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Legal capacity, legal capacity, legal personality, delictual capacity.

Legal capacity - the ability of a citizen, organization or public legal entity established by law to be a bearer of subjective rights and legal obligations.

The ability to be a subject of law as such is usually called “general legal capacity,” which is recognized for citizens from the moment of their birth, and for legal entities and public legal entities from the moment of their creation.

Industry legal capacity - the legal ability of a person to be a subject of relations in a particular branch of law. In each branch of law, the moment of emergence of legal capacity and the scope of potential rights (content of legal capacity) may be different.

Special legal capacity - the ability of a person to be a participant in legal relations arising in connection with the occupation of certain positions (president, judge, member of parliament), or the person’s belonging to certain categories of subjects of law (employees of a number of vehicles, law enforcement agencies, etc.).

The emergence of special legal capacity is determined by the fulfillment of special requirements or the occurrence of certain circumstances. (For example, a judge in the Russian Federation may be a person with a higher legal education, certain practical experience, and at least 25 years of age. To be elected to the position of President of the United States, birth in the United States is required (not only on the land territory of the state itself, but, for example , on a ship sailing under the American flag), US citizenship, reaching 35 years of age and permanent residence in the United States for at least 14 years.

Legal capacity - the ability of a person to acquire and exercise rights and obligations through his actions. According to Art. 60 of the Constitution of the Russian Federation, full legal capacity arises when a person reaches the age of majority.

The legal capacity of citizens is the ability of a citizen, through his actions, to acquire and exercise civil rights, to create civil responsibilities for himself and to fulfill them, which arises with the onset of adulthood, that is, upon reaching the age of eighteen (Civil Code of the Russian Federation, Art. 21). It should be taken into account that, with the exception of certain cases and in the manner prescribed by law, no one can be limited in both legal capacity and legal capacity. If the restriction of legal capacity and (or) legal capacity occurred after the publication of the corresponding act of a state body or other bodies, then this entails the invalidity of this act.

Capacity presupposes a person's awareness of his actions. The concept of legal capacity consists of several elements: the ability of a person to personally exercise his rights, assume responsibilities and acquire new rights.

Civil capacity

Civil legal capacity is distinguished as a type of legal capacity, which presupposes civil rights and obligations and is mostly regulated by the Civil Code of the Russian Federation. Classifies civil legal capacity according to the Civil Code as follows. Up to 6 years of age, a child is considered completely incompetent, which does not mean that he does not have legal capacity, since legal capacity arises from the moment of birth. From 6 years to 14 persons are considered minors by the Civil Code, but at the same time the Civil Code assigns to them the legal capacity of minors, which means:

1) small household transactions, that is, transactions aimed at satisfying everyday needs, are usually executed when they are executed and are insignificant in amount

2) transactions aimed at obtaining benefits free of charge, which do not require registration or notarization

3) transactions for the disposal of funds provided by a legal representative or, with the latter’s consent, by a third party for a specific purpose or free disposal

It should also be noted that minors do not have civil tort capacity, that is, they cannot be held responsible for their actions. A guardian is appointed as a representative for persons under 14 years of age.

Persons aged 14 to 18 years are considered partially capable, since they can enter into transactions only with the written consent of their parents or legal representatives. However, a partially capable person can exercise a number of rights independently:

Freely manage your earnings and scholarships

Make deposits in credit institutions

From the age of 16 a person can be a member of a cooperative

Take responsibility for your own actions

Legal capacity arises in full from the age of 18. According to Art. 21 clause 2 of the Civil Code, a person who has reached the age of majority bears full responsibility for his actions, while the Civil Code establishes two cases of the onset of legal capacity before the 18th birthday: 1) emancipation of a person under 16 years of age carrying out labor or entrepreneurial activity and 2) entry of a minor into marriage. Emancipation occurs by giving the consent of the minor, both parents or representatives of the person, followed by the adoption of a decision by the guardianship and trusteeship authorities or the court.

