Zgoda na przysposobienie
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Date
1985
Authors
Advisor
Editor
Journal Title
Journal ISSN
Volume Title
Publisher
Wydział Prawa i Administracji UAM
Title alternative
The consent to adoption
Abstract
According to Family and Guardianship Code (F.G.C.), adoption is realized by
means of guardianship count decision on demand of am adopter. Unless it is
otherwise provided by law, consent of specified persons is indispensable for adoption
i.e.: consent of an adoptee when he turned thirteen, consent of his parents,
of a guardian or an adopter's spouse if both spouses are not adopting jointly. The
consent of 'the said persons as an element of adoption's effectuation is characterized
by the fact that it is not creating the relationship of adoption but consists one
of the premises of admissibility of deciding adoption by court. There are numerous
question open to discussion related to the consent to adoption as a material premise
of an adoption decision. One of those of a general impact for the whole institution
of consent to adoption as well as related to the consent's positioning in a construction
of adoption's realization is discussed in the article. It is a question of
establishing legal character of a declaration of consent to adoption. That issue has
not yet been satisfactirily clarified in the doctrine and jurisdiction of the Supreme
Court. Particularly, the commonly adopted treatment of the consent as a declaration
of will (legal (transaction) in the understanding of Civil Code (C.C.) must raiseobjections. That view can be /traced to a psychological concept of declaration of
will according to which the declaration of will means as much as manifesting
an intention to cause legal consequences. The reason for doubts lies in the nature
of ;legal transaction an indispensable element of which is a declaration of will; the
fürst is considered to be a (particular element of civil daw system provided for
the legal subjects to form independently binding legal relations. Whereas no results
turning into a change of previous legal situation of -the subjects are observed with
making a statement of consent to adoption. Consequently it can be advocated that
the institution of legal transaction (declaration of will) is not applicable in the
system of adoption instituted judicially and admitted by F.G.C, for the reason
of inadequacy of its function to the statutorily set role of a declaration of consent
to adoption.
The appraisal of a declaration of consent in the light of the newer concept of
declaration of will as a normative statement instituting an individual norm of
behavior is positively speaiking against considering the consent to adoption to be
a declaration of will. Referring to the theory of conventional acts, which generated
the aforementioned concept, it can be maintained that a sense of declaration of
consent to adoption as a conventional act of legal consequence consists entirely
in creating a situation in which a formerly laid down norm becomes applicable
ana duties of court in a shape of an adequate reaction to that act would actualize
thenselves.
The results of study of the C.C. regulation of legal transactions to solve
quétions related to consent to adoption prove that it is of little avail what is
ia
Description
Sponsor
Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 47, 1985, z. 1, s. 51-68
Seria
ISBN
ISSN
0035-9629