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SPECIAL LEGAL RULES IN THE MATTER OF SUCCESSION. DOCTRINAL CLARIFICATIONS ON DISCUSSIONS RELATED TO THE SUCCESSION OF MONKS IN THE ROMANIAN ORTHODOX CHURCH

Author(s): Ionuț Viorel Bordeiași / Language(s): English / Issue: X/2022

Keywords: succession; monks; church; law; goods;

The regulations in force in the succession matter belong to the civil legislation, which also represents the general legislative framework applicable to all successions. But, as every rule has exceptions, there are also in this matter a series of special regulations, specifically those regarding the succession of Orthodox monks - a more delicate situation, regulated by the Statute for the Organization and Operation of the Romanian Orthodox Church, as an exception to to the general rule, based on solid reasons, which we will show in what follows. Even if there have been criticisms of these regulations, based on the misinterpretation of these norms or on the ignorance of the reasons that led to their enactment, through this study we aim to present these aspects in the light of the true intentions and to definitively clarify these aspects.

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PARTICULAR OR DEROGATORY ASPECTS REGARDING THE INHERITANCE JUDICIAL PARTITION PROCEDURE

Author(s): Gabriela Răducan / Language(s): English / Issue: X/2022

Keywords: judicial partition; inheritance partition; co-ownership; court procedure; preliminary ruling of admission in principle; derogations from common law; partition decision;

This study aims to review the rules and particularities of the procedure for judicial partition of a inheritance, highlighting them in a step-by-step analysis of the procedure for judicial partition in general, which is also applicable to the division of jointly owned property by shares or in partition of common indivisible ownership (the procedure being, in principle, the same). The most significant feature of judicial partition of a succession is the need to complete the preliminary procedure prior to the court being seised, a procedure which does not apply to the other categories of partition, and also in terms of absolute territorial jurisdiction, since the claim falls within the exclusive competence of the court of the last domicile of either of the deceased, unlike the other forms of partition, which have other rules for determining jurisdiction. There may also be certain aspects specific to the sharing of inheritance, resulting from certain requirements of the content of the preliminary ruling of admission in principle or other procedural or substantial elements which may be applicable, as the case may be. At the same time, the study focuses on identifying and explaining the exceptions to the judicial partition procedure by reference to the ordinary contentious procedure.

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THE SURVIVOR'S SPECIAL AVAILABLE QUOTA. DOCTRINAL AND JUDICIAL PRACTICE SOLUTIONS

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

Keywords: surviving spouse; legal reserve; liberalities; inheritance transfer;

Without constituting an element of novelty, the institution of the available quota of the surviving spouse establishes a special protection of the descendants from a previous marriage of the deceased against the excessive, exaggerated liberalities that their father could make to the spouse from a marriage. subsequent. However, what brings the new, current regulation of the Civil Code, is the way of calculating this special quota, the practice and the doctrine not being unitary in this sense.

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THEORETICAL AND PRACTICAL ASPECTS OF THE TRANSFER OF PROCEDURAL STATUS IN THE EVENT OF THE DEATH OF THE PARTY

Author(s): Mădălina Dinu / Language(s): English / Issue: X/2022

Keywords: inheritance; death; legal standing; transmission of legal standing; divorce;

The death of the party during the civil proceedings is of interest both from the point of view of substantive and procedural law. What are the legal consequences of the death of the party in the process? Under what conditions will the legal proceedings continue and against whom? What happens when the party has no heirs or, even if he does, they do not accept the inheritance? What conditions must be met in order to transfer legal standing? Who is to bear the costs if the plaintiff dies before the claim is brought and the defendant learns of it after the statement of claim has been lodged and a lawyer has been engaged? These are just some of the questions we will try to answer in the course of this study.

