LEGAL ASPECTS AND PROBLEMS OF CIVIL CAPACITY OF MINORS IN THE REPUBLIC OF KAZAKHSTAN.

Ж.Д. Нуралина,

магистрант 1 курса юридического факультета Казахского Национального

Университета им. аль-Фараби, Казахстан, г. Алматы.

E-mail: zhannyet@mail.ru

Each of us is a particle of the society, the whole state, even the whole world. Without person, the subject wouldn't be this whole which has the right to be called as meaning of life. If plunge into depth of our ancient history or to lean to all told myths about the mankind birth, the era of human society and the beginning legal the relation begins from Adam and Eve's relationship. This led communication and the relation to formation of some certain rules which defined their place and appointment in society. Means, to the early legal relationship and its norms with arrival of every era changed, every time it turns, increasing the importance. These norms couldn't but will concern a problem of the concerning children in the civil relations. And it is still a global legal problem of all over the world.

Natural persons are the main subjects, are more exact participants of the civil - legal relations. Natural persons share on full age and on minor people. Minors, more than ever were and are light future our state and their legal state is considered one of important problems in the legal sphere.

According to the Constitution of the Republic of Kazakhstan the main values of the state are the person, his rights, freedom, legitimate interests and preferences. Certain rights and duties of the person belong to him from the his birth and they make his legal capacity. And also some rights of people possess the actions and as a result assign to itself certain obligations. Ability of the citizen to have rights and to assign to itself duties voluntarily and without someone's pressure forms his capacity.

Full capacity of the citizen is established according to his age and consciousness. If, the citizen is capable to operate the consciousness and reached eighteen-year age, it means about his capacity. But a certain category of minors possesses some capacity which it is possible to call "partial capacity". In our market economy even minors realize certain actions and it is generally connected with material values. Therefore it is especially important to define legal status of minors which appears in such situations. Because, the persons which didn't reach full age age can't argue such relations and in most cases make mistakes, and also the rights because of low-education and crisis of explanatory work are violated from appropriate authorities. Communications from subjects of their action are limited respectively to provisions of the law. These restrictions are provided with parents, adoptive parents, trustees, and also trustees with an additional consent and responsibility. Here therefore the scientific-theoretical basis needs comprehensive consideration of similar topical issues.

Since our country gained independence, protection of minors and a state policy on fight against child labor, and also all bodies for affairs of the concerning minors will organize the activity, leaning on the duties accepted in the international level by legislatures.

The Republic of Kazakhstan authorized additional resolutions of the Convention of the UN on the rights of minors (1989), the Convention of the International Labour Organization No. 138 and No. 182, and also the Convention on the rights of minors, sale of minors, prostitution and a pornography of minors (2000).

The problem of protection of the rights and interests of minors existed in Kazakhstan at all times, unfortunately, it isn't solved and today, demanding fixed attention of all authorized bodies of the country. The social and economic situation in our country dictates an urgent need of development of a scientifically based package of measures, the legal conditions for realization and protection of the rights of children creating system. Children were unprotected during social and economic reforms. Growth of unemployment and crime among the population of the country, the inflationary processes armed and the international conflicts, moral degradation, decrease in a standard of living affected, first of all, families and children. Begging and homelessness, vagrancy, flight of children from families because of the tough treatment of them, growth of number of cases of deprivation of the parental rights are quite unfavorable and negative facts from life of the Republic of Kazakhstan.

Since 1990 Kazakhstan is the equal participant of the Convention of the UN "About the rights of the child". Same the Convention comes into force on September 2, 1990. The Convention on the Rights of the Child is part of the Kazakhstan legislation. According to this international legal document, Kazakhstan assumed many-sided obligations for providing and protection of the rights of the child. There are some definitions the concept "child". They differently open its essence. Also, legal definition the concept "child" is given in the Convention and in the Law to the Republic of Kazakhstan "About marriage (matrimony) and a family".

