ЛИШЕЊЕ ПОСЛОВНЕ СПОСОБНОСТИ У СВЕТЛУ КОНЦЕПТА ПОСЛОВНЕ СПОСОБНОСТИ КАО ЉУДСКОГ ПРАВА
DEPRIVATION OF LEGAL CAPACITY, IN LIGHT OF THE CONCEPT OF LEGAL CAPACITY AS A HUMAN RIGHT

Summary/Abstract: In the legal system of the Republic of Serbia, every individual is is guaranteed the right to legal personality (Article 37, para. 1 of the Constitution). Thus, the most important features of legal capacity (its universal character, permanence and unconditional application) have obtained their constitutional dimension. Contractual capacity does not comprise these features. It is not universal because it does not pertain to every single person, nor does it imply the same degree (scope) of capacity for those who have it. This distinction between the legal capacity and the contractual capacity is a consequence of their different functions. The former provides a new legal quality to every person as a biological being; one becomes a person in law thanks to the legal capacity. One of the many functions of contractual capacity is the protective one, in terms of safeguarding both the individual who is being recognized as a person in law and all other participants in legal affairs. Hence, it is preconditioned by the sufficient development of intellectual, willful and emotional processes, which are used as criteria for grading the scope of contractual capacity as well as for depriving an individual of this capacity and possibly re-instating it during one’s lifetime. Yet, this prevailing approach, based on the paradigm that the scope of one’s contractual capacity is subjected to one’s mental capacity, has been criticized as obsolete. The Convention on the Rights of Persons with Disabilities (2006) establishes the right to legal capacity as a basic human right, and as a necessary condition for attaining full equality of all human beings before the law. It seems that legal capacity comprises contractual capacity as well; thus, instead of assessing whether their intellectual disabilities are an obstacle to attaining contractual capacity, persons with intellectual disabilities should be supported to exercise their legal (and contractual) capacity, they should be assisted in making the decision and expressing it. In light of this fundamental change in understanding the concept of contractual capacity, the author analyzes the validity of the conclusion that the distinction between the legal capacity and the contractual capacity is gradually being abandoned. If this hypothesis seems too bold, the author will assess the validity of the proposal (already accepted in some countries) to abandon the institutes of grading contractual capacity and depriving a person of contractual capacity, and replacing them with different tailor-made forms of assistance and support, adapted to the specific needs of the person with intellectual disabilities.

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