Ýòî àðõèâíàÿ ñòðàíèöà ïðåäûäóùåé âåðñèè ñàéòà Ëèäæèñòà.
Àêòóàëüíóþ èíôîðìàöèþ ñìîòðèòå íà îáíîâëåííîì ñàéòå.

N.N. Tarusina,


      The strategy of interaction of the family law and the civil process is conditioned by the derivative nature of the civil procedural law, its collateral nature with respect to the substantive law, namely the family law, on the one hand, and, on the other hand, by the traditional specific character of a domestic relations litigation, variety of similar situations regulated by the family law and significant role of the judicial enforcement, as well as specific, not quite typical tasks of the civil procedural legislation and the court that fulfills them to ensure the state and public interest in the proper safeguard and protection of interests of a child and a family as a whole.

      The key to solution of the problem of interaction under review is, naturally, the subject of the civil procedural activities - a domestic relations case, since every thing should be treated as «its substance requires»[1]. The subject of the procedural activities, as V.V.Butnev remarks, is «that point whereat substantive and procedural relations enter into a direct interaction»[2].

      Therefore, the basic prerequisite for interaction of the family and civil procedural laws is a certain conditionality of the substance of the latter (the system, composition of participants, stages, execution of judgments, etc.) by the specific nature of such subject of the judicial activities as domestic relations cases. However, consideration of the specific nature of respective results with account of the essence and differentiation of functions of the civil procedural rules must be conducted stage by stage - from one level to another, since the algorithm of interaction of the civil process with respective substantive relations (objects of law enforcement) is still significantly more complicated than the formula «like the object (substantive relations in a conflict), like the method of its study and disposition (consideration and adjudication)»[3].

      The first level of the mentioned interaction is occupied by the elements of the civil procedural form which, from the viewpoint of the substance, are absolutely independent, unrelated to the subject of the judicial activities, and hence, to the character of domestic relations cases. They reflect the general functional purpose of the civil process and provide prerequisites for comprehensive and complete consideration of circumstances in any civil case and subsequent issue of a fair and lawful judicial act. (Although this provision is not included in the latest draft Code of Civil Practice (the CCP), the judicial study as a variety of the cognitive activities cannot but pursue this aim). These are the rules of the principles of the judicial system and procedure, the structure and stability of a process, the essence and types of evidence and the rules of evaluation thereof, the judicial rulings delivery procedure, the appeal procedure, etc. In this sense, «a servant» occupies a governing position and dictates his conditions to «his masters».

      The second level combines those elements of the civil procedural form which reflect the essence of the subject of the judicial activities, in particular, of a controversy about the right (in an adversary proceedings), an administrative offense or appeal (in an administrative proceedings, which very likely will be soon integrated into an adversary proceedings - see the draft CCP), cases of juridical facts establishment (in ex parte proceedings). For example, the rules of the adversary procedure reflect the essence of a controversy about a civil right (in a wide sense - without differentiation according to branch types of controversies). The totality of features of a controversy about any right as an independent kind of a legal conflict gives rise to a civil procedural form of consideration and adjudication of a case, which differs greatly from other civil procedural forms. The following are the elements of adversary proceedings of the second level: general prerequisites of the right to file an action, the rules of a process institution, joining and separation of claims, change of the subject and grounds of a claim, means of respondent’s defense against a claim, etc. The situation with the rules of ex parte proceedings is nearly the same.

      However, since a controversy about a right is a general, non-branch, notion combining all civil and partly public law and administrative law conflict areas, including the family law, the third level of interaction of the substantive law and civil procedural rules and relations - a branch level, is logically formed. It is just at this level that the specific nature of domestic relations and respective domestic relations litigation starts prevailing over the general functional purpose of the civil procedural form, urging the latter to get specialized. Accordingly, the first and the second levels of interaction of the family law and the civil procedure characterize the integral and universal nature of the latter, while the third and the subsequent ones - its differentiation up to its individualization.

