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§ 4. The right, applicable to maintenance obligations according to international agreements of the Russian Federation

The convention on the rights of the child, 4425 General Assemblies accepted by the Resolution from November, 20th, 1989 76 in the name of the state-participants, in item 27 recognises the common right of the child on a standard of living necessary for physical, intellectual, spiritual, moral and social development of the child (item 27 item 1).

Responsibility for maintenance of this standard of living is born by parents and (or) other persons who are bringing up the child. Thus responsibility of parents is considered as the basic. However it is carried out by parents within the abilities and financial possibilities (item 2).

The State-participants take necessary measures on rendering assistance to parents and other persons who are bringing up children, and in case of need render material aid and support programs, especially concerning maintenance with a food, clothes and habitation (item 3).

The states incur a duty to take all necessary measures for maintenance of restoration of the maintenance of the child with parents or other persons bearing financial responsibility for the child, as in the state-participant, and from abroad. In particular, if the person bearing financial responsibility for the child, and the child live in the different states, the state-participants promote joining to international agreements or the conclusion of such agreements, and also achievement of other corresponding arrangements (item 27 item 4).

Russia has joined this Convention, but till now has not joined the international conventions regulating alimentnye legal relations.

The convention on the right, applicable to maintenance obligations concerning children, (the Hague, on October, 24th, 1956) has become effective on January, 1st, 1961 Russia in the Convention does not participate. The sphere of action of the document mentions only alimentnye relations of parents concerning the child as whom the Convention considers the person who is not reaching age of 21 years and not married. The convention is applied only to cases when the right specified in item 1 (the right of usual residing of the child), is the right of one of the Agreeing States.

The convention of 1956 defines alimentnyj the statute (it the law of a place of usual residing of the child is) and sphere of application of this statute. At change of a place of usual residing of the child the right of new usual residing of the child since the moment when there was a change is applied. «The place of usual residing», used in Conventions, and the term "place of permanent residence" used in the Russian legislation is obvious, that the term, it is necessary to understand as synonyms.

The action sphere alimentnogo the statute joins such questions, as: whether the child can apply for reception of the alimony, in what size and from whom; who is proxy to sue about the alimony and during what time.

As the subsidiary statute to maintenance obligations of parents concerning children the right of the Agreeing State if it declares application of its own right (item 2) can be applied. However such statement can make the state under three conditions:

(a) The claim is shown within jurisdiction of this state;

(b) The person from whom the alimony be required, and the child have citizenship of this state;

(c) The person from whom the alimony will be obtained on demand, in this state takes place the usual residing.

Convention article 3 is based on a principle of the optimum right, protecting the child as weakness in legal relation, namely if the right of a usual place of stay of the child does not give it the right to the alimony the applicable law is defined by means of conflict rules of the country of court.

The convention allows court in which the claim is made, to apply the reservation on the public policy: be right, specified by the present Convention as applicable, can it is excluded only in the event that its application obviously not compatibly with the state public policy in which the claim (item 4) is made.

Any Agreeing State can at signing, ratification or joining to the present Convention to make the reservation on its non-use to adopted children. This rule of the Convention proves once again correctness of our thought stated a little earlier, that the right, applicable to maintenance obligations of adoptive fathers and adopted, should be established the special conflict rule (or anyway about these subjects of maintenance obligations the reservation in the conflict rule regulating maintenance obligations of parents and children) should be made.

The Hague convention on the right, applicable to maintenance obligations, from

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On October, 2nd, 1973 Germany, Greece, Spain, Italy, Luxembourg, the Netherlands, Portugal, Turkey, France, Switzerland, Japan ratified and

Other

In relations between participants the given Convention of 1973 replaces the Convention on the right, applicable to maintenance obligations concerning children, from October, 24th, 1956

Russia does not participate neither in this Convention, nor in others "alimentnyh" conventions that it is impossible to recognise correct even owing to those international obligations which she has incurred as the participant of the New York convention on the rights of the child from November, 20th, 1989

Positions the Convention of 1973 are applied to the maintenance obligations arising from family relations, paternity or motherhood, marriage or property, including maintenance obligations concerning the child born out of wedlock (item 1). The document covers a circle practically all possible subjects of maintenance obligations.

