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Brief considerations in reference to the maintenance obligation in the current regulation of the Civil Code

Succinte considerații cu referire la obligația de întreținere în actuala statornicire a Codului civil

Author(s): Lazăr-Ciprian Ureche,Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 09/2015

Keywords: legal maintenance obligation; subjects of the obligation; conditions and order of granting; inadmissibility of waiver of maintenance; guardianship court; minor.

In this study, the authors have examined the provisions of the Romanian Civil Code (the Law No 287/2009) concerning the maintenance obligation (Articles 513–534). Therefore, there are analyzed: the general principles; the subjects of the maintenance obligation; the order in which maintenance is due; the conditions of the maintenance obligation; determination and performance of the maintenance obligation.

THEORETICAL AND PRACTICAL ISSUES REGARDING THE CHILD’S CARE

THEORETICAL AND PRACTICAL ISSUES REGARDING THE CHILD’S CARE

Author(s): Dan Lupașcu,Cristian Mareș / Language(s): English / Issue: 1/2018

Keywords: child’s care; child’s protection; child’s dwelling; custody authority; parental authority.

Following the entry into force of Law No. 257/2013 for the amendment of Law No. 272/2004 on the protection and promotion of the child’s rights new provisions were adopted in relation with the child’s protection whose parents work abroad. This regulation was necessary in view of the increasing number of parents who, due to the need to ensure a decent living for the dependent children, are forced to work outside of Romania, but for this reason they neglect to raise and to care for them. The study examines theoretical issues of the child’s care that raise some debates in the doctrine. The research also consists in the analysis of the new regulation related to the child’s care both from theoretical and practical perspectives. The authors intend to carry out an analysis of the relevant case law of the courts of law in the matter of child’s care. From this perspective, there are some issues in relation to a child’s dwelling when his parents do not live together anymore. As far as the change of the child's dwelling is concerned, we have to distinguish between the children entrusted to one of the parents according to the Family Code and the children for whom the parental authority has been ordered to be jointly exercised and to have their place of residence with one of their parents, according to the provisions of the Civil Code. With respect to the child’s dwelling, both within the doctrine and the case law, it has emerged the notion of alternative or sharing dwelling of the child.

Legal Will

Legal Will

Author(s): Nicuşor Crăciun / Language(s): English / Issue: 2-Suppl/2018

Keywords: internal will; stated will; consent; legal regulation; purpose of the legal acts;

Will can be defined as the impulse that determines human activity to achieve certain goals, provided these goals exist. Will is a complex element both from a psychological point of view and from a legal point of view. Will is the individual's ability to act rationally to achieve goals that have been developed, mentally, in a forward-looking manner. Formation of consent is based on an internal will, which, in order to produce legal effects, is to be "objectified" (externalized) in the stated will. From the legal point of view, two elements are relevant: the externalized judgment - the consent, and the determining reason - the cause or the purpose of the legal act.

CONSIDERATIONS ON COMPENSATORY PROVISION

CONSIDERATIONS ON COMPENSATORY PROVISION

Author(s): Roxana Maria Roba / Language(s): English / Issue: 2/2018

Keywords: compensatory benefit; divorce; imbalance;compensation;

Regulated for the first time by the Civil Code from 2009, compensatory benefit seeks to compensate for asignificant imbalance that the divorce produces it in terms of the innocent husband's living conditions. The present study aims to analyze the necessary conditions to obtain a compensatory benefit according to the current legislation, to make a comparison with other institutions but also with the regulation from other legislation. The study uses the logical and comparative method, analyzes the legal provisions currently in force, as well as the point of view of the doctrine and the solutions derived from the judicial practice. The conclusions are in the direction of expressing concrete proposals to amend the current regulations.

CONDITIONS FOR CIVIL LIABILITY UNDER TORT LAW IN THE EVENT OF THE UNILATERAL TERMINATION OF THE ENGEGEMENT

CONDITIONS FOR CIVIL LIABILITY UNDER TORT LAW IN THE EVENT OF THE UNILATERAL TERMINATION OF THE ENGEGEMENT

Author(s): Nora Daghie / Language(s): English / Issue: 1/2019

Keywords: engagement; unilateral termination; abuse of rights; indemnities; burden of proof

Still questionable in terms of its legal nature (a legal act or a legal deed) and in the absence of relevant case-law on this matter, the engagement is seen nowadays as a social, moral and cultural relationship, with possible material legal consequences in the event of its unilateral termination.The exercise of the right to unilateral termination of the engagement for the purpose of causing excessive or unreasonable harm or damage, contrary to good faith, may result in civil liability under tort law, pursuant to the conditions provided for in Article 1357 of the Civil Code.In terms of liability, the particular circumstances under which the unilateral termination of the engagement has occurred represent the key element.