If a citizen, due to a mental disorder, cannot understand the meaning of his actions or control them, he may be declared incompetent by the court. A case to declare a citizen incompetent can be initiated upon the application of family members, the prosecutor, guardianship and trusteeship authorities, a psychiatric hospital and other persons specified in Art. 281 Code of Civil Procedure. To determine the mental state of a person, a forensic examination is ordered.

Legal capacity cannot be limited except in cases provided for by law. The court may limit the rights of partially capable persons. In cases where a marriage with a minor is dissolved, the court may limit the legal capacity of the minor ex-spouse. Or a person may be limited in legal capacity if his actions put his family in a difficult financial situation.

The civil capacity of a foreign person is determined by the personal law of the individual.

Conditions for having legal capacity

Civil capacity is achieved in full:

When a citizen reaches the age of eighteen

From the time of marriage until the age of 18, in cases where this is permitted by law;

Since emancipation

One of the conditions for having legal capacity is the presence of will

Legal personality - a legal category, which refers to the ability of an individual or legal entity to have and exercise, directly or through their representatives, legal rights and obligations, that is, to act as a subject of legal relations.

Characteristic

Each branch of law has special rules, the purpose of which is to establish the circle of persons who are subject to the rules of this branch. This is done by listing the characteristics, indicating the qualities that subjects must possess in order to act as recipients of industry norms. The set of qualities established by the rules of law, which gives the subject the opportunity to be a bearer of legal rights and obligations, is called legal personality.

Legal personality is a socio-legal property of persons: it has two sides - social and legal. The social side of legal personality is expressed in the fact that the legislator cannot choose the characteristics of subjects of law arbitrarily - they are dictated by life itself, the needs and laws of social development. Its legal side is that the characteristics of subjects of law must necessarily be enshrined in legal norms.

In the theory of law, there is a fairly well-founded point of view, which consists in the fact that legal personality can be considered as a kind of subjective legal right - “the right to the right”, existing within the framework of the so-called general (general regulatory) legal relations along the lines of the norms of constitutional law. Indeed, the nature of legal personality, common to subjective law, is evident here - legal personality also represents a certain legal possibility.

Structure

Legal personality is divided into legal capacity and legal capacity. Legal capacity, in turn, is divided into delictual capacity and transaction capacity.

Legal capacity - this is the legal ability of a person to have subjective legal rights and obligations, that is, to be a participant in a legal relationship. Thus, legal capacity alone may be sufficient to be a party to a legal relationship. Thus, in modern jurisdictions, the general civil legal capacity of an individual arises at the moment of his birth, and an infant can be a participant in a civil legal relationship (for example, a legal relationship of inheritance).

Capacity - this is the ability, conditioned by law, to acquire, through one’s own actions (inaction), subjective legal rights and obligations, to exercise and terminate them.

Tortibility is the ability to bear legal responsibility for one’s actions.

Legal capacity and legal capacity are two sides of the same phenomenon - legal personality, which by its nature is a single legal capacity. The real separation of legal personality into legal capacity and legal capacity occurs mainly in the field of civil law, and then not for all subjects (the civil legal personality of organizations is the same).

Legal personality can be general (the ability to be a subject of law in general), sectoral (the ability to be a subject of law in certain socio-legal relations) and special (for example, the legal personality of legal entities).

The initial legal status of subjects is characterized by the concept of “legal status”. It is broadest among citizens and consists of legal personality and constitutional rights and obligations, which, according to the Constitution of the Russian Federation, form the basis of the legal status of an individual and are directly applicable (Chapter 2 of the Constitution of the Russian Federation). The legal status of citizens of the Russian Federation is equal for everyone.

The word “status” translated from Latin means “state”, “position”. Nevertheless, in the literature it is proposed not to distinguish the concept of “legal status” along with the concept of legal status. Such an addition makes sense if by “legal position” we understand the specific legal position of the subject, which is determined both by its legal status and by the set of specific legal relations in which it consists.

Tortibility - the ability of a person to independently bear responsibility for harm caused by his unlawful act (action or inaction). It is an element of legal capacity. It is expressed in the subject’s ability to independently recognize his act and its harmful results, to be responsible for his unlawful acts and bear legal responsibility for them. It begins at the age of 16, although according to Article 20 of the Criminal Code of the Russian Federation there are crimes for which responsibility begins at the age of 14 (against the person, property, etc.).

