Establishing the origin of children in private law. Legal regulation of relations between parents and children and other family members in the presence of a foreign element under Russian legislation

The subject of regulation in private law is the personal and property relations of spouses in marriages complicated by a foreign element.

A peculiarity of the regulation of this kind of relationship in private law is the almost complete absence of uniform substantive legal norms (for example, in different countries there are different grounds for divorce, some countries establish the primacy of the husband in the family, etc.). In this regard, the conflict of laws method for regulating relations between spouses is used more often.

National conflict of laws rules in the field of relations between spouses are contained in family and civil codes of states.

Conflict of laws rules on this issue are contained in international conventions (The Hague Conventions of 1902-1906, the Convention on the Collection of Alimony Abroad, the Convention on the Recognition of Divorces of 1970, the Convention on the Conclusion and Recognition of the Validity of Marriages of 1978).

However, the Russian Federation does not participate in most of the Conventions, therefore, treaties on legal assistance in civil and family matters are of particular importance for our country (they, like the Conventions, contain conflict of laws rules).

Personal non-property and property legal relations of spouses. In accordance with the IC, the legal relations of spouses are determined by the legislation of the state in whose territory they have a joint place of residence. if there is no joint place of residence, then the law of the state in whose territory they had their last joint place of residence is applied. However, if the spouses did not have a common place of residence at all, the law of the court will apply.

If the place of residence of the spouses at the time of consideration of the dispute does not coincide, the right of their first joint place of residence may be significantly divorced from the relationship in question. It is in this regard that some states use the right of common nationality of spouses or the right of nationality of one of the spouses to fill in the gaps.

acc. from Art. 161 of the RF IC, when concluding a marriage contract or announcing the payment of alimony, spouses who do not have common citizenship or a common place of residence can choose the applicable law to their agreement, but in any case, such an agreement must be concluded in writing in order for the Russian court to accept it in attention.

Establishment of paternity and maternity

Article 162 of the RF IC, these issues are determined by the legislation of the state whose citizenship the child has by birth, while the order of paternity or maternity on the territory of Russia is determined by the legislation of the Russian Federation.

The link to the child's citizenship rights is primarily aimed at ensuring the protection of the rights of the child. however, in matters of establishing paternity, many countries fix the binding of the personal law of the person whose paternity is established. This is due to the fact that this person will fulfill his paternal responsibilities only if the state recognizes such paternity and the legislation of this state ensures the fulfillment of such responsibilities through certain procedural measures.

In relation to the obligations of parents and children, the law of the state in whose territory they have a joint place of residence is applicable. in the absence of a joint place of residence, the insurance company establishes a link to the citizenship of the child. In relation to child support obligations, the legislation of the state in whose territory the child permanently resides may be applied.

Art. 164 of the Family Code establishes that the alimony obligations of adult children in favor of their parents, as well as the alimony obligations of other family members, are determined by the legislation of the state in the territory of which they have a joint place of residence, and in its absence, the right of citizenship of the person who has the right to receive alimony.

28. Features of the legal status of children in cross-border families. Personal and property relations of parents and children: substantive and conflict of laws regulation

The conflict of laws regulation of the legal status of children in cross-border families is based on the application of the law of the child’s citizenship. The citizenship of children is established according to the citizenship of the parents, by agreement between them (if the parents have different citizenships), according to the principle of soil (Resolution of the EU Committee of Ministers “On the citizenship of children born in marriage”). The main problems of legal relations between parents and children– this is the establishment and contestation of paternity (maternity), deprivation of parental rights, child support obligations of parents and children, protection of the rights of the child, the institution of parental authority. These relations are regulated, first of all, on the basis of the personal law of children and parents (the law of the country of citizenship or domicile). The law of the child's country of habitual residence, the law of the competent institution and the law of the court also apply.

These issues are regulated in international law: in the Hague Convention on the Law Applicable to Child Maintenance Obligations, 1956; Convention on the Rights of the Child 1989; Recommendations of the EU Committee of Ministers on children against abuse; Hague Convention on Competence and Applicable Law for the Protection of Minors 1961

The law applicable to issues of establishing and challenging paternity and maternity is defined in Art. 162 SK. is the law of citizenship of a child by birth. Establishing (challenging) paternity (maternity) on the territory of the Russian Federation involves the application of Russian law. The legislator has established the right of Russian citizens outside the Russian Federation to contact diplomatic and consular missions of the Russian Federation regarding the resolution of these issues.

The rights and responsibilities of parents and children are regulated by Art. 163 SK. Basic collision binding- This is the law of joint residence of parents and children. If there is no joint residence, the law of the child’s nationality applies. Alimony obligations and other relations presuppose the subsidiary application of the law of the child’s place of permanent residence. Maintenance obligations of adult children and other family members are determined by the law of joint residence (Article 164 of the Family Code). In the absence of a joint place of residence, the law of the state of which the person applying for alimony is a citizen is applied.