The New Regulations on Internal Adoption Procedure

Noile regulamente privind procedura internă de adopţie

Author(s): Carmen Oana Mihăilă / Language(s): English / Issue: 1/2017

Keywords: "evaluation; individualized protection plan; match between the child and the adopter; entrusting for adoption;"

The adoption, unlike other means of protecting the child without parental care, offers him a family in the true sense of the word.Law 273/2004 on the Legal Status of Adoption, which, at the time of its appearance, was a genuine evolution and even a revolution of the system of protection, underwent a lasting change after many others over the years. Thus, Law 57/2016 amending and supplementing Law 273 as well as other normative acts is intended to be a regulation that would simplify the child adoption procedure.The paper examines the new provisions in the field of internal adoption, starting with the evaluation of the adopter in order to obtain the attestation of a person able to adopt (social, psychological, the preparation for assuming the role of parent), then analyzing the starting of the adoption procedure where an essential element is the elaboration by DGASPC of the individualized protection plan, finalizing with the court procedure, the accommodation leave and the approval of the adoption.It is important to emphasize the particularly important role of the Directorate for the Protection of the Rights of the Child, which is a public institution and the Adoption and Post-Adoption Bureau, in conducting the internal adoption procedure.

The Parents’ Maintenance Obligation towards the Minor Child and the Descendant over the Age of Majority Pursuing Their Studies in Romanian Law

The Parents’ Maintenance Obligation towards the Minor Child and the Descendant over the Age of Majority Pursuing Their Studies in Romanian Law

Author(s): Ciprian Raul Romitan / Language(s): English / Issue: 2/2020

Keywords: maintenance obligation; alimony; need state;

According to the provisions of the Romanian Civil Law, the child is entitled to a standard of living fostering their physical, mental, spiritual, moral and social development. The responsibility to ensure the best living conditions required for the child’s growth and development rests with the parents or, as applicable, with the legal custodians. In this regard, the parents are bound to provide a dwelling for their child, as well as the conditions required for the growth, education, learning, professional training of the same, as well as a healthy living environment. The maintenance obligation rests with both parents, regardless of whether they are the biological, adoptive parents, or whether they are married, divorced or if they have children outside the marriage and it is granted to the minor up to the age of 18 (the majority age), and, if they are still pursuing their studies, up to graduation, without, however, exceeding the age of 26.

CRIMINAL AND CRIMINOLOGICAL ASPECTS OF INCEST

CRIMINAL AND CRIMINOLOGICAL ASPECTS OF INCEST

Author(s): Bogdan Vîrjan / Language(s): English / Issue: IX/2021

Keywords: incest; sexual intercourse; direct relatives; crime against family; brothers and sisters;

Through this paper we propose an analysis of the crime of incest, as it is currently regulated in the Romanian Criminal Code by comparison with the old regulation, highlighting certain relevant aspects of this crime, as well as problems that may arise in the interpretation and application of the incest incrimination rule. As we know, the crime of incest has generated several discussions in the literature. Divergent views focused both on how to regulate this crime and on the idea of decriminalizing consensual incest. Last but not least, given the evolution over time of the norm of incrimination of incest, it seems that the legislator was not very clear about the social value protected by this crime. In this regard, we recall that in the draft of the new Criminal Code, incest was no longer provided as an independent crime, it being considered that it is sufficient to incriminate the incest committed by coercion or by making the victim unable to defend himself or to express his will or taking advantage of this state, as an aggravated variant of the crime of rape. Eventually, the current Criminal Code came out of the parliamentary procedure, keeping the crime of incest in crimes against the family, but with certain modifications compared to the old Criminal Code, in the sense of restricting the scope of this crime only in the case of consensual sexual intercourse and reducing the limits of punishment. Also, although the Explanatory Memorandum of the new Criminal Code states that this crime protects the morality of family relationships, we note that the legislator included in the rule of incrimination only sexual intercourse, excluding oral sex or anal intercourse – vaginal or anal penetration or any other acts of a sexual nature, as alternative normative ways of accomplishing the material element of this crime.

Non-constitutionality. Guardianship. Control duties. Guardianship court against Guardianship authority. Article 229 para. (3) of Law no. 71/2011 for the enforcement of Law no. 287/2009 regarding the Civil Code

Neconstituţionalitate. Tutelă. Atribuţii de control. Instanţa de tutelă vs. Autoritatea tutelară. Art. 229 alin. (3) din Legea nr. 71/2011 pentru punerea în aplicare a Legii nr. 287/2009 privind Codul civil

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 2/2020

Jurisprudential aspects of child support

Aspecte jurisprudenţiale în materia pensiei de întreţinere datorate copilului

Author(s): Ioana-Anamaria Filote-Iovu / Language(s): Romanian / Issue: Supliment/2020

Keywords: the superior interest of the child; alimony; legal practice; jurisdiction of the courts; how to establish the alimony; the amount of expenses for raising; educating; teaching and training the child;

The minor’s right to a maintenance pension is circumscribed by the principle of the “superior interest of the child” and involves correlative obligations established by law, both for parents, to contribute to the expenses of raising, education and training the minor, and for the public authorities, but especially the courts to ensure the effective exercise of this right. In this study, the author aims to analyze the divergences of jurisprudence on the difficulties of interpretation and jurisprudential application of the rules governing the “maintenance pension” due to the child.

