Participation of legal representatives of minors in civil proceedings. Minor in civil proceedings: legal regulation and problems of law enforcement

Litigation is the third stage of civil proceedings. It differs from the first two in that:

firstly, the persons participating in the case, through active procedural actions, compete in order to substantiate their claims and objections, exercise their procedural rights and obligations;
secondly, it is at this stage that the relationship between the norms of family and procedural law is clearly revealed, the principles of civil procedural and family law are implemented;
thirdly, the circumstances of the case are established;
fourthly, the court performs the main procedural actions.

Litigation is such a procedural legal relationship in which the persons participating in the case and the court implement the procedural opportunities provided to them and fulfill procedural obligations in order to resolve the dispute, resolve another claim, make a lawful and reasoned decision.

As rightly noted in the legal literature, it is at this stage that the court performs the tasks assigned to it: resolves the case on the merits, ensures the educational impact of judicial activity, restores the violated right of the child 1 Trubnikov P.Ya. Litigation of individual civil cases. M.: Bylina. 1996. S. 26..

foundation judicial trial is the issuance by the court of a ruling on the appointment of a court session. The beginning of this stage is the opening of the court session by the presiding judge (the preparatory part of the court session). This stage ends with the issuance of a judicial act (decisions, rulings, rulings).

It must be assumed that the Convention for the Protection of Human Rights and Fundamental Freedoms in Art. 6 proclaims the right to a fair trial, in particular, in the event of a dispute about his civil rights and obligations, everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial court established by law. The judgment is announced publicly, but the press and the public may be excluded from the hearings during all or part of the proceedings for reasons of morality, public order or national security in a democratic society, as well as when the interests of minors so require, or for the protection privacy parties, or, to the extent that, in the opinion of the court, is strictly necessary, special circumstances. when publicity would violate the interests of justice.

The trial takes place in a court session, consisting of four parts:

Preparatory.
Study of the facts of the case.
Judicial debate, remarks.
Pronouncement and pronouncement of a judicial act.

Features of the trial of cases related to the protection of the rights and interests of children are:

firstly, in the participation in the trial of a child who has reached the age of 14, and in some cases - 10 years, recognized by family law as an independent participant in the legal relationship.

Article 12 of the Convention on the Rights of the Child establishes the norm international law under which States Parties shall ensure to the child who is capable of formulating his own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child (para. 1).

To this end, the child shall, in particular, be given the opportunity to be heard in any judicial or administrative proceedings affecting the child, or directly.

or through a representative or an appropriate body in the manner prescribed by the procedural norms of national legislation (paragraph 2).

In this regard, when summoning persons to trial, it is necessary to discuss the possibility of the participation of the child in the trial;

secondly, participation in the proceedings of a representative of the guardianship and guardianship body;

thirdly, in the relationship between the norms of family and procedural law;

fourthly, in the interest of the state in ensuring the priority protection of the rights and interests of the child; guardianship of the state;

Paragraph 2 of Art. Article 9 of the Convention on the Rights of the Child enshrines the fundamental principle that, in any proceedings, all stakeholders the opportunity to participate in the proceedings and express their views;

fifthly, in a combination of elements of the investigative and adversarial process. Based on the requirements of Art. 37, 40, 173 of the Code of Civil Procedure of the Russian Federation, it must be assumed that in the event of a refusal of a claim (or other requirement) of a person who applied to the court for the protection of the rights and legitimate interests of a child, the proceedings at the trial stage may be terminated in exceptional cases.

According to the general rules of civil procedure, the plaintiff has the right to refuse a claim (clause 1, article 39 of the Code of Civil Procedure of the Russian Federation), and since, for example, paternity cases are considered according to general rules, therefore, the plaintiff also has the right to refuse a claim to establish paternity.

But in paragraph 2 of Art. 39 of the Code of Civil Procedure of the Russian Federation states that the court does not accept the plaintiff's waiver of the claim if it is contrary to the law or violates the rights and legitimate interests of other persons. Refusal of one of the spouses from the claim for establishment of paternity and collection of alimony for the maintenance of a minor child violates the rights and interests of the latter.

Thus, when deciding whether to accept a waiver of a claim, the court must make sure, firstly, that the plaintiff's intentions are voluntary and, secondly, that this is in the interests of the child. In addition, the court must explain to the plaintiff the procedural consequences of this action: the termination of the proceedings and the impossibility of re-applying to the court with the same claim.

For example, the C-im District Court, when terminating the proceedings on the claim of M.Oh. to K.R. on the establishment of paternity, the court accepted the refusal of the plaintiff from the claim contrary to the interests of the child 2 Archive of the Sudogodsky District Court. Case No. 2-341/06..

There is a long overdue need to supplement Art. 39 and 173 of the Code of Civil Procedure of the Russian Federation with a new rule, according to which the proceedings in this case can be terminated only with the consent of the guardianship and guardianship authority and / or the child himself, who has reached the age of 14 years.

Cases on the demand for the protection of the rights and legitimate interests of the child can be considered both in action and in non-action proceedings (special or in the procedure for proceedings in cases arising from public relations).

The lawsuit deals with the following cases.

1. According to the requirements for divorce (Article 21 of the RF IC); on the recognition of marriage as invalid (Article 27 of the RF IC); on the recovery of alimony (except for an application for the issuance of a court order), (Articles 80, 83 of the RF IC); on establishing paternity (Article 49 of the RF IC); on contesting paternity (maternity) (Article 52 of the RF IC); on requirements for participation in the upbringing of children (Article 65, paragraph 2 of the RF IC); on determining the place of residence of the child (Article 65, paragraph 3 of the RF IC); on the procedure for exercising parental rights (Article 66 of the RF IC); on the deprivation of parental rights (Article 69 of the RF IC), on the restoration of parental rights (Article 72 of the RF IC); on the restriction of parental rights (Article 73 of the RF IC); on the abolition of adoption (Article 140 of the UK); on providing a child with housing out of turn (Article 57 of the Housing Code of the Russian Federation), etc.

In special proceedings, cases on adoption (adoption) are considered; emancipation; depriving or restricting a minor between the ages of fourteen and eighteen years of the right to independently dispose of their income.

In the procedure for proceedings in cases arising from public legal relations, complaints are considered against a refusal to register a marriage (Article 11 of the RF IC), complaints against a refusal to reduce the age of marriage (Article 13 of the RF IC), complaints against decisions on the appointment of a guardian (Art. 145, 146 of the RF IC), etc. In order to ensure effective protection of the violated rights of the child, it is necessary to correctly establish the actual circumstances of the case. The identification, provision and collection of evidence, on the basis of which legally significant circumstances are established, begins at the stage of initiating a case.

In the stage of preparing the case for trial, the collection of the necessary evidence must be completed. During the trial, evidence can also be provided and claimed, but the main task of the trial is to study them, and not to identify and collect.

The establishment of the actual circumstances of the case is achieved using a set of techniques and means. In this regard, the question arises about the study of the problems of adversarial and investigative proceedings. In science, competitiveness is considered as the principle of the process and as a mechanism for studying the actual circumstances of the case. The principle of adversarial process is that the parties and other persons participating in the case collect evidence, provide it, prove the circumstances referred to as grounds for their claims and objections. At the heart of the competition is the right of the parties to develop the material side of the case. In its purest form, competitiveness is the absolute control of the parties over the development of the material side of the process. The investigative beginning is the absolute control of the court. At the same time, competition and the investigative beginning of the process do not exist in their pure form, they are closely related. Elements of the investigative beginning complement the adversarial process.

The Constitution of the Russian Federation (Article 123), the Code of Civil Procedure of the Russian Federation establish the adversarial nature of civil proceedings. The role of the court and the persons participating in the case in establishing and investigating the actual circumstances of the case is changing. So, according to Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections. Evidence is provided by the parties and other persons participating in the case, and only when it is difficult for the parties and other persons participating in the case to provide evidence, they have the right to petition the court to demand it. In such cases, the judge assists them in collecting evidence. This provision indicates that the court own initiative not entitled to participate in the collection of evidence.

This rule is also contained in Art. 57 Code of Civil Procedure of the Russian Federation. This is a general position. Despite general trend consisting in reducing the activity of the court in identifying and collecting evidence, the federal legislator establishes the duty of the court, while maintaining impartiality, to create conditions for a comprehensive and full study circumstances of the case.

The court explains to the persons participating in the case their rights and obligations, warns about the consequences of the commission or non-commission of procedural actions, assists them in exercising their rights (Article 12 of the Code of Civil Procedure of the Russian Federation), clarifies the circumstances relevant to the case, determines the evidence that each party must submit (Art. 148 Code of Civil Procedure of the Russian Federation); appoints an examination, sends letters of request (Article 150 of the Code of Civil Procedure of the Russian Federation). This testifies to the complication of the role of the court in conducting a truly adversarial process.

In addition, in cases related to the protection of the rights of the child, civil procedural legislation retains the right of the court to collect evidence (Article 272 of the Code of Civil Procedure of the Russian Federation). When preparing an adoption case, the court obliges the guardianship and guardianship authorities to submit an opinion on the validity and compliance of the adoption with the interests of the child.

The guardianship and guardianship authorities must attach to the said documents an act of examining the living conditions of the adoptive parent, a birth certificate of the child, a medical report on the state of his health, his consent to adoption, parental consent, if necessary, and other documents.

Let's turn to specific example from judicial practice. So, when considering the application of citizen Zh. for the adoption of a minor son of his wife, born in 1995, in order to prepare the case for trial, the judge did not impose on the guardianship and guardianship authorities the obligation to submit to the court an act of examining the living conditions of the spouses Zh.

Thus, the court's conclusion that the adoptive parent's living conditions correspond to sanitary and hygienic requirements is not supported by any evidence.

The court is also obliged, on its own initiative, upon dissolution of a marriage between spouses in the event that there is no agreement between them, to determine with which parent the children will live after the divorce and to collect child support (clause 2, article 24 of the RF IC). In addition, the court is obliged, on its own initiative, to collect child support when considering the issue of deprivation of parental rights (Article 70. 73 of the RF IC). He has the right to collect alimony even if the adoption is canceled (Article 140, paragraph 4 of the RF IC).

Family law contains provisions obliging the court, on its own initiative, to consider issues aimed at protecting the interests of children who, when filing statements of claim, were not the subject of a claim.

For example, in paragraph 13 of the Resolution of the Plenum Supreme Court RF dated May 27, 1998 No. 10 “On the application of legislation by courts in resolving disputes related to the upbringing of children” (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 6, 2007 No. 6) states that courts should take into account that deprivation parental rights is a last resort.

In exceptional cases, when the parent's guilty behavior is proven, the court, taking into account the nature of his behavior, personality and other specific circumstances, has the right to refuse to satisfy the claim for deprivation of parental rights and warn the defendant about the need to change his attitude to raising children, entrusting the guardianship and guardianship authorities with control over the implementation them parental responsibilities.

Denying a claim for deprivation of parental rights, the court, in the presence of these circumstances, has the right, in accordance with Art. 73 of the Family Code of the Russian Federation also resolve the issue of taking the child away from the parents and transferring it to the guardianship and guardianship authorities, if this is required by the interests of the child (restriction of parental rights).

So, Shch. and the prosecutor of the G-th district filed a lawsuit to deprive A. of parental rights in relation to the minor child V. In support of the claim, Shch. indicated that he lived in a civil marriage with the defendant from 1996 to 2000. From this marriage have a minor child V., in respect of which he established paternity. He currently lives in a registered marriage with another family. Defendant A. abuses alcohol, does not work anywhere. Being in drunkenness, leaves the child at home alone and disappears for long terms. For this reason, the girl was repeatedly placed in a social shelter. S.H. and his real wife they want to take the child in and for this they carry out repairs at home, rebuilding the apartment into a three-room apartment, so that the girl and the wife's son can be provided with separate rooms. Since September 2006, the girl has been living with his mother (grandmother), who takes the child to school and picks her up. The prosecutor believes that A. should be given last chance, limit parental rights and transfer the child to the care of the father. Defendant A. during the court session asked not to deprive her of parental rights, as she loves her daughter. In addition, she has not abused alcohol since March 2007 and is now looking for a job. She also asked me to pay attention to the fact that her house was clean and tidy, and also to that. that when a girl was ill, she showed care and concern for her fate and health, treated and looked after her. The representative of the guardianship and guardianship body explained that A. abuses alcohol, does not raise his daughter. The girl leaves home most lives with her grandmothers, who support and raise her. However, since March 2007 A. has not been drinking alcohol. An examination of the living conditions revealed that the defendant's house was kept clean and tidy. When the child was ill, A. treated and looked after her.

The court sees the guilty behavior of A. in relation to his child, expressed in the repeated leaving of his daughter unattended for a long time, unwillingness to take care of her. At the same time, the court established that at present the defendant A. is showing signs of care and concern for the fate and health of the child.

Court in accordance with Art. 73 RF IC, paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 No. 10 refused to satisfy the claims. Restricted parental rights of A. in relation to daughter V., born on June 8, 1999. He handed over the minor V. to the care of his father. I collected alimony from A. in the amount of 1/4 of all types of earnings for the maintenance of a minor child. Warned A. about the need to change her attitude to raising child B. If she does not change her attitude to raising her child, after six months after the decision is made, the guardianship and guardianship authority in the interests of children is obliged to file a claim for deprivation of her parental rights. He assigned to the body of guardianship and guardianship of the G-th district control over the fulfillment of A. parental duties in relation to the child - V 3 Archive of the Gorohovets District Court. Case No. 2-99/08..

