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The term "family law" is used in several meanings.

Firstly, the term “family law” refers to an independent branch Russian law, consisting of a system of legal norms regulating family relations.

Secondly, sometimes the term “family law” is used to refer to a set of legal acts governing family relations. In other words, in this case, “family law” is synonymous with the concept of “family law”.

Thirdly, “family law” is an independent branch of jurisprudence, an independent direction of legal science (a set of different ideas, concepts, views, points of view on family law phenomena).

Fourthly, “family law” - academic discipline, provided by the State educational standard higher vocational education majoring in jurisprudence.

Fifthly, “family law” is a subjective right, which represents the type and measure of possible behavior of an authorized person (family member) in the field family relations.

Subject of family law. Since we're talking about about family law, insofar as the subject of its legal regulation is family relations. However, not all family relationships can objectively be subject to legal regulation. In a family, diverse relationships arise that stem from the physical, everyday, moral, moral, ethical, and spiritual nature of a person. Many of these relationships cannot be subject to legal regulation (for example, love, respect, psychological, spiritual connections, mutual feelings of spouses and other family members, etc.) and are influenced by such social regulators as religion, morality, ethics, customs, traditions, etc. Therefore, outside the scope of family law there remains a fairly large area of ​​family relations, which, based on their essence, cannot be regulated by law. Family law distinguishes from the total mass of relationships existing in the family only those that can be objectively subject to legal regulation and are especially significant from the point of view of society and the state. Together they form the subject of family law.

1) the conditions and procedure for entering into marriage, terminating a marriage and declaring it invalid;

2) personal non-property and property relations between family members: spouses, parents and children (adoptive parents and adopted children), and in cases and within the limits provided for by family law, between other relatives and other persons;

3) forms and procedures for placing children without parental care into families.

By their legal nature, relations regulated by family law can be personal and property.

Personal non-property relations are associated with the implementation of personal interests by family members. Thus, personal relationships arise upon marriage and termination of marriage, when spouses choose a surname during marriage and divorce, when resolving issues of maternity and paternity, raising and educating children and other issues. family life. These also include relationships arising in connection with the child’s exercise of the right to live and be raised in a family, to communicate with parents and other relatives, the right to protect his rights and legitimate interests, etc. Personal non-property relations between family members are thus very diverse , but are subject to legal influence only in the main, main points.

Property relations are relations arising regarding any material benefits. As a subject of legal regulation of family law, property relations occupy a larger place in their scope. These are relations between spouses regarding the ownership of property, alimony obligations of spouses (former spouses), parents and children, as well as other family members.

Specifics of family relationships

1. The relations that form the subject of regulation of family law are characterized by a special subject composition. The circle of persons who can be their participants is clearly defined by family law. Family legal relations involve not only individuals, and citizens who have a special family legal status - spouse, child, parent, grandmother, grandfather, etc.

2. The basis of family legal relations is made up of specific legal facts - marriage and kinship, motherhood, paternity, adoption, etc. Despite the fact that the basis for the emergence of some family legal relations are contracts and agreements, nevertheless, the presence of marriage or kinship (equivalent to it) is a necessary prerequisite for their existence.

3. A characteristic feature of family legal relations is their ongoing nature. As A.P. Sergeev correctly pointed out, although the continuing nature is inherent in some other civil legal relations, in particular legal relations of property, for family relations it is immanent, that is, it follows from their very nature. And the point is not only that most family legal relations are based on such time-unlimited legal facts as kinship, marriage, adoption and other circumstances. “The ongoing nature of family legal relations is determined mainly by the specifics of their goals and objectives, which are to create a family, raise children, provide financial support for disabled relatives and spouses, etc.” Family legal relations require long-term interaction between their participants1.

4. Family relationships are characterized by strict individualization of their participants, their indispensability in these relationships by other persons. Family rights and obligations are “non-negotiable”, not transferable either by universal succession (inheritance) or by agreement of the parties. In family law there are no such institutions as assignment of claims and transfer of debt.

5. Since in family relationships it is impossible to replace their participants, any family relationships (property or personal non-property) acquire a personal character. However, the personal nature of the relationships that develop in the family is determined not only by the fact that personal and property rights and obligations are inseparable from the personality of the authorized person.

In terms of their content, family relationships are predominantly personal in nature and only then property. Personal relations have priority, since property relations are always connected with them and follow from them. Personal relationships largely determine the content of the rules governing property relations. For example, the legislator, taking into account the influence of personal factors (attachments, feelings, emotions, etc.) on the process of concluding a marriage contract or alimony agreement, sets special restrictions. “Property relations in the family, although important, are derived from personal ones, since they arise only in the presence of the latter and are designed to serve them.”

