Peculiarities of establishing the fact of recognition of paternity under the legislation of the Russian Federation

Purge Anna Rolandovna PhD in Law Associate Professor at the Department of Private Law of Vladivostok State University 690014, Russia, Primorsky Krai, Vladivostok, Gogol str., 41, office 5502 a.purge@mail.ru Other publications by this author

The crisis of traditional official monogamy, the increasing spread of civil marriages and the formation of new, non–traditional models of family relations are inevitably accompanied by an increase in the number of single-parent (mostly with a single mother and child) families. This trend, which is quite clearly defined for Russia in modern sociological research ^{[1, pp. 106-107]}, requires, in order to protect childhood, special attention to the problems of legal regulation of the procedure for establishing paternity. On the one hand, as the United Nations (hereinafter referred to as the UN) notes, the Russian Federation pursues a purposeful policy of countering the modern "liberation of morals", on the other hand, it contributes to the formation of gender equality in Russian society ^[2], but at the same time cannot but tighten the policy of legal responsibility of parents.

However, any policy of strengthening the responsibility of parents for the upbringing and maintenance of children, namely, it seems optimal in the modern demographic situation ^{[1, p. 109]}, requires, first of all, detailed and clear rules for establishing the very fact of parental relations. In this regard, it is difficult not to agree with A.M. Nechaeva that "the rules on establishing the origin of children can be called a kind of "litmus test" of the state's attitude towards motherhood and children" ^{[3, p. 19]}.

The special military operation currently being conducted by the Russian Federation inevitably involves the death, capture or unknown absence of many male persons who recognized their children, raised them, but for various life reasons did not register their paternity in a timely manner with the civil registry offices. In order to restore the family legal status of a child, Soviet legislation, since the time of the last wars, has provided for a special institution in the civil process that allows, within the framework of a special, i.e. indisputable, production (production to establish facts of legal significance), to recognize his kinship with the deceased, deceased or missing father. According to tradition, this institution was also transferred to the Russian civil procedure legislation in 2003. Currently, this status is particularly important for receiving social benefits that the state has guaranteed to family members of military personnel, including those mobilized in the order of partial mobilization from 09/21/2022.

Of course, for civilian life, this institution has largely lost its importance due to the development of biotechnologies and, in particular, technologies for determining the similarity (identity) of DNA, however, it is the uncertainty created by military operations that does not always allow such a study – due to the lack of necessary biological materials for appropriate expertise. Thus, the problem of establishing by the court the fact of recognition of paternity is now again relevant.

It cannot be said that the procedural rules for establishing paternity have not been the object of research in Russian jurisprudence. These issues were considered both in periodic publications and in specialized studies by Soviet (M.V. Materova ^[4]) and Russian (A.M. Akhmedkhanova ^[5], V.N. Vyglovsky ^[6]) authors. These issues were also partially addressed in the dissertation studies of N.A. Chudinovskaya (2007 ^{[7, pp. 114-126]}) and O.Y. Khudyakova (2009 ^{[8, pp. 139-158]}, which provides a comparative characteristic of this institution with the most developed Anglo-American law in this regard).

However, issues of non–search proceedings, issues of establishing the fact of recognition of paternity - attention in these studies was not adequately paid, although procedural features and the presence of a considerable number of problematic aspects of the consideration of this category of cases are beyond doubt.

The institution of establishing the fact of recognition of paternity has undergone a complex evolution. In the post-October period, the slogan of equality for all children whose parents were or were not married was accompanied by simplified rules for establishing paternity, since, after all, origin alone, without state recognition, was not enough to record a man as the father of his child. However, the extreme simplicity of the paternity procedure did not always meet the requirements of generally accepted morality, so it became necessary to complicate it. By decree of the Presidium of the Supreme Soviet of the USSR dated 07/08/1944, any establishment of paternity was prohibited. Later, the Code on Marriage and Family of the RSFSR (hereinafter referred to as the Code of the RSFSR), having again resolved it, conditioned the satisfaction of the claim for establishing paternity with a number of strict conditions. The RF IC reduced them to a minimum and thereby strengthened the moral principles in solving such a complex social problem. Thus, in this part, the requirements of the norms of family law prevail and subordinate the norms of morality. In other rules concerning the establishment of paternity, for example, on a voluntary basis, an innovation has appeared - the possibility of voluntarily establishing paternity before the birth of a child. Thus, the Family Code of the Russian Federation (hereinafter referred to as the IC RF) opened the way for the manifestation of the moral qualities of a potential father. In addition, for the purpose of uniform application of civil procedure legislation regulating the procedure for considering cases of special proceedings, the fact of recognition of paternity was for the first time included in the list of facts of legal significance established by the Civil Procedure Code of the Russian Federation (hereinafter CPC RF) (in Art. 247 CPC RSFSR such a fact was absent, although it is by its legal nature and not it can be attributed to the facts of family relations).

