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International Law
Reference:

Some elements of the legal personality of an individual in private international law

Belozertseva Viktoriya Vladimirovna

ORCID: 0000-0002-4966-6917

PhD in Law

Associate Professor, Head of the Department Civil Law Disciplines of the East Siberian Institute of the Ministry of Internal Affairs of Russia

664074, Russia, Irkutsk region, Irkutsk, Lermontov str., 110

sarrav@mail.ru

DOI:

10.25136/2644-5514.2023.3.43426

EDN:

WULYUZ

Received:

25-06-2023


Published:

03-09-2023


Abstract: This article is devoted to the study of the elements of the legal personality of an individual in private international law, the problems and features of conflict of laws regulation are identified and its characteristics in Russian private international law are given. The conducted research made it possible to identify a number of problems of conflict regulation, in particular, the use of different terminology in states regarding the same legal phenomenon, different understanding, interpretation and qualification of concepts. Such problems are inevitable due to the existence of different legal systems. It is possible to overcome this with the help of conflict-of-laws regulation, however, it does not solve all the issues and discrepancies that arise. The conflict of laws regulation of the legal personality of individuals differs in the following characteristic features: the legal personality of an individual is determined by his personal law; there are two rules of personal law – the law of citizenship and the law of residence, the law of citizenship is applied as a general rule, the law of residence regulates the legal personality of those persons in respect of whom it is difficult to find out with a certain degree of certainty the legal connection with the state on the basis of citizenship; when determining the procedure and grounds for limiting legal capacity recognizing a citizen as unfit or incapacitated, Russian law is applied, i.e. the legislator uses unilateral conflict of laws rules.


Keywords:

legal capacity, conflict regulation, unknown absence, emancipation, entrepreneurial activity, bargaining power, natural person, foreign entity, economic activity, international private relations

This article is automatically translated. You can find original text of the article here.

Legal personality is a fundamental concept for determining the legal abilities of a person, who in turn is the central figure (element) of any legal relationship. Legal capacity and legal capacity are terms familiar to any lawyer, which we use to denote the ability of a subject to acquire law, exercise law, the ability to perform duties and bear responsibility. Studies on the topic of legal personality have always been conducted and will never lose their relevance, because the legal abilities of a person are very sensitive to changes of a political, economic and social nature, no matter how static the category of legal personality may be. And always new trends in legal science force us to turn to the origins, to the history of development, to the factors that influenced the emergence and formation of a particular legal category, legal personality is no exception in this sense. The concept of a legal entity (legal relationship) is currently undergoing a transformation, the reason for this is the digitalization of law (digitalization in law), along with this, the understanding of legal personality is changing. Another aspect of changing approaches to understanding legal personality is the rapidly changing international relations.

Our further research will be devoted to the international legal regulation of legal personality. At the beginning, we will determine that the author of this article adheres to the understanding of legal personality as a prerequisite for a legal relationship, which consists of two elements: legal capacity and legal capacity. Legal personality is an intersectoral category, however, some aspects of the content of its elements are understood differently from industry to industry, which, of course, leads to problems of law enforcement, because the understanding of legal and legal capacity enshrined in the Civil Code of the Russian Federation and all related grounds for the emergence, modification and termination of these abilities are important for determining legal abilities a person involved in any other legal relationship, other than civil. The legal regulation of international private relations is mainly carried out on the basis of the domestic legislation of a particular state (with the help of substantive and conflict-of-laws norms), which are contained in the Civil Code of the Russian Federation. Therefore, speaking about the international legal regulation of legal personality in private (civil) legal relations, we will, first of all, refer to the Civil Code of the Russian Federation.

The political and economic situation in the modern international arena has left its mark not only on relations between states, but also between frequent subjects of different state affiliation, although there have been no fundamental changes in the legal regulation of international private relations, some aspects have still been touched upon.

