Presumptions in family law wcr. Lectures on "family law". Who should be doing all this work
What are the best interests of the child? How are they determined and taken into account, including by the guardianship and guardianship authorities? We are talking about this with Elena Alshanskaya, head of the charity fund "Volunteers to help orphans"
What is "children's interests"
The phrase “children's interests”, although it sounds understandable, is quite broad in meaning. Recent confirmation of this is the seizure of ten children in Zelengrad, the threat to take the children away from their debtor parents in Tatarstan. How and by whom are the interests of children determined in each specific case?
V Russian legislation the concept of "interests of the child" is not defined. At the same time, it is actively used and is used, for example, in the same law on guardianship and trusteeship.
There are definitions given by the Supreme Court or existing at the level of regional legislation, but also with a broad and vague interpretation, for example: "the interests of a child are the conditions necessary for his full mental, physical and spiritual development." What these conditions are is completely incomprehensible.
The interests of the child today are indeed often perceived as providing for physiological and material needs - this can be seen from the practice of using the phrase or from the conditions in which it is usually used. A child is an object in need of good living conditions, in need of adequate nutrition.
Most often, what is not taken into account is what is associated with the child's relationship, his feelings, psyche. And it is clear why - it is more difficult to define, these are ephemeral things. But they must be identified, at least the basic needs of the child need to be dealt with.
Each of us understands: to a living person his feelings, his psychological condition, relationships with other people are no less important, and often more important than living conditions. A person living in poverty and eating poorly, but in conditions of love, acceptance and freedom, feels much better without affection and love, no one the right person living in abundance and perfect cleanliness.
The main needs of the child are not related to the material side of existence - they lie in the plane of relationships, acceptance, attachment.
A child deprived of a close relationship with a significant adult will not be able to perceive any good material conditions due to permanent stress and severe depression.
It's also bad for an adult to be alone. A lonely person makes us feel sorry for you. But if for an adult it is just a sad story, then for a child this story is vital. This is the foundation on which he grows and develops as a person. Therefore, the family, where the child is loved, where the child is taken care of, is his primary interest.
Of course, in life everything is not perfect and it happens in different ways. The family does not always take care of the child. A significant adult for him can be a neighbor, for example, a teacher, a family friend. An adult who takes adequate care of a child is the first thing that is needed. Sometimes the parents do not succeed, because they do not know how, did not have such experience themselves. This often happens among inmates of orphanages. Then you need to help, support, teach, and not pull the child out of the family.
But we have no understanding of this from the state bodies authorized to work with families and children. Moreover, it is written everywhere that all decisions must be made in the interests of the child. It turns out that these interests remain at the discretion of a particular employee, who understands what these interests are and protects.
Where are the teaching staff of the guardianship
- Do guardianship employees do not undergo training before taking up their positions?
In public universities there is no such specialty - "guardianship employee", there is no approved educational program... A guardianship officer is a person who has studied their job responsibilities and family law, and that's it.
Sometimes - it depends on the region, on the guardianship itself, on a specific employee - for them advanced training courses are organized, which are designed not only to give an idea of what is new in the legislation, but to really familiarize them with how to work with families, about the psychological side of such work. But often no attention is paid to this. It turns out that people who work in care are not always trained, not always prepared, have not received any special knowledge anywhere in order to solve a difficult problem: to make a decision about the life of families - children and their parents.
Since last year, we have new professional standards guardianship officer: requirements and description of what knowledge, what qualifications an employee of guardianship authorities should have. But due to the fact that there is no training program and understanding where a guardianship employee can get this knowledge, this professional standard is still a purely formal document.
In addition, in the professional standard some things are simply named, but there is no meaningful explanation. Even if they are now in the regions and carry out certification, organize courses, then the content of these things the staff of the guardianship fill themselves.
The level of training where it is, unfortunately, is different everywhere. We sometimes observe that caregivers do not have basic skills. For example, no one discusses valuable, ethical things with them, does not talk about the need to respect the person to whom you enter the house. It doesn't matter in what situation you entered the house, it doesn't matter what your suspicions are, - often communication is built by the guardian employee so terrifyingly, so humiliating towards parents, impartial and inhuman that it is understandable that people need to be taught that you can't actually do that.
In addition, with colleagues and like-minded people, we are going to develop guidelines for working with families when there are complaints about child abuse or suspicions of it. So that what we observe in Zelenograd does not happen, so that the interests of children are just taken into account and correctly understood.
- Is there a psychologist on the staff?
No, it is not required. There are psychologists in services that prepare foster families for the adoption of a child.
The interests of the child should be taken into account when placing him in a new family, right? But now, in fact, the family chooses a child, no one pays special attention to him. How to make it the other way around and take into account the interests of the child?
This can be done if the interests of the child are not considered as something divorced from his concrete real life history, from his fate.
It is very upsetting that the placement in a family is viewed as a process separate from the child's previous history, as a “thing in itself”. And they often perceive a child, looking at videos or photographs from a databank (which, in my opinion, is also devoid of ethics), as a person who has just emerged from the assembly line for the production of no one's children.
But the child gets to the point of being placed in the family from some of his own situation, from the previous family. Something happened to him, something happened such that it became necessary to find him new parents. And since we have not regulated, not organized work with the blood family, with the relatives of the child, with himself - this work, in my opinion, is sorely lacking - often the arrangement takes place completely without taking into account his specific life history, his problems, his needs.
The child becomes an object, endowed with object qualities - height, weight, head circumference, eye color, nationality, age, state of health, legal status. This data about him is most often the only one. It becomes a thing.
It is another matter if we consider not the child as an object, but his life situation. What happened to his family?
Working with a blood family
- That is, you must first try to work with a blood family ...
Why did we suddenly need a family device for a particular child? For example, because his mother began to drink alcohol. The neighbors called the police on a particularly noisy day and the child was taken away. Further, the guardianship presented the mother with a list of 50 points: what she should do to return the child. Mom, who also grew up in a drinking family, could not cope with these 50 points and lost the child completely.
