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THEORETICAL ISSUES OF ESTABLISHING ADOPTIONS IN THE REPUBLIC OF UZBEKISTAN
Atalykova G.
Senior lecturer South Kazakhstan State University named after M.Auezov, applicant Tashkent State Law University
Abstract
The article discusses the theoretical and practical problems of the courts applying the law on adoption cases, the participation of the prosecutor and the guardianship authority, the requirements and the basis for the cancellation of adoption.
Keywords: adoption (adoption), civil court, guardianship and custody, invalidation of adoption.
Adoption is considered as perfect in the interests of children when the basis of the adoptive parents is motives and ideas aimed at providing the adoptee with the rights guaranteed by the Constitution of the Republic of Uzbekistan, Family and Civil Codes of the Republic of Uzbekistan for the purpose of educating and harmonious development of his personality, and the adoptive parents acquire rights, ready and able to bear the responsibilities of parents.
Adoption is allowed only in respect of minor children and only in their interests. If the adopted child has reached the age of ten years, then in accordance with Article 155 of the Family Code of the Republic of Uzbekistan, the child's consent is required for adoption. Thus, if the adopted child is ten years old before the court decision on the case on the establishment of adoption, the court must obtain his consent (in compliance with the requirements of Article 301 of the Civil Procedural Code of the Republic of Uzbekistan).
The consent of the child to the adoption is revealed by the guardianship and custody bodies or the court when considering the case of adoption. At the same time, his attitude towards the adoptive parents, the nature of the relations established between them, and the feelings he has towards them should be clarified. So, in clause 15 of the Regulation on the adoption (adoption) of minor children and the adoption of children into a family for upbringing (patronage) (approved by the Resolution of the Cabinet of Ministers of the Republic of Uzbekistan dated April 12, 1999 No. 171)) the consent is adopted:
- if the adopted child has reached the age of ten years, his consent to adoption is established by the guardianship and custody authorities. When a child's consent is received, the legal consequences of the adoption (communication with relatives, property and other disputes), about the change of his name, entries in the birth certificate;
- if a child is brought up in a family of adoptive parents and recognized by their parents as established by the custody and guardianship authority in the interview with him, the adoption can be made without the consent of the adopted [1].
In this regard, the legal provision of the French Civil Code is of interest: "Only children who have been acquainted with the adoptive parents for at least six months can be adopted." Such a requirement of the law is justified, since it excludes the possibility of adoption of children by random people, helps the adopters and the adopted [2]. It would be advisable to introduce a
similar provision in the legislation of the Republic of Uzbekistan.
However, if prior to filing an application for adoption, the child lived in the adopter's family and considers him to be his parent, adoption, as an exception, can be made without obtaining the consent of the adopted child (Art. 156 of the Family Code of the Republic of Uzbekistan).
For the adoption of a child requires the consent of the parents of the adopted. Parents can consent to the adoption of a child by a certain person (s) or give consent to the adoption, giving the choice of adoptive parents to the custody and guardianship authority.
Part 4 of Article 159 of the Family Code of the Republic of Uzbekistan provides that parents may revoke their consent to adopt a child. It should be noted that such a right is granted by law only to parents of the adopted and prior to the adoption of a court decision on his adoption. However, a situation may arise when the court does not take into account the recall of the parents of the consent given by them. For example, if the court determines that there are grounds listed in Article 160 of the Family Code of the Republic of Uzbekistan, for adoption of a child without parental consent.
Parents 'consent to the adoption of a child must be expressed in a statement notarized or certified by the head of the institution where the child is left without parental care, or by the guardianship and custody authority at the place of adoption of the child or at the parents' place of residence. The consent of the parents to the adoption of the child can be expressed by them directly in court during the adoption.
In accordance with Part 3 of Article 159 of the Family Code of the Republic of Uzbekistan, parental consent for adoption must be expressed in a statement notarized or certified by the head of the institution where the child is left without parental care, or by the guardianship and custody authority place of residence of parents, and can also be expressed directly in court in the production of adoptions.