Tort capacity - in Civil Law is an element of legal personality, and means - to bear responsibility for committed offenses.

Legal personality is a complex phenomenon in structure (see intellectual map 11-03). Within it, three types of opportunities are distinguished: 1) to have certain rights and obligations (legal capacity); 2) personally carry them out (capacity); 3) personally responsible for what they have done (tort).

The pre-revolutionary Russian lawyer E.V. Vaskovsky very expressively explained the concept of legal capacity: “The physical and spiritual development of a person runs parallel to his age. A normal person reaches full maturity between the ages of twenty and thirty. From now on he must be granted full legal capacity. But since for practical purposes it is very important to accurately determine the moment from which a person receives the right to personally carry out legal activities, the legislation should indicate this moment. Everywhere it is called coming of age, but not everywhere it coincides with the same moment. Roman law established the age of 25 for him... Most modern (at that time - V.I.) legislation, including our X volume (Code of Laws - V.I.) reduced the age of majority to 21 years. Only Austrian stopped at 24 years... and Spanish at 23...

Upon reaching adulthood, a person acquires full legal capacity. But it would be inappropriate if before this moment he was completely deprived of it. Then it would turn out that a one-year-old child is in the same legal position as a twenty-year-old youth. Therefore, it is incomparably more reasonable to grant a person legal capacity not immediately, but little by little, as he develops, gradually expanding its scope. For this purpose, Roman law, followed by Prussian... and Austrian... divided the period of minority into three parts (from birth to 7 years, from 7 years to 14, from 14 to adulthood) and associated an increase in age with each of these periods. capacity."

So, the distinction between legal capacity, legal capacity and delinquent capacity reflects the level of “social maturity” of a person, the degree of readiness to participate in legal relations and is associated with his age. In some branches of law, legal capacity, legal capacity and delictual capacity appear together, inseparably, in unison. In other industries they split.

For example, in civil law, a citizen’s legal capacity arises in full at the moment of birth and ends at death. Civil capacity, on the contrary, arises in a citizen “in stages”: minors under 14 years of age (juveniles) can make small household and some other transactions. Parents, adoptive parents and guardians are responsible for the transactions of a minor, including they are responsible for harm caused to minors, unless they prove that the harm was not their fault (Article 28 of the Civil Code of the Russian Federation). A minor aged 14 to 18 years has the right to make small household transactions, manage his earnings, scholarships, and other income, make deposits in credit institutions and manage them. Other transactions of a minor are made with the written consent of his legal representatives - parents, adoptive parents or guardian. A minor under 18 years of age may be recognized as fully capable if he is married, works under a contract or employment agreement, or is engaged in entrepreneurial activity (Art.

26, 27 of the Civil Code of the Russian Federation).

Let's go back to the example above for a moment. A nine-year-old teenager who stole a bus does not have civil capacity and cannot be personally responsible for the harm he caused. The parents and, possibly, the educational institution that left the teenager unsupervised will be held accountable for this, unless they prove in court that the harm was not their fault.

The legal personality of a citizen under labor law as an employee arises from the age of 16, while legal capacity, legal capacity and tortious capacity arise simultaneously (no one will exercise your labor rights and responsibilities for you). Citizens who have reached 18 years of age, as well as persons under 18 years of age, have the right to act as employers from the date they acquire full civil capacity (Article 20 of the Labor Code of the Russian Federation).

Legal personality in family law arises, as a general rule, from the age of 18 or, if there are good reasons, from the age of 16 (Article 13 of the Family Code of the Russian Federation). In this case, legal capacity, legal capacity and delictual capacity arise simultaneously.

The legal capacity and capacity of citizens in certain cases may be limited.

For example, administrative law prohibits a civil servant from engaging in certain types of activities (including entrepreneurship).

A citizen who, due to a mental disorder, does not understand the meaning of his actions or cannot direct them, may be declared legally incompetent (Article 29 of the Civil Code of the Russian Federation). The legal capacity of citizens can be limited in court if the citizen abuses alcohol, drugs and puts the family in a difficult financial situation (Article 30 of the Civil Code of the Russian Federation).

