Comparison

of Civil Capacity in China and the Philippines

-Diane Shayne D. Lipana

Civil Rights and Civil Capacity

In the Philippines, the law makes a distinction between juridical capacity and
capacity to act. The juridical capacity is the fitness to be the subject of legal relations,
while capacity to act refers to the power to do acts with legal effect. To distinguish
the two, below is a table comparing these capacities:
Juridical capacity
Passive capacity
Inherent from birth
Lost only through death
Can exist without capacity to act
Example: A 10-year old minor has juridical
capacity, so he may be the subject of a
donation, but he has no capacity to act yet
for himself.

Capacity to Act
Active capacity
Merely acquired
Lost through death and may be
restricted by other causes (i.e.,
minority, insanity etc.,)
Exists always with juridical capacity
Example: If the same boy reaches the
age of majority, which is 18 years old
in the Philippines, the said boy will
have the full capacity to act for
himself.

In Chinese civil law, the law creates a distinction between capacity for civil
rights (comparable to juridical capacity in the Philippines) and the capacity for civil
conduct (comparable to capacity to act in the Philippines). As in the Philippines, the
former is inherent from birth till death, while the latter refers to the legal capacity of
a citizen to perform civil acts, specifically, to enter civil relations, exercise civil rights
and fulfill civil duties. While the Philippine Civil Code does not make the same
specific enumeration, the law covers civil relations, rights, and duties as well.


Restrictions to Civil Capacity

For the Philippines, the following conditions restrict ones capacity to act, to
wit: minority, insanity or imbecility, being deaf-mute, prodigality, and civil
interdiction. In addition, the following conditions modify ones capacity to act, to wit:
age, insanity, imbecility, being a deaf-mute, penalty, prodigality, family relations,
alienage, absence, insolvency, and trusteeship. By reason of the restrictions, a person
may not be competent to act on his own. On the other hand, the conditions modifying
ones capacity to act may just limit his capacity but not obliterate it completely.
In the Philippines, the age of majority is 18, unless otherwise stated by law.1
For example, in terms of labor laws, children below 15 years old cannot be employed,
except if under the sole responsibility of their parents or guardian, and their work
does not interfere with their schooling; on other hand, children between 15 and 18
may be employed for a number of hours in a day, as determined by the Minister of
Labor. For purposes of marriage, parental consent is required if a spouse-to-be is
between 18 to 21 years old, while parental advice is required if a citizen is marrying
between the age of 22 to 25. In absence of such parental consent, the marriage is
annullable but not void.

1 Under the 1987 Family Code, 21 years old is the age of majority but it was amended to 18 years old

in 1989. Other than the civil code, other special laws restrict or modify the rule of conduct as regards
minors. In government insurance, unmarried and unemployed children under 21 are eligible to de
declared dependents; minors receiving pensions can continue to receive them until age 21; and
claimants are required to file an Affidavit of Guardianship for beneficiaries younger than 21. With
respect to transportation law, minors at least 16 years old can apply for student permit upon
obtaining written parental consent; minors at least 17 years old, with student permit, can apply for
non-professional driver's license; and children at least 18 years old can apply for professional driver's
license.

In China, 18 is also the age of majority. However, those who are 16 but not the
age of 18 and whose main source of income is his own labor are regarded as a person
with full capacity for civil conduct. A minor aged 10 or over has limited capacity,
while those under 10 years old have no capacity for civil conduct and shall be
represented in civil activities by his agent ad litem.
Further, in China, a mentally ill, who is unable to account for his own conduct,
shall have no capacity for civil conduct and shall be represented in civil activities by
his agent ad litem. Some mentally ill may have limited capacity for civil conduct and
may engage in civil activities appropriate to his mental health, but in other civil
activities to which he cannot act for himself, he shall be represented by his agent ad
litem or participate with the consent of his agent ad litem.
In many ways, China and the Philippines treat the limitations to civil capacity
in the same manner. In both jurisdictions, limitations to ones capacity to act may be
restricted or modified, and such limitations may also be full or partial.