A specific example from judicial practice shows that the court, on its own initiative, in the interests of the child, will resolve the case not only within the framework of the stated requirements, but also indicated in the decision other issues that were resolved by the court on its own initiative.

It seems that the Code of Civil Procedure of the Russian Federation should take into account the expansion of the functions of the court, including securing the right of the court to participate on its own initiative in identifying and collecting evidence in cases related to the protection of children's rights. In this category of cases, legal proceedings should contain elements of both adversarial and investigative principles. The inclusion of elements of the investigative process in the competition will testify to the special concern of the state for the protection of the rights of the child.

The evidentiary activity of the court can be carried out according to certain categories cases, including cases related to the protection of the rights of the child.

The exclusion of court activity from the process of cognition of facts and subjective rights from the process of proving leads to the formalism of justice, does not correspond to the goal of protecting the real rights of citizens and organizations. The court, to the extent possible, is obliged to manage the process and assist the parties, at their request, in filling the case with evidence. The procedural equality of the parties (persons participating in the case) is not violated in these cases. The child is in the power of mental, spiritual, physical development cannot compete on its own. At the same time, all persons participating in the case have equal opportunities to use the procedural means necessary to express and justify their own legal positions. The release of the child from the competition and the imposition of such a duty on the person who applied to the court for the protection of his violated right, and the body of guardianship and guardianship, as well as the expansion of the functions of the court, is caused, in particular, by the mental and physical immaturity of the child, which does not allow him to independently realize procedural possibilities.

It should be noted that the activities of the courts are based on the principles of constitutional, family and civil procedural law, as well as moral principles. It is the principles in more express the concern of the state for the priority protection of the family rights of the child.

The word "principle" is of Latin origin and means the beginning, the basis. The study of the principles of law and law enforcement activities in legal science is devoted to a number of works from individual scientific articles to monographs.

The principles of judicial protection permeate all the activities of the court. Despite the fact that the basis of judicial protection are the principles of many branches of law, they are the same. Their unity, in particular, is manifested in the appointment of judicial protection of the family rights of the child. They are designed to consolidate the priority of protecting the rights and interests of the child. The principles of judicial protection of the child's family rights are enshrined in the norms of substantive (constitutional, family law) and civil procedural law. The principles of judicial protection of the family rights of the child include: general principles which form the basis of the judicial protection of any participant family relationship, and the principles that determine the activities of the court to protect the rights and legitimate interests of the child, which are of decisive importance when choosing a method of protection.

The fundamental principles are enshrined in the norms of international law.

The Convention on the Rights of the Child, approved by the General Assembly of the PLO on November 20, 1989, proclaims the child a full and full person, an independent subject of law. The States Parties to the Convention have the obligation to accept all necessary measures to create best conditions ensuring the realization of the rights and interests of children.

The UN Convention on the Rights of the Child entered into force for the Russian Federation on September 15, 1990. By this act, Russia confirmed its obligation to comply with the provisions and principles of the Convention and, in case of non-compliance, be responsible to the international community.

The International Covenant on Economic, Social and Cultural Rights of December 16, 1966, which was ratified by Decree of the Presidium of the USSR Supreme Council of September 18, 1973 No. 4812-VIII and entered into force for the USSR on January 3, 1976, establishes the fundamental principles of family protection .

In Art. Article 10 states that the States Parties to the present Covenant recognize that the family, which is the natural and fundamental unit of society, should be accorded the widest possible protection and assistance, especially in its education and while it is responsible for the care and upbringing of dependent children. Marriage must be entered into with the free consent of the prospective spouses.

Special protection should be given to mothers for a reasonable period before and after childbirth. During this period, working mothers should be granted paid leave or leave with sufficient social security benefits. It should also be noted that the courts should take into account the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 and its protocols, which establish the fundamental principles of legal proceedings.

International norms of law containing the principles of legal proceedings are also enshrined in regional international acts adopted by the member states of the Commonwealth Independent States, in particular in the Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Chisinau, October 7, 2002).

To the number constitutional principles of legal proceedings include:

Administration of justice by the court (Article 118 of the Constitution of the Russian Federation, Article 5 of the Code of Civil Procedure of the Russian Federation).
Independence of judges and their subordination only to the law (Article 120 of the Constitution of the Russian Federation, Article 8 of the Code of Civil Procedure of the Russian Federation).
Equality of all citizens before the law and the court (Article 19 of the Constitution of the Russian Federation, Article 6 of the Code of Civil Procedure of the Russian Federation).
Publicity of the trial (Article 123 of the Constitution of the Russian Federation, Articles 10, 182 of the Code of Civil Procedure of the Russian Federation).
Competitiveness (Article 123 of the Constitution of the Russian Federation, Article 12 of the Code of Civil Procedure of the Russian Federation).
Legality (Article 15 of the Constitution of the Russian Federation, Article 195 of the Code of Civil Procedure of the Russian Federation.).
Procedural equality of the parties (Article 123 of the Constitution of the Russian Federation, Article 12 of the Code of Civil Procedure of the Russian Federation).

It should be noted that these principles underlie the activities of the court in the implementation of the rights of both adult participants in the legal relationship and the child, with the exception of the adversarial principle, which has a number of features relating, in particular, to the imposition of obligations to present, collect evidence and participate in the proceedings on child representative.

Principles of civil procedural law on which judicial protection is based are:

The combination of individual and collegiate principles in the consideration and resolution of cases (Article 7 of the Code of Civil Procedure of the Russian Federation).
National language of legal proceedings (Article 9 of the Code of Civil Procedure of the Russian Federation).
Objective truth (Article 12 55 Code of Civil Procedure of the Russian Federation), (judicial truth).
Dispositiveness (Art. 3, 4, 35. 39, 173, 320,326, 336, 345, 376, 394, 423 Code of Civil Procedure of the Russian Federation).
Orality of the trial (Art. 157 Code of Civil Procedure of the Russian Federation).
Immediacy (Art. 157 Code of Civil Procedure of the Russian Federation).
Continuity (Art. 157, 199 Code of Civil Procedure of the Russian Federation).

These principles determine judicial protection, as well as constitutional ones, regardless of the age of the person whose rights are violated (challenged).

TO family law principles that underlie the activities of the court to protect the rights of the child, should include:

1. Ensuring priority protection of the rights and interests of the child (Articles 54. 56, 65, 68, 72, 73, 76, 131 of the RF IC).

The meaning of ensuring the priority protection of the family rights and interests of the child is that the court, resolving a dispute or other requirement related to the upbringing of children, is obliged to make a decision in the interests of the child, leaving in some cases the legitimate demands of other persons and, above all, parents ( persons replacing them) if these requirements do not meet the interests of the child, regardless of the fact that the rights of these persons are violated. So, according to paragraph 1 of Art. 68 of the Family Code of the Russian Federation, a parent has the right to demand the return of a child from any person who keeps him or her not on the basis of the law or on the basis of judgment. However, the court has the right, taking into account the opinion of the child, to refuse to satisfy the demand of the parents, if it comes to the conclusion that the transfer of the child to the parents is not in his interests.

According to paragraph 4 of Art. 72 of the Family Code of the Russian Federation, parents can be restored in parental rights if they have changed their behavior, lifestyle and attitude to raising a child. At the same time, the court has the right, taking into account the opinion of the child, to refuse to satisfy the claim for the restoration of parental rights, if the restoration is contrary to the interests of the child.

In this regard, the following example from judicial practice is indicative.

K. contacted Yu district court with a claim for the restoration of her parental rights in relation to son V., born on August 13, 1991, son A., born on May 8, 1997, son Y., born on September 21, 2000, daughter D., September 28 2002 year of birth. The lawsuit is motivated by the fact that she realized her guilt, loves children very much and will make every effort to ensure their proper maintenance and upbringing. In resolving the case, the court considered it possible to satisfy K.'s application for the restoration of parental rights in relation to her children. In support of its conclusion, the court pointed out that all the materials of the case, the testimonies of witnesses, the conclusion of the representative of the education department and the prosecutor established the fact that K. had been corrected for the better.

However, this conclusion of the court does not correspond to the materials of the case, from which it is seen that at the court session the representative of the Department of Education of the Administration of the South District considers it inappropriate at the present time to return the children to their mother. At the same time, she pointed out that until the encoding period ends, it is premature to raise the question of restoring her parental rights. In the conclusion, the Department of Education of the Administration of the South District stated that K. had been abusing alcohol for about 10 years. It is currently encoded for one year. Has a large debt on alimony as of May 1, 2007 - 44,206 rubles. 20 kop. If she visited younger children in orphanage, then the older children who were with the guardian were deprived of her attention. She did not buy gifts for them, was not interested in their life and health. V.'s eldest son has a serious blood disorder that she knows about. He was repeatedly treated in the regional hospital, resuscitation. She never visited him. In addition, the minor son A., born on May 8, 1997, interrogated at the court session, did not answer the question of the court: does he want to live with his mother again? 4 Generalization of the judicial practice of consideration by the courts of the Vladimir region of civil cases on the protection of family rights of the child for 2006 1st half of 2007..

Thus, it must be assumed that the conclusion of the court on the restoration of K.'s parental rights is erroneous, not complying with the requirements of Art. 72 RF IC.

2. Priority family education child (Art. 54, 63, 68, 123 RF IC).

Every child has the right to live and be brought up in a family, by his parents (clause 2, article 54 of the RF IC); parents have a preferential right to raise children over all other persons (clause 2, article 63 of the RF IC). Parents have the rights and obligations to raise and educate children (Articles 38. 43 of the Constitution of the Russian Federation, Articles 5, 52 of the Law of the Russian Federation of July 10, 1992 No. 3266-1 "On Education").

Children left without parental care are subject to transfer for upbringing to a family (for adoption) and only if it is impossible to transfer to a family - under guardianship or in foster family(Art. 123 RF IC).

3. Definition of a child as an independent participant in a legal relationship (Articles 56, 57, 142 of the RF IC);

Family law defines the child as an independent participant in family, and in some cases - civil procedural relations. The fundamental provisions are formulated in Art. 12 of the Convention on the Protection of the Rights of the Child, which states that States Parties shall ensure to the child who is capable of formulating his own views the right to express those views freely in all matters affecting the child, with the views of the child given due weight in accordance with the age and maturity of the child. To this end, the child shall, in particular, be given the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in accordance with the procedural rules of national law.

So, according to paragraph 2 of Art. 56 of the Family Code of the Russian Federation, in case of violation of the rights and legitimate interests, including in case of failure or improper fulfillment by parents (one of them) of the duties of raising, educating the child or in case of abuse of parental rights, the child has the right to independently apply for their protection to the guardianship and guardianship authority , and upon reaching the age of 14 years - to the court. He also has the right to demand the annulment of the adoption.

Art. 57 of the Family Code of the Russian Federation gives the child the right to express his opinion when resolving any issue in the family that affects his interests, as well as to be heard in the course of any trial. Moreover, taking into account the opinion of a child who has reached the age of 10 is mandatory, except in cases where this is contrary to his interests.

If, when resolving a dispute related to the upbringing of children, the court comes to the conclusion that it is necessary to interview a minor in a court session in order to clarify his opinion on the issue under consideration (Article 57 of the RF IC), then you should first find out the opinion of the guardianship and guardianship authority on whether whether the child will be adversely affected by his or her presence in court. The survey should be carried out taking into account the age and development of the child in the presence of a teacher, in an environment that excludes the influence of interested parties on him.

When questioning a child, the court needs to find out whether the child’s opinion is the result of the influence of one of the parents or other interested persons on him, whether he is aware of his own interests when expressing this opinion and how he substantiates it, and similar circumstances.

A generalization of the judicial practice of consideration by the courts of the Vladimir Region of civil cases on the protection of the family rights of the child for 2006 - the first half of 2007 showed that, as a rule, children in court are interrogated in the presence of guardianship and guardianship authorities with the removal of parents from the courtroom.

The civil procedural law grants the right to apply to the court to persons who have full procedural capacity, which has come in connection with the age of majority. It seems that the judge does not have the right to refuse to accept the child's application, but is obliged to accept the application and involve the child's representative in the case.

In judicial practice, there is a case when the child himself went to court with a claim for deprivation of parental rights.

So, for example, O., born on January 18, 1990, applied to the court to deprive her father of parental rights. In support of the claim, O. stated that her mother had died on November 30, 2002, and that the defendant had not been married to her. He never lived with them, did not maintain any relations, did not correspond. After the death of his mother, the defendant did not take her to him, he was never interested in her life, fate and studies. Defendant O. agreed with the claims for deprivation of parental rights, asked the court to consider the case in his absence. The body of guardianship and guardianship in the interests of a minor issued a conclusion on the deprivation of O.'s parental rights and the transfer of the plaintiff to the upbringing of a guardian. Claim satisfied 5 Archive of the Gorohovets District Court. Case No. 229/06..

If the child's representative refuses to support the child's claim, his interests must be represented by the guardianship and guardianship authorities. The guardianship and guardianship authorities, if necessary, are obliged to appoint a representative for the child. Appropriate changes should be made to the Code of Civil Procedure of the Russian Federation. When resolving certain issues affecting the interests of a child who has reached the age of 10 years, the court must find out his opinion. It should be noted that the opinion of the child is obligatory in the cases provided for in Art. 59, 72, 132, 134, 136, 143, 153 of the RF IC, as mentioned above. The court may depart from this rule only if the opinion of the child is contrary to his interests.

