Family Code Research Articles

프랑스법상 익명출산제도에 대한 재고찰

Birth registration is a basic and essential element to receive legal protection and public services such as education, health care, and social security as a member of society. Birth notification system should be introduced that allows the birth of a child to be notified at the facility (ex: hospital) where the child was born, regardless of nationality. However, the birth notification system requires consideration for parents who are reluctant to reveal their identity as the fact of birth is notified or reported regardless of the parents’ will. In short, in order to protect a child's basic rights (right to life, etc.) that can be exercised by exposure of identity, anonymous childbirth under French law should be introduced along with the birth notification system. In French, The consecration of the ‘Mater semper certa rule’ does not put an end under the possibility for the mother to request at the time of giving birth that “the secret of her admission and of her identity be maintained” (art. 326). Hence, her name will not be indicated on the birth certificate, and in consequence, filiation will not be established in relations to her. The impossibility of establishing filiation later on in case the secret would be revealed, is guaranteed since the law of January 8th 1993 by a flat refusal against all actions relating to research of natural maternity(art. 325, art. 341-1 anc.). Meanwhile, to ensure better balance of the interests of those involved, the legislator has intervened through the law of January 22nd 2002. Article L.222-6 of the Social Action and Family Code ends to ensure that a woman who gives birth under X is fully aware of the importance and the judicial consequences of her decision. She is reminded “the importance for each person to know her origins and her history.” In consequence, she is invited to leave “if she agrees to it, information about her health and that of the father, the origins of the child and the circumstances of the birth as well as, in a sealed envelope, her identity.” She is informed that at any time she can leave her identity, in a sealed envelope or complete the information she has provided at the time of birth. The mother is informed as well of the possibility she has at any time to lift the secrecy of her identity. It is hoped that this paper will be helpful in introducing an anonymous birth system in the future.

The Duration of Pregnancy in Contemporary Islamic Jurisprudence (fiqh) and Legislation: Tradition, Adaptation to Modern Medicine and (In)consequences

AbstractThis article deals with assessments by a number of contemporary Sunni fiqh experts on the legal duration of pregnancy. Most of them strive to demonstrate that classical jurisprudence (fiqh) and modern medicine are perfectly compatible, despite the fact that the former contemplates gestational periods far longer than nine months. Also, they make proposals for national legislative bodies to best accommodate medical evidence to shari`a’s ethical and legal standards. In this way, they legitimize the drastic shortening of the legal duration of pregnancy that had already taken place in the family codes of most Muslim majority countries in order to adapt the Islamic jurisprudence on which these codes are avowedly based to modern medical knowledge. In this specific legal change case‐study, legislation appears to have drawn jurisprudence rather than the reverse.The adoption of the medical duration of pregnancy affects such extremely sensitive issues like the criminalization of non‐marital sexual intercourse and the denial of paternal filiation to the resulting offspring. As long as the latter two fields are not revised accordingly, the contemporary fiqh and legislation on the matter will seem flawed since their implementation leaves women and their children deprived from legal protections they used to have under the corresponding classical jurisprudence in the pre‐modern period.

