Active and Passive Legal Capacity

Active and Passive Legal Capacity

7. The nullity of a decision of an institution of a legal person may be invoked in judicial proceedings by bringing an action or opposition. The nullity of a decision may not be invoked if an entry in a public register has been made on the basis of the decision and two years have elapsed from the date of registration. (15.06.2005 entered into force on 1.01.2006 – RT I 2005, 39, 308) As provided for in the United Nations Convention on the Rights of Persons with Disabilities, legal capacity is a fundamental right, regardless of the degree of perception of disability or the support required for its exercise. All persons with disabilities should “have the same legal capacity as others in all areas of life”. No one should be excluded from the decision-making process concerning their lives. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities states very clearly that no one may be deprived of his or her legal capacity simply because he or she needs assistance in making decisions. People with significant support needs, or those who do not communicate or express themselves in a way that is easily understood by others, must continue to be present in the decision-making process – this can be achieved through precautions and/or assisted decision-making. (2) When establishing an activity, a legal person may be represented by any member of its board of directors or of a body representing the board of directors, unless the law or the statutes provide that all or part of the members of the board of directors or of the successor body may represent the legal person only in common (joint representation). In the case of joint representation, the members of the Management Board or of the replacement body may authorise one or more of the members to conclude certain transactions or certain types of transactions. (1) A board of directors or a body that replaces the board of directors of a corporation shall be deemed to be the legal representative of the corporation in relation to other persons, unless otherwise provided by law.

(4) If a person with limited active legal capacity enters into a transaction without the prior consent of his or her legal representative, the other party to the transaction may submit a proposal to the legal representative for ratification of the transaction. Ratification is valid if it is granted to the person making the proposal. A legal person shall be dissolved: (1) by resolution of the general meeting or other competent body; (2) by decision of a person, body or body which has been granted the right to dissolve a legal person governed by public law; (3) in the achievement of an objective prescribed by law, statutes or statutes; (4) at the end of a term of office, if the legal person has been established for a fixed term; 41) (Repealed – RT I, 06.12.2010, 1 entered into force on 05.04.2011);(15.06.2005 entered into force on 1.01.2006 – RT I 2005, 39, 308) 5) –6) (Repealed – 10.12.2008 entered into force on 1.01.2009 – RT I 2008, 59, 330) 7) by a judgment of the court on compulsory dissolution;(10.12.2008 entered into force on 1.01.2009 – RT I 2008, 59, 330) 8) on another legally prescribed basis, the statutes or the partnership contract. (3) A transaction carried out by a person with limited active legal capacity without the prior consent or subsequent confirmation of his legal representative is valid if: (1) the transaction does not give rise to any direct civil obligation for the person; 2) the person carried out the transaction with means that his legal representative or a third party, with the consent of the legal representative, had granted him for this purpose or for free use. 6. In bringing an action for annulment of a decision of an organ of a legal person, a court shall not rule on the matter before the expiry of the period referred to in paragraph 5 of this Section. Different actions for annulment of the same decision are brought together in a single procedure. (15.06.2005 entered into force on 1.01.2006 – RT I 2005, 39, 308) (2) If a declaration of intent does not give rise to direct civil obligations for a person with limited active legal capacity or if the legal representative of the person has given his consent for the person to submit the declaration of intent, the declaration shall enter into force upon access to the person with limited active legal capacity.

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