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- ALIMENTARY RELATIONSHIPS OF FAMILY MEMBERS Tutkabay U.B.
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1. Закон Республики Казахстан от 24 ноября 2015 года № 418-V ЗРК Об информатизации 2. Мещеряков В.А. Цифровая криминалистика // Библиотека криминалиста. Научный журнал. М.: Юрлитинформ, 2014. № 4 (15). С. 231-241. 3. Россинская Е.Р., Шамаев Г.П. Новый раздел криминалистики: криминалистическое исследование компьютерных средств и систем // BAIKAL RESEARCH JOURNAL. - 2015. -№ 1. - Т. 6. 4. Хатунцев Н. А. О специальных знаниях, необходимых при исследовании компьютерных средств и систем // Актуальные проблемы российского права. 2010. № 1. УДК 347.6 ALIMENTARY RELATIONSHIPS OF FAMILY MEMBERS Tutkabay U.B. - student of group UM20-1r2 Nurymbetova A.A. - senior lecturer The legal relationship of family members to provide content is one of the key problems of modern family law. This is due to the fact that the imperfection of the legislation, expressed in the streamlined definitions, lack of regulation, the presence of controversial norms and the impracticability of some of these norms, leads to the fact that the obligations of family members to support minor children and disabled family members are not properly performed to the detriment of the interests of the child. and other family members. The obligation of family members to support each other financially is stipulated in accordance with an agreement between them, or is compulsory in accordance with family law. Alimony obligation is a legal relationship arising on the basis of an agreement between the parties or a court decision, by virtue of which some family members are obliged to provide maintenance to its other members, and the latter have the right to demand it. [1] Alimony obligations are of a continuing strictly personal nature. This means that the maintenance claim cannot be transferred to another person, cannot be presented for offset, the death of one of the participants in this obligation entails its termination. According to the Law of the Republic of Kazakhstan "On Marriage and Family" dated December 26, 2011, alimony is paid: 1) from one of the spouses to another; 2) from a parent to a minor child; 3) from an adult child to an elderly parent; 4) from able-bodied brothers and sisters to minor brothers and sisters; 5) from grandparents to grandchildren, etc. Alimony is paid on a voluntary basis by entering into an agreement or through a court order if one party refuses to pay alimony. Alimony is awarded from the moment of conclusion of the agreement (or other moment specified in the agreement), or from the moment of applying to the court. [2] The subjects of the alimony legal relationship must be able to have alimony rights and obligations and independently exercise them. Full alimony legal personality arises simultaneously with full alimony legal capacity. In turn, the subjects of alimony relations are individuals - these are spouses, children, parents, and other family members. In the legal literature, there have been a variety of approaches to the definition of alimony legal obligations, its goals, to the relationship between the concepts of "alimony" and "maintenance". Until the 1990s the maintenance obligation was usually considered as a legal relationship, by virtue of which some members of the family, in accordance with the law, are obliged to provide maintenance to its other members, and alimony is the means provided in accordance with the norms of the law. In modern literature, the maintenance obligation is considered in general in a similar way, while its dispositive nature is often noted [3]. Some authors, offering a definition of alimony, do not take into account changes in the alimony legislation. So, M.G. Stolbov considers alimony as cash, but today it is possible to collect alimony in kind. Consequently, at present, the Republic of Kazakhstan provides for two types of alimony collection, allocated according to the criterion of the method for determining the amounts collected: in a share ratio to earnings (other income) and in a fixed amount of money. Currently, the problem of legal regulation of marital relations, including the provision of maintenance to the former spouse after the termination of the marriage, is becoming urgent. These problems occupy a significant place in family legal relations. They create the material basis of family life. If alimony is collected in shares of the parent's earnings (other income), then the court is not limited by the lower limit in determining the amount of alimony, the binding is established only according to the share criterion to the parent's income. Therefore, the lower the earnings (income) of the alimony payer, the smaller the amount of alimony collected. This statement is all the more deplorable when alimony is collected for three or more children, since the share of alimony for each child decreases in proportion to the number of children, so, whatever the number of children, alimony will be calculated from half of the alimony payer's earnings (income). [2] The Code of the Republic of Kazakhstan "On Marriage and Family" establishes the following amounts of alimony: 1) The amount of maintenance for 1 child is 1/4 of the payer's income; 2) Alimony for two children is set at 1/3 of income; 3) For 3 or more children, the payment is 1/2 or 50% of the parent's income. [2] The size of these shares may be