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Minors’ medical secrecy or confidentiality is a topic faced especially by health care professionals in current medical practice. The conflict raises between two different physician’s obligations toward the patient’s confidentiality and informed consent. The informed consent procedures imply always the involvement of minors’ parents/legal representatives. In particular cases when the minor claims, explicitly the right to confidentiality and the doctor consider that this is for guaranteeing the best interest of the minor the parents should not be informed about the minor condition. But, if the minor needs a specific treatment or intervention, the doctor cannot proceed without having the consent of parents. Therefore, how to prioritize and harmonize these two conflicting obligations? This paper illustrates some particular situations when the exercise of parental authority seems not to be the best choice for a minor medical condition.
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Just like any other respectable institution in the legal field, the divorce by mutual consent has its origins in the Antiquity. With the present study we aimed to highlight the characteristics of divorce in general and of the divorce by mutual consent in particular from a time perspective, considering the stages of the society evolution. Therefore, the journey begins in the Antiquity, continues with the period of legal codes and significant changes brought by the entry into force of the Civil Code of 1864, as well as those of the Family Code and its amending laws and ends with a new perspective of divorce as it was conceived by the legislator of the 2009 Civil Code. The essential aspects presented are related to the comparative view of the divorce institution from a historical legal perspective, with elements of comparative law and jurisprudence, which form before the eyes of the reader an evolutionary image of the institution and provide a clarification of the current legislation.
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The regulation of a protection mechanism that corresponds in terms ratione temporis to the preventive conduct necessary to combat domestic violence was indeed vital, inherent in the phenomenon. The long awaited provisional protection order, at first sight, benefiting from a strong publicity offered by the media, seems to be a quick tool, the figures provided by the General Inspectorate of the Romanian Police emphasizing efficiency. It remains to be seen whether the opportunity exam is passed or not, because, beyond the press conferences, articles, and statistics, from our point of view, the norm really suffers in terms of competence.
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In the Spanish legal system, as in most Western countries, the so called compensatory pension has been established, being one of the legal consequences of economic marital breakdowns, which involves the payment by a spouse to the another a fixed or periodic amount, for a specified time or for life. It is not a maintenance pension, since what this pension requires is that the ineffectiveness of the marriage generates an economic imbalance in one of the spouses who are supposed to suffer from a situation of inferiority with respect to the level they enjoyed while they were married. It is specified that the pension be requested by one of the spouses, or by one of them with the consent of the other, during the judicial process of separation or divorce, if it has a contentious nature, or also, agreed by both in any of the other forms of rupture by mutual agreement, through the courts or notaries. The figure has undergone constant modifications in Spain, both in legal and jurisprudential ways, taking into account that the Courts of Justice have been adapting the legislation established in 1981, which has resulted in recent legislative alterations that give the figure of older dose of justice and equity. In the early days, when in marriages celebrated one of the spouses was the one who used to contribute the economic amounts and the other was dedicated to domestic tasks, the compensatory pension was established, usually for life. However, the incorporation of women into the world of work and the shorter duration of marriages have introduced changes that usually assign a temporary nature to the compensatory pension or it is a lump sum.
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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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The maintenance obligation, as it was and is regulated today, falls within the Romanian legal landscape, either in the branch of private – civil law – or public – criminal law. This study made an incursion in the matter of the maintenance obligation when the beneficiary is a child, in case of separation of their parents or divorce. The date from which the maintenance obligation is established, its amount, the beneficiaries, debtors, execution modality and sanction in case of non execution are just some of the elements analysed from a theoretical and practical, notarial and judicial perspective. At the same time, the possible criminal implications caused by the non fulfilment of the civil obligation, along with some aspects regarding the crime of family abandonment, are presented in this study.
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Although family relationships are supposed to be built on grounds of common interests of the adults and the minors, we often see that the state’s intervention is requested by firm and specific measures in an extremely sensitive sector. Things can become even more sensitive when it comes to relationships between the extended family and the minor child. Under the circumstances of celebrating 10 years since the enforcement of the new Civil Code, we have identified severe gaps when it comes to regulating the grandparents’ rights in relation to their minor grandchildren. In spite of the fact that the Romanian positive law does not include a specific legal order to regulate the grandparents’ right to have personal connections with their minor grandchildren, the interpretation of the general legal orders regulating the children’s rights reveals the legislative conception regarding the protection of the family in a broad meaning, which led to the conclusion that the grandparents also enjoy the right to have personal connections with their grandchildren, the courts of law having a unitary practice in this regard. The main restriction on the exercise of these rights is the first principle in the area of the child’s rights: the principle of the child’s best interest.
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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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The procedural evidence is essential for the search for the truth, but it has its ethical and legal limitations, which can yield more relevant values, such as certain family rights. The function of the procedural evidence is to provide the judge with the elements and arguments of his decision, removing doubts and concerns from him, so that he can conclude with conviction and security. This article deals with the legality of the illicit evidence in family law, where the principles of the weighting of rights are superimposed on values that become insignificant rights in front of the values of the family that is the basis of any and all society.
