Features of abuse of parental rights. What does abuse of parental rights mean? Abuse of rights, deprivation of parental rights

(Gromozdina M.V.) (“Family and Housing Law”, 2010, No. 4)

FEATURES OF ABUSE OF PARENTAL RIGHTS<*>

M. V. GROMOZDINA

——————————— <*>Gromozdina M. V. Peculiarities of abuse of parental rights.

Gromozdina Maria Vladimirovna, senior lecturer at the Department of Business Law, Siberian University of Consumer Cooperation.

The article reveals the problem of abuse of parental rights, touches on the concept of legality of parental behavior, and provides a classification of abuse of parental rights.

Key words: family law, abuse of law, subjective civil law, parental rights, unlawful abuse.

The article reveals the problem of abuse of parental rights, touches upon the concept of legality of behavior of parents, presents classification of parental right.

Key words: family law, abuse of law, subjective civil law, parental rights, illegal abuse.

Many works of both pre-revolutionary scientists and scientists of Soviet and post-Soviet times are devoted to the study of the problem of abuse of law, among which are the works of M. V. Antokolskaya, Yu. F. Bespalov, N. V. Vitruk, A. V. Volkov, V. P. Gribanova, N. A. Durnovo, V. I. Emelyanova, S. G. Zaitseva, O. S. Ioffe, E. V. Knyazeva, N. A. Kovaleva, A. M. Nechaeva, N. S. Malein, A. A. Malinovsky, A. I. Pergament, A. P. Sergeev, I. A. Timaeva, V. P. Shakhmatov, Ya. G. Yanev and others. Although there is no legal definition of abuse of rights, various definitions of abuse of rights have been proposed in the scientific literature. Let's analyze some of them. One of the fundamental studies in the field of studying the legal nature of abuse of law is the work of V. P. Gribanov<1>, which formulated the concept of “abuse of law” and gave a comprehensive assessment of all previously existing scientific approaches on this issue. ———————————<1>Gribanov V.P. Implementation and protection of civil rights. M.: Statute, 2000.

Thus, V.P. Gribanov argues that abuse of law is a special type of civil offense committed by an authorized person in the exercise of his rights, associated with the use of prohibited specific forms within the framework of the general type of behavior permitted by law.<2>. ——————————— <2>Gribanov V.P. Limits of implementation and protection of civil rights. M.: Statute, 2000. P. 63.

Y. G. Yanev defines abuse of law as actions or inactions that neither directly nor indirectly violate legal norms and principles of law, but are in conflict with moral principles<3>. ——————————— <3>Yanev Ya. G. Rules of socialist society and their functions in the application of legal norms. M.: Progress, 1980. P. 67.

According to V.I. Emelyanov, abuse of subjective civil law is a violation by an authorized person of the obligation established by law or contract to exercise subjective civil law in the interests of another person in unforeseen conditions<4>. ——————————— <4>Emelyanov V.I. Reasonableness, conscientiousness, non-abuse of rights. M.: Lex-Kniga, 2002. pp. 56 - 57.

I. A. Timaeva believes that abuse of law should be understood as a special type of deviating behavior in which the implementation by a person of his rights and legitimate interests entails negative consequences for third parties that are clearly disproportionate to the personal interest of the person exercising his rights and legitimate interests<5>. This author further notes that abuse of law is of an intersectoral nature. We should agree with this opinion and consider the problem of abuse of rights in family law using the example of abuse of parental rights. ———————————<5>Timaeva I. A. Abuse of law in corporate relations: qualification issues, methods of civil legal protection: Dis. ...cand. legal Sci. Kazan, 2007. P. 25.

The Family Code of the Russian Federation uses the concept of “abuse of parental rights,” but no legal definition of this concept is given. As E. A. Odegnal correctly noted, “the prohibition of abuse of law in family relationships is not a novelty”<6>, but modern family law consists of searching and recording legal techniques and methods of protection against unfair use of law. According to the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 27, 1998 “On the application of legislation by courts in resolving disputes related to the upbringing of children”<7>Abuse of parental rights should be understood as the use of these rights to the detriment of the interests of children, for example, creating obstacles in education, inducing begging, theft, prostitution, drinking alcohol or drugs, etc. It seems that this explanation of the abuse of parental rights applies exclusively to Art. . 69 of the RF IC, which lists abuse of parental rights as one of the grounds for deprivation of parental rights. ———————————<6>Odegnal E. A. Abuse of family rights // Bulletin of notarial practice. 2007. N 4.<7>Resolution of the Plenum of the Supreme Court of the Russian Federation of May 27, 1998 N 10 “On the application of legislation by courts in resolving disputes related to the upbringing of children” // Rossiyskaya Gazeta. N 110. dated June 10, 1998

Meanwhile, the very concept of abuse of parental rights can be applied not only in connection with deprivation of parental rights. A lot of research in domestic civil law is devoted to the problem of abuse of law. The criterion for identifying abuse of parental rights is the interest of the minor. According to V.N. Lezhenin, the interests of children are both the norm and the limit of the educational actions of parents, beyond which their actions should be considered not only as an abuse of law, but sometimes as a crime<8>. ——————————— <8>See: Lezhenin V.N. The right of parents to raise children according to Soviet family legislation. Kharkov, 1989.

A. M. Nechaeva in her numerous works pays great attention to the issue of abuse of parental rights. According to her position, “abuse of parental rights is the use of rights to the detriment of the interests of children. The essence of abuse is the use of a right that belongs, a right that exists. Another thing is that it is not used as it should be"<9>. In contrast, N. S. Malein believed that actions that are called abuse of law are actually committed outside the law, they only superficially resemble the exercise of law, but are actually illegal in nature<10>. ——————————— <9>Nechaeva A. M. Offenses in the sphere of personal family relations. M., 1991. P. 91.<10>Malein N. S. Content and implementation of personal non-property rights of citizens: problems of theory and legislation // State and Law. 2000. N 2. S. 19 - 20.

Along with this, A.I. Pergament expressed the opinion that the scope of the exercise of parental rights is limited by the purpose of education<11>. Yu. A. Korolev shares the same point of view: “Parental rights cannot be exercised in any forms and manifestations at the discretion of the parents, their limits are outlined and defined.”<12>. Thus, parents, acting within these limits, cannot abuse parental rights. Further, Yu. A. Korolev notes that the law does not provide for any mandatory specific actions of parents to raise a child; this is not necessary, since educational techniques and methods are very diverse<13>. ——————————— <11>See: Nechaeva A. M. Offenses in the sphere of personal family relations. M., 1991. P. 91.<12>Korolev Yu. A. The Constitution of the USSR is the legal basis for building marriage and family relations. M., 1981. P. 164.<13>Right there.

The position of A.V. Volkov seems controversial, who believes that abuse of parental rights is not included in the civil law concept of abuse of rights, since it refers to terminologically similar, but related, i.e., family, relationships. It is difficult to agree with this opinion, since the named author unjustifiably narrows the concept of abuse of parental rights, reducing everything exclusively to Art. 56 RF IC: “In accordance with Art. 56 of the RF IC, a child has the right to protection from abuse by parents. In the event of a violation of the rights and legitimate interests of a child, including in the event of non-fulfillment or improper fulfillment by parents (one of them) of the responsibilities for the upbringing, education of the child, or in the case of abuse of parental rights, the child has the right to independently apply for their protection to the guardianship and trusteeship authority, and reaching the age of fourteen years in court. For abuse of their position and power in the family, parents may be deprived of parental rights."<14>. Thus, A.V. Volkov proceeds from the fact that the RF IC provides for the only way to abuse parental rights - failure or improper fulfillment by parents of the duties of raising and educating a child, as a result of which they may be deprived of parental rights. ———————————<14>Volkov A.V. The theory of the concept of “abuse of parental rights.” Volgograd, 2007. P. 169.

