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THE NATURE OF PRIVILEGED ALLOCATION CLAUSE – A CONTROVERSIAL ISSUE IN ROMANIAN LITERATURE

NATURA JURIDICĂ A CLAUZEI DE PRECIPUT – SUBIECT DE CONTROVERSE DOCTRINARE

Author(s): Diana-Geanina Ionaș / Language(s): Romanian / Issue: 3/2014

Keywords: privileged allocation clause; matrimonial convention; liberality; partition clause; matrimonial advantage.

The nature of privileged allocation clause – a controversial issue in Romanian literature. The privileged allocation clause is a legal document signed by spouses or future spouses, comprised in the content of a marriage agreement, regarding the possibility that, in the event of the death of one of them, the surviving spouse take one or more of the common property held in condominium or under common ownership, before the partition of the inheritance and without the obligation to pay their equivalent value. Unlike the French Civil Code which, in art. 1516 expressly provides that this clause is not a donation but a "matrimonial agreement between members", or the Belgian Civil Code which also expressly provides that the privileged allocation clause is not considered a donation, but a matrimonial convention, the Romanian legislature failed to make this statement, leaving it to the doctrine to determine the legal nature of the privileged allocation clause, with all the consequences arising from it. In addressing the issue, the fact that it is a gratuitous act concluded between the living but with mortis causa effects, regulating the property relations between spouses, the doctrine raised the question: is the privileged allocation clause a liberality or not? Finding a clear and concise answer concerns not only from the doctrine point of view, not being only a matter of scientific research, but it is important in practice, depending on the legal nature of the clause, a number of legal institutions with different legal effects being incident.

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THE CONCEPT OF MATRIMONIAL CONVENTION UNDER THE PROVISIONS OF THE NEW ROMANIAN CIVIL CODE

CONSIDERATII PRIVIND CONVENTIA MATRIMONIALA POTRIVIT DISPOZITIILOR DIN NOUL COD CIVIL

Author(s): Nadia-Cerasela Aniţei / Language(s): Romanian / Issue: Supplement/2011

Keywords: matrimonial convention; Family Code; the new Civil Code; property relations between spouses; matrimonial property regime; legal matrimonial regime; separation of property regime; conventional community regime

By Law no. 287 of July 17, 2009 on the Civil Code republished through Law no. 71/2011, the new Civil Code is subject to the tendency of the modern legislations to create a triple economic balance in relations between spouses matters by means of the matrimonial regimes established: 1. between spouses: the emergence of marital agreements, which led to the adoption of more flexible legal rules, that allow spouses a certain freedom to choose the regime of patrimonial relations between them; 2. within the family: to protect the interests of the family, they resorted to mandatory rules that provided for limitations and prohibitions (Art. 321-322 on family home - new concept in the Romanian law, art. 316 regarding the acts seriously threatening family interests); 3. between family and society-third parties: through the establishment of certain substantive requirements of legal acts, including of the marital agreements concluded by affidavit, with the obligation to be made public. We believe that in the new Civil Code, Chapter VI of Book II - The family is called Patrimonial rights and obligations of spouses devotes Section 1 Common provisions, paragraphs 1-3, art. 312-328 to the primary regime. The primary regime governed by art. 312-328 of the new Civil Code is defined as all legal norms governing the relations established between spouses, or between one or both spouses on the one hand, and third parties, on the other hand, relations having as object existing assets at the time of marriage, acquired during it, as well as contracted obligations in connection with such goods or the carrying out of the obligations of marriage that apply to all marriages, regardless of the matrimonial regime to which the spouses are subjected. The provisions of art. 312 of the Civil Code establish: a legal system that is the community property regime and two conventional regimes: separation of property regime and the regime of conventional community (the latter includes conventional exemptions from the community property regime). The legal matrimonial regime includes property acquired by both spouses during marriage, except for the goods provided by law, which are each spouse's own assets. The legal community regime will apply in all situations in which prospective spouses do not opt for the separation of property regime or for the conventional community regime. Separation of property regime is characterized in that each of the spouses is the exclusive owner of their property and of that they acquire by themselves after the marriage, at the adoption of this regime spouses are required to draw up an inventory of movable property belonging to each one at the date of the contracting of marriage. The Conventional community regime is applicable when by matrimonial agreement, they derogate from the provisions on the legal community regime, and the matrimonial convention concluded in this case may narrow or widen the community of goods. The new Civil Code places at the basis