4. The participation of both parents in the upbringing of children (Articles 63, 65, 66, 68 of the RF IC).

The rights and responsibilities for the upbringing of children are assigned to both parents. According to paragraph 2 of Art. 65 of the Family Code of the Russian Federation, all issues related to the upbringing and education of children are decided by the parents by their mutual consent, based on the interests of the children and taking into account the opinions of the children. In case of disagreement, one of them has the right to go to court. In accordance with Art. 66 of the Family Code of the Russian Federation, a parent living separately from the child has the right to participate in his upbringing and in resolving issues related to the child's education.

5. In order to ensure the protection of the interests of a child placed for adoption (Article 139 of the RF IC), the secrecy of adoption is provided. Judges who have issued a decision on the adoption of a child, or officials who have carried out state registration of the adoption, as well as other persons who are aware of the adoption, are obliged to keep the secret of the adoption of the child. To ensure the secrecy of the adoption of a child, Art. 134, 135, 136 of the RF IC provides for the possibility of changing the last name, first name, patronymic, date and place of birth of the child. In addition, adoptive parents may be recorded as the parents of an adopted child. In case of disclosure of secrets, these persons are subject to liability under Art. 155 of the Criminal Code of the Russian Federation (hereinafter - the Criminal Code of the Russian Federation) "Disclosure of the secret of adoption (adoption)".

An application for adoption is considered in a closed court session (Article 273 of the Code of Civil Procedure of the Russian Federation) in order to preserve the secrecy of adoption. Cases of disclosure of the secrets of adoption are associated with the will of the adopter (clause 2, article 139 of the RF IC, article 155 of the RF Criminal Code).

The secrecy of adoption contributes to the creation of a truly kinship relationship between the adopter and the adopted child, the stability of adoption, and facilitates the upbringing of the child. Thus, the secrecy of adoption is necessary for the normal existence of the family, the successful development of the adopted child, and the preservation of the peace of persons who are not blood relatives.

The conditions that ensure the secrecy of the adoption of a child are reflected in the norms of both procedural and substantive law. Thus, in particular, paragraph 6 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated April 20, 2006 No. 8 “On the application of legislation by courts when considering cases of adoption (adoption) of children” contains the following explanations: “In order to ensure the secrecy of adoption protected by law (Article 139 RF IC) court in accordance with Art. 273 of the Code of Civil Procedure of the Russian Federation considers all cases of this category in a closed court session, including the announcement of the decision.

As shown by the analysis of cases on the protection of the family rights of the child, considered by the courts of the Vladimir region, these requirements of the law are not always observed by judges.

Thus, the civil case on the application of the spouses 3. on the adoption of P., born on September 7, 2006, as follows from the protocol of the court session, was considered by the court in open court. At the same time, the decision states that the case was considered in a closed court session. 6 Generalization of the judicial practice of consideration by the courts of the Vladimir region of civil cases on the protection of the family rights of the child for 2006 - the 1st half of 2007. Case No. 22084/06..

Persons involved in the consideration of the case must be warned about the need to keep secret information about adoption that has become known to them, as well as about the possibility of criminal liability for divulging the secret of adoption against the will of the adopter in the cases provided for in Art. 155 of the Criminal Code of the Russian Federation, which is reflected in the minutes of the court session.

As shown by the generalization of judicial practice in the consideration by the courts of the Vladimir region of cases on the protection of the family rights of the child for the period 2006 - the first half of 2007, in violation of the requirements of Part 3 of Art. 10 of the Code of Civil Procedure of the Russian Federation, the courts do not warn the persons participating in the case about maintaining the secrecy of adoption. This error occurs in numerous cases.

6. Preventive orientation (Articles 68, 69, 72, 73, 76. 130, 140 of the RF IC).

The rules governing issues relating to the rights and interests of the child are also of a preventive nature. They are aimed at preventing and suppressing violations of the interests of the child. So, according to Art. 72 of the RF IC, parents (one of them) can be reinstated in parental rights if they have changed their behavior, lifestyle and (or) attitude to raising a child. By virtue of Art. 73 of the RF IC, the court may, taking into account the interests of the child, decide to take the child away from the parents without depriving them of parental rights. If the parents do not change their behavior, the guardianship and guardianship authorities, after 6 months after the court's decision, are required to file a lawsuit in court to deprive them of parental rights.

7. Availability of judicial protection.

This principle is enshrined in Art. 9, 12 of the Convention on the Protection of the Rights of the Child, Art. 2 Chisinau and Minsk Conventions, Art. 56 RF IC, Art. 3, 89 Code of Civil Procedure of the Russian Federation, Art. 333.35, 333.36 of the Tax Code of the Russian Federation.

Thus, in the interests of a child, a civil case may be initiated by a judge upon an application, complaint, or lawsuit. a wide range persons. The legislation provides for the exemption of plaintiffs (applicants) from the state fee in cases related to the protection of the family rights of the child (Article 89 of the Code of Civil Procedure of the Russian Federation, Article 23 of the Federal Law of July 24, 1998 No. 124-FZ “On Basic Guarantees of the Rights of the Child in the Russian Federation” , article 333.36 of the Tax Code of the Russian Federation).

The availability of judicial protection is evidenced by alternative jurisdiction in cases of recovery of alimony (Article 29 of the Code of Civil Procedure of the Russian Federation), reduced terms for considering applications for the recovery of alimony (Article 154 of the Code of Civil Procedure of the Russian Federation), simplified legal proceedings (order) (Chapter 1 I of the Code of Civil Procedure of the Russian Federation), immediate execution of decisions on the award of alimony (Article 211 of the Code of Civil Procedure of the Russian Federation); non-distribution of limitation periods to claims for the protection of the rights of the child, with certain exceptions (Article 9 of the RF IC)

8. The interest of the state in the judicial protection of the rights of the child (Articles 1, 8, 56, 123 of the RF IC).

The state is interested in creating for every child necessary conditions For comprehensive development, welfare, upbringing in a family that is natural environment his habitat; family, motherhood, fatherhood and childhood in the Russian Federation are under the protection of the state. All the advantages and privileges provided for by law, established in the norms of procedural and substantive law, testify to the state-legal guardianship of the child in the process of exercising his rights, including in protecting the rights of the child.

This is what determines the essence of judicial protection of family rights and interests of the child. When deciding on a claim related to the interests of children, the court is also guided by the principles of morality. Moral principles enshrined in Art. 5 of the RF IC, and many other norms are based on them family code RF. The principles of morality include humanity, rationality and justice.

The principles of morality are manifested:

firstly, in the fact that in the absence of norms regulating the relations that have arisen, the rights and obligations of family members are determined on the basis of the principles of morality (reasonableness and justice);
secondly, judicial decisions taken in accordance with the norms of the law must be humane, reasonable and fair.

In accordance with the Concept for the Development of Civil Legislation (approved by the decision of the Council under the President of the Russian Federation on codification and improvement of civil legislation of October 7, 2009), the principle of good faith of participants in civil legal relations is provided for.

The judgment must comply with the requirements of Chapter 16, Art. 268, 274. 285, 289, Code of Civil Procedure of the Russian Federation, as well as the requirements. specified in the Decree of the Plenum of the Supreme Court of the Russian Federation of December 19, 2003 No. 23 “On the Judgment”.

It should be noted that at all stages of legal proceedings, there is an interaction between the norms of civil procedural and family law. Elucidation of the nature of their relationship has both practical and theoretical significance, as indicated in the literature. In the legal literature, various points view on the relationship between substantive and procedural law.

According to some scholars, substantive law determines the process in which it is applied, and not vice versa. Procedural law also establishes procedural forms that are objectively required for the application of the norms of a particular branch of substantive law.

According to Professor P.F. Eliseikin, the use of civil proceedings to protect labor, family and collective farm legal relations did not have any significant impact on the nature of civil procedural norms and their content.

According to other scholars, substantive and procedural law are independent industries interacting with each other. This approach seems to be quite reasonable.

Civil legal proceedings are a form of exercising substantive law. It should be specially noted that the procedural norms are contained not only in the procedural legislation, but also in the Family Code of the Russian Federation. There are interacting institutions in civil procedural and family law. The general procedure for legal proceedings in family cases is determined by civil procedural law. The whole set of procedural rules governing the judicial protection of family rights, as rightly noted by N.M. Kostrov, consists of general, special and exceptional 7 Kostrova N.M. Family litigation. Makhachkala. 1978, p. 4..

General rules are the rules that govern the process at all its stages. Special - rules for the proceedings of certain categories of cases. Exceptional rules are exceptions to the general and special rules of procedure. Thus, civil procedural law regulates the procedure for initiating cases, their preparation for trial, trial, the issuance and execution of decisions, and other issues.

Separate features of legal proceedings are enshrined in family law.

Family law contains special procedural rules. They relate to all stages of the process: initiation of a case, preparation for trial, trial, enforcement proceedings.

These rules are divided into:

rules of jurisdiction of family affairs;
provisions on persons participating in the case;
special rules of proof;
special statute of limitations.

They should also include the rules that define the principles of judicial protection, types of forms of legal proceedings, features of enforcement proceedings.

So Art. 28, 49, 52, 70, 72, RF IC are interconnected with art. 3, 273 of the Code of Civil Procedure of the Russian Federation and determine the persons who have the right to apply to the court for the protection of the rights and interests of the child. Art. 64 of the Family Code of the Russian Federation regulates the issue of representing the interests of the child in court and is interconnected with Art. 52 Code of Civil Procedure of the Russian Federation.

Art. 66, 79, 112, 113 of the UK and Section 7 of the Code of Civil Procedure of the Russian Federation regulate the enforcement of court decisions in disputes related to the protection of the rights of the child.

Art. 78 of the Family Code of the Russian Federation establishes the mandatory participation in cases related to the protection of the rights of the child of guardianship and guardianship authorities and supplements Art. 46 Code of Civil Procedure of the Russian Federation.

Art. 56, 57, 142 of the RF IC define the child as an independent subject, his procedural capacity.

Art. 29, 65. 68. 72, 124 of the RF IC establish the principles of judicial protection and supplement Chapter I of the Code of Civil Procedure of the Russian Federation. So, based on the interests of the child, the court has the right to refuse the demand of the parents to transfer him to foster care, to restore parental rights.

Art. 139 of the IC of the Russian Federation establishes the secrecy of adoption, and also supplements the norms of the Code of Civil Procedure of the Russian Federation on the principles of legal proceedings (Chapter 1 of the Code of Civil Procedure of the Russian Federation).

Art. 8, 11, 49, 50, 125 of the IC of the Russian Federation establish the types of forms of legal proceedings and are interconnected with the rules of chapter chapter 3, 23, 27 of the Code of Civil Procedure of the Russian Federation.

The inclusion of procedural norms in family law, which clarify or supplement the rules of legal proceedings, has received various assessments in scientific literature. Some scientists do not approve of such rules, while others, on the contrary, support them.

Since the main jurisdictional form of protection of rights is judicial, which meets the requirements of the Constitution of the Russian Federation and the norms of international law, and also meets the tasks of legal democratic state, it seems quite justified to fix certain special rules of procedure in family law.

They supplement the general rules of legal proceedings, and also determine its features in certain categories of cases. This is also due to the fact that certain provisions of the civil procedural law largely do not correspond to the substantive law, and the inclusion of rules governing certain elements of the process in family law is an attempt by the legislator to eliminate problems and regulate relations more carefully. It seems that the rules established by family law should be included in the civil procedural law.

It must be assumed that a section called “Proceedings in cases involving a child” should be introduced into the Code of Civil Procedure of the Russian Federation. Several chapters should be placed in this section: “Proceedings on the protection of the rights of the child. General provisions”, “Proceedings on cases of determining the forms of placement of children left without parental care”, etc.

In the chapter “Proceedings on the protection of the rights of the child. General Provisions” could contain rules for initiating a case, its preparation for trial and trial. as well as the rules fixing the procedural status of persons involved in cases related to the protection of the rights of the child; establishing incomplete procedural capacity from the age of 14; providing for the obligation of the court to involve the body of guardianship and guardianship in the case initiated at the request of a child aged 14 to 18 years; prohibiting the termination of proceedings in a case without the consent of a child who has reached the age of 14, and guardianship and guardianship authorities; establishing the obligatory clarification of the opinion of a child who has reached the age of 10 years on all issues related to the protection of his rights (Article 57 of the RF IC), collegial consideration of cases, etc.

It seems that there is a need to create "family" courts that would consider civil cases related to the protection of the child's family rights, criminal and administrative cases involving children.

This problem discussed at the state level. Decree of the President of the Russian Federation of September 14, 1995 No. 942 “On approval of the main directions of the state social policy to improve the situation of children in the Russian Federation until the year 2000 (National Plan of Action for Children)," one of the measures to protect the rights of children provided for the creation of a juvenile justice system, special compositions of family and juvenile courts.

The state once again draws attention to the need to create a system of juvenile justice in the Program for the socio-economic development of the Russian Federation for the medium term (2006-2008), approved by order of the Government of the Russian Federation of January 19, 2006 No. 38-r, the need to create juvenile justice is also mentioned in the annual reports of the Commissioner for Human Rights in the Russian Federation.

