Nad připravovanou úpravou osvojení v novém zákoně o rodině ČSSR

In connection with the preparation of a new Family Act of the Czechoslovak Socialist Republic became clearly manifest also the importance of a new regulation of relations which originate by adoption. Our Party and our whole society give in this period of development an Increased attention to marriage, family and first of all to the education of children. Evidence for it is given, as far as the last period is concerned, as well by the conclusions of the December session of the Central Committee of the Communist Party of Czechoslovakia in 1960, as by the course and the final resolutions of the twelfth congress of the Communist Party of Czechoslovakia, where, besides a series of conclusions of economic and political character, was also adopted a series of concrete measures laying stress on and supporting the importance of marriage, family and their social functions in the education of children. Along with the correct stressing of the importance of marriage and family, first of all for the education of children, rises automatically also the social importance of adoption, which is a social means the alm of which is to make up for the family milieu where children lack it for whatever reasons. The fundamental social aim of adoption remains, according to the prepared regulation, contained in the new Family Act even in the conditions of a highly developed socialist society, the securing of a family milieu for those children who either have no parents or who, in their own family, are lacking in a proper parental care. Adoption becomes the most ideal and the most appropriate means how to make up for the lacking family milieu in the case of such children. This conclusion is confirmed not only by long term experiences of the courts, but also by the most recent items of information on the development of the children’s mental personality, as given by the medical science, psychology and pedagogy. The same was confirmed also in the course of discussions which took place recently in our magazines for culture and politics and in our journals in connection with the examination of the importance of the family and of the social collective institutions for the education of children. The prepared regulation of adoption maintains the two existing types of adoption. In contrast to the former legal regulation anchored in the Act No. 265/1949 of the Law Gazette and amended by the Act No. 15/1958 of the Law Gazette, the prepared regulation brings the two types nearer, both as far as their essence and their legal consequences are concerned. This way the prepared regulation becomes more lucid and intelligible and creates at the same time conditions for a future gradual fusion of both types of adoption into one. Both types of adoption have in common the principle that between the adoptive parent and the adopted child adoption creates a relation such as existing between parents and’ their children; between the adopted child and the relatives of the adoptive parent there is a family relation. The basic difference between the two types of adoption consists in the fact, that the adoption of the second type, which is accompanied by the entry of the adoptive parents into the register instead of the adoptive child’s parents, cannot be cancelled. On the contrary the adoption of the first type can be cancelled on grounds stated by the law. The prepared regulation admits also the transformation of the adoption of the first type into an adoption of the second type; the inverse transformation is however not possible. The prepared regulation stipulates some new conditions for adoption and the existing conditions undergo some changes. The new conditions for adoption are the following ones: a) before the court’s decision on adoption the child has to be for a minimum period of 3 months in the care of the future adoptive parent; b) the second type of adoption can be practised only when the child is a minor elder than 1 year; c) the second type of adoption can be practiced only when the adoptive parents are spouses, or when the adoptive parent is the spouse of one of the child’s parents. A very important change undergoes the regulation of the condition, according to which the consent of the parents of the child is not necessary, nonobstant the fact that the parents are the child’s legal representatives. Instead of the existing three exceptions stipulating the cases in which this consent is not necessary, the new regulation fixes only two exceptions: a) if the parents do not manifest within a minimum period of one year a real Interest in their child, or b) when the parents give their consent to the adoption beforehand, without relation to any determined adoptive parents. In these cases however is necessary the consent of the guardian who has to be appointed to the child in the course of the adoption procedure. Regardless of whether it is the adoption of the first or of the second type, it can be pronounced only by a court on the proposal of the adoptive parent. Before the decision on any of the mentioned types of adoption the court hears – if possible in person – the parents of the child, the adoptive parent as well as his spouse, in case that his consent is necessary for the adoption. The court examines the child which has to be adopted only when the child is able to understand the sense and the importance of adoption and if the examination of the child is not contrary to his interests. The cancellation of an adoption is possible only when the adoption of the first type Is Involved. The possible modes in this case are the following ones: a) for Important reasons on the proposal of the adoptive parent or of the adoptive child, or b) if the adoptive child is already of age, by an agreement concluded between him and the adoptive parent. When an adoption is cancelled, the mutual rights and obligations between the adoptive child and his original family are reestablished. The adoption of the second type cannot be cancelled neither by the modes mentioned above, nor by any other means. The adoption of the second type, called also the uncancellable adoption, doesn’t exclude naturally a further adoption of the adoptive child in the future.