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1.1. Concept, the legal nature and essence of family-legal responsibility

Research of process of theoretical judgement of legal responsibility as legal concept (category) that has the direct relation to development of its scientifically proved concept and realisation in pravoprimenitelnoj to practice, including, in marriage and family relations in the Russian Federation sees justified.

The term "responsibility" is entered into scientific use in connection with a question of the punishability arising in connection with punishment [15]. So, A.Bejn and J. Items Mill connect responsibility with charge, condemnation, punishment [16], i.e. with legal responsibility.

It is necessary to establish, that responsibility problems in the modern family law of Russia are insufficiently studied in a family law science that generates problems pravoprimenitelnogo character.

Family-legal responsibility on the essence is close to social responsibility. In such conceptual number the sort represents something the general in the subjects constituting its kinds. The concept concerning a category "kind", possesses properties, signs of concepts which are at higher level, but, at the same time, have also the discriminating lines.

For definition of the legal nature and independence of institute of family-legal responsibility, essence, problems pravoprimenenija and the definition «family-legal responsibility», first of all, it is necessary it is reversible to definitions "legal institution" and «legal it is responsible st».

The legal institution is structural unit of the legal system following for podotraslju of the right, however provided that the corresponding branch is characterised by a difficult structure as some of branches consist only of legal institutions and are not characterised by division on podotrasli.

The numerous definitions of the legal institution offered in the scientific literature, bear identical semantic loading and, as a rule, differ from each other only some terms. It is quite clear, that any definition does not reflect all necessary signs. The right institute, being a structural element of the legal system, is traditionally defined as «objectively stood apart in one branch or several branches of law set of the interconnected legal rules regulating small group of specific family relations», as «group of the rules of law regulating a certain kind of the public

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Relations within branch of law ».

I.A.Trofimets considers, that it is necessary to understand as institute «set of the rules concerning the same subject, forming a single whole organised round an overall aim. Legal institutions urged to regulate separate fragments, or, to tell more precisely, the parties, a public life» [17 [18] [19] [20].

O.E.Lejst is absolutely right, noticing, that «concepts with which the theory of state and law operates, on degree obobshchennosti should matter

For all branch sciences »[21 [22] [23]. Thus, without the detailed analysis of concept and the maintenance of legal responsibility it is impossible to apply for the permission of branch problems within the limits of the family law.

The problem of concept, the legal nature, branch features of legal responsibility constantly is in the centre of attention of jurists, being the most difficult, debatable question in domestic theory of law and civil thought.

Thus it is necessary to recognise, that various branches of law variously define its maintenance.

First of all, it is necessary to notice, that legislative definition of legal responsibility does not exist and as it is represented, such generalising concept is difficult enough for formulating and establishing legislatively. In the Russian science, following on the Soviet scientific thought, most the wide circulation was received by the point of view that legal responsibility is a form of the state compulsion.

According to S.S.Alekseeva, «responsibility - the state compulsion expressed in the right, acts as external influence on the behaviour based on organised force of the state and presence at it« material »tools of the power and directed on outwardly unconditional (unshakable) statement of the state will». The similar position is stated N.A.siliculose.

Thus, the concept of legal responsibility of the Soviet literature on legal subjects was defined through application of measures of the state compulsion of that, however, it is not enough for occurrence of such responsibility.

«Legal responsibility - the state compulsion to execution of requirements of the right, the legal relation, each of which parties is obliged to be responsible for the acts before other party, the state and a society». We believe, what exactly such treatment has the integrated beginning as consolidates two concepts of understanding of legal responsibility: as compulsions and as legal relations. It is thought, that such understanding of legal responsibility has the rational beginning and corresponds practice of its application.

Other authors characterise legal responsibility in a similar key as the legal duty of the debtor to give the report to the actions [24 [25]. Such understanding of legal responsibility does this concept rather wide and indistinct, that deprives of its practical value.

M.K.Sulejmenov suggests «to apply the term« the sanction »in that value in which it is used in the general theory, i.e. to a designation of an element of the norm specifying in legal effects of its infringement, and for a designation of these consequences» [26 [27] [28] [29]. We consider, that such approach is too wide and mismatches the concept maintenance «legal responsibly st».

O.S.Ioffe defines, that legal responsibility is special is state-forced measure, bringing down on the responsible subject essentially new, additional encumbrances. S.N.bratus stated a position, that «legal responsibility is a same duty, but compulsorily executed... On the basis of the state

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Or the public compulsion equal to it ». We believe, that the given point of view not in full characterises responsibility owing to that discharge of duty under compulsion is not responsibility.

Thus, legal responsibility is considered by the majority of scientists as a measure of the state compulsion; a duty to undergo adverse consequences; a duty compulsorily executed; a duty to give the report; an estimation (condemnation); punishment; sanction realisation; legal relation; reaction of a society to an offence. Scientists-lawyers fairly underline, that these concepts do not exclude completely each other, and open the separate

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Signs, characteristics, stages legal responsibility. A polysemy, mnogoaspektnost it is possible to explain concepts of legal responsibility to that any public phenomenon receives the various characteristic which depends on in what relation it is considered.

Nevertheless the majority of scientists - theorists connect legal responsibility, first of all, with adverse consequences for the offender.

Further it is necessary to pay the most steadfast attention to the second approach which has received development in domestic theory of law. It is necessary to establish, that in legal science there was no unity of opinions on concept of positive legal responsibility. Known theorist F.N.Fatkullin defines positive responsibility as comprehension of legal properties of the actions (inactivity), their correlation with laws in force and the subordinate legislation, readiness to be responsible for them before [30 [31]

The state and society. A close position L.B.Smirnov who specified in debt comprehension, occupied its emotional judgement as on

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One of essential signs of legal responsibility.

However it is necessary to specify in criticism of understanding of positive legal responsibility in the jurisprudence which being was reduced to that in this concept there is nothing legal, and only one moral both psychological signs and characteristics. At the same time, we believe, moral-psychological characteristics are inherent family-legal relations and, accordingly, it is possible to speak about reference of these signs to family-legal responsibility.

As fairly specifies D.A.Lipinsky: «the criticism from opponents of the positive legal responsibility, specifying on psihologizatsiju the given concept, in many respects promoted research of this phenomenon not from subjective, and proceeding from its objective

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Signs ».

A number of experts in the field of theory of law and branch jurisprudence understand positive legal responsibility as a duty of observance of instructions of rules of law, the duty to operate legally. According to B.T.Bazyleva, the essence of positive legal responsibility consists in a duty to observe instructions of the legal

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Norms which should be realised in real lawful behaviour. At the same time, certainly, the position according to which positive legal responsibility is not identical to one duty is true to operate legally.

Within the limits of theory of law it is possible to allocate and existing in a science the third [32 [33] [34] [35]

Sight at an analyzed problem. «Legal responsibility - the duty of the subject of an offence provided by rules of law to undergo adverse consequences; the kind of social responsibility» [36 [37], - attempts to unite two sights at legal responsibility - traditionally developed representation about legal responsibility as responsibility - punishments, sanctions, t. e retrospective responsibility and responsibility positive (positive), i.e. Responsibility of the person for performance of the duties by it, the active and realised activity. The given approach is represented to the most defensible and its distribution on brachno-family sphere which, in bolshej degrees, than others, has a morally-ethical component, the personal confidential beginning and fidutsiarnost deserves.

We believe, that it is possible to consider legal responsibility as patrimonial concept in relation to concept «family-legal responsibly st».

The concept of legal responsibility of it obshchepravovom value is starting at responsibility research in the family law. At the same time, in the scientific literature devoted to problems of responsibility of subjects family-legal relations, various opinions are expressed.

In special dictionaries and textbooks on theory of state and law, unfortunately, family-legal responsibility is not allocated in an independent kind (at the best last years after transfer of principal views of legal responsibility — constitutional, criminal, administrative, disciplinary and civil-law - it is mentioned debatable allocation of some other kinds of the legal responsibility developing within the limits of "young" branches of law (customs, ecological, etc.).

Consistently, sharing of a position of scientists which allocate the family law in independent branch of law and legislations, we can not agree with statement of a question on absence of family-legal responsibility as an independent kind of legal responsibility. Probably, supporters of such position start with those reasons, that the family law was not generated as independent branch (differently how to understand their statement that «any branch of law (if it was generated as independent) should possess own institute of legal responsibility»). However, in other work, considering the legal system as mobile, developing structure, D.A.Lipinsky mentions "main" branches of law from which «the diversified branches of law» were allocated and have stood apart that allows it to assume, «that similar processes should

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To occur and to legal responsibility », - that is the question on possibility of a substantiation of existence of other kinds of legal responsibility remains opened.

