Theory of Will in the Civil Legal Capacity of Natural Person

Abstract

The article uses historical and comparative legal methods to propose a theory of will that explains the legal personality of a natural person, recalling that this person, as the original and natural subject of law, is as independent as possible in choosing the motives of his actions, and acts according to his will and in his own interest. The thesis that the subject is free will historically influenced the creation of the category of legal personality, but then it was forgotten, turned into an axiom transferred to the archive. The author insists free will has legal significance at all levels of its formation. Judicial practice has already encountered the volitional characteristics of the subject in cases of transactions committed under the influence of violence, and in lawmaking, the fact that natural person could allow or prohibit the using of his image or name should not be ignored in regulation of contemporary digital and medical relations. Unfortunately, the connection between the will and the subject itself is somewhat underestimated in the modern theory of civil law. Because of it the lack of knowledge about the free will of a person and connection of free and age, free will and health leads to the fragmented regulation. The author disagree that minors or people with mentally decease have no will, and suggests distinguishing between several levels of willpower. If parents or guardians give consent to the treatment of a minor or to use their child’s image for commercial purposes, their idea of what is true and beautiful may not coincide with the child’s own idea. Therefore, it is necessary to protect the rights of the child, but at the same time it is impossible to allow an unscrupulous entity to cause losses by revoking the old permission given by his parents. The theory of will allows to find a fine line between trust in the will of a legal representative and the freedom of a legal representative to take on responsibilities on behalf of the child. In particular, with regard to the already given permission to use the image, you can set a requirement not to expand the scope of use. For example, you cannot prohibit the creation of an already created object, but a modern way of using it requires a new consent.