Legal personality is a term that is not legally fixed, although it is quite often used not only among scientists, but also among practitioners. At the same time, two of its elements are legally fixed: legal capacity and legal capacity, which are also well-known. From the point of view of the national Russian legislation, these concepts are settled with a high degree of certainty, but at the same time cause a lot of discussion. Legal capacity and legal capacity are assessed in relation to each subject of legal relations, in the absolute majority of them, international private relations are no exception.

In international private relations, the situation with the assessment of legal and legal capacity of persons is complicated by the different state affiliation of these persons, and different legal regulation of these abilities. The rules defining the legal personality of a person are called his personal law, the criteria for determining a personal law are traditionally two:

1) the law of citizenship;

2) the law of residence [1, p. 56; 2, p. 22, 3, p. 197].

The legislation of most States uses both of these criteria in various combinations, with the predominance of one of them. The personal law of an individual is subject to application in conjunction with other norms of private international law, for example, such as: the principle of reciprocity, the rule of refoulement, the principle of national treatment, etc. [4, p. 22; 5, p. 29]. We should also not forget that every state in any legal regulation seeks to preserve its sovereignty and ensure the protection of the rights and interests, first of all, of its citizens, which leads to a special procedure for the application of norms, including foreign law.

In accordance with Article 1195 of the Civil Code of the Russian Federation, the personal law of an individual (as a general rule) is the law of his citizenship. Further, there are exceptions to the general rule governing the specifics of emerging relations, in particular, if a citizen of the Russian Federation has the citizenship of another state, then in this case his personal law will be Russian law; the personal law of a foreign citizen who has a place of residence in Russia will be Russian law; if a citizen has several foreign nationalities, then his personal law will be the law of the country of residence; the personal law of a stateless person is the law of the country of his residence, and finally, the personal law of a refugee will be the law of the country that granted him asylum. Thus, the Civil Code of the Russian Federation, in relation to the personal law of an individual, fixes the attachment formula "the law of citizenship", when regulating individual relations, gives priority to Russian law, applying the rule of unilateral conflict of laws regulation.

It should be noted that when determining the personal law of an individual, the law of his citizenship is very often used, because citizenship provides a closer and more stable connection of the subject with the state [6, p. 191]. At the same time, modern international relations lead to an increase in the level of population migration between states, subjects are given freedom to choose their place of residence, which brings to a new level the importance of such a conflict of laws binding as the "law of residence". However, in any case, each state uses a mixed system of conflict of laws regulation in determining the personal law of an individual, which is due to the need to regulate the entire variety of international private relations [7, p. 33].

    The legal capacity of an individual is determined by his personal law (Article 1196 of the Civil Code of the Russian Federation), from the point of view of Russian international private law – by the law of his citizenship, and foreign citizens and stateless persons enjoy civil legal capacity on an equal basis with Russian citizens, except in cases established by law. Thus, the legal capacity of foreign citizens (and stateless persons) is equated with the legal capacity of Russian citizens. The formula for attaching the personal law of an individual is used in a system with other conflict-of-laws norms and principles of private international law, such rules as the principle of national treatment, the principle of reciprocity, a public policy clause, etc. will make their own adjustments to the operation of the personal law. In addition, we should not forget the rules and procedure for the interpretation and application of legal terms. For example, such an institution as declaring a citizen dead and recognizing him as missing is not known to the law and order of all states, and if it is known, then with a different content, with different conditions, with other legal consequences [8, p. 35]. At the same time, declaring a citizen dead or recognizing him as missing will affect his legal capacity, and Article 1200 of the Civil Code of the Russian Federation determined that if the recognition of an individual as missing or declaring him dead occurs in the Russian Federation, then it will be subject to Russian law. In this case, the legislator again gave priority to Russian law (fixing a unilateral binding), this state of affairs is due to the fact that the recognition of a citizen as missing or declaring him dead affects the legal capacity of a person when, as a result of a court decision, the legal capacity of such a citizen will be limited or completely terminated. The purpose of the institution of recognizing a citizen as missing or declaring him dead is to streamline civil turnover by introducing certainty into the subject composition of legal relations.

