CONSIDERAŢII PRIVIND INSTITUŢIA TUTELEI (II).
CONSILIUL DE FAMILIE – DE LA MĂREŢIE LA DECĂDERE
CONSIDERATION REGARDING THE INSTITUTION OF GUARDIANSHIP (II).
FAMILY COUNCIL. FROM GREATNESS TO DECAY
Vlad Ionuţ DOMOCOŞ
The study analyzes the changes in the legislation of the family council institution in relation to the socio-legal evolution of the notion of family, indicating, where appropriate, the inaccuracies of the ad litteram application of the legal norm to the factual reality, finally responding to a simple questions: “was the Romanian family in step with the evolution of law?”.
Keywords: family council, guardianship, historical reality, deliberative body, advisory body.
REGIMUL JURIDIC AL TERMENULUI DE REFLECŢIE DIN CADRUL PROCEDURII DIVORŢULUI PE CALE NOTARIALĂ
LEGAL REGIME OF THE TERM OF REFLECTION WITHIN THE DIVORCE PROCEDURE BY A NOTARIZED DEED
One of the arguments underpinning the easy nature of the divorce procedure by a notarized deed, shall be represented by the term of reflection. This article examines the legal regime of the term of reflection and presents various arguments which should emphasize the flexible nature thereof.
Keywords: public notary, term of reflection, divorce procedure, procedural term.
DREPTUL COPILULUI DE A AVEA LEGĂTURI PERSONALE CU PĂRINŢII SAU CU ALTE PERSOANE, ÎN LUMINA JURISPRUDENŢEI CURŢII EUROPENE A DREPTURILOR OMULUI ŞI A CELEI NAŢIONALE
THE CHILD’S RIGHT TO HAVE PERSONAL RELATIONSHIPS WITH HIS PARENTS OR WITH OTHER PERSONS, IN THE LIGHT OF THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS AND OF THE NATIONAL COURTS CASE-LAW
The principle of the “superior interest of the child” is limited to the child’s right to a normal physical and moral development, to socio-emotional balance and family life, prevailing in all actions and decisions concerning children, taken by public authorities and authorized private bodies, and in cases settled by the courts of law.
In this study, the author aims to analyse the interpretation and application by the European Court of Human Rights and by the Romanian courts of the rules governing the child’s right to have personal ties with his parents or with other persons with whom he has developed family relations, subordinated to this principle.
Keywords: regulations of the Council of Europe, family life, case law of the European Court of Human Rights, interference, positive obligations, national legislation, national judicial practice.
DESPRE FIDELITATE, CA ÎNDATORIRE CONJUGALĂ
ABOUT LOYALTY, AS A MARITAL DUTY
Existence of the duty of loyalty as an effect of marriage has never been disputed. It being implied in the previous regulation, at present it is explicitly contained in the legal nomenclature of the marital status (Article 309 of the Civil Code).
The litigation law applying to the duty of loyalty, makes possible the identification of those patterns by which non-compliant conduct is expressed (I), often emphasizing the private side of any dispute in relation to this subject (II), and in relation to the sanction, in the matter of divorce, it reveals some circumspection, sometimes even indulgence toward the unfaithful spouse, on the contrary, openness with regard to him incurring tort liability (III).
Keywords: loyalty, marital duties, divorce, divorce by fault.
PROBLEME PRIVIND REPREZENTAREA MINORULUI VICTIMĂ A INFRACŢIUNII DE VIOLENŢĂ ÎN FAMILIE
ISSUES REGARDING THE REPRESENTATION OF THE CHILD VICTIM OF DOMESTIC VIOLENCE
The child’s vulnerable position during a criminal trial is most evident when he is the victim of domestic violence and the aggressor is actually the person who should ensure his protection and should exercise the child’s right of access to justice. The current legislation has a series of mechanisms to ensure that the trial can be carried out without hinderance caused by the conflict of interests that exists between the child and his legal representative or protector, but there still are areas that have not been covered by laws, which have led to claims addressed to civil courts. Their object is to apply the civil institution of the curator for the minor who has expressed a wish to end the criminal trial by reconciling with the parent infringer and because of this particularity they can generate different solutions in practice, as it will be shown in the present study.
Keywords: curator, domestic violence, conflict of interest, minor, representation.
