Current legislation clearly separates the legal capacity of minors and minors . The former include citizens under 14, and the latter, from 14 to 18 years. The legal capacity of minors and subjects of 14-18 years is partial (incomplete). Further consider what this means.
General characteristics of the concept
Partial legal capacity of minors under 14 years of age is also called limited. It is characterized by the fact that a citizen can acquire and exercise not just any, but only individual duties and rights that are directly defined in the law.
You must understand that you can limit only those legal possibilities that the subject already has. If a minor is recognized as incompetent, then this is not a limitation, since previously a citizen at a young age did not have legal capacity at all.
The difference between minors and minors
According to general rules, an adult in the Russian Federation is a citizen who has reached 18 liters. With the onset of this age, the subject, according to the Constitution, gains the ability and opportunity to exercise all his rights and bear his duties as an adult, that is, in full.
In the current legislation, the term "underage" is not disclosed. However, based on the analysis of the wording enshrined in the Civil Code, citizens under the age of 14 years are referred to this category of entities. Moreover, in minors under 6 years of age there is no legal capacity . By virtue of their age, they cannot give an account of the actions performed by them, as well as lead them.
Partial legal capacity of minors
There is a special article in the Civil Code defining its features - Art. 28. It should be said that in different countries the lower threshold for the limited capacity of children is different. So, in the Czech Republic, Armenia, Uzbekistan - this is 6 years, in Turkmenistan, Germany, Estonia - 7, in Costa Rica - 15 years.
According to Art. 28, the partial legal capacity of minors from 6 to 14 years old suggests that only their legal representatives can carry out transactions in the interests of these persons. A number of regulations contain provisions that confirm and specify this rule.
So, the procedure for real estate transactions, their state registration is defined in the Methodological Recommendations approved by Order of the Ministry of Justice No. 184 of 2002. Clause 13 states, in particular, that applications for state registration of transactions with real estate on behalf of citizens who have not reached 14 l., their legal representatives may submit. These include parents, guardians, adoptive parents.
The authority of legal representatives is confirmed by relevant documents. For parents / adoptive parents, this is a certificate issued by the civil registry office, for guardians - a document issued by the guardianship and guardianship authority.
Limitations
Establishing the partial legal capacity of minors , the legislator provides for a series of prohibitions for legal representatives. In accordance with paragraph 2 of article 37 of the Civil Code, adoptive parents, parents, guardians cannot make transactions related to alienation, including donation and exchange of property of a ward without the consent of the guardianship and guardianship authority. A similar rule applies in the case of leasing of property, pledge, gratuitous use, transactions that entail a waiver of rights belonging to the minor, division of property / allocation of a share from it, as well as other actions involving a decrease in the amount of material assets belonging to the minor to 14 l Property management rules are enshrined in Federal Law No. 48.
In addition, transactions between legal representatives, their spouses, close relatives and a minor are not allowed. An exception is the transfer of property to a child as a gift or for free use. Parents, guardians, adoptive parents cannot represent the interests of the ward in the conduct of legal proceedings or the conclusion of transactions between the minor and the spouse of the guardian / guardian, as well as their relatives.
It should be noted that when applying this rule, there is a conflict: the parent, adoptive parent, guardian act both as the donor / lender and the donee / borrower. On the basis of paragraph 3 of clause 182 of the Civil Code, the representative is not entitled to enter into transactions on behalf of the person represented in relation to himself. There are no exceptions to this rule.
Real estate transactions
The provisions of para. 2 1 of paragraph 28 of the article, regulating the features of limited legal capacity of minors up to 14 years old , became the subject of a complaint to the Constitutional Court. The application was submitted by a citizen to whom the guardianship and guardianship authority refused to issue permission to conclude a transaction for the sale of a residential property owned by a child because of its inconsistency with the interests of the minor. However, the complaint was not accepted. In its determination, the COP indicated the following.
