CC BY
42LEGAL ISSUES ON REVOKING ADOPTION: THEORY AND PRACTICE
Atalykova G.,
Senior Lecturer of the South Kazakhstan State University named after M. Auezov, Doctor of Philosophy.
Ibratova F.,
Associate Professor of the Tashkent State Law University, Ph.D.
Esanova Z. Professor of the Tashkent State Law University, Doctor of Law
Abstract
The article examines the social significance of invalidation of adoption, theoretical and practical aspects of cancellation and invalidation, legal differences in the invalidity of adoption from its cancellation. It is proposed to make an addition to the Civil Procedure Code of the Republic of Uzbekistan "Chapter 292. Invalidation of the adoption of a child".
Keywords: invalidation, adoption, orphans, protection of civil rights, civil procedure, cancellation of adoption.
The Law of the Republic of Uzbekistan "On Amendments and Additions to Certain Legislative Acts of the Republic of Uzbekistan" dated April 30, 2013 No.ZRU-352, Article 168 of the Investigative Committee of the Republic of Uzbekistan on invalidating adoption was canceled16. In the resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan "On the practice of the application of legislation by courts in cases of adoption" dated December 11, 2013 No. No. 21, it is explained, if a judicial authority is declared invalid, adoption can only take place as determined by the loss of force by the Law of the Republic of Uzbekistan dated April 30, 2013, Article 168 of the Family Code, and only in relation to the child whose child was adopted before that time: if the adoption decision was based on false documents; if the adoption is in fictitious form; in case of adoption of an adult person; when the adopted child is not eligible for adoption in accordance with article 152 of the Family Code and in other cases17.
Both legal mechanisms remain in the legislation of Kazakhstan: the recognition of the adoption as invalid and the cancellation of the adoption.
Noting the social significance of invalidating adoption, B.A. Dzhandarbek argues that invalidation is one of the most significant of the limited choice of means, which serves to protect the legal interests of the adopted child, in the hands of unscrupulous people, in rare cases, from criminals. The danger is especially se-
16 Family Code of the Republic of Uzbekistan. Vedomosti of the Oliy Majlis of the Republic of Uzbekistan, 1998, appendix to No. 5-6; 2003, no. 1, art. 8; 2004, No. 1-2, Art. eighteen.
17 Resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan "On the practice of the courts' application of legislation on adoption cases" dated December 11, 2013 No. 21. http://lex.uz/docs/2307236
18 Dzhandarbek B.A. Legal framework for adoption in the Re-
public of Kazakhstan (theory and practice). Diss. for the de-
gree of candidate of legal sciences. The Republic of Kazakh-
stan. Almaty city. 2002 . - P. 111.
rious in the case of adoption by foreign nationals: international adoption. Publications appearing in the media testify to the phenomenon of transnational crime, one of the objects of which is18.
Article 92 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and the Family" sets out the main conditions (reasons) for declaring an adoption invalid. It is recognized as invalid in the following cases: 1) the decision on adoption was made on the basis of forged documents; 2) adoption without parental consent, as required by law; 3) adoption by marriage without the consent of the other spouse; 4) adoption, by spouses, one of whom is recognized by the court as incompetent or partially capable19.
One of the most important problems, which is significant in theoretical and practical aspects20, is to identify the true correlation between the concepts of revocation and invalidation. It should be noted that earlier literature suggested that in principle one term could be considered "revocation of adoption". This path has gone into modern Russian legislation, where there is no concept of invalidation of adoption21.
German law also allows the possibility of invalidating an adoption. In Germany, an adoption can only be declared invalid in strictly established cases, for example, the lack of prior parental consent, as well as the adoption was obtained through deception, deception and threats (according to statistics, the number of these processes compared to the total number of adoptions is
19 Code of the Republic of Kazakhstan "On marriage (matrimony) and family" dated December 26, 2011 No. 518-IV ЗРК // Bulletin of the Parliament of the Republic of Kazakhstan, 2011, December, No. 22 (2599), art. 174.
