Régimen de visitas, comunicaciones y estancia de los hijos menores en caso de violencia: exégesis de los apartados IV y V del artículo 94 CC

Abstract

On 21 October 2022, the STC (Plenary) 106/2022, of 13 September, was published on the occasion of the appeal of unconstitutionality filed against the reform (operated using Law 8/2021, of 2 June) of art. 94 CC. The precept aroused controversy in the political, jurisdictional and doctrinal spheres, as it was understood to be an interference with judicial power, the right to adequate judicial protection, legal certainty and the presumption of innocence, with an impact on art. 39 CE. The TC, far from declaring the unconstitutionality of the rule above, was also divided, which confirms the debate of a not very peaceful reality. Thus, to clarify the content of sections IV and V of Art. 94 CC, this work proposes a complete interpretative study, resorting to the traditional exegetical school. This research aims to analyse the closest legislative antecedents of the precept, the grammar used, its contextualisation concerning other norms of the legal system and the scope of its purpose and spirit, all through the different hermeneutic criteria set out in art. 3.1 CC. As for the sources used to respond to the claim, recourse is mainly had to national regulations and international instruments that have an impact on the protection of minors and women, as well as the most relevant doctrinal and jurisprudential postulates, bearing in mind the novelty of the wording of the precept in question. Due to the debate that has arisen and the interpretative problems of Art. 94 para. IV and V CC, a broad study of the precept, which aims to find the scientific truth or, at least, an approximation, is of interest.