Romanian Justice Reform under CVM’s rule. Innovative vision of the New Civil Code in matters of property rights

Author(s): Irina Olivia Popescu / Language(s): English Issue: 29/2011

The New Romanian Civil Code, in force as of the 1st of October 2011, has new provisions related to how a person can obtain the property of goods, either immobile or mobile. The acquisitive prescription is described in articles 930 – 940 of the NCC, using old legal provisions of the Decree-law no. 115/1938. The main point of interest in this new ruling is the accent on using the land books for most of all legal operations concerning land in particular and immobile goods in general. Seen as the most useful way for a possessor of goods to become proprietor of goods, the acquisitive prescription poses a great interest also for generating property rights also for mobile goods, since this situation had poor details in the old civil code.

The Notion of Partible Inheritance and its Judicial Characters

Author(s): Adela PĂTRAŞCU / Language(s): English Issue: 28/2010

Partible inheritance is that part of the inheritance which, according to the law, corresponds to partible heirs and of which he who bequeaths cannot dispose of through inter vivos generosities (donations) or through clauses (inheritance or disinheritance). The institution of partible inheritance was established on moral, but also social grounds, ensuring certain equilibrium among partible heirs. Partible inheritance has an imperative and collective character. At the same time, the right to partible inheritance of partible heirs has an individual character and they have the right to receive the goods that are part of the deceased’s patrimony in nature.

Noţiunea, caracterele sezinei şi categoriile de moştenitori sezinari

Author(s): Adela PĂTRAŞCU / Language(s): Romanian Issue: 27/2010

Legal heirs who enjoy the benefit of the seisin are descendants and ascendants of the deceased, regardless the nature of their relation to the deceased. The new Civil Code provided that the heirs enjoying the seisin are the surviving spouse, privileged descendants and ascendants, and in their absence, the privileged collaterals. It is noted that the New Civil Code grants seisin particularly to the forced heirs, and in their absence, the seisin is granted to the privileged collaterals, as the deceased`s closest persons. Next we presented the legal characteristics of the seisin and its effects. The main effects relate both to the real possession by the heirs enjoying the seisin for all the goods of the succession, and the exercise of rights and actions of the property acquired by inheritance.

Modalitatea de exteriorizare a voinţei de a produce efecte juridice

Author(s): Irina Olivia Popescu / Language(s): Romanian Issue: 26/2010

The form represents the general, extrinsic, essential or unessential condition of the legal act, which refers to the modality of exteriorization of the will, intended to produce legal effects. The notion of form of a legal act, approaches three different types: a) the form required for a valid legal act (the ad validitatem form or ad solemnitatem); b) the form required in order to prove the legal operation (ad probationem form); c) the form required for the legal act enforceability against third parties.The form of the legal act is governed by the consent principle which represents an application of the general principle of freedom of civil legal acts. The consent principle represents the rule of law that underlines the fact that the will is not only necessary but also sufficient in oder to conclude a valid legal act.

Reforming the Trials’ Procedure in the New Civil Procedure Code

Author(s): Daniel Ghiţă / Language(s): English Issue: 44/2014

During the evolution of Romanian civil procedure legislation, and especially during the one of the civil Procedure’s Code, we are able to distinguish some changes of substance once every post-December decade. This fact might not be a hazard, we think. Yet, this status of things might mean “normality”, for a matter which is especially sensitive in regard to successive modifications, the impact of which is directly suffered by the recipient of the modified norm and which almost always means a new reconfiguring of the trials’ circuit. The modifications made in 1993, 2000 and 2010 were important moments in modernizing our civil procedure and in going through an undoubtedly necessary, but also reasonably laid in time reforming process, so that its practical impact could be monitored and evaluated. The project of the new Civil Procedure Code is proposing solutions which are obeying to the objectives aimed to by all the previous interventions of the legislator, which were not always successful. They especially focused on a reasonable shortening of trials’ duration and on creating some suitable procedure mechanisms able to avoid, for a same matter, the appearance of practice lacking unity. The dispositions of the New Civil Procedure Code in matters of procedure do generally respond to the necessity of solving the trial with celerity and, as the newest request, predictability to be ensured for judicial procedure.