Preciput Clause – the last marriage “gift” for the surviving spouse

Clauza de preciput – cel din urmă „cadou” matrimonial pentru soţul supravieţuitor

Author(s): Alexandru Radu Togan / Language(s): Romanian / Issue: 1/2021

Keywords: preciput clause; donation; inheritance; marriage convention; matrimonial regime;

In the light of the New Civil Code, the spouses can conclude a marital convention that includes a clause which can impose a particular regime for the goods earned during marriage in joint property or co property, stating that the named goods will be transferred exclusively to the surviving spouse, eliminating the uncertainties regarding the division of the inheritance mass of the predeceased spouse. The preciput clause will operate in a manner similar to a donation, but will not be subjected to the donation report and can be subjected to reduction only to the extent it affects the rights of the heirs entitled to a certain part of the inheritance. The present study analyses the preciput clause, stating its specificities, being an interesting mechanism, whose legal nature is not easy to be established.

Denial of the petition for divorce. Exclusive fault. The person placed under judicial interdiction. Health condition. Tutor

Respingerea cererii de divorţ. Culpă exclusivă. Persoana pusă sub interdicţie judecătorească. Stare de sănătate. Tutore

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 1/2021

Enrique Varsi Rospigliosi, Family law treaty, 2nd edition, Instituto Pacífico y Universidad de Lima, Lima, 2020, 4 vol. [608 pag. (vol. I), 608 pag. (vol. II), 912 pag. (vol. III), 784 pag. (vol. IV)]

Enrique Varsi Rospigliosi, Tratado de derecho de familia, 2a edicion, Instituto Pacífico y Universidad de Lima, Lima, 2020, 4 vol. [608 pag. (vol. I), 608 pag. (vol. II), 912 pag. (vol. III), 784 pag. (vol. IV)]

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 1/2021

Denial of paternity. The imprescriptibility of the right to action

Tăgada paternităţii. Imprescriptibilitatea dreptului la acţiune

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 2/2021

The consent of one of the parents for the minor to leave the country or regarding the issuance of the passport. Additional consent (I). Exercise of joint parental authority (II)

Consimţământul unuia dintre părinţi la părăsirea ţării de către minor sau eliberarea paşaportului. Suplinire consimţământ (I). Exercitarea autorităţii părinteşti în comun (II)

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 2/2021

THE TIP OF THE ICEBERG OF PARENTAL PROTECTION IN THE PROCEDURE OF NOTARY DIVORCE

THE TIP OF THE ICEBERG OF PARENTAL PROTECTION IN THE PROCEDURE OF NOTARY DIVORCE

Author(s): Manuela Tăbăraş / Language(s): English / Issue: XV/2021

Keywords: minor; parental convention; divorce; notary procedure; equality;

Although approaching this subject matter naturally requires from the very beginning a projection on the child as part of the notary divorce because “humanity owes the child the best it has to give” (as stated by the League of Nations in the Declaration of the Rights of the Child of 1924), it must be understood ab initio that this hypothesis is not exclusively related to divorce, as it deals with problems concerning those becoming parents without being married, those married but separated in fact and those who are divorced and have somehow regulated at that time parental protection without any guarantee that the reason and initial circumstances will not change in time. Thus, no matter the initial circumstances considered, children must be treated equally. Liberty, option, moral, customs, tradition and religion make up the basic texture of family relations. It has been said that people live as if family law didn’t exist; non law is the essence of family relations, whereas law is an accident (Jean Carbonnier), which we will explore against this background of parental protection of the child resulted from marriage or outside the boundaries of marriage.

“Family Pact” – The choice of matrimonial regime and the way of implementing the patrimonial rules applicable to marriage

„Pactul de familie” – Alegerea regimului matrimonial şi modalitatea de implementare a regulilor patrimoniale aplicabile căsătoriei

Author(s): Alexandru Radu Togan / Language(s): Romanian / Issue: 1/2022

Keywords: matrimonial property regime; marriage convention; spouses; assets; patrimony;

The relation between marriage and patrimony can be influenced by the decision of the spouses or future spouses to choose a certain matrimonial property regime, whose rules will regulate the patrimonial aspects during (and after) the marriage. The means and the moment in which a matrimonial property regime can be chosen or modified can raise certain discussions. Moreover, the patrimonial mass of common goods can persist after the modification or removal of a certain matrimonial property regime, aspect which can lead to troublesome situations regarding the legal relations that can arise until the moment of the division of property.