What could be done here? Help mom earlier. Normal social work never looks like making demands (re-glue the wallpaper, sweep the trash, and so on) - it really is an attempt to figure out what is happening in the family, which interferes with the normal upbringing of the child.
Sometimes it turns out that it is not a person's unwillingness to change their life circumstances that interferes, but, for example, living in an apartment with other drinking relatives who involve others in the process.
Here, the simplest solution may be the division of municipal housing, the resettlement of the mother and child, and a rehabilitation program for them.
But, as it usually happens, no one worked with my mother in a timely manner, my mother did not cope. The child has no safe relatives either, because the grandmother also uses. And no one can be found who could take it. But the child goes, for example, to a sports swimming studio. The coach of this studio is a mentor for him, a significant adult. In the normal picture of the world, this is the first potential candidate for a family arrangement.
If the coach refuses, you need to look for a new family for the child, but taking into account the fact that the child loves swimming, that this section is important to him. That is, ideally, we should look for a family living nearby that will understand the importance of those attachments of the child that have already been formed.
If he wants to communicate with his beloved, albeit a drinking mother, who cannot raise him, but wants to keep in touch with him, this cannot be prevented. This must be taken into account. The child's attachments, his connections in this context are included in the concept of his interests.
You cannot look at a child as a thing, as a product, as a blond seven years old with blue eyes... It is impossible for a child to be taken away by a person who is not interested in what the child has for his soul, with whom he has developed a relationship, what was good and valuable in his life, if he is not a newborn baby, of course.
Of course, it happens that maintaining connections is just not in the interests of the child, for example, when he has become a victim of violence and it is dangerous for him to stay in the family. Each case is individual and the approach to each should also be individual. But we do not have this - there is a common comb of attitude towards the child as an object.
There are times when a child seems to "hang" in the system of orphanages. For example, his parents sent him there for some reason, but they are not deprived of their rights. How to work with your family in this case?
Here you need to work to ensure that fictitious parents cease to be such and take the child, help them in solving problems. Or look for another family for him, if it becomes clear that the blood family is not ready to raise him. Because every child has a need for family and care.
Again, this is very individual. Example. Single mothers with three children, two of whom have severe disabilities, cerebral palsy. She can't cope with upbringing. She has no way of raising them on her own. But the option of placing children in a boarding school for the rest of their lives is abnormal, bad. The same abnormal and bad option is to deprive the mother of parental rights due to the fact that she does not have enough resources.
What can be done? For example, find an opportunity for children with disabilities to have an inclusive school close to home or at least a boarding school with a day stay. Find your mom a home helper. In this situation, it is not necessary to work not for the child's family arrangement - measures are needed here that will allow the mother to cope, for example, to go to work.
Most often, in such situations, parents are not provided with the proper support that would help them raise their child on their own. The state either offers the family to cope alone or completely transfer the child to state support.
- Who should be doing all this work?
This work should be done by social services. But their level, quality of work, breadth of services and the ability and ability to communicate with the family are very different. This differs not only from region to region, but also from social service to social service. Therefore, today I consider this to be the main task.
If we really want to solve the problem of social orphanhood, we need to work with the root cause: family trouble. And for this to develop on the ground various forms of support for families with children.
They need to know where to turn in difficult times. And so that the answer to the appeal was not rudeness and the requirement to collect 150 certificates proving that you need help, but support and a desire to help the family get back on its feet and be families for your child.
We suspect everyone all the time. The poor that they just don't want to work. Those who seek help are that they are consumers. Foster parents, in that they pursue a material interest. Etc.
It seems to me that it is also very important to change the attitude of society. We must have the presumption of the conscientiousness of the parents, and in general, the presumption of the conscientiousness of people.
It is always better to give more help than to leave without support when people were on the brink of their life.
Source: Electronic catalog of the branch department in the direction of "Jurisprudence"
(Faculty of Law libraries) M. Gorky SPbSU
К309 Kachur, N.F. (Nina Frantsevna).
Presumptions in Soviet Family Law: Abstract
dissertation for the degree of candidate
legal sciences. Specialty 12.00.03 - Civil
right; family law; civil procedure;
private international law / Ministry of Higher and
secondary specialized education of the RSFSR. Sverdlovsk
Law Institute named after R.A. Rudenko. -Sverdlovsk, 1982. -
17 pp. - Bibliography. : with. 16 - 17. Material (s):
- Presumptions in Soviet family law.
Kachur, N.F.Kachur, N.F.
GENERAL DESCRIPTION OF WORK
Relevance of the research topic... An important component of the program of social and political events outlined by the 26th Congress of the CPSU is broad prospects for the further development and improvement of Soviet legislation. During the period of developed socialism, special attention is paid not only to qualitative renewal legislative framework our state, carried out on the basis of the Constitution of the USSR, but also the problems of law enforcement. As highlighted in the CT Report. To the CPSU Congress, we have a lot of good laws, "now the matter ... is their exact and unswerving implementation. After all, any law lives only when it is fulfilled, fulfilled by everyone and everywhere."
Hence, the fullest possible use of the accumulated "normative potential" acquires great importance, which in turn requires an improvement in the mechanism of action and an increase in the effectiveness of legal norms, an improvement in the practice of their application, as well as a theoretical understanding of phenomena and categories directly related to the process of their implementation.
Presumption ( praesumptio). The doctrine of legal assumptions covers a wide range of issues related to both general theory of law and branch jurisprudence. For a long time, the consideration of the problem of presumptions was understated mainly by representatives of civil procedural law (V.P. Vologzhanin, L.F. Kleinman, S.V. Kurylev, Ya.E. Levental, Ya.L. Shtutin, K.S. .) and criminal procedure law (S.L. Golunsky, V.P. Kaminskaya, Ya.L. Motovilovker, I.L. Petrukhin, M.S.Strogovich, etc.), which led to a thorough study of only the procedural role of presumptions ... Comparatively, even more so there were works devoted to the analysis of this concept in general theoretical terms (V.K. Babaev), in the civil law aspect (V.A. Nevertheless, until now, some key points of this problem have not lost their controversy, others are not the subject of research.
