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Legal capacity in various branches of law


Author: Andriuța Eleonora
Degree:doctor of law
Speciality: 12.00.01 - General Theory of Law, History of State and Law, History of Political and Law Doctrines
Year:2018
Scientific adviser: Gheorghe Avornic
doctor habilitat, professor, Moldova State University
Institution: University of European Political and Economic Studies "Constantin Stere"

Status

Term of presenting of the thesis 23 June, 2018

Abstract

Adobe PDF document0.53 Mb / in romanian

Thesis

CZU 340.11 (043.3)

Adobe PDF document 1.42 Mb / in romanian
186 pages


Keywords

legal capacity, ability to make decisions, passive and active legal capacity, mental capacity, discernment, self-determination.

Summary

Structure of the thesis. The thesis includes: introduction, 4 chapters, general conclusions and recommendations, bibliography of 275 titles, the volume of the main part of this thesis is 166 pages. The results obtained are published in 10 scientific papers.

Field of study: General theory of law.

The purpose of the doctor's thesis consists in carrying out a complex scientific investigation of the concept of legal capacity and of the legal mechanism, specific to the various areas of law, to ensure the exercise of legal capacity, based on revealing the theoretical and practical problems of this institution, according to the new conceptual and normative requirements. Objectives: the analysis of ideas, theoretical and practical conceptions set forth in the doctrine of the general theory of law, as well as within specific branches of internal law and international legal literature; finalizing the features specific to the concept of legal capacity; delimiting this concept from other institutions and similar concepts, including legal personality, mental capacity etc.; identifying types of legal capacity; revealing the problematic aspects of the legal nature of this concept of law; elucidating and explaining the philosophical theories that marked the evolution of legal capacity; tracing the main historical events that have determined its development direction; identifying the specific features of the legal capacity showed in the various normative acts in force and international standards; the analysis of legal capacity in various areas of law.

The scientific novelty and originality of the obtained results consists in the deep research of the legal capacity concept, highlighting a distinct and new vision of how to approach and configure this legal concept in accordance with the new international standards and current social premise. The investigation being a premiere in the spectrum of the works carried out in the Republic of Moldova on the examined topic. In this respect, it is the first work in which the legal capacity is considered as a theoretical concept applicable to all branches of law, at the same time mentioning the technical-legislative deficiencies the national legislation suffers from and formulating concrete proposals to improve the internal regulatory framework to ensure compliance with new standards in the field and respect the human rights.

The important scientific issue solved lies in the scientific substantiation of the new paradigm of the concept of legal capacity and namely in identifying the criteria for delimiting the legal capacity of some adjacent concepts which led to the clarification and orientation of the conditions for regulating the legal capacity in different branches for the subsequent use in the process of modifying internal regulations in accordance with the new theoretical and legal particularities related to general legal capacity, as well as for the orientation of the theoreticians and practitioners in the field.

The applicative value of the thesis is conditioned by its scientific and didactic importance and the relevance of the formulated conclusions and recommendations, which have set out defining lines for the need to adjust the internal normative framework and to apply in the research process of this legal concept of the new rigor promoted by the community in the field. In particular, the results of research are viable solutions, to be translated into the content of the legal rules to be enforced in the face of respect of human rights. The conclusions will facilitate the work of interpreting and applying the rules for establishing the legal status of legal capacity. The doctoral thesis can be used both in the training process in the legal education institutions and in the perspective of further research of this legal concept.

The implementation of the scientific results is reflected in the teaching activity in the legal educational institutions, as well as in the development of the scientific concepts in the field and the improvement of the legislative framework.