TANGENŢELE DINTRE DREPTUL PENAL ŞI PROCEDURA DIVORŢULUI. O PRIVIRE TEORETICĂ
THE CROSSROADS BETWEEN CRIMINAL LAW AND DIVORCE PROCEEDINGS. A THEORETICAL VIEW
This article represents a theoretical study of the tangents between criminal law and family law regarding the divorce procedure, containing a criminal approach of this institution, sprinkled with aspects of civil law. Being a theoretical study accompanied by numerous hypothetical examples, the material reviews, in the first part, the influence of a divorce procedure or decision on the applicability
of some criminal law institutions from the general part of the Criminal code, with references to the incriminations in which they are applicable. In this paradigm, the notion of “family member”, elements of the legal content of the crime, including the position of guarantor, some justifying and non-imputability causes, some punishments, and the extended confiscation are studied. In the second part, the perspective is reversed, as the way in which criminal law can interfere in the divorce procedure is analysed, whether we are talking about material or procedural civil law rules, such as reasons for divorce, consent to divorce, and the patrimonial consequences of divorce.
Keywords: criminal law, divorce, family member, position of guarantor, exercise of a right, moral constraint, fine, extended confiscation, causes of impunity, consent, reasons for divorce, patrimonial consequences of divorce, influencing statements.
DESCARGO DE RESPONSABILIDAD DEL PATRIMONIO EN EL PACTO ANTENUPCIAL
DISCHARGE OF PROPERTY LIABILITY IN THE MARRIAGE CONTRACT
Brazilian law is prolific in providing and regulating contractual mechanisms for the transfer of property between spouses and/or couples and also has numerous legal instruments specifically designed to “plan” inheritance of property, but emphasizes that marriage agreements should not be about inheritance of living individuals, and this is a matter which should be relativized.
Keywords: succession, surviving spouse, heir, conventional regime for separation of goods.
POT FI VIRUSATE ŞI PUSE ÎN CARANTINĂ RELAŢIILE DE FAMILIE?
DESPRE OBLIGAŢII ŞI DREPTURI FAMILIALE ÎN VREMURI PANDEMICE
MAY FAMILY RELATIONSHIPS BE INFECTED
AND QUARANTINED? ABOUT FAMILY OBLIGATIONS AND RIGHTS IN PANDEMIC TIMES
Bogdan Dumitru MOLOMAN
In this time of uncertainty, during which the pandemic caused by the SARS-CoV-2 coronavirus has changed the daily life into an emotional turmoil, leading us, at the same time, to abandon the routine and the daily concerns, and technology has “covered” almost all activities and financial problems have suddenly appeared (again), the cohabitation of family members needs a restart for adaptability to new changes.
At present, in the pandemic context, new crisis, uncertainty periods have laid hands on us; we are on the thin line between fear and hope. The fear for a uncertain and problematic future, regarding the unspoiled maintenance of family, interpersonal relationships, leads us towards emotional instability, however, despite all these issues, the hope for identifying a new interior strength which is imperative for maintaining or, as the case may be, renewing the family relationships makes us powerful and thus, we can envisage a bright future, in which these relationships will be involved in a harmonious chain with the feelings being stored inside all family members and more.
Isolation or, if appropriate, the measure of quarantine should bring us closer to each other, benefiting from the time spent together, and the conflicts which have usually been difficult to manage, should be settled. Although being optimistic, we could consider these measures taken by the authorities as an opportunity to know each other, to do things and share experiences, “activities” which, because of daily bustle have been ignored, we can’t stop finding that, to an equal extent, these measures ordered by authorities may cause deep injuries, states of anxiety, disagreements, which, finally, determine the intervention of the courts to settle interfamily conflicts.
In this study we deal with the analysis of the impact of the pandemic caused by the SARS-CoV-2 coronavirus over family relationships, especially on maintaining the personal relationships between the child and the non-resident parent, on the fulfilment of the obligation to support the minor child, on the conduct of the psychosocial inquiry necessary in civil proceedings concerning minors, on the suspension of the term of reflection granted in the case of divorce by a notarized deed and, why not, on the two-year deadline established by the legislator as a ground for divorce.
Keywords: family relationships, pandemic, coronavirus, COVID-19, personal relations, support obligation, divorce ground for divorce, psychosocial inquiry, Guardianship Authority, compensatory benefit, the best interest of the minor.