      It is quite evident that the aforementioned stages of «ascent» of the civil procedural form from the abstract to the specific one are manifested everywhere. However, in our case they are the most evident. It is explained by the social complexity, non-ordinary nature of a domestic relations litigation. First, as the Russian lawyers of the late XIX century - early XX century noted, marriage, parenthood, and other phenomena with a domestic relations element have an essentially biological and social basis and acquire the status of «a legal institution» only formally, on the surface, while in essence they remain out of law, admitting only to a certain extent the influence of a custom, morals, and other similar social institutes. Second, the essence of the functions assigned to the privies of these relations by nature and the society, though differing, to a certain extent, in the substance and key points, presupposes the parity and conciliatory basis of the privies’ existence, i.e. partnership, and not an administrative subordination. The matriarchy and patriarchy, parenthood (guardianship) and childhood have nevertheless «made peace» on relatively equal terms. Third, the society’s and state’s interest in the normal development of domestic relations and special protection of the motherhood and childhood presupposes, as if in contrast to the previous statements, a certain, sometimes considerable lack of free choice of behavior, its strict «prescription». Forth, domestic relations, again by virtue of peculiarities of the prescribed functions, as a rule develop within a considerable span of time and space, in other words, have a lengthy character. Finally, fifth, they presuppose a special composition of the subjects whose quality is usually not transferred to other persons - neither as an assignment nor as a legal succession. Therefore, the nature of the object (subject) of domestic relations regulation presupposes that the family law method combines the principles of equality, option, and imperative, as well as formal and constructive, social and moral principles[4].

      Naturally, the search of the harmony of so contradicting components of the family law methodology, the optimal interaction of the family law and the civil process, except for the evident specific nature of the subject of the family law regulation and the subject of the judicial activities (in domestic proceedings), is accompanied by the operation of other objective and subjective factors. Thus, development of economic reforms inevitably intensifies, contrary to formed traditions, civil law aspects of property family law institutes, sometimes even excessively, that does not only pull out from «the reserves» the theory of diminishing the state interference in family relations regulation, but may subsequently entail an essential, by virtue of the logical connection between the law and procedure, deviation from the civil procedure family law specialization. The professional approach to the sphere under consideration is considerably hampered by a wide-spread fallacy of the legislators and politicians as a whole concerning the level of their awareness and qualification in the issues concerning family relations regulation. The situation is aggravated by the national political factor. The fact of granting certain rights in the sphere of normative regulation of family relations to the subjects of the Russian Federation has been met by the regional legislators with excessive enthusiasm which results in the evident consequence: with respect to the quantitative aspect - exceeding of the scope of their powers, with respect to the qualitative aspect - contradictions over the essence.

      Finally, an exceptional variety of modifications of one and the same type of a domestic relations conflict and traditional recognition of the circumstantial character of the family law rules, by virtue of the aforementioned prevailing peculiarities of domestic relations, predetermine one of the most important roles of the judicial enforcement - the defining function of courts with an incredibly great portion of arbitrary discretion (which, by the way, makes «the family law jurisprudence» essentially different from «the civil one» and draws the former, exclusively in the given context, to «the criminal jurisprudence».

      Therefore, as we have noted above, the strategy of interaction of the family law and the civil process is based on the complicated «diffusion» of the former into the area of the latter, and vise versa, on the interweaved principles of the public and private laws, formally constructive and social and moral principles, as well as universal and strictly specific principles. The independence, methodological determination, reasonable conservatism of the civil process predetermine the general algorithm of protection of subjective family rights and interests (using our terminology - the first and the second levels of interaction); the specific character of domestic relations and respective domestic relations litigation is the main prerequisite for interaction of the civil procedure elements in the sphere of the domestic relations (the third - the branch level, the forth - the institutional, and subsequent levels of interaction).

      What are the quality and quantity of the results of this interbranch cooperation at present? It is pleasant to note that tactical changes of the civil procedural legislation and both the strategic and tactical reform of the domestic relations legislation, especially in its specific civil procedure aspect, have on the whole created favorable prerequisites for effective protection of subjective rights and interests.