Practically, the issue of projective provisions in family law has not received proper coverage and does not even have an appropriate formulation. In the Soviet and foreign legal literature, there are only a few articles (part of their thesis nature), specifically devoted to certain types of family legal assumptions, mainly the presumption of paternity (V. Braikova, G. D. Vasilyeva, J. R. Vebers, Ts. Damyanov , V.P. Shakhmatova, etc.). Other marital and family presumptions either remain outside scientific research, either are recognized purely declaratively, without appropriate justification and disclosure of their content, or are touched upon along the way when considering other theoretical and practical issues (E.M. Belogorskaya, T.P. Evdokimova, N.M. Ershova, V.F. Maslov, V.F. P. Nikitina, M. T. Oridoroga, D. I. Pergament, A. M. Tabets, B. D. Haskelberg and others).
At the same time, the specificity of the subject and method of this branch of law dictates the urgent need for a fairly wide use of probabilistic definitions in the process of family legal regulation, therefore, it requires the development of an understood marriage and family presumptions, determining their range, clarifying the purpose, mechanism of functioning, comparison with similar, legal phenomena.
Despite the high level of development of legal science as a whole, the need is increasingly felt to solve one of its urgent tasks - to actively develop issues of the general part of Soviet family law, in particular, such fundamental problems as the concept and laws of the relationship between the subject and the method, and you melt the mechanism family legal regulation. The study of the theoretical category of presumptions to a certain extent corresponds to the developments in this direction.
The feasibility of studying family law presumptions is due to and practical relevance its results. Improving the ways and means of implementing the norms of marriage and family legislation contributes to the implementation of constitutional provisions on the increased protection of the rights and interests of children, the protection of the family as a whole (Articles 53, 66 of the Constitution of the USSR). As you know, "taking care of children, of a mother-woman is truly a matter of state importance in our country." The identification and use of family law assumptions contributes to the successful functioning of regulatory prescriptions, their uniform application, correct post-
swarming the process of proof, establishing legal facts, resolving disputes and, consequently, protecting the rights and interests of participants in family relations. The noted circumstances predetermined the choice of the topic of the dissertation research.
purpose of work is a theoretical analysis of family legal presumptions, which includes: clarification of their legal nature, objective grounds for existence, place and role in the process of legal regulation, classification and characteristics of their individual types, as well as the development of recommendations for the legislative consolidation of certain sensible generalizations for their practical use ...
Methodological basis of the research composed the works of the classics of Marxism-Leninism, the Program of the CPSU, materials of the congresses of the CPSU, the Constitution of the USSR and the RSFSR, other party and state documents.
In the process of research, the author was guided by the method of materialistic dialectics as a general scientific method of cognition, some specific scientific methods: comparative jurisprudence, systemic-structural analysis, deductive, historical, etc.
The theoretical basis of the research the works of famous Soviet legal scholars appeared: S.S. Alekseev, V.K. Babaev, K.M. Vorozheikin, N.I. Ershova, O.L. Krasavchikov, S.V. Kurylev, V.F. Maslov, G. K. Matveeva, K. P. Nechaeva, B. I. Nikitina, V. A. Oygenzikht, S. Ya. Palastina, A. I. Pergament, V. A. Ryasentseva, G. M. Sverdlova, V. A. NS. Shakhmatova, VF Yakovleva, and others. The dissertation makes extensive use of research on family-law problems of scientists from foreign countries, some monographic publications of Russian pre-revolutionary jurists are involved.
In the process of work on the selected topic, both the current and the current legislation on marriage and family of the USSR, the RSFSR, other union republics, foreign European socialist countries were analyzed, the guiding explanations of the highest judicial bodies of the USSR and the RSFSR, published judicial practice, as well as the practice of the people's courts Sverdlovsk Region and Krasnoyarsk Territory, some materials of the Department of Justice of the Krasnoyarsk Regional Executive Committee.
Scientific novelty of research is determined by the very formulation of the problem and an integrated approach to its solution, which made it possible to formulate the following main conclusions and recommendations.
I. For the first time in the literature, the idea of the importance of using presumptions in the regulation of relations is advanced and substantiated.
in the area of marriage and family.
2. On the basis of general provisions and achievements of legal science, the legal nature of presumptions, including family law, is revealed. They are recognized as an element of the structure of law at the level of legal prescription. From these positions, it is argued that presumptions are not a means of legal regulation along with the norms of law, since they are an internal logical mechanism for the operation of norms.
3. When classifying legal assumptions, it is concluded that it is inadmissible to divide them into legal and factual, since the latter are outside the scope of law. Additional criteria for distinguishing between substantive and procedural presumptions are proposed.
4. The definition of substantive and legal presumptions is given, their characteristic features are revealed.
5. As a result of the analysis of the specifics of the subject and method, other distinctive features of family law (functions, principles, etc.), the author comes to the conclusion that the element of presumptiveness is organically inherent in this branch of law.
6. The place and role of marriage and family presumptions in the process of legal regulation is determined, the mechanism of their functioning is investigated.
7. Throughout the study, the idea is carried out that family law assumptions are an important legal guarantee of the protection of the rights and legitimate interests of subjects of this branch of law, especially those who need increased protection from the state.
8. In a comparative analysis of marital and family presumptions with similar legal categories (axioms, hypotheses, legal facts), new distinctive features are presented. For the first time, a circle of family legal fictions is outlined.
9. The classification of family-legal presumptive establishments and a comprehensive description of their individual types are given.
10. Taking into account the theoretical conclusions, confirmed by the analysis of judicial practice, recommendations are made to improve marriage and family legislation, in particular, it is proposed to reflect in the law the equality of not only property rights, but also the obligations of spouses; regulate the procedure for foreclosure on the property of spouses for common family debts; grant the spouses the right to register property acquired in marriage, including
and deposits in the name of both spouses; to consolidate the presumption of the community of deposits; to resolve in a normative way the issue of the procedure for disposing of the common joint property of the spouses; supplement h. 4 of Art. 17 Grounds indicating the possibility of challenging paternity (motherhood) by actual parents who are not indicated in the record as such, etc. The necessity of clarification of certain provisions by the plenums of the Supreme Courts of the USSR and the RSFSR is substantiated. Their possible edition is given.
