The new treatment of capacity in Peruvian civil law. A necessary cross-sectional analysis of the capacity in the different books of the Civil Code

Peru has a new treatment of capacity in the 1984 Civil Code, which is adapted to the United Nations guidelines for the autonomy and full legal capacity of persons with disabilities, and which is consistent with national legislation with the Convention on the Rights of Persons with Disabilities. This convention has been gradually being implemented in other legal systems (to mention a few: Argentina, Brazil, Colombia, Mexico, etc.). The regime of substitution of the will of the incapable people has been replaced by a social or assistance model through the so-called supports and safeguards. We are, naturally, before an inclusive model, democratic per se, in accordance with respect for the human rights of all citizens, especially in terms of their dignity and equality before the law, taking into account that the term disability is replaced by disability and Interdiction and guardianship are maintained only for specific cases (subjects with restricted capacity indicated in paragraphs 4 to 9 of Article 44). However, in our environment, after the entry into force of Legislative Decree No. 1384 and its regulations, Supreme Decree No. 016-2019-MIMP, several unfinished aspects are noted that, despite the reform, remain as old legal figures, as well as problems regarding the interpretation and application of the different devices contained in the aforementioned regulations on the new treatment of capacity. Capacity is a topic of cross-cutting interest in law. Not only does it occupy or concern civil law (people, family, legal act, inheritance, contracts, civil liability, etc.), but also the rest of areas (labor, corporate, administrative, etc.), due to its substantive content and adjective. In this context, the present study, from the doctrinal, legislative (national and comparative) and jurisprudential formant, given the importance of the capacity in law in general, seeks to analyze the various scopes of this new treatment, identify problems and propose solutions. in relation to legal practice. All this in order to achieve a stronger and more cohesive civil law, within the principles of social inclusion and democracy.