these factors, the law distinguishes several types of legal capacity:


full legal capacity;


legal capacity of minors aged 14 to 18 years;


legal capacity of minors aged 6 to 14 years;


legal capacity of minors under 6 years of age.


It also provides for the recognition of a citizen as incompetent and the limitation of the legal capacity of citizens on grounds specified by law.


Full legal capacity is the ability of a citizen, through his actions, to acquire and exercise any property and personal non-property rights permitted by law, to assume and perform any duties, i.e. exercise his legal capacity in full. 1


Such legal capacity arises with age, and the limit of this age is determined by 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 the legal capacity of citizens is possible only in cases and in the manner established by law (clause 1 of article 22 of the Civil Code). It lies in the fact that a citizen is deprived of the ability, through his actions, to acquire such civil rights and create such civil responsibilities that he, by virtue of the law, could already acquire and create. We are talking, therefore, about reducing the amount of legal capacity a person has. Both a person with incomplete (partial) legal capacity and a person with full legal capacity can be limited in legal capacity. Civil cases on restricting the legal capacity of citizens are considered by the court in a special proceeding (Chapter 31 of the Code of Civil Procedure of the Russian Federation).


The law allows for restrictions (subject to certain conditions) of the legal capacity of citizens who abuse alcoholic beverages or drugs (Article 30 of the Civil Code). This rule applies only to citizens with full legal capacity, since citizens aged 14 to 18 years, if there are sufficient grounds, are limited in legal capacity in the manner discussed above. At the same time, it should be recognized that the norm of Art. 30 of the Civil Code also applies to minors who, before reaching 18 years of age, acquired full legal capacity in connection with marriage (clause 2 of article 21 of the Civil Code) or by way of emancipation (art. 27 of the Civil Code). All rules relating to fully capable persons must be applied to such citizens, and rules determining the legal status of minors cannot be applied. 1


Restricting the legal capacity of an adult citizen is a very significant invasion of his legal status and is therefore permitted by law if there are serious grounds that must be established by the court.


Firstly, the limitation of legal capacity is provided for in Art. 30 Civil Code only for persons who abuse alcoholic beverages or drugs. Other abuses and vices (for example, gambling, betting, etc.) cannot lead to restrictions on legal capacity, even if they cause financial 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 drugs, which entails significant expenses for their acquisition, which causes financial difficulties and puts the family in a difficult situation.


The limitation of a citizen’s legal capacity in the case under consideration is expressed in the fact that, in accordance with a court decision, guardianship is established over him and he can make transactions to dispose of property, as well as receive wages, pensions or other types of income and dispose of them only with the consent of the trustee. He has the right to independently carry out only small everyday transactions (Clause 1, Article 30 of the Civil Code) 1.


When a citizen stops abusing alcoholic beverages or drugs, the court lifts the restriction on his legal capacity. Based on a court decision, the guardianship established over him is canceled. If a citizen, after the lifting of the restriction of his legal capacity, again begins to abuse alcoholic beverages or drugs, the court, at the request of interested parties, may again limit his legal capacity.


The legislation of some countries recognizes wastefulness as one of the grounds for restricting or depriving legal capacity. Thus, the German Civil Code until 1992 contained a rule according to which anyone who, through wastefulness, puts himself or his family in a difficult financial situation, may be deprived of legal capacity and placed under guardianship. According to the French Civil Code, the spendthrift is not deprived of legal capacity, but can carry out 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 as the basis for limiting the legal capacity of spendthrifts “immeasurable and ruinous luxury, excesses, dissipation and extravagance.” The literature has pointed out the difficulty of establishing the very fact of wastefulness. The most correct criterion was proposed to be considered “aimlessness of spending, regardless of profitability” 1 . 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 for both the spendthrift and his family. 2


One of the important factors influencing 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 incompetent by the court.


However, the fact of mental illness or dementia in itself, 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 an application to the court in accordance with Art. 281 of the Code of Civil Procedure of the Russian Federation can be applied by members of his family, close relatives (parents, children, brothers, sisters), regardless of whether they live together with him, a guardianship and trusteeship authority, a psychiatric or psychoneurological institution.


