Paragraph 2 of Article 28 of this code. Civil Code of the Russian Federation (Civil Code of the Russian Federation)

New edition Art. 28 Civil Code of the Russian Federation

1. For minors under fourteen years of age (minors), transactions, with the exception of those specified in paragraph 2 of this article, can only be performed on their behalf by their parents, adoptive parents or guardians.

The rules provided for in paragraphs 2 and 3 of Article 37 of this Code apply to transactions of legal representatives of a minor with his property.

2. Minors aged six to fourteen years have the right to independently commit:

1) small household transactions;

2) transactions aimed at free receipt benefits that do not require notarization or state registration;

3) transactions for the disposal of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal.

3. Property liability for transactions of a minor, including transactions made by him independently, shall be borne by his parents, adoptive parents or guardians, unless they prove that the obligation was violated through no fault of theirs. These persons, in accordance with the law, are also responsible for damage caused by minors.

Commentary to Art. 28 Civil Code of the Russian Federation

By general rule minors are incompetent. The commented article, allowing for the possibility of minors making certain transactions on their own, limits the “lower” age to 6 years.

Responsibility for harm caused by minors rests entirely with the legal representatives, whose guilt is presumed.

Another comment on Art. 28 Civil Code of the Russian Federation

The legislation establishes different amounts of legal capacity for persons under 18 years of age, dividing them into two groups: from 6 to 14 and from 14 to 18 years. The age division carried out allows us to conclude that minors under 6 years of age are unable to act intelligently and understand the significance of their actions in making transactions provided for in paragraph 2 of the commented article, i.e. they are completely incapacitated due to age. Article 28 resolves the issue of the legal capacity of minors - persons aged 6 - 14 years. It contains general principle: for minors, on their behalf and in their interests, transactions can only be made by legal representatives of these persons - parents, adoptive parents or guardians. The current Civil Code also retains the rule according to which the actions of legal representatives in disposing of the property of wards are subject to control by the guardianship and trusteeship authorities (see commentary to Article 37).

Minors have the right to carry out small household transactions on their own. Small household transactions are transactions of a consumer nature, the purpose of which corresponds to the age of the minor making such a transaction. They are concluded on a small amount for cash, executed upon conclusion, satisfying personal needs (purchase of toys, children's books, food, etc.). If the consumer purpose of a small household transaction does not correspond to the age of the minor making such a transaction, it is considered void (see commentary to Article 172).

At the same time, the range of transactions that minors have the right to carry out independently, without the consent of their legal representatives, has been expanded. In addition to small household transactions, they themselves can make two types of transactions: a) aimed at obtaining benefits free of charge, unless these transactions require notarization or state registration, for example, receiving property as a gift, using other people’s property free of charge, etc. We believe that a minor has the right carry out transactions aimed at obtaining benefits free of charge, only if these transactions are executed when they are completed, i.e. are real deals- those that are considered concluded at the time of transfer of property. Transactions subject to notarization or state registration in the interests of minors continue to be the right to be carried out only by parents (adoptive parents, guardians). Consequently, only these persons can accept a gift of a residential house, apartment, land plot and other real estate on behalf of a minor, since such transactions are subject to state registration (Law on Registration of Rights to Real Estate); b) transactions for the disposal of funds provided by legal representatives or with their consent by third parties for a specific purpose or for free disposal. Funds provided to a minor can be understood not only as money, but also as other property. Minors themselves manage the funds received from their legal representatives. To receive funds from third parties, for example from a grandfather, grandmother, aunt, etc., the consent of legal representatives is required. Minors have the right to dispose of such funds only in the form of small household transactions, and the purpose for which the funds are provided must be taken into account: if their special purpose, then the transaction should be aimed specifically at achieving this goal; If money is given as a gift and it is not determined what it can be spent on, the minor has the right to dispose of it at his own discretion.

1. For minors under fourteen years of age (minors), transactions, with the exception of those specified in paragraph 2 of this article, can only be made on their behalf by their parents, adoptive parents or guardians.

The rules provided for in paragraphs 2 and 3 of Article 37 of this Code apply to transactions of legal representatives of a minor with his property.

2. Minors aged six to fourteen years have the right to independently commit:

1) small household transactions;

2) transactions aimed at obtaining benefits free of charge, which do not require notarization or state registration;

3) transactions for the disposal of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal.