The features of family relations discussed above make it possible to distinguish them from the general mass of property and personal legal relations into a separate sphere - an independent subject of regulation of family law.

Features of the method of family law regulation

The characteristic properties of the relationships that form the subject of family law regulation directly affect the method of regulation. The method of legal regulation in the theory of law is understood as “techniques of legal influence, their combination, characterizing the use in a given area of ​​social relations of one or another set of legal instruments, means of legal influence.” Due to the fact that the object of the regulatory influence of law is not a random accumulation of relations, but their system, the complex of legal means of influence, in turn, is a set of elements related to each other, although varying in a specific ratio.

To a first approximation, the family law method can be characterized as permissive-imperative. In terms of its impact on social relations, the family law method is permissible. “In most cases, the state provides participants in family legal relations with the opportunity to choose their own behavior model in order to satisfy their vital interests and needs, reserving the right to determine the framework of appropriate behavior in mandatory regulations.” Modern family legislation, unlike the previous ones, makes rights a priority. Permissions lead in quantitative terms among all other family law regulations. At the same time, the characteristics of the method of family law regulation are far from being exhausted by resolving the issue of the predominance of dispositive or imperative norms. The ways and means of influencing family relationships are very diverse. Family law: a course of lectures / A.M. Nechaeva. - 2nd ed., revised. and additional - M.: Yurist, 2009.

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1.2. Family law method

Family law is characterized by methods of legal regulation of family relations, which together form what in legal science is usually called the method of legal regulation.

The method of family law regulation is a set of techniques and methods by which the norms of family law influence social relations that are the subject of legal regulation. The family law method is imperative. This is expressed in the fact that in most cases the state provides the opportunity for participants in family legal relations to choose their own model of behavior, reserving the right to determine the framework of appropriate behavior in mandatory regulations. In many family law institutions, regulation is possible only through mandatory norms. These are, for example, institutions that determine the application of measures of family legal responsibility and protection, such as rules on deprivation of parental rights, on the removal of children without deprivation of parental rights, on the cancellation of adoption, and the recognition of marriage as invalid.

The family law method is not just imperative, but imperative-permissive. The permissive nature is manifested in the fact that in family law, authorizing norms predominate, giving participants in family relationships certain rights, but these rights are determined imperatively. Thus, no one can be forced to marry or divorce, but the procedure for concluding and dissolving a marriage is determined by law. In addition, the family law method has a dispositive beginning. Dispositivity means the ability to choose one behavior option from several possible ones provided by law. Thus, the state does not impose its will on the participants in family legal relations, but only protects and defends their legitimate rights and interests.

The method of family law regulation has characteristic features. These include: a) legal equality of participants in family legal relations, which is manifested in the absence of their subordination to each other; b) autonomy of the will of participants in family legal relations, it lies in the fact that the will of one of the participants in family legal relations does not depend on the will of the other. The legal method of regulating family relations is also characterized by the fact that the norms of family law establish the interconnection and interdependence of the rights and responsibilities of specific participants (subjects) of these relations - family members who, in exercising these rights and responsibilities, must be guided by the interests of the family, respect the interests of minors and the disabled its members. The specificity of the method of regulating family relations lies in the inalienability of the rights belonging to their subjects, the possibility of changing the scope of these rights and obligations by agreement only in strictly limited cases (nuptial agreement and agreement on the payment of alimony) and within the limits specified by law. Basically, the rules governing family relations are imperative (mandatory) in nature.

Methods for regulating family relationships are divided into prohibitions, permissions, rules-explanations and instructions for performing certain actions (see Fig. 1). The prohibitions are clearly expressed in legal acts, have certainty and are applied to specific actions and actions. Depending on the form of their expression, prohibitions are divided into direct and indirect. Direct prohibitions are those in which the will of the legislator is expressed clearly and openly. Deviations from direct prohibitions are possible in cases provided for by law. So, adoption of siblings by different persons is not permitted, except in cases where it does not conflict with the interests of the children. Indirect prohibitions are prohibitions, the content of which implies the inadmissibility of any action. Exceptions to indirect prohibitions are provided by law. For example, marriage is concluded after a month from the date of filing the application with the registry office, but if there is good reasons it is possible to shorten or increase this period. Permissions are permissions to perform actions enshrined in the law. Permissions, except for participants in family relations, are addressed to law enforcement authorities (court, guardianship and trusteeship authorities). Permissions can also be direct and indirect. In direct permissions, permission to perform actions is expressed openly. For example, the law provides the opportunity to conclude a marriage contract both before registering a marriage and during the marriage. Indirect permissions are instructions, the content of which indicates the possibility certain behavior. Thus, a married father and mother are registered as the parents of the child upon the application of either of them.

