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INTRODUCTION

Urgency of a theme of dissertational research. Protection of such intangible benefits as the life and health of the person are guaranteed in our state by the Constitution of the Russian Federation (ch.

1 items 41), civil and norms of other branches of the legislation. At the same time from annual reports on activity of the Representative under human rights in the Russian Federation, the Representative under human rights in Republic Tatarstan, social movement materials «the Public Russian front» follows, that cases of infringements of the rights of patients, especially minor citizens concerning most socially vulnerable category, during the modern period are frequent.

As one of the reasons of these infringements imperfection of the legislation in the field of realisation, protection and protection of the rights minor as participants of the legal relations arising in sphere of health protection of citizens, and also absence of the consistent effective system legal basis reflecting to the full positions of the international legislation on the rights of minors for a life and health acts. The operating civil legislation of the Russian Federation does not concretise all volume of competences minor as consumers and customers of medical services that reduces level of protection of their rights. The federal act from November, 21st, 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation», unlike the Civil code of the Russian Federation (further ‒ GK the Russian Federation), considering psychophysiological norms of development of the person, establishes other age borders of realisation of the rights of minors at reception of medical aid by them on a free or paid basis.

At the same time the minor patients who have reached chetyrnadtsatiletnego of age, in view of established by the legislation in sphere of health protection of citizens of restrictions, in the absence of the written approval of their legal representatives, despite presence of the contract of voluntary medical insurance, cannot independently receive any paid medical services. Though they, naturally, can have requirements for reception, including in the absence of the consent of their legal representatives, medical aid which does not attract any risk for a life and health of the minor, but is necessary for it for high quality of a life, high-grade mental development, participation in a public life.

At a making contract stage on rendering of paid medical services reception of the written approval of legal representatives of the minor, and at a stage of rendering of medical aid ‒ reception of their informed voluntary consent to medical intervention is required. Thus, according to norms GK the Russian Federation, it is admissible not only reception from them the preliminary consent, but also the subsequent consent (approval) to fulfilment of such transaction that contradicts the being of protection of the rights of the minor patients who are not possessing full capacity.

In pravoprimenitelnoj to practice a number of problems of application of civil-law ways of protection of the property and personal non-property rights of minor patients, and also indemnifications of moral harm comes to light at infringement of the personal non-property rights and an encroachment for a life and health of minors. Thus representatives on assistance in protection of the rights of minor patients subjects, in particular guardianship bodies, not in all cases can apply the civil-law mechanism of such protection owing to its weak legislative prorabotannosti.

From civil jurisprudence positions there is an obvious insufficiency of research of features and problems of participation of minors in contractual and other legal relations on rendering of medical aid by it. Complete representation about civil-law position of minor patients in a domestic science of civil law is not generated till now. Positions of the international certificates about the property, personal non-property rights of the minors which realisation occurs at rendering of medical aid by it, including in connection with reception of the information by them about a condition of their health, representation and protection of their rights of patients in the medical organisations representatives, besides lawful, have found sufficient reflexion in the operating Russian legislation. Besides it does not spend accurate differentiation between a legal status of legal representatives and other representatives of minors.

Pravoprimenitelnaja and pravorealizatsionnaja practice, obviously, testify to the necessity of creation of consistent system of legal regulation defining civil-law position of minor patients. Now are prepared and projects of the standard legal acts regulating the relations in investigated sphere as which subjects minor patients (for example, the draught federal law «About maintenance of health of citizens», the project of the Order of Ministry of Health of the Russian Federation about a summer residence order one of parents or other legal representative of the minor patient of the informed voluntary consent to rendering to the patient of medical aid within the limits of clinical approbation of methods of preventive maintenance, diagnostics, treatment and rehabilitation) can act are discussed. However and in them positions of the international standards about the rights of children to medical aid and protection of their rights (for example, about the moment of occurrence of the rights to the medical aid, the accessible information, using the most perfect services of system of public health services, by means of treatment of illnesses and recovery of health) are not reflected in full.

All above-stated testifies to an urgency of a theme and expediency of carrying out of scientific research on problems of civil-law position of minor patients.