29. International civil procedure: concept, rules for determining jurisdiction. Agreements on jurisdiction: concept, types, applicable law

The subject of international civil procedure as an institution of private law is the relations arising in connection with the consideration by state courts of cases involving foreign persons, in particular: 1) the procedural position of foreign citizens, organizations, as well as foreign states and international organizations in civil and arbitration legal proceedings; 2) international jurisdiction in civil and commercial matters; 3) execution of foreign court decisions and foreign court orders.

International civil procedure is traditionally referred to as the sphere of international private law, since procedural law is public law, and courts, when resolving cases even with the participation of foreigners, apply only their procedural law.

Three main definitions of jurisdiction:

1) Jurisdiction at the place of residence (location) of the defendant (German system): claims against foreigners residing in a given state must be filed in the courts of that state, and if the defendant is located abroad, then the claim should be filed in the court of the corresponding foreign country state Claims against legal entities are brought at the location of the administrative center (board) of the legal entity. Most countries of continental Europe, including Russia, adhere to this principle of determining international jurisdiction. Russian courts of general jurisdiction consider cases involving foreign persons if the defendant organization is located on the territory of the Russian Federation or the defendant citizen has a place of residence in the Russian Federation (Article 402 of the Code of Civil Procedure)

2) Jurisdiction based on the citizenship of the parties to the dispute (Latin system): claims are competent to consider the court of the state of which the defendant is a citizen. (France, Italy)

3) Jurisdiction based on the actual presence of the defendant, when the actual possibility of serving the defendant with a summons to appear in court is taken into account. (USA, UK, other countries of the British Commonwealth).

The rules on international jurisdiction are unilateral in nature; situations are possible when the legal system of one state refers the consideration of a dispute to the court of another state, and this latter refuses to consider the dispute due to lack of competence under its national legislation. In other words, if the law of one state states that disputes should be considered at the place of residence of the defendant, this does not mean that the courts of a foreign state (if this defendant lives abroad) must necessarily accept this case for their proceedings .

When judicial institutions of two or more states claim to resolve the same dispute, this is the so-called competition of jurisdiction. To resolve competing jurisdictions, there is an international custom: the court of the state that first accepted the claim for proceedings is competent.

In order to avoid a situation of refusal to accept a claim or a situation of competition of jurisdiction, states enter into international treaties. (Brussels Convention, Geneva Convention)

When considering cases involving foreigners, Russian courts are faced with the need to obtain information about the foreigner, notify him of the process, serve documents, and take measures to secure the claim at the expense of property located abroad. To carry out these actions, Russian courts send abroad letters rogatory addressed to a foreign court or authorities. The referral procedure is based on international treaties, for example the Hague Convention on Civil Procedure of 1954 (two procedures for the execution of foreign letters rogatory - diplomatic and direct relations).

International jurisdiction under the legislation of the Russian Federation is established in Chapter. 44 Code of Civil Procedure and Ch. 32 APK. The competence of Russian courts of general jurisdiction also includes the consideration of civil cases with a foreign element. The basic rule for establishing jurisdiction is territorial jurisdiction at the defendant’s place of residence (clause 2 of Article 402 of the Code of Civil Procedure). The legislation establishes a list of cases where Russian courts have special jurisdiction over cases with foreign participation (clause 3 of Article 403 of the Code of Civil Procedure). It is also possible to choose jurisdiction at the request of the plaintiff. The Russian legislator has also determined a list of cases involving foreign persons that are subject to exclusive jurisdiction by Russian courts (Article 403 of the Code of Civil Procedure). Russian IHL recognizes contractual jurisdiction (Article 404 of the Code of Civil Procedure). However, there are exceptions to the general principle of recognizing the right of the parties to choose jurisdiction (clause 2 of Article 404 of the Code of Civil Procedure). Special rules on jurisdiction are established in cases of divorce (Article 16 of the Family Code).

Rules on international jurisdiction Art. 247 of the APC establish a general rule - Russian arbitration courts are competent to consider disputes with foreign participation if the defendant is located or has a place of residence in the territory of the Russian Federation. Additional criteria for the jurisdiction of cases by Russian arbitration: location of a branch or representative office of a foreign legal entity or property of the defendant on the territory of the Russian Federation; the fulfillment of the obligation must take place on the territory of the Russian Federation; the tort liability is related to the territory of the Russian Federation, etc. The exclusive competence of the arbitration courts of the Russian Federation in cases with foreign participation is enshrined in Art. 248 APC. Contractual arbitration jurisdiction (in the form of prorogation) is recognized. Foreign agreements on the competence of Russian arbitration courts are allowed - agreements on competence (Article 249 of the APC). For agreements on competence, a mandatory written form is required (clause 2 of article 249 of the APC).

Agreements on international jurisdiction are usually divided into prorogation and derogation agreements.