In works of the Soviet scientists family-legal responsibility was investigated extremely ogranichenno. In a science, however, there were workings out of [38 [39] [40] separate problem moments of family-legal responsibility [41 [42]. During the Soviet and Post-Soviet period scientists basically considered sanctions in the family law, deprivation, restriction of the parental rights as measures of family-legal responsibility. Thus concerning family-legal responsibility, its independence of [43] opinions of scientists dispersed. One recognised its existence, others denied.

The mention of family-legal responsibility within the limits of the family law can be found only in the training courses with the same name, in a part, concerning applications of measures of a liability of infringement of the rights and default of the duties fixed in SK the Russian Federation, and also at realisation and protection of family laws [44]. However, authors are limited to the analysis of the sanctions provided in the law for infringement of maintenance obligations, or consideration of a question on deprivation or restriction of the parental rights, not giving concept definitions family-legal responsibility, referring that this question in the scientific literature is debatable. Really, directories and textbooks follow scientific thought and as in the scientific literature there is no unequivocal definition of this legal category, we will not meet accurate positions and in textbooks.

We believe, that in the scientific literature it is necessary for questions of family-legal responsibility to pay attention not only to experts in the family law, but also the scientists-theorists developing the general theory of legal responsibility, for the purpose of its enrichment. As a matter of fact, from a position on which there is this or that scientist, concerning essence of legal responsibility as general concept he will choose what point of view, how the problem of family-legal responsibility will be considered depends also.

Consistently defending in the present dissertational research system of sights and positions (concept) that family-legal responsibility is independent institute of the family law with the specificity, we will try to formulate in the present work author's definition of institute of family-legal responsibility, «semejnopravovaja responsibility», to define its legal nature.

As V.A.Umov fairly wrote, the right establishes only external borders of family-legal conditions, such as marriage, relationship, adoption, but does not regulate their internal nature laying in vnepravovoj to sphere [45].

In textbooks on theory of law among kinds of offences or at all do not allocate family offences and, accordingly, among kinds of legal responsibility family-legal responsibility [46 [47], or only mention existence that. Thus it is necessary to notice, that to one of the bases of allocation of kinds of legal responsibility serves

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Branch accessory.

It is necessary to notice, that norms about responsibility in operating SK the Russian Federation are absent, that can bring doubts of existence of institute of family-legal responsibility in family law system.

In textbooks under the family law of Russia the institute of family-legal responsibility, as a rule, is considered in connection with deprivation and restriction of parents of the parental rights [48] that was quite natural for that period of development in regulations of marriage and family relations. The given circumstance speaks that in kodifitsirovannom the certificate of the family legislation there is no special section or even the chapter accumulating positions about responsibility for family offences. The analysis of positions SK allows to establish the Russian Federation, that the term "responsibility" is used in its text of 14 times, however the mention it has dot, unsystematic character. Use in the name of item 45 and 115 SK the Russian Federation of the term "responsibility" in itself does not reflect its family-legal character, moreover, the maintenance of given articles testifies to the civil-law nature of responsibility of spouses under obligations, payers of the alimony for their untimely payment [49]. At the same time, as the alien body »in family-legal relations, and a working element of family-legal regulation coming into action in necessary cases» [50] is fairly noted by A.M.nechaevoj, «responsibility at all« not.

Really, the question on family-legal responsibility, unfortunately, was considered fragmentary enough and till now joins in the section devoted to responsibility of spouses on

To obligations or responsibility of parents [51]. The given circumstance

Speaks in a science only that family-legal responsibility has no specificity, i.e. infringements of the rights of members of a family and their interests come under to responsibility according to other branches of law - civil, criminal, administrative. As separate authors «mark it is caused, apparently, and that till now the question on a family law place in system of the Russian right definitively is not solved: it is independent branch of law or a civil law component;... The prevailing the traditional point of view on the family law, as on the independent branch of law having the own legislation, and also as one of directions of a science and a corresponding subject matter» [52 [53] continues to remain.

Against allocation of an independent kind of family-legal responsibility and, accordingly, the legal institution, expresses in M.V.Antokolskaja's science: «Concept of responsibility of the family law identically civil-law. Responsibility can be defined as a duty of the person to undergo the debaring or other additional adverse consequences of the guilty unlawful conduct». M.V.Antokolskaja, basically, does not consider the family law as independent branch, therefore at all does not do attempt to prove allocation of family-legal responsibility: for it the question dares by means of civil responsibility measures in narrow retrospective aspect. To the same position adhere O.E.Repeteva, S.P.Grishaev, R.F.Garipov [54]. Their basic argument is that fact, that to infringers

Norms civil, criminal and the family law are family-legal relation applied. However, as it is represented, application in the family law of guarding norms of other branches of law does not prove that the institute of family-legal responsibility does not exist. In this case, it is necessary to give a priority to norms of the family legislation, however, if in actions of subjects of family legal relations the offence structure contains, responsibility for which is provided by norms of other branch accessory, responsibility, of course, comes according to the sanction of norms of other branches - criminal, administrative, housing and other legislation.

However, in spite of the fact that M.V.Antokolskaja does not allocate semejnopravovuju responsibility as independent, it consider it as «a duty of the person to undergo debaring and other additional adverse consequences of the guilty unlawful conduct» [55].

Undoubtedly, that at regulation of various legal relations, can norms not only one branch of law will be applied. It is necessary to recognise objectively existing position in which force at infringement of the norms regulating the relations, arising from marriage and an accessory to a family, norms civil, criminal, administrative, housing, family can be applied, hereditary and other branches of law. We believe, that here it will be pertinent to recollect the theory of "functional interbranch institute of negative legal responsibility» which "carries out" through »a regulation of attraction of offenders to legal responsibility» about what in jurisprudence, after A.P.Chirkovym, speak, for example, N.V.Vitruk, O.E.Repeteva [56]. And also D.A.Lipinsky's statements about "main"

Kinds of legal responsibility by which protection of the legal relations regulated by "young" branches of law or on a joint of allied industries is carried out. It also carries the family law to that.

The second point of view on family-legal responsibility is directly opposite and starts with a position of allocation of the family law in separate specific independent branch with the subject, a method, principles and other signs of independence of branch. In a family-legal science obosnovanno sights concerning independence of family-legal responsibility are stated, in particular, such opinion is given reason by V.A.Rjasentsevym [57 [58], N.S.Maleinym [59], A.E.Kazantsevoj [60], A.M.nechaevoj [61], JU.F.Bespalov [62] and with it, certainly, it is necessary to agree. It is conventional, that responsibility in the family law possesses certain specificity. Responsibility measures can be applied only concerning members of a family and, accordingly, subjects of family-legal responsibility are always connected by already arisen family legal relations. The third parties which are not participating in concrete legal relation cannot be involved in family-legal responsibility. The third parties breaking the rights of participants of family relations, bear before them not family-legal, but civil, administrative or the criminal liability. So, the person illegally keeping at of another's child, answers in an administrative or criminal order, instead of on norms of the family legislation, fairly

Considers E.M.Vorozhejkin [63].

In works of modern Russian scientists last years a lot of attention is given signs, functions, the purposes of family-legal responsibility. Actively develop this theme and I.N.Glivinsky, L.E.Chicherova, N.N.Tarusina, J.R.Maleev, A.V.Markosjan, S.N.Tagaeva, O.S.Turusova, T.V.hornet, N.F.Zvenigorodsky, P.A.Matveev, O.J.Sitkova's its separate aspects and other scientists [64]. Such experts in family law sphere as L.I.Glushkov [65], L.E.Chicherova [66], P.N.Mardahaeva [67], S.A.Sidorov [68] were engaged in research of separate aspects of attraction to family-legal responsibility for concrete offences in family and marriage sphere. Despite available scientific researches on the given theme, uniform concept and definition of the legal nature of responsibility of a family law science it is developed and was not, let alone allocation and a substantiation of system of sights concerning institute allocation semejnopravovoj responsibility in the family law.

So, as it was already marked, in SK the Russian Federation definition of family-legal responsibility is absent. However, in text SK the Russian Federation about responsibility for offences in family and marriage sphere all is spoken. So, in item 1 of item 1 SK the Russian Federation «Fundamental principles of the family legislation» is said, that «the family legislation starts with necessity of strengthening of a family, construction of family relations on feelings of mutual love and respect, mutual aid and responsibility before a family of all its members, inadmissibility of any intervention someone in affairs of a family, maintenance of unobstructed realisation with members of a family of the rights, possibilities of judicial protection of these rights».

Further the analyzed concept appears only in chapter 9 «Responsibility of spouses under obligations» (item 45, 46) where it is a question of the reference of the claim to property of one of spouses or on property of parents in case of the tort liability approach, caused by minor children (referring to the civil legislation [69] [70]). However we will notice, that in chapter 5 SK the Russian Federation devoted to invalidity of marriage in item 4 of item 30 SK the Russian Federation contains norm: «the Diligent spouse has the right to demand compensation of the material it material and moral harm by the rules provided

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The civil legislation », but the word"responsibility"here is not used.

