Алексей Анисимов*

DOI: 10.46793/GP.1301.129A

А. Я. Рыженков, ПРИНЦИПЫ СЕМЕЙНОГО ПРАВА, Юурлитинформ, Москва, 2021.                                                       (A. Ja. Ryzhenkov, PRINCIPLES OF FAMILY LAW, Yurlitinform, Moscow, 2021.)

Рад примљен: 12. 09. 2022.

The publication of the monograph by the professor of Kalmyk State University (Russia) Anatoliy Ryzhenkov is a quite unique phenomenon, both on the scale of Russian legal science and in the scientific life of all other countries of the post-Soviet space. Russian legal doctrine pays much attention to the principles of law. It is considered generally accepted that the principles of law are the main ideas of a particular branch of law determining its scope and underlying the related institutions and legal rules. The principles of law have a significant importance for law-making and law enforcement since, for example, they point the ways for further development of legislation and are used by Russian courts to fill the gaps in legal regulation.

However, with respect to doctrinal studies, not all branch principles are in demand to the same extent: while the principles of civil, criminal, administrative and environmental law in the scientific doctrine of Russia and other former Soviet republics are studied in a detailed and convincing way, the principles of family law are much less fortunate. Although there are many scientific studies on individual principles of family law, their comprehensive and systematic consideration within the framework of a single monograph is implemented in Russia for the first time.

The understanding of the role and the importance of the principles of law in Russia and Serbia in general coincides: in our states the principles are perceived as rules-ideas, general rules that are specified in customary rules of law, contribute to the interpretation of the rules of law and promote the development of rule-making.[1]

Although the Family Code of Serbia of February 18, 2005 contains no special article dedicated to the principles of family law, a number of legal rules of the Family Code of Serbia in the Russian understanding of this term meet the criteria for the legal principle as a fundamental idea underlying the basis of family law as a branch of law. Article 2 of the Family Code of Serbia on the special protection of families by the state or Article 3 on the equality of spouses in families can be cited as such an example. Therefore, our two countries have much in common in these context. The relevance and timeliness of the monograph written by Anatoliy Ryzhenkov is due to the discussions currently taking place in Russia among scholars, politicians, legal practitioners and members of the public about the future priorities and areas of the development of Russian family law. Currently, the priorities of the state family policy are establishment of traditional family values and the family way of life, revival and preservation of spiritual and moral traditions in family relations and family education, creation of conditions for family well-being, responsible parenthood, strengthening of the authority of parents in families and society and support of the social sustainability of every family. In the implementation of the state family policy, the role of the family implies its active participation in its maintenance, education and upbringing of children, protection of the health of its members, care for elderly and disabled family members and creation of conditions for their longevity. Meanwhile, the traditional values format also has side effects, for example, it justifies the recent decriminalization of some forms of domestic violence in Russia and approves the violation of the rights of sexual minorities.

Discussion of these and many other important issues is possible, in the form of both the analysis of certain legal rules and the study of legal ideas (principles) underlying family law as a branch of Russian law. Professor Ryzhenkov focused his research efforts exactly in this area, obtaining, in my opinion, very interesting results that go beyond the scope of Russian law alone.

The monograph under review includes an introduction, a conclusion and four chapters divided into paragraphs. In the introduction, the author traditionally formulates the relevance and the hypothesis of the research and expresses his gratitude to the reviewers. In the first chapter titled "Family Law as a Branch of Law", the author considers the issues related to the position of family law in the system of Russian law, its subject and family legal relations, which are important from the prospective of Russian legal science, as well as provides his own classification of the principles of family law.

Speaking about the subject of family law, the author emphasizes a number of specific features of family relations, including special parties (parents, children, relatives), specific operative facts (marriage), additional requirements for contractual relations in the family (for marriage contracts), personal and trust-based nature of relations, etc. Representatives of various schools of law both in Russia and in other countries of the post-Soviet space assess all of them in an ambiguous way in their works.

In my opinion, we should agree with the author that the subject of legal regulation of family relations becomes more complex now. For example, the widespread use of reproductive technologies (in particular, surrogacy) requires adjustment in the importance of the principle of consanguinity (for such parents). This means that the discussion about the interaction of the rules of family law and other branches of law will be continued.

