Materijalni i procesni uslovi za zasnivanje odnosa roditelja i deteta u savremenom porodičnom pravu
The subject of this paper are, primarily, the methods ofdetermining and disputing maternity and paternity, regulated by theFamily law on the Republic of Serbia. In order to shed light on themin a comprehensive way, we will divide the work into four logicalunits, ie. four chapters. In the first chapter, we will present generalconcepts about the parent-child relationship, its basic manifestationsand legal phenomena that are directly related to it. In the next chapter,we will deal with the material and procedural aspects of the child'sfamily status, trying to clarify its characteristics in the domestic andthe rights of individual European countries (France, Germany,Austria, Montenegro, Croatia, Russia). Therefore, we will researchthe methods for determining maternity in domestic and comparativelaw, pointing out that in some countries it can be based onrecognition, and not only on the entry of data on the mother in thebirth register and, possibly, on the verdict. In the sphere of paternityrules, we will distinguish between marital and extramarital paternity,so we will underline the different conditions that must be met incertain countries in order for the (ex)husband of the mother to beconsidered the father of the child. We will also present the differentconditions for challenging marital paternity and the practice of theECHR on this issue. In the domain of extramarital paternity, we willcompare domestic and foreign rules on the conditions for hisrecognition and on the possibilities of oppugning him. In theprocedural part of the paper, we will pay special attention to activelylegitimized persons for initiating litigation to determine and challengematernity and paternity, and to the deadlines prescribed in domesticand analyzed foreign laws.The third chapter will be dedicated to the issue ofestablishing parenthood with biomedical assistance, and in it we willpresent the general rules on these procedures in domestic andcomparative law, the types of these procedures and their disputableelements. We will pay special attention to surrogacy, from the pointof view of existing proposals in domestic law and positive solutionsfrom comparative law. Given the importance of this institution, in thispart of the research we will deal with the rights of those countries thatwe have not studied in the course of work so far, and in whichsurrogacy is allowed, such as Greece, Canada, Ukraine, Macedonia,Great Britain and the USA. We will deal with the conditions underwhich it is allowed, its types (commercial and non-commercial,complete and incomplete subrogation, posthumous insemination of asurrogate mother), ways and conditions of using the services of asurrogate mother, contractual rights and obligations of intendedparents and surrogate mother, status of the child surrogate mother. Wewill also analyze the characteristic decisions of the ECHR concerningsurrogacy, which may be a kind of roadmap for the Serbian legislator.In the last chapter, researching the rules on adoption, wewill deal with its concept, historical development, functions, materialand formal conditions for its establishment, types, effect and methodsand consequences of its termination. As the Preliminary draftproposes a return to incomplete adoption, which was not so long agopresent in Serbian family law, we will also express our opinion on it.Considering that the biggest differences between domestic and certainforeign laws are manifested in the sphere of the age differencebetween adopters and adoptees, we will deal with it in particular, inorder to draw a conclusion about the one that best suits natural lawsand modern needs. We will point out the importance of the bestinterest of the child as a condition for establishing adoption, both indomestic and comparative law, and in the practice of the ECHR.
Biografija autora: list 303,Bibliografija: listovi 277-302. Datum odbrane: 25.08.2022. Family law
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