      Thus, grounds for recognizing a marriage as invalid have been extended, with the optimal differentiation of the subjects of law entitled to file an action. The procedure of divorce by mutual agreement with respective procedural specific features has been introduced. The ambiguity of the tasks of the court in a divorce suit as regards the decision on which parent the child will live with and payment of child support has been replaced by «the categorical prescription» to resolve these problems concurrently with a divorce, including on the court’s initiative. The rule on the time of a marriage termination has been drastically changed, which fact has restored the proper status of a judgment on divorce. The rules on initiators, causes of action, and the subject of proving in cases of establishment of extramarital fatherhood have been brought into line with civilized traditions (besides, their effectiveness has been enhanced by the new rule of the CCP of RSFSR On Consequences of Refusal of the Parties to Participate in the Judicial Fact Finding). The causes of actions for deprivation and curtailment of parental rights have been adjusted and rather clearly differentiated. The specific category of claimants and respondents – under aged parents of illegitimate children - has been introduced. A minor of fourteen years old has been granted the right to protect independently his subjective family rights and interests in court, which corresponds to the general principles of the leading branches of Russian law (administrative, civil, labor, criminal laws) concerning alternatives of the age legal capacity. A number of restrictions of the right of access to the court have been lifted: the right of foster parents to cancel adoption, the right of a parent living separately from the family to participate in upbringing of the child if a relevant agreement has been violated. The judicial procedure of adoption establishment has been introduced, that has undoubtedly strengthened the guarantees of protection of a child’s interests. The possibility of extrajudicial solution of family relations problems by concluding contracts on the common property, family members support, a child upbringing, adoptive parenthood, ersatz motherhood, and with respect to other issues of the reproductive nature, has been extended.

       However, the procedural component of the family legislation is still far from being optimal. First of all, solutions (or lack of them) on a number of specific problems are rather doubtful. Thus, a case of a divorce by mutual agreement has remained the subject of adversary proceedings because of absence of the respective provision in the CCP, which necessitates no comments. The pretext of «aggravating» such case with accompanying matters, including disputes, does not solve the problem. It may be solved according to various «scenarios».

      Still persists the contradiction between the procedural activities of the court with respect to realization of the prescription of Art.24 of the Family Code of RF concerning initiation of proceedings related to which parent the child would live with and child support, and the rule of Art.4 of the CCP of RSFSR. At the same time, no draft CCP, in the article analogous to Art.4 of the CCP of RSFSR, provide for such possibility, either according to a general rule, or as an exception. If this rule of Art. 24 of the Family Code of RF is good, such a general procedural novel must be formulated.

      The absolute, indisputable nature of limitation of a husband’s civil procedural capacity in protection of his interests in a divorce case ( prohibition to file for a divorce without his wife’s consent during her pregnancy and subsequent maternity) is preserved: exceptions are quite reasonable and justified in case of administrative or judicial recognition of another man’s fatherhood. The absolute nature of the prohibition, by the way, makes the situation absurd, for example, when a man cannot divorce his wife during succession of her pregnancies by other men...

      Neither a public prosecutor nor the guardianship and trusteeship authorities have been included in the group of subjects of law entitled to institute an action of the fatherhood establishment (Articles 48-50 of the FC of RSFSR). If it is the legislator’s principal position (which is doubtful), the rules of Articles 41-42 of the CCP of RSFSR should be adjusted accordingly. If the legislator implies that their participation «goes without saying», then it is not clear why in other cases these subjects are listed in the rules (Articles 28, 70 etc. of the FC of RF)?...

      It is necessary to determine how to adjudicate in the matter arising in connection with convergence between the requirements of the law concerning the judicial parenthood establishment when the principal fact has been proved (the fact that the child was sired by this particular man - Articles 47, 49 of the FC of RF) and the child’s interests when «a true» (biological) father challenges the fatherhood of a man whom the child has been considering to be his father since long ago and is fond of. Thus, O.Khazova assumes it possible, even pursuant to the current laws, to acknowledge priority of the social fatherhood in such cases and to dismiss the action[5]. This does not seem to be so: provisions of Articles 47 and 49 are quite definite in this respect, which means that it is necessary to raise the question de lege ferenda.

      Interaction of the rules of Articles 49 and 50 of the FC of RF is not clear, including in the context of the civil procedural law: since it is quite evident that finding the fact of fatherhood of a deceased person in ex parte proceedings is conducted (and has been conducted pursuant to the rules of Art.48 of the Code of Marriage and Family of RSFSR) not only on the evidentiary basis (the deceased’s acknowledgment of his fatherhood), but also on the ground of other evidentiary facts (the person’s living together with the child’s mother in the respective time period, participation in upbringing and maintenance of the child, etc.), hence, separation of one particular case as a separate rule in Art.50 of the FC of RF is illogical. In practice, judges have to apply the rules of Art.49 to the cases where the subject of proving is not restricted to mere acknowledgment of fatherhood.

      One could continue enumerating unsolved or dubiously solved specific problems; however, the declared objectives make us revert to generalization.