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CULTURAL-MUSICAL MARKS IN SINAIA MONASTERY’S HISTORY

REPERE CULTURAL-MUZICALE ÎN ISTORIA MĂNĂSTIRII SINAIA

Author(s): Mihai Harbuzaru / Language(s): Romanian / Issue: 1/2009

Keywords: Sinaia Monastery; Naum Râmniceanu; Varlaam Barancescu; chronics; bizantine music; royal residence; Peles.

Cultural-Musical Marks in Sinaia Monastery’s History. In this study I present the short history of Sinaia Monastery, which begins in XVth century as a small church for heremites, then it develops as an important place for spiritual and cultural activity. Its monks, like Naum Râmniceanu, Varlaam Barancescu and others, were chroniclers and musicians amongs the most important in XIXth century, and some of their manuscripts have been only recently discovered. Last part is about Sinaia Monastery’s relations with other cultural centers from Romania, and with Mount Athos.

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GENERAL THOUGHTS ON ADOPTION

CONSIDERATII GENERALE PRIVIND ADOPTIA

Author(s): Nadia-Cerasela Aniţei / Language(s): Romanian / Issue: Special /2010

Keywords: adoption; adopter; adopted; limited effect adoption; full effect adoption.

The adoption is a measure of child rights protection and is made only to protect the interests of the child. The adoption has an important social and family role, contributing not only to the taking over the society's responsibility in raising, educating and training the children without parental care, but also to the establishment of an atmosphere of happiness, love and understanding, similar to that provided by the natural family life. Adoption offers to children the possibility of a permanent family. European Convention on the Adoption of Children, ratified in Romania by Law no. 15/1993 stipulates that adoption is made in the interest of the child (art. 8 par. 1) and the Convention on child protection and cooperation on international adoption ratified in Romania by Law no. 84/1994 provides that the adoption is completed in the best interests of the child (art. 1 letter. A). Based on these international regulations we can say that there are two kinds of interests of the child, but the best interest of the child is not expressly provided in the interests of the child and what differentiates it from the child's interest. The best interest of the child lies in the fact that adoption should ensure the harmonious development of the child and the observance of the fundamental rights that they were conferred, while the child's interest is the superior finality of adoption. Regarding the purpose for which the adoption is consented, the case law established that the adoption is in the interest of the adopted, and in accordance with art. 20 of the Convention on the Rights of the Child, adopted by UN General Assembly on 20 November 1990 (ratified by Law no. 18/1990), any child who is temporarily or permanently deprived of his familiar environment, or who for their best interest, cannot be left in this environment, is entitled to protection and to special aid from the state which can be granted, among others, as adoption.

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Marriage contracting in private international law.

Încheierea căsătoriei în dreptul internaţional privat.

Author(s): Călina Jugastru / Language(s): Romanian / Issue: 05/2015

Keywords: marriage; foreign element; substantive requirements; formal requirements; free-consented unions; registered partnerships;