Decree of the President of the Russian Federation "On approval of the Concept of the demographic policy of the Russian Federation for the period up to 2025" dated October 9, 2007 No. 1351 approved the main directions of state policy to improve the situation of children in the Russian Federation.

Thus, the opinions of many scientists in the field of family law and the scientific justification for the need to create specialized courts of the juvenile justice system have found understanding at the state level, which is confirmed by the adoption of relevant legal acts, but real actions in this direction have not been taken by the state to date.

Minors, due to their age, have not reached the appropriate level of mental development in order to be fully aware of what is happening in the process, they do not have independent material support for this (this is important for a civil lawsuit). Therefore, there are features in the framework of the criminal process involving minors. The majority of minors are aged 16 to 18, but there are also 14 to 16, it depends on the age of criminal responsibility.

Regulatory framework - Code of Criminal Procedure + minimum norms and standards of the UN + Resolution of the General Assembly 29.11.1985. (Beijing rules). The criminal and criminal law of the Russian Federation was created taking into account these rules.

Initiation of a case. There are 3 reasons for initiating a criminal case - a statement, a confession or another message. The body, the person at this stage, before initiating the case, must establish the exact age of the person, if there is reason to believe that this person is a minor, and if there is no age of criminal responsibility, a refusal under Article 24 of the Code of Criminal Procedure for lack of evidence. To determine the age, documents are checked or an examination is appointed.

Detention. If a minor is detained, then it is necessary to take measures to establish his identity. If there is no age of criminal responsibility, then they refuse to initiate a criminal case, in any case, he is released from liability. If a minor is detained, he must immediately provide a lawyer. You must also notify your legal representative immediately.

preliminary investigation. According to the Beijing Rules, it can be conducted by persons with sufficient qualifications. According to the Criminal Procedure Code of the RSFSR, there was only an investigator, according to the Code of Criminal Procedure of the Russian Federation, there was also an interrogating officer.

Features of the subject of proof.

During the preliminary investigation and trial in a criminal case of a crime committed by a minor, along with proving the circumstances specified in Art. 73 of the Code of Criminal Procedure, are established:

1) the age of the minor, day, month and year of birth;

2) the conditions of life and upbringing of a minor, the level of mental development and other features of his personality; this includes: what are the parents, persons replacing them; material support of the family, whether the child has everything necessary, living conditions, form of leisure activities, characteristics at the place of study, relations with classmates, level of mental development - a comprehensive psychological and psychiatric examination can be assigned, it is checked whether the minor understood the nature of his actions, could he lead them?

3) influence on the minor by older persons.

If there is evidence of a mental retardation not associated with a mental disorder, it is also established whether the minor could fully realize the actual nature and social danger of his actions (inaction) or manage them.

If a minor committed an act together with an adult, then the actions of an adult are established - he is brought under the article that they committed together + the involvement of minors in criminal activity.

The question is raised about the circumstances excluding the criminality of the act - mental, physical impact.

Separation into separate production. A criminal case against a minor who participated in the commission of a crime together with an adult is separated into a separate proceeding in accordance with the procedure established by Article 154 of the Code of Criminal Procedure. If it is not possible to separate a criminal case into a separate proceeding, then the rules of this Chapter shall apply to a minor accused brought in the same criminal case as an adult.

Choosing a measure of restraint. The detention of a minor suspect, as well as the application of a preventive measure in the form of detention to a minor suspect, the accused, is carried out in the manner prescribed by Articles 91, 97, 99, 100 and 108 of the Code of Criminal Procedure. When deciding on the choice of a measure of restraint for a minor suspect, the accused, in each case, the possibility of placing him under supervision in the manner prescribed by Article 105 of the Code of Criminal Procedure should be discussed. The arrest, detention or extension of the period of detention of a minor suspect or accused shall be immediately notified to his legal representatives.

Summons for interrogation. Summons of a minor suspect, accused, who is not in custody to a prosecutor, investigator, interrogating officer or to court shall be made through his legal representatives, and if the minor is kept in a specialized institution for minors, through the administration of this institution.

interrogation. The interrogation of a minor suspect, accused cannot continue without a break for more than 2 hours, and in total more than 4 hours a day.

In the interrogation of a minor suspect, the accused, a defense counsel participates, who has the right to ask him questions, and at the end of the interrogation to get acquainted with the protocol and make comments about the correctness and completeness of the records made in it.

In the interrogation of a minor suspect, an accused who has not reached the age of sixteen years or has reached this age, but who suffers from a mental disorder or is mentally retarded, the participation of a teacher or psychologist is mandatory. The prosecutor, investigator, interrogator shall ensure the participation of a teacher or psychologist in the interrogation of a minor suspect or accused at the request of a defense counsel or on their own initiative.

A teacher or a psychologist has the right, with the permission of the prosecutor, investigator, interrogating officer, to ask questions to a minor suspect, accused, and at the end of the interrogation to get acquainted with the interrogation protocol and make written comments about the correctness and completeness of the records made in it. These rights are explained by the prosecutor, investigator, interrogator to a teacher or psychologist before interrogation of a minor suspect, accused, which is noted in the protocol.

Mandatory participation of a defender. Art.51. For the investigator, prosecutor, court, the refusal of a specific defense attorney is optional, if the refusal is accepted, then a new defense attorney must be provided -

Since the initiation of the case,

Since the arrest

Since the indictment.

Legal representative. Legal representatives of a minor suspect or accused shall be allowed to participate in a criminal case on the basis of a decision of the prosecutor, investigator, interrogating officer from the moment of the first interrogation of the minor as a suspect or accused.

The legal representative has the right:

1) know what the minor is suspected or accused of;

2) to be present at the presentation of charges;

3) participate in the interrogation of a minor suspect, accused, and also, with the permission of the investigator, in other investigative actions carried out with his participation and the participation of the defense counsel;

4) get acquainted with the protocols of investigative actions in which he took part, and make written comments on the correctness and completeness of the entries made in them;

5) file motions and challenges, file complaints against actions (inaction) and decisions of the inquirer, investigator, prosecutor;

6) present evidence;

7) at the end of the preliminary investigation, get acquainted with all the materials of the criminal case, write out any information from it and in any volume.

At the end of the preliminary investigation, the prosecutor, investigator, interrogating officer shall have the right to issue a decision not to present to the minor accused for familiarization those materials of the criminal case that may have a negative impact on him. Familiarization with these materials of the legal representative of a minor accused is mandatory.

A legal representative may be dismissed from participation in a criminal case if there are grounds to believe that his actions are detrimental to the interests of a minor suspect or accused. The prosecutor, investigator, interrogating officer shall issue a resolution on this. In this case, another legal representative of the minor suspect or accused shall be allowed to participate in the criminal case.

Coercive measures of educational influence. If during the preliminary investigation of a criminal case on a crime of small or medium gravity it is established that the correction of a minor accused can be achieved without the application of punishment, then the prosecutor, as well as the investigator and the inquirer, with the consent of the prosecutor, have the right to issue a decision to terminate the criminal prosecution and initiate a petition before the court on the application to a minor accused of a compulsory measure of educational influence, provided for in the second part of Article 90 of the Criminal Code of the Russian Federation, which, together with the criminal case, is sent by the prosecutor to the court.

The court, in its ruling on the application of a compulsory measure of educational influence to a minor accused, has the right to impose on a specialized institution for minors control over the fulfillment of the requirements provided for by a compulsory measure of educational influence.

In the event of systematic non-compliance by minors with these requirements, the court, at the request of a specialized institution for minors, cancels the decision to terminate criminal prosecution and apply a coercive measure of educational influence and sends the materials of the criminal case to the prosecutor.

Court hearing. The legal representatives of the minor defendant are summoned to the court session, who have the right to:

1) file petitions and challenges;

2) testify;

3) present evidence;

4) participate in the debate of the parties;

5) file complaints against actions (inaction) and decisions of the court;

6) participate in the session of the courts of appeal, cassation and supervisory instances.

By court ruling or ruling, a legal representative may be removed from participation in the trial if there is reason to believe that his actions are detrimental to the interests of the minor defendant.

The failure to appear in due time by the legal representative of the minor defendant shall not suspend the consideration of the criminal case, unless the court finds his participation necessary. This is done so as not to have a minor traumatic effect on the defendant.

At the request of a party, as well as on its own initiative, the court has the right to decide on the removal of a minor defendant from the courtroom for the period of investigation of circumstances that may have a negative impact on him.

After the return of the juvenile defendant to the courtroom, the presiding judge informs him, in the necessary volume and form, of the content of the trial that took place in his absence, and provides the juvenile defendant with the opportunity to ask questions to the persons interrogated in his absence.

Sentence ruling. When passing a sentence on a minor defendant, the court is obliged to decide on the possibility of releasing the minor defendant from punishment in the cases provided for in Article 92 of the Criminal Code of the Russian Federation, either on conditional conviction, or on imposing a sentence not related to deprivation of liberty. The court indicates which specialized institution for juveniles is entrusted with exercising control over the behavior of the convict.

If, when considering a criminal case on a crime of small or medium gravity, it is established that the minor who committed this crime can be corrected without the application of criminal punishment, the court terminates the criminal case in relation to such a minor and applies to him a compulsory measure of educational influence, provided for in part two. Article 90 of the Criminal Code of the Russian Federation.

Those. if a crime of small or medium gravity - m.b. PMVV, conditional sentence, punishment without imprisonment.

Serious and especially serious crimes - institutions of a closed type, but not more than 3 years.

If a person becomes an adult, then his stay is prematurely terminated, if there is no need for further application of this measure to him.

The extension of the period of stay of a minor convict in a special educational institution of a closed type is allowed only at the request of a minor convict if it is necessary for him to complete general education or vocational training. Termination of the stay of a minor convict in a special educational institution of a closed type or transfer of him to another special educational institution of a closed type is carried out on the proposal of the administration of the said institution and the commission on juvenile affairs and the protection of their rights formed by the local self-government body, at the location of the said institution or at the request of a minor convict, his parents or legal representatives.

Civil legal proceedings as a form of realization of the right to protection. Among the means state protection judicial protection occupies a special place, since it is carried out independently and independently in the system state power a judicial body specially designed to ensure by its activities the rights and freedoms of a person and a citizen (hence: a child). The Constitutional Court of the Russian Federation, when characterizing the rights to judicial protection, considers it as one of the basic inalienable human rights and at the same time a guarantee and means of ensuring all other rights and freedoms.

According to Art. 46 of the Constitution of the Russian Federation, every citizen is guaranteed judicial protection of his rights and freedoms. This constitutional provision applies to all citizens regardless of their age. Judicial protection of rights and legitimate interests should be understood as the activities of the courts carried out in a certain order, aimed at restoring (recognizing) violated (disputed) rights and legitimate interests through the application of the methods of protection provided for by law. Judicial protection can take place only in a certain order, which is established by law. The Constitution calls it constitutional, civil, administrative and criminal proceedings (part 2 of article 118).

In the order of civil proceedings, cases arising from civil, administrative, labor, family, tax and other legal relations are considered. IN this case the main means of judicial protection of rights and legitimate interests as a set of methods for applying methods of protection are: a claim (statement, complaint), a court order (decision, absentee decision, court order, ruling on the approval of a settlement agreement), cassation and supervisory complaint, an application for reconsideration of the case due to newly discovered circumstances, etc.

The choice of the type of judicial remedy is determined depending on the nature of the legal relationship that has arisen, the stated claim, legal status subject, etc. Thus, a statement of claim is filed in the presence of a dispute about the right, in which two parties participate, and the relationship between which is characterized by the method of equality (claim proceedings); complaint - if there is a dispute about the right of an administrative nature (proceedings in cases arising from administrative legal relations); application - in cases of special proceedings, the purpose of which is to identify and ascertain those or other circumstances with which the rule of law associates the emergence, change or termination of certain rights or obligations of the applicant.

The realization of the right to apply for judicial protection is possible only if there are prerequisites provided for by law, which act as indispensable conditions for initiating a civil case in a court of first instance.

One of the most important prerequisites for the right to apply for judicial protection is the existence of legal personality among the subjects of civil procedural relations (public relations between the court and participants in the process that arise and develop in the administration of justice in a particular case, regulated by the norms of civil procedural law). In the literature, the concept of legal personality combines legal capacity and legal capacity.

Civil procedure law and legal capacity. Civil procedural legal capacity is recognized equally for all citizens of the Russian Federation, including minors, organizations that have the right to judicial protection of rights, freedoms and legitimate interests by law.

Civil procedural legal capacity is understood as the ability of a subject to acquire (have) civil procedural rights and civil procedural obligations, provided for by the norms of civil procedural law (Article 36 of the Code of Civil Procedure of the Russian Federation). The absence of such ability excludes the possibility of participation in the consideration and resolution of the case. Thus, civil procedural legal capacity is the possibility established by law to be a participant in legal proceedings. Legal capacity terminates at the time of death.

In order to participate in the process in order to protect their subjective rights and legitimate interests, a citizen must have material legal capacity, i.e. the ability to have the appropriate material rights and bear the corresponding legal obligations.

The concept of civil procedural legal capacity is important practical value, because an incompetent subject cannot be a participant in a civil procedural legal relationship at all. An attempt by such a subject to take part in the proceedings in a civil case in one or another procedural capacity must be stopped by a refusal to admit him to the process or by termination of procedural relations with him.

