Family life loses its innermost innermost life. All over the country, scandals are raging live between relatives and friends, passions are boiling over the children taken from their mothers. Pavel Krasheninnikov, Chairman of the State Duma Committee on State Construction and Legislation, proposes to introduce a judicial, not an administrative procedure for removing a child from a family, and only in cases directly established by law. And also to consider the main task of the guardianship and guardianship authorities is not total control over the family, but assistance to the family and the child. In an interview with the "RG" correspondent, he expressed his attitude to the initiatives on juvenile technologies, civil marriage, abortion and "baby boxing" and domestic violence.
Pavel Vladimirovich, a group of deputies and senators prepared a bill proposing to classify domestic violence as an administrative offense. It was dubbed "the spanking law." Will he not allow to give out slaps to the right and left with impunity, will a fine stop a domestic bully?
Pavel Krasheninnikov: This question arose when major amendments were made to the Criminal Code. Many offenses committed for the first time were transferred to the Code of Administrative Violations. Family beatings were left only in the Criminal Code. Unlike street quarrels, where strangers quarreled and parted, in a family people constantly live together and higher, of course, the danger of a relapse into violence.
However, life has shown that other excesses began. There were cases when the guardianship and guardianship authorities began to look at bruises, abrasions and take sensitive measures. Monitoring shows that society perceives such facts differently. Therefore, there was a proposal to transfer domestic beatings to the Code of Administrative Offenses as well. This does not mean that there will be no responsibility for beatings in the family. It will only initially become administrative, in the form of fines, and if it is repeated, it will become a criminal one.
And if the matter was not limited to bruises and abrasions?
Pavel Krasheninnikov: In the case when, for example, grievous injuries are inflicted, this is already a criminal article.
It is believed that our Family Code has incorporated all the best that was in Soviet family law and the new Russian legislation. But why then failures and flaws occur in life?
Pavel Krasheninnikov: The Family Code of the Russian Federation was adopted in 1995. It is based on the classic family values that are characteristic of the peoples living in Russia. This is the prohibition of same-sex and polygamous marriages, the voluntariness of marriage and its recognition subject to registration with the registry office, building family relations on feelings of mutual love and respect, mutual assistance and responsibility to the family of all its members, non-interference in their personal life. These values cannot and should not be abolished.
Proposals to introduce juvenile technologies entail unjustified state intervention in the life of the family
The family sphere requires very balanced and careful regulation. The state and society, commercial and non-commercial organizations should not mindlessly interfere in the personal affairs of spouses, parents and children, and other family members. There are examples from history of such interference such as the "Laws of Manu", when the husband was obliged to "teach his wife about behavior and could hit her three times on the back with a split cane, rope or hand," or the "childlessness tax", which was in effect in our country from 1941 to early 90s. They did not bring anything good.
Nevertheless, it is the state that often invades the family, giving such powers to the guardianship and trusteeship bodies. We are outraged by the actions of similar structures in relation to Russian children in Finland, while our fans of juvenile justice are diligently pulling the same principles into domestic law.
Pavel Krasheninnikov: A radical reform - read "breaking" - of family legal regulation is dangerous, and some especially radical proposals are sometimes explicitly directed against family values. Proposals for the introduction of certain types of juvenile technologies entail unjustified interference by the state in the life of the family, restricting the rights of parents to bring up children in the spirit of traditional moral values and, in general, seriously threaten the family, violate the principle of the priority of family upbringing of a child.
The task of the guardianship and guardianship authorities, as well as the state as a whole, should not be total control over the family, but, first of all, measures to provide parents in difficult situations with a certain amount of assistance, assistance in improving the child's situation while maintaining family education. The mechanisms for solving such problems are diverse. From a family-legal point of view, it is necessary to give priority not to the administrative, but to the judicial procedure for the removal of a child, and only in cases directly established by law.