Prorogation agreements determine the state court of which state will hear the dispute between the parties.

Derogation agreements exclude the possibility of transferring the dispute to the state court of a particular state.

The possibility of concluding a prorogation agreement is expressly stipulated by the current procedural codes, as well as by the resolution of the plenum of the Supreme Arbitration Court of June 11, 99. However, there is no mention of derogation agreements.

However, formally it can be argued that the same requirements are imposed on them.

The form must be in writing (including by drawing up a separate document).

Any agreement on international jurisdiction must be clear enough to be enforceable. In particular, the specific state to whose court the parties decided to turn in the event of a dispute must be indicated.

Simultaneously with the conclusion of an agreement on international jurisdiction, the parties are recommended to conclude agreement on domestic jurisdiction

In its absence, the competence of a particular court will be determined according to the rules of procedural legislation.

The conflict of laws regulation of the legal status of children is based on the application of the law of the child’s citizenship. The citizenship of children is established according to the citizenship of the parents, by agreement between them (if the parents have different citizenships), according to the principle of soil (resolution of the EU Committee of Ministers “On the citizenship of children born in marriage”). National legislation states: “The legal relationship between a parent and a child is governed by the law of the country of nationality of the child, when such law is the same as the law of one of the parents, or when it is the same as the law of one parent if the other parent is absent In other cases, regulation is carried out according to the law of the child’s usual place of residence” (Article 32 of the Japanese Private Private Law Law).

The main problems of legal relations between parents and children are establishing and challenging paternity (maternity), deprivation of parental rights, child support obligations of parents and children, protecting the rights of the child, the institution of parental authority. “Family legal relations between parents and children, especially with regard to the surname, guardianship, legal representation, maintenance and management of property - other than the maintenance of the parents - are regulated by the personal law of the child” (§ 45.1.4 of the Hungarian PIL Decree).

In addition to the personal law of children and parents, the law of the child's country of permanent residence, the law of the competent institution and the law of the court also apply. The latter is an auxiliary link and is applied provided that it is most favorable for the child: “The law of the state of which they are citizens is applicable to relations between parents and children. If parents and children have different citizenship, the law of the state in whose territory they take place is applicable.” residence. If parents and children have different nationalities and do not have a place of residence in the same state, the law of the country of which the child is a citizen shall apply" (Article 46 of the Macedonian PIL Law).

If at the time of birth the child is legitimate under the law of the country of nationality of either the husband or wife, he is considered legitimate (Article 28 of the Japanese PIL Law). If the spouses have different citizenships, the law of the parents’ common place of residence is applied, and in its absence, the law of the child’s place of birth is applied. The modern legislator seeks to establish the law most favorable for recognizing a child as legitimate: “If the marital relationship ceases before the birth of the child, the child is recognized as legitimate if this corresponds to the right of citizenship of the child at the time of birth, or the right of citizenship of his mother, or the husband of his mother at the time of termination of the marital relationship.” relations" (§51 of the Taiwan PIL Law).

However, in Thailand, the legitimacy of a child is determined by the law of nationality of the mother's husband at the time of the child's birth. The same law governs a claim challenging the legitimacy of a child (§ 29 of the PIL Act).

Questions of the origin of the child are a prerequisite for resolving the problem of the relationship between parents and children; These issues, as a rule, have an independent conflict connection. On issues of the origin of a child, a modern legislator, as a rule, establishes a chain of conflict of laws rules aimed at finding the most favorable law for the child: “Origin is regulated by the law of the state whose citizenship the child acquired at the time of birth. If this is a more favorable option for the child, then the following applies: 1 ) the law of the state of which the child is a citizen or in which he has his usual residence at the time of establishment of origin; 2) the law that is applicable to the personal relations between the parents at the time of the birth of the child. A reference to the law of a third state is accepted when this law allows for the establishment of origin. Confirmation of paternity is valid if it complies with the domestic law of the person who carried it out, or the domestic law of the child at the time of confirmation of paternity, or the law of the state in which the child’s habitual residence is at the time of confirmation of paternity” (Article 83 of the Bulgarian International Private Law Code).

The origin of a child born out of wedlock is determined on the basis of alternative conflict of laws: the law of the child’s citizenship, the law of his place of residence, the law of his mother’s citizenship, the law of the place of marriage. In all cases, “the judge must apply the law most favorable to establishing the origin of the child, from the following: the law of the nationality of the defendant or the law of his place of residence, the law of the nationality of the child or the law of his place of residence” (Article 52 of the Tunisian International Private Law Code).

The origin of a child may be disputed in accordance with the law of the country where the premises of this dispute arose. In all cases, the origin of the child can be disputed in accordance with the law of the country where the child has his usual place of residence (Article 51 of the Law on Private Private Law of Georgia). In Estonia, the right of the child’s place of residence at the time of birth or the right of his place of residence at the time of the challenge applies to the dispute of origin (Article 62 of the PIL Act).