ВІДПОВІДНІСТЬ МОРАЛЬНИМ НОРМАМ ЯК ВИМОГА ДО ЗМІСТУ НОРМАТИВНО-ПРАВОВОГО АКТА

The article is devoted to the general theoretical research of the issues on conformity of moral norms in the normative legal acts. The importance of the substantive part formation of the legal act is emphasized. The existence of established doctrinal approaches to the relationship between morality and law as regulators of social relations is stated. The criteria for distinguishing between law and morality are highlighted, as well as their common features are described. The object of the study is the Universal Declaration of Human Rights of 1948, the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the International Covenant on Economic, Social and Cultural Rights of 1966, the Constitution of Ukraine, the Family Code of Ukraine, the Labor Code, the Civil Code as well as the Criminal Procedure Code of Ukraine. It is established that the Universal Declaration of Human Rights of 1948 often uses the appropriate moral categories: «honor», «dignity», «justice», with an emphasis on «morality» itself. The analysis of doctrinal approaches to the impact of moral norms on the specific areas of law (Constitutional, Family, Labour) is conducted.G. V. Peretiatko distinguishes such forms of influence on lawmaking as direct (the possibility of direct application of moral norms) and indirect (through the moral principles of the lawmaker).Two ways of expressing moral principles in normative legal acts are considered.The author draws attention to the importance of using appropriate doctrinal approaches in practice. Attention is paid to the fact that the relevant moral categories had a direct impact on the formation of the Constitution of Ukraine in 1996, taking into account the progressive trends of European lawmaking. The role of the Law of Ukraine «On Freedom of Conscience and Religious Organizations» (1991), which initiated taking into account the provisions of documents signed under the Helsinki Agreements, is highlighted. The use of various moral categories in the preamble of the Constitution of Ukraine is indicative in terms of legal technique. The problems of various social regulators in labor law are covered. An analysis of the Code of Labor Laws (1971) is conducted. The Code contains the relevant moral categories: «immoral misdemeanour», «moral harm», «integrity», «honesty». The practice of law-making of labor legislation is extensive. There is a necessity to refresh the content of the Code of Labor Laws on correspondence with moral norms. The issues of the substantive part of the Family Code are singled out, taking into account the specifics of the reflection of moral postulates.The Family Code contains the relevant moral categories such as «justice», «good faith» and also general moral principles of society. It is stated that American lawyer Lon Fuller in his work «The Morality of Law» created a peculiar «moral scale»in the context of lawmaking.

On the Issue of Applying the Civil Law to the Property Relations of Spouses by Analogy

The relationship between the norms of civil and family law in determining the legal status of the property of spouses within the framework of contractual relations is considered. It is noted that due to the novelty of the institution of contractual property relations for Russia, the peculiarities of the Russian citizens’ mentality, expressed in the predominance of the emotional component of marital relations over the rationality of regulating property relations between spouses, the question of the need to establish norms and eliminate gaps, conflicts when choosing a contractual regime of spouses’ relations in Russian law is important. It is argued that the ambiguity in determining the independence of the subject of family law regulation gives rise to contradictions in the implementation of the norms governing contractual relations of family and civil legislation since property disputes between spouses are regulated by family law, which initially follows from the normative prescriptions of Articles 2 and 35 of the Family Code of the Russian Federation, whereas the relations of former spouses go beyond family relations and the norms of the Civil Code of the Russian Federation apply to them. It is concluded that the autonomous regime of regulation of property relations of spouses is more preferable and allows to avoid the participation of the law enforcer in the process of legal regulation, which, in turn, eliminates the need to fi ll in the gaps by analogy of the law. The novelty of the work lies in highlighting additional meanings in the interpretation of the studied norms of the Family Code of the Russian Federation and the formation of the author's point of view on the groups of property relations arising from the regulation of relations that give the right to change the property regime. The study is based on modern doctrinal approaches, taking into account the analysis of scientific hypotheses, law enforcement practice and reviews of opposing legal positions of the courts. A systematic analysis of the structure of the contractual regime in Russian Family law is carried out, other legal structures regulating the property relations of spouses are determined in order to identify gaps in the normative regulation of marriage and other contracts, and ways to solve them are developed.

Legal regulation of family relations in Ukraine and the Republic of Latvia: comparative and analytical research

The study seeks to find common and different features in approaches used by Ukrainian and Latvian legislators to regulate family relations, and to suggest how to develop family legislation of Ukraine. For this end, the following methods of scientific inquiry have been used: analysis, analogy, deduction, induction, synthesis, historical and legal, comparative and legal, legal modeling methods. It was found out that the Republic of Latvia lacks some legislative solutions in respect of which Ukraine has law enforcement practice. This study offers to supplement the Family Code of Ukraine with the provision saying that a marriage shall be considered not concluded unless it was registered by a civil registration officer. Considering the Latvian experience, the legislative support for appointing co-guardians in Ukraine has been proven expedient.

Inactivation of the entire Arabidopsis group II GH3s confers tolerance to salinity and water deficit.

