EDUCAȚIE ȘI CREATIVITATE SOCIETATE BAZATĂ PE CUNOAȘTERE · ȘtiinȚe sociale, politice &...
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Transcript of EDUCAȚIE ȘI CREATIVITATE SOCIETATE BAZATĂ PE CUNOAȘTERE · ȘtiinȚe sociale, politice &...
ȘTIINȚE SOCIALE,POLITICE & UMANISTE
SOCIAL, POLITICAL & HUMANISTIC SCIENCES
MEDICINĂ, MEDICINĂDENTARĂ & FARMACIE
MEDICINE, DENTAL MEDICINE & PHARMACY
ȘTIINȚE ECONOMICEECONOMIC SCIENCESDREPTLAW
EDIȚIA A XI-AXITH EDITION
Conferința Internațională
EDUCAȚIE ȘI CREATIVITATEPENTRU O SOCIETATE BAZATĂ PE CUNOAȘTERE
The International Conference
EDUCATION AND CREATIVITYFOR A KNOWLEDGE-BASED SOCIETY
UNIVERSITATEA TITU MAIORESCU DIN BUCUREȘTIMINISTERUL EDUCAȚIEI NAȚIONALE
Referenţi ştiinţifici / Reviewers:
Smaranda Angheni
Iosif R. Urs
Felicia Maxim
©
Universitatea Titu Maiorescu
ISSN 2248-0064
Osterreichish Rumanischer Akademischer Verein, 2017
ISBN 978-3-9503145-3-3
Bun de tipar / Signature for the press: 15.12.2017
Format: 21/29,7×100
Responsibility for content and originality of the text rests solely the author / the authors
Răspunderea pentru conţinutul şi originalitatea textului revine exclusiv autorului/autorilor
Descrierea CIP / Description of CIP –
Biblioteca Naţională a României
Conferinţa Internaţională Educaţie şi Creativitate pentru o
Societate Bazată pe Cunoaştere - DREPT, Bucureşti, Universitatea
Titu Maiorescu, 2017
ISSN 2248-0064
Österreichische Nationalbibliothek Wien
The International Conference Education and Creativity for a
Knowledge – based Society – LAW, Vienna, Osterreichish
Rumanischer Akademischer Verein, 20167
ISBN 978-3-9503145-3-3
177 p.; 21 cm.
3
CONTENT
GENERAL CONSIDERATIONS ON THE CONTRACT AS THE MAIN SOURCE OF
LEGAL LIABILITY BETWEEN TRADERS, Smaranda ANGHENI……………………... 5
SECURITY MEASURES FOR PROTECTING PERSONAL DATA, Valentin PAU,
Luminiţa COPACI…………………………………………………………………………... 9
THE ROLE OF THE GOVERNMENT IN THE DEVELOPMENT, ENDORSEMENT
AND ADOPTION OF NORMATIVE ACTS, Tudorel TOADER, Marieta SAFTA………. 17
SOME CONSIDERATIONS OF THE POSSIBILITY TO APPLY THE ARBITRAL
PROCEDURE IN MATTERS RELATED TO EXTRADITION AND THE EUROPEAN
ARREST WARRANT, Alexandru BOROI, Gina NEGRUŢ………………………………. 23
THE LEGAL DIMENSION OF THE CONCEALMENT OFFENCE, Alexandru BOROI,
Iulia NISTOR………………………………………………………………………………... 28
DIGITAL INHERITANCE: PROBLEMS, CASES AND SOLUTIONS,
Ana-Caterina ANIȚEI………………………………………………………………………. 32
THE ANALYSIS OF LEGAL CONTENT OF THE SIMPLE CONTRABAND CRIME,
Mihai Florentin BĂRĂSCU………………………………………………………………… 40
ASYLUM PROCEDURE IN ROMANIA. SCOPE, PROCEDURAL PRINCIPLES AND
GUARANTEES, Diana BOROI…………………………………………………………….. 45
ANOHTER MEANING OF THE PHRASE “IN CASE OF COHABITATION” OF LAW
NO. 217/2003 ON THE PREVENTION AND COMBATING OF DOMESTIC
VIOLENCE, Rodica BURDUŞEL………………………………………………………….. 48
REFLECTIONS ON THE APPLICATION OF THE PRINCIPLE OF AVAILABILITY IN
THE ORDINARY CIVIL PROCEDURE AND THE ARBITRATION PROCEDURE,
Daniel-Cătălin CHIFOR…………………………………………………………………….. 53
CRIMES RELATED TO LEVIES AND TAXES, Roxana CHIRIEAC…………………… 58
THE LEGISLATIVE EVOLUTION OF DIVORCE IN THE ROMANIAN LAW,
Tania-Cătălina COADĂ…………………………………………………………………….. 63
CIVIL LIABILITY FOR DAMAGES CAUSED BY A DEFECTIVE PRODUCT,
Diana Nicoleta DEACONU DASCĂLU……………………………………………………. 68
TRANSNATIONAL CORRUPTION, Stelorian DOBRE………………………………….. 73
CONCEPTS OF INSOLVENT AND INSOLVENCY IN THE PERSPECTIVE OF LAW
151/2015 ON THE BANKRUPTCY OF INDIVIDUALS, Cristian DRĂGHICI………….. 76
THE RISKS OF A BORROWING AGREEMENT IN A FOREIGN CURRENCY FROM
THE PERSPECTIVE OF JURISPRUDENCE OF THE COURT OF JUSTICE OF THE
EUROPEAN UNION, Ioana Claudia FLOREA……………………………………………. 83
THE EUROPEAN CERTIFICATE OF SUCCESSION (ECS), Dumitru FLORESCU……. 90
THE ROLE OF STANDARDIZED FIDIC CONTRACTS IN THE PROCESS OF
CONSTRUCTION MARKET GLOBALIZATION, Oana Ruxandra GHERGHINA……... 93
ASPECTS REGARDING DIVORCE RECOGNITION BY UNILATERAL DONATION,
Camelia IORDAN…………………………………………………………………………... 99
CONSIDERATIONS ON PRECIPICE CLAUSE, Anica MERIŞESCU…………………... 105
THE FEATURES OF INFORMING PSYCHIATRIC PATIENTS,
Ana-Maria MIHĂLCESCU, Lidia NICA-UDANGIU……………………………………… 109
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SOME CONSIDERATIONS OF THE INDIVIDUALISATION OF PENALTIES IN
CASE OF GENDER-BASED CRIME, Oana NECULĂIŢĂ………………………………. 112
SOME CONSIDERATIONS OF THE NEED TO TRANSPOSE THE DIRECTIVE
2014/42/EU ON THE FREEZING AND CONFISCATION OF INSTRUMENTALITIES
AND PROCEEDS OF CRIME IN THE EUROPEAN UNION IN THE PROVISIONS OF
ARTICLE 112 OF THE CRIMINAL CODE, Gina NEGRUŢ, George DOCA……………. 117
RELIGION: A SUPREME SOCIO-LEGAL VALUE IN THE EUROPEAN UNION,
Mihail NIEMESCH…………………………………………………………………………. 124
THE SCOPE OF THE INSOLVENCY LAW FOR NATURAL PERSONS. THE
DEBTOR’S APPLICATION TO OPEN THE INSOLVENCY PROCEEDINGS BASED
ON A PAYMENT PLAN, Carmen PĂLĂCEAN…………………………………………... 129
THE ESTABLISHMENT OF FILIATION IN THE CASE OF ASSISTED
REPRODUCTIVE TECHNOLOGY, Nicoleta-Ramona PREDESCU……………………... 135
THE CONCEPT OF CRIME IN EUROPEAN DOCTRINE, Constantin SIMA…………... 140
THE CONCEPT OF CRIME – TYPOLOGIES AND MODERN THEORIES
PERSPECTIVES, Adriana Iuliana STANCU………………………………………………. 145
THE LEGAL CONSEQUENCES OF EVICTION RESULTING FROM THE DEEDS OF
A THIRD PARTY TO A SALE CONTRACT, Veronica STOICA, Elena RADA................ 151
PARLIAMENTARY IMMUNITY. THEORETICAL AND PRACTICAL ASPECTS,
Titi SULTAN………………………………………………………………………………... 157
RIGHT TO LIFE. PROTECTION OF THE UNBORN CHILD, Simona ElenaTAŞCU....... 164
THE DIMENSION AND DEVELOPMENT OF LAW AND JUSTICE IN
CONTEMPORARY ERA, Mircea TUTUNARU, Romulus MOREGA…………………… 168
THE SUSPENSION OF THE EXECUTION OF THE G.M.A.’S DECISION
STIPULATED BY ARTICLE 133 OF THE LAW NO. 31/1991, Petre Andrei ȚÂRU…… 174
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GENERAL CONSIDERATIONS ON THE CONTRACT AS THE MAIN SOURCE
OF LEGAL LIABILITY BETWEEN TRADERS
Prof. Smaranda ANGHENI, PhD. – Titu Maioescu University
Abstract
When talking about the relations between traders, the free will of the parties is expressed both in the
manner in which the content of the agreement is established, and in the form the consent takes, as an essential
element of the will to contract.
The basic principles of closing, carrying out and ending an agreement are the same, as the Civil Code
states, no matter the object of the contract or the parties reaching an agreement.
Nevertheless, there are a few principles which are outlined, thus becoming more obvious when traders are
involved, or at least one party is a trader, and we could name: the principle of goodwill when negotiating, the
principle of maintaining a balance between the provisions of the parties, the solidarity within the contract, the
principle of collaboration between the contracting parties, etc.
Key words
Agreement, trader, goodwill, solidarity, balance between the parties’ rights and obligations, collaboration
While performing their economic activities, traders reach a series of legal agreements or perform some
legal deeds, which create, modify or end legal rights and obligations.
Similarly to the civil law, legal deeds or actions may be defined lato sensu, meaning in a broad sense,
including the events, the situations that occur independently to the will of the parties, as well as the human
actions, performed under the intention of having legal effects (legal acts), or without the intention of leading to
legal effects, but having legal effects under the law.
The latter represent the content of the legal deeds stricto sensu, in a less broad sense, and these actions may
be lawful (licit) – business management, undue payment, unjust enrichment – or unlawful (illicit) actions which
lead to civil liability in tort.
Within the economic relations among traders, legal deeds and agreements may be one-sided, bilateral or
multi-sided.
Hence, the law considers the following as one-sided legal deeds: the issuing of a promissory note, the
agreement to represent a party within a legal relation, the offer to reach an agreement, founding a limited liability
company with only one share-holder, etc.
The most frequent legal agreements performed by traders are unilateral (one-sided) agreements or bilateral
(mutual) agreements, for consideration (risk free or subject to risk, uncertain). Most contracts are for
consideration, each party aims a certain patrimonial, financial benefit or advantage. Seldom one can find benefit-
free agreements between traders, with or without affecting one’s own patrimony.
Legal obligations can be caused by legal acts or deeds.
Among all the sources of a legal obligation, the contract (the legal agreement) is the most important one.
Even though one can easily find numerous similarities between the agreements performed by non-professional
and professional traders, including the obligations, there are also some undeniable differences the legislator
considers exceptions and emphasizes by using the expressions “within the relations between traders” (art.no
1233 of the Civil Code) or “during the performance of a trading activity” (art.no 1523, par. (1) letter d) of the
Civil Code).
Searching the works published before the Civil Code was issued and came into force, the subject of the
traders’ obligations was approached either under the chapter named “The General Theory of Traders’
Obligations”, or “Special Provisions Regarding the Establishment and the Execution of Traders’ Obligations”.
By forsaking the duality of the private law, once the new Civil Code came into force, the monist theory was
adopted and the Commercial Code was abolished, and, at the same time the provisions emphasizing the special
features of the traders’ obligations were repealed.
Moreover, the moment the new Code of Civil Procedure came into effect, the provisions of the Commercial
Code regarding the probation of the trader’s obligations were abolished.
In our opinion, the subject of the traders’ obligations might be thoroughly assessed by analysing the general
provisions of the Civil Code and also the special laws, such as Law no.193/2000, modified, on the unfair terms
within the agreements between professional traders and consumers.
The special provisions one can find within the Civil Code highlight the particularities or the special traits of
the traders’ obligations, which concern the rise, the execution and the end of the obligations.
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By assessing the provisions of the Civil Code, one can find a few basic principles governing the contract as
a legal institution, and more specifically those concerning the agreements between traders. More precisely, we
find that, even though the basic principles of closing, executing and ending an agreement are the same, no matter
the object of the contract or the parties reaching the agreement, still some of these principles are more obvious
when it comes to the agreements between traders. For example, the principle of goodwill when negotiating, the
principle of keeping a balance between the provisions of the parties, the principle of solidarity, the collaboration
between the parties, etc. Some of these principles can be seen directly in the way the obligations are carried out,
for example the principle of goodwill the parties show while negotiating prior to the signing of the contract is
visible in the obligation to inform that each party has, to inform the other party on the final terms and
conditions of the agreement, on the data concerning the parties, and, last but not least, on the quality of the goods
or the services rendered under the contract in question
The principle of free will under an agreement. Basically, closing any deal, reaching any agreement happens
on the parties’ own free will, and, more than that, the parties establish the terms of the agreement when all the
parties freely agree on each term.
The principle of free will that has to govern the establishment of any agreement has its origin in the
definition of the contract the legislator makes within art.no 1166 of the Civil Code, which states that: “The
contract represents the meeting of two or more parties freely willing to establish, modify or end a legal relation”.
The freedom to reach an agreement is emphasized within art.no 1169 of the Civil Code, according to which
“the parties are free and have the right to reach any contract and to agree on any terms within the limits imposed
by the law, the public order and morals.”
This legal provision leads to some conclusions, firstly two sides, two dimensions of the principle of free
will when reaching an agreement, namely: the parties are free to show their intent to contract and to reach an
agreement, and secondly their rights to establish the content, each term of the contract.
Both sides of this principle of free will mentioned above are based on an independent will, and this base,
throughout the history of judicial and philosophical doctrine, has taken many shapes and defined in many ways,
up to the theory which states the decline of the free will, consequently to the idea that some contracts are
mandatory, under certain imperative, public, mandatory norms, consequently to the establishment of the
adhesion contracts (standard form contracts) where the parties may not choose or modify the terms, consequently
to the extension of the term „public order”, given the need to protect the consumers and other types of
professionals, etc.
One modern theory is based on and is intricately connected to the idea of the contractual solidarity, which
can easily be considered an important principle, and this idea created by the French legal system has been
adopted by the Romanian law and by the legislator within the new Civil Law. This theory, which is a principle at
the same time, is based on the realities supporting the agreement, firstly the interest that each party has to reach
an agreement. In order to achieve its goal, each party has to actually take into consideration a „common
goal/interest”, which leads to a mutual dependency between the performances/benefits of the parties. This
mutual dependency of the parties’ obligations determines the necessity of maintaining a „contractual balance”,
and this balance is aimed by the judge when asked to solve a case where one party is favoured. For example, the
intervention of the court where a penal, obviously excessive, clause, surpassing the prejudice one could have
anticipated when reaching the agreement, may diminish the amount of the penalties [art.no 1541 paragraph (1)
letter b) of the Civil Code] or change (adapt) the contract in the case of a hardship clause [art.no 1271 paragraph
(2) letter a) of the Civil Code].
Hence, the principle of the contractual solidarity leads to the establishment of other principles, namely the
principle of preserving the balance within an agreement, and the principle of proportionality, as well as the
principle of coherence within a contract. Nevertheless, the principle of free will together with the principle of
goodwill should govern the reaching, the execution and the end of a contract, as they are firmly stated by the
legislator within the art.no 1169 and 1170 of the Civil Code, and are expressed throughout the entire agreement.
The free will, in a legal sense, should be used, though, within the general legal limits. These limits are
generally framed within art.no 11 of the Civil Code, which states: „there will be no exemptions by conventions
or unilateral agreements from the laws governing public order or morals”, 1169, corroborated with art.no 1236
paragraph (2) and (3) of the Civil Code.
The principle of free will within a contract should be taken in consideration in conjunction with the
principle of mandatory enforcement of the agreement, clearly stated within art.no 1270 paragraph (1) of the Civil
Code as follows: “a valid contract or agreement constitutes law between the parties, as it has the same force”,
which implies, on the one hand, that in order to be valid and legally binding, an agreement has to abide by the
public order and the morals, and, on the other hand, at the time the contract is perfected it has to comply with the
validity terms stipulated by art.no 1179 of the Civil Code (the legal capacity to enter into binding contracts, the
consent of the parties, a clear and legal subject of the agreement), and, in some cases, the form required by the
law.
Basically, if the parties comply with the provisions of art.no 1169 and 1179 of the Civil Code, the
agreement is lawful and mandatory between the parties.
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The limits the principle of free will has to face, namely the public order and the morals, are defined as
follows:
a) the legal public order is, basically, the public law, namely the legal provisions belonging to different
branches of public law: the constitutional law, the administration law, the tax (fiscal) law, penal law, etc, and is
founded on the need to protect the general interests of society, and, implicitly, the community rights.
For these reasons, when it comes to the public law, the state and the public authorities are the main
participating parties, and the most important regulation is that a “private person”, more precisely its will, is
subordinated to the state, thus having a lower position, and, secondly, the norms are mandatory.
b) The public order, as far as the law is concerned, is determined, when it comes to an agreement, by the
rules of economy, and a very good example are the rules regarding the competition, the rules regarding the
consumer rights, etc., and we should not forget the European norms which form a legal system regarding public
order within the European Community.
c) Morals actually refer to a conduct code that is to be complied with, and, regarding an agreement, abiding
the morals means that the subject of the contract should not bring any prejudice to the person’s dignity or cause
any physical damage, or violate the provisions of art.no 58 of the Civil Code.
The penalty in the case of violation of public order and morals is either the absolute nullity of the contract
(agreement), or the relative nullity, when the economic rules are violated, or the respective terms of the
agreement are considered “unwritten” (implicit).
In conclusion, free will should and must be expressed both within a legal frame and within an ethical frame,
even though these norms do not have the form required by the law in order to become mandatory.
Within the relations between traders, the free will of the parties comes to light when establishing the
content of the agreement and also the form in which the consent is manifested, as a key element of any
agreement.
Hence, regarding the content, the contracting parties may establish terms and conditions which exempt the
common law, such as:
– the clause regarding the means of proof, exceeding the general provisions, meaning any means of proof is
acceptable (accepted invoices, mail, traders’ registers or witnesses) within the legal limits (The Code of Civil
Procedure);
– the loyalty or confidentiality terms, particularly used when it comes to producing, trading or distributing a
good, or in the case of service render. This clause may also be named a non-compete clause, etc;
– the exclusivity clause, used when distributing goods, technology or know-how etc.;
– the clause stating the solving of any disputes through arbitration, also known as the “arbitration clause”.
The free will of the parties has certain particularities when traders are involved, in the way the consent of
the parties takes shape and comes to light
A valid agreement has a written form in order to be lawful, one document, a written offer followed by the
acceptance of the offer, or the execution of the contract, and we can also find other particular means to conclude
legal operations, for example: mail (letters), telex network, fax, telephone, invoice.
The principle of speedy operations implies the existence and acceptance of simplified forms of agreement
when it comes to traders, and these simplified agreements show in an obvious way the will of the parties to reach
an agreement.
Conclusions
When talking about the legal relations traders develop, the agreement (the contract) is the main source of
obligations and, due to the particular traits of the trading business, these agreements also have special features,
namely the general principles governing businesses, such as: goodwill, the obligation to inform on each
participating party, the solidarity, the balance within the contract, etc
Refferences
1. R. Petrescu, General Theory on Traders’ Obligations, Ed. Oscar Print, Bucharest, 1994;
2. D.D. Gerota, General Theory on Traders’ Obligations, National Printing Office Bucharest, 1932;
3. I.L. Georgescu, Romanian Trade Law, General Theory on Traders’ Obligations. Means of Proof. The Sale
Agreement Between Traders, revised, completed and updated by I. Băcanu, Ed. Lumina Lex, Bucharest, 1994;
4. St.D. Cărpenaru, Treaty on Trade Law, Ed. Universul Juridic, 2009;
5. I.Fl. Popa, S.I. Vidu, The Base of the Civil Law. Obligations, Ed. Universul juridic, 2012;
6. A.S. Courdier-Cuisinier, Le solidarisme contractuel, Ed. Lexis-Nexis, Litec, 2006;
7. Terré, Ph. Simler, Y. Lequettq, Droit civil. Les obligations, 8e, ed., Ed. Dallaz, 2002;
8. L. Pop, The Execution of the Contract under the Principle of Solidarity, Dreptul (Law Journal) no. 7/2011;
9. D. Alexandresco, The Principles of the Romanian Civil Law, vol. I, Atelierele grafice Socec & co, Bucharest,
1926;
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10 C. Hamangiu, I. Rosetti – Bălănescu, Al. Băicoianu, Treaty of Romanian Civil Law, vol. II, Editura All,
Bucharest;
11. P. Maulaurie, L. Aynes. P. Stoffel Munck, Civil Law, Ed. Volters Kluwer, Bucharest, 2009;
12. I. Albu, Civil Law. Introduction in the Study of the Obligations, Ed. Dacia, Cluj-Napoca, 1984;
13. Law no. 287 on 17th
of July 2009 on the Civil Code;
14. Law no. 134/2010 published in M.Of. no. 485 on 15th July 2010, modified and completed;
15. Law no. 51/2003, published in M.Of. no. 57 on 31st of January 2003, modified;
16. The High Court of Justice, commercial section, decision no. 435/1995, in Dreptul (Law) Journal no. 3/1996;
17. The High Court of Justice, commercial section, decision no. 46/1995, in Dreptul (Law) Journal no. 12/1995;
18. The High Court of Justice, commercial section, decision no. 336/1993, in Dreptul (Law) Journal no. 8/1994.
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SECURITY MEASURES FOR PROTECTING PERSONAL DATA
Valentin PAU, Professor, PhD; Luminiţa Copaci, PhD
Abstract
Information security is crucial for the success of any organization, as it deals with the protection of data
against unauthorized access, use, replication and destruction.
Considering that personal data is a critical and sensitive information that all organizations should protect,
legislation in this regard will help establish appropriate procedures and controls to prevent information security
breaches.
The purpose of the present paper is to establish the minimum measures to be taken in managing a computer
system (network equipment, servers, fixed and mobile terminals, software, etc.) to ensure a minimum level of
personal data protection.
Therefore, we aim at giving a bird’s eye view of the complexity of implementing the data security
requirements, given the Data Protection Regulation and Information Security Management System.
INTRODUCTION
The General Data Protection Regulation1, which will be enforced starting with May 25, 2018, provides an
up-to-date legal framework, based on the responsibility for data protection in Europe. It aims at creating a
unitary framework regarding the protection of personal data of EU citizens, giving them more rights and control
facilities than they currently have over their own data and, thus, more obligations and responsibilities for
organizations that manage data.
There are mainly two aspects of the Regulation: protecting the rights of the data subjects in the European
Union and the confidentiality of data subjects in the EU. Both aspects have technological implications.
In accordance with the General Data Protection Regulation, ``personal data" includes "any data that can be
used to identify a person." This definition includes genetic, mental, cultural, economic or social information, in
addition to those traditionally considered to be identifiable information.
In order to cope with the complexity of the types of threats regarding information security and because
information security is permanent, there must be established, implemented and maintained an Information
Security Management System (ISMS) that is focused on the three concepts of information security:
confidentiality, integrity and availability.
The present paper is divided into two chapters. Chapter I describes the security measures which can be taken,
from the organizational point of view, for the protection of personal data. Chapter II examines technical security
measures in accordance with the General Data Protection Regulation and Information Security Management
System.
I. Security measures seen from the organizational point of view
The training of specialists certified by accredited bodies in each organization is essential. In this respect, the
development and implementation of training programs for staff, such as CEH Certified Ethical Hacker, Risk
Management, ITIL Foundation etc, must be taken into account.
Given the current context, in order to observe the provisions of the General Data Protection Regulation and
Information Security Management System, in the case of any organization, there must be established a set of
policies, procedures and regulations ICT, tailored to the characteristics of the respective organization, that can be
applied. These include:
- Regulations regarding the use of IT&C resources of the organization;
- Procedure for patching in the case of the operating systems existing in the organization;
- Procedure for data backup at the user’s level;
- Procedure for "classifying information";
- Procedure for managing passwords and user accounts;
- Procedure for information security incident management;
- Applications for software development;
1 Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection
of individuals with regard to the processing of personal data and on the free movement of such data and
repealing Directive 95/46 / EC (Data Protection General Regulation) (MO L 119, 04/05/2016). Data Protection
General Regulation is relevant to the EEA and will be applicable after inserting it in the EEA Agreement.
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- Policy for acceptable use of IT & C;
- Policy on the use of mobile devices;
- Remote work policy;
- Removable media management policy (measures concerning the transfer/ safe disposal of drives as well
as concerning the transfer of data must be taken into account );
- Policy regarding the use of cryptographic controls and the management of cryptographic keys;
- Policy regarding the destruction of obsolete electronic equipment.
A novelty that the Regulation brings in the Romanian legal landscape is to establish the obligation of
designating a data protection officer at the level of the operator or, in some cases, at the level of the person
empowered by the operator.
Classifying information resources in accordance with a procedure for classifying information requires each
organization to develop guidelines for classifying information that are appropriate for the needs of the respective
organization, both for control and for sharing information. A corresponding set of rules for labeling and handling
information should be developed and implemented in accordance with the classification structure adopted by the
organization.
Other security measures regard the verification of the degree of implementation in the case of the above
mentioned measures as well as of technical measures, and the analysis of results.
II. Technical security measures
The biggest challenges of the Data Protection General Regulation are technical. Enabling secured data
portability, the protection of personal data and of their right to be forgotten requires a comprehensive mapping of
the data location and of the access to them, up to the device level.
Given the fact that the threat of cyber crime increases from year to year, maintaining absolute security is a
growing challenge.
The study was conducted on a complex IT& C system which is composed of Microsoft, VMware, Oracle,
UNIX, Cisco etc. type systems and more than 500 users in different locations and having different roles in the
organization.
As the result of the analysis, the following measures/ minimal systems must be implemented:
1. The management and control of IT&C systems resources, the documentation of the configuration
of the IT&C systems
The organization must implement solutions to optimize IT&C infrastructure that would ensure:
- Availability of IT & C resources;
- Improvement of the quality of the services provided by the IT department;
- Increase of the user satisfaction regarding the IT&C services they benefit from;
- Increase the efficiency of decision-making process by obtaining information needed for
process management in real-time;
- reduce the time of services restoration;
- reduce the risk of failed implementations;
- reducing the impact of changes;
- reducing the risk of incidents due to changes;
- documentation of implemented IT systems (flowcharts, installation procedures and manuals);
- management and effective monitoring of the IT&C activities, resources and technology in
order to increase labor productivity, reduce costs and optimize IT&C care and support
services;
- improving communication between the IT staff and the end users of IT&C services, as well as
the communication between different agencies and work groups involved in the projects;
- management of security incidents in accordance with the policies and procedures of the
organization;
- increasing the efficiency of the decision-making process, by obtaining real-time information
necessary in the management process.
2. Generalization of an Active Directory solution at the level of the entire organization
The implementation of Active Directory (Fig. 1) at the level of the entire organization will lead to making
great use of IT infrastructure by managing basic services, network services as well as messaging services.
Establishing such a solution will lead to the functioning of superior level services as well as to:
- providing a single management point for user accounts, clients, servers and applications management
activity;
- avoiding redundancy and synchronizing information about users in the organization;
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- making available an integration mechanism with other applications;
- reducing management costs.
Fig.1. Active Directory
3. Implementing a backup solution and performing data restoring The IT infrastructure of the organization must be virtualized (Fig. 2) and be able to restore some objects and
devices in virtual infrastructure.
Fig.2. vSphere
Recovery/ restoration includes:
- rapid restoration for virtual machines or an individual object from any application or file system;
- the ability to run a virtual machine directly from the backup without changing back-up;
- creating an isolated environment for restoration of application, checking restoration and
subsequent testing/ debugging;
- automating the checking process of restoration, using the resources available in the existing
production or testing environment;
- instant restoration of virtual machines;
- restoration of individual objects in any virtualized application, in any operating system;
- centralized management;
- real-time monitoring of the infrastructure back-up, identifying unprotected virtual machines,
resource analysis.
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4. The implementation of professional security software
Figure 3. Professional security software
Such a software (Fig. 3) will provide a system for ensuring the integrity and authenticity of applications and
data files at the workstation, which must consist of the three components whose functional requirements are:
4.1. Centralized management of the configuration security at the level of workstation
Among the minimum features and functionalities, mention should be made of the following ones:
Centralized management of security policies applied to methods of use of removable devices (USB,
DVD / CD) using pre-approved lists of these devices.
Possibility of encrypting copied data on removable/ media type devices, to provide an extra layer of
protection.
Creating and implementing basic security policies that will automatically ensure the encrypting of all
data copied on removable/ media type devices.
Permanent protection of the working environment by prohibiting the installation of unauthorized
applications.
Making some standardized and secured system images, according to applicable security policies.
The granting of permissions/ restrictions in the case of both removable/mobile devices and the
approved set of applications must remain active even when the workstation is offline.
Automatic logging of all security events/ incidents arising as a result of the application of security
policies, i.e. to generate detailed reports, with the possibility of sending them by e-mail.
The management module which ensures automatic update functionality of the operating systems and of
the set of applications must natively integrate on the management interface, with the remaining modules
of management and control security configurations at the level of the workstation.
Implementing Wake-on-LAN-type mechanisms in such a manner as to make sure that, regardless of the
workstation state (at least: standby, sleep), updates and reconfigurations are without human
intervention.
4.2. Advanced detection of anomalies at the level of level workstation (antimalware) must include the
following minimum features and functionalities:
Detection of abnormalities in workstations - will be based on constant analysis of memory and of the set
of applications available within that workstation and not on based on a set of signatures specific to
malware threats. The purpose of this feature is to reduce the dependence on the applications which
detect malware based on the principles of white listing/ blacklisting and to overcome their limitations
(high vulnerability to ATP -Advanced Persistent Threats-, to 0-day threats or to undiscovered yet
threats), respectively their dependence on the manufacturers of these applications.
Analysis of the memory of the workstation and of the kit of installed applications in real time,
completely transparent to the user and without affecting the full functionality of the workstation.
Protection against IT threats implementing specific methods of injection (hooking) in applications,
services and legitimate processes must treat at least the following methods to inject malicious code:
hooking at SSDT level (System Service Dispatch Table);
hooking at alternative SSDT level (KTHREAD.ServiceTable - kernel threads);
hooking at the level of descriptive tables of system interruptions (IDT Hooks);
hooking at the level of the IO system drivers;
13
Analysis of system services integrated into Windows operating systems. The goal is to find and identify
at least the following components hidden in the operating system and the set of applications/ processes:
hidden processes;
hidden threads (both for applications/ processes and the operating system components);
hidden files;
Making reports on the analyzed workstation status that include at least the following: compromised
system, system suspected of being compromised, uninfected system, lack of data for the analyzed
system - for each workstation individually.
4.3. The modular construction system images must include minimum features and functionalities among
which mention can be made of:
It must include a common management application that will ensure the execution of administrative
functions for both the software package referring to system images management (OS, single set of
applications specific configurations of the entire software package) at the level of the workstation, and
the software package referring to system images management (operating system, single set of
applications, specific configurations of the entire software package) at the level of the servers.
It must configure each workstation/ server based on standardized criteria, including some criteria
referring to the user’s profile or role and/ or the data of the installation and operation location of the
workstation/ server.
It must provide real-time reporting of the progress of installing, indicating the tasks put on hold, their
waiting time as well as the interrupted or failed tasks.
It must provide support for multiple operating systems, for the inventory and management of hardware
and software components corresponding to the workstations/ servers, as well as the proactive
monitoring of their key parameters.
It must provide the integration of the technologies for generation and use of system images, with the
ability to change (edit) offline and reuse existing system images.
It must ensure the automation of complex configurations associated with initial installation and post-
installation management of servers, including the management on the dedicated channel (out-of-band).
It must ensure remote troubleshooting of servers through integrated monitoring tools, change and
control of configurations, as well as shutdown and (re) boot configurations for operating system
services.
It must ensure centralized monitoring of servers key parameters, with the possibility of rapid response
and administrative remedy the identified problems.
It must ensure the control of the access to specific resources by means of dynamic groups, the defining
of the scope of resources based on the role/ roles associated to the operator, structured reporting.
5. The implementation of software solutions for securing workstations (desktops and laptops) To ensure a safe computerized system, end users must not have administrator rights locally. There are a lot of
situations in which it is necessary that local users run various applications in order to manage system settings
(setting up a printer, managing network settings etc.) and install software that requires local administrator
privileges .
Such a software solution will provide software running (in a controlled manner), applications running,
executable libraries running, ActiveX controls running, scripts running, etc. requiring administrative rights
without the user/ workstation users having local administrator rights, as well as monitoring/ protecting areas
containing files to be protected (the operating system, drivers, etc.)
The use of such a software allows network administrators to attach permission levels to Windows
applications instead of granting rights to users, this resulting in major improvements in security without affecting
productivity.
It will ensure control over the privileges granted to users, aiming at eliminating the need to grant them access
rights as local administrators on the workstations existing in the organization. By using such a solution, the
following will be aimed at:
Allowing end users to run all required applications without granting them administrative privileges.
Effectively replacing individual security tools, such as controlling the access to files, web control,
etc., combining them into a unified data control policy.
Enhancing security without compromising productivity and reducing the costs for IT resources.
Eliminating the risk of intentional abuse, accidental or indirect privileges on the workstations and
servers in the organization IT systems.
14
6. The implementation of an integrated security solution for the information system
Because the number and complexity of attacks has increased and the traditional reactive defense mechanisms
(anti-virus, anti-spam, etc.) are obsolete, it is required a new, innovative approach, based on state of the art
technologies.
For a software to ensure the integrity and security of data processing environment, it must provide at least
three basic capabilities:
- to guarantee that the protected systems will be unable to run only approved software applications;
- to ensure the visibility and centralized administrative control over the software available on the
organization workstations;
- to provide independent mechanisms for detecting the presence of advanced malware elements as
well as to counter their action.
The software must be based on three main components:
- Proactive control component which will aim at ensuring some effective and minimally intrusive
mechanisms of action (positive enforcement), allowing:
a) Proactive, real-time authentication of software programs before executing them;
b) effective control of their use by allowing the uploading only for validated versions and
configurations, only for authorized operators and strictly in accordance with applicable access
policies;
c) the control of the local peripherals of the equipment used as workstation.
- The administrative component:
a) will aim to ensure a structured IT administrative environment, capable of generating and
exploiting validated software configurations, at the level of the IT systems used as
workstations, as well as their maintenance along the life cycle of approved applications in
operation;
b) will provide a way to coherently install and maintain updated configurations installed on
computer systems in use, including integration using the existing instruments which actively
manage the used software products lifecycle (patch management, updated versions and
migration of applications, etc.).
- Advanced Defense Component:
a) will aim at providing additional mechanisms (for a defense-in-depth type strategy) of
continuous centralized monitoring of the use of local peripherals and of software execution
environment (system live states), including the active memory of the systems in operation, to
coordinately detect and combat sophisticated malware components, including injected parasite
processes, whose action is difficult or impossible to detect only by monitoring the access to the
level of the artifacts persistently stored in the system;
b) will provide a much higher level of visibility of some events for which it can not be generated,
by conventional means, system and application control audit information (log type). This
component will provide greater visibility to the specific use of authorized software applications
and local peripherals, and, implicitly, will indicate certain abnormalities in their use.
The general architecture of the system will require the existence of server software components, at the
level of which specific control and reporting mechanisms will be implemented for each of the three
categories of intended features and for the client / agent components.
The server software components of the solution:
will implement the judicious separation of administrative contexts, audit contexts and security
contexts (segregation of duties) respectively the association of functionalities with well-
defined roles.
will be deployed in redundant, multi-instance cluster configurations for each functional
category in order to ensure the appropriate level of operational availability.
will be implemented and run on dedicated server platforms which are operated by the
institution, including in virtualized system configurations.
The client/ agent software components of the solution will be implemented and operated on IT equipments
used as workstations (PC and portable laptop stations) in use within the organization. The solution will provide
support for the operating systems running on them, and will be compatible with the typical tools used.
Last but not least, due to the functionality of the real-time ongoing analysis, of the active memory of the
computer systems, there will be shown a number of incompatibilities between the various loaded deliverables
and the technical errors, some of which can become system vulnerabilities that will be run in a cyber attack
directly or will become precursors of such an attack.
15
7. System for deleting data from storage media
In the case of an organization, there must be a system for deleting data from any media, without this (data) be
able to be reconstructed. Such a system must:
include specialized, dedicated equipment for clearing storage units;
provide integrated support for storage units using SATA, USB 2.0, USB 3.0 connectivity;
include available optional adapters for connectivity with IDE drives, micro SATA drives, drives for
laptops, USB Flash storage media as well as mounting adapters and adapters for all types of units;
delete without damaging the storage type with degaussing procedures;
include compatibility with the standards for deleting information on storage devices;
include the recording and saving detailed information in log files.
By using such a device, the risk of unauthorized access to data will be reduced.
CONCLUSIONS
Considering General Data Protection Regulation and Information Security Management System, in the case
of any organization, a long-term strategy regarding IT&C security systems is necessary.
In this paper we analyzed the minimum measures to be implemented both in terms of organization and in
terms of managing a computer system to ensure data protection.
The study was conducted over a period of one year, on a complex IT&C system, which is made up of such
systems as Microsoft, VMware, Oracle, UNIX, Cisco etc. and more than 500 users in different locations, with
different roles in the organization.
The security measures for protecting personal data analyzed in this paper show how companies can
effectively use advanced technology for complying regulations and reducing risk.
Depending on the special character of activities, other protective measures can be adopted.
BIBLIOGRAPHY
1. Babel, Chris (July 11, 2017). "The High Costs of Compliance GDPR". Information Week. UBM
Technology Group. Retrieved 4 October 2017;
2. Dimensional Research (May 1, 2017). "Privacy and the EU GDPR: 2017 Survey of Privacy
Professionals"(PDF). TrustArc.com. TrustArc Inc.. Retrieved 4 October 2017;
3. Directive 95/46 / EC of the European Parliament and of the Council of 24 October 1995 on the
Protection of Individuals with Regard to the Processing of Personal Data and on the free
movement of politica date;
4. "EU's Right to Explanation: A Harmful Restriction on Artificial Intelligence". www.techzone360.com.
Retrieved 07/15/2017.
5. https://www.iso.org/obp/ui/#iso:std:iso-iec:27001:ed-2:v1:en;
6. https://ro.wikipedia.org/wiki/%C8%98tergerea_informa%C8%9Biilor_de_pe_mediile_de_stocare;
7. https://en.wikipedia.org/wiki/General_Data_Protection_Regulation;
8. http://www.pwc.com/us/en/press-releases/2017/pwc-gdpr-compliance-press-release.html;
9. http://www.dataprotection.ro/;
10. http://www.dataprotection.ro/servlet/ViewDocument?id=35;
11. https://www.sans.org/reading-room/whitepapers/analyst/preparing-compliance-general-data-protection-
regulation-gdpr-technology-guide-security-practitioners-37667;
12. Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the
protection of individuals with regard to the processing of personal data and on the free movement of
such data and repealing Directive 95/46 / EC (General Regulation Data Protection) (OJ L 119,
05/04/2016);
16
13. V. Pau, "Legal Course for learning", 2017;
14. www.microsoft.com;
15. The Digital Single Market on europa.eu;
16. www.ivanti.com;
17. www.vmware.com;
18. www.e-licitatie.ro.
19. https://4b0e0ccff07a2960f53e-707fda739cd414d8753e03d02c531a72.ssl.cf5.rackcdn.com/wp-
content/uploads/2017/02/GDPR-Compliance-and-Its-Impact-on-Security-and-Data-Protection-
Programs-HPE. pdf? v = 20;
20. https://www.ixiacom.com/company/blog/gdpr-regulations-are-essential-security-everywhere;
21. https://blog.stealthbits.com/5-essential-steps-to-eu-gdpr;
22. https://www.slideshare.net/AndSor/lumension-endpoint-management-and-security-suite-2012;
23. http://www.srac.ro/ro/securitatea-informatiilor-isoiec-27001
17
THE ROLE OF THE GOVERNMENT IN THE DEVELOPMENT, ENDORSEMENT
AND ADOPTION OF NORMATIVE ACTS
TOADER Tudorel
Professor, "Alexandru Ioan Cuza" University of Iasi, Faculty of Law (ROMANIA)
SAFTA Marieta
Conf. Univ. "Titu Maiorescu" University of Bucharest, Faculty of Law (ROMANIA)
Summary
The study addresses the constitutional role of the Government in the process of elaborating, approving, adopting
normative acts, within the regime of separation and balance of powers in the state, enshrined in Article 1
paragraph (4) of the Romanian Constitution. The government belongs to the executive authority, but the exercise
of the analyzed role is also essential for the exercise of the legislative function of the Parliament, the only
legislative authority of the country. Within this framework, respect for the competence of the Government,
including the other public authorities, is a fundamental objective for the rule of law.
Keywords: legislative procedure, government role, constitutional court, government decisions, government
ordinances, law
I. INTRODUCTION. CONSTITUTIONAL AND LEGAL REFERENCE FRAMEWORK
According to Article 61 paragraph (1) of the Romanian Constitution, the Parliament "is the supreme
representative body of the Romanian people and the sole legislator of the country". As regards the Government,
its role is determined by the provisions of Article 102 paragraph (1) of the Constitution, according to which "the
Government, according to its governing program accepted by the Parliament, ensures the realization of the
domestic and foreign policy of the country and exercises the general leadership of the public administration ".
The exercise of this role by the Government presupposes its involvement, within the limits and conditions
stipulated by the Constitution, in the procedure of initiating, elaborating, approving, adopting legislative acts,
without these attributions being capable of causing a violation of the constitutional role of Parliament but, on the
contrary, to contribute, under constitutional loyalty, to the fulfillment of Parliament's fundamental function,
namely the legislative function. Also, the fulfillment of this role presupposes the adoption, within the
Constitution, of its own normative acts, which express the ordinary competence of the Government or of the
delegated, under the terms and limits of the Constitution.
Thus, the Government has legislative initiative, under the terms of Article 74 of the Constitution, and may also
adopt normative acts. Referring to the acts of the Government, Article 108 of the Constitution establishes in this
sense that the Government adopts decisions and ordinances. Decisions are issued for the organization of law
enforcement, and ordinances are issued under a special law of empowerment within the limits and under the
conditions set forth herein.
As far as the decisions of the Government are concerned, it is unanimously admitted in the administrative
doctrine that these are normative acts or individual acts, representing "the expression of an original Government
competence, stipulated by the Constitution, typical of its role as public authority of the executive power".2
"The Government's decision, according to its constitutional regime, intervenes when, naturally, the enforcement
of some legal provisions requires the establishment of measures or subsequent rules to ensure their correct
application, the removal of difficulties or the proper organization of certain activities. The judgment is, by
excellence, the act by which the Government performs its role of exercising the general government of the public
administration, re-establishing social relations that are by their nature inferior to those of the law. "3
In the same sense, the Constitutional Court stated that the adoption of Government Decisions expresses the
original competence of the Government, the executive authority provided for in Article 108 (2) of the
Constitution, which deals with the organization of law enforcement: "Government decisions are normative
administrative acts or individual, issued for the purpose of the proper administration of the implementation of the
2 see D. Apostol-Tofan in the Romanian Constitution. Comment on articles, Ed. CH Beck, Bucharest, 2008,
p.1001 3 ibid
18
primary legal framework, which requires the establishment of subsequent measures and rules to ensure its
correct application. Decisions are always adopted on the basis of law, secundum legem, and ensure the
application or enforcement of laws. "4
Regarding ordinances and emergency ordinances, we note that, in addition to the legislative monopoly of the
Parliament, the Constitution, in art.115, enshrines the legislative delegation, by virtue of which the Government
can issue simple ordinances [(art.115 paragraph (1) - (3)] or emergency ordinances [(Article 115 (4) - (6)]. As a
result, the transfer of legislative attributions to the executive authority is done through an act of will of the
Parliament or, in a constitutional way, in extraordinary situations, and only under parliamentary control. From a
substantive point of view, substantive law content, the government's simple or urgent ordinances have the power
of law, being considered primary regulatory acts. From the formal point of view, the issuing authority, like
secondary legislation (government decisions), and primary legislation (simple and urgent ordinances) are
administrative acts.
In the following, we will refer to procedural rules regarding the role and competences of the Government in the
procedure for adopting the normative acts initiated at the Government level, rules mainly developed in the
Government Decision no. 561 / 2009 for the approval of the Regulation on Procedures at Government level, for
elaborating, endorsing and presenting draft public policy documents, draft normative acts, as well as other
documents for adoption / approval.5 There are also, incidental, the provisions of Law no. 24/2000 regarding the
technical norms for the elaboration of normative acts6 of Law no. 90/2001 on the organization and functioning of
the Romanian Government and the Ministries7, as well as of Law no. 52/2003 on decisional transparency in
public administration8.
II. ELABORATION OF NORMATIVE ACTS
1. Authorities from the executive branch with competence in initiating normative acts
According to Article 1 of the Government Decision no.561 / 2009, they have the right to initiate draft public
policy documents and draft normative acts, with a view to adopting / approving by the Government, according to
their attributions and their field of activity, the following public authorities: the ministries and other specialized
bodies of the central public administration, subordinated to the Government, as well as the autonomous
administrative authorities; the specialized bodies of the central public administration under the subordination or
coordination of the ministries, through the ministries in whose subordination or coordination they are; prefects,
county councils, the General Council of Bucharest, according to the law, through the Ministry of Administration
and Internal Affairs.
2. Secure decisional transparency
In the process of elaborating of the draft normative acts, the initiating public authorities have the obligation to
observe the procedural rules applicable for ensuring the transparency of the decision, provided by the Law no. 52
/ 2003 on the decisional transparency in the public administration.
According to art. 7 of the mentioned normative act, in the procedures for drafting normative acts, the public
administration authority has the obligation to publish an announcement regarding this action on its own website,
to display it at its own premises, in a space accessible to the public, and transmit it to the central or local media
as appropriate. The public administration authority will submit the draft normative acts to all persons who have
submitted a request for receiving this information. The announcement regarding the drafting of a normative act
must be made known to the public at least 30 working days before submitting for approval by the public
authorities. When publishing the notice, the public administration authority will set a period of at least 10
calendar days to receive in writing proposals, suggestions or opinions on the draft normative act subject to public
debate, to be recorded in a register, the date of receipt, the person and the contact details from which the
proposal, opinion or recommendation was received. The draft normative act is sent for analysis and endorsement
to the interested public authorities only after finalization, on the basis of the observations and the proposals
formulated. The public authority concerned is required to decide on the organization of a meeting in which the
draft normative act is publicly debated if this has been requested in writing by a legally established association or
by another public authority. In all cases where public debates are held, they must be held no later than 10
calendar days after the date and place where they are to be organized. The public authority should analyze all the
4 see the Decision of the Constitutional Court of Romania no. 68 of February 27, 2017, published in the Official
Gazette of Romania, no. 181 of March 14, 2017, par.74 5 Published in the Official Gazette of Romania, Part I, no. 319 of May 14, 2009
6 Republished in the Official Gazette of Romania, Part I, no. 260 of 21 April 2010
7 Published in the Official Gazette of Romania, Part I, no.164 of 2 April 2001
8 Published in the Official Gazette of Romania, Part I, no. 749 of 3 December 2013
19
recommendations regarding the draft normative act in question. In the case of a situation which, due to its
exceptional circumstances, requires the adoption of immediate solutions, in order to avoid a serious prejudice to
the public interest, the draft normative acts are subject to adoption under the emergency procedure provided by
the regulations.
3. Preliminary consultations
The initiator elaborates an initial form of the draft normative act or the draft of public policy documents, which
he has the obligation to submit at the same time both to the public consultation, according to the Law no.52 /
2003, as well as to the interinstitutional preliminary consultation.
In order to ensure preliminary consultations with the social partners, the initiating public authorities have the
obligation to submit the drafts of normative acts of an economic and social nature to the analysis of the social
dialogue committees established within them.9 In order to ensure preliminary consultations with the associative
structures of the local public administration authorities, the initiating public authorities have the obligation to
transmit draft normative acts to the chairmen of the associative structures.10
Interinstitutional preliminary consultation is carried out following the presentation of the draft normative act or
the draft policy papers, appropriated by its manager, on the originator's website, in compliance with the decision-
making transparency term, as well as by concomitant transmission in electronic format / PDF , to the General
Secretariat of the Government. On receipt of the electronic form, the General Secretariat of the Government has
the obligation to immediately display on its website the draft normative act or the draft policy document.
The entire consultation process, with both citizens and legally established associations, as well as
interinstitutional preliminary consultation, is the sole responsibility of the initiator.
III. APPROVAL OF NORMATIVE ACTS
Upon finalization of the elaboration and consultation procedure, the initiating public authority has the obligation
to submit to the General Secretariat of the Government, both in paper and in electronic / PDF format for
registration, drafts of normative acts, signed by the head / heads of the initiating public authority / authorities, as
well as, in the original, the institutions that are to approve the project. At this stage, draft public policy
documents and draft normative acts to be endorsed by the Ministry of Public Finance, the Department for
European Affairs, or, as the case may be, the Ministry of Justice, will be sent to these institutions in copy for
analysis. At this stage, the Ministry of Public Finance, the Department for European Affairs or, as the case may
be, the Ministry of Justice have the obligation to send a point of view to the initiator only following the
notification of substantive issues within its own area of competence.
After receiving the required opinions, draft normative acts and / or public policy documents shall be submitted
for endorsement, as appropriate, to the Ministry of Public Finance, the Department for European Affairs and the
Ministry of Justice. The draft normative acts shall be sent to the Ministry of Justice in original, together with a
copy, only after obtaining all the endorsements of the public authorities concerned in the application, the
endorsement of which is done by the latter exclusively from the point of view of legality, ending the operations
in the endorsement stage.
Following the analysis of the projects, the public authorities to which the endorsement was requested may submit
to the initiator the draft: favorable endorsed, without comment; favorable endorsed with comments and
suggestions; negatively endorsed. If the project has been endorsed with comments and proposals or negatively
endorsed, the initiator will draw up a justification note describing the way of appropriation or, where appropriate,
the arguments that led to the non-observation of the comments and suggestions. A copy of the supporting note
shall be sent by the initiator to the institution which has endorsed with comments or negatively.