The convention starts with a uniform conflict principle of a choice of an applicable law to maintenance obligations irrespective of their subject structure - the domestic law of usual residing of the creditor receiving the alimony (item 4) is applicable. It is represented, that such decision of a question most successfully as though this connecting factor not always specifies in the right with which alimentnoe legal relation is most closely connected, it considers a principle of the optimum right (a principle of protection of weakness).

According to Convention item 7 in a case alimentnogo obligations between the persons connected by the collateral consanguinity or property, the debtor can challenge the petition of the creditor on the ground that such obligation does not exist by the right of their general citizenship or in the absence of the general citizenship under the domestic law of usual residing of the debtor.

It is represented, that this position is dictated also by a principle of the optimum right, but this principle here protects interests of the debtor, instead of vzyskatelja the alimony. The principle is dictated also by the law most a close connection, after all the law of the general citizenship the same as also the residence of the debtor, characterises more all a close connection of legal relation with the law and order of the concrete state.

In some countries the legislation limits a circle of subjects of maintenance obligations, not including in them relatives on a lateral line and the persons connected by relations of property.

The convention of 1973 especially allocates maintenance obligations between the dissolved spouses (on terminology of the Russian family

Legislations «the former spouses»), providing application to them of the right, applicable to divorce.

As we already spoke, the Russian right does not allocate the former spouses in the conflict rules regulating maintenance obligations. It causes difficulties in interpretation. Whether it means, that they should be considered in the same row with spouses or they should be carried to other members of a family. But other interpretation is quite logical also. The applicable law choice to these persons is not regulated at all by the Russian right. The applicable law choice here is possible under the legal analogy or according to item 2 of item 1186 GK: if according to item 1 it is impossible to define the right which is coming under to application, the country right with which the civil-law relation complicated by a foreign element, is most closely connected is applied. However for application of this article we besides will need to resort to legal analogy institute.

The analogy here is possible, as in the Family code of the Russian Federation (gl. 14) the former spouses can be subjects of maintenance obligations (as addressees of the alimony) and consequently, absence of these subjects in a law of conflict testifies only to a legislation blank, but not about imperative desire of the legislator to exclude them from among possible addressees of the alimony.

It is necessary to pay attention to formulations. The Convention formulation - «the dissolved spouses» Is represented to more successful. Former can be and spouses in connection with death of the second spouse, in that case, naturally, speech does not go at all about the alimony.

The convention of 1973 provides among other some question, entering into sphere of action of an applicable law (item 10). The legislation, applicable to

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To maintenance obligations, defines interalia:

1) whether can, in what degree and from whom the creditor to demand the alimony;

2) who has the right to commence suit about the alimony and to appoint the period of limitation for commencing a suit;

3) the size of the obligation of the debtor paying the alimony when the state body achieves compensation of the grants paid to the creditor.

It is obvious, that not exhaustive list of questions, on what here is given the reservation interalia testifies.

The convention of 1973 establishes an imperative rule that in application be right, defined by the Convention, can is given up, only if it obviously is not compatible to the public policy, and also an imperative rule that requirements of the creditor and means of the debtor should be taken into consideration at definition of the sum of the alimony even if the applicable law provides other (item 11).

Last norm of the material maintenance is formulated as the special mandatory provision applied irrespective of the maintenance of an applicable law. Thus the Convention does not do an exception for maintenance obligations of parents and their minor children. This norm is applied in all maintenance obligations, irrespective of their subject structure.