The peculiarity of family legal relations is that not only legal norms, but also moral norms play an important role in their regulation. Thus, the behavior of parents is assessed, among other things, from a moral standpoint. Various points of view have been expressed in the literature about the meaning of moral norms in law. For example, V.A. Eugenzicht, assessing the interaction of morality and law, wrote: “Behavior is preceded by a moral choice, which faces many means. The choice of means, taking into account preference for ends, may indicate efficiency, but not always morality. Morality encourages us to choose the most moral of all expedient means. The moral conflict itself is finally overcome not at the moment of decision-making, but during its implementation in practice.”<15>. Supporting this view, it can be argued that abuse of parental rights goes beyond moral behavior. ———————————<15>Eugenzikht V. A. Morality and law: Interaction. Regulation. Deed. Dushanbe, 1987. P. 89.

Attention should be paid to the position of V.P. Shakhmatov, who rightfully noted that the requirements of family law norms and morality in many cases are not only similar, but also identical<16>. In addition, morality is more flexible than law, and moral norms change faster than legal ones, and in such cases, discrepancies between moral rules and legal ones are an incentive to improve legal regulations<17>. ——————————— <16>Shakhmatov V.P. Concept and sources of family law. Krasnoyarsk, 1978. P. 4.<17>Right there. S. 5.

All of the above leads to the conclusion about the complexity of the interaction between law and morality, especially in parental relations, in which there are no clearly defined criteria for the legality of behavior. When considering the issue of the legal nature of abuse of parental rights, we should separately dwell on the problem concerning the limits of the legality of behavior. First of all, the concept of “abuse of law” as behavior beyond the limits of legality causes controversy (N. S. Malein)<18>. ——————————— <18>Malein N. S. Content and implementation of personal non-property rights of citizens: problems of theory and legislation // State and Law. 2000. N 2. S. 19 - 20; Romovskaya Z.V. Problems of protection in family law: Dis. ... Doctor of Law. Sci. Lvov, 1986.

In this regard, the question of whether immoral behavior can be considered lawful is of great theoretical and practical interest.<19>. Various points of view have been expressed in the literature on this matter, but to date there is no clear answer to this question. ———————————<19>Eugenzikht V. A. Alternative in civil law. Dushanbe, 1991.

Thus, O. S. Ioffe believes that behavior becomes unlawful, and therefore, the interests associated with it do not receive legal protection, both when the type of permitted behavior is exceeded, and when, within the framework of permitted behavior, a specific form of behavior is chosen that contradicts the purpose of the provided powers (failure to comply with the limits of the exercise of subjective rights)<20>. ——————————— <20>Civil protection of individual interests. M., 1969. P. 14.

As for parental misconduct, it also manifests itself in the form of abuse of parental rights. Abuse of parental rights always involves the parents taking active actions and is characterized by a deliberate form of guilt<21>. ——————————— <21>Shumilova T. A. Ensuring and protecting parental rights and responsibilities under current legislation. Saratov, 2005. P. 90.

N. A. Durnovo believes that abuse of law will manifest itself in cases where a person exercises a subjective right granted by law and acts in accordance with the law, but violates moral standards<22>. At the same time, this author notes that in the field of family law, the most serious and socially dangerous are abuses of parental rights, which include: forcing a child to participate in criminal activities, carrying out education in unconventional ways, imposing excessive sports activities or unwanted activities on a child, etc. .<23>. ——————————— <22>Durnovo N.A. Abuse of law as a special type of legal behavior (theoretical and legal analysis): Dis. for the job application uch. step. Ph.D. Sci. N. Novgorod, 2006. P. 53.<23>Right there. P. 84.

It is difficult to agree with this point of view, firstly, because coercion into complicity in criminal activity and the imposition of excessive sports activities, according to the dissertation author, are incomparable things, and secondly, the imposition of excessive sports activities or unwanted activities on a child does not always indicate abuse of parental rights. Excessive workload and undesirable activities are relative concepts, from which it does not follow that there is an abuse of rights. For example, if the parents of a sick child (with a spinal injury) force the child several times a day, overcoming pain, to do exercises and undergo therapeutic massages, then their behavior cannot be considered an abuse of right, since the parents’ actions are aimed at the child’s recovery, i.e. are carried out with the aim of achieving a positive effect for the child himself. At the same time, forcing a child by parents (or one of them) to participate in criminal activity is certainly an abuse of law, since criminal activity in itself is illegal. N.V. Vitruk noted that in the process of implementing a subjective right, the bearer of the latter must, firstly, be aware of his right and the procedure for its implementation, know the purpose and direction of its implementation, and secondly, turn a legal possibility into reality in his strong-willed actions and actions, strictly following the scope and purpose of subjective law, thirdly, he must know about the legal guarantees for the protection of his rights<24>. This position seems correct, since the use of law aims to achieve a certain positive effect for a specific subject of law. Subjective rights are not exercised in the abstract; therefore, the owner of the right often knows the consequences of using the right. ———————————<24>Vitruk N.V. Subjective rights of Soviet citizens and their development during the construction of communist society: Author's abstract. dis. ...cand. legal Sci. Kyiv, 1965. P. 17.

Abuses of rights in the literature are classified according to the subjective side into intentional and unintentional. Thus, according to N.A. Durnovo, deliberate abuse of rights is the exercise of rights with the aim of causing harm to another person<25>. Following the logic of this author, unintentional abuse of rights is not aimed at causing harm to another person. We cannot agree with this position, since the very concept of “abuse” is always defined as a volitional act of a subject of law. ———————————<25>Durnovo N.A. Abuse of law as a special type of legal behavior (theoretical and legal analysis): Dis. ...cand. legal Sci. N. Novgorod, 2006. P. 90.

With regard to the issue of the peculiarities of abuse of parental rights, it should be noted that, according to a number of researchers, abuse of parental rights can be both unlawful and lawful. This position is also not indisputable, since there is a fine line between abuse of rights and the use of parental authority. According to the author of this article, the classification of abuse of rights into illegal and lawful is erroneous, but for comparison, let us consider the existing points of view on this issue. According to M. V. Antokolskaya, unlawful abuse always involves the parents taking active actions and is characterized by a deliberate form of guilt, however, there are situations when it is difficult to determine whether the parents’ behavior is lawful or whether there is an abuse of parental rights (excessive participation in sports, music)<26>. ——————————— <26>

For example, L. Vengerova, the mother of the world-famous violinist Maxim Vengerov, in a book devoted to the problems of education, openly talks about the cost at which her son became an outstanding musician. “I said: if I don’t have time to work with my child during the day, I will work with him... at night! And our life began to look like this. In the morning I leave for work. Maxim is still sleeping. During the break, my husband or I run home, feed Maxim lunch and leave him again until the evening. He sleeps for a while, then plays alone with himself, and then I come home from work. I whip up dinner, feed Maxim, and we start studying. We study every night for 6 - 7 hours. Every time I let my son go for half an hour to get some fresh air... the neighbors next door, as soon as they learned about my innovation, wrote me down as a sadistic mother.”<27>. Can such an education system be called an abuse of parental rights? After all, the mother raised her son as she saw fit and achieved good results, but at the same time, everything could have turned out differently. ———————————<27>Vengerova L. Pedagogical sketch. M., 2004. S. 78 - 79.

This example fully confirms the above position of M. V. Antokolskaya. The greatest originality in relation to the issue of abuse of parental rights is the point of view of A. A. Malinovsky, who believes that along with unlawful there is a legitimate abuse of parental rights<28>. This, in his opinion, occurs when parents, exercising their rights, do not violate legal prohibitions, but still cause harm to their own children. This situation is predetermined by the discrepancy between the interests of the child and the plans of the parents. When drilling their own children, some fathers and mothers care not so much about their interests as about their own vanity (“My son is a winner of the Children’s Olympiad”; “My daughter is the best student at a music school,” etc.). ———————————<28>Malinovsky A. A. Abuse of law. M., 2002. P. 78.