After the completion of the inter-ministerial approval process of the draft normative act, the final form
accompanied, if necessary, by the comments of the endorsing institutions and the justification note on their non-
issuance shall be transmitted, by the initiators, to the Court of Accounts of Romania, to the Competition Council,
Supreme Defense Council of the Country, the Economic and Social Council and / or the Superior Council of
Magistracy, as the case may be, for the obtaining of endorsements, if their obtaining is mandatory, according to
the legal provisions.
After obtaining the endorsements of the mentioned institutions, the initiator will submit to the General
Secretariat of the Government, in the original, the final draft of the draft normative act, together with the possible
comments and suggestions of all the endorsing institutions, as well as the justification note regarding the
appropriation or non-appropriation of them. The General Secretariat of the Government shall promptly request
9 See Government Decision no. 369/2009 on the establishment and functioning of the social dialogue
commissions in the central and territorial public administration. 10
See Government Decision no. 521/2005 regarding the procedure for consulting the associative structures of the
local public administration authorities in drafting normative acts
20
the endorsement of the Legislative Council, to be issued in accordance with the law, within the time limit
requested by the Government, which may not be less than 24 hours for draft emergency ordinances, two days for
draft laws be forwarded to Parliament with the request for debate in the urgency procedure; 10 days for other
draft normative acts. The draft ordinances and normative decisions are subject to adoption by the Government
only with the endorsement of the Legislative Council.
The General Secretariat of the Government verifies the fulfillment of the formal conditions of each draft
normative act or public policy document, including the observance of the legal norms provided by Law no.
24/2000, republished, as subsequently amended and supplemented. If the examination of the draft normative acts
reveals non-compliance with the formal requirements, the General Secretariat of the Government draws up a
note containing comments and proposals, which it submits to the attention of the initiator and sends it to the
legislator, as well as the endorsement of the Legislative Council, initiator having the obligation to re-analyze
and, if necessary, redo the draft public policy document or normative act. The finalized draft normative act is
submitted to the General Secretariat of the Government, in original, on paper, in certified copy, as well as by e-
mail, in a certified electronic file, for inclusion on the agenda of the preparatory working meeting.
We note that draft emergency ordinances are endorsed by the Ministry for Relations with Parliament in terms of
the opportunity to promote them in the sense of motivating the extraordinary situation whose regulation can not
be postponed and the presentation of the consequences of not adopting the draft normative act in the regime
emergency. It is an opportunity endorsement valid for a period of 20 calendar days from the date of issue.
Similarly, draft ordinances elaborated under the Government's empowerment laws are endorsed by the Ministry
for the Relationship with Parliament in terms of classification in areas for which the Government is empowered
to issue ordinances, the endorsement being valid only for the foreseen period of authorization in the
Government's empowerment law under which the draft ordinance is being elaborated.
IV. ADOPTION OF NORMATIVE ACTS
At the Government level, preparatory meetings take place weekly which are headed by the General Secretary of
the Government or, as the case may be, by the Deputy Secretary-General and, in their absence, by a
representative designated for this purpose, attended by ministers' representatives at the level of Secretary of State
or Secretary General.
The Prime Minister sets the date, time and place of the Government meetings and conducts them. The
Government's decision on each draft normative act or other document, taken as a result of the outcome of the
debates, is marked by the announcement of the Prime Minister regarding the adoption / approval, postponement,
rejection or withdrawal, as the case may be. The verbatim of the Government meeting is drawn up by the
General Secretariat of the Government and certified by the Secretary General of the Government. This reflects
the decisions taken, the views, the speakers, the tasks and deadlines for the implementation of the tasks.
After the adoption in the Government meeting, the General Secretariat of the Government finalizes the draft
normative act through the observation of the legislative technique, presents the normative act adopted by the
Prime Minister for signing and the ministers, who are obliged to execute it, for counter-signing, accomplishes
numbering of normative acts in the calendar year; the acts of the Government shall bear the date of the meeting
of the Government in which they were adopted and then transmit to the Senate, to the Chamber of Deputies or,
as the case may be, to the Presidential Administration, the draft laws, together with the exposing of their reasons,
the decisions to submit them to the adoption , the comparative or concordance table, if any, signed by the Prime
Minister, and to the Secretary General of the Chamber of Deputies, with the request for the publication in the
Official Gazette of Romania, Part I, of the decisions and ordinances of the Government, accompanied, as the
case may be, by their presentation and motivation instruments, signed by the initiating minister or ministers.
V. CONCLUSIONS
A first conclusion of the presentation of the above rules concerns the laborious procedure for the adoption of
normative acts, with the collaboration of the ministries that make up the Government, other public authorities,
civil society and in terms of decisional transparency. Practically, the current legal framework allows any
interested person to intervene in the process of drafting a normative act or draft normative act at Government
level. Also, the consent procedure allows for the expression and collaboration of all authorities with competence
in the field so that the final act drafted / adopted respects both the requirements of constitutionality / legality and
opportunity.
A second conclusion concerns the need to ensure the Government's freedom of will and appreciation with regard
to the realization of the analyzed competencies, with the obvious observance of the constitutional and legal
framework. In this respect, we have even distinguished between constitutionality/legality and opportunity in
adopting a normative act and, from this perspective, the competent authorities to appreciate
constitutionality/legality and opportunity.
21
According to the administrative law doctrine, the administrative acts (and thus the Government decisions)
constitute a main legal form of the activity of the public administration bodies, they express an unilateral legal
will, they are issued only in the realization of the public power and have a specific legal regime in the center of
which is the Law on administrative litigation (Law no.554/2004). In the same sense is the jurisprudence of the
Constitutional Court, in which it was stated that the «common law in the matter of control of administrative acts
is the Law of administrative contentious no.554/2004, which stipulates in art.1 (1) that "any person who
considers himself/herself a victim of a right or a legitimate interest, by a public authority, by an administrative
act or by the failure to solve within a legal term a request, may address to the competent administrative court, for
the cancelation of the act, the recognition the claimed right or legitimate interest and the repair of the damage
caused to him. Legitimate interest may be both private and public"»11
The lawfully quoted text expresses the
provisions of Article 126 paragraph (6) of the Constitution, according to which "The judicial control of the
administrative acts of the public authorities, by way of administrative contentious, is guaranteed ...". The
Constitutional Court has also stated, in another case, that "the separation of powers in the state does not mean the
lack of a mechanism of control between the powers of the state, on the contrary presupposes the existence of
mutual control and the achievement of a balance of forces between them. The acts of the executive power are
censored through administrative litigation. [...] This measure is a guarantee for respect for citizens' rights and
freedoms, as well as constitutional values. "12
As a result, the sanction applied for non-observance of the legal or constitutional provisions in the procedure for
drafting/adopting a Government decision is an extrapencial law, namely the finding of unlawfulness of the
Governmental decision by the administrative courts of law, with the consequence of their lack of legal effects.
However, the Government's simple or emergency ordinances are not subject to the control of legality by the
ordinary law court but, by virtue of their quality of primary law, and therefore equivalent to the law, are subject
to the constitutional review enshrined in Article 146 letter d) of the Constitution. The control concerns aspects of
extrinsic constitutionality, namely the procedure of adopting the act, and aspects of intrinsic constitutionality,
respectively the normative content of the act. In other words, investigating the legality of the Government's
simple or urgent ordinances is exclusively concerned with the Basic Law, which enshrines the procedure for
adopting this type of normative act, as well as the fundamental rights and freedoms that its content must observe.
Whereas, under Article 142 (1) of the Constitution, the Constitutional Court is the guarantor of the supremacy of
the Basic Law and, according to Article 1 paragraph (2) of Law no. 47/1992, this is the only constitutional
jurisdiction authority in Romania, only the Constitutional Court is empowered to control the Government's
simple or emergency ordinances, and no other public authority having the material competence in this area.13
Regarding the control of compliance with the procedure for the adoption of a simple or urgent ordinance of the
Government and its normative content, in terms of opportunity, the act of primary regulation (the law, the simple
and emergency ordinance of the Government), as a legal act of power, is the exclusive expression of the will of
the legislator, who decides to legislate according to the need to regulate a certain field of social relations and its
specificity. The Constitutional Court has held in this respect that the appreciation of the opportunity of adopting
an emergency ordinance with regard to the decision of the lawmaking is an exclusive attribute of the delegated
legislator, which can be censored only under the conditions expressly provided by the Constitution, namely only
by the parliamentary control exercised according to art. 115 paragraph (5) of the Constitution. Therefore, only
Parliament can decide the fate of the Government's normative act by adopting a law of approval or rejection. On
the occasion of the parliamentary debates, the supreme legislative body has the power to censure the emergency
ordinance of the Government, both in terms of legality and opportunity, the provisions of art.115 paragraph (8)
of the Constitution, stating that by the law of approval or rejection will, if necessary, address the necessary
measures with regard to the legal effects produced during the period of application of the Ordinance.
Considering the constitutional provisions invoked, the Court found that no other public authority, belonging to a
power other than the legislature, can control the normative act of the Government from the point of view of the
opportunity of the act of enactment14
expressly referring to the lack of competence of the Public Ministry to
appreciate in this regard.
Similarly, regarding the issuer's competence and decisions, the Venice Commission concluded that it is an
indication of the level of proper functioning and maturity of a democracy and respect for the rule of law, the
capacity of a national constitutional system to separate and distinguish the political and criminal responsibility of
the Government Ministers15
. According to the same report, "criminal proceedings should not be used to sanction
political mistakes and disagreements" (p. 106). Government ministers are politically accountable for their
11
Decision of the Constitutional Court no. 68/2017, cited above, par.79 12
Decision of the Constitutional Court no. 594 of 20 May 2008, M. Of. no. 455 of 18 June 2008 13
Decision of the Constitutional Court no. 68/2017, cited above, par.69 14
Ibidem, par.89-90 15
see paragraph 105 of the report on the relationship between political accountability and criminal liability in the
work of the members of the Government adopted by the Venice Commission at its 94th plenary session,
Venice, 8-9 March 2013
22
political actions, and this is the right democratic way to ensure accountability within the political system (p. 76).
When defining the line between criminal and political accountability, account should be taken of the specific
characteristics of political decision-making procedures, as well as "political play". It is important for democracy
that Government Ministers have a margin of maneuver to implement the policies they have been called upon to
do with a wide margin of error without the threat of criminal sanctions being imposed on them. In a well-
functioning democracy, ministers are held accountable for their policies by political means, without recourse to
criminal means (point 79). Similarly, the US Supreme Court has ruled on avoiding the "absurdities" caused by
the conviction of people accused of corruption through incorrect, extensive interpretations of the law. In
consideration of this decision, between other, concerns expressed by officials in the public space, as well as
amicus curiae applications filed in the file, that "the amazing expansion of the laws on corruption in the public
system will most likely cause a freeze of interactions between public officials and the citizens in whose service
they are, and thus jeopardize their ability to effectively fulfill their responsibilities. "16
We consider that the Fundamental Law of Romania as well as the infraconstitutional legislation provides the
basis for the distinctions regarding the constitutionality/legality /opportunity issue of the acts adopted by the
Government in respecting the competences here analyzed by clearly establishing of the competences of the
public authorities regarding the procedure of adopting the administrative and control acts of their legality. A
clear statute and explanation of this distinction was also made by the Constitutional Court by Decision no. 68 of
27 February 2017 on the request for settlement of the legal conflict of a constitutional nature between the
Government of Romania and the Public Ministry - High Court of Cassation and Justice - National Anticorruption
Directorate, requested by the President of the Senate.17
16
Supreme Court of the United States of America, ROBERT F. MCDONNELL, PETENT v. United States of
America, 579 US ____ 2016, p.22-23) https://www.supremecourt.gov/opinions/15pdf/15-474_ljgm. pdf 17
By which the Constitutional Court of Romania found that there was and there is a legal conflict of a
constitutional nature between the Public Ministry - the Prosecutor's Office attached to the High Court of
Cassation and Justice - the National Anticorruption Directorate and the Government of Romania, generated
by the action of the Prosecutor's Office attached to the High Court of Cassation and Justice - the National
Anticorruption Directorate to have the power to verify the legality and the appropriateness of a normative act,
namely Government Emergency Ordinance no.13/2017, in violation of the constitutional competences of the
Government and Parliament, provided by art.115 paragraphs (4) and (5) of the Constitution, respectively of
the Constitutional Court, provided by article 146 letter d) of the Constitution.
23
SOME CONSIDERATIONS OF THE POSSIBILITY TO APPLY
THE ARBITRAL PROCEDURE IN MATTERS RELATED TO EXTRADITION AND
THE EUROPEAN ARREST WARRANT
BOROI Alexandru, Professor Doctor - Titu Maiorescu University, Bucharest
NEGRUŢ Gina, Lecturer Doctor - Al. I. Cuza Police Academy, Bucharest
Abstract: Taking note of the provisions of Law 302/2004 on international judicial cooperation in criminal
matters18
, we can see that the final aim of judicial cooperation between different states is to reduce crime to
acceptable limits and, implicitly, to increase citizens’ safety.
As a matter of fact, with the accession to the European Union, it was necessary for Romania to comply
with a series of obligations imposed by the order of the Union, these obligations being focused mainly on the
need to contribute to a high standard European Area of Freedom, Security and Justice, which materialised
especially in the improvement of the legislative framework with regard to both the incrimination of some
dangerous acts and the settlement of procedures for finding, investigating and judging criminal cases, while
observing the fundamental human rights and freedoms.
1. GENERAL CONSIDERATIONS
The evolution of human society has been marked through the ages by the development of bilateral or
multilateral international relations, which were built and became established between the different states of the
world. As a consequence, state cooperation relied on bilateral or multilateral legal instruments that materialised
as agreements, conventions, treaties, etc., which were zonal, regional or universal, in connection with the
interests of the signatory parties, the scope and the importance of the field involved.
As a matter of fact, the provisions of the 1968 Code of Criminal Proceedings initially set up the general
framework for international judicial cooperation in criminal matters with the provisions of Articles 513-522 of
the 1968 Code, which brought under regulation two special procedures granting judicial assistance, namely the
letters rogatory and the recognition of foreign criminal decisions or other foreign judicial acts. However, the
provisions of Article 5221 of the1968 Code referring to re-judgement in case of extradition or surrender based on
a European arrest warrant were subsequently abrogated as a consequence of the regulation of the procedure for
re-opening a criminal trial when the convicted person is missing, with the provisions of Articles 466-469 of Law
135/2010 on the Code of Criminal Proceedings.
Nevertheless, the primary substance in this matter is given by the provisions of Law 302/2004 on
international judicial cooperation in criminal matters, republished, which specifically refers to Article 548 of the
Code of Criminal Proceedings19
. On this line, international judicial cooperation shall be requested or granted
according to the provisions of the judicial acts issued by the European Union, international treaties in the area of
international judicial cooperation in criminal matters which Romania is a party thereof, as well as the provisions
included in the special law, i.e. Law 302/2004, and in the chapter of the Code of Criminal Proceedings dedicated
to international judicial cooperation in criminal matters, unless otherwise provided by international treaties.
According to Article 1 of Law 302/2004, the forms of international judicial cooperation in criminal
matters are the following:
– extradition
– surrender based on a European arrest warrant
– transfer of procedures in criminal matters
– recognition and enforcement of decisions
– transfer of convicted persons
– judicial assistance in criminal matters
– other forms of international judicial cooperation in criminal matters.
In connection with the first two forms of judicial cooperation in criminal matters, namely the
extradition and the surrender based on a European arrest warrant, a question was raised whether it is possible
that an Arbitral Tribunal issues a procedural order requiring some temporary measures for the withdrawal of
the transmission of the European arrest warrant and the provisional detention warrant issued in the case of a
Romanian citizen who committed offences, as well as the withdrawal of the extradition request issued for his
name by the Romanian authorities, the litigation being subject to arbitration based on the Agreement on the
18 Published in Monitorul Oficial no. 594 of 1 July 2004
19 Moroşanu, R., in Volonciu, N., Uzlău, A. S. (coord.), Moroşanu, R. Voicu, C., Văduva, V., Tudor, G.,
Atasiei, D., Ghigheci, C., Gheorghe, T. V., Chiriţă, C. M., Noul Cod de procedură penală comentat (The New
Code of Criminal Proceedings Commented), Hamangiu, Bucharest, 2014, p. 1383
24
Reciprocal Encouragement and Protection of Investment and the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States20
.
In order to answer this question, we need to keep in mind that criminal law regulations are part of the
public order concept and, given this, we can say that there are some interferences between the regulatory
provisions of criminal law and criminal proceedings law and the provisions applied in arbitration21
. Therefore,
we can indicate here the general provisions of Law 134/2010 on the Code of Civil Proceedings22
as the general
rule in arbitration matters in our country, as well as the Convention on the Settlement of Investment Disputes
between States and Nationals of Other States, which in this case is the special rule in arbitration matters, and it is
known that when the general provisions and the special provisions derogating from the general ones or
complementing them compete, the special provisions prevail, when both the provisions which are general in
nature and those which are special are in force at the same time23
, as in the case of the provisions here above.
We also acknowledge that in line with the evolution of economic and social relations, arbitration has
become an interesting and pertinent topic, following the opening of premises for analysing this interesting and
necessary association between arbitration and criminal law, which gives rise to various and complex opinions24
.
It is true that, at first sight, such an approach may be considered unjustified since the subject matter of
arbitration is generally represented by issues of civil law applied in contract matters, which used to be dealt with
by business law.
At the same time, according to an opinion25
which we agree to, the majority of criminal offenses
stipulated by the provisions of the Criminal Code and special laws are and remain inapplicable for and improper
to commercial arbitration, however there are still some offences, usually the economic ones (which in France are
called commercial offences), which are susceptible of having interferences with the arbitral procedures, such as:
money laundering, corruption, breaking the currency exchange rules, fiscal fraud, forgery and use of forgery,
offences preventing justice to be done etc.
These aspects which are concerned with the provisions of criminal law, although they are not frequently
connected to arbitration litigation, can take various forms, sometimes in disguise, being however possible to be
manifested with such an intensity that any Arbitral Tribunal, within the limits of its competence and duties, is
obliged to take a stand, without being able to avoid to rule also in connection with the criminal aspects which are
specific to each situation, normally reflected in the general notion of public order26
.
To that effect, we are analysing whether it is justified, in the context which has been presented, to take
such a dispute to an Arbitral Tribunal, which was established and had its competence determined in accordance
with the provisions of Article 37 para (1) of the Convention on the Settlement of Investment Disputes between
States and Nationals of Other States.
It becomes therefore obvious that criminal law could not have any direct application in an arbitral
litigation and, irrespective of the serious of the actions, it is unconceivable that an Arbitral Tribunal may
determine by itself the existence of criminal actions or apply directly any criminal sanctions to those who are
guilty, although there are some provisions in the Criminal Code determining the criminal liability, including the
liability of legal persons, and as a matter of fact it becomes clear that the Arbitral Tribunal has no competence in
connection with these criminal aspects, even if they may influence, be it indirectly, the arbitral procedure.
We also note the obligation for the arbitrators to pronounce an enforceable sentence, and for this
reason they need to consider also the criminal law regulations of a particular state, which are usually reflected in
the notion of public order, a fact also made obvious by the provisions of Article 541 para (2) of the Code of Civil
Proceedings, stating that “in the administration of a jurisdiction, the litigant parties and the competent Arbitral
Tribunal may set procedural rules derogating from the general law, provided that those rules are not contrary to
public order and the imperative dispositions of the law”.27
20
The Convention on the Settlement of Investment Disputes between States and Nationals of Other States
(ICSID Convention) entered into force on 18 March 1965, published in Buletinul Oficial no. 56 of 7 June
1975; the document is available online on www.monitorul juridic.ro. 21
Florescu, G., Florescu, C., Interferenţe între dreptul penal şi arbitrajul comercial (Interferences between
Criminal Law and Commercial Arbitration), p. 1. The document is available online on www.e-
juridic.manager.ro. 22
Published in Monitorul Oficial no. 485 of 15 July 2010, republished in Monitorul Oficial no. 247 of 10 April
2015. 23
Boroi, A., Drept penal. Partea generală conform noului Cod penal (Criminal Law. The General Part in the
New Criminal Code), C. H. Beck, Bucharest, 2014, p. 33. 24
Florescu, G., Florescu, C., quoted work., p. 2. 25
Idem, quoted work, p. 2. 26
Florescu, G., Florescu, C., quoted work, p. 2. 27
Deleanu, I., Noul Cod de procedură civilă. Comentarii pe articole (The New Code of Civil Proceedings.
Articles Commented), volume I, Universul Juridic, Buharest, 2013, p. 735.
25
Therefore, it is obvious that the arbitrators have the duty to be concerned, in the arbitral procedure, so as
to avoid breaking any regulations which may be considered as being related to public order in the state where the
sentence would be enforced, thus to avoid any ruling which could raise implications related to criminal law or
special laws containing criminal provisions.
2. THE APPROPRIATENESS OF OBSERVING THE ARBITRATION PRINCIPLES, AS WELL AS
THE LIMITS IN SETTLING THE DISPUTES BETWEEN THE PARTIES
Taking into account that arbitration must follow the “ex aequo et bono” principle, according to which
arbitration “is conducted based on the principles of equity, and not according to the rules of law”, and pursuant
to the provisions of Article 47 of the Convention on the Settlement of Investment Disputes between
States and Nationals of Other States, the “Tribunal may, if it considers that the circumstances so require,
recommend any provisional measures which should be taken to preserve the respective rights of either party”,
but with the consideration of the provisions of Article 541 para (2) of the Code of Civil Proceedings, which
stipulates the limits between which procedural rules derogating from general law may be set, provided that those
rules are not contrary to public order and the imperative dispositions of the law, we consider therefore that, in the
case brought for analysis, neither the European arrest warrant and the extradition request, nor the provisional
detention warrant cannot be the subject matter of an Arbitral Tribunal.
Our opinion is based on the fact that the rules set in the procedure of the Arbitral Tribunal not only
derogate from the rules of general law, but, moreover, they become contrary to the imperative dispositions of
Articles 84-122 of Law 302/2004 on international judicial cooperation in criminal matters, which determine the
procedure for issuing and enforcing the European arrest warrant, the provisions of Articles 62-83 of the same
law, which govern the extradition request, as well as the provisions of Articles 223-240 of Law 135/2010 on the
Code of Criminal Proceedings, establishing the procedure for the measure of provisional detention.
On this line, we mention that according to the provisions of Article 94 of Law 302/2004, the withdrawal
of the European arrest warrant can be ordered only in the following situations:
- in case that the grounds for its issuance no longer exist;
- if the wanted person is dead;
- in the case stipulated by Article 65 para (4) of Law 302/2004 (The Centre for International Police
Cooperation of the General Inspectorate of the Romanian Police communicates to the requesting court as soon as
possible the date of the notice for an internationally wanted person and the date of the alert in the Schengen
Information System), if the internationally wanted person was extradited to or surrendered in Romania.
So, it becomes clear that, in the analysed case, the conditions expressly and restrictedly provided by the
legislator for applying the dispositions of the Decision issued by the Arbitral Tribunal are not met.
Moreover, with regard to the need to withdraw an extradition request, we note that according to the
provisions of Article 67 of Law 302/2004, in case that the person who may be extradited is no longer under the
effect of the provisional detention warrant or the enforcement warrant, the competent court, ex officio or at the
prosecutor’s request, states in its reasoned conclusions that the conditions provided by law for requesting the
extradition no longer subsist and orders the withdrawal of the extradition request at once. The decision is sent to
the Ministry of Justice within 24 hours since its pronouncement. The Ministry of Justice immediately withdraws
the extradition request and informs in this respect the Centre for International Police Cooperation of the General
Inspectorate of the Romanian Police.
We also specify that with regard to the withdrawal of the extradition request, the conditions for
applying the dispositions of the Decision issued by the Arbitral Tribunal are not met as well, because the
conditions stipulated by the legislator for the withdrawal of the extradition request are not met, especially as the
withdrawal of the request for the extradition of a person is closely dependant on the existence of a provisional
detention warrant, ordered by the Romanian competent judicial bodies.
With regard to the recommendation that Romania withdraws the provisional detention warrant issued
for the name of the accused person concerned, we mention that this preventive measure was ordered by the
competent judicial bodies, with the observance of the provisions of Law 135/2010 on the Code of Criminal
Proceedings28
, and the Arbitral Tribunal justly rejected such a request, which, as we already said, cannot be the
subject of an arbitral decision, especially since there are no provisions in the Code of Criminal Proceedings
related to the withdrawal of a provisional detention warrant, and this measure may cease only by right or it may
be revoked or replaced in some particular conditions, expressly provided by the legislator, by another preventive
measure, according to the dispositions of Article 241 of the Code of Criminal Proceedings.
At the same time, we admit that, generally, the arbitrators have a duty to promptly settle commercial
litigations, and in extreme cases, arbitral tribunals usually suspend the arbitration procedures until the criminal
ones are settled, and, to that effect, there are also the provisions of the Code of Civil Proceedings, applicable to
arbitral procedures too, which stipulate that judgment may be suspended “when criminal prosecution was
28
Published in Monitorul Oficial no. 486 of 15 July 2010.
26
initiated for an offence which could have a decisive impact on the decision to be issued”, and “suspension shall
last until the decision pronounced in the matter that justified the suspension has become indefeasible” (Article
412 para (1) point 2 and para (2) of the Code of Civil Proceedings).
We acknowledge that, in carrying out its mission, any Arbitral Tribunal has an implicit obligation to
pronounce a decision which is not only fair, but also final and enforceable.
With a view to the recognition and enforcement of the Arbitral Decision, we mention the provisions of
the ICSID Convention, which state that the award is binding on the parties, being necessary for each party to
ensure that it is enforced, so as each Contracting State recognizes any award rendered in the framework of the
Convention as being binding and ensures the enforcement on its territory of the pecuniary obligations which the
award imposed as if it were a final judgment of a tribunal operating on the territory of that state.
Also to that effect, we note that the “the Arbitral Decision is wilfully applied by the party against which
it was pronounced immediately or within the time limit indicated in its content” (Article 614 of the Code of Civil
Proceedings), given the fact that the “Arbitral Decision is an executory title and it can be enforced just as a Court
Decision” (Article 615 of the Code of Civil Proceedings).
However, according to an opinion29
which we agree to, the concept of arbitration is used more often in
two very precise senses, namely to designate the body entrusted with the settlement of a litigation amiably and to
determine the very existence of a special procedure for settling private law disputes. So, with regard to
extradition, and also to the European arrest warrant, they cannot be the subject matter of an arbitral procedure.
Therefore, we can see that the institution of extradition includes modern, up to date regulations, in line
with the provisions of the Convention on simplified extradition procedure between the Member States of the
European Union of 10 March 1995 and the Convention relating to extradition between the Member States of the
European Union of 27 September 1996. These two instruments of the European Community (already replaced in
the relation between the Member States by the Framework Decision on the European arrest warrant) come to
complement the instruments adopted under the aegis of the Council of Europe – the European Convention on
Extradition of 13 December 1957 and its Additional Protocols30
.
The new regulation of the institution of extradition is based on the provisions of the Constitution, the
Criminal Code, as well as the international conventions ratified by Romania, the substance of the matter being
given by Title II of Law 302/2004 on international judicial cooperation in criminal matters.
With regard to the European arrest warrant, this is a judicial decision where a competent judicial
authority of a Member State of the European Union requests the arrest and surrender of a person by another
Member State, for the purpose of criminal prosecution, judgement or executing a custodial sentence or the safety
measure of detention31
. As indicated even by the definition given by the law, the procedure itself is valid only
inside the European Union. The law stipulates the actions of a criminal nature which give place to surrender. In
this context, with the observance of the national law and the ratified conventions and treaties, Romania
undertakes to remit and also to request other Member States the application of this institution.
3. CONCLUSIONS
Although the current context of the legislation in the area of international judicial cooperation in
criminal matters brings under regulation institutions such as the extradition and the European arrest warrant, and
in the content of the Code of Criminal Proceedings we can also find a settlement of the institution of provisional
detention, the manner in which the withdrawal of the extradition request, the European arrest warrant and
provisional detention is requested exceeds however the provisions governing the application of a procedure
before an Arbitral Tribunal.
On the other hand, the Decisions of the Arbitral Tribunal are vested with an executory title at the time of
their pronouncement, but we need to specify however that the legislator imposes, with the provisions governing the
application of the arbitral procedure, some limits determined by the subject matter of the procedure itself and which
is generally represented by issues of civil law applied in contract matters, and therefore not by issues of criminal
law, criminal proceedings law or international judicial cooperation in criminal matters.
As a matter of fact, the parties may request the establishment of an Arbitral Tribunal in order to
“negotiate” the withdrawal of a provisional detention warrant, an extradition warrant or of a European arrest
warrant, but this does not necessarily create a possibility for the enforcement of a Decision pronounced by an
Arbitral Tribunal established for this purpose.
29
Leş, I., Tratat de drept procesual civil (Treaty of Civil Proceedings Law), with references to the draft Code of
Civil Proceedings, 5th
edition, C. H. Beck, Bucharest, 2010, p. 874 30
Boroi, A., Rusu, I., Cooperarea judiciară internaţională în materie penală (International Judicial Cooperation
in Criminal Matters), C. H. Beck, Bucharest, 2008, p. 104 31
Lorincz, A. L., Aspecte procesuale privind cooperarea judiciară internaţională în materie penală (Procedural
aspects related to international judicial cooperation in criminal matters), Pro Universitaria, Bucharest, 2008,
p. 43.
27
References
1. Boroi, A., Rusu, I., Cooperarea judiciară internaţională în materie penală (International judicial cooperation
in criminal matters), C. H. Beck, Bucharest, 2008
2. Boroi, A., Drept penal. Partea generală conform noului Cod penal (Criminal Law. The General Part in the
New Criminal Code), C. H. Beck, Bucharest, 2014
3. Deleanu, I., Noul Cod de procedură civilă. Comentarii pe articole (The New Code of Civil Proceedings.
Articles Commented), volume I, Universul Juridic, Bucharest, 2013
4. Florescu, G., Florescu, C., Interferenţe între dreptul penal şi arbitration comercial (Interferences between
Criminal Law and Commercial Arbitration), a document is available online on www.e-juridic.manager.ro
5. Leş, I., Tratat de drept procesual civil (Treaty of Civil Proceedings Law), with references to the draft Code of
Civil Proceedings, 5th
edition, C. H. Beck, Bucharest, 2010
6. Lorincz, A. L., Aspecte procesuale privind cooperarea judiciară internaţională în materie penală (Procedural
aspects related to international judicial cooperation in criminal matters), Pro Universitaria, Bucharest, 2008
7. Volonciu, N., Uzlău, A. S. (coord.), Moroşanu, R., Voicu, C., Văduva, V., Tudor, G., Atasiei, D., Ghigheci,
C., Gheorghe, T. V., Chiriţă, C. M., Noul Cod de procedură penală comentat (The New Code of Criminal
Proceedings Commented), Hamangiu, Bucharest, 2014
28
THE LEGAL DIMENSION OF THE CONCEALMENT OFFENCE
BOROI Alexandru,
Professor PHD, Titu Maiorescu University of Bucharest
NISTOR Iulia, PHD Candidate, Titu Maiorescu University of Bucharest
Abstract:
The changes in the case of the infraction of concealment and the frequency of committing such infractions
require an analysis both theoretically and practically. All aspects that have created controversy will be treated
by trying to classify them.
Keywords: concealment, criminal code, goods, infraction, committing.
1. GENERAL ASPECTS
In the criminal code, the infraction of concealment is regulated in the infractions against of justice and not in the
crimes against the patrimony, because in its content, this deed primarily affects the conduct of justice act by
hindering or preventing the identification or recovery of the concealed goods and, moreover, not all the goods
forming the object of the concealment come from committing of infractions against the patrimony, which makes
it difficult to explain how the concealment can be considered a crime against the patrimony if it concerns, for
example, a sum of money received by concealer in exchange for concealing false IDs or large amounts of money
from drug or human traffic.32
Unlike the previous Criminal Code, where the existence of the infraction was conditioned by the pursuit of a
material benefit for itself or for another, this condition is no longer foreseen in the new Criminal Code. This is
also due to the legislator's choice to include the actual favoring of the old Criminal Code concerning infraction of
concealment in the new criminal code.
2. PREVIOUS LEGISLATION
Ever since ancient times, concealment has been considered of greater gravity as a result of its incrimination.
In older legislation, concealment was provisioned either as a way of stealing or as a form of complicity, posterior
complicity.33
Only later in the modern criminal law, among which the Romanian one, was incriminated as a distinct, stand-
alone infraction.
Thus, the 1864 Criminal Code, despite having as model the French Criminal Code of 1810, departed from its
system and following the provisions of the 1851 Prussian Criminal Code, considered the concealment as an
independent infraction, expressly specifying that the concealer is not an accomplice.
In the Criminal Code of 1936, concealment was provisioned for as an infraction against the administration of
justice, and the Criminal Code of 1968 categorised it as an infraction against property. This group classification
of the concealing was considered inappropriate because it did not correspond to either the concept or the content
that the law attributed to the act of concealment.
3. OBJECT OF THE INFRACTION
a. The special legal object consists in the social value protected or the property that is endangered or
prejudiced by the acts of criminal law. The infraction of concealment has a special main legal object,
consisting in the social relations related to the performing of justice, as well as a special secondary legal
object represented by the patrimonial relations whose normal birth, development and development are
conditioned by the defense of the patrimony of the persons against the act of concealment.
32
A. Boroi, Criminal Law Special Part, Ed. 3, C.H. Beck, 2016, p. 370. 33
V. Dongoroz and I. Fodor, S. Kahane, N. Iliescu, I. Oancea, C. Bulai, R. Stănoiu, V. Roşca, Theoretical
explanations of the Romanian Criminal Code, Vol. III, Special part, Ed. Bucharest, 1971, p. 577.
29
b. The material object of the infraction consists of the good or goods resulting from performing an act
provisioned by the criminal law. These may be things, animals, writings that can be quantified in
money, household appliances, cars, etc. By the nature of this infraction, the material object can only be
a mobile good.
In the case of immovable goods, it was argued that they are not the material object of the infraction, because
logically, of course, they can not be concealed, hidden.34
The sign of equality placed between concealment and hiding seems to have resulted in the exclusion of buildings
from the category of goods that can form the material object of the infraction of concealing.
To hide is to place a good, a thing, so that it can not be seen and found, to steal its sight35
, and concealed means
something hidden, secret36
.
In case of receiving, acquiring or facilitating capitalization - they can look at both movable and immovable
goods. It is therefore possible for the concealer to receive, acquire or facilitate the capitalization of a building
that was built or not (land), that was obtained by committing a bribe or fraud.
We consider it difficult to argue that in such a situation the constitutive elements of the infraction of concealment
are not met simply because the good received, acquired or exploited is immovable and cannot therefore
constitute its material object, and because "to hide", can also be understood as "to conceal something".
4. SUBJECTS OF THE INFRACTION
a. The active subject of the infraction can be any person who fulfills the conditions for criminal liability.
The person who conceals a good cannot be the author or participant in committing the deed provisioned
by the criminal law from which the good comes. In this sense, it has been decided in judicial practice
that it is not the infraction of concealment, but that of moral complicity in the infraction of theft, the
deed of the person who ordinarily receives, in order to hide or capitalize goods acquired through
repeated thefts committed by the same person.
The High Court of Cassation and Justice in an appeal in the interest of the law37
stated that in the case
of a first act of concealment, followed by another action of the same concealer promising to ensure
further capitalization of other stolen goods, the elements constitutive of the complicity to the infraction
of theft in simple or continuous form, as the case may be, in real contest with the concealment
infraction, even if the anticipated promise of concealment of the goods was not fulfilled.
b. b. The passive subject is a natural or legal person, private or public, who has been the victim of the
infraction from which the good is being stolen.
5. OBJECTIVE ASPECT
a. The material element of the concealment infraction is characterized by alternative actions of receiving,
acquiring, transforming or facilitating the capitalization of the goods deriving from the deed
provisioned by the criminal law.
If these actions take place on the basis of a previous understanding or promise or concurrency with the author,
they no longer define the material element of the concealment, constituting acts of occasional criminal
participation in the form of material complicity.
It is irrelevant whether the good has been received personally from the author of the principal infraction, or was
handed over by another interposed person, if the concealer had an agreement with the author of the infraction,
nor how the received good was used.
We consider that the recipient of the good knew that it was an infraction of concealment because he realized the
benefit he was seeking.
If a person purchases goods he or she knew they derive from committing infractions, even paying a price
equivalent to their real value, he commits an infraction of concealment if he pursued a material profit, regardless
of the real price of things and the amount of profit he wanted to gain or gained it.
It is not necessary for the concealer to have acquired the goods in their material, being sufficient to have them at
his disposal.
Regarding the facilitation of capitalizing on the good, are synthetically comprehended all the activities by which
the concealer helps the author of the main infraction, after committing it, to gain the material profit he has
pursued by stealing the good.
34
V. Dongoroz, op. cit., p. 570 35
The Explanatory Dictionary of the Romanian Language, Univers Enciclopedic Publishing House, 1998, p. 63. 36
Idem p. 1067th
37 HCCJ, United Sections, Decision no. 11/2008, M. OF. no. 859/2008
30
In court practice, it was decided that he committed the infraction of concealment the one that he had agreed with
the author of a theft after he committed the infraction by helping him sell the stolen goods and share the price
obtained.38
It will be retained under the infraction of concealment, also the one who being present at committing a robbery,
he receives from one of the infractors a good of the victim. However, to the extent that the defendant did not
commit any of the facts provided by art. 270 par. (1) The Criminal Code, but took advantage only of the drink
and cigarettes bought by another defendant with money resulting from capitalizing of a stolen good, such an act
does not constitute concealment, lacking its objective aspect.39
b. The immediate consequence is the state of danger created for the social relations related to the
execution of the criminal justice, because the concealer is in possession of the good in the case of
committing the material element in the way of receiving, obtaining the title of property, in that of
acquiring the change of its substance or its form in that of transformation or alienation, its use, in that of
facilitating capitalization.
6. SUBJECTIVE ASPECT
In terms of the form of guilt, the infraction of concealment is committed with intent that may be direct or
indirect, unlike the regulation in the old Criminal Code where committing with a direct intention qualified by the
purpose of obtaining for himself or for another material benefit.
The constitution of the guilt was expressly and necessarily determined by unambiguous formulations which
require that the concealer have known or foresaw from the concrete circumstances of the case that the goods
received, acquired, transformed, or whose exploitation was facilitated, derives from an act of criminal law,
without the need for it to know its nature. For its existence and the subjective aspect of concealment, it is
necessary and sufficient for the concealer to know or to foresee from the circumstances of the case that the
concealed property derives from an act provisioned by criminal law.
The existence of a justifiable or incomprehensible cause (except error) does not remove the voluntary component
of the subjective aspect of the concealment infraction40
. We are in favor of the opinion that when there is a first
act of concealment followed by another act of the same concealer promising to ensure further capitalization of
other stolen goods, the constitutive elements of the complicity to the crime of theft in simple form or continued,
as the case may be, in real concurrency with the infraction of concealment, even if the anticipated promise of
concealment of the goods was not fulfilled.41
In court practice, it was decided that the defendant's act of agreeing the author of a theft, after committing the
infraction, helping him sell stolen goods and share the price obtained, constitutes the infraction of concealment.42
Instead, if the defendant carries, after a prior understanding, the authors of the theft at the scene of the deed with
his vehicle, or wait for them and carry them along with the stolen goods to the home of one of them where the
goods have been shared, it constitutes complicity to the theft infraction, not to concealment.43
The aid given to the infractor in order to provide him with the benefit or the product of infraction, which in the
old Criminal Code constituted the infraction of favoritism (the so-called real favoritism), in the new criminal
code it constitutes the infraction of concealment, irrelevant if the concealer pursues or not a material benefit from
committing the act.
7. OTHER ASPECTS
The infraction of concealment is consumed at the moment of integral execution, intentionally, of actions of the
material element, even without knowing the real origin of the goods.
It may be committed in a continuous form, irrelevant if the concealed goods come from the same author or from
different authors.
Concealment committed by a family member is not punished. It is a cause of personal impunity that does not
eliminate the criminal character of the act provisioned by the criminal law registered in favor of those who have
the quality of family member within the limits established by art. 177 Criminal Code. It is not necessary for the
38
SCJ, Criminal Section, Decision no. 2332 of 23 October 1996 in A. Boroi, V. Radu-Sultanescu and N. Neagu,
Reports of Cases, CH Beck Publishing, 1997, p. 39
Bacau Court of Appeal, Decision no. 84 / A / 1996 in RDP no. 3/1998, p. 152. 40
H. Diaconescu, R. Raducanu, The Offense against Justice, CH Beck Publishing House, Bucharest, 2014, p. 55. 41
M. Udroiu, Criminal Law Special Part, CH Beck Publishing House, Bucharest, 2017, p. 387. 42
SCJ, Criminal Section, Decision no. 2322/1996. www.legalis.ro. 43
SCJ, Criminal Section, Decision no. 1142/1996, www.legalis.ro.
31
concealer to be a family member with all the participants in committing the infraction from which the good is
conceived.
It should be mentioned that the sanctioning regime has some modifications in the sense that, compared to the old
Criminal Code, the present code provides a fine as an alternative to imprison, the special minimum of the latter
being raised from 3 months to one year, and the special maximum lowered from 7 to 5 years.
At the same time, (2) of art. 270 provisions that the penalty imposed on the concealer may not be higher than the
penalty provided by the criminal law for the infraction committed by the author (the rule in question has a
correspondent in the 1969 Criminal Code, the distinction being that it was used the notion of infraction, and the
reporting was done by reference to the material object of the concealment).
In the application of the more favorable criminal law principle, we mention that from the perspective of the
conditions of incrimination, the old law appears to be a more favorable law, and from the perspective of the
sanctioning regime, the current Criminal Code appears to be a more favorable law.
8. CONCLUSIONS
We consider that through the enterprised analysis, we have surprised the most current problems with the
concealment infraction and with certainly we cannot affirm that we have definitive solutions. If the concealment
was framed by the legislator in the title of crimes against justice, as necessary, this means that further
clarification will be required in doctrine and judicial practice.
REFERENCES
1. A. Boroi, Criminal Law Special Part, Ed. 3, C.H. Beck, 2016.
2. A. Boroi, V. Radu-Sultanescu, N. Neagu, Collection of specimens, CH Beck Publishing, 1997.
3. H. Diaconescu, R. Răducanu, The Offense against the Judiciary, CH Beck Publishing House, Bucharest, 2014.
4. M. Udroiu, Criminal Law, special part, CH Beck Publishing House, Bucharest, 2017.
5. The Explanatory Dictionary of the Romanian Language, Univers Enciclopedic Publishing House, 1998.
6. V. Dongoroz and I. Fodor, S. Kahane, N. Iliescu, I. Oancea, C. Bulai, R. Stănoiu, V. Roşca, Theoretical
explanations of the Romanian Criminal Code, Vol. III, Special part, Ed. Bucharest, 1971.
32
DIGITAL INHERITANCE: PROBLEMS, CASES AND SOLUTIONS
Aniței Ana-Caterina, Civil Law Notary, SPN “Aniței și Asociații” Botoșani
Abstract: Notions as 5G Revolution , Robolution, Fintech , Insurtech, BitCoin, VR (virtual reality),
Blockchain and digital inheritance make up the theme of almost every international congress, seminar and
debate. Nowadays people do most things online, using a computer with internet connection or a smartphone with
countless applications: they sell, buy and pay goods and services online, they get a subscription to different
services, they can book a hotel room using BitCoin (virtual currency) and so on. In our opinion, digitalization
and this world “without borders” have influenced in a positive manner our lives in general and the lives of these
small communities in particular, have opened paths and possibilities, made everything easier and faster, but also
given rise to new questions, challenges and risks. We can now talk about a “digital legacy” and “digital
footprints” in the online world. Music, games and books are purchased online and consumed digitally. More
data is shared online in exchange for a ‘free’ service, such as email services, cloud services or navigation
applications. Yet, it is not entirely clear what will happen to these digital products in case of death. If a book
collection or a vinyl record collection could be inherited by one’s heirs, it is not same as clear and obvious when
it comes to digital products and services.
1. INTRODUCTION
It is clearer to us every day that times are changing and they are changing at an incredible speed. Science and
technology have moved ahead of law from an evolutional point of view. Notions as 5G Revolution44
,
Robolution, Fintech45
, Insurtech, BitCoin, VR (virtual reality), Blockchain46
and digital inheritance make up the
theme of almost every international congress, seminar and debate. Nowadays people do most things online,
using a computer with internet connection or a smartphone with countless applications: they sell, buy and pay
goods and services online, they get a subscription to different services, they can book a hotel room using BitCoin
(virtual currency), they can test a service before purchasing it by means of virtual reality, as for instance the
feature “Try before you fly” of flight company Thomas Cook, they communicate and keep in touch with each
other, they use video conference, they set up online businesses, they may choose to work from home, in one
word, they use E-commerce and everything else that is available to them in the digital world. Just to give a few
44
In the early 1990s, when wireless phone technology first appeared, the first generation began. The second
generation, or 2G, started when phones were able to send text messages between devices. Eventually, telecom
providers moved on to the third generation — or 3G — which allowed people to do just about anything with
their phones, including calls, texting and even browsing the internet. The fourth generation enhanced those
capabilities by providing faster wireless access and better connectivity — which is why you’re able to stream
content via services like YouTube, Netflix, and Hulu no matter where you are. LTE, or “long-term evolution”
was added to the 4G moniker to indicate an even bigger boost in performance. Finally, we have 5G, or the
fifth generation. It will build upon the 4G LTE technology to significantly increase connection and browsing
speeds. Data transfer speeds will increase, which means it won’t take as long to share Ultra HD or 3D videos,
HDR-quality photos and more. 5G will allow the kind of high-performance connections needed to enjoy
gaming on mobile networks. We’re, of course, talking about console-quality gaming here and not mobile
gaming. - https://datafloq.com/read/the-5g-revolution-is-coming-what-to-know/2501 45
Financial technology is the new technology and innovation that aims to compete with traditional financial
methods in the delivery of financial services. - Infinite Financial Intermediation, 50 Wake Forest Law Review
643 (2015); The use of smartphones for mobile banking and investing services are examples of technologies
aiming to make financial services more accessible to the general public. Financial technology companies
consist of both startups and established financial and technology companies trying to replace or enhance the
usage of financial services existing financial companies. - Sanicola, Lenny (13 February 2017). "What is
FinTech?". Huffington Post. Retrieved 20 August 2017 46
A blockchain is a digitized, decentralized, public ledger of all cryptocurrency transactions. Constantly growing
as ‘completed’ blocks (the most recent transactions) are recorded and added to it in chronological order, it
allows market participants to keep track of digital currency transactions without central recordkeeping. Each
node (a computer connected to the network) gets a copy of the blockchain, which is downloaded
automatically. Originally developed as the accounting method for the virtual currency Bitcoin, blockchains –
which use what's known as distributed ledger technology (DLT) – are appearing in a variety of commercial
applications today. Currently, the technology is primarily used to verify transactions, within digital currencies
though it is possible to digitize, code and insert practically any document into the blockchain. Doing so
creates an indelible record that cannot be changed; furthermore, the record’s authenticity can be verified by
the entire community using the blockchain instead of a single centralized authority.
http://www.investopedia.com/terms/b/blockchain.asp#ixzz4x0hBpo69
33
more examples that emphasize the current reality we are living in, Spotify, a music streaming service, has over
140 million users worldwide as of June 201747
, Gmail reached its 900 millionth user in March 201548
and
Facebook has 2.01 billion monthly active users as of June 30, 201749
.
Since 1993 when the Maastricht Treaty on European Union was signed and until present day there have been
many changes. The right to free movement, the right to work and reside in other member states of the EU, as
well as globalization, have led to discoveries and to an unstoppable evolution, that continues to progress, so that
today, more often than ever, we are talking of a digitalization of the world we live in and of an Europe “without
borders”. Communities that were once isolated, towns that were once considered small, without opportunities
and perspectives as far as finding a job was concerned or regarding the entertainment aspect, are now…different.
More and more aspects of our lives tread into the digital domain.
In our opinion, digitalization and this world “without borders” have influenced in a positive manner our lives in
general and the lives of these small communities in particular, have opened paths and possibilities, made
everything easier and faster, but also given rise to new questions, challenges and risks.
We can now talk about a “digital legacy” and “digital footprints” in the online world. Music, games and books
are purchased online and consumed digitally. More data is shared online in exchange for a ‘free’ service, such as
email services, cloud services or navigation applications. Yet, it is not entirely clear what will happen to these
digital products in case of death. If a book collection or a vinyl record collection could be inherited by one’s
children/heirs, it is not same as clear and obvious when it comes to digital products and services.
2. CASES
On September 3rd
2012 some fake news circulated the internet claiming that the actor Bruce Willis found out that
the ‘extensive library’ of films and music that he had downloaded from the Apple iTunes Store was actually not
legally his to leave to his three daughters in his will. The story stated that Willis was planning to sue Apple, and
was ‘looking into ways that might allow his three daughters […] to legitimately inherit it.’50
Although a fake
article, it underlines some aspects a normal consumer might not even be aware of, such as how do companies
regulate the ownership of the music we download, of the games we buy and play online; of the accounts we
create and use, of the email addresses?