The practical significance of the research results... The conclusions and proposals formulated by the author take into account the needs of theory and practice, the current state of marriage and family legislation and can be used by rule-making and law enforcement agencies.
The theoretical provisions of the work can find application in the process of teaching the course of Soviet family law and in research work.
Approbation of research results... The dissertation was prepared at the Department of Civil Law of the Sverdlovsk Order of the Red Banner of Labor of the R.A. Rudenko Law Institute, which conducted its review and discussion. The main provisions of the dissertation work are reflected in the published articles. Certain results of the study were reported by the author at the regional scientific-practical conference of the Faculty of Law of TSU (Tomsk, 1981), the scientific conference of young scientists and graduate students of the SJI (Sverdlovsk, 1981).
The proposals developed in the dissertation on improving the current legislation on marriage and family and improving the practice of its application were sent to the All-Union Scientific Research Institute of Soviet Legislation.
Work structure due to the purpose of the study and reflects the specifics of its content, since it allows you to give a comprehensive description of marriage and family assumptions. The thesis consists of an introduction, two chapters uniting seven sections, and supplemented with appendices.
V on the introduction the dissertation substantiates the relevance of the chosen topic, its theoretical and practical significance; briefly
the main provisions for the defense are formulated; notes that new that is introduced by the author in the study of the problem.
Chapter one"General characteristics of family legal presumptions" is devoted to the analysis of the concept, purpose of family legal presumptions, the conditionality of their existence by the peculiarities of the subject and method of regulation of this branch of law, determination of their place in the system of similar legal phenomena.
The first paragraph is methodological in nature. In it, from the logical-philosophical, general theoretical positions, the concept of legal presumption is revealed, which serves as the basis for the subsequent presentation of the material.
Knowledge is always preceded by speculation. General logical assumptions are widely used in all areas of human activity, including law. Their use is one of the ways of not knowing the objective reality.
The study of legal presumptions shows that until now there is no consensus in determining their legal nature. Noting the fruitful nature of the approach to understanding presumptions as a technical and legal method and recognizing as untenable attempts to identify presumptions with legal principles, evidence, legal facts, legal prescriptions, the author comes to the conclusion that another very important point has been missed in the definition of this multivalued and multifaceted phenomenon. As a category of scientific knowledge, "probability reflects a special type of relationship between the phenomena characteristic of cash processes." The essence of a legal assumption is to establish a connection between legal facts, the obligatory derivation of one fact from another. Therefore, the presumption is special type of relationship characteristic of the law. More precisely, it is a qualitatively unique model of connections between legal facts, repeated under certain conditions an unlimited number of times and endorsed in the law. The presumption is kind element of the structure of the VA at the level of legal prescription.
From these positions, it is argued that presumptions are not a means of legal regulation, they cannot be put on a par with regulatory prescriptions. Perceived as legal norns, they represent an internal logical mechanism action of these norms, ensuring the fulfillment of the requirements contained therein.
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When classifying legal assumptions on various grounds, the thesis is put forward about the inadmissibility of their division into legal and factual, since the latter, as a phenomenon of an illegal order, are outside the sphere of law, although they, no doubt, exist and play a certain role in the cognitive activity of the court and the other; jurisdictional authorities. In addition, the author argues for the provision on the absence of indefinable presumptions in Soviet law. When dividing presumptions into substantive and procedural, it is clarified that substantive assumptions are used not only in court proceedings as a rule for resolving a case on the merits, but also in the activities of other bodies (for example, a registry office).
When characterizing the role of the substantive legal presumption in the mechanism (drape regulation, a position is developed that the presumption is not only a prerequisite for establishing legal facts (V.K. Babaev, E.A. Oigenzikht), but in some cases it can notice a legal fact, acting as a kind of constitutive ele cop jurid technical composition, entailing the emergence of a legal relationship. In some cases, the law connects the emergence of rights and obligations with the assumption of the existence of a fact, which has the same legal significance as the fact itself. For example, when a married woman gives birth to a child, the paternity of her husband is presumed.
On the basis of the analysis of the essential features of substantive and legal presumptions, the dissertation candidate comes to the conclusion that their definition should contain the following points: a) normative consolidation; b) logical nature, i.e. probabilistic nature; c) the connection of the alleged fact with the facts in cash; d) their role in the process of legal regulation; e) the legal consequences caused by them. So, substantive presumption- there is an assumption enshrined in the norms of law, acting as a prerequisite for the establishment (non-establishment) of one legal fact in the presence of others, and in some cases - a substitute for a legal fact entailing certain substantive consequences.
The second paragraph examines the objective grounds for the existence of family-legal presumptive establishments as a variety of substantive assumptions.
Their presence is primarily due to the fact that the overwhelming majority of the institutions of Soviet family law are of a regulatory nature. In such legal systems, one cannot do without assumptions, assumptions, in contrast to the branches of law, subject to the decision
law enforcement tasks. Presumptions are an indispensable attribute of the proper organization of social relations in the field of marriage and family in accordance with the requirements of objective laws, the needs of life.
One of the specific features of betraying family law is that intra-family relations, as a rule, have a strong, long-lasting and stable character. The normal functioning of such relations requires special methods of legal regulation. Therefore, with the proper registration (registration) of certain legal facts, one should proceed from the assumption of the existence of a legal connection generated by them between the subjects, which arose in the presence of sufficient grounds.
Among the defining features of the method of family legal regulation is the imperativeness of most of its norms. It is no coincidence that the legislator gives preference to categorical, undoubtedly, mandatory prescriptions in comparison with norms that give the subjects the right to choose a possible option of behavior permitted by the state. In a number of cases, in order to protect the interests of children, it is more justified to consolidate presumptive generalizations and even legal fictions than to provide a certain scope for the parties for an "autonomous", independent solution of a particular issue. One more purely constructive detail should be noted - presumptions are most often the logical basis of imperative prescriptions.