      The first generalization pertains to the problem of «spatial» systematization of the civil and family laws. The main prerequisite of the mentioned problem is established by the following levels: the interbranch level of interaction (the family law - the civil process), the institutional and branch level, and, at last, the level of «the category of a family case (dispute, conflict) - a specialized civil procedural form of consideration and adjudication thereof».

      As is seen from the analysis of the family legislation, the bulk of specialized civil procedure rules, which are stipulated to an incomparably greater extent in the FC of RF than in the CCP of RSFSR, is traditionally significant. In this respect, no other legislation can compete with the pair «the family law - the civil process». However, spatially, from «the architectural» point of view, these rules have not been completely elaborated yet. Quite different variants are possible here - from «redecoration» up to cardinal changes. The first variant presupposes gathering all procedural peculiarities (according to a complete cycle and not just pulling separate procedural elements out of the system) in the respective family law institutes (invalidity of a marriage, termination thereof, establishment of parenthood, disputes about upbringing of children, etc.): subjects of law entitled to file an action, limitation of the civil procedural capacity, participants of a process, causes of action and the subject of proving, presumptions, eventual conciliation procedures, joining and separation of claims, disposal activities of the parties, delivery of a judgment and execution peculiarities thereof. The second variant - forming a special procedural block - an institute within the scope of the Family Code (with similar algorithm ). The third variant - establishment of specialized blocks in the Code of Civil Practice («Procedural peculiarities of consideration of separate categories of civil cases»).
      The first variant, apart from systematization of the procedural elements and putting them into a logical line, should contain certain exemptions from the CCP: in this case, the rules on procedural peculiarities of separate categories of domestic relations cases in the adversary and ex parte proceedings (including cases of adoption establishment) should change their «place of registration» from the CCP to the FC. The second variant includes, first of all, the arrangements of the first variant and, second, inevitably compels the legislative technique to exclude those rules of the Family Code, which have acquired both procedural and substantive law «flesh». It is quite possible, since other substantive law codes contain, as a rule, just «net» rules, without procedural «additions» (true, as we have already noted, their jurisdictional application is not, as a rule, complicated by multiple procedural peculiarities). The third variant, accordingly, includes the arrangements and work done in the first and second variants plus the internal systematization of the CCP.

      The second generalization pertains to the traditional problem of interaction of general and special civil procedural rules (irrespective of «the place of registration» of the latter). Two problems arise here: first, subordination, consistency of special rules with general provisions of the CCP; second, optimal use of the general procedure opportunities in family proceedings. Reproaches concerning insubordination, up to the antagonism, of the quotient to the general, have been hurled since long ago, namely, since adoption of the Code of Marriage and Family of RSFSR (the CoMF of RSFSR) in 1969[6]. A certain «purge» has been done, however, contradictions and absurdities sill persist. Thus, the aforementioned rules of Art.24 of the FC of RF «sin» against the principal provisions of the CCP in two points. First, and this is «the deadliest sin», the above mentioned rule of the court’s obligation to decide, at its discretion, on where a child would live and his maintenance, since his/her parents live separately after divorce, unless the parties to the dispute have agreed upon or claimed for that, has no analogy in the CCP: the rule of Art. 4 of the CCP of RSFSR contains a comprehensive list of initiators of the process, but the court is not included therein. As to the rule of Art.195 of the CCP of RSFSR on the court’s entitlement to go beyond the scope of the filed action, it cannot be used as a «basic» one, since this article concerns one and the same controversy, whereas in our case - quite separate controversies. Art. 24 of the FC of RF is inconsistent, although in a subdued form as compared to the CoMF of RSFSR, with Art.128 of the CCP of RSFSR: the quota of other claims which may be joined to an action (statement of claim) is stipulated comprehenisvely in Art.24 of the FC of RF; and Art.128 of the CCP of RSFSR stipulates that it is a judge who decides, at his discretion and depending on the circumstances, on «integration» of the process, proceeding from interconnection of the cases and the expediency of their joint consideration in view of coincidence of the participants composition, «interference» of evidentiary areas, etc. The rules of Articles 28 and 49 of the FC of RF run contrary to the rule of Art.41 of the CCP of RSFSR on the universal right of a public prosecutor to institute proceedings (for example: a) «After a minor spouse reaches 18 years of age, only this spouse is entitled to seek invalidity of the marriage»; b) «...a child’s parentage ... is established against an application of one of the parents, the child’s guardian (trustee), or a person the child is dependent on, as well as against the child’s application after he attains his/her majority»).