Along with this, measures of responsibility should be strengthened in relation to the unfair behavior of representatives of the guardianship and guardianship authorities, the institutions of compensation for damage and moral harm caused to parents and the child in the event of the unlawful application of administrative measures should be used.
Recently, proposals have often been heard to transfer the legal regulation of family relations to the sphere of civil law. The explanation is seemingly simple: many norms are repeated in those and other codified acts, for example, the regime of property of spouses, including contractual, guardianship and trusteeship. But won't this lead to the very breakdown of family law?
Pavel Krasheninnikov: This story is not new, it goes back to the discussion of the 30s-40s. XX century on the relationship between civil and family law. Interestingly, the first code in our country was devoted to marriage and family. The law put a barrier to the revolutionary ideas of the "free family". In 1918, the Code of Laws on Acts of Civil Status, Marriage, Family and Guardianship Law was adopted, and in 1926 the Code of Laws on Marriage, Family and Guardianship was already in force in the RSFSR, which created the preconditions for separating family relations into an independent branch of legislation.
Many scientists substantiated the differences between family and civil law, and their arguments sound no less convincing today than 70-80 years ago. The personal nature of the relationships that underlie marriage, the birth of children, the creation and life of a family is too significant. Contractual principles, no matter how they affect marital and parental relationships, cannot be opposed to personal ties in the family. Ideally, family relations are such a beneficial cover, thanks to which not only minors and disabled people gain moral protection.
The thesis on the inclusion of family law as a section of the Civil Code is usually supported by references to similar practice in foreign countries, in particular in Germany, Greece, Italy, Spain, and France.
Pavel Krasheninnikov: Such proposals do not always take into account the diversity of family traditions that exists among the peoples of Russia, which none of the named states can boast of. Nowhere else is there such a combination of different religions as in Russia. And all this is reflected in the Constitution, where family legislation is attributed to the joint jurisdiction of the Russian Federation and its subjects. In addition, one should not forget that the Family Code allows civil legislation to be applied to property and personal non-property relations between family members that are not regulated by family law, since this does not contradict the essence of family relations.
Opponents of the Family Code say that it does not even have a clear definition, a key concept, what is "family"? After all, this is also important for other branches of law.
Pavel Krasheninnikov: Indeed, the definition of the concept of a family, as well as family members, relatives, in-laws is extremely important for civil, housing, procedural, as well as other branches of law and legislation.
In this regard, it is difficult to forget the judicial practice of 2005-2007, when, on the basis of the norms of the Housing Code, a child could be recognized as a “former family member” of the parent who owns the dwelling.
In 2007, the Supreme Court gave a special clarification, according to which the right to use the living quarters owned by one of the parents should remain with the child even after the dissolution of the marriage between his parents. The problem with different interpretations was that family and housing legislation use different criteria in understanding the family, because the regulated relationship is different. Family law gives priority to the bonds of marriage, kinship, the adoption of children for upbringing in a family, and for housing legislation, the fact of cohabitation is decisive.
Then there were many tragedies - the owner of the apartment sold it after the divorce, and the wife and child were thrown out into the street. And one high official remarked on this occasion: "Another department deals with social problems, our business is to form the housing market." Interestingly, and in the "pre-market" era was the concept of a family?
Pavel Krasheninnikov: The definition of a family is not typical for Russian legislation. Attention was drawn to the lack of clarity in the understanding of the term "family" even before the revolution.
Neither the Code of Laws on Acts of Civil Status, Marriage, Family and Guardianship Law of 1918, nor the Code of Laws on Marriage, Family and Guardianship of the RSFSR of 1926, nor the Code on Marriage and Family of 1969 defined the family. Only the 1997 Federal Law on the Subsistence Minimum proposes to understand the family as persons related by kinship and (or) property, living together and running a joint household, without taking into account persons who are not related by kinship or property, but who are in the family under guardianship or guardianship. …
Currently, as measures to solve social, demographic and other problems, there are very diverse proposals, sometimes of absolutely opposite orientation: from the legal introduction of the so-called baby boxes used in some European countries (Austria, Czech Republic, Germany, Italy, etc.), to criminal liability for their organization and a complete ban on abortion. By the way, abortion bans are in effect in many Muslim states (Afghanistan, Bangladesh, Egypt, Jordan, Iraq, Iran, Yemen, Saudi Arabia, etc.).