One of the best known real cases is that of a 15 year old girl from Berlin, Germany, who died 5 years ago by
being run over by an oncoming train at a German subway station. In search for answers on whether or not their
child's death was an accident or a suicide, the parents tried accessing their dead daughter's social media account
hoping that by going through the posts and messages on her Facebook page more will be revealed about her
death or simply to get some closure. When the mother that had her daughter’s Facebook password tried to log in
she could not anymore since the account had been ‘frozen’ or ‘memorialized’51
. Therefore the parents sued
Facebook in 2015 in hope of gaining access to the Facebook page from the social media giant. In a first trial at
the Berlin district court in December 2015, judges had decided in favor of the parents and had ordered Facebook
to give them access. The judges said analog and digital possessions should be treated the same. Otherwise it
would lead to the paradox that "letters and diaries were inheritable independent of their content, but e-mails and
private Facebook posts were not." They argued that giving the parents access wouldn't violate the daughter's
personal rights, since parents are allowed to know what their children who are still minors communicate online.52
The US social network, which does not automatically delete dead users' accounts, appealed, arguing that the
decision to release the account information would affect other users who exchanged messages with the girl that
they believed, would remain private. Berlin’s court of appeal ruled that the parents of the teenager, who died in
2012 after falling in front of an underground train, had no claim to access her details or chat history. The ruling
goes against the decision made in an initial judgment by the regional court in 2015. It raises fresh questions over
digital inheritance and who has the right to manage someone’s online presence and intellectual property when
they die. The court said it had made the ruling according to the telecommunications secrecy law which precludes
heirs from viewing the communications of a deceased relative with a third party. The ruling was based on
weighing up inheritance laws drawn up almost 120 years ago and the rights of parents towards minors, with the
telecommunications secrecy law introduced to protect the privacy of telephone conversations which was updated
47
Spotify, ‘What is Spotify?’ https://press.spotify.com/us/about/ Accessed 23 October 2017. 48
Benjamin Snyder, ‘Gmail just hit a major milestone’ (Fortune, 29 May 2015)
http://fortune.com/2015/05/29/gmail-users/ accessed 23 October 2017. 49
Facebook, ‘Stats’ https://newsroom.fb.com/company-info/ accessed 23 October 2017. 50
https://www.theguardian.com/film/2012/sep/03/bruce-willis-apple-itunes-library 51
KELLY MCLAUGHLIN FOR MAILONLINE, ‘German parents sue Facebook because it won't grant them
access to their dead daughter's account as they try to find out if her death five years ago was suicide or an
accident’, PUBLISHED: 11:38 BST, 27 April 2017 | UPDATED: 12:04 BST, 27 April 2017 Accessed 27
October 2017 http://www.dailymail.co.uk/news/article-4451174/Parents-sue-Facebook-access-dead-daughter-
s-account.html 52
Carla Bleiker, ‘What happens to your Facebook account after you die?’, 25.04.2017
http://www.dw.com/en/what-happens-to-your-facebook-account-after-you-die/a-38581943
34
by the constitutional court in 2009 to include emails. Björn Retzlaff, the judge who ruled in Berlin, deemed that
the same rules applied to internet chats. “That is at the centre of our decision,” Retzlaff told the court, stressing at
the same time that the decision had been a difficult one.53
Another case is that of a 72-year old Canadian widow, Peggy Bush that lost her husband to lung cancer a few
years ago. The couple owned an iPad and an Apple computer. Bush knew the iPad's log-in code, but didn't know
the Apple ID password. So when her card game app stopped working, the family tried to reload it and realized it
couldn't be done without the password. She could get a new Apple ID account and start from scratch, but that
would mean repurchasing everything they had already paid for. Or as an alternative, Apple demanded that she
obtained a court order to retrieve her dead husband's password so she could play games on the iPad, a notarized
death certificate and a will were not enough.54
3. LEGAL QUESTIONS AND APPROACH
This essay will try to answer the following main questions and provide some solutions in view of the
international case-law where available55
: What are these digital assets? How does one inherit property under
Romanian Law? Common practice among big companies such as providers like Google, iTunes or Blizzard
Entertainment56
. Do these providers transfer ownership to the consumer after a purchase of digital assets?
In order to start answering the above mentioned questions, a traditional legal approach, namely the analysis and
the comparison of the Romanian, European and International law and case-law, is required. To start with, I
looked up for some definitions in the Romanian doctrine, the Romanian Civil Code (2009), The Constitution of
Romania, Protocol 1 of the ECHR and of course, online.
4. DEFINITIONS AND CLASSIFICATIONS PROVIDED AT NATIONAL ROMANIAN
LEVEL; AT EUROPEAN LEVEL AND AT INTERNATIONAL LEVEL
According to art. 31 (1) of the Romanian Civil Code “any natural or legal person is the owner of a patrimony
that includes all the rights and debts that can be valued in money and belong to him“.57
The patrimony can be defined as the totality of rights and obligations of economic value which belong to a
subject of law58
. Another definition of Professors Tr. Ionașcu and S. Brădeanu states that the patrimony
represents "all the rights and obligations of economic value, the assets to which these rights relate, belonging to a
person, whose needs or tasks is intended or meant to satisfy”59
. In Professor Stoica's view, with reference to the
older French doctrine, the notion of patrimony would include only the rights and obligations with economic
content as incorporeal goods. In this respect, he claims that "the patrimony is a legal notion, thus an intellectual
reality. As a result, it can also be formed from intellectual elements, ie from patrimonial rights and obligations,
namely incorporeal goods and not of tangible material goods".60
Secondly a definition of assets is needed as there is a close connection between goods and propriety. Art. 535 of
the Romanian Civil Code states that “Assets/goods, tangible or intangible assets, which are the object of a
53
Kate Connolly, ‘Parents lose appeal over access to dead girl's Facebook account’, Wednesday 31 May 2017
15.28 BST, https://www.theguardian.com/technology/2017/may/31/parents-lose-appeal-access-dead-girl-
facebook-account-berlin Accessed 27 October 2017. 54
Rosa Marchitelli, GO PUBLIC ‘Apple demands widow get court order to access dead husband's password’,
Posted: Jan 18, 2016 5:00 AM ET, http://www.cbc.ca/news/business/apple-wants-court-order-to-give-access-
to-appleid-1.3405652 55
Another case: Agence France-Presse in Rome, ‘Father asks Apple head Tim Cook to unblock dead son's
iPhone’ https://www.theguardian.com/technology/2016/mar/31/father-apple-tim-cook-unblock-dead-son-
iphone-leonardo-fabbretti 56
In the third quarter of 2016 Activision Blizzard had the biggest quarterly online player community in its
history, with 42 million monthly active users across all games;
http://files.shareholder.com/downloads/ACTI/3150288457x0x915693/CE203ED2-D3F9-4322-BC44-
20BEF3C5BA29/Q3_2016_ATVI_Press_Release_with_Tables_vF.pdf accessed 23 October 2017. 57
Art. 31 Patrimoniul. Mase patrimoniale şi patrimonii de afectaţiune. (1) Orice persoană fizică sau persoană
juridică este titulară a unui patrimoniu care include toate drepturile şi datoriile ce pot fi evaluate în bani şi
aparţin acesteia. https://legeaz.net/noul-cod-civil/art-31-patrimoniul-mase-patrimoniale-si-patrimonii-de-
afectatiune-publicitatea-drepturilor-a-actelor-si-a-faptelor-juridice 58
C. Hamangiu, I. Rosetti-Bălănescu, Al. Băicoianu – ‘Tratat de drept civil român’, vol. I, Ed. All Beck,
București 1996, pagina 522 – Translation into English by the author. 59
A se vedea Tr. Ionașcu, S. Brădeanu – ‘Drepturile reale principale în Republica Socialistă România’, Ed.
Academiei, București 1978, pagina 13 – Translation into English by the author. 60
V. Stoica – ‘Drept civil. Drepturile reale principale’, vol. I, 2004, vol. II, 2006, Ed. Humanitas, București; V.
Stoica –‘Drept civil. Drepturile reale principale’, Ed. C.H. Beck, București 2009 – Translation into English
by the author.
35
patrimonial right, are goods”.61
Art. 536 of the Romanian Civil Code further distinguishes between types of
goods by providing that “Goods are mobile or immobile.”62
Another classification that is of interest for us here is the one that divides assets into tangible and intangible. This
classification has as a criterion the way we perceive them - corpo-rales hae sunt quae tangi possunt, velut fundus,
vestis, aurum; incorporales quae tangi non possunt, qualia sunt quae in iure consistunt, sicut hereditas,
usufructus, obligationes. Tangible goods are those goods that have a material existence, being easily perceptible
to human senses.
Intangible goods are economic values that have an ideal, abstract existence. These are property assets
patrimonial rights.
In the older legal literature, it is emphasized that the division of property into tangible and intangible assets is
equivalent to opposing the right to property, on the one hand, to other real rights and debt rights, on the other.
This is because, as we have already said, ownership is embedded in the object it bears.
We will distinguish the following categories of embedded goods:
- real rights other than ownership;
- incorporeal properties. this category includes goods whose existence depends on human activity and creative
power either from an ongoing activity or from a past activity and materialized in spiritual creations (industrial
property rights, copyright and neighboring rights thereof);
- Securities. this category includes securities (shares, bonds, derivative financial instruments or any other credit
ratings of the National Securities Commission in this category) as well as trade effects (bill of exchange,
promissory note and check);
- debt rights.63
Art. 953 of the Romanian Civil Code defines inheritance “the transmission of the assets of a deceased natural
person to one or more persons in the being.”64
Art. 44 of the Romanian Constitution named Right of private property provides the following:
“(1) The right of property, as well as the debts incurring on the State are guaranteed. The content and limitations
of these rights shall be established by law.
(2) Private property shall be equally guaranteed and protected by the law, irrespective of its owner. Foreign
citizens and stateless persons shall only acquire the right to private property of land under the terms resulting
from Romania's accession to the European Union and other international treaties Romania is a party to, on a
mutual basis, under the terms stipulated by an organic law, as well as a result of lawful inheritance.
(3) No one shall be expropriated, except on grounds of public utility, established according to the law, against
just compensation paid in advance.
(4) The nationalization or any other measures of forcible transfer of assets to public property based on the
owners' social, ethnic, religious, political, or other discriminatory features.
(5) For projects of general interest, the public authorities are entitled to use the subsoil of any real estate with the
obligation to pay compensation to its owner for the damages caused to the soil, plantations or buildings, as well
as for other damages imputable to these authorities.
(6) Compensation provided under paragraphs (3) and (5) shall be agreed upon with the owner, or by the decision
of the court when a settlement cannot be reached.
(7) The right of property compels to the observance of duties relating to environmental protection and insurance
of neighborliness, as well as of other duties incumbent upon the owner, in accordance with the law or custom.
(8) Legally acquired assets shall not be confiscated. Legality of acquirement shall be presumed.
(9) Any goods intended for, used or resulting from a criminal or minor offence may be confiscated only in
accordance with the provisions of the law.”65
Art. 46 of the Romanian Constitution called the Right of inheritance states that “The right of inheritance is
guaranteed.”66
Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms provides
in Article 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall
61
Art. 535 Noţiune. “Sunt bunuri lucrurile, corporale sau necorporale, care constituie obiectul unui drept
patrimonial.”– Translation into English by the author 62
Art. 536 Bunurile mobile şi imobile. „Bunurile sunt mobile sau imobile.” Idem 63
Gabriel Boroi, Carla Alexandra Anghelescu – ‘Curs de drept civil. Partea generală’, Ediția a 2-a revizuită și
adaugită, Editura Hamangiu, , București 2012, pagina 82 sau https://legeaz.net/dictionar-juridic/clasificarea-
bunurilor - Translation into English by the author. 64
Art. 953 Noţiune. “Moştenirea este transmiterea patrimoniului unei persoane fizice decedate către una sau mai
multe persoane în fiinţă.” Idem 65
Consitution of Romania, http://www.cdep.ro/pls/dic/site.page?den=act2_2&par1=2#t2c2s0sba44 – Accessed
on 27 October 2017 66
Idem 9
36
be deprived of his possessions except in the public interest and subject to the conditions provided for by law and
by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it
deems necessary to control the use of property in accordance with the general interest or to secure the payment
of taxes or other contributions or penalties.”67
The right to property is enshrined in article 1 of Protocol 1 to the ECHR. It is among the most frequently violated
Convention rights, third only to the right to speedy trial and the right to fair trial. As of 1 January 2010, 14.58%
of all judgment in which the European Court of Human Rights found a violation of the ECHR concerned the
right to property; 26. 37 percent regarded the length of proceedings under article 6 and 21.10 % the right to a fair
trial under article 668
There are a few existing definitions of digital assets, starting with the most important examples, such as
definition of “Digitaler Nachlass” 69
(ENG: “digital legacy”) by Deutscher Anwaltverein – DAV (ENG: German
Bar Association)70
, definition of “digital assets” in the Fiduciary Access to Digital Assets Act from the U.S.71
and the definition of “digital content” in Consumer Right Directive 2011/83/EU72
. We need to distinguish also
67
Council of Europe, Protocol 1 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms, 20 March 1952, ETS 9, available at:
http://www.refworld.org/docid/3ae6b38317.html [accessed 27 October 2017] 68
The European Court of Human Rights has held that article 1 of protocol 1 contains three rules:
The first one establishes the protection of property. It is contained in the first sentence of article 1 of protocol 1
ECHR (‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’)
The second rule concerns the deprivation of property. It sets out requirements and general principles for
expropriations and is laid down in the second sentence of article 1 of protocol 1 (‘No one shall be deprived of
his possessions except in the public interest and subject to the conditions provided for by law and by the
general principles of international law.’)
The third rule deals with the control of use of property. It clarifies that obligations, such as tax duties, may be
tied to property in the interest of the public. This rule is contained in the second paragraph of article 1 of
protocol 1 (‘The preceding provisions shall not, however, in any way impair the right of a State to enforce
such laws as it deems necessary to control the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or penalties.’)
While it is longstanding jurisdiction of the Court that article 1 of protocol 1 contains three rules, the Court has
reiterated at the same time that these three rules should not be viewed as isolated but rather as forming one
concept of property protection: The enjoyment of possessions is guaranteed, but this guarantee is not without
limits. On the other hand, when it comes to restricting the right to property it needs to be borne in mind that
property is in principle protected under article 1 of protocol 1 and rule 2 and three have to be construed in
light of this principle (Beyeler v Italy). The approach taken by the European Court of Human Rights when
examining cases concerning the right to property is not always the same: After clarifying that article 1 of
protocol 1 is applicable, the Court sometimes establishes whether the measure in question constitutes a
deprivation of property or rather falls in the ambit of control of use (see for example Suljagic v Bosnia and
Herzegovina).
http://echr-online.info/right-to-property-article-1-of-protocol-1-to-the-echr/introduction/ Accessed 27 October
2017 69
https://de.wikipedia.org/wiki/Digitaler_Nachlass 70
https://www.lifepr.de/pressemitteilung/deutscher-anwaltverein-dav-ev/DAV-Gesetzgeber-muss-digitalen-
Nachlass-regeln/boxid/415707 ;
https://digital-danach.de/digitaler-nachlass-stephanie-herzog-deutscher-anwaltverein/ . 71
Uniform Law Commission (ULC), The National Conference of Commissioners on Uniform State Laws,
Fiduciary Access to Digital Assets Act, Revised (2015) “A fiduciary is a person appointed to manage the
property of another person, subject to strict duties to act in the other person’s best interest. Common types of
fiduciaries include executors of a decedent’s estate, trustees, conservators, and agents under a power of
attorney. This act extends the traditional power of a fiduciary to manage tangible property to include
management of a person’s digital assets. The act allows fiduciaries to manage digital property like
computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic
communications such as email, text messages, and social media accounts unless the original user
consented in a will, trust, power of attorney, or other record.”
http://www.uniformlaws.org/Act.aspx?title=Fiduciary%20Access%20to%20Digital%20Assets%20Act,%20Revi
sed%20(2015) – Accessed on 27 October 2017. 72
DIRECTIVE 2011/83/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October
2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European
Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the
37
different types of digital assets: (1) social networks profiles; (2) mailbox services; (3) digital goods (e-books,
music); (4) accounts and User Generated Content in online computers games and virtual worlds; (5) credits and
points in customer loyalty programs; (6) virtual means of payments and currencies; (7) accounts used for
commercial activities and shopping online; (8) blogs and microblogs; (9) rights to used certain domain address
and other contractual obligation; (10) data stored in the Cloud. It is important because each of them is different
from the legal perspective and therefore different legal frameworks may apply.
Unfortunately, the transferability of a digital inheritance has not been fully regulated by the Romanian or
European legislator or by other parts of the world. The European Commission Student ICT Discussion Group
2015 has chosen this topic for debate. The focus of these talks rest mainly on whether or not a European
framework is needed, since as of yet, no clear rules have been set in this area73
.
Digital assets do have economic value along with non-commercial or sentimental meaning to all parties
involved: owners, users and heirs. They are part of the legacy of the deceased and should be available and
transferable to heirs or other persons authorized by the deceased. Transferability of digital assets in case of death
has not been completely regulated by law yet and there is no existing unified legal system within the European
Union. The importance of transferability of digital assets will be increasing and the law should adapt to the needs
of the society and adjust range of available measures to provide them with the rights and freedoms they should
have.
5. TEMPORARY SOLUTIONS
Some temporary possible solutions until we get specific provisions and legislation updated to include
digital assets and their transfer through inheritance in particular provided by authors Lilian Edwards74
and
Edina Harbinja 75
in their paper “What happens to my Facebook profile when I die?” - Legal Issues Around
Transmission of Digital Assets on Death76
:
LAW: Harmonize international rules to create a requirement on service providers to give access to digital
accounts and assets to properly accredited representatives of the deceased with a simple uniform rule that a
deceased’s emails (and other digital accounts and assets?) cannot be deleted until a certain time after death, so
European Parliament and of the Council, Official Journal of the European Union L 304/64 22.11.2011 -
“Digital content means data which are produced and supplied in digital form, such as computer programs,
applications, games, music, videos or texts, irrespective of whether they are accessed through downloading or
streaming, from a tangible medium or through any other means. Contracts for the supply of digital content
should fall within the scope of this Directive. If digital content is supplied on a tangible medium, such as a
CD or a DVD, it should be considered as goods within the meaning of this Directive. Similarly to contracts
for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set
quantity, or of district heating, contracts for digital content which is not supplied on a tangible medium
should be classified, for the purpose of this Directive, neither as sales contracts nor as service contracts. For
such contracts, the consumer should have a right of withdrawal unless he has consented to the beginning of
the performance of the contract during the withdrawal period and has acknowledged that he will
consequently lose the right to withdraw from the contract. In addition to the general information
requirements, the trader should inform the consumer about the functionality and the relevant interoperability
of digital content. The notion of functionality should refer to the ways in which digital content can be used,
for instance for the tracking of consumer behaviour; it should also refer to the absence or presence of any
technical restrictions such as protection via Digital Rights Management or region coding. The notion of
relevant interoperability is meant to describe the information regarding the standard hardware and software
environment with which the digital content is compatible, for instance the operating system, the necessary
version and certain hardware features. The Commission should examine the need for further harmonisation of
provisions in respect of digital content and submit, if necessary, a legislative proposal for addressing this
matter.”
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0083 Accessed on 27 October 2017. 73
Paweł Szulewski, ‘Digital legacy – is it possible to transfer digital assets in case of death?’ (European
Commission, 6 October 2015) https://ec.europa.eu/digital-single-market/content/digital-legacy-it-possible-
transfer-digital-assets-case-death Accessed 23 October 2017. 74
Lilian Edwards* University of Strathclyde [email protected] * Professor of E-Governance,
University of Strathclyde, Glasgow 75
Edina Harbinja†University of Strathclyde [email protected] 76
CREATe Working Paper 2013/5 (May 2013) “What happens to my Facebook profile when I die?”:
Legal Issues Around Transmission of Digital Assets on Death, RCUK Centre for Copyright and New Business
Models in the Creative Economy, College of Social Sciences / School of Law, University of Glasgow,
www.create.ac.uk
38
that assets are not destroyed before relatives find out what to do, and if necessary, what court orders can be
obtained.
LAW /MARKET/CODE: Require service providers to offer users an easy to understand and sufficiently
prominent opportunity to make an election as to what happens to their digital assets after they die.
CODE: Using digital wills/trusts etc. A number of digital services have emerged in recent years to try, in the
main absence of legal assistance, to solve the problems of transmission of digital assets as digital assets. These
include “password lockers”, online will drafters and post-mortem emailers, as well as various hybrids (e.g. Asset
Lock, Entrustet, LifeEnsured, Death Switch, My Digital Executor, Final Fling). Unsurprisingly, given the terrain
surveyed above, these are not themselves a foolproof solution. Passing on a password may be a breach of terms
of service, a criminal offence or inconsistent with the law of succession/executor (e.g. engaging conflicts with
who is the heir on intestacy or under a written will, requirements of will formalities, jurisdiction issues etc.)
Other concerns include the stability and longevity of the market and individual services, security, identity theft
etc.). However, with the assistance of law (as in suggestions a. and b. above), these code solutions could,
arguably, be appropriate for the online environment and enable more efficient and accessible transmission of
certain digital assets.
NORMS: Education and training. It goes without saying that better public and indeed, lawyer, and policymaker,
awareness of some of these issues would help resolve them before disputes arise. Service providers should make
their policies on death clearer and more transparent (or indeed, create some if none exist); To continue the idea
of the authors above-mentioned, maybe service providers should toughen their policies as far as minors are
concerned and only allow parents to create accounts for their children if they so consider, therefore, also no
matter what, they should be the ones able to close down the accounts, access or ‘memorialize’ them.
6. CONCLUSION
In conclusion, I think that the Romanian legislators should include specific legal provisions for digital assets in
our Civil Code and that the European Union should prepare a European framework and guidelines in the area of
transferability of digital assets. It would be the next step in the slow and difficult process of the unification of
European succession law, as well as civil law. But until laws are updated and service providers change their
policies to reflect the digitalization of modern days, people should include clauses in their wills that allow the
executor to deal with digital assets and include information/clues on where to find the passwords, but not the
passwords themselves, for obvious security reasons, if there is a digital legacy they want to pass on. If not, in my
opinion, they should still include a provision in their will clarifying their desire in connection to their digital
assets: that they wish no one accessing their social media accounts or that they want the accounts simply deleted.
In that way all should be clear and both the will of the deceased person respected and the right to privacy of third
parties and the security requirement observed. In all cases though, cooperation between professionals, legislators,
companies, service providers and IT experts is the key word and the connecting factor between the real needs
and problems of people, which can be easily identified by the professionals who meet with them and talk to them
on a daily basis, the legal requirements needed which can be taken by the legislators at national, European and
international level and the solutions which IT experts can translate into programmes, applications in the virtual
and digital world, all of this with the purpose of helping the citizens and of meeting the demands of the world we
live in, that is currently in a process of continuous digitalization
REFERENCES:
1. Benjamin Snyder, ‘Gmail just hit a major milestone’ (Fortune, 29 May 2015)
2. Carla Bleiker, ‘What happens to your Facebook account after you die?’, 25.04.2017
3. C. Hamangiu, I. Rosetti-Bălănescu, Al. Băicoianu – ‘Tratat de drept civil român’, vol. I, Ed. All Beck,
București 1996, pagina 522
4. Consitution of Romania
5. Council of Europe, Protocol 1 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms, 20 March 1952, ETS 9
6. DIRECTIVE 2011/83/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25
October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC
of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and
Directive 97/7/EC of the European Parliament and of the Council, Official Journal of the European
Union L 304/64 22.11.2011
7. Elske Derks - Digital assets after death. The inheritance of digital music under Dutch law , ANR
616218, Master's Thesis, LLM Law & Technology, Tilburg Law School, October 2016
8. Gabriel Boroi, Carla Alexandra Anghelescu – ‘Curs de drept civil. Partea generală’, Ediția a 2-a
revizuită și adaugită, Editura Hamangiu, , București 2012, pagina 82
9. Infinite Financial Intermediation, 50 Wake Forest Law Review 643 (2015)
10. Kate Connolly, ‘Parents lose appeal over access to dead girl's Facebook account’, Wednesday 31 May
2017 15.28 BST
39
11. KELLY MCLAUGHLIN FOR MAILONLINE, ‘German parents sue Facebook because it won't grant
them access to their dead daughter's account as they try to find out if her death five years ago was
suicide or an accident’, PUBLISHED: 11:38 BST, 27 April 2017 | UPDATED: 12:04 BST, 27 April
2017
12. Lilian Edwards, Edina Harbinja - CREATe Working Paper 2013/5 (May 2013) “What happens to my
Facebook profile when I die?” - Legal Issues Around Transmission of Digital Assets on Death, RCUK
Centre for Copyright and New Business Models in the Creative Economy, College of Social Sciences /
School of Law, University of Glasgow
13. Paweł Szulewski, ‘Digital legacy – is it possible to transfer digital assets in case of death?’ (European
Commission, 6 October 2015)
14. Rosa Marchitelli, GO PUBLIC ‘Apple demands widow get court order to access dead husband's
password’, Posted: Jan 18, 2016 5:00 AM ET
15. Sanicola, Lenny (13 February 2017). "What is FinTech?", Huffington Post.
16. Tr. Ionașcu, S. Brădeanu – ‘Drepturile reale principale în Republica Socialistă România’, Ed.
Academiei, București 1978, pagina 13
17. Uniform Law Commission (ULC), The National Conference of Commissioners on Uniform State Laws,
Fiduciary Access to Digital Assets Act, Revised (2015)
18. V. Stoica – ‘Drept civil. Drepturile reale principale’, vol. I, 2004, vol. II, 2006, Ed. Humanitas,
București; V. Stoica –‘Drept civil. Drepturile reale principale’, Ed. C.H. Beck, București 2009
Websites:
1. https://datafloq.com/read/the-5g-revolution-is-coming-what-to-know/2501
2. http://www.investopedia.com/terms/b/blockchain.asp#ixzz4x0hBpo69
3. https://press.spotify.com/us/about/
4. http://fortune.com/2015/05/29/gmail-users/ accessed 23 October 2017.
5. https://newsroom.fb.com/company-info/
6. https://www.theguardian.com/film/2012/sep/03/bruce-willis-apple-itunes-library
7. http://www.dailymail.co.uk/news/article-4451174/Parents-sue-Facebook-access-dead-daughter-s-
account.html
8. http://www.dw.com/en/what-happens-to-your-facebook-account-after-you-die/a-38581943
9. https://www.theguardian.com/technology/2017/may/31/parents-lose-appeal-access-dead-girl-facebook-
account-berlin
10. http://www.cbc.ca/news/business/apple-wants-court-order-to-give-access-to-appleid-1.3405652
11. https://www.theguardian.com/technology/2016/mar/31/father-apple-tim-cook-unblock-dead-son-
iphone-leonardo-fabbretti
12. http://files.shareholder.com/downloads/ACTI/3150288457x0x915693/CE203ED2-D3F9-4322-BC44-
20BEF3C5BA29/Q3_2016_ATVI_Press_Release_with_Tables_vF.pdf accessed 23 October 2017.
13. https://legeaz.net/noul-cod-civil/art-31-patrimoniul-mase-patrimoniale-si-patrimonii-de-afectatiune-
publicitatea-drepturilor-a-actelor-si-a-faptelor-juridice
14. https://legeaz.net/dictionar-juridic/clasificarea-bunurilor
15. http://www.cdep.ro/pls/dic/site.page?den=act2_2&par1=2#t2c2s0sba44
16. http://www.refworld.org/docid/3ae6b38317.html
17. http://echr-online.info/right-to-property-article-1-of-protocol-1-to-the-echr/introduction/
18. https://de.wikipedia.org/wiki/Digitaler_Nachlass
19. https://www.lifepr.de/pressemitteilung/deutscher-anwaltverein-dav-ev/DAV-Gesetzgeber-muss-
digitalen-Nachlass-regeln/boxid/415707
20. https://digital-danach.de/digitaler-nachlass-stephanie-herzog-deutscher-anwaltverein
21. http://www.uniformlaws.org/Act.aspx?title=Fiduciary%20Access%20to%20Digital%20Assets%20Act,
%20Revised%20(2015)
22. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0083
23. https://ec.europa.eu/digital-single-market/content/digital-legacy-it-possible-transfer-digital-assets-
case-death
24. www.create.ac.uk
40
THE ANALYSIS OF LEGAL CONTENT OF THE SIMPLE
CONTRABAND CRIME
PhD. BĂRĂSCU MIHAI FLORENTIN
,,Titu Maiorescu’’ University, Bucharest
Abstract
Through this communication I proposed to realize a doctrinal analysis, from a theoretical point of view
and of the judicial practice of the legal content of the simple smuggling which is incriminated by the provisions
of art. 270, par. (1) of the Romanian Customs Code, presenting opinions and controversies in the literature on
the subject.
Keywords: offense, smuggling, incrimination, customs code, customs regime, customs control.
Section 1 The Legal text
In accordance with the provisions of art. 270, par. (1) of the Romanian Customs Code, the simple
smuggling consists in "inserting or drawing out from country, by any means, of the goods or of the merchandise,
through other places than those established for customs control..
In para. (2) of art. 270 of The Customs Code[1] it is provided that they are fulfills the constituent
elements of smuggling, and:
a) the introduction into or removal from the country through the places established for customs control,
by shirk from customs control, of the goods or wares which must be placed under a customs regime, if the
customs value of the the goods or the theft wares is greater than 20,000 lei in the case of the goods which are the
subject to excise duty and higher than 40,000 lei in case of the other goods and wares;
b) the introduction into or removal from the country, twice within a year, through the places established
for customs control, by shirking from customs control of the goods or wares which must to be placed under a
customs regime, if the customs value of the the goods or the theft wares is less than 20,000 lei in the case of the
goods which are the subject to excise duty and less than 40,000 lei for other goods or wares.
(c) the alienation in any form of the wares being in customs transit.
In para. (3) of art. 270 of the Customs Code[2] is intended that there are assimilated to offense of
smuggling and there are punished according to para. (1) the collecting, the holding, the producing, the
transporting, the taking over, the storing, the delivering, the unbinding off and marketing of goods or wares
which must be placed under a customs regime knowing that they come from smuggling or there are intended for
bootlegging.
To this misdemeanor it join also and an aggravated form, when the facts incriminated above „are
committed by one or more armed persons or by two or more people together” (Article 274 of the Customs
Code).
Section 2 Pre-existing conditions for smuggling
2.1 Object of the offense
In the broad sense, by the object of the offense it is understood the social value and the social
relationships created around this value, which are threatened or injured throu the offense[3 p. 166; 17 p. 166], for
which the state institutes one protection through the criminal law rules[4 p. 571 ].
The generic juridically object of the offenses submissively to the analysis it is represented by the social
relations that are formed and that are develop in the activity of implementation in uniform way and non-
discriminatory of the romanian customs regime regarding to all goods inserting or drawing out from country, by
a natural or a legal person[5 p. 667].
In another opinion[6 p. 270], the generic legal object it is represented by those social relationships
which are considering the normal unfolding of business activity by respecting the customs regime.
Other authors[7 p. 249], referring to the complex nature of the common legal object of the offenses
provided in the Customs Code of Romania, this would be given by social relationships, of economic nature,
which appear in the process of the formation and realization, in monetary shape, of the resources necessary for
the state for the performing its functions.
In the hypothesis of the aggravated way in which they can commit the customs offenses, it can be talk
and about a common or adjacent secondary legal object, which gravitates and it is capable of completing the
main one, which takes into account the social relations of confidence and security which characterizes the good
deployment of the economic and social activities in a state governed by the rule of law, to shelter of conjugate
action of one or more armed persons or by two or more people together. It's normal that this illicit conduct to be
considered more serious, attracting and a greater punishment, because we're dealing with an important disregard
41
for social order, the offenders being organizing and arming to be able to finish the activity intiated by them, and
if necessary, even to repel in efficiently way against the forces which would attempt to thwart their actions[8 p.
58].
In the case of smuggling, the generic legal object of the offense it is, of course, the customs regime as a
major social value and the social relations that arise and it take place in relation to it. In any state and at any time,
the customs legal regime is an expression of sovereignty. By virtue of this attribute are issued regulations,
prescriptions concerning customs control, customs clearance of wares, the application of the customs tariff and
prohibitions are in place. Therefore, the protection of this social value is of a particular importance for the
market economy, for the fundamental rights and freedoms of individuals.
Simultaneously it also presents and an adjoining legal object, namely those social relations that are
affected by the violation of the romanian legal regime, as this legal regime is established by O.U.G. no.
105/2001, modified and completed by Law no. 243/2002 on the state border of Romania[4 p. 574].
The special legal object is constituted by the social relations concerning to the customs regime,
relations which concern the passage of wares or goods only through the places established according to the law,
which must be presented for customs control[6 p. 270].
To the offense of smuggling can be taken in discussion and the existence of the object directly,
materially or physically represented by things (goods or commodities) that incorporate the social values
protected by the norm of customs incriminalition.
The material object exists only to the offenses where the protected social value consists of or is
expressed in a material entity[4 p. 575].
From this point of view, the smuggling can be considered an offense of both result and danger. It is by
results when it causes damage to the state budget and by danger when causing economic imbalances by
excluding legal competition, the essence of a market economy, or when prohibitions are violated, or when are
endangered the order and the safety public.
From this perspective, the material object of the smuggling offense is the goods stolen from customs
control and from its taxation (wares irrespective of their kind and nature).
In the variant incriminated by art. 270 of the Law no. 86/2006, the material object of the smuggling
offense may be, in principle, any commodity or object subjected to the customs regime.
In the opinion of some authors[6 p. 270], in the case of goods for which the legal regulations in the
matter establish that they are exempt from customs duties, it is considered that the offense subsists, despite of the
fact that no material injury occurred concrete, that because only the customs authorities are in a position to
appreciate which categories of goods must be subjected to the customs control.
By commodities or other goods it is meant any thing which is found in the patrimonial sphere of the
perpetrator.
The same authors[6 p. 270], appreciates that do not form a material object of smuggling the people, the
human beings. The smuggling committed under these conditions achieves, in fact, the conditions the
misdemeanor of trafficking in human beings in the terms of Law no. 678/2001 on preventing and combating
trafficking in human beings [9] or trafficking in migrants [10].
2.2 Subjects of the offense
The criminal doctrine designates as subjects of crime the persons involved in one way or another in
committing of a criminal offense. By involvement it is understood both committing the offense provided by
criminal law and bearing the consequences thereof[4 p. 576].
The smuggling is an offense that represents the "work" of some active subjects and produces
consequences which affect the passive subjects.
The active subject of smuggling is uncircumstantiated, being any person who fulfills the general
conditions for to answer in the penal way, as author, accomplice or instigator, which may constitute its
aggravated forms. The participation is possible even in the improper form provided by the criminal code.
The passive subject of smuggling is always the state whose social values are affected by committing the
offense, which violates the rule of incrimination. The interests of the state affected by smuggling may be of
economic nature, others refer to public health endangered by the trafficking of the products and substances
dangerous or harmful to health (toxic, narcotic, psychotropic, radioactive, etc.), and a third category concerns the
public order and safety, the life and the physical integrity of persons.
Sometimes, the state, as passive subject of the smuggling crime, suffers a double damage to his
interests. These are the situations when through one action is threatening, both the customs legal regime, and the
legal regime of the state border.
If prior to committing the smuggling, concurrently with it or later, other offenses are committed in
connection with it, these they will have their own passive subjects. For illustration we present the hypothetical
situation of some patrimony assets stolen from private collections and illegally crossed the border by eluding the
customs regime; during the crossing of the border, to ensure their escape, the surprised perpetrators attack the
customs agents or the border police. The passive subjects in such case will be the owners of stolen patrimony
assets, the state as holder of the customs and state border regimes, the customs officers or the border police
which are attacked.
42
I consider, like other authors, that, in the case of customs offenses there is no special passive subject,
this being dangerous crimes[11 pp. 50-53; 5 p. 678], they are not characteristic to obtain of a result that which to
causing a damage to a natural or legal person. In this context, non-payment of the customs debt is an external
element of customs offenses, neither one of them not incriminating it as such.
2.3 The place of the offense
The offense being a human activity, a deed of the human, it is placed in a certain space, it is realized in
a certain place. Therefore in relation to any offense it is the question of determining the place where the offense
was committed [4].
Therefore, for the existence of the offense it is imperative necessary that the incriminated action to be
realised in an other place that established for the customs control[12].
Section 3 The objective side
3. 1 The material element
The simple smuggling provided in Art. 270 of the Customs Code has as material element the activity of
inserting or drawing out from country, by any means, of the goods or the merchandise, through places other than
those established for customs control. So an essential requirement for the objective aspect of this criminal act
concerns to the place of committing the offense.
In order to determine the content of this essential requirement, for the existence of the objective side, we
must first take into account the fact that, in the romanian legal system in force, the romanian customs border is
identified with the state border. Under Art. 8 from O.UG. 105/2001 on the state border of Romania, the crossing
of the state border of Romania by persons, means of transport, wares and other goods will be done through the
crossing points of the state border opened to international traffic.
The crossing of the state border of Romania can be done also through other places, but under the
conditions established jointly through bilateral documents concluded by Romania with its neighbors states.
The crossing of the State border of the means of transport, wares and other goods shall be done in
compliance with the laws which regulates the customs regime. At the checkpoints, they carry out their activity
and the customs officers within the control teams, under the customs control regulations. The customs control of
the wares, of the baggages and of the other goods being on persons shall be carried out in accordance with the
provisions of art. 19 from O.U.G. 105/2001 after the control of the documents for crossing the state border.
Consequently, from the letter and the economy of Art. 2 (2) and of art. Article 9 (3) of the Customs
Code results the following: the control points for the crossing of the state border of Romania are regulated as
"places established for customs control"[4 p. 586].
Thus, by the words "other places than those established for customs control" is understood other places
than the customs control posts which may be border posts in accordance with Art. 2 paragraph 2 or other places
established by the Customs Regulation in accordance with Art. 9 paragraph 3 of the Customs Code[4 p. 586].
According by the law, the illicit activity which is the material element of smuggling provided in art. 270
of the Customs Code consists in an act of introducing or pull out of some goods from the country.
The existence of the material element of the smuggling offense it is conditioned by an act of introducing
or drawing out from the country of some wares or other goods. The illegal activity examined above it is in its
ensemble a commissive activity which is always done through a comisive act, namely passing over the state
border of some goods.
In other words, the existence of the material element of smuggling, provided by art. 270 of the Customs
Code is dependent on a first essential requirement, extrinsic namely the external manifestation of the perpetrator
which consists of introducing or draw out of some goods from the country. This activity it is necessary to carry it
out through other places than those established for customs control, namely through any other places than those
which are checkpoints for the crossing of the state border open to international traffic.
The essential requirement in question for the existence of the objective side of the smuggling offense
provided in Art. 270 of the Customs Code, it is realised and in the hypothesis when a control point was
temporarily closed by a decision of the Romanian Government, or even more so, the control point was closed
permanently by such a normative act. In both variants listed above the smuggling is susceptible to be
committing.
3.2 The immediately consequence
In the Romanian criminal law system, as a rule, committing of any action or inaction forbidded by law,
whatever would be the modality or the form in which these actions or inactions are carried out, they will always
produce a certain result.
43
The dangerous consequence is defined in the doctrine as the negative change of the surrounding reality
which the deed was produced or is susceptible to be produce it and which finds its expression in the endanger,
injury or threaten of the social values protected by criminal law[13 p. 115].
By the immediate result it is designated the result that action or inaction will produce through which it
is realised the material element, a consequence which conditional the existence of the objective side and so,
therefore implicitly of the offense.
On simple smuggling, the immediate consequence consists in a state of danger which affects the legal
deployment of activity in the customs domain.
It can not be uphold that the offense of smuggling would have as immediately consequence a material
harm for the reason that the law, in art. 270 of the Customs Code does not explicitly condition the existence of
the objective side of the offense about the produce of a material result, in any of the ways or normative variants.
The consequence produced or what could be produce refers to the concrete consequences caused by
committing the offense provided by the criminal law, as well as to those eventuals on which, in concrete terms,
the deed was susceptible to produce them, the socially dangerous consequences being an indispensable
requirement for any crime[4 p. 588].
Some authors considered the offense it isone of result [14 p. 170], but other authors [6 p. 270] have
rejected this point of view, admitting that although the offense can produce, even in almost all cases, material
damage, but the rule of criminalization, as it is formulated and how it was taken from previous regulations, does
not expressly require such a condition for the offense to be consumed.
3.3 The causal link
Because the offense of smuggling is one of danger, it is resulting this from the material nature of the
deed.
Section 4 The subjective side
The subjective side of the smuggling offenses committed in the normative version provided in art. 270
of the Customs Code has as a subjective and constitutive element the direct or indirect intention, since there is no
longer a specific purpose.
For the existence of the subjective element of the smuggling offense, it is enough if the special purpose,
namely the non-payment of the customs debt, implicitly the shirk from the customs legal regime, it was
committed or only accepted by the suspect, being irrelevant if such a purpose was achieved.
Regarding the mobile with which act the smuggler, as the internal impulse from which the criminal
resolution is born and consequently the enforcement thereof[15 p. 116], is not a necessary subjective condition
for the existence of the smuggling offense, so the mobile it is with other words a voluntary element within the
subjective content of the smuggling act.
The culpability can not be a subjective element of the content of the smuggling offense, because being a
committing the act the law does not expressly provide the existence of smuggling when the offense is committed
by fault.
The direct or indirect intention that constitutes the subjective element of the content of the smuggling
offense it will result from establishing of the materiality of the offense committed and of the real circumstances
of perpetration of the offense, so from the intrinsic substance of the deeds committed and from the objective
circumstances which have precede, have accompanied and followed committing of this offense.
Section 5. Forms, modalities, sanctions
5.1 Forms
Although possible, in the opinion of some authors[6 p. 274 ] the preparatory acts, have not been
incriminated. According to the provisions of art. 275 of Law no. 86/2006, the attempt is possible and is punished.
For example, it constitutes attempt to cross over the border of some wares or other goods bypassing the place for
customs control, without succeeding avoiding of the customs control.
The offense is consumed when it is realised the material element, respectively when the goods or other
wares are crossed by the border through other points than those established for customs control. The offense can
be committed in a continued form, being, consequently susceptible to exhaustion, at the time of the last action of
importing or removing goods or other wares from the country without respecting of the legal provisions[6 p.
275].
5.2 Modalities
The offense can be committed in a basic normative version, two assimilated variants, and an aggravated
modality when the deed described above was committed by one or more armed persons or by twice as many
people together.
5.3 Sanctions
In the simple variant (type), the deed is punished by imprisonment from 2 to 7 years, and in the
aggravated version, the sanction is the imprisonment from 5 to 15 years.
44
When the final sentence is longer than 2 years it is applied mandatory and complementary punishment
of the forbidding of certain rights. As a consequence, the special security confiscation measure is also applied.
According to the provisions of art. 277 of the Law no. 86/2006, when the goods or other wares which have been
the subject of the offense are not found, the convict is obliged to pay their equivalent in money. If the deed is
committed by employees or representatives of legal entities which have as objectif of activity the import-export
operations, or for the benefit of such legal persons, it can apply and the prohibition of exercise the occupation,
according to art. 64 lit. c) of the Criminal Code[16 pp. 212-216 ].
Conclusions
I believe that this study highlights the elements of the simple smuggling crime in the light of the views
of theoreticians and practitioners in this field and can it serve as a point of reference for the correct application of
the specific legislation in this field for criminal prosecution bodies and magistrates.
References:
[4] ] ALECU Gh., Institutions of Criminal Law. General and special part, according to the New Penal Code,
Ovidius University Press, Constanţa, 2010.
[6] BOROI Al., GORUNESCU M., BARBU I.A., VÎRJAN B., Criminal Law of Business, 6th Ed., C.H. Beck,
Bucharest, 2016.
[5] CIOPRAGA A., UNGUREANU A., Criminal Provisions in Special Romanian Laws, Vol. VIII, Ed. Lumina
Lex, Bucharest, 1998.
[15] DOBRINOIU V., NISTOREANU Gh., Criminal Provisions in Special Romanian Laws, Vol. VIII, Ed.
Lumina Lex, Bucharest, 1998.
[3] MITRACHE C., Romanian Criminal Law, 4th edition revised and added, Publishing House and Press
"Şansa", Bucharest, 2000.
[7] MLADEN C., Romanian and Community Customs Law, Economic Economics, Bucharest, 2003.
[17] OANCEA I., Criminal Law Treaty, Ed. ALL, Bucharest, 1995.
[8] OLTEANU G.I., Investigation of smuggling and other crimes involving the crossing of the state border, Ed.
AIT Laboratories S.R.L., 2004.
[16] STOIAN Anca Iulia, The sanctioning regime of the offense continued (prolonged). In: The Scientific Annals
of the Academy "Ştefan cel Mare" of MAI of RM. Series of Socio-Human Sciences, XIth Edition, no. 2,
Chişinău: "Stefan cel Mare" Academy, 2011.
[11] SANDU Fl., Smuggling, a component of organized crime, National Ed., Bucharest, 1997.
[14] UNGUREANU A., CIOPRAGA A., Penal Provisions in Special Romanian Laws, Vol. III, Ed. Lumina Lex,
Bucharest, 1998.
[13] VASILIU T. and collaborators, Criminal Code commented and annotated. General Part, Scientific Ed.,
Bucharest, 1972.
[12] Customs Code of Roumanie, Art. 270, para. (1).
[9] Law no. 678/2001 on preventing and combating trafficking in human beings published in M. Of. no. 783 of
29 December 2001 and most recently amended by Law no. 287/2005 (Official Gazette No. 917 of October
18, 2005).
[1] O.U.G. no. 54 of June 23, 2010, published in the Official Gazette of Romania, nr. 421 from 23 iune 2010,
Para. (2) of art. 270 was amended by point 1 of art. IX.
[2] O.U.G. no. 54 of June 23, 2010, published in the Official Gazette no. 421 of June 23, 2010, Para. (3) of art.
270 was introduced by point 2 of art. IX.
[10] O.U.G. no. 105/2001, as amended by Law no. 39/2003, Article 71 stipulates: "The recruitment, guiding or
guidance of one or more persons for the purpose of fraudulently crossing the state border, as well as the
organization of these activities constitutes the crime of trafficking of migrants and will be punished by
imprisonment from 2 to 7 years.
If the act provided in paragraph (1) is of nature to endanger the life or security of migrants or to subdue them to
inhuman or degrading treatment, the penalty will be 5 to 10 years.
If the act provided in paragraph (2) had as a result the death or suicide of the victim, the penalty is imprisonment
from 10 to 20 years.
The attempt of the facts provided in paragraph (1) and (2) will be punished."
45
ASYLUM PROCEDURE IN ROMANIA. SCOPE, PROCEDURAL
PRINCIPLES AND GUARANTEES
Diana BOROI – PhD Titu Maiorescu University, Bucharest
Abstract: Statistics show that we are witnessing a growth in asylum applications in Romania, which determines
the enactment legislative measures that must keep pace with the evolution of the European society.
1.THE ASYLUM PROCEDURE IN ROMANIA
Starting from the fundamental act in Romania, art. 18 paragraph 1 of the Constitution of Romania of
1991 provides that asylum is granted and withdrawn under the law. The Constitution also adds that granting and
withdrawing asylum complies with international treaties and conventions to which Romania is a party. One must
note that Romania has recognized the Universal Declaration of Human Rights, which stipulates in art. 14 that "in
case of persecution, any person has the right to seek asylum and to benefit from asylum in other countries. This
right may not be invoked in the case of prosecutions resulting, effectively, from felonies or from acts which go
against the purposes and principles of the United Nations 77
.
Moreover, Romania is a signatory of the Geneva Convention of 1951 and of the New York Protocol of
1967, through Law No. 46 of 1991, and the first law on the status and regime of refugees in Romania was
adopted in 1996.
The beginnings of the Romanian post-revolutionary legislation are related to the application of the
provisions of Law no. 15/1996 on the status of refugees in Romania, after Romania faced a growth in
applications in this field.
In 2000 the legal framework is complemented by the Government’s Ordinance no.102/2000 on the
status of refugees. Efforts on creating an efficient asylum system began in Romania since 2000 through the
creation of National Refugee Office as the central authority responsible for implementing the Romanian
Government’s policies on asylum.
At the same time Ordinance No. 102 on the status and regime of refugees in Romania78
was adopted,
ordinance which has undergone a number of changes and additions following the European path of our country.
Thus EU accession and implementation of the acquis imposed legislative and institutional
harmonization of the asylum system in Romania, which materialized in the law regarding asylum - Law no.
122/2006. This Law repealed the ordinance above mentioned and it aims to implement the main objective,
namely the creation of a law on asylum in line with European standards.
This milestone in the development and modernization of the national legal framework on asylum,
represented by the new law on the matter, namely Law no. 122/2006 on asylum79
in Romania, clarifies a number
of legislative inconsistencies which existed in the national legislation and helps implement a unified practice in
solving cases.
The transformations brought by this law do not concern substantive issues, such as conditions for
granting a form of protection, or the course of the asylum procedure, but rather issues concerning formal
questions, such as the definition or replacement of specific terms, the express stipulation of certain principles and
procedural safeguards applicable in this area relative to European and international standards.
Law no. 118/2012 on the approving of the Government’s Emergency Ordinance no.18/2012 amending
Government’s Emergency Ordinance no. 30/2007 on the organization and functioning of the Ministry of
Administration and Interior, published in the Official Gazette, Part I, no. 461 of the 9th of July 2012, comes to
complete the legislative and institutional framework through which the General Inspectorate for Immigration
was established.
Romania is among the countries that have implemented one of the lowest durations of the asylum
procedure in the administrative phase, in order to maintain lower costs in terms of assistance to asylum seekers,
but also in order to ensure guarantees for transparency in decisión making, consistent with European and
international standards.
The efficiency of this procedure is also proven by reports from different organizations or institutions
with supervisory powers, such as those issued by the European Union Agency for Fundamental Rights, UNHCR,
US State Department, reports that did not flag any dysfunctionalities.
Current national legislation is consistent with the European Union acquis, it being essentially composed
of: the Romanian Constitution; Law no. 46/1991 for the ratification of the Convention on the status and regime
77
Universal Declaration of Human Rights was adopted on 10 December 1948 by Resolution 217 A in the third
session of the General Assembly of the United Nations. 78
approved with amendments by Law no. 323/2001 79
Eleodor Pîrvu - Participant Guide - Pilot Program CPDO Police Academy, 2012, p.77
46
of refugees in Romania; Law no. 122/2006 on asylum in Romania, as amended and subsequently supplemented;
Government’s Ordinance no. 44/2004 regarding the integration of foreigners who obtained a form of protection
in Romania (approved with amendments by Law no. 185/2004, as subsequently amended), as amended and
subsequently supplemented; Government’s Decision no. 1251/2006 approving the Methodological Norms for
applying Law no. 122/2006 on asylum in Romania; Government’s Decision no. 1483/2004 approving the
Methodological Norms for the application of Government’s Ordinance no. 44/2004, as subsequently amended;
and other provisions on asylum contained in the regulations on child protection, legal status of aliens, etc.
According to this national legal framework, the forms of protection80
offered by Romania are: refugee
status; subsidiary protection, previously called humanitarian protection and temporary protection.
In order to adopt one of the forms of protection described above, national legislation, depending on the
specifics of each case, provides a series of procedures such as: normal procedure, fast track procedure; procedure
at the border; procedure of the safe third country; the procedure of settlement of the application for access to a
new asylum procedure; the procedure for determining the Member State responsible for examining an asylum
application; family reunion procedure; procedure for termination; cancellation procedure.
Any procedure for examining applications for asylum in Romania involves the two phases, namely the
administrative phase and the judicial phase.