Criminal law provides for punishment for certain types of crimes in the form of deprivation of the right to hold certain positions or engage in certain activities (Article 47 of the Criminal Code of the Russian Federation). This is a limitation on the legal capacity of a citizen.

We must be well aware that restriction of legal capacity and legal capacity is an exceptional phenomenon, since in this case it is not the specific rights and responsibilities of a citizen that are limited, but the very ability to have them. Such restrictions, of course, significantly infringe on individual freedom, and therefore are allowed in exceptional cases and only in court.

Can a citizen himself renounce his legal capacity? Sometimes such attempts are made (for example, a young man signs an obligation to his parents to marry within a year, acquire a certain profession, go to live in a certain city). These are self-limitations of one’s legal capacity; they can be treated differently, but such obligations have no legal significance (Article 22 of the Civil Code of the Russian Federation).

Legal capacity — the legally established ability of a citizen, organization or public legal entity to be a bearer of subjective rights and legal obligations.

The ability to be a subject of law as such is usually called “general legal capacity,” which is recognized for citizens from the moment of their birth, and for legal entities and public legal entities from the moment of their creation.

Industry legal capacity — the legal ability of a person to be a subject of relations in a particular branch of law. In each branch of law, the moment of emergence of legal capacity and the scope of potential rights (content of legal capacity) may be different.

Special legal capacity - the ability of a person to be a participant in legal relations arising in connection with the occupation of certain positions (president, judge, member of parliament), or the person’s belonging to certain categories of subjects of law (employees of a number of vehicles, law enforcement agencies, etc.).

The emergence of special legal capacity is determined by the fulfillment of special requirements or the occurrence of certain circumstances. (For example, a judge in the Russian Federation may be a person with a higher legal education, certain practical experience, and at least 25 years of age. To be elected to the position of President of the United States, birth in the United States is required (not only on the land territory of the state itself, but, for example , on a ship sailing under the American flag), US citizenship, reaching 35 years of age and permanent residence in the United States for at least 14 years.

Legal capacity- the ability of a person to acquire and exercise rights and obligations through his actions. According to Art. 60 of the Constitution of the Russian Federation, full legal capacity arises when a person reaches the age of majority.

The legal capacity of citizens is the ability of a citizen, through his actions, to acquire and exercise civil rights, to create civil responsibilities for himself and to fulfill them, which arises with the onset of adulthood, that is, upon reaching the age of eighteen (Civil Code of the Russian Federation, Art. 21). It should be taken into account that, with the exception of certain cases and in the manner prescribed by law, no one can be limited in both legal capacity and legal capacity. If the restriction of legal capacity and (or) legal capacity occurred after the publication of the corresponding act of a state body or other bodies, then this entails the invalidity of this act.

Capacity presupposes a person's awareness of his actions. The concept of legal capacity consists of several elements: the ability of a person to personally exercise his rights, assume responsibilities and acquire new rights.

Civil capacity

Civil legal capacity is distinguished as a type of legal capacity, which presupposes civil rights and obligations and is mostly regulated by the Civil Code of the Russian Federation. Classifies civil legal capacity according to the Civil Code as follows. Up to 6 years of age, a child is considered completely incompetent, which does not mean that he does not have legal capacity, since legal capacity arises from the moment of birth.

From 6 years to 14 persons are considered minors by the Civil Code, but at the same time the Civil Code assigns to them the legal capacity of minors, which means:

1) small household transactions, that is, transactions aimed at satisfying everyday needs, are usually executed when they are executed and are insignificant in amount

2) transactions aimed at obtaining benefits free of charge, which do not require registration or notarization

3) transactions for the disposal of funds provided by a legal representative or, with the latter’s consent, by a third party for a specific purpose or free disposal

It should also be noted that minors do not have civil tort capacity, that is, they cannot be held responsible for their actions. A guardian is appointed as a representative for persons under 14 years of age. Persons aged 14 to 18 years are considered partially capable, since they can enter into transactions only with the written consent of their parents or legal representatives.