Marital and family relations are experiencing the regulatory impact of both the rule of law and the norms of morality. If property relations in the family are mostly controlled by the state and require clear and precise regulation, then with regard to personal non-property relations, the possibilities of legal regulation turn out to be significantly limited.
Some aspects of intra-family ties (psychological moments) are generally outside the sphere of law, excluding even the indirect impact of legal phenomena on them. Other parties (intimate life) - remain outside the scope of legal regulation due to the unnecessary state intervention in the area of purely personal relations, since their excessive regulation can lead to the crossing of the line beyond which the legal approach to reality becomes unreasonable. Finally, those personal non-property ties that can be subjected to a positive legal impact do not require a lot of specification, detailing situations and options * of behavior of subjects. To perform actions affecting
the interests of the family as a whole, often the expression of the will of one of the spouses is sufficient, the consent of the other spouse is assumed.
The leading sign of marriage and family relations is the deeply personal nature of the ties between its subjects. The essence of family legal relations is such that, regardless of the type, they always include an element of personal, confidential, which in certain cases prevents their ordering with exhaustive completeness, leaving room for assumptions, guesses, assumptions.
The condition that predetermines the presence of presumptions in family law is the objectively existing impossibility of reliably establishing certain legal facts. First of all, we are talking about establishing the blood origin of one person from another. Taking into account the real possibilities and achievements of biomedical science, as well as the existing methods for determining the blood ties of persons, the legislator, when constructing the rules governing the procedure for registering the origin of children, is forced to resort to the use of presumptions.
If in some cases the use of family legal presumptions is caused by the difficulty, and sometimes by the objectively existing impossibility of reliably establishing the presence or absence of certain legal facts, in others - by the inexpediency of such an establishment, despite the smoldering objective possibility. There are situations where figuring out the truth can do immeasurably more harm than making assumptions about generalizations developed by long-term human practice.
The circumstances that determine the presence of presumptions in family law include the need for careful intervention in this extremely vital sphere of human relations, not only at the stage of their regulation, but also at the stage of realizing the rights and obligations of subjects. Excessive intrusion by law enforcement agencies into the privacy of the parties is often fraught with undesirable consequences. The use of presumptions frees the court from a thorough study of certain circumstances, the relationship of the disputing parties.
The existence of family law assumptions is explained by the functional purpose of this branch of law, designed primarily to ensure the interests of the child's mother. Presumptions that play the role of reliable legal guarantees for the protection of their rights and interests are an effective means of implementing this task.
Finally, one more circumstance should be noted - the processes taking place in the family are hidden from outside interference, often
inaccessible for deep scientific knowledge, which also complicates their legal regulation.
The originality of legal matter mediated by family law, the method of its regulation, other distinctive features (functions, principles, etc.) allows us to conclude that the element of presumptiveness is organically inherent in this branch of law. Hence, the correct choice of the most acceptable socially justified boundaries and means of legal influence, a certain sense of proportion and tact, a special set of "legal tools" for regulating the very delicate environment of human relations, which prompts the legislator to use such a specific technique as a presumption, acquire special significance.
In the marriage and family legislation of the RSFSR, in contrast to the legislation of other union republics, European socialist countries, none of the presumptions is formulated in the law itself, all of them are derived from the content of the norms through interpretation. The work focuses on the mechanism of action, it is equally possible to talk about the mechanism of using family-legal assumptions, which depends on the role they play in the process of legal regulation. The options for the functioning of family legal presumptions are given.
Family-legal presumptive generalizations serve the uniform legal regulation of public relations, the stability of law enforcement practice, contributes to the implementation of the requirements of regulatory prescriptions, helps to establish a rational procedure for proving the circumstances of the case between the participants in the process, has an active effect on the emergence of legal relations, allows the best way to identify the existence of a fact when otherwise it cannot be established, act as an important guarantee of the protection of the rights and legitimate interests of subjects of family law, bring stability to legal regulation, making it more logical, flexible, and consistent.
In the third paragraph, in order to more effectively use family law presumptions, their place in the system of similar legal phenomena is determined. Additional demarcation signs are produced to distinguish them from axioms and hypotheses. The question of comparing legal and presumed facts is highlighted in detail.
Particular attention is paid to the comparison of the marriage and family proposal with a specific, extraordinary reception of legal technology.
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ki is a fiction. For the first time in the literature, it is outlined to family law fictions, which include: the record of the father of a child born out of wedlock, by the name of the mother (part 3 of article 17 of the Fundamentals); record of the last name, first name, patronymic, place of birth of the found child, if his parents are not known (clause 16 of the Instruction on the procedure for registering acts of civil status in the RSFSR dated October 17, 1969, No. 592); recording the surname and patronymic of the adopted child by surname, adoptive parent, as well as changing the name of the child (Article 105 of the RSFSR CoBS); the registration of the adoptive parents as parents and the relationship between both , generated by such a record (Article 25 of the Fundamentals); change of the date and place of birth of the child in order to ensure the secrecy of adoption (Article 110 of the MSC).
In the second chapter dissertation "Types of family legal presumptions" gives a classification of marriage and family presumptions and a detailed analysis of their individual types.
All the variety of family legal assumptions can be divided on various grounds: by the breadth of coverage of the area where they are applied, into general and private; by targeting the presumptions acting in the interests of the child, mother, spouses; by their role in the process of proving presumptions established in favor of one party or both parties, etc. The most shelf that allows you to show the purpose, features of marriage and family assumptions is their differentiation based on their relevance to individual legal institutions, in accordance with which they are divided into several groups, the study of which is devoted to a separate paragraph.
1. Among the presumptions in force in the field personal relations of spouses, refers primarily to the assumption of the reality of marriage (L.F. Kleinman, A.M. Rabets), which is indirectly reflected in Article 15 of the Fundamentals. It was first formulated and applied in Roman private law - semper praesumptur pro matrimonio (there is always a presumption in favor of the legality (validity) of marriage).
The presumption under consideration includes two points: the assumption about the presence of all the elements of a complex legal structure that underlies the emergence of the marriage relationship, and the assumption about the actual state of the persons who registered the marriage in marital relations, their formation of a family. Marriage is presumed to exist until the legality of its origin or its actual existence is denied.
