Legal capacity (Switzerland)
The legal capacity - that is, the ability to have rights and obligations to be - is the Swiss law in the Civil Code defines (Civil Code). For natural persons , “everyone has legal capacity.” “Legal capacity is due to human beings for the sake of being human, i. H. without further requirements ". Legal persons can also acquire legal capacity, but only in the cases explicitly provided for by law.
Beginning and end of legal capacity
Natural people
The beginning of a person's legal capacity is defined in Swiss law by Art. 31, Paragraph 1 of the Civil Code: "Personality begins with life after birth and ends with death."
Paragraph 2 also provides for a special regulation for the beginning of life: “Before birth, the child has legal capacity, provided that it is born alive.” This means that an unborn child (“ Nasciturus ”), already the bearer of rights and To be duties - but only if it is actually born alive. This rule is particularly important in inheritance law : If an unmarried woman is stillborn after the child's father has died, she will not inherit anything from the child's father. However, if the child dies shortly after birth, it can inherit. When the child dies, the mother ultimately becomes the heir.
Legal persons
In order to acquire legal capacity for legal persons, their entry in the commercial register is normally decisive , with the exception of public corporations and institutions , associations that do not pursue economic purposes, church foundations and family foundations.
With the deletion from the commercial register, the legal capacity of the legal person ends accordingly.
Theoretical dispute in relation to the legal person
A legal person is not a physical entity , but is still treated as a separate being. This gives rise to a controversial question in jurisprudence about the nature of the legal person. The theory of fiction and the theory of reality face each other. The former assumes that the legal person is a fiction , so that society only pretends that a stock corporation exists as a person. The theory of reality, on the other hand, assumes that legal persons are real persons created by man.
However, this distinction is purely academic and has no practical impact.