Considering various understanding of categories of "requirements" and "means" in the different countries, such rule is interpreted in them differently, that can lead to unfair decisions from the point of view of interests of the creditor. An evident illustration of that, how much international standards differ from the Russian validity, the example resulted serves

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N.M.Miroshinoj.

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See: Miroshina N.M.problem of collecting of the alimony from the debtors who are outside of Russia//the International execution of judgements. Mutual experience: the general problems and prospects. SPb.: Neva, 2007. With. 73.


The Russian citizen has submitted the recovery suit of the alimony on behalf of the child to Family court of Germany on the place of residence the father (court of competent jurisdiction). Despite rather long proceeding, German court has passed the decision on impossibility of collecting of the alimony, as owing to paragraph 1603

The Civil code of Germany is not obliged to give the maintenance the person whom taking into account other obligations not in a condition to give the maintenance without a damage to the own corresponding maintenance. As it has been established by court, the monthly average income of the debtor constituted in the pure state about 2 000 euros.

The convention on legal aid and legal relations on civil, family and to criminal cases (Minsk, on January, 22nd, 1993) and the Report from 28

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March, 1997 (further - the Minsk convention) 80. In it along with other questions applicable law questions under family proceedings (section II, a part III, item 26-37) are solved.

The Kishinev convention on legal aid and legal relations on civil, family and to criminal cases urged to replace this Convention from

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On October, 7th, 2002 81 Minsk convention operates now concerning the countries which are not participating in the Kishinev convention, which has become effective on April, 27th, 2004 Its participants (for 2011) Azerbaijan and Kazakhstan (since April, 27th, 2004 are Belarus,); Kirghizia (since October, 1st, 2004); Armenia (since February, 19th, 2005); Tajikistan (since May, 17th, 2005). Russia though has signed the Kishinev convention while it did not ratify. On the questions considered further, no different interpretations in both Conventions are present.

The Minsk convention contains terms «obligations under the maintenance» and "maintenance obligations" (as synonymous) only in item 32 «Legal relations

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Parents and children »(according to item 35 of the Kishinev convention» 82).

80 See: SZ the Russian Federation. 1995. № 17, item 1472.

Obligations of parents under the maintenance of children are defined by the legislation of the Agreeing State in which territory there is their joint residence. Thus, as the general connecting factor to these relations the law of a constant joint residence of parents and the child is applied. The subsidiary binding to the state legislation, which citizenship has the child, is applied in case parents and children have no joint residence. At last, on request of the claimant to maintenance obligations the legislation of the Agreeing State in which territory the child constantly lives can be applied.

Contracting parties help each other in search of the respondent on affairs about collecting of the alimony when there is a basis to believe, that the respondent is in territory of other Contracting party, and the court takes out definition about the announcement of its search (item 32 item 5 (35) Conventions).

The maintenance of item 2 of item 32 is beyond the maintenance designated in heading of article «Legal relations of parents and children». In it maintenance obligations of full age children concerning their parents and maintenance obligations of other members of a family also are settled.

General binding in these relations also is the legislation of the Contracting party in which territory they had a joint residence. As a subsidiary binding the legislation of the Contracting party which citizen is the claimant is applied in the absence of a joint residence.

The Minsk convention has no special conflict rule concerning maintenance obligations between spouses, but defines an applicable law to any personal and property legal relations of spouses - item 27 (item 30). As well as concerning formulations of item 161 SK the Russian Federations, here can be stated doubts and various interpretation concerning that, this article to maintenance obligations is applied or it concerns only relations of spouses concerning property. These doubts are especially powerful, that in the Convention there is no the norm similar to item 2 of item 161 in which there is a direct mention of maintenance obligations and sending to item 1 of item 161 SK the Russian Federation.

Convention article 27 (30) contains the whole cascade of connecting factors depending on that, spouses have a joint residence or the general citizenship. A general binding in legal relations of spouses is the legislation of the Contracting party in which territory of the spouse have a joint residence (item 1).