In chapter 12 SK the Russian Federation «the Rights and duties of parents» item 63 SK the Russian Federation specifies that «parents bear responsibility for education and development of children», in item 65 SK the Russian Federation is visible: «the Parents who are carrying out the parental rights to the detriment of the rights and interests of children, bear responsibility in a statutory order». Items of item 66 and 67 SK the Russian Federation contain following positions: «In case of decree default to the guilty parent the measures provided by the civil remedial legislation are applied».

Further the mention of responsibility appears in chapter 17 SK the Russian Federation «the Order of payment and collecting of the alimony». Point 3 of article 111 SK the Russian Federation: «In case of non-disclosure for the disrespectful reason of the data specified in points 1 and 2 present articles, officials guilty of it and other citizens are made accountable in an order, statutory». Item 115 SK the Russian Federation «Responsibility for untimely payment of the alimony»: «1. At formation of debts because of the person, obliged to pay the alimony under the agreement on payment of the alimony, the guilty person bears responsibility in an order provided by this agreement. 2. At formation of debts because of the person, obliged to pay the alimony under the decree, the guilty person pays to the addressee of the alimony the penalty at a rate of one second percent from the sum of not paid alimony per every day of delay».

Item 4 of item 122 SK the Russian Federation «Revealing and the account of children who have remained without care of parents»: «For default of the duties provided by points 2 and 3 present articles, for granting of obviously doubtful data, and also for other actions directed on concealment of the child from transfer on education in a family, heads of the organisations and the officials, specified in points 2 and 3 present articles of bodies, are made accountable in an order, statutory».

Item 4 of item 126.1 SK Russian Federation SK the Russian Federation «Inadmissibility of intermediary activity on adoption of children»: «Responsibility for realisation of intermediary activity on adoption of children is established by the legislation of the Russian Federation».

Item 2 of item 139 SK the Russian Federation «Secret of adoption of the child»: «the Persons specified in point 1 of present article, the adoptions which have divulged secret of the child against the will of its adoptive fathers, are made accountable in a statutory order».

Article 148.1 SK the Russian Federation «the Rights and duties of the trustee or the trustee of the child» sends us to FZ «About guardianship» according to which item 26, trustees or trustees bear civil-law, criminal and administrative responsibility. And at last, item 2 of item 153 SK the Russian Federation «Reception parents»: «Reception parents in relation to the child accepted on education or children carry out the rights and fulfil duties of the trustee or the trustee and bear the liability for nonperformance or inadequate execution of the duties assigned to them is perfectly in order and on conditions which are provided by the Federal act and the contract», and item 3 of item 153.2 SK the Russian Federation directly specifies that «if as the basis for cancellation of the contract on a reception family material breach of the contract of one of the parties on its fault has served, other party has the right to claim damages, caused by cancellation of this contract».

Thus, the resulted formulations of positions SK allow to establish the Russian Federation, that the legislative definition of family-legal responsibility is absent. But from the general sense of articles it is possible to reveal, that it is a question of certain consequences of infringement of the norms stated in specified articles, about the measures applied to offenders in such cases.

Offenders «are made accountable» or «bear responsibility» under articles 65, 111, 122, 126.1, 139, 148.1, 153 SK the Russian Federation «in an order, provided (established) by the law». This order is defined or the special law (Law item 26 «About guardianship»), or the Code of the Russian Federation about Administrative violations (item 5.53 - 5.37, item 19.7 KOAP the Russian Federation), [71 [72]

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Or the Criminal code of the Russian Federation (item 154-157 UK the Russian Federation). In cases of articles 45, 46, 63, 65,115, 148.1, 153, 153.2 SK the Russian Federation responsibility is provided with application of norms GK the Russian Federation (item 151, 1064, 1073-1075, 1099 GK the Russian Federation) about what in some articles to be spoken specially, and in some it follows from sense of legal relations (taking into account article 4 SK the Russian Federation).

Articles 66 and 67 SK the Russian Federation send us to norms of responsibility under the Grazhdansko-code of practice of the Russian Federation (further - GPK the Russian Federation), and item 3 of item 13 GPK the Russian Federation says, that «judicial decision default, and equally other display of contempt of court, involves the responsibility provided by the federal act» (item 17 KoAP the Russian Federation, item 315 UK the Russian Federation).

Hence, SK the Russian Federation for infringement rigid, mandatory provisions provides application of norms administrative and the criminal liability, and for infringement optional, contractual - grazhdanskopravovoj. That is responsibility here - the sanction for norm default. However point 1 of article 1 SK is not absolutely entered in this scheme the Russian Federation where it is a question of responsibility before a family of all its members. Moreover, this position is defined as necessity from which the family legislation proceeds.

We believe, that also not absolutely unequivocally it is possible to treat norm of article 63 SK the Russian Federation - responsibility of parents for education of children - while the child the minor, responsibility for its actions is born by parents (legal representatives). But whether this responsibility when the child grows stops, after all results of wrong education and development are usually shown much later when the parental rights stop (see item 61 SK the Russian Federation)? Hence, in these articles speech already goes [73 [74] about any other responsibility, not sanctions for norm infringement (as concept "family" in SK the Russian Federation also is absent, and «the family legislation does not provide responsibility for what became the child»), and a certain condition in which participants of family legal relations should sojourn.

In the theory family-legal responsibility is defined, first of all, by the purposes and problems of branch (L.E.Chicherova), paying active attention to working out of the bases of impeachment, differentiation of measures of protection and responsibility measures (S.A.Sidorov, L.E.Chicherova), separate measures of family-legal responsibility (P.N.Mardahaeva), scientists converged only in the retrospective approach to family-legal responsibility. Further, however, the unity of their sights, unfortunately, is absent.

In the literature family-legal responsibility is defined by separate authors, how a duty of the person to undergo debaring and other additional adverse consequences of the guilty unlawful conduct, that quite corresponds to the civil-law characteristic [75 [76] [77] [78].

As family-legal responsibility also not unreasonably understand the legal obligation of the subject of family legal relation to undergo adverse measures of state compulsion,

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The adverse legal effects, certain deprivations,

Established in the form of sanctions. However here there is only retrospective approach and such understanding has unilateral character.

Analyzing the general and specific signs of family-legal responsibility in its retrospective aspect, each author at development of own definition places emphasis on the features seeming to it by most significant. So, for example, in L.I.Glushkovoj's dissertational research following definition is made: « Responsibility in the Soviet family law are adverse personal non-property, and also the property consequences coming as a result of fulfilment by a member of a family of a guilty offence and loss doveritelnosti in relations of subjects of family legal relations ». The concept of responsibility as consequences here is deduced through transfer of the bases of their approach specific to family legal relations (personal confidential character of the relations, the guilty offence made by a member of a family, personal non-property and property character of applied measures). Branch features are reflected in the given definition full enough, but only in retrospective aspect. Besides, adverse consequences of misbehaviour in the family law are various and by an estimation it is"favorably adverse)"concerning the infringer and the victim, both on"weight", and on"encumbrance". We prove what to generalise all these consequences in one definition it is impossible, since such generalisations contradict logic of the retrospective approach.

It is necessary to pay attention, that in L.E.Chicherova, studying a question semejnopravovoj to responsibility from the point of view of the general theory of legal responsibility, says that «it is necessary to understand one of forms of state-compulsory influence as it on infringers of rules of law, treaty provisions or the judicial certificate, consisting in application to them [79 [80] statutory or the contract of the measures attracting for them additional adverse consequences: deprivation or restriction of the property or personal non-property right, putting on

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Additional property encumbrances ». Later she specifies definition of family-legal responsibility as follows:« Family-legal responsibility - provided by the sanction of the rule of law or treaty provisions a measure of possible influence on the offender at non-observance of requirements of the law by it, treaty provisions

Or the judicial certificate, attracting for it deprivation or restriction

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The property or personal non-property right ».

We believe, that at such approach the author considers responsibility as the form of state-compulsory influence on the offender - the same retrospective aspect, and, in general, not so clearly, than such definition differs from the general definition of legal responsibility (specificity is not reserved, but the emphasis is placed on the state compulsion). Besides, it is absolutely incorrect to reduce family-legal responsibility only to the state compulsion. At application of such one-sided approach there is an ignoring of optionality of family-legal regulation of the relations following from marriage and an accessory to a family.

For the sake of justice it is necessary to specify, that in L.E.Chicherova's later definition speaks about family-legal responsibility already more softly - as about a measure of possible influence on the offender. And though it also contradicts logic of the retrospective approach to responsibility-punishment (that is it is supposed, that such influence can be and is not rendered). The author places emphasis on an optional method of the family law which has received wide enough application in practice, starting with konstuktsii family-rules of law. We believe, that at such treatment there is a potential [81 [82]

For realisation of the positive approach concerning family-legal responsibility.

