Table of Contents
1. What is civil capacity?
2. Can a person who have lost the capacity for civil acts enjoy inherit inheritance?
3. Guardian of a person who have lost the capacity for civil acts
1. What is civil capacity?
According to Article 19 of the 2015 Civil Code on civil capacity: “The capacity for civil acts of an individual shall be the capability of the individual to establish and exercise civil rights and perform civil obligations through his or her acts.”
2. Can a person who have lost the capacity for civil acts enjoy inherit inheritance?
Pursuant to Article 609 and Article 610 of the 2015 Civil Code on the right to inheritance and the right to equality in inheritance of individuals.
“Article 609. Rights of inheritance
An individual may make a will to dispose of his or her estate, may leave his or her property to an heir in accordance with law, or may inherit an estate [left to him or her] under a will or in accordance with law.
An heir not being an individual may inherit an estate under a will.”
“Article 610. Equality of individuals with respect to rights of inheritance
All individuals are equal with respect to rights to bequeath their property to others and to inherit estates under wills or in accordance with law.”
Simultaneously, pursuant to Article 613 of the 2015 Civil Code:
“Article 613. Heirs
If an heir is an individual, such person must be alive at the time of commencement of the inheritance or, if such person is born and alive after the commencement of inheritance, [must] have been conceived prior to the time when the deceased dies. Where an heir under a will is not an individual, it must be in existence at the time of commencement of the inheritance.”
Therefore, according to the above provisions, a person who has lost civil act capacity still has the right to inherit according to the provisions of Articles 609, 610 and 613 of the 2015 Civil Code.
3. Guardian of a person who have lost the capacity for civil acts
Guardians are stipulated in Article 48 of the 2015 Civil Code as follows:
“Article 48. Guardian
1. An individual who or a legal entity which satisfies all the conditions prescribed in this Code may act as a guardian.
2. If a person of full capacity for civil acts selects his or her guardian and such person is in a circumstance which requires guardianship, the selected individual or legal entity shall be the guardian if such person [or legal entity] agrees. The selection of a guardian must be made in writing and notarized or certified.
3. One individual or a legal entity may be the guardian of more than one person.”
Based on the above provisions, the guardian shall take care of and protect the legitimate rights and interests of minors and persons with no civil act capacity.
3.1 Natural guardian
The natural guardian of a person with no civil act capacity is stipulated in Article 53 of the 2015 Civil Code as follows:
“Article 53. Natural guardian of a person with no civil act capacity
In case there is no guardian as prescribed in Clause 2, Article 48 of this Code, the natural guardian of a person with no civil act capacity is determined as follows:
1. Where a wife has lost her capacity for civil acts, the husband shall be the guardian; where a husband has lost his capacity for civil acts, the wife shall be the guardian.
2. Where both parents have lost their capacity for civil acts, or where one parent has lost the capacity for civil acts and the other parent fails to satisfy all conditions to act as guardian, the eldest child shall be the guardian; if the eldest child fails to satisfy all conditions to act as guardian, the next eldest child who satisfies all conditions to do so shall be the guardian.
3. Where an adult who has lost his or her capacity for civil acts does not have a spouse or children, or where his or her spouse or children all fail to satisfy all conditions to act as guardian, the parents of that adult shall be the guardian.”
3.2 Appointment of guardian
The appointment of a guardian by a person who has lost civil act capacity is stipulated in Article 54 of the 2015 Civil Code as follows:
“Article 54 Nomination and appointment of guardians
1. Where a minor or a person who has lost his or her capacity for civil acts does not have a natural guardian in accordance with the provisions of articles 52 and 53 of this Code, the people’s committee of the commune level in which the ward resides shall be responsible to nominate a guardian.
Where there is a dispute among the guardians prescribed in articles 52 and 53 of this Code on the guardian or dispute over the nomination of the guardian, a court shall appoint the guardian.
Where a guardian is nominated or appointed for a minor who is six years or more of age, the wish of such minor must be taken into account.
2. The nomination of a guardian must have the consent of the person nominated to act as the guardian.
3. The nomination of a guardian must be made in writing, specifying the reason for nominating the guardian, the specific rights and obligations of the guardian and the status of the property of the ward.
4. Except where the provisions in article 48.2 of this Code apply, the guardian of a person who has difficulty in awareness or control of his or her own acts shall be appointed by a court from among the guardians prescribed in article 53 of this Code. Where there is no guardian according to the above provision, the court shall appoint a guardian or request that a legal entity perform the guardianship.”