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FAMILIY AND FAMILY HERITAGE IN ROMAN LAW

Author(s): Alina-Monica Axente / Language(s): English / Issue: IX/2021

Keywords: family patrimony; Roman family; parental power; dominion;

In Roman law, for a long time the concept of family and that of patrimony were found in a symbiotic relationship. Both the family and the patrimony were configured as forms of the expression of power. In fact, dominion was the nucleus around which all the creative reforms of a stable system of law revolved. The stability of the Roman system of law is confirmed by the succession of centuries, which only confirms its immutability. This article seeks the vitality of an elastic and dynamic legal system permanently connected to the pulse of society, the requirements of practice and social values. And the primordial value legally recognized by the Romans was power; both the collective and the individual power. The pre eminence of dominion, as we shall see, is reflected both in the edification of the legal regime of property and in the regulation of family relations. However, starting with classical law, the two notions begin to gradually detach from the framework value (mastery) and through the uninterrupted creative effort of the praetors to acquire its own physiognomy, appearing over the centuries as essential independent values.

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THE ORIGIN OF MARRIAGE IN NATURAL LAW ACCORDING TO ULPIAN

Author(s): Petruţ-George Bran / Language(s): English / Issue: IX/2021

Keywords: ius naturale; matrimonium; ius gentium; ius civile;

The definition of natural law was transmitted to us from classical Roman law according to Ulpian. The text containing this definition was written under the influence of Greek ideas. However, this text, which has a legal character, provides for a law that applies only to humans. As for the marriage between a man and a woman, referred to as having its origin in natural law, it lies on the basis of statements by the same Roman jurist: he claims that the offspring are born to belong to the Republic, too. Also, both natural and positive law state the existence of mutual support obligations between parents and their children. The Romanian Civil Code stipulates the marriage between a man and a woman. As revealed in the present paper, the foundation of this provision of the Romanian Civil Code can be found in the classical Roman law according to Ulpian (D. 1.1.1.3), as well as in the text of the Emperor Justinian (I. 1.2. pr.).

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GOOD FAITH - A FUNDAMENTAL PILLAR FOR LEGAL RELATIONS. CONCEPTUAL BOUNDARIES BETWEEN GOOD FAITH AND DOMESTIC AND EUROPEAN ABUSE OF RIGHTS

Author(s): Floriana Tudor / Language(s): English / Issue: IX/2021

Keywords: good faith; bad faith; abuse of rights; abuse of union law;

The study of the concept of abuse of rights, from the moment of its substantiation until now, reveals that the analysis of the existence of an abuse of rights took into account two concepts in antithesis the objective conception and the subjective conception. The analysis of the subjective factor, transposed in good or bad faith, still presents an overwhelming relevance in the legal diagnosis of the state of affairs. Good faith is more than a principle of law; it represents an abstract, indefinite legal standard, but to which refer both the definitions of some concepts in antithesis, but also the consolidation and/or recognition of some rights. The study aimed to analyze, in a synthetic way, the relevance of the elements of good faith as an abstract legal standard and comparison of bad faith, in the context of abuse of rights.

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LIABILITY OF THE SPOUSE FOR DEEDS PREJUDICIAL TO THE JOINT OWNERSHIP OF ASSETS

Author(s): Alexandru Dudău,Anca Afrodita Dobaș-Gongea / Language(s): English / Issue: IX/2021

Keywords: management of joint assets; liability of the spouse; prejudicial deed; damages; nullity;

The legal regime of the liability of the spouse for legal deeds concluded individually, but which cause prejudice to the joint property of assets raises some nuance debates on the legal classification of civil liability, on the holder of the right of claim triggering the liability of the defaulting spouse, as well as on the sanction applied in case the third party co contractor acts in ill faith and has concluded the deed causing prejudice to the joint ownership of assets while being fully aware of the consequences. The legislator has opted for the liability in tort of the spouse at default for causing prejudice to the joint property of assets, while the spouse who did not participate in the conclusion of the prejudicial deed is only granted the right to claim damages, without being entitled to introduce a plea of nullity of the concluded deed. Hence, the spouse is not entitled to introduce a plea of nullity of the deed causing prejudice to the joint ownership of assets concluded by the other spouse even if the third party co contractor was aware of the fact that the asset in question jointly owned by the spouses and was able to anticipate the prejudice it will cause to the joint tenancy, thus acting in ill faith. The sanction for this latter case is the joint liability of the third party and of the spouse who concluded the deed.

