Matrimonial regime from the perspective of “those from the outside”. Benchmarks of private international law of the regime enforceability Cover Image
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Regimul matrimonial din perspectiva „celor din afară”. Repere de drept internaţional privat ale opozabilităţii regimului
Matrimonial regime from the perspective of “those from the outside”. Benchmarks of private international law of the regime enforceability

Author(s): Dan Andrei Popescu
Subject(s): Law, Constitution, Jurisprudence, Civil Law
Published by: Universul Juridic
Keywords: matrimonial regime; private international law; enforceability; applicable law; protection measures;

Summary/Abstract: This study aims at examining the impact of the law applicable to the matrimonial regime over the documents concluded by either spouse with third parties. The material protection measures of the third parties and of the legal circuit are equally examined, especially the impact of the veracity measures as regards the registrations in the land book. Hence, the national protection provisions of the legal circuit, such as the material rules protecting the acquirers of good faith (Gutglaubenvorschriften), shall be applicable as a priority, no matter the law applicable to the matrimonial regime, as they relate to the actual status of real estate.The enforceability may be considered either from the perspective of the holder of the subjective right, as an efficiency tool of the already acquired right according to the law applicable to the legal act belonging to another state (extraterritoriale Wirkung), or, regarding things from the third parties’ perspective, as a form of their legal protection (Schützwirkung) against the imposition of certain effects arising from any documents concluded in another country or governed by a foreign law, which, reasonably, they could not be aware of. However, before thinking about it from the perspective of the concluded document, enforceability must be mainly considered from the third parties’ perspective, as their interests have to take priority. Enforceability represents a characteristic of the national state, of the national legal circuit where the effects of the legal documents or situations arising at the transnational level, get through. That is why, enforceability cannot be considered, in principle, beyond the natural horizon of the third parties’ view, beyond the national borders. From the perspective of the enforceability of rights, Europe is not a space without borders!Depending on the enforceability criterion, we are able to distinguish between two worlds: the world of “those from the inside” and the world of “those from the outside”. The first is governed by the law of the chargeable deed or event, with rare exceptions (e.g., the international public order), while the latter remains, in principle, at the disposal of the protection rules belonging to the system of law of the state on whose territory the aimed effects are generated.As a rule, enforceability shall belong to the law of the place where legal effects are generated, but not to the law of their birth place. Enforceability “resides” on the territory of the state where these effects are intended to be extended. Third parties, in relation to which it is intended to oppose some effects, may not be required to know their source and not even the law applicable to the chargeable deed or event, at the time when they have arisen in another public space. They are entitled to ignore them!The private circuit stability and, to the same extent, the third parties’ protection, require the limitation of enforceability of the effects to what may be reasonably viewed. Third parties’ eyes may not be required to look beyond the natural horizon of the view, namely beyond the legal space belonging to the place of generating and invoking the effects. In this manner, enforceability shall fall within the scope of gravitation and regulation of lex loci effectum, which may be, as appropriate, lex rei sitae, namely the law of the place where the movable asset is located upon invoking the effects, respectively the law of location of the real estate, the law of the place where the effects of representation are produced, the law of the place of opening the insolvency procedure (lex concursus), the law of the effects of the matrimonial regime, the law of the place of invoking the European heir certificate, the law applicable to the attributive clause of jurisdiction etc.

  • Issue Year: 2019
  • Issue No: 1-2
  • Page Range: 441-470
  • Page Count: 30
  • Language: Romanian