      It is possible to find some other specifications of the FC of RF which are far from being consistent with the principal provisions of the CCP of RSFSR. It is rather easy to eliminate this procedural inconsistency: first of all, it is necessary to determine the motives and then, if the latter are sound, to provide in the general rules of the CCP for respective deviations either from consideration of the human nature or in connection with absolutely private character of a case, or because of any other reasons.

      As was mentioned above, apart from the problem of exceptions from the general procedural form of the civil process, there is a problem of optimization of its possibilities as applicable to domestic relations actions. Thus, preparation of a case for the court hearing does not at all exclude active involvement at this stage of guardianship and trusteeship authorities, also because they are, as a rule, already aware, to a certain extent, of the controversy (especially in cases concerning a child transfer to the care of the other parent, limitation or deprivation of parental rights, establishment and cancellation of adoption, etc.), also with the purpose to commission them with judicial errands in the case. The same concerns a public prosecutor who, as a rule, has both lawful and organizational opportunities to carry out a preliminary examination of the case materials to ensure protection of public interests and to work out his own legal position to be able to give his opinion on the case (Art.41 of the CCP of RSFSR).

      The issue of the form of domestic proceedings is not given proper attention, either. Pursuant to a general rule, original courts try cases in open sessions, i.e. in public (Art.9 of the CCP of RSFSR). The rules of Parts 1-2, Art.9 permit closed proceedings, if it is in the interests of the state secret protection, (which is not our case), or to protect the secret of adoption or if the case circumstances are of a purely private character (which is our case). Publicity, as applicable to domestic proceedings, may be of different extent. Thus, the following cases should be excluded from public hearing: divorce, recognition of a marriage as invalid (on a number of grounds), establishment or challenge of fatherhood (motherhood), the right to bring up a child, cancellation of an adoption, i.e. intimate aspects of the parties’ life which are examined by testimony, documentary evidence, and expert findings; unwillingness of the contesting parties «to wash their dirty linen in public» and to show «the skeleton in the cupboard», the bad effect of a public on the psyche of a child invited to a process to disclose his opinion, and some other circumstances require a closed trial. On the contrary, cases of deprivation and limitation of parental rights, cancellation of an adoption (through a parent’s fault unrelated to the secret of adoption), recognition of a marriage as invalid on the ground of the fictitious nature thereof, certain disputes arising out of relations connected with alimony/child support payment, etc., presuppose a public trial, and certain (few) cases require «super public» trials - assizes.

      Application of the rule on joining and separation of claims (Art.128 of the CCP of RSFSR) needs generalization and optimization. Thus, in a number of cases, the interconnection is very firm, even indissoluble: a divorce of spouses having minor children – whom of the parents their children would live with (and the arrangement of the contacts with the child of the other parent), child support payment, division of the common property, alimony payment to a spouse (solution of the housing problem to be added); establishment of fatherhood, transfer of a child to the care of the other parent, limitation or deprivation of parental rights, cancellation of adoption - recovery of a child support; recognition of a marriage as invalid - protection of the interests of the conscientious party by solution of the problem of the common property division, payment of alimony/child support, etc.