Thus, the first phase, meaning the administrative one, requires the analysis of the case file submitted by
the applicant for asylum, file containing the petition for asylum and information from the country of origin that
were previously analyzed by the competent authorities, as well as the interview the person must attend. The
second phase, the judicial one, allows asylum seekers, whose applications were rejected, to exercise their right to
two appeals, their situation being subsequently reviewed by the courts 81
of law.
Romania, as a EU member, also enforces, under the Dublin Regulation, the procedure for determining
the Member State responsible for examining the asylum application.
If we make an analysis of the normal procedure, we notice that it involves several stages as follows:
filing the application for asylum; interviewing asylum seekers; evaluation of the application - based on data from
the file and by comparing the applicant’s declarations to the information from his country of origin; grounds of
the judgment; and, not least, giving a solution.
The national law maker, through Law no. 122/2006, established, through art. 23, in accordance with
international provisions what the term refugee means and what the status of the refugee is, acknowledging this
by request to the foreign person who, based on grounded fear of being persecuted for reasons of race, religion,
nationality, political opinions or membership to a particular social group, is outside the country of origin and is
unable or, due to such fear, does not wish for the protection of this country, as well as to the stateless persons
who are outside the country where they had their former habitual residence due to the same reasons mentioned
above, is unable or, due to such fear, is unwilling to return.
From this legal provision we can identify the clauses for inclusion for refugees, the legislation in this
regard begin quite limited, not leaving room for interpretation. Thus, the asylum seeker must be outside his
country of origin, there must be clear and well-founded fears of persecution, and the persecution must be
grounded on any of the grounds of race, religion, nationality, membership to a particular social group or political
opinion.
The national legislation also establishes the causes for exclusion from awarding the refugee status and,
of course, this time the limits are well sketched leaving no room for interpretation and being in line with
European82
legislation.
Thus, people who have committed a crime against peace and humanity, a crime of war or another crime
defined according to relevant international treaties to which Romania is a part, who have committed a serious
offence outside Romania before being admitted to the territory of Romania, who have committed acts which are
contrary to the purposes and principles, as they are set out in the Preamble and art. 1 and art. 2 of the Charter of
the United Nations or have instigated or were accomplices to the acts mentioned above, may be excluded from
receiving the refugee83
status.
The normal procedure undertaken by the competent authorities may be sometimes replaced by an
accelerated procedure, which is applicable when asylum applications are manifestly unfounded, such as those of
people who come from a safe country of origin or requests from people who, through their activity or their
belonging to a certain group, poses a threat to national security or public order in Romania.
Thus, the request for refugee status is obviously considered unfounded if there is no ground to invoke a
fear of persecution in their country of origin and deliberately misleading the competent authorities in refugee
matters or abusively appealing, in bad faith, to the procedure for granting the refugee status.
80
Law. 122/2006, amended and subsequently supplemented. 81
Eleodor PÎRVU - Participant Guide - Pilot Program CPDO Police Academy, 2012, p.82 82
Viorel Velişcu, Public International Law, Ed. Sitech, Craiova, 2014, p. 45 83
World Migration Report 2013 -Migrant well being and development, the International Organization for Migration
(IOM) 2014
47
2. NATIONAL LEGISLATION ON ASYLUM
The national legislation on asylum also establishes the procedure for termination or annulment of a
form of protection granted, a procedure that is triggered by the General Inspectorate for Immigration ex officio
or at the suggestion of one of the institutions with attributions in the field of national security or public order.
Thus, the refugee status may cease when the person in question was voluntarily returned under the
protection of the country of nationality or, after having lost his citizenship, he has voluntarily reacquired it. Other
cases of termination of this status refer to the situation when a person has acquired a new nationality and enjoys
the protection of the State whose nationality has acquired or if the voluntarily returned in the country which he
left, outside which he lived due to reasons for which he acquired protection.
The cases of termination mentioned above are in accordance with European and international
regulations and they should not be confused with cases of annulment of the refugee status, which occurs when a
person who has been recognized as a refugee made false statements, failed to submit certain data or used false
documents, that were decisive for the recognition of the form of protection and there are no other reasons which
might lead to maintain the refugee status.
In addition, the national legislation in article 25 of Law no. 122/2006 provides for the exclusion
clauses, and the form of protection for a person falling within this clause ceases. It also should be noted that the
termination or cancellation of a form of protection does not affect the family members of the person concerned.
In Romania, the procedure stipulated by the Council Regulation No. 343/2003 (Dublin II) is carried out
by the competent authorities executing both the administrative activity for determining the responsible Member
State, but also for implementing measures of transfer to or from the responsible Member State.
3.CONCLUSIONS
The regulation, which establishes a set of rules and principles for achieving the common European
asylum system, aims for the crystallization and strengthening the area of freedom, security and justice, where the
people faced with tragic circumstances can seek84
refuge.
The need to create this system derives from the motivation of the Member States that have decided to
find common solutions to cope with waves of refugees facing the European Union. Member States have
recognized the inability to individually deal with the problems raised by asylum seekers and by the tides of
refugees and therefore have decided to harmonize the legal standards and coordination of policies on asylum
between Member States.
The result of this goal, materialized in the common asylum procedure, establishes the common
principles at Union level, principles that are consistent85
with the humanitarian tradition transposed into the legal
framework throughout the existence of the European Union.
References
1. Universal Declaration of Human Rights
2. Eleodor PÎRVU - Participant guide - Pilot Program CPDO, Police Academy, 2012
3. Law no. 122/2006, amended and subsequently supplemented.
4. Viorel Velişcu, Public International Law, Ed. Sitech, Craiova 2014
5. World Migration Report 2013 -Migrant well being and development, the International Organization for
Migration (IOM) 2014
6. N. Diaconu Treaty on European Union Law, Bucharest 2014
7. Charalambos, Kasimis -"Greece-illegal immigration in the midst of crisis", article published on
www.migrationinformation.org.
84
N. Diaconu, Treaty of European Union law, Bucharest, 2014, p.125 85
Charalambos, Kasimis- "Greece-illegal immigration in the midst of crisis "article published on
www.migrationinformation.org
48
ANOHTER MEANING OF THE PHRASE “IN CASE OF COHABITATION”
OF LAW NO. 217/2003 ON THE PREVENTION AND COMBATING
OF DOMESTIC VIOLENCE
Rodica BURDUŞEL, lect. University of Titu Maiorescu, Faculty of Law
Abstract: The amendment to Law no. 217/200386
on the prevention and combating of domestic violence through
Law no. 25/201287
regarding the amendment and completion of the Law no. 217/2003 made it more difficult to
obtain the protection order due to the interpretable nature of the wording of Art. 5 let. c) of this law, obliging the
victims of domestic violence to resort to other legal instruments for the removal of the legislative error.
In this respect, by the RCC Decision no. 264/201788
it was declared unconstitutional, under the
meaning of the phrase "in case of cohabitation", art. 5 lit. c) of Law no. 217/2003.
The present study places under analysis the subject to the exception of unconstitutionality, presenting a
different meaning of the phrase "in case of cohabitation" than that of the Constitutional Court and the majority
of the courts.
Keywords: family member, similar relationships, cohabitation, domestic violence, protection order
1. Introduction
The presence of violence both in the social life and in the private lives of citizens has led states to
develop national policies to provide more numerous and more effective legal instruments to the staff working in
the field of crime victim protection.
The main legal instrument is represented by the legislative framework, which has existed in our country
since 2003 and 2004, namely, Law no. 217/2003 on the prevention and combating of domestic violence and Law
no. 211/2004 on certain measures to ensure the protection of victims of the crimes89
,, together with Community
and international regulations.
These laws determined the scope of the institutions and organizations with attributions in the prevention
and combating of violence, especially domestic violence and special measures have been regulated regarding
information and guidance, psychological counseling, free legal aid and medical assistance, financial
compensations for victims of crime. Different rules have been adopted for special categories of victims, such as
trafficking in human beings, sexual exploitation and child pornography.
In the present study, we are dealing with an incident occurring in the application of the protection order
provisions, which generated a non-unitary judicial practice, which led to the issuing of the protection order by
some courts, while others rejected such applications.
The reported problem has been resolved at the level of the Constitutional Court, but we believe it could
have been avoided by a clearer drafting of the text, more focused on the finality of it.
2. The exception of unconstitutionality
2.1. The object of the exception of unconstitutionality
The Constitutional Court was notified by the Timiş Tribunal, the Civil Section on March 22nd
2016 with
he exception of unconstitutionality of the provisions of Art. 5 let. c) of the Law no. 217/2003:
ART. 5
In the sense of the present law, by family member we understand:
a) the ascendants and descendants, brothers and sisters or their children, as well as the persons who by
adoption became such relatives;
b) the husband/wife and/or the ex-husband/ex-wife
c) those who have established a relation similar to those between spouses or between parents and
children, if they cohabit;
d) The tutor or other person exerting, de facto or de jure, the rights in the name of the child;
86
Republished with modifications and completions in the Official Gazette of Romania, Part I, no. 205 of March
24, 2014. 87
Published in the Official Gazette of Romania, Part I, no.165 of March 13, 2012. 88
Published in the Official Gazette of Romania, Part I, no. 468 of June 22, 2017. 89
Published in the Official Gazette of Romania, Part I, no. 505 of June 4, 2004.
49
e) The legal representative or other person who cares for the person mentally ill, with intellectual
disability or physical handicap, except those who perform these as professional duties.
The exception was raised by the applicant, L.-FF, in the case that had as an object the resolution by the
Timiş County Court of the appeal against the civil judgment by which the Timişoara District Court upheld the
plea of inadmissibility of the request of the applicant for the protection order, considering that the condition of
cohabitation was not met in the present case, the parties interrupting cohabitation in July 2015, with the
application being filed on October 22, 2015.
2.2. Motivating the exception of unconstitutionality
The author of the exception claims that the phrase "if living together" contravenes the constitutional
provisions of Art. 1 par. 3 on the rule of law and art. 16 par. 1 on the principle of equality before the law,
because it is a difficult condition to be met by victims of domestic violence, namely that such an application may
be admissible only if the victim lives with the aggressor at the time of filing the application. Such a requirement
would even contravene the purpose for which the law was adopted, that of protecting victims of domestic
violence. In order to fulfill this condition and to obtain a protection order, the victim should move back with the
aggressor, ensure that they can prove this, formulate the application for the protection order, and then, if so
perhaps, leave their home.
It also shows that there is a distinction between the categories of persons who may request the issuing
of a protection order. Thus, in the case of a spouse or former husband / wife, no additional conditions are
required to be considered as family members in the sense of the provisions of Art. 5 of the Law no. 217/2003, in
what concerns the situation of the concubines, they can be considered family members only "in case of
cohabitation". This differentiation is in fact a discrimination and a violation of constitutional rights of citizens.
2.3. The Court of Appeal's opinion on the exception of unconstitutionality
The Timis Court has shown that the exception is unfounded because the provisions of the criticized
provisions of the law do not contradict art. 1 par. 3 of the Constitution. Victims of violence, even if they could
not use Law no. 217/2003, have other legal means to protect their rights and can not be considered that there is
any discrimination between the situation of the spouses and that of those who have established family-like
relationships by requiring those the latter to live together in order to benefit from the protection of the law,
because, in the absence of any other legal criterion, the nature of the relations existing between the parties, or
whether they have the status of concubines, can not be established otherwise.
2.4. The conclusions of the authorities (The Public Ministry, The Government, The People's Advocate)
The aforementioned authorities considered, each with their own arguments, that the exception is
unfounded because the criticized provisions of the law do not contravene art. 16 of the Constitution. On the
contrary, the lawmaker included in the sphere of persons who can apply for a protection order, apart from
spouses, those who have established similar relations with those spouses, under the condition that they live
together. In the absence of this additional condition, it is not possible to determine the nature of the relationship
between the parties. The cohabitation of persons involved in the act of violence must be current at the time of
requesting the protection order, otherwise it is not justified to request such a procedure, which does not prevent
the victim from addressing the protection of his or her rights in other ways to the courts.
Maintaining both categories of persons in the sphere of those who can apply for the protection order is
intended to guarantee the non-discriminatory application of the provisions in the case of couple relationships, be
it husbands or concubines, the phrase being written not with the intention to create discrimination.
The existence of the condition of admissibility between the fact of cohabitation and the moment of
filing of the petition is reasoned in the fact that the cessation of cohabitation and the passage of a long time from
the exertion of violence no longer justify the application of the provisions of the special law on combating
domestic violence, from there on pplying the path of the general law.
50
2.5. The Constitutional Court's solution
The Constitutional Court found that the phrase "in case of cohabitation" in Art. 5 lit. c) of Law no.
217/2003 is unconstitutional because it violates the constitutional provisions of art. 1 par. 3 on the rule of law
and art. 22 on the right to life and to physical and psychological integrity and contravenes the very purpose for
which the law was adopted, namely the creation of an effective civil legal instrument for the prevention and
combating of domestic violence.
3. Another point of view on the meaning of the phrase "in case of cohabitation"
The civil courts, when asked to issue the protection order, interpreted differently the phrase "in case of
cohabitation" in art. 5 lit. c) of Law no. 217/2003 as follows:
- some majority courts considered that the phrase "if living together" is a condition for the issuing of
the protection order, together with the fulfillment of the other conditions stipulated by the law and it is necessary
that the persons who have established similar relations with those of the spouses or of the parents and the
children live together at the time of filing the application for the protection order.
- other courts considered that in order to issue the protection order it is necessary that those who have
established similar relations with those spouses or between parents and children have cohabited, but not
necessarily at the time of filing the application for the issuing of the protection order.
Thus, the Prahova Court stated that the phrase "in case of cohabitation" should not be interpreted as
meaning that the legislator imposed the requirement that the victim cohabit with the aggressor at the date of
application for the protection order, such a condition being difficult to fulfill, in the context in ehich there are
tense relationships between the two sides, which often cause the victim to leave the home. Another interpretation
would be able to exclude from the sphere of protection of the law an important category of persons, although the
relationships they have established have the nature of family relationships.
The Constitutional Court itself, in order to find that the phrase "in case of cohabitation" contravenes
the provisions of Art. 22 of the Constitution on the Right to Life and to Physical and Mental Integrity, "notes that
the requirement of cohabitation imposed by the provisions of art. 5 lit. c) of Law no. 217/2003 to persons who
have established similar relations with those spouses or between parents and children in order to be able to issue
a protection order is unreasonable, since it may lead to the inadmissibility of the application for the issuing of the
protection order, even if an act of violence endangering the life, physical or mental integrity or victim's freedom
is exercised and even if it demonstrates before the court that the parties have established similar relations with
those of their spouses or parents and children. "
A careful research of lit. c) of art. 5 states that the phrase "in case of cohabitation" is used by the
legislator in this article, not as a condition for obtaining the protection order but to include in this notion a
separate category of persons, namely the concubines, if they have established relationships similar to those of
spouses.
The presence in the Law no. 217/2003 of art. 5 which defines the family member, although this notion
exists also in art. 177 of the Penal Code is justified by the legislature's interest in creating through this law the
legal framework to provide protection against all forms of violence, including when exercised within the private,
intimate family setting.
The notion of family member in Law no. 217/2003 is more comprehensive to persons defined as
family members than the notion of art. 177 of the Criminal Code and, at the same time, a new one, because the
legislator, noting that there are in fact more and more people who, without being married and reunited in a
family in the classical sense, live in relationships that do not differ from traditional family characteristics,
included for the first time in the Romanian legislation people who do not have formal status of family member.
Considering the phrase "in case of cohabitation" as a condition for obtaining the protection order is
also denied by the fact that it is used only in art. 5, therefore exclusively for the purpose of defining the family
member.
The legislator did not intend to condition the issue of the protection order and the protection itself by
cohabiting in the same dwelling of the concubines even during the period of violence, since the condition of
cohabitation is not among the requirements of obtaining the order, which is supported by the entire regulation of
the protection order provided in art. 23-35 of Chapter IV – Protection Order.
51
By referring to Art. 23 par. 1 to a family member, the legislator merely illustrates the scope of the
persons who can request the court to issue the protection order.
The fact that the family member is defined in art. 5 by the phrase "if living together" and corroborated
with art. 23 par. 1, does not justify transforming it from a defining element into a condition for obtaining the
protection order.
On the contrary, in art. 23, the lawmaker enumerates among the measures ordered by the court in the
order of protection at the request of the victim "reintegration of the victim and, as the case may be, of the
children into the family home"90
.
However, if the phrase "in case of cohabitation" would be a condition for obtaining the protection
order, which requires the victim to live together with the aggressor in the same dwelling at the time of requesting
the order, the reintegration of the victim would be meaningless.
It is absurd to believe that the victim stayed in the family home until the request for protection order
and only later left it so that the court could order her reintegration into the shared home.
The reintegration measure is requested at the court precisely by the victim at the time of requesting the
protection order, which means that the victim is no longer at that time in the common dwelling and only when
the order is received and the aggressor is removed can the victim return.
The interpretation of the phrase "if living together" as a condition for issuing the protection order is
believed to be due to the fact that the legislator did not indicate the elements meant to characterize the relations
similar to those of the spouses, also lacking in the specialized literature91
, "Unfortunately, the law did not
provide the necessary criteria for identifying the parameters for which the assessment of the real and similar
character to the types of relationships indicated in the rapport between the persons referred to in letter c) ".
The Legislative Council itself, when approving the legislative proposal for amending and completing
the Law no. 217/2003, made the following remark and proposal: "... for the correctness of expression and the
clarity of the norm, the final part of the text needs to be re-examined and reformulated, possibly by referring to"
people living together who have established relationships of trust, care or dependence". However, we appreciate
that the text should provide several more criteria in order to accurately determine the sphere of people
concerned by the text "92
.
The observation of the Legislative Council unambiguously shows that the phrase "in case of
cohabitation" has no other meaning than that of a defining criterion for the relations between the spouses and
only the absence of several criteria could suggest its interpretation as a condition for issuing the protection order.
In the sense of the point of view, it also defines the Istanbul Convention, in art. 3 let. b) the notion of
"domestic violence", which shall mean all acts of physical, sexual, psychological or economic violence
occurring in the family or in the domestic unit or between former or current spouses or partners, regardless of
whether the aggressor divides or shares the same home with the victim93
.
90
ART. 23 of the Criminal Code
(1) The person whose life, physical or mental integrity or freedom is endangered by an act of violence by a
member of the family may request the court to issue a protection order in order to eliminate the danger
provisionally, one or more of the following measures - obligations or prohibitions:
a) Temporary evacuation of the aggressor from the family home, regardless of whether he is the owner of the
property right;
b) reintegration of the victim and, where appropriate, of the children into the family home;
c) limitation of the aggressor's right to use to only a part of the common dwelling, when it can be so shared
that the abuser does not come into contact with the victim;
d) requiring the aggressor to keep a minimum distance from the victim, to his / her children or other relatives,
or to the place of residence, workplace or educational establishment of the protected person;
e) the prohibition on the aggressor to move to certain designated localities or areas which the protected
person frequents or visits;
f) prohibiting any contact, including by telephone, by mail or in any other way, with the victim;
g) requiring the aggressor to surrender any owned weapons to the police; 91
Maria-Ioana Michinici, Mihai Dunea, The New Criminal Code, comments on articles, Hamangiu Publishing
House, Bucharest, 2014, p. 308. 92
http://www.cdep.ro/pls/proiecte/upl_pck.proiect?idp=10828. 93 https://rm.coe.int/168046253e.
52
Conclusion
The incident related to obtaining the protection order, which has been resolved through recourse to
constitutional justice, we consider that, given the urgency of the procedure, the competent civil courts could
resolve to issue the protection order if it had been granted more attention to logical and systematic interpretation
methods, saving so much precious time for victims of domestic violence.
However, for the defective text of Art. 5 let. c) of Law no. 217/2003, which either delayed the obtaining
of the protection order, as in the present case, or in other cases was missing altogether, responsible for the
victims of issuing the protection order, is the legislative power which, although advised by the Legislative
Council, did not correct the text in question and did not intervene after the publication in the Official Gazette of
Decision no. 264/2017, to reconcile the unconstitutional provisions with the dispositions of the Constitution
according to art. 147 of the Constitution, which led to the legal suspension of "in case of cohabitation" between
June 22 and August 5, 2017, and after that it ceased to be effective.
REFERENCES
1 Republished with modifications and completions in the Official Gazette of Romania, Part I, no. 205 of March
24, 2014. 2 Published in the Official Gazette of Romania, Part I, no.165 of March 13, 2012.
3 Published in the Official Gazette of Romania, Part I, no. 468 of June 22, 2017.
4Published in the Official Gazette of Romania, Part I, no. 505 of June 4, 2004.
5 ART. 23 of the Criminal Code
6Maria-Ioana Michinici, Mihai Dunea, The New Criminal Code, comments on articles, Hamangiu Publishing
House, Bucharest, 2014, p. 308. 7 http://www.cdep.ro/pls/proiecte/upl_pck.proiect?idp=10828
8 https://rm.coe.int/168046253e.
53
REFLECTIONS ON THE APPLICATION OF THE PRINCIPLE OF AVAILABILITY
IN THE ORDINARY CIVIL PROCEDURE AND THE ARBITRATION PROCEDURE
CHIFOR Daniel-Cătălin, Assistant Professor, PhD Candidate, Univ. "Titu Maiorescu" from
Bucharest
Abstract (summary)
Availability is a principle applicable especially to the private law, while the public law is characterized by
the principle of official. Both the ordinary law procedure and the arbitration procedure fall within the scope of
private law, since they are subject to the proper application of the principle of availability.
By availability is meant the possibility provided by the law to the parties to notify the judicial body, namely
the court or the arbitral tribunal, to dispose of the subject matter of the dispute and the means of defense.
Availability, from a methodological point of view, can be divided into categories, "in our specialized
literature it was stressed that availability can be material or procedural."94
Analyzing the two categories of availability, we state that in the case of material availability we are talking
about a possibility for the parties to dispose of the subject matter of the dispute, and in the case of procedural
availability we are in the presence of a willingness regarding procedural defense means.
From the point of view of the content of the right to availability, the arbitration process does is not in any
way different from the civil process under the common law procedure except in various aspects
However, the arbitration procedure provides, in particulary, regarding the principle of availability. This
particularity is constituted by the provisions of art. 576, Civil procedure code. Unlike the common law where the
Civil procedure Code governs the rules applicable to the settlement of a dispute, by virtue of the application of
the code article. In the arbitration proceedings, the parties may, through the arbitration agreement, lay down
procedural rules for the conduct of proceedings, in the context of a dispute or even at the time of the dispute, the
parties may empower the arbitrators to lay down rules derogating from to the joint procedure.
Another exception is the application of the rules of specialized arbitration institutions where the arbitration
agreement has established that disputes should be settled by a particular arbitration institution. Here is how the
principle of availability tends to be absolute, to the common law where there is a slight attenuated absolutism.
We rely on the fact that the actual settlement of the arbitration litigation is governed by the rules of procedure
established, first of all, by the parties.
Regulation and definition of the principle of availability in the ordinary and arbitration proceedings
This principle is found in the text of Article 9 of the Civil procedure Code. According to disp. art. 575
par. 2, this principle shall also be applied accordingly in the arbitration procedure.
Availability is a principle applicable especially in the private law, while the public law is characterized by
the principle of official. Both the ordinary law procedure and the arbitration procedure fall within the scope of
private law, since they are subject to the proper application of the principle of availability.
By availability is meant the possibility provided by the law to the parties to notify the judicial body, namely
the court or the arbitral tribunal, to dispose of the subject matter of the dispute and the means of defense.
Availability, from a methodological point of view, can be divided into categories, "in our specialized
literature it was stressed that availability can be material or procedural."95
Analyzing the two categories of availability, we state that in the case of material availability we are talking
about a possibility for the parties to dispose of the subject matter of the dispute, and in the case of procedural
availability we are in the presence of a willingness regarding procedural defense means.
94
See I. LEȘ, ”Noul Cod de procedură civilă. Comentariu pe articole, art. 1-1133”, C.H. Beck, București,
2013, p. 16.
95
See I. LEȘ, op. cit., p. 16.
54
We would point out that one of the most relevant issues in relation to the resolution of the dispute by the
court and the arbitral tribunal is to settle the dispute only on the basis of the request of the interested party and
only within the limits of the referral. This idea is contrasted from the art. 9 par. 2, C.pr.civ. which clearly states
that the subject and limits of the procedure are set by the parties in their claims and defense.
We point out that "what gives specificity to this principle in the arbitration process - and at the same time
attaches great importance to the role of the arbitral tribunal - consists in limiting its applicability in relation to
the content of the arbitration agreement in which the parties preconfigured (by the Compromise Clause) or
configured at the date of the dispute (by compromise) the procedural framework of the litigation "96
in the case
of ordinary procedural law, there being no such limitation, the availability being more varied than the arbitration
procedure.
Also, Article 9, from Code, in its entirety, sets some of the constitutive elements of the principle of
availability embodied in the rights of the parties.
The rights of the parties resulting from the interpretation of art. 9, are the following:
-the right of the person concerned to initiate or not the ordinary law procedure or the arbitration procedure;
-the right to determine the limits of demand or defense;
-the right to renounce the procedure or the subjective right, the right of acquittal and the right to settle the
dispute through a transaction;
-the right to appeal or not to appeal the decision and whether or not to stand in the way of an attack;
-the right to demand or not the forced execution.
1. Right of the person concerned to initiate or not the ordinary procedural or arbitral proceedings
Regarding the right of the interested person to start or not the ordinary law procedure or the arbitration
procedure, we make it clear that both the civil court and the arbitral tribunal are not invested ex officio, but if is
necessary that they be notified by an application by the person concerned who will obtain the name of the
applicant in the proceedings.
The person concerned is understood to be the person who claims a claim against another person or who seeks
to settle a legal situation in court.
Although in the civil procedural law there is the possibility of the participation of third person in the civil
process under the conditions of art. 61-67 from Code, within the arbitration procedure, according to art. 581,
C.prc.civ., their participation shall be made only with their express consent and, at the same time, with the
express consent of the parties. There cannot be a forced introduction into the proceedings of a third party unless
the cumulative condition of the third party's agreement and the parties already in the arbitration procedure is met.
Also, even in the case of a voluntary intervention, the intervener will not be allowed to intervene if the parties do
not agree.
However, from this rule we find an exception provided in the final thesis of art. 581 par. 1 from Code, the
final thesis, namely the possibility of admitting the accessory intervention without fulfilling the cumulative
condition mentioned. We consider that "not accepting this derogation would amount to an inappropriate
instrumentation of the data and evidence of the file that would facilitate the giving of a non-arbitrary
arbitration."97
2. The right to determine the limits of demand or defense
With respect to the right to determine the limits of demand or defense, we show that in art. 9 par. 2,from
Code. it is specified that the subject matter and the limits of the process are determined by the parties' requests
and defense.
As such, the jurisdictional body is required to rule only on those requested by the parties without being able
to overcome in any way the procedural framework drawn by them in the exercise of the arbitration procedure
through the claims and defense formulated.
The guarantee of the application of the principle of availability is that the civil court / arbitral tribunal
has the obligation to rule only on what has been requested; the jurisdictional body is bound by the claimant's
claim and the defendant's defense and cannot exceed the limits imposed by the claimant.
From this interpretation it follows that the omnia petita must be pronounced, that is, on all the heads of
claim, unable to omit the pronouncement on any of the heads (minus petita) and to give more or something than
what was requested (plus petita sau extra petita ).
96
See G. DĂNĂILĂ, ”Procedura arbitrală”, edit. Universul Juridic, București, 2006, p. 127.
97
See M. I. SĂLĂGEAN, ”Arbitrajul comercial”, edit. ALL Beck, București, 2001, p. 115
55
As I have mentioned, the limits and subject matter of the proceedings are fixed by the parties' requests and
defense. As regards the situation of the defense, it is determined by the defendant, "the latter being the only one
entitled to determine the limits and conditions to be met by the applicant".98
3. The right to waive the settlement of the litigation or the subjective right, the right of acquittal and the
right to settle the dispute through a transaction.
With regard to the right to waive the settlement of the dispute or the subjective right, the right of
acquittal and the right to extinguish the dispute through a transaction, we show that par. 3, art. 9 of Civil
procedure code is not a restrictive rule, as the final sentence of this paragraph clearly demonstrates that the party
can enjoy its rights in any way permitted by law, thus not limiting the rights of the parties; therefore,
enumeration of these rights is not limitative but exemplary.
For reasons of legal symmetry, the party has the right / possibility, by virtue of its availability, to adopt a
waiver solution for the settlement of a case, as well as having the opportunity to start the procedure
symmetrically.
Therefore, disp. art. 9 par. 3 establishes the first two procedural steps of the principle of availability:
the right to refer to the civil court / the tribunal and the right to waive the procedure, implicitly to the
complaint made.
Also, between these two poles there are variations of these rights embodied in the right to renounce
the alleged subjective right, the right of acquittal and the right to quench the dispute through a
transaction.
3.1. Dismissal of the settlement of the dispute
As regards the waiver of the dispute, we emphasize that this waiver does not lead to the impossibility in
future of an action with the same parties on the same claimed right and in the case of the arbitration procedure
and under the same arbitration convention.
The waiver of the settlement affects in a singular way and lacks the effects of the procedure initiated by the
notification that established the procedural limits made by the interested party.
Also, giving up the case is a purely unilateral, irrevocable act, specific to the complainant, and its effects
are produced retroactively.
For example, a judgment by which the civil / arbitral tribunal takes note of the waiver of the applicant's case
and provides for closure of the file following the sending of an address by the plaintiff to the arbitration court /
tribunal, expressly states that it wishes to renounce at trial.99
3.2. Waiver of the claimed right
With regard to the waiver of the alleged right, we point out that, by using the argument a contrario, if,
following the abandonment of the case, the complainant still has the opportunity to introduce a new action
concerning the same subjective right, the decision to take a waiver act with no authority to adjudicate on the
merits of the case, in the event of a waiver of the alleged subjective right, the plaintiff can no longer bring a new
action concerning that right, as "the decision to reject the application - as a result of the renounced subjective
right - it enters into the work of authority ".100
3.3. The defendant's right to the claimant's claim
Diametrically opposed to the right of renunciation of the case, the defendant's right to the claimant's
claims is enshrined. The occurrence of this right is an act of procedural provision of the defendant who, through
this act, may, in whole or in part, adhere to, accept the claims made by the applicant through the application for
arbitration.
98
See coord. V. M. CIOBANU, M. NICOLAE, ”Noul Cod de procedură civilă, comentat și adnotat, Vol. I art
1-526”, edit. Universul Juridic, București, 2013, p. 26.
99
See C.A.C.I. de pe lângă C.C.I.R. Sentința arbitrală nr. 239/12.12.2008 și Sentința arbitrală nr. 95/30.04.2009,
în V. A. VLASOV, ”Arbitrajul comercial. Jurisprudența arbitrală 2007-2009. Practică judiciară”, edit.
Hamangiu, București, 2010, p.60.
100
See coord. V. M. CIOBANU, M. NICOLAE, op. cit. p. 897.
56
Like abandoning the case as well as waiving the alleged right, means specific to the claimant, aching is
the means by which the defendant can manifest his readiness for the arbitral litigation in progress.
Another particular feature of the prosecution is that the defendant will no longer be able to question his act
of recognition in a new litigation; this is not due to the judicial authority (present in case of renunciation of the
alleged right) but because its manifestation of will - the defendant - as a procedural act of provision was included
in the judgment, the decision having the probative value of an authentic document . The effect of promoting such
moods is that of litigation.
3.4. The right to quit the case through a transaction
Another right deriving from the principle of availability is concluded by the right to quash the case
through a transaction. The possibility to conclude a transaction under art. 9 par. 3, Code, Respectively from the
phrase "the party can agree (with the other party) to terminate, in whole or in part, the litigation".
As a result, the legislator does not limit the ways in which the litigation ceases, but again gives the parties
freedom in order to satisfy their interests in the best possible way. The transaction is the act of disposition by
which the parties pursue their interests by making use of mutual concessions and, at the same time, seek to
terminate the dispute. Following concessions made by the parties before the arbitral tribunal or the court, they
will issue an expedited decision that will uphold the will of the parties.
4. The right to appeal or not to appeal the judgment and to resist or not to appeal
Regarding the right to appeal against the decision or not to stand in the way of an attack, the provisions
of art. 9 C.pr.civ. are express and point out the possibility of the party to give up, according to its intimate belief,
the right to attack or not the decision or to stand in the way of an attack.
In the case of arbitration proceedings, according to the provisions of art. 609, the parties cannot express
their desire not to appeal the arbitration award through the arbitration agreement. Also, from the
interpretation of Art. 609 par. 1, it follows that even during the arbitration proceedings the parties cannot express
their choice of waiving the right to challenge the judgment. However, by virtue of the principle of availability,
the legislator offers the parties the possibility to waive the right to appeal the judgment after the arbitral tribunal
has given such a ruling.
The endorsement of this exception, which highlights the important role of the principle of availability in
the arbitration procedure in general, is made by paragraph 2 of Article 609, from Code, art. 609, it results, by
way of interpretation, that even if an action for annulment has been promulgated, the party may, throughout its
defection, refuse to support it; as a consequence, the perfect mirroring of the right to resist the attack or not.
5. The right to request or not to enforce the judgment
Concerning the right to request or not to enforce the judgment, we point out that it is a choice of the party
that can dispose of it by virtue of the principle of availability, art. 9 par. 3, Civile procedure code
As one can understand, it is noted that the party has the right to demand forced execution, so it has the right
not to forgo forced execution. The rule in the matter is that the party who has won the litigation has the interest
to request enforcement of the arbitration award, but at the same time it may also remain passive, that is, not to
require enforcement of this arbitration award.
Last but not least, we note that Art. 9 of Code suggests an exemplary and not limitative character of the
above-exposed attributes that constitute the content of the availability principle. In support of this assertion is the
drafting by the legislator in the final thesis of art. 9 par. 3 of the umbrella provision stating that the party may
have its rights in any other way permitted by law.
Conclusion
We consider, from the point of view of the content of the right to availability, the arbitration process does
not differ from the civil process under the common law procedure other than under various aspects that we have
highlighted. However, the arbitration procedure provides for a particularity regarding the principle of
availability.
This particularity is constituted by the provisions of art. 576, Civile procedure code, unlike the common law
where the Code of Civil Procedure governs the rules applicable to the settlement of a dispute, by virtue of the
application of article in the arbitration proceedings, the parties may, through the arbitration agreement,
lay down procedural rules for the conduct of proceedings, in the context of a dispute or even at the time of
the dispute, the parties may empower the arbitrators to lay down rules derogating from to the joint procedure.
57
Another exception is the application of the rules of specialized arbitration institutions where the
arbitration agreement has established that disputes should be settled by a particular arbitration institution. Here
is how the principle of availability tends to be absolute, to the common law where there is a slight attenuated
absolutism. We rely on the fact that the actual settlement of the arbitration litigation is governed by the rules of
procedure established, first of all, by the parties.
We affirm that the principle of availability means the possibility for the parties to determine not only the
existence of the process, the triggering of the jurisdictional procedure and the freedom to suppress the process
before a decision is taken, but also the content of the process by establishing the procedural framework, the
object and the cause, of the future stages that they may be going through.101
Therefore, the essence of the principle of availability in the arbitration procedure is that the parties may
establish their own rules of arbitration under the arbitration convention, rules which must respect public order
and be in accordance with law and good morals, while the rules of the common law procedure is inflexible and
their non-compliance attracts the most mute or the fallout from the exercise of the right and even the nullity of
the act committed in disregard of the procedural rule.
We conclude by recalling that availability is understood as the possibility for the parties to notify the
judicial body, namely the court or the arbitral tribunal, to dispose of the subject matter of the dispute and the
means of defense
References
1. Boroi, Gabriel, Spineanu-Matei, Octavia, Constanda, Andreia, Negrilă, Carmen, Dănăilă Veronica, Theohari,
Delia Narcisa, Răducan, Gabriela, Gavriș, Dumitru, Marcel, Păncescu Flavius, George, Eftimie, Marius, ”Noul
Cod de procedură civilă. Comentariu pe articole. Vol. I. Art. 1-526”, edit. Hamangiu, București, 2013;
2. Boroi, Gabriel, Spineanu-Matei, Octavia, Constanda ,Andreia, Negrilă, Carmen, Dănăilă, Veronica, Theohari,
Delia Narcisa, Răducan, Gabriela, Gavriș, Dumitru, Marcel, Păncescu Flavius, George, Eftimie, Marius, ”Noul
Cod de procedură civilă. Comentariu pe articole. Vol. I. Art. 527-1133”, edit. Hamangiu, București, 2013;
3.Ciobanu, Viorel Mihai, Briciu, Traian Cornel, Dinu, Claudiu Constantin, ”Drept procesual civil. Drept
execuțional civil. Arbitraj. Drept notarial. Curs de bază pentru licență și masterat, seminare și examene”,
edit. Național, București, 2013;
4. Coord. Ciobanu, Viorel Mihai, coord. Nicolae, Marian, Baias, A. Flavius, Belegante, Violeta, Briciu, Traian
Cornel, Dinu, Claudiu Constantin, Dumitrache, Bogdan, Florea, Gheorghe, Fodor, Maria, Gîlcă, Iulian, Ghinoiu,
Decebal, Irimia, Cristina, Nicolae, Adina, Nicolae, Marian, Oprina, Evelilna, Rădoi, Alina, Stancu, Mirela,
Ștefănescu, Anișoara, Tăbârcă, Mihaela, Turcu, Nicolae, Ursuța, Mircea, Zidaru, Gheorghe-Liviu, ”Noul Cod de
procedură civilă comentat și adnotat. Vol. I. –art.1-526”, edit. Universul Juridic, București, 2013;
5. Dănăilă, Giorgiana, ”Procedura arbitrală în litigiile comerciale interne”, edit. Universul Juridic, București,
2006;
6. Leș, Ioan, ”Noul Cod de procedură civilă. Comentariu pe articole art. 1-1133”, edit. C.H. Beck, București,
2013;
7. Sălăgean, Monica Ionaș, ” Arbitrajul comercial”, edit. All Beck, București, 2001
101
See coord. G. BOROI, ”Noul Cod de procedură civilă. Comentariu pe articole. Vol. I, Art. 1-526”, edit.
Hamangiu, București, 2013, p.36.
58
CRIMES RELATED TO LEVIES AND TAXES
CHIRIEAC Roxana, drd. asist. univ. Titu Maiorescu University, Bucharest
Abstract
Most countries depend on the taxes and levies perceived from the taxpayers in order to make
their state budget - and thus it is only normal that they hope for a full compliance for their
contributors. Even though there is a very fine line between tax avoidance and tax fraud or any other
such proceedings that are put in place and may constitute infractions or even crimes, these concepts
are not always very clearly defined. In addition, we might add that these crimes and infractions are
more or less regulated depending on the studied legislation. Thus, in this article we are trying to shine
a light on the said definitions in different legislations. We shall try and provide an exact definition for
the following concepts: tax evasion, fiscal fraud, and a new type of infraction that is slowly but surely
beginning to be regulated - the laundering of fiscal fraud.
INTRODUCTION It is often misunderstood that tax avoidance, meaning the legal actions taken by taxpayers in order to
decrease the amount of taxes paid may constitute an infraction or even a crime. But, at a more attentive look
towards the European and Romanian regulations we might consider that that is not the case - we can see that tax
avoidance (or fiscal optimization) is legal and regulated in certain European or common law countries, but it is
limited to the commission of various crimes and infractions related to fiscal rights.
These crimes and infractions are all translated by fiscal irregularities, or noncompliance (term used by
the Organization for Economic Co-Operation and Development), which consist of the willing and assumed
inobservance of the taxpayer towards the fiscal obligations that are imposed onto him.
In the following essay we shall try to portray the main forms of infractions and crimes that can be
committed in the fiscal field.
1. TAX EVASION Tax evasion can be defined as the actions undertook by a natural or moral person in order to decrease
the amount of taxes paid - it can be legal (in which case we are talking about legal tax avoidance) or it can resort
to illegal proceedings (in which case it resembles more fiscal fraud). [1] A common example of illegal tax
avoidance known among companies is the moving of capital or the detain of shares in offshore companies,
registered in tax havens, but without afterwards declaring the incomes or revenues obtained by the said
company.
It is to be noted that certain European countries such as France do not even regulate the concept of tax
evasion - there is no mention of such term in the fiscal, civil or penal code.
The doctrine insisted on trying to get a better definition of tax evasion - thus, tax evasion will be
constituted if the following three criteria are met cumulatively: (i) the chosen legal form appears insolate,
inadequate, abnormal or strange or in any case it is in adapted to the economical purpose that was fixated; (ii) the
tax payers choice is abusive, because it is evident that it has no other purpose than tax and levies saving; (iii) the
chosen form leads effectively to a substantial tax saving. [2]
Some authors define tax evasion as an institutionalized legal avoidance of any tax (on income, profit,
benefits or patrimony). Companies are in search of decreasing their taxes, without fiscal exile, using common
law proceedings, in order to fiscally optimize their work, and in the end this can be revealed useful for the GDP.
Hence, tax evasion should not be battled but limited. [3] Furthermore, a very important role is thus attributed to
judges who must roughly sanction fiscal fraud, but they must try and encourage investments and by this
including but not limited to encouraging the creativity of contributors in order to develop new ways of paying
less taxes. [4]
In worldwide regulations as well as in doctrine, opinions are split. For instance, the Swiss state doesn't
consider tax evasion as a penal act or even an infraction or contravention - tax evasion reveals from tax and levy
application and the fiscal administration shall simply correct the taxpayers' attitude and way of acting. The Swiss
Federal Court thus decided that under these circumstances, the fiscal administration can discard the taxpayers'
structure and can substitute the structure that should have normally applied to the operation, in compliance whit
the usual tax practices, with the economic aim. [5]
There are also opinions that state that tax evasion stands for (or should stand for) a crime by its effects:
"every year, multinational's tax evasion brings losses of 125 billion euros to developing countries, either four
times the necessary estimated value by the United Nations Organization for alimentation and agriculture in order
to eradicate famine. [6]
59
In the Romanian legislation, according to doctrine, "legal" tax evasion signifies taking advantage of a
legislative void in order to avoid tax and levy imposition, but there is no clear or institutionalized definition, or a
great importance given to such matter. The "illegal" tax evasion (which many may consider a redundancy) is
structured by doctrine as having the same meaning as fiscal fraud. Moreover, according to Law 241/2005 for the
prevention and combatting of tax evasion, some proceedings are considered a crime. By this we mean that
including but not limited to, the omission of caring forth in accountancy of commercial operations made or
incomes thus resulted, the dignifying in accountancy of fictive operations, regardless of their nature or way of
realization, the establishment by the tax payer of the levies, taxes or contributions, having as a result the
attainment of money from the state budget or compensations due by the state budget are constitutional of crimes.
As we can see, most of these operations have somehow of another infraction that is imminent to their
commission. But nevertheless, we may see that the way that the Romanian legislation treats tax evasion is not
the same as it is treated in other countries, nor is it defined in a close matter as the other European legislations.
In analyzing Law 241, we may see that the crimes are usually liable of jail and not fines, and the
precautionary measures are compulsive. We may thus state that the Romanian legislation is not only the toughest
legislation to punish such behavior of contributors but it is also the least regulated law system of all.
2. FISCAL FRAUD
Internationally, fraud is defined as "an act committed by one or more directors, persons who constitute
the decisional forum of the company, employees or third parties which include deceptive actions in order to gain
an illegal or undue advantage". [7]
Fraud must thus meet three cumulative criteria: (i) commission of an act (a material element, the simple
intent to committing an act is not constitutive of a crime); (ii) an intended deceptive action - the act must be
planned, the intentional element of the perpetrator must exist and he must know that what he is doing is illegal;
(iii) the obtained advantage must be undue or illegal, should it be material (in cash or nature) or moral (gratitude
or statute). [8]
Doctrine defined fiscal fraud as any action of the taxpayer that implies a breach of the law, in the
willing purpose to evade from the payment of taxes. Fiscal fraud is based firstly on a material element - an
irregular operation that must come in contradiction with the law, and secondly on an intentional element - it must
be done knowingly and must show the bad faith or the deceptive actions of the taxpayer. [9]
In the French legislation, fiscal fraud stands on the willing dissimulation of the taxpayer. The General
French Fiscal Code incriminates fraud in article 1741 al. 1 "Without prejudice to the special regulations in the
present codification, whomever fraudulently evaded or tempted to fraudulently evade from the establishment or
the full or partly payment of the levies regulated by the present legislation, or willingly omitted to file the fiscal
declaration in the regulated term, or willingly concealed part of the sums subjected to taxation, or organized their
insolvency or prevented by any other maneuver the recovering of taxes, or acting in any other deceptive manner,
is liable, independently of any other fiscal sanctions, of a fine of 500.00 euros and jail of 5 years."
The General French Fiscal Code aggravates the punishments in case of the use of forgeries, offshore
companies or the constitution of a criminal organization in order to commit fiscal fraud raising the penalties to
2.000.000 euros and 7 years in prison.
It is to be noted that this article was modified in late 2013 and has since brought out controversies
among practitioners, taxpayers and professors. Before these modifications, fiscal fraud was much less regulated
and meant roughly the buying or selling without any invoices, invoice forgeries and obtaining undue
reimbursements. The main criticisms that was brought was that certain facts represented crimes on their own,
(such as using forged identification or documents), and others represented an unnecessary aggravation of facts
and/or operations which may lead to absurd situations (such as the incrimination of operations as the
interposition of persons regulated by the Civil Code). Also, some argued that it stands in each persons liberties to
open or subscribe to foreign bank accounts, and that in its self it has nothing illegal. [10]
Thus, a request was filled with the Constitutional Court in order to establish the legality of this new
regulation. The Court ruled that "Considering [...] that the constitution of an account or the closing of contracts
concluded with foreign entities does not constitute in its self an illicit act; that nevertheless starting with the
moment that this account has been used to commit the crime of fiscal fraud, the legislator may retain such
circumstance among those that lead to the aggravation of the punishment of fiscal fraud; in this case, the
legislator estimated that by resorting to accounts or contracts concluded with entities established abroad may be
of nature to facilitate the commission and dissimulation of the fiscal fraud crime; that by retaining this
aggravating circumstance to the fiscal fraud crime, the legislator did not discard the principal of the necessity of
incriminating crimes.", thus declaring the law which modifies fiscal fraud constitutional. [11]
We must stress out that even though the latter article was declared constitutional and was enacted in the
said form, the Constitutional Court established the circumstances in which the action of opening a bank account
abroad was to be considered a crime; furthermore as to the penal character of fiscal fraud and the new and
aggravated sanctions as to jail and fines of this crime, we consider that only a judge is capable of establishing, in
each case and according to the circumstances of each situation if it constitutes a crime. We should also state that
60
fiscal fraud is to be admitted and researched as to a threshold - unfortunately this was never updated and it is
currently set to 1000 francs (roughly 153 euros).
As to the research of fiscal fraud, it is regulated in the Penal Procedure Code and states that the burden
of proof lies with the fiscal administration after the prior retrieval of the favorable opinion of the Committee of
Fiscal Crimes. This Committee must express its favorable opinion before the submission of the proceedings by
the fiscal administration. If such opinion is not submitted, the French correctional court, as being inadmissible,
will reject the suit.
In Switzerland, fiscal fraud is defined in article 59 of the federal law on harmonizing direct taxes on
cantons and communes: "The one who, in the purpose of evading tax paying, used false titles, forgery or inexact
regarding their content, the one who is obligated to withhold tax, embezzled for himself or for others the
perceived amounts, shall be liable of jail or a 30.000 francs fine at the most." However, the law conditions the
punishment of fraud to the existence of evading tax obligations. Also, in the case of recognition of the said
crime, using one of the methods established by the law, the charges against the infractions leading up to the tax
evading shall be dropped. In other words, if one admits to evading taxes within the framework of this article, the
charges against forgery or withholding taxes shall be dropped.
Fiscal fraud is also defined in article 186 of the Law on the federal direct tax, even thought it doesn't
clearly state fraud but the use of forgeries: "Whoever submits, for the purposes of tax evasion within the
meaning of Arts. 175-177, faked, forged, falsified or substantively incorrect documents, such as business
records, balance sheets, profit and loss statements and salary certificates or other third party certifications
shall be punished with imprisonment or a fine of up to CHF 30,000." Also in this case tax evading must be
proven and a voluntary declaration occurs then a prosecution for any other crimes that have been committed for
the purpose of tax evasion are avoided.
The crime of tax fraud is committed beginning with the moment in which a forged accountancy is
submitted to the fiscal authority. [12] The issue is defining the forged "document" - the Penal Code defines it as
"any document destined and by which it is to be proven a fact of judicial meaning and any signs destined to
demonstrating such fact", definition that is far larger than the one provided by the Fiscal Code. Even though this
divided doctrine for a long period of time, the International Federation of Accountants ruled that the definition
presented by the Penal Code is to be taken in consideration. [13]
We must note de difference between these legislations: whereas the Romanian legislation is fixated
upon very large penalties regarding jail punishment, the other legislations are stressing out the importance of
recovering the prejudice. We might also add that the Romanian legislation doesn't regulate as much these
infractions or crimes - at a closer look in this legislation we might see that there is no regulation of infraction and
that all fiscal misconducts are considered crimes.
3. LAUNDERING OF FISCAL FRAUD A relatively new and innovative concept has been put in place in order to combat a new line of
infractions related to fraud and tax evasion - it has occurred to the fiscal authorities that the persons responsible
of fraud usually sought out ways to reinvest the money they took out of tax evasion or fraud. Thus, states began
prosecuting and seeking the reinsertion of black money into the economy. At first sight, this concept might seem
as a paradox - but in fact, there is a very good logic into reinserting black money (resulted from fiscal fraud) into
the economy and making them appear as real and clean money.
Money laundering is defined by the European Council as "the transformation of illicit founds into licit
founds, therefore fit for reinvestment into legal sectors or useable for personal gains." For GAFI, the
international organism specialized into fighting against money laundering, this proceeding is "laundering capital
consists into the withdrawal of product resulted from illegal or criminal activities and masking these origins.
This proceeding is of great importance as it allows the defendant to profit from these benefits, and in the same
time protect their source."
Article 324-1 from the French Penal Code defines money laundering as "the facilitation by any means,
the false justification of the origin of the goods or incomes of the author of a crime or infraction which procured
to the latter a direct or indirect profit." The second thesis of the same article continues to define money
laundering as "the participation to an operation of placing, dissimulating or converting the direct or indirect
product of a crime or infraction."