The legal capacity of an individual, as is known, is determined by the level of consciousness and will of a person, the legislator has defined several criteria of legal capacity: age, mental health and the ability to be aware of their actions and lead them. It should be noted that the age criterion for achieving full legal capacity is not the same in different states, the grounds for limiting legal capacity and recognizing a citizen as incapacitated also differ [9, p. 100]. In accordance with Article 1197 of the Civil Code of the Russian Federation, the legal capacity of an individual is determined on the basis of his personal law, however, there are exceptions to this rule that are extremely important for the exercise of subjective rights in private international law. In particular, paragraph 2 of Article 1197 of the Civil Code of the Russian Federation refers to the transaction capacity of an individual (as one of the elements of legal capacity), which establishes the rule that an individual who does not have legal capacity under his personal law cannot refer to his lack of legal capacity if he is legally capable of the place of the transaction, except except in cases where it will be proved that the other party knew or should have known about the lack of legal capacity. This rule appeared in order to protect the interests of Russian citizens and in compliance with the principle "contracts must be respected". In international contractual relations, there are situations when a foreign citizen (a stateless person) makes a transaction, and subsequently refuses to fulfill his obligations, referring to his lack of legal capacity (transactional capacity) [9, p. 102]. There are also reverse situations when a subject commits legally significant actions in the absence of legal capacity under his personal law, which can be challenged by the opposite party in the transaction or by a third party.

Recognition in the Russian Federation of an individual as incapacitated or with limited legal capacity is subject to Russian law (paragraph 3 of Article 1197 of the Civil Code of the Russian Federation) is another stumbling block in international private relations. And one of the main problems here is the recognition of a foreign judicial decision (or other act) by which an individual is recognized as incapacitated, which can only be solved by a bilateral international agreement, and, as is known, there are not so many of them [10, p. 20]. In addition, as we have already noted, States regulate the procedure and grounds for recognizing a person as incapacitated or with limited legal capacity in different ways, and the interpretation of basic legal concepts differs. Therefore, the Civil Code of the Russian Federation re-establishes a unilateral conflict of laws rule and gives priority to Russian law when recognizing a person as incapacitated or with limited legal capacity.

Emancipation is the institution of acquiring full legal capacity before reaching the age of 18, such a rule contains Article 27 of the Civil Code of the Russian Federation, the norms of international private law do not contain a special rule on this subject, therefore, the personal law of an individual is valid. It is quite logical to assume that if a minor was emancipated according to the rules of his personal law, then on the territory of the Russian Federation he should be recognized as capable without any additional requirements, restrictions, studies [11, p. 45]. However, the question of the possibility of emancipating a foreign minor under the rules of Russian legislation remains open. Uncertainty also arises with respect to the legal capacity of a foreign minor emancipated under his personal law, who has acquired permanent residence on the territory of Russia, because his personal law will be Russian law. There are many such variants of uncertainty in the legal personality of individuals, the richness and diversity of international private relations is difficult to predict. Problems of this kind are solved either by bilateral international agreements or by the consolidation of unilateral conflict-of-laws rules referring to Russian law. The procedure for passing emancipation in this case will become more complicated, it may be duplicated, at the same time, certainty will be introduced into the legal personality of the person, and possible litigation will be minimized.

The next element of the content of legal capacity is the ability of an individual to engage in entrepreneurial activity. Entrepreneurial activity can be carried out in two forms: as an individual entrepreneur and as participation in a legal entity. In this study, we will address only one of the forms – individual entrepreneurship. Individual entrepreneurial activity, as well as the right to engage in it, is subject to the law of the place of registration of a person as an individual entrepreneur, in the same case, if such registration is not provided for, the law of the main place of entrepreneurial activity (Article 1202 of the Civil Code of the Russian Federation). The legal personality of an individual entrepreneur is determined by the law of the place of registration, or by the law of the main place of activity, the law of citizenship in this case fades into the background. It should also be noted that in the Civil Code of the Russian Federation there is no conflict-of-laws regulation of other forms of entrepreneurial (economic) activity, for example, self-employment, which is so widespread now, and such types of it as blogging, tutoring, etc., this activity is often cross-border, can bring large profits, but does not fall under legal regulation [12, p. 212]. In this case, the general rule for determining legal personality is the personal law of an individual.   