If spouses live in territory of different Contracting parties, but thus both spouses have the same citizenship, their personal and property legal relations are defined under the legislation of that Contracting party which citizens they are (item 2).

If spouses have citizenship of different Contracting parties, and live in territory of different Contracting parties their personal and property legal relations are defined under the legislation of the Contracting party in which territory they had last joint residence (item 4).

If spouses had no joint residence in territories of Contracting parties, the legislation of the Contracting party which establishment considers case (item 4) is applied.

Thus, to legal relations of spouses depending on the conditions named in the Convention, various connecting factors can be applied: the law of a joint residence, the law of the general citizenship, the law of last joint residence, the lex fori.

Attracts attention that fact, that though the Minsk convention does not consider modern lines of development of legal regulation of private-law relations and in particular, family-marriage relations (absence of such conflict principles as the close connection law literally, a principle of the optimum right, will freedom in family-marital relationships), the Kishinev convention duplicates in this respect the text of the Minsk convention. It at least causes bewilderment. If the Agreeing states put before themselves a problem to add the international regulation on criminal cases (in this part there are essential distinctions with the Minsk convention) such problem could be executed acceptance of the corresponding Report to the Minsk convention.

Conflict regulation of family legal relations with a foreign element, including maintenance obligations as property family legal relations is carried out and by means of bilateral contracts about legal aid. Not all dogovory the given kind is contained by conflict rules. In the majority of these contracts object and the purpose - legal aid on civil cases (where family proceedings join also) both a recognition and execution of the judicial

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Decisions.

Conflict regulation of family legal relations contains in bilateral contracts of the Russian Federation with the CIS countries. The Russian Federation has concluded Dogovory about legal aid and legal relations with the Azerbaijan Republic from December, 22nd, 1992, Republic Kyrgyzstan from September, 14th, 1992, from February, 25th, 1993 All three contracts have been concluded by Republic Moldova before coming into force of the Minsk convention. After the conclusion of the Minsk convention bilateral contracts about legal aid with the CIS countries Russia any more заключала84.

All three Contracts have, basically, identical conflict regulation of maintenance obligations. In them maintenance obligations are not allocated, but property relations between spouses, parents and children are regulated as a whole. Connecting factors correspond to what are applied in the Minsk convention.

Unlike Minsk convention Dogovory contain the norm which is absent in the Convention on legal relations between the child born out of wedlock and his mother and the father. They are defined by the legislation of the Contracting party which citizen is the child.

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For this reason the basic characteristic of bilateral contracts about legal aid will be given in § 3 chapters 3 of the present work. Here conflict rules of bilateral contracts under family proceedings will be analysed.

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84Здесь we do not concern Agreements between the Russian Federation and Byelorussia about an order of mutual execution of judicial certificates of arbitration courts of the Russian Federation and economic vessels of Byelorussia from January, 17th, 2001


It is necessary to recognise this norm excessive. Hardly it is possible to recognise its successful and necessary. First, it contradicts one of the corner

Principles of the Russian family law - to a principle of equality of children born in marriage and out of marriage. Secondly, as the practice shows, now many families live in a so-called civil marriage, that is without marriage registration that is why have the general joint residence. All situations keep within the formulation of one article regulating an applicable law to legal relations between parents and children without instructions on presence of marriage between parents. As we see, these Dogovory have even more lacks of conflict regulation alimentnyh relations, than the Minsk convention. In particular, in them there is no the rule brought by Report 1997, on the right, applicable to maintenance obligations of other members of a family.

Russia has concluded Dogovory about legal aid with Латвией85, Литвой86,

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Estonia. In them applicable law questions to the property legal relations complicated by a foreign element, between spouses, parents and children dare the same as and in Contracts on legal aid with the CIS countries.

The same questions dare in variety, but not in everything, Contracts on legal aid. As an example we will consider Dogovory the Russian Federation with Hungary and Poland.