Family, in private international law, remains one of the most dynamic and interesting area of conflict of laws, especially in the light of changes that states’ substantive laws suffer. The time of changes is just at its beginning. One can easily notice novel regulations – these are not else but the reflection of profound changes in family domestic law. Moreover, these are not variations on the same theme, but changes in mentality, views and concepts which are also reflected at the legislative level – firstly, in the European courts case-law and, gradually, in national perimeters.This study examines the marriage legal relations with foreign element. This extension deals with the promise of marriage and other relationships generated by a marriage, but seen in another setting than marriage. The practice of trans and cross-border relations brings in a series of legal patterns not yet experienced by Romanian domestic law. Rights acquired in another State, private international law public order, parallel regulations – at national, European or international level or through international conventions – are absolutely necessary in order to harmonize solutions offered by both conflict of laws and conflict of jurisdictions.The substantive and formal requirements are the general framework of debate for marriage with foreign element. Among the difficult issues we mention fictitious marriages, polygamous marriages, same-sex marriages, marriages celebrated abroad that followed unknown formalities for the forum state (religious marriage, for instance, as regulated in some systems). Frequently, national law offers different solutions for both conflicts of law in space and for conflicts of laws in time and space; Romanian domestic law provides specific regulation for the matrimonial relations with foreign element.

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THE FACETS OF THE AUTONOMY OF WILL ON THE PATRIMONIAL EFFECTS OF CIVIL PARTNERSHIP LAW. THE EU REGULATION 2016/1104

FAŢETELE AUTONOMIEI DE VOINŢĂ ÎN MATERIA EFECTELOR PATRIMONIALE ALE PARTENERIATELOR CIVILE. REGULAMENTUL (UE) 2016/1104

Author(s): Călina Jugastru / Language(s): Romanian / Issue: 08/2018

Keywords: autonomy of will; EU Regulation 2016/1104; civil partnership; patrimonial effects; choice of applicable law, choice of forum;

EU Regulation 2016/1104 is the first European regulatory act to address the effects of registered partnerships. The act addresses only the patrimonial effects and not the personal effects generated by the relationships between the partners (the Regulation came into force in 2016 and it will apply starting from January 2019). The autonomy of will is valued by the European legislator on two levels: in relation to choosing the law applicable to the partnership and in respect of the designation of the competent jurisdiction to adjudicate possible litigations generated by the partnership. The choice of lex causae gives expression to subjective determination, and the parties have at their disposal options to use specific link points as specified in the text of the Regulation. If the parties do not choose, the rules for the objective determination of the applicable law will apply. As regards the possibility of choosing the competent court, the partners also have the possibility to choose one of the legal options. The preference for a particular court confers exclusive competence, through the attribution clause.

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ABOUT PREDICTABILITY. GENERAL ACCENTS IN THE COUPLE ECONOMIC REGIME (EUROPEAN LAW)

DESPRE PREVIZIBILITATE. ACCENTE GENERALE ÎN REGIMUL ECONOMIC DE CUPLU (DREPT EUROPEAN)

Author(s): Călina Jugastru / Language(s): Romanian / Issue: 08/2019

Keywords: Regulation (EU) 2016/1103; Regulation (EU) 2016/1104; predictability; legal certainty; unification; autonomy of will; connecting factors;

As European regulations (directly and priority applicable in the Member States) multiply, predictability and legal certainty are of particular importance and become guarantees of the stated objectives. The regulations „matrimonial regimes” and „registered partnerships” make „waste” of texts, the predictability being a declared objective, with specific tools for implementation. The study addresses the general issue of predictability, in the context of recent regulations regarding the patrimonial regime of couples. Regulation (EU) 2016/1103 and Regulation (EU) 2016/1104, adopted in 2016 and applicable from January 29, 2019, contain provisions „in the mirror”, the particularities due to the source institutions (marriage and civil partnership) are inherent. Regarding the predictability, its complexity allows to talk about a „general part” or a general theory, which crosses the aspects of unification and autonomy of will (the last, in the context of the applicable law and of the competent jurisdiction). Then, in a „special part” (which deserves a distinct analysis), the detail of the linking factors and the conflicts of laws prove whether and to what extent the intentions of the European legislator resonate with the expectations of predictability.