The family law method is inherently permissive and imperative.

Subject of family law

The subject of family law is social relations arising from marriage, consanguinity, and the adoption of children into the family.

Social relations regulated by family law are divided according to their social essence to:

Personal non-property and

Property

It should be noted that the issue of the relationship between personal and property relations in family law is debatable. Most scientists (E.M. Vorozheikin, I.M. Kuznetsova, V.A. Ryasentsev, G.K. Matveev) point to the priority of personal relationships. According to M.V. Antokolskaya, in family law, as well as in civil law, property relations come first, since most personal relationships in the family are not subject to legal regulation.

The first point of view seems more convincing, since property relations are determined by the presence of family or other legally significant ties of a personal nature between the subjects of family legal relations.

Article 2 of the Family Code of the Russian Federation specifies the relations regulated by family law. It provides that family law:

Establishes the conditions and procedure for marriage, termination of marriage and invalidation;

Regulates personal non-property and property relations between family members, and in cases provided for by family law - between other relatives and other persons;

Determines the forms and procedure for placing children without parental care into families.

Method of family law regulation- a set of techniques and methods by which the norms of family law influence social relations included in the subject of legal regulation.

This is manifested in the fact that in most cases the state provides the opportunity for participants in family legal relations to choose their own model of behavior, reserving the right to determine the framework of appropriate behavior in mandatory regulations.

TO characteristic features methods of family law regulation include:

Legal equality of participants in family legal relations, which is manifested in the absence of their authoritative subordination to each other;

The autonomy of the will of participants in family legal relations lies in the fact that the will of one of the participants in family legal relations does not depend on the will of the other. The state also does not impose its will on them, but only protects and defends their legitimate rights and interests;

Individual situational regulation provides the opportunity for law enforcement agencies to make decisions taking into account specific life circumstances;

The strengthening of the dispositive principle in family law regulation is due to socio-economic changes in Russian society. Dispositivity means the ability to choose one behavior option from several possible ones provided by law.

Family law is a branch of law that regulates personal non-property and property relations between family members based on marriage, kinship, and the adoption of children into the family.

The social relations that constitute the subject of family law are characterized by the following features:

In family law, property relations are derived from personal non-property relations;

The subjects of family relations, as a rule, are only individuals who have a special family legal status;

The basis of family relations is made up of specific legal facts - marriage, kinship, maternity, paternity, etc.;

Family legal relations are inextricably linked with the personality of their subject and do not allow succession;

Family legal relations are free of charge.

The subject of family law is personal non-property

and property relations provided for by family law. According to Art. 2 of the Family Code of the Russian Federation (FC RF) these include:

Conditions and procedure for marriage, termination of marriage and invalidation;

Personal non-property and property relations between spouses, parents and children, as well as other family members;

Forms and procedures for placing children without parental care into families.

A number of property and personal non-property relations, closely related to family ones, are regulated not by family law, but by its other branches. For example, inheritance legal relations between family members, transactions on behalf of minors, and others are regulated by civil law; relations related to civil registration (birth, death, marriage, etc.) are the subject of administrative law.

The family law method forms a complex of dispositive methods of legal influence of the family law branch on social relations that constitute the subject of its regulation.

The basis of the family law method is the recognition of the equality of participants in family legal relations. According to Art. 2 of the RF IC, citizens, at their own discretion, dispose of their rights arising from family relationships, including the right to protect these rights. The exercise by family members of their rights and the performance of their duties must not violate the rights, freedoms and legitimate interests of other family members and other citizens. Family rights are protected by law, except in cases where they are exercised contrary to the purpose of these rights.

The features of the method of regulating family legal relations are revealed through the principles of family law, which are enshrined in the RF IC.

The basic principles of family law include the following:

Recognition of marriage concluded only in the civil registry office (registry office);

Voluntary marriage between a man and a woman;

Equality of rights of spouses in the family;

Resolution of intra-family issues by mutual agreement;

The priority of family education of children, concern for their well-being and development, ensuring priority protection of their rights and interests;

Ensuring priority protection of the rights and interests of disabled family members;

The inadmissibility of restricting the rights of citizens in family relationships other than on the basis federal law and only to the extent necessary in order to protect the morals, health, rights and legitimate interests of other family members and other citizens.

Family law is characterized by a special subject and method of legal regulation.

The subject of legal regulation is a set of social relations that are uniform in their essence, which are regulated by the norms of a given branch of law.

Method is a set of methods and techniques for regulating relations that are part of the subject of the branch of law.