Summary Indole‐3‐acetic acid (IAA) controls a plethora of developmental processes. Thus, regulation of its concentration is of great relevance for plant performance. Cellular IAA concentration depends on its transport, biosynthesis and the various pathways for IAA inactivation, including oxidation and conjugation.Group II members of the GRETCHEN HAGEN 3 (GH3) gene family code for acyl acid amido synthetases catalysing the conjugation of IAA to amino acids. However, the high degree of functional redundancy among them has hampered thorough analysis of their roles in plant development.In this work, we generated an Arabidopsis gh3.1,2,3,4,5,6,9,17 (gh3oct) mutant to knock out the group II GH3 pathway. The gh3oct plants had an elaborated root architecture, showed an increased tolerance to different osmotic stresses, including an IAA‐dependent tolerance to salinity, and were more tolerant to water deficit. Indole‐3‐acetic acid metabolite quantification in gh3oct plants suggested the existence of additional GH3‐like enzymes in IAA metabolism. Moreover, our data suggested that 2‐oxindole‐3‐acetic acid production depends, at least in part, on the GH3 pathway. Targeted stress‐hormone analysis further suggested involvement of abscisic acid in the differential response to salinity of gh3oct plants.Taken together, our data provide new insights into the roles of group II GH3s in IAA metabolism and hormone‐regulated plant development.

Removal of the right to inherit one of the parents

The article is devoted to the study of the legal status of one of the parents who was deprived of parental rights and removed from the right to inherit. The legal status of the testator's child has been studied. Reasoned proposal on the need for intentional failure of the heirs to fulfill their responsibilities for the maintenance of the testator-child, improper care, failure to provide the necessary assistance and care.
 Disputes over removal from the right to inherit are one of the most common categories of cases heard by courts under the rules of civil procedure. The complexity of this category of disputes is explained by the fact that at the time of the inheritance of the testator-child is no longer alive. Therefore, obtaining information about the circumstances and facts that are relevant to the case, for objective reasons, is difficult. Difficulties also arise when establishing facts of legal significance.
 The correlation of the provisions of the Civil and Family Codes of Ukraine on the grounds and conditions of removal from the right to inherit has been studied. According to Article 164 of the Family Code of Ukraine, evasion of parental responsibilities entails deprivation of parental rights. Thus, the norm of Article 1224 of the Civil Code of Ukraine is natural, which regulates that parents deprived of parental rights are not entitled to inherit by law after the child-heir.
 It is concluded that it is necessary to recognize postmortem children as heirs at law and by will, by making appropriate changes to the civil legislation of Ukraine and give them the right to inherit.It is substantiated that a person's evasion of assistance to a testator in need of assistance is intentional acts or omissions aimed at evading the obligation to provide support and assistance to the testator, ie evasion related to the guilty conduct of a person who was aware of his obligation. language, had the opportunity to perform it, but did not take the necessary action.

Uniting diversity to create a more inclusive academic environment.

Uniting diversity to create a more inclusive academic environment.

On the need to develop a unified approach to the content of the criminal procedural definition of "close relatives" in the regulation of legal relations in the Russian Federation related to the investigation of domestic crimes

The article is devoted to the problem of legal definition of the concepts of close relatives, close persons and family members of a citizen. Inconsistencies between the norms of the Constitution of the Russian Federation and the norms of family legislation in relation to the criminal procedural category "close relatives", which ensures the provision of witness immunity in criminal proceedings. It discusses controversial issues about the circle of close relatives who have the right not to testify as witnesses. The essence of this socio-legal status is revealed, the circle of persons forming it is established, the positive and negative sides of the existing definitions and formulations of "close relatives" are considered.The scientific novelty lies, first of all, in the fact that in the presented article the norms of criminal procedure, civil and family law regulating relations of kinship, matrimony, as well as the procedure and problems of their application in criminal proceedings were considered. Paragraph 4 of Article 5 of the Criminal Procedure Code of the Russian Federation refers to spouses as close relatives, but Article 14 of the Family Code of the Russian Federation does not consider them as such. The analysis of family law allows us to conclude that kinship is possible only by "blood" (the exception is the institution of adoption). For this reason, spouses cannot be close relatives and they are in a marital relationship to each other. The proposals on amendments and additions to the Criminal Procedure Code of the Russian Federation are formulated, which will improve the domestic criminal procedure legislation within the framework of developing a unified approach to the content of the definition of "close relatives".