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This study examines some theoretical and practical issues related to some effects of divorce regarding the pecuniary and non pecuniary relationships between spouses that raise some debates in the doctrine, such as the date of the marriage dissolution, the termination of the matrimonial regime, the judgement of the divorce claim in case the claimant dies during the trial and the solutions that can be rendered by the custody 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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Divided into two parts, the present paper begins with a comprehensive insight into the institution of international adoption, which despite being an alternative solution to domestic adoption, still appeals to a small group of people. The second part of the article focuses on the international adoption by the LGBT+ persons or same sex couples. The international adoption of a child with the main residence in Romania by a person/family with the main residence in a different country can only be carried out if the child is registered with the National Authority for the Rights of Persons with Disabilities, Children and Adoptions and only in the following cases: the adoptive person or either spouse of the adoptive family are relatives within the fourth degree of kinship with the child that the adoption proceeding has been approved for, the adoptive person or either spouse of the adoptive family also has Romanian citizenship, the adoptive person is spouse of the birth parent of the child in question. This part of the paper particularly approaches the adoption requirements and special proceedings (preliminary proceedings, assessment/certification, initiation of the international adoption process, matching between the child and adoptive person/family, consent to international adoption, effects of international adoption, post adoption monitoring and even some sanctions). Moreover, another key element in international adoption is an adopted child’s right to be informed about the adoption, stipulated even by the European Human Rights Court which holds that every child has the right to know his origins, a right that derives from the notion of private life. According to Article 462 para. (3) of the Romanian Civil Code, the adoption of children by same sex persons is banned in Romania. Under the current legislation, two persons can adopt a child simultaneously or successively only in case they are spouses. The adoption of children by same sex persons has become an international legal and ethical challenge. When it comes to Romania, the debate could even be regarded as an act of bravery considering the recent referendum on a new definition of marriage to be used by the Constitution. On the other hand, even in conservative countries, lately there has been a growing interest in the rights of LGBT+ persons in general, and their right to become parents in particular. Since the Recommendation of the Committee of Ministers of 2010, in Europe more and more countries have been authorizing joint adoptions (from 8 to 17 states) and adoptions by the second parent (from 11 to 18 states) for LGBT+ persons, considering that in 2021 Europe was declared an “LGBTIQ free zone”. In the report of 2011, the Commissioner for Human Rights of the Council of Europe recommended the European countries to grant the same sex couples the same adoption rights and benefits as to the other couples, so that adoption also becomes an option for LGBT+ persons. The European Court of Human Rights held that the institution of marriage is meant “to offer a family to a child, not a child to a family”; therefore, in case the best interest of the child contradicts the interests of the adoptive persons, the best interest of the child shall prevail. In many decisions emphasized within the present paper, the Court has considered that the sentences which denied adoption to same sex couples contravened the provisions of the Convention and that sexual orientation should never become a decisive criterion in rejecting an adoption application. The last part of the paper highlights conclusions extracted from various studies which analyze the effects of child upbringing by same sex persons or couples, along with pros and cons of this form of adoption.
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The exercise of parental authority exclusively by one of the parents should represent in our legal system an exception from the rule according to which the exercise of parental authority belongs to both parents. Nevertheless, in practice, the exception tends to become the rule. An increasing number of judicial claims, having as the main or secondary object the exclusive exercise of parental authority, are being registered on courts dockets, and in those claims a series of “motifs”, that tend to be considered sound for lending to such a “sanction”, are being alleged. It is true that the legislator exemplifies certain behaviors that can be categorized motifs that may lead to the exclusive exercise of parental authority, but those should not automatically lead to such a solution. Instead, the factual circumstances should be reported to the child’s best interests in order to establish to what point the exclusive exercise of parental authority is proportional with the alleged and proven motif or motifs by considering the child’s best interests. In the present paper, after a short introductory section in which we have presented the evolution of child’s protection form “parental power” to “parental authority”, our attention focuses on the legislator’s optic on coparenting, underlining its tendency to parental accountability. Later, in order to clear the significance of the phrase “sound motifs” used by the Article 398 Civil Code, we have analyzed the motifs provided as examples by the legislator in Article 36 par. (7) of Law no. 272/2004, in order to bring some necessary clarifications. Finally, the scope of the paper is to underline the fact that in order to state the exclusive exercise of parental authority, a reasonable proportionality should exist between the parental authority exclusively exercised by one of the parents, as mean of ensuring the safeguard of the child’s best interests, and the protection of the person, in order to avoid an excessive burden on the minor.
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In the present paper, divided into two parts, we set out to make a brief foray into the fascinating and complex issue of fault based divorce, aiming to bring some clarifications to the concept, especially from the perspective of the logical legal syllogism it implies and the particularities that characterize it. Thus, in the first part, after a brief review of some general aspects related to the institution of marriage and the ways of its dissolution, including the forms of divorce, our attention focused on the divorce based on fault, where we have tried to underline the conditions that need to be met in order to terminate marriage on this basis and to set some necessary delimitations. Subsequently, some particularities of the judicial claim and the counterclaim were analyzed, with emphasis on the impact that the condition of fault has on them. The second part of the paper deals exclusively with the issue of fault and tries to identify the hypotheses in which fault can be retained, to draw some delimitations of the concept of fault in divorce and to make small distinctions between exclusive and common fault.
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Post mortem in vitro fertilization has become an increasingly widespread procreation procedure in the world. Is this procedure legal? What are the legal implications? From the point of view of our research, we referred to two aspects: the first concerns in vitro fertilization (IVF), and the second the possibility of posthumous sperm recovery (PSR). The legal, ethical, religious issues and social implications in these cases are extremely important, which is why they are still hotly debated today. What would be the social and legal status of the future child? What rights does the future child have in relation to the other family members? In this approach we tried to give some answers and we made some suggestions for implementation in the Romanian legislation.
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In certain legal situations, the junction between the family law provisions and other civil law regulations can be an interesting field of study, allowing studies concerning the utility and the efficiency of the legal solutions that are provided. The real estate accession can be applied between spouses, with certain amendments. It is possible that a spouse would build upon the land that is the property of the community or of the other spouse, case in which the property right concerning the building depends on the existence of an agreement between the spouses, or on the real estate accession rules, in case no such agreement exists. Also, it is possible that certain improvements are added to a preexisting building, case in which it is debatable if this operation may lead to a change in ownership regarding the building.
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