reduced or increased by the court, taking into account the financial or marital status of the parties and other noteworthy circumstances. The legislation of the Republic of Kazakhstan provides for the payment of alimony in a fixed amount of money only in the event that the payer is impossible, difficult or significantly violates the interests of one of the parties, or the payer has irregular, changing earnings and (or) other income, or if the parent receives earnings and (or) other income in whole or in part in kind. The main features of maintenance obligations are: its gratuitousness and non-transferability. It follows that the alimony obligation terminates with the death of one of the parties. [4] According to Article 176 of the Law of the Republic of Kazakhstan "On Marriage and Family", the payment of alimony collected in court is terminated: 1) when the child reaches the age of majority or in the event that minor children acquire full legal capacity before they reach the age of majority or the age specified in the agreement on the payment of alimony; 2) upon adoption of a child for whose maintenance alimony was collected; 272 3) when the court recognizes the restoration of working capacity or the termination of the need for assistance of the alimony recipient; 4) upon entry of a disabled former spouse in need of assistance - the recipient of alimony into a new marriage (matrimony); 5) with the death of a person receiving alimony or a person obliged to pay alimony. [2] Our legislation on maintenance obligations is in line with German law, rather than with Western countries. In Western countries, there are two types of alimony and two different terms for them: child support and spousal support proper. In turn, German family law provides for the following types of alimony legal relations: between relatives in a straight line, meaning relations between parents and children, grandparents and grandchildren (in this case, the right to alimony may arise for both parties, i.e. as parents in relation to children, and vice versa); between spouses, if they live separately, etc. Western countries differ, first of all, in the principles of calculating alimony - the formulas for calculating the amount are diverse not only in individual foreign countries, but also in different US states. The two main approaches to calculating child support - from the parent's income or child support - are often combined.[6] Calculation formulas can take into account both the income of the parent living with the child and the actual expenses for the child, based on the principle of maintaining his standard of living for the child until divorce. In many US states, for example, medical insurance must be included in the cost of a child. The income of a parent living separately is also taken into account for different reasons, a different share principle of deductions from them is applied. There are often gradations in the child's age to revise the child support amount as his/her needs increase. Many Western countries take into account the time that a parent who does not live with a child spends with him at home. The degree of obligation of formulas for determining alimony in court is also not the same, somewhere they exist as a general guideline, somewhere they strictly regulate the amount of payments. Countries also differ in the presence or absence of a fixed minimum amount of payments. The only similarity between the alimony obligations of Western countries and Kazakhstani legislation lies in the age up to which alimony is paid. The general age is majority, but an extension of the age up to which alimony must be paid is also permitted in connection with continuing education. In order to fully ensure the right of the child to maintenance in Poland, a maintenance fund has been established. Its funds are formed at the expense of amounts collected from persons obliged to pay alimony, subsidies from the budget, voluntary contributions and other sources. Manages the funds of the Social Security Administration fund. Payments are made to children who have been awarded alimony by a court decision, but its implementation is difficult. The creation of the Alimony Fund in Kazakhstan is paramount, relevant and extremely necessary, because today, due to the lack of appropriate mechanisms, children whose parents are put on the wanted list for non-payment of alimony are not paid maintenance benefits guaranteed by the Law of the Republic of Kazakhstan "On Marriage and Family". Thus, the rights of minors to receive state assistance are violated. The solution to this problem is practiced in many countries of the world: France, England, Austria, Denmark, Norway, Finland. The formation of a similar structure in the Republic of Kazakhstan will seriously improve the social status of children from incomplete families. It would be advisable to establish responsibility not only for the parent's evasion from paying alimony, but also for the creation by one of the parents of obstacles to the observance of the child's right to maintenance. The sphere of relations related to maintenance obligations for minor children needs a comprehensive reform, as well as a deep theoretical and practical analysis. In practice, there are still many issues that need to be resolved taking into account the interests of the state, parents and, of course, children. жүктеу/скачать 5.25 Mb. Достарыңызбен бөлісу:
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