      The issue of the disputes optional settlement in domestic proceedings is also of interest: what cases can be compromised in principle, allowance of a claim, withdrawal thereof, what are the peculiarities of reconciliation of the parties, the extent of obligation of the court to approve certain agreements between the parties. A compromise is a conflict settlement by way of an agreement. Two important conclusions stem therefrom, as R.E.Gukasyan notes: 1) only those matters which can be settled by the parties without a court’s assistance can be compromised; 2) matters related to a special judicial competence exclude a compromise, since establishing an imperative court jurisdiction over such matters, the legislator puts them outside the sphere of a compromise[7]. Thus, it is impossible to compromise cases of family law responsibility or use of protection measures (Art.27, para3, Articles 66, 69, 73, 140 of the FC of RF). By virtue of a personal nature of the case and quite a definite procedure of fatherhood establishment, there is no basis for a compromise in disputes concerning establishment or challenge of fatherhood. If, for example, in consideration of a case of the first category a respondent agrees to apply to a registry office for registration of his fatherhood, a court finds out whether this means the respondent’s acknowledgment of his fatherhood and, proceeding from the rules of Part 2, Art.34 of the CCP of RSFSR discusses the possibility to accept the respondent’s allowance of the claim and to deliver a judgment pursuant to part 5, Art. 165 of the CCP to uphold the claims filed[8]. In connection with extension of agreement possibilities a compromise is permitted in disputes concerning the contacts of a separately living parent and close relatives with the child, (previously it was deemed impossible because of the private character of a conflict of the kind[9]). It stands to reason that such kind of disposal claims is more natural in disputes related to the family property right (division of the common estate, alimony/child support payment). However, in connection with the necessity to protect a child’s interests the task of a judicial verification of the lawfulness of the parties’ agreements, both in personal and property disputes, is essentially more complicated than in usual cases. It concerns even property conflicts: in a classical civil dispute about division of the common property the interests of children having no property right in the contested property are present in «a non-classical way» (children’s belongings, deviation from the equality of shares with account of vital needs of a child). In cases connected with recovery of child support for minors, conciliation procedures should be aimed at the same possibilities which are offered by the family law, i.e. they must not aggravate the children’ situation as compared to its prescriptions (Art.81, 102, Part 2, Art.103 of the FC of RF). A conciliation of the parties in a divorce case is a special form of optional conflict settlement. As distinct from a compromise, in this case the court does not require to legalize the spouses’ decision and is not obliged to check the reasons thereof. Besides, possibilities of such proceedings termination are intensified by the court’s competence to postpone the hearing for the period of up to 3 months.

      The sphere of a claim withdrawal is rather large. However, there are certain instances that complicate the procedure. Thus, in a case of a fatherhood establishment, a mother (more rare - a presumed father) and a child act as co-claimants, hence, withdrawal of the claim by the first co-claimant should be examined by the court to protect the interests of the second co-claimant in case of a conflict of interests, since the first co-claimant may be the child’s guardian. In a claim seeking recovery of child support, a parent the child is living with is recognized as the claimant in practice, although it is clear that the child himself/herself as a subject of the right to the child support is the claimant. Therefore, the mother’s (the father’s) claim withdrawal should be regarded as a guardian’s action and must be also carefully examined in the context of the ward’s interests.

      The third generalization concerns a rather well-known, though unpopular because of «the expensiveness» idea of the judicial family law specialization. As we have repeatedly noted in our other works, at the close of the XIX-th century - in the beginning of the XX-th century the Russian lawyers came to the conclusion on the necessity to establish special domestic relations courts. This conclusion was naturally based on the specific nature of domestic relations cases. Thus, I.A.Pokrovsky called the family law as one of «the most sensitive spheres of the civil law, since in no other sphere human intimate interests are affected to such extent as here»[10]. A. Borovikovsky wrote: «It is necessary to realize the extent of the assistance the court could render when approached with a domestic relations conflict. ... civil judicial prescriptions are not adapted for adjudication of domestic relations cases - it is necessary to seek special judges and tribunal. So let these be sought»[11].

      Unfortunately, as many other things, «this apple that has fallen down on the heads» of the Russian lawyers, urged the lawyers of other countries to carry out practical experiments. At present, domestic relations courts of this or that degree of independence and the quality of specialization function in Germany, Poland, the USA (in some of the states), Japan, etc. Domestic relations courts were probed in Poland already in the 70-ies. Generalizing the experience of organization and activities of such courts, M.Ya.Buloshnikov points out the wide scope of their competence (domestic relations and guardianship cases, trial of juvenile crimes, etc.), special requirements to selection of judges (higher age requirement, training in psychology, testing and other forms of qualification exams), cooperation of domestic relations courts with legal advice offices specializing in marriage and family issues and diagnostic centers, availability of professional curators in the court, participation of a psychologist in a court session, a judge’s contacts with families of his/her jurisdictional area, and other methodological and organizational peculiarities[12].