The separate paragraph dedicated to family legal relations appears quite logical as well – the category of legal relations reveals all the main sides of law in Russian legal science: subjective and objective, formal and content-related, legal consciousness and legal being. This category makes it possible to consider them in their interrelation and interaction and therefore takes us beyond the purely legal field (of legal rules, legal rights and duties). The doctrine of legal relations shows law as simultaneously both essence and a phenomenon in their dialectical unity, which was applied to family legal relations. The author carries out a detailed analysis of the subject, the object and the content of family legal relations, identifies the distinctive features of operative facts leading to the emergence, modification and termination of family rights and duties.

In the third paragraph of the first chapter, the author provides an interesting classification of the principles of family law. In fact, classification is one of the methods of legal technique consisting in division of the enshrined legal provisions according to a common criterion into particular categories (groups, types), it is of a regulatory nature and its purpose is understanding and use of legal institutions and rules in a uniform way.

Therefore, due to classification, certain legal phenomena and processes can be made clear and available for all, which is especially important at the stage of the law-making process. Classification as an element of legal technique and a method of ordering legal material has its own specific features in different branches of private and public law including family law. After the analysis of the provisions of the scientific doctrine as well as rule-making approaches of some former Soviet republics, Anatoliy Ryzhenkov proposes his own classification of the principles of family law based on the traditional ideas about the types of legal principles: general legal, interbranch, branch and institutional (of individual legal institutions).

Having rightfully mentioned that there are no specific features of the general branch principles within family law and having pointed to the lack of institutional principles in family law, the author divides the principles set out in Article 1 of the Family Code of the Russian Federation into two classification groups: interbranch and branch, adding that, along with the enshrined principles, there are also doctrinally derived principles of law that can serve as a kind of reserve for the legislator and a source to supplement the list of regulatory rules. Here, however, it is appropriate to note that the Russian legislator clearly structures the principles and separates them one from another in a number of codes and federal laws. However, this is not done in Article 1 of the Family Code of the Russian Federation, the principles are just listed in it. This deficit of legal technique gives rise to the question, often discussed in scientific legal doctrine, of how many principles there are in Russian family law, and Anatoliy Ryzhenkov substantiates his position quite convincingly in the book. The second chapter of the monograph is dedicated to the analysis of interbranch principles of Russian family law. The title of this and two next chapters of the book originate directly from the provided classification of the principles of family law. The distinctive feature of the interbranch principles of family law as the main ideas of the branch is that the mechanism of their implementation requires participation of not only rules of the Family Code of the Russian Federation and other regulations of the family legislation, it also relies upon the rules of other branches of Russian law: constitutional, civil, administrative, etc. Therefore, the implementation of these principles involves mandatory and discretionary rules included in various regulations, which sometimes come into conflict.

Within the general overview of this chapter, it should be noted that the author distinguishes the following principles within this classification group: the principle of equal rights of spouses in the family, the principle of state protection of the family, maternity, paternity and childhood, the principle of prohibiting all forms of restrictions on the rights of citizens entering into marriage and being in family relations on social, racial, national, linguistic or religious grounds, the principle of inadmissibility of arbitrary interference of anyone in family affairs, free exercise of rights by family members and the principle of the possibility of judicial protection of family rights. Without trying to retell the content of the chapter, I would like to draw attention to the following aspects:

- analyzing the principle of equal rights of spouses, the author pays attention to the need to ensure also equal duties of spouses, rightfully mentioning that this part of the principle is not reflected well in the Family Code of the Russian Federation;

- the author distinguishes rules that impede the implementation of family principles and are poorly drafted in terms of the standards of legal technique. A typical example here is surrogacy rules that do not require any obligatory consent of the husband of the surrogate mother to her participation in surrogacy programs. In addition, if the surrogate mother decides not to give the child to her customers under the contract, by virtue of the direct presumptions of the Family Code of the Russian Federation her husband will become the father of that child, which violates his rights and requires that the law be amended to take his opinion into account;