Detailed conflict of laws regulation of the institution of recognition of an illegitimate child is established in Italian legislation: “The conditions for the recognition of an illegitimate child are determined by the national law of the child at the time of birth, or, if more favorable, by the national law of the entity carrying out the recognition, at the time of recognition. The ability of the parent to carry out the recognition is determined its national law. The form of recognition is determined by the law of the state in which recognition is carried out, or the law of the state that regulates the essence of this legal relationship" (Article 35 of the Law on International Private Law).

• - by the law of the state of which the mother is a citizen. The relationship between a father and a child born out of wedlock

are determined in accordance with the following order:

• - according to the law of the state of the last common citizenship of the parents;
• - by the law of the state of their last common usual place of residence;
• - by the law of the state of which the father is a citizen.

The relationship between the mother and father of a child who was born out of wedlock is determined in accordance with the following order:

• - by the law of the state of the latter, during pregnancy, the common citizenship of the parents;
• - by the law of the state of the latter, during their marriage, the common usual place of residence;
• - by the right of their common simple place of residence (Articles 19-21 of the Civil Code of Greece).

The legitimation of a child born out of wedlock through the subsequent marriage of his parents is governed by the statute of general consequences of marriage. In the case of different citizenship of parents, an alternative reference is the law of the citizenship of one of them. If legitimation is carried out in some other form (and not through a subsequent marriage), then the law of citizenship of the person whose child is being legitimized is competent: “The conditions for legitimizing an illegitimate child through a subsequent marriage are determined in accordance with the personal law of the parents. If the personal laws of the parents are different, it is decisive that personal law that is more favorable for the legitimation of a child. The conditions for legitimizing an illegitimate child by declaring his marital origin are determined according to the personal law of the father; if the petition for declaring the marital origin of the child is submitted only after the death of the father, then according to the personal law of the father at the time of his death; If, according to the personal law of the child, the consent of the child or a third person with whom the child is in a family legal relationship is necessary, then in this regard this right is also decisive. The consequences of the child’s marital origin and legitimation are determined according to the law of the state in which he is born. his usual abode" (v. 23-25 ​​of the Liechtenstein Private Law Act).

In all cases, priority is given to the law authorizing legitimation: “The establishment of origin is regulated by the law of the child’s citizenship at the time of his birth... if the origin cannot be established by this law, then in accordance with the law of the child’s permanent residence. If the origin cannot be determined by these laws, then it is established in accordance with the law of citizenship of the mother or father at the time of the birth of the child and, if it cannot be established in accordance with these laws, then the law of the place of joint permanent residence of the mother and father at the time of the child’s birth is applied, and if it also cannot be determined under this law, then the law of the place of birth of the child applies" (Article 16 of the Turkish International Private Law Code).

On the issue of alimony obligations in favor of children, the main conflict of laws criterion is the law of the child’s usual place of residence, which determines the right to alimony, its amount and the circle of obligated persons (Austria, France). In Ukraine, alimony relations between parents and children are determined by the personal law of the child or a law that has a close connection with the relevant relationship and if it is more favorable for the child (Article 66 of the Law on Private Private Law). In Poland, the law applicable to matters of mutual maintenance of children and parents is determined on the basis of Council Regulation No. 4/2009 of 18 December 2008 “On jurisdiction, applicable law, recognition and enforcement of decisions and on cooperation in matters relating to maintenance obligations" (Article 63 of the Law on Private Private Enterprise).

On the issue of alimony payment, it is possible to conclude an “agreement regarding alimony”. This agreement presupposes the possibility of autonomy of will, but the choice of the parties is limited by the law of the state of which they were citizens at the time of choice or on the territory of which one of them had permanent residence at that time. If there is no choice, the law of the state in whose territory the creditor had his permanent residence at the conclusion of the agreement shall apply. The same conflict of laws (plus the requirements of the law of the state, the place of conclusion of the agreement) determine the validity of the agreement in form (Article 75 of the Belgian International Private Law Code).

The establishment of a set of alternative conflict of laws links and a whole “chain” of conflict of laws rules applied in resolving issues of the legal status of children is carried out in the interests of children and is aimed at achieving their maximum protection. Most of these issues are regulated in international law. At the universal level the following are accepted:

• - UN Convention on the Rights of the Child (1989);
• - Hague Conventions:
• o the law applicable to child support obligations (1956);
• o on competence and applicable law in relation to minors (1961);
• o on the civil aspects of international child abduction (1980);
• o on jurisdiction, applicable law, recognition, enforcement and cooperation in relation to parental responsibility and child protection measures (1996);
• o on international collection of child support and other forms of family maintenance (2007).