20 Ibratova F. B. et al. Special features of modern legal systems: cases and collisions. - 2017.
21 Эсанова З. Н. РАССМОТРЕНИЕ ДЕЛ ОБ УСЫНОВЛЕНИИ В ГРАЖДАНСКИХ СУДАХ (НА ПРИМЕРЕ ЗАКОНОДАТЕЛЬСТВА РЕСПУБЛИКИ УЗБЕКИСТАН) //ПРОБЛЕМЫ ТЕОРИИ И ПРАКТИКИ СОВРЕМЕННОЙ НАУКИ. - 2020. - С. 547-552.
10%). In this case, the judicial authority will declare the adoption illegal. The statute of limitations for these cases is three years. During this time, a reverse absorption procedure is possible. In Germany, this is called de-adoption. This happens primarily in the interests of the child, when mutual understanding does not develop between him and his new parents, and his future life in a new family becomes unbearable. The result of such a court decision is that, on the one hand, there is the possibility of the child returning to his biological parents in his family, and on the other hand, the possibility of adoption by other people. When deciding on adoption, a court in Germany must be guided, above all, by respecting and protecting the interests of the child22.
Agreeing with the views of V.A. Ryasentsev, it must be emphasized that there are some differences in the invalidity of adoption from its cancellation:
- firstly, the cancellation of adoption, in contrast to the recognition of the adoption as invalid, can be based on general categories, this means taking into account the poor living conditions of the child. Acceptance of invalidity of adoption is carried out only in cases strictly provided for by law;
- secondly, when the adoption is canceled, the relationship between the adoptive parent and the adopted child ends in the future, and when the adoption is declared invalid, it is considered invalid from the moment of adoption, that is, the court decision is retroactive;
- thirdly, the cancellation of adoption is allowed if it does not contradict the interests of the child and the law does not contain this clause, which recognizes the invalidity of adoption. If there are legitimate reasons, the adoption must be declared unconditionally invalid;
- fourth, when the adoption is canceled, the adopter's surname and patronymic may be retained, and when the adoption is invalidated, this option will not be offered;
- fifthly, when the adoption is canceled, the obligation to pay alimony in favor of the adopted parent may be imposed on the adoptive parent; when the adoption is recognized, it is not provided. However, if he harmed the child, a fine may be charged;
- sixth, only parents have the right to demand the cancellation of adoption, the guardianship and trusteeship body, but any other person has the right to demand the invalidation of adoption in addition to them23.
A.I. Pergament noted that when the adoption is canceled, the rights and obligations cease only for the future, and when invalidated, it is considered that they
22 Buyanova E. V. Adoption procedure under the legislation of foreign countries: monograph / E. V. Buyanova. - Orenburg: LLC IPK "Universitet", 2013. - P. 21.
23 Ryasentsev V.A. Cancellation of adoption and its invalidation // Soviet justice. 1970. No. 16. - P.78.
24 Parchment A.I. Fundamentals of Marriage and Family Legislation. -M .: Knowledge, 1969. -S. 130-131
25 Commentary on the Code of Marriage and Family of the Kazakh SSR / Ed. Yu.G. Basin and M.A. Vaksberg. Alma-Ata: Kazakhstan, 1972. - P. 149.
26 Dzhandarbek B.A. Legal framework for adoption in the Re-
public of Kazakhstan (theory and practice). Diss. for the de-
gree of candidate of legal sciences. The Republic of Kazakh-
stan. Almaty city. 2002 . - P. 111.
did not arise at all, and therefore did not exist at all24. Yu.G. Basina, noting that in the recognition of adoption as invalid, the rights and obligations that arise during adoption are considered without a valid reason and, therefore, do not exist25.
Yu. G. Basin pointed out the possibility of a wide range of legal grounds that are not directly provided for in family law, but which must be taken into account in recognizing the invalidity of adoption.