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PATRIMONY TRANSMISSION – THEORETICAL AND PRACTICAL PROBLEMS

Author(s): Petruţa-Elena Ispas / Language(s): English / Issue: X/2022

Keywords: transmission; patrimony; successors;

The transmission of the patrimony in its entirety is possible only at the death or, as the case may be, at the termination of the legal person. Through this paper, we will try to analyze the conditions under which the patrimony is transmitted to the heirs of the deceased and what are the rights and obligations subject to transmission. We will also analyze some court decisions that established the conditions under which the transfer of assets operates to the deceased's successors, but also important issues regarding inheritance as a way of acquiring the right to patrimony.

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ENACTMENT OF THE EUROPEAN DIRECTIVE 2019/1023 IN ROMANIA. BENEFITS OF THE RESTRUCTURING AGREEMENT PROCEDURE

Author(s): Cristian Drăghici / Language(s): English / Issue: X/2022

Keywords: restructuring frameworks; insolvency; preventive concordat; ad-hoc mandat;

Since 2011, a series of measures have been adopted by European Union, with the initial purpose to harmonizing of the very specific aspects of substantial law of insolvency, including restructuring, but also regarding the company law. The enforcement of Regulation (EU) 2015/848 on insolvency proceedings aimed solving the conflicts of jurisdiction in cross-border insolvency proceedings and ensuring the recognition of insolvency decisions on the territory of the Union. However, the Regulation did not seek to harmonize the substantial law of insolvency in the Member States. Even though in some Member States, including our country, the Commission's Recommendation was received as a useful proposal to undertake insolvency reforms (adoption of Law 85/2014 regarding the insolvency and insolvency prevention procedures in Romania), it did not succeed in generating uniform changes in all Member States to facilitate the rescue of companies in financial difficulty and to enable entrepreneurs to benefit from a second chance. The Recommendation did not have the expected effects because its partial implementation, even at the level of countries where real reforms have been made regarding the insolvency law. In this context, this study aims at an analysis of insolvency prevention procedures in our country, reported to the Directive of the European Parliament and of the Council, on preventive restructuring frameworks.

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CURRENT ISSUES REGARDING THE INSTITUTION OF JUDICIAL SUCCESSIONAL INDIGNITY

Author(s): Ioan Morariu / Language(s): English / Issue: X/2022

Keywords: deception; legacy; undignity; judicial; successor; successively;

The successional indignity operates both in the case of legal and testamentary devolution, this being a novelty brought by the new civil code, in addition to the possibility of forgiving the unworthy successor, and produces effects only with regard to the perpetrator, not in relation to other persons called to inherit. Judicial indignity is one of the forms of successional indignity, along with legal indignity, constituting the legislative element of absolute novelty in this matter.

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ALTERNATIVE DISPUTE RESOLUTION. THEORETICAL AND PRACTICAL ASPECTS OF MEDIATION AGREEMENTS IN RELATION TO AN INHERITANCE

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

Keywords: inheritance and partition; mediation agreement;

In terms of inheritance, the alternative settlement of disputes, respectively mediation, is a procedure which may be used only with regard to the method of partition, after the inheritance has been debated and the quality of heirs of the parties, the bequest and the inheritance quotas have been established. The parties may resort to mediation either before going to court or during the settlement of the case pending before the court. In both situations, the provisions of Law 192/2006 on mediation and on the organization of the profession of mediator will apply. Through mediation, the parties may reach an agreement and may dispose of their rights in accordance with the law, respectively in terms of sharing the assets that they are entitled to by inheritance, sharing the expenses made by the heirs and how they may incur them, matters that concern the ownership right, possession, neighborhood relations, matters concerning the execution or non-execution or improper execution of certain contracts etc.

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THE RENOUNCERS SUCCESSIVE RIGHT OF CLAIMING THE PROPERTY ABUSIVELY TAKEN OVER BY THE STATE

Author(s): Adrian-Milutin Truichici,Luiza Neagu / Language(s): English / Issue: X/2022

Keywords: renunciation of succession; title of heir; reinstatement within the term of acceptance of the succession; reconstitution of the property rights;

The rule of indivisibility of the succession patrimony confers the same indivisible character to the succession option, this not being able to be conditioned by the quantitative aspect of the succession patrimony. The renunciation of the succession concerns both the assets existing in succession at the date of death and those that would eventually enter the respective succession, and by the effect of renunciation, the heir is considered never to have inherited, his succession vocation will be abolished retroactively.