Special rules for concluding transactions with property belonging to the latter by parents acting as legal representatives of children are aimed at protecting the interests and rights of minors, whose legal capacity is limited by law. Consequently, this special procedure cannot be considered as violating the provisions of Article 35 of the Constitution. In this norm, in particular, it is established that every citizen has the right to own, use, dispose of property both independently and jointly with other persons. The specified special rules also cannot be recognized as contradicting Article 55 of the Constitution. It allows the restriction of the freedoms and rights of individuals to ensure the protection of the interests of other citizens.
The content of Articles 28 and 37, contrary to the plaintiff’s opinion, does not imply the possibility of guardianship and trusteeship bodies to prohibit transactions related to the alienation of property of a ward in an arbitrary manner. The indicated structures, on the contrary, in deciding the relevant issues should be guided by the general principles and requirements of Articles 17 and 38 of the Constitution and proceed from the conscientiousness of parents of minors, whose legal capacity is limited by law.
Children's guarantees
The incomplete legal capacity of minors does not affect their ownership, the ability to become a shareholder, a participant in an LLC or other business entity.
On the basis of paragraph 3 of paragraph 60 of Article SK, the child receives the right of ownership to the income received by him, property transferred to him as a gift or by inheritance, as well as to other values acquired with his funds.
Possibilities of a minor
Article 28 sets out a list of transactions that a child under 14 can make independently. Among them, in particular, small domestic transactions. The legislation does not disclose their concepts, however, an analysis of practice allows us to formulate their main features. Small deal:
- Must be a small amount. When determining a small transaction, it is not family income that is taken into account, but the age of the minor. It seems that, by analogy with Article 575 of the Civil Code, 5 minimum wages can be used as an approximate amount.
- Must match the age of the face.
- Should not cause moral and physical harm to the child.
Gratis Benefit
It is referred to in sub. 2 2 paragraph 28 of the Civil Code. The law allows the execution by a minor of transactions related to gratuitous benefits and not requiring notarization or state registration. Contracts, the registration of which is mandatory, include the alienation of real estate (in this case, donation).
For the contract of donation of transport state registration is not required. Vehicle registration is a purely technical procedure that has accounting value. Ownership of transport arises from the acquirer at the time of transfer of the object in accordance with the contract, and not when registering with the traffic police. Logically, this kind of transaction can be committed by a minor. Meanwhile, the fact of an independent conclusion of an agreement on the donation of transport by a child acting as an donee is in doubt.
To gratuitous transactions for which a notarization is required, it is possible to include agreements in the conditions of which certification is provided by the parties, although the law does not require it.
Responsibility
It is referred to in paragraph 3 of article 28 of the Civil Code. The norm provides for civil liability of representatives of minors for their transactions and for obligations arising from harm.
Provisions 3 of clause 28 of the article are specified in 172 and 1073 norms of the Civil Code.
Transactions shall be deemed null and void, with the exception of small household and other items provided for in paragraph 2 of Art. 28 committed by minors. The rules of bilateral restitution apply to such contracts. In particular, each participant in the transaction returns to the other received in kind, and if this is not possible, the monetary equivalent of the value of the property. In addition, the legally competent party is obliged to compensate for the real damage suffered by the other party if she was or should have been aware of the partial legal capacity of the other participant.
The court, however, is entitled to declare the transaction valid at the request of the legal representatives of the minor, if it is concluded to the benefit of the child.
For damage caused by a minor, adoptive parents, guardians, parents are responsible if they can not prove the absence of their guilt in the occurrence of this harm.
Additionally
If the damage was caused by a minor under temporary supervision of an educational, medical or other institution or person obligated to exercise supervision, these entities and structures will be liable for the damage that has occurred. They can be exempted from liability if they can prove that there is no fault in the occurrence of harm. In this case, the issue of assigning the obligation to compensate for the damage by the legal representatives of the child will be considered.
Important point
The obligation of legal representatives, medical, educational and other institutions supervising a minor to compensate for the damage caused to him does not stop when a person reaches the age of majority or the acquisition of property sufficient to compensate for the harm.
If the parents / guardians / adoptive parents have died or do not have the means to fulfill their duties, and the causer himself has such means, the judicial authority has the right to assign it to him. The refund may be full or partial. In this case, the property status of both the guilty person and the person to whom the harm has been caused should be taken into account.