According to B.A. Dzhandarbek, a logical question arises as to why it was proposed to use the analogy of law, and not the analogy of law, that is, the norms of family law that regulate similar relations: the invalidity of marriage. In this connection, it should be noted that the similarity of relations does not lead to a successful combination of their legal regulation. In the civil legislation of Kazakhstan, issues of invalidity and possible legal actions - transactions are taken into account in different ways. Therefore, taking into account the relevant norms of civil law, this is of great importance in the study and in the invalidation of adoption26.
It should be noted that the fictitious nature of adoption is distinguished by a characteristic that is not characteristic of other fictitious actions27, for example, a fictitious marriage, fictitious divorce and all imaginary conclusions. Since then, the false nature of these actions and conclusions is well known to all their participants28. But with the fictitious nature of adoption, the child, not knowing this condition, serves as a means for the adoptive parent to achieve his selfish goals, becoming completely helpless and defenseless.
We agree with the opinion of B.A. Dzhandarbek that in family law it is necessary to provide an independent basis for the invalidity of adoption as a fictitious nature of adoption. The use of legal analogy is only a temporary measure that does not fill the gaps in existing family law. The importance of developing criteria for fictitious adoption is of great practical importance. This is due to the fact that in family law it is impossible to distinguish between adoption by the type of invalidity, as in civil law. In civil law, one can distinguish between the invalidity of transactions based on their contradiction to the law (Article 18 of the Civil Code of the Republic of Kazakhstan) and the invalidity of an imaginary conclusion (Article 169 of the Civil Code of the Republic of Kazakhstan)29.
It should be noted that in paragraph 21 of the Regulation on the adoption of minors and the adoption of
27 Ибратова Ф. Б. Гражданско-правовые проблемы признания банкротами индивидуальных предпринимателей в Республике Узбекистан //Вопросы современной юриспруденции. - 2015. - №. 5-6 (47).
28 Ibratova F., Khabibullaev D. LEGAL ISSUES OF SIGNS OF BANKRUPTCY AND THE REALIZATION OF THE RIGHTS OF WORKERS IN CASES OF BANKRUPTCY OF EMPLOYERS UNDER THE LAWS OF THE REPUBLIC OF UZBEKISTAN //Znanstvena Misel. - 2019. - №. 11-2. - С. 55-61.
29 Dzhandarbek B.A. Legal framework for adoption in the Republic of Kazakhstan (theory and practice). Diss. for the degree of candidate of legal sciences. The Republic of Kazakhstan. Almaty city. 2002 . - P. 111.
children in the family for upbringing (patronage), approved by the resolution of the Cabinet of Ministers of the Republic of Uzbekistan on April 12, 1999. No. 171, one of the grounds for invalidation is fictitious adoption, which currently has legal force. In addition, the adoption is considered invalid if: the adoption was carried out in accordance with forged documents; the adoption was fictitious; adopted by an adult; an adoptive parent is a person who does not have the right to be an adoptive parent, that is, without parental rights or limited parental rights, is recognized legally incapacitated or partially incapacitated, registered in psychiatric or narcotic institutions, previously convicted of an intentional crime, as well as a former adoptive parent in case of refusal adoption.
The specificity of adoption is such that it cannot have various illegal contents, otherwise the court will not consider the conditions of adoption fulfilled. However, the adopter may pursue the same illegal goals that were mentioned above with regard to adoption, this may include the exploitation of his labor, participation in begging, trafficking in children, and so on. The invalidation of an adoption is only possible because of its fictitious nature30, which means that it is not intended to create an adoption relationship, which at the same time covers a wide range of life situations where a minor may be the victim of a criminal and a fraudster.
