Legal Capacity

Legal capacity is the basic concept of civil law, but there have been many divergent views about the meaning, nature,characteristic and other issues of the legal capacity. This paper aims to analyze both the source and the formation process of legal capacity, and explores the reasons why the system of legal capacity is established, as well as reflects on the problems of the traditional theory. Moreover, on the basis of sumarizing the different legislative models of current Civil Code of various countries and regions, this paper proposed that our country should distinguish personality and legal capacity, and reposition the system of legal capacity.This paper is divided into four chapters.The second chapter is to investigate the source of legal capacity. The personality in Roman law is essentially the same with that in modern civil law. The personality refers to the qualification of becoming the subject in civil law, and it is the prerequisite to enjoy the rights and obligations. Family is the carrier of the group personality in Roman law, which does not directly reflect the personality of biological individual; the personality in Roman law mainly involves the eligibility of transactions and marriage, and its fundation is to coordinate the conflicts between status society and commodity economy; personality persimed on the stipulation of public law (indentity level) is a concept of private law, and it is the product of the particular socal and economic life; personality is not a tool of dividing class, but a reflection of class division on the law. Personality is seperated with individul and has the characteristic of group. The equlity of personlity betwee famalies and the inequlity of status of individual coexist,etc.The third chapter analyzes the reasons for the formation of the legal capacity. First, this paper briefly introduces the medieval personality system which is lack of system stiputlation of personality. At that time, personality still has the characteristic of group, and the status hierarchy determines the presence and the scope of rights. Second, this paper further analyzes what factor promoted the French Civil Code abandoned the concept of personality. This paper considered the reasons might include:before the French Civil Code enacted, all french people have already acquired the eligibility of civil subject; the division of public and private law lead to the abandonment of the personality of Roman law; the easy-understanding legal concept made it no need for the abstract concept; the existence of the slavery as well as the impact of the notion of sovereignty result in only French people being subjects of rights; lack of motivation to create new concepts under the ideological influence of extreme individualism. Last but not least, this paper analyzes the reasons why the German Civil Code set up legal capabilty. The reasons included: first, the influence of the close logical and abstract-concepted thinking mode of Geman nation; second, the Civil Code required the concept should be distinct and accurate; third, the need of judical persons to be "persons"; fourth, the concept of personality has a lot of public law factors,but legal capacity belongs to a purely private concept.The fourth chapter is to review the traditional theory of legal capacity. The traditional theory of legal capacity has plenty of flaws, the relationship between personaltiy and legal capacity are difficult to ratinalize. There is a logical contradiction in the theory of equal legal capacity, and even some scholars have advocated abolishing the insititution of legal capacity. Scholars have different understandings to the concept of legal capacity, so creating a clear and accurate legal concept becomes a bubble. The traditional legal capacity system does not recognize fetuses and parter organizations have subject qualifications, but acknowledges that they have a portion of legal capacity. This system not only has contradictions in the logic of law, but also cannot meet the needs of social development.The fifth chapter is to reposition the system of legal capacity. Through induction and comparison of different legislative model of personality in current civil codes of various countries, this paper proposed that legal capacity and personality are on different layers. Personality is to be a civil subject qulification, and legal capacity is the qualification for civil subjects to enjoy rights and obligations,involving the scope of rights a person can enjoy. Personaliy and legal capacity solve different law problems. Legal capacity can be divided into general legal capacity and special legal capacity. General legal capacity is the most basic qualification which law granted subjects, and special legal capacity is the qualification which law based on policy considerations and granted a portion of subjects to have particular rights. There have been differences of legal capacity between individuas, judical persons.This paper asserts that personality and legal capacity are different concepts. Personality indicates the qualification of civil subject but legal capacity is the qualificaiton for subjects to enjoy rights and obligations; personaliy is abstract but legal capacity is concrete. However, certainly, personaliy is closely connected with legal capacity, and legal capacity is the reflection and symbol of personality. Where there is personality, there is legal capacity. Personality replenishes through legal capacity. Legal capacity is a purely private law concept with statutory and inherent nature. The Civil Code in China should adopt the legislative model that personality and legal capacity coexist.