الحماية القانونية للأسرة

Abstract

This study came to show the amplitude of the legal protection decided for the family in the context of the modifications of the family code and the criminal protection of the family. Concerning the legal protection of the family in the context of the modifications of the family code, as a consequence of the political changes and scientific development which Algeria lived, the increase of the asker for change, and due to the external pressures imposed on – Arabic societies – under the context of human rights protection and men and women equality, it was an obligation for the legislator to review the code by modifying it through abolishing some of its articles, enriching other ones and adding new matters to it. And behind this conflict the modification contained in the order No. 05-02 in date of February 27th 2005 touched the articles which are able to reinforce the position of women and reaffirm her social and legal position so that she reaches equality with men in the completion of eligibility, through article 7 of the family code. By making it nineteen (19) complete years. This as an answer to the requests of woman associations asking for total equality between man and woman from a part and its unification with the age of maturity from another part. As it suits the aims of marriage in this era, it is strengthened by the statements of some theologians, from another part marriage is permitted to those who didn’t reach the legal age according to what interest requires and what necessity demands this is due to the evaluative power of the judge according to the same article, so it took middle position in accordance with the general social life conditions. However, it attributes to the minor who didn’t reach the legal age of maturity the right to litigate concerning the consequences of the act marriage from rights and obligations in accordance with the last paragraph of the same article, it didn’t stipulate its right to litigate concerning divorce and its impacts. And this is due to the danger of taking position concerning divorce especially because of his young age and his incapacity to see the consequences of matters. As it gave to woman the right to choose the husband she likes weather she was mature or minor according to the articles 11 and 13 from the family code. As it set from the absence of the element of contentment the nullity of the act of marriage insisting from him on the abolishment of the power of the tutor in constraint in article 33 in contrary of what the commons said of the certainty of the tutelage of constraint in difference between the theologians of doctrines to determine the cause of constraint between youth and maidenhood. So the disregard of the role of the tutor to marry her if she was mature, and forbidding him to constraint his principal in marriage if she was minor. The Algerian legislator complied with occurring scientific developments, so he took the aims of Islamic Chariaa and what is imposed by the circumstances of the era from the obligation of medical exam before marriage and this through article 7 bis by preserving the realization of the purpose of marriage, it also permitted to recourse to artificial fertilization without giving any reason for that through article 45 bis so it authorized to establish filiation the use of scientific means by the text of article 40 without determining its conditions and standards like the modern theology did. The legislator enlarges also the evaluative area of the judge in many cases concerning the act of marriage from authorization for a new marriage if there is a previous existing marriage and this in the article 8 and making the absence of this condition a legal cause to cancel the act of marriage before consumption and so limit the plurality of wives by ordering additional limits. The legislator enlarges also the conditioning area in the act of marriage especially for woman like the condition of work and that she continues working after marriage, the condition of not marring after her according to article 19, he made as a result from not accomplishing these conditions the right for woman to require divorce, this according to paragraphs 6, 9 and article 53 of the family code. The legislator made the mission of the two referees when rampart faction confined to conciliation between the couple and that they present the report of their mission within two months according to the article 56 of the penal procedures code. He made public prosecutor a fundamental side in all the claims concerning family after that his interference was an exception on some family affairs and an organizing side in other ones. About the liability of the couple, and the fate of their money earned during the marital life, the article 37 permitted to the couple to conclude concerning that an accord which will be in the act of marriage or in a coming official act.

Concerning the protection of the family, the Algerian legislator enlarged the prerogatives of the judge of the family affairs, giving him to settle with an emergent manner in any primary affair to which they were opposed or requiring their interference without referring to the president of the judicial side, he became concerned to settle emergently according to an order in the bottom of the request in the articles of alimony, visit, guardianship, inhabitation and all the matters concerning the family affairs. This new specialization will reduce the congestion of files in the president of the court office and will guarantee speed for the citizen in the issuance of the order. The legislator will have got out of the original rule. Concerning the criminal protection of the family: The criminal legislator aimed when legislating the preservation of the family entity and the maintenance of the relation of amiability and the tight connections uniting its parts, his care to preserve these connections by the inculpation of all kinds of aggression where these connections were taken into consideration in the field of criminality in many places. We find that the familial connections weather they were marital or between ascendants and descendents, have a clear impact in this field, where the marital relation is considered a basis in some