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The Amendment to the Matrimonial Agreement versus the Change of Matrimonial Regime. Concept, Conditions, Effects

Modificarea convenţiei matrimoniale versus modificarea regimului matrimonial. Noţiune, condiţii, efecte

Author(s): Codruţa Hageanu / Language(s): Romanian / Issue: 02/2018

Keywords: contract; matrimonial agreement; matrimonial property regime; modification; principle of mutability;

Between the modification of the matrimonial agreement and the modification of the matrimonial regime the equal sign cannot be put, although there is an overlap. In the following we will analyze the two institutions, focusing on some special situations that may arise in practice (modification of the marriage agreement before marriage, modification after the conclusion of marriage, modification of the agreement by a minor, invalidity of the modification agreement), but also on the differences between them, marking the conditions under which each change occurs. Thus, the modification of the matrimonial agreement before the marriage does not have the effect of modifying the matrimonial regime that has not yet been born, the moment when the matrimonial regime will begin to produce legal effects between the spouses being that of the conclusion of the marriage. After the marriage is concluded, the modification of the matrimonial agreement can be done with or without affecting the matrimonial regime since, as we will show, this is a complex legal act, which may include other legal acts between spouses or between spouses and third parties that are not related to the regime. matrimonial. In contrast, the modification of the matrimonial property regime can only be done through a matrimonial agreement, respecting all the substantive conditions, form and publicity provided by the law.

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Enforcement of the right to have personal connection with the minor child. Illusion or reality?

Executarea silită a dreptului de a avea legături personale cu minorul. Iluzie sau realitate?

Author(s): Ioan Ilieş Neamţ / Language(s): Romanian / Issue: 1-2/2019

Keywords: forced execution; personal contacts; child; penalties; bailiff; refusal; opposition;

The paper aims to analyze, in a relatively exhaustive way, the enforcement proceedings that are incident when it comes to force execution of the right of a parent to have personal contacts with her child. In this regard, after a brief review of the normative framework applicable to the contact right, its particularities and place in the complex matrix of family relations, the paper further focuses on the essence of the topic: the enforcement proceedings of such a right, by analyzing both the common aspects related to force execution in this domain and the elements that distinguish it. On this line, the paper addresses aspects such as the parties in the enforcement proceedings, the rights and obligations of the parties and the special forms in which the non execution can materialize. Furthermore, the paper details how forced execution takes place and the implications of the two hypotheses of non execution: the debtor’s opposition and the minor’s refusal. In the end, the paper outlines the mechanisms the creditor can use in order achieve her right if the non execution is the consequence of the debtor’s fault.

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Attempts to disclose the reasons of biological parents’ consent request at adoption and of harmonization of communication assumptions with the mechanism of formation of abusive refusal to consent to adoption

Încercări de devoalare a raţiunilor cerinţei consimţământului părinţilor biologici la adopţie şi de armonizare a prezumţiilor de comunicare cu mecanismul de formare a refuzului abuziv de a consimţi la adopţie

Author(s): Lucian Lungu / Language(s): Romanian / Issue: 1/2020

Keywords: citation; adoption; abuse; presumption; display;

In our presentation we have tried to thematize the reasons for which it is requested the consent of the biological parents at adoption, valuing in legal field the clinic experience of the psychologists. This was necessary in order to have an image of the real dimension of physical and psychical connection between the child and the biological parent, and also the conditions in which this connection may be broken definitively by opening the adoption procedure. The child’s rupture of the biological parents may be realized by adoption, only after the express consent of the parents to adoption. The Romanian legislator provided that the lack of presentation of the biological parents at two judgment terms may be considered as an abusive refusal to consent to adoption. To operate the abuse in this manner, the biological parents must know of the existence of the process of opening the adoption procedure, situation in which the citation procedure must be realized in a way that certifies that the parents know about the conduct of legal proceedings. The function of citation procedure from the stage of the adoption’s opening is that of creation the premises of appliance the rules from the abuse of right under the aspect of formation of the volitional element. As the legislator uses the communication presumptions of the citation, we tried to harmonize the communication presumptions with the mechanism of formation of the abusive refusal to consent to adoption. In this sense, we argued that the procedure of citation realized by display or by putting the citation in the mailbox, cannot create the premises of appliance of the rules from the abuse under the aspect of formation of the volitional element, in the procedure of opening the adoption of the underage child.