Классификация принципов семейного права России

Based on the positivist legal thinking, the classification of the principles of family law is analyzed: 1) according to the source of the normative consolidation of the principles of family law; 2) in the field of legal regulation. Within the framework of the first classification, three groups of principles of family law are distinguished and characterized: 1) constitutional principles of family law, duplicated and (or) specified in the Family Code of the Russian Federation (three principles); 2) constitutional principles of family law, not duplicated in the Family Code of the Russian Federation (thirteen principles); 3) sectoral principles of family law, reflected only in the Family Code of the Russian Federation (seven principles). Within the framework of the second classification, general legal principles that are valid in the field of family law (eleven principles), intersectoral principles of family law (two principles) and specific sectoral principles of family law (ten principles) are distinguished and characterized. It is substantiated that some provisions of Part 1 of Article 1 of the Family Code of the Russian Federation (building family relations based on feelings of mutual love and respect, mutual assistance and responsibility to the family of all its members) are not principles of law, but represent a special way of fixing certain guidelines in family relations, family values, which in turn are based on the norms of morality and ethics.

The presumption of paternity in the Soviet law

The exploring of the legal regulation of the presumption of paternity in Soviet law is relevant because of the fact that in 2017 - 2019 the State Duma of the Russian Federation considered a bill on the return of the administrative overcoming of the presumption of paternity to the Russian Family Code in the version that was in force on the territory of the USSR from 1984 to 1991 and in the Russian Federation from 1996 to 1997. The bill was rejected, but not because society did not need to administratively overcome the presumption of paternity, but because of the human factor of the initiators of the bill, who stopped this law-making process halfway through without good reason. The article carries out a comparative legal analysis of Soviet and modern Russian legislation. In sum, the administrative overcoming of the presumption of paternity corresponds to the principle of procedural economy, protects men from unfair parenting in relation to a not own child from the moment of registration of a child to the moment of contesting paternity, prevents long-term negative communication between the mother of the child, her husband and the biological father of the child in the process of litigation to contest paternity. It is advisable to return to modern legislation the possibility of administratively overcoming the presumption of paternity by submitting an application of the child’s mother and her husband (ex-husband) to the registry office.

FUQARONING LAYOQATI (HUQUQ VA MUOMALA) BILAN BOG‘LIQ ISHLAR: NAZARIY TAHLIL VA AMALIY NATIJALAR

The legal capacity and its procedural peculiarities, the issues connected with the rights and legal capacity of citizens, the procedure of considering those cases in courts, opinions about characteristics of the cases in these categories as well as proposals and recommendations were explained in this article. The article discusses the material and procedural legal capacity, legal capacity, procedural legal capacity, procedural capacity, emancipation, limitation of civil capacity, incapacity, involuntary or involuntary psychiatric treatment of a person.), the need for inclusion in legislation and procedural features, as well as legal consequences. Citizenship (legal capacity and procedural capacity) is one of the most important institutions in medicine and jurisprudence. The legal capacity of a citizen is divided into legal capacity and procedural capacity. At the same time, it seems important to study this concept on the basis of the norms of the Civil Code, the Code of Civil Procedure, the Family Code, its medical, psychological and legal basis. At the same time, a scientific and practical study of the legal criteria for the concepts of legal capacity and procedural capacity. The article also contains proposals and theoretical conclusions for improving the material and procedural legislation based on the analysis of the subject.

Decorating Mothers, Defining Maternity

This article offers a detailed analysis of the symbolism and early operation of the Family Medal, a maternity award created by the French government in 1920. Launched at a time when the women’s rights were fiercely debated and when politicians feared for the longevity of the “French race,” this article claims the medal as a revealing tool of state efforts at gender and racial retrenchment. Honoring mothers who were moral and metropolitan, the medal represented an early attempt at institutionalizing a conservative and racialized vision of motherhood that would find fuller expression in the 1939 Family Code, itself a blueprint of Vichy family law.

Responsibility instead of authority? Analysis of the arguments for and against the modification of the term parental authority in the Family and Guardianship Code

Despite the fact that the term parental authority has been in force in the Family and Guardianship Code for over fifty years, the discussion on the validity of its replacement with the term parental responsibility is still quite vivid in the doctrine of family law. The aim of the paper is to analyse selected arguments for and against terminological modification in this area and to try to answer the question: what point of view on this problem does pedagogy offer.