Recent Developments of the Lithuanian and Romanian “Testate Successions” (Terminological Peculiarities)

Author(s): Irina Gvelesiani / Language(s): English Issue: 42/2014

The growing tendency of globalization has stipulated the resemblance of juridical norms of different countries. Among them are Lithuania and Romania – two magnificent Post-Soviet countries of the world. The given paper is dedicated to the problems associated with the transference of a deceased person’s property. It describes a legal mechanism of practical realization of the right of inheritance and nominates it as one of the major rights of an individual. The rules of inheritance are usually applied after the death of a person. They comprise the norms of “testate” and “intestate” successions, which are greatly influenced by socio-cultural, socio-economic and even, political factors. Nowadays, the greatest emphasis is put on the development of the “Inheritance Laws” of some Post-Soviet countries. The change of political system from socialism to capitalism has stipulated the emergence of new juridical norms. The “renovated” legal regulations, newly-established terminological units, their resemblance and difference – this is the major theme of our paper and one of the most prominent problems of today’s juridical world. Romania’s and Lithuania’s inheritance laws after the fall of communism – this is the major challenge and the focus of our work. The given research is based on the theoretical data. Moreover, the carried out comparative analysis can be very useful for the lawyers and legal practitioners of different countries of the permanently changing modern world.

Deficiențe tehnice și juridice ale înregistrării de stat a bunurilor imobile proprietate municipală și altor înscrieri în Republica Moldova

Author(s): Radu Popa / Language(s): Romanian Issue: 1-bis/2018

The scientific work is intended for theoreticians and practitioners concerned with the cadastral registration process of the municipal non-residentialpremises. The major goal was to identify the shortcomings in this process and topropose solutions to overcome them. The methods used in the work werecomparative, deductive, analysis. This scientific writing is devoted to a current andimportant issue concerning the management of municipal public patrimony. Westarted from the basic definitions of the paper. According to art. 4 of the Real EstateCadastre Law no. 1543-XIII of 25.09.1998, the objects of registration areimmovable property, property rights and other real rights over them. The category ofimmovable property registered in the real estate register includes: a) land; b) solidbuildings and buildings; c) apartments and other isolated rooms. According to art.288 par. (2) of the Civil Code, in the category of immovable property make the land,the subsoil, the separate aquatic objects, the rooted plantations, the buildings, theconstructions and any other solid earthworks, as well as everything that naturally orartificially, is durably incorporated therein, that is, the goods whose movement is notpossible without causing considerable damage to their destination. By law, othergoods may be reported in the property category.

The Reference of the Romanian Civil Law to the Dispositions of French Civil Code Regarding Some Effects of the Mandate Contract

Author(s): Cristina Popa Nistorescu / Language(s): English Issue: 06+07/2005

Le mandante est chargé directement avec les effets des actes conclus par le mandataire avec les tiers dans la mesure où celui - ci a actionné dans la limite des pouvoirs qui lui ont été donnés.

Legal changes on the institution of limitation. Impact on civil trials

Author(s): Irina-Olivia Călinescu / Language(s): English Issue: 37+38/2013

The institution of limitation has a key impact on civil trials. Because of its high importance and major influence on the stability of the civil circuit, the institution is well know and regulated from the ancient times. Nowadays the limitation benefits of a wide regulation, namely articles 2500-2544 of the New Civil Code. As mentioned in the doctrine the passing of time is a reality regulated by law and has important consequences on the subjective civil rights. As the effects of the limitation can consist either of the extinction of a civil subjective right either of the acquisition of a civil right the present paper will focus only on the limitation as a civil sanction which affects the material right to an action not exerted within the period established by law.

Reforma judiciară între exigenţele europene şi realităţile româneşti: ocupaţiunea ca mod de dobândire a proprietăţii în reglementarea Noului Cod Civil (2011)

Author(s): Irina-Olivia Călinescu / Language(s): Romanian Issue: 30+31/2011

The mechanism of adapting the Romanian judicial system to the requirements of modern society has, among its components, the implementation of a new Civil Code, in order to provide answers to each citizen’s everyday problems. One of the most common issues found in Romanian judicial practice is represented by property litigation, with all its derivatives. In what follows, we will see one of the original methods of acquiring ownership of movable property, the occupation, in the contemporary regulation of the Romanian New Civil Code.

Binding Effect of Provisional Measures as an Inherent Judicial Power: an Example of Cross-Fertilization

Author(s): Mihajlo A. Vučić / Language(s): English Issue: 4/2018

The inherent powers of international courts and tribunals are a necessary consequence of properly exercising judicial functions in the context of a legal system lacking a central legislative power, setting the limits of these functions through firm legal rules. The power to grant binding provisional measures is the most extreme example of international judiciary reaching for inherent powers, since this process disregards ordinary textual interpretations of judicial statutes. At the same time, this process is an example of cross-fertilization between different judicial regimes in international law, where tribunals for the law of the sea influence general international courts, which in turn influence investment and human rights tribunals. The limits to these inherent powers must provide that state consent, as the central tenet of international legal order, remains unaffected. The fact that this practice has not met with resistance from states indicates that international courts and tribunals have assumed this inherent power with propriety and logic.