In this regard, A. A. Malinovsky emphasizes that legitimate abuse of parental rights is extremely difficult to detect, since at first glance, parents exercise their rights in accordance with their purpose (for example, they take care of the physical development of the child or his spiritual education), fulfill their legal obligations to support children. Evil, if it is caused to a child, is outside the legal sphere<29>. ——————————— <29>Malinovsky A. A. Abuse of law. M., 2002. P. 79.

This point of view has rightly been criticized. Thus, Yu. F. Bespalov denies the very possibility of the existence of lawful abuse of rights, believing that “lawful behavior that caused harm or created a threat of harm cannot be recognized as abuse, since it is not an offense. Every abuse is a crime."<30>. ——————————— <30>Bespalov Yu. F. Theoretical and practical problems of implementing child’s family rights in the Russian Federation: Dis. ... Doctor of Law. Sci. M., 2002. P. 144.

In our opinion, we should agree with the statement of M. V. Antokolskaya that the behavior of parents can either be lawful, or there is an abuse of law<31>. This position most accurately reflects the essence of the very concept of abuse of right. ———————————<31>Antokolskaya M.V. Family law. M.: Lawyer, 2002. P. 214.

Abuse in the literal sense of the word should be understood as “use for evil,” that is, a harmful action carried out using one’s legal right. By abusing the right he has, the subject uses it contrary to the interests of other persons. At the same time, abuse of right is expressed in the absence in the actions of a person of violations of the rules of law governing a certain type of relationship, and if the person has an interest not recognized by law and if the interests of another person are violated, on the one hand; and on the other hand, the actions of subjects are assumed to be reasonable and conscientious<32>. In addition, according to the fair statement of N.A. Kovaleva, abuse of civil rights looks like an exercise of rights because the actions that constitute it do not go beyond the limits of permitted behavior, if they are considered in isolation from the purpose of their implementation<33>. ——————————— <32>Kovaleva N.A. Abuse of rights under the civil legislation of the Russian Federation: Dis. ...cand. legal Sci. M., 2005. P. 103.<33>Right there. P. 104.

It seems that everything said by N.A. Kovaleva is applicable to the abuse of parental rights, the criterion of which is the goal of exercising the right while observing the limits of permitted behavior. However, a question arises related to the difficulty of determining the purpose of exercising a right before the start of its implementation, as well as during the process of its implementation. As a rule, a goal becomes obvious when it has already been achieved and is the result of specific actions. This raises the question of whether the outcome of an action can be predicted. N. A. Kovaleva believes that if civil law had established a rule that any subjective right must be exercised in good faith, then the acting subject would be obliged to realize and foresee any adverse consequences for other persons of his actions, in addition, the consequences of adverse actions must be specifically specified in the law; otherwise, the question remains unanswered as to what adverse consequences should occur for a person acting in bad faith<34>. ——————————— <34>Kovaleva N.A. Abuse of rights under the civil legislation of the Russian Federation: Dis. ...cand. legal Sci. M., 2005. P. 120.

In relation to abuse of parental rights, according to Yu. F. Bespalov, it is necessary to define clear criteria for recognizing the behavior of legal representatives (in our case, parents) as abuse of family rights, which should include guilt, illegality, use of rights in conflict with the interests of children, and also harm or creation of a threat of harm<35>. ——————————— <35>Bespalov Yu. F. Theoretical and practical problems of implementing child’s family rights in the Russian Federation: Dis. ... Doctor of Law. Sci. M., 2002. P. 145.

In addition, to qualify parental behavior as abuse of rights, it is necessary to establish a connection between the goal and the result. According to A. M. Nechaeva, abuse of parental rights can have different forms of expression... In any case, an abuser of parental rights takes advantage of the helpless state of the child, his direct dependence on the parent demonstrating his power. Abuse of parental rights, as a rule, is not one-time in nature, but is expressed in a number of actions and actions of the parent.<36>. ——————————— —————————————————————— ConsultantPlus: note. Commentary on the Family Code of the Russian Federation (edited by I.M. Kuznetsova) is included in the information bank according to the publication - BEK, 1996. ——————————————————————<36>Commentary on the Family Code of the Russian Federation / Rep. ed. I. M. Kuznetsova. M.: Lawyer, 2000. P. 240.

Experts such as psychologists, teachers, psychiatrists must analyze the actions of the parent (parents) as a complex of interrelated actions and give an appropriate conclusion that will help the guardianship authority employee or the judge to correctly resolve the case, within the framework of a court-appointed examination. Increasingly, in legal disputes about children, including the exercise of parental rights, the parties insist on conducting a comprehensive forensic psychological and psychiatric examination (CFE) in order to determine the degree of attachment of the child to each of the parents. “When diagnosing the clinical and psychological characteristics of each parent, the competence of the expert psychologist includes determining their individual psychological characteristics”<37>, primarily in a retrospective aspect. Experts take into account that “the current conflict situation in the family determines the high level of emotional tension of each of its members, affecting their current mental state and behavioral manifestations. Therefore, the personal characteristics of family members revealed, for example, in an experimental psychological study, may not reflect their stable qualities, but situationally determined characteristics. To make a reasonable forecast of the characteristics of the child’s mental development and the characteristics of the behavior of each parent in the future, this factor should be taken into account, assuming that after the court hearing and the end of the conflict, the emotional state of the child and the parent raising him will change.”<38>. ——————————— <37>Safuanov F. S. Subject types of complex forensic psychological and psychiatric examination in civil proceedings // Legal psychology. 2006. N 2.<38>Right there.

The need to conduct a forensic psychological and psychiatric examination when a court considers a dispute about a child is due to the need to protect the interests of the child, and therefore it is necessary to understand the truth of the parents’ feelings, and therefore a specialist, expert, or even a comprehensive examination is required<39>. ——————————— <39>Nechaeva A. M. Judicial protection of the rights of the child. M.: Exam, 2003. P. 48.

Meanwhile, the importance of forensic psychological and psychiatric examination should not be overestimated, since it is limited to the analysis of the individual psychological characteristics of the parents’ personality. In addition, experts do not have the right to draw conclusions about the presence or absence of abuse of rights in a person’s actions. Only the court has the authority to formulate this conclusion. The author of this article joins the position expressed in the literature that abuse of parental rights should be understood as the deliberate unlawful use by these persons of their rights to harm children, i.e. for the purpose of causing harm or creating a threat of harm<40>. ——————————— <40>Bespalov Yu. F. Theoretical and practical problems of implementing child’s family rights in the Russian Federation: Dis. ... Doctor of Law. Sci. M., 2002. P. 145.

Indeed, the object of abuse of parental rights is the child, as a result of which the rights and interests of the latter are violated, but at the same time it should be noted that often the object of abuse is the second parent, whose rights and interests suffered from the abused right. To conclude the consideration of the issue of the peculiarities of abuse of parental rights, it should be noted that in most cases this issue arises between the parents of a minor child when they live separately, when the parents, due to existing conflict relations with each other, cannot (or do not want) to resolve all emerging issues through approvals

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Jurisprudence often faces the problem of violation of the interests of the individual in various social and family relationships. Especially often, the matter becomes critical in cases where one of the parties actually has a superior position. An excellent example in this case is the relationship between children and their parents or guardians.

When can we talk about a violation of the rights of a minor?

Abuse of parental rights means a direct violation of the rights of a minor and includes a number of actions committed by adults in relation to their own children, or to children whose guardians they are.

It is difficult to draw the line between excessive use of parental authority and neglect of parental responsibilities, so both, from a legal point of view, ultimately fall into the same category.

If any of these points occur in the family relationship between a parent and a child, the latter has the right to receive protection from the state.

The norms of family law speak about the boundaries beyond which no parent should allow himself to cross in the process of raising his offspring. The relationship between a parent and a child is legally designated as a parental relationship. These legal relations include property and non-property relations; they have a number of features:

Abuse of parental rights currently does not have a specific definition in the Family Code of the Russian Federation. As a result, there is no clearly developed system for protecting children from illegal actions or from parental inaction.