Degree of a scientific readiness of a theme of research. Directly questions of legislative registration of civil-law position of minor patients in the Russian Federation rose in E.G.Afanasevoj, A.G.Blinova, L.M.Dolinsky, A.J.Ivanjushkina, M.N.Maleinoj, A.A.Mohova, J.V.Pavlovoj, A.N.Pishchity, S.I.pomazkova, J.D.Sergeeva's works, etc. in them separate features of realisation by minors of the property, personal non-property rights in sphere of rendering of free, paid medical aid, and complete representation about the maintenance, specificity of civil-law position of the minor patients, based on the civil doctrine were mainly analyzed, was not formed.

At monographic level some problems of civil-law regulation of relations in sphere of health protection with participation of minors were investigated in L.T.Gibadullinoj's dissertational works («Civil-law consumer's right protection of medical services», Kazan, 2015), I.G.Lomakinoj («Civil-law regulation of relations on rendering of medical services in the Russian Federation», Moscow, 2006), E.S.Sagalaevoj («Legal regulation of rendering of medical services by the minor», Moscow, 2007) . In these works research of realisation by minors personal non-property and property rights at rendering of medical services was spent by it on the fundamentals of legislation, a law in force applied before acceptance about health protection of citizens (behind an exception, L.T.Gibadullinoj's works) and basically in aspect of revealing of an originality of the contract vozmezdnogo rendering of medical services by the minor. But in them many modern actual problems of formation of civil-law position of minor patients in the Russian Federation, in particular problems of definition of age borders of approach of civil capacity of minor patients, volume, protection of their civil rights and duties as patients, their specificity deliktosposobnosti, the legal nature of the consent to transaction fulfilment about rendering by the minor of paid medical services, recognitions of this transaction void in detail were not considered.

The purpose of dissertational research. The research objective consists in working out and a substantiation of complete scientific representation about civil-law position of minor patients in the Russian Federation, ways of protection of their civil rights, and also in working out of the offers directed on perfection of the legislation, regulating legal relation with participation of minor patients.

Problems of dissertational research. Proceeding from the specified purpose, the research problem consist in:

‒ a substantiation of necessity of introduction in a scientific turn of new civil-law categories ‒ «the minor patient» and «civil-law position of minor patients»;

‒ to concept working out «civil-law position of minor patients» and an establishment of features of its element maintenance as preconditions to perfection of the civil-law mechanism of protection of the rights of minor patients;

‒ an establishment of specificity of civil-law position of the minor patients having age, mediko-social, psychophysiological, other features, and its differentiations on the various bases;

‒ arguments normoobrazujushchej the importance of legislative differentiation of the civil legal personality of minor patients;

‒ revealing of specificity of the civil legal personality of minor patients about 14 years and from 14 till 18 years are elderly;

‒ an establishment and a substantiation of features of application of ways of civil-law protection of the rights of minor patients;

‒ to working out of model of legal regulation of relations on rendering to minor patients of medical aid on free, paid bases and interactions of the authorised subjects in sphere of protection of their civil rights.

Object of dissertational research. As object of the present research the public relations arising with participation of minor patients in the Russian Federation and in connection with an establishment of elements of their civil-law position act.

Subject of dissertational research. An object of research are norms of the international legal acts, domestic civil, other branch legislation, doktrinalnye researches and pravoprimenitelnaja the practice, containing positions about civil-law position of minor patients.

Methodology and research methods. Research activity on a dissertation theme was spent according to an object in view within the limits of an object of research and with use of the methods necessary for achievement of the purpose, the decision of tasks in view.

During a writing of dissertational work general scientific methods of knowledge were used: an analysis method, a system method, a comparison method, a generalisation method, a dialectic method, a supervision method, a modelling method. The given methods were applied taking into account a civil orientation of a theme of the present research. So, for definition of the maintenance of a legal category «civil-law position of minor patients», revealings of features of civil-law position of separate groups of minor patients, establishments of specificity of the civil legal personality of minor patients are elderly till 14 years and from 14 years till 18 years the method of the analysis of structure of a studied legal category, a system-legal method, legallistic a method, rather-legal method and other methods of scientific knowledge have been involved.