The above-stated author does special accent on the realisation form. Family-legal responsibility is provided by the rule of law or contracts, realised at infringement of these norms or has preventive character. One of the first in a science of the family law of L.E.Chicherova investigated application in the family law of norms of the civil, administrative and criminal legislation together with measures family-legal

Responsibility, having come to conclusion, that «in the family law responsibility has complex, interbranch character». However, the same preconditions lead to O.E.Repetevu to judgement about absence of independence of family-legal responsibility. L.E.Chicherova in it sees specificity of family-legal responsibility that is quite justified and deserves support.

Essentially not denying package approach application to semejnopravovoj responsibility, we believe, that it nevertheless has independent character, is regulated by norms, first of all, the family legislation. Norms of other branch accessory will have subsidiary character in relation to family-rules of law. Thereby, we believe possible to allocate institute of family-legal responsibility in system of branch of the family law.

Thus, according to L.E.Chicherovoj which is represented rather logical, but inconveniently realised in practice, semejnopravovaja responsibility is a measure of possible influence on

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The offender which has interbranch complex character. Consideration of family-legal responsibility only as measures of possible influence on the offender, we believe not to [83 [84] bases comprehensible on the following. Definition use «the measure of possible influence» assumes existence of the certain subject which will influence the offender within the sanction of the rule of law. Besides, it is necessary to remember, that family-legal responsibility is not unique way of influence on the infringer semejnopravovyh norms, - he can feel on itself(himself) compulsion influence to execution of a contract, measures of protection etc. Such understanding of family-legal responsibility, first of all, erases a side between measures of protection and responsibility measures. Besides, such position does not reflect all palette of discriminating signs of family-legal responsibility, does not reflect presence of the special status at offenders and sustained as subjects of legal relation of family-legal responsibility.

The Tadjik scientist, academician M.A.Mahmudov specifies, that semejnopravovaja responsibility is a duty of other sort in the form of influence "nakazatelnogo" character for a perfect offence as a duty of the person to undergo deprivations of a personal or property order in frameworks not reguljativnogo, and special law-enforcement legal relation.

A.S.Sidorov has not too essentially changed the approach which is available in a science, concerning definition of a considered legal category: «Family-legal responsibility as a kind of legal responsibility are the possible adverse consequences expressed in deprivation or restriction of the property or personal non-property right or in restriction of the family legal capacity, provided in sanctions of the rule of law or treaty provisions which can come in case of guilty non-observance by the offender of requirements of the rule of law, treaty provisions, positions of the judicial certificate» [85 [86].

It is possible to see, that here too «the tribute» is given to possibility of approach of consequences (connection of definitions of L.I.Glushkovoj and L.E.Chicherovoj) with accent on specificity of sanctions (deprivation or restriction of the property or personal non-property right or in restriction of the family legal capacity), and also there is a rapprochement with grazhdanskopravovoj responsibility.

N.F.Zvenigorodsky in one of the works defines semejnopravovuju responsibility «as the consequence of a perfect family offence expressed in negative, undesirable to offender provided by the family legislation, the subject of family legal relations, deprivations of personal or property character». As a whole, not objecting to the offered definition, it is necessary to recognise, that again responsibility is treated as a consequence (retrospective aspect). But now the accent becomes on specificity semejnopravovoj responsibility much more: the offender should be the subject of family legal relations, the offence should be family, consequences should be provided the family legislation that does this definition by more successful, than all previous and deserves support.

However, it is necessary to disagree with N.F.Zvenigorodsky's opinion as regards legal responsibility in its any kind acts in the form of the sanction for an offence, i.e. in the form of the state compulsion to performance of the requirement of rules of law. Legal responsibility establishes consequences of the inadequate (wrongful) behaviour breaking the rights and interests of other persons. Hence, its application becomes one of ways of protection of the broken rights and interests [87 [88]. In this case the author odnostoronne treats legal responsibility, starts with the retrospective approach.

According to item 1 of item 80 SK the Russian Federation parents are obliged to contain minor children. If they have admitted a family offence and do not carry out requirements of rules of law, to them sanctions, i.e. the state compulsion to performance assigned on them are applied by the duty right. According to item 2 of item 80 SK the Russian Federation in a case if parents do not give the maintenance to the minor children, means for the maintenance of minor children (alimony) are collected from parents judicially. It is an example of the state compulsion to performance of requirements of the right.

Responsibility, under I.N.Senjakina's fair remark, «is not reduced at all to enforcement of one only duties which it for any reasons has not executed». Responsibility always assumes putting on on the guilty offender of additional adverse property consequences or deprivation of its right. Execution under compulsion in the same volume of the duty which have been not executed voluntary, is there is no yet a legal responsibility, «only protection of the broken rights» [89 [90] [91] in this case will take place. N.S.Malein fairly named wide understanding of responsibility of one of the reasons of impunity family

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Offences.

If to understand responsibility in sense of the compulsory

Duty realisation, it will lead to wide understanding of responsibility that it is impossible to recognise correct. According to N.F.Zvenigorodsky, as a result of application of such responsibility participants of family relations are not induced to discharge of duties voluntary as in case of default they risk nothing, them only will force to execute that they have been obliged to make [92 [93].

S.N.Tagaeva offers the author's definition. «Family-legal responsibility represents guarding legal relation which arises in connection with infringement ordered by the rule of law or the contract of the standard of relations between members of the family, realised in frameworks reguljativnogo family legal relation, at offence fulfilment. And guarding legal relation of family-legal responsibility has complex (interbranch) character». We believe, that the made definition not in full reflects essence and the legal nature of family-legal responsibility since the author considers it as guarding legal relation and tries to "leave" on reguljativnoe legal relation. S.N.Tagaeva says about possibility of occurrence and application of family-legal responsibility only at offence fulfilment that narrows pravoponimanie such multiple-valued and multipurpose category as «family-legal responsibility».

O.S.Turusova (Zemtsov) [94] as well as other authors has made attempt to generalise available sights at problems of family-legal responsibility, to compare features of responsibility in the family law in various foreign countries, to allocate the basic signs and functions semejnopravovoj responsibility and to formulate concept of family-legal responsibility.

In its work differentiation of concepts «family-legal responsibility» and «responsibility in the family law» is given, the attention is paid to a family offence and its structure, criteria of differentiation of various kinds of responsibility, measures of protection and responsibility measures are offered. Certainly, complex scientific research carried out by the author is worthy also judgements. After A.M.nechaevoj it has specified in necessity of the analysis and the characteristic of institutes of the family law through a prism of the general theory of law and, in particular, institute semejnopravovoj to responsibility in a context of the general theory of legal responsibility. With what, in full to a measure, it is necessary to agree. However, as it is believed, in work it is not given due attention to differentiation of concepts of duties and obligations in the family law, that also it is represented interesting and important for understanding of the nature of occurrence of family-legal responsibility in actual family relations and the relations legally issued.

It is necessary to underline, that before to enter norm about kinds of family-legal responsibility, it is necessary to make its definition which most full would reflect its essence. We consider, that such definition, taking into account all told above, it is possible to formulate as follows: family-legal responsibility is, first of all, the realised execution of the obligations voluntary taken on arising from conditions of marriage, relationship or other juridical facts specified in the law, and in case of default of those — their compulsory execution and-or preterpevanie additional deprivations and adverse consequences for the person who have admitted an offence, provided by norms of the family law and provided with the state compulsion.

The authors investigating a problem of family-legal responsibility, notice, that, being one of kinds of legal responsibility, it possesses certain features which allow to separate it from other kinds of responsibility [95]. First, family-legal

Responsibility is applied only to participants of family legal relations (members of a family). Subjects of family-legal responsibility are always connected by already arisen family legal relations. The third parties breaking family laws of participants of family relations, bear before them not family-legal, but civil, administrative or the criminal liability. So, the person illegally keeping at of another's child, answers in an administrative or criminal order, instead of on norms of the family legislation. Secondly, in some cases application of measures of family-legal responsibility depends on the strong-willed certificate of the interested person. For example, the addressee of the alimony has the right to claim from the payer all damages caused by delay in performance of maintenance obligations in a part, not covered penalty (paragraph 2 of item 2 of item 115 SK the Russian Federation). In - the third, in the family law it is less than kinds of family-legal responsibility, than in the civil. So, it is possible to allocate lawful, contractual and non-contractual (delictual - arising of injury), personal and the general, joint and share, subsidiary, and also family-legal responsibility arising as recourse. Such kind grazhdanskopravovoj responsibility as solidary, in the family legislation it is not applied. Fourthly, members of a family can establish measures of the responsibility in case of default or inadequate execution of the duties under contracts concluded by them (the marriage contract and the contract on payment of the alimony) [96].