However, a partially capable person can exercise a number of rights independently:

Freely manage your earnings and scholarships

Make deposits in credit institutions

From the age of 16 a person can be a member of a cooperative

Take responsibility for your own actions

Legal capacity arises in full from the age of 18. According to Art. 21 clause 2 of the Civil Code, a person who has reached the age of majority bears full responsibility for his actions, while the Civil Code establishes two cases of the onset of legal capacity before the 18th birthday: 1) emancipation of a person under 16 years of age carrying out labor or entrepreneurial activity and 2) entry of a minor into marriage. Emancipation occurs by giving the consent of the minor, both parents or representatives of the person, followed by the adoption of a decision by the guardianship and trusteeship authorities or the court.

If a citizen, due to a mental disorder, cannot understand the meaning of his actions or control them, he may be declared incompetent by the court. A case to declare a citizen incompetent can be initiated upon the application of family members, the prosecutor, guardianship and trusteeship authorities, a psychiatric hospital and other persons specified in Art. 281 Code of Civil Procedure. To determine the mental state of a person, a forensic examination is ordered.

Legal capacity cannot be limited except in cases provided for by law. The court may limit the rights of partially capable persons. In cases where a marriage with a minor is dissolved, the court may limit the legal capacity of the minor ex-spouse. Or a person may be limited in legal capacity if his actions put his family in a difficult financial situation.

The civil capacity of a foreign person is determined by the personal law of the individual.

Conditions for having legal capacity

Civil capacity is achieved in full:

When a citizen reaches the age of eighteen

From the time of marriage until the age of 18, in cases where this is permitted by law;

Since emancipation

One of the conditions for having legal capacity is the presence of will.

Legal personality — a legal category, which refers to the ability of an individual or legal entity to have and exercise, directly or through their representatives, legal rights and obligations, that is, to act as a subject of legal relations.

Characteristic

Each branch of law has special rules, the purpose of which is to establish the circle of persons who are subject to the rules of this branch. This is done by listing the characteristics, indicating the qualities that subjects must possess in order to act as recipients of industry norms. The set of qualities established by the rules of law, which gives the subject the opportunity to be a bearer of legal rights and obligations, is called legal personality.

Legal personality is a socio-legal property of persons: it has two sides - social and legal. The social side of legal personality is expressed in the fact that the legislator cannot choose the characteristics of subjects of law arbitrarily - they are dictated by life itself, the needs and laws of social development. Its legal side is that the characteristics of subjects of law must necessarily be enshrined in legal norms.

In the theory of law, there is a fairly well-founded point of view, which is that legal personality can be considered as a kind of subjective legal right - “the right to the right”, existing within the framework of the so-called general (general regulatory) legal relations along the lines of the norms of constitutional law. Indeed, the nature of legal personality, common to subjective law, is evident here - legal personality also represents a certain legal possibility.

Structure

Legal personality is divided into legal capacity and legal capacity. Legal capacity, in turn, is divided into delictual capacity and transaction capacity.

Legal capacity - this is the legal ability of a person to have subjective legal rights and obligations, that is, to be a participant in a legal relationship. Thus, legal capacity alone may be sufficient to be a party to a legal relationship. Thus, in modern jurisdictions, the general civil legal capacity of an individual arises at the moment of his birth, and an infant can be a participant in a civil legal relationship (for example, a legal relationship of inheritance).

Capacity- this is the ability, conditioned by law, to acquire subjective legal rights and obligations through one’s own actions (inaction), to exercise and terminate them.

Tortibility is the ability to bear legal responsibility for one’s actions.

Legal capacity and legal capacity are two sides of the same phenomenon - legal personality, which by its nature is a single legal capacity. The real separation of legal personality into legal capacity and legal capacity occurs mainly in the field of civil law, and then not for all subjects (the civil legal personality of organizations is the same).

Legal personality can be general (the ability to be a subject of law in general), sectoral (the ability to be a subject of law in certain socio-legal relations) and special (for example, the legal personality of legal entities).