The law "About the Rights of the Child in the Republic of Kazakhstan" governs the relations arising in connection with realization of basic rights and interests of the child. Proceeding from the principles of priority of training of children for full-fledged life in society, developments in them of socially significant and creative activity, education in them high moral qualities, patriotism and civic consciousness, formation of national consciousness on the basis of universal values of a world civilization guarantees their rights and interests the Constitution of the Republic of Kazakhstan. First of all the attention is paid to the best ensuring interests of the child and all actions concerning children irrespective of, they are undertaken by the public or private institutions dealing with issues of social security, courts administrative or legislature, etc. Each child has the right for preservation of the identity - to have the name, a surname, nationality, family relations. This situation has to admit for all children without any exceptions and without distinction or discrimination on the basis of race, skin color, a floor, language, religion, political or other convictions, the national or social origin, a property status, the birth or other circumstance concerning the child or his family. The law on marriage (matrimony) and a family provides the right of the child freely to express the opinion. The legislation doesn't specify the minimum age since which the child has these rights.

In the Convention it is recorded that such rights are granted to the child capable to formulate own views. Means as soon as the child reaches sufficient extent of development, he has rights to express the opinion at the decision in a family of any question infringing on its interests. Various legal significance, depending on its age is attached to opinion of the child. The convention orders "to pay attention to the child's views according to his age and a maturity".

According to Art. 62 of the Law "About Marriage (Matrimony) and a Family", the accounting of opinion of the child who reached 10-year age is obligatory. To this age the child capable to express the views, too has to be heard. But owing to his minority and the early childhood, at disagreement with his opinion parents, trustees and officials aren't obliged to motivate the disagreement.

The motherhood, the childhood, family represent the interconnected system of social factors. That is it is interdependent system to a great extent defining a condition of society and prospect of its progressive development, communication, normal change and continuity of generations, readiness of new members of society to full realization of the rights and duties of the person and citizen, as well as the actual realization of these rights and duties in social and private activity. Told explains why the Constitution unites and consolidates requirements of protection of these institutes by the state.

Minor citizens of our state have to be protected from all negative both physical, and moral influences. As we live and we move ahead in market economy where the social and economic system of society develops on the basis of a private property and the commodity-money relations negatives can't but will concern also minor citizens of our state. Protection of the rights of minors is understood as the following: restoration of the violated right, creation of the conditions compensating the loss of the rights taking place, removal of obstacles on the way of implementation of the right, etc.

One of the most important rights of the child is his right for the family education provided to article 60 of the Law "About Marriage (Matrimony) and a Family". This right, first of all, consists in providing to the child of opportunity to live and be brought up in a full-fledged family. Family education - the best form of education of the child which knows mankind. The family for the child is not only habitat, but also the educational environment. Influence of a family especially during the period development of the child most exceeds other educational influence. The family represents and reflects both school, and mass media, public organizations, friends, influence of literature and art. No public forms of education can be compared to a family, and numerous attempts to replace family education public serve that as confirmation. Therefore a task of the family legislation is protection of the right of the child for education in a family.

The law "About Marriage (Matrimony) and a Family" provides that obligations for protection of the rights of the child on his parents, lawful representatives, and also agencies of guardianship and guardianship and the prosecutor. In the most difficult situation the child appears when his rights are violated by the persons urged to carry out their protection - parents or persons replacing them. In the law on marriage (matrimony) and a family the right of the child directly to address for protection against abuses of parents and other lawful representatives is affirmed.

The right of the child for health protection is provided with improvement of the legislation of the Republic of Kazakhstan in the field of health protection of the child, promotion and stimulation of a healthy lifestyle of children, ensuring control of a state of health of the child, his parents and prevention of children's diseases.

Relevance of a subject of the real research is defined by existence of both the theoretical, and practical problems connected with the rights of minors and with observance of these rights, and also problems of protection of the rights of minors.