A Case-Law Analysis of The Commercial Enterprise of The Sole Proprietor and Its Co-Relation to The Matrimonial Community Property

The present research puts the focus upon the development of case law regarding one of the fundamental aspects of matrimonial property relations of the sole proprietor (SP) whenever the statutory regime of community of property is applicable, in particular the co-relation between the matrimonial community property and the commercial enterprise of the spouse – SP. The article focuses on case law development regarding the substantive legal requirements to cancel the effect of the presumption of joint contribution pursuant to art. 21, s. 1, 3 of the Family Code 2009 concerning property rights acquired by the SP during his or her marriage to be included into his or her commercial enterprise. Special regard is attributed to the shift in recent case-law since the entry into force of the present Family Code in 2009 on the origin of money used to acquire property rights, that become personal property of the spouse-SP pursuant to art. 22, s. 3 of the Family Code. Moreover, attention is being credited to the general purpose of the requirement to include property rights into the enterprise of the spouse-SP and its significance for the acquisition of personal property pursuant to art. 22, s. 3 of the Family Code.

Forms and ways of defending family rights and interests in Ukraine

This study taps the potential of forms of defence of family rights and interests in Ukraine. It speaks in favour of the establishment of the Family Court in Ukraine by adopting the best foreign practices. It also presents an updated systematics in terms of ways to defend family rights and interests and contains the amendments to the Family and Civil Codes of Ukraine to harmonize family law terms with civil law ones, improve them and correctly name the ways of defending family and civil rights and interests. It points at and offers to remove legal impediments that prevent the extension of the limitation period in the case stipulated in Part 3, Article 138 of the Family Code of Ukraine. This study also seeks to show the existing problems and opportunities in terms of forms and ways of defending family rights and interests in Ukraine. For this end, the following methods of scientific inquiry have been used: analysis, analogy, deduction, induction, synthesis, historical, systematic, structural and functional, comparative, logical and semantic, formal and logical, modelling methods.

Legal grounds for recognizing a marriage agreement invalid (analysis of judicial practice)

The article examines the features of the legal nature and grounds for recognizing a marriage contract as invalid. It has been established that modern family law in Ukraine regulates the institution of a marriage contract in some detail, although it was enshrined in law only in 1992, after amendments to the Marriage and Family Code. First of all, its feature was that it could be concluded only before the official registration of marriage, respectively, came into force from the moment of marriage. In addition, along with the settlement of property relations, the list of which was open, the contract could regulate non-property relations of the spouses. At present, the marriage contract is regulated in more detail by the Family Code of Ukraine and does not provide for the possibility for spouses to establish personal non-property rights in it.
 It is established that according to the provisions of Chapter 10 of the Family Code of Ukraine and Articles 203, 215 of the Civil Code of Ukraine, the grounds for invalidating a marriage contract may be as follows: the content of the contract contradicts the legislation of Ukraine and moral principles of society; the will of one or both spouses during the conclusion of the contract is not free and does not correspond to the internal will; the marriage contract is not aimed at the actual occurrence of the legal consequences caused by it.
 The analysis of judicial practice allowed us to identify the grounds and features that the courts pay attention to when considering cases of recognition of marriage contracts as invalid, in particular: criteria of legality (legality) of the marriage contract; the content should not contradict the very essence of marriage contracts; the expression of the will of both spouses during the conclusion of the marriage contract must be free and correspond to their inner will; the marriage contract must be aimed at the actual occurrence of the legal consequences caused by it; the marriage contract cannot put one of the spouses in an extremely unfavorable financial position.
 It is substantiated that the marriage contract is a bilateral transaction, which has a special subject composition, contains legal restrictions on the subject. The peculiarity of its legal nature is due to the fact that it may give rise to rights and obligations in respect of those family members who are not parties to the contract (for example, in relation to existing or future children). It is proposed to make appropriate changes to Article 103 of the Family Code of Ukraine.

