Compensation for moral harm in violation of the right to disrespect for kinship and family ties

The admissibility of a wider application of compensation for moral harm in violation of family rights in the science of family law is assessed ambiguously. The law provides for such an opportunity only in art. 30 of the Family Code for a conscientious spouse when the marriage is declared invalid.

It is necessary to take into account the specifics of family relations, as deeply personal, and the fact that art. 8 of the Family Code does not limit the protection of family rights in the ways specified in the legal norms, allowing the use of other methods. At the same time, in accordance with the provisions of art. 4 of the Family Code, the application of civil legislation to family relations is allowed, if it does not contradict the essence of family relations, which leads to refusals in a claim for compensation for moral harm due to the presence of obstacles to relatives from one of the parents in communicating with the child, due to the fact that the provisions of the current civil and family legislation do not provide for the possibility of his penalties.

One of the most important reasons for the negative attitude of the courts to the fundamental permissibility of a wider application of the above-mentioned measure of responsibility in violation of family rights is seen in the absence of developed conditions for an offense that would be the basis for the application of compensation for moral harm, given that such conditions, taking into account the specifics of family relations, differ significantly from the usual conditions of civil liability.

Goal. Identification of the criteria of private and family life applied by the European Court of Human Rights, as well as the study of the fundamental possibility of filing a claim for compensation for moral harm caused by the refusal of a parent to provide an opportunity to communicate with a child and participate in his upbringing to a separate parent.

Methodology. In the course of the research, methods of generalization, description, analysis, synthesis, formal legal method were used.

Results. The necessity of expanding the subject of proof in such a dispute with the inclusion of the following circumstances is justified. The presence of objective obstacles to communication, which can be associated with both the child (illness, unwillingness of the child to communicate with the parent), and with the personality of the parent living separately, communication with which can negatively affect the child. It is necessary to take into account the opinion and interests of the child. It is also necessary to take into account the actions of the parent himself, demanding compensation for moral harm, so if he evades the duties of maintaining his child, we assume the possibility of refusing the claim. Making a decision on compensation for moral harm involves taking into account the fault of the causer and his motives, which should not correspond to the interests of the child.

1. Kozyreva E.V., Novikova N.V. About expanding the boundaries of application of moral harm compensation as a m ethod of protecting the family rights of citizens, in: Ilyina O.Y. (ed.). Sotsial'no-pravovye aspekty transformatsii instituta sovremennoi sem'i v kontekste realizatsii gosudarstvennoi semeinoi politiki, Collection of articles based on the materials of the international scientific and practical conference dedicated to the 25th anniversary of the adoption of the Family Code of the Russian Federation, Tver, Tver State University Publ., 2020, pp. 97–101. (In Russ.).

2. Tagaeva S.N. On the problem of compensation for moral harm in family law. Vestnik Permskogo universiteta. Yuridicheskie nauki = Perm University Herald. Juridical Sciences, 2012, no. 1 (61), pp. 157–164. (In Russ.).

3. Eliseeva A.A. On improving family legislation in the field of legal regulation of personal non-property relations. Zhurnal rossiiskogo prava = Journal of Russian Law, 2010, no. 3, pp. 82–89. (In Russ.).

4. Erdelevsky A.M. Compensation for moral damage. Analysis and commentary of legislation and judicial practice, 3rd ed. Moscow, Wolters Kluwer Publ., 2004. 320 p. (In Russ.).

5. Danilyan M.A. Property liability for non-fulfillment of alimony obligations in favor of minor children. Praktika ispolnitel'nogo proizvodstva = Practice of enforcement proceedings, 2011, no. 6, pp. 38–41. (In Russ.).

6. Makeeva O.A. Responsibility in alimony obligations main features and implementation procedure. Semeinoe i zhilishchnoe pravo = Family and housing law, 2010, no. 1, pp. 17–20. (InRuss.).

7. Shershen T.V. Compensation for moral harm in the system of ways to protect family rights, in: Golubtsov V.G., Kuznetsova O.A. (eds.). Seventh Perm Congress of Legal Scientists, Collection of scientific articles, Moscow, Statut Publ., 2017, pp. 328–334. (In Russ.).

8. Kravchuk N.V. Respect for traditional family values as a constitutional principle. Rossiya: tendentsii i perspektivy razvitiya = Russia: trends and development prospects, 2022, no. 17-1, pp. 1023–1025. (In Russ.).