In addition, other addiction motives of the adoptees who were forced to take an inactive position in court are also sufficient to invalidate the adoption. Thus, B.A. Dzhandarbek attributes the following types of actions associated with vices of will: first, the misconception of parents about their rights and the rights of adoptive parents, the best interests of the child and other circumstances. Threats and violence against parents may make them unable to protect their rights and prohibit adoption. In this case, the defect is an incorrect (due to external factors) education of will in relation to adoption, as a result, these people have a negative or neutral attitude to their family law, neutral or positive regarding the future legal status of the adoptive parent, and also refuses or partially refrains from realizing their own procedural rights. Secondly, adoption by one person without the consent of the other spouse. The lack of consent of the second spouse leads to a decision against the will, which has legal significance. Thirdly, adoption by spouses, one of whom is recognized by the court as incompetent or partially. If one of the spouses is incompetent or partially unable to act, the legal will of the participant in the adoption relationship cannot be formed for objective reasons31.
The concept of civil law provides for the division of transactions into voidable ones. A similar division exists in the Civil Code of the Republic of Uzbekistan, as well as in many CIS countries, namely the Russian
Federation, it is not in the Civil Code of the Republic of Kazakhstan. The contested transaction is invalidated by a court decision, and the court decision is not obliged to invalidate the transaction. However, this feature is not reliable enough. If at least one of the parties to the transaction does not agree with his assessment, the court decision cannot be omitted. According to Yu. G. Bastin, in essence, it is not a question of whether or not to request judicial recognition of the invalidity of the transaction, but about whose interests (private or public) were violations in resolving the transaction and also who has the right to apply to the court. organ with the proper condition. The same conclusions can be applied to the invalidity of an adoption. But it must be emphasized that inadmissible adoption always violates someone else's legal interests: private, public, or both. Thus, inadmissible adoption is always a combination of actions of several subjects or one subject that violate the rights and interests of certain subjects. B.A.Dzhandar-bek defines three main signs of invalidity of adoption: 1) nullity from the point of view of causing the legal consequences of the adoption of the actions of the participants in these relations; 2) harmfulness (meaning the violation of both the rights and the legally protected interests of individuals); 3) the obvious unlawfulness of the behavior of the adoption participants. In his opinion, the recognition of the invalidity of adoption implies the presence of all three characters32.
Therefore, it is important that in the event of the alleged invalidity of the adoption due to the lack of will of the participant, an assessment of the behavior of the adoptive parent and the circumstances that took place at the time of the consideration of the case in court and its decision is made. In addition, the behavior and legal will of the adoptive parent and some other participants in the adoption are important. Thus, when it comes to deliberate adoption or actions that have caused significant damage to the interests of the adopted child or other people, as a result of which the resulting defect of unscrupulous participants33, which is of value for adoption, the adoption, of course, should be recognized as valid.
Another aspect arises - the civil procedure, which must be considered, since the recognition of an adoption as invalid differs from transactions in that it is established by a court decision. Transactions can be recognized by the court as having no legal consequences, since, thus, the protection of civil rights is ensured and this method is directly indicated in Article 9 of the Civil Code of the Republic of Kazakhstan. Although the possibility of recognizing an adoption as invalid is also provided for in family law and, within the meaning of its norms, is also a way to protect family rights, procedural norms should be established in the Code of Civil
30 Ibratova F. B. et al. Legal Issues of Observation-Bankruptcy Procedures Applicable by the Economic Court of Uzbekistan //J. Advanced Res. L. & Econ. - 2019. - T. 10. - C. 187.
31 Dzhandarbek B.A. Legal framework for adoption in the Re-
public of Kazakhstan (theory and practice). Diss. for the de-
gree of candidate of legal sciences. The Republic of Kazakhstan. Almaty city. 2002 . - P. 116.
32 Dzhandarbek B.A. Legal framework for adoption in the Republic of Kazakhstan (theory and practice). Diss. for the degree of candidate of legal sciences. The Republic of Kazakhstan. Almaty city. 2002 . - P.119.
33 Ibratova F. Problems of a settlement in bankruptcy cases in economic courts //Norwegian Journal of Development of the International Science. - 2019. - №. 28-3.
Procedure of the Republic of Kazakhstan for considering cases on recognizing an adoption as invalid.
