The full exercise capacity of minors: history of a legicide in the Civil Code and the recent legislative decrees comment this news access to comment as a user

In recent days, the Civil Code has experienced various modifications in a succession of legislative decrees that have taken by surprise, in addition the already culminated draft that has made the work group responsible for reviewing and proposing improvements to the improvements has not been taken into accountCivil Code (Ministerial Resolution 300-2016-JUS, DOEP., 10/18/2016) presided by Gastón Fernández Cruz.Many of these reforms are in my opinion appropriate, and others will deserve a more detailed study.

But what has caught my attention, and this is the purpose of this brief comment, is the legicide that has occurred in just 11 days, in which a legislative decree seems to have obviated or unknown what a previous legislative decree did.Let's see.

Legislative Decree No. 1377, published on Friday, August 24, 2018 in the Official Gazette El Peruano, modified, among others, article 46 of the Civil Code, in order to establish that “the inability of people over sixteen (16) years ceases for marriage or obtaining an official title that authorizes them to exercise a profession or office.The capacity acquired by marriage is not lost by the termination of this ”.

Likewise, said article now establishes that in the case of older fourteen (14) years, incapacity ceases from the birth of the son or daughter, to perform some acts, including demanding for pregnancy and childbirth expenses, as well as demanding and beingpart in the processes of possession, food, regime of visits and extramarital fi liation of their sons and daughters.

But, then, according to the most recent reform of the Civil Code, carried out by D.Leg.No. 1384, the capacity for exercise from the age of 18 extends to people with disabilities;And, also, it is established that those over 14 years old or parents acquire the capacity to exercise.

Indeed, the current art text. 42 del Código Civil, conforme a la modificación efectuada por el mencionado DecretoLegislativo N° 1384, publicado en el diario oficial El Peruano del martes 4 de setiembre de 2018, establece que “Toda persona mayor de dieciocho años tiene plena capacidad de ejercicio.(…) Exceptionally, those over fourteen and children under eighteen who get married, or who exercise paternity ”are full of fourteen years..

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— Patty Wed Dec 16 23:26:00 +0000 2020

So what was the sense of modifying art.46, by D.Leg.No. 1377, expanding the procedural capacity to parents who are 14 years old, if only 11 days later, for the D.Leg.N ° 1384, these minors (married or parents) are granted full capacity for exercise? Without a doubt a lousy legislative technique that shows that both legislative decrees have worked without properly weighing the effects that one would have on the other.

Now, before this, I consider that it must be understood that two tacit repeales have been made to the Civil Code.

Indeed, in merit of the above, the following must be understood: i) that subsection 1 of the art has been repealed.241, being able to marry;and, ii) that art is partially in force.46 Regarding the acquisition of the capacity for exercise of the older of 16 years, only in regard to obtaining an official title authorizing them to exercise a profession or trade.

Nothing costs to be organic and, above all, to follow an orderly legislative policy.Enough of inorganic reforms, of reform reforms, leaving the imagination that implies a true update of the Civil Code.

In this picture you can see the two tacit repeals to which I mean:

(*) Enrique Varsi is a Doctor of Law, a professor at the University of Lima.Concytec researcher (Orcid.org/0000-0002-7206-6555).Partner of the Rodríguez Angobaldo Abogados studio.