of December 16, 2004 No. 13
About practice of consideration by courts of cases on recognition of the citizen limited capable or incapacitated, and also about recognition of the citizen capable or about legal incapacity cancellation
Having discussed results of studying of practice of consideration by courts of cases on recognition of the citizen it is limited capable or incapacitated, and also about recognition of the citizen capable or about legal incapacity cancellation, for the purpose of uniform and correct application of the legislation by courts the Plenum of the Supreme Court of the Republic of Belarus
1. Draw the attention of courts that respecting the rule of law by hearing of cases about recognition of the citizen is limited capable or incapacitated, and also cases on cancellation of legal incapacity or on recognition of the citizen capable is important guarantee of judicial protection of the civil laws. Therefore for this category it is necessary comprehensively, fully and objectively to find out availability of the circumstances which formed the basis for the statement of such requirements and to provide their consideration in strict accordance with Chapter provisions 30 GPK (the Art. of the Art. 362, 373-376 GPK).
2. Courts need to mean that according to p.1 Art. 30 of group of companies two conditions which are in causal relationship are necessary for legal incapacity of the citizen: 1) abuse of it of alcoholic drinks, drugs or psychotropic substances; 2) postavleniye of the family in difficult financial position. Availability of earnings and other income at other family members in itself cannot be the basis for refusal in satisfaction of the declared requirements.
3. The fact of abuse of the citizen of alcoholic drinks, drugs or psychotropic substances shall be confirmed in court with the corresponding proofs which treat: certificates of the placement to sobering-up station or of delivery of health care in connection with the condition connected with abuse of alcoholic drinks, drugs or psychotropic substances, acts of survey regarding establishment of dependence on alcohol, drugs or psychotropic substances, acts of judicial and narcological or forensic-psychiatric examination, documents of law enforcement agencies of the allowed disorderly conduct, creation of conflict situations in family, other proofs confirming dependence of person on alcohol, drugs or psychotropic substances.
For recognition it is limited capable it is not required that the citizen was chronic alcoholic or the addict.
4. In case of clarification of question of whether the family is put in difficult financial position, the court needs to pay attention to extent of participation of person concerning which the question of restriction in capacity to act is put, in content of the family members needing the help, execution of expenses on providing the corresponding living conditions in payment of utilities, and also costs for housekeeping, content of the house (apartment) in proper sanitary condition, etc. Besides, the court considers family costs for content abusing alcoholic drinks, drugs or psychotropic substances.
If the court determines that the citizen does not take part in expenses on maintenance of family not owing to abuse of alcoholic drinks, drugs or psychotropic substances, and due to the lack of permanent earnings or the income for the objective reasons (due to illness, impossibility of employment, etc.), then he cannot be limited in capacity to act.
5. Courts should mean that restriction in capacity to act is the basis for establishment over the citizen of guardianship. Owing to restriction in capacity to act the citizen without the consent of the custodian not in the right, in particular, to sell, grant, exchange, buy property, to make other transactions on the order property, except for small household, and also itself to receive the salary, pension and other income types (royalties, remuneration for the inventions, the amounts which are due for performance of works according to the works agreement, any benefits, etc.).
Restriction in capacity to act does not exempt the citizen from obligation independently to bear property responsibility according to the transactions made by it and for the harm done to them.
6. Draw the attention of courts that the basis for recognition of the citizen incapacitated (Art. 29 of group of companies) is availability at it mental disturbance (sincere disease or weak-mindedness) owing to which he cannot understand value of the actions or direct them. The citizen suffering from mental disturbance which does not deprive of it capability to understand value of the actions or to direct them, cannot be recognized as incapacitated.
7. Explain to courts that the statement for recognition of the citizen is limited capable owing to abuse of alcoholic drinks, drugs or psychotropic substances it can be filed a lawsuit by members of his family, the prosecutor, guardianship and custody body, and also public association which charter grants such right (p.1 the Art. 373 GPK).
Treat family members: the spouse (spouse), children and parents, adoptive parents adopted brothers and sisters, the grandfather, the grandma, grandsons, and also other relatives, disabled dependents and other persons who live together with the citizen concerning whom the question of legal incapacity is put and conduct with it general economy (item 26 of the Art. of 1 GPK). Separate accommodation and absence of general economy is the basis to refusal to these family members in satisfaction of requirements.
The prosecutor or guardianship and custody body has the right to take a legal action with the statement for restriction of the citizen in capacity to act if it is required by interests of the minor children or other persons living together with such citizen.
8. The statement for recognition of the citizen incapacitated owing to sincere disease or weak-mindedness can be filed a lawsuit by members of his family, and in case of their absence - close relatives irrespective of whether they live together with such citizen or not, and also the prosecutor, guardianship and custody body on behalf of managements (departments) of health care of local executive and administrative organs, and in case of their absence in structure of the relevant executive and administrative organs - on behalf of organizations to which such functions are assigned, and also the psychiatric (psychoneurological) organization of health care (the p. 2 of the Art. 373 GPK).
Such right is granted equally to all to the Art. specified in the p. 2 373 GPK to persons, except for close relatives who can take a legal action with the statement for recognition of the citizen incapacitated only in the absence of family members at this citizen.
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