At the regional (European) level there are:

• - Strasbourg Conventions:
  • o on the legal status of illegitimate children (1975);
  • o on the implementation of children's rights (1996);
  • o Contact in relation to children (2003);
• - Recommendation of the EU Committee of Ministers “On children against cruelty” (1979);
• - resolution of the EU Committee of Ministers “On the citizenship of children born in marriage” (1977);
• - EU Council Regulation on jurisdiction and recognition and enforcement of court decisions in matrimonial matters and issues of parental responsibility of both spouses for children (2000);
• - Council Regulation No. 4/2009 of 18 December 2008 “On jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.”

In Russian law, the conflict of laws regulation of relations between spouses regarding the origin or upbringing of children is established in Art. 162 and 163 of the RF IC. The law applicable to issues of establishing and challenging paternity (maternity) is defined in Art. 162. The main conflict of laws is the law of the child’s citizenship by birth. Establishing (challenging) paternity (maternity) on the territory of the Russian Federation involves the application of Russian law. The legislator has established the right of Russian citizens outside Russia to contact its diplomatic and consular missions regarding the resolution of these issues.

The rights and responsibilities of parents and children are regulated by Art. 163. The main conflict of laws is the law of joint residence of parents and children. If there is no joint residence, the law of the child’s nationality applies. Alimony obligations and other relations presuppose the subsidiary application of the law of the child’s place of permanent residence. Maintenance obligations of adult children and other family members are determined by the law of joint residence (Article 164). In the absence of a joint place of residence, the law of the state of which the person applying for alimony is a citizen is applied.

Every child has the right to live together with his parents, except in cases where this is contrary to his interests. The place of residence of children in the event of separation of parents is established by agreement of the parents. The place of residence of children under 14 years of age or citizens under guardianship is the place of residence of their legal representatives - parents, adoptive parents or guardians (clause 2 of article 54, clause 3 of article 65 of the RF IC; clause 2 of article 20 of the Civil Code of the Russian Federation ).

Minor wards live together with their guardians and trustees. In this case, it is allowed for a guardian to live separately from a ward who has reached the age of 16, with the permission of the guardianship and trusteeship authority, provided that this does not adversely affect the education and protection of the rights and interests of the ward (Clause 2 of Article 36 of the Civil Code of the Russian Federation).

Place of residence of an emancipated minor

A child is a minor until he turns 18 years old. However, there are cases when a minor becomes fully capable even before the age of 18. Thus, if a minor child has reached the age of 16 and works under an employment contract, contract, or is engaged in entrepreneurial activity with the consent of legal representatives, then he can be declared fully capable. This is called emancipation (Article 27 of the Civil Code of the Russian Federation).

There are two options for the emancipation of a minor - through the guardianship and trusteeship authority or in court.

If both legal representatives of the child agree that the child is declared legally competent, the guardianship and trusteeship authority, upon the application of the child, with the consent of the legal representatives, makes a decision on this. To do this you need to submit:

• application for emancipation;
• passport of a citizen of the Russian Federation;
• birth certificate of a minor;
• documents confirming the child’s labor or entrepreneurial activity;
• written consent of legal representatives;
• passports of the minor's legal representatives.

If a minor does not have the consent of his parents or one of the parents, adoptive parents or guardian, then a 16-year-old citizen has the right to apply to the court to declare him fully capable (Part 1 of Article 287 of the Code of Civil Procedure of the Russian Federation).

The application is submitted to the court at the place of residence and is considered with the participation of the applicant, parents or one of the parents, adoptive parents (adoptive parent), trustee, as well as a representative of the guardianship and trusteeship authority, the prosecutor (Article 288 of the Code of Civil Procedure of the Russian Federation).

If the court satisfies the stated request, the minor is declared fully capable (emancipated) from the day the court decision on emancipation enters into legal force (Part 2 of Article 289 of the Code of Civil Procedure of the Russian Federation).

The court decision comes into force upon the expiration of the period for appeal, if it has not been appealed. In this case, the period for filing an appeal is one month from the date the court decision was made in final form (part 1 of article 209, part 2 of article 321 of the Code of Civil Procedure of the Russian Federation).

Reference. Final form of the court decision

The adoption of a court decision in final form involves the preparation of introductory, descriptive, motivational and operative parts of the decision ( Part 1 Art. 198 Code of Civil Procedure of the Russian Federation).

The operative part of the decision is announced by the court at the same court session in which the trial of the case ended ( Part 1 Art. 199 Code of Civil Procedure of the Russian Federation).

Drawing up a reasoned court decision may be postponed for a period of no more than five days from the date of completion of the trial of the case. In this case, the reasoning part of the court decision must indicate: the circumstances of the case established by the court; evidence on which the court's conclusions about these circumstances are based; reasons why the court rejects certain evidence; laws that guided the court ( Part 4 Art. 198, part 2 art. 199 Code of Civil Procedure of the Russian Federation).