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THE PLACE AND ROLE OF THE PRESUMPTION OF INNOCENCE IN THE ROMANIAN CRIMINAL PROCEDURE

Author(s): Constantin Sima / Language(s): English / Issue: X/2022

Keywords: presumption of innocence; ECHR; criminal procedure;

The presumption of innocence was first enshrined in the Declaration of the Rights of Man and of the Citizen of 1789, which, in art. 9 provided that „every man shall be presumed innocent until proved guilty”[1].

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INTRODUCTION IN THE CRIMINAL PROCESS OF THE CIVILY RESPONSIBLE PARTY

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

Keywords: criminal trial; civilly responsible party; introduction; person entitled to request the introduction of the civilly responsible party; decision of unconstitutionality; term of introduction;

According to art. 32, paragraph 2 of the CPC, the civilly responsible party is one of the parties to the criminal proceedings. The importance of its presence in the criminal process is obvious and highlighted in the doctrinal approaches that appeared in the legal space. The decisions of unconstitutionality incident to the institution created the possibility of thorough and, we can say, inexhaustible analyzes. In the content of the article I referred both to the proposals of lege ferenda that appeared in the content of some articles of the authors I mentioned, and to the Decision of unconstitutionality no. 257/2017, which refer to the moment until which the part can be introduced. civilly liable in criminal proceedings.

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SUCCESSION OF STATES IN RELATION TO THEIR RESPONSIBILITY FOR INTERNATIONALLY WRONGFUL ACTS

Author(s): Felicia Maxim,Elena Andrei / Language(s): English / Issue: X/2022

Keywords: succession of states; responsibility of states; internationally wrongful act; predecessor state; successor state;

The subject under research brings to the center of our attention two important institutions of public international law, namely the succession of states and their responsibility for international illegal acts. From the first years of the activity of the International Law Commission (ILC) of the United Nations (UN), the two themes were present on its working table. Part of the problems analyzed, from a theoretical and practical point of view, were codified, but another part remained in the attention of ILC for future analyses. As of 2017, succession in relation to state responsibility is on the working table of the UN International Law Commission.

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JUDICIAL INDIGNITY IN MATTERS OF SUCCESSION IN THE CASE OF THE CRIME OF BLACKMAIL

Author(s): Adina Maria Alexandra Popescu,Bogdan Mihai Dumitru / Language(s): English / Issue: X/2022

Keywords: inheritance; indignity; crime; successor; will;

The physical and mental freedom of a person is an important value in contemporary society and the real expression of the development and promotion of human rights. Freedom of thought and action means the ability to act according to one's own conscience in relation to social norms, and this requires protection against any illegal actions. The inheritance is characterized by fair relations of appreciation, consideration and honour between those who participate in such civil relations. Succession indignity is an important component of the law of succession which aims to remove from the succession the heir found guilty of committing certain illegal acts. These facts considered by law to be serious can be assessed both in terms of civil circumstances, but also in terms of elements that define crimes. Among them, blackmail, which is essentially an act of human coercion, is a crime specific to legal relations born of social relations which have as their object the right to inheritance and the individual freedom to decide on situations of death. Indignity operates both in the case of legal inheritance and in the case of testamentary inheritance when the „unworthy” person was gratified by will by the deceased.