Thus, the object of money laundering is to place a legitimate appearance to illicit founds. Laundered
money are originally black money, resulted from an infraction, but they should be divided into two categories:
black money (resulted from crimes, drug, arms, organs traffic, prostitution, etc. which rise up to 2000 billion
dollars each year) and grey money (resulted from white collar infractions, such as social goods abuse or illicit
committees, which sum up to 5000 billion dollars each year) - they represent roughly about 10% on the worlds
GDP. [14]
According to doctrine, the crime of laundering fiscal fraud constitutes a general infraction, self-standing
and distinct from fiscal fraud, characterized by two requirements: the first is the existence of an original
(principal) infraction, where the defendant doesn't declare part of his income, and the second the placing of such
61
funds with the purpose of obtaining goods, thus reinjection into the economy black money that have the
appearance of being legal. [15]
The consequences of such regulations for this new crime are benefic to the states economy and have
repercussions on more fields. The first is that laundering of fiscal fraud can be prosecuted even though the crime
of fiscal fraud is prescripted. The penal section of the Cassation Court in its ruling of the 20th of February 2008
insisted upon the limitation of these two infractions. The prescription term for fiscal fraud starts running from the
moment of it’s committing, whereas the prescription term for laundering of fiscal fraud starts running when the
commission of the fact is discovered. It is to be noted that also the punishments are more severe and that legal
confiscation is permitted as a complementary punishment. [15]
According to the same doctrine, the most common ways to launder fiscal fraud are: (i) making
symmetrical operations on financial markets and guaranteeing with black money; (ii) transfers between
subsidiaries situated in offshores and other states that have a harsher fiscal policy; (iii) investing sums in
companies that have no relation with the declared income; (iv) presenting false documents or agreements,
creating screen companies or trusts without substance; (v) reimbursing a fictive loan to a parent or a friend. [16]
It is obvious that some sectors are more susceptible to this type of infractions than others: we thus state
restaurants, constructions or any other domains in which payments can or are usually made with cash, or where
there can frequently be day workers employed.
The most common ways of laundering fiscal fraud are the loan back or the tontine.
The cash collateral or loan back is a technique by which a person that already has that sum in his
accounts borrows a sum of money; the existing sum is given as a guarantee to the person who is giving out the
loan. This loan is afterwards invested making it appear that the provenience of these funds is licit. Most of the
times, the account on which the guarantee is placed is in an offshore bank account, and the bank that is giving
out the loan is in a country that has high fiscal rates. The person that is making the loan can eventually choose an
unprivileged domain and thus can spare some more taxes. Afterwards, the person can reimburse the loan or he
may choose not to. More often than not, the loan is not paid back, but this doesn't represent an issue for the bank
who gave out the loan as it has an identical sum of money in another account. If the loan is indeed paid back, that
is usually because the investment was more successful than the parties expected.
As regards to tontine, or the tontine pact, this clause can appear in a purchase made by two or more
persons. This clause doesn't raise the issue of the undivided condition, as it guarantees the whole propriety of the
asset to the last survivor who invested in it, with a retroactive effect to the day of the acquisition of the asset. To
this point, there is nothing illegal in this operation.
However, tontine is usually used in France by more persons (buyers), whom together gather up
impressive amounts of liquid (cash) and afterwards wish to invest in real estate, companies or commerce. [17]
This matter on its own has nothing illegal in it, but whereas a sum of over a few million euros is involved, and
the payment is requested to be made in cash it may raise a few red flags.
Moreover, the tontine act does not request a written form in between parties, nor does it request the
stipulation of the quotas of the persons involved or the conditions in order to designate the representative of the
pact.
CONCLUSIONS
Across this study we have tried to prove that tax evasion and fiscal fraud are two very different concepts
and they are not at all defined by the same rules across the globe. Furthermore, we pointed out that some authors
or regulations do not condemn tax evasion as much as others and some of them even stretch out as far as
encouraging this procedure, considering that the money resulted from this will be immediately reinserted into the
economy if this is not considered a crime, but more an infraction.
The real and immediate interest into rendering these regulations aligned is that some countries (such as
the Switzerland) refuse to prosecute a crime if it isn't regulated in their legislation. For instance, if an act is
committed in Romania and it is qualified as a crime, if it is considered to be an infraction in the Swiss
legislation, it shall not be prosecuted by the Swiss authorities.
The concept of introducing new crimes such as fiscal fraud laundering is a step forward into admitting
that there are new fiscal crimes committed that are of far much grater importance than simple tax evasion, but
nevertheless, we think that they should not be built on indistinct and very doubtful definitions of the basic
concepts that stand as the pillars of these new found crimes.
Furthermore, we are of the opinion that tax avoidance is a natural concept that should come intro every
moral or natural persons behavior and should not be restricted, but regulated and encouraged. A liberal economy
stands for a liberal market and any and all actors in the economy should be free and encouraged to choose
whichever tax system they please and is more fitted for their business or occupation. Thus, we do not consider
that a restriction of offshore use and of offshore financial centers is benefic to the economy, but better yet we
consider that worldwide states should work on their legislation in order to make it more attractive to investments.
62
References [1] Michel-Pierre Prat, Cyril Janvier, Petit dictionnaire de la fraude fiscale, Paris, Édition Dalloz, 2011, p. 61;
[2] Xavier Oberson, Droit fiscal suisse, 4th edition, Basel, editura Helbing Liechtenhahn, 2012, p. 66; Floran
Ponce, L'évasion fiscale en droit interne, état des lieux de l'évasion fiscale en matière d'impôts directs dans la
jurisprudence et la doctrine, Administrative and fiscal Law Journal, 2010, p. 137; Walter Ryser, Bernard
Rolli, Précis du droit fiscal suisse (impôts directs), 4th edition, Berna, Stämpfli, 2002, pp. 72, 87-90;
[3] Jean-Christian Mazzoni, in Éric Vernier, Fraude fiscale et paradis fiscaux - décrypter les pratiques pour
mieux les combattre, Paris, Dunod, 2014, pp. 20-21;
[4] Idem, p. 21;
[5] Federal Swiss Court Decision, 131 II 627, considerent 5.2, in the Swiss journal of administrative and fiscal
law, 2009 II, p. 9, considerent 4;
[6] NGO - Catholic Comette against famine and for development, Derailed economy, 2010;
[7] Definition given by the International Federation of Accountants, as a ISA Norm 240 - IFAC, in Éric Vernier,
Fraude fiscale et paradis fiscaux - décrypter les pratiques pour mieux les combattre, Paris, Dunod, 2014, p. 14,
[8] Éric Vernier, Fraude fiscale et paradis fiscaux - décrypter les pratiques pour mieux les combattre, Paris,
Dunod, 2014;
[9] Patrick Rassat, Thierry Lamorlette, Thibault Camelli, Stratégies fiscales internationales - Optimisation
fiscales interenationales pour les entreprises; Mondialisation et fiscalité, la fin des paradis fiscaux?
Nouvelles opportunités, Paris, Maxima, 2010, p. 160;
[10] Philippe Derouin, Définitions et distinctions de la fraude fiscale et de l'évasion fiscales, în Jérôme Lasserre
Capdeville, Philippe Maechessou, Bruno Trescher, Chantal Cutajar, Fraude et évasion fiscales: état des lieux
et moyens de lutte, Paris, Editura Joly, Lextenso, p. 4;
[11] French Constitutional Court ruling nr. 2012 - 679 DC of 4th of December 2012, 22nd considerate;
[12] Xavier Oberson Droit fiscal suisse, 4th edition, Basel, editura Helbing Liechtenhahn, 2012, pp. 49-50;
[13] Aurélia Rappo, Fraude et évasion fiscale. La convention franco-suisse de double imposition, in Capdeville,
Jérôme Lasserre, Maechessou, Philippe, Trescher, Bruno, Cutajar, Chantal, Fraude et évasion fiscales: état des
lieux et moyens de lutte, Paris, Joly, Lextenso, p. 49;
[14] For a more detailed view of this matter, please see Éric Vernier, Techniques de blanchiment et moyens de
lutte, 3rd edition, Paris, Dunod, 2013;
[15] Noel Pons, in Éric Vernier, Fraude fiscale et paradis fiscaux..., p. 52-53;
[16] Ibidem, pp. 53-54
[17] For a more detailed view of the mater in France, please see Éric Vernier, op. cit., pp. 58-65
63
THE LEGISLATIVE EVOLUTION OF DIVORCE IN THE ROMANIAN LAW
Tania-Cătălina COADĂ, Titu Maiorescu University, Bucharest
Abstract:
Divorce, as a form of marriage dissolution, is one of the most well-known institutions in the Romanian law.
While before the 19th
century marriages could be dissolved for derisory reasons, once the 1864 Civil Code
became effective, the grounds for divorce were more properly defined in the Romanian legislation. If nowadays
it seems unacceptable for the parents of the spouses to intervene in the family relations of the latter, parents had
for long a recognised right to consent to their children’s divorce. In a society based on education, knowledge
and continuous development, having family at its core, divorce should be viewed as an option as the moment the
spouses’ cohabitation becomes impossible, this affects their relations and especially their relations with their
children, the children’s interest prevailing and being higher. The current Romanian legislation has managed to
establish a modern legal regime, which is adapted to social reality.
Key words: divorce, legislative evolution, Civil Code, Romanian law, education, family, knowledge, society,
marriage
1. General considerations
Marriage dissolution assumes the existence of a valid marriage, which will no longer produce effects in the
future, the divorce being a consequence of the will of one or both spouses who finds it impossible to continue
their marriage. The Romanian doctrine has defined divorce either as “the dissolution of marriage pronounced by
a court decision based on a cause determined under the law or based on the spouses’ persistent will to break up”,
or as “a way to terminate the effects of a marriage for the future, following the deterioration of the relations
between the spouses, due to some objective reasons, or as a consequence of the spouses’ agreement”.102
The Civil Code brings divorce under regulation as a means to dissolve marriage in Chapter VII of Title II, in
Articles 373 - 404. According to Article 373, divorce is possible:
a) with the spouses’ agreement, at the request of both spouses or the request of one of the spouses
accepted by the other spouse;
b) when, due to sound reasons, the spouses’ relationship is seriously damaged and the continuation of
the marriage is no longer possible;
c) at the request of one of the spouses, after an actual separation which lasted for at least 2 years;
d) at the request of one of the spouses whose health condition makes the continuation of the marriage
impossible.
In Romania, both under the former regulation and under the rule of the current Civil Code, there are three
systems that define the legal nature of divorce: the system of the divorce as a remedy, the system of the divorce-
sanction, and the mixed system. With regard to the system of the divorce as a remedy, the dissolution of
marriage takes place when the relations between the spouses are so damaged that it becomes impossible that the
marriage continues, and it is not conditioned by the fault of any of the spouses, such as: the case of a sick spouse,
a situation in which the continuation of the marriage is impossible so that, at the request of any of the spouses,
the divorce is going to be pronounced [a case stipulated in Article 38 para. 2, Family Code]. The dissolution of
marriage under the divorce-sanction system is based on common fault or the exclusive fault of one of the
spouses. The divorce comes therefore as a “civil penalty” in the legal systems where family relations are
governed by civil law, or as a “family law penalty” in those legal systems where family law is a branch of law
different from civil law. 103
As a comparison between the two systems, the grounds leading to a dissolution of
marriage are those based on fault in the second system, while in the first system there are also grounds not
involving any fault (ex.: alienation or mental debility). Moreover, in the second system, the spouse who is at
fault for the irremediable damage of family relations is sanctioned, or both spouses are sanctioned when
appropriate, while in the first system, an inadmissible situation between the spouses is remedied. The mixed
system combines the two previous conceptions and is concerned both with the existence of a fault of the spouses
and the impossibility to continue the marriage.104
102
Camelia Iordan, Instituții de drept civil. Familia. Volumul I. (Institutions of Civil Law. Family. First volume),
Hamangiu Publishing House, Bucharest, 2017, page 201 103
Antigona-Camelia Iordan, Căsătoria şi divorţul în dreptul intern şi internaţional (Marriage and Divorce in
National and International Law), Renaissance, Bucharest, 2010, page 283 104
Marieta Avram, Drept civil. Familia. (Civil Law. Family.), Hamangiu Publishing House, Bucharest, 2013,
page 110
64
2. The legislative evolution in the Romanian law
The Civil Code promulgated in 1864 and entered into force on 1st December 1865 provided for two possibilities
to dissolve a marriage:
a) For specific causes: “The man or the woman may request their separation for the ground of
adultery” (Article 211); “The married couple may, each of them, request the dissolution of their
marriage for excesses, cruelty or serious insults they have made to each other” (Article 212); “The
dissolution of the marriage may be requested and obtained when one of the spouses is punished with
forced labour or receives a penalty involving the deprivation of liberty” (Article 213); “The separation
may be pronounced against the spouse who made an attempt on the other spouse’s life, or who, being
aware that there are others who made an attempt on the other spouse’s life, did not disclose this
immediately” (Article215).
Therefore, the Romanian Civil Code distinguishes between these grounds, namely the adultery, the punishment
of forced labour or a penalty involving the deprivation of liberty, the act committed by a spouse to attempt on
the other spouse’s life, which were undeniable grounds for a divorce and if they were proven, the divorce was
obligatorily pronounced, and grounds which were not undeniable: excesses and invectives, which were left for
the courts of law to evaluate, being necessary to determine the seriousness of the acts in order to pronounce a
divorce. All these causes were founded on the idea of punishing the spouse at fault or protecting the innocent
one.105
b) With the agreement of the spouses: “The mutual and persistent consent of the spouses,
expressly in the manner prescribed by the law, under the conditions and after the trials determined under
the law, shall serve as sufficient proof that their life together is unbearable to them and that, for them,
this is an undeniable reason for separation” (Article 214).
The divorce request could not be submitted unless the couple had been married for two years, and it could not be
received after 20 years of marriage had passed and also if the woman was already 45 year-old. If a marriage was
authorised by parents or other ascendants, their consent was necessary for a divorce. Because this procedure was
long and cumbersome, the spouses preferred to choose the procedure of a divorce for specific reasons.
After 1954, when family relations were abrogated from the 1864 Civil Code, the grounds for a divorce were
evaluated according to Article 38 of the Family Code based on:
the soundness of the divorce grounds
the impossibility to continue the marriage
the duration of the marriage
the interests of minor children
An analysis of this article shows that the soundness of the divorce grounds and the impossibility to continue the
marriage were “the main criteria”, which could lead to a dissolution of marriage, the other two (the duration of
the marriage and the interests of minor children) being “secondary criteria” (which could produce effects
together with the main criteria).
Sound grounds were understood as facts, which were objectively so serious that they lead to a dissolution of
marriage. In the old judicial practice, the following were considered sound grounds: family violence, manifested
through acts of violence and other similar manifestations which resulted in serious misunderstandings between
the spouses; when one of the spouses suffered from an incurable disease (chronic alienation or mental debility);
when one of the spouses had left the domicile and refused to come back; the defendant spouse had been
convicted for attempted murder or complicity to attempted murder against the plaintiff spouse, for instigating the
murder of the plaintiff spouse, for serious injury of body integrity, or for committing a sexual life offence;
marital obligations were not met, although they lived together; alcoholism which lead to the moral degradation
of the spouse who had that vice; the immoral behaviour of the defendant spouse who cohabitated with another
woman in their home.
The grounds for divorce, considered as objectively sound, should also have a subjective influence so that the
relations between the spouses had been “so seriously and irremediably damaged” that the continuation of the
marriage was “obviously impossible for the spouse requesting its dissolution”.106
The court determined whether
the relations between the spouses were seriously damaged and whether that damage was irremediable, thus
leading to an impossibility to continue the marriage. At the same time, there could be cases where, although
105
Antigona-Camelia Iordan, Căsătoria şi divorţul în dreptul intern şi internaţional (Marriage and Divorce in
National and International Law), Renaissance, Bucharest, 2010, page 41 106
Camelia Iordan, Instituții de drept civil. Familia. Volumul I. (Institutions of civil law. Family. First volume),
Hamangiu Publishing House, Bucharest, 2017, page 199
65
there were objectively sound grounds, they had not “irremediably” damaged the relations between the spouses
and therefore they did not make the continuation of the marriage impossible. 107
As regards the duration of the marriage, the court took into account the specific circumstances of each case. In
practice, both the short duration and the long duration of a marriage had come to be considered as favourable.
With reference to the interests of minor children, our opinion is that this is one of the most sensitive grounds
both at that time and at present. When evaluating the grounds of the divorce action and the impossibility to
continue a marriage, the interests of minor children should be considered. 108
Under the 1865 Code of Civil
Proceedings, three situations were stipulated with regard to the grounds for divorce. In the first situation, there
was no provision for a term of counselling or a period of reflection. After admitting the divorce request, the
president of the court fixed the date of the judgement if the defendant spouse was declared missing by a court
decision, had left the other spouse going to live abroad, or was suffering from chronic alienation or chronic
mental debility. In the second situation, a conciliation term in the council room was given, but no period of
reflection. According to Article 613 of the Code of Criminal Proceedings “The President of the Court, admitting
the divorce request, shall give reconciliation advice to the plaintiff and, in case that the plaintiff insists in his/her
request, shall fix a date for the judgement of the case”. The divorce was requested in case that the defendant
spouse had been convicted for attempted murder or complicity to attempted murder against the plaintiff spouse,
for instigating the murder of the plaintiff spouse, for serious injury of the body integrity of the plaintiff spouse,
for not having denunciated these acts or having encouraged those who committed them, or for committing a
sexual life offence; the defendant spouse had been convicted for one or several offences committed intentionally
other than those set forth above, with a penalty of at least three year imprisonment, if the divorce request was
submitted during the execution of the penalty; if no children had resulted from the marriage. In the third
situation, both a conciliation term in the council room (term of presence), and of period of thinking between 3
and 6 months were given.
After 1990, in the Romanian society, the perception of divorce significantly evolved, so that Law 59/1993
brought a series of changes. If by that time the dissolution of marriage had been of an exceptional nature, after
the entry into force of the law, this specification no longer existed, the conditions for the dissolution of marriage
no longer took into consideration such a nature. A distinction was made between the relations which were “so
seriously and irremediably damaged” in the previous regulation and the relations “seriously damaged” after the
change, where the condition that the relations between the spouses are irremediably damaged was no longer
necessary. 109
Another important change brought to the Family Code with Law 59/1993 was that the legislator introduced the
divorce with the agreement of the spouses as possible only based on a judicial procedure and being conditioned
by two main aspects:
the couple have been married for at least one year
there are no minor children who resulted from the marriage, out of the marriage or adopted
Before the entry into force of the Civil Code in 2011, according to Law no. 202/2010 also referred to as the
"small reform of the law", divorce by consent of spouses can be done through administrative procedure in front
of the civilian officer to the place where marriage was concluded or from the last common dwelling of the
spouses and by the public notary also at the place where marriage was concluded or at the last common dwelling
of the spouses.
In the above-mentioned cases, one of the conditions for establishing divorce was that the spouses would agree
on the surnames they would each bear after their marriage. They must present themselves personally in front of
the notary or in front of the civilian officer and file the divorce application. They are given a 30-day thinking
term, after which they have to present personally there again. If the divorce has been concluded, the divorce
certificate is issued (in the administrative procedure, divorce is recognized and found in that day and a new term
was granted for the issue of the divorce certificate while in the notary procedure certificate is issued in the day
the divorce was found). Acoording to Law no. 202/2010, the divorce was reevaluated by the consent of the
spouses by court, eliminating the passing of a year from the end of the inheritance right, as well as the fact that it
became possible by notary procedure and if the spouses have minor children, from marriage, out of wedlock or
adopted (those children that the spouses had during their marriage, during their cohabitation before marriage, or
those that were adopted together).110
Also, when filing the application in front of the public notary, the spouses
have the opportunity to be represented by mandate with special authentic power of attorney.
107
Ibidem 108
Ibidem 109
I.P.Filipescu, A.I.Filipescu, Tratat de dreptul familiei (A Family Law Treaty), All Beck Publishing House,
2001, page 201 110
Daniela Negrilă, Divorțul prin procedură notarială, Studii teoretice și practice (Divorce through the notarial
procedure. Theoretical and practical studies) Hamangiu Publishing House, Bucharest, 2014, page 28
66
According to the provisions of the new Civil Code - Law no. 71/2011, is stipulated in Article 39 para 1 that "The
provisions of the Civil Code on divorce apply without distinction between marriages concluded before or after
its entry into force." The Constitutional Court validates this reasoning by Decision no. 758/2010: "Applicability
of the law in force at the time of the ruling justifies that some divorce requests formulated in accordance with the
provisions of the Family Code could be settled under the new Civil Code. We are in the presence of a transitional
law problem, and not a retro-activation of the new law." 111
The current civil code, as mentioned in the first chapter, regulates four reasons for divorce: divorce by mutual
agreement of the spouses; divorce due to the guilt of one of the spouses; divorce for a separation in fact that
lasted at least two years; divorce due to the health condition of a spouse.
Divorce by mutual agreement of the spouses- judicial procedure
Judicial procedure occurs when both spouses agree to divest the marriage and begin the formalities in this regard
by filing an application that may be made by one of the spouses, provided that the other part accepts it. The law
no longer requires a certain length of marriage or the inexistence of minor children, the latter condition remains
valid only in the case of mutual divorce found administratively by the civil officer. The tutelage court is the one
competent to hear the divorce application, which is the court from the last domicile of the spouses. Among the
conditions for the admissibility of this divorce is the condition for spouses to express a free and unholy consent,
to have a prior agreement, to have exercised capacity. The act of divorce is the court decision.112
Divorce by mutual agreement of the spouses- the administrative procedure
Administrative procedure occurs when there is a prior consent of the spouses and provided that the two do not
have minor children resulting from marriage or from outside. If the consensus on the effects of marriage (name
after divorce, the exercise of parental rights) is not reached, the civil officer will issue a decision to reject the
divorce application by administrative means, the spouses having the possibility to divorce by judicial process.
The agreement must exist both at the time of filing the divorce application and at the date of divorce. 113
The
spouses are given a 30 day reflection term, from the moment of filing the divorce application by administrative
path , until the consent of the spouses. Marriage is considered dissoluted at the time the civilian officer issues the
divorce certificate.
Divorce by mutual agreement of the spouses- the notarial procedure
Notarial procedure is similar to the administrative procedure, mutatis mutandis. It is also necessary for the
spouses to express a free and unholy consent and that none of them is placed under a ban. Like the judge called
upon to settle a friendly, divorce court, the public notary merely establishes the agreement between the spouses
regarding the dissolution of the marriage and the related aspects.114 If the spouses have children from their
marriage, outside marriage or adopted, they must agree on the divorce, the marriage name each other will have
after marriage, on the exercise of authority parental care by both spouses, establishment of the children's
dwelling, the relation between the separated parent and the child is kept, the contribution of the spouses to the
costs of raising, educating, training children. The public notary will request a psychosocial inquiry report
showing that the joint exercise of parental authority or the establishment of children's home must be in the best
interest of the child. Otherwise, the public notary issues a decision rejecting the divorce application and directs
the spouses to address the court. If spouses do not have children, born in marriage, they need to agree on the
divorce and the surnames that each of them will have after marriage dissolution. As a comparison between the three ways of divorce by mutual agreement, the following issues are mentioned:
from the point of view of confidentiality, divorce by administrative procedure, by notarial procedure are
confidential because they are conducted in front of the civil officer, while in divorce court proceedings are held
in the public hearing, in the courtroom; in the administrative procedure, the spouses must present personally
111
DCC no. 758/2012 (Published in Official Journal no. 712 of 24 october 2012) 112
M. Uliescu (coord.), Noul Cod Civil. Studii si comentarii Cartea I și Cartea a II-a, vol. I (New Civil Code.
Studies and Reviews Book I and Book II), Universul Juridic Publishing House, 2012, page 787 113
M. Uliescu (coord.), Noul Cod Civil. Studii si comentarii Cartea I și Cartea a II-a, vol. I (New Civil Code.
Studies and Reviews Book I and Book II), Universul Juridic Publishing House, 2012, page 788 114
Daniela Negrilă, Divorțul prin procedură notarială, Studii teoretice și practice (Divorce through the notarial
procedure. Theoretical and practical studies) Hamangiu Publishing House, Bucharest, 2014, page 33
67
there when submitting the application and in the time allowed, but in the notarial procedure the representation is
admitted only at the time of the filing of the application and in the judicial procedure the representation is
admitted at any time, based on the condition that the mandate is empowered on the basis of an authenthic power
of attorney, of course only under the conditions under law; through the administrative procedure can not divorce
spouses who have minor children born of marriage, out of marriage or adopted whereas in the notarial and
judicial procedure they can divorce both spouses with minor children and spouses without minor children; in the
notarial procedure, it is necessary for the spouses to agree on matters concerning minor children, if they exist,
while in court proceedings, the court can also decide in the absence of spouses’ agreement; the divorce
certificate is definitive, the marriage is dissolved from the date of its issue until the judgment is final on divorce
but it is subject to legal procedures, administrative divorce and notarial divorce are the responsibility of the civil
status officer or the public notary at the place of marriage or the last spouses' common dwelling but the divorce
by court has as a point of reference the last common dwelling of the spouses.
Divorce due to the guilt of one of the spouses realises when "due to reasonable grounds, relations between
spouses are seriously injured and marriage is no longer possible." "Reasonable grounds" in current legislation
can be: acts of violence, conjugal infidelity, separation in fact. The court will determine whether the reasons for
divorce are reasonable grounds and will determine whose fault is of destroying family relationships.115
If it
establishes the fault of one or both spouses, marriage will be dissoluted.
According to Article 373 para 3, Civil Code, divorce for a separation in fact that lasted at least two years is
also a type of divorce based on guilty.
Divorce due to the health condition of a spouse can be pronounced at the request of a husband who suffers
from a disease whose existence makes it impossible to continue marriage. The court will administer evidence of
the disease and the state of health of the ill husband and it will pronounce the divorce under the law, but without
establishing spouses’ fault.
Therefore, the legislative changes that took place after the entry into force of the New Civil Code brought
another view of the divorce institution.116
3. Conclusions
In conclusion, the institution of divorce has known a considerable evolution since the time when marriage was
entered into “for life” and its dissolution was possible only if there was evidence that “the relations between the
spouses were seriously and irremediably damaged”, and now it is recognised that it may be impossible for the
spouses to live together anymore, which may affect not only their relations, but also their relations with their
children, and for this reason, in the 21st century, we can say that this situation has been acknowledged and
overcome by accepting a new beginning.
References
1. Marieta Avram, Civil law. Family, Hamangiu Publishing House, Bucharest, 2013
2. Antigona-Camelia Iordan , Marriage and divorce in domestic and international law, Editura
Renaissance, Bucharest, 2010
3. Camelia Iordan, Institutions of civil law. Family. First volume, Hamangiu Publishing House, Bucharest,
2017
4. I.P.Filipescu, A.I.Filipescu, Family Law Treaty, All Beck Publishing House, 2001
5. Daniela Negrilă, Divorce through the notarial procedure. Theoretical and practical studies Hamangiu
Publishing House, Bucharest, 2014
6. Decision of the Constitutional Court no. 758/2012, Official Journal of Romania no. 712 of 24 october
2012
115
M. Uliescu (coord.), Noul Cod Civil. Studii si comentarii Cartea I și Cartea a II-a, vol. I (New Civil Code.
Studies and Reviews Book I and Book II), Universul Juridic Publishing House, 2012, page 790 116
Camelia Iordan, Instituții de drept civil. Familia. Volumul I. (Institutions of Civil law. Family. First volume)
Hamangiu Publishing House, Bucharest, 2017, page 200
68
CIVIL LIABILITY FOR DAMAGES CAUSED BY A DEFECTIVE PRODUCT
DEACONU DASCĂLU Diana Nicoleta, Assistant professor, Titu Maiorescu University, Faculty of
Law and Economical Sciences, Tg. Jiu
Abstract
We find ourselves in the age of consumerism, in which the abundance of the world’s population has
attracted the abundance of food and products in general. We consume anything, anytime, replacing the old with
the new every second. Moral wear is what defines the life of a product. We no longer think of needs and uses, we
think of a desire to always have something new, better. From an edacious point of view, the idea of natural,
ecological is replaced with the idea of additive, substitutive. These are the reasons why the preoccupations of
law in recent decades have begun to focus on product consumption, creating new branches such as consumer
law, and also new obligations on food safety and consumer safety.
Keywords: defective product, civil liability, damage
INTRODUCTION
Concerns to protect consumers by imposing more drastic obligations on the part of producers came first
from the international space, especially the EU, and were later transposed into national law.
At present, in regards of EU law, the issue of responsibility for marketed products and services is
regulated by the Directive 2001/95/EC. This was transposed into national law by Law no. 245/2004 which, along
with Law 296/2004 regarding the Consumer Code, ensures compliance with the security obligation imposed on
economic operators to commercialize only those products that do not endanger life, health or integrity or any
assets of the consumers.
Alongside those mentioned above we also must mention Law no. 240/2004 regarding the liability of
producers for damages caused by defective products, which transposes the Directive no 85/374/EEC, with the
same provisions, and which is the special law within this matter to which it refers, even if not expressly, the
current Civil Code.
I. THE REQUIREMENTS OF CIVIL LIABILITY FOR DEFECTIVE PRODUCTS.
The need to regulate this kind of civil liability lies in the accountability of producers and traders in
order to respect the subjective rights of consumers, rights that may have as their object the health, integrity, life
or property of those to whom these products are offered. It is also the reason why the legislator has assigned the
security obligation to them, an obligation of result and not only of diligence.
By interpretation of the relevant provisions of the new Civil Code (Articles 1349, 1357 etc.) we
understand that in order to incur civil liability, the following conditions must be met and proved: The existence
of an unlawful act, the existence of a prejudice, the existence of a causal relationship between the two and the
existence of guilt, in the case when a liability for the own deed is liable.
As article 1349, 4th
paragraph of the Civil Code states only that: “liability for prejudice caused by
defective products are determined by special Law”, we direct our attention to the special law, in this case Law
no. 240/2004 which, in Article 6, requires that, in order to assume the liability of the manufacturer, the person
concerned must prove: the damage, the defect and the causal link between damage and defect.
We therefore notice that there are no conditions in the legal enumeration that we knew as essential from
the civil liability regulated by the current Civil Code.
As regards to the condition of guilt, we justify its absence by the fact that it was necessary, in this
matter, to regulate the objective liability, independent of the producer’s fault, which is based on the obligation to
guarantee, to which the producer is bound for the products it puts into circulation. In fact, another argument is
that we are talking about a responsibility for the deed of a “thing”, liability which, even the current Civil Code,
presents as being objective. Although not expressly regulated as an objective liability, we draw this conclusion
from the fact that the law does not require proof of the producer’s fault.
We propose that, in the future, the legislator should include in the legal provision that the liability for
defective products is an objective responsibility, being an essential element of this liability, which should not be
deduced from the interpretation of legal provisions but textually foreseen.
On the same subject of general observation of this kind of civil liability, we cannot overlook the fact
that the manufacturer’s illicit act, which should attract a prejudice as a result of a proven causal relationship, is
not mentioned expressly. We see, however, that the causal relationship between defect and damage caused is
expressly mentioned. Therefore, the logical conclusion that can be drawn is that the producer’s illicit act is
related to the “defect of the product”, explicitly stated by the law, as being necessary to be proven.
69
A. The illicit act of the manufacturer in the case of defective products.
To be able to address this condition, we must first define the notion of producer. In this regard, we need
to take a look in the special law, which, being bound to define the terms it uses, brings to our knowledge, by the
2nd
Article, 1st Paragraph, letter “a”, that a producer means:
- “The manufacturer of the finite product of a raw material or component part of the product;
- Any person which presents itself as a producer by affixing his name, trade mark or other distinctive
sign to a product;
- Any other person which imports a product in Romania for the purpose of selling, renting,
purchasing or any other form of alienation in the course of its own business activity within a
company;
- Any other person who imports a product from the European Union for the purpose of selling,
renting, buying or other form of alienation in the course of its own business activity within a
company;
- If the producer of a product cannot be identified, any supplier of the product concerned shall be
treated as a producer if it does not disclose to the prejudiced consumer within a reasonable time the
identification data of the manufacturer or the person who supplied the product; This provision shall
also apply to an imported product where the product does not indicate the identity of the importer
referred to in points 3 and 4, even if the name of the manufacturer is indicated.”
We must also mention that the legal provisions concern both the real producer as the apparent one,
making the application of the principle error communis facit ius, which has legal effects within this field also.
Moreover, if the manufacturer cannot be identified, liability will lie with each supplier who fails to communicate
in a reasonable time to the prejudiced consumer the identification data of the manufacturer or the person who
supplied the product.
By interpretation of the legal provisions, respectively Article 2, 5th
Paragraph of Law 240/2004, we
conclude, along other authors, that the liability of distributors and importers will be committed only if the person
directly liable, meaning the producer, is not identified, being the first responsible/liable, and only as an
alternative could the intermediaries be held accountable.
In order to identify what constitutes the illicit act of the producer in this case of liability, it is not enough
to understand the notion of producer, although that is how we learned which is the passive subject of liability for
faulty products, ie the one called before the law and Courts, if necessary, to repair this kind of prejudice, but it is
also necessary to define the concept of “defective product”.
Starting from the legal definition of the notion of “product”, which is seen as any mobile good, even if
it is embedded in a mobile or immobile asset, including electricity, we reach the notion which is of most interest
to us, that of “defective product”.
Before that, we must mention that the special law comprises a wide range of goods which may be
considered products within the meaning of the law, but which must be compulsory mobile, even if incorporated
within immobile assets. Regarding the question that has been addressed in the specific literature, namely whether
in this category, in the sense of the law, the incorporeal goods can be introduced, discussions comprised different
opinions, both for or against the possibility mentioned.
We appreciate, along other authors, that such goods can be included in the category of “products”
within the meaning of the law, as they are mobile goods which the law does not exclude, and on the contrary it
has a general wording covering thus all mobile goods.
Also, given that certain incorporeal mobile goods (surgical assistance software, navigation software and
even computer software) may lead, to the extent to which they are faulty (at least at an imaginative level) to
deaths, injuries or health hazards, or to any other patrimonial prejudice, it is thusly appreciated that them too may
give the right to compensations within the meaning of the Directive.117
Law no. 240/2004 comes to the aid of any approach to this objective and in its 2nd
Article, letter “d” it
defines the defective product as being “the product which does not offer the safety to which a person is entitled
to expect, taking into account all circumstances, including: how to present the product in question; all
foreseeable uses of the product; the date on which the product is put into circulation.” However, it will not be
considered to be defective, in the sense of the law, the product which, subsequently, will have a correspondent
product, similarly perfected, put into circulation, or in other words, one cannot consider as faulty a product
benefiting from less scientific and technical conditions that the same product from the future.
We note that the legal definition of a faulty product leaves room for a subjective appreciation, although
it attempts to set all those objective criteria that diminish subjectivism in assessing the safety to which the person
was entitled, but failed to, in our opinion, succeed in doing so.
117
Ph. Malaurie, L. Aynes, P.Y. Gautier, quoted in Dan Chirică, Tratat de drept civil. Contracte speciale, vol. I.
Vânzarea şi schimbul, C.H. Beck, Bucureşti, 2008, p. 443-444
70
The phrasing “the safety that a person was entitled to expect” does not set a specific criteria to which to
report; thusly, even if it may imply an objective criterion, that has as standard a person with the same
characteristics, not establishing what these characteristics are, we come to the same idea of subjectivism.
We appreciate that the phrasing is flawed, meaning that, out of a fierce desire to protect the consumer,
who is in a position of inferiority to a professional, a responsibility has been imposed on the producer, which
requires, as a condition, the personal opinion of the consumer, respectively if it has received the safety expected
from the purchased product or service.
We also consider unfortunate the provision of the law as an external criterion of appreciation to the
“way the product was presented” because indirectly it refers to the advertising and publicity given to the product,
the advertisement of the product being a source for market demand for the presentation of any product put into
circulation. However, as already known, the advertisement of a product, as a rule, cannot be basis for attributing
liability for product nonconformity as to the buyer’s demands, being well known that its attributes would be
somewhat exaggerated.
For these reasons, we consider as necessary to redefine the “defective product” based on objective
criteria, possibly from a real non-compliance with the label requirements and with the law and regulations in
force on the product concerned.
The reasonable or unreasonable nature of the use of the product will be based on the data contained in
the document, on how to use it as designed, when the product is put into circulation.118
The defect must not be confused with a hidden defect of the product that gives birth to liability under
the conditions of the common civil law. The defect primarily affects the safety of persons and goods and only in
a secondary context, the good in its materiality, which may consist of any product deficiency, manufacturing
defect, defect in design, including the mere fact that the product does not offer the safety to which a person is
entitled to expect119
, while the hidden vice refers to the impossibility to use the good according to its purpose.
By understanding the notions used by the law, we can go further in trying to determine whether there is
an illicit act on the part of the manufacturer and if so, we may check this condition of civil liability too. Surely,
the answer is yes, there is an illicit act of the author, in this case the producer. The illicit act consists of making
available defective products within merchandise circulation as the law notions describe them, the simple
existence of the flaw proving the breach of the manufacturer’s safety obligation.
B. The prejudice
The special law expressly requires the condition of proof of damage in order to attract the liability of the
producer for faulty products, reason for which it determines the content of this condition in Article 2, 1st
Paragraph, letter “c”, in the sense that by prejudice will be understood as: “1. The prejudice caused by the death
or injury of the corporal integrity or the health of a person; 2. The deterioration or damaging of any good, other
than the faulty product, provided that the respective good should be addressed for private use or consumption
and to have been used by the prejudiced party for normal use or consumption, and its value is greater than 200
lei; 3. The damaging or destruction of any good, other than the faulty product, provided that the given good
would normally be destined to private use or consumption and it has been used by the prejudiced party for
private use or consumption, and its value should be greater than the lei equivalent of 500 euro.”
So this kind of prejudice may be patrimonial, on the property of the person or non-patrimonial, on its
life, health and integrity.
It is also provided by Article 2, Paragraph 3 of the special law the possibility to grant moral damages at
the request of the victim in the case of aesthetic damage, recreational damage, affective damage etc., of the latter.
Courts are called upon to assess whether the damage caused by a product is a result of a flaw of it or is
due to the abnormal behavior of the person who used it.120
C. The causal report between defect and prejudice, a report expressly required by the special law
governing this type of liability, can be proved by any means of evidence admitted by the civil
procedure, in particular by means of technical and scientific findings and expert opinions, which
must demonstrate the clear connection between the two other conditions of liability.
2. The active subject of liability, namely the person who suffers the consequences of the damage and
requests the author to be held accountable, is the consumer, ie the person who has acquired the defective product
through a contract with the manufacturer, but also any other person who has suffered a prejudice from that
product, although it has not concluded a contract with the manufacturer.
3. The basis for liability for prejudice caused by faulty products lies in the idea of a manufacturer’s
warranty, based on a security obligation towards the consumer, which gives birth to an objective liability without
fault.
118
Andrada Mihaela Truşcă, op. cit., p. 148 119
Dan Chirică, Tratat de drept civil. Contracte speciale, vol. I. Vânzarea şi schimbul, C.H. Beck, Bucharest,
2008, p. 450 120
Vali Ileana Niţă, Răspunderea civilă pentru pagubele generate de produsele cu defecte, in Revista de Ştiinţe
Juridice a Universităţii din Craiova, no. 1-2/2005, p. 50
71
The security obligation is a result obligations, and for the determination of its elements, the following
must be taken into account: the defect of the product, the foreseeability of the risk and the resistance to harmful
consequences, which has led to the assertion that it gives birth to a liability for the fortuitous case, which may be
associated to the precautionary principle.121
4. The effects of liability for products fault are related to the occurrence of a liability report between
the active subject and the passive subject of the liability, on the basis of which, the victim, an active subject, has
the right to claim the accountability of the author and the reparation of the prejudice brought upon itself.
The repair must be an integral one, according to the general principles of the common law, covering the
present and future damages resulting from the defects of the products put into circulation, according to Article 3
of Law 240/2004.
The liability of the producer is more severe than the provision of the common law, as it will respond,
according to the 4th
Article of the same law, for the entire prejudice, irrespective of the fact that the prejudice is
caused by two competing causes: the defect of the product and the action or omission of the third party.
However, the same article of law allows the producer to subsequently bring legal action against the third party
who has acted or has failed to act.
However, there is a legal cause of total or partial relief from the producer’s liability, namely the
culpable act of the victim or of a person for whom the victim is held responsible.
If the damage is cause of defective products coming from several producers, the author’s liability will
be joint, according to the 5th
Article of the law. If there were more than one author and, under solidary liability,
only one was prosecuted, that manufacturer has the possibility to bring legal action against the other co-authors,
according to the rules of passive solidarity.
The engagement of this liability does not exclude the right of the injured party to claim repairs on
contractual or non-contractual liability or other special liability regime, according to Article 9 of the above
mentioned law.
The right to a remedy, being a right of realization of a claim, is time-barred within 3 years of the date
when the claimant had or ought to have had been aware of the damage, defect or identity of the person in charge,
but not later than 10 years after the manufacturer has placed the product in circulation.
5. Exceptions of liability are also provided for by the special law, as follows:
- If the manufacturer proves that it is not him who put the product into circulation, eg the product was
stolen and put into circulation by the thief or the product was found and put into circulation by the finder. There
is, however, the relative presumption that the producer of the product is the one that puts it into circulation, a
presumption that returns the burden of proof to the producer. Besides, it is a professional, on a higher report of
superiority to the simple consumer.
- If the defect which caused the prejudice did not occur at the date when the product was put into
circulation or it appeared after the release of the product, for reasons beyond its control. So it is presented
starting from another presumption that the product had defects at the time it was put into circulation, but which is
a relative presumption, allowing to be proven different.
- If the defect is due to compliance with mandatory conditions imposed by regulations issued by the
competent public authorities which restrict the manufacturer’s freedom of decision as to the manufacture of the
product;
- If the product was not manufactured for sale (…) and was not manufactured or distributed in the
manufacturer’s professional activity. This is the case of the product manufactured for own consumption or for
research.
- If the defect is due to the consumer’s failure to observe the instructions for use in the technical
documents attached to the product;
- If the level of scientific and technical knowledge at the time the product was put into circulation did
not enable it to detect the fault in question, a situation which in the doctrine is known as “development risk”. In
this regard, the Court of Justice of the European Communities has stated that this exemption is based on the
“state of scientific and technical knowledge at the most advanced level when the product is put into circulation,
provided they are accessible”, ie published, without taking into account what the producer might have known in
a subjective manner.122
All these cases of exoneration are expressly mentioned in the special law, but in the doctrine it has been
pointed out that apart from the cases listed above, it must also be taken int account, in this type of liability, the
causes of exemption from ordinary law, the act of the victim or the deed of a third person should they meet the
requirements of force majeure.123
121
L. Pop, I. Popa, S. Vidu, Tratat elementar de drept civil. Obligaţii, Universul Juridic., 2012, p. 535
122
CJCE, dec. din 29 mai 1997, pronunţată în Cauza C300/1995, Consiliul Europei împotriva Regatului Unit al
Marii Britanii şi Irlandei de Nord 123
L. Pop, I. Popa, S. Vidu, op.cit,, p. 538
72
Conclusions
In conclusion, civil liability for defective products has become an element of national importance,
which has to meet the demands of the consumer society, leading the field of law to another level.
References
1. Chirică, D., Tratat de drept civil. Contracte speciale, vol. I. Vânzarea şi schimbul, C.H. Beck,
2008.
2. Niţă, V. I, Răspunderea civilă pentru pagubele generate de produsele cu defecte, in Revista de
Ştiinţe Juridice a Universităţii din Craiova, no. 1-2/2005
3. Pop, L, I. Popa, S. Vidu, Tratat elementar de drept civil. Obligaţii, Universul Juridic., 2012
73
TRANSNATIONAL CORRUPTION
DOBRE Stelorian – PhD, Titu Maiorescu University, Bucharest
Abstract: A characteristic of transnational corruption is that it involves at least two different jurisdictions, which
means that the authorities have to make major efforts to punish those who are guilty of corruption due to a lack
of appropriate legal instruments. Moreover, the home jurisdictions of multinational corporations are reluctant to
prosecute them for actions committed in other jurisdictions, considering that they do not cause any harm to their
home society, but on the contrary this contributes to the wealth of companies.
1. GENERAL ASPECTS
The concept of corruption may be examined in its many aspects, being considered a complex
phenomenon, with multiple approaches: moral, philosophical, sociological, economical, and legal. Agreeing that
the corruption phenomenon cannot be given a universally valid definition in a series of regulatory systems,
corruption is a foreground legal concept, which designates different illicit and illegal acts or actions that have
been committed with the abusive use of political, judicial or administrative power for the purpose of obtaining
some personal advantages.
A phenomenon like corruption cannot be given just one definition, because corruption is a national and
international problem having multiple forms of manifestation124
and multiple meanings125
. In the course of the
discussions of the global convention on corruption – the United Nations Convention against Corruption – the
representatives of nations debated the need to define corruption and, given the diversity of legal systems in the
international society, they considered that an exact definition is neither necessary, nor feasible.126
Even if the methods used in the manifestation and incrimination of corruption are found in most of
cases in the private area, corruption is now projected on the public service.
The acts of corruption may be divided into active and passive corruption, big and small corruption,
national or transnational corruption.
Transnational corruption is concerned with acts of corruption which involve foreign elements that may
refer both to the origin of the subjects, and to other elements of the act involved.
2. CONTENT OF TRANSNATIONAL CORRUPTION
Given the nature of the multiple forms which corruption can take, studies in this field revealed the acts
of transnational corruption as being the most costly ones. The concept points to classical corruption practices
involving at least one foreign element, but an analysis of the specific literature and of judicial practice reveals the
use of the concept to describe the practice of bribing foreign officials for the purpose of obtaining some
commercial contracts in an international business context. 127
This practice involves at least two actors from different jurisdictions, who are willing on one hand to
offer, promise or give, and on the other hand, to ask for, to receive or to agree to receive bribery.
Bribery may be offered or paid both by a natural person and a legal person; however, given the nature
and the dynamics of international business, the actors interested in and capable of obtaining transnational
contracts are most of times legal persons established as firms, companies, corporations etc.
The receiver of offered or paid bribery is a foreign public official, namely an official coming from a
different jurisdiction than the home jurisdiction of the legal person who pays for the bribery.128
Of course,
bribery can be intended also to individuals in the private sector for different interests, but the most widespread
form of transnational bribery is addressed to a public official.
124
H. Ballin in M. J. Bonell, O. Mayer, The Impact of Corruption on International Commercial Contracts,
Springer, 2015, p. 18. 125
J. A. Gardinier, Politics of Corruption, Russel Sage Foundation, London, 1970, p. 17 126
D. Vlassis, The United Nations Convention Against Corruption Overview of its Contents and Future Action,
available at http://www.unafei.or.jp/english/pdf/RS_No66/No66_15VE_Vlassis1.pdf.; G. Negruţ, Măsura
confiscării în cazul infracţiunilor de corupţie, Editura Universul Juridic, Bucureşti, 2014, p. 12 127
N. Lord, Regulating Corporate Bribery in International Business, The Big Questions, 21 Nw. J. Int’l L. Bus,
p. 435; E. Gutterman, Easier Done That Said: Norm Resonance, and the Origins of the US Foreign Corrupt
Practice Act, Volum 11, Issue 1, 2015, p. 109 128
A. Boroi, Drept Penal. Partea specială (Criminal Law. The Special Part), C.H. Beck, Bucharest, 2016, p. 451
74
Bribery is given with an intention to persuade the foreign official to commit or to omit some acts which
transgress the official’s obligations, for gaining some benefits for the company.
The list of corporations that were convicted for acts of transnational corruption includes hundreds of
companies, which shows how spread this phenomenon is.129
A series of cases investigated over the last 5 years revealed indications of bribery given to Romanian
officials by multinational corporations such as Johnson & Johnson, Microsoft, Apa Nova, MAE System or
Roche.
3. THE COSTS OF TRANSNATIONAL CORRUPTION
In a pertinent way, the practice of bribing is shown to represent a widespread phenomenon in
international commercial transactions, generating serious moral and political problems.130
The World Bank estimated the cost imposed by illicit financial flows on developing countries as
amounting to 126 trillion dollars a year.131
In 2016, the European Commission indicated that, based on estimations, corruption imposed on the EU
economy costs of 130 billion euro a year, and this means an amount only a little lower than the annual budget of
the European Union.132
The exact cost of corruption is impossible to calculate due to its nature characterised by opacity,
however international agencies estimate that approximately 5% of the global GDP is lost due to bribery,
polluting the international society and generating a cascade of negative synergies for the world economy.
Almost three quarters of the 175 countries that were analysed in the Corruption Perceptions Index
developed by Transparency International in 2014 had a score lower than 5 points, on a scale from 0 (very
corrupt) to 10 (very correct), therefore suggesting a wide spread of corruption among public officials.133
With regard to the act of transnational corruption, the OECD Report on transnational corruption,
published at the end of 2014, shows that transnational corruption is spread both in developing countries and in
developed countries, affecting vital sectors of economies.
In a context of awareness with regard to the major and various costs of corruption, and especially those
of bribing public officials, the states have intensified their efforts against the acts of corruption both at national
and international level, in order to reduce the huge costs of corruption.
4. CONCLUSIONS
The Treaty on the Functioning of the European Union provides that the European Parliament and the
Council, adopting directives based on the ordinary legislative procedure, can establish some minimal norms
concerned with the definition of offences and penalties in areas of criminality which are particularly serious,
having a cross-border dimension, resulting from the nature and the impact of these offences or from a special
need to combat them, beginning with some common ground.
We consider that the two important bodies of the European Union should initiate the procedures for
drafting a directive on the prevention of and fight against transnational corruption, which catalyse the
harmonisation of legislation in matters of transnational corruption.
It is also necessary to take into account the liability of the legal person for such actions, considering that
the acts of bribery are committed under the auspices of a legal person.
129
See: http://www.sec.gov/spotlight/gcpa-cases.shtml. 130
P. Meon, K. Sekkat, Does Corruption Grease or Sand the Wheels o Growth?, Public Choice, 2005, p. 69 131
World Bank, World Bank Indicators Database, Washington DC, 2011 132
EU Anti-corruption Report of the European Commision, published in February 2016, available at
https://ec.europa.eu/home-affairs/what-we-do/policies/organized-crime-and-human-
trafficking/corruption_en 133
Transparency International Corruption perceptions Index, 2010, available at
https://www.transparency.org/cpi2010/results.