If civil procedural legal capacity is an abstract possibility of a person to be a participant in the process in a particular case, i.e., the bearer of civil procedural rights and obligations, then the ability of such a participant to exercise procedural rights and obligations or entrust the conduct of a case to a representative is called civil procedural capacity (Article 37 Code of Civil Procedure of the Russian Federation). Civil procedural capacity is a legal property only individuals participating in the process as a party or a third party. Such legal capacity is not a legal characteristic of collective entities, including legal entities, because such subjects of the process have the ability to "have" and the ability to "exercise by their actions" procedural rights and obligations arise simultaneously. For this reason, Art. 37 of the Code of Civil Procedure is fully devoted to the regulation of the civil procedural capacity of citizens protecting their rights and legitimate interests.

The main question that arises in the analysis of civil procedural capacity is the moment of its occurrence and the consequences of its absence. Article 37 distinguishes four categories of citizens depending on their age and state of health.

The first category is citizens who have reached the age of 18 and therefore have full procedural capacity, who can exercise procedural rights and obligations by their own actions, as well as entrust the case to a representative (part 1 of article 37). This category also includes citizens who have not reached the age of 18, but who are recognized as fully capable by virtue of marriage before reaching marriageable age or in the manner of emancipation (part 2 of article 37).

The second category is citizens aged 14 to 18 who, by virtue of a direct indication of the law, have full civil procedural capacity. This category of citizens, as well as the conditions for their full civil procedural capacity, are provided for in Part 4 of Art. 37 Code of Civil Procedure of the Russian Federation, Art. 13 and 62 of the RF IC, Art. 63, 92 of the Labor Code of the Russian Federation, clause 2, part 2, art. 26 of the Civil Code of the Russian Federation.

However, the realization by minor citizens aged 14 to 18 of their full procedural capacity has the following features:

1. they have the right to personally exercise procedural rights and obligations and entrust the case to a representative only when it is expressly provided for by law, and only in cases arising from labor, cooperative, family legal relations, from legal relations related to entrepreneurial activity, as well as from transactions related to the disposal of earned earnings or other income;

2. at the discretion of the court, in order to assist minor participants in the proceedings, their legal representatives in the person of parents, adoptive parents, guardians may be involved in the case. So, for example, in the resolution of the Plenum of the Supreme Court of the RSFSR of June 20, 1973 No. 7 “On some issues that arose when the courts of the RSFSR applied the legislation on youth labor” and the resolution of the Plenum of the Supreme Court of the Russian Federation of January 28, 2014 No. 1 Moscow “ On the Application of Legislation Regulating the Labor of Women, Persons with Family Responsibilities and Minors” contains an indication of the need for courts when considering labor disputes persons under the age of 18, to notify the commission for minors and the protection of their rights, as well as to discuss the issue of involving parents, adoptive parents and guardians of minors in the case.

The third category of citizens is formed by minors aged 14 to 18 years, as well as adult citizens who are limited in legal capacity in statutory okay. In accordance with Part 3 of Art. 37 of the Civil Procedure Code, the rights and legitimate interests of this category of citizens are protected in court by their legal representatives in the person of parents, adoptive parents, guardians. However, participation in the process of minors themselves or citizens recognized as having limited legal capacity is mandatory.

From the general rule on the judicial protection of the rights and interests of citizens aged 14 to 18 by their legal representatives, the Family Code provides for three exceptions. According to paragraph 2 of Art. 56, art. 62 and 142 of the RF IC, citizens who have reached the age of 14 have the right to independent judicial protection of their rights and legitimate interests.

In accordance with Part 4 of Art. 37 Code of Civil Procedure of the Russian Federation in cases provided for by federal law, in cases arising from civil, family, labor and other legal relations, minors aged fourteen to eighteen years have the right to personally defend their rights, freedoms and legitimate interests in court. However, the court has the right to involve legal representatives of minors in such cases.

Thus, family and civil legislation contains an indication of the possibility of filing a lawsuit (statement, complaint) independently upon a minor reaching the age of 14 years in case of violation of his rights and legitimate interests, including in case of non-fulfillment or improper fulfillment by parents (one of them) responsibilities for upbringing, education or in case of abuse of parental rights (Article 56 of the RF IC), as well as with a claim for the cancellation of adoption (Article 142) and with a requirement to be declared emancipated (Article 27 of the Civil Code of the Russian Federation).

The fourth category of citizens includes minors under the age of 14, as well as citizens recognized in the prescribed manner as incompetent due to mental disorder. This category of persons does not have civil procedural capacity, i.e. the right to independent protection of their rights and interests. In accordance with Part 5 of Art. 37 of the Code of Civil Procedure of the Russian Federation, the rights and legitimate interests of these persons are protected in the process by their legal representatives - parents, adoptive parents, guardians, trustees or other persons to whom this right is granted by federal law. However, the court has the right to involve citizens recognized as incompetent in such cases.

The legal status of a minor as a participant in civil proceedings. Based on the definition of civil procedural legal capacity, if there is a material dispute about the right, a minor can become a participant in civil proceedings. At the same time, two cases of such participation can be distinguished: independent participation in civil proceedings as one of the parties (plaintiff or defendant) or a third party in the presence of full civil procedural capacity; protection of the rights and legitimate interests of a minor by his legal representatives.

In the first case, the minor is endowed with all civil procedural rights and obligations provided for by the Code of Civil Procedure of the Russian Federation, like any other participant in the civil process, namely (Article 35 of the Code of Civil Procedure PB as amended on 02.03.2016):

1) the right to get acquainted with all the materials that are in the case, make extracts from them, make copies;

2) the right to challenge;

3) he has the right to present evidence, participate in the examination of evidence;

4) ask questions to other persons participating in the case, witnesses, experts and specialists;

5) file petitions, including those for the retrieval of evidence, for the appointment of expert examinations, for securing a claim, for suspending the proceedings on the case;

6) give oral and written explanations to the court, present their arguments and considerations on all issues arising during the trial;

7) object to petitions and arguments of other persons participating in the case;

8) appeal against court decisions;

9) use other procedural rights granted by the legislation on civil proceedings.

The persons participating in the case are obliged to conscientiously use all the procedural rights belonging to them.

with their rights, obey the procedural regulation (perform procedural actions within the time limits established by law or by the court, pay the costs of the case in a timely manner, submit procedural documents in the form prescribed by law), (delete)

The court is obliged to fully assist the parties in exercising their rights, to facilitate their implementation, to explain to the parties the consequences of the commission or non-commission of certain procedural actions. Thus, in clause 4 of the Resolution of the Plenum of the Supreme Court of the RSFSR of April 14, 1988 No. 2 “On the preparation of civil cases for trial” and the resolution of the Plenum of the Supreme Court of the Russian Federation of June 24, 2008 No. 11 (as amended on February 9, 2012) “On the preparation Civil Cases for Trial” emphasizes that since the persons participating in the case enjoy procedural rights and bear obligations, the judge, in order to ensure the most complete, comprehensive and objective examination of the case, should explain to the participants in the process their rights and obligations, and also clarify the opinion of persons involved in the case, regarding the sole consideration of the case.

In the second case, the minor exercises his right to protection not independently, but through his legal representatives.

Legal representatives are parents, adoptive parents, guardians or trustees. The procedural position of legal representatives is determined by such an institution of civil procedural law as representation (Chapter 5 of the Code of Civil Procedure of the Russian Federation).

Parents are the legal representatives of their children and act in defense of their rights and interests in relations with any individuals and legal entities, including in courts, without special powers, provided that the guardianship and guardianship authority does not establish that between the interests of parents and children there are contradictions. In this case of disagreement between parents and children, the guardianship and guardianship body is obliged to appoint a representative to protect the rights and interests of children (clause 2, article 64 of the RF IC). The basis for the emergence of legal representation in relation to children is the fact of kinship, the fact of the child's descent from this person, which determines the procedure for formalizing (confirming) the powers of parents to speak in litigation as legal representatives of their children. Parents present their passport and the birth certificate of the child they represent to the court.

As a rule, both parents, father and mother, equally have the right to represent on behalf and in the interests of the child, if the child was born in a registered marriage or, in its absence, paternity is established voluntarily or by court decision (Articles 48, 49 of the RF IC). Only the mother will be the legal representative if there is no registered marriage and paternity has not been established. In case of adoption of a child by two persons, both adoptive parents are legal representatives of the child. If a child is adopted by one person, then his legal representatives are the parent by origin and the adoptive parent.

Foster parents represent the interests of adopted children (children) in court, enjoying the rights and incurring the duties of guardians (custodians). The basis for the emergence of relations of legal representation in this case is an agreement on the transfer of a child (children) to be raised in a family, which is concluded between the guardianship and guardianship authorities and foster parents. The powers of adoptive parents to participate in the trial as legal representatives of adopted children (child) are confirmed by a certificate of the established form.

Legal representation of guardians and custodians arises on the basis of an administrative act of appointing guardians or custodians. Guardians and trustees act in defense of the interests of the wards in any state bodies, including judicial ones, without special powers (part 2 of article 31 of the Civil Code of the Russian Federation).

The powers of legal representatives do not require special registration. It is enough to present a document confirming that they are legal representatives (presentation of a passport, birth or adoption certificate, guardian or trustee certificate). If the legal representative delegates the conduct of the case to another person, then he issues a power of attorney on his own behalf.

Adoptive parents represent children under the age of 18 in court. The basis for the emergence of relations of legal representation in relation to adopted (adopted) children is a court decision that has entered into legal force on the establishment of adoption (adoption), issued in the manner of special proceedings under the rules of Ch. 29 Code of Civil Procedure of the Russian Federation. The authority of the adoptive parents to act in the court proceedings as the legal representatives of the adopted, depending on the content of the court decision on the establishment of the adoption (adoption) of the child, is confirmed by a certificate of state registration act of adoption (Article 125 of the RF IC) or the birth certificate of the child being represented (Article 136 of the RF IC).

Guardians act as legal representatives of: first, children left under the age of 14 without parental care; secondly, citizens recognized by the court incompetent. The basis for the emergence of relations of legal representation in these cases is the decision of the guardianship and guardianship authorities to appoint a guardian to the legally incompetent represented or a direct indication of the law.

Trustees are the legal representatives of children aged 14 to 18 years, as well as citizens recognized in the prescribed manner as having limited legal capacity. The basis for the emergence of relations of legal representation is the decision of the guardianship and guardianship authorities to appoint a trustee or a direct indication of the law. So, according to Art. 147 of the Family Code of the Russian Federation for children who are in full state care in educational, medical and other similar institutions, trustees are not appointed, and their functions are performed by the administration of these institutions. Guardians and custodians, in confirmation of their powers, must present to the court a guardian's or trustee's certificate.

Speaking about guardians and trustees as legal representatives, it is necessary to keep in mind one feature, which is that, as an exception to the general rule (clause 2, article 35 of the Civil Code of the Russian Federation, clause 1, article 146 of the RF IC), the functions of guardians and trustees can be performed not only by adult capable citizens, but also by the relevant authorities. The latter perform the functions of guardians and trustees only in cases expressly specified in the law. So, according to paragraph 2 of Art. 123 of the Family Code of the Russian Federation, before the placement of children left without parental care for upbringing in a family or in an appropriate institution, the duties of a guardian (custodian) are assigned to the guardianship and guardianship authorities. In accordance with paragraph 1 of Art. 147 of the RF IC, children who are permanently in full state care in educational institutions, medical institutions, institutions of social protection of the population and other similar institutions, guardians (trustees) are not appointed. The fulfillment of their duties is entrusted to the administration of these institutions.

Legal representatives perform on behalf of the represented all procedural actions, the right to perform which belongs to the represented, with the restrictions provided for by law (Article 48 of the Code of Civil Procedure of the Russian Federation).

The legal status of a minor as a witness in civil proceedings. Since the child is recognized to have the right to express his opinion when resolving any issue affecting his interests and to be heard during the trial (Article 57 of the RF IC), as well as obtaining the mandatory consent of a minor when making decisions on certain issues (Articles 59, 71 , 132, 134, 136, 143, 154 of the RF IC), it is assumed that the court in such cases is obliged to involve in the proceedings a child who has reached the age of 10 years. The court may not take into account the opinion of the child only when it is contrary to his interests.

Based on the foregoing, a child in civil proceedings may act as a witness. In part 1 of Art. 69 of the Code of Civil Procedure of the Russian Federation states that any person who knows any circumstances related to the case can be a witness. By virtue of this, the minor is endowed with certain procedural rights and bears the corresponding obligations.

A person summoned as a witness is obliged to appear in court and give truthful testimony (part 1 of article 70 of the Code of Civil Procedure of the Russian Federation). For refusal or evasion from testifying (Article 308 of the Criminal Code of the Russian Federation), as well as for giving a knowingly false testimony (Article 307 of the Criminal Code of the Russian Federation), a witness is criminally liable if he is 16 years old.

The witness has the following procedural rights:

- the right to testify mother tongue, and the court is obliged to invite an interpreter for the witness, not fluent in the language where legal proceedings are conducted (Article 9 of the Code of Civil Procedure of the Russian Federation);

- when giving testimony, has the right to use written notes if the testimony is associated with digital or other data that is difficult to remember (Article 178 of the Code of Civil Procedure of the Russian Federation);

– Witnesses (workers and employees) have the right to retain their average earnings during their participation in the trial. Witnesses who are not workers and employees, for distracting them from work or ordinary activities, are entitled to receive remuneration (part 2 of article 95 of the Code of Civil Procedure of the Russian Federation);

– a witness called by the court from a remote area has the right to reimbursement of travel and accommodation expenses incurred in connection with the appearance in court. The witness is paid per diem (Part 1, Article 95 of the Code of Civil Procedure of the Russian Federation).