This group of presumptive generalizations includes the presumption of the spouses' consent in resolving issues of family life (Article II of the Fundamentals),
which applies to several family law institutions. Its varieties are the presumption of spouses 'consent in matters of raising children (Article 18 of the Fundamentals), the presumption of spouses' consent when assigning a given name and surname (with different surnames of the parents) to a child (Article 51, Part 3, Article 148 of the MSC), the presumption of consent of the spouses when the surname of minor children is changed (part 3, article 158 of the Code of Border Protection), etc.
II. The presumption is used very effectively in the field of property relations of spouses... The leading place among them is occupied by the presumption of the common property of the spouses, which means that all property acquired during the marriage belongs to the spouses, until proven otherwise (Article 12 of the Fundamentals),
When establishing the boundaries of the use of the presumption of generality, the issue of legal status property acquired by spouses during the period of marriage, but during their separation. It is proposed to supplement the RSFSR CoBS with a provision on attributing property acquired by spouses during the period of separation to their personal property from the moment of the actual termination of the marriage relationship.
For a better understanding of the essence and those functions that the presumption of community performs in the process of implementing legal norms, it should be considered not only statically, but also in dynamics, in motion, where it is subdivided into the assumption of community of marital acquisitions and the assumption of the commonality of matrimonial expenditures, therefore, and debts.
When covering the presumption of common marital expenses, the author examines the unresolved issue at the legislative level of the fulfillment of obligations assumed by both spouses or one of them, but in the interests of the whole family. An analysis of various points of view, legislation, and judicial practice led to the conclusion that such an obligation cannot be either shared or jointly and severally, it should be considered common and spouses on equal the grounds of the valley to be liable to the creditor with their personal and common property. As a result, the author, firstly, supports the opinion expressed in the literature (V.I.Danilin, K.I. Manaev and others) about the need to reflect in the law the equality of responsibilities of spouses; secondly, it proposes to regulate the procedure for foreclosure on the property of spouses in common
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family debts, and the design of such a rule should reflect the presumption of a community of debt.
Taking into account the peculiarities of the legal rationing of individual constituent parts of the common joint property of spouses, it is necessary to single out from the general generic concept of the assumption of community some of its specific concepts: the presumption of community of deposits, gifts, government bonds, lottery tickets and winnings on them, etc. Particular attention is paid to the issue of the legal status of spouses' deposits in savings banks and other credit institutions. Recommendations are made on the need to consolidate the presumption of the community of deposits in the law; on granting spouses the right to register property subject to registration with state bodies, including deposits, in the name of both spouses, indicating the procedure for disposing of such property.
The presence in family law of the presumption of the consent of the spouses to dispose of the common joint property of the spouses is generally recognized (part 1 of article 12 of the Fundamentals), however, as judicial practice shows, in fact it does not work. When resolving disputes on invalidating transactions for the disposal of common property by one spouse without the consent of the other spouse, the courts proceed from the civil presumption of good faith of the counterparty (acquirer) and are guided by various rules: on the recognition of transactions as invalid (Articles 41-61 of the RSFSR Civil Code) and on vindication property (Article 152 of the Civil Code). It is proposed to regulate the issue of the consequences of transactions involving the disposal of common joint property by one spouse without the consent of the other spouse in a normative way. In this aspect, the opinion is defended about the need for separation in family law three types of transactions: small household, household and beyond household (the division is based on Part 3.4 of Article 133 of the Code), for each of which there should be a different order of refutation of the said presumption.
Another assumption operating in the sphere of property legal relations between spouses is the presumption of the correspondence of equality of shares to the interests of the spouses. When substantiating it, it is delimited from the principle of equality, the mechanism of its action is described.
3. The most important place in the system of marriage and family assumptions is presumption of paternity, which finds application in almost all cases of certifying the origin of children on the paternal side. When a child is born from parents who are in a registered marriage, the law (part 2 of article 47 and part 1 of article 49 of the MSC) proceeds from a high degree of probability of paternity of a person who is a husband
mother of the child. This presumption was formulated by the Roman jurists -pater est quem nupitae demonstrant (that is, the father to whom the marriage indicates). It is also known to the legal systems of many socialist and bourgeois states. The purpose of this presumption is to consolidate the method of establishing the fact of the child's origin.
In the practice of applying legal norms containing the assumption of paternity, the question sometimes arises whether a married mother has the right not to indicate her husband as the father of her child. The current all-Union legislation does not contain an answer to this question. In order to avoid the ruling by the registry office of knowingly incorrect entries and going to court on indisputable cases in such cases of a fictitious entry, the procedure for refuting the presumption of paternity should be opposed, but not on the unilateral statement of the mother, but on the joint statement of the spouses and the actual father of the child. It is desirable that this issue be clarified in the resolution of the plenum The Supreme Court THE USSR.
When considering controversial issues of refutation of the presumption, paternity, the opinion is substantiated about the need to grant the actual parents, who are not indicated in the act record as such, the right to challenge paternity (motherhood) by supplementing Part 4 of Article 17 of the Fundamentals.
The presumption of paternity is also of great importance in cases of the birth of children from unmarried parents. Thus, voluntary recognition of paternity (part 2 of article 16 of the Fundamentals) is legalized due to the fact that the actual origin of the child from the applicant is presumed (E.M. Vorozheikin, V.M.Koshkin, V.L. Oygenzikht). The assumption that the actual, and not the imaginary, father is exercising the right granted to him by law is highly probable, since it arises due to an indisputable, duly certified kinship.
V recent times in the practice of the registry office, there are still cases of recognition of paternity by a person in relation to someone else's child. In the literature, an opinion has been expressed about the possibility of voluntary recognition of paternity in relation to someone else's child (Ya.G. Webers, V.D. Ryasentsev) and even the need to give legal force to such recognition (A.A. Pushkin, L.A. Kuzmicheva), which meant would be essentially the consolidation of legal fiction. According to the candidate for the dissertation, the addition of a fictitious provision to a presumptive norm is impossible, since these two categories are incompatible. In addition, one should not attach legal significance to the fact that a) does not correspond to the truth, b) has an insignificant distribution, c) is regulated by law (Article 106 of the Code of Belarus),
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d) violates the interests of the real father, who wishes to recognize paternity.