In accordance with Article 302 of the Civil Procedure Code of the Republic of Uzbekistan, the court considers cases involving the adoption of a child with the obligatory participation of the adoptive parents (adoptive parent), a representative of the guardianship and custody agency, and the prosecutor. If necessary, the court may involve in the case the parents (parents) of the adopted child, his relatives and other interested persons, as well as the adopted child himself, if he has reached the age of ten years.
Несомненно, данная процедура должна быть урегулирована законодателем. However, participation in the same process by the adopters and parents of the adoptee, his relatives may lead to the disclosure of the secrets of adoption. Therefore, it is desirable that such cases be heard without adopters in the courtroom. Undoubtedly, this procedure should be settled by the legislator.
It is noteworthy that adult citizens of both sexes can be adoptive parents with the exception of persons: deprived of parental rights or restricted in parental rights; recognized as legally incapable or partially capable in accordance with the law; registered in psychiatric or narcological institutions; former adoptive parents, in case of cancellation of the adoption on the grounds specified in the first part of Article 169 of the Family Code of the Republic of Uzbekistan; previously convicted of an intentional crime.
The age difference between adoptive parents and adopted children must not be less than fifteen years old, except in cases of adoption by a stepfather and stepmother (Article 152 of the Family Code of the Republic of Uzbekistan).
We believe to add to Article 152 of the Family Code of the Republic of Uzbekistan that they are not married to each other and cannot jointly adopt the same child.
In this connection, we consider it expedient to adopt the "List of diseases, in the presence of which a person cannot adopt a child, take him in custody (guardianship), take him into a foster family" and approve it by a resolution of the Cabinet of Ministers of the Republic of Uzbekistan. You should also include in the "List of diseases, in the presence of which a person cannot adopt a child, take him under guardianship (guardianship), take into foster care" the following diseases: tuberculosis (active and chronic) of all forms of localization in patients of groups I, II, V dispensary registration; diseases of internal organs, nervous system, musculoskeletal system in the stage of decompensation; malignant oncological diseases of all localizations; drug addiction, substance abuse, alcoholism; infectious diseases before removal from the dispensary; mental illness in which patients are recognized in the prescribed manner to be incapable or partially capable; all diseases and injuries that led to disability of I and II groups, excluding the ability to work.
The court in the proceedings for the establishment of adoptions must comply with the requirement of part 4 of article 151 of the Family Code of the Republic of Uzbekistan, according to which adoption of brothers and sisters by different persons is not allowed, except in cases where adoption is in the interests of children.
If children are adopted by foreign citizens or stateless persons, the court must bear in mind that such adoption is carried out in accordance with Article 1611 of the Family Code of the Republic of Uzbekistan. Adoption by citizens of the Republic of Uzbekistan of a child who is a foreign citizen or stateless person permanently residing in the territory of another state is carried out in the manner prescribed by the legislation of the state in which the specified child permanently lives in cases when the adopted child is an orphan and a close relative of the adoptive parents (adoptive parent ) or when adoption is not possible for various reasons in their homeland.
When citizens of the Republic of Uzbekistan adopt a child who is a foreign citizen or a stateless person permanently residing in the territory of another state, the permit of the competent authority of the Republic of Uzbekistan to enter the child to be adopted into the Republic of Uzbekistan and permanent residence in the Republic of Uzbekistan is required.
Cases on the establishment of the adoption of a child are considered by the court in a closed court session (part 3 of Article 310 of the Civil Procedure Code of the Republic of Uzbekistan). The law does not contain special rules on the timing of consideration of this category of cases, but the need for them arises inevitably (suffice it to recall the adoptive parents, imitating pregnancy). Will the courts be able to meet these people and consider their cases first?