Glosa do wyroku Sądu Najwyższego Stanow Zjednoczonych z dnia 4 czerwca 2018 r. w sprawie Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

Author(s): Grzegorz Maroń / Language(s): Polish Issue: 6/2018

The discussed judgment refers to the problem of law prohibiting the discrimination in access to goods and services. Colorado Rights Commission, and then the Colorado Court of Appeal decided that the bakery owner Jack Phillips discriminated homosexual persons with his refusal to provide a wedding cake for the prospective spouses of the same sex on the basis of his religious beliefs. The U.S. Supreme Court annulled the Commission’s decision and the contested judgment of the state court. In the opinion of the federal Supreme Court, the Commission, in the course of the proceedings before it, did not employ neutrality and impartiality and displayed hostility and bias against the religious views of the bakery’s owner. The discussed judgment shall be approved as an individual act of applying the law. Unfortunately, the Supreme Court did not decide on the circumstances allowing an entrepreneur to evade the antidiscrimination provisions on the basis of his conscientious objection.

Natura juridică şi efectele renunţării la compensaţia legală

Author(s): Marieta Avram,Cristian David Samoilă / Language(s): Romanian Issue: 04/2018

A way of extinguishing obligations, the legal compensation was rightly also considered as a creditor’s guarantee against the debtor’s risk of insolvency. While maintaining this function of compensation, the new Civil Code also contains the previously inexistent provision regarding the possibility for any creditor-debtor to waive compensation. The issue raised in practice is whether the waiving of compensation could change the paradigm in which legal compensation has been understood and applied for almost 150 years. Hence, multiple questions. What is the object of the waiver and what are the effects of waiving compensation, as an unilateral act? Is it fair that the waiver of compensation by a creditor-debtor should extinguishes the other creditor’s-debtor’s right to claim compensation? The analysis of the new regulation of the waiver of compensation, in terms of the legal logic and equity, leads to the conclusion that the waiver of compensation by only one creditor-debtor can only extinguish their right to claim compensation, and not the legal effect itself of the legal compensation on the mutual claims.

Aksjologia postępowania dyscyplinarnego przeciwko sędziom i asesorom sądów powszechnych na tle niektórych regulacji działu II rozdział 3 ustawy z 27 lipca 2001 r. – prawo o sądach powszechnych

Author(s): Katarzyna Dudka / Language(s): Polish Issue: 4/2018

Amendments to the rules on disciplinary liability and disciplinary proceedings against judges and assistant judges [Polish: asesor sądowy] of common courts introduced in 2017, in conjunction with the recent practice of disciplinary proceedings against judges defending the rule of law, which has raised serious concerns, call for the analysis of the legal provisions regulating disciplinary proceedings against judges and assistant judges, in particular in the axiological sphere. This is because a necessity arises from this particular area to appropriately develop the provisions shaping the model of disciplinary responsibility and the structure of disciplinary proceedings, so that they ensure the achievement of the objectives of aforementioned responsibility. The author criticizes the formation of the composition of the disciplinary court adjudicating in cases of judges and assistant judges, including in particular the participation of lay judges in these proceedings. In the author’s opinion, this is contrary to the essence of disciplinary liability, which means that the perpetrator of a disciplinary tort is subject to the judgment of members of its own professional corporation, which results from the need to protect its self-government and autonomy.

Czy potrzebne jest nam postępowanie odrębne w sprawach gospodarczych? (uwagi na tle projektu ustawy o zmianie ustawy – Kodeks postępowania cywilnego z 13 września 2018 r.)

Author(s): Andrzej Jakubecki / Language(s): Polish Issue: 4/2018

The Draft Act amending the Act – the Code of Civil Procedure and certain other acts, developed at the Ministry of Justice, sets the objective of improving civil proceedings and the situation of a citizen appearing before a court. Among many proposed solutions, the Draft Act provides the reinstatement of provisions within the Code regarding separate proceedings in economic cases. This is the idea that does not deserve approval. Many of the detailed solutions proposed in the Draft Act should also be critically assessed, including in particular the proposal to reinstate the provisions on preclusion with regard to the collection of procedural material (facts and evidence). Some of the proposed separations of the economic procedure could be easily transferred to the general provisions on proceedings, providing them with a general value in procedural proceedings. Some solutions may be abandoned altogether with no regrets. The re-introduction of separate proceedings in economic cases to the Polish procedural law system is not based on solid theoretical grounds, as neither the nature of the economic case nor the status of the parties (entrepreneurs) justifies the existence of separate rules of the procedure.