Exercising parental authority exclusively. Conditions (I). The right to have personal relations with the child (II)

Exercitarea autorităţii părinteşti în mod exclusiv. Condiţii (I). Dreptul de a avea legături personale cu copilul (II)

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 1/2022

Keywords: parental authority; personal relations with the child; Conditions; rights;

(I) Simplele relaţii tensionate dintre părţi, dintre familiile acestora, nu justifică derogarea de la exerciţiul comun al autorităţii părinteşti, cât timp nu s-a probat că ele împiedică luarea de comun acord a deciziilor esenţiale (şi nu a celor minore, zilnice) în privinţa minorei. Autoritatea părintească exercitată de un singur părinte impune dovada că celălalt refuză, este dezinteresat în exerciţiul autorităţii părinteşti, se află în situaţii obiective care fac imposibilă sau extrem de dificilă exercitarea atribuţiilor părinteşti. Pentru a se dispune exercitarea autorităţii părinteşti de către un singur părinte, judecătorul trebuie să constate că problemele dintre părinţi sunt atât de grave, imposibil sau dificil de rezolvat în viitorul apropiat, încât există riscul ca minora să sufere ca urmare a acordării autorităţii părinteşti comune. (II) Dreptul de a avea legături personale cu copilul trebuie să fie exercitat în aşa fel încât să nu aibă o influenţă negativă asupra dezvoltării copilului, trebuind să fie respectate condiţiile normale în privinţa întreţinerii acestor legături, cu aplicarea principiului respectării şi promo- vării cu prioritate a interesului superior al minorului. Nu există o reţetă juridică în privinţa modalităţii concrete de stabilire a programului de vizită, ci doar repere care pot fi avute în vedere de instanţă, de la caz la caz, în funcţie de particularităţile şi specificitatea fiecărei cauze [Trib. Bistriţa-Năsăud, s. I civ., dec. civ. nr. 323/A/2021, disponibilă (Online) la adresa www.rolii.ro, trimisă, în rezumat, de BOGDAN DUMITRU MOLOMAN

Maintaining minor-parent personal ties. Injunction. Verbal violence (I). Listening to the minor (II)

Menţinerea legăturilor personale minor-tată. Ordonanţă preşedinţială. Violenţă verbală (I). Ascultarea minorului (II)

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian / Issue: 2/2022

Keywords: minor-parent personal ties; injunction; verbal violence;

Separarea părinţilor conduce la o profundă reconstrucţie familială din perspectiva copilului, mai cu seamă în relaţia cu părintele nerezident. Fiind lipsit de proximitatea cotidiană a acestuia, minorul este expus unui risc real de înstrăinare în lipsa unor măsuri menite să păstreze această relaţie măcar în limitele sale minimale, iar odată afectată legătura, refacerea sa este adesea dificilă. În toate cazurile însă, timpul este unul dintre factorii principali cu valoare determinantă în menţinerea pe cât posibil funcţională a legăturii dintre părintele nerezident şi copilul său. Tocmai de aceea, de fiecare dată când apare orice deficienţă în derularea legăturii părinte-copil se impune intervenţia de urgenţă, pentru a preveni alterarea iremediabilă a acestei legături. S-ar putea spune, aşadar, că, în materia legăturilor personale, urgenţa este aproape una prezumată şi decurge din specificul intrinsec al dreptului ce se urmăreşte a fi protegiuit.

Right to Compensation of the Spouse who is Innocent of the Dissolution of Marriage in Romanian Civil Law

Right to Compensation of the Spouse who is Innocent of the Dissolution of Marriage in Romanian Civil Law

Author(s): Ciprian Raul Romiţan / Language(s): English / Issue: 2/2022

Keywords: marriage; dissolution of marriage; divorce; fault; guilty spouse;

In Romanian Civil Law, once a marriage is dissolved due to the fault of one of the spouses, the spouse who is innocent of the event is entitled to compensation and the spouse who suffers material or moral damage can claim compensation from the guilty spouse. The right to granting compensation is a form of tort liability and, as will be shown in the course of our study, in order for such a claim to be admissible, several conditions must be met cumulatively: the divorce must have been pronounced solely due to the fault of the spouse from whom compensation is sought; the claimant spouse must have suffered damage as a result of the dissolution of the marriage; the damage must be certain, determined or determinable, unrepaired, and closely connected with the dissolution of the marriage. The application for granting compensation is settled by the guardianship court in the divorce judgment, the text of the law being mandatory in this respect.