The initial legal status of subjects is characterized by the concept of “legal status”. It is broadest among citizens and consists of legal personality and constitutional rights and obligations, which, according to the Constitution of the Russian Federation, form the basis of the legal status of an individual and are directly applicable (Chapter 2 of the Constitution of the Russian Federation). The legal status of citizens of the Russian Federation is equal for everyone.

The word “status” translated from Latin means “state”, “position”. Nevertheless, in the literature it is proposed not to distinguish the concept of “legal status” along with the concept of legal status. Such an addition makes sense if by “legal position” we understand the specific legal position of the subject, which is determined both by its legal status and by the set of specific legal relations in which it consists.

Tortibility - the ability of a person to independently bear responsibility for harm caused by his unlawful act (action or inaction). It is an element of legal capacity. It is expressed in the subject’s ability to independently recognize his act and its harmful results, to be responsible for his unlawful acts and bear legal responsibility for them. It begins at the age of 16, although according to Article 20 of the Criminal Code of the Russian Federation there are crimes for which responsibility begins at the age of 14 (against the person, property, etc.).

Tort capacity - in Civil Law is an element of legal personality, and means - to bear responsibility for committed offenses.

Legal capacity is the ability of a person to have subjective legal rights and obligations, recognized by legal norms. All citizens, without exception, have legal capacity equally; it arises at the moment of their birth and ends with death.

In modern civilized society there are not, and cannot be, people who are not endowed with general legal capacity. This is the most important prerequisite and an integral element of the political, legal and social status of an individual. Legal capacity is not a natural, but a socio-legal quality of subjects, which is absolute and universal in nature. It follows from international covenants on human rights, the principles of humanism, freedom, and justice. It is the duty of every State to duly guarantee and protect this quality.

The main thing in legal capacity is not rights, but the fundamental possibility or ability to have them. And this is very important, as mentioned above in history, not everyone was and was not always endowed with such an opportunity (for example, slaves) or were endowed only partly (serfs). And this is official, “according to the law.”

The concept of legal capacity was first formulated and put into practice by bourgeois codes in the 19th century (French Civil Code of 1804, German Civil Code of 1896). By this time, English civil law also used the category of legal capacity. As we can see, the institution in question owes its origin to civil legislation, but later it acquired a broader meaning.

“The ruthless inequality that exists in real life receives some mitigation in law when, for example, all people are declared legally capable - sick and healthy, old and young, poor and rich, noble and ignorant.” This was a step towards establishing basic legal justice and eliminating social discrimination.

But legal capacity in itself does not provide any real benefit. This is only “right to right”, i.e. the right to have a right, and the latter opens the way to possessing this or that good, performing certain actions, and making claims. It is impossible, on the basis of legal capacity alone, to demand anything other than recognition as an equal member of society.

The difference between legal capacity and subjective right is that it: a) is inseparable from the personality, a person cannot be deprived of legal capacity, taken away, taken away from him or limited; b) does not depend on gender, age, profession, nationality, place of residence, property status and other life circumstances; c) non-transferable, it cannot be delegated to others; d) in relation to subjective law, it is primary, initial, plays the role of a prerequisite; e) subjective right is concrete, and legal capacity is abstract.

In the concept of legal capacity, the essence is not “right”, but “ability”. Legal capacity cannot be considered as a summary expression of the rights and obligations that a given person may have, because such a summary expression is given in the law itself. In this sense, legal capacity, as E.A. Fleishitz aptly put it, is blanket.

The fact that the opportunity to possess certain specific rights does not appear to a citizen immediately, not from the day of birth, but later, upon reaching a certain age or upon the occurrence of other conditions, is not decisive. The difference in the occurrence of rights over time changes the essence of legal capacity. Equality of legal capacity does not mean that its volume is the same for everyone.

The universality of legal capacity lies in the fact that state power from the very beginning endows all its citizens with one common property - the legal ability to be bearers of the corresponding rights and obligations from those provided for by law. And the fact that the actual possibility of possessing certain rights due to different reasons occurs at different times does not make legal capacity different. This is where international law comes from.

However, being a universal category, legal capacity manifests itself in different branches of law in different ways. Even its meaning and role in the relevant areas of legal regulation are not the same. This is where doubts and disputes often arise regarding the universal nature of legal capacity.