Before acceptance SK the Russian Federation essential line of the family law was the sign of imperativeness of family-legal responsibility, but as it is believed, it in has much lost the urgency in connection with granting of possibility to subjects of family legal relations to establish a property liability of infringement of contractual family obligations.

Thus, the majority of scientists in the field of the family law, investigating family-legal responsibility, were limited to ascertaining, that this legal phenomenon represents or an independent kind of the legal responsibility, expressing all the possible adverse consequences [97 [98] depriving either limiting the property or personal non-property right, or the limiting family legal capacity provided by the sanction of the rule of law, or treaty provisions which can come in case of guilty non-observance by the offender of requirements of the rule of law, treaty provisions, positions of the judicial certificate.

It is necessary to agree with JU.F.Bespalov's considering family-legal responsibility as independent and specifying following arguments of its independence opinion «1) the family legislation provides measures of responsibility for participants of family relations; 2) the family law is independent branch of the Russian right, and, undoubtedly, the independent appearance of legal responsibility - family-legal is had; 3) family-legal responsibility has set of features...» [99].

Category definition «family-legal responsibility» as «the legal relation arising from infringement of a family duty, established SK the Russian Federation or the contract, expressed in the form of adverse consequences for the offender in the form of deprivation or restriction personal non-property and the property rights which approach is provided by possibility of the state compulsion» [100] is represented, not full though reflects the basic signs semejnopravovoj responsibility (such as an individualization, a support on the state compulsion, realisation of the sanction of the rule of law fixed in SK the Russian Federation, etc.), but again concerns only one party of family-legal responsibility - retrospective where responsibility function undertakes a basis only "nakazatelnaja".

We believe, that the concept offered scientists family-legal responsibility as legal relations of an offence arising after fulfilment is quite well-founded, but demands an additional substantiation. Really, till the moment of fulfilment of an offence in family-legal sphere of responsibility in the form of application of adverse consequences, sanctions does not arise. Such author's concept (position) exists for the reason, that she leans against opinions of scientists-theorists (N.V.Vitruk, V.A.Kisluhin, A.M.nechaeva, etc.), starting with negative understanding of legal responsibility in general and family-legal responsibility, in particular.

R.L.Hachaturov and D.A.Lipinsky absolutely fairly develop the approach to legal responsibility not only with retrospective, but also from the positive point of view. However, according to A.M.nechaevoj, «such wide understanding of responsibility in scientific works complicates not only its judgement, but also working out of all parties of responsibility as complete problem, complicates studying of the mechanism of its action» [101].

Let's allow to disagree with A.M.nechaevoj's opinion. We consider, that the sense of scientific research of family-legal responsibility consists in judgement and working out of all parties of responsibility as complete system, and without set of objectively possible and necessary aspects of its consideration, research will not be full, and will have unilateral character.

To positive aspect of family-legal responsibility in the works has paid S.N.Tagaeva's attention. Having made attempt to comprehend family - legal responsibility as the difficult complex phenomenon, it comes to conclusion, that «perspective and retrospective responsibility correspond as moral (moral) responsibility and legal responsibility». Not denying conceptually S.N.Tagaevoj's approach, it is necessary to specify that, on it not to indisputable opinion, with occurrence family-legal relations there is, first of all, a moral (moral) responsibility - that understand R.L.Hachaturov and D.A.Lipinsky as positive legal responsibility, - and in case of infringement of the rights or default of duties - legal responsibility, that is retrospective. However the morals not is the right, and responsibility on which scientific and practising lawyers argue, including S.N.Tagaeva - a legal category.

Certainly, theorists that «the general lines of morals and the right do not give the bases for their identification» are right. The basic sign of legal responsibility, and family-legal, including, maintenance possibility the state compulsion. It is impossible to deny application of the retrospective approach to definition of family-legal responsibility. According to item 1 SK the Russian Federation «the family legislation starts with necessity of strengthening of a family, construction of family relations on feelings of mutual love and respect, mutual aid and responsibility before a family of all its members». Certainly, here there is a logical question how it is possible to force to mutual aid, love, respect? It after all, first of all, moral estimated categories. But if the behaviour variant is fixed in the rule of law, it passes in right area, and for norm infringement there come adverse consequences according to the law, including application of measures of the state compulsion in the form of sanctions is possible.

Moreover, undoubtedly, that, making the strong-willed certificate-action - registering [102 [103] marriage or a birth of the child, concluding the family-legal contract, for example, the agreement on payment of the alimony, - participants of social relations translate these relations in the category legal, voluntary, is realised (item 12 SK the Russian Federation) incurring mutual obligations to operate definitely how it is fixed in norms of the family legislation. Thus, norms of morals, religious instructions are transformed to rules of law, get possibility of application of measures of the state compulsion in case of their infringement. We believe, that in such situation speech should go about the positive responsibility which is taking place at realisation family-legal relations.

Undoubtedly, that the institute (norms) of family-legal responsibility "is penetrated" by norms of morals and morals. But differently cannot and to be, this circumstance as it is believed, is one of specific features of regulation of marriage and family relations, as a whole, and formations of institute of family-legal responsibility, in particular. At the same time, it is necessary to underline, that in SK the Russian Federations do not contain norms which would provide additional encumbrances or, especially, responsibility for the person who are not observing norms of morals and morals, religious instructions. But, nevertheless, their non-observance makes essential impact on settlement of the relations following from marriage and an accessory to a family, on the decision of family disputes. The subject of family legal relations addresses for legal protection of the broken right in court which at removal of decisions considers, including, moral and morally-ethical categories which have found the fastening in norms of the family legislation. Consider objectively justified at decision of the legal conflict to consider the norms establishing duties of members of a family which though have character of a legal protection in the form of application of sanctions, but include also a morally-ethical component.

«We believe, legal responsibility - the difficult phenomenon in which the state represents itself as the authorised party and the offender as obliged, and realisation of legal responsibility is carried out on the basis of concrete sanctions of the rules of law providing responsibility for the given offence» [104], - writes S.N.Tagaeva. And in later work: «family-legal responsibility, existing as a version of legal responsibility, represents also guarding legal relation» [105].

It is represented, that the specified author wrongly treats and defines a role and the statehood in legal relation of family-legal responsibility since the specified legal relation arise at least between two members of a family, instead of between the state and a family, or the state and members of a family. When the obligation provided by norm of the family law is not executed, it is necessary to speak about breach of law. The state has the status of a certain intermediary (not authorised party). It by means of the norms fixed in the law, restores (protects) the right, provides the right to demand from other participant of family legal relations of execution of the obligation, and only then punishes (reconciliation - divorce, restriction of the parental rights - deprivation of the parental rights, appointment of the alimony - the penalty for non-payment of the alimony).

It is possible to draw a conclusion, that, thus, the legislator observes balance between positive and retrospective responsibility, its unity is reached. Consideration of family-legal responsibility only from the point of view of one approach - retrospective or positive is impossible. Their indissoluble unity expresses essence of the uniform phenomenon by the legal nature - family-legal responsibility. Moreover, the state in most cases (except for the cases specially fixed in the law) "joins" in process, realising guarding legal relation, only at the initiative of one of subjects of brachno-family legal relations. It is possible to draw a conclusion, that till this moment of family-legal responsibility as legal relations do not exist, and at the moment of its occurrence by subjects of such legal relation become the offender and the state, and «the victim only feels on itself action of measures family-legal protection». Such logic of reasonings completely deduces action of family-legal responsibility for frameworks of family legal relation, that as it is represented, mismatches objective circumstances and sees rather disputable.

So, S.N.Tagaeva, analyzes problems of action of positive responsibility in the family law, but, proceeding from its reasonings, it is possible to draw a conclusion on its sights and the approach to family-legal responsibility as retrospective, that, in our opinion, narrows and limits pravoponimanie and definition of essence of the legal phenomenon analyzed in given work.

P.A.Matveev does not give own original definition of family-legal responsibility, and quotes JU.F.Bespalov's definition: «set personal non-property, and on occasion and the property coercive measures limiting and (or) depriving separate family laws or stopping their realisation, and also establishing additional duties; provided by the family legislation, applied by court, other authorised body to the persons who have made a family offence, or admitted other action (inactivity) considered by the family

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The legislation as the responsibility basis ». It is represented to it to the most successful (even in comparison with definition N [106 [107]

F.Zvenigorodskoj which it results as an example in the work), but this definition reduces family-legal responsibility to set of the coercive measures applied to the offender, that is actually - to the sanction, considering family-legal responsibility to a context of the retrospective approach. We believe, that it is impossible to agree with such sight at family-legal responsibility as responsibility is not the sanction and it was repeatedly specified in it in the scientific literature by scientists - experts in family law sphere.