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COMPARATIVE ASPECTS BETWEEN THE CERTIFICATE OF SUCCESSION IN THE ROMANIAN LEGISLATION AND THE EUROPEAN CERTIFICATE OF SUCCESSION

Author(s): Tania Cătălina Coadă / Language(s): English / Issue: X/2022

Keywords: Civil Code; Romania; inheritance; Certificate of Succession in Romanian Law; European Certificate of Succession;

The Certificate of Succession shall provide proof of the capacity of heir and of the right of ownership of the universal heirs and of the universal right of ownership over the share due to each of them, namely that of the legatee in a particular capacity over the single assets. A succession with a foreign element in the European Union may be resolved in an effective manner if the heirs, legatees, executors of the will or administrators of the estate prove their status and/or powers in another Member State, for example in a Member State in which the succession property is situated. In the doctrine it was mentioned that it is possible that the foreign element, being an essential condition, should not be present from the date of the initiation of the succession procedure, but should appear later, which means that a European certificate of inheritance can be issued in a succession file in which a certificate of national inheritance has already been issued. This communication aims to highlight the comparative aspects between the two certificates regarding: competence, determination of the applicable law, duration and their purpose.

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THE UNITED KINGDOM'S WITHDRAWAL FROM THE EUROPEAN UNION: SUCCESSION ISSUES

Author(s): Gabriela-Alexandra Oanţă / Language(s): English / Issue: X/2022

Keywords: European Union; United Kingdom; succession; international organizations; international treatie;

Following the referendum held in the United Kingdom (UK) on 23 June 2016 and once Article 50 TEU had been activated, negotiations on the withdrawal of this European State from the European Union began on 19 June 2017. After many months of negotiation, on 15 November 2018, the draft text of the future withdrawal agreement of the UK from the EU was known and was officially formalised at the extraordinary EU summit held on 25 November 2018. The same day, the EU adopted its draft political declaration on the future relations between the EU and the UK. As of 1 February 2020, the UK is no longer an EU Member State. This has raised numerous challenges, also from the point of view of succession to membership in international organizations other than the EU, as well as succession to international treaties. These issues will be the main focus of this article.

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THE VOTUM CAPTANDAE MORTIS AND ITS RELEVANCE IN ROMAN LAW

Author(s): Maria Federica Merotto / Language(s): English / Issue: X/2022

Keywords: Agreements as to Succession in Roman Law; Immorality; Votum Corvinum; Votum Captandae Mortis; Contra Bonos Mores; Pacta de Hereditate Viventis;

The paper focuses primarily on the votum captandae mortis: that is to say the despicable hope of death of the de cuius which – according to the traditional thinking – Roman jurists believed would have been induced by the agreements as to succession. After making a mention of the problematic profiles of this ratio today, the research dwells on the few ancient sources that associate agreements as to succession with a violation of the boni mores, trying to show that the declarations of invalidity of the agreements de hereditate viventis didn’t steam from the mere ‘votum corvinum’.

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PROPERTY PROTECTION IN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS: SPECIAL ANALYSIS OF VULNERABLE GROUPS

Author(s): Nicolae Voiculescu,Beatrice Berna / Language(s): English / Issue: X/2022

Keywords: property protection; women's rights; children's rights; rights of persons with disabilities; inheritance law;