Part of the way out can be found in the legislative securing of special terms for consideration of this category of cases, taking into account the interests of adoptive parents, imitating pregnancy.
In accordance with Article.303 of the Civil Procedure Code of the Republic of Uzbekistan, the court, having considered the application for the adoption of a child on the merits, makes a decision to approve the application or to refuse to satisfy it fully or in part to satisfy the adoptive parents (adoptive parent) about their registration as a parent (parent a) child in the record of his birth, as well as changing the date and place of birth of the child.
So, when deciding on the adoption of an adoption, the court must allow and directly reflect in the operative part of the decision the following questions: name, patronymic and surname of the adopted child and the fact of their change (part 3 of Article 164 of the Family Code of the Republic of Uzbekistan), change of date and place of birth adopted child (part 3 of article 164 of the Family Code of the Republic of Uzbekistan), recording of adopters as parents of an adopted child (part 2 of article 164 of the Family Code of the Republic of Uzbekistan), on the preservation of personal non-property and property rights and obj ancestors of the father or mother, and in the case of the death of one of the parents - about the preservation of personal non-property and property rights and obligations in relation to the relatives of the deceased parent (Article 165 of the Family Code of the Republic of Uzbekistan), about the preservation of the right to a pension for the adopted child .166 of the Family Code of the Republic of Uzbekistan).
It seems appropriate that the decision should have a record of familiarization of the participants of the process with the contents of Article 153 of the Family Code "Mystery of child adoption", according to which the judges who made the decision on the adoption of the child, or the officials who carry out the state registration of the adoption, as well as those who are aware of the adoption are obliged to keep the secret of the adoption of the child.
It is desirable to provide for the introduction of a special procedure for office work in cases of this category, which would exclude the possibility of disclosing the secret of adoption.
A copy of the court decision that establishes the adoption of the child is sent by the court within three days from the date the court decision enters into legal
force in the civil registration office at the place of the decision for state registration of the child's adoption.
The time of occurrence of the adoption is considered the day of making the necessary changes to the book of birth records of the adopted (Article 167 of the Family Code of the Republic of Uzbekistan).
In accordance with Article 169 of the Family Code of the Republic of Uzbekistan, the adoption is also canceled in a judicial proceeding. Based on the fact that this article does not say about the cancellation of a previously rendered decision, it is a question of a different category of cases, with its subject matter and specific grounds for arousal. Cases on the cancellation of adoption are subject to review in a lawsuit.
The right to demand the abolition of the adoption of a child through the courts is held by his parents, the prosecutor, the guardianship and trusteeship bodies, interdepartmental commissions for minors, and the adopted child who has reached the age of sixteen years (art. 170 of the Family Code of the Republic of Uzbekistan).
The reasons for the abolition of adoption are evasion of adoptive parents from fulfilling the duties assigned to them by parents, abuse of parental rights, cruel treatment of an adopted child, chronic alcoholism or drug addiction. Cancellation of adoption upon reaching the age of majority is adopted if the behavior of the adopted affects the honor and dignity of the adoptive parents, threatens their life or health.
In addition, the court has the right to cancel the adoption of a child for other reasons based on the interests of the child and taking into account the opinion of the child (part 3 of Article 169 of the Family Code of the Republic of Uzbekistan).
Cancellation of adoption is allowed only in court. When resolving cases on the abolition of adoption, the opinion of a child who has reached the age of ten is taken into account.
In the Resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan dated 11.12.2013. No. 21 "On the practice of application by courts of legislation on cases of adoption" explains that if due to special circumstances a slowdown in the execution of a decision may make its execution impossible (for example, the need for a course of treatment for an adopted child), then, according to clause 3 of part one of Article 267 of the Civil Code procedural code of the Republic of Uzbekistan, the court may allow the immediate execution of the decision.
