Continuity or change of paradigm in the problem of proving with witnesses of the own assets in the relations between spouses Cover Image
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Continuitate sau schimbare de paradigmă în problema dovedirii cu martori a bunurilor proprii în raporturile dintre soți
Continuity or change of paradigm in the problem of proving with witnesses of the own assets in the relations between spouses

Author(s): Emilian Lipcanu
Subject(s): Law, Constitution, Jurisprudence
Published by: Uniunea Juriștilor din România
Keywords: spouses; own assets; proof with witnesses; the new Civil Code; the new Civil Procedure Code; de lege ferenda proposal.

Summary/Abstract: In this study, the author presents some aspects of the problems of proving with witnesses of the own assets, in the relations between spouses, over three periods of the legislative evolution in Romania: the period from 1 February 1954, when the Family Code entered into force, to 1 October 2011, when the new Civil Code entered into force; the period from the entry into force of the new Civil Code and 15 February 2013 (the date when the new Civil Procedure Code entered into force); the period that began on 15 February 2013, when the new Civil Procedure Code entered into force, a date since when the matter of proving the own assets in the relations between spouses is governed by the new Civil Code and by the new Civil Procedure Code. In this part of the study the author notes that Article 316 of the new Civil Procedure Code contains a wording likely to generate divergent case law concerning the proof with witnesses of the own assets in the relations between spouses. The author argues the opinion that, from 15 February 2013 as well, the proof of the own assets in the relations between spouses can be given by any means of evidence, including the proof with witnesses, which, however, in case of the opposition from one of the spouses, can not be relatives and in-laws in rank prohibited by law. In this context, the author makes a de lege ferenda proposal for the amendment of the content of Article 316 of the new Civil Procedure Code, in order to prevent the emergence of a non-unitary case law. The proposal is to replace the phrase and other family relations with the phrase and other similar family relations.

  • Issue Year: 2016
  • Issue No: 05
  • Page Range: 26-34
  • Page Count: 9
  • Language: Romanian