Part I. Persons (by El. Poulou)
Chapter 1. Status of a Person
§1. Definition of a Person
24. A ‘person’ is the subject of rights and duties, legal relations and conditions
(e.g. nationality, domicile). Like other contemporary legislation, the AK recognizes
as persons human beings (Art. 34 AK) – also called natural persons – and legal
persons (Art. 61 AK).
I. Natural Persons
25. The term ‘natural person’ for humans has been criticized, as it implies that
nature confers the quality of a person to humans and not to the law. Nowadays,
however, it is understood that every human being, without any discrimination, is a
natural person, i.e. has legal capacity otherwise called personality. This principle is
harmonized with the Greek Constitution, which positively imposes on the state the
respect and protection of the human being’s worth (Art. 2(1)).
26. The ‘natural’ person’s personality begins with live birth and terminates
with death (Art. 35 AK).
An exception to the above rule that a human being’s personality begins with
delivery, is introduced by Article 36 of the Greek Civil Code. According to it, as far
as rights accrued to an embryo (nasciturus) are concerned, personality begins with
conception, on the condition that the child is born alive. With this regulation,
intolerable solutions that could result from the strict application of Article 35 AK
are excluded.
Though Article 36 of the Greek Civil Code is usually applied to hereditary
rights, its scope of application extends to all rights that an embryo could acquire.
For instance, reparation of moral prejudice (Art. 59 of the Greek Civil Code) or
compensation according to Article 928(2) of the Greek Civil Code in case of his
father’s killing, which took place before delivery.
Contemporary views seem to equate a fertilized in vitro ovum to an embryo. In
way the ovum should have the capacity to have human rights from the moment of
its fertilization, though implantation took place at a later stage.1 Strong oppositions
to this opinion are expressed in Greece and elsewhere.2
38 – Hellas Family and Succession Law – Suppl. 24 (October 2003)
1. Androulidakis, ‘Embryo in vitro – Rechtsnatur und Status, in Aufbruch nach Europa’, FS 75
Jahre Max-Planc Institut für Privatrecht, Mohr Siebeck 2001, pp. 797–810 (‘Der “Pro-Embryo”
ist ein zukünftige Rechtsperson, welche des Rechtsschutzes . . . . . bedarf ’ – p. 799); Davis v.
Davis 842 S. W2d 588 (597) (Tenn., 1992). From the Greek literature see A. Georgiadis,
General Principles, §9, Nos. 17, 18; I. Kriari ‘Die Verfassungsmässige Problematik des Klonens
in Griechenland’, RHDI 53 (2000) 591–612.
2. Kounougeri, ‘Biomedical progress and the beginning of human life as a civil law problem’,
RHDI (53) 2/2000, pp. 555–563 (‘since the fertilised ovum, when outside the human body, does
not contain individual human life, it may be legally characterised as a thing and at the same time
as an aspect of the donor’s personality’ – p. 563); Th. Papazissi, ‘De habeas corpus á habeas
mentem. Protection de l’ Embryon aprés les nouvelles Méthodes de la biotechnologie’, RHDI 53
(2000), pp. 565–590.
27. Death is the only end of a natural person. So-called political death has been
abolished by a decree of 1862.
The exact time of death is not defined by the AK and thus is judged by the
findings of medical science. Nowadays, contrary to the past, according to the prevailing
view, death occurs the moment when the function of the brain stops, even if
the functions of the heart and the respiratory system are supported artificially. But,
as it has been correctly pointed out, it is incompatible with human dignity (see Art.
2(2) of the Greek Constitution) to consider a clinically dead person, who is preserved
in life with artificial means, as juridically dead, too. However, L. 2737/1999
on transplants adopts cerebral death and provides for its safe diagnosis.1
Death, as well as birth, is mainly proven by certificates issued by the Registrar
(see infra Nos. 44 and 45).
Aiming to facilitate the proof of death, the AK establishes two reputable legal
presumptions. According to Article 39 of the Greek Civil Code, the death of a
person whose body has not been found is considered as proven if he disappeared
under conditions that render his death certain, e.g. explosion of an airplane while
flying.
If death is not certain but very probable, the provisions on absentia are applicable
(Arts. 40–50 AK).