Of course, one or another person cannot be the bearer of all existing rights at the same time. However, the ability to do this is not in any doubt. Subject to appropriate conditions, everyone can become the owner of any rights permitted by law. If a given citizen at a given time has rights that another does not have, this does not mean that they have different legal capacity. Their legal capacity is the same, the range of rights and responsibilities is different.

At the same time, there is nothing contradictory in the fact that a person, having legal capacity, also has by law a number of general permanent rights, which are his subjective rights. It would be a mistake to assume that legal capacity is not needed in this case. It is not superfluous when it comes to the natural, inalienable rights of citizens inherent in them from birth.

Let me emphasize once again that legal capacity is not the sum of some rights, not their quantitative expression, but an indispensable and permanent civil status of an individual, an element of its legal status, a prerequisite for ownership of rights. The term “legal capacity” itself very accurately conveys the meaning of this concept.

Legal capacity exists where there is general legal regulation, a legal environment. This quality cannot be changed; it cannot be made larger or smaller. It is impossible to recognize someone as incompetent, but only incompetent. Once the subject is endowed with legal capacity, then in full and until the end of his days, and not temporarily.

Each person is born capable of possessing rights, can and should have the rights he needs, recognized by the world community and the legal systems of national states (the right to life, freedom, health, honor, dignity, security, etc.). This ability (possibility) cannot be terminated or “cancelled” by anyone and under no circumstances. Any citizen, including minors, firmly knows that he has legal capacity and, therefore, can become a bearer (now or in the future) of the corresponding rights and freedoms.

The main thing here is not to confuse the ability to possess rights with possession itself. “Legal capacity only means that a person can have certain rights, but this does not mean that he actually possesses them. Everyone is capable of having the right of ownership of property, but it does not follow from this that he already has it.”

There are general, sectoral and special legal capacity.

General represents the fundamental possibility of a person to have any rights and obligations from among those provided for by current legislation, although the actual possession of these and other rights can occur, as already mentioned, only under certain conditions. In our legislation there is no definition of general legal capacity, but only civil one. But in science, the general theory of law, it has developed.

Industry-specific legal capacity makes it possible to acquire rights in certain branches of law. That is why it is called industry. For example, marriage, labor, election.

Special (official, professional) legal capacity is a legal capacity that requires special knowledge or talent. For example, judges, doctors, scientists, artists, musicians, etc.

The legal capacity of organizations and legal entities is also special; it is determined by the goals and objectives of their activities, recorded in the relevant charters and regulations. It arises at the moment of creation of an organization and ceases with its liquidation.

Legal capacity is not only the ability of a subject to have rights and obligations, but also the ability to exercise them through his personal actions, be responsible for the consequences, and be a participant in legal relations. Legal capacity depends on the age and mental state of the person, while legal capacity does not depend on the specified circumstances. Full legal capacity occurs from the moment of majority, i.e. upon reaching the age of 18.

If legal capacity accompanies an individual throughout his life, then legal capacity is only from a certain age. Young children under 14 years of age and mentally ill persons, who may have certain rights, but cannot exercise them, do not have legal capacity. Their legal representatives - parents, guardians, trustees - act on their behalf.

Minors aged 14 to 18 years can carry out necessary civil transactions only with the written consent of their parents, adoptive parents or trustees. However, they have the right to independently carry out small household transactions, manage their earnings, scholarships and other income, exercise copyright and invention rights, and make deposits in credit institutions (Article 22 of the Civil Code of the Republic of Kazakhstan).

Criminal liability for teenagers for intentional crimes committed by them begins at the age of 14.

Legal capacity can be full, partial or limited. Full, as already mentioned, comes with adulthood, partial - from the age of 14, and limited legal capacity - when a person is limited in legal capacity by court (chronic alcoholics, drug addicts).

The civil code introduced the concept of emancipation. This means that a minor who has reached the age of 16 can be declared fully capable if he works under an employment contract, including a contract, or is engaged in entrepreneurial activity with the consent of his parents.

Emancipation is carried out by decision of the guardianship authority with the consent of both parents, adoptive parents, or in the absence of such consent - by court decision.