Due to the fact that, unlike parents of adoptive parents, parental rights and obligations in relation to an adopted child arise from adoption, not origin, the courts should take into account that the grounds provided for in Article 169 of the Family Code of the Republic of Uzbekistan are not justified. for the deprivation of their parental rights, and for the abolition of adoption.
Cases of this category are considered with the participation of the prosecutor, as well as the body of guardianship and guardianship, and in resolving the case, the opinion of a child who has reached the age of ten years is taken into account.
It is explained that the evasion of duties imposed on the adoptive parents or the failure to fulfill them properly may be grounds for the court to cancel the adoption.
Adoption may be canceled by the court in other cases where the interests of the child require it.
If a lawsuit on the abolition of adoption is filed on the basis of a violation of the law during its execution, the court, resolving the dispute, is obliged to take into account all the factual circumstances, in particular, whether the cancellation of the adoption contradicts the child's interests.
When abolishing the adoption, the court, having established the child's need for material assistance, has the right to oblige the former adopter to pay funds for his maintenance.
In this case, the recovery of funds for the maintenance of the child is made by the court in a fixed sum of money, taking into account the material and marital status of the former adopter and the recoverer.
It must be borne in mind that the abolition of adoption is allowed until the majority of the adopted child, that is, until he reaches the age of eighteen.
At the same time, the abolition of adoption upon reaching the age of adoption by an adult is permitted only in cases where the behavior of the adopted affects the honor and dignity of the adopters, threatens their life and health.
It explains that the courts, when resolving the issue of jurisdiction, the statements on the cancellation of adoption should be based on the requirements of Articles 28, 29, and Article 298 of the Civil Procedure Code of the Republic of Uzbekistan.
The decision to cancel the adoption indicates whether the surname, name, patronymic of the adopted person is preserved, and it must be borne in mind that changing the name, surname, and patronymic of a child who has reached the age of ten years is possible only with his consent [3].
It should be noted that in the Family Code of the Republic of Uzbekistan and the Civil Procedure Code of the Republic of Uzbekistan there is an open question regarding the invalidation of adoptions.
However, in accordance with clause 21 of the Regulation on Adoption (Adoption) of Minor Children and Adoption of Children into a Family (Patronage) (approved by Resolution of the Cabinet of Ministers of the Republic of Uzbekistan dated April 12, 1999 No. 171), adoption is invalid if:
- Adoption was issued on false documents;
- adoption was fictitious;
- adopted by an adult person;
- the adopter is a person who does not have the right to be an adoptive parent, i.e., deprived of parental rights or limited in parental rights, recognized incapable or partially capable in the manner prescribed by law, registered in psychiatric or narcological institutions, previously convicted of an intentional crime, as well as the former adopter, in case of cancellation of the adoption on the grounds specified in paragraph 22 of these Regulations [3].
In paragraphs 31.32 of the Resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan dated 11.12.2013g. №21 "On the practice of application by courts of legislation on cases of adoption" explains that, in accordance with the Law of the Republic of Uzbekistan of April 30, 2013, the Family Code does not provide a basis for recognizing the adoption to be invalid.
At the same time, the courts must take into account that, in accordance with Part 1 of Art. 4 of the Civil Code acts of civil law are not retroactive and apply to relations that have arisen after their introduction into force.
A court's recognition of an adoption as invalid may be made only in the cases provided for by the Law of the Republic of Uzbekistan dated April 30, 2013, which has become invalid, Art. 168 of the Family Code and only in respect of adopted before this time: when the decision on adoption is based on false documents; when adoption was fictitious; if an adult person is adopted; if the adopter is a person who does not have the right to be an adopter in accordance with art. 152 of the Family Code and in other cases.
A claim for recognition of the adoption as invalid and cancellation of the adoption may be filed by the parents of the adopted child, the prosecutor, the guardianship and custody agencies, the commission for minors, and the adopted child who has reached the age of sixteen [5].