To consider such a case, a conclusion on the state of the citizen’s mental state is required, issued by a forensic psychiatric examination at the request of the court; The participation of the prosecutor and a representative of the guardianship and trusteeship authority 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 and the prevention of arbitrary intrusion into his legal status. A citizen is considered incompetent only after a court makes a corresponding decision. At the same time, based on 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 legally competent 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 the legal capacity of minors aged 14 to 18 years is allowed only by court decision. Limitation of legal capacity may be expressed in the limitation or even deprivation of a minor’s right to independently manage 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, or guardian.


The Civil Code defines the circle of persons who can apply to the court to limit or deprive a minor of the right to independently dispose of earnings, scholarships or other income: these include parents, adoptive parents or trustees, as well as the guardianship and trusteeship authority. Neither public organizations nor any interested persons have the right to make such a petition. 1


A decision to limit the legal capacity of a minor aged 14 to 18 years can be made by a 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 spending it unreasonably, 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 the seriousness of his mistakes in managing his earnings, scholarships, and other income. Based on a court decision, the earnings, scholarships, and other income of a minor should be given in whole or in part not to him, but to his legal representatives - parents, adoptive parents, and guardian.


The Civil Code does not directly provide for the possibility of limiting 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 should be considered restored to the extent that he had before its limitation. If the period for which the minor’s legal capacity is limited has not been specified, then the restriction is valid until the minor reaches 18 years of age or until the restriction is lifted by the court at the request of those persons who applied for the restriction. 1


Limiting the legal capacity of a minor is impossible if he acquired full legal capacity due to marriage before reaching 18 years of age or through emancipation. Consequently, in relation to minors aged 14 to 18 years, this means limiting their partial legal capacity.


3. RECOGNITION OF A CITIZEN INCOMPETENT


The legal capacity of a citizen can 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 incompetent by the court.


A citizen’s legal capacity 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 limit or deprive a minor aged 14 to 18 years of the right to independently dispose of their income, except in cases where such a minor has acquired full legal capacity through marriage or as a result of emancipation (Part 2 of Article 21 , part 4 of article 26, article 27 of the Civil Code of the Russian Federation).


The consequence of restricting legal capacity will be expressed in the court depriving a citizen of the right to carry out, without the consent of the trustee, such actions as selling, donating, bequeathing, exchanging, buying property, as well as making other transactions to dispose of property, with the exception of small household transactions; directly receive wages, pensions and other types of income (author's fees, rewards for discoveries, inventions, earnings on a collective farm, amounts due for performing work under a contract, all kinds of benefits, etc.). Guardianship is established over a citizen with limited legal capacity. 1


The consequence of declaring a citizen incompetent is the establishment of guardianship over him and the completion 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 a corresponding application.


A case of restricting a citizen’s legal capacity can be initiated on the basis of an application from members of his family, a guardianship and trusteeship authority, a psychiatric or psychoneurological institution. Family members of a citizen who abuses alcohol or drugs include: spouse, adult children, parents, other relatives, disabled dependents who live with him and maintain a common household. Family members living separately do not have the right to initiate proceedings to recognize a citizen as having limited legal capacity, since his behavior does not put these persons in a difficult financial situation. If a citizen lives alone (does not have a family), a case to recognize him as having limited legal capacity also cannot be initiated 1 .


The right to submit an application for recognition of a citizen as incompetent due to a mental disorder has a spouse, adult children, parents, other close relatives (brothers, sisters), disabled dependents living with him and leading a common household. Close relatives can initiate a case to declare a citizen incompetent, regardless of whether they live with the given citizen or separately from him. The case of declaring a citizen incompetent is also initiated at the request of the guardianship and trusteeship authority, psychiatric or psychoneurological institution.


A case on restricting or depriving a minor aged 14 to 18 years of the right to independently manage their income may be initiated on the basis of an application from parents, adoptive parents or a trustee or a guardianship and trusteeship authority.