Abuse of parental rights begins where the interests of the minor end. Thus, it is these interests that are the scale for assessing the situation, whether there is a violation of the rights of the child or not.

If the actions of responsible adults go beyond the interests of a minor, then we can talk about abuse of parental rights, as well as a crime.

The rights of parents in relation to their child should not be perceived as unlimited and implemented without any restrictions. However, there are also no methods of education specifically prescribed in the Family Code. There is quite a lot of variety here.

According to statistical data from judicial practice, when it comes to abuse of parental rights, in a certain number of cases not only the rights of the minor are violated, but also the rights of the second parent.

Difficulties in identifying abuse of parental rights

Family relations in general are regulated not only by legal acts, but also by moral principles. The same applies to parent-child relationships. It is for this reason that it is often so difficult to determine whether a violation of a child’s rights has occurred.

An example of such a difficult situation to assess is forcing an offspring to play music or play sports.

Of course, the above example is unlikely to lead to legal proceedings and punishment. But there is abuse of parental rights here.

A minor, being in a dependent relationship, is unable to do anything to resolve this situation and is forced to submit to the will of the parent. It should also be noted that often such infringement of a minor’s right to self-determination is not an isolated case, but is systematic.

But good intentions on the part of parents often lead to not the best consequences. We are talking here not only about how child-parent relationships will develop in the future, but also about how a minor, having matured, will behave in various situations. In a word, such upbringing can have a strong influence on a person’s future destiny.

Who should I contact?

The number of executive bodies whose efforts are aimed at resolving the problem of abuse of parental rights is steadily growing.

If you find yourself in a difficult situation, a minor or second parent can apply to:

the prosecutor's office;
internal affairs bodies;
children's guardianship authorities;
inspectorate for minors.

All kinds of rehabilitation, psychological and social assistance centers for minors are open for children, and there is also a helpline. In addition, the rights of the child are protected not only by the country, but also at the international level through the European Court and the UN Convention.

The problem of violation of children's rights is resolved through a district or city court.

To achieve the desired result, it is necessary to have evidence of abuse of parental rights, namely:

If we are talking about obstruction of the educational process, confirmation can be a certificate from the school where the minor is registered as a student, but does not actually attend classes.

Before filing an application with the court, you should consult with a lawyer competent on this issue, and also obtain a certificate from a notary office.

The Family Code of the Russian Federation uses the concept of “abuse of parental rights,” but does not provide a legal definition of this concept. As E.A. correctly noted. Odegnal,

“the prohibition of abuse of law in family relationships is not a novelty”

Odegnal E.A. Abuse of family rights // Bulletin of notarial practice.

2007. - No. 4. but modern family law consists of searching and recording legal techniques and methods of protection against unfair use of law.

If parents raise their children to the detriment of their interests, treat them rudely, humiliate their human dignity when treating them, insult or exploit them, interfere with education, instill bad habits: theft, vagrancy or begging, prostitution, use of alcohol or psychoactive substances, then this is called abuse of parental rights, which may be grounds for deprivation or restriction of rights.

The issue of maintaining a balance of interests in relationships is one of the key issues in jurisprudence.

Abuse of family rights

Every child has the right to live and be raised in a family, as far as possible, to know his parents, the right to their care, the right to live together with them, except in cases where this is contrary to his interests. The child has to be raised by his parents, to ensure his interests, comprehensive development, and respect for his human dignity. In the absence of parents, in the event of deprivation of their parental rights and in other cases of loss of parental care, the child’s right to be raised in a family is ensured by the guardianship and trusteeship authority in the manner established by Chapter 18 of this Code.

61 IC RF. Page navigation Introduction.

Convention on the Rights of the Child Violation of the family rights of the child's father can occur suddenly. A law determining a father's right to a child after divorce.

Violation of the family rights of the child's father can occur suddenly. Violation of the father's parental rights - What to do? Legal traps for negligent mothers and abusive officials.

Parental father's communication with the child.

Abuse of parental rights - what is it?

The Supreme Court, in Resolution of the Plenum of May 27, 1998 No. 10, gives an incomplete list of what can be considered abuse of parental rights. This is the use of parental rights to the detriment of the interests of children. for example: a mother spends her children’s disability pensions on alcohol; spending the child’s property, including his pension, benefits or alimony; excessively healthy lifestyle, exhausting sports or music without taking into account the opinion and condition of the child; one of the parents prevents the other from exercising their parental duties, especially in cases where this order has already been determined by the court, etc.

Abuse of parental rights is one of the grounds for deprivation of parental rights.

In any case, employees of the guardianship and trusteeship authority and officials are obliged to listen to the minor, familiarize themselves with his request and take the necessary measures.

The child has the right to seek protection from any institution providing social services for minors, as well as directly from the prosecutor.

Family law

3 p. I art. 65 of the RF IC, parents who exercise parental responsibility to the detriment of the rights and interests of children are liable in the manner prescribed by law. Consequently, causing damage to a child - his health, upbringing, development - in the form of abuse of parental rights, i.e. disposing of them for other purposes is fraught with deprivation of parental rights.

Even more significant for a minor is failure to fulfill parental responsibilities, which threatens the onset of family legal responsibility in the form of deprivation of parental responsibilities.

According to some scientists, a special case of an offense is abuse of law.

which represents the exercise of subjective right in contradiction with its purpose or general principles of law. The category of “abuse of law” was known to Roman jurists, which was reflected in the saying “abuse is unforgivable.” This category was very clearly described by the French legal scholar J.-L.

Article abuse of parental rights

Thus, in particular, they do not pay due attention to the upbringing of adopted children and do not care about them. However, it is necessary to clearly understand what content the legislator and judicial practice put into this basis. The main responsibilities of parents are listed in Art. 63, 64 of the Family Code of the Russian Federation: education and ensuring the development of their children; caring for the health, physical, mental, spiritual and moral development of their children; ensuring that your children receive basic general education and creating conditions for receiving secondary (complete) general education; protection of the rights and interests of children against attacks by third parties; financial support for children.

Lawyer for deprivation of parental rights

In accordance with Art. 70 of the RF IC, an application for deprivation of parental rights can be filed by one of the parents or persons replacing them, at the request of the prosecutor, as well as at the request of bodies or organizations charged with protecting the rights of minor children (guardianship and trusteeship authorities, commissions on cases minors, organizations for orphans and children without parental care, and others). Who are the persons who replace parents is not defined by family law.

Subjects As already mentioned, the subjects of parental legal relations are parents who are vested with certain powers in relation to their minor children. Moreover, if there is a question of restriction or deprivation of parental rights due to obvious abuse by parents, then the circle of persons who can initiate a court hearing is determined by Art.

What is “abuse of parental rights” The RF IC in several articles speaks about the abuse of rights: Article 56 of the RF IC - a child has the right, in case of abuse of parental rights, to independently apply for protection of his rights and interests to the guardianship and trusteeship authorities, and upon reaching the age of 14 - to court; Article 69 of the RF IC - the possibility of deprivation of rights in case of abuse; Article 141 of the RF IC - abuse of parental rights by adoptive parents is one of the grounds for cancellation of adoption.

Abuse of parental rights

In addition, worthy of attention is the circumstance when parents, due to their difficult financial and physical situation, are simply not able to properly provide for the child and begging was forced. 1. Use of a minor child in the commission of a crime; 2.

Features of abuse of parental rights

We should agree with this opinion and consider the problem of abuse of rights in family law using the example of abuse of parental rights. ----------- Timaeva I. A. Abuse of law in corporate relations: qualification issues, methods of civil legal protection: Dis.

What is “abuse of parental rights”

Article 56 of the RF IC– a child has the right, in case of abuse of parental rights, to independently apply for protection of his rights and interests to the guardianship and trusteeship authorities, and upon reaching the age of 14 years - to the court;
Article 69 of the RF IC- the possibility of deprivation of parental rights in case of abuse;
Article 141 of the RF IC - abuse of parental rights by adoptive parents is one of the grounds for cancellation of adoption.