It is possible to highlight the following features.

1. According to Art. 264 of the CPC of the Russian Federation, in the order of special proceedings, the courts do not establish any legal facts, but only those that are relevant for the emergence, modification or termination of personal or property rights of citizens and organizations.

Consequently, in relation to special proceedings, the legislator distinguishes between the concepts of "legal fact" and "fact of legal significance". From the point of view of the theory of law, a legal fact is a specific life circumstance with which the norms of law associate legal consequences (the emergence, change or termination of legal relations) ^{[9, p. 341]}. Accordingly, a single legal fact in itself may not entail the emergence, modification or termination of legal relations, but only serve as an element of the legal composition necessary for such a change. With regard to special proceedings, not any legal facts can be established within its framework, but only those that directly entail the emergence, modification or termination of personal or property rights of citizens or organizations, that is, facts of legal significance in the narrow sense of the term.

In the light of the above, the question arises about the legal consequences of the applicants' appeal to the court with demands for the establishment of facts that do not really have legal significance in the above sense. This problem is resolved ambiguously in the literature. International law does not allow refusal to appeal to the court (Article 8 of the Universal Declaration of Human Rights) ^[10]. However, A.N. Chashin considers it possible to use the rules of paragraph 1 of Part 1 of Article 134 of the Civil Procedure Code of the Russian Federation" ^{[11, p. 321]}, since such statements are initially deprived of legal protection. M.K. Treushnikov also points out the possibility of refusal, pointing out that if the fact stated for establishment does not entail legally significant consequences for the applicant, which he expects, the judge has the right to apply paragraph 1 of part 1 of Article 134 of the CPC of the Russian Federation ^{[12, p. 355]}.

However, the possibility of refusal to accept such applications is questionable. It is known that paragraph 1 of Part 1 of Article 134 of the CPC of the Russian Federation allows refusal to accept an application if the application is not subject to consideration and resolution in civil proceedings, since it is considered and resolved in a different judicial order. Probably, taking into account Article 118 of the Constitution of the Russian Federation, a different judicial procedure should be understood as constitutional, criminal or administrative proceedings. Thus, it is obvious that the law does not provide for a "different judicial procedure" for establishing legal facts. Accordingly, the application must be accepted for court proceedings, considered on the merits, otherwise the court will inevitably violate the citizen's right to judicial protection provided for in Article 46 of the Constitution of Russia ^[13]. In addition, it seems that it is possible to establish the non-legal nature of the fact only at the stage of judicial proceedings, but not at the initiation of the case. Accordingly, if, as part of the consideration of the case on the merits, the court establishes the non-legal nature of the fact sought, it is necessary to refuse to establish it to the applicant.

For comparison, it can be noted that the Arbitration Procedural Code of the Russian Federation (hereinafter the APC RF) does not contain the institution of refusal to accept an application at all: paragraph 1, part 1, Article 150 of the APC RF allows only the termination of proceedings in a case if it is not subject to consideration in an arbitration court. By virtue of Article 218 of the APC of the Russian Federation, cases on the establishment of facts that are not legally relevant to the rights and obligations in the field of entrepreneurial activity are not subject to consideration in an arbitration court. Thus, in the framework of the arbitration process, an application for the establishment of a fact that has no legal significance must initially be accepted for production. If, however, the commercial court does establish its non-legal nature during the consideration of the case, the proceedings in the case are subject to termination.

2. Within the framework of special proceedings, the court may establish only legal facts of a substantive nature. The establishment of procedural legal facts is typical for the claim proceedings and proceedings in cases from public legal relations. As for new types of proceedings (Chapters 45-47 of the Civil Procedure Code of the Russian Federation), then, as V.V. Yarkov correctly notes, the courts of general jurisdiction, when resolving applications for challenging arbitral awards, for the enforcement of foreign judgments, mainly examine procedural legal facts as grounds for resolving applications from interested parties ^{[14, p. 462]}.

3. In order to establish legal facts in a special procedure, a set of a number of additional conditions is necessary:

1) the applicant must not have the opportunity to obtain or restore documents certifying the sought fact out of court;

2) the law should not provide for a different procedure for establishing the relevant facts;

3) the establishment of legal facts must meet a specific purpose.

The analysis of these conditions will be carried out later.

4. The current procedural legislation contains a list of facts to be established in the framework of special proceedings. Despite the fact that this list is not exhaustive, its very existence, in our opinion, indicates that not every legal fact can be established according to the rules of special proceedings.

5. It is important to note another significant difference between the establishment of legal facts in the framework of claim proceedings and proceedings from public legal relations, on the one hand, and special proceedings, on the other.