75
References
1. H. Ballin in M.J. Bonell, O. Mayer, The Impact of Corruption on International Commercial Contracts,
Springer, 2015
2. A Boroi, Drept Penal. Partea specială (Criminal Law. The Special Part), C. H. Beck, Bucharest, 2016
3. J.A. Gardinier, Politics of Corruption, Russel Sage Foundation, London, 1970
4. E Gutterman, Easier Done That Said: Norm Resonance, and the Origins of the US Foreign Corrupt Practice
Act, Volume 11, Issue 1, 2015
5. N. Lord, Regulating Corporate Bribery in International Business, The Big Questions, 21 Nw. J. Int’l L. Bus
6. P. Meon, K. Sekkat, Does Corruption Grease or Sand the Wheels of Growth?, Public Choice, 2005
7. G. Negruţ, Măsura confiscării în cazul infracţiunilor de corupţie, Editura Universul Juridic, Bucureşti, 2014
8. EU Anti-corruption Report of the European Commision, published in February 2016, available at
https://ec.europa.eu/home-affairs/what-we-do/policies/organized-crime-and-human-
trafficking/corruption_en
9. Transparency International Corruption Perceptions Index, 2010, available at
https://www.transparency.org/cpi2010/results
10. D. Vlassis, The United Nations Convention against Corruption Overview of its Contents and Future Action,
available at http://www.unafei.or.jp/english/pdf/RS_No66/No66_15VE_Vlassis1.pdf
11. World Bank, World Bank Indicators Database, Washington DC, 2011.
76
CONCEPTS OF INSOLVENT AND INSOLVENCY IN THE PERSPECTIVE OF
LAW 151/2015 ON THE BANKRUPTCY OF INDIVIDUALS
DRAGHICI Cristian, university assist. Ph.D , “Titu Maiorescu” University of Bucharest- Tg-Jiu
Law And Economics School
Abstract:
Enactment of a law on insolvency of the natural person was necessary, but also mandatory because
Romania is a member of the European Union, and Regulation no. Regulation 1376/2000 requires Member States
to extend insolvency proceedings also to natural persons.
Given the current European economic context, "insolvency" is an area that must be based on the same
guidelines in all EU Member States. At this level there is a concern to ensure similar insolvency laws for EU
Member States and their similarity can only result from the adoption of common guiding principles.
1. CONCEPT OF INSOLVENT
One of the issues raised by the specialized doctrine is that of the difference between insolvent and
insolvency134
. Can we put the sign of equality between the two concepts, or are we talking about a cause-effect
relationship?
It is well known that in Romanian law the term „insolvent” is specific to civil law relations and differs
from the term insolvency, specific to the relations arising from commercial business subject to the rules of
commercial law.
Whether we relate to insolvency of the individual or to Law no. 85/2014 on insolvency and insolvency
prevention procedures for professionals, it is necessary to define the two concepts first.
We find that there is no definitive definition of a law on the insolvent of a natural or legal person. The
doctrine, however, described the state of insolvent as "the poor condition of the debtor's patrimony, materialized
in the value overrun of the active elements by the passive elements". This leads to "the impossibility for creditors
to obtain, through forced execution, the payment of debts maturity" .135
In other words, insolvent is a specific notion of civil law, denoting the poor state of a debtor's
patrimony, which concretises in the value overruns of the assets by the liability components, with the
consequence that creditors are unable to obtain the payment of outstanding debts by way of execution forced136
.
The change in the natural relationship between the asset and the liability of a patrimony indicating only
the solvency status of the owner of that property is not conclusive as to the insolvency of that natural or legal
person. It has been stated in the doctrine that "only the presence of insolvency may lead to the opening of the
concurrent procedure". On the other hand, only insolvency "is incapable of leading to it, the existence of a larger
liability than the asset may possibly be taken into account in determining the path to be followed: judicial
reorganization or bankruptcy, respectively a flat-rate insolvency procedure debt repayment or court insolvency
proceedings by liquidation of assets if the financial situation of the individual debtor is irreparably
compromised”.137
From the perspective of Law no. 151/2015, namely the provisions of art. 4, paragraph 1, letter b of the
normative act, the legislator does not use the term "insolvent", although it follows from the wording of the law
that the legal norm refers essentially to this notion.
Access to the procedure regulated by Law no. 151/2015 has only the debtor who is both insolvent and in
insolvency, but who also has assets that can be capitalized. According to the provisions of art. 1417 paragraph 2
of the Civil Code, "the state of insolvency results from the inferiority of the patrimonial asset that can be
subjected, according to the law, to forced execution, to the total value of the debts due". The court is in a position
to determine this state, meaning "it may take account of certain circumstances, such as the debtor's inadvertent
disappearance, non-payment of maturing debts, the enforcement of a forced execution procedure and the like." .
Another definition of the state of insolvent is found in the provisions of art. 176 of GO no. 92 / 2003R
on the Code of Fiscal Procedure, provisions repealed on 01.01.2006, meaning that "the debtor whose income or
tracking assets are less than the taxable payables or which has no incomes or goods to be traced is insolvent" .
Article 176 establishes a proper procedure for declaring insolvency. With regard to this article of the old Code of
Fiscal Procedure, the Ministry of Labor, Family and Social Protection elaborated Order no. 539/2009 for the
134
http://www.academia.edu/14569947/Insolven%C8%9B%C4%83_%C8%99i_insolvabilitate 135
http://legeaz.net/dictionar-juridic/insolvabilitate 136
Mircea N. Costin, Angela Miff, Falimentul. Evoluţie şi actualitate, Ed. Lumina Lex, Bucureşti, 2000, p. 63. 137
Csaba Bela Nasz, Procedura insolvenței persoanei fizice, Ed. Universul Juridic București, 2016, p. 15
77
approval of the procedure for declaring the state of insolvency of the debtors - natural or legal persons, according
to the provisions of art. 176 of the Government Ordinance no. 92/2003 on the Fiscal Procedure Code.
We note that the procedure for declaring insolvency is applicable to both natural and legal persons who
meet the criteria and conditions set by law.
However, this procedure is specific to the fact that it concerns only the budgetary receivables, namely
the receivables represented both by the main tax liabilities and by the related tax liabilities. Passive subjects of
the insolvency procedure are both debtors whose track record of income or property is less than the tax payable,
as well as debtors who do not have earnings or goods that are tracked.138
A special provision is found in the regulation of point 8 of Annex A to Order no. 539 of April 28, 2009,
in the sense that "those tax receivables of insolvency debtors who have no receivable income or assets are
removed from the current account and are recorded in a separate account and the enforcement of the enforcement
measures is interrupted ".
We assume that we are not only in the presence of a social protection measure, but actually in the
situation of a "debt relief", under the conditions stipulated by the law.
Obviously, the debts to the consolidated budget of state will be extinguished only by prescription, after
the 5-year term covered by the fiscal procedure.
State empowered institutions can not remain passive, waiting for the legally prescriptive term to be met.
Thus, "after the declaration of the state of insolvency of a debtor, a natural or legal person, if the enforcement
body finds it fulfilled the legal conditions in the matter of attracting joint and several liability, it will take the
legal steps required, according to the provisions of art. 27 and 28 of the Government Ordinance no. 92/2003,
republished, as amended and supplemented ".139
In order to declare the state of insolvency of debtors of natural or legal persons whose income or assets
have a value less than the tax payable, the forced execution service within the Directorate-General for Public
Finances fulfilled a number of tasks, of which, in the opinion our legislator also inspired the drafting of the
insolvency commission's duties under the Insolvency Law of the individual. By way of example, we state as
powers of the forced execution compartments those for checking the patrimonial situation of the legal persons
debtors, in terms of quantification of the sum of their assets and incomes; to check the situation of assets of any
kind owned by the debtor legal person as well as their value by requesting information from the administrative-
territorial unit.
In the case of the individual debtor, a number of investigations could be carried out, which, according to
the provisions of Order no. 539 of April 28, 2009, could consist in checking the status of goods of any kind
owned by the individual debtor as well as their value. In order to do so, they were asked to request data from the
administrative-territorial unit or land registry office At the same time, the General Directorate of Public Finances
could verify the material situation of the debtor physical person at his office, as well as at other units or
individuals where he or she was employed or remunerated. Checks could also be made with respect to heirs who
accepted the succession of the deceased or declared missing or deceased, and could also request information
from bank companies about the existence of cash holdings held by the deceased or declared missing deceased.140
We assume that the provisions of art. 176 para. (1) of the Government Ordinance no. 92/2003 on the
Code of fiscal procedure and implicitly those of the Order no. 539 of April 28, 2009 were expressly abrogated by
the legislator, as much of the provisions regulated by these texts were taken in another form in the provisions of
Law no. 151/2015 regarding the insolvency of the natural person.
In the new Tax Procedure Code, promulgated by Law no. 207/2015 regarding the Code of fiscal
procedure, can be found in the text of art. 265 a similar provision entitled "The conduct of the fiscal body in case
of insolvency and the opening of insolvency proceedings according to Law no. 85/2014 ".
Here, unlike the old regulation in the text of art. 176 para. (1) of the Government Ordinance no.
92/2003, the new norm refers strictly to the legal person, subject of the procedure regulated by Law no. 85/2014.
In paragraph 1 of the text of art. We find the same definition of the insolvent debtor as being the debtor whose
income or traceable assets have a value less than the tax payment obligations or that has no incomes or traceable
assets.
In doctrine 141
it has been appreciated that an insolvent debtor is a "ruined debtor". Insolvency is indeed
a "legal ruin" (deconfit) of the debtor.
The state of insolvency can have multiple, objective causes (a disaster, a natural phenomenon with
negative effects, the deed or ruin of a third party with a determining influence on the debtor's resources or
138
Ordinul nr. 539 din 28 aprilie 2009 pentru aprobarea Procedurii privind declararea stării de insolvabilitate a
debitorilor persoane fizice sau juridice, conform prevederilor art. 176 din Ordonanţa Guvernului nr. 92/2003
privind Codul de procedură fiscală, publicat în M.O. nr. 328 din 18 mai 2009, pct. 5 din anexa A 139
Idem, pct. 14 din anexa A 140
Ibidem, anexa B 141
Gheorghe Piperea, ” Câteva reflecţii şi scurte comentarii asupra Legii insolvenţei consumatorilor”, Revista
Română de Drept al Afacerilor, nr. 10 din 2015, p.18 - 19
78
income, the erosion of the value of the assets bought on credit or the collateral) or subjectively induced
(mismanagement or irresponsibility of wealth, waste of it, over-indebtedness accumulation, hoping to regularize
the old and pressing ones, etc.). An insolvent debtor can no longer pay all his outstanding debts, even if he has
this intention in good faith. The borrower becomes a default risk for creditors from the exact moment that he
sinks into ruins, and is also a risk to the civilian circuit as a whole.142
In conclusion, it can be argued that "insolvency is the state in which the debtor's assets were in a
constant loss of assets or income in relation to the constant or, as the case may be, increasing debts they
accumulate”143
.
2. CONCEPT OF INSOLVENCY
Since the old Roman law, the procedure of collective enforcement has been applied only to debtors who
have financial difficulties, and this characteristic is maintained until today. As long as a debtor pays out the
assumed debts, the creditors have no interest in asking the competent court to apply the insolvency procedure,
whether the debtor is a solvable person or not, that is, his or her assets are predominant of assets or liabilities.144
From this point of view, the Commercial Code, in the provisions of art. 695, referred to the "cessation
of payments" by a trader, a concept initially taken over by the former law of reorganization and judicial
liquidation. In light of the changes made to it by O.G. no. 38/2002145
, the purpose of the law was reformulated,
instead of the term "cessation of payments", introducing the concept of "insolvency".
The state of insolvency is therefore the central element which requires or, where appropriate, allows for
the opening of the collective enforcement procedure.
The legislator has been constant in defining the notion of insolvency. In Law no. 85/2014, the notion of
"insolvency" has a legal definition, contained in art. 5 point 29, which ensures the stability of the content of the
essential condition for the application of the insolvency procedure of the professionals and at the same time
allows the determination of the moment of intervention of the court in the activity of the debtor.146
According to the inscribed law, insolvency means "the state of the debtor's patrimony characterized by
insufficient funds available for the payment of certain, liquid and due debts".147
From the legal definition it can easily be deduced that the two essential characteristics of the insolvency
are the insufficiency of money funds available in the debtor's patrimony and the delinquency of the due, certain
and liquid debts, caused by the lack of liquidity. Thus, insolvency is not characterized by the poor general
background of the business of the professional in question, or by the existence of a higher liability than the
debtor's assets in court, that is, its insolvency, but by a lack of funds necessary to cover the debts , liquid and
chargeable.
The cessation of payments must be of a general nature and constitute the external clue and manifestation
of the disorder and the inability of the professional to fulfill the due, certain and liquid obligations assumed, from
which it follows that it must be regarded as a complex fact subjected to the interpretation and appreciation of the
syndic judge.148
From this perspective, both in the literature and in the judicial practice, a clear delimitation between the
concepts of "insolvency" and "insolvency" was made, drawing such a demarcation line also due to the fact that
not many of the debtors they challenged the fact that they were in insolvency by invoking the existence in their
assets of assets whose recovery could have covered the claim claimed by the creditors.
The state of insolvency of the debtor must not be confused with its state of insolvency, with a
distinction between these two notions 149
. Thus, insolvency is the state of the debtor's patrimony in which the
liability exceeds the value of the asset. The notion of insolvency refers to the state of the debtor's patrimony
related to its content, which consists of the patrimonial asset and the patrimonial liability.
142
Idem 143
https://www.juridice.ro/477677/legea-insolventei-persoanei-fizice-reloaded-sau-in-locul-lui-mos-craciun-
vine-grinch-din-nou-i.html 144
Csaba Bela Nasz, op. cit., p. 15 145
O.G. nr. 38/2002 a fost adoptată pentru modificarea și completarea Legii nr. 64/1995 privind procedura
reorganizãrii judiciare și a falimentului, publicata in M.O. nr. 95/02.02.2002 146
Stanciu D. Carpenaru, “Tratat de drept comercial român ”, Ed. A 4-a actualizată, Ed. Universul Juridic,
București, 2014, p. 715 147
Legea nr. 85/2014 privind procedurile de prevenire a insolvenţei şi de insolvenţă, publicată în M.O. nr. 466
din 25 iunie 2014, art. 5 pct.29 148
Ion Turcu, Mădălina Stan, ”Compatibilitatea normelor Codului de procedură civilă cu specificul procedurii
insolvenţei”, Revista de Drept Comercial nr. 12/2005, p. 10. 149
Stanciu D. Cărpenaru, Manualul de drept comercial român, ed. 5, Ed. All. Beck, Bucureşti, 2004 p. 586
79
In doctrine 150
it has also been stressed that the termination of payments or commercial insolvency is not
confused with the insolvency of a debtor, because insolvency means a poor state of the property, and insolvency
means the failure to pay debts. Also in the case-law151
it has been shown that in order for a trader to be declared
bankrupt, there must be an effective pay off, independent of the debtor's solvency or insolvency status.
The Court of Cassation of Romania held back in 1914152
that "in order for a trader to be declared
bankrupt, it is not sufficient to prove the virtual cessation of his payments, ie a state of insolvency, but it is
necessary to establish the effective cessation of payment, ie a trader's insolvency, which can no longer meet its
matured commercial bonds, regardless of the state of solvency or insolvency. "
Regarding the notion of "insufficient funds available", this could be reflected in the absence of amounts
that the debtor could immediately dispose of, such as: money in the treasury of the company, financial
availability in bank accounts, amounts arising from bank loans or loans granted by the associates or shareholders
of the debtor, trade effects or sight-traded securities. It is irrelevant the origin of the amounts of money since
they are, or can be collected immediately, except for those sums of money coming from illicit or fraudulent
activities153
.
In order to distinguish the state of insolvency from the state of insolvency of the debtor, in the judicial
practice 154
it has been recognized in the judicial practice that the existence of assets in the debtor's patrimony
and the possibility of covering the debts with them is not relevant in terms of insolvency, which is characterized
by the inability to pay debts of money available. From this perspective, the value of the debtor's share capital is
not relevant, which may be significant in relation to the debtor's uncovered debts or the ratio between the
debtor's asset and its liability. , Suspension of any debtor in such circumstances, according to which the creditor,
through the action of opening the insolvency proceedings, makes a constraint for the payment of the claim,
which has open the way of enforced execution of common law, can not be received, the debtor is in a state of
payment termination”155
.
Commercial insolvency implies the non-payment of debts arising from commercial receivables due at
maturity by the debtor trader, a condition that may occur irrespective of the value ratio between the assets and
liabilities, it being sufficient and there to be a manifest impossibility to pay the debts assumed by trader.
In French law, terminology does not know the distinction between insolvency and insolvency, in both
cases the term "insolvency" is used but is defined differently, as the case may be. In American jurisprudence, as
in doctrine, the term insolvency is used, but distinguishing between insolvency and inability to pay.156
Regarding the definition of insolvency, the French literature has shown that "the fact that the state of
cessation of payments does not mean insolvency results in curious situations, because it is very good for a trader
to have a higher liability than the asset and, with however, it can not be declared bankrupt because it faces its
payments”.157
From the perspective of art. 29 of the Law no. 85/2014, "the insolvency of the debtor is presumed when
he has not paid the debt to the creditor after 60 days from maturity, the presumption being relative" and
"insolvency is imminent when it is proved that the debtor will not be able to pay maturing debts due, with
available funds at maturity "Doctrine158
has qualified the alleged insolvency as an installed insolvency.
The legislator instituted a relative presumption of insolvency for obvious insolvency, so that the burden
of proof to the contrary is on the one who challenges the debtor's state of insolvency.159
The imminent state of insolvency, on the other hand, refers to a general situation, without the question
of the existence of a claim. In the event of imminent insolvency, the debtor is required to prove that he is
insolvent, with the mere acknowledgment that he has no full probative force as to the state of insolvency, and so
150
Ion N. Fințescu, Curs de drept comercial, vol. III. Falimentul, Ed. Al. Th Doicescu, Bucureşti, 1930, p. 32 151
Curtea de Casaţie a României, Decizia nr. 175/19.05.1914, în “Codul comercial adnotat”, Ed. Ministerului
Justiţiei, Bucureşti, 1944, reeditat de Ed. Tribuna Craiova, 1994, p. 428 152
Curtea de Casaţie a României, Decizia nr. 173/19.05.1914, in Buletinul Deciziunilor Curţii de Casaţie 1914,
vol. LIII 2, p. 1455 153
1oan Adam, Codruț Nicolae Savu, Legea procedurii insolvenţei. Comentarii și explicații, Ed. C.H. Beck,
Bucuresti, 2010, p.54 154
C.A. Bucureşti, Secţia comercială, Decizia civilă nr. 513/10.02.2006, Culegere de practică judiciară în
materie comercială pe anul 2006, Drept material şi procesual, vol. I, Ed. Wolters Kluwer, Bucureşti, 2008, p.
249-252 155
C.A. Constanţa, Secţia comercială, maritimă şi fluvial şi pentru cauze de contencios administrativ şi fiscal,
Decizia civilă nr. 1198/07.06.2007, decizie irevocabilă, nepublicată 156
Ion Turcu, “Tratat de insolvență”, Editura C.H. Beck, București, 2006, p. 254 157
Lyon-Caen et Renault, “Traite”, VII, nr. 56; Thaller, „Traite”, nr. 486, Bedaride, I, nr. 20. 158
http://www.curieruljudiciar.ro/2014/06/29/noul-cod-al-insolventei/ 159
Legea nr. 85/2006, art. 3 pct. 1 lit. a)
80
it is necessary to present conclusive evidence. 160 For imminent insolvency, the legislator therefore expressly
provided that the claimant must prove it, in which case no presumption of insolvency.
Regardless of the non-contentious nature of the court procedure of the voluntary application to open the
insolvency proceedings, the proof of imminent insolvency can be done only with documents that do not require
an in-depth analysis and interpretation. Examples of grace may be the issue of imminent insolvency in the event
that the borrower has to pay a consistent debt in the near future that he will not be able to honor, or when it is
anticipated that receipts will suffer a consistent decrease that seriously disrupts the ability to continue its
activity.161
Since the presumed insolvency debtor is required to request the opening of his insolvency proceedings,
the decision to file a voluntary application to open the insolvency proceedings requires an economic and
financial analysis.
In doctrine162
it has been pointed out that the use of the financial liquidity indicator as a decision
criterion in determining the apparent insolvency status of a debtor is required for practical reasons. Regarding the
imminent insolvency, it was appreciated that if the use of the liquidity indicator makes it clear that the borrower
is facing a crisis of the debtor and no ways to avoid the cessation of payments can be identified, the debtor is in a
such state of the property, having the option of requesting the opening of its insolvency proceedings or of
waiting for the establishment of the alleged insolvency.
Many wondered 163
whether it would be useful for the decision to open the insolvency proceedings to
determine precisely the date of the insolvency situation, ie the state of payment of the debtor. It is necessary to
specify that no law which regulated the insolvency procedure and has been adopted so far in our country did not
provide such a requirement. .
Most of the time, even the report on the causes and circumstances that led to the insolvency of the
debtor, drawn up by the judicial administrator / liquidator, does not indicate the date of the insolvency status or
the period of its occurrence.
The date of installment of the debtor's insolvency status is of practical importance for the conduct of the
insolvency proceedings, the determination of the suspect period of the debtor and the existence of any of the
facts listed in art. 169 of Law no. 85/2014, capable of leading to the personal ownership of the debtor's
governing bodies, and for determining the moment when the limitation period for the promotion of this action
starts to run.
According to the French insolvency law, it is mandatory that the date of cessation of payments of the
debtor should be inserted in the opening decision and, if omitted or can not be determined precisely, the date of
cessation of payments is deemed to be the date of delivery decision.
In the juridical literature 164
, the company's financial difficulty status has been analyzed in relation to
legal regulations in other areas of law such as European Union State aid law which refers to the notion of an
undertaking in difficulty but does not define it in the field of legislation the capital market in terms of the risk of
financial difficulty, the competition law, referring to the notion of a group of companies.
According to art. 5 par. (1) point 27 of the Law no. 85/2014, the borrower who is facing financial
difficulties is "who, although he is or is capable of performing his obligations, has a short-term liquidity degree
and / or a high degree of long-term indebtedness that can affect the fulfillment of the contractual obligations in
relation to the resources generated by the operational activity or the resources attracted by the financial activity ".
The financial difficulty is a condition for the application to the debtor of the pre-insolvency procedures,
namely the ad hoc mandate and the preventive concordance.
General liquidity is the ratio of the total of the current assets to the debtor's total debts. The indicator
must be between 1 and 2 in order for the debtor not to be considered in financial difficulty. If the pointer is
below 0.6, the debtor is below the security threshold165
.
Although in practice it is difficult to distinguish the state of financial difficulty from the state of
insolvency, especially the imminent state of insolvency, and especially if we are in that pre-insolvency state in
which the enterprise is able to fulfill its obligations but does not actually execute them, these two situations
through which an enterprise may pass are different, being governed by distinct legal rules.
Hence, the conclusion is that the financial difficulty or the state of insolvency must be determined with
the utmost precision, so that the debtor in such situations can choose correctly the way forward through the
160
Gheorghe Piperea, “Insolvenţa: legea, regulile, realitatea”, Ed. Wolters Kluwer, Bucuresti, 2008, p. 282 161
Alexandru Dimitriu, Cererea de deschidere a procedurii insolvenței în Noul Cod al insolvenței, Ed. C.H.
Beck, București, 2014, p. 6 162
Florin Bălescu, Aspecte specific analizei economico-financiare la deschiderea procedurii de insolvenţă,
Revista Phoenix, aprilie-septembrie 2012, p. 28-35 163
Idem 164
Gheorghe Piperea, Legea concordatului, Ed. Wolters Kluwer, Bucureşti, 2010, p. 23-32. 165
Nicoleta Ţăndăreanu, Codul insolvenţei adnotat. Noutăți, examinare comparativă și note explicative, Ed.
Universul Juruduc, București, 2014, p. 36
81
protection offered by the special legal rules applicable to these procedures. From this perspective, the procedures
established by the Insolvency Code have a protective role for the debtor, in order to give him the opportunity to
redress his activity.
In this context, it was considered that from the regulation of the pre-insolvency proceedings through the
same normative act with the insolvency procedure, it could be inferred the association of the insolvency
prevention procedures with the insolvency procedures, and this association is not welcome, could create a
preconceived notion that insolvency prevention is also an insolvency, which is not desirable.166
Regarding the appearance of the first signs of insolvency, the question arises whether the phenomenon
of insolvency could be predicted and, if so, how it could be prevented. The answer given by the economists is
that one can identify the clues of a company's health by analyzing some economic indicators, such as: the size
and the evolution of the turnover, the level and the increase in labor productivity, the numerical structure and the
level of professional training of the personnel, level and cost structure, etc.167
Article 5, point 30 of Law no. 85/2014 regulates the "credit institution's insolvency" which "may appear
in one of the following three situations: the apparent incapacity to pay the debts owed with cash, lowering the
solvency ratio of the credit institution below 2% and withdrawal of the operating authorization of the credit
institution, according to the legal provisions, due to the impossibility of financial recovery of a credit
institution”.
From the analysis of these legal provisions, it is concluded that it is sufficient to fulfill a single
condition among the three listed to be in the presence of a credit institution's insolvency and it is not necessary to
cumulate all the conditions.
If the first situation is a general one, which we find in the definition of insolvency, the other two
situations are some particular, specific to the object of activity of the credit institutions.
As in commercial matters the notion of "insolvency" has a legal definition, and in the case of simple
individuals it has been necessary to define this concept: according to art. 3 point 12 of the Law no. 151/2015,
"insolvency means that state of the debtor's patrimony that is characterized by insufficient funds available for
payment of debts as they become due". The legislator also agreed to establish a legal presumption in the sense
that "the insolvency of the debtor is presumed when, after a period of 90 days from the due date, he has not paid
his debt to one or more creditors", the presumption being relative.
There are doctrinal opinions on the insolvency procedure in the sense that it has two stages: in the first
instance, as an accumulation of situations that lacks the debtor the financial means necessary to pay its debts at
maturity, represents an inner state of the patrimony, a virtual state, which is set up before the due date, the person
concerned lacking the liquidity needed to settle the accrued debts, and the stage in which this inability to pay
expresses itself when it becomes real and manifest as there are maturing claims that can not be the moment when
insolvency adds a new dimension to that of the cessation of payments, ie the external manifestation of the pre-
existing payment incapacity; what was just a virtuality, it gets a contour and becomes a reality: insolvency, a
virtual impossibility of payment, is expressed at maturity by the cessation of payments, a real impossibility to
pay.168
Some practitioners169
expressed the opinion that given that the phenomenon has an internal
symptomatology but also external manifestations, the state of insolvency may actually have three stages, not
necessarily successive, namely: the stage of imminent insolvency in which the factors and situations that follow
the stage of the insolvency may be known by the person concerned, a stage which is circumscribed both in the
situation where the prospective debtor is available and makes payments, but it can be proved that at maturity he
will not be able to pay the outstanding debts committed with the funds available at that time, and the situation in
which the debtor is not available and does not make payments, but has no outstanding debts; the stage of
"insolvency" itself, where insolvency is real, debt / liabilities are due and maturity is missing, which is an
external sign of insolvency; the stage of the obvious insolvency, in which the external signs of insolvency are
obvious, so that, together with the non-payment of due debt / debts, we also have the debtor's acknowledgment
of the inability of payments, and this stage also includes "presumed insolvency" paid over more than 90 days due
debts.
The supporters of this opinion also pointed out that these three phases gravitate and refer to the same
state of the debtor's patrimony, which starts with the termination of payments, is of a constancy and can be
166
Arin Octav Stănescu, Prezentare comparativă Legea nr. 85/2014 privind procedurile de prevenire a
insolvenţei şi de insolvenţă şi vechea reglementare, Ed. Universul Juridic, Bucureşti, 2014, p. 9 167
Viorica Munteanu, Aspecte privind prevenirea şi previziunea insolvenţei,Revista Phoenix, ianuarie-martie
2010, p.4-8 168
Ion Schiau, Regimul juridic al insolvenței comerciale, Ed. All Beck, București, 2001, p. 106 169
Vasile Godâncă – Herlea, Probleme teoretice și practice privitoare la deschiderea procedurii insolvențe”,
Revista de Drept Comercial nr. 9/2006, p. 17
82
solved only during the insolvency procedure by means of plan recovery or winding-up judicial (in the case of
legal persons who are professional) .170
In the field of insurances there is a definition of insolvency in the provisions of art. 3 of the Law no. 503
/ 2004R, according to which "the state of insolvency is that state of the insurance company characterized either
by the apparent incapacity to pay the debts owed with the cash availability or by subtracting the solvency margin
available less than half of the minimum required by the legal regulations in force for the security fund or the
impossibility of restoring the financial situation of the insurance undertaking in the context of the financial
recovery procedure. " The regulation is identical to the provisions of art. 5 point 31 of Law no. 85/2014.
CONCLUSIONS:
Concerns about the state of insolvency or insolvency of the individual have existed both in the field of
civil law, commercial law and other branches of law, such as tax law. The legislator has always been concerned
about the diminishing or eliminating the effects of the causes that may lead to the inability to pay.
Insolvency and insolvency are not mere expressions, they are legal institutions of utmost importance
because they identify the legal regime applicable to forced enforcement procedures triggered by debtors whose
personal status is different.
The state of insolvency does not represent an imbalance between the debtor's assets and liabilities, but is
the debtor's situation where its financial resources are not sufficient for a certain period to pay its due debts
without showing interest in the relationship between the patrimonial asset and the patrimonial liability. Hence,
the conclusion can be drawn that a debtor may have a higher patrimonial asset than the patrimonial liability and
yet be in a state of insolvency.
BIBLIOGRAPHY:
1. Alexandru Dimitriu, Cererea de deschidere a procedurii insolvenței în Noul Cod al insolvenței, Ed. C.H.
Beck, București, 2014;
2. Arin Octav Stănescu, Simona Maria Miloş, Ştefan Dumitru, Otilia Doina Milu, Procedurile de prevenire a
insolvenţei: concordatul preventiv și mandatul ad-hoc. Reorganizarea judiciară, Ed. Universul Juridic,
Blucureşti, 201;
3. Arin Octav Stănescu, Prezentare comparativă Legea nr. 85/2014 privind procedurile de prevenire a
insolvenţei şi de insolvenţă şi vechea reglementare, Ed. Universul Juridic, Bucureşti, 201;
4. Csaba Bela Nasz, Procedura insolvenței persoanei fizice, Ed. Universul Juridic București, 2016;
5. Florin Bălescu, Aspecte specific analizei economico-financiare la deschiderea procedurii de insolvenţă,
Revista Phoenix, aprilie-septembrie 2012;
6. Gheorghe Piperea, ” Câteva reflecţii şi scurte comentarii asupra Legii insolvenţei consumatorilor”, Revista
Română de Drept al Afacerilor, nr. 10 din 2015;
7. Gheorghe Piperea, Legea concordatului, Ed. Wolters Kluwer, Bucureşti, 2010;
8. Gheorghe Piperea, “Insolvenţa: legea, regulile, realitatea”, Ed. Wolters Kluwer, Bucuresti, 2008;
9. Ion N. Fințescu, Curs de drept comercial, vol. III. Falimentul, Ed. Al. Th Doicescu, Bucureşti, 1930;
10. Ion Schiau, Regimul juridic al insolvenței comerciale, Ed. All Beck, București, 2001;
11. 1oan Adam, Codruț Nicolae Savu, Legea procedurii insolvenţei. Comentarii și explicații, Ed. C.H. Beck,
Bucuresti, 2010;
12. Lyon-Caen et Renault, “Traite”, VII, nr. 56; Thaller, „Traite”, nr. 486, Bedaride, I, nr. 20;
13. Mircea N. Costin, Angela Miff, Falimentul. Evoluţie şi actualitate, Ed. Lumina Lex, Bucureşti, 2000;
14. Nicoleta Ţăndăreanu, Codul insolvenţei adnotat. Noutăți, examinare comparativă și note explicative, Ed.
Universul Juruduc, București, 2014;
15. Stanciu D. Carpenaru, “Tratat de drept comercial român ”, Ed. A 4-a actualizată, Ed. Universul Juridic,
București, 2014;
16. Stanciu D. Cărpenaru, Manualul de drept comercial român, ed. 5, Ed. All. Beck, Bucureşti, 2004;
17. Vasile Godâncă – Herlea, Probleme teoretice și practice privitoare la deschiderea procedurii insolvențe”,
Revista de Drept Comercial nr. 9/2006
18. Viorica Munteanu, Aspecte privind prevenirea şi previziunea insolvenţei,Revista Phoenix, ianuarie-martie
2010
170
Idem
83
THE RISKS OF A BORROWING AGREEMENT IN A FOREIGN CURRENCY
FROM THE PERSPECTIVE OF JURISPRUDENCE OF THE COURT OF JUSTICE
OF THE EUROPEAN UNION
FLOREA Ioana Claudia, Phd student of Doctoral School, Law at the "Titu Maiorescu"
University of Bucharest
Abstract: In the current context of numerous court litigation of foreign currency loans, especially those in Swiss
francs, it is appropriate to refer the matter to the Court of Justice of the European Union, due to protecting
consumers rights requiring constant attention. It is the duty of the national court to verify: the existence of a
possible imbalance between the parties' services or the classification of the clauses in the contracts concluded
with consumers as abusive or the professional fulfillment of the obligation to inform; depending on the
circumstances and particularities of each case. It is also for the national court to rule on the matter and it is for
the Court to elict the criteria that the national court may or must apply when examining the contractual terms.
Thus, the Court's decision is binding on all national courts which are subject to similar cases. Thus, the
possibility of extending the solution to cases involving loans in other currencies also arises and may even lead to
a change in the jurisprudence of national courts.
1. CASE ANDRICIUC AND OTHERS AGAINST BANCA ROMÂNEASCĂ SA171
In the current context of multiplying disputes between several individual and banking institutions, the
purpose of which is to declare the nullity of certain allegedly unfair terms incorporated into consumer credit
agreements denominated in foreign currencies, in particular terms concerning ‘foreign exchange risk’ and the
obligation to repay the loan in the foreign currency in which it was taken out172
, the Court of Justice of the
European Union was referred by the national courts to provide certain clarifications as to the interpretation of the
provisions of Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts 173
. The Court has also
clarified the provisions of the directive, but in this case we find ourselves in a particularly sensitive and
specific174
context of credit agreements made in foreign currencies.
1.1. Legal context of EU law and Romanian law
In the present case, the Court was called upon to provide interpretations of the provisions of Directive
93/13175
, so the content of the following articles should be taken into consideration: Article 1 "(1) the purpose of
this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating
to unfair terms in contracts concluded between a seller or supplier and a consumer. (2) The contractual terms
which reflect mandatory statutory or regulatory provisions and the provisions or principles of international
conventions to which the Member States or the Community are party, particularly in the transport area, shall not
be subject to the provisions of this Directive" and Article 3 (1) according to which "a contractual term which has
not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes
a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the
consumer". Also, the content of Article 4 is worded as follows: "(1) without prejudice to Article 7, the unfairness
of a contractual term shall be assessed, taking into account the nature of the goods or services for which the
contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances
attending the conclusion of the contract and to all the other terms of the contract or of another contract on which
it is dependent. (2) Assessment of the unfair nature of the terms shall relate neither to the definition of the main
subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the
services or goods supplie[d] in exchange, on the other, in so far as these terms are in plain intelligible language".
Finally, Article 5 of that directive provides "in the case of contracts where all or certain terms offered to the
consumer are in writing, these terms must always be drafted in plain, intelligible language [...]".
171 Judgment of the Court of 20 September 2017, Case C-186/16, Andriciuc and Others v Banca Românească SA, published
in Romanian at http://curia.europa.eu/juris/liste.jsf?num=C-186/ 16. 172 See paragraphs 1 and 2 of the Opinion of Advocate General delivered on 27 April 2017 in Andriciuc and Others v Banca
Românească S.A (C-186/16, ECLI:EU:C:2017:313). 173 Published in the Official Journal of the European Union no. L 95 of 21 April 1993, p. 29, Special edition, p. 2, p. 273. 174 The case in question is individual in relation to the judgment of 30 April 2014 in Case C-26/13 Kásler and Kástlerne
Rábai, which referred to the contractual clauses which laid down the courses applicable to the unblocking and repayment
of the loan, and Case C-143 Matei Judgment of 26 February 2015, in which, under certain conditions, the clauses allowed
the lender to change the interest rate and provided for it to be charged by a risk commission. 175 Available at http://eur-lex.europa.eu/legal-content/RO/TXT/PDF/?uri=CELEX:31993L0013&from=EN.
84
Regarding the regulation at the level of the national law, it is worth mentioning that the norms in the
Romanian law transpose faithfully the union law. In this respect, the provisions of Directive 93/13/EEC were
transposed and implemented by Law no. 193/2000 on unfair terms in contracts concluded between sellers or
suppliers and consumers176
. From this normative act is relevant Article 4 that "(1) a contract term which has not
been directly negotiated with the consumer is regarded as being unfair if, considered in isolation or together with
other provisions of the contract, it causes, to the detriment of the consumer and contrary to the requirements of
good faith, a significant imbalance in the parties’ rights and obligations. [...] (6) Assessment of the unfair nature
of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of
the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other,
in so far as these terms are in plain intelligible language".
The national legal framework is also drafted by Article 1578 of the Civil Code, in the version in force at
the date of conclusion of the contracts, now abrogated177
, according to which "the obligation arising from a
money loan is always limited to the same numerical sum shown in the contract. Whenever the value of a
currency increases or decreases, before the due date for payment, the debtor must return the sum lent and is
obliged to return that sum only in the currency used at the time of payment". Article 970 of the same Code was
worded as follows: "contracts must be performed in good faith. They are binding not only in regard to what is
specifically provided for therein but also as regards all consequences which arise therefrom - according to their
nature - in accordance with equity, custom or law".
Another relevant normative act in this case is Law no. 190/1999 on mortgage lending for investment in
immovable property 178
, in the version in force on the date on which the contracts at issue were concluded, which
provided in Article 8 that "before signature of a mortgage loan agreement for investment in real property, the
authorised institution shall provide the borrower with a written offer containing all the terms of the contract and
stating the period for which the offer is valid, which must not be less than 10 days from receipt of the offer by
the potential debtor", and Article 14 (1) added that "in a mortgage loan agreement for investment in immovable
property, the amount of the loan granted may be denominated in leu or in a convertible currency and may be
made available to the borrower in one or more payments".
Finally, Article 4 according to which "lenders must inform clients, by means of a statement in
repayment schedules relating to credit agreements or, where there is no repayment schedule, by means of a
separate statement in the credit agreement, of the possibility that the sums due will increase in the event of a
change in the exchange rate or the interest rate, or in the event of an increase in the cost of the credit arrangement
arising from the commissions and other charges relating to the administration of the credit arrangements for
which provision is made in the agreement", of Regulation no. 3 of the National Bank of Romania of 12 March
2007 on the limitation of credit risk in credit arrangements intended for individuals, entered into force on 22
August 2008.
1.2. Analysis of the dispute179
It is apparent from the facts of the main proceedings, as set out by the referring court, between April
2007 and October 2008, the main proceedings - Ms. R.P.A and 68 others - who received their income in
Romanian Lei (RON) in that period, concluded loan agreements with the Bank - Banca Românească SA -
denominated in Swiss francs (CHF) with a view to acquiring immovable property, refinancing other credit
arrangements or meeting personal needs.
Analyzing the clauses in Article (2) and Article 8 (2) of the loan agreements signed by each of the
complainants in the main proceedings, shows that they were obliged to make monthly repayments of the loans in
the currency in which the credit was granted, in Swiss francs, with exclusive foreign exchange exposure. The
latter consequence implies an increase of the monthly rates in the case of the decrease of the exchange rate of the
Romanian leu against the Swiss franc. Moreover, Article 9 (1) and Article 10 (3) point 9 of the contract
comprised two terms permitting the bank, to debit the borrower’s account and, if necessary, to carry out any
conversion of the balance available on the borrower’s account into the currency of the contract, at the bank’s
exchange rate as it stood on the day of that operation, once the monthly payments had fallen due or in the event
that the borrower failed to comply with the obligations arising from the contract. In this context, according to the
applicants in the main proceedings, the bank was able to predict the fluctuations and exchange fluctuations of the
Swiss franc exchange rate, and yet the complainants were not honestly and completely informed of the
176 Published in the Official Monitor of Romania, Part I, no. 560 of 10 November 2000, with subsequent amendments and
corrections. 177 Published in the Official Monitor of Romania, Part I, no. 271 of December 4, 1864, now abrogated. Currently, the Civil
Code adopted by Law no. 287/2009, as amended and supplemented. 178 Published in the Official Monitor of Romania, Part I, no. 611 of December 14, 1999, with subsequent amendments and
corrections. 179 See judgment of 20 September 2017, Andriciuc and Others v Banca Românească S.A (C-186/16, ECLI:EU:C:2017:703,
paragraphs 9-58).
85
fluctuations in relation to the leu, neglecting to mention the potential risks and the probability of their realization.
As a result, the borrower has been unable to understand the obligations arising from the contract which he has
concluded, because the Bank acted in breach of its obligations to inform, warn and advise, and its duty to draft
contractual terms in plain and intelligible language.
The applicants in the main proceedings brought an action before the Bihor Court seeking a declaration
that those terms were completely invalid of the abusive clauses providing for repayment of the loan in Swiss
francs and requiring the bank to produce, for each credit agreement, a new repayment schedule providing for the
conversion of the loan into Romanian leu, at the exchange rate which had been in force when the credit
agreement was concluded. The Bihor Court dismissed the action by considering that even though it was not
negotiated with the borrowers, the term providing for the repayment of loans in the same currency as that in
which the loan agreements had been concluded was not unfair. As a result, the applicants in the main
proceedings brought an appeal against that decision before the referring court. Given that the applicants claim a
significant imbalance between the rights and obligations of the parties was caused by the depreciation of the
Romanian leu against the Swiss franc which took place after the conclusion of the agreements, the Oradea Court
of Appeal suspended the case and brought before180
the Court of Justice of the European Union request for
preliminary ruling which raises the question of the interpretation of Article 3 (1) and Article 4 (2) of Directive
93/13.
First of all, it is necessary to analyze the admissibility of this reference. Banca Românească considers
that the questions referred by the national court are unnecessary and irrelevant and maintains that in reality an
individual solution is sought in order to resolve the main dispute. Despite these doubts expressed by the bank,
the Court declares the application for a preliminary ruling admissible, recalling that those applications have a
presumption of relevance, even though the provisions whose interpretation is sought have already been
interpreted by the Court, the national courts retaining full freedom to bring the matter before the European Court
if they consider it appropriate181
.
On the other hand, although it is for the national court alone to rule on the classification of those terms
in accordance with the particular circumstances of the case, the fact remains that the Court has jurisdiction to
elicit from the provisions of Directive 93/13 the criteria that the national court may or must apply when
examining contractual terms with regard to those provisions 182
.
Secondly, it is appropriate to consider these questions in reverse order, the question which excludes
certain contractual terms from the assessment of unfairness, and that of whether the terms at issue are in plain
and intelligible language arise before any substantive assessment of the fairness of those terms.
1.2.1. The third question
The first issue raised by the referring court is whether the contractual clause, which has not been the
subject of an individual negotiation under which the loan is repaid in the same currency in which it was granted,
falls within the scope of Article 4 (2) of Directive 93/13. In the opinion of borrowers, this clause would impose
"currency exchange risk" on the consumer.
Before determining whether it falls under Article 4 (2) it must be decided whether or not the clause in
question is excluded from the assessment of the unfairness of certain contractual clauses under Article 1 (2) of
Directive 93/13, reflecting the principle of monetary nominalisation183
appears in Article 1578 of the Romanian
180 Based on art. Article 267 of the Treaty on the Functioning of the European Union, according to which "the Court of Justice
of the European Union shall have jurisdiction to give preliminary rulings on: [...] (b) the validity and interpretation of acts
adopted by the institutions, bodies, offices or Union agencies. Where such a matter is raised before a court of a Member
State, that court may, if it considers that a decision in that regard is necessary in order to give judgment, request the Court
to give a ruling on this issue [...]. 181 The reference for a preliminary ruling, see M. Șandru, M. Banu and D. Călin, Procedura trimiterii preliminare.
Principii de drept ale Uniunii Europene și experiențe ale sistemului de drept român, C.H. Beck, Bucharest,
2013. 182 See judgement of 23 April 2015, Van Hove (C-96/14, EU:C:2015:262, paragraph 28). 183 "In all the appeals of the banks in the files on the conversion of Swiss francs into leu and the freezing of the leu/franc
exchange rate at the level of the loan, monetary nominalism is indicated as a principle and tradition that prohibits
conversion into lei and the freezing of the exchange rate. In reality, monetary nominalism, as it was regulated in art. 1578
of the Civil Code of 1864, is the exact opposite of this favorable solution for banks, being the very rule that allows the
conversion of credits into another currency in lei and the freezing of the exchange rate at the level of the one at the date of
granting the credit in the event of fluctuation of the course. From the provisions of art. 1578 shows that if there is a
fluctuation in the price of currencies prior to the maturity of the loan, the payment is made only in the liquid money of the
age in the current species at the date of payment. Norms relating to monetary nominalism are suppressive, not imposed
on the parties, but are intended to supplement their will. It is obvious that the law does not fall under the law or
mandatory administrative rules. Hence, the obvious conclusion that a foreign exchange risk clause, even if it reflects the
principle of monetary nominalism in the contract, may be subject to analysis as to its abusive nature. The actions on
conversion into lei and the freezing of the Swiss franc are based on the legislation on unfair terms and on the obligation
86
Civil Code in force at that time. In this regard, we recall that Article 1 (2) establishes an exclusion from the
scope of the Directive in relation to clauses reflecting statutory or mandatory administrative rules. The Court has
already held in its jurisprudence184
that that exclusion requires two conditions to be met. First, the contractual
term must reflect a statutory or regulatory provision and, secondly, that provision must be mandatory. Therefore,
the established exception is restrictive and strictly interpreted.
In the present case, given that the European norm is resistive, there is no certainty that it would apply in
the case at hand, since Article 1578 of the Civil Code may be considered a suppressive norm. The Advocate
General proposes that the Court185
should allow the referring court to determine whether the clause in question,
according to which the loan is to be repaid in the same currency as it has been granted, reflects the laws of
national law within the meaning of Article 1 (2) of the Directive, taking into account the nature, purpose and
general provisions of loan agreements in question and the legal and factual context in which the latter fall.
If it is found that the term at issue in the main proceedings is not covered by that exception mentioned
in Article 1 (2), it must then examine whether it falls within the concept of ‘main subject matter of the contract’
or ‘the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in
exchange, on the other’, within the meaning of Article 4(2) of Directive 93/13. However, the Court of Justice of
the European Union is entitled to lay down the criteria applicable to such an examination. Thus, in its recent
jurisprudence, the Court stated that Article 4 (2) of Directive 93/13 is strict interpretations of186
, since
establishing an exception to the control mechanism on the merits of unfair terms established by the Directive and
the interpretation must be autonomous and uniform187
.
The cause of exclusion related to "adequacy of the price or remuneration" is a small and welcomes the
Court ruled that the clause requiring repayment of the loan in the currency in which it was granted to be part of
this exception. On the other hand, I consider that this clause relates to the second cause, namely the 'main object
of the contract'. The contractual clauses which determine the essential benefits and which, consequently,
characterize it, fall within the definition of "main object of the contract" within the meaning of Article 4 (2) of
the Directive. In order to distinguish what is "essential" from what is "accessory" in a particular contract, "it is
necessary to take account of the nature, general economy and the provisions of the credit agreement" in question
and in "the context"of its legal and factual.188
The repayment of capital and interest, which in fact represents the price of the credit, is indissociably
linked to the currency in which the credit is granted and it can not be considered that only the specified amounts
are part of the main object of the contract, excluding the reference currency. In addition, in the absence of any
indication as to the currency in which a loan is repaid, it is assumed that the repayment must be made in the same
currency in which the loan was unblocked. Also, under the principle of monetary nominalism, enshrined in
Article 1578 of the Romanian Civil Code, the payment of a pecuniary obligation shall be effected by payment of
the amount mentioned in the agreement of the parties, without prejudice to this amount by considerations
regarding the value.
Thus, in the present case, the clause inserted in a credit agreement entered into in a foreign currency
between a professional and a consumer without having been the subject of an individual negotiation, according
to which the loan must be repaid in the same currency, falls within the scope of the concept of the contract,
which is an essential element of the debtor's performance, even its nature. In support of this latter idea, two
elements of the case in question must be mentioned, namely: the foreign currency loan is applied at a lower
interest rate than in the national currency, precisely in exchange for the 'foreign exchange risk' borne entirely
consumer and which may occur in the case of the devaluation of the national currency189
, and the second is that
the bank granted the loans in Swiss francs and is entitled to obtain repayment in the same currency, the
borrowers being free to pay the monthly installments in francs indifferent of their source. As a consequence, the
clause can not be considered abusive insofar as it is expressed in a clear and comprehensible manner.
of the consumer information bank. The European Union law, both at the norm and at the level of the case law of the
CJEU, opposes categorically the diversion of the real and original meaning of the principle of monetary nominalism" In
Ghe. Piperea, Monetary Nominalism, a legal tradition deviated from its original meaning, available at www.juridice.ro
(consulted on 30.10.2017). 184 See judgment of 10 September 2014, Kušionová (C-34/13, EU:C:2014:2189, paragraph 77). 185 See paragraph 59 of the Opinion of Advocate General delivered on 27 April 2017 in Andriciuc and Others v Banca
Românească S.A (C-186/16, ECLI:EU:C:2017:313). 186 See, inter alia, judgement of 30 April 2014, Kásler and Kástlerne Rábai ( C-26/13, EU:C:2014:282, paragraph 42) and
judgement of 26 February 2015, Matthew (C-143/13, EU:C:2015:127, paragraph 49). 187 See judgement of 26 February 2015, Matthew (C-143/13, EU:C:2015:127, paragraph 50). 188 See judgement of 23 April 2015, Van Hove (C-96/14, EU:C:2015: 262, paragraph 33). 189 See Decision no. 2/2014 PJE and Kúria (Supreme Court, Hungary), delivered in the interests of a uniform interpretation of
the provisions of civil law, to which expressly refers the judgment of 3 December 2015, Banif Plus Bank (C-312/14,
EU:C:2015:794, paragraphs 43 to 45).