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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

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

Author(s): Ioana-Anamaria Filote-Iovu / Language(s): Romanian / Issue: 2/2020

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;

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.

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The alternating home. Or when the “best interests of the parents” are disguised as the best interests of the child. A critical analysis

Locuinţa alternantă. Sau când „interesele superioare ale părinţilor” sunt mascate sub forma interesului superior al copilului. O analiză critică

Author(s): Ioan Ilieş Neamţ / Language(s): Romanian / Issue: 1/2021

Keywords: child; separation; alternative residence; legality; child’s best interest;

The paper aims to critically analyze the alternative child’s residence, a legal institution that lately seems to have found an increasing number of supporters in legal doctrine and jurisprudence. In this regard, the first part of the paper, and the most extensive one, analyzes the alternative child’s residence from a legal perspective, underlining that no matter which method of interpretation is used, the institution contravenes domestic law and that the only, although highly unlikely, hypothesis in which it may be considered legal is when it is provided by the international treaties or conventions ratified by Romania, and those apply with priority. In the second part of the paper, the alternative child’s residence is analyzed from the child’s best interest principle perspective, concluding that the two are almost always incompatible and that the alternative residence actually serves the interest of the parents, not of the child.

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Opinions regarding concubinage and marriage in Romanian law

Opinii despre concubinaj şi căsătorie în dreptul român

Author(s): Teodor Bodoasca / Language(s): Romanian / Issue: 2/2021

Keywords: man; woman; concubinage; effects; marriage; family;

Considered as a de facto cohabitation of man and woman in the absence of statutory procedures for marriage or a state of affairs or an illegitimate marriage between the two, concubinage has determined legislators to react since early history. Although in its essence, and especially in relation to Christian norms, concubinage is regarded as a negative social phenomenon, there has been a tendency to tolerate and regulate its diverse effects, most commonly in a similar way to the effects that result from the legal act of marriage. Consequently, at a certain point in time, Romanian jurists began to consider it a lower rank marriage. The present Romanian Civil Code, as well as other previous or subsequent legislation provide examples that serve this purpose. Concubinage is different from the legal act of marriage, but it also possesses important common elements with civil partnership and other forms of unmarried couples. By means of this research paper we intend to present the defining elements of concubinage and to identify the aspects that make it different from the legal act of marriage.

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Breaking off the engagement – between theory and practice

Ruperea logodnei – între teorie şi practică

Author(s): Lucian Lungu,Paula-Alina Lupu / Language(s): Romanian / Issue: 2/2021

Keywords: engagement; ordinary gifts; abuse of rights; breaking off the engagement; blame;

The present study examines, on one hand, the legal forms in which gifts offered by the fiancés to one another can present themselves, and gifts offered to them by third parties, in particular focusing on the applicable legal regime, as well as on the practical implications. Being exempt from restitution, the primary characteristics of ordinary engagement gifts has been highlighted in this study, as well as the criteria based on which the aforementioned gifts can be delineated from those that can constitute the object of a claim in restitution. On the other hand, while striving to depict a complete picture of the law institution that is the engagement, we also focused on the matter of civil liability in regards to abusively breaking off the engagement, mainly analyzing the abuse of law theory, as well as the meaning of „abusive break off” under both of its legal forms presented in Article 269 para. (1) (2) of the Civil Code – the abusive breaking off of the engagement and culpably causing the engagement to break off, providing in support of theorists and practitioners a series of original concepts of understanding and interpretation.