Our small study of some elements of the legal personality of an individual in private international law, first of all, allowed us to outline a number of problems of international legal regulation of the legal abilities of the subject. Secondly, to identify the nature of legal regulation of legal personality in Russian private international law. In particular, the conflict–of-laws regulation of the legal personality of individuals differs in the following characteristic features: the legal personality of an individual is determined by his personal law; there are two rules of personal law - the law of citizenship and the law of residence, the law of citizenship is applied as a general rule, the law of residence regulates the legal personality of those persons in respect of whom it is difficult to find out the legal connection with the state on the basis of citizenship; when determining the procedure and grounds for limiting legal capacity and legal capacity, recognizing a citizen as unfit or incapacitated, Russian law is applied, i.e. the legislator uses unilateral legal regulation. The use of a unilateral conflict-of-laws rule is dictated, first of all, by the interests of Russian citizens, as well as due to differences in the legal qualification of the concepts of legal capacity and legal capacity, the procedure and grounds for recognizing a citizen as incapacitated or with limited legal capacity, the presence in Russian law of institutions that are not known to foreign law, such as the institution of recognizing a citizen as missing or declaring him deceased. Despite the rapidly developing international relations, the erasure of borders between states, the trends of globalization, the digitalization of all spheres of public relations, the modern law of most states consistently protects (preserves) its sovereignty and strives to provide all kinds of priorities for the legal protection of its citizens.

 

References
1. Boguslavsky, M. M. (1994). International private law: textbook. Moscow: International relations.
2. Dmitrieva, G. K. (1993). International private law: textbook. G. K. Dmitrieva, A. S. Dovgert, I. S. Martynov, N. V. Morozova et al. (Eds.). Moscow: Lawyer.
3. Lunts, L. A. (2002). Course of private international law. General part. Moscow.
4. Erpyleva, N. Yu. (2004). Individuals and legal entities as subjects of private international law. Lawyer, 12, 22-29.
5. Dorofeeva, Yu. A. (2013). Personal law of an individual and the practice of its application in Russian legislation. Actual problems of jurisprudence, 2(38), 28-34.
6. Boriskin, V. V. (2019). Determination of the conflict principle "personal law of an individual" in private international law of Russia. Law and Practice, 5, 190-193.
7. Vlasova, T. V. (2015). Legal nature of conflict rules. Rights and freedoms of man and citizen: theoretical aspects and legal practice. Moscow: MGPU.
8. Repnikova, Yu. V. (2016). On the legal capacity and legal capacity of individuals in the modern doctrine of civil law. Bulletin of the Moscow University of the Ministry of Internal Affairs of Russia, 4, 32-38.
9. Rudenko, A. V., & Chaika, A. V. (2020). Conflict-of-law issues of regulation of incapacitation of individuals and the significance of this status for other branches of law. Uchenye zapiski Crimean Federal University named after. V. I. Vernadsky. Legal Sciences, 3, 98-104.
10. Semisorova, K. N. (2007). Basic concepts regarding the regulation of the legal personality of individuals in private international law. International private and public law, 2, 19-28.
11. Repnikova, Yu. V. (2017). Emancipation of foreign citizens staying on the territory of Russia. Bulletin of the Moscow University of the Ministry of Internal Affairs of Russia, 1, 44-46.
12. Shapsugova, M. D. (2021). Conflict regulation of the economic activities of individuals under private international law in Russia. Law and practice, 2, 209-214.