It is necessary to specify, that P.A.Matveev, marks positive aspect of family-legal responsibility in the name of the work, but, at the same time, comes to a following conclusion: « Briefing the discrimination to a question of definition of the legal nature of legal responsibility, we have come to unequivocal opinion, that such responsibility has retrospective character, that is comes after fulfilment of a guilty offence. Positive (or perspective) responsibility is actual more from the point of view of morals, and it gets legal character only after offence fulfilment when the concrete legal mechanisms of the state compulsion directed on restoration of broken family laws and punishment of guilty subjects »[108 [109] start to operate. Proceeding from such reasonings of the author, existence of positive responsibility with reference to the family law here is established as the certain passive beginning fixed in norms of morals and morals which also have no sanctions that is why cannot be realised legally. Family-rule of law the author analyzes further only from the point of view of the retrospective approach that is represented to us not quite justified both mismatching the legal nature and the maintenance of family-legal responsibility.

Works enough considerable quantity of scientists are devoted searches of universal criterion on which basis probably was make the fullest classification of kinds of legal responsibility. R.L.Hachaturov and D.A.Lipinsky, analyzing available workings out, have revealed, that it classify on carried out functions (retaliatory, regenerative etc.), on division of the right on private and public (private-legal and public), by subjective criterion (subjective, objective, absolute), on subject structure, a kind of applied measures, character of the state compulsion, subjects, its applying, etc. But authors consider as the basic criterion branch on which build the further classification: «the legal

Responsibility is subdivided into following kinds: constitutional, criminal, administrative, civil-law, labour (material and disciplinary), financial, criminal procedure, criminally-executive, grazhdansko-remedial »[110]. Putting on

Pages of the research a question on family-legal responsibility, they come to conclusion, that family-legal responsibility as that does not exist [111].

Proving existence of institute of family-legal responsibility as independent in system of the branch with the same name, inclusion in SK the Russian Federation of the general provision about kinds of family-legal responsibility sees necessary, however it is necessary to define criteria on which it is necessary to allocate these kinds. So N.F.Zvenigorodskaja offers some classification criteria, depending on objects in view. For example, classification can be spent on the occurrence bases (contractual and non-contractual), on character of adjustable relations (property, non-property, mixed), by the form and to subject structure of legal relations (responsibility of spouses, parents, other relatives and participants), by the form consequences (the personal, property, mixed character) [112].

According to operating system SK of the Russian Federation, in separate sections kinds of family legal relations on subject structure are allocated: section 3 «the Rights and duties of spouses», section 4 «the Rights and duties of parents and children», section 5 «Maintenance obligations of members of a family», section 6 «Form of education of children who have remained without care of parents». Thus at each section necessarily there are norms in which the measures applied to infringers of family laws and duties are provided, defined by the given section, is frequent with inclusion of specific rules of procedure.

Hence, it is possible to speak about traditional division by the legislator of family-legal responsibility into the responsibility arising from matrimonial, detsko-parental etc. Relations.

Thus, as it was already repeatedly marked above, in norms which are devoted responsibility (where this term in its retrospective aspect is mentioned), the legislator refers to other laws or codes more often - i.e. In the text of the law we will not see specific family norms of "punishment". Therefore if to allocate responsibility kinds only to a retrospective sign of approach of adverse consequences (and it and occurs more often) we will be already forced to speak not about kinds of family-legal responsibility, and about responsibility kinds in the family law [113] - criminal, administrative, civil-law etc. As specificity of family-legal responsibility is it aktsentirovannost on positive aspect and protection of the rights, instead of punishment guilty it is represented, that fastening in the family code of two kinds of family-legal responsibility would be the most comprehensible in this case: Contractual (arising in case of contracting a marriage, the contract on a reception family etc. - and then it would add definition of responsibility by the relations similar with family (guardianship, a reception family)) and non-contractual (arising from the juridical fact owing to the law). This division would not contradict the definition of responsibility given above through concept of the obligation.

Thus followed leave in text SK the Russian Federation references to the special measures provided by the family legislation, and also to norms UK the Russian Federation, KoAP the Russian Federation, GK the Russian Federations concretising application in each concrete case of the punitive measure of the offender, having formulated the impeachment general rule as follows: «Impeachment in family legal relations is made as it should be and by the rules, provided by the present law».

Thus, family-legal responsibility can be classified on family-legal contractual and non-contractual responsibility. As the basic criterion of such division sources of its fastening act. Forms and the size of non-contractual responsibility are established only by the law, and forms and contractual - are defined the size both the law, and conditions of the concluded family-legal contract.

It is necessary to notice, that responsibility under contractual and non-contractual obligations is various, that is caused by difference of essence of these obligations. Family-legal dogovory, certainly, allow to consider more full interests of each of the contract parties, to reduce quantity of conflicts between them, and in case of occurrence of disagreements to solve in their civilised way. Family-legal dogovory, on supervision of anthropologists as fairly marks S.J.Chashkova, allow the parties to allocate especially sensitive sphere of their mutual relations which can conceal in itself danger of possible conflicts [114]. At the conclusion of the family-legal contract of the party can establish responsibility for such offences for which the current legislation does not provide any responsibility, or to enter other form of responsibility which are distinct from those which for the given offence is provided by the legislation. The parties have the right to provide in the family-legal contract increase or, on the contrary, fall of the size of responsibility in comparison with the established family legislation.

It is possible to define, that family-legal contractual responsibility comes for the family offence expressed in default or inadequate execution of treaty obligations, and attracts undesirable consequences for the offender.

Proceeding from traditional division of family legal relations on personal non-property and property, but closely connected with property, family-legal responsibility shares on the responsibility coming for family offences of individual rights (for example, at annulment of marriage), the responsibility coming for family offences of property rights (for example, in maintenance obligations), the responsibility coming for family offences both personal, and property rights (at deprivation of the parental rights), and also simultaneously personal and property rights.

Family-legal contractual responsibility can be expressed in deprivations both personal, and a property order.

The legal responsibility connected with deprivations of property character, first of all is characteristic for civil law which deals, first of all, with property relations. In the family law regulating mainly personal non-property relations between members of a family, family-legal responsibility is expressed more often in deprivations of personal character, for example, deprivation of the parental rights (item 69 SK the Russian Federation).

So, the public prosecutor of Lenin area of of Ulyanovsk in interests of minor Vojnash has addressed in court with the claim to Vojnash about penalty for untimely payment of the alimony, specifying, that according to item 38 of the Constitution of the Russian Federation the care of children, their education is the right and a duty of parents. According to ч.1 item 80 SK the Russian Federation parents are obliged to contain minor children. Malicious evasion of the parent from payment under the decree of means for the maintenance of minor children attracts the criminal liability provided ч.1 item 157 UK the Russian Federation. The sentence of the world judge of a judicial site № 2 Lenin areas of of Ulyanovsk from 11.12.2014 Vojnash recognises guilty of the committing a crime, provided ч.1 item 157 UK the Russian Federation. By criminal case consideration it is established, that agree decisions of Lenin regional court of Ulyanovsk from November, 13th, 2008 Vojnash, is obliged to pay the alimony on the maintenance of minor son Vojnash, up to its majority, at a rate of 1/6 it is frequent all types of income, with transfer of means for the personal account of the child in the Savings Bank of Russia [115].

Let's result other example. A sentence of the world judge of a judicial site № 2 Melekessky judicial areas of the Ulyanovsk area from 15.01.2015 Tepfer S.A. is recognised by guilty of malicious evasion of the parent from payment under the decree of means for the maintenance of minor children during the period with 21.08.2013г. On 26.11.2014г. Under the circumstances particularised in a sentence vessels. It is condemned for the committing a crime, provided by item 157 ch. 1 UK the Russian Federation, by 6 months of correctional labour with deduction of 5 % from wages in the income of the state, left for the places defined by local governments in coordination with ugolovnoispolnitelnoj by inspection, around a residence condemned [116].

A.E.Kazantsevoj's opinion which notices is absolutely fair, that «the maintenance of family responsibility for inadequate education of children consists in elimination of parties liable from personal education of children, embodied in the various forms depending on the bases of occurrence of legal relations on their education» [117 [118]. In it, as a matter of fact, also it is shown, according to G.V.Bogdanovoj, responsibility of parents before a society.

Its division simultaneously to two signs can be other criterion of classification of family-legal responsibility: 1) to a kind of family legal relations in which frameworks the offence is made; or 2) to subject structure of family legal relations. It is family-legal responsibility of spouses (reduction of a share of one of spouses at section court in common acquired property, in cases when the spouse did not receive incomes for the disrespectful reasons or spent the community property of spouses to the detriment of interests of a family, - item 2 of item 39 SK the Russian Federation); parents (deprivation of the parental rights); adoptive fathers, trustees (for example, cancellation of adoption, guardianship, guardianship); other relatives and participants of family legal relations.

