Legal Subjects: Natural Persons in Chilean Law
Subjects of the Law: Natural Persons
Concept and Classification
Article 55: “They are all individuals of the human species, whatever their age, sex, race, or status.”
A person or entity is any being capable of acquiring rights and obligations. These may be Natural (human) or Legal (moral or legal fiction).
Natural Persons
a) Existence: Natural Birth and Legal Existence
e) Presumed Death
Natural Existence: (Art. 75) The law protects the life of the unborn (e.g., suspending the punishment of pregnant women).
Presumption of Conception: (Art. 76) “From the time of birth, conception follows, according to the following rule: (no less than 180 days nor more than 300 counted backward).”
Legal Existence: (Art. 74) “The legal existence of every person begins at birth, that is, when wholly separated from their mother.” A person is deemed never to have existed if they die in the womb, before separation from the mother, or do not survive even a moment of separation.
End of Existence
This primarily occurs through Natural Death: the termination of an individual’s vital functions. Evidence: Death certificate. Article 78: “The person ends at natural death.”
Today, we also speak of clinical death, where life is maintained artificially, but there is no consciousness or intellectual process. Two electroencephalograms are performed to verify clinical death.
Comurientes: Art. 79: Presumption of death of several at one time, where none survived the others.
Effects of Death: Impacts Inheritance Law, creates widow or widower status, extinguishes personal rights and intuitu personae contracts or trusts, leads to emancipation, etc.
Presumed Death: Decreed by a Civil Judge when a person has disappeared with no news.
The process for presumed death involves three periods:
a) Mere Absence: Generally five years. Exceptionally, one year if the disappearance occurred in an earthquake or disaster, or six months if in a ship or aircraft disappearance. Effect: Appointing a property guardian.
b) Temporary Possession of Assets: Does not apply if the disappearance occurs in emergencies. In such cases, permanent possession of the deceased’s property is granted immediately.
c) Final Ownership of Assets: A consequence of the declaration of presumed death.
To declare presumed death, it is necessary to:
- Prove the absence.
- Publish the missing person’s notice three times in the official gazette.
- Hear the absent person’s advocate.
- Ensure the required time has elapsed (6 months, 1 year, or 5 years).
- Wait at least three months since the last citation.
- Publish the ruling in the Official Gazette.
- Establish the presumed day of death. Generally, it will be the last day of the first two years after the date of the latest news, unless in cases of emergency: then the day is the midpoint of the military campaign, or the day of the shipwreck, earthquake, or calamity.
Attributes of Natural Persons
1. Capacity 2. Heritage 3. Nationality 4. Domicile 5. Name 6. Marital Status
These are qualities inherent to every human being, significant for legal matters.
1. Name: The given name and surname. It is the designation used to identify a person socially and legally. It is indivisible, inalienable, indefeasible, non-transferable, generally unattachable, and immutable. It can be exceptionally changed if:
- It morally or materially undermines the person.
- There is notorious possession of another name for over five years in civilian life.
- The change prevents the registration from revealing illegitimate filiation (adoption).
2. Heritage: The set of rights and obligations, which is a) unique b) inalienable c) imprescriptible d) unattachable e) transferable and f) of legal origin.
3. Nationality: The link with a particular state that establishes rights and obligations between the State and the individual. Art. 56: “Chileans are those the constitution declares as such. The rest are foreigners.” Art. 10 of the Constitution identifies four ways to acquire Chilean nationality: 1) By birth in Chilean territory (ius soli). 2) By being the child of a Chilean public official in actual service to the republic, born abroad (ius sanguinis). 3) By letter of naturalization. 4) By special grace of a nationalization law. In Chile, the law generally does not differentiate between Chileans and foreigners in civil matters, with exceptions such as Decree Law No. 1939 (limited property rights in border areas) and non-domiciled foreigners not being able to witness a will or marriage.
4. Capacity: The power to be the subject of legal relations and the legal ability to have rights and be entitled to exercise them. It distinguishes between Enjoyment Capacity (to have rights) and Exercise Capacity (to act on them). Capacity is the general rule: “Everyone is legally capable, except those declared incompetent by law” (Art. 1446 C.civ). Disability is the exception and may be absolute or relative. Absolute disability applies to the insane, prepubescent individuals (men under 14, women under 12), and deaf individuals who cannot communicate in writing. Relative disability applies to adult children and those under interdiction for mismanagement. People are fully capable at the age of 18.
5. Domicile: The legal seat of a person for exercising their rights and fulfilling their obligations. It consists of the residence (first element), accompanied by the actual or presumed intent to remain in it (second element) (Art. 59 C.civ). It is divided into Political (Chile for Chileans, or the fact of living in Chile for foreigners) and Civil (specific address, e.g., “Street Caves 550”). Anyone with a domicile in Chile necessarily has a political address in Chile. Room or Purple refers to a de facto, usually accidental, casual, or temporary relationship with a place (e.g., a hotel). Residence is the physical permanence of a person in a particular location, more permanent and stable. Mere residence serves as a legal domicile for those without a legal domicile elsewhere (Art. 68). Address is the intent of the person to make a place their residence and the seat of their social and legal life. Presumptions of domicile include positive presumptions (e.g., opening a commercial establishment, accepting council positions, long-term employment) and negative presumptions (e.g., traveler, temporary committee, street vendor). Domicile can be general (for all legal relations) or special (for specific relations, like acting before a court). It can be legal (imposed by law), conventional (fixed by contract agreement), or real (residence with the intent to remain). Domicile is important as it determines the place for fulfilling rights and obligations (e.g., payment at the debtor’s address, estate at the deceased’s last address, procedural matters).
6. Marital Status: Art. 304: “Marital status is the quality of an individual that enables them to exercise certain rights or contract certain civil obligations.” It is the consistent quality an individual occupies in society, primarily due to family relationships, and is a matter of public policy. Sources of marital status include legal facts (birth, age, death), acts (marriage, legitimation, voluntary recognition of natural children), and court judgments (nullity of marriage, forced recognition of illegitimate children). Evidence is provided through certificates or items of civil registration.
For more information:
- Civil Code, Preliminary Book, Title 1st, Arts. 1 to 94.
- Constitution of the Republic, Arts. 1 to 23 and 63-75.