The theory and practice of human rights recognize the right to property as the main premise that ensures the fulfillment of civil and political, economic, social and cultural attributes and also the fulfillment of solidarity rights, acting in the form of a legal link in favor of protecting all vulnerable categories. Unlike other human rights that are intrinsic to the individual, being claimed by the human being in order to develop human personality (we consider in this sense, human dignity, the right to life) the protection of property acts independently to give concreteness to all conditions necessary for individual manifestation. Thus, the protection of property is characterized by inherent but not in a stricto sensu manner in regard to the essence of the human being but in regard to the necessary circumstances required for the human being in order to complete its own existence. In this sense, the interpretations attached to Article 1 of Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms require the protection of property not in the sense of effectively guaranteeing the acquisition of property that already exists but in the sense of effectively protecting property in the event that its existence or existential vocation is configured according to legal requirements. [1] Another aspect that integrates the argumentation provided by Article 1 of Protocol 1 to the European Convention is related to ensuring a fair balance between guaranteeing the right to property and State intervention in this matter. The state is presented under a double coordination: on the one hand, it is obliged not to carry out acts of interference in the sphere of the exercise of the right of property, on the other hand, the State is obliged to ensure substantial measures of protection of the right of property-even more so such measures are necessary to protect vulnerable groups. [2] Succession analysis in the context of property protection guaranteed by Article 1, Protocol 1 to the European Convention is a complex exercise involving: on one hand, content issues relating to the rights and freedoms provided for in the Convention which are complementary to the issue of successions (protection of privacy and family life, right to marriage, prohibition of discrimination) and on the other hand, social circumstances that may have a concrete effect on the way in which issues related to successions are resolved (we refer in particular to some criteria such as: religion, culture, sex, disability etc.). Taking into account as starting point the theoretical model of placing the individual at the center of scientific research in the field of succession, this paper aims to highlight, through the jurisprudence of the European Court of Human Rights developed in the matter, how individual rights and freedoms are reflected in resolving cases relating to vulnerable persons pursuant to Article 1, Protocol 1 to the European Convention.

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SEA/RIVER SHIP AS PROPERTY INCLUDED IN THE ESTATE

Author(s): Olimpiu Crauciuc,Tania Cătălina Coadă / Language(s): English / Issue: X/2022

Keywords: ship; nationality; registration; harbour master; naval authority; shipbuilding contract; pledge; mortgage; succession;

Although considered movable property, the ship at the time of construction of the record of this contract, the acquisition of charges on its behalf both at that time and subsequently under the conditions of voyage and commercial operation has the characteristics and is treated as immovable property. The communication shall list the situations of regulated practice as regards the legal status of the ship in relation to this position. In this capacity of movable property but under the conditions of existence and real estate treatment, we concluded the possibility of its belonging to the estate.

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THE TRANSPOSITION OF DIRECTIVE (EU) 2019/1023. THE PROCEDURE OF RESTRUCTURING AGREEMENTS AND THE PROCEDURE CONCERNING PREVENTIVE ARRANGEMENTS WITH CREDITORS

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

Keywords: Directive (EU) 2019/1023; financial difficulty; early warning; preventive restructuring procedures; restructuring agreement procedure; preventive arrangement with creditors; insolvency;

Directive (EU) on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency)[1], and the transposition bill[2], aim to facilitate access to restructuring measures at the first signs of difficulty, by adopting legislative measures that allow honest entrepreneurs in a state of insolvency or overindebted entrepreneurs to obtain a second chance, by regulating effective preventive restructuring, insolvency and debt discharge procedures. The directive's first transposition deadline was July 17, 2021, but the member states had the possibility to extend this deadline by at most one year, a possibility also used by Romania. Directive (EU) 2019/1023 does not impose a single restructuring procedure on the member states, and as a result Romania has chosen to regulate two preventive restructuring procedures: the restructuring agreement procedure and the preventive arrangement with creditors procedure.

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IMPLICATIONS OF INSERTING THE CLAUSE TO CONTINUE THE ACTIVITY WITH THE HEIRS OF THE DECEASED ASSOCIATE IN THE ARTICLES OF ASSOCIATION OF THE LIMITED LIABILITY COMPANY

Author(s): Mihaela-Georgiana Iliescu / Language(s): English / Issue: X/2022

Keywords: succession; clause to continue the activity with the heirs; limited liability company; intuitu personae character; shares; affectio societatis;

The present study aims to bring to the fore the consequences of inserting in the articles of association of the limited liability company the clause regarding the possibility of continuing the activity with the heirs of the deceased associate or, on the contrary, the one concerning the explicit or implicit prohibition of the possibility of continuing the activity with the heirs, in the context of the obscurity of the text of the law that regulates the transmission of the shares by succession. As the unclear meaning of these legal provisions has generated divergent interpretations both in doctrine and in practice, the consequences of inserting the clause which is the subject of the research, are of particular importance, especially in practice, these consequences being presented and analyzed in the study.

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