At formation of the author's concept of treatment of concepts «the minor patient», «civil-law position of minor patients», «the civil legal personality of minor patients», «the medical legal personality» was applied a method of the complex legal analysis, and also generalisation of the studied theoretical and legislative material was spent. Revealing of problems of efficiency of separate ways of protection of the rights of minor patients as participants of civil matters in sphere of health protection and study of ways of their decision were carried out on the basis of methods of the comparative analysis of the legislation and the judiciary practice analysis. With a view of an estimation of a role of various subjects in protection of the civil rights of minor patients methods of the analysis of the legislation and generalisation of practice of its application also were used. The method of juridiko-technical modelling was applied to construction of model of civil-law regulation of relations on rendering to minor patients of medical aid and its introduction in the legislation of the Russian Federation in the form of the separate special standard legal act.

Empirical basis of dissertational research. The empirical basis includes decisions, definitions of the Constitutional Court of the Russian Federation, the decision, definition and reviews, generalisations of judiciary practice of the Supreme Court of the Russian Federation, judicial certificates, reviews and generalisations of judiciary practice of other vessels of the Russian Federation, and also the decision of the European Court under human rights, reports of the Representative under human rights in the Russian Federation, the Representative at the President of the Russian Federation by the rights of the child Authorized under human rights in Republic Tatarstan, the Representative by the rights of the child in Republic Tatarstan, data of the All-Russian popular front, etc.

Theoretical basis of dissertational research. Conclusions and the positions containing in proceedings of scientists-tsivilistov: J.N.Andreeva, E.G.Afanasevoj, A.G.Blinova, A.T.Bonner, I.G.Gal, L.T.Gibadullinoj, L.M.Dolinsky, A.I.Ivanchak, O.S.Ioffe, L.K.Elinoj, Z.V.Kamenevoj, L.O.Krasavchikovoj, P.V.Krasheninnikov, V.G.Kuranova, I.G.Lomakinoj, M.N.Maleinoj, A.A.Mohova, A.N.Pishchity, E.S.Sagalaevoj, O.V.Sadinoj, J.D.Sergeeva, L.B.Sitdikovoj, A.F.Surzhik, A.V.Tikhomirov, A.R.Shajahmetovoj, S.S.Shevchyuk, A.M.Erdelevsky, P.Ertmann, etc., experts in the field of the general theory of state and law: S.S.Alekseeva, N.V.Vitruka, L.D. Vojvodina, S.A.Komarova, V.A.Kuchinsky, A.I.Lepeshkina, E.A.Lukashevoj, V.A.Maslennikov, V.I.Novoselova, etc., experts of other branches of jurisprudence: P.P.Baranova, O.A.Bondarenko, N.E.Borisovoj, A.J.Ivanjushkina, E.B.Kazakovoj, E.A. Kapitonovoj, J.R.Orlovoj, A.M.Rabets, O.V.Chehomovoj, L.A.Ertel, etc., and also scientists in the field of medicine, psychology, pedagogics, economy have constituted a theoretical basis of research.

Scientific novelty of research. Scientific novelty of the present research consists that in it complete scientific representation about civil-law position of minor patients in the Russian Federation as participants of the complex legal relations arising in sphere of rendering of medical aid to citizens is generated. In this connection in addition and development of civil representations about civil-law position of minors, «civil-law position of minor patients» and standard fastening of concept of the minor patient are given reason introduction in conceptually-kategorialnyj device of a science of civil law of new legal categories «the minor patient». On the basis of the revealed features of the elements forming the maintenance of civil-law position of minor patients, its specific differentiation for the first time is spent and the practical importance is shown. It is established, that the civil legal personality of minor patients is elderly till 14 years and from 14 till 18 years has, besides specificity already considered in the legislation, and other features influencing application of separate ways of civil-law protection of the rights of minor patients and volume of competences of representatives on representation of legitimate interests of minor patients of subjects. On the basis of it the author's model of legal regulation of relations on rendering to minor patients of medical aid on a free, paid basis and interactions of bodies of guardianship, legal representatives, other subjects in sphere of protection of the civil rights of minor patients is developed, the system of offers on perfection of a civil-law design of the contract vozmezdnogo rendering of services, mechanisms of realisation and protection of the rights of minor patients as participants of civil matters in sphere of rendering of medical aid is developed.