In the interests of a person in respect of whom the question is raised about limiting a citizen’s legal capacity, about declaring him incompetent, or about limiting or depriving a minor aged 14 to 18 years of the right to independently dispose of his income, as well as for the purpose of the most complete and rapid clarification of the actual circumstances of the case in part 4 art. 281 of the Code of Civil Procedure establishes territorial jurisdiction, according to which an application to limit a citizen’s legal capacity, to recognize a citizen as incompetent, or to limit or deprive a minor aged 14 to 18 years of the right to independently dispose of their income is filed with the court at the place of residence of this citizen or at the place location of the psychiatric or psychoneurological institution in which he is placed.


A court decision by which a citizen is limited in legal capacity or declared incompetent is the basis for appointing a trustee for a person with limited legal capacity, and a guardian for an incompetent person. In this regard, a copy of the court decision must be sent to the guardianship and trusteeship authority within three days.


If the grounds on which a citizen was limited in legal capacity by the court no longer exist, the court, on the basis of an application from the citizen himself, his representative, a member of his family, a trustee, a guardianship and trusteeship body, a psychiatric or psychoneurological institution, makes a decision to cancel the restriction on the citizen’s legal capacity. Based on a court decision, the guardianship established over him is canceled.


If the grounds on which the citizen was declared incompetent no longer exist, the court recognizes him as legally competent. A citizen declared incompetent by the court cannot submit an application to the court with a request to restore his legal capacity, since the application submitted by the incompetent person, in accordance with clause 3 of part 1 of Art. 13 of the Code of Civil Procedure must be returned. A guardian, a family member, a psychiatric or psychoneurological institution, or a guardianship and trusteeship authority has the right to submit such an application 1 .


The court makes a decision to recognize a citizen as legally competent based on the conclusion of a forensic psychiatric examination. Based on a court decision, the guardianship established for a citizen is canceled (Part 2 of Article 286 of the Code of Civil Procedure).


Based on a court decision to restore legal capacity, the guardianship or trusteeship established over a citizen is cancelled.

The legal capacity of a citizen can 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 mental disorder cannot understand the meaning of his actions or direct them, he may be declared incompetent by the 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).

Consequences of restriction of legal capacity - deprivation by the court of a citizen of the right:

• carry out, 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 transactions;
• directly receive wages, pensions and other types of income (author's fees, remuneration for discoveries, inventions, earnings on a collective farm, amounts due for performing work under a contract, all kinds of benefits, etc.). Guardianship is established over a citizen with limited legal capacity.

Consequences of declaring a citizen incompetent:

• establishing guardianship over him and carrying out all transactions on his behalf by the guardian.

Filing an application to recognize a citizen as having limited legal capacity and incapacity

Filing an application to limit the legal capacity of a citizen, to recognize a citizen as incompetent, to limit or deprive a minor aged fourteen to eighteen years of the right to independently dispose of their income is regulated by Art. 281 Code of Civil Procedure of the Russian Federation.

The case of restricting a citizen's legal capacity due to alcohol or drug abuse may be initiated on the basis of a statement:

1. members of his family;
2. a medical organization providing psychiatric care (psychiatric or psychoneurological institution).

The case of declaring a citizen incompetent due to a mental disorder may be brought to court on the basis of a statement:

1. members of his family, close relatives (parents, children, brothers, sisters), regardless of whether they live together with him;
2. guardianship and trusteeship authority;

a medical organization providing psychiatric care (psychiatric or psychoneurological institution);

inpatient social service organization intended for persons suffering from mental disorders.

Case of restriction or deprivation of a minor at the age of fourteen to eighteen years, the right to independently dispose of their earnings, scholarships or other income can be initiated on the basis of an application:

1. parents, adoptive parents or guardian or
2. guardianship and trusteeship authority.

Application for restriction of a citizen’s legal capacity, for declaring a citizen incompetent filed in court:

• at the place of residence of this citizen;
• at the location of a psychiatric or psychoneurological institution, if the citizen is placed in such an institution.

