Civil capacity of physical persons
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StatusThe thesis was presented on the 7 September, 2006Approved by NCAA on the 21 December, 2006 Abstract – 0.44 Mb / in romanianThesisCZU 347(043.2)
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Keywords
civil capacity, juridical capacity, utility capacity, exercise capacity, physical person, juridical personality, subjective law, juridical status, conceived child, law, obligation, aptitude, juridical acts, authorisation, empowering, intangibility, legality, non-alienable character, equality, business activitySummary
The research conducted for the present work constitutes a comprehensive analysis of civil juridical capacity comprising: formulation of the definition, delineation of the content and limits of the civil capacity, setting up of constituent elements (utility capacity and exercise capacity). The scientific topicality of the work derives from the very nature of the research object: the thesis is the result of a complex assessment of all facets of the civil juridical capacity of a physical person and of all its constituent elements. Thus, the thesis conveys an aggregation of genuinely new results, which allow drawing conclusions and ascertaining generalizations adequate to the physical nature of the explored phenomenon. The totality of these new results implies original practical and theoretical solutions to a series of investigated problems.
It is being demonstrated that civil capacity can be rightly stated as a key element to the definition of the quality of law subject. Starting by defining and describing the patterns of the civil capacity of a physical person leads us to the discovery of the psychological, philosophical and juridical aspects of this concept. Consequently, in the context of this research, a new genuine definition of the civil capacity is taking shape.
The correlation between civil capacity and a series of juridical institutions is obvious. Having addressed this issue through various scientific methods conducted us to the delimitation of the notion of civil capacity from such notions as juridical status of the physical person, juridical personality, and subjective law. It also led us to the ascertaining of other adjacent notions as law subject and subject of the juridical relation, correlating the concepts of human being, personality, citizen and physical person. The performed research can be attributed a special role in finding the place of civil capacity in the larger frames of juridical capacity. In this view, the research concludes that civil capacity can be recognized neither as being a universal capacity, applicable to all law branches, nor as an exception of the juridical capacity. Civil capacity shall be qualified as a branch capacity. Civil law is the branch of law where the regulation of juridical capacity is most needed; being of vital significance in the frame of all civil law institutions. This proves the necessity of a special regulation of “capacity” in the civil law, notions which are overtaken also by other law branches.
The thesis proposes solutions to some of the very controversial issues regarding determination of the content of utility capacity and exercise capacity. Views of the majority of authors on the intangibility of the utility capacity are denied in the work. Strong arguments are given to support the fact that law does not need and cannot determine the limit of utility capacity, and consequently it can be claimed as being absolutely intangible, implying no possible hindrance. A critical view is presented on law regulations stipulated in the Civil Code of the Republic of Moldova regarding “capacity”, among which – restriction of the possibility of recognition of the utility capacity of the conceived child to a single case – the inheritance. Assessment of practices of legislative systems of other states, as e.g. Romania, France, Italy, Spain and Germany shows that a conceived child can be avowed titular of a larger spectrum of rights, which led us to the conclusion that the conceived child will be recognized as a subject of the juridical relation as long as this fact is in his favour. The research insistently underscores the juridical status of each age category to the extent of its progressive gain of exercise capacity. New terms are proposed, which, in a real form, will reveal the content of the possibilities offered to them by law. A special place in the innovatory character of the thesis can be attributed to an institution unknown before the adoption of the new Civil Code in 2002 – the emancipation. Founded and, at the same time, constructive criticism is shown towards the reasons behind and the procedure of emancipation, which brings us to the wording of clear and eloquent solutions.
To conclude, the dogmatic aspect, comparativism and the classification experience have given us the chance to draw founded and clear conclusions regarding the way and results of a person’s deprivation of its exercise capacity, which call firstly to the urgent implementation of practical solutions.
A large array of normative sources were used, including domestic and international documents, legislative acts of other states, decisions of the Supreme Court of Justice, examples from the attorney and notary practices, theoretical works of local as well as foreign authors. As a result of the performed research, we succeeded in achieving the initial goals, thus illustrating the civil capacity under the most important and relevant aspects of this law institution.
Oficial Reviewers
- Aurel Băieşu
doctor habilitat, professor, Moldova State University - Gheorghe Filip
doctor în drept, profesor universitar, Universitatea „Petre Andrei” Iaşi, România
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