In addition, in order to ensure the protection of the rights, freedoms and legitimate interests of orphans and children left unattended by their parents, it would be advisable to restore the norms of the Family Code of the Republic of Uzbekistan on the recognition of adoption as invalid.
In order to legally resolve cases on invalidating the adoption of a child and based on the practice of Latvia (Chapter 32 of the Code of Civil Procedure of the Republic of Latvia), it is proposed to amend the Code of Civil Procedure of the Republic of Kazakhstan and the Code of Civil Procedure of the Republic of Uzbekistan, a separate chapter "Chapter 292. Invalidation of the adoption of a child".
REFERENCES:
1. Family Code of the Republic of Uzbekistan. Vedomosti of the Oliy Majlis of the Republic of Uzbekistan, 1998, appendix to No. 5-6; 2003, no. 1, art. 8; 2004, No. 1-2, Art. eighteen.
2. Resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan "On the practice of the courts' application of legislation on adoption cases" dated December 11, 2013 No. 21. http://lex.uz/docs/2307236
3. Dzhandarbek B.A. Legal framework for adoption in the Republic of Kazakhstan (theory and practice). Diss. for the degree of candidate of legal sciences. The Republic of Kazakhstan. Almaty city. 2002 . - P. 111.
4. Code of the Republic of Kazakhstan " On marriage (matrimony) and family" dated December 26, 2011 No. 518-IV ЗРК // Bulletin of the Parliament of the Republic of Kazakhstan, 2011, December, No. 22 (2599), art. 174.
5. Ibratova F. B. et al. Special features of modern legal systems: cases and collisions. - 2017.
6. Эсанова З. Н. РАССМОТРЕНИЕ ДЕЛ ОБ УСЫНОВЛЕНИИ В ГРАЖДАНСКИХ СУДАХ
(НА ПРИМЕРЕ ЗАКОНОДАТЕЛЬСТВА РЕСПУБЛИКИ УЗБЕКИСТАН) //ПРОБЛЕМЫ ТЕОРИИ И ПРАКТИКИ СОВРЕМЕННОЙ НАУКИ. - 2020. - С. 547-552.
7. Buyanova E. V. Adoption procedure under the legislation of foreign countries: monograph / E. V. Buyanova. - Orenburg: LLC IPK "Universitet", 2013. -P. 21.
8. Ryasentsev V. A. Cancellation of adoption and its invalidation // Soviet justice. 1970. No. 16. - P.78.
9. Parchment A.I. Fundamentals of Marriage and Family Legislation. -M .: Knowledge, 1969. -S. 130131
10. Commentary on the Code of Marriage and Family of the Kazakh SSR / Ed. Yu.G. Basin and M.A. Vaksberg. Alma-Ata: Kazakhstan, 1972. - P. 149.
11. Dzhandarbek B.A. Legal framework for adoption in the Republic of Kazakhstan (theory and practice). Diss. for the degree of candidate of legal sciences. The Republic of Kazakhstan. Almaty city. 2002 . - P. 111.
12. Ибратова Ф. Б. Гражданско-правовые проблемы признания банкротами индивидуальных предпринимателей в Республике Узбекистан //Вопросы современной юриспруденции. - 2015. - №. 56 (47).
13. Ibratova F., Khabibullaev D. LEGAL ISSUES OF SIGNS OF BANKRUPTCY AND THE REALIZATION OF THE RIGHTS OF WORKERS IN CASES OF BANKRUPTCY OF EMPLOYERS UNDER THE LAWS OF THE REPUBLIC OF UZBEKISTAN //Znanstvena Misel. - 2019. - №. 112. - С. 55-61.
14. Ibratova F. B. et al. Legal Issues of Observation-Bankruptcy Procedures Applicable by the Economic Court of Uzbekistan //J. Advanced Res. L. & Econ. - 2019. - Т. 10. - С. 187.
15. Ibratova F. Problems of a settlement in bankruptcy cases in economic courts //Norwegian Journal of Development of the International Science. - 2019. - №. 28-3.