At the stage of the trial, witnesses who have appeared before the start of their interrogation are removed from the courtroom (Article 163 of the Code of Civil Procedure of the Russian Federation). Each witness is interrogated separately, after which he remains in the hall until the end of the consideration of the case, if only the court allows him to leave earlier (Article 177 of the Code of Civil Procedure of the Russian Federation), before interrogation, the presiding judge establishes the identity of the witness and warns him of responsibility for refusal, evasion from testifying and for giving false evidence. For witnesses under the age of 16, the presiding judge explains the obligation to truthfully tell everything known about the case (Article 176 of the Code of Civil Procedure of the Russian Federation).

The Plenum of the Supreme Court of the Russian Federation ordered the courts to take comprehensive measures to strict observance procedural deadlines and improving the quality of consideration of civil cases, only the facts of red tape in the judicial consideration of the case.

At the same time, the attention of judges was drawn to the need to increase their personal responsibility for the timely and high-quality consideration of each court case. The plenum emphasized that “deliberate gross or systematic violation of the procedural law by a judge, which caused red tape in the consideration of cases and significantly infringes on the rights and legitimate interests of citizens, should be considered, taking into account specific circumstances, as an act that dishonors the honor and dignity of a judge or infringes on the authority of the judiciary ( subparagraph 1, article 14 of the Law of the Russian Federation “On the Status of Judges in the Russian Federation”)”.

The resolution of the Plenum of the Supreme Court of the Russian Federation of November 18, 1999 No. 79 “On the implementation of the resolution of the Plenum of the Supreme Court of the Russian Federation of August 24, 1993 No. 7 “On the timing of consideration of criminal and civil cases by the courts of the Russian Federation” was also devoted to the same problem.

In particular, in the preamble of the decision, Special attention to the fact that paragraph 1 of Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms establishes the right of everyone, in determining his civil rights and obligations, to a fair public hearing within a reasonable time by an independent and impartial court established by law.

Taking into account the requirements of this norm, as well as paragraph 3 of Art. 14 of the International Covenant on Civil and Political Rights, the Plenum indicated that civil proceedings should be carried out without undue delay (within the time frame that optimally ensures the right of citizens to judicial protection.

Thus, the IC RF enshrines the personal rights of the child, which are different in their content. These include:

- the right of the child to live and be brought up in a family (clause 2, article 54 of the RF IC);

- the child's right to communicate with parents, grandparents, brothers, sisters and other relatives (Article 55 of the RF IC);

- the right of the child to protect their rights and legitimate interests (Article 56 of the RF IC);

- the right of the child to express his opinion (Article 57 of the RF IC);

- the right of the child to a name, patronymic and surname (Article 58 of the RF IC).

- property rights of the child (Article 60 of the RF CC).

According to paragraphs 1 and 2 of Art. 56 of the RF IC, protection of the rights and legitimate interests of a child can be carried out by a minor independently or through representatives.

By general rule protection of the rights and interests of minors is carried out by parents, adoptive parents, guardians, trustees, foster parents. The same powers to protect the rights of children in accordance with the RF IC are vested in the guardianship and guardianship authorities, the prosecutor, and the court.

A minor recognized in accordance with the law as fully capable before reaching the age of majority (for example, an emancipated teenager or a minor who married before reaching marriageable age) has the right to independently protect his rights and interests.

A minor also has the right to independently protect his interests in case of failure or improper performance by parents or persons replacing them of the duties of upbringing, education of the child or in case of abuse of parental rights. In this case, the child has the right to apply for protection to the body of guardianship and guardianship, and upon reaching the age of fourteen - to the court.

Children who suffer from parental abuse often not only do not seek protection of their rights, but also try to hide such abuse for fear of their parents or for fear of being taken away from their parents and placed in institutions. In this regard, paragraph 3 of Art. 56 of the RF IC fixed the obligation to immediately inform all officials or citizens who become aware of a violation of the rights of the child, a threat to his life or health about this to the guardianship and guardianship authority.

Information about children in plight, should be addressed to the guardianship and guardianship authorities at the actual location of the minor, which will make it possible to take more effectively and without delay, if necessary, measures to protect the violated rights of the child (Articles 122 and 123 of the RF IC).

Therefore, the observance of human rights begins with the observance of the rights of the child. On November 20, 1989, the 44th session of the UN General Assembly adopted the Convention on the Rights of the Child (ratified on June 13, 1990 by the Supreme Soviet of the USSR) and the correct and timely resolution of the merits of civil cases involving minors, the real protection of their rights, freedoms and legitimate interests , prevention of offenses is possible only under the indispensable condition of steadfast observance by the courts of civil procedural juvenile legislation.

§ 2. Correlation between the legislation of the Russian Federation and cities of federal significance in the field of granting land plots for construction

MINISTRY OF EDUCATION AND SCIENCE OF THE RUSSIAN FEDERATION

NOVOKUZNETSK INSTITUTE (BRANCH) OF THE FEDERAL STATE BUDGET EDUCATIONAL INSTITUTION OF HIGHER PROFESSIONAL EDUCATION

"KEMEROVSK STATE UNIVERSITY"

FACULTY OF LAW

CHAIR OF CIVIL LAW AND PROCESS

Course work

CIVIL LAW AND PROCESS

PARTICIPATION OF MINORS IN CIVIL PROCEEDINGS

student 3 courses, groups U12-2_ _________

(course, group)

Yudova Alina Dmitrievna

(FULL NAME.)

Scientific directorKurtukov Roman______ Sergeevich________________________________

(academic degree, position, surname, initials)

Coursework Coursework

Admitted to defense protected with a rating of "______________"

__________________ _________________________________

manager's signature manager's signature

"____" __________ 2015 "____" _____________ 2015

Novokuznetsk, 2015

INTRODUCTION…………………………………………………………………………

CHAPTER 1. LEGAL CAPACITY AND CAPABILITY OF NATURAL PERSONS IN CIVIL PROCEEDINGS……………………………………………...

1.1. The concept and types of civil procedural legal capacity and legal capacity……………………………………………………………………..

1.2. Minors as participants in civil proceedings. Prerequisites for the creation of a juvenile justice system in Russia………………………………………………………………………….

CHAPTER 2. Features of participation of minors in civil proceedings………………………………………………………………….

2.1. Independent participation of minors in the consideration of civil cases……………………………………………………………………

2.2. Participation of legal representatives of minors in civil process…………………………………………………………..

2.3. Features of the legal status of a minor witness in civil case…………………………………………………………...…

CONCLUSION…………………………………………………………………….

LIST OF USED REGULATIONS AND LITERATURE………………………………………………………………………..

INTRODUCTION

The participation of minors in civil proceedings is associated with many problems of theoretical and practical. They are caused by various circumstances, and, above all, the shortcomings of legal regulation, the lack of an appropriate approach to the implementation of the rights of minors. The main of these problems is the definition of the civil procedural status of a minor as a participant in civil proceedings. This problem deserves attention also because without determining the role of the child in the proceedings, his position and scope of rights and obligations, it is impossible to specify him as a participant in civil proceedings.

The UN Convention on the Rights of the Child, which is the main international document regulating the rights of children, provides for the obligation of the state to ensure the child's right to participate and protect their rights in court. So Article 12 of this Convention reads: “A childshall be given the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” Thus, the child can participate in court and represent his interests. Both in person and through their legal representatives.

The object of this work:civil procedural legal relations that arise with the participation of minors in civil proceedings.

Subject of study: norms of substantive and procedural law governing social relations related to the participation of minors in civil proceedings.

Goal of the work explore, identify and summarize the features legal status minors as a participant in civil proceedings.

To achieve this goal, I have set a number of tasks:

consideration of such concepts as procedural capacity and legal capacity of minors.
identification of the features of personal participation of minors in civil proceedings
identifying the features of the participation of legal representatives of minors in civil proceedings.
consideration of some aspectslegal status of a minor witness in civil proceedings.

CHAPTER 1. LEGAL CAPACITY AND CAPABILITY OF INDIVIDUALS IN CIVIL PROCEEDINGS

The concept and types of civil procedural legal capacity and legal capacity

Civil procedural legal capacity is the possibility established by law to have civil procedural rights and obligations. The law gives this ability equally to all individuals and legal entities that, in accordance with the legislation of the Russian Federation, have the right to judicial protection of rights, freedoms and legitimate interests, meaning only the possibility of their participation in civil proceedings as parties and third parties. 3 Civil procedural legislation does not allow any restrictions on procedural legal capacity.

All persons who have a subjective substantive right should have the opportunity to apply for its protection, that is, directly civil procedural legal capacity.

Civil legal capacity is related to legal capacity in substantive law (civil, labor, family, land, administrative), when it is possible to be a party or a third party. Judicial protection presupposes that the person applying for it is capable of possessing the challenged right. Therefore, civil procedural legal capacity arises simultaneously with legal capacity in substantive law.

It is worth noting that the procedural legal capacity of citizens arises from the moment of their birth and ends with death. But if legal capacity in substantive law arises from a certain age, for example, from the moment a marriage is concluded or a person signs an employment contract, then procedural legal capacity comes from that moment.

In terms of content, legal capacity in substantive law is absolutely different from procedural legal capacity. So legal capacity in substantive law is the ability to have certain material rights and obligations (for example, civil, labor, marriage and family). With regard to civil procedural legal capacity this is the opportunity to have civil procedural rights and obligations, that is, to be a participant in civil proceedings.

The scope of legal capacity is established by the state, which provides equal opportunities for the exercise of their civil rights to all participants in the civil process. The law does not allow a citizen to waive or restrict legal capacity: "The complete or partial waiver of a citizen's legal capacity or capacity and other transactions aimed at limiting legal capacity or capacity are void, except when such transactions are permitted by law" (Article 22 Civil Code of the Russian Federation).

Legal capacity is characterized by such concepts as inalienability and non-transferability. It is understood that a citizen can dispose of his subjective rights (property and personal non-property), but not the very possibility of being the bearer of these rights. For example, a citizen has the right to transfer ownership of a thing to another person, but the law does not allow him to waive the legal status of being a personal owner in general. At the same time, limitation of legal capacity is allowed only in cases and in the manner prescribed by law. 4 Under current legislation, restriction of legal capacity is allowed as a punishment for a crime committed, and a citizen, by a court verdict, may not be deprived of legal capacity in general, but only the ability to have individual rights (for example, to engage in certain activities related to financial responsibility). In some cases, the limitation of the scope of legal capacity takes place in connection with a direct indication in a particular Law. For example, the Federal Law "On the Fundamentals public service RF" prohibits civil servants from engaging in entrepreneurial activities. This limitation of legal capacity cannot be confused with the deprivation of a citizen of certain subjective rights. For example, confiscation of property by a court verdict means depriving a citizen of the right to own certain things and values, but is not associated with a restriction of legal capacity. Foreign citizens and stateless persons (stateless persons - that is, persons who live on the territory of Russia and do not have evidence of their belonging to foreign citizenship) enjoy civil legal capacity in our country on an equal basis with citizens of Russia, and restriction of the civil legal capacity of this category of persons is allowed in cases where provided by law.

In order to exercise procedural rights and obligations in court through the performance of procedural actions, it is necessary to have procedural capacity, which we will discuss in more detail below.

Civil procedural capacity is the ability of the subject to personally exercise his rights and fulfill his duties, as well as to be able to entrust the conduct of his case to a representative (Article 37 of the Code of Civil Procedure), i.e. the ability to personally perform procedural actions (to sue, conclude settlement agreement, refuse a claim or admit it, file petitions in the process, prove, etc.).

There is a difference between civil procedural capacity and capacity in substantive law (the ability to personally make transactions, acquire property, conclude an employment contract, etc.).

The civil procedural capacity of individuals is divided into types: full capacity and partial, limited.

The full procedural capacity of individuals arises when they reach the age of majority, i.e. from the age of 18 (Article 21 of the Civil Code), and in the case of emancipation - from the age of 16 (Article 27 of the Civil Code). emancipation in civil law is the recognition of a minor as fully capable, in connection with entrepreneurial activity or employment. Announcement a minor who is fully capable is made by decision of the guardianship and guardianship body - with the consent of both parents, adoptive parents or guardian, or in the absence of such consent - by a court decision.

The rights and interests of minors aged 14 to 18, as well as citizens recognized as having limited legal capacity, are protected in court by their legal representatives. However, the court is obliged to involve in such cases the minors themselves or citizens recognized as having limited legal capacity (part 3 of article 37 of the Code of Civil Procedure). These persons have the right to perform all procedural actions. Not allowing them to participate in the case is the basis for the annulment of the decision.

It should be noted that in cases provided for by law, in cases arising from labor and marriage and family legal relations, from transactions related to the disposal of earnings received, as well as in cases arising from causing harm, minors have the right to personally defend their rights in court. and interests. It is not necessary to involve legal representatives in such cases. This solution the issue is entirely at the discretion of the court (part 4 of article 37 of the Code of Civil Procedure).

When the law allows marriage before reaching the age of 18, legal capacity in full arises from the time of marriage (part 2 of article 21 of the Civil Code). This provision fully applies to civil procedural capacity.

