Balázs Tőkey’s research while affiliated with Eötvös Loránd University and other places

Legal capacity, i.e. being the holder of rights, is an essential legal term, but it does not necessarily mean the same in all areas of law. The article focuses on the concept and regulation of legal capacity in private law and the area of fundamental rights. These two areas deserve attention because their concepts of legal capacity seem to be closely connected even though they have different purposes in the legal system. The article discusses these connections and controversies from two complementary aspects. On a historical and comparative basis, the authors describe how the concept of legal capacity is rooted and evolved in private law and how other areas of law relate to that. Then, from a doctrinal perspective, they point out that the area of fundamental rights often relies on private law doctrines, however, it needs its own concept of legal capacity. The paper concludes with a model to interpret and assess the multifaceted relationship between legal capacity-related norms of the two areas of law.

One or more forms of advance directives are regulated in the majority of legal systems. However, people generally do not create advance directives. The main reason for this problem is that people do not have enough information about this legal institution, and it is too difficult or expensive to create one. Furthermore, it is also questionable if someone has an advance directive whether it will be able to achieve the aimed legal effect. Similarly, the enforcement of the advance directives could be problematic, especially if litigation is required to enforce these wills. The situation of advance directives is more or less the same in the majority of legal systems. Our aim is to show that these problems could be solved using the already existing, e.g. in Austria or Hungary, digital health databases and by introducing a non-litigation legal dispute framework.

Our research on the operation of legal institutions related to the restriction of the legal capacity of adults (custodianship and supported decision-making) started in December 2019. Our present analysis of case law on custodianship and supported decision-making is based on cases published in the Collection of Court Decisions. The adoption of the new Hungarian Civil Code has clearly had a significant effect on the court decisions, as it made it compulsory to designate the categories of decisions to which a partial restriction on legal capacity applies. However, the change in regulation also implies a change of attitude that is considerably less apparent in the cases. In the context of international human rights expectations, any limitation of legal capacity should be applied as circumspectly as possible, and only in the most necessary cases. In the examined cases, the efforts of the Curia (the Hungarian Supreme Court) to reinforce this change of attitude in court practice may be detected but they are not extensive. At the same time, the spirit of the UN Convention on the Rights of Persons with Disabilities (CRPD) is not clearly reflected in court practice, and supported decision-making is not seen by courts as a real alternative to custodianship. Regarding the processes of the analyzed disputes, we found that the procedures in the published cases are relatively short, the higher courts in most cases upholding the decision of the lower courts, and that there is no legal or critical evaluation of any expert opinion. In a number of cases, the dominant function of custodianship is not the protection but the restriction of the rights of the given person and - against its declared goal - it serves to protect the interest of others. For example, property issues and the protection of the financial interests of family members are given priority in the published cases. In addition, there were several cases in which the authorities themselves sought to be ‘protected’ by limiting the capacity of the person to initiate official and judicial proceedings.

The current situation of medical malpractice is controversial in Hungary. On one hand the number of medical practice claims is rather law, the courts confirm the fault of healthcare providers quite often and the judicial practice have changed in several aspect to help the plaintiffs who are in disadvantageous position. On the other hand the final compensation are rather low, the liability insurances of the healthcare providers do not ensure real coverage and the alternative dispute resolutions are almost unknown. However, major reforms are not expected in this field in the near future.