Passive Capacity To Perform Juristic Acts As An Element Of Civil Active Capacity Of Minors

Abstract

The article analyzes the definition of civil active capacity of natural persons, reveals the existing approaches in the doctrine to its definition and understanding of passive capacity to perform juristic act as an element of civil active capacity.

The author positively perceives the position of the legislature on the formulation of the concept of civil active capacity through the term «ability», because the process of forming the will of natural persons has a biological nature and, accordingly, the basis for granting of natural persons an active capacity is its natural ability to adequately perceive and evaluate the surrounding reality, own actions, make independent decisions, implement them through own actions and be aware of the responsibility for such actions. Given that the basis of active capacity is the ability to independently perform legally significant lawful acts, the key element of active capacity is passive capacity to perform juristic act.

According to the results of the study, the author proposes to classify all juristic act performing by a minor by the criterion of «coordination of their commission with parents (adopter) or trustees» into three groups: 1) juristic act that can be performing without the consent of parents (adopter) or trustees; 2) juristic act that can be performing with the consent of parents (adopter) or trustees; 3) juristic act that can be performing with the consent of parents (adopter) or trustees and with the permission of the guardianship authority.

The consent of parents (adopter) or trustees to perform a juristic act by a minor should be considered as an additional requirement established by the legislature to the procedure of its performing by a minor and an additional guarantee to protect the interests of a minor who cannot fully assess the need to perform the juristic act and its legal consequences.

According to the current legislation, the consent of the parents (adopter) or trustees to perform a juristic act by a minor may be made orally, for default, or in writing by a notarized form.