Comments on the article

1. Persons under 14 years of age are called minors in the law. As a general rule, they are considered legally incompetent: all transactions on their behalf are carried out by their legal representatives (parents, adoptive parents, guardian).

2. In order to protect the rights of minors, the law established a rule according to which the legal representative of a minor has no right, without the prior permission of the guardianship and trusteeship authority, to carry out transactions for the alienation, including the exchange or donation of the ward’s property, leasing it, gratuitous use or as a pledge, transactions entailing the renunciation of the rights belonging to a minor, the division of his property or the allocation of shares from it, as well as any other transactions entailing a decrease in the property of a minor (clause 2 of Article 37 of the Civil Code). In addition, donations on behalf of a minor (with the exception of gifts whose value does not exceed five minimum wages established by law) are generally prohibited (Article 575 of the Civil Code).

Legal representatives, their spouses and close relatives do not have the right to enter into transactions with a minor, with the exception of transferring property to the minor as a gift or for free use, as well as to represent the minor when concluding transactions or conducting legal cases between the minor and the spouse of the legal representative and their close relatives ( clause 3 of article 37 of the Civil Code).

3. In derogation from general rule Regarding the impossibility of minors making transactions themselves, the law grants them the right to carry out a number of transactions independently.

Firstly, persons from 6 to 14 years of age have the right to carry out small household transactions. The law does not contain a definition of a small household transaction: traditionally it is formulated by doctrine based on the established judicial practice. The signs of a small household transaction are: it is aimed at meeting the daily needs of a minor or members of his family and it is insignificant in amount. In addition, such transactions are usually executed when they are made. Insignificance in amount is a very subjective sign; If a dispute arises, its existence must be determined on a case-by-case basis.

Secondly, minors have the right to independently enter into transactions aimed at obtaining benefits free of charge. Such transactions, in particular, include: acceptance of a gift by the donee, conclusion of an agreement on the free use of property, etc. However, a minor does not have the right to make such transactions if, in accordance with the law, they require notarization or state registration (for example, acceptance into gift real estate).

Thirdly, minors have the right to enter into transactions to dispose of funds provided by a legal representative or with his consent by a third party for a specific purpose or for free disposal. Having received at your disposal cash, a minor, in particular, has the right to: enter into a purchase and sale agreement, a loan, an agreement bank deposit etc. Thus, minors, like adults, have the right to make deposits in credit institutions, but, unlike minors, they do not have the right to dispose of them.

4. Transactions made in violation of the comment rules. Art., are void in accordance with Art. 172 Civil Code. However, in the interests of a minor, a transaction made by him may, at the request of his legal representatives, be recognized by the court as valid if it was made for the benefit of the minor.

5. Minors do not bear independent responsibility for transactions made by them: liability in such cases lies with their legal representatives, unless they prove that the violation of the obligation is not their fault (reasons that exclude the liability of legal representatives may, in particular, be a serious illness of the latter or other valid reasons). The Civil Code also places liability for causing non-contractual damage on the legal representatives of a minor (

Civil Code RF, along with those adopted in accordance with it federal laws, is the main source of civil law in Russian Federation. Rules of civil law contained in other regulations legal acts, cannot contradict the Civil Code. The Civil Code of the Russian Federation, work on which began at the end of 1992, and initially proceeded in parallel with work on the Russian Constitution of 1993, is a consolidated law consisting of four parts. Due to the huge volume of material that required inclusion in the Civil Code, it was decided to adopt it in parts.

The first part of the Civil Code of the Russian Federation, entered into force on January 1, 1995, (with the exception of certain provisions), includes three of the seven sections of the code (Section I “General Provisions”, Section II “Property Rights and Other Property Rights”, section III « a common part law of obligations"). This part of the Civil Code of the Russian Federation contains the fundamental norms of civil law and its terminology (about the subject and general principles of civil law, the status of its subjects (individuals and legal entities)), objects of civil law ( various types property and property rights), transactions, representation, limitation period, property rights, as well as the general principles of the law of obligations.

The second part of the Civil Code of the Russian Federation, which is a continuation and addition of part one, came into force on March 1, 1996. It is entirely devoted to section IV of the code “ Selected species obligations." Based on the general principles of the new civil law of Russia, enshrined in the 1993 Constitution and part one of the Civil Code, part two establishes a detailed system of rules on individual obligations and contracts, obligations resulting from causing harm (torts) and unjust enrichment. In terms of its content and significance, part two of the Civil Code of the Russian Federation is a major stage in the creation of new civil legislation of the Russian Federation.

