ИНОСТРАННЫЙ ЭЛЕМЕНТ В МЕЖДУНАРОДНОМ СЕМЕЙНОМ ПРАВЕ

Abstract

The changes in the paradigm of social development suggest that there is now an urgent need to consider legal phenomena from different perspectives. Scientific thought, critically assessing the legal order, is rethinking the role and significance of many legal categories. The foreign element in private international law is no exception, which has not received a generalized characterization, the studies of which are largely fragmentary, not allowing to create a holistic view of its role and purpose. In Russian jurisprudence, the category of the foreign element was introduced in the early twentieth century, was widely used in the works of Soviet authors and is now dominant in Russian law and doctrine. However, this approach is no more than an established terminological tradition. It is obvious that citizenship, place of residence and location of a thing are only characteristics of particular elements of legal relations, but they are not elements in them-selves. They only acquire legal significance when they form the basis of a conflict of laws decision. The foreign element is the criterion for choosing the applicable law (conclusion of mar-riage, marital cohabitation, the location of the object, the infliction of damage, etc.), rather than an element of the legal relationship, as stated in the binding of the conflict-of-laws rule. It expresses the most relevant, close link between the relationship and the foreign legal order. Other ties are to be regarded as having no legal significance and do not influence the choice of competent law. The resolution of cross-border family disputes requires not only a proper determination of the legal nature of the relationship, but also the establishment of its legal connection to foreign law, taking into account only the relevant circumstances and aiming at an adequate determination of the applicable law. It only seems logical to choose the competent law, which is based on the conflict of laws provision, takes into account the legal characteristics of the disputed legal relationship and expresses the most meaningful connection between the rela-tionship and the law of the other state. A special role in this is played by the court, which must ensure predictability and certainty in the choice and application of the competent law. Unfor-tunately, Russian jurisprudence sometimes interprets the purpose of the foreign element in an unreasonable way and ignores the legal connection of the disputed legal relationship with the territory of the foreign state which is objectified in the binding of the conflict of laws rule.