Due to the fact that the cases on the adoption, the cancellation of the adoption and the invalidation of the adoption of children require from the judges not only
knowledge of legal issues, but also a certain psychological and pedagogical training, in order to ensure their proper resolution they should be considered constantly the same judges with the necessary knowledge and experience. Of course, the best solution to this issue would be to create specialized family courts.
REFERENCES:
1. http://www.lex.uz/docs/271135#276425
2. www. 7ya. ru/article/Voprosy-sudebnogo-poryadka-rassmotreniya-del-ob-ustanovlenii-usynovleniya-udochereniya-detej/
3. https://nrm.uz/contentf?doc=319220_postano vlenie_plenuma_verhovnogo_suda_respubliki_uzbeki stan_ot_ 11_12_2013 _g_n_21 _o_praktike_primeneniy a_sudami_zakonodatelstva_po_delam_ob_usynovlenii &products=1_vse_zakonodatelstvo_uzbekistan
4. http://www.lex.uz/docs/271135#276464
5. https://nrm.uz/contentf?doc=319220_postano vlenie_plenuma_verhovnogo_suda_respubliki_uzbeki stan_ot_11_12_2013_g_n_21_o_praktike_primeneniy a_sudami_zakonodatelstva_po_delam_ob_usynovlenii &products=1_vse_zakonodatelstvo_uzbekistan
CONCILIATION PROCEDURES IN THE SYSTEM OF ALTERNATIVE DISPUTE RESOLUTION IN
CIVIL PROCEEDINGS
Esenbekova P.
senior teacher of South Kazakhstan State University named after M.Auezov, applicant of the Tashkent State Law University
Abstract
The article discusses debatable questions about the concept and essence of conciliation procedures in the system of alternative dispute resolution methods in civil proceedings, discusses the phenomenon of conciliation procedures from the point of view of related sciences, in particular conflict management and the theory of the negotiation process.
Keywords: conciliation procedures, settlement, reconciliation of the parties, settlement of the dispute, op-tionality, conflict, legal process.
In modern scientific doctrine, the idea of "justice of compromise and social peace" is actively pursued, within which it is justified to rethink the functions and objectives of the judiciary and put the task of reconciliation of the parties in the first place, rather than resolving the case.
Reforms of civil court proceedings of the last decade, carried out in a number of developed countries, in particular, Great Britain, Germany, France, show that the development of alternative dispute resolution methods, which at present mean the whole system of both pre-trial (extrajudicial) dispute resolution options, and embedded in the trial of consensual procedures, identified one of the most important areas associated with improving the efficiency of justice.
In the Republic of Uzbekistan and in the Republic of Kazakhstan, as in the entire international community, there is a clear increase in interest in conciliation procedures as alternative ways to resolve disputes. Thus, according to Article 166 of the Civil Procedure Code of the Republic of Uzbekistan [12] and Article 174 of the Civil Procedure Code of the Republic of Kazakhstan, the court takes measures to reconcile the parties, assists them in resolving the dispute at all stages of the process [13].
It should be noted that despite the very active use, the term "conciliation procedures" remains undefined in procedural science. Conciliation procedures are usually considered as a kind of alternative dispute resolution methods, that is, those social means that are an alternative to the judicial way of resolving conflicts that dominates in modern society. At the same time, in the system of alternative dispute resolution methods, conciliation procedures are opposed to arbitration (arbitration court) as non-jurisdictional methods of conflict resolution.
Traditionally, jurisdiction refers to the authoritative activities of the competent authorities on various issues arising in the field of law [3, c.16]. As noted in the literature, the jurisdictional form of conflict resolution forms a certain procedure for the commission of actions by its participants, the main one being the law-enforcement body vested with authority, which forms the concept of "jurisdictional process". Such an approach led to a certain peculiarity of procedural relations - the obligatory participation in them of the authority - the judicial body [4, c.68].
In contrast, the essence of conciliation procedures is not the resolution of a dispute between the parties by someone else (even if the person is chosen by mutual