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The contract between the Russian Federation and the Latvian Republic about legal aid and legal relations on civil, family and to criminal cases from February, 3rd, 1993

86Договор between the Russian Federation and the Lithuanian Republic about legal aid and legal relations on civil, family and to criminal cases from July, 21st, 1992

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The contract between the Union of the Soviet Socialist republics and the Hungarian National Republic about legal aid rendering on civil, family and to criminal cases has been concluded on July, 15th, 1958 (in edition of the Report from October, 19th, 1971). In it the applicable law choice under family proceedings, in particular, property relations between spouses, parents and children where it is necessary to carry and maintenance obligations between these persons though the term "maintenance obligations" in the Contract is not mentioned is in detail enough regulated.

It is necessary to think, that maintenance obligations between spouses as their property relations are settled the item 25/B (in red. The report). Its maintenance coincides with item 27 of the Minsk convention, except one moment: in the Contract there is no conflict regulation of a situation, at which spouses, having various citizenship and living in territory of the different countries, had no joint residence.

Property relations between parents and children are defined by the legislation of that Contracting party in which territory they have a joint residence.

If the residence of parents or one of them is on territories of one Contracting party, and a residence of the child - in territory of other Contracting party legal relations between them are defined by the legislation of the Contracting party which citizen is the child.

Owing to the item 28/B if the child is the citizen of one Contracting party, and lives on territories of other Contracting party and the legislation of this Party more favorably for the child the legislation of this Contracting party is applied. Thus, in this Contract unlike others the principle of more favorable right protecting weakness in legal relation what, undoubtedly, the child is is applied.

The contract contains article 28/A, regulating the right, applicable to legal relations between the child who was born from persons, not consisting in the registered marriage, and his mother or the father. These relations are defined by the legislation of the Contracting party which citizen is the child.

The contract between the Russian Federation and Republic Poland about legal aid and legal relations on civil and to criminal cases from September, 16th, 1996 contains unification of conflict rules at the bilateral level, regulating family legal relations. Maintenance obligations are not allocated. The question on them dares concerning all property relations of spouses, and also parents and children.

Personal and property relations of spouses depending on a number of conditions are defined by the legislation of the Contracting party in which territory of the spouse have a residence, citizenship of spouses, the lex fori (item 25).

Legal relations between parents and children are defined by the legislation of that Contracting party in which territory they have a joint residence (item 28).

If the residence someone from parents and children is in territory of other Contracting party legal relations between them are defined by the legislation of the Contracting party which citizen is the child (item 28).

The contract contains article which is absent in contracts, concluded earlier. Article 29 provides «other cases of collecting of the alimony». In other cases of collecting of the alimony the legislation of the Contracting party in which territory lives the person applying for reception of the alimony is applied. This legislation should answer a question, whether the claimant can apply for reception of the alimony, if yes, from whom and in what size.

It is impossible to recognise clearness of formulations of this Contract, after all earlier it was a question about personal and property relations. The term "alimony" was not mentioned anywhere. Not clearly, how to understand «other cases of collecting of the alimony». About what cases here there is a speech: about the full age children, the dissolved spouses, other members of a family? In our opinion, to conflict regulation of maintenance obligations should be given bolshee attention, and conflict rules demand more concrete and accurate formulations as there is a universal Hague convention on the right, applicable to maintenance obligations, 1973, considered by us earlier which solves all these questions much more successfully.

The analysis of international agreements, including bilateral contracts of the Russian Federation, allows to draw a conclusion, that Russia does not give due attention to the international cooperation in sphere of maintenance obligations. It leaves traces and on the national conflict legislation in which new tendencies in the international private law concerning a choice of an applicable law and application of the foreign legislation concerning maintenance obligations are not considered.

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A source: Trailer Gennady Vladimirovich. MAINTENANCE OBLIGATIONS In the INTERNATIONAL PRIVATE LAW. The DISSERTATION on competition of a scientific degree of the master of laws. Saratov -.

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