If an appeal is filed, the decision comes into force after the court considers the appeal, unless the appealed decision has been cancelled. If the decision of the court of first instance was canceled or changed and a new decision was made, it comes into force immediately (Part 1 of Article 209 of the Code of Civil Procedure of the Russian Federation).

An emancipated 16-year-old citizen has the right to determine his place of residence at his own discretion.

In addition to emancipation, a minor can also become fully capable if he got married before reaching the age of majority (Clause 2 of Article 21 of the Civil Code of the Russian Federation).

Place of residence of a minor when parents live separately

Parents can draw up an agreement and indicate in it with whom the child remains after the divorce in the event of separation of the parents.

If the parents cannot agree, then each of them has the right to go to court and establish the place of residence of the minor child with one of them (Clause 3 of Article 65 of the RF IC).

In court, the child’s place of residence is determined based on his interests, as well as with mandatory consideration of the opinion of a child who has reached the age of ten years, provided that this does not contradict his interests (Clause 3 of Article 65, Article 57 of the RF IC).

When determining the place of residence, the court takes into account the age of the child, his attachment to each of the parents, brothers, sisters and other family members, the moral and other personal qualities of the parents, the relationship existing between each parent and the child, the possibility of creating conditions for the child to raise and development. The type of activity and work schedule of the parents, their financial and marital status, as well as other circumstances characterizing the situation that has developed in the place of residence of each of the parents are taken into account (clause 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 N 10). It must be borne in mind that the mere advantage in the financial and living situation of one of the parents is not an unconditional basis for satisfying the requirements of this parent.

Place of residence of children left without parental care

Minors may be left without parental care if the parents:

• died;
• deprived of parental rights;
• limited parental rights;
• declared incompetent;
• sick;
• absent for a long time;
• avoid raising children or protecting their rights and interests, including refusing to take their children from educational organizations, medical organizations, organizations providing social services, or similar organizations;
• create, through actions or inaction, conditions that pose a threat to the life or health of children or interfere with their normal upbringing and development;
• in other cases parental care is denied.

Protecting the interests of such children is entrusted to the guardianship and trusteeship authorities (Article 121 of the RF IC).

Children left without parental care are transferred to a family for upbringing - adoption, under guardianship or trusteeship, to a foster family or, in cases provided for by the laws of the constituent entities of the Russian Federation, to a foster family. When this is not possible, temporarily, for the period before being placed in a family, children are transferred to organizations for orphans and children left without parental care of all types (Clause 1 of Article 123 of the RF IC). Such children live with their legal representatives or in child care institutions.

It should also be taken into account that a child’s temporary stay in an organization for orphans and children left without parental care is allowed for the purposes of:

• receipt of medical, social, educational or other services;
• providing him with temporary residence during the period when legal representatives, for good reasons, cannot fulfill their duties in relation to the child.

In this case, the rights and obligations of legal representatives in relation to this child do not cease (Clause 2 of Article 155.1 of the RF IC).

Temporary placement of children in an organization for orphans is carried out upon the application of their legal representatives, as well as taking into account the opinion of children who have reached the age of 10.

To temporarily place a child in an organization for orphans, the legal representative applies to the guardianship and trusteeship authority at the place of residence or stay of the child in order to conclude an agreement on the temporary stay of the child in an organization for orphans (clause 12, Decree of the Government of the Russian Federation dated 24.05 .2014 N 481).

The rule on the law to be applied to the personal non-property and property rights and obligations of spouses is based on the “territorial approach” and consists in the fact that the rights and obligations of spouses are determined by the legislation of the state in whose territory they have joint (common) place of residence(those. citizenship spouses not taken into account) – principle of cohabitation .

The problem of choosing the law applicable to the regulation of marital relations is solved using a “chain” of conflict of laws rules.

General conflict binding - the law of the country where the spouses live together; in the absence of a common place of residence- the law of the state in whose territory the spouses had their last common residence. If the spouses have never lived together, the law of the country of the forum applies. In some states (Great Britain, Germany, France), the dominant conflict of law is the personal law of the husband, which applies regardless of the place of residence and citizenship of the spouses.

Conflict of laws problems alimony obligations are resolved based on the application of law joint place of residence spouses.

Modern law enshrines the principle of equality of property rights and obligations of spouses.

Marriage contract . In Western countries, when getting married, a prenuptial agreement is required. The legislation of most countries provides for unlimited autonomy of will regarding the content of the marriage contract. The only limitation is that the provisions of the marriage contract comply with the public policy of the state.

When concluding a marriage contract and an agreement on the payment of alimony in marriages with a foreign element, the parties are provided possibility to choose the applicable law.

Spouses may change the regime of joint ownership established by law, establish a regime of joint, shared or separate ownership of all the property of the spouses, of its separate types or of the property of each of the spouses.

Conditions or applicable law may change at any time.

Minsk Convention 93, Kishinev Convention 2002 – rules:

· According to the laws of the country in which they have joint residence.