Depending on the come adverse consequences for the offender family-legal responsibility can be [119] in the form of deprivations of the personal, property or mixed character. It is necessary to specify, that responsibility classification in the family law is not settled by these kinds of family-legal responsibility.

Further it is obviously necessary to consider a parity of civil-law and family-legal responsibility with a view of revealing of their intrinsic lines and features, definitions of the maintenance of the given legal designs. It is necessary to recognise, that in a science differentiation of the given kinds of responsibility and a parity establishment between them already traditionally takes place.

Such measures taken to the offender in which result it has incurred property deprivations which would not come concern civil responsibility if the offender has not made an offence only. Besides, grazhdanskopravovaja responsibility is responsibility of one participant of civil matter before other participant of the same legal relation, responsibility of the offender before sustained. Therefore civil responsibility is understood as application to the offender of such measures in which result at the offender it is withdrawn and transferred sustained property which the offender would not lose if has not made an offence.

According to D.E.Bogdanova, the essence of civil responsibility is characterised by a principle of an autonomy of the creditor which reflects independent, independent behaviour of the creditor, free in application or non-use statutory or the contract of measures of civil responsibility. The creditor appears as the carrier of civil freedom, pravoobladajushchego the person allocated with a certain measure of possible behaviour under the order by the rights and the independent initiative in a question of attraction of the debtor to [120 [121]

Civil responsibility.

The civil responsibility purpose consists in indemnification

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Losses to the creditor. For this reason the increasing value is got by compensatory function of civil responsibility [122 [123] [124].

If we address to the family law we will find out, for example, that reception parents answer not before the counterpart under the contract on a reception family before guardianship body (item 152 SK the Russian Federation), and before a society for inadequate education of the reception child. Such design of responsibility is similar to responsibility of parents in the form of deprivation of the parental rights (item 69 SK the Russian Federation) and otobranija the child (item 77 SK the Russian Federation). We believe, it is possible to consider as family-legal responsibility responsibility of reception parents before a society for inadequate education of the reception child (item 3 of item 153.2 SK the Russian Federation). In this case, as well as in cases of deprivation of the parental rights, otobranija the child, reception parents bear a civil responsibility, and it is expressed for them in deprivations of personal character - in elimination from education of the child. The designated general lines of responsibility in these three considered cases allow to distinguish it from civil responsibility and to define it as an independent kind of legal responsibility - the family-legal responsibility provided by norms of the family legislation [125].

Family-legal responsibility can be provided the legislation and has lawful character. Along with it, SK the Russian Federation

Provides possibility for participants of family legal relations to conclude family-legal dogovory and agreements. Accordingly, in case of infringement of conditions of such agreements probably attraction of subjects to contractual family-legal responsibility, in particular, responsibility of reception parents under the contract on a reception family is the contractual responsibility provided family

The legislation and the contract on a reception family. Such responsibility comes, first of all, before a society, instead of before the counterpart under the contract - guardianship body, for a family offence - inadequate education of the reception child, expressed in deprivations of personal character - elimination of reception parents from education of the child.

Some authors go further and notice, that concepts «responsibility in the family law» and «family-legal responsibility» are adjacent, but not identical as the first is a version of the second. Family-legal responsibility, in their opinion, concept wider, including, besides responsibility measures in the family law, also the measures of responsibility provided for various infringements of the family legislation by norms of other legal branches - civil, administrative and criminal [126]. We believe, that such sight on kategorialnyj the device concerning definition of the basic concepts of the legal relation arising in connection with a family offence, it is quite justified and deserves approval. Really, offences in sphere of family legal relations can entail attraction not only to family-legal responsibility, but also to the responsibility provided by other branches, both private, and the public law.

Meanwhile, family-legal responsibility unlike grazhdanskopravovoj cannot be considered as the relative obligations

Legal relation as as the authorised subject not the counterpart-creditor here acts, and the state in the name of its bodies. An example of similar legal communications are parental, tutorial or usynovitelskie family relations. However though obligations of parents, trustees, adoptive fathers also have no contractual basis, but in any case arise owing to norms of the law at acquisition of the corresponding status. Therefore actus reus of the specified persons are considered as family offences and attract for offenders certain sanctions.

Sanctions which, in general, are offence consequences, are rather non-uniform and directed or on protection of the broken right, or combine measures of protection of the broken right and adverse

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Consequences for the offender.

Specific character of family relations (gratuitousness, duration, tesnejshaja communication with the person of participants) causes the nature of the family-legal sanctions defined in the literature through lichnopravovoj character, prevalence non-property and absence

Alternative and universal sanctions, a combination of moral condemnation with

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Family-legal responsibility.

Here measures of responsibility are indicative also: the decree about deprivation of the parental rights, annulment of marriage, etc.

Judiciary practice concerning annulment of marriage, in connection with absence of intention to create a family (simulated marriage) is rather extensive. We will address to materials of appeal definition of the Full court on civil cases of the Ulyanovsk provincial court from 03 [127] [128]

March, 2015 on business ³33-820/2015 [129].

The full court on civil cases of the Ulyanovsk provincial court has considered case under Nabieva S. A, Reshetovoj E. V's reclaiming petitions on the decision of Baryshsky city court of the Ulyanovsk area from December, 03rd, 2014 as which is enacted to recognise marriage registered on May, 15th, 2012 between the citizen of Republic Uzbekistan Nabievym S. A and the citizen of Russia Reshetovoj E.V., void, from the date of its conclusion.

The decision of Baryshsky city court has been enacted to nullify marriage between the above-stated citizens from the date of its conclusion.

In Nabiev S.A. and Reshetova E.V.'s reclaiming petition express disagreement with the decree. In a substantiation of arguments of the complaint refer that marriage between them has been registered for the purpose of family creation, and the court has made the unreasonable decision.

The trial court, having stated an estimation to all proofs presented on business in their set, including, to explanatories of the parties and indications of witnesses, having established, that from the moment of a marriage and to for awarding judgement in common did not live Nabiev S.A. and Reshetova E.V., no general children have, a joint economy did not lead and do not lead, has come to a substantiated conclusion about fictitiousness of the marriage concluded by respondents.

According to item 27 SK the Russian Federation marriage is nullified at infringement of the conditions established by the item of item 12-14 and item 3 of item 15 SK the Russian Federation, and also in case of the simulated marriage conclusion, that is if spouses or one of them have registered marriage without intention to create a family.

Thus, the marriage concluded without intention to create a family admits fictitious, the consent to the conclusion of simulated marriage does not express original will of the parties. The parties pursue the marriage aim only for the form, without intention actually to establish family relations and the purpose of registration of such marriage is reception of any rights and the advantages following directly from the fact of registration of marriage.

We believe, what exactly the given circumstances took place at a marriage between Nabievym S.A. and Reshetovoj E.V. which actually did not pursue the aim of creation of a family. As the proof of is truly specified by city court, indisputable that respondents led the general economy, had the uniform general budget, got property for joint using, made joint purchases for home life, and, finally, had the purpose to create a family, to court has not been presented.

Moreover, Nabieva S.A.'s actions testify to prosecution of other purposes: 07.08.2012, that is in 2 months after a marriage from Reshetovoj E.V., its reference in UFMS Russia on the Ulyanovsk area about delivery of the permission to temporary residence without a quota has followed. Thus, as the basis for reception of the permission, Nabiev S.A. referred to the fact of registration of marriage with the citizen of Russia, has given the certificate on it. The given reference has formed the basis for delivery 25.09.2012 Nabievu S.A. of the permission to temporary residence № *** till 25.09.2015.

Under such circumstances, we consider, that court obosnovanno and objectively, on the basis of business actual facts, has drawn a fair conclusion on fictitiousness of the concluded marriage between the above-stated citizens. The full court agrees with the specified conclusions. Taking into account stated, the decree is lawful both proved and to cancellation on arguments appeal complaints does not come under.

Thus, the full court the decision of Baryshsky city court of the Ulyanovsk area to leave without change, and reclaiming petitions - without

Satisfactions.

In practice realisation of measures of family-legal responsibility can have complex character, but application of any one measure provided in the law is possible, that simultaneously excludes action another.

For example, in court Management on guardianship for the purpose of protection of interests of minor citizen I.R has addressed.

According to available indications of witnesses, mother abuses spirits. Thereby setting a bad example to the child. D A.N., being the mother, carries out attraction I.R. To alcohol drinking.

Similar actions are serious abusing of the parental rights. For this reason the Lenin regional court recognised Management requirements on guardianship quite lawful and has satisfied they be to deprive mother

130

A.N. The parental rights.