9. Manankova R.P. Shared ownership. The legal status of family members, The main works of Professor of Tomsk State University R.P. Manankova. Moscow, Statut Publ., 2021. 744 p. (In Russ.).

10. Rabets A.M. The Place of Family in the Legal Space: Legal Characteristics of Family in the Russian Federation and in Some Foreign Countries. Rule-Making Experience and Problems. Lex Russica, 2022, vol. 75, no. 11. pp. 100– 111. DOI: 10.17803/1729-5920.2022.192.11.100-111. (In Russ.).

11. Tarusina N.N. Family Values under the Auspices of Law: The New in Tradition and Tradition in the New. Lex Russica, 2023, vol. 76, no. 1, pp. 33–52. DOI: 10.17803/1729-5920.2023.194.1.033-052. (In Russ.).

12. Repeteva O.E. Family offenses and liability for their commission. Vektor nauki Tol'yattinskogo gosudarstvennogo universiteta. Seriya: Yuridicheskie nauki, 2011, no. 4, pp. 91–93. (In Russ.).

13. Timofeev M.T. The right to respect for private and family life in the context of the burial of relatives in the practice of the European Court of Human Rights. Mezhdunarodnoe pravosudie = International Justice, 2013, no. 2 (6), pp. 12–24. (In Russ.).

14. Tikhomirova A.V. The right to respect for private and family life: international and domestic regulation, in: Yuridicheskie nauki i problemy: perspektivy, Proceedings of the VII International Scientific Conference (Kazan, May 2018), Kazan, Molodoi uchenyi Publ., 2018, pp. 57–61. (In Russ.).

15. Tumanov V.A., Entin L.M. (eds.). Commentary on the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of its Application. Moscow, Norma Publ., 2002. 265 p. (In Russ.).

16. Vorozheikin E.M. Family relationship in the USSR. Moscow, Yuridicheskaya literatura Publ., 1972. 335 p. (In Russ.).

17. Sherstneva N.S. Family legal essence of the principle of ensuring priority protection of the rights and interests of minors. Sovremennoe pravo, 2006, no. 3, pp. 51–56. (In Russ.).

18. Ulianova M.V. Limits of the Exercise of Family Rights. Vestnik Permskogo universiteta. Juridicheskie nauki = Perm University Herald. Juridical Sciences, 2022, iss. 58, pp. 658–682. DOI: 10.17072/1995-4190-2022-58-658-682. (In Russ.).

19. Zhoga E.Yu., Vasenin A.Yu., Tharovskaya O.Yu. Family law sanctions as a type of legal liability. Gumanitarnye, sotsial'no-ekonomicheskie i obshchestvennye nauki = Humanities, social-economic and social sciences, 2019, no. 3, pp. 91–93. (In Russ.).

20. Komissarova E.G. The Doctrine of de facto Parenthood in Russian and Foreign Family Law. Vestnik Permskogo universiteta. Yuridicheskie nauki = Perm University Herald. Juridical Sciences, 2022, iss. 56, pp. 208–238. DOI: 10.17072/1995-4190-2022-56-208-238. (In Russ.).

21. Ershova E.V. Deviant behavior of parents and the possibility of compensation for moral harm: theory and practice of implementation, in: Kukanova E.V. (comp.), Kukanova E.V. (ed.). Deviantologiya roditel'stva, Collection of scientific papers, Moscow, 2016, pp. 65–70. (In Russ.).

22. Tarusina N.N., Koneva E.V., Simonova S.V. Child's legal personality: actualization of opportunities and their limitations. Pravoprimenenie = Law Enforcement Review, 2023, vol. 7, no. 1, pp. 155–164. DOI: 10.52468/25421514.2023.7(1).155-164.

23. Sitkova O.Yu. Sanction in family law: protection measures and responsibility measures. Vestnik Saratovskoi gosudarstvennoi yuridicheskoi akademii = Saratov State Law Academy Bulletin, 2014, no. 2 (97), pp. 132–135. (In Russ.).

24. Matantsev D.A. Compensation for injury as a sanction in family law. Aktual'nye problemy rossiiskogo prava = Actual Problems of Russian Law, 2017, no. 5 (78), pp. 82–86. DOI: 10.17803/1994-1471.2017.78.5.082-086. (In Russ.).

25. Danilenkov A.V. Compensation for moral harm in family relations. Zakon, 2015, no. 7, pp. 152–157. (In Russ.).