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Theoretical and practical considerations regarding the dissolution of adoption

Consideraţii teoretice şi practice cu privire la desfacerea adopţiei

Author(s): Oana Ghiţă / Language(s): Romanian / Issue: 7/2021

Keywords: adoption; dissolution; best interests of the minor; criminal acts;

This study aims to analyze an "exceptional" regulation in the sense of strict interpretation and application: adoption dissolution. Starting from this idea and the limited jurisprudence of the courts, in the matter of dissolving the adoption, we found that the judge has an extended and difficult task in interpreting art. 477 and art. 478 of the Civil Code, perhaps more than it should have been necessary to establish or frame a state of affairs in the hypothesis of the text of the law. It is specific to the jurisdictional act in matters of family relations. I firstly set out the dissolving of the adoption of the law and then the judicial dissolving of the adoption at the request of the adopter or the adopted, especially to regard to the best interests of the minor. This principle could be extrapolated to the elderly, defenseless and lack of vivacity to the adult adoptee.

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The impact of the UN Convention on the Rights of Persons with Disabilities on marriage (with a view to amending the Civil Code)

Impactul Convenţiei ONU privind drepturile persoanelor cu dizabilităţi asupra căsătoriei (în perspectiva modificării Codului civil)

Author(s): Marieta Avram / Language(s): Romanian / Issue: 3-4/2021

Keywords: marriage; mentally alienated and mentally retarded; capacity; discernment; nullity; consent; equality; discrimination; guardianship; guardianship; vulnerable adult; mentally disabled person;

Almost 10 years after the entry into force of the Civil Code (1 October 2011), there were no signs of deep tectonic shifts in the area of persons that could shake the regulation of traditional institutions. However, following the unpredictable Decision No 601/2020, by which the Constitutional Court found unconstitutional Article 164 para. (1) of the Civil Code, the legislator is obliged to carry out a wide-ranging reform of the regulation on the legal protection of adults with mental disabilities. The old institution of guardianship, as a substitute measure of protection, applicable in the case of the mentally alienated and the mentally retarded has proved inadequate to the requirements of the UN Convention on the Rights of Persons with Disabilities. But the impact of this Convention does not stop at Book I of the Civil Code. Book II, “On the Family”, is equally targeted. The impediment to marriage consisting of mental alienation and mental debility, provided for in Article 276 of the Civil Code. (previously Art. 9 C. fam.), appears to be a special discriminatory incapacity, given that Article 23(1)(a) of the Convention proclaims the recognition of the right of all persons with disabilities who are of marriageable age to found a family on the basis of the free and full consent of the future spouses. This study aims to examine the controversial issue of marriage for people with intellectual disabilities: can these people enter into a marriage? under what conditions? what penalties apply if the marriage is not based on the full and free consent of the future spouses? Also, with a view to the wide-ranging amendment of the Civil Code, the solutions for the conclusion of marriage contained in the draft law drawn up by the Ministry of Justice are analysed, and some proposals are made to improve the legislative vision and texts.

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Liquidation of the matrimonial regime. Applicability of simulation. Notarial practice

Lichidarea regimului matrimonial. Incidenţa simulaţiei. Practică notarială

Author(s): Flavius Antoniu Baias,Flavius Alexandru Boar / Language(s): Romanian / Issue: 1/2022

Keywords: simulation; matrimonial regime; liquidation act; personal property; community of property;

The spouses or their heirs are frequently interested in clarifying their property relations by way of agreements, prior or concomitant with the termination of the matrimonial regime. Such agreements may occur at any time between the spouses or their heirs and are intended to prevent the uncertainties arising in judicial partitions. They take place especially at the liquidation of the matrimonial regime. This is because since the time of the Family Code, the context of the matrimonial regime has required to take into account the agreements regarding the contribution of the spouses, their personal and common property, as well as any reciprocal claims arising from their property relations. In the context of such agreements, the dilemma that sometimes arises is whether or not the statements given by the parties are true because, in the latter case, it is necessary to ascertain the effects of the lie. The text below analyzes the incidence of the simulation in the exemplified situations and verifies in particular if the respective agreements reflect a simulation of the matrimonial convention, regulated in the provisions of art. 331 of the Romanian Civil Code. A reasoned conclusion in this context also involves exploring the nature of the act through which the matrimonial regime is liquidated in Romanian law. Indeed, any matrimonial agreement, whether simulated or unsimulated, is concluded in anticipation of the conditions under which the liquidation of the matrimonial regime will take place, upon its termination or modification.