The Supreme Court of the Russian Federation, in Resolution No. 10 dated May 27, 1998, explains that “abuse of parental rights should be understood as the use of these rights to the detriment of the interests of children, for example, creating obstacles in learning, inducing them to begging, theft, prostitution, drinking alcohol or drugs, etc. . P." (paragraph 3, clause 11).

The list is not closed and strange, considering that involvement in prostitution, criminal activity and drug use are crimes.

lawyer for deprivation of parental rights

The issue of deprivation of parental rights in our time, unfortunately, has become very relevant “thanks to” violations by parents of their duties and rights in raising minor children. Often, deprivation of parental rights is the prerogative of close relatives of minor children (grandmothers, uncles or aunts, sometimes brothers or other guardians or trustees).

When providing services for deprivation of parental rights, our company’s family lawyers are guided by current legislation and existing general and in-house legal practice, constantly improving their knowledge and skills.

It is worth noting that cases of deprivation of parental rights are not the easiest to litigate. Therefore, revealing the essence of the services of a lawyer and advocate for deprivation of parental rights, we want to explain the direction of work of our specialists.

In accordance with Art. 69 of the RF IC, parents (one of them) may be deprived of parental rights if they: evade fulfilling the duties of parents, including malicious evasion of alimony payments;
refuse, without good reason, to take their child from a maternity hospital (ward) or from another medical institution, educational institution, social welfare institution or similar organizations;
abuse their parental rights;
children are cruelly treated, including physical or mental violence against them, and attacks on their sexual integrity;
are patients with chronic alcoholism or drug addiction;
committed an intentional crime against the life or health of their children or against the life or health of their spouse.

As can be seen from family law, the list of grounds for deprivation of parental rights is closed (not subject to broad interpretation). This means that drawing an analogy and applying those not listed in Art. 69 of the Family Code of the Russian Federation, the plaintiff has no rights.

Who can deprive parental rights?

Who are the persons who replace parents is not defined by family law. However, practice tends to indicate that these are the persons whom the guardianship and trusteeship authority has appointed as a guardian or trustee of a minor child (usually such an appointment is made by a corresponding resolution).

The services of professional family law lawyers in the event of deprivation of parental rights are not always necessary. For example, if parents do not want to take a child from the relevant educational or medical institutions, then the relevant institutions (or guardianship and trusteeship authorities), as well as the prosecutor, can apply for deprivation of parental rights.

But for the most part, issues of deprivation of parental rights take place in complex trials, with the participation of the parent who wants to be deprived of parental rights, expressing his disagreement with such a statement. During the process, such a parent proves in every possible way that he did not commit any violations of the child’s rights, did not treat him cruelly, did not use physical or mental violence, etc. In this case, the job of a family law lawyer is to prove the opposite.

How to deprive parental rights?

The RF IC provides only for the judicial procedure for deprivation of parental rights.

Let us dwell on specific failures by the parent to fulfill their rights in more detail.

Evasion of parental responsibilities, including malicious evasion of child support.

Avoidance of parental responsibilities can be expressed in a lack of concern for their moral and physical development, training, preparation for social and public work (clause 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 27, 1998 No. 10). Among such evasion of parental responsibilities, judicial practice names the following facts: the parent does not work, leads an antisocial lifestyle, abuses alcohol, children do not attend school (with the connivance of their parents), etc.

It is also worth noting that the mere fact of children living separately from their parents is not grounds for deprivation of parental rights.

If one of the parents does not pay child support for a long period of time (even if the parents are married!), such parent can be deprived of child support. However, the law immediately points out the possibility of deprivation of parental rights in case of malicious evasion of child support payments.

A type of evasion of parental responsibilities is malicious evasion of child support. This type of crime falls into the category of crimes against family and minors. Responsibility for malicious evasion of parents from paying, by court decision, funds for the maintenance of minor children, as well as disabled children who have reached the age of 18, is provided for in Part 1 of Art. 157 of the Criminal Code of the Russian Federation.

Courts recognize as malicious evasion of alimony payments cases when a person does not provide assistance in supporting children for a long time without good reason and his behavior indicates an unwillingness to comply with a court decision.

Malicious evasion of alimony payments occurs not only in cases where this fact is established by a court verdict in a criminal case. The fact that a person fails to fulfill, without good reason, his obligations to support a young child, expressed in the presence of arrears in the payment of alimony, can be confirmed by a resolution on the calculation of arrears of alimony, written evidence in which the person acknowledges his arrears.

If failure to pay child support is the only responsibility that a parent does not fulfill, then most often the court rejects the application for deprivation of parental rights.

Refuse, without good reason, to take their child from a maternity hospital (ward) or from another medical institution, educational institution, social welfare institution or similar organizations.

In this case, a claim for deprivation of parental rights in case of refusal to take your child from the parental home or other institution is brought by the guardianship authorities or prosecutors. In such cases, relatives are less likely to file a claim.

Family law does not contain a list of reasons that justify or do not justify such an act of the parents (one of them). But the court, of course, takes into account and recognizes as valid the parents’ reasons, such as the illness, death or extremely serious health condition of a close relative. This parameter for assessing the validity of reasons is subjective and is subject to The fact that parents have difficult living conditions is subject to assessment in each specific case.

The courts do not consider valid reasons for refusing to take their children out of the relevant institutions due to lack of work or the sale of their only home. Most often, judges do not perceive this in favor of parents.

Refusal, without good reason, to pick up your child from a maternity hospital (ward) or from another medical institution, educational institution, social welfare institution or other similar institutions is regarded by lawyers as a kind of abandonment of the child.

Abuse of parental rights.

By “abuse in the literal sense of the word” one should understand “use for evil,” i.e. a harmful action (inaction) carried out using some means. The presence of such a tool is a mandatory feature that distinguishes abuse from other harmful actions.” Family law itself does not contain a direct definition of the concept of “abuse of parental rights.” This concept is explained by Resolution of the Plenum of the Armed Forces of the Russian Federation dated May 27, 1998 No. 10. According to it, abuse of parental rights should be understood as the use of these rights to the detriment of the interests of children, for example, creating obstacles in learning, inducing them to begging, theft, prostitution, drinking alcohol. or drugs, etc. From the logic of the law and its interpretation by the Plenum, it follows that abuse must be systemic and not one-time in nature.

Within the meaning of family law and Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the actions of parents in the abuse of parental rights must be guilty. But the corresponding explanations of the Plenum of the RF Armed Forces cannot be considered exhaustive. In order to qualify specific actions of parents as an abuse of parental rights, the law enforcer should be guided by the general idea of abuse of rights as such an exercise of a subjective right in contradiction with its purpose, which causes harm. Obviously, the qualification should be carried out taking into account the RF IC, which says that parental rights cannot be exercised in conflict with the interests of children, and when exercising their rights, parents should not cause harm to the physical and mental health of children, their moral development.

Some lawyers believe that abuse also includes cases of preventing a child from communicating with other relatives, especially when such communication is secured by a court decision.

Child abuse.

Enshrined as the fourth basis for deprivation of parental rights, the concept of “cruel treatment of children” is not disclosed in any way by the RF IC itself. Explanations regarding it are given by the Resolution of the Plenum of the Armed Forces of the Russian Federation of May 27, 1998 No. 10. From the above explanations it follows that child abuse can be expressed as physical violence, psychological violence, sexual violence, unacceptable methods of education (rude, dismissive, humiliating human dignity in the treatment, abuse or exploitation of children).

If physical violence, sexual violence and unacceptable ways of raising a child are even more or less clear, then it is worth explaining what refers to the mental form of violence against a child.

Mental forms of violence include:
- open rejection and constant criticism of the child;
- open threats against a child;
- remarks made in an offensive manner, degrading the dignity of a child;
— deliberate restriction of a child’s communication with peers or other significant adults;
- lies and failure by adults to keep their promises;
- a single harsh mental impact that causes mental trauma in a child.