· If they live in different countries, but are citizens of the same state, the law of the state of citizenship applies

· If they live in different countries, and citizens of different states - the state of the last joint place of residence is applied

· If you didn’t live together – the law of the court

In relation to real estate - at the location of the property

The competent authority is the institution of the country, the law applies

Bilateral treaties on assistance rights – special rules(Estonia; Poland - the court of common residence, if they are citizens of another state - the courts of both states)

The legal relations of spouses relating to their real estate are determined according to the legislation of the CIS member state on whose territory this property is located (clause 5 of Article 27 of the CIS Convention)

International legal regulation of personal non-property and property marital relations is provided for in many international acts :

· The Hague Convention on Conflicts of Laws Relating to the Personal and Property Relations of Spouses (1905);

· The Hague Convention on the Law Applicable to the Regime of Matrimonial Property (1978);

All rights and obligations regarding the child (establishing and challenging paternity/maternity, the obligation to support the child) are determined by the legislation of the state in whose territory they have a joint place of residence. If this is not the case, the legislation of the state, the citizen

Conflict issues in the relationship between parents and children. Alimony obligations in international private law.

The conflict of laws regulation of the legal status of children is based on the application of the law of the child’s citizenship. The citizenship of children is established according to the citizenship of the parents, by agreement between them (if the parents have different citizenships), according to the principle of soil (Resolution of the EU Committee of Ministers “On the citizenship of children born in marriage”). The main problems of legal relations between parents and children are the establishment and contestation of paternity (maternity), deprivation of parental rights, child support obligations of parents and children, protection of the rights of the child, and the institution of parental authority. These relations are regulated, first of all, on the basis of the personal law of children and parents (the law of the country of citizenship or domicile). The law of the child's country of habitual residence, the law of the competent institution and the law of the court also apply.

Most of these issues are regulated in international law (the Hague Convention on the Law Applicable to Maintenance Obligations in Respect of Children, 1956; the Convention on the Rights of the Child 1989; the Recommendation of the EU Committee of Ministers on Children against Cruelty; the Hague Convention on the competence and applicable law in relation to the protection of minors 1961).

The law applicable to issues of establishing and challenging paternity and maternity is defined in Art. 162 SK. The main conflict of laws is the law of the child’s citizenship by birth. Establishing (challenging) paternity (maternity) on the territory of the Russian Federation involves the application of Russian law. The legislator has established the right of Russian citizens outside the Russian Federation to contact diplomatic and consular missions of the Russian Federation regarding the resolution of these issues.

The rights and responsibilities of parents and children are regulated by Art. 163 SK. The main conflict of laws is the law of joint residence of parents and children. If there is no joint residence, the law of the child’s nationality applies. Alimony obligations and other relations presuppose the subsidiary application of the law of the child’s place of permanent residence. Maintenance obligations of adult children and other family members are determined by the law of joint residence (Article 164 of the Family Code). In the absence of a joint place of residence, the law of the state of which the person applying for alimony is a citizen is applied.

Legal status of the child determined by his citizenship.

According to Art. 12 of the Federal Law on Citizenship of 2002, a child acquires Russian citizenship by birth if, on the child’s birthday:

a) both of his parents or his only parent have Russian citizenship (regardless of the child’s place of birth);

b) one of his parents has Russian citizenship, and the other parent is stateless, or declared missing, or his location is unknown (regardless of the child’s place of birth);

c) one of his parents has Russian citizenship, and the other parent is a foreign citizen, provided that the child was born on the territory of the Russian Federation or if otherwise he will become stateless;

d) both of his parents living on the territory of the Russian Federation are foreign citizens or stateless persons, provided that the child was born on the territory of the Russian Federation, and the states of which his parents are citizens do not grant him their citizenship.

A child who is on the territory of the Russian Federation and whose parents are unknown becomes a citizen of the Russian Federation if the parents do not show up within six months from the date of his discovery.

The Federal Law of 2002 also provides in a number of cases for the admission of a child to Russian citizenship in a simplified manner (Article 14), as well as rules for changing the citizenship of a child when the citizenship of parents (guardians and trustees) changes.

According to Art. 9 of the Federal Law on Citizenship of 2002, a child’s citizenship is acquired or terminated upon acquisition or termination of Russian citizenship by one of his parents or both of his parents.

Establishing and challenging paternity (maternity) determined by the legislation of the state of which the child is a citizen by birth (clause 1 of article 162 of the RF IC). In practice, on the territory of Russia, questions most often arise regarding establishing paternity in relation to children who are Russian citizens, and therefore Russian legislation is applied; however, children who are foreign citizens will be protected in accordance with the laws of their country of citizenship. This rule, like other conflict of laws rules of the RF IC, is based on the interests of children.