It is unacceptable for the state and society to mindlessly interfere in the personal affairs of spouses, parents and children.
We also have serious passions on this occasion, and each side has its own quite weighty arguments. In the past, this has already passed, there was a ban on abortion, and then it was canceled, why?
Pavel Krasheninnikov: The history of Russian legislation, including criminal law, knows the consequences of the ban on termination of pregnancy. Thus, the Resolution of the Central Executive Committee and the Council of People's Commissars of the USSR of 1936 on the prohibition of abortions, increasing material assistance to women in labor, establishing state aid for multi-family ones, expanding the network of maternity hospitals, nurseries and kindergartens, increasing criminal punishment for non-payment of alimony and some changes in the legislation on divorce entailed in the 30s, and especially in the post-war years, the growth of criminal abortions and female mortality. We can recall the wonderful work of Lyudmila Ulitskaya "The Kukotsky Case", which, by the way, was used to make a wonderful film. The problems and tragic consequences of the ban on abortion are shown there quite clearly. Therefore, on November 23, 1955, a decree of the Presidium of the Supreme Council "On the abolition of the prohibition of abortion" was adopted, which gave a woman the right to decide the issue of motherhood herself.
It is hardly necessary to actively support the position of the Russian initiators of the introduction of baby boxes, of course, leaving a newborn in a baby box is a violation of the principle of family upbringing, rather we can talk about saving the life of a newborn.
European legislation and practice are ambiguous in these matters. In Belgium, for example, the dissemination of information about baby boxes is viewed as "advertising for throwing children", which entails the application of penalties.
As we can see, there are many ideas aimed at "improving the demographic and social situation of the family, women, and children," but not all of them take into account the existing, both positive and negative, historical Russian and foreign experience of legal regulation. As well as modern traditions, moral and religious priorities of different countries, in which such initiatives have already been reflected.
In recent years, families, strange from the point of view of well-established concepts, are increasingly common, living in a so-called civil marriage. Not to mention that this creates difficulties in relations of an economic nature. How does family law relate to such a metamorphosis, will such marriages be officially recognized?
Pavel Krasheninnikov: In my opinion, one cannot be prosecuted for this, but one should not rush to legislatively regulate actual marriage relations. Such measures are unlikely to lead to the strengthening and stability of the institution of the family. Often, such actual ties arise simultaneously with the already formalized marriage relations registered with the registry office, and this can create competition in hereditary, housing, land and other relations. The consequences of this competition are not hard to predict.
Over the past quarter of a century, many of our laws have changed, others have changed several times. What about family law?
Pavel Krasheninnikov: The Family Code turned out to be one of the most stable codified acts. Over two decades, only 27 changes were made to it, of which more than a quarter are of a technical nature or are related to changes in the system of state authorities and local self-government, organizational and legal forms of legal entities. Only one provision of the code was declared unconstitutional by the ruling of the Constitutional Court of the Russian Federation. This is a rule prohibiting the adoption of children by those who had a conviction for crimes indicated as a restriction for adoption, but at the same time not related to grave and especially grave crimes, as well as crimes against sexual inviolability.
To summarize what has been said, you are in favor of preserving family law as an independent branch in our law. But changes in it are still, apparently, needed, since such difficult collisions arise?
Pavel Krasheninnikov: Of course, targeted changes to the Family Code are necessary, since life does not stand still. New types of relations appear, which cause the need for new regulatory mechanisms, new problems that need to be solved sometimes in combination with the norms of other branches of law and legislation - housing, land, civil procedure, administrative and, of course, civil, in particular inheritance. But not more.