For persons who are completely incapacitated (minors under 14 years of age, and adults declared incompetent in the manner prescribed by law (Article 29 of the Civil Code, Article 281 of the Code of Civil Procedure), the process is conducted by their legal representatives in accordance with Part 3 of Article 37 of the Code of Civil Procedure.

Actions committed by a legally incompetent person, including, for example, bringing a claim against him, will be valid only if this action is confirmed by their legal representative. The legal representative can confirm all or some of the actions of the incapacitated person; actions not confirmed by him lose their legal significance (clause 3, part 1, article 135, paragraph 3, article 222 of the Code of Civil Procedure). This applies only to persons who have been declared incompetent.

Minors as participants in civil proceedings. Prerequisites for the creation of a juvenile justice system in Russia

Based on the definition of civil procedural legal capacity, if there is a material dispute about the right, a minor may be a participant in civil proceedings. There are two cases of such participation:

independent participation of minors in civil proceedings as one of the parties (plaintiff or defendant) or a third party;
participation of a minor through legal representatives protecting their legal rights and interests in civil proceedings.

The right to get acquainted with all the materials of the case, make copies, as well as make extracts from them, etc.;
The right to challenge;
Provide evidence, as well as directly participate in their research;
Ask questions to participants in the process;
Submit a petition for the reclamation of evidence, demand the appointment of an expert examination, suspension of the proceedings, etc.;
Give oral or written explanations to the court, express their arguments in the process of civil proceedings on emerging issues;
Object to the motions, assumptions and opinions of others;
Appeal against the decisions of the court in a higher instance;
Use other procedural rights granted to him.;

Minors, as well as other persons participating in the case, are unconditionally

are obliged to conscientiously use the rights granted to them, obey the procedural regulation (observe the necessary deadlines, make payments on time, submit Required documents in the appropriate form).

In turn, the court is obliged to assist the parties in exercising their rights, to facilitate their implementation, to explain to the parties the consequences of the commission or non-commission of certain actions by them. Thus, in the Decree of the Plenum of the Supreme Court of the RSFSR dated June 24, 2006 No. 11 “On the preparation of civil cases for trial”, it is said that the court, for a full and objective examination of the case, must explain the rights and obligations of the persons participating in the case, as well as clarify their opinion about the sole consideration of the case.

In the second case, the minor exercises his right to protection not personally, but through his legal representatives. They can be parents, adoptive parents, guardians or trustees. The procedural position of legal representatives is determined by one of the institutions civil law, the so-called representation.

Speaking about representation in juvenile court, it is worth considering such an institution as juvenile justice. IN recent decades increasingly appearing in the scientific literature special interest to this concept. Not only jurists wrote about him, for example, A.S. Avtonomov, V.D. Ermakov, etc., but also non-legal specialists. They can't all agree on a single definition. this concept as well as to its principles and functions. Summarizing the opinions of all researchers of this issue, we will try to give the most precise definition to this institute.

So, juvenile justice is based on specific principles special system protection of the rights of minors, which includes a set of government agencies, whose activities are carried out jointly with the relevant methodological, psychological, social services for helping children and adolescents, through the mechanism for protecting the rights of the child, used to ensure the realization of his rights. Content and Purpose this institute protection of the rights of minors.

A prerequisite for the emergence of juvenile justice was the successful experience of the emergence and functioning of this institution in Western countries. In the Russian Federation, the policy of introducing juvenile justice was carried out until 2010. The essence of this specialized judicial and legal system was to be made up of both state and non-state structures dealing with the protection of the rights and legitimate interests of children. However, in the Russian Federation, almost the entire population of the country opposed the initiative to create a system of juvenile courts. The people received support in the person of the President of the Russian Federation - V.V. Putin. It is for these reasons that the draft FKZ No. 38948-3 “On Making Amendments to the Federal Constitutional Law “On the Judicial System of the Russian Federation” was rejected in the second reading in State Duma. This negative attitude Russian society is based on the inconsistency of its principles with the foundations of a unique mentality, true folk culture and traditions of the Russian people.

Pressure from juvenile justice on parents and their equal rights to children will inevitably lead to the destruction and degradation of not only such an important social institution as a family, but the whole society as a whole. All this will contribute not only to an increase in crime among young people, but also to the destruction of family values and the rule of law.

Participants in the movements fighting against the introduction of this institution also express dissatisfaction with the wording, interpretation of terms and expressions that are given in juvenile legislation. For example, the expression "a child in danger" callsThere is a lot of controversy and dissatisfaction, saying that it can be used in almost all situations, used at the slightest conflict between parent and child. As a result, without understanding, you can leave great amount orphaned children. In a word, there are a huge number of ambiguous and inappropriate phrases and statements. All this causes one more dissatisfaction among the population the possibility of gross abuse of power by the juvenile justice bodies. They are given a huge opportunity to abuse their functions. The last and most important reason is the negative experience in foreign countries.

CHAPTER 2. FEATURES OF THE PARTICIPATION OF MINORS IN CIVIL LEGAL PROCEEDINGS

2.1. Independent participation of minors in the consideration of civil cases

A minor, being a participant in civil proceedings, may appear in court independently. He can be a participant in the process, i.e. plaintiff, defendant or applicant, act as a participant in the trial in the protection of his rights, freedoms and interests by legal representatives or act as a witness or a third party. A minor as a participant in a trial, in which he can act as an independent person, in accordance with Art. 35 Code of Civil Procedure of the Russian Federation, has all procedural rights and obligations, namely:the right to get acquainted with the materials of the case, to make extracts from them and to make copies. Actual familiarization with the materials of the case can take place both during and outside the trial. The same right belongs to representatives 5 . This also includes the right to provide evidence and participate in their research; the right to ask questions to participants in the process; to make petitions, which allows the person participating in the case to bring his procedural requirements to the court in the form established by the procedural form. Petitions made outside the trial must also be considered by the court in the manner prescribed by the procedural legislation; the right to give explanations to the court orally or in writing; the right to present their arguments on all issues arising during the trial, to object to petitions and other arguments of the persons participating in the case; the right to appeal court decisions; the right to use other procedural rights granted by civil law.

When considering procedural obligations, attention should be paid to their different nature, for example: if a person participating in a case cites any circumstances as arguments, referring to the fact that they are the basis for claims or objections, he is obliged to provide evidence confirming the validity of the existence these circumstances. In turn, the court is obliged to fully assist the parties involved in the case in exercising their rights, to facilitate their exercise, to explain to them their rights and obligations, to explain the consequences of the commission or non-commission of certain procedural actions by them.

In accordance with paragraph 4 of Article 37 of the Code of Civil Procedure of the Russian Federation, minors from 14 to 18 years of age have the right to independently protect their interests in cases provided for by the Federal Law in cases arising from civil, family, labor, public legal relations. Thus, the participation of a minor in civil proceedings on the grounds of part 4 of article 37 of the Code of Civil Procedure of the Russian Federation differs little from the participation in the process of a “capable” citizen.

The priority in this case will be the will of the minor, however, if contradictions are found in the civil procedural statement or actions of the minor and his legal representative, the court is obliged to evaluate these explanations in conjunction with other evidence in the case. 6

2.2 Participation of legal representatives of minorsin civil proceedings

Compared with the personal participation of minors in civil proceedings, the case is more common when their interests are represented and protected by legal representatives parents, adoptive parents, guardians, custodians and other persons who are granted this right federal laws. The interests of a minor under 14 years old are represented in court by his parents, adoptive parents or guardians, if a person from 14 to 18 years old, his parents, adoptive parents or guardians represent his interests in court.

Parents may represent the interests of their children under the age of 18, provided that there is no conflict between their interests. 7 In order to become a legal representative, it is necessary to have a relationship between the child and the legal representative, which determines the procedure for registration and at the same time the fact of confirming the authority of parents to act in the trial as the legal representatives of their children. Parents must present their passport and the birth certificate of the child they represent to the court.

Both the mother and the father have the same right to represent the interests of the child. But in this case, it is necessary that the child was born in a registered marriage or, in its absence, paternity was established voluntarily or by a court decision. 8 In the case when the marriage is not registered and paternity is not established, only the mother of the child can act as a representative. If a child is adopted by one person, then the adoptive parent or parent by origin may be his representative. Foster parents represent the interests of adopted children in court, enjoying the rights and incurring the duties of guardians (custodians). The basis for representation in this case will be an agreement on the transfer of the child (children) to be raised in a family, which is concluded between the adoptive parents and the relevant authority. The powers of adoptive parents in court are confirmed by a certificate of the established form.

The legal representation of guardians and custodians arises on the basis of an administrative act of appointment as a guardian and custodian. No special powers are required to protect the interests of the ward in court. 9 It is sufficient to present an appropriate document, such as a passport, birth or adoption certificate, certificate of a guardian or custodian confirming that they are indeed legal representatives. If the legal representative delegates the conduct of the case to another person, then he issues a power of attorney on his own behalf.

As for adoptive parents, they, like parents, represent the interests of children in court until they are 18 years old. The basis for the emergence of legal representation in relation to an adopted child is a court decision that has entered into legal force on establishing adoption (adoption), which is issued in the manner of special proceedings in accordance with the norms contained in Chapter 29 of the Code of Civil Procedure of the Russian Federation. The powers of the adoptive parents to represent the interests of the adopted child are confirmed by a certificate of state registration of the act of adoption 10 or the birth certificate of the represented child. 11

Guardians act as legal representatives in the following cases:

when a child is left without parental care under the age of 14;
when a citizen is declared incompetent.

The basis for the emergence of representation relations in these cases is either a direct indication of this in the law or a decision of the guardianship and guardianship authorities to appoint a guardian to an incompetent person.

Trustees act as representatives in case of:

recognition of a citizen with limited legal capacity
if the child is between the ages of 14 and 18

In this case, the basis is the decision of the guardianship and guardianship authorities to appoint a trustee or a direct indication in the law. So, if the child is in full state care in educational, medical or other similar institutions, trustees in such cases are not appointed, their functions are performed by the administration of these institutions. Guardians and custodians, in confirmation of their authority, must present their certificate in court. When we are talking about guardians and trustees as legal representatives, it is necessary to take into account one feature. So, as an exception to the general rule in accordance with paragraph 2 of Art. 35 of the Civil Code of the Russian Federation and clause 1 of Article 146 of the RF IC, the functions of bodies and trustees can be performed not only by capable, adult citizens, but also by the relevant bodies. These bodies perform the functions of representatives only in cases expressly provided for in the law. For example, in the Federal Lawdated 24.04.2008 N 48 "On guardianship and guardianship" expressly provides that before the placement of children left without parental care in a family or an appropriate institution, the duties of a guardian / trustee are assigned to the relevant guardianship and guardianship authorities, namely the executive authorities of the subject RF. In accordance with paragraph 1 of Article 147 of the RF IC, children who are on a permanent basis in full state care in educational institutions, medical institutions, as well as institutions of social protection of the population and other similar institutions, guardians and trustees are not appointed. Responsibilities in this case will be assigned to the administration of the institution in which the child is located.

Legal representatives perform on behalf of the represented persons all procedural actions that the represented persons have the right to perform, but with the restrictions provided for by the Civil Procedure Code, namely Article 54. So the representative's right to sign statement of claim, bringing it to court, transferring the dispute to arbitration, complete or partial waiver of the claim, conclusion of a settlement agreement, etc. must be specifically stipulated in the power of attorney issued by the represented person.

In Art. 262 of the Code of Civil Procedure of the Russian Federation in paragraph 4.5 stipulates a list of cases in relation to minors, which are considered in the order of special proceedings, namely:

cases of restriction or deprivation of a minor aged 14 to 18 years of the right to independently dispose of their income;
declaring a person fully capable (emancipation).

If there are sufficient grounds at the request of parents, adoptive parents or guardianship and guardianship on the basis of paragraph 4 of Article 26 of the Civil Code of the Russian Federation, the court may restrict or deprive a minor aged 14 to 18 of the right to independently manage his earnings, scholarships or other income received. To initiate such a case, the court needs a reason, namely the statement of the relevant persons. The application must set out the circumstances evidencing:

on the presence of a minor's earnings, scholarships or other income;
the age of the minor;
about the facts of unreasonable disposal of a minor with his earnings, scholarships or other income.

To confirm these facts, you need testimonies, copies of contracts and checks, as well as other evidence of unreasonable use by a minor of his income. There is no need to specify the target, because. it has no legal value.Cases of this category do not provide for cases where a minor has acquired legal capacity in full in accordance with paragraph 2 of Art. 21 or Art. 27 of the Civil Code of the Russian Federation.

Emancipation of minors recognition of him as fully capable by decision of the guardianship and guardianship authority or the court upon reaching sixteen years of age. A minor may be recognized as having full legal capacity if:

marriage of a minor;
work on employment contract;
doing business;

According to Art. 287 of the Code of Civil Procedure of the Russian Federation, a minor who has reached the age of 16 may apply to the court at his place of residence with an application to declare him fully capable. Interested parties may be parents, adoptive parents, trustees who do not give consent to the emancipation of a minor, since they are interested in the refusal, because. the decision on the case affects their rights and obligations in relation to the person. The application is considered by the court with their participation, as well as a representative of the guardianship and guardianship body, the prosecutor. The declaration of a minor as fully capable significantly changes the civil law regime of his participation in trade. From now on, he has the right to independently make any transactions, the consent of his parents does not have any legal significance. Legal representatives are not liable for the obligations of the emancipated person, including obligations from causing harm. He cannot acquire only those subjective rights and obligations for the acquisition of which the age limit is established by federal laws. Thus, the jurist V. G. Nestoliy notes that “when making a decision on emancipation, the court must be guided by both subjective (personal, intellectual) and objective (property) criteria. The court must make sure that the mental development of the minor, the level life experience allow him to participate in civil legal relations without resorting to the help of parents. "After considering the case on the merits, the court decides to declare the minor person fully capable, i.e. emancipated, or rejects the stated request. Emancipation is announced from the day the court decision on emancipation comes into force.