Procedures to Ascertain Citizens Capacity for Civil Conduct
In China, a person who share interests with a mental patient, may apply to a
people's court for a declaration that the mental patient is a person without or with
limited capacity for civil conduct. Once granted, his capacity, which is either full or
limited, may be restored upon his own application or that of an interested person.
To determine ones full or limited civil competency, an application shall be
filed, by a close relative of the citizen or any other interested party, with the basic
peoples court at the place of domicile of the citizen. The written application shall

state the facts and basis regarding the citizens full or limited civil incompetency. It is
upon the discretion of the peoples court to decide on the matter and weigh the
evidence presented (i.e. experts opinion).
Normally, a close relative of the citizen will represent him. If a close relative
does not volunteer to represent the citizen, the peoples court shall appoint one of his
close relatives as his representative. If the claim is supported by facts, the court shall
enter a judgment to declaring his lack of civil competency or his limited civil
competency; otherwise, it shall enter a judgment to dismiss the application.
In the Philippines, with respect to citizens with lacking or limited civil
capacity, the Rules of Court provides for two main remedies: a Petition for the
Hospitalization of the Insane Person, and Petition for Appointment of Guardians.
In a Petition for the Hospitalization of the Insane Person, the petition must be
filed at the Regional Trial Court (RTC) where the alleged insane is found. The
Director of Health (DOH) is mandated by law to file the petition, with the assistance
of the provincial or city fiscal, if the former finds that the commitment of the alleged
insane serves the public welfare or the welfare of the alleged insane, and his
custodians opposes his commitment to a hospital or an institution. If the court finds
the petition sufficient in form and substance, a hearing on the matter shall be
conducted. Upon satisfactory proof of the legal requisites, the court shall order his
commitment to a hospital or an institution recommended by the DOH. In the same
decision, the court shall make provisions for the custody of the properties of the
insane until his legal guardian is duly appointed. Later, should the DOH opine that
the person committed is temporarily or permanently cured, or may be released

without danger, the DOH may file the proper petition with the RTC which ordered
the commitment.
On the other hand, a Petition for Appointment of a Guardian may be applied to
both residents and non-residents in the Philippines, and may be filed at the city of
municipality or city where the minor or the incompetent resides or where his
property or part thereof is situated. Generally, for residents, any relative, friend, or
other person on behalf of a resident minor or incompetent who has no parent or
lawful guardian, or the minor himself if fourteen years of age or over, may petition
the court having jurisdiction for the appointment of a general guardian for the
person or estate, or both, of such minor or incompetent. For non-residents minors or
incompetents, the law also allows them to have a guardian to manage their estate
located in the Philippines. Should the subject of the case be a minor child with a
property worth two thousand pesos or less, the father or the mother of the child,
without the necessity of a court appointment, shall be his legal guardian. Should the
property of the minor child exceed two thousand pesos, a court proceeding must
ensue for the appointment of the childs legal guardian.
Guardianship may cease mainly in three situations: (1) the minor or
incompetent has become competent; (2) the guardian has become incompetent or
has been remiss in his duties as a guardian making him unfit to be one; and (3)
voluntary emancipation of a minor. 2 In the first case, guardianship may be
terminated based on the verified petition of the person declared to be incompetent;

2 Before

the revisions in the Family Code in 1989, marriage of a minor also terminates the
guardianship over the said minor and enables him to administer his property subject to the same
limitations as those minors who enjoy voluntary emancipation.

after trial and hearing; and upon proof that the person is no longer incompetent. In
the second case, guardians may be removed from his duty when the he becomes
insane, or other otherwise incapable of discharging his trust or unsuitable therefor,
or has wasted or mismanaged the estate, or has failed for 30 days after it is due to
render an account on or inventory of the estate of the ward. In the last case, once a
minor is granted voluntary emancipation, the minor will also be granted the power
to administer his property as though he is of age, but he cannot borrow money or
alienate or encumber his real property without the consent of his father, mother, or
guardian. He can also sue and be sued in court only with the assistance of his father,
mother, or guardian, unless otherwise determined by court that guardianship in this
case is no longer necessary.

Conclusion

Indeed, the substantive laws of China and the Philippines with respect to civil

conduct are very similar. Some provisions on the restrictions to civil capacity may be
more specifically defined under Philippine laws but since the substance are close, I
deduce that courts in China will likely decide the same way cases on the matter are
decided in the Philippines. However, I strongly observed that the Philippine
procedural laws on the matter are more defined than that of China. If China were to
review and attempt to learn from the Philippine experience, studying the
applicability of Philippine procedural laws should be of primary consideration.