Scientific novelty of the positions which are taken out on public protection, is concretised in below-mentioned conclusions:

1. Civil-law position of minor patients represents set of the priority rights of the patients who have not reached majority, in sphere of health protection of citizens, the property and personal non-property rights which are carried out by them in this sphere, and also duties, principles, guarantees of realisation and protection of their rights as patients. With a view of elimination having in the current legislation regulating legal relations with participation of minor patients, a blank attracting to mixture of the maintenance of concepts "patient-child", "children-patients", «children's patients», «the minor patient» and to decrease in level of legal guarantees of protection of the rights of minor patients, it is necessary to define legislatively concept «the minor patient» as the physical person who has not reached majority to whom with a view of life and health protection there is a medical aid or which has addressed personally or through legal representatives for reception of free medical aid, rendering of paid medical services or which is under medical supervision, participates in quality of the examinee at observance by the law of the established order in biomedical and others, directly connected with medical activity, researches irrespective of presence at it disease.

2. It is proved, that owing to impossibility of the account within the limits of the civil legislation or the Federal act from November, 21st, 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation» all specificity of the relations arising at rendering by the minor on a free or paid basis of medical aid, acceptance of the special subordinate legislation certificate is necessary. In this connection the project of the standard legal act regulating an order of rendering of free medical aid and granting of paid medical services to minor patients is developed.

4. It is proved, that with a view of the account of features of realisation of the civil rights of minor patients of different age groups expediently carrying out of their differentiation on the various bases: depending on volume of capacity, a state of health which are carried out by them of a kind of activity, mechanisms of reception of the informed voluntary consent to medical intervention and refusal of it, specificity of reception of the consent to transaction fulfilment about rendering of paid medical services and realisation of the rights by them at rendering of such services, a social status. Such classification will allow to consider at legislative level features of rendering of medical aid to minor patients of various groups.

5. It is given reason, that the personal non-property rights (the right to life and health, a right to health protection, the right to the informed voluntary consent to medical intervention and refusal of it, etc.), property rights (the right to payment of medical services, the right to reception of various medical services, etc.) minor patients, along with the special rights of the patient guaranteed by the state (the right to medical aid rendering according to usages, standards and rules, the right to refusal of medical intervention, etc.) Constitute a basis of civil-law position of minor patients. Thus their duties realised in civil matters in sphere of health protection of citizens, proizvodny from their rights also have the features connected with putting on of powers on care and preservation of health of children on the state, local governments, the medical organisations, legal representatives, and also with legislatively established presumption of conscientiousness, a rationality of parents, other legal representatives, guardianship bodies at decision-making on medical intervention or refusal of it.

6. It is proved, that the civil-law design vozmezdnogo rendering of services does not allow to consider all specificity of rendering of paid medical services by the minor, to delimit the contract of rendering of paid medical services from small household transactions and transactions under the order means of legal representatives or the third parties for achievement of definite purposes, and also to differentiate the informed voluntary consent to medical intervention or refusal of it of the consent to transaction fulfilment about rendering of paid medical services and to guarantee to minor patients realisation of their civil rights as customers of such services is more senior 14 years. With a view of legal regulation optimisation vozmezdnogo rendering by the minor of medical services it is necessary for the item 779 GK the Russian Federation to add with the special provision about rendering of paid medical services, having defined in it a subject and other essential treaty provisions about rendering of paid medical services to minor and full age persons.

7. Necessity of inclusion for Rules of rendering of free medical aid and granting of paid medical services to minor patients of position that legal representatives can give only the preliminary consent to making contract about rendering of paid medical services is given reason.

8. It is proved, that the mechanism of protection of civil and other rights of minor patients in the Russian Federation is necessary for improving owing to insufficient efficiency of civil-law ways of protection of their rights. The basic directions of perfection are necessary for carrying out by means of investment of minor patients is more senior 14 years (sick of a narcotism - is more senior 16 years) the right to definition at own discretion and with the consent of guardianship bodies in the informed voluntary consent to medical intervention and refusal of it of the voluntary full age representative to whom he, besides legal representatives, trusts representation of the interests at rendering to it of free medical aid and paid medical services, and also by means of legislative definition of the list of the data, which medical organisations are obliged to give to guardianship bodies, lawful and voluntary representatives of the minor patient at realisation of medical intervention.

