Konwencja ONZ o prawach osób niepełnosprawnych w interpretacji Komitetu do spraw praw osób niepełnosprawnych a podstawowe instytucje prawa cywilnego

Abstract

The article presents a critical analysis of the interpretation of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) approved by the Committee on the Rights of Persons with Disabilities, according to which interpretation substitute decision-making regimes are excluded in all and every case. The above assumption, apart from major doubts as to its justifiability and expediency, has very far-reaching consequences from the point of view of the Polish civil law. The notion of legal capacity adopted in the Convention on the Rights of Persons with Disabilities resembles the approach found in common law systems. In continental legal systems (in particular those based on the German tradition, like the Polish system) it has a completely different character: a dogmatic one, whose construction is linked to the concept of a juridical act. It is one of the reasons why complete severing of the link between mental capacity (capacity to make decisions) and legal capacity (understood as the not only passive capacity, but also active capacity), postulated by the Committee on the Rights of Persons with Disabilities is very difficult, if not impossible, to introduce. Adopting the proposed conception leads to a decomposition of fundamental civil law institutions, such as juridical act and defects of a declaration of intention, while giving rise to doubts from the point of view of possession or fault-based civil liability. The article presents a competing model of interpretation of Article 12 CRPD, pursuant to which application of substitute decision-making, to a limited extent, while observing the safeguards provided for in para. 4 of said article, should be considered permissible.