87
1.2.2. The second question
The referring court asks the Court of Justice of the European Union to determine whether the inclusion
of a contractual clause, in the present case, which requires the consumer to repay the credit in the same currency,
must be accompanied by exhaustive information as to the reasons for the inclusion of that clause in the contract
and its implementing mechanism, or whether it must also mention all its possible consequences according to
which the price paid by the consumer may vary, such as exchange rate risk, and whether, in the light of Directive
93/13, the obligation of the borrowing institution to inform the borrower at the moment of granting the loan is
exclusively the credit terms, such as interest, commissions, guarantees placed on the borrower, the possibility of
appreciation or depreciation of a foreign currency not being included in this obligation.
The requirement of a "clear and comprehensible" wording of the clauses in a contract concluded
between a professional and a consumer must also be observed in the application of Article 4 (2) of Directive
93/13. However, the clauses covered by that rule are exempted from the assessment of the abusive nature only if
the competent national court considers, on a case-by-case basis, that they were drafted in a clear and
comprehensible manner190
.
From the conjunction of Article (5) of Directive 93/13 and the 20th recital191
in the same act, the
consumer is required to effectively analyze all the clauses of the contract and ultimately oblige a professional on
the basis of the information provided by him. The intelligible nature has to be interpreted extensively192
both
formally and grammatically, and taking into account the level of information that can be expected from an
average consumer, normally informed and reasonably observant and circumspect, given that he is on a position
inferior to the professional. Consequently, it is of fundamental importance to concretely expose the mechanism
covered by that clause and, where appropriate, the relationship between that mechanism and that provided by
other clauses in a transparent way in the contract so that the consumer is sufficiently informed be able to assess,
on the basis of precise and comprehensible criteria, the economic consequences resulting from the contract.
Among other things, the consumer has to understand the total cost of his loan and the potential consequences for
a certain level of risk if he engages in exchange for financial advantages, such as a low interest rate. It is for the
referring court to verify the relevant facts, including advertising and the information provided by the financial
institution in the negotiation of a loan agreement.
In line with the Recommendation of the European Systemic Risk Board of 21 September 2011 on
foreign currency lending, the average consumer who is reasonably attentive and aware that is able to understand
that an exchange rate is subject to fluctuations must be clearly informed, by the bank, that by concluding a loan
agreement in a foreign currency it is exposed to a certain foreign exchange risk which it will eventually be
difficult to assume in case of devaluation of the currency in which it receives income193
. In particular, where the
borrower does not receive the proceeds in the currency in which the loan was made, the financial institution is
required to present, taking into account its expertise and knowledge in this field, the possible exchange rate
fluctuations and the risks inherent in the contracting of a borrowing in foreign currency. However, the Advocate
General194
considers it unreasonable to require the bank to inform the borrower, at the stage of concluding the
credit agreement, of the occurrence of events or developments subsequent to the conclusion of the contract that
he could not anticipate. If the professional is deliberately violating his obligation to inform, it is clear that he will
be required to bear the risk of foreign exchange. The Court has also decided in this case that it is for the national
court to verify that the professional communicates to the borrower the relevant information enabling them to
assess the economic consequences of a clause on their financial obligations.
The Court has therefore held that the requirement that a contractual clause must be expressed "in a clear
and comprehensible manner" implies that, in the case of credit agreements, banks should provide borrowers with
sufficient information to enable them to take prudent and informed decisions. This implies that a clause
according to which the loan must be repaid in the same foreign currency in which it was contracted to be
understood by the consumer both formally and grammatically, and in terms of the concrete effects thereof, in the
sense that a normal average consumer informed and reasonably observant and reasoned to be able to know the
possibility of appreciation or depreciation of the foreign currency in which the loan was contracted and to assess
the economic consequences of such a clause on its financial obligations.
190 See judgment of 3 June 2010, Caja de Ahorros y Monte de Piedad de Madrid (C-484/08,EU:C:2010:309, paragraph 32). 191 This recital states that "contracts should be drafted in clear and comprehensible language, and consumers should be given
the opportunity to analyze all the clauses and, in case of doubt, should prevail over the most favorable interpretation for
the consumer". 192 See judgment of 9 July 2015, Bucura (C-348/14, EU:C:2015:447, paragraphs 51, 52, 55 and 60). 193 See Recommendation A - Risk awareness by borrowers, paragraph 1, according to which "financial institutions must
provide borrowers with adequate information to enable them to take well-informed and prudent decisions and should at
least encompass the impact on instalments of a severe depreciation of the legal tender of the Member State in which a
borrower is domiciled and of an increase of the foreign interest rate". 194 See paragraphs 68 and 69 of the Opinion of Advocate General delivered on 27 April 2017 in Andriciuc and Others v
Banca Românească S.A (C-186/16, ECLI:EU:C:2017:313).
88
1.2.3. The first question
The last issue raised by the referring court seeks to establish the meaning of Article 3 (1) of Directive
93/13, namely the time at which the 'significant imbalance' between the rights and obligations of the contracting
parties must be considered, that is to say, the moment of the conclusion of the contract or the evolution
subsequent to the conclusion of the contract. First of all, it must be pointed out that this question only makes
sense in so far as it is concluded that the clause in question does not fall within the scope of Article 4 (2) of the
Directive and that it lends itself to a substantive examination of the abusive nature. Otherwise, this question
appears to be irrelevant.
Secondly, as regards the moment when the existence of a "significant imbalance" between the rights
and obligations of the parties must be assessed, it follows from the wording of Article 3 (1) and the nature of the
protection that Directive 93/13 confers. Thus, the assessment of the imbalance must be made according to the
circumstances and the information available at the time of the conclusion of the contract. Moreover, the Court
has already held in its case-law195
that, in order to assess the unfairness of a contractual term, the national court
must refer to 'at the time of conclusion of the contract' in all the circumstances surrounding its conclusion.
In the present case, the clause inserted in foreign currency loan agreements stipulates that the monthly
repayment rates of the loan must be made in the same foreign currency. Such a clause places the risk of foreign
exchange on the consumer in case of devaluation of the national currency in relation to the foreign currency. In
this case, there is no abusive clause, but the imbalance between the parties occurs during the performance of the
contract, the professional being not liable for the post-contract evolutions that are independent of his will, can
not control the exchange rate that will be in force future. Indeed, the clause does not in itself imply an imbalance,
but the debt owed by the borrower becomes excessively onerous as a result of the exchange rate fluctuation that
can take place both in the sense of appreciation and in the sense of depreciation but can not lead to the transfer of
risk foreign exchange on the lender because it is a circumstance that does not depend on the will of one of the
contracting parties. Moreover, in order to ascertain the existence of a significant imbalance, a difference should
be noted between the amount borrowed and the amount repaid, or the banking institution has borrowed a certain
number of monetary units and is entitled to obtain the return of the same number of units.
In conclusion, the assessment of the unfairness of a contractual term must be made in relation to the
time at which that contract was concluded, having regard to the whole of the circumstances which the
professional could have known at the time and which were likely to influence the subsequent performance of the
contract. It is for the referring court to assess the existence of any imbalance.
2. SHORT CONCLUSIONS
The case of Andriciuc against Banca Românească SA has become of particular importance because of
the decision of the Court of Justice of the European Union. The subject of the present case highlights three
fundamental aspects encountered in consumer contracts and in litigations in the Romanian courts concerning
them, namely: the abusive clauses in the loan agreements concluded in foreign currency, respectively in Swiss
francs; the obligation to inform the professional in terms of expressing contractual terms in a clear and
understandable way for the average consumer and assessing the contractual imbalance at the time of the
conclusion of the contract which would lead to the finding of such an imbalance in restoring contractual
conditions by reporting at this moment.
In clarifying the provisions of the third question, the Court gave a positive interpretation to the principle
of monetary nominalism, confirming that Article 1 (2) of Directive 93/13 must be interpreted as meaning that a
contractual term is excluded from the scope of the directive only if it reflects the content of a statutory or
mandatory administrative rule. In the present case, Article 1578 is considered to be a suppressive rule, it is not
covered by this exception. As a consequence, the currency risk clause can be declared abusive. On the other
hand, that clause falls within the scope of the concept of 'principal object of the contract', repayment of the loan
in the same currency as an essential element of the debtor's performance and can not therefore be regarded as
abusive in so far as it is expressed in a clear and comprehensible manner.
The requirement that a clause relating to the repayment of the loan in the same foreign currency in
which it was contracted must be clearly and comprehensibly expressed must be interpreted as meaning that it
must be understood by an average consumer who is normally informed and who can understand the possibility of
fluctuations exchange rate and exposure to a particular foreign exchange risk, to be able to assess the economic
consequences of such a clause on its financial obligations.
As regards the existence of a contractual imbalance, it must be examined at the time of the conclusion
of the contract, in the present case is not an imbalance, but the borrower's obligation to repay the loan in the
same currency in which it was contracted, which became overly burdensome as a result of the appreciation of the
foreign currency against the national currency. It is also argued that in the event of a significant imbalance, a
difference should be noted between the amount borrowed and the amount repaid, or the banking institution has
195 See judgment of 9 July 2015, Bucura (C-348/14, EU:C:2015:447, paragraph 48).
89
borrowed a certain number of monetary units and is entitled to obtain the return of the same number of units.
What happens if the loan was made in a completely different currency, the foreign currency being just calculated
and virtually used?196
Consequently, it is essential that the credit is paid in the same currency as the loan.
It is very interesting to observe in the near future how the Romanian courts are going to relate with the
Anriciuc case, but this will be the subject of a further study.
REFERENCES
1. M. Șandru, M. Banu and D. Călin, Procedura trimiterii preliminare. Principii de drept ale Uniunii
Europene și experiențe ale sistemului de drept român, C.H. Beck, Bucharest, 2013;
2. curia.europa.eu;
3. euro-lex.europa.eu;
4. juridice.ro.
196 See Case Lupean, C-119/17, available at curia.europa.eu.
90
THE EUROPEAN CERTIFICATE OF SUCCESSION (ECS)
Prof. Ph.D. FLORESCU Dumitru
“Titu Maiorescu“ University, Faculty of Law
Abstract
The first example of an authentic European act, the European Certificate of Succession, regulated by
the Regulation (EU) no. 650/2012 of the European Parliament and of the Council of the European Union,
entered into force in the European Member States at 17 August 2015, is a standard form “in order for a
succession with cross-border implications within the Union to be settled speedily, smoothly and efficiently, the
heirs, legatees, executors of the will or administrators of the estate being be able to demonstrate easily their
status and/or rights and powers in another Member State, for instance in a Member State in which succession
property is located”.
For that purpose, this Regulation provides for the creation of a uniform certificate, the European
Certificate of Succession to be issued for use in another Member State.
Key Words:
European Certificate of Succession
Member State of the European Union
Jurisdiction
The first example of an authentic European act, the European Certificate of Succession, regulated by the
Regulation (EU) no. 650/2012 of the European Parliament and of the Council of the European Union, entered
into force in the European Member States at 17 August 2015, is a standard form “in order for a succession with
cross-border implications within the Union to be settled speedily, smoothly and efficiently, the heirs, legatees,
executors of the will or administrators of the estate being be able to demonstrate easily their status and/or rights
and powers in another Member State, for instance in a Member State in which succession property is located”.
For that purpose, this Regulation provides for the creation of a uniform certificate, the European
Certificate of Succession to be issued for use in another Member State.
In order to respect the principle of subsidiarity, the Certificate should not take the place of internal
documents which may exist for similar purposes in the Member States. (&67 Statement of reasons of the EU
Regulation no. 650/2012).
The Regulation creates a European Certificate of Succession which is issued for the purpose of being
used in another Member State and produces the effects listed in Art. 69 of the Regulation.
The use of the Certificate is not mandatory and is not taking place of internal documents used in similar
purposes in the Member States.
However, from the moment this is released for the purpose of being used in another Member State, the
certificate shall produce the effects listed in Art. 69 of the Regulation in the Member State whose authorities
have issued it.
The European Certificate of Succession is for use by heirs, legatees having direct rights in the
succession and executors of wills or administrators of the estate who, in another Member State, need to invoke
their status or to exercise respectively their rights as heirs or legatees and/or their powers as executors of wills or
administrators of the estate.
The Certificate may be used, in particular, to demonstrate one or more of the following:
a) the status and/or the rights of each heir or, as the case may be, each legatee mentioned in the
Certificate and their respective shares of the estate;
b) the attribution of a specific asset or specific assets forming part of the estate to the heir(s) or, as the
case may be, the legatee(s) mentioned in the Certificate;
c) the powers of the executor of the will or the administrator of the succession mentioned in the
Certificate (Art. 62 of the Regulation).
The issuing authority is:
a) a court as defined in Article 3(2); or197
;
197
„Jurisdiction” means any judicial authority and all other authorities and legal professionals with
competence in matters of succession which exercise judicial functions or act pursuant to a delegation of
power by a judicial authority or act under the control of a judicial authority, provided that such other
authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be
heard and provided that their decisions under the law of the Member State in which they operate:
a) may be made the subject of an appeal to or review by a judicial authority; and
b) have a similar force and effect as a decision of a judicial authority on the same matter.
91
b) another authority which, under national law, has competence to deal with matters of succession.
The Certificate is issued upon application by any person referred to in Article 63 (meaning heirs,
legatees, executors of the will or administrators of the succession) who, in another Member State, may invoke
their status or to exercise their rights.
The application form (for issuing the certificate) shall contain the information concerning the deceased,
the applicant, the representative of the applicant, if any, the spouse or partner of the deceased and, if applicable,
ex-spouses or ex-partners, other possible beneficiaries under a disposition of property upon death and/or by
operation of law, the intended purpose of the Certificate, he contact details of the court or other competent
authority which is dealing with or has dealt with the succession, the elements on which the applicant founds his
claimed right to succession property, an indication of whether the deceased had made a disposition of property
upon death, an indication of whether the deceased had entered into a marriage contract, a declaration stating that,
to the applicant’s best knowledge, no dispute is pending relating to the elements to be certified, any other
information which the applicant deems useful for the purposes of the issue of the Certificate
Upon receipt of the application the issuing authority shall verify the information and declarations and
the documents and other evidence provided by the applicant. It shall carry out the enquiries necessary for that
verification of its own motion where this is provided for or authorized by its own law, or shall invite the
applicant to provide any further evidence which it deems necessary.
For the same purposes, the competent authority of a Member State shall, upon request, provide the
issuing authority of another Member State with information held, in particular, in the land registers, the civil
status registers and registers recording documents and facts of relevance for the succession or for the
matrimonial property regime or an equivalent property regime of the deceased, where that competent authority
would be authorized, under national law, to provide another national authority with such information.
The issuing authority shall issue the Certificate, in accordance with the procedure, when the elements to
be certified have been established under the law applicable to the succession or under any other law applicable to
specific elements.
The issuing authority shall not issue the Certificate in particular if:
a) the elements to be certified are being challenged, or
b) the Certificate would not be in conformity with a decision covering the same elements.
The issuing authority shall take all necessary steps to inform the beneficiaries of the issue of the
Certificate.
The Certificate shall contain the following information, to the extent required for the purpose for which
it is issued:
a) the name and address of the issuing authority;
b) the reference number of the file;
c) the elements on the basis of which the issuing authority considers itself competent to issue the
Certificate;
d) the date of issue;
e) details concerning the applicant: surname (if applicable, surname at birth), given name(s), sex, date
and place of birth, civil status, nationality, identification number (if applicable), address and
relationship to the deceased, if any;
f) details concerning the deceased: surname (if applicable, surname at birth), given name(s), sex, date
and place of birth, civil status, nationality, identification number (if applicable), address at the time
of death, date and place of death;
g) details concerning the beneficiaries: surname (if applicable, surname at birth), given name(s) and
identification number (if applicable);
h) information concerning a marriage contract entered into by the deceased or, if applicable, a contract
entered into by the deceased in the context of a relationship deemed by the law applicable to such a
relationship to have comparable effects to marriage, and information concerning the matrimonial
property regime or equivalent property regime;
From the interpretation of this text it can be concluded that both if the succession was debated
before the Romanian public notary or before the Romanian court, the European Certificate of
Succession shall be issued by the Romanian public notary.
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i) the law applicable to the succession and the elements on the basis of which that law has been
determined;
j) information as to whether the succession is testate or intestate, including information concerning
the elements giving rise to the rights and/or powers of the heirs, legatees, executors of wills or
administrators of the estate;
k) if applicable, information in respect of each beneficiary concerning the nature of the acceptance or
waiver of the succession;
l) the share for each heir and, if applicable, the list of rights and/or assets for any given heirs;
m) the list of rights and/or assets for any given legatee;
n) the restrictions on the rights of the heir(s) and, as appropriate, legatee(s) under the law applicable to
the succession and/or under the disposition of property upon death;
o) the powers of the executor of the will and/or the administrator of the estate and the restrictions on
those powers under the law applicable to the succession and/or under the disposition of property
upon death. (Article 68 of the Regulation).
The Certificate shall produce its effects in all Member States, without any special procedure
being required.
The Certificate shall be presumed to accurately demonstrate elements which have been established
under the law applicable to the succession or under any other law applicable to specific elements. The person
mentioned in the Certificate as the heir, legatee, executor of the will or administrator of the estate shall be
presumed to have the status mentioned in the Certificate and/or to hold the rights or the powers stated in the
Certificate, with no conditions and/or restrictions being attached to those rights or powers other than those stated
in the Certificate.
The Certificate shall constitute a valid document for the recording of succession property in the relevant
register of a Member State, without prejudice to legal norms on the nature of real estates, excluded from the
scope of the Regulation.
The issuing authority shall keep the original of the Certificate and shall issue one or more certified
copies to the applicant and to any person demonstrating a legitimate interest.
The certified copies issued shall be valid for a limited period of six months, to be indicated in the
certified copy by way of an expiry date. Once this period has elapsed, any person in possession of a certified copy may apply for an extension of
the period of validity of the certified copy or request a new certified copy from the issuing authority.
The issuing authority shall, at the request of any person demonstrating a legitimate interest or, where
this is possible under national law, of its own motion, modify or withdraw the Certificate where it has been
established that the Certificate or individual elements thereof are not accurate.
Decisions taken by the issuing authority may be challenged by any person entitled to apply for a
Certificate.
Decisions taken by the issuing authority may be challenged by any person demonstrating a legitimate
interest, in order to rectify, modify, withdraw or suspend the certificate.
The challenge shall be lodged before a judicial authority in the Member State of the issuing authority in
accordance with the law of that State.
If, as a result of a challenge, it is established that the Certificate issued is not accurate, the competent
judicial authority shall rectify, modify or withdraw the Certificate or ensure that it is rectified, modified or
withdrawn by the issuing authority.
The effects of the Certificate may be suspended by: a) the issuing authority, at the request of any person demonstrating a legitimate interest, pending a
modification or withdrawal of the Certificate;
b) the judicial authority, at the request of any person entitled to challenge a decision taken by the
issuing authority, pending such a challenge.
The issuing authority or, as the case may be, the judicial authority informs without delay all persons to
whom certified copies of the Certificate have been issued of any suspension of the effects of the Certificate.
Finally the Regulation states that “No legalization or other similar formality shall be required in
respect of documents issued in a Member State in the context of this Regulation.” (Article 74), so also in
the case of the European Certificate of Succession.
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THE ROLE OF STANDARDIZED FIDIC CONTRACTS IN THE PROCESS OF
CONSTRUCTION MARKET GLOBALIZATION
GHERGHINA Oana Ruxandra, Lawyer, FIDIC Expert, PhD Candidate of the Faculty of Law, “Titu
Maiorescu” University
Abstract
At the basis of this scientific approach was the interest of the author, theoretician and practitioner of
construction law, to deepen the legal impediments related to the transposition of the FIDIC General Conditions
of Contract 1999 in the Romanian legislation in the context of a global construction market. The interest for this
specific theme derives from the broader spectrum of the author's interest in the process of globalization of the
construction industry. The challenge accepted by the author was to answer the questions if FIDIC contracts,
drafted under the common-law rules are compatible with the Romanian civil law-based legal system, and if these
standardized forms of contract have contributed to the globalization process. The conclusion of the research
indicates a positive response to both questions, the author’s opinion being that standardization in general, and
FIDIC contracts in particular, played an important role to the globalization of construction market. In fact,
FIDIC contracts have been an important tool in the process of globalization of the construction market,
precisely because of the versatile nature of the wording, which allowed the use of these standardized contracts in
both the Anglo-Saxon law system and the Continental law systems based on Civil Codes.
THE GLOBALIZATION OF THE CONSTRUCTION MARKET
It is usual nowadays for a German entrepreneur to perform construction works for an Italian employer, on the
territory of Romania, under the supervision of a Belgian engineer, who agreed that in the event of a conflict a
court in France would settle the dispute, under the rule of law in Switzerland. Starting from effect to cause the
author began this study with the research of the phenomena that generated the globalization of the construction
works market, but also with the analysis of the legal instruments that facilitated this process, concluding that the
standardized FIDIC contracts played an important role in the globalization process.
The doctrine metaphorically assimilates globalization with an ongoing revolution, where success is due to
changing the old rules with new ones, while stressing that in moments of radical change the nuances are usually
absent. This is obvious at the beginning of the revolution, when there is uncertainty on the way things will
change, if the change will take somewhere or if there is a change indeed. (Ridderstråle 2007)
In another opinion, (Abdul-Aziz 1994) globalization has been a process of transforming the functioning of the
world economy, as well as national economies, with a major impact on the world trade concept. Regarding the
concept of globalization of the construction industry, the opinions were quite controversial, with more currents
of opinion over time.
In a first theory, the notion of globalization, in its original meaning, would not apply to the construction
industry, as constructions, although they also involve trade activities, are not commodities that can be traded on
international markets. Neither the concept of globalization of internationally integrated production could be
applicable as the actual production process in the construction industry takes place on the site normally located
in a single country. The conclusion of this traditionalist theory would be that the construction industry has only
changed in response to globalization without being part of this process. (Strassman 1988)
Examining this historical process through doctrinal studies, the conclusion, shared by the author, is that the
perspective of globalization of the construction industry exists, is real and ongoing, gradually evolving.
The first identified step towards globalization took place with the first wave of international contracts
concluded in the nineteenth century, when several British companies began to develop abroad, capitalizing on
new technologies and following the expansion of the British Empire. The second wave of contracts, which
marked the beginning of modern internationalization, took place after the Second World War, when the interest
in trade and investment was renewed with the development of multinational companies. (Runeson 2013)
In 1994, the difference between internationally and globally-oriented companies was highlighted at doctrinal
level, the conclusion being that for companies with an international approach, entrepreneurs want to exploit a
competitive advantage on a different market, while the global perspective firm does not assess country-by-
country opportunities individually, but has the willingness to undertake integrated global engagement with long-
term prosperity even if immediate costs could be high. (Abdul-Aziz 1994)
94
THE KEY ROLE OF STANDARD CONTRACTS IN THE GLOBALISATION PROCESS
At the beginning of the 20th century the globalization process was marked by elements of competitiveness,
standardization, technological development and technology transfer, but also by the improvement of public
procurement mechanisms and a market rearrangement through the merger and acquisition instrument.
From the perspective the research theme, standardization raises the authors interest, given the fact the
standardization of the construction contract stands as one of the decisive factors in the process of globalization.
The adoption by the international organizations of a common language for all international players, materialized
in the form of standardized construction contracts is a huge step forward in establishing the base of the global
construction market. According to Investopedia.com, standardization is the process of developing a unitary
contract framework to which all relevant parts of an industry or organization will join to ensure that all processes
associated with making a good or performing a service are carried out under known conditions and within the
established limits. The need for standardization has been market generated by the continuous growth of the pace
of business.
Investigating the origin of the standardized construction contracts, as instruments of globalization, it revealed
that they appeared in the early 1900s, in the historical conditions of a sustained development of the economic
activities at European level, the business environment implying the identification of solutions that ensure both
certainty and legal efficiency as well as the satisfaction of both contractual partners, through a balanced
allocation of contractual risks. Thus, the simple desire of the parties to complete major construction projects has
necessitated the standardization of contractual provisions to capitalize on the experience gained over time by
regulating the previously experienced situations in the contract, but also with a view to creating a common
language that removes the barriers of national specificity. Independent professional construction organizations
have played an important role in the standardization of contracts and consequently in the process of globalization
of the enterprise market. The first step towards globalization was achieved when the local professional
organizations, overcoming the national borders, established international organizations which subsequently
developed and promoted among the members standard forms of construction contracts. For example, the idea
behind the International Federation of Consultant Engineers FIDIC was born in 1913 in Lausanne, Switzerland,
at The World Fair Exhibitions, where several independent consultants from 59 states met to set up a global
federation. Although the 59 remained united, the federation was initially constituted only by three francophone
states, Belgium, France and Switzerland, and subsequently joined by the other states. Currently, the federation
includes national organizations from 98 countries, including Romania.
At present, the literature has largely established that the international standard for business contracts is the
FIDIC contact suite, the central pillar of this research project. However, it is important to note that, in parallel
with FIDIC contracts, other standardized contracts were also noted. Thus, Institution of Civil Engineers (ICE)
contracts are popular in the UK, but also in China, Hong Kong, Russia and India. The terms of the ICE contract
were published by Thomas Telford on behalf of the Institute of Civil Engineers (ICE), the Association of
Consultants Engineers (ACE) and the Civil Engineering Contractors Association (CECA). The first edition was
published in 1945, and the seventh and final edition was published in 2001. During that time, ICE was one of the
dominant forms of the standardized contract of business that circulated on the international construction market.
Another standard internationally used contract is The New Engineering Contract known as NEC3. NEC was first
published in 1993 as a suite of construction contracts designed to promote partnership and collaboration between
the contractor and the beneficiary. It was developed as a reaction to more traditional forms of contract, which
were considered by some to be contradictory. The third edition, NEC3, was published in 2005. NEC is a division
of Thomas Telford from the ICE's business division.
The author considers that the process of globalization is not finalized, as the markets are not currently
unified, being nowadays dominated more by regional players than by companies with a global strategic
approach. As for the benefits of globalization, standardization, affordable technologies, trade liberalization, and
economic market policies are important arguments, but by deepening this phenomenon, the author also identified
some arguments against the globalization of the construction market, such as the possible uneven distribution of
the gains between different countries, the risk of bankruptcy of the local construction industry, the immediate
impact on the local market of any imbalance in the world economy, the lack of an assumed leader able to
manage the process.
Regarding the future of the construction globalization process, the doctrine presents the conclusions in the
form of two theories, the natural extension of the national sector in an international market and an excessively
regulated and standardized market managed by the international federations of the field, where only a few big
companies survive. (Hartey 2007).
NATIONAL CONTRACTS LAW- A BARRIER TO GLOBALISATION
Currently, one of the most important and certified achievements in the process of globalization is considered
the European single market where people, goods, services and capital can circulate in the EU as freely as in one
country, mutual recognition playing the central role in removing barriers to trade.
95
In the process of Romanian integration into the EU, our country has encountered a period of adaptation of the
legislation to the requirements of the European Union, taking over in the national legislation the obligation to use
the FIDIC contracts for infrastructure works. Any analysis of the impact of FIDIC contracts on the Romanian
legislation is incomplete, if it is not analyzed in the context of the European single market, where "Its
fundamental freedoms give businesses and citizens the right to move and interact freely in a Union without
borders." (Comission n.d.)
The single market for construction works is very important for the EU economy because it provides 18
million direct jobs and contributes to around 9% of EU GDP, leading to healthy economic growth and providing
solutions to the social, climate challenges and energy. However, despite this undeniable gain, between Member
States, legal barriers created by contract law still exist, preventing cross-border trade. The issue of regulatory
differences in contract law at European level is interesting from the perspective of the research topic. The
author's approach to the subject of legal barriers to contract law at European level has the role of clarifying the
status of standardized contracts in the national legislation, starting from the notion of contract, which by "the
essential elements of its execution (the obligations and the binding ratio)" as regulated by the New Civil Code, is
the "fundamental legal instrument" of business relations.
Thus, it is recognized that most economic transactions are based on contracts, but by looking more closely at
the issue of the differences between the laws applicable to contracts at the level of the European states in terms
of their conclusion, execution or termination, it has been shown that they represent a significant impediment to
the daily business environment. Analyzing the European literature and international surveys showed that,
although there are several impediments to cross-border trade such as tax regulations, administrative
requirements, delivery difficulties, language and culture, the contract-related issues are, by far, the most
important barrier to the global business environment.
In particular, barriers to the single European market of construction works generate undesirable effects, i.e.
complexity and additional costs for both entrepreneurs and beneficiaries, especially in the case of major projects
with transnational elements.
Under the generic notion of differences in national laws governing construction contracts at European level,
there are in fact several factors that generate negative effects in the business environment, such as different legal
concepts (which must be known by the parties to understand the effects of the contract entrepreneurship and its
basic mechanisms), different legal terminology (strongly influenced by normative acts in the field and sometimes
difficult to translate and understand) as well as certain mandatory legal provisions or contract interpretation rules
so important for its execution in good conditions. Based on the effect, the solution identified by the author to counter the short-term adverse effects of different
regulations in contract law at European level is that international entrepreneurs become familiar with local legal
provisions on works, legal terminology and the mandatory rules for interpreting the contract before commencing
the execution of projects on the territory of other states. In the long run, however, from the analysis of legal measures imposed at European level, two categories of
major measures have been highlighted to counteract the adverse effects of legal barriers. These two categories of
measures, though seemingly unrelated, are unidirectional, completing harmoniously at the meeting point. The
first category of measures tends to standardize the contracts at European level and is complemented by the
opposite of the second category, that of the measures to harmonize the national legislations.
In implementing these measures, the European Commission at the level of the working groups of the
European institutions has surpassed the area of theoretical impact research by already adopting several
standardized contract initiatives in the field of sales law, insurance contracts and contracts of cloud computing to
strengthen the single market.
COMPARISON OF CONTRACT FORMATION BETWEEN ROMANIAN AND ANGLO-SAXON
LEGAL SYSTEM (Ramsay 1999)
In Romania, the adoption and use of the General and Special Conditions of the FIDIC contract for major
infrastructure works funded by public or European funds is the concrete example of transferring from the
theoretical area to the practical implementation of the measures to harmonize the European construction single
market. On the one hand, it is necessary that the approach does not remain unique, and on the other hand, it is
advisable to take measures to protect local players during the process of assimilation of new rules and
regulations, along with a careful analysis of the impact and compatibility of these standardized contracts with the
regulations and principles of national law, conducted by law specialists.
To correctly interpret the results of our research on the compatibility of the General Conditions of the 1999
FIDIC Contract with the Romanian Civil Law Regulations and Principles, it is necessary to summarize the main
features of the Contracts in the Anglo-Saxon Law System as compared to the Continental Law, knowing that the
principles of this legal system were the origin of FIDIC contracts. It should be remembered that the Anglo-Saxon
law system is based on common law, and its principles have been developed over time by judges, on a case-by-
case basis, the judicial precedent making up the system of law in its entirety. The essential function of the Anglo-
96
Saxon system, as a conflict resolution tool, is superior to that of legality control, as is the case for continental law
based on civil codes.
It is then obvious that having common-law origins, the FIDIC contracts are based on the idea of equity, the
focus of the editors' concerns being the concept of conflict resolution. Interpreting this secondary approach to the
concept of legality control, a legitimate question raised: Are the FIDIC contracts even compatible with the
Romanian civil law-based legal system? The author will make an empirical analysis of these contract conditions,
in comparison with the national construction contract under the Romanian Civil Code, and the conclusions of the
paper will answer this key question.
Investigating the doctrine and case-law, it emerged that at the time of drafting the General Conditions of the
1999 FIDIC Contract, the essential elements of a joint-law construction works contract were the meeting of the
will to accept the offer of the contractor to the beneficiary, the agreement on the price of the contract and the
declared intention of the parties to create a legal relationship between them. In some situations, however, the
commercial relations between the parties were carried out based on a letter of intention of the contractor
accepted by the beneficiary, which is legally equivalent to a contract.
Anglo-Saxon law system, unlike European continental ones, was developed by merchants, while continental
law was developed by professors. In other words, common-law stems from commercial practice, unlike
continental European law, developed by scientists to embody the philosophical and moral concepts of (Monzer
2007) the epoch. (Monzer 2007)
Common-law is a general law system, uncodified. This means that there is no comprehensive compilation of
the rule of law. Although the ordinary law is based on some statutes, the system is largely based on the judicial
precedent, that is the judicial decisions already taken in similar cases. These precedents are perpetuated in time
by courts and historically documented in jurisprudence collections known as yearbooks and reports. The
precedents to be applied in the decision of each new case are determined by the judge holding the presidency. As
a result, judges have an enormous role in the formation of American and British laws (see Robbins Collection,
The Common Law and Civil Law Traditions, University of California at Berkley)
In the case of the Anglo-Saxon law, the cornerstone of the FIDIC contract, from the research of the majority
doctrine it was ruled out that this system of law is "procedural", in the sense that its keystone is precisely the
notion of "remedy" the damage suffered, that is, the function by which the way for the protection of the breached
interest is made. (David R 1980)
Ab initio, making a brief analysis of the pre-contractual phase of the FIDIC contracts, the scientific interest
of the author was stimulated by a different approach to the legal situation of the pre-contractual negotiations
within the various legal systems at European level. From the perspective of Anglo-Saxon law, the legal regime
of the pre-contractual negotiations period best illustrates the "mercantile" nature of this system of law. (Floare
2012)
The general principle is that negotiations are a period of risk for the party entering negotiations with the
hope of a win, and it will endure unequivocally the risks of losses that could come from disrupting the
negotiations. In other words, the principle of absolute contractual freedom is highlighted in Anglo-Saxon law,
which allows the parties to discontinue negotiations at any time and without having to justify the other party. The
relevant case-law has held that each negotiator has the right to pursue his own interest if he avoids false
allegations, refusing to commit a bona fide obligation, as this would be incompatible with the parties'
antagonism.
On the opposite side stands the continental law contract, in his classic view, where good faith in the pre-
contractual negotiation phase has been recognized as an obligation since the Roman law and incorporated in the
“malitiis non est indulgentum” adage. Paradoxically, although the notion of a pre-contractual stage has not been
approached distinctly in doctrine and jurisprudence, being in some cases even denied or ignored altogether, the
rejection of bad faith behaviors by objective law operated since the Roman era, the doctrinal approach to pre-
contractual good faith, developing adjacent to the concept of the moment of contract formation, in close
connection with the notion of consenting vice.
For example, the French law sanctions a mere sloppy reluctance, consisting in the silence of a party on an
issue that would cause the other party not to contract, the jurisprudence assimilating the slum with bad faith even
in the absence of an actual misconduct. Concluding, in the Continental law, unlike the common-law system,
from the pre-contractual stage of negotiations, before the conclusion of any contract, the negotiators must be
animated by a loyal attitude, especially when the negotiations are interrupted when the abuse may occur, but also
during the negotiations, when the general obligation of good faith is “derived in a number of specific obligations:
information, counseling, confidentiality, seriousness etc. "
Nonetheless, failure to observe the requirements of pre-contractual good faith is not, per a contrario, always
a manifestation of bad pre-contractual faith. On the realm of accountability, the distinction between the two
notions is most eloquent, because by violating the requirements of good faith, only civil liability is exercised,
while pre-contractual bad faith implies both civil liability to the extent of the damage caused and other
consequences.
The FIDIC 1999 General Conditions make no reference to any rules of conduct relating to the pre-contractual
negotiations stage, particularly in the case of the interruption of negotiations, the FIDIC editor leaving both the
97
interpretation and the possible sanctioning of violation of the requirements of good faith, to follow the rules
applicable to the contract, even with the risk of non-uniform jurisprudence.
In case of General Terms and Conditions of the FIDIC 1999 contract, which are not modified by the Special
Conditions, subject to the Romanian law, bad faith manifestations in the pre-contractual stage will not be
governed by the rules of contractual civil liability but by the common rules of the law civil tort, any illicit deed
which has caused injury involving the responsibility of the author, even for the slightest fault, according to art.
1.357 par. (2) of the new Civil Code or art. 998-999 of the old Civil Code from 1864.
In order to achieve a proper understanding of the possible barriers to globalization due to national contracts
law it is important to remember the principles of contract formation in Anglo-Saxon law, principles followed by
the FIDIC editor at the time of drafting these standardized contracts.
Thus, about the principles of contract formation, the most eloquent theory is expressed by Steyn LJ in Percy
Trentham Ltd v. Archital Luxfer Ltd. [1993]. In this case, the court analyzed how it should address the party's
request to determine whether a contract was concluded. In the recitals of this judgment, the court has
identified four important aspects concerning the formation of the contract. The first aspect considered
relevant is that the English law generally adopts an objective theory of contract formation, in practice the
English law ignoring the subjective expectations and the unexpressed mental reservations of the parties.
Instead, the criterion by which it is directed refers to the reasonable expectations of a person of good faith.
“Before I turn to the facts it is important to consider briefly the approach to be adopted to the issue of
contract formation in this case. It seems to me that four matters are of importance. The first is the fact that
English law generally adopts an objective theory of contract formation. That means that in practice our law
generally ignores the subjective expectations and the unexpressed reservations of the parties. Instead the
governing criterion is the reasonable expectations of honest men (…). Secondly, it is true that the coincidence
of offer and acceptance will in the vast majority of cases represent the mechanism of contract formation. It is
so in the case of a contract alleged to have been made by an exchange of correspondence. But it is not
necessarily so in the case of a contract alleged to have come into existence during and as a result of
performance (…). The third matter is the impact of the fact that the transaction is executed rather than
executory. It is a consideration of the first importance on a number of levels. The fact that the transaction
was performed on both sides will often make it unrealistic to argue that there was no intention to enter into
legal relations. It will often make it difficult to submit that the contract is void for vagueness or uncertainty.
Specifically, the fact that the transaction is executed makes it easier to imply a term resolving any
uncertainty, or, alternatively, it may make it possible to treat a matter not finalized in negotiations as
inessential. In this case fully executed transactions are under consideration. Clearly, similar considerations
may sometimes be relevant in partly executed transactions. Fourthly, if a contract only comes into existence
during and as a result of performance of the transaction it will frequently be possible to hold that the
contract impliedly and retrospectively covers pre-contractual performance.”
It is important in this scientific research recalling the fundamental contract theory of the Anglo-Saxon law, based
on the principle that each party being is free to accept or reject the terms of the other. It has been established
at the doctrinal level that in the common-law system the offer to contract is that manifestation of perceptible
and externalized will of the party's consent to conclude the contract but can be qualified as an offer to
conclude only that proposal which contains sufficient elements to be able to form a contract, while expressing
the clear intention of the bidder to fulfill its obligations if accepted by the recipient. Similar to continental
law, the tender should not be vague, but if it does not contain sufficient information, it may become clear by
reference to previous works carried out between the parties or the general rules of trade, the acceptance being
written, orally or deducted from the conduct parties.
Under the Romanian law, the conditions of validity of the contract do not differ from French law, the following
elements being essential for the validity of a contract: the freely expressed consent of party; the ability to
conclude legal acts; a defined object that is the object of the contract that must be legal and a lawful cause of
the obligation.
Contracts will be interpreted in accordance with the common intention of the parties, which takes precedence
over the literal meaning of the terms. When a common intention cannot be established, it will use the
understanding that a man of good faith will have about the term in dispute. Ambiguous clauses must be
interpreted to produce an effect, not the opposite. Accordingly, the Romanian courts first determine the nature
of the contract and, if the contract complies with the elements of one of the contracts, its content will be
largely determined by the relevant legal provisions. However, even if the court establishes that it is in the
presence of an unnamed contract, a sui generis contract, its ambiguous clauses will be interpreted in the
sense of the terms of the contract with which it is most similar. In the Romanian law the principle of binding
force of the contract is in force, pacta sunt servanda. Legally concluded contracts have the force of law
between the contracting parties and may be revoked only by the mutual consent of the parties or for reasons
provided by law.
The main objective of the paper was the challenge accepted by the author to answer the questions if FIDIC
contracts, drafted under the common-law rules are compatible with the Romanian civil law-based legal
system, and if these standardized contracts have contributed to the globalization process of the construction
98
market. The conclusion of the research drives us to a positive response to both questions, the author’s opinion
being that standardization in general, and FIDIC contracts in particular, played an important role to the
globalization of construction market. In fact, FIDIC contracts have been an important tool in the process of
globalization of the construction market, precisely because of the versatile nature of the wording, which
allowed the use of these standardized contracts in both the Anglo-Saxon law system and the Continental law
systems based on Civil Codes. The imposition by Romanian law of the FIDIC forms of contract for all public
works was an important step in the integration of our country to the global construction market and also an
opportunity for us to use the international experience and innovative methods for our national interest public
works.
References
1. Abdul-Aziz, A. "Global strategies: a comparison between Japanese and American construction firms."
Construction Management & Engineering Vol.12, 1994.
2. Comission, European. ec.europa.eu. n.d. http://ec.europa.eu/justice/contract/index_en.htm (accessed
June 23, 2017).
3. David R, English Law and French Law: A Comparison in Substance, Ed. Stevens & Sons, London,
1980. English Law and French Law: A Comparison in Substance,. Ed. Stevens & Sons, 1980.
4. Floare, M. "Reaua-credinţă precontractuală în cazul contractelor negociate, în Noul Cod civil şi în
dreptul comparat." Revista Română de Drept Privat , 2012.
5. Hartey, C., Goodier,C., Soetanto,R., Austin,S., Dainty,A., Price,A. "The futures of construction: a
critical review of construction future studies." Construction Management & Engineering, Vol.25, 2007.
6. Monzer, R. "Les effets de la mondialisation sur la responsabilité précontractuelle – Régimes juridiques
romano-germaniques et anglo-saxons,." Revue Internationale de Droit Comparé,, 2007.
7. Ramsay, V. An Empirical Study of the Oppression Remedy, revista Australian Business Law Review
nr. 27, februarie 1999,. "An Empirical Study of the Oppression Remedy." Australian Business Law
Review , 1999.
8. Ridderstråle, J., Nordström,K. Funky Business Forever,. Blackwell, 2007.
9. Runeson, G., DeValence,G. "International construction: From transnational to global,." 38th AUBEA
International Conference . 2013.
10. Stănciulescu, L. Civil Contracts Law: Doctrine and jurisprudence, 3rd edition. Hamangiu, 2017.
11. Strassman, P. Wells, J. Global Construction Industry. Croom Helm, 1988.
99
ASPECTS REGARDING DIVORCE RECOGNITION BY UNILATERAL
DONATION
Associate Professor PhD Camelia IORDAN – Law Faculty, Titu Maiorescu University
ABSTRACT
This article analyzes the Romanian legislation in the field of the recognition of foreign divorce
judgments pronounced by the unilateral and discretionary will of the husband in the states governed by the
charia law, in the desire to evaluate the understanding and application of foreign standards in Romanian
legislation.
The issue of the recognition of repudiation decisions in Romania exceeds the purely technical
dimension of the high legal issue. The political and sociological foundations of such a controversy, in the context
of immigration and the multiculturalism debate, are the conception of respect for human rights in the relations
between the legal systems affected by different cultural traditions.
Key words: repudiation, talaq, divorce, recognition of foreign judgments
Talaq in the majority of Islamic legal interpretations as the inalienable and exclusive man of marriage
when it sees fit, with or without recourse to justice198
, is still used today in some Islamic states: Algeria,
Morocco, Saudi Arabia or Iran, but not in Tunisia or India (for the Muslim community) where it has recently
been banned.
The means of selling marriage exclusively dependent on the unilateral and discretionary will of the
spouse, the institution of reprisal presents two major vices for states that recognize and respect human rights: on
the one hand it is contrary to the constitutional principle of equality between spouses and on the other hand, is a
permanent source of instability of marriage.
When recourse to a court of law, the judge is required to find the repudiation by means of a report. But
the judge can not carry out any opportunity check and has no power to appreciate the facts. It consistently
decides only on the custody of children and the food pension or on issues related to the education and visitation
of children through a separate decision that is susceptible to review or subject to appeal.
Thus, in Algeria when the husband takes the initiative of breaking the marital relationship by
repudiation199
, the judge who has to try a conciliation can not refuse to recognize the will of the husband even if
the latter has no reason to break the marriage and the consort still wants to continue the marriage. The
pronounced decision is a declarative ruling, remaining in the context of the repudiation of the classical Muslim
law that considers the husband to be the master of the matrimonial bond. This rule is considered implicit in the
marriage contract.
Therefore, the woman is expected to accept this clause, since she agreed to marry200
.
In Morocco, a Family Code was adopted in 2004, which provides that repudiation can only be given in
the presence of the wife, and that the personal status incorporates the possibility of a consolation gift (Art. 52 bis
C.I.C., Morocco) to cover the damage suffered by the woman who was repudiated201
.
In Saudi Arabia, men have a unilateral right to divorce using Talaq without having to provide
justification202
. The divorce operates immediately and the husband is obliged to provide financial support to his
198 De exemplu, în Niger, soțul trebuie să se adreseze Tribunalului Districtual pentru a obține un certificat de repudiere. Le
divorce et la repudiation, Minister de la Justice, Republique du Niger, disponibil pe http://www.justice.gouv.ne/?q=node/93,
din 19.08.2015
199 Rata repudierii unilaterale a evoluat mult în Algeria în decursul timpului. La sfârșitul sec. al XIX –lea varia între 20 și 40
%. René Ricoux, « Mortalité de la première enfance en Algérie », Annales de démographie internationale, fasc. 2, Paris,
Masson éd., 1882, pag. 9-24, citat de Kamel Kateb, La Fin du mariage traditionnel en Algérie? 1876-1998, Paris, Bouchène,
2001, pag. 59. În 1987, a ajuns la 18,8 % și la 16,8 % în 1996. K. Kateb, op. cit., pag. 62 200 Wahba al-Zahîlî, al-Fiqh al-islâmî wa adillatuhu, Damas, Dâr al-fikr, 1re éd., 1984, t. VII, p. 360 201 Le nouveau Code de la famille marocain, rapport etabli par des magistrats français a l’issue d’un voyage d’etude (du 19 au
29 juin 2007) sur l’application de cette legislation, disponibil pe http://jafbase.fr/docMaghreb/EtudeDroitMarocain.pdf din
19.08.2017
100
ex-wife for four months and ten days. But a woman can not get divorce without her husband's consent or can
obtain it if justice shows that she has been ill-treated203
. In practice, it is very difficult for a Saudi woman to get
divorce. If the repudiation was formalized, the father would automatically take custody of her sons older than
seven years and girls over nine years of age204
.
In August 2017, the Supreme Court of India banned divorce by expressly repudiating the woman in the
Muslim community, a decision that strengthens the view of the Indian state. Talaq has been one of the most
discussed topics of Indian society in recent years, addressing major public issues such as freedom of worship and
the limits of state interference in the life of religious minorities. According to the practice of repudiation, which
has been accepted for a long time, it was sufficient for a Muslim to pronounce three times in succession the word
"talaq, talaq, talaq" to repudiate his wife. A group of five judges of the main religions in India - Hinduism,
Islamism, Christianity, Sikhism, and Zoroastrianism - decided that the "triple talaq violates the Qur'an and
Sharia, is not part of religious practices and contravenes constitutional morality," deciding on the
unconstitutionality of this practices205
.
Representing 180 million people, that is, 14% of India's population, Muslims are the first religious
minority in the country. Laity of India, as enshrined in the Constitution of the country, places all religions on an
equal footing. In the recent French doctrine it is stated that Islamic repudiation - this way of marriage according
to the exclusive and unilateral will of the husband is contrary to the principle of equality between spouses, a
principle which is part of the fundamental values of French law.
In the French legal system, the question arises what is the fate of the recognition in France of a
repudiation given abroad under Islamic law?
In this respect, the evolution of French jurisprudence over the last thirty years reveals a strengthening of
the requirements of public order in private international law as a result of oscillating decisions between
recognition and rejection. The evolution of the French law on the recognition of Muslim repudiation can be
reduced to two main stages: in a first stage, which can be called "liberal," the jurisprudence broadly accepted
Muslim repudiation in the French legal order. This laxity was strongly criticized, which led, in the early 1990s,
to a remarkable turning point, so that unilateral repudiation under Islamic law was definitively "repudiated" by
the French Court of Cassation206
.
In fact, the French Court of Cassation has divided between two fundamental principles of any
democratic system, the principle of gender equality and the principle of respect for foreign culture: the Court
chose to prevail over the first principle. The Court of Cassation considered, with the risk of leaching foreign
cultures, that the principle of equality must be of universal value. It is rightly said that a woman whom her
husband can repudiate when he is in the mood is, irrespective of her nationality, a private woman of dignity207
.
In a series of at least five decisions, at the beginning of 2004208
, the First Civil Chamber of the French
Supreme Court refused to recognize the form of talaq as divorce, being contrary to French public order in
general and in particular a violation of the principle of equality between women and men209
. On the other hand,
due to the bilateral agreements signed by France with Morocco and Algeria in the 1980s and 1990s, the judges
gave legal effect to the talaq, provided that he had been given abroad and both spouses testified before the
French courts210
on the divorce settlement.
In Germany, unilateral repudiation is considered a violation of public international private law and as
such is not recognized by German justice211
, so the Frankfurt tribunal212
found that the talaq was arbitrary and at
the same time in contradiction with the provisions of the German Constitution on Gender Equality213
. A recent
202 Jan Michiel Otto, Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in
Past and Present, 2010 pag. 164 203 Idem, pag.163 204 Jan Michiel Otto, op.cit., pag. 163-164 205La justice indienne interdit le divorce express des musulmans, disponibil pe
https://www.letemps.ch/monde/2017/08/22/justice-indienne-interdit-divorce-express-musulmans din data de 17.10.2017 206 P. Wautelet, « La répudiation répudiée », Revue de la Faculté de droit de Liège, 2004, pag. 257 207 M.-C. Najm, Le sort des répudiations musulmanes dans l’ordre juridique français. Droit et idéologie (s), Droit et cultures,
nr. 59/2010, pag. 209-229 208 Cour de cassation, 1ère chambre civile, 17 février 2005, arrêts nn° 01-11.549, 02-11.618, 02-15.766, 02-17.479 et 02-
10.755, Dalloz, 2004, pag. 824 (conclusions F. Cavarroz) et pag. 815 (note P. Courbe), Revue critique de Droit international
privé, 2004, pag. 423 (note P. Hammje) ; RTD civ., 2004, pag. 367 (note J.-P. Marguenaud) ; JCP éd. G., 2004, n° 10128
(note H. Fulchiron); JDI (Clunet), 2004, pag. 1200 (note L. Ganagé). 209 En France, la Cour suprême a condamné la répudiation au motif également qu’elle contrevenait à l’article 5 du septième
Protocole de la Convention européenne des droits de l’Homme (CEDH). 210 R. El-Husseini, Le Droit international privé français et la répudiation islamique, Revue critique de Droit international
privé, Vol. 88, No 3, 1999, pp. 427-68. 211 Articolul 6 de l’EGBGB. A se vedea BayObLG (Tribunal régional supérieur de Bavières) – 3Z BR 66/93. Arrêt du 13
janvier 1994; Décision d’appel, OLG Stuttgart – 1VA 5/86. Arrêt du 11 avril 1987; LJV Baden-Württemberg (Administration
de la Justice du Land de Bade-Wurtemberg) – 346E-325/85. Arrêt du 23 mai 1986. 212. AmtsGericht (Tribunal cantonal). 213 AGFrankfurt/Main – N° 35 F 4153/87. Arrêt du 9 août 1988.