Based on practical experience, it can be noted that child abuse can also be understood as neglect of the basic needs and interests of the child. It may manifest itself in insufficient satisfaction of the child's needs for food, physical and psychological safety, love, lack of adequate care and supervision or necessary medical care. In other words, the concept of cruel treatment can be expressed in everything that the court considers unacceptable in relation to a child in a particular family, at a particular time, under certain circumstances.

Chronic alcoholism and drug addiction of parents.

The concept of “chronic alcoholism” is not contained in the Family Code of the Russian Federation, however, an analysis of judicial practice shows that the main factor when the court decides on the deprivation of parental rights of parents suffering from chronic alcoholism or drug addiction is a medical opinion.

Many lawyers believe that to deprive parental rights due to chronic alcoholism or drug addiction, an appropriate medical report is sufficient. It is worth noting that this is quite logical, in addition, it complies with the norms of the Civil Code.

Commitment by parents (one of them) of an intentional crime against the life or health of their children or against the life or health of their spouse.

These acts include: attempted murder of a child, the desire to cause him to commit suicide, grievous bodily harm, beatings, torture, contracting a sexually transmitted disease or HIV infection, leaving a minor in a dangerous environment that threatens his life, and the like.

However, it is worth considering that the fact of committing a crime is established solely by a court verdict. The presence of such a verdict on bringing a parent to criminal liability on appropriate grounds is grounds for deprivation of parental rights.

In addition to the substantive rules of the procedure for depriving parental rights, there are also procedural rules. For example, the Code of Civil Procedure and the Investigative Committee of the Russian Federation indicate the obligation of the guardianship and trusteeship authority, as well as the prosecutor, to be present in the processes of deprivation of parental rights. It is also worth noting that cases of deprivation of parental rights are considered not by magistrates’ courts, but by district (city) courts of general jurisdiction (Articles 23, 24 of the Code of Civil Procedure of the Russian Federation).

This is just a small part of what a lawyer needs to know when resolving the issue of deprivation of parental rights. By resolving this issue independently, the client risks missing some details that may subsequently affect the fate of the child.

To order the “deprivation of parental rights” service, you just need to call our office, come to a free appointment, sign an agreement and draw up a power of attorney to conduct the case.

What does abuse of rights and dishonesty mean?

(Unfair omission, actions with the intent to cause harm (chicane), restriction of competition, abuse of process, liability)

Along with the concept of illegal behavior, there is the concept of unfair behavior (Article 1 of the Civil Code of the Russian Federation). Moreover, dishonest behavior is equated by the legislator to abuse of law (Article 10 of the Civil Code of the Russian Federation). The legislator did not explain what dishonest behavior, abuse of law is and how these actions differ from illegal behavior. But it can be noted that the very phrase “unconscionable behavior” suggests that a person does not act in good conscience, and does it consciously

The Constitutional Court indicates that the ban on abuse of rights in any form and the legal consequences of abuse are aimed at implementing the principle enshrined in Article 17 of the Constitution of the Russian Federation that the exercise of human and civil rights and freedoms should not violate the rights and freedoms of other persons (Definition of the Constitutional Court) Court of the Russian Federation dated July 17, 2014 No. 1808-O).

Despite the fact that the law distinguishes between illegal and dishonest behavior, the highest judicial body says that abuse of rights occurs when a subject acts contrary to the norm that grants him the corresponding right, and also does not correlate the behavior with the interests of society and the state, and does not fulfill the corresponding right legal obligation (Definition of the Supreme Court of the Russian Federation No. 32-KG14-17 dated 02/03/2015).

Indeed, unconscionable behavior is often also illegal. An example is sham transactions that are made to achieve some selfish result in the absence of a direct need for their completion (Article 170 of the Civil Code of the Russian Federation).

Forms of abuse of rights

Forms of abuse of rights can be completely different:

1. Using the right for the sole purpose of causing harm to another person (“chicane”);

2. Actions bypassing the law for an illegal purpose;

3. Restriction of competition and abuse of a dominant position in the market;

4. Unfair omission;

5. Deliberately dishonest exercise of civil rights. For example:

disposing of a right for an illegal purpose;
disposal of rights by illegal means;
actions as a result of which the other party cannot exercise its rights.

In general, any form of abuse is the use of rights belonging to a person in unauthorized ways, contrary to the purpose of the right, or for an unauthorized purpose, resulting in harm to others. This is precisely the position that the courts adhere to when establishing the fact of abuse.

Chicane It is very rare in its pure form. Usually this form of abuse is combined with others, since the consequence of abuse of rights by one party to the relationship is harm to the other party. Thus, concluding a transaction on conditions that are especially favorable for a party inevitably entails unfavorable consequences for another person (Definition of the Arbitration Court of the Republic of Bashkortostan in a case dated 2014). Or another case in which the court found that a rate of more than 500 percent per annum for using the loan amount could lead to unjust enrichment of the creditor and violate the principles of reasonableness and good faith (Ruling of the Supreme Court of the Russian Federation in a case from 2016).

Distinguishing between circumvention of the law and legal behavior is quite difficult. Everyone knows the rule: what is not prohibited by law is permitted. Therefore, the choice of a specific method for achieving the stated legitimate goal does not give rise to talk about circumventing the law.

The most significant example is the collection by suppliers (performers, contractors) of unjust enrichment (in other words, payment for goods supplied, work performed) in the absence of a government contract, when the need to conclude one is provided for by the Law on the Contract System (Definition of the Supreme Court of the Russian Federation in a case from 2015).

Federal Law “On the Protection of Competition” dated July 26, 2006 N 135-FZ defines specific elements of abuse (Article 10). Among them:

imposing contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract;
inclusion of discriminatory conditions in the contract.

Moreover, restriction of competition is not allowed not only by the dominant entity in the market, but also by other companies (Decision of the Moscow Arbitration Court of 2013).

Abuse of omission occurs when a person has a right but fails to exercise it, resulting in harm to another person.

As an example of abuse of rights by unauthorized means, one can cite a situation where organizations include defects that are beneficial to themselves in a contract (Definition of the Supreme Court of the Russian Federation of 2014).

Abuse of rights can be caused by such actions of a person as a result of which the other party could not exercise its rights. For example, concealment of information, as a result of which another person missed the statute of limitations.

Consequences of abuse of right

The law prohibits acting in bad faith, much less making a profit in this way. Unfair behavior is prohibited for a reason. If it is detected, an unscrupulous person will be held accountable for his actions in the form of consequences determined by law.

It must be said that the courts are practically unlimited in the measures that are applied to an unscrupulous person. Despite the fact that such measures can only be provided for by law, judicial practice also develops other ways to suppress abuse of law. The nature and consequences of the abuse are taken into account.

The most common consequence of dishonest behavior is a complete or partial refusal to satisfy claims in order to protect the party aggrieved from abuse (Definition of the Supreme Court of the Russian Federation in a case from 2016). Moreover, the courts do not set out to punish the guilty person. Therefore, the mere fact of abuse of rights is not enough to deny a claim. The courts need to present other compelling arguments.

Other measures could include, for example:

prohibition to perform certain actions;
termination of the use of a right without deprivation of this right;
refusal to apply the limitation period (Decision of the Supreme Court of the Russian Federation dated May 16, 2016 No. 304-ES16-3710);
failure to accept the arguments of the abused person;
recognition of the transaction as invalid (Article 168 of the Civil Code of the Russian Federation, Resolution of the Plenum of the Supreme Court of the Russian Federation No. 25 of 03/04/2015).

Abuse of process

Rights can be abused not only in the sphere of civil legal relations, but also in the judicial process. This is done, of course, to delay the fulfillment of obligations or to try to win a dispute. Thus, most often it is in the judicial process that a form of abuse of rights is realized for an unlawful purpose by completely acceptable means:

filing petitions (to disqualify judges, to suspend the proceedings, to postpone the trial);
early submission of documents;
filing an obviously unfounded claim (for example, with the intention of suspending a case already under consideration);
appealing judicial acts that are not subject to appeal.

