Guardianship is a type of family arrangement of a minor who has reached the age of 14, who has been left without parental care, or a form of protection of civil rights and interests of an adult recognized by the court as legally incompetent (for example, as a result of abuse of alcohol or drugs or as a result of mental illness [1] ), also can be established in relation to persons who, due to physical disabilities ( blindness , deafness ) cannot independently exercise legal capacity [2] [3] [4] . In a broad sense, guardianship is a constant concern for someone or something [5] [6] . The purpose of introducing guardianship as an institution of law is to protect the rights and interests of citizens not fully capable and minors [7] .
Content
- 1 General
- 2 Guardianship of minors
- 3 Disability as a measure of educational impact
- 4 By country
- 4.1 France
- 4.2 Czech Republic
- 4.3 Russian Federation
- 4.4 England
- 5 Another meaning of the word
- 6 See also
- 7 Notes
- 8 Literature
General Provisions
The person in charge of trusteeship is called the trustee ; the person over whom guardianship is established is a ward .
Guardianship differs from guardianship in that the trustee does not make a transaction on behalf of the ward, but only gives consent to their completion. In this case, the transaction is made by the ward himself [8] . The remaining duties of the guardian of a minor child ( upbringing , education , maintenance of the child) lie with the trustee. In this part, custody of a minor child is no different from guardianship.
The duties of the trustee of an adult of limited legal capacity include only giving consent to the ward to make transactions with his property (including the disposal of wages and other cash payments).
Guardianship ceases when a juvenile ward reaches adulthood or acquires full legal capacity by a court decision (see Emancipation of minors ), over an adult citizen with a limited legal capacity - when the court revokes the legal capacity.
Guardianship of minors
One of the forms of guardianship is a foster family , where foster parents have the rights and obligations of trustees in relation to the child [9] . At the same time, an agreement is concluded on the transfer of the child to a foster family, which should contain conditions such as:
- length of stay in the family;
- conditions of detention, upbringing and education;
- rights and obligations of adoptive parents;
- duties of guardianship and trusteeship bodies ;
- conditions and consequences of termination of the contract [10] .
Certain issues of guardianship over minors are regulated by the Hague Conventions on competent authorities and the law applicable in cases of protection of minors of 1961, and the Convention on ensuring the legal capacity of adults and guardianship of them in 1905. According to these conventions, guardianship and legal relations between the trustee and the ward are determined by law in accordance with the citizenship of the ward, and the authorities are competent in accordance with his place of residence ; in relation to an alien residing in the territory of this state , guardianship can be established only if the law of the country whose citizenship the minor foreigner does not retain the exclusive right to establish guardianship over his citizens [11] .
Restriction of legal capacity as a measure of educational impact
In the Soviet period, the restriction of the legal capacity of persons who abused alcohol or drug addiction was also considered as a measure of educational influence, a measure of the fight against alcoholism and drug addiction [12] .
By country
France
In France, the establishment of guardianship is seen as a form of limitation of legal capacity, but regardless of the citizenship of the person in respect of whom custody is established, the provisions of French law apply [13] .
Czech Republic
The conditions for establishing guardianship are regulated by the provisions of the law in accordance with the citizenship of the guardian, and the rights of the trustee extend beyond the borders of the state whose authorities appointed guardianship [13] .
Russian Federation
Article 1199 of the Civil Code of the Russian Federation establishes the establishment of guardianship according to the personal law of the ward, and the obligation to accept guardianship - according to the personal law of the trustee. Relations between the ward and the trustee are governed by the law of the institution that appointed the guardianship, but if the ward resides in the Russian Federation, Russian law applies to him if it is more favorable [14] [13] .
The guardianship of adult citizens (as well as their restriction of legal capacity) is a rare occurrence in modern Russia (in 2014, 322 applications for declaring limited legal capacity were satisfied [15] ).
England
In England, guardianship can be established both over a British subject and a foreigner; Outside of England, with respect to movable property, the right of the place of establishment of trustees applies to the trustee [16] .
Another meaning of the word
In the Russian Empire , an institution for social protection of a group of people (for example, the Guardianship of Empress Maria of the Blind ).
See also
- Honorary Guardian
- Adoption
- Patronage (law)
- Patronage
Notes
- ↑ Ileiko V. R. Some aspects of the problem of legal capacity, limited legal capacity in foreign legislation (literature review) // Pervomaisky V. B., Ileiko V. R. Forensic psychiatric examination: from theory to practice. - Kiev: KIT, 2006. - S. 257—268.
- ↑ Getman-Pavlova, 2005 , p. 140.
- ↑ Civil Code of the Russian Federation of November 30, 1994 No. 51-ФЗ (as amended and additional) - Part 1 // Collection of the legislation of the Russian Federation , December 5 , 1994, No. 32, Art. 3301, Russian newspaper , No. 238-239, 12/08/1994 Article 32
- ↑ Tsvetkov V.A. The multidimensionality of the concept of guardianship and trusteeship // specialist of the Omsk Law Academy. - 2012. - T. 18 , No. 1 . - S. 17-20 .
- ↑ Ilyin E.P. Psychology of care. Altruism, selfishness, empathy. - SPb. : Publishing House "Peter", 2013. - S. 29. - ISBN 9785496002349 .
- ↑ Pilyaeva V. Dictionary of Roman Law. - Litres, 2014 .-- ISBN 9785457515543 .
- ↑ Law Encyclopedic Dictionary. - ISBN 978-5-392-00428-7 .
- ↑ Zabelova, 2010 .
- ↑ Zharova O. V. The role of guardianship and trusteeship in international adoption // Jurisprudence. - 2010. - No. 3 . - S. 142-145 .
- ↑ Getman-Pavlova, 2005 , p. 358.
- ↑ Getman-Pavlova, 2005 , p. 359.
- ↑ Resolution of the Plenum of the Supreme Court of the RSFSR No. 34 of October 27, 1966 (inaccessible link) . Date of treatment October 25, 2015. Archived December 8, 2015.
- ↑ 1 2 3 Getman-Pavlova, 2005 , p. 142.
- ↑ Civil Code of the Russian Federation . Part Three of November 26, 2001 No. 146-ФЗ // Russian Newspaper . - 2001. - No. 233. - November 28, 2001. (since last rev. and add.)
- ↑ Official statistics of the Judicial Department at the Supreme Court for 2014 .
- ↑ Getman-Pavlova, 2005 , p. 141.
Literature
- Getman-Pavlova I.V. Private international law: a textbook. - Moscow: Publisher Eksmo, 2005. - 752 p. - (Russian legal education). - ISBN 5-699-08645-5 .
- Zabelova L. B. Private international law: a training course . - Moscow: Center for Distance Learning Technologies MIEMP, 2010.