The subject of regulation of family law is non-property and related property relations in the family, i.e. marital relations in the family, which include and regulate:

– procedure and conditions for marriage; termination of marriage and recognition of it as invalid;

– personal relations between spouses (for example, relations regarding the choice of occupation, place of residence, ownership, use and disposal of common property);

– property and non-property relations between parents and children (for example, regarding the upbringing and education of children) and other family members (for example, the RF IC establishes the child’s right to communicate with grandparents, brothers, sisters and other relatives, the responsibilities of stepsons and stepdaughters in terms of maintenance stepfather and stepmother);

– adoption, guardianship and guardianship (in cases of death of parents, deprivation of their parental rights, restrictions on their parental rights and other cases).

In science, there are different points of view on determining the essence of the method of family law regulation. Some scientists believe that the method of family law is permissible in terms of the content of the impact on relationships, and imperative in the form of instructions. Therefore, it is characterized as permissive-imperative. Permissiveness lies in the fact that family law provides citizens with legal means to satisfy their needs and interests in the sphere of family relations, and imperativeness does not allow the establishment of rights and obligations by agreement of the parties, since they are provided for by law. Others believe that since the number of dispositive norms in family law has increased, the family law method is dispositive. Still others characterize the method of family law regulation as permissive-imperative with a predominance of permissible principles, since the RF IC has granted subjects of family relations the right in a number of cases to independently determine the content, grounds and procedure for exercising their rights and obligations in the relevant agreement (nuptial agreement, agreement on the payment of alimony , an agreement on the procedure for the exercise of parental rights by a parent living separately from the child).

With the help of certain means of influencing family relations, family law subjects them to certain rules that have specific goals. The goals of the legal regulation of family relations are: strengthening the family, building family relationships on feelings of mutual love, respect and mutual assistance and responsibility to the family of all its members. In addition, family legislation is designed to ensure the unhindered exercise by family members of their rights, and, if necessary, judicial protection of these rights (Article 1 of the RF IC).

Principles of family law.

The principles of family law represent a concentrated expression of its characteristic features and are guiding principles in the interpretation and application of family law rules.

All the basic principles of family law are related to the provisions of the Constitution of the Russian Federation, which determine the foundations of the constitutional system of our state and the fundamental rights and freedoms of citizens.

The principles of family law are determined by the goals of the legal regulation of family relations in the Russian Federation (see diagram 13).

The basic principles of family law are enshrined in Art. 1 RF IC (see diagram 12):

1. Recognition of a marriage concluded only in the registry office. The legal regulation of marriage relations in our country is carried out by the state. His interest in this is determined by the fact that marriage serves as the basis of the family. In accordance with the current legislation (clause 2 of article 1 of the RF IC), only marriages concluded in the civil registry authorities are recognized. The religious ceremony of marriage (wedding) and actual marital relations have no legal significance and do not entail mutual rights and obligations of the spouses.

2. The voluntariness of a marriage union presupposes the free will of a man and a woman, which the spouses express twice: when submitting an application to the registry office and during the registration of marriage. To determine the authenticity of freedom of expression, marriage registration is carried out in the presence of both persons entering into marriage (Clause 1 of Article 11 of the RF IC). Under Russian law, marriage in the absence of one of the parties or through a representative is not allowed.

3. Equality of spouses in the family. This principle is based on constitutional provisions on the equality of rights and freedoms of men and women, on the freedom to choose their place of stay and residence, occupation, and on the equality of rights and responsibilities of parents in relation to their minor children.

This principle is based on the personal, trusting nature of family relationships.

4. Resolution of intra-family issues by mutual agreement. This principle is based on a dispositive way of regulating family relations and is expressed in providing family members with the opportunity to choose their behavior model. It is closely related to the principle of equality of spouses in the family. A specific manifestation of this principle is contained in paragraph 2 of Art. 31 of the Russian Federation, which establishes that issues of maternity, paternity, upbringing, education of children and other issues of family life are resolved by spouses jointly based on the principle of equality of spouses. None of them have any advantages and have no right to dictate their will.

5. The priority of family education of children, concern for their well-being and development, ensuring priority protection of their rights and interests. This principle is detailed in the norms of the Family Code regulating legal provisions child in the family (see diagrams 83-86 to topic 16).

The norms of this institution are new for the Russian family

legislation.

6. Ensuring priority protection of the rights and interests of disabled family members. The RF IC contains a number of norms aimed at implementing this principle:

Art. 85 “The right to alimony for disabled adult children”;

Art. 87 “Responsibilities of adult children to support their parents”;

Art. 89 “Obligations of spouses for mutual maintenance”;

Art. 90 “The right of the former spouse to receive alimony after divorce”, etc.