- in contrast to many other federal laws, the Family Code does not contain a special article describing the terms used in the Code. Consequently, in a legal sense, it is not very clear what should be understood as family, marriage, maternity, paternity, childhood, etc. This gives rise to a lot of terminological discussions and impedes law enforcement practice. In this regard, we should welcome the contribution of A. Ryzhenkov to this discussion and the formulation of a number of such concepts, which may be useful to the legislator;

- the contribution of A. Ryzhenkov to the interpretation of many evaluative categories that do not have a clear regulatory definition is very important. The category of arbitrary interference in family affairs is a typical example here;

- considering the limits of state intervention in family affairs, the author notes that the decriminalization of family violence in Russia in February 2017 (the relevant law transferred beatings inflicted on close relatives from the category of criminal offenses to administrative offenses if such an offense is committed for the first time) was carried out paradoxically in compliance with with the principle of Article 1 of the Family Code of the Russian Federation since it reduces arbitrary intervention of the state in family affairs, in this case in terms of domestic violence. However, this law gave rise to another debate – where the line between the public interest of the state and the private interest of the family is, where the line between arbitrariness and legitimate state intervention in family affairs is. After the analysis of different points of view, the author criticizes this "reform" and calls for strengthening legal measures aimed at combating domestic violence in families;

- the author supports the system of specialized family courts existing in a number of countries and proves its applicability to Russia as well;

- speaking about judicial protection of family rights, the author pays attention to the issue of protecting the rights of minorities, which is very relevant to Russia. In Russia, both society and the state (by law) traditionally deny the family rights of sexual minorities (same-sex couples), although the rights of other minorities are recognized (for example, small indigenous peoples). Meanwhile, A. Ryzhenkov gives no consistent assessment of this situation, he does not consider it discriminatory against the rights of same-sex couples, which complies with the provisions of Russian legislation, however, it is reasonably qualified as violation of human rights in many countries.

In the third chapter, A. Ryzhenkov studies the branch principles of family law, i.e., the principles with the implementation mechanism which is described directly in the Family Code of the Russian Federation. Among these principles, the author reasonably distinguishes the principle of the need to strengthen the family, build family relations based on the feelings of mutual love and respect, mutual assistance and responsibility to the family from the part of all its members, the resolution of internal family issues by mutual consent, the principle of the obligation to marry only in civil registry offices, the principle of the voluntary union of a man and a woman, the principle of priority of family upbringing of children, care of their welfare and development and the principle of priority protection of the rights and interests of minors and unemployable members of the family.

Let us point out the following most interesting positions of the author:

- the author raises a very interesting question about the relationship between morality and law, trying to determine which types of social relations are regulated by the rules of family law or by the rules of morality and why this is the case. In this regard, the author gives an interesting example from judicial practice about the husband's adultery as a ground for divorce due to "the loss of love" although there is no such a ground in the Family Code of the Russia. The author also expresses an interesting thought about the historical transformation of moral values, which is currently evidenced by the emergence of civil unions, where young people live together without marriage registration;

- the book includes interesting facts of the implementation of the principles of family law arising from scientific and technological progress. For example, the author tells about the "wedding in space" held in 2003 between Russian cosmonaut Yuri Malenchenko while he was in Earth orbit and Ekaterina Dmitrieva, an American of Russian descent, while she was on Earth. The groom attended the ceremony virtually and his lawyer signed the marriage certificate instead of him (brides or grooms can be absent from the wedding according to the laws of the State of Texas, United States). The very idea of the "wedding in space" was a total surprise for the Russian authorities as they expressed their displeasure. All this is indicative of the demand for new family principles-ideas and rules;

- in case one of the spouses changes gender, there is a same-sex family, which is prohibited by the Family Code of the Russian Federation, however, there is no mechanism to solve this situation;

- studying the principle of voluntary marriage in the comparative legal aspect, A. Ryzhenkov draws attention to an interesting fact: the Soviet criminal codes punished for forcing women into marriage although actually men were often forced into marriage (in case of a girl's pregnancy, relatives on one side or even both sides);

- attention is drawn to the role of the Constitutional Court of the Russian Federation in eliminating obstacles to the implementation of the principle of priority family upbringing of children. In particular, the author analyzes the decision of the Court that reduced the number of restrictions and prohibitions established by law for adoptive parents, which made it possible to fully implement the relevant principle.