We believe possible to bring an attention to the question on features grazhdanskopravovoj responsibility in sphere of marriage and family relations, and also about application provided SK the Russian Federation special conservation measures, including in the form of the debaring. Realisation of special conservation measures is not responsibility though can have functions similar to responsibility. Thus, as fairly it is underlined in the literature, infringement of the duties established by the family legislation, can be also the basis for application of independent measures of the responsibility provided by other branches of law - is administrative-legal and criminally-legal responsibility (item 5.35 KoAP the Russian Federation, item 156, 157 and other norms of chapter 20 UK the Russian Federation). [130 [131]

With reference to any association of norms of the family law as the part of the general system of the family law can allocate and subordinatsionnye, and coordination intrabranch communications. In aggregate they represent system which acts as reflexion of the features inherent in this or that division of branch of the family law, and also it, for example, as well as a subject sign, for it is specific in variety of the displays: joint application of rules of law various

Family law divisions. In development of thought of M.J.Chelysheva, it is possible to draw a conclusion, that intrabranch interaction between separate parts (elements) of system of the family law is constructed on the unanimity and differentiation. The given position to the full corresponds to institute of family-legal responsibility and interaction of norms in it.

Process of differentiation of legal regulation is shown, first of all, in division of system of the family law into institutes. In detail enough system of the family law and system of the family legislation, from the point of view of construction of scientifically proved system of the given branch, have been in detail analysed by A.N.Levushkinym.

In family law system it is possible to allocate, as obosnovanno it is offered to A.N.Levushkinym, following legal institutions: marriage institute, individual rights and duties of spouses, the rights of children and a numerous number of others. Each of the given institutes represents the certain system including not only the body of laws, but also the defined family-legal principles, basic categories defined family-legal principles, receptions, ways and the means connecting institute in a single whole.

We believe, that, applying the structure offered by given scientists [132 [133] family laws and institutsionalnost the given branch, are all bases for allocation of institute of family-legal responsibility in the family law.

The institute of family-legal responsibility includes the body of laws, the purposes, functions, the basic categories and the means connecting institute in complete system formation.

«From a position of the system-structural approach it is represented

Necessary allocation in structure of system of the family legislation of the general and especial parts. Simultaneous inclusion in system of new legal institutions that will lead to cardinal change of a principle of formation of structure of all system of the family legislation thus is offered. In particular, in general part structure sees necessary to provide essentially new institute «the bases of occurrence, change and the termination of family relations» where the establishment of an origin of children will be defined. Besides, in this part it is necessary to fix the norms defining marriage as the juridical fact, adoption and others »[134]. In development of the offered theory of A.N.Levushkina, we suggest to fix in general part structure concept of family-legal responsibility.

The carried out analysis of a legal category and essence of institute of family-legal responsibility, dictates necessity to formulate the basic conclusions.

1. Proceeding from the spent analysis of the various points of view concerning definition of concept and the right nature of family-legal responsibility, it is possible to draw a conclusion, that in a family-legal science there was a retrospective approach to its understanding as independent kind of legal responsibility. However, separate authors nevertheless consider positive aspect of legal responsibility, but "reduce" it to the moral party, not revealing a legal component in the given approach. All reasonings on a positive direction in family-legal responsibility are reduced to a recognition of certain norms of morals and morals which cannot be considered from the legal point of view because have no sanctions for their infringement. However, we believe, such conservative approach, has really developed in a family law science in the modern realities of time which are available in a society brachnosemejnyh relations, but it mismatches objective circumstances. Really, A.M. nechaeva the rights, speaking about difficulty of studying of questions of responsibility at its too wide understanding. As consequence, it leads researchers to that the question on family-legal responsibility is developed not completely, and arising contradictions frequently are ignored. We believe, that the family law science should develop dynamically, it is necessary more innovatively, about use of scientific knowledge of the general theory of law, to approach to questions of definition of legal nature, essence and the maintenance of family-legal responsibility.

2. Attempts of scientists to formulate a certain uniform definition semejnopravovoj to responsibility have not led till now to accurate and unequivocal result which could be fixed legislatively. «Too vaguely also demands the explanatory» - here that authors of the Concept of perfection of the family legislation, suggesting to fix in SK hear in the answer the Russian Federation definition of family-legal responsibility. And for today it, unfortunately, is valid so. We believe, that any of the resulted and analysed definitions offered in a science of the family law, does not reflect in full essence of an investigated category though some formulated definitions of authors specify in branch features of family-legal responsibility and it is possible to name them successful and they deserve studying and the further working out.

3. In the majority of definitions of family-legal responsibility resulted in the scientific literature the emphasis is placed on its such characteristics as legal relation which arises from infringement of a family duty (family-rule of law), expressed in the form of adverse consequences for the offender in the form of deprivation or restriction of the personal non-property and property family laws which approach is provided by possibility of the state compulsion ». It is represented, that at such treatment of family-legal responsibility it is considered in the narrow sense, the given characteristic looks not full though reflects the basic signs of family-legal responsibility (such as an individualization, a support on the state compulsion, realisation of the sanction of the rule of law fixed in SK the Russian Federation, etc.) But reveals only one party of family-legal responsibility - retrospective, at which basic accent it is made on "nakazatelnuju" responsibility function in marriage and family relations.

4. We believe, that the concept offered scientists family-legal responsibility as legal relations of an offence arising after fulfilment not to the full characterises legal relation semejnopravovoj responsibility in a broad sense. Proceeding from the retrospective approach, till the moment of fulfilment of an offence of responsibility does not exist. Such position is dominating in a science, starting with negative understanding of legal responsibility in general and semejnopravovoj responsibility, in particular.

5. Already at the primary analysis of the text of norms SK the Russian Federation is found out that «confuses minds» composers of the Concept and is defined by them as "probelnost" operating SK the Russian Federation. In this connection, it is offered to enter in SK the Russian Federation the general provision providing kinds of family-legal responsibility and general rules of attraction to it.

6. For today of norm in which there is a mention of responsibility, are located on all SK the Russian Federation, thus concept of responsibility which in them is reflected - doubly as in the majority the legislator offers the approach to responsibility as to the sanction for an offence, and only item 1 and item 63 SK fairly speak the Russian Federation about its positive aspect. We believe, that the definition formulated above would eliminate many contradictions in operating SK the Russian Federation.

7. It is proved, that family-legal responsibility can

To be considered and as a duty to undergo adverse consequences, both as legal relation, and as the sanction, and as negative consequences of an offence, and as possibility of rendering of influence on

The offender. However such treatment has unilateral character. Proceeding from the stated approach, family-legal responsibility is considered from the retrospective positions which characteristics, certainly, are peculiar considered in the present work

Responsibility. It is obviously necessary for working out of the most objective definition it is necessary to investigate positive aspect of responsibility long remaining in a shade in family legal relations, to reveal its interrelation with the retrospective approach, to study dynamics of their interaction — and only after that the decision of such problem, as the formulation (offer) of author's definition which is obviously necessary for fixing at legislative level in SK the Russian Federation is possible.

8. We believe, that consideration of legal responsibility from the concept of its understanding as positive legal responsibility is the most actual and is applicable to responsibility in marriage and family relations where rather the great value has a personally-confidential element, morally - the moral beginnings and a religious component.

9. It is revealed and defined, that it is impossible to spend a full identification of family-legal responsibility with civil-law as at the heart of family legal relations the contract (agreement) lays not, and a matrimony based on family-legal communications. We believe, that simple application to family legal relations of principles of the civil law regulating,

First of all, contractual property relations, the introduction into marriage, acceptance of children into a family on education and other specific juridical facts contradicts essence of the family relations based on family-legal communications which basis of occurrence is the relationship. At the introduction into action of the mechanism of punishment, realisation of sanctions (retrospective aspect), the measures of responsibility provided by norms of other branch accessory - criminal, administrative, civil, the housing law more often are applied. But at

The offences mentioning the rights of subjects not as citizens or the person and as members of a family in which basis family-legal communications lay, it is necessary to apply specific measures of responsibility - family-legal, directed, first of all, on protection of the broken or challenged rights of members of a family in wide value of this term.

10. As it is represented, application in the family law of guarding norms of other branches of law does not prove that institute semejnopravovoj responsibility does not exist. At fulfilment of a family offence, it is necessary to give a priority to norms of the family

Legislations, however, if in actions of subjects of family legal relations the offence structure contains, responsibility for which is provided by norms of other branch accessory, responsibility, of course, comes according to the sanction of norms of other branches - criminal, administrative, housing and other legislation.

1.2.

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A source: Karibjan Susanna Onikovna. FAMILY-LEGAL RESPONSIBILITY: ESSENCE And PRAVOPRIMENENIE UNDER the LEGISLATION of the RUSSIAN FEDERATION. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2016. 2016

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