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ASPECTS REGARDING TORTIOUS CIVIL LIABILITY FOR THE DEEDS OF MINORS

Author(s): Delia Mihaela Marinescu / Language(s): English / Issue: IX/2021

Keywords: tortious civil liability; parents; supervision; minors; wrongdoing;

The normal development of social relations requires, on the one hand, the observance of certain rules of conduct in carrying out activities in society, and, on the other hand, the sanctioning of those guilty of violating legal regulations, with the main purpose of repairing damage to the victim. Delinquent civil liability imposes on all subjects of law the negative obligation not to harm the social values and rights of others by committing illicit deeds. Although the provisions of the New Civil Code establish that parents have a general obligation to raise and educate their children, during the period when the minors are under the supervision of another person, tortious civil liability may be incurred in its charge in the event that deeds are committed during this time. against the law. The article details theoretical aspects regarding the responsibility of parents and supervisors for the acts of minors, starting from the different foundation, but also the application of these principles in the practice of the courts.

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USUCAPTION - A WAY TO MODIFY THE FAMILY PATRIMONY

Author(s): Alexandru Valentin Varvara / Language(s): English / Issue: IX/2021

Keywords: usucaption; the acquisition of the right to property; possession;

The usucaption is an institution that sanctions the negligent owner who does not look after the own assets.

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THE ROLE OF FAMILY MEMBERS IN ORGAN DONATION FOR TRANSPLANTATION

Author(s): Adina Ardeleanu / Language(s): English / Issue: IX/2021

Keywords: organ donation; transplant; opt in; opt out; consent of family members;

The need for organ transplantation is constantly increasing not only at national level, but also at European and global level, representing one of the most sensitive aspects in the field of medical policies. At the same time, the European legislature analyzes the problem of insufficiency of human organs available for transplantation, as the biggest challenge for Member States in the field of organ transplantation . Currently, the number of organ donations is insufficient compared to the number of patients on the waiting list for transplantation, and members of the European Parliament point out that the mortality rate of these patients is particularly high. The consent expressed by the family members in order to take organs for donation is an important limiting factor for the successful realization of the donation and, implicitly, of the transplant. The refusal of family members to donate organs is therefore a key element of the lack of organs. In Europe, the refusal of families to donate the organs of their deceased relatives varies between 6% and 42%. Differences in attitude, which is difficult to understand in this case as well, could be explained by the variety of procedures for donor consent legislation, for living and deceased donors, as well as other important cultural, economic and social factors that influence society's perception of donation benefits.

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WHY DOES REGULATING THE RESERVED PORTION OF THE SUCCESSION BY ROMANIA CAN'T ENGAGE STATE RESPONSIBILITY UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS?

Author(s): Victor Penteleev / Language(s): English / Issue: IX/2021

Keywords: state responsibility; reserved portion of the succession; European Court of Human Rights;

In this study, the author analyzes the institution of the reserved portion of the succession from the perspective of the obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms and its additional protocols. Citing relevant case law of the European Court of Human Rights, it is established why regulating the reserved portion of the succession by Romania can't engage state responsibility under the European Convention on Human Rights.

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MOTHER IN ROMANIAN POSITIVE LAW

Author(s): Elena-Cristina Savu / Language(s): English / Issue: IX/2021

Keywords: mother; wife; parentage; parent; wife;

Used from the beginning of speech, throughout life, with its own meaning woman in relation to her children or figuratively source, origin the word mother could not bypass the all encompassing field of natural law – jus naturale and the positive law. The Romanian legislator enshrines numerous provisions from which its protection and protection emerge, especially in terms of filiation, recognizing as the mother of a child only the woman who gives birth to him, rejecting the juridical fictions resulting from the gestation for another.