REGIMUL JURIDIC AL LUCRĂRILOR AUTONOME CU CARACTER DURABIL EDIFICATE DE UN SOŢ PE TERENUL PROPRIETATEA EXCLUSIVĂ A CELUILALT SOŢ
LEGAL REGIME OF SUSTAINABLE AUTONOMOUS WORKS ERECTED BY ONE SPOUSE ON THE LAND THAT IS THE EXCLUSIVE PROPERTY OF THE OTHER SPOUSE
Ioan Ilieş NEAMŢ
It often happens that a spouse builds a construction on the land owned exclusively by the other spouse. As long as the marriage lasts, the legal status of the construction is usually unimportant for the spouses. Still, in case of divorce or when the marriage is annulated or it ends, the problem of the rights over the building becomes topical. The paper aims to address this issue, respectively to analyze the legal regime of the building in relation to the spouse who owns the land and the one who built it.
In this line, after a short analysis of the relevant issues regarding the patrimonial relations between the spouses, the paper brings into view the main solutions proposed by the legal scholars on the topic and the possible counterarguments to those solutions and in the end we present our own optic on the issue. In a nutshell, we concluded that if no authentic contract that provides a superficies right for the builder was concluded or the owner of the land has not expressively renounced on his right of accession, the builder cannot acquire a property right on the construction, regardless if he builds it with the consent of the other spouse or even together with him.
Keywords: construction, spouse, accession, consent, property.
UNELE CONSIDERAŢII CU PRIVIRE LA REGLEMENTAREA RUDENIEI CA IMPEDIMENT LA CĂSĂTORIE ÎN LEGISLAŢIA REPUBLICII MOLDOVA
CERTAIN CONSIDERATIONS REGARDING THE REGULATION OF KINSHIP AS AN
IMPEDIMENT TO MARRIAGE IN THE LEGISLATION OF THE REPUBLIC OF MOLDOVA
In order to avoid incestuous relationships and also for biological and moral reasons, the lawmaker expressly prohibited marriage between persons related to certain degrees.
The prohibition of marriage between close relatives is based on biological or medical reasons, since conception of children by close relatives does not ensure the birth of a healthy offspring, but also on reasons of moral nature, as marriages between close relatives can have a negative influence on the family life.
Keywords: marriage, substantive conditions, impediments, relative, brothers, sisters.
SE IMPUNE REGLEMENTAREA LEGALĂ A PROCEDURII MATERNITĂŢII SUROGAT ÎN ROMÂNIA?
IS THE LEGAL REGULATION OF THE SURROGATE MATERNITY PROCEDURE REQUIRED IN ROMANIA?
Maternity of substitution is intended to offer a child to one or several adults. This consists in the deliberate conception of a child, who is without a family of origin, by manipulating his birth and his biological mother to satisfy the desire of the beneficiary adults. Therefore, the legitimacy of surrogacy is at least debatable. However, considering the old realities of the current Romanian society, in the present study we proposed by lege ferenda the possible implementation in the legislation of altruistic surrogate maternity, under certain conditions.
Keywords: maternity of substitution, beneficiary parents, biological father, infertility, human rights, altruistic and commercial surrogacy, traditional and gestational surrogate, fetal rights, surrogacy contract, superior interests of the child.
CORONAVIRUS AND THE MAJOR CHALLENGES TO THE FAMILY LAW.
THE CIVIL IMPRISONMENT OF THOSE WHO FAILED TO MAKE ALIMONY PAYMENTS
The work aims to analyse o the actions for alimony, especially concerning pleadings for civil imprisonment, whether the previous ones or the new ones. The coronavirus pandemic will bring a new guise to the legal rules.
Keywords: coronavirus, SARS-CoV-2, family law, alimony payments, social relations.
LOCUINŢA DE FAMILIE – SAU CE SE ÎNŢELEGE ÎN CODUL CIVIL PRIN FAMILIARUL TERMEN „ACASĂ”. CADRU LEGAL, PROBLEME PRACTICE, PUBLICITATE
FAMILY HOUSING – OR WHAT THE FAMILIAR WORD “HOME” MEANS IN THE CIVIL CODE. LEGAL FRAMEWORK, PRACTICAL ISSUES, PUBLICITY
Alexandru Radu TOGAN
The status of the family dwelling during the course of the marriage contains certain particular rules that have the purpose to prevent legal problems that can result from marital tensions. The present study analyses aspects regarding the legal frame, certain practical problems that can appear in the process of implementing the legal provisions and the means in which the family dwelling is protected.
Keywords: primary regime, family dwelling, noting in the land register of a building as a dwelling family, joint administration, assignment documents, consent.