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A REVIEW of an article on the topic "Some elements of the legal personality of an individual in private international law". The subject of the study. The article proposed for review is devoted to topical issues of legal personality of an individual in private international law. The author identifies some theoretical and practical problems related to the establishment of the legal personality of an individual according to the rules of conflict of laws regulation in different countries. The subject of the study was the norms of legislation, the opinions of scientists, and the materials of practice. Research methodology. The purpose of the research is stated directly in the article. At the same time, the purpose of the study can be clearly understood from the title and content of the article. The purpose can be designated as the justification and resolution of certain theoretical and practical problems related to the legal personality of an individual in private international law. Based on the set goals and objectives, the author has chosen the methodological basis of the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as draw specific conclusions from the materials of practice. The most important role was played by special legal methods. In particular, the author actively applied the comparative legal method, which made it possible to analyze and interpret the norms of current legislation and compare it with the legislation of other countries. For example, the following conclusion of the author: "The legislation of most states uses both of these criteria in various combinations, with the predominance of one of them. The personal law of an individual is subject to application in conjunction with other norms of private international law, for example, such as: the principle of reciprocity, the rule of refoulement, the principle of national treatment, etc. [4, p. 22; 5, p. 29]. We must also not forget that every state, in any legal regulation, strives to preserve its sovereignty and ensure the protection of the rights and interests, first of all, of its citizens, which leads to a special order of application of norms, including foreign law." Thus, the methodology chosen by the author is fully adequate to the purpose of the study, allows you to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic of legal personality of an individual in private international law is complex and ambiguous, since it has different permissions in different states. Reducing contradictions, as well as clarifying some ambiguous practical situations, is a necessary job for a researcher. It is difficult to argue with the author that "Research on the topic of legal personality has always been conducted and will never lose its relevance, because a person's legal abilities are very sensitive to changes of a political, economic and social nature, no matter how static the category of legal personality may be. And always new trends in legal science force us to turn to the origins, to the history of development, to the factors that influenced the emergence and formation of a particular legal category, legal personality is no exception in this sense. The concept of a legal entity (legal relationship) is currently undergoing a transformation, the reason for this is the digitalization of law (digitalization in law), along with this, the understanding of legal personality is changing. Another aspect of changing approaches to understanding legal personality is the rapidly changing international relations." Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. Firstly, it is expressed in the author's specific conclusions. Among them, for example, is the following conclusion: "Our small study of some elements of the legal personality of an individual in private international law, first of all, allowed us to outline a number of problems of international legal regulation of the legal abilities of the subject. Secondly, to identify the nature of legal regulation of legal personality in Russian private international law. In particular, the conflict–of-laws regulation of the legal personality of individuals differs in the following characteristic features: the legal personality of an individual is determined by his personal law; there are two rules of personal law - the law of citizenship and the law of residence, the law of citizenship is applied as a general rule, the law of residence regulates the legal personality of those persons in respect of whom it is difficult to clarify the legal connection with the state on the basis of citizenship; when determining the procedure and grounds for limiting legal capacity and legal capacity, recognizing a citizen as unfit or incapacitated, Russian law is applied, i.e. the legislator uses unilateral legal regulation." These and other theoretical conclusions can be used in further scientific research. Secondly, the author offers original comments on the current legislation, which may be useful for practitioners in the field of private international law. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. Style, structure, and content. The subject of the article corresponds to the specialization of the journal "International Law", as it is devoted to legal problems related to the legal personality of an individual in private international law. The content of the article fully corresponds to the title, as the author considered the stated problems and achieved the research goal. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia (Boguslavsky M.M., Dmitrieva G.K., Lunts L.A., Dorofeeva Yu.A., Rudenko A.V., Chaika A.V. and others). Many of the cited scholars are recognized scholars in the field of private international law. I would like to note that the author did not use foreign sources, which would be especially important in the context of the stated purpose of the work. This remark cannot affect the overall positive impression of the article, but the author is strongly recommended to use the experience of foreign countries on similar topics in the future. Thus, in general, the works of these authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the development of legislation and practice of its application in Russia in the field of determining the legal personality of individuals under private international law. Based on the above, summing up all the positive and negative sides of the article, "I recommend publishing"
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