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SUCCESSION REPRESENTATION AND FAMILY

Author(s): Andreea Diana Stupu / Language(s): English / Issue: IX/2021

Keywords: Succession representation; representation of the unworthy; representation of the renouncer; legal inheritance; successors; deceased; family;

Life by its very nature presupposes death, so that all people, regardless of their will, have a limited physical existence in time, which causes them to think about how their goods will be divided as well as, who will be the people that will benefit, when they will pass into non existence. Family is among those who, according to the law, can inherit the deceased's property. In law, issues related to the representation of the estate and the connection between persons belonging to the same family, even beyond death, are regulated in both the legal and testamentary inheritance. In the following, we will analyze theoretical and practical aspects regarding the succession representation and its connection with the family.

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A FEW ASPECTS REGARDING FAMILY MEDIATION

Author(s): Iulian Hagiu / Language(s): English / Issue: IX/2021

Keywords: mediation; family conflicts; divorce; sharing;

Most states consider beneficial to resolve family law disputes through mediation, rather than in court. In Croatia, parents involved in divorce and custody proceedings are required to use the mediation procedure first. Psychologists from the Centers for Social Protection use mediation. Mediation is sometimes combined with other activities. For example, in Estonia, a child care specialist assists parents in the mediation procedure in the early stages of a trial. In Germany, the child's legal counsel provides assistance to parents through mediation. [1] Many disputes that entered the mediation process were resolved by this method. According to some, almost 60 80% of mediated conflicts were resolved by finding a solution agreed by the parties to the conflict. [2]

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THEORETICAL AND PRACTICAL CONSIDERATIONS ON THE SETTING-UP OF THE GUARANTEES OVER THE RECEIVABLES DERIVING FROM A PROMISSORY NOTE

Author(s): Florin Constantinescu / Language(s): English / Issue: IX/2021

Keywords: credit title; promissory note; pledge; mortgage; natural person;

The specificity of the banking activity has always been characterized by the generating of a significant influx of goods (goods), both when the credit institution has provided financing to its customers of any type and when the credit institution has made available to the customers its payment instruments (in the form of promissory notes) to facilitate payments. Obviously, on the solid legal background created by Law no. 58/1934 on the bill of exchange and promissory note and by Law no. 59/1934 on the check, the bill of exchange trade was revitalized after December 1989, the date from which all commercial activity was rearranged on other pillars, and the National Bank of Romania (“NBR”) prudently regulated the circulation of bills of exchange, through a robust legislation such as the Framework Norm no. 6/1994 on the trade made by credit institutions with bills of exchange and promissory notes (hereinafter referred to as Norm 6), Framework Norm no. 7/1994 on the trade made by credit institutions with checks, (hereinafter referred to as Norm 7). The new Civil Code brought novelties regarding the establishment of collateral over the receivables ascertained through nominative titles, to order or to bearer, through the movable mortgage. Also, the negotiable titles (including promissory notes) issued in materialized form and, therefore, susceptible to physical appropriation, may be the subject of the pledge. In the activity of financing and bank guarantee, the promissory note is used as a credit guarantee, which is right, secondarily, being capitalized primarily, in this context, the credit title trait of the promissory note. Thus, by executing the promissory note, in case of an event of default, defined according to the credit agreement, the function of the payment instrument (specific to a promissory note) is also highlighted. Thus, this article aims mainly to make some necessary distinctions regarding the establishment of guarantees over the receivables derived from a promissory note (issued by the legal person receiving the loan or issued or endorsed, in most cases, by a person as an associate / shareholder, administrator, without limitation, of the legal person contracting the loan) and the transmission / assignment of the amounts incorporated in a promissory note, the effects of the avail on the patrimony of the natural person and the highlighting of proposals de lege ferenda.