The Greek Civil Code, contrary to the law previously in force, has introduced the
presumption of simultaneous death, if it cannot be proven that a person has survived
somebody else (Art. 38 AK).
1. See A. Barka-Adami, ‘The designation of death in Greek legislation and the obligation of its
medical certification’ in EllDni 37, 535.
II. Legal Persons
28. The law characterizes as subjects of rights and duties not only natural
persons, but legal persons too. This is a legislative selection aiming to the attainment
of targets, which cannot be satisfied by natural persons.
Article 61 of the AK lies down that a union of natural persons pursuing the
promotion of a purpose (association) or an entity of property devoted to a private
purpose (foundation) may be accorded legal personality, when the legal requirements
for their formation – which are recorded in law separately for each legal
person – are met.
27–28 Part I, Ch. 1, Status of a Person
Family and Succession Law – Suppl. 24 (October 2003) Hellas – 39
The Greek Civil Code recognizes the following legal persons:
– the association with legal capacity (Arts. 78–107 AK),
– the foundation with legal capacity (Arts. 108–121 AK),
– committees for collection (Arts. 122–126 AK).
29. The personality of a legal person terminates with its dissolution for any
reason provided by law (e.g. Arts. 103–106 AK for associations, 117–121 AK for
foundations, 124–125 for committees). Practical reasons, however, impose the continuation
of a legal person’s personality during the stage of liquidation. That is why
an explicit provision (Art. 72 AK) sets out that a legal person has limited capacity
during its liquidation, i.e. only for the needs of the liquidation.
Finally, it should be mentioned that, in correspondence with the legal fiction of
Article 36 of the AK, which recognizes limited legal capacity to the unborn child
(nasciturus), the provision of Article 114 of the AK stipulates that a foundation
established after its founder’s death, i.e. in case of a constitution of a foundation
mortis causa, the foundation is considered to exist at the moment of death of its
founder, so far as the estate which is dedicated to it by its founder is concerned.
§2. Capacity
I. General
30. Under Greek law, every human being, regardless of age, sex, religion etc.,
enjoys full legal capacity (or personality), i.e. the capacity of holding rights and
duties (Art. 34 AK). The law confers legal capacity also on legal persons (Art. 61
AK) and, with regard only to rights, to embryos during the period of gestation, on
the condition that they are born alive (Art. 36 AK).
Apart from general legal capacity, there are also special capacities, i.e. capacities
to being subject to specific legal relationships, e.g. of marriage, of being a merchant,
etc.
Contrary to general legal capacity, which cannot be restricted by the common
legislator, as it is protected by the Constitution (Arts. 2(1) and 5(1)), limitations
to the special capacities either by law or private will, are in principle valid, under
certain presuppositions. For example, a law (Art. 1356 AK) prohibits marriage
between close relatives.
31. As far as legal persons are concerned, their capacity does not extend, as it
is understood, to legal relations, which presuppose the qualities of a human being
(Art. 62 AK). Thus, a legal person cannot participate in any of the relations of
family law, e.g. be inherited or become an intestate successor. On the other hand,
legal persons have a right to their personality and especially to its elements, which
do not presuppose a natural person, e.g. name, honour, reputation, unhindered
development of their activities, etc. Their personality is thus protected by law in
case of an unlawful offence (Art. 57 AK, which refers to human beings but is
applied to juridical persons as well). According to an opinion, the juridical capacity
of a legal person is also defined by its aim, which is prescribed in the charter, i.e.
the entirety of rules regulating its formation and function.
Part I, Ch. 1, Status of a Person 29–31
40 – Hellas Family and Succession Law – Suppl. 24 (October 2003)
A legal person is not allowed to act beyond its purpose (ultra vires).1 As the law
imposes the recording of the charter in special books kept at the Court of the First
Instance or its publication in the government Gazette, third parties wishing to trade
with the legal person can have access to the charter (Arts. 78, 108, 122 AK).
1. Certain EU statutes, however, regarding categories of companies, e.g. limited liability companies
(Pr D No. 419/1986) lay down that even if an act lies outside the aims of a company, it
binds the latter unless the third party who entered into a transaction with it knew or should have
known that the company’s aim was exceeded. It is obvious that this regulation has strengthened
the security of transactions.