      In Japan disputes between spouses, parents and children (including recognition of incapability, appointment of guardians, dependency allowance) come within the jurisdiction of domestic relations courts. Consideration of cases in domestic relations courts is conducted by a judge in presence of special advisors selected from common citizens who give their opinions to the judge. As contrary to an ordinary procedure, a closed court session is provided for such trials, there is no oral pleading, cases are adjudicated at a comparatively wide discretion of the court. A preliminary conciliation procedure is established for many marriage and family actions. The conciliation commission carrying out such procedure consists of a judge of a domestic relations court and two members appointed by this court. Claims for a marriage invalidity, cancellation of a divorce, adoption, recognition of fatherhood (however, in such actions a preliminary conciliation procedure is obligatory at the conciliation commission of a domestic relations court) come within the jurisdiction of common courts[13]. In our opinion, not everything in the above arrangement is justified (for example, the issue of jurisdiction), but it seems to correspond to the tradition of this legal system. In 70-ies - 80-ies the idea of specialized courts, including domestic relations ones, was implemented in some of the states of the USA. As regards the experience and the possibility to take it over, not everything is acceptable for us, since law enforcement specialization in that country, beginning (especially) with the Bar and ending with justice (to a lesser extent) is even excessive, and the procedural form is complicated with multiple details and formal conventionalities, which does not correspond to the traditions of the Russian legal system. (The aforesaid is based on the author’s own observations). But the main point is that attempts are made to optimize domestic relations trials.

      In Russia this idea was raised anew at the end of 60-ies, after 75 years interval. Thus, N.G.Yurkevich, a passionate advocate of the judicial family law specialization at that time, wrote in 1969: «Judges, especially at the level of public courts, remain universal, persons having encyclopedic knowledge. But their time is long gone. Rejection of specialization in this sphere seriously impedes the use of achievements of the contemporary science for the welfare of a family and justice[14]. It is important to note, - continues the author, - that capitalists deem it advantageous to keep special courts staffed with social workers...»[15]. Certain opinions in favor of the idea of specialized courts were also voiced later, however, the public and legislators started to discuss it actively only in 1988-1999. The leaders of the Children’s Fund, sociologists, and lawyers in the weekly Semiya (The Family) and other mass media highlighted the idea as the actual need. In the discussion of the draft Fundamentals of Law of the Union of SSR and the Union Republics On the Judicial Procedure the idea of the family law court specialization was a prerequisite for the first compromise in this matter fixed in the rule of para 3, Art.23: «The legislation of the Union Republics may provide for establishment of court tribunals specializing in trial of cases of certain categories (cases of minors, domestic relations, and other cases)»[16]. There were certain advantages in this compromise: the chosen alternative of specialization was cheaper, easier to implement, preserved our traditional, as contrary to many other countries, adherence to the principle of accessibility of relief on the basis of a simplified judicial system, as well as implied retaining the general professional qualification of judges as distinct from the limited nature of the narrow specialization set for them.

      However, the cheapness and easiness of solution are, naturally, far from everything the law enforcement system needs. The gain in one situation may turn into to be a loss in another. An expensive specialized court unbending under the burden the torrent of cases unlimited in quantity and various in capacity would adjudicate legal (in our case - domestic) conflicts more efficiently and effectively, could undertake, whenever necessary, preventive measures and give attention to every individual seeking justice. Judges’ profound knowledge in the definite branch of jurisprudence coupled with professional training and special knowledge in the sphere of sociology, psychology, and psychiatry would make it possible to adjudicate domestic relations disputes as fair and less painful as possible.

      In principle, the court practice took the way of organization of specialized court tribunals for domestic relations cases (sometimes - labour cases) trial, at least wherever possible. Such specialization has been retained in very limited forms. The idea of organization of specialized domestic relations courts has not been realized: a successive stage of «perestroika» has begun, that was followed by «liberalization of prices», and a difficult transfer to the new economic and political era. «Expensive» ideas found no place. Paraphrasing the call of A.Borovikovsky made with respect to a domestic relations court «...let these be sought», let us finish our speculations about this problem with the following: it is necessary to seek such courts abroad, to consider and generalize their modern experience, and for the present, to prepare a theoretical, civil procedural, family law, and other «soil for sowing respective seeds» in the favorable time. Certain encouraging signs of such time coming appeared at the end of 90-ies. Thus, generalizing strategic trends of the legislation development in the sphere of a family protection, A.M.Nechayeva emphasized that the organization of special domestic relations courts in the judicial system of Russia was one of the key trends[17]. The rule of Part 2, Art.4 of the Federal Law On Basic Guarantees of a Child’s Rights in the Russian Federation stipulates: «It is obligatory to ensure the priority of personal and social welfare of a child, specialization of enforcement procedures (activities) with the child’s participation or in his/her interests, and taking account of peculiarities of his/her age and social status».