In this regard, it is of interest to question whether a person who deliberately registered himself as the father of a child, but who knowingly knew about his origin from another person, has the right to dispute his paternity. The practice of courts in its decision is ambiguous. Despite the widespread opinion in the literature about the inadmissibility of challenging paternity established on a voluntary basis, the author substantiates the provision that the refutation of the deed of paternity in this situation should be made on a general basis. From persons who knowingly knew about the origin of the child from another person, but who recorded the child in their own name, and subsequently challenged the act record, to recover alimony as from actual caregivers (Article 85 of the MOSC). It is desirable to reflect the proposed decision at the level of clarification of the plenum of the Supreme Court of the USSR.
If the named assumptions of paternity arise in indisputable order, are applied unconditionally and without exception in all cases for which they are designed, then the presumption of paternity associated with the establishment of paternity in a claim arises only in court proceedings and requires judgment(Part 3.4, Article 15 of the Fundamentals). In this case, the use of the presumption of paternity has certain boundaries: it arises only when the court establishes one of the alternative circumstances provided for in part 4 of Article 16 of the Fundamentals, and evidence confirming the origin of the child from the defendant.
Equally, the assumption of paternity is valid when establishing the fact of paternity (Part 3.4, Article 16 of the Fundamentals) and the fact of recognition of paternity (Article 3 of the Law "On Approval of the Fundamentals of Legislation of the USSR and the Union Republics on Marriage and Family" dated June 27, 1968. ).
Differences in the normative consolidation, grounds and scope of application, the procedure for manifestation and refutation made it possible to conclude that there is an institution of this presumption, consisting of a number of similar in nature, but essentially independent, presumptive provisions.
4. Protection of the rights and legitimate interests of minors is also carried out with the use of presumptions, parenting, which are united into one group according to their target orientation. These include, first of all, the presumption of parental consent in the upbringing of children (Article 18 of the Fundamentals) (VA Oygenzikht). The effect of this presumption should be extended to adoptive parents, provided that they are spouses, since the process of realizing the right to upbringing, whoever
neither was the educator, one and the same.
General assumptions include the presumption of proper upbringing of children by parents and their substitutes. It is based on the undoubtedly existing subjective right of children to proper upbringing and the corresponding obligation of all citizens to provide such upbringing, elevated to the rank of constitutional (part 2 of article 35, article 66 of the Constitution of the USSR). This presumption has a number of varieties, depending on who is the person responsible for the upbringing of children. It applies equally to actual educators, as evidenced by the possibility of its refutation. An analysis of judicial practice shows that non-property measures can be applied to these persons for improper upbringing of children, namely, the removal of children in court. It seems expedient for an explanation of the plenum of the Supreme Court of the USSR to be given on this issue.
Yu.S. Sokolovskaya., T.P. Evdokimova believe that the imperative nature of Part 5 of Art. 13 Fundamentals presumes the priority right of parents to raise children over third parties. It seems that the authors unreasonably identify two theoretical concepts: subjective right and presumption. The preferential right of parents to raise children is enshrined in the law (Article 58 of the MOSC). This norm, according to the author, is based on the presumption of preference for the upbringing of children by parents. Its meaning lies in the case of a dispute between parents and persons who are actually raising children, under equal conditions, preference is given to parents if it is not proved that the transfer of children to them does not correspond to the interests of the latter.
This non-group of presumptive provisions should include the presumption of the validity of adoption (Article 24 of the Fundamentals), which acts similarly to the presumption of the validity of marriage, and the assumption of the child's consent to adoption (Part 2 of Article 103 of the Code of the Russian Federation).
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Presumption of common property of the spouses. - In collection: State and law in the system of social management. Interv. Sat. scientific. tr. Sverdlovsk, SUI, 1981.
Cancellation of the paternity deed. - In collection: Issues of improving social and legal regulation. Interv. Sat. scientific. tr. Sverdlovsk, SUI, 1981.
Information updated:09.12.2013
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Description
Forms of state support for families;
Which bodies are subjects of family law policy;
Legal facts that cause the emergence, change and termination of family law relations;
What relations of family members are outside the scope of family law;
Sanctions applied for non-compliance with family law;
What family law issues are within the purview of the government?
Ways to protect family rights;
In what cases the rights and obligations of family members can be determined based on the analogy of law.
The work consists of 1 file
- in establishing limitation period(total term 3 years);
- upon the presentation by the creditor of the debtor's spouse of the requirement to change the conditions of the marriage contract;
- when determining the child's right to dispose of property;
- when the parents dispose of the child's property;
- in case of non-compliance with the form of the agreement on the payment of alimony;
- when determining guardians / trustees for citizens;
Article 5 of the IC provides for the possibility of applying the analogy of the law - solving a legal issue on the basis of a law regulating similar relations; and the analogy of law - the solution of a legal issue on the basis of general principles and the meaning of legislation. The purpose of the analogy is to fill gaps in family law.
Conditions for applying the analogy:
- controversial family relations not settled either by family law or by agreement of the parties;
- there are no norms of civil legislation regulating certain family relations;
The application of the analogy of law or law falls within the competence of the court, not of the family members. The court does not have the right to deny justice due to the absence of a specific law.
Legal facts in family law
These are life circumstances provided for by law, which are the basis for the emergence, change or termination of relations.
Classification:
- by will:
- actions
- lawful (adoption)
- unlawful (marriage with a legally incompetent)
- developments
- absolute (death)
- relative (state of kinship)
- by the terms of existence:
- short term
- conditions (pregnancy, need)
- on legal consequences:
- right-giving (childbirth)
- those who change (change of name)
- terminating (death)
- obstructing (impossibility of divorce without the consent of the pregnant wife)
- restorative (restoration of parental rights)
Lecture No. 4 09/04/2009
Family relationships arise from kinship or property.
Affinity - blood connection of persons descended from one another or from a common ancestor.
Relationship can be direct or lateral.