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Considerations regarding the legal maintenance obligation between parents and children

Consideraţii privind obligaţia legală de întreţinere dintre părinţi şi copii

Author(s): Cristian Mareş / Language(s): Romanian / Issue: 1/2022

Keywords: the legal maintenance obligation; parent; child; forced execution; the expenses incurred with the maintenance of a child;

The present study examines several important aspects of the legal maintenance obligation between parents and children, such as the applicant for the forced execution of the legal obligation to support a child and the individual creditor who is a party to a dispute concerning the challenge to the forced execution filed by the debtor of the legal maintenance obligation, the expenses incurred with the maintenance of a child that can be considered as part of the legal maintenance obligation, the amounts of money that can be forced executed for the legal maintenance obligation between parents and children and the solutions that can be rendered by the guardianship court. The research consists in the analysis of the legal provisions applicable to these issues both from theoretical and practical perspectives.

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Invitation to Read. Review on “A Family for Europe, A Europe of Families?”

Invitation to Read. Review on “A Family for Europe, A Europe of Families?”

Author(s): Dan Andrei Popescu / Language(s): English / Issue: 3-4/2022

Keywords: Emese Florian; A family for Europe; Europe of families;

The title of the volume is suggestive: "A family for Europe, a Europe of families?". There is no doubt that the concept and contours of family relationships have changed a great deal in recent times. The case law of the ECHR and of the Court of Justice in Luxembourg (CJEU) has contributed greatly to these changes. But despite these changes, tradition has managed to maintain itself, trying to survive and live in harmony with the new. Has it succeeded? The work contains a total of 43 articles in which the authors deal with different topics dedicated to family relationships and topics that are closely related to family relationships. We dedicate this tribute volume to our colleague, PhD Univ. Prof. Emese Florian, as a sign of recognition and appreciation for his entire teaching and scientific activity at the Law School of "Babeș-Bolyai" University, for more than thirty years. The Laudatio presented in this issue of the magazine can be found in the first 5 pages of the Romanian version of the book.

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Essay on the remedies of the creditor injured by family law acts and actions. Recognition of the private legal person as the holder of legal actions specific to family law

Eseu cu privire la remediile creditorului prejudiciat prin acte şi acţiuni de dreptul familiei. Recunoaşterea persoanei juridice de drept privat ca titular al acţiunilor în justiţie specifice dreptului familiei

Author(s): Alin-Ioan Axente / Language(s): Romanian / Issue: 01/2023

Keywords: family law; creditors; marriage; maintenance obligation; matrimonial agreement; partition; divorce; derivative action; revocatory action; simulation;

The family law institutions have evolved in the Romanian legislation towards a reconfiguration determined by contractual influences. The diminishment of the role of the courts and the increasing importance of the agreement between family members in the configuration of their patrimonial relations has opened the way for the instrumentalization of the family law institutions (marriage, matrimonial agreement, divorce, lineage, legal maintenance obligation) and their hijacking towards ends that are prejudicial for some of the creditors of one or several members of a family. The current legal provisions regulate several remedies that are accessible for third parties. However, in many cases, these remedies prove themselves inefficient either due to a poor legislative process, or due to a lack of foresight of a fair balance between the concurring interests. In any case, the current legal context lets us conclude that family law is no longer an exclusive territory of individuals and that legal persons may claim the title of beneficiaries of family law regulations.

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