[1]  K.Marx, Zametki o noveishei prusskoi tsenzurnoi instruktsii (Notes about the Latest Prussian Censorial Instructions), in: K.Marx, F.Engels. Selected Works, 2-nd edition, vol.1, p.7.
[2]  V.V. Butnev, Ponyatie predmeta protsessualnoi deyatelnosti v sude i arbitrazhe (Notion of the Subject of the Procedural Activities in the Common and Arbitration Courts). Yaroslavl, 1985, p.3.
[3]  See, for example, P.E.Gukasyan, Vliyaniye materialnykh pravootnoshenii na formu protsessa v iskovom proizvodstve (Influence of Substantive Relations on the Form of the Process in Adversary Proceedings) in: Voprosy teorii i practiki grazhdanskogo protsessa (Issues of Theory and Practice of the Civil Process). Saratov, 1976, pp.31-32.
[4]  For more details see: E.M.Vorozheikin, Semeinyye pravootnosheniya v SSSR (The Family Law Relationship in the USSR). Moscow, 1972, pp.43-70; V.A.Ryasentsev, Sovetskoye semeinoye pravo (The Soviet Family Law), 1982, p.3; N.N.Tarusina, Ocherki teorii rossiiskogo semeinogo prava (Studies of the Theory of the Russian Family Law). Yaroslavl: 1999, pp.5-18.
[5]  See: O.Khazova, Ustanovleniye otsovstva (Establishment of the Fatherhood), Zakon (The Law), 1997, No.11, pp.83-84.
[6]  See, for example, N.A.Chechina, Osnovnyye napravleniya razvitiya nauki sovetskogo grazhdansko-protsessualnogo prava (Principal Trends of Development of Science of the Soviet Civil Procedural Law), Leningrad, 1987, pp. 28-29; N.A.Chechina, Problemy grazhdansko-protsessualnogo prava (Problems of the Civil Procedural Law), Pravovedeniye (Jurisprudence), 1975, No.6, p.77; N.M.Kostrina, Sudoproizvodstvo po semeinym delam (Domestic Proceedings), Makhachkala, 1978, p.16 etc..
[7]  See: R.E.Gukasyan, Mirovye soglasheniya kak sposob razresheniya sporov, voznikayuschikh iz brachno-semeinykh pravootnosheniy (A Compromise as a Means of Disputes Settlement Arising from Conjugal and Domestic Relations), in: Leninskie idei i novoe zakonodatelstvo o brake i semie (Lenin’s Ideas and New Legislation On Marriage and Family). Saratov, 1969, pp. 143-144.
[8]  See: para 7 of the Decree of the Session of the Supreme Court of RF No. 9 Dated 25 October 1996 On Application of the Family Code of the Russian Federation by Courts in Consideration of Cases of Establishment of Fatherhood and Recovery of Alimonies/Child Support».
[9]  See: P.F.Eliseykin, Sudebnye mirovye soglasheniya (Judicial Compromises), Sovetskaya Yusitsiya (The Soviet Justice). 1998, No.7, p.18.
[10]  I.A.Pokrovsky, Osnovnyye problemy grazhdanskogo prava. Seriya «Klassika rossiyskoy tsivilistiki» (Basic Problems of the Civil Law. The Series «The Classics of the Russian Civil Law». Moscow, 1998, p.162.
[11]  A.Borovikovsky, Otchet sudii (A Report of a Judge). Vol.2, S.-Petersburg,, 1982, pp.271,273.
[12]  See: M.Ya.Buloshnikov, Spetsializirovannye sudy v PNR (Specialized Courts in Poland), in: Problemy semeinogo prava (Problems of the Family Law). Moscow, 1980, p.70.
[13]  See: Arindzumi Toru, Grazhdanskoye pravo Yaponii (The Civil Law of Japan). Moscow, 1983, pp.172-173.
[14]  N.G.Yurkevich, Nekotorye voprosy razvoda v svete sotsiologii, (Some of the Issues of Divorce in the Light of Sociology), in: Leninskie idei i novoye zakonodatelstvo o brake i semie (Lenin’s Ideas and the New Legislation on Marriage and Family), p.44.
[15]  See: N.G.Yurkevich, ditto, p.43.
[16]  Bulletin of the Congress of the People’s Deputies of the USSR and the Supreme Soviet of the USSR, 1989, No.23, Art.441.
[17]  See: A.M.Nechayeva, Semiya kak samostoyatelnyi obiect semeino-pravovoi okhrany, (A Family as a Separate Object of the Family Law Protection), Gosudarstvo i pravo (The State and Law), 1996, No.12, p.107.

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