Candidate of
Law
Lviv
Politechnical National University, Ukraine
Correlation of the concepts of
"legal status of a minor"
and "legal position of minors”
In modern legal literature there
are various opinions on the theoretical and legal understanding of the essence
and the elements of the legal status as a legal category that are completely
different by their nature. Besides this, among general theoretical issues, the
problem of determining the legal status of minors become especially relevant. A
particular difficulty in developing the definition of "legal status"
of a minor is due to the fact that there is still not clear determination in
literature of a juvenile status as a special entity, though there is an urgent
need to review the practical relations of legislators concerning the legal
status of a minor as a legal entity.
One of the theoretical problems
is the distinction of such categories as “legal status” and “legal position”.
All scientific opinions on this problem can be differentiated into
two groups. The first groupof scholars equate these two concepts and consider
them to be synonyms. Motivation comes down to the following reasons: law, legal
practice, media, and international legal acts on human rights do not treat them
different. (Matuzov N. I, Bagrakh D. N, Kuchynskiy V. A [ 1]); the reason is
etymological, since the word "status" is of Latin origin and means a
position or a status of something.
The second group of scientists
suggest views on the distinction between "legal status" and
"legal position" of an individual. Again, the opinions of the
scientists in this group are also different as to the difference between these
two terms.
As S.S. Alekseev
stresses, the concept of "status" fully complies with the stable
fundamental intention of the legal status of the entity, which includes legal
subjectiveness in a combination with other general (constitutional) rights and
obligations. Specific rights and obligations reflect peculiarity of a real
legal position of a person associated rather with the presence of certain legal
facts than the basis of general position of an individual in a given legal
system. According to the author, legal status functionally acts as a static
category since they fix the legal status of a citizen, and legal facts point to
the dynamics of such category as "legal position"[2, р.142-143]. Thus, legal
status is perceived solely as a normative category which is turning into the
legal position during the implementation of the legal status. This understanding
is somewhat cumbersome and unnecessary, since at the first stage the legal
phenomenon takes one definition, and finally arbitrarily changes it.
In
our opinion, the distinction beyween the legal status and the legal position as
the whole and a part is motivated since the first term acts as a part of the
latter[look, 3]. The application of the term "legal position" will
enable to concretize, to persinify the role of other categories of monors, to
determine the features each of them (monors - desable people) related to the
general group of subjects. In this sence the term "minors" can be
considered as general one as to some ...... individual .....In our opinion, the
distinction between the legal status and the legal position as the whole and a
part is motivated since the first term acts as a part of the latter. The
application of the term "legal position" will enable to concretize,
to personify the role of certain categories of minors, to determine the
features of each of them (minors - desable people), related to the general
group of subjects. In this sence the term "minors" can be considered
as general one as to certain groups of children, that is in this context
"the legal status" becomes more meaningful in relation to the term
"the legal position".
The researcher
of the legal status O. Bohomazova underlines that legal doctrine includes three
types of legal status; general legal status of citizens, special legal status
of any category of citizens and an individual legal status. From a socio-legal
perspective the legal position of women is not nothing but a kind of special
legal status[4]. So, by the analogy we can agree with the author, and indicate
that the legal position of a minor can be understood as special legal status of
a juvenile.
It is important to note that if
the legal status determines the place of the subject in the legal system of the
society, then the concept of "legal position" constitutes real legal
relations of minors in a broad social context.
Thus, the legal status of women and legal status in
the society do not generally coincide. The existing coincidence of legal
position and legal status is possible only with absolute absence of informal
aspects of the regulation of legal and law-abiding citizens. Conversely, the
greater influence of the customary norms in the society, religious or moral
standards, the more significant is the distinction between the legal position
and the legal status.
1.
Матузов Н.И. Общая теория государства,
и права / Н.И. Матузов; под общ ред. Н.И. Матузова, Л.В. Малько. – [2-е изд., перераб.] - М.: Юрист, 2004; Бахрах
Д.Н. Система субъектов советского
административного права/ Д.Н. Бахрах // Советское государство и право. -1986.-
№ 2. - С. 5 - 6.; Кучинский
В.А. Правовой статус и субъективные права граждан / В.А. Кучинский //
Правоведение.- 1965. -№ 4.- С. 45.
2.
Алексеев С.С. Общая теория права / С.С.
Алексеев.- М., 2002.
3.
Витрук Н. В. Основы теории правового положения личности в
социалистическом обществе / Н. В.
Витрук.- М., 1979. – 229 с.; Кучинский В.А. Личность, свобода, право. М., 1978. –
208 с.
4.
Богомазова О.И. Правовой статус женщин в современном
российском обществе: дис..канд. юрид. наук / О.И.Богомазова.- Владимир, 2008.-
142 с.