Art. 163 of the RF IC provides that the rights and obligations of parents and children, including the obligation of parents to support children, are determined by the legislation of the state in whose territory they have a joint place of residence. In the absence of a joint place of residence of parents and children, their rights and obligations are determined by the legislation of the state of which the child is a citizen. At the request of the plaintiff, the legislation of the state in whose territory the child permanently resides may be applied to child support obligations and other relations between parents and children.

If a person obligated to pay alimony goes abroad for permanent residence, in the absence of a legal assistance agreement ensuring mutual enforcement of court decisions, difficulties arise. It is known that most immigrants from Russia and other CIS countries went to the USA, Germany, Israel and some other states with which agreements of this kind were not concluded.

It remains possible to file a claim in the court of the state where the person obligated to pay alimony has moved. In practice, such a way to solve the problem is used as summing up the amounts due to the child before he reaches the age of majority and concluding an agreement between the parties on their payment.

However, if the place of residence of the parents or one of them is in the territory of one contracting state, and the place of residence of the child is in the territory of another, then the legal relationship between parents and children is regulated by the law of the state of which the child is a citizen. If, for example, the father, a Russian citizen, lives in the Russian Federation, and the child, a Russian citizen, lives in Estonia, then the father’s responsibilities, including the obligation to pay alimony, are determined by Russian law.

Article 32 of the Minsk Convention of 1993 (as amended by the Protocol of March 28, 1997), as well as Art. 35 of the 2002 Chisinau Convention provides for the following rules:

The rights and obligations of parents and children, including the obligations of parents for the maintenance of children, are determined by the legislation of the contracting party in whose territory they have a permanent joint place of residence, and in the absence of a permanent joint place of residence of parents and children, their mutual rights and obligations are determined by the legislation of the contracting party , of which the child is a citizen.

At the request of the plaintiff for alimony obligations, the legislation of the contracting party in whose territory the child permanently resides is applied;

The alimony obligations of adult children in favor of their parents, as well as the alimony obligations of other family members, are determined by the legislation of the contracting party in whose territory they had a joint place of residence. In the absence of a joint place of residence, such obligations are determined by the legislation of the contracting party of which the plaintiff is a citizen;

In cases concerning legal relations between parents and children, the court of the contracting party whose legislation is to be applied is competent;

Execution of court decisions in cases related to the upbringing of children is carried out in the manner established by the legislation of the contracting party in whose territory the child lives;

The contracting parties assist each other in searching for the defendant in cases of alimony collection, when there is reason to believe that the defendant is in the territory of the other contracting party, and the court has issued a ruling to announce his search.

In order to better guarantee the interests of children, treaties with Hungary, Bulgaria and Poland establish a rule that allows the law of the country of residence of the child to be applied if the legislation of that country is more favorable for him. The agreement with Vietnam provides for the application of the legislation of the country in whose territory the person applying for alimony resides in cases of collection of alimony from parents in favor of children and from adult children in favor of parents.

65. International civil procedural law: range of issues covered and place in the system of Russian law.

IHL is a set of procedural issues related to the protection of the rights of foreign individuals and legal entities in courts and arbitrations. The concept of “IHL” is conditional. The word “international” has the same meaning as in PIL: it means the presence of a civil legal relationship burdened with a foreign element. Scope of IHL:

1) international jurisdiction of civil cases;

2) civil procedural status of foreign individuals (individuals and legal entities), foreign states, international organizations;

3) judicial evidence in cases with a foreign element;

4) establishing the content of the applicable foreign law;

5) execution of foreign court orders;

6) recognition and enforcement of foreign court decisions; 7) notarial actions related to the protection of the rights and interests of participants

international civil turnover;

8) consideration of civil cases through arbitration;

9) enforcement of foreign arbitral awards.

IHL is the part of national civil procedure concerned with

trial of civil disputes with a foreign element.

In Russian legal doctrine, IHL has long been considered part of the science of international private law and was included in its structure. This point of view is still present in domestic legal science. Indeed, international private law and international law have a common origin, close interaction and interdependence. In international private law and international law there are common substantive, conflict of law and procedural institutions: national regime in the field of civil and civil procedural legal capacity; immunity of the state in civil proceedings and its property in civil law; application of the public policy clause; the principle of reciprocity and the right to retortion. However, all this does not provide grounds for combining international private law and international law. Their interrelation and interdependence are obvious, but international private law is an independent branch of law, and international law is part of the structure of the national civil process. PIL and IHL are independent and

separate branches of law and legal science.

The principle of “law of court” in IHL is its foundation, its central core.

The generally accepted beginning of the national civil process is the application of only one’s own procedural law, including when considering cases with a foreign element. In modern practice, there is a tendency to refuse to apply only national procedural law. Generally accepted exceptions: determining the civil procedural capacity of foreigners according to their personal law; the possibility of applying foreign procedural rules in connection with the execution of foreign letters rogatory. The basis for the application of foreign procedural law is not the norms of national laws, but the provisions of international treaties.