32. Legal capacity should be distinguished from related conceptions, such as
capacity to enter into juridical acts, to be accountable for torts, to sue or be sued,
etc. More specifically, in contrast to passive legal capacity, capacity to enter into
juridical acts is the active capacity of a person to produce legal effects by his own
acts.
Capacity to attempt juridical acts presupposes intellectual and spiritual maturity.
As all persons of the same age do not have the same maturity and all juridical acts
do not demand the same grade of maturity, capacity to conclude juridical acts
should be judged in each case according to the nature of the attempted act. This
flexible system, which is followed, for example, by the Swiss Civil Code, can affect
the security of the transactions. That is why the Greek legislator has preferred rigid
and stable criteria, such as the age of the person, despite the disadvantages of such
an impersonal solution.
II. Capacity
33. Persons, as far as their capacity to enter into juridical acts is concerned, are
distinguished to fully capable, incapable or of limited capacity, according to the
amended provisions of the AK by L. 2447/1996.
A. Full Capacity
34. All persons above the age of 18 have full capacity (Art. 127 AK), unless
they fall into one of the below mentioned cases of incapacity or limited capacity.
B. Incapacity
35. Incapable are:
– minors, below the age of 10 and those who are placed under full privative
judicial assistance (Art. 128 AK). The above categories are incapable of entering
into any juridical act;
– persons, whose declarations of will were made when they were not conscious of
their acts, e.g. by reason of drunkenness, high fever, intoxication, or while they
32–35 Part I, Ch. 1, Status of a Person
Family and Succession Law – Suppl. 24 (October 2003) Hellas – 41
were in a psychicological or mental disturbance limiting decisively the function
of their will (Art. 131(1) AK). The incapability of this category is temporal. It
refers only to those juridical acts of the person which are attempted under the
conditions of Article 131(1) of the AK. According to the view prevailing in
jurisdiction and among legal scholars, a declaration of will made by a person
incapable of entering into juridical acts is completely null.1 This means that
anyone having a legal interest, with the exception of the heirs of a person who
belongs in the categories cited in Article 131(1) of the AK, is entitled to invoke
nullity, which is taken into account ex officio by the Court.
The law does not protect the partner of an incapable person, even if he is in good
faith, i.e. he ignores without fault of his own the incapability of the person with
whom he enters into an agreement. But in the case of the temporary incapacity of
Article 131(1) of the AK, the incapable person may be liable for compensation for
the prejudice resulting from nullity if the latter cannot be otherwise covered (Art.
132 AK). See also Art. 171(2) AK, on the declaration of will made to a temporarily
incapable person.
C. Limited Capacity
36. The following have limited capacity to enter into juridical acts:
– minors above 10 years old, and
– persons placed under partial privative judicial assistance or under concurrent
judicial assistance.
Minors above the age of 10 are capable of attempting juridical acts from which
they can derive only a legal benefit (Art. 134 AK), e.g. donation or acquisition of
ownership over a movable. Minors above 14 may freely dispose of the revenues
from their personal work or of movable property or, according to an opinion, also
immovable property, that was given to them for use or for free disposal (Art. 135
AK). Minors above 15 are capable, with the general consent of the persons to
whom the care of the minor is entrusted, of concluding a contract of work as
employees (Art. 136 AK). Article 137 of the AK allows married minors to attempt
any juridical act necessary for the maintenance or improvement of their fortune, for
the confronting of the needs of their personal maintenance preservation and education,
as well as the current needs of their family. Juridical acts attempted under the
conditions of Articles 134–137 of the AK are valid. In the absence of these conditions,
juridical acts attempted by minors are void. According to Greek jurisdiction,
nullity of the acts of minors is absolute. It can be invoked by anyone having a legal
interest.2 The majority of the Greek legal authors, however, consider these acts as
relatively null, which means that only minors, their representatives and the minors’
successors can invoke such nullity.
