Arguments for a reinterpretation of article 3º of the peruvian Civil Code : enjoyment of rights vs. capacity for the enjoyment of rights

Resumo

This paper discusses the concepts contained in article 3º of the current Peruvian Civil Code of 1984, which literally regulates: “Every person has the enjoyment of Civil Rights, with the exceptions established expressly by law”. In the comments on this rule, the traditional peruvian civil doctrine has reiterated that it refers to the subject’s capacity to enjoy on their Civil Rights, discussing even about if this capacity could or not allow restrictions, but without considering that in the rule Civil Rights are fundamental rights. National case law does not arise the question and maintains directly that the legal precept regulates the capacity to exercise because only this capacity could allow restrictions. For these reasons, on the basis of normative and law arguments, it is propone a reinterpretation of the said article 3º with a correct conceptual distinction of the expressions “enjoyment of rights” and “capacity for the enjoyment”, noting that the inadequate treatment of these legal terms causes, in theory, a inadmissible conceptual confusion and, in practice, a possible lack of immediate protection of Civil Rights with the mistaken understanding that about them the persons have only capacity for the enjoyment, which means that there is only one potential ownership of rights and not a current and effective enjoyment of rights.