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BRIEF CONSIDERATIONS ON JUDICIAL CONTROL AND THE INFLUENCE IT CAN HAVE ON THE FAMILY OF THE PERSON UNDER CRIMINAL INVESTIGATION

Author(s): Alexandru Boroi,Georgian Toma / Language(s): English / Issue: IX/2021

Keywords: judicial control; preventive measure; criminal investigation; defendant;

Judicial control is a procedural instrument that restricts the rights and freedoms of the defendant, in order to achieve the purpose of the criminal trial, by preventing the suspect from evading criminal prosecution and committing other crimes. Recently, the institution of judicial control has been subject to criticism from the doctrine, as well as from judicial practice, which have highlighted a number of contradictions in the legal texts. The recent decisions of the Constitutional Court and the High Court of Cassation and Justice are intended to fill in and correct these shortcomings, but these modifications sometimes prove to be achieved too late, as they have already produced legal consequences. Even if at first sight, the measure of judicial control does not seem to have a decisive influence on the family of the investigated, there may be situations in which, due to the very long period of ordering such a preventive measure, negative influences can be found.

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FAMILY PROTECTION IN ROMANIAN CRIMINAL LAW

Author(s): Constantin Sima / Language(s): English / Issue: IX/2021

Keywords: domestic violence; family violence; crimes against the family;

Criminal law has dedicated a chapter to crimes against family, which incriminate the most serious violations of social relations that defend family relations. In addition to this chapter, criminal law also provides a chapter entitled "Crimes committed against a family member", which criminalizes in art. 199 Criminal Code domestic violence and in art. 200 Killing and injuring the newborn by the mother. Separate from the criminal law, law no. 217/2003, on the prevention and combating of domestic violence, establishes an administrative framework for the prevention and combating of domestic violence. The author analyzes this framework in terms of crime dynamics and the effectiveness of combating crime.

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SOME CONSIDERATIONS REGARDING THE SURVIVOR'S PENSION

Author(s): Daniela Moțiu / Language(s): English / Issue: X/2022

Keywords: survivor's pension; deceased supporter; beneficiaries; conditions for granting;

The survivor's pension belongs the children and the surviving spouse, if the deceased supporter was retired or met the conditions for obtaining a pension. In this way, the fulfillment of the eligibility criteria by the beneficiaries of the right to a survivor's pension activates the obligation of the Romanian state, as a debtor, to pay a periodic benefit, in cash, in an amount subject to specific establishment rules according to a general calculation algorithm., pre-established by law. The determination of the beneficiaries of the survivor's pension and the conditions for granting the survivor's pension is the exclusive competence of the legislator, exercised by regulating the conditions for granting social insurance rights taking into account both the protected social values and the available financial resources.

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TRANSFER, BY WAY OF SUCCESSION, OF THE PATRIMONY OF AFFECTION AND GOODWILL

Author(s): Smaranda Angheni / Language(s): English / Issue: X/2022

Keywords: Patrimony; of affection; goodwill; transfer; inheritance; inheritors; creditors;

The present study aims to analyze some theoretical aspects with practical relevance of the issue of the transmission, by way of succession, of patrimony of affection but also of goodwill. The challenges of such research were generated by the quasi-total lack in the specialized doctrine of dealing with the legal effects of the succession devolution when in the patrimony of the „de cuius” there is a special affectation of some goods, and, implicitly, rights and obligations for the exercise of commercial, liberal, handcrafting activities etc., in other words, an individual professional patrimony constituted on the basis of Article 33 of the Civil Code. Moreover, the successive transfer of goodwill presents a real intensity from the perspective of the intangible elements that make it up, respectively: the company, the emblem, the good custom, the clientele etc. In our opinion, from a notional point of view, patrimony of affection is not confused with goodwill even if in their structure there may be the same tangible elements (for example, the place where it operates). Patrimony of affection contains both rights and obligations as well as assets, while in the goodwill are usually present only assets, whether tangible or intangible.