2.3 Features of the legal status of a minor witness in a civil case

Witness is a person summoned to court to report information about the facts he directly perceived or reported to him that are important for the correct resolution of the case. Witness testimony is information provided by persons who may be aware of any circumstances that may help in the consideration or disclosure, as well as the prevention of a crime. As a rule, such testimonies must be taken personally by the witness, but the law also allows for cases when a person learns reports of facts from other sources.

Any age restrictions are not included in the CPC. With regard to minors, the issue of their admission as witnesses must be decided separately in each case by the court, taking into account the characteristics of the psyche and development of the child, as well as his age. It is necessary to take into account the possibility of a traumatic effect on the unformed psyche of the child, in which case interrogation is possible in exceptional cases.

The civil procedural legislation does not establish a certain age of a person, at the onset of which he can participate in the proceedings as a witness. This issue is decided by the court, taking into account the specific circumstances of the case, the evidence on which the witness must provide, unconditionally taking into account the personality of the minor.

Summoning a minor witness to a court session should be carried out in exceptional cases, at the discretion of the court, when it is not possible to establish the facts in a particular trial in any other way. The guideline for resolving the issue of the age of a minor, at the onset of which he can act in court as a witness, is Art. 57 of the Family Code. It states that the child has the right to express his opinion when resolving any issue in the family that directly concerns his interests, and to be heard during a court session or administrative proceedings. The opinion of a child who has reached the age of ten is required to be taken into account, if this does not contradict his interests.

However, if the court concludes that the child has not reached the age at which he can objectively evaluate and correctly perceive the facts according to this case, as well as give truthful testimony, he should not interrogate him as a witness.

Art. 179 of the Code of Civil Procedure of the Russian Federation establishes the rules for the interrogation of minors. The interrogation of witnesses under 14 years of age, as well as at the age of 14 to 16 years, is carried out only with the participation of a pedagogical worker who is summoned to court with the child. If necessary, the parents of the minor, as well as adoptive parents, guardians or trustees, are called along with them. They may, with the consent of the court, put questions to the witness, as well as express their arguments and beliefs about the identity of the witness and the content of his testimony. In exceptional cases, during the interrogation of a minor witness, one or another person participating in the case or a person in the courtroom may be removed from the courtroom on the basis of a court ruling. After the return of such persons, they are usually informed of the testimony of a minor witness, and also given the opportunity to ask questions of interest. A witness under the age of 16 is removed from the courtroom at the end of his interrogation, but there are cases in which the court may consider it necessary for the child to be present until the end of the proceedings.

It should not be forgotten that the environment of the trial, in which the child must testify, may be perceived by him as extreme and unusual. Interrogation of a minor witness is most often accompanied by difficulties. Skills and abilities of working with children are required, as well as knowledge of child psychology. It is in order to avoid misunderstandings and to assist the court in obtaining truthful testimony from a minor witness that a teacher is summoned to the court session without fail. His presence at the court session can be used by the court to resolve doubts in determining the ability of a minor to correctly perceive the facts of the case.

Thus, the interrogation of a minor witness has its own characteristics, not only enshrined in the law, but also features of a psychological nature.

Conclusion

Summing up the whole term paper, the following conclusions should be drawn:

Civil procedural legal capacity is understood as the possibility established by law to have civil procedural rights and obligations. Civil capacity is understoodthe ability of the subject to personally exercise his rights and fulfill his duties, as well as to be able to entrust the conduct of his case to a representative (Article 37 of the Code of Civil Procedure), i.e. the ability to personally perform procedural actions (to bring a claim himself, conclude a settlement agreement, refuse a claim or recognize him, make petitions in the process, prove, etc.).

The legal capacity of minors, like other persons, arises from the moment of birth, and civil legal capacity from the onset of a certain age.

If there is a material dispute about the right, a minor may be a participant in civil proceedings. He can act as an independent participant in court, or protect his rights and interests through legal representatives in the person of parents, adoptive parents, guardians or trustees.
A minor may appear in court as a witness. There are a number of peculiarities concerning the interrogation of such witnesses. Firstly the need for the presence of a teacher in the court session, as well as if the court considers it necessary to have legal representatives of the child. Secondly, it is necessary to take into account the peculiarities of the interrogation of a minor.

LITERATURE

3 Russian Federation. Laws.Civil Procedure Code of the Russian Federation[Text]: Chapter 4: [dated November 14, 2002, as amended. dated December 31, 2014] //Sobr. legislation Ros. Federation. 1994. - No. 32. Art.69

4 hours 2 tbsp. 22 of the Civil Code of the Russian Federation

5 Article 54 Code of Civil Procedure of the Russian Federation

In the scientific literature, two approaches to the definition of representation “coexist”. According to the first, procedural representation is a legal relationship by virtue of which one person performs procedural actions within the limits of his authority on behalf and in the interests of another person. According to the second approach, the performance of the specified procedural actions is recognized as representation. But then the question arises, what is representation? Is it a certain procedural activity or is it still a procedural legal relationship within which this activity is carried out? In civil law science this question is debatable, which shows its relevance. Solving it, even E.L. Nevzgodina argued that there were no fundamental differences between these two definitions, that they should not be opposed. It seems to me that it is also not worth considering these concepts to be identical, because there is indeed a real connection between certain types activities and social relations, but still these are diverse categories. Procedural representation is associated with three relationships that develop:

1) between the represented and the representative;

2) representative and court;

3) represented and the court;

The first group of relations regulated by substantive (civil, family) law is called inside representation, and the second, the relations of which are regulated by procedural law, by the external side of the representation. It turns out that representation in civil proceedings is a material and procedural institution. In order to exercise the right (obligation) received under the law or on behalf of the represented person to represent on behalf and in the interests of the represented person in the judicial process, the representative must enter into certain procedural legal relations with the court. Through them, a representative function is carried out in the process.

The entry of representatives into the process, according to some authors, does not give rise to independent legal relations with the court for them, and their representative activity is completely determined by the boundaries of the relationship between the court and the person represented, because the rights of representatives, being derivative, are covered by the content of these relations. In the process, the representative is endowed with independent rights and obligations, most of which he acquires in accordance with the law, regardless of the will of the person represented (Article 61 of the Civil Procedure Code of the Republic of Kazakhstan, hereinafter CPC RK). Thus, representation in court is an independent institution of civil procedural law, which regulates relations between the court and the representative, as well as between the represented person and the representative, arising in connection with the consideration and resolution of the case.

From the point of view of terminology, the name "legal representation" is a conditional concept. It does not mean that only this type of representation is legal and others are not based on law. As a general basis for the emergence of all types of representation have a rule of law. In this sense, all types of representation are legal.

The appearance of the term "legal representation" is explained by the fact that the represented person, due to his incapacity or partial legal capacity, cannot elect a representative by his own will and therefore he is determined by law. Legal representation is provided for by Articles 63 and 304 of the Civil Procedure Code of the Republic of Kazakhstan. Such representation is mandatory, since it is aimed at protecting the rights and legitimate interests of persons who do not have full civil procedural capacity or are incompetent, as well as those recognized by the court as missing. Legal representation arises on the basis of the fact of kinship, an administrative act - an act of the guardianship and guardianship authority on the appointment of a guardian or trustee, a judicial act - a court decision on adoption (adoption) and a court ruling on the appointment of an official representative lawyer. Thus, representation will be “legitimate” in the case when the person represented has civil procedural legal capacity, i.e. the right to judicial protection of rights, freedoms and legitimate interests, but does not have civil procedural capacity, i.e., cannot independently exercise their procedural rights and obligations, including entrusting the conduct of a case in court to a representative.

The Constitution (basic law) of the Republic of Kazakhstan states that “care for children and their upbringing are the natural right and duty of parents” (clause 2, article 27 of the Constitution of the Republic of Kazakhstan). The topic "Representation of minors" is not fully disclosed in legal science. A child, like any member of society, has the right to protection, but this right is exercised depending on the age, powers, and legal status of minors. As legal representatives, parents are named among the first (Article 63 of the Law of the Republic of Kazakhstan dated 12/17/1998 N 321-1 "On Marriage and Family"). If they evade this obligation, then the rights and legitimate interests of minors are protected by the guardianship and guardianship authorities, as well as the prosecutor. The rights and legally protected interests of minors left without parental care are protected by adoptive parents, guardians, trustees, foster parents or educational, medical institutions and social protection institutions.

Thus, the representation of minors in the process refers to a variety of legal representation, since those represented, due to their lack of full civil capacity, are not entitled to exercise their right to judicial protection of their interests.

It should also be noted that when protecting the rights of minors between the ages of 14 and 18, the court is obliged to involve those represented in the case, which is rarely observed in practice. In addition, a teenager becomes a full participant in the process if, upon reaching the age of 18, he entered into marriage or acquired full legal capacity as a result of emancipation. In certain cases provided for by law, in the absence of the above conditions, minors from 14 to 18 years of age have the right to independently represent their interests in court.

When exercising the right to protection, numerous means are used: a lawsuit (application, complaint), court decisions, participation of guardianship and guardianship authorities, etc. These methods of protection are aimed at restoring (recognizing) the violated (disputed) rights and interests of the child.

Parents are named by the legislator among the first persons who protect the rights of a minor (Article 63 of the Law of the Republic of Kazakhstan dated 12/17/1998 N 321-1 "On Marriage and Family"). At the same time, they must present evidence to the court confirming their relationship with the child. Such evidence is the birth certificate of the child and a document confirming the identity of the parents. Represent the rights and interests of the child may be both parents, and one of them by agreement between them. Moreover, parents should protect the rights and interests of children, and not their own rights and interests.

If there are contradictions between the interests of parents and children, which are established by the guardianship and guardianship authorities, then parents cannot represent children in relations with other persons. In this case, the guardianship and guardianship body is obliged to appoint a representative for the child on the basis of a reasoned decision. This measure is coercive, as it limits the rights of parents. But she is temporary. Therefore, if the grounds for her election disappear, then the representation is cancelled. If the parents evade protecting the rights and interests of the child, abuse their rights, then protection again rests with the guardianship and guardianship body (Article 100 of the Law of the Republic of Kazakhstan dated 17.12.1998 N 321-1 "On marriage and family"), which has the right to apply to the court, regardless of the request of the interested person or his legal representative.

If children left without parental care are transferred for upbringing to a family, under guardianship (guardianship), to a foster family or to an institution for orphans or children left without parental care, then the obligations to protect their rights are assigned to adoptive parents, guardians ( trustees), adoptive parents, administration of the institution. If these persons evade the fulfillment of their duties, then, in accordance with the procedure established by law, adoption, guardianship (guardianship) are canceled, and the agreement on the transfer of the child for upbringing to a family is terminated.

In case of violation of such personal rights, I believe that the child has the right to demand compensation for the moral damage caused to him and at the same time raise the issue of depriving parents of parental rights in judicial order. Similarly, if the child is in a children's educational institution, and the administration improperly fulfills its duties (there is evidence), then in this case the child who has reached the age of 14 has every reason to sue in court for compensation for the material and moral damage caused to him.

It seems that the child realizes the right to judicial protection in the following way. First of all, his application is considered in the lawsuit, the defendants in the case are the parents (persons replacing them), the guardianship and guardianship authorities are involved in the process to give an opinion on the merits of the stated requirements and assist the child in collecting documents and evidence. The prosecutor also takes part in the process, since this category of cases affects the interests of not only a particular child, but also society as a whole. The court may involve the body of guardianship and guardianship in the case as a plaintiff in the procedural sense on the part of the child, taking into account the age of the teenager, his development, mental properties characteristic of adolescence. Thus, the child is not just a passive object of parental care, he is, to a certain extent, an independent subject of law. The duty to protect the rights and interests of children rests with the prosecutor. He has the right to apply to the court with a statement only if the citizen, for health reasons, age, incapacity, etc. cannot go to court. In this case, the prosecutor is endowed with all the procedural rights and obligations of the plaintiff (with the exception of the right to conclude a settlement agreement and the obligation to pay court costs). If the prosecutor refuses the application, then the case is terminated if the interested person, whose rights were defended, or his legal representative refuses (Article 55 of the Code of Civil Procedure of the Republic of Kazakhstan).

After analyzing the various points of view of leading scientists on the legal nature of representation, we can come to the following conclusion: procedural representation is a legal relationship that is complex in its structure, within which its subjects (court and representative) perform certain procedural actions. Yes, the law protects the rights and interests of minors, but this is not always observed in practice. To protect the rights and interests of children, it is first necessary to know their personal interests, which can be seen in theory, but is much less common in life. The rare involvement of the represented in the case is only one of the problems of the civil process for the protection of the rights and interests of minors. If the court is so careless about legal rights children, what can we say about the quality of the resolution of problems of minors? Therefore, I believe that for our society it is necessary to develop not only the normative protection of the rights and interests of citizens, but, above all, its full manifestation in life, that is, in practice.