Family law mechanism for protection of legal expectations of family members

The article considers the concept of "legitimate expectations" and explains the elements of the family law mechanism for protecting the legitimate expectations of family members. The national legal literature on the use of the term "legitimate expectations" is analyzed and various translations and understandings are established. It is justified that it is more appropriate to use the term "legitimate expectations", as legitimate expectations can be interpreted to a limited extent and only to the extent provided by law. It is proposed to consider the guarantee of legitimate expectations as a principle which is part of the rule of law and which, in principle, relates to the principles of legal certainty, equality, fairness and good faith..
 In our opinion, a guarantee of legitimate expectations is a principle that is part of the rule of law and, in principle, is connected with the principles of legal definition, equality, justice and fairness.
 The EU has repeatedly interpreted the concept of "legitimate expectations." In accordance with paragraphs 21 and 24 of a court decision in the case of Fedorenko against Ukraine, the right of ownership may be "existing property" or funds, including the requirements for which the plaintiff can justify them with at least "intelligent expectations" of the possibility of an effective right to right [7].
 The understanding of legitimate expectations in the practice of the ECHR and the application of this concept of courts of Ukraine is investigated. The system of norms in the Family Code of Ukraine, aimed at protecting lawful expectations for the implementation of personal non-property and property rights by family members and other participants in family relations are revealed. It is established that legitimate expectations are not right, and is not interest. Interest is motivated to the emergence of law and lawful expectations, and legitimate expectations will precede the origin of the right and may arise in the course of the exercise of law as expecting a certain legitimate result. Family-legal mechanism for the protection of legitimate expectations of participants in family relations includes both institutional and legal elements. An analysis of the norms of the SC of Ukraine showed sufficient tools to protect and protect most lawful expectations of participants in family relations. At the same time, the priority of the lawful expectations of one participants in family relations (for example, a child), on the rightful expectations of other participants in such relations (for example, parents of the child)

Alimony from abroad: reality or fiction?

The work is devoted to the payment of child support, determining the mechanism of child support, if one of the parents is abroad;According to Article 8 of the Law "On Child Protection" in Ukraine, every child has the right to a standard of living sufficient to satisfy his or her physical, intellectual, moral, cultural and spiritual, and social development. 51 part 2 of the Constitution of Ukraine and Article 180 of the Family Code of Ukraine (hereinafter - the IC of Ukraine), Parents are obliged to raise children to adulthood. The child must be in a family whose parents voluntarily fulfill their responsibilities for its upbringing.However, the right to custody of children and parental responsibilities are sacred and inviolable. Ensuring a proper standard of living, nutrition and education for children is not always correctly implemented in our country. The obligation of parents to maintain their children arises from a court decision or agreement between parents . Few unscrupulous parents try to avoid the court's liability for alimony payments, resorting to these techniques,For example: avoiding formal employment or getting a minimum wage. Expenses, transfer of property that can be levied, concealment of the Contractor, travel abroad, etc. Non-universal Demographic agreement between parents on the payment of alimony, in recent years, in order to strengthen the protection of children's rights to proper custody, the IC of Ukraine has undergone fundamental changes in the supervision of alimony obligations.Therefore, it is necessary to conduct a scientific analysis of the new legislation. It provides for the obligation of parents to maintain their children. These issues are mainly related to the minimum guaranteed amount of alimony and the recommended minimum amount of alimony, the circumstances listed. The court takes these factors into account when determining the amount of alimony and the amount of income. Alimony payer, which is collected in favor of the child, alimony is indexed.New version of the Law on Enforcement Proceedings of Ukraine Some changes have been made to the procedure for execution of decisions, and the range of measures that affect the executor's alimony payers has been expanded. Enforcement provides alimony through the use of procedural means and methods of coercion to persons who refuse voluntarily perform their alimony duties

Problems of legal regulation of a marriage agreement in the Russian Federation

This article is devoted to the application of the marriage contract by persons entering or already married. The authors define the relevance of concluding marriage contracts and emphasize the positive trend of their application in Russia. As a rule, the question of the division of property is the most difficult and problematic both in theory and in practice. In scientific circles, there is a discussion about the legal nature of the marriage contract. The specifics of its conclusion and the scope of regulation of relations do not give an unambiguous answer about the branch affiliation of this legal institution. There are also a large number of gaps in the Family Code of the Russian Federation due to the lack of legislative consolidation of some aspects related to the contractual regime of spouses’ property. In addition, there is still an unresolved issue regarding the conditions and procedure for concluding a marriage contract by minor citizens entering into marriage. In the article, the authors come to the conclusion that the marriage contract as a legal phenomenon requires more legal regulation at the legislative level.