The Use of Penalties When Regulating Property Relations in the Family Sphere

Within the framework of family legal relations, the application of a penalty is, in fact, legally limited to a penalty in case of non-payment of alimony. At the same time, the penalty itself in family legal relations has not been practically investigated. The mention of it is contained in Article 115 of the Family Code of the Russian Federation, however, the scientific understanding of this norm is limited to comments on family legislation and the practice of the Federal Bailiff Service, and within the framework of judicial interpretation, special cases of the application of a penalty in case of non-fulfillment of alimony obligations by a party are investigated. Meanwhile, this problem requires its own systematic scientific consideration, cognitive valid analysis and relevant conclusions and recommendations. The purpose of the work was the legal characterization of the penalty in family legal relations, as well as the formulation of their own conclusions and recommendations on the topic of the study. To achieve this goal, the following tasks have been solved: 1) A retrospective analysis of the formation of domestic legislation on the penalty has been carried out 2) The concept of a penalty as a way to ensure the fulfillment of obligations is disclosed 3) The types of penalties in family legal relations are considered 4) The features of the application of the penalty in alimony obligations are revealed The penalty as a legal institution in the history of Russian law has had a fairly progressive development. The current one in the Civil Code implemented the definition of a penalty from the previously existing civil legislation. At the same time, this definition has not been adjusted even within the framework of the reform of civil law. The legal essence of the penalty has a dual legal nature. Scientists have repeatedly drawn attention to this feature of the penalty, and attention has also been focused within the framework of court decisions. This position is conditioned by rule–making provisions in which the penalty is defined ambivalently: for example, in Article 329 of the Civil Code of the Russian Federation, the penalty is fixed as a way to ensure the fulfillment of an obligation, and Article 396 provides for a penalty as a type of liability. The penalty in family law can be classified into contractual and non-contractual (legal). The legal penalty is established by Article 115 of the RF IC and provides for the possibility of its application to a person who is obliged to pay alimony by a court decision. The contractual penalty is established by the subjects of family relations themselves. If the rulemaker has clearly limited the scope of the application of a legal penalty, then the contractual penalty is more dispositive in nature and the parties can set its size independently. At the same time, it should be noted that the specifics of the application of the penalty depend on the family legal relationship itself. Also, within the framework of the study, proposals were formulated aimed at leveling the current legislation.