The purpose of the special proceedings is to identify and establish certain circumstances with which the law associates the emergence, modification, termination of certain rights and obligations of the applicant. However, it is important that the rights arising from these facts are not violated (challenged) themselves, do not require their protection and can be implemented by authorized entities without resorting to additional recourse to the court, according to procedures outside special proceedings. The tasks of judicial activity include only the establishment of factual circumstances (actual composition), whereas all the rights that follow from these facts can already be determined by other public authorities.

As for the claim proceedings, when considering a claim, the court must not only establish the presence or absence of certain facts of legal significance, but also draw legal conclusions from the facts established by it, that is, directly resolve the dispute.

Thus, despite the fact that legal facts are established in civil proceedings in all types of production, their establishment within the framework of a special production is a special and ultimate goal of this type of production.

However, we are not talking about two alternative facts, but about two different manifestations of the same fact, the first of which is of a material nature, and the second is of an immaterial nature.

Firstly, if we are talking about a dependent, then the legislator "thinks out" for the deceased, assuming (in essence, we are talking about a legally established axiom) that the deceased supported his child. In other words, in this case, from one fact of dependence established by the court, the legislator imperatively establishes the fact that the deceased was the father of the child. This consequence is not a presumption, since the establishment of the fact of dependence is considered not just a basis for an assumption (which can be refuted), but an indisputable basis for establishing the fact that a citizen recognizes paternity in relation to a child. This consequence is also not a legal fiction, since the latter, by definition, is a formal confirmation of a fact that does not actually exist (the consequence of which is the concept of fiction). However, the relationship between the child that the deceased man took care of may turn out to be far from fictitious, which excludes the possibility of non–application of the legal category of fiction to the recognition of paternity. In turn, the very fact of recognizing paternity does not yet mean paternity and an unambiguous kinship, but the legislator "thinks out" for the deceased man, and in fact also imperatively establishes from the fact that he recognizes the child as his own, the kinship of the deceased with this child, creating for the latter all the legal guarantees arising from this status (in particular in particular, social security and hereditary). In other words, we are talking about a "bundle", the consistent application of two legal axioms: the first one proceeds from the fact that the material maintenance of a child is already a recognition by a person of paternity in relation to this child, the next one – from the fact that recognition by a person of his paternity in relation to a child, indeed, entails the truth of the fact of his biological paternity.

Secondly, we are talking about committing non-material actions against a child, i.e. not about material maintenance, but about, for example, upbringing, giving advice, walking together, accompanying a child to institutions (for example, to a hospital) and about performing all other actions expressing care for him. In this case, the first of the legal axioms has a specific basis, consisting in the uncertainty of the initial premise: the actual actions with which the legislator associates the fact of recognition of paternity by a person are not specified, however, if the fact of recognition of paternity follows from these actions, the second (subsequent) legal axiom begins to act in the same way as it acts in the first case.

In other words, there is a common (i.e. similarity) and difference between the two given grounds in the first of the legal axioms established by the legislator.

The similarity of these grounds lies in the fact that both property security and actions related to the upbringing and care of a child are real, factual, that is, different from legal, actions of a person who recognizes his paternity. On the contrary, the direct statement of a person, even if oral or written, that he is the father of a child, does not yet give the court grounds to establish the fact of recognition of paternity: such statements are evaluated only along with other circumstances in the case. In other words, it should be emphasized once again that a direct, oral or written recognition of a child as one's own, even without performing actions related to taking care of a child, is not considered by the legislator as a legal fact that allows establishing kinship relations: it is not legal statements that are necessary, but actual manifestations of caring for a child.

The difference is that the second of the grounds of the first legal axiom (the commission of certain actions as a basis for establishing the fact of recognition) is formulated less concretely in the second case. If the transfer of any property for the maintenance of a child does not leave room for judicial discretion, then the commission by a person of certain actions, from which the actual recognition of himself as the father of the child follows, allows the court to interpret them quite broadly.

So, the second option of the same behavior is not a direct, but an actual recognition by a person of himself as the father of the child, i.e. recognition of the parental relationship by actual actions. However, for some reason, actions related to the direct recognition of paternity by a man in relation to a child by a legislator are not taken into account, i.e. they are not considered sufficient.

Summarizing the above, it should be stated that when considering this category of cases, the court must carefully and comprehensively evaluate the evidence presented on the recognition of paternity before the death of the alleged father of the child. In the course of judicial evidence, the truth of the facts forming the subject of proof is established. In addition to witness testimony, written evidence plays an essential role in establishing the fact of paternity recognition by the court. Since no other deadlines have been set for the category of cases under consideration, it should be recognized that the total period for their consideration is two months.