Zakaz reformationis in peius w sprawach o zasiedzenie

Author(s): Marek Szymanowski / Language(s): Polish Issue: 3/2018

The article undertakes an analysis of a controversial issue concerning the prohibition of reformatio in peius in cases of acquisitive prescription (usucaption). Acquisitive prescription matters are considered in non-litigious proceedings, hence the prohibition of reformatio in peius defined under article 384 of the Polish Civil Procedure Code applies therein only mutatis mutandis in accordance with Article 13(2) of the Civil Procedure Code. The article examines the existing case-law and the legal doctrine regarding the aforementioned prohibition and offers strong backing for its application. The supporting arguments cited include: lack of public interest in adjudicating such cases, a clear dispute between the parties to the proceedings, inadmissibility of the ex officio institution of proceedings for acquisitive prescription (without any motion by a party), and binding the court by the claim set out in the motion as to who may benefit from usucaption. The adversarial character of the proceedings for acquisitive prescription makes such matters similar in nature to litigious cases. Thus, their placing in the non-litigious category does not emanate from being non-adversarial. In fact, the opposite is very often true. Adjudication in non-litigious proceedings is the result of a decision made by the lawmakers, who have determined it appropriate despite the fact that adjudicating acquisitive prescription cases in litigious proceedings would be equally justified.

Dopuszczalność stosowania klauzul generalnych zawartych w art. 5 k.c. do terminów zawitych

Author(s): Maksymilian Ślusarczyk / Language(s): Polish Issue: 3/2018

A clear distinction between final (preclusive) time limits and prescription has been under consideration by the legal doctrine and judiciary for many years. Similarly, the applicability of Article 5 of the Civil Code to final time limits is not a clear-cut issue, and arouses much controversy. Both case-law and jurisprudence contain two conflicting views – one allowing for such an application and another expressly opposing it. Approval for the applicability of Article 5 of the Civil Code to preclusion generates further doubt about using the analogy of the provision’s application to prescription. The subject matter addressed in the article is of major practical significance because it concerns issues that could determine whether a claim may be pursued effectively. The abovementioned dispute appears to be rooted in the broader problem of the relation between ius and lex widely discussed in the doctrine and case-law. The article cites key statements by representatives of jurisprudence and judicature on the matter. The author presents his own position, as well.

Upadłość osoby fizycznej nieprowadzącej działalności gospodarczej oraz prowadzącej działalność gospodarczą w ujęciu komparatystycznym

Author(s): Robert Kalfas / Language(s): Polish Issue: 3/2018

This study presents a concise and practical summary of bankruptcy proceedings for consumers and entrepreneurs who are natural persons. The article addresses and compares key issues connected with conducting such proceedings – from their very purpose to conclusion, including discontinuation. At each stage, the main differences and similarities are indicated for a full illustration of both types of insolvency proceedings.

NOVELTY ASPECTS OF NULLITY IN THE LIGHT OF THE CURRENT CIVIL CODE

Author(s): Andra-Ioana Rosca / Language(s): English Issue: 1/2019

NULLITY IS ONE OF THE OLDEST IMPOSITION OF CIVIL PENALTIES THAT EVOLVED OVER TIME AND UNDERWENT A SERIES OF TRANSFORMATIONS. CLOSELY LINKED TO THE CIVIL LEGAL ACT; IN A FIRST STAGE NULLITY WAS REGARDED AS AN ORGANIC STATE THEREOF; AND COULD ONLY BE TOTAL AND IRREVERSIBLE. SUBSEQUENTLY; NULLITY WAS NOT DESIGNED ANYMORE AS PART OF THE LEGAL ACT; BUT/AND INSTEAD IT WAS SEEN AS A PENALTY THAT OCCURS IF THE LAW HAS BEEN VIOLATED; BY REMOVING THE CONTRARY EFFECTS. BOTH THE OLD CIVIL CODE AND THE CURRENT CIVIL CODE REFLECT THIS CONCEPT. BELOW; I SHALL PRESENT THE INNOVATIONS OF THE CURRENT CIVIL CODE WITH RESPECT TO THE OLD CIVIL CODE.

Decizia nr. 17 din 17 septembrie 2018 asupra recursului în interesul legii privind necompetenţa materială procesuală a secţiei/completului specializat

Author(s): Author Not Specified / Language(s): Romanian Issue: 4/2018