El interés del menor como derecho subjetivo

The limited legal capacity of the minor is recognized by our legal system without properly defined criteria, which causes divergences between legal texts and reality. Some authors, aware of this misregulation, have proposed different theories for solving those circumstances. So did the courts, although they opted for inadequate solutions in some cases. Furthermore, an accurate comprehension of the capacity of the minor requires a global overview of their role in society and their possibility to decide in all actions concerning them.

On this basis, the following proposal analyzes the status of the minor taking into account the evolution of the minority, the concept of the best interests of the child, tradicionally regarded as a principle and recently as a subjective right, and finally the free development of personality. Moreover, we study how these points are reflected in the contractual capacity of the child, to perceive more clearly the unsuitable legal regulation, even after the recent Law 26/2015 of 28 july amending the system of protection of children and teenagers, and we present our reform proposal which is based on the authors´ studies, precedents and the aforementioned study of the best interests of the child as a subjective right