9. The model of civil-law regulation of relations on rendering to minor patients of medical aid on a paid and free basis is constructed and its introduction in the legislation of the Russian Federation in the form of the separate special standard legal act including following conceptual positions about (about) is given reason:

Conditions of granting of paid medical services to minor patients;

Realisations of the information rights of minor patients;

Order of making contract and payment of medical services by minor patients;

Order of granting of paid medical services to minor patients;

Responsibility of the executor and the control over granting of paid medical services to minor patients.

The scientific and practical importance of dissertational research. The theoretical importance of research consists that results of dissertational research develop and supplement doktrinalnye representations about a legal status of the citizen, expand scientific representations about a legal status of physical persons in civil matters and civil-law position of the minors who are patients in sphere of rendering of medical aid, and also deepen scientific knowledge of civil-law protection and protection of the rights of minor patients.

From the practical point of view the basic conclusions of dissertational work can find application in the general-theoretical and branch scientific researches connected with problems of a legal status of the person and the citizen, a legal status of full age and minor persons. Separate offers can be used in legislative sphere.

Results of dissertational research are represented significant at teaching of courses «the Medical right», "Civil law", «Biomedical ethics», «Legal bases of the organisation of public health services», and also variety of other branch courses in law devoted to questions of a legal status of physical persons as subjects of civil matters.

Approbation of results of research. Dissertational work is prepared, discussed and recommended to protection on chair ecological, the law of master and servant and civil procedure FGAOU IN «the Kazan (Privolzhsky) federal university». Received during preparation of dissertational research conclusions have found reflexion in 28 published scientific articles, including in 8 leading reviewed the editions recommended by the Higher certifying commission of the Ministry of Education and Science of the Russian Federation for publication of the basic results of dissertational researches on competition of scientific degrees of the candidate and the doctor of sciences.

The developed positions were stated at various scientifically-practical conferences, round tables, scientific congresses, in particular at the All-Russia scientifically-practical conference (with the international participation) «the Medical right and bioethics ‒ guarantors of maintenance of the rights of citizens on health protection» (Kazan, on June, 3-4rd, 2011); II international scientifically-practical conference «the Rights and freedom of the person: problems of realisation, maintenance and protection» (Penza, on June, 5-6th, 2012); the all-Russian conference with the international participation «Medical formation-2013» (Moscow, 2013); V All-Russia congress (the National congress) by the medical right (Moscow, on November, 20-21th, 2013); III international scientifically-practical conference «Problems of appropriate rendering of medical aid (ekspertno-legal questions)» (Moscow, on December, 4-5th, 2014) ; The All-Russia scientifically-practical conference «Modern problems of the medical right, biomedical ethics and forensic medicine» (Kazan, on June, 2-4nd, 2016).

Besides, the author of the dissertation is a member of Ethical committee at Republic Tatarstan Ministry of Health, the lawyer of local Ethical committee FGBOU IN «Kazan GMU» Ministries of Health of the Russian Federation. The operational experience in them was used for preparation of the given research, and also during carrying out of legal and ethical examination of the documents which are made out for clinical tests of medical products with participation of minor patients in Republic Tatarstan.

The dissertation on the structure is generated in strict interrelation with set as by the purpose, research problems and presented by the introduction, three heads containing eight paragraphs, the conclusion, the literature and appendix list.

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A source: Hamitova Gulnara Mullanurovna. Civil-law position of minor patients in the Russian Federation the Dissertation on scientific degree competition The master of laws. Kazan - 2018. 2018

More on topic INTRODUCTION:

  1. in introduction
  2. INTRODUCTION
  3. INTRODUCTION
  4. 10.1. Introduction
  5. INTRODUCTION
  6. approbation and introduction of results.
  7. Introduction
  8. Introduction
  9. INTRODUCTION
  10. INTRODUCTION
  11. Introduction
  12. Introduction