1. AP 463/1983 NoV 32, 267.
2. AP 419/1971, NoV 19, 1118.
Part I, Ch. 1, Status of a Person 36
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37. As to the capacity of a legal person to attempt juridical acts, it could be said
that legal persons are fully capable for legal relations for which they have juridical
capacity. Thus, a legal person is bound by the juridical acts attempted by the
persons charged with the management of its affairs, on the condition that they have
acted within the limits of their authority (Art. 70 AK). As to a legal person’s
responsibility for acts or omissions attempted by its organs and generating liability
for compensation, the legal person may be liable, if there is adequate connection
between the act and the duties entrusted to the organ (Art. 71 AK).
III. Consent to Undergo Medical Treatment
38. Different rules apply where the person’s consent to undergo medical treatment
is concerned. In this case, legal capacity is not the decisive thing. A person
may validly consent to a medical treatment, if he is able to understand the importance,
the consequences and the side effects of the treatment or the medical act.
Depending on the nature of the medical act, consent might be assumed for minors
between 14 to 16 years old.
Likewise, a person under care or judicial assistance may have the necessary
understanding to consent to medical treatment himself. This issue is not regulated
by statute.
IV. Responsibility for Delict under Civil Law
39. The person’s capacity to be responsible under the law of tort is judged
according to Articles 915–918 of the AK. In order for a person to have a complete
responsibility under tort law, he has to be over 14 years of age. A person who is
above 10 years of age but below 14, is liable for the prejudice he has caused, unless
he has acted without discretion (Art. 917 AK). The same rule applies to deaf-mute
people.
A person shall not be responsible under tort law if:
– he acted without being conscious of his acts (Art. 915(1) AK);
– he was deprived of the use of reason because of a mental illness (Art. 915(1)
AK);
– he has not completed 10 years of age (Art. 916 AK).
However, if, at the time the prejudice was caused, this person had put himself in
such a condition through the use of alcoholic beverages or other similar means, he
shall be liable for the prejudice, unless he had reached this condition without his
fault (Art. 915(2) AK).
On the other hand, a person incapable for delict, according to the provisions of
Articles 915 to 917 of the AK, who caused prejudice, may be sentenced to reasonable
compensation, if the prejudice cannot be covered by any other means (Art. 918
AK).
37–39 Part I, Ch. 1, Status of a Person
Family and Succession Law – Suppl. 24 (October 2003) Hellas – 43
V. Criminal Responsibility
40. Criminal responsibility is recognized mainly for adults, except in the case
of deaf-mutes, if it will be judged that this person was deprived of the use of reason
to understand the wrong of his acts (Art. 33 of the Penal Code), or if he was
deprived of the use of reason, because of a mental illness, to understand the wrong
of his acts (Art. 34 of the Penal Code). Furthermore, a child, i.e. a person from 7 to
12 years old (Art. 121 of the Penal Code), is not responsible under criminal law and
only reformatory or corrective measures can be applied (Art. 126(1) of the Penal
Code). Adolescents who are held responsible under criminal law are sent to reformatory
schools, according to the provisions of Articles 127 et seq. of the Penal
Code.1
1. Arts. 121–126 of the Penal Code will be amended within 2003 (L. …./2003).
§3. Absentees
I. Institution of Absentia
41. The law has introduced the institution of absentia (Arts. 40–50 AK) in
order to regulate the legal relations of a missing person, mainly of his property and
marriage, thus eliminating any uncertainty as to other persons’ interests. This purpose
cannot be achieved by the institution of the judicial assistance of another’s
affairs (Arts. 1689 et seq. AK), which mainly aims to protect the missing person’s
interests.
Thus, according to Article 40 of the AK, ‘if the death of a person is very
probable, because he disappeared while he was in danger of life or because he is
absent for a long time without any news, the Court may declare him an absentee, at
the request of anyone whose rights depend on the death of the missing person’. The
persons who have the right to seek the judicial declaration of a person to absentia,
are for example his heirs, spouse, the beneficiary of a compensation of insurance,
but not his creditors, as their rights do not depend on the missing person’s death.
They can ask for the declaration of absentia one year after the time of danger or at
least five years after the latest news regarding this person was received (Art. 41
AK).
The relative petition is judged by the Court of the last domicile or residence of
the missing person or by the Court of the capital of the country, under the procedures
described in Articles 42–45 AK and 783–785 CCPr.