Features of legal regulation of the legal capacity of minors and problems of their emancipation

Abstract

This study investigated and established the specific features of the legal capacity of minors, as well as cases of granting them full civil legal capacity. The purpose of this study was to cover certain features of the implementation and protection of subjective civil rights of minors within their legal capacity, their emancipation and to develop specific proposals for improving the private law regulation of these relations. The study analysed the provisions of the current Ukrainian legislation on the legal regulation of relations on determining the scope of civil legal capacity of minors, as well as the legislative experience of foreign countries, in particular, France, Germany, Great Britain, the United States, etc. The authors of this study concluded that Ukrainian legislation is heterogeneous in nature, as well as that there are different legislative approaches to determining the age of majority of an individual, and to the scope of powers granted to minors. The study examined the foreign experience of legislative provision of minors with the opportunity to dispose of their property in case of their death, as well as the approach of the Ukrainian legislator in terms of governing these legal relations. Based on the analysis of Article 1234 of the Civil Code of Ukraine (hereinafter referred to as “the CCU”), the authors identified specific features of the right to make a will in terms of determining its subjects and concluded on the absence of legislative prohibition of making a will by a minor who has acquired full civil legal capacity in accordance with the procedure established by law. The position of scientists on the need for statutory consolidation of the ability of minors to make a will was supported, but with certain reservations conditioned by the provisions of the current civil legislation; the authors developed specific proposals for amendments to the CCU. It was concluded that a minor receives the status of a fully capable person in two ways – by granting and acquiring. At the same time, the granting of full civil legal capacity is interpreted as the adoption of an appropriate decision by the competent authority (in this case, the guardianship and custodianship authority or the court) provided the availability of grounds stipulated by law. Therewith, the acquisition of full civil legal capacity in the context of Part 2, Article 34 of the CCU is perceived as the result of independent performance of a legal action by a minor (in this case, marriage), which is stipulated by law and entails legal consequences in the form of obtaining full civil legal capacity without additional authorisation from other persons or the state