In an application for limitation of legal capacity a citizen must be presented with circumstances indicating that a citizen who abuses alcohol or drugs puts his family in a difficult financial situation. Witness testimony may be used as such evidence. acts of the police and public organizations, certificates from medical sobering-up stations, acts of the administration on the removal of a person from work in connection with his appearance in a drunken or drug-intoxicated state, documents on family income, the number of its members, as well as other evidence.

In an application for declaring a citizen incompetent circumstances must be set out indicating that the citizen has a mental disorder, as a result of which he cannot understand the meaning of his actions or control them. Such evidence may be extracts from the medical history issued in the prescribed manner, certificates of a person’s stay in psychiatric treatment facilities, and witness statements.

In an application for restriction or deprivation of a minor at the age of fourteen to eighteen years of age the right to independently dispose of their earnings, scholarships or other income, circumstances must be set out indicating that the minor was clearly unreasonable in disposing of his earnings, scholarship or other income.

Consideration of a case on recognizing a citizen as having limited legal capacity and incapacity

A judge in preparation for the trial of a case on declaring a citizen incompetent if there is sufficient evidence of the citizen’s mental disorder appoints a forensic psychiatric examination to determine his mental state(if a citizen clearly refuses to undergo an examination, the court, in a court hearing with the participation of a prosecutor and a psychiatrist, may make a ruling on the forced referral of the citizen for a forensic psychiatric examination - Article 283 of the Code of Civil Procedure).

Application for limiting the legal capacity of a citizen, for declaring a citizen incompetent, for limiting or depriving a minor aged fourteen to eighteen years of the right to independently dispose of his earnings, scholarship or other income the court considers with the participation:

• the citizen himself,
• the applicant
• prosecutor,
• representative of the guardianship and trusteeship authority.

A citizen in respect of whom a case is being considered to declare him incompetent must be summoned to a court session, if his presence in the court session does not create a danger to his life or health or to the life or health of others, in order for the court to provide him with the opportunity to express his position in person or through their chosen representatives.

If the personal participation of a citizen in a court hearing held on the premises of the court creates a danger to his life or health or to the life or health of others, this case is considered by the court at the location of the citizen, including in the premises of a psychiatric hospital or psychoneurological institution, with the participation of the citizen himself.

The applicant’s refusal of his demand entails the termination of the proceedings (Article 220 of the Code of Civil Procedure of the Russian Federation), but does not prevent other persons specified in Art. 281 of the Code of Civil Procedure of the Russian Federation, apply to the court to limit the legal capacity of the same citizen and on the same grounds.

The applicant is exempt from paying costs related to the consideration of the application. However, the court, having established that the person who filed the application acted in bad faith for the purpose of knowingly unreasonable restriction or deprivation of the citizen’s legal capacity, recovers from such person all costs associated with the consideration of the case.

A citizen declared incompetent has the right, personally or through representatives chosen by him, to appeal the relevant court decision in the manner of filing an application for its review in accordance with the rules of Chapter 42 of the Code of Civil Procedure of the Russian Federation (review of court decisions that have entered into legal force due to newly discovered or new circumstances), and also appeal the corresponding court decision in cassation and supervisory procedures, if the court of first instance did not provide this citizen with the opportunity to express his position personally or through representatives chosen by him.

Court decision on an application to limit the legal capacity of a citizen, to recognize a citizen as incompetent

A court decision by which a citizen is limited in legal capacity, is the basis for appointing a trustee for him

A court decision by which a citizen is declared incompetent is the basis for appointing a guardian guardianship and trusteeship authority.

In accordance with Art. 34 of the Civil Code of the Russian Federation, the court is obliged, within 3 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

If the grounds on which the citizen was limited in legal capacity (recognized as incompetent) no longer exist, the court cancels the restriction of his legal capacity (Articles 29, 30 of the Civil Code of the Russian Federation) on the basis of an application from the citizen himself, his representative, a member of his family, a trustee, guardianship authority, psychiatric or psychoneurological institution. Based on a court decision, the guardianship (guardianship) established over him is cancelled.

An application to recognize a citizen as legally competent is considered by the court in the manner established by Article 284 of the Code of Civil Procedure of the Russian Federation.