The third part of the Civil Code of the Russian Federation includes section V “Inheritance Law” and section VI “Private International Law”. Compared to the legislation in force before the entry into force of Part Three of the Civil Code of the Russian Federation on March 1, 2002, the rules on inheritance have undergone major changes: new forms of wills have been added, the circle of heirs has been expanded, as well as the range of objects that can be transferred in the order of hereditary succession; Detailed rules have been introduced regarding the protection and management of inheritance. Section VI of the Civil Code, dedicated to the regulation of civil law relations complicated by a foreign element, is a codification of the norms of private international law. This section, in particular, contains rules on the qualification of legal concepts when determining the applicable law, on the application of the law of a country with plurality legal systems, on reciprocity, return, establishment of the content of norms of foreign law.

The fourth part of the Civil Code (entered into force on January 1, 2008) consists entirely of Section VII “Rights to the results of intellectual activity and means of individualization.” Its structure includes general provisions- norms that apply to all types of results of intellectual activity and means of individualization or to a significant number of their types. The inclusion of norms on intellectual property rights in the Civil Code of the Russian Federation made it possible to better coordinate these norms with the general norms of civil law, as well as to unify the terminology used in the field of intellectual property. The adoption of the fourth part of the Civil Code of the Russian Federation completed the codification of domestic civil legislation.

The Civil Code of the Russian Federation has passed the test of time and extensive application practice, however, economic offenses, often committed under the guise of civil law, have revealed the lack of completeness in the law of a number of classical civil law institutions, such as the invalidity of transactions, the creation, reorganization and liquidation of legal entities, assignment claims and transfer of debt, pledge, etc., which necessitated the need to introduce a number of systemic changes to the Civil Code of the Russian Federation. As noted by one of the initiators of making such changes, President of the Russian Federation D.A. Medvedev, “The existing system does not need to be restructured, fundamentally changed... but to be improved, to reveal its potential and to develop implementation mechanisms. The Civil Code has already become and should remain the basis for the formation and development of civilized market relations in the state, an effective mechanism for protecting all forms of property, as well as the rights and legitimate interests of citizens and legal entities. The Code does not require fundamental changes, but further improvement of civil legislation is necessary..."<1>.

On July 18, 2008, Decree of the President of the Russian Federation No. 1108 “On improving the Civil Code of the Russian Federation” was issued, which set the task of developing a concept for the development of civil legislation of the Russian Federation. October 7, 2009 The concept was approved by the decision of the Council for Codification and Improvement Russian legislation and signed by the President of the Russian Federation.

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<1>See: Medvedev D.A. Civil Code of Russia - its role in development market economy and creation rule of law// Bulletin of civil law. 2007. N 2. T.7.

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Full text of Art. 28 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2020. Legal advice on Article 28 of the Civil Code of the Russian Federation.

The rules provided for in paragraphs 2 and 3 of Article 37 of this Code apply to transactions of legal representatives of a minor with his property.

2. Minors aged six to fourteen years have the right to independently commit:
1) small household transactions;
2) transactions aimed at obtaining benefits free of charge, which do not require notarization or state registration;
3) transactions for the disposal of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal.

Commentary on Article 28 of the Civil Code of the Russian Federation

1. Minors should be considered minor citizens under the age of fourteen years. As a general rule, minors are incapacitated citizens and only their parents, adoptive parents or guardians have the right to carry out transactions on their behalf in accordance with. In this case, the legal representatives of the minor must act exclusively in his interests. Transactions carried out in violation of this requirement are void (see the definition of the Supreme Court of the Russian Federation dated April 24, 2012 N 49-B12-1).

The exception to the rule specified in paragraph 1 of the commented article applies only to minors who have reached the age of six years. They already have the right to independently carry out transactions specified in paragraph 2 of the commented article.

2. Parents, adoptive parents, guardians or organizations for orphans in accordance with Art. 1073 of the Civil Code of the Russian Federation bear both property liability for transactions made by minors and liability for damage caused by them. These persons are released from liability if they prove that the harm did not arise through their fault. The same rule applies to educational, medical or other organizations obliged to supervise minors, as well as to persons who supervise minors on the basis of an agreement (see for more details Article 1073 of the Civil Code of the Russian Federation).

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