Relația dintre răspunderea civilă delictuală și drepturile subiective nepatrimoniale
The relationship between tort civil liability and subjective non-patrimonial rights

Summary/Abstract: An attack on a moral right must attain a certain level of seriousness in order to attract the application of a sanction. When the exercise of a moral right, freedom of expression especially, interfere with the exercise of some other moral rights, in order to determine if the right was exercised with intention to harm or excessive and unreasonable, a fair balance exercise between two values which may come into conflict must be carried out under the proportionality test: if there is a public or private interest to justify the attain to the moral right of another person. In these cases, harmful events can occur even without author guilt. The application of national provisions which protects specific moral rights should not be used solely to determine whether or not there is a violation of the rights of personality, to determine whether or not the conditions of general tort law are fulfilled. The new national provisions can be useful to determine the proportionality of the sanction, and even for establishing non-material remedies when the specific conditions of general tort law are not fulfilled. There is a relationship of complementarity, maybe even subsidiarity between general tort law and the specific remedies of civil moral rights stipulated in the Civil Code. Conceptualizing moral rights regime by enactment of statutory moral rights as „civil subjective rights” with specific remedies aims to achieve a better moral rights protection. Essentially general tort law does not deny specific protection concided by personality moral rights.

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