Parents, adoptive parents and trustees are not liable for the obligations of an emancipated minor, in particular for obligations arising as a result of harm caused to them.

Legal personality is legal capacity and legal capacity taken together, i.e. legal capacity. This unifying concept reflects those situations when legal capacity and legal capacity are inseparable in time, organically merge together, for example, in organizations or adults, when they are both legal and capable at the same time. There are no legal but incapable collective subjects. The distinction between these properties does not apply to them.

Many rights of citizens are non-transferable; they cannot be exercised by another person on behalf of an incapacitated person (for example, to get married, get an education, enter into an employment contract, etc.). Unlike property rights, they must be realized by the owner himself.

From this point of view, all rights can be divided into those requiring personal participation in their implementation and those that do not. In the first case, i.e. in most branches of law, the separation of legal capacity and legal capacity is devoid of practical meaning; in the second, i.e. in the scope of civil law, it is justified and necessary.

It is unthinkable that a subject would have, for example, marriage, labor, or voting rights, but would be deprived of similar legal capacity. Here both of these qualities appear as a single whole. On the contrary, in property legal relations, a creditor can collect a debt due to him, not necessarily personally, as well as buy, sell something, fulfill an obligation, or make this or that transaction. Here, legal capacity and legal capacity may not coincide in one person.

Legal personality is a collective category. According to some scientists, it includes 4 elements: 1) legal capacity; 2) legal capacity; 3) capacity for delict, i.e. ability to answer for civil offenses (torts); 4) sanity is a condition of criminal liability. Although the last two terms are ultimately covered by the second, such a division of the concept can contribute to a deeper understanding of it.

In general, legal personality is one of the mandatory legal prerequisites for legal relations. Legal personality is the possibility or ability of a person to be a subject of law with all the ensuing consequences.

Legal capacity is the ability of a citizen to have civil rights and bear certain responsibilities. It is legal capacity that is a prerequisite for the possession of specific subjective rights, which arise only in the presence of certain legal facts, actions and events.

Legal capacity is also understood as the general (in other words, abstract) ability recognized by the state to have rights and obligations established by law, the ability to be their bearer.

Legal capacity differs from subjective law in that it:

1) is not separated from the individual. A person cannot be deprived of legal capacity, taken away from him or limited in its effect;

2) does not depend on age, gender, profession, nationality, property status, etc.;

3) cannot be delegated to others;

4) is primary in relation to subjective law, and also initial, i.e. plays the role of a prerequisite;

5) it is abstract, and subjective right is concrete.

Capacity- this is the ability of a subject, through his own actions, to acquire and exercise rights, create responsibilities for himself and fulfill them. The concept of legal capacity is based on the fact that all subjects of law are healthy and their degree of development is established as they grow older. Legal capacity is divided into general and special.

For natural reasons, legal capacity and legal capacity do not always coincide. All people have legal capacity, although not all of them have legal capacity at the same time. Moreover, all capable people are not legally capable.

Full legal capacity– the ability to exercise all rights and obligations without exception. Full legal capacity occurs when a person reaches the age of eighteen.

Partial capacity There are two degrees: the first degree is the legal capacity of minors from 6 to 14 years old. Transactions can be made on their behalf only by their parents, adoptive parents or guardians. The second degree of partial legal capacity is the legal capacity of minors from 14 to 18 years of age. In accordance with the law, they can make all transactions of minors and manage their income, exercise copyrights, make deposits in credit institutions, and from the age of 16 they can be members of a cooperative.

Legal personality includes four elements:

1) legal capacity is the ability of a subject, enshrined in legislation, to have legal rights and bear legal responsibilities. It begins with the birth of an individual and ends with death. Legal capacity is not a natural property of a person, but is generated by objective law;

2) legal capacity;

3) tort– this is a person’s ability to answer for civil offenses;

4) legal personality is determined using legal norms that establish basic and initial rights and obligations. There is also a special legal personality, which provides for a different legal status, in contrast to ordinary subjects. Thus, in particular, deputies, candidates for deputies, and heads of the election commission can be considered subjects with special legal personality.