国际家庭法中的弱势关系

IF 0.1 Q4 LAW
E. Voytovich
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引用次数: 0

摘要

本文考察的是一种尚未获得广义法律特征的法律现象,其在国际家庭法中的研究是零散的。分析了“跛脚”关系产生的原因:法律冲突规制差异、法律冲突规则适用不正确、实体法规制差异、管辖权冲突;“跛脚”关系是法律冲突、实体规范和程序规范相互作用的结果,导致了不良的法律效果。作者对这种消除作为法律制度趋同的“蹩脚”关系的方法的有效性表示怀疑,建议注意相互竞争的传统冲突工具和相反的方法方法-承认,其潜力被低估且研究不足。承认不被视为冲突方法的替代品,而是克服“蹩脚”关系的一种额外方式。欧洲人权法院和欧洲联盟法院的实践说明了在跨国界家庭纠纷中取代国家法律冲突规则的问题。在分析了英美法系国家和大陆法系国家现有的承认模式的基础上,分析了俄罗斯家庭立法承认规范的法律性质和地位。иThe俄罗斯联邦对外国行政程序和决定、外国文件的承认机制进行评估。作者认为,在国内法中对外国法院判决、行政程序和外国主管机关发布的文件的承认的各种途径的实施,建议将它们统一在一个统一的承认程序框架内,排除不确定性和内部矛盾。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Limping relationships in international family law
The article examines a legal phenomenon that has not received a generalized legal characteristic, its research in international family law is fragmentary. The reasons for the “lame” relationships are analyzed: differences in conflict of laws regulation, incorrect application of conflict of laws rules, discrepancy between substantive regulations, conflict of jurisdictions; it is concluded that “lame” relationships are the result of the interaction of conflict of laws, substantive and procedural norms, leading to an undesirable legal effect. The author expresses doubts about the effectiveness of such a method of eliminating “lame” relationships as the convergence of legal systems, suggesting to pay attention to the competing traditional conflict tools and the opposite methodological approach — recognition, the potential of which is underestimated and insufficiently studied. Recognition is seen not as an alternative to conflict method, but as an additional way to overcome “lame” relationships. Replacement of national conflict of laws rules in cross-border family disputes is illustrated by the practice of the European Court of Human Rights and the Court of Justice of the European Union. Attention is drawn to the existing models of recognition in common law countries and continental legal tradition, the legal nature and place of the norms of Russian family legislation on recognition are analyzed. иThe mechanism of recognition of foreign administrative procedures and decisions, foreign documents in the Russian Federation is assessed. The author comes to the conclusion that implementation in domestic law of various approaches to the recognition of foreign court decisions, administrative procedures and documents issued by the competent authorities of foreign states, proposing to unify them within the framework of a uniform recognition procedure that excludes uncertainty and internal contradictions.
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来源期刊
CiteScore
0.30
自引率
50.00%
发文量
18
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