Direct - parents, children, grandchildren.
Lateral - father, mother; brothers, sisters.
Property is a social bond that arises between the parents of one spouse and the other spouse, between spouses or relatives of the spouses.
Protective Measures and Responsibilities in Family Law
Protection of rights is carried out in a judicial and administrative order.
Ways to protect family rights:
- Self-defense;
- Recognition of the right by the court;
- Restoration of the violated right;
- suppression of actions that violate the right or create a threat of its violation;
- Recognition of the transaction as invalid;
- award to the performance of duties;
- termination (change in the family relationship);
Family legal responsibility is the obligation of a person to endure deprivation of a subjective right or adverse consequences of his unlawful behavior.
Grounds for family liability:
- required;
- guilt;
- illegal behavior;
- additional;
- the damage caused and the causal relationship between the unlawful behavior and the consequence;
- should distinguish between liability measures and protective measures
A responsibility:
- the goal is to punish the offender;
- applies if the offender is guilty;
- the offender suffers adverse property consequences and deprivation of subjective rights;
Protection:
- the goal is to protect interests;
- applies regardless of the fault of the offender;
- the offender is sentenced to the performance of duties in the event that he does not perform it voluntarily;
Presumptions and Fictions in Family Law
Presumption - an assumption about the presence or absence of phenomena, confirmed by previous practice.
- presumption of community of property acquired in marriage;
- presumption of consent of the other spouse to conclude a transaction for the alienation or acquisition of common property;
- presumption of paternity in marriage;
- presumption of paternity in a civil marriage;
Fiction - the techniques of conscious identification of the true with the untrue
A fictitious relationship is a relationship that outwardly (in legal form) meets the requirements of the law, but in terms of purpose and content does not correspond to it up to the opposite.
Types of fictions:
- fictitious marriage;
- fictitious divorce (improve housing conditions, get housing);
- fictitious adoption (for the purpose of exploiting a minor);
- fictitious collection of alimony;
- fictitious division of property;
- fictitious marriage contract;
- fictitious recognition of paternity (deferral from the army, receiving benefits);
- other
Grounds for the appeal
To court
1. dissolution of marriage;
2. recognition of marriage as invalid;
3. division of the spouses' property;
4. change / termination of the marriage contract;
5. establishing paternity;
6. challenging paternity / maternity;
7. resolution of disagreements;
8. deprivation of parental rights;
9. protection of parental rights;
10. recovery of alimony;
11. determination of the procedure for incurring family expenses;
12. change in the amount of alimony;
13.other
To the prosecutor's office (files a lawsuit)
1. recognition of marriage as invalid;
2. deprivation of parental rights;
3. restriction of parental rights;
4. cancellation of adoption;
5. compulsory participation in cases of deprivation, restriction, restoration;
6. others.
Lecture No. 5 09/08/2009
Marriage
Have it with you!
Law "On Acts of Civil Status"
Resolution of the Plenum of the Supreme Court of 05.11.1998 No. 15 "On the application of legislation by courts when considering cases of divorce"
Points of view on the concept of marriage in literature:
- Shershenevich - an agreement between a man and a woman for the purpose of cohabitation, concluded in the prescribed form .;
- Meyer is a union of persons of different sex, based on a feeling of love, which has its purpose to replenish the personality of another person .;
- Hegel - marriage - legal, moral love .;
- Kant - believed that the contract can not give rise to marriage, tk. always has a certain temporary goal, upon reaching which it exhausts itself .;
- Iofe - marriage is based on mutual love and respect.
Conclusions: 1 - in Soviet legal science, the sign of marriage was the mutual love of spouses; 2 - the purpose of marriage is to create a family; 3 - marriage cannot be a deal, but is a free and voluntary union of a man and a woman; 4 - in the modern science of Family Law, 2 points of view are distinguished: a) marriage is a strong-willed union that generates legal consequences; b) marriage is an ordinary civil contract. So, marriage is a legal union of a man and a woman, with the goal of creating and maintaining family relations and giving rise to mutual rights and obligations.
Conditions for contracting a marriage (requirements established by the Family Code, necessary for contracting a marriage) article 12 of the UK:
- reaching the age of marriage (should not come at the time of filing the application, but at the time of registration of the marriage) according to clause 2 of article 13, if there are valid reasons, the age can be reduced with the consent of local authorities to 16 years. If provided by the law of the Subject, then the age may be less than 16 years .;
- voluntary consent. The will must be expressed in person, and one can apply, but the notarial consent of the other spouse is required. If the person cannot appear, then the registration period can be increased. There should be no violence, coercion, deception.
Circumstances preventing the conclusion of a marriage (if any, state registration of marriage is impossible) Article 14 of the UK:
- state in another, registered marriage (cohabitation is not an obstacle);
- marriage between close relatives;
- incapacity of a person;
- marriage between an adoptive parent and an adopted child.
The law has not established any other hindering circumstances. The refusal can be appealed against in court. The registry office can refuse only if it has documents on the presence of obstacles. A marriage can be contracted in any registry office in Russia.
From the moment of filing the application, 1 month must pass. If there are valid reasons, the period may be reduced, i.e. it is possible on the day of application.
According to article 15 of the RF IC, persons have the right to undergo a medical examination, but the results are communicated to each other only with their consent. If one of the spouses has hidden such a disease as HIV, then the marriage can be declared invalid at the request of one party.
Actual marriage
Actual marriage (civil marriage) - not registered with the registry office.
Can be created between persons:
- different sex;
- of the same sex;
- mentally ill;
- polyandry (several men and one woman);
- close relationship.
Such a union has no family legal protection.
Pros and cons of civil marriage
«+»
have not reached marriageable age
always voluntary consent
paternity and childhood are equated to legal
do not pay alimony
not limited in time (it is difficult to fix the moment of creation / acquisition of joint property)
no notarial consent is required for the purchase of real estate
you can get to know each other better and make sure of the need to conclude a legal marriage
«-»
do not inherit by law
- Introduction
- 1. The concept of fiction in law
- 2. Fictions in family law
- Conclusion
- Bibliography
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