Another form of abuse of procedural rights may be inaction:

failure to comply with court requirements;
failure to provide evidence;
failure to appear at a court hearing.

At the same time, the creditor’s failure to file a claim for a long time cannot be considered as an abuse of his right (Resolution of the Eighth Arbitration Court of Appeal dated July 11, 2014 No. 08AP-3660/2014).

Abuse of procedural rights also entails adverse consequences for the person who violated the ban (Article 41 of the Arbitration Procedure Code of the Russian Federation, Article 35 of the Code of Civil Procedure of the Russian Federation):

imposing on the person who has abused the right the obligation to pay money (for example, payment of legal costs - Article 111 of the Code of Arbitration Procedure of the Russian Federation, fines - Article 66, Article 225.12 of the Code of Arbitration Procedure of the Russian Federation, Article 57 of the Code of Civil Procedure of the Russian Federation);
refusal by the court to carry out actions for which a petition or demand has been submitted (Resolution of the Presidium of the Federal Antimonopoly Service of the North-Western District dated November 1, 2002 No. 56).

As you can see, the ban on abuse of law applies to various legal relationships: contractual, non-contractual, procedural. Although the integrity of the subjects is assumed, no one is immune from encountering abuse. However, proving bad faith can be quite difficult. Therefore, if there are suspicions that the counterparty is acting in bad faith, it is better to contact an experienced lawyer.

If the person himself is tempted to act in bad faith, he should consult with a lawyer to get an idea of the possible consequences of his actions. They may turn out to be more disadvantageous than the consequences of conscientious behavior. In addition, the lawyer will be able to suggest other, acceptable ways to achieve the desired result.

Abuse of law in judicial practice

Abuse of law is understood as the exercise by a person of civil rights solely with the intention of causing harm to another person, actions in circumvention of the law for an unlawful purpose, as well as other deliberately dishonest exercise of civil rights.

According to Art. 10 of the Civil Code of the Russian Federation, such behavior of participants in civil legal relations is unacceptable. Violation of the prohibition may result in the following measures:

— refusal by the court to protect the relevant right, unless other measures are established by the Civil Code of the Russian Federation (parts 2 and 3 of Article 10 of the Civil Code of the Russian Federation);

— compensation for losses by a person whose rights were violated by abuse (Part 4 of Article 10 of the Civil Code of the Russian Federation);

- recognition of a transaction made contrary to the prohibition established by Part 1 of Art. 10 of the Civil Code of the Russian Federation, invalid according to Art. 168 of the Civil Code of the Russian Federation (clause 7 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 No. 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation”);

— other measures provided for by law (Part 2 of Article 10 of the Civil Code of the Russian Federation).

As practice shows, the most common cases of application of this rule include disputes initiated by bankruptcy trustees in relation to the debtor’s property. However, participants in other legal relations also abuse their rights.

Public insults as an abuse of the right to freedom of speech and expression

A police officer was publicly insulted by an intoxicated person. Obscene language was expressed in “derogatory expressions in an indecent form.”

(Decision of the Dyurtyulinsky District Court of the Republic of Bashkortostan dated October 2, 2017 in case No. 2-924/2017).

The right to a trademark is not subject to protection if its registration was aimed at appropriating the reputation of another participant in economic activity

The entrepreneur carried out the production and sale of products using a certain verbal element. Under the appropriate name, the products were also exhibited at various events, received awards and commendations, and earned a corresponding reputation. A few years later, the plaintiff registered a trademark with the word element used by this entrepreneur.

(Decision of the Arbitration Court of the Rostov Region dated May 23, 2016 in case No. A53-785/16).

A transaction concluded for the purpose of withdrawing the liquid property of the debtor in order to avoid foreclosure on it is declared invalid, and the property is returned to the bankruptcy estate

The debtor entered into a number of transactions, including an agreement with a friend, aimed at alienating property while remaining its actual owner.

Excessive compensation payments to the director, provided for in the employment contract in the event of its early termination, may be considered an abuse of right

The employment contract contained a requirement to pay the director of the enterprise compensation in the amount of an annual salary. The early termination of the contract occurred during a period when the organization met the signs of insolvency: in particular, the enterprise had no property, and debts reached multimillion-dollar amounts. The director, being also the sole founder of the enterprise, could not help but know about this. In connection with this, his actions were recognized by the court as aimed at causing property damage to creditors.

The sale of jointly acquired property by one of the spouses in order to deprive the second spouse of his share entails the recognition of the corresponding transaction as invalid

During their marriage, the couple purchased two apartments. One of them was subsequently sold at a reduced price, the second was donated. Third parties who became owners of the property did not actually take possession. The court declared the relevant transactions invalid, since they were concluded in violation of the prohibitions established by Art. 10 Civil Code of the Russian Federation.

(Appeal ruling of the Moscow Regional Court dated September 4, 2017).

Concealing information about a will in order to seize inherited property is recognized as an abuse of right

Of the testator's three relatives, two were included in his will. One of the heirs entered into a conspiracy with a relative not mentioned in the will in order to divide the inheritance among themselves. Contrary to the agreement, the latter accepted the inheritance, registering all the property in his name; the other, having gone to court to protect his inheritance rights, was forced to reveal the contents of the will. By court decision, one of the heirs under the will became the sole owner of the inherited property.

The requirement to move into residential premises without the purpose of actual residence may be recognized as an abuse of right

The apartment belongs in equal shares to two owners. One owner permanently resides in the disputed premises, the other is registered and lives at a different address. The claim for occupancy of the second owner was denied, since the disputed residential premises have a small area and one room, the co-owners are not relatives, and the plaintiff is registered and permanently resides in another residential premises.

The article was written based on materials from the sites: juridicheskii.ru, vash-yurist102.ru, madroc.ru, eraprava.ru, zakon.ru.

“Abuse in the literal sense of the word should be understood as ‘use for evil’, i.e. a harmful action (inaction) carried out using some means. The presence of such a means is a mandatory feature that distinguishes abuse from other harmful actions” * (47) .

The RF IC does not contain a definition of the concept of “abuse of subjective rights,” as well as a definition of the concept “abuse of parental rights,” although the latter definition is used in a number of articles of the RF IC. For example, Art. 56 of the RF IC enshrines the right of a child, in case of abuse of parental rights, to independently apply for protection of his rights and interests to the guardianship and trusteeship authority, and upon reaching the age of fourteen years - to the court. In Art. 69 of the RF IC, abuse of them is named as one of the grounds for depriving parents of parental rights.

The concept of “abuse of parental rights” is formulated in Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 as “the use of these rights to the detriment of the interests of children, for example, creating obstacles in learning, inducing begging, theft, prostitution, drinking alcohol or drugs, etc. " This definition provides an open list of the negative consequences of abuse of parental rights.

When characterizing the abuse of parental rights, it should be noted that the acts that constitute it are not one-time, but systematic, which indicates the greatest danger to the interests of the child, since they constantly, every minute, undermine his moral and mental health. The main danger of acts that collectively constitute abuse of parental rights is taking advantage of the child’s helpless state, putting mental (and sometimes physical) pressure on him, directly related to a gross violation of his rights.

Please note that, within the meaning of family law and the resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the actions of parents in the abuse of parental rights must be guilty. However, the corresponding explanations of the Plenum of the Supreme Court of the Russian Federation can hardly be considered exhaustive. In order to qualify specific behavior as an abuse of parental rights, the law enforcer will have to be guided by the general idea of abuse of rights as such an exercise of a subjective right in contradiction with its purpose, which causes harm. Of course, qualifications must be carried out taking into account the requirements of the RF IC that parental rights cannot be exercised in conflict with the interests of children, and when exercising their rights, parents must not cause harm to the physical and mental health of children, their moral development.