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CRIMINAL OFFENCES OF FORGERY COMMITTED IN THE NOTARIAL SUCCESSION PROCEDURE. CASE STUDY

Author(s): Bogdan Mihai Dumitru / Language(s): English / Issue: X/2022

Keywords: misrepresentation; forgery; criminal offences in the notarial succession procedure; false civil actions;

With this study the author aims to present a classic case on criminal offences of forgery committed in the notarial succession procedure, case, which, however, has some notable features. The study will include, in addition to the case itself, the incidental legal texts as well as the author's assessments on how to solve the case.

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DEATH OF THE DEBTOR – ASPECTS OF MATERIAL LAW IN THE ENFORCEMENT PROCEDURE

Author(s): Emanuel Căliman-Habet,Maria-Suzana Căliman-Habet / Language(s): English / Issue: X/2022

Keywords: Heirs; enforcement against successors; successor acceptor; estate of the deceased; creditor; debtor; estate;

This study aims to highlight the impact of the substantive legal rules that must be observed in enforcement proceedings initiated or continued after the death of the debtor. The theoretical and practical difficulties generated by the procedural-civil norms in the matter of the forced execution of the obligations after the death of the debtor have often overshadowed the imperative substantially civil norms that regulate the way of covering the succession liability. At the time of the debtor's death, the legal link between him and the creditor passes over his successors, and this link is suitable to be released by payment made voluntarily or by way of enforcement.

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THE SURVIVING SPOUSE, THE TRUE PRIVILEGED LEGAL HEIR?

Author(s): Carmen Dima / Language(s): English / Issue: X/2022

Keywords: succession; surviving spouse; precipitous; succession reserve; special right of abode; furniture and household objects; lex successionis;

From the repudiated heir, to the „favorite” of legal devolution. This is briefly the evolution of the rights of the surviving spouse starting from the Civil Code 1864 and reaching the current Romanian Civil Code (NCC). By introducing, together with the right to collect a share of the legal inheritance in competition with any of the four classes of legal heirs or even the entire inheritance, if they do not want or cannot inherit, a special right of inheritance having as subject furniture and household objects assigned to the common use (only when competing with classes II-IV of legal heirs), as well as a special right of habitation over a building in the estate, right of the surviving spouse who does not own another real right of his own on a house corresponding to his needs, as well as by taking over in our legal system the regulation of the precipitous clause, the surviving spouse acquires a status we could say „privileged” compared to the rest of the legal heirs. French law also provides, in addition to the general right of inheritance in competition with the other classes of heirs, special rights of habitation over the building in which he lived, for use on the furniture of the house, rights that outline a privileged status of the surviving spouse as legal heir. The analysis will be made concretely for each case, in order to see if in the successions with foreign element it is opportune to choose to make the choice of the national law as lex successionis, rather than to let the succession devolution operate according to the law of the last habitual residence.

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COULD IT BE REACHED THE UTOPIA OF EVERLASTING YOUTH, THROUGHOUT LEGAL AND CONVENTIONAL REPRESENTATION ABILITIES?

Author(s): Manuela Tăbăraş / Language(s): English / Issue: X/2022

Keywords: old person; legal capacity; Law no. 17/2000; trusteeship; representation;

Briefing, advising, assistance or representation of old persons represents a social protection requirement, but also it represents a professional deed in a process met by an old person- such events are sometimes bound to his or her right to have access to services offered by Law no. 17/2000 regarding social assistance of old people and it goes further to his or her counseling and oversight, both to special but non-exclusive protection measure which cand alternatively be used in other institutions such as representation of old persons with legal capacity that is using the mandate institution regulated by the Civil Code or representation by a lawyer through the legal assistance agreement concluded based upon law 51 or trusteeship institution that brings no damage to the represented person’s capacity, keeping in mind that all these protection measures do not replace or not prove the fulfilment of substantive or procedural conditions for the valid conclusion of the legal relationship – these items remain to be checked according to the Civil Code for any and each legal document regardless of its parties: old or young person.

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