In the fourth chapter of the monograph, A. Ryzhenkov studies the doctrinal principles of family law. These principles are not specified in the text of the Family Code of the Russian Federation, however, the analysis of the family legislation made it possible for the author to substantiate the need to supplement Article 1 of the Family Code of the Russian Federation with three new principles: the principle of liability for violation of the rules of family law, the principle of freedom for spouses to independently determine the regimes of their property and the principle of alimony obligations of spouses, parents and children as well as other family members. The following conclusions are drawn:

- the principles enshrined in the legislation (set forth in specific rules) perform a regulatory function. In contrast to them, the doctrinal principles perform other functions: interpretative, ideological and partially stimulating. The doctrinal principles have an influence on the further development of all legislation branches. In his book, the author consistently proves that the doctrinal principles are the basic legal ideas formulated by legal scholars, they are part of the scientific legal consciousness expressed in textual form, not binding on the subjects of law, and they act as scientifically grounded reference points in the course of legal regulation of family social relations;

- having participated in a more framework discussion about the increase in the number of independent types of legal liability, the author substantiates the conclusion that there is a separate type of liability, family legal liability, in terms of which the main sanction is the deprivation or restriction of parental rights, adoption cancellation or marriage annulment (for example, in case of sham marriages). There are no such sanctions in terms of other types (civil, administrative, criminal, etc.) of legal liability. The author's conclusions about the relationship between the categories of protection measures and liability are quite interesting;

- with respect to the implementation of the principle of freedom for spouses to independently determine the regimes of their property, the author expresses an interesting position regarding the division of a family business in case of divorce.

Therefore, the monograph of A. Ryzhenkov on the principles of Russian family law is a very serious and interesting study dedicated to the important theoretical and practical issue related to increasing the effectiveness of the system of family law principles as the basic ideas underlying this branch of law. The book includes an analysis of the legal technique for constructing the principles of family law and shows a detailed mechanism of their practical implementation with the help of common binding legal rules-prescriptions. The system of family law principles and the mechanism of their implementation is strongly influenced by a number of non-legal factors related to scientific and technological progress (gender reassignment, surrogacy), foreign policy factors (bans and restrictions on the adoption of Russian children by foreigners) as well as moral ideas developed in Russian society in a certain historical period.

In the course of the research, the author analyzes problems and conflicts within the framework of both the system of family law principles and the mechanism of their implementation and expresses constructive suggestions to eliminate the identified drawbacks. The book is characterized by the plain and logical style of narration of the material and the effort of the author to make complex problems of modern family law understandable by the readers (also for those who are not lawyers). It appears that the conclusions of the author will certainly be in demand in the scientific activity, in the educational process for teaching family law, they will be used also by the legislator and the highest courts in the preparation of instructions for the practice of application of the rules of family law. The publication of the monograph written by A. Ryzhenkov is a notable event in legal science, which I hope will be received with interest by a wide readership. The monograph stimulates reflection on the future trends and prospects for the development of the science of family law, however, it does not mean that the issues to which this book is dedicated are exhausted. This is indicative of the need for further development of the theory and practice of family law, the search for new legislative approaches aimed at improving the system of principles and guarantees of the family rights of citizens in general. Unfortunately, this book is published only in Russian and has not been yet translated into other languages, which, in my opinion, must be resolved.

---

* Professor of Department of Constitutional and Administrative Law Volgograd Institute of Management – Branch of the Russian Presidential Academy of National Economy and Public Administration, doctor of juridical sciences, anisimovap@mail.ru

[1] I came to this conclusion after reading two articles written by Serbian legal scholars: Бојан Спаић, «Два поимања правних принципа», Анали Правног факултета у Београду, година LXV, 1/2017, 109-130; Милош Прица, «Правни принципи у поретку правне државе: канони правног поретка и «унутрашњег правног система», Зборник радова Правног факултета у Нишу, Број 80, Година LVII, 2018, 135-180.