The above allows us to conclude that abuse of parental rights is a guilty, systematic use of parental rights granted by law to raise and support children, which is contrary to their purpose and the interests of the child, resulting in harm to children.

The legal literature provides various forms of expression for abuse of parental rights: creating obstacles to learning, inducing the use of alcoholic beverages and drugs; using a minor to commit a crime, forcing one’s children into prostitution or begging.

Abuse of parental rights will also include illegal expenditure of the child’s property, including his pension, benefits or alimony. Thus, at the court hearing it was established that B. is the mother of a minor girl, does not work anywhere, does not support her daughter, and does not provide care. At the trial, it was established that the mother spends survivor benefits and monthly child benefits on the purchase of alcoholic beverages. Teachers at a regional children's sanatorium testified that on the day she received her pension, they sent the girl home at her request in order to “hide the money before her mother drank it away...”. The defendant, citing difficult life circumstances, confirmed that both she and her daughter actually live off child benefits *(49).

Currently, a new form of abuse of parental rights has emerged - the sale of a child to someone else's family. “Thus, the basis for the statement of claim received by the Zlatoust City Court was the fact of B.’s abuse of parental rights in relation to his newborn daughter, born on April 15, 2008. In support of the claim, the prosecutor indicated that while B. was in the last month of pregnancy, the defendants learned about the serious illness of their eldest daughter. In order to receive money for treatment, the father and mother decided to sell the unborn newborn child to a previously unknown woman living in Moscow. Before the birth of the child, the defendants negotiated the terms of the sale of the child and transferring it to the buyer. After discharge from the maternity hospital on April 23, 2008 year, the defendants sold their newborn daughter in the city of Zlatoust, having received an initial payment of 50,000 rubles. After payment had been made and the child was handed over, the couple intended to go home, but were detained by police officers at the Zlatoust station. Thus, B. carried out the sale of her daughter, making it the subject of purchase and sale"*(50).

We believe, although this is undeniable, that cases of abuse of parental rights include cases when one of the parents prevents the other from exercising their parental rights, especially in cases where this order has already been determined by the court. Also, one of the forms of abuse of parental rights should be understood as situations when the second parent prevents the child from visiting foreign countries where the consent of the second parent is required (most Schengen countries). In addition, despite the fact that leaving Russia is possible without the consent of the second parent, the second parent can write a statement about his disagreement with the child going abroad, which may violate the interests of the child, for example, when the child travels as part of a national team or a tourist group. But it should be understood that when deciding on the deprivation of parental rights, an unfounded ban on such a child’s departure (for example, on the basis of hostile relations between parents) as evidence of abuse of parental rights should be considered in conjunction with other evidence confirming the improper fulfillment of parental rights by the second parent (for example , does not participate in raising the child or has arrears in child support, etc.).

One more example from practice can be cited that reflects a specific form of abuse of parental rights. At the court hearing on the claim for deprivation of G.’s parental rights in relation to his minor daughter, the following was established: the girl’s mother died, she lived with her grandmother, G.’s father abuses alcohol, and does not fulfill the responsibilities of supporting and raising the girl. Documents for the child: birth certificate, medical insurance, etc. were with their father. Witnesses, the grandmother and the girl herself testified that when G. learned that the girl would undergo an emergency operation, he refused to give them up, asking the grandmother for a sum of money in the amount of 350,000 rubles. In this case, the specified action of the defendant, despite its one-time occurrence, expressed in extortion of money and attempts to profit from the misfortune of his own daughter, should also be considered as evidence of abuse of parental rights * (51).

From an analysis of judicial practice, we can conclude that the presence of guilt in the actions of parents is very difficult to prove, since it is also necessary to prove a cause-and-effect relationship between the forms and methods of exercising parental rights and the consequences of deviations in the development and behavior of the child.

The purpose of using parental rights is the normal implementation of the rights of the child and the upbringing of the child. In some cases, it is quite difficult to determine whether the parents’ behavior is lawful or whether parental rights are being abused. For example, if parents encourage a child to engage in excessive sports, music or any other activity to such an extent that it becomes dangerous to his health and has a detrimental effect on the child's development. What to do if this education, carried out with purely good intentions, causes harm to the child? Especially in our time, when parents are interested in and independently use various methods of education. As an example, we can cite the situation from the book by T.Ya. Safronova, when “in order to raise a child in the spirit of a healthy lifestyle, he was kept in conditions of originality: to harden him, he was sent to the refrigerator, he lay on skins, medical personnel were not allowed to see him, since the doctors and nurses used cosmetics” * (52) . You can also give an example referred to by V. Tikhonina, when Baptist parents did not call doctors to see a sick child, since this was prohibited by the sect’s charter, and for religious reasons they almost brought their children to starvation * (53).

Indeed, parents have the right to raise a child as they see fit, however, this right is valid only to the extent that it does not violate the rights and interests of another person - the child. The boundaries of freedom in the exercise of parental rights should be determined by the law and judicial discretion.

Parent-child relationships have the potential to fall into this category of relationships. Therefore, according to Part 1 of Art. 65 of the Family Code of the Russian Federation (hereinafter referred to as the RF IC), the exercise of parental rights cannot contradict the interests of children. If this happens, the child has protection from crimes on the part of his parents, and the state must provide him with such protection. Parental legal relationship is a social relationship between a child and his parent, which is regulated by the norms of family law, is urgent in nature, i.e.

Abuse of family rights

In the absence of parents, in the event of deprivation of their parental rights and in other cases of loss of parental care, the child’s right to be raised in a family is ensured by the guardianship and trusteeship authority in the manner established by Chapter 18 of this Code.

Family rights of a non-property nature are, in particular, the wife’s right to motherhood, the child’s right to contact with relatives, and the father’s right to participate in raising a child with whom he does not live.

Features of abuse of parental rights

Emelyanov, abuse of subjective civil law is a violation by an authorized person of the obligation established by law or contract to exercise subjective civil law in the interests of another person under unforeseen conditions. ——————————— Emelyanov V.

I. Reasonableness, conscientiousness, non-abuse of rights.

M. Lex-Kniga, 2002. pp. 56 - 57. I. A. Timaeva believes that abuse of law should be understood as a special type of deviating behavior in which the implementation by a person of his rights and legitimate interests entails negative consequences for third parties, clearly disproportionate to the personal interest of the person exercising his rights and legitimate interests.

What is “abuse of parental rights”

Article 56 of the RF IC– a child has the right, in case of abuse of parental rights, to independently apply for protection of his rights and interests to the guardianship and trusteeship authorities, and upon reaching the age of 14 years - to the court;
Article 69 of the RF IC- the possibility of deprivation of parental rights in case of abuse;
Article 141 of the RF IC - abuse of parental rights by adoptive parents is one of the grounds for cancellation of adoption.

P." (paragraph 3, clause 11).

The list is not closed and strange, considering that involvement in prostitution, criminal activity and drug use are crimes. It is not clear which parental rights we are talking about abuse of.

These tasks are defined in Article 63 of the RF IC: parents are obliged to raise their children, take care of their health, physical, mental and moral development, and also ensure that their children receive basic general education.

What can confirm abuse of parental rights?

The statement of claim is submitted in writing to the district court at the defendant’s place of residence. The application shall indicate the following information:
1.

name of the court to which the application is filed;
2. the name of the plaintiff, his place of residence, as well as the name of the representative and his address, if the application is submitted by a representative;
3. name of the defendant, his place of residence;
4.

what is the violation of the rights and or legitimate interests of the plaintiff and his demands;
5. the circumstances on which the plaintiff bases his claims, and evidence confirming these circumstances;
6. list of documents attached to the application.

If the prosecutor appeals to protect the legitimate interests of a citizen, the application must contain a justification for the impossibility of bringing a claim by the citizen himself.
The statement of claim is signed by the plaintiff or his representative if he has the authority to sign the statement and present it to the court.

A copy of the power of attorney is attached to the statement of claim.