Current issues of granting a minor person full civil capacity in civil jurisdiction

Abstract

In the scientific article, a study of the issue of providing a minor with full civil legal capacity in civil proceedings was carried out. Based on the conducted scientific research, the authors came to the conclusion that there are several problems that should be resolved in the practice of resolving cases on granting full civil legal capacity to a minor. In particular, the question of the legal nature of the absence of the consent of parents or other legal representatives of a person when deciding the relevant issue by the body of guardianship and guardianship, as well as whether it is mandatory for the applicant to submit such a document when applying for granting full civil legal capacity to the court, remains undefined. Analysis of court practice allows us to point out that the presence of a negative decision of the guardianship authority is sufficient, and the absence of parents at the court session does not affect the outcome of the case. In the case of the consent of only one of the parents, or if the parents of the minor are dead or there is no information about them, or if one of the parents, due to his mental disorder, needs constant external care, and is also significantly limited in the ability to understand the meaning of his actions and manage them, which determined by the conclusion of the psychiatric examination, the resolution of the issue by the body of guardianship and care of granting full civil legal capacity to a minor is also impossible, and is resolved only in court. In this regard, appropriate changes should be made to Art. 35 of the Civil Code of Ukraine, in which to specify cases of lack of consent of parents (adoptive parents), guardian or body of guardianship and guardianship, as well as to provide that written consent is the consent certified in any way (as a separate document or as part of another document) of both parents (adopting parents), a guardian or a guardianship and guardianship body. In judicial practice, there are cases of submission of an application for full civil legal capacity by one of the minor's parents, the guardianship authority, the prosecutor, and not by the person himself, although the civil procedural legislation indicates only the relevant right of the minor. In this regard, it is advisable to make appropriate changes to Art. 301 of the Civil Procedure Code of Ukraine, which provides for the right to submit a corresponding application by guardianship and care authorities, the prosecutor, one of the child's parents or another legal representative of the child. It is also necessary to harmonize the provisions of Art. 301 of the Civil Procedure Code of Ukraine and Art. 35 of the Civil Code of Ukraine, removing the age requirement for a person who requests to be granted full civil legal capacity in connection with the acquisition of the status of mother, father, and clarifying the circumstances that must be established by the court in order to grant a person full civil legal capacity.