101
case is a judgment pronounced in 1998214
by the Stuttgart Regional Court, where it was ruled that the wife had
no say, talaq violating German public order.
In conclusion, the French and German courts have come to similar conclusions when the limits of
"public order" have been established: the unilateral repudiation of a Muslim wife by her husband is not
recognized as a legitimate form of divorce.
In this context, it is worth mentioning the "attention" of the Romanian legislator in recognizing the
divorce by unilateral denunciation in Article 2601 of the new Civil Code. It was stated that this text of the law
refers to a non-regulated legal institution in Romanian law215
, a legal institution that is obviously a
discriminatory one for the married woman.
Thus, according to art. 2.601 of C.civ. under the marginal name: "Recognition of divorce by unilateral
denunciation" states: "A foreign act establishing the unilateral will of the man to untie marriage without the
applicable foreign law recognizing the woman an equal right can not be recognized in Romania, unless the
following conditions are met cumulatively: a) the act was drawn up in compliance with all the substantive and
formal conditions provided by the applicable foreign law; b) the woman has freely and unequivocally accepted
this way of selling marriage; c) there is no other ground for refusing to recognize on the territory of Romania the
decision by which the dissolution of marriage was approved in this manner".
1. According to classic Muslim law, it is necessary to reiterate, three times in succession, the formula of
repudiation - "talaq, talaq, talaq" - which ends the family life, the will of the husband being found by a cadius216
.
Or, in this sense, the first condition imposed by the Romanian law is, in principle, respected.
2. "The woman has freely and unequivocally accepted this way of selling marriage." This condition
imposed by the Romanian law represents a real contradiction in terms, probably resulting from the lack of
knowledge of the institution of repudiation, because it is very difficult to imagine how, could oppose a wife's
unilateral and discretionary act of marrying her husband, and on the other hand it is very difficult to prove that
she voluntarily accepted divorce.
Recognition of foreign judgments is the act of finding and accepting the effects of a judgment given in
another State217
. However, as stated in the specialized doctrine, the court in the application for recognition has no
jurisdiction to adjudicate on the litigation between the parties, and it can not change the content of the judgment
in any way, even if the solution is manifestly the nature of the recognition procedure being that of a judicial
review of the legality and regularity of the judgment in question218
.
In conclusion, we consider that the second condition imposed by Romanian law is, in principle,
improper with the very subject of recognition.
3. "There is no other reason for refusing to recognize in the territory of Romania the decision by which
the dissolution of marriage was approved in this manner."
Article no. 48 (1) of the Romanian Constitution, but also the Romanian Civil Code in Art. 258 states
that "The family is based on the freely consented marriage between the spouses, on their equality ..."
At the same time, in art. Article 20 (1) of the Basic Law stipulates: "Constitutional provisions on the
rights and freedoms of citizens shall be interpreted and applied in accordance with the Universal Declaration of
Human Rights, with the covenants and other treaties to which Romania is a party." In this situation , in art.
Article 16, paragraph 1, sentence 2 of the Universal Declaration of Human Rights stipulates that man and
woman, without any restriction as to race, nationality or religion, "... have equal rights to marry, during the
marriage and its dissolution. "
Similarly, Protocol 7 of the European Convention on Human Rights provides in Art. 5, sentence 1 that
"Spouses are entitled to equal rights and responsibilities of a civilian nature, between themselves and in their
relations with their children regarding marriage, during the marriage and on the occasion of its dissolution."
In conclusion, this "novator" article of the Civil Code violates the Romanian constitutional principle of
equality between spouses in marriage and disregards the fundamental principle of equality of rights in the
dissolution of marriage, provided for in the Universal Declaration of Human Rights and the European
Convention on Human Rights.
At the same time, if we consider the reasons for refusal to recognize a foreign decision, provided by art.
1096 C.proc.civ., We distinguish among other things:
a) violation of public order of Romanian private international law. One criterion that can determine the
intervention of this means of refusal of recognition offered by Romanian law is the intensity of the link between
the cause and the Roman legal order and the gravity of the effect thus produced. As it is mentioned in the
214 N° 17 VA 6/98 du 3 décembre 1998. 215 C.-P. Buglea, Drept international privat roman – din perspectiva reglementărilor europene aplicate în domeniu şi a
noului Cod civil roman, Ed. Universul Juridic, Bucureşti, 2013, pag. 165 216 Un cadiu (arabe: [qāḍī], « juge ») este un judecător musulman care îndeplinește funcții civile, judiciare și religioase. 217 D. Lupașcu, D. Ungureanu, Drept internațional privat (actualizat în raport de noul Cod civil, noul Cod de procedură
civilă și Regulamentele Uniunii Europene), Ed. Universul Juridic, București, 2012, pag. 309 218 T. Prescure, R. Crișan, Curs de Arbitraj comercial, Ed. Rosetti, București, 2005, pag. 175
102
doctrine, the attentions to the public international private law order by foreign decision may regard procedural,
material and conflictual aspects, the procedural ones being the manifestly contrary to a fair trial. Whether a
"trial" in which the woman - in most cases absent from the judgment of the court - is driven to the simple
discretion of her husband, is questionable?
If the Romanian legislature had considered the French case-law, it would have noticed that the facts
presented to the French courts are almost always the same: the wife, abandoned by her husband, asks the French
judge of domicile to divorce or to condemn her husband to pay a contributions to marriage tasks; the husband is
in a hurry to produce an act of repudiation approved by his country's justice, obtained at the end of a "repudiation
trip" or sometimes even by proxy to a relative living in his country of origin. Thus, in an immigration country,
such as France, but how can Romania be, the conflict of laws can lead to the intrusion of a profoundly
inegalitarian institution, in the application of foreign personal status.
On the other hand, in the Romanian doctrine it is mentioned that if the connection between the two legal
orders is very weak, the refusal to recognize can not be bypassed.
In conclusion, we consider that the Romanian legislator of the Civil Code did not know or did not want
to take into account the issues related to public order of Romanian private international law.
b) avoiding the cause from the incidence of applicable law under Romanian private international law.
Another ground for refusal of recognition relates to judgments given in a matter where persons do not have their
rights freely, decisions obtained solely for the purpose of circumventing the causes of the applicable law under
Romanian private international law. This reason for refusal is intended to prevent the violation of Romanian
public international private law by removing the applicable law. It is stated in the doctrine219
that, as far as
matters in which the parties can not dispose of their rights, this could seriously undermine fundamental human
rights, and the matters in which the parties can not freely dispose of their rights are those the status and capacity
of the person, non-patrimonial personal rights, paternity determination, etc.
Or, under these conditions, the express recognition of repudiation as provided in Art. 2601 of the Civil
Code is in flagrant contradiction with the provisions of art. 1096 par. 1 (b) of the new Code of Civil Procedure,
concerning the freedom of any person to exercise his rights.
c) Another ground for refusal of recognition is the violation of the rights of defense of the person
against whom the foreign judgment is sought, namely the breach of the rights of the defense in the proceedings
before the tribunal.
If the legislator of the Romanian Civil Code understood the institution of the talaq, it would be
remarkable that it does not in any way imply the exercise of the fundamental right of women to defense,
essentially representing strictly an inalienable and exclusive right of the man.
If the lawmaker of the Romanian Civil Code had been curious to analyze the legislation of other
European states - for this institution - he would have known that in France, in order for a foreign judgment to be
recognized and enforced, it must meet five conditions, compliance with the French concept of international
public order.
Repudiation is, by its very nature, contrary to the principle of equality: the discretionary and
discriminatory nature of the institution can not be attenuated by the judge, who simply "discovers" the
repudiation given by the husband or by the woman whose possible opposition no legal effect.
On the other hand, in the doctrine it was also stated that in Romanian law, if the woman accepted the
unilateral termination of marriage, the invocation of public order is not justified, because it has the meaning of a
divorce by the consent of the spouses220
.
However, Muslim repudiation is very different from consensual divorce: the breaking of marriage is
subject only to the will of the husband, it is executed without any substantive condition, simply by the discretion
of the man, confirmed - but not necessarily - by a judge who does not have power of appreciation. None of these
aspects can be compared, it can not be likened to a divorce by the consent of the spouses: the right to divorce
belongs to both the wife and the husband, and the civil status officer, the notary public or the judge have a
relative margin of appreciation to the observance of the substantive and formal conditions for the dissolution of
marriage.
At best, we consider that such a repudiation could be recognized only if a Muslim woman would
request the Romanian courts to recognize the cadet judgment, a hypothesis that could be compared to a
consensual divorce.
Of course, in the field of private international law, we must always bear in mind the tension between
two imperatives: one on the protection of the cohesion and the values of the law (in this case the Romanian law)
on the one hand, and on the other, the promotion of international harmony solutions. On strictly ideological
ground, the most important aspect is the conception we have of respecting human rights in the relations between
legal systems affected by different cultural traditions.
219 Fl. G. Păncescu, Noul Cod de procedură civilă. Comentariu pe articole. Vol. II. Art.527-1133, Ed. Hamangiu, București,
2013, pag.738-739 220 I. Macovei, Drept internaţional privat – în reglementarea noului Cod civil şi de procedură civilă, Ed. C.H. Beck,
Bucureşti, 2011, pag. 235
103
The problem of the recognition of repudiation in Romania goes beyond the purely technical dimension
of the high legal issue. The political and sociological foundations of such a controversy, in the context of
immigration and multiculturalism, have direct repercussions on the integration of Muslim women living in
Romania.
Of course, the recognition of a State's judgments by another State is in the best interest of the spouses,
and if recognition of the foreign divorce decree does not occur, fraudulent situations may arise only because the
previous divorce decree was not recognized in the state in which a person has completed a new marriage.
However, we consider that the provisions of Art. 2601 of the Civil Code:
- Transmit a message to spouses tempted by a quick repudiation abroad, indicating that this approach
will have effect in Romania. For example, in France: during a vacation abroad, a Saudis communicated with his
wife through MSN Messenger221
. During one of her conversations, the couple is arguing and her husband
decides to pronounce "talaq": he repudiates his wife under charia law and having already pronounced "talaq" in
the past, the couple is divorced today. But divorce by SMS or by email also took place in the Netherlands.
Shaykh Amer, a professor at the Islamic University of Rotterdam, Charia law specialist, has recently witnessed
two cases of lightning divorce.
- regardless of the situation, the court will now be required to oppose the principle of equality of
spouses. Romanian courts are responsible, for women under their jurisdiction, for respecting fundamental rights.
Under the pretext of personal status, a distinction is drawn between two categories of women living in Romania:
those who are equal to men and those who are maintained in an unequal status, under the guise of respecting the
status of origin.
- violates public order of Romanian private international law222
.
We believe that the Romanian legislator should understand that the protection afforded by public policy
must bring benefits to any woman whose national law or residence law allows for repudiation in order not to
reach a politically correct situation of recognizing, a not too distant future, polygamy or disinclination of stoning,
a punishment that is still applied in Europe by people of Muslim religion.
The case of France illustrates the difficulties that arise in the motivation of lawmaking when
encountering antinomies223
. On the path to a much more straightforward solution, we should be guided by the
voice of the philosopher who formulates so well the fundamental law of universal legality: "Act so that the
maximum of your will can serve at the same time as the principle of general regulation224
".
Bibliography
1. Le divorce et la repudiation, Minister de la Justice, Republique du Niger, disponibil pe
http://www.justice.gouv.ne/?q=node/93
2. René Ricoux, « Mortalité de la première enfance en Algérie », Annales de démographie internationale,
fasc. 2, Paris, Masson éd., 1882, pag. 9-24, citat de Kamel Kateb, La Fin du mariage traditionnel en
Algérie? 1876-1998, Paris, Bouchène, 2001
3. Wahba al-Zahîlî, al-Fiqh al-islâmî wa adillatuhu, Damas, Dâr al-fikr, 1re
éd., 1984, t. VII
4. Le nouveau Code de la famille marocain, rapport etabli par des magistrats français a l’issue d’un
voyage d’etude (du 19 au 29 juin 2007) sur l’application de cette legislation, disponibil pe
http://jafbase.fr/docMaghreb/EtudeDroitMarocain.pdf
5. Jan Michiel Otto, Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve
Muslim Countries in Past and Present, 2010
6. La justice indienne interdit le divorce express des musulmans, disponibil pe
https://www.letemps.ch/monde/2017/08/22/justice-indienne-interdit-divorce-express-musulmans
7. P. Wautelet, « La répudiation répudiée », Revue de la Faculté de droit de Liège, 2004
221Les musulmans découvrent le divorce éclair via SMS, Mardi, février 16, 2010, disponibil pe
https://wazaonline.com/fr/archive/les-musulmans-decouvrent-le-divorce-eclair-via-sms, din data de 17.10.2017
222Ibidem 223 În 2004, în cazul lui Ghofrane Haddaoui, doi minori au fost condamnați la Marsillia, pentru uciderea acesteia cu pietre.
Ghofrane acceptase inițial o excursie cu unul dintre cei doi minori condamnați, dar s-a răzgândit și a spus că are un prieten cu
care trebuia să se căsătorească, ceea ce l-ar fi înfuriat pe unul dintre atacatori. Victima a fost descoperită cu craniul zdrobit de
30 delovituri cu pietre. « Le meurtre de Ghofrane devant les assises des Bouches-du-Rhône » [archive], Le Nouvel
Observateur, 10 avril 2007 224 E. KANT, Critique de la raison pratique, Paris, PUF, 4e éd. 1993, pag.30
104
8. M.-C. Najm, Le sort des répudiations musulmanes dans l’ordre juridique français. Droit et idéologie
(s), Droit et cultures, nr. 59/2010
9. Revue critique de Droit international privé, 2004
10. R. El-Husseini, Le Droit international privé français et la répudiation islamique, Revue critique de
Droit international privé, Vol. 88, No 3, 1999
11. C.-P. Buglea, Drept international privat roman – din perspectiva reglementărilor europene aplicate în
domeniu şi a noului Cod civil roman, Ed. Universul Juridic, Bucureşti, 2013
12. D. Lupașcu, D. Ungureanu, Drept internațional privat (actualizat în raport de noul Cod civil, noul Cod
de procedură civilă și Regulamentele Uniunii Europene), Ed. Universul Juridic, București, 2012
13. T. Prescure, R. Crișan, Curs de Arbitraj comercial, Ed. Rosetti, București, 2005
14. Fl. G. Păncescu, Noul Cod de procedură civilă. Comentariu pe articole. Vol. II. Art.527-1133, Ed.
Hamangiu, București, 2013
15. I. Macovei, Drept internaţional privat – în reglementarea noului Cod civil şi de procedură civilă, Ed.
C.H. Beck, Bucureşti, 2011
16. Les musulmans découvrent le divorce éclair via SMS, Mardi, février 16, 2010, disponibil pe
https://wazaonline.com/fr/archive/les-musulmans-decouvrent-le-divorce-eclair-via-sms
17. E. KANT, Critique de la raison pratique, Paris, PUF, 4e éd. 1993
105
CONSIDERATIONS ON PRECIPICE CLAUSE
Anica MERIŞESCU, associate professor (docent), Faculty of Law and Economic Sciences Tg Jiu, Titu
Maiorescu University of Bucharest
Abstract
The current Civil Code has imported from the French law the precipice clause, a legal institution that is not
a legislative novelty, the 1864 Civil Code regulating "donations made to spouses through the marriage
contract". Even if, as we have shown above, we can not claim that the institution is a novelty, the theory of the
precipice clause has sparked many controversies which mainly aimed at establishing its legal nature and
shaping the applicable legal regime
In the present study we propose to deal with the relevant aspects regarding the theoretical and practical
contouring of the precipitation clause.
Key words
Precipitation clause, institution, legal nature, authentic act, sharing agreement, matrimonial convention,
contract.
Introduction
The precipice clause appears as a legal means through which the contractual establishment of heirs was
made, designating a universal successor institution with the universal title made by contract, which explains the
name of a contractual institution. From this point of view, the precipice clause is the most important exception to
the principle prohibiting the covenants of an unopened succession. 225
The origin of the institution is as we have shown above French law, where the clause regains its essence
through marriage contracts that could encompass any kind of agreement of will. The precursor has a mixed
nature, being a donation contract, but also a way to succeed in opening the clause and the mode of delivery of the
goods. Under French law, the contractual establishment was considered to be a donation of present goods, which
was also definitive for the future goods, and could be characterized as a cumulative donation of present and
future goods.
The notion and regulation of the precipice clause
The precipice clause is a legal act concluded by spouses or prospective spouses in a matrimonial convention
as to the possibility that, in the event of the death of one of the spouses, the surviving spouse may take over one
or more of the common property held in detention or in co-ownership, prior to the division of the inheritance and
without the obligation to pay their counterfeit. The regulation of the institution is found in art. 333 par. (1) of the
New Civil Code, French inspirational text, according to which: "By matrimonial convention it may be stipulated
that the surviving spouse shall take over unpaid, before the division of the inheritance, one or more of the assets
held in deed or co-ownership . The clause of the precipice may be stipulated for the benefit of either spouse or
only in favor of one of them. '' The essential features of the clause clause by reference to the legal provisions
consist of the following: it may be stipulated for the benefit of both spouses or only one of them , is not subject
to the donation report, but only to the reduction, is without prejudice to the right of the joint creditors to pursue
the goods subject to the clause, even before the community ceases, the clause is executed in kind or, if that is not
possible, of the community's net asset, and the clause becomes obsolete if the community ceases in the spouse's
life if the beneficiary's husband has died before the dispensing spouse or if the goods have been executed by the
joint creditors of the spouses.
The legal nature of the precipice clause
The operation of establishing the legal nature of the precipitation clause presupposes a profound analysis of
the legal provisions and the elements of legal logic, the legal nature of the precipitation clause being placed in
the literature between the two types of liberties recognized in Romanian civil law: the donation and the will.
As part of the subject matter of the matrimonial convention if it opts for the conventional community, the
sloppy clause is itself a convention of the parties. of their future spouses, if they end before marriage, or
husbands, in the event of a change in their marital status after the marriage. Conventional character excludes the
variant of the act unilaterally, even when the clause is stipulated only in favor of one of the spouses, and not both
of them. As a convention included in the matrimonial convention, the precipice clause is ancillary to the
225
M. Cantacuzino, Elements of Civil Law, All Publishing House, Restitutio, Bucharest, 1998, p. 381.
106
matrimonial convention representing a true charter of family heritage.226
The precipice clause is however
compatible with the matrimonial convention by which husbands or future spouses opted for the separation of
goods, because although it is expressly provided only as part of the object of the matrimonial convention
concluded for the adoption of the regime of the conventional community and the regime of separation of goods
by matrimonial convention.
It is difficult to qualify the slump clause as a liberality. However, it is considered that another qualification
would not be possible as Article 333 (1) The Civil Code establishes that the surviving spouse can take over one
or more goods free of charge before the division of the inheritance, and as an unpaid takeover of goods can only
be a free takeover, it is concluded that the clause precipice is a liberality. The rationale of the precipice clause
consists of the legislator's desire to provide the surviving spouse with a matrimonial comfort similar to that he
had during marriage, by virtue of affective ties between husbands. Also, the Civil Code states that liberties can
only be made through donation or binding in the will, the imperative provisions of the law requiring the framing
clause to be classified either in the donation category or in the category of the bond.
The choice of the legislator who considered it necessary to provide the surviving spouse with regard to the
taking over of certain goods before the division of the inheritance, regulating the institution of the precipitation
clause, must be analyzed by reference to the French doctrine, which states the double nature of the precipitation
clause donation and tying, depending on its dominant features, but also as the matrimonial convention containing
the clause clause is concluded by future spouses or by spouses during marriage.
Like the donation, the precipice clause is a bilateral act, a convention concluded between living things that is
subject to authentic form. Among the most important resemblances to the legal institution of donation should be
highlighted the following aspects: the precipice clause is a legal act free of charge and translative of property,
which has the effect of increasing the patrimony of one of the spouses without a counterpart; both the donation
contract and the slump clause are legal acts of mood, which means that it is concluded in compliance with the
special provisions on exercise capacity; the donation as well as the precipitation clause is affected by the
suspensive condition of the donor's death, being ineffective in the event that both parties die at the same time;
irrevocability governs both the donation and the cloud clause; donations made to future spouses or to one of
them for marriage are impaired if the marriage no longer takes place; both institutions may be subject to the
reduction in so far as they affect the succession rights of retired heirs.
The similarity between the donation contract and the precipitation clause is given by the fact that both bring
together the two elements specific to liberalities: the subjective element, which is the cause, the intent to gratify,
and the objective element which implies a reduction of the possessor's patrimony correlative to a increase of
gratificate patrimony.
The precipitation clause can not be confused with the donation, with the two institutions being able to
observe a series of differences with a great impact on the legal nature of the precipitation clause. Unlike
donation, which is a principal legal act with a self-contained and independent existence, the clause clause has an
accessory character to the matrimonial convention, its fate depending on the fate of the main act. And the clause
clause must comply with the rules of form expressly provided by law, while the donation may also exist outside
of these formalities. As authentic acts they must be subject to registration in the notarial national registers, but
the donation is registered in the National Notarial Record of Liberal Records, while the precipice clause is
registered in the Notarial National Register of Matrimonial Regimes. We can also distinguish between the
formalities of the two acts: the movable goods that are the object of the donation must be enumerated and
evaluated in a document, even under private signature, under the sanction of absolute nullity of the donation, a
requirement not is found in the matter of the precipice clause. Under the subject matter, the clause may cover
common goods held in co-ownership, while the donation contract may only concern the donor's own assets. In
the case of a donation agreement, the parties are always determined at the conclusion of the contract, while in the
case of the collapse clause the person of the beneficiary is only determinable. Not knowing the beneficiary's
husband at the end of the wilderness clause is an element that can not be found in the donation. Unlike the
donation, which produces its effects from the date of conclusion of the contract, the effectiveness of the clause
clause is conditioned by the death of one of the spouses, the effects of the clause being delayed to this point.
Donation is a unilateral contract which, in principle, only gives rise to obligations on the donor, the donor having
only a moral duty of gratitude, not a contract. Ingratitude is a legal cause to revoke the donation. In the matter of
the precipice clause there is no such cause of revocation, this clause being, by its very nature, irrevocable. The
precipice clause is a will-living agreement that produces effects for death. Thus, as a legal act with effects after
death, the clause of the precipice presents a series of similarities with the particular bond: both are solemn acts
concluded in the required form, under sanction of absolute nullity; both are subject to registration in the Notarial
National Registers and, depending on the nature of the goods, in the Land Book.
C.M. Nicolescu in the Work of the Wailing Clause in the Regulation of the New Civil Code. The
comparative approach (published in the Romanian Private Law Gazette, No. 6/2011, page 142) states that: "The
right to ties is born in the person of the legatee at the date of the inheritance, in the absence of any manifestation
226
M. Avram, Drept Civil. Familia, Ed. Hamangiu, Bucureşti, 2013, p.178;
107
of will and exclusively on the basis of the testament . The tester remains the owner of the goods that form the
object of the links, and the legatees do not acquire any right over these goods during the testator's life. Similarly,
the surviving spouse's right to survive is born on the date of the inheritance. Until this time, the beneficiary
husband has no right to the overwhelming property, being a co-owner of the property with his husband.”227
Both tying and precipitation clauses are legal acts of mood - which requires the observance of the special
provisions regarding the exercise capacity, they take effect from the date of the death of the possessor and may
be subject to the reduction to the extent that they affect the inheritance rights of the reserved heirs. As in the case
of the precipitation clause, bound is struck by caducity in the case of the predecessor of the liaison. The
legislator's choice to allow a contractual relationship to be opened opens up the literature to the possibility of
classifying the sloppy clause as a privately-bound contract, but it can not be ignored that the tying is a unilateral
legal act, the simple manifestation of the will of the testator being sufficient to operate the transmission of the
goods to his death, accepting the gratification not only to strengthen the succession transmission. Thus, the
validity and effects of the will do not depend on its acceptance or subsequent acceptance by the legatees, for the
two acts are distinct: they manifest at different times and do not together achieve a single will. The mediated
goal of the precipice clause is to circumvent the shared mass of certain common goods held in co-ownership.
The immediate effect of the clause is the birth of the right to the wounded to the benefit of the surviving spouse,
the surviving spouse's right is born on the basis of the spouses'.
The clause clause can not be revoked or tacitly amended, Article 336 of the NCC imposes the authentic form
under the sanction of absolute nullity, while the revocation of the link may be express or tacit. The tacit
revocation can be achieved by destroying, breaking or deleting the will. The subsequent will may revoke the
previous one and, to the extent that it contains provisions contrary to or incompatible with it. Also, any
estrangement of the property that is the subject of a private tied, testamentary consent, even if it is affected by
modalities, implicitly revokes the tyrant for everything that has happened, the alienation of the good of bondage
being another form of tacit revocation. From what has been shown above, it is concluded that the precipice
clause is not a classic bound, although it produces effects for the cause of death, just as it does not represent a
classical donation, although it is a liberality concluded between you and the conventional. The doctrine has
largely appreciated that this institution represents a liberality that lends to the features of the ties, which
contradicts the provisions of the new Civil Code, which expressly and expressly stipulate that liberties can only
be done by donation or bound in the will . The will of the spouses would make it inappropriate to qualify the
slum clause as a liberality. According to Article 333 (1) Civil Code, the surviving spouse can take possession of
detained or co-owned property before the division of the inheritance. So the precipice clause takes effect only
after the death of one of the spouses, born by the will of the surviving spouse. Even if it is accepted that both
clauses concern the liquidation of the matrimonial regime, the most important differences between the two
institutions lie mainly in the fact that the beneficiary husband is not known at the time when the clause is
stipulated in the matrimonial convention, being essentially determinable. The beneficiary of the unequal sharing
clause is the surviving spouse but the clause may also be provided for the benefit of one spouse without the
survival of the other or for the benefit of the heir of the designated spouse beneficiary. ,, By altering the rights of
co-owners, the unequal sharing clause reshapes their abstract vocation.”228
Also, in the doctrine, the character of
the slum clause clause was affected by a suspensive condition with mortis causa effects 229
. The slump clause as
a divorce agreement would explain the translational property of the property that is the subject of this clause, but
with effect from the date of termination of the marriage by the death of one of the spouses, and may concern
only property of common property, and not and exclusive property of one of the spouses, but without taking into
account the intention to gratify, the clause of the precipice.
CONCLUSIONS
We appreciate that the legal nature of the clause clause, as a topic of great practical and doctrinal interest,
requires the intervention of the legislature to end the doctrinal controversies and to unify not only the views
expressed in the literature, but also the practice created around this legislative innovation.
Studying the doctrinal views we observe that the doctrine approached the problem of the precipice clause
with prudence, famous authors trying to analyze the legal nature of the precipitation clause by reference to the
closest institutions to which they have similar features. Theories that have expressed in doctrine about the legal
nature of the precipitation clause by reference to the closest institutions to which they have similar features.
227
C. M. Nicolescu , Closure clause in the regulation of the new Civil Code. Comparative approach, published in
the Romanian Journal of Private Law, no. 6/2011, page 142. 228
D. Lupaşcu, C. M. Crăciunescu, Family Law, Ed. Universul Juridic, 2012, p. 150. 229
I.Popa, Civil law. Heritage and Liberties, Ed. Universul Juridic, Bucharest, 2013, p.243.
108
BIBLIOGRAPHY
1. Avram M. Civil law. Familia, Hamangiu Publishing House, Bucharest, 2013, p.178;
2. Banciu A.A. , Patrimonial relations between spouses according to the new Civil Code, Hamangiu
Publishing House, Bucharest, 2011, p.146;
3. Boroi G., Stănciulescu L., Civil Law Institutions in the Regulation of the New Civil Code, Hamangiu
Publishing House, Bucharest, 2012, p.405.
4. Chirică Dan, Liberalities as a species of legal acts, "Romanian Journal of Private Law", no. 4/2008,
p.22.
5. Civil Code
6. Lupaşcu D., C. M. Crăciunescu, Family Law, Universul Juridic Publishing House, 2012, p. 150.
7. Nicolescu C.M., Closure clause in the regulation of the new Civil Code. Comparative approach,
published in the Romanian Journal of Private Law, no. 6/2011, page 142.
109
THE FEATURES OF INFORMING PSYCHIATRIC PATIENTS
Șef de lucrări Dr. Ana-Maria MIHĂLCESCU
Profesor Universitar Dr. Lidia NICA-UDANGIU
Abstract
The patient’s right to refuse any investigation or medical treatment implies respecting the patient’s
right to being fully and correctly medically informed. However, there are cases where these rights, which are
fundamental to the concept of the patient’s autonomy, are restricted due to the nature of the disorder.
Psychiatric disorders represent a notable exception to these principles when the mental capacity of the patient is
affected. The Mental Health and Protection of People with Mental Disorders Law Act no. 487/2002 represents
the judicial setting in which these restrictions make place for the more traditional paternalism.
Key words: right to being medically informed, psychiatric patient, patient’s autonomy, paternalism.
1. Paternalism and the Patient’s Autonomy
The practice of modern day medicine is based on respecting the principle of the patient’s autonomy, or
the principle of self-determination. The paternalistic approach, despite it’s tradition, is reserved only for
exceptional situations. The principle of the patient’s autonomy is however inconceivable without a full and
correct medical information. In the past the doctors were not informing their patients about their wellbeing, the
nature of the problem, the treatment and the risks involved with it, with the Hippocrates’ oath imposing the idea
that it is in the nature of the medical profession that the doctor takes on his own the best decisions on behalf of
the patient. Like we have previously shown, applications of this paternalistic concept can also be found in the
present in some exceptional cases, such as is the practice of psychiatry. Apart for these exceptions the rule is to
respect the principle of the patient’s autonomy, which in turn upholds a negative right, the patient’s right to
refuse a certain intervention, investigation or treatment, no matter the medical consequences of the denial.
2. The Patient’s Right to being Medically Informed
Given the consequences of the practical application of the principle of the patient’s autonomy, it is
obvious that it is starting from the premise that the patient is fully and correctly medically informed, which needs
to be done by the doctor. The duty to inform is not one of diligence, but of result, in the sense that the doctor not
only has the duty to inform the patient, but also to ensure that the patient fully understands it, so that the patient
can make a decision regarding his treatment, including refusing any treatment altogether. The matter of
informing the patient therefore has an overwhelming importance because in the absence of a proper
understanding, the consent of both the acceptance and the refusal of treatment can be disputed under the aspect
of validity, no matter the way in which they were made.
In the current legislation, the patient’s right to being medically informed is regulated by the Law Act
no. 46/2003 regarding the patient’s rights. Included in its content is the right to take notice of his health
condition, the prognosis with or without treatment, the risks involved, alternative treatments, as well as any other
relevant element in making a decision regarding consent.
The content of the right to being medically informed includes the right to a second medical opinion, the
right to access to one’s medical file, as well as the right to receive a medical report including the investigation
results, the diagnosis and the treatment that has been applied. The patient has the right to refuse being medically
informed, and also the right to appoint a guardian to be informed on his behalf.
3. Medical Informing in the Mental Health and Protection of People with Mental Disorders Law Act no.
487/2002
In the case of psychiatric patients the right to being medically informed, regulated by the 46/2003 Law
Act regarding the patient’s rights, sees some exceptions which are the reasons for the 487/2002 Law Act
regarding mental health and the protection of people with mental disorders. Essentially this Law Act has two
hypotheses: the state of a person suffering from a mental disorder that does not affect their sense of judgement,
and the state of a person suffering from a mental disorder that does affect their sense of judgement, not having
the mental capacity to appreciate the content and consequences of the acceptance or refusal of treatment, so,
therefore the principle of the patient’s autonomy would not be applicable.
The patients with full mental capacity and a preserved mental state are regulated by the 46/2003 Law
Act. A feature of this is the right of a patient with full mental capacity and a preserved mental state to appoint a
guardian with full mental capacity to assist or represent them during the medical treatment. It is mandatory that
the patient is informed of this right especially in the case of psychiatric patients because the right to assign a
representative is based on the Methodological Norms for the application of Mental Health Act and the Protection
of Persons with Mental Illness published in MNOF Part One no. 340/04.05.2016. The conventional
110
representation of a patient with a preserved mental capacity is comprised of assisting and representing the patient
regarding their hospitalization and medical treatment. In order to express consent regarding the application of
electroconvulsive therapy a request must be made, separate from the general representation during
hospitalization and treatment.
A second hypothesis focuses on psychiatric patients lacking mental capacity, respectively those lacking
a sense of judgement which is necessary to the understanding of the consequences of exercising the rights
deriving from the patient’s autonomy, respectively the right to refuse medical treatment or hospitalization. These
people exercise their right through a legal representative or an appointed guardian, with them being the
ones that receive the medical information and make the decision regarding the treatment. According to the
487/2002 Law Act and the methodological norms the appointment of a guardian for the duration of the treatment
can only be made by a patient with full mental capacity and a preserved mental state, therefore this is not
possible in the case of a patient lacking mental capacity and a preserved mental state.
Apart from these general rules regarding the method of providing medical information and obtaining
the consent for treatment there are other exceptional legal stipulations regarding the evaluation of the mental
health, non-voluntary hospitalization and the interruption of medical treatment.
The evaluation of the mental health of the patient with the purpose of forming a psychiatric diagnosis, if
appropriate, can only be made based on the informed consent of the patient and, respectively, of his appointed
guardian. The mental health evaluation is done also at the voluntary or non-voluntary hospitalization of the
patient.
If, following the evaluation, a mental disorder is diagnosed, the doctor has the duty to inform the patient
and also their legal representative or appointed guardian. If the non-voluntary hospitalization was requested by
an authority, the authority has the right to request information regarding the diagnosis. Regarding the medical act
and respecting the patient’s right to being medically informed, only the informing of the patient and their
guardian is relevant.
The diagnosis of a mental disorder imposes on the doctor the legal duty to form a therapeutic
programme, which in its turn needs to be informed to the patient and its representative.
Regarding the patient’s right to a second medical opinion, right established by the 64/2003 Law Act
regarding the patient’s rights, we observe that this right is not expressly enshrined in the 487/2002 Law Act, just
as the patient’s right to access to his own medical history or the right to receive a medical report upon discharge
are not expressly enshrined.
The 487/2002 Law Act, updated because of the changes brought up by the 129/2012 Law Act, speaks
only about the patient’s or his guardian’s possibility to challenge the medical evaluation’s results, to request and
obtain its reevaluation. Since the law does not provide how the reevaluation has to be done, we consider that it
should be done by another psychiatrist. We also consider that the right to a second medical opinion still exists on
the basis of the law regarding the patient’s rights, as well as the right to access one’s medical record and the right
to receive a medical report upon discharge from the hospital. We have reached this conclusion because these
rights are not expressly removed by the changes brought by the 129/2012 Law Act regarding the change and
completion of the Mental Health and Protection of People with Mental Disorders no. 487/2002 Law Act. There
is just one limitation to the right to access one’s medical record which is provided by the 487/2002 Law Act,
regarding the situation when the patient’s doctor or the head of the medical department decides that the
disclosure of the medical file could be harmful to the mental and psychiatric health of the patient.
Another exceptional situation concerns the hypothesis in which the doctor takes a therapeutic decision
when the law expressly allows him to apply the paternalistic principle. In this case the doctor will inform the
patient as well as his legal representative or appointed guardian, and he will log his therapeutic decision in the
patient’s medical record. The doctor is entitled to do the same when the patient revokes his consent to treatment
and the doctor appreciates that the stoppage of treatment would put the patient or other people in danger. In this
situation the doctor could continue the treatment during a period which is absolutely necessary to prevent this
danger and he will bring up this decision to the special committee of the psychiatric hospital, special committee
which is formed on the basis of Section 61 of the Act. Another situation when the doctor is allowed to begin the
psychiatric treatment without informing the patient and without his consent are the psychiatric emergencies. The
psychiatric emergencies are exhaustively enumerated in Section 15 of the application norms of the 487/2002
Law Act. In those cases, even without consent, the psychiatric doctor is entitled to take measures of diagnosis
and treatment for a limited period in order to solve the psychiatric emergency, and he will notify these cases to
the committee.
4. Conclusions
The 487/2002 Law Act regarding mental health and the protection of people with mental disorders, with
the modifications and completion made by the 129/2012 Law Act, establishes a genuine derogatory regime from
the general regime of medical informing established by the 46/2003 Rights of Patient Law Act. It is too much to
say that the psychiatric patient is not informed about his disorder in some cases, but it is true to claim that the
paternalistic principle can be widely applied in psychiatry in the regime established by the 427/2002 Law Act.
Even though the medical informing is being repeatedly seen in this Law Act as a duty of the doctor and a right of
111
the patient, exercised directly or through a representative, there are numerous exceptions from the principle of
the patient’s autonomy, implicitly exceptions from the right to being informed. In the literature a lot of criticism
and questions have arisen concerning the use of the paternalistic principle as a basis for the limitation of the
freedom of a person, during the non-voluntary hospitalization. In any case, it is important to point out that any
treatment for psychiatric disorders decided by the doctor on the basis of paternalism should lead to an
improvement of the patient’s health or at least to be able to produce these results. In no circumstance should the
treatment applied by the doctor be inhumane or in any way degrading for the patient.
References:
1. J. K. Mason & G.T. Laurie- Mason & McCall Smith’s Law & Medical Ethics Ninth Edition Oxford
University Press, Ninth Edition, 2013
2. Michel Belanger- Elements de doctrine en droit international de la sante (ecrits: 1981-2011) Les Etudes
Hospitalieres
112
SOME CONSIDERATIONS OF THE INDIVIDUALISATION
OF PENALTIES IN CASE OF GENDER-BASED CRIME
NECULĂIŢĂ Oana, police commissioner, Al. I. Cuza Police Academy, Bucharest; doctorate
student, Academy of Economic Studies, Bucharest
Abstract: Individualising penalties is an operation which allows penalties to be adapted to the need of social
defence. Crime can be manifested in most various ways, revealing different degrees of social danger. In case
that there is a discrepancy and a lack of proportionality between the seriousness of a crime and the penalty
provided by law, or between the danger represented by the offender and the penalty received by the offender, the
purpose of the penalty is no longer attained, and the results may be contrary to it. Under these conditions, for a
penalty to accomplish its functions, it should be adapted to the offender’s needs for improvement, considering
the seriousness of the committed crime, and taking into account the mitigating and the aggravating
circumstances.
1. GENERAL CONSIDERATIONS
The operation of adapting a penalty to the abstract seriousness of the act, to its concrete seriousness
determined by the ensemble of circumstances and data characterising its content in relation to the person of the
offender, as well as the appropriateness of the penalty throughout the period of its execution, with regard to the
execution regime, considering how the convicted person reacts to the conditions of detention, is called the
individualisation of penalty, being an operation which serves to adapt penalties to the needs of social defence.
In the doctrine230
, the individualisation of penalties is rightfully considered a condition for the purpose
of the penalty to be attained, because if an offender receives a penalty that is too severe compared to the
offender’s needs for improvement, the offender will react negatively, while if a dangerous offender is given a
penalty that is too mild, the offender will be implicitly encouraged to commit other offences in the future.
Individualising penalties is an operation accomplished in three different phases, where the first phase
takes place at the time when criminal laws are developed, being called legal individualisation. The second phase
is conducted in the process where a penalty is given by a court of law and is called judicial individualisation,
while the third phase is accomplished through the execution of the penalty, being called administrative or
executional individualisation231
.
With regard to the activity of individualising penalties, the legislator was concerned with the
determination of causes and aggravating and mitigating circumstances of penalties, meaning those situations or
facts which are related to the act and the person of the perpetrator and determine the aggravation or mitigation of
penalties. Therefore, provisions have been made for the general aggravating causes of a penalty (relapsing,
continued offence), the general aggravating circumstances stipulated in Article 77 of the Criminal Code, the
general obligatory mitigating circumstances stipulated in Article 75 para. 1of the Criminal Code (provocation,
exceeding the limits of self-defence and of the condition of necessity) or the mitigating, judicial ones stipulated
in Article 75 para. 2 of the Criminal Code
Judicial or judicatory individualisation represents the second phase of individualisation, which takes
place in the course of the process when the court of law decides on a penalty, in compliance with the special
limits (minimal and maximal) provided by law, and even exceeding those limits in case that aggravation or
mitigation causes are found232
.
Administrative individualisation represents the final phase taking place in the course of the execution
and is accomplished by the administrative bodies responsible for the execution of penalties, according to the
provisions of Law 253/2013 on the execution of penalties, educational measures and other measures that do not
involve the deprivation of liberty ordered by the judicial bodies in the course of the criminal trial233
and to Law
254/2013 on the execution of penalties and measures involving the deprivation of liberty ordered by the judicial
bodies in the course of the criminal trial 234
.
With regard to the general mitigating circumstances, we can see that the Criminal Code stipulates two
categories of mitigating circumstances. The first category is that of obligatory or legal mitigating circumstances,
230
Daneş, Şt., Papadopol, V., Individualizarea judiciară a pedepselor (Judicial Individualization of Penalties),
Editura juridică, Bucharest, 1985, p. 66 231
Zolyneac, M., Drept penal. Parte generală (Criminal Law. The General Part), volume III, Editura Fundaţiei
,,Chemarea” Iaşi, 1992, p. 893 232
Ristea, I., Regimul circumstanţelor în dreptul penal român (The Regime of Circumstances in Romanian
Criminal Law), C. H. Beck, Bucharest, 2009, p. 50 233
Published in Monitorul Oficial no. 513 of 14 August 2013 234
Published in Monitorul Oficial no. 514 of 14 August 2013
113
provided in a limitative way in Article 75 para. 1 of the Criminal Code, and if these circumstances are found by
the court, they are obligatorily taken into consideration producing the effects provided by law, while in the
content of Article 75 para. 2 of the Criminal Code, the legislator provided the judicial mitigating circumstances.
The aggravating circumstances have been included in the provisions of Article 77 of the Criminal
Code, the legislator indicating them in a strict and limitative way, as follows: the act was committed by three or
more individuals together; the crime was committed with cruelty or the victim was subjected to degrading
treatments; the crime was committed through methods or by means which are such as to endanger other people
or goods; the crime was committed by an offender of major age, if committed together with a minor; the crime
was committed by taking advantage of the obvious vulnerability of the aggrieved party due to age, health
condition, disability or other causes; the crime was committed by a perpetrator who was in a condition of
voluntary alcohol intoxication or intoxication with other psychoactive substances, when it was induced for the
purpose of committing the crime; the crime was committed by a person who took advantage of a situation
caused by a calamity, curfew or an emergency situation; the crime was committed for grounds connected with
race, nationality, ethnicity, language, religion, gender, sexual orientation, political opinion or membership,
wealth, social origin, age, disability, non-contagious chronic disease or AIDS/HIV infection, or for similar
circumstances, considered by the perpetrator as causes of the inferiority of a person in relation to other people.
If we analyse the content of the aggravating circumstance provided by Article 77 letter h) of the
Criminal Code, we can see that this circumstance is applied in the context of a necessary individualisation of
penalties every time the perpetrator commits a crime with a specific motive.
This is a legal aggravating circumstance also in the content of Article 22 of the Spanish Criminal.
Formulations close to the Romanian criminal law are also in the Danish Criminal Code (the perpetrator has a
case history related to ethnic origins, faith, sexual orientation or other similar situations); in the Portuguese
Criminal Code (the perpetrator committed the act being motivated by racial, religious or political hatred); in the
Austrian Criminal Code (the perpetrator acted for racist, xenophobic or reprehensible grounds); in the Swedish
Criminal Code (if the purpose of the crime was to insult a person, an ethnic group or other group of people for
racial, colour, nationality, origin grounds or other similar considerations); in the Criminal Code of the Russian
Federation (the crime was committed for racial, religious, nationality grounds)235
.
In order to fight discrimination, inclusively by the means of criminal law, the Government adopted the
Government Decree no. 137/2000 on the prevention and sanction of all forms of discrimination, republished236
.
Although the text of the law indicates these forms in a limitative way, we are going to analyse the circumstance
referring to the commission of a crime for a reason related to gender and, in this context, we are going to take
into consideration the explanation set out by the legislator in the content of Article 2 of the Government Decree
no. 137/2000 with regard to the phrase “discrimination” as being “any differentiation, exclusion, restriction or
preferences, based on (…) gender, (…), the purpose or the effect of which is to restrict, remove the recognition,
the use or the exercise, in conditions of equality, of human rights and fundamental freedoms or of rights
recognised by law in the political, economic, social and cultural fields or any other fields of public life”.
Although it has, in principle, a personal characteristic, the aggravating circumstance stipulated by
Article 77 letter h) (the crime was committed for grounds connected with race, nationality, ethnicity, language,
religion, gender, sexual orientation, political opinion or membership, wealth, social origin, age, disability, non-
contagious chronic disease or AIDS/HIV infection, or for similar circumstances, considered by the perpetrator as
causes of the inferiority of a person in relation to other people), therefore also in case that the crime is found to
have been committed for grounds related to gender, may convert into a real circumstance, which reflects on
the participants who became aware of the perpetrator’s motive and nevertheless continued to cooperate with him.
According to the doctrine237
, discrimination may be an element of the crime [for example, the abuse of
duty provided in Article 297 para. 2 of the Criminal Code or the incitement to hate and discrimination, provided
in Article 369of the Criminal Code], and in this case it cannot be also a legal general aggravating circumstance.
235
Ristea, I., Regimul circumstanţelor în dreptul penal român (The Regime of Circumstances in Romanian
Criminal Law), Bucharest, p. 127 236
Published in Monitorul Oficial no. 166 of 7 March 2014. According to the provisions of Article 2 of the
Government Decree no. 137/2000 on the prevention and sanction of all forms of discrimination,
“discrimination” means any differentiation, exclusion, restriction or preferences, based on race, nationality,
ethnicity, language, religion, special category, beliefs, gender, sexual orientation, age, disability, non-
contagious chronic disease, HIV infection, belonging to a disadvantaged category, as well as any other
criteria, the purpose or effect of which is to restrict, remove the recognition, the use or the exercise, in
conditions of equality, of human rights and fundamental freedoms or of rights recognised by law in the
political, economic, social and cultural fields or any other fields of public life. 237
Boroi, A., Drept penal. Partea generală. Conform Noului Cod penal (Criminal Law. The General Part.
According to the New Criminal Code), C. H. Beck, Bucharest, 2014, p. 595.
114
2. THE EVOLUTION OF LEGAL INSTRUMENTS WITH REGARD TO THE CONCEPT OF EQUAL
OPPORTUNITIES AND EQUAL TREATMENT OF WOMEN AND MEN
The regulations concerned with equal opportunities and the equal treatment of men and women began
to be used more and more at the beginning of the 20th
century, and that is why we are going to mention a few of
them. Therefore, after 1958, the International Labour Organisation adopted two important Conventions:
- Convention 100 on Equal Remuneration, which sets a few principles regarding the equal remuneration
of men and women for work of equal value;
- Convention 111 concerning Discrimination in Respect of Employment and Occupation, with which it
committed to formulate and apply a national policy based on the equality of treatment in employment matters,
for the purpose of eliminating discrimination using methods adapted to national circumstances and customs.
Equal opportunities and the equal treatment of women and men are also found in the Treaty of the
European Union (the Maastricht Treaty that entered into force in 1993), in the secondary legislation – the EU
directives concerning the equality between women and men – complemented by the jurisprudence of the
European Court of Justice in Luxembourg (now the Court of Justice of the European Union), which has played
an important role in promoting the equality between men and women.
With the entry into force of the Amsterdam Treaty (1999), the European Union decisively committed to
promoting the equality between men and women and integrating gender equality at all levels and in all its
activities.
As a matter of fact, the Strategy for equality between women and men 2010-2015 is the work
programme of the European Commission for the equality of women and men and its purpose is also to foster
evolutions at national level and to provide a basis for cooperation with other European institutions and with the
stakeholders in this area. The strategy identified some actions targeted at: economic independence; equal pay for
equal work and work of equal value; equality in decision-making; dignity, integrity and an end to gender-based
violence.
In Romania, in terms of the domestic norms in force, we can say that equal opportunities for men and
women have seen a significant evolution after 1989, as an expression of both the modernisation of Romanian
society as a whole, and of efforts to connect the national legislation with the European one.
To that effect, we mention the Constitution, which with its dispositions asserts and guarantees the equal
rights of all its citizens238
. Moreover, the dispositions of Law 202/2002 on equal opportunities and equal
treatment of women and men239
bring under regulation the measures intended to promote equal opportunities and
equal treatment of women and men, in order to eliminate all forms of gender-based discrimination, in all areas of
public life in Romania; they forbid direct and indirect discrimination on gender grounds in areas like
employment, education, health, culture and information, participation in decision-making; they establish
procedures for solving claims or complaints involving discrimination and designate the public authorities that are
responsible for implementing the law, in accordance with both the international documents in which Romania is
a Party and the provisions of the European Union in this area.
3. THE EFFECTS OF THE AGGRAVATING AND MITIGATING CIRCUMSTANCES IN CASE OF
INDIVIDUALISATION OF PENALTIES
Committing a particular crime under certain conditions means a more serious social danger compared to
the danger posed by that crime in normal circumstances. There are some specific conditions which require the
application of an increased penalty given the need to re-educate and to reintegrate the perpetrator into society240
.
The legal aggravating circumstances are those facts explicitly provided by the criminal law, which have
the role to influence the degree of social danger of an act and of the perpetrator, increasing the seriousness of the
social danger and the need for a more severe penalty, so ensuring a maximum of efficiency for its function.
The consideration of mitigating circumstances determines appropriately either a reduction, or a change
of the main penalty. Therefore, according to the provisions of Article 76 of the Criminal Code, in case that there
are mitigating circumstances, the special limits of a penalty provided by law for a crime are reduced by a third,
and the reduction is possible only once, irrespective of the number of mitigating circumstances taken into
consideration. On the other hand, if the penalty provided by law is life imprisonment, in case that mitigating
circumstances are considered, then the penalty of imprisonment from 10 to 20 years is applied.
238
Article 16 of the Constitution provides that “citizens are equal before the law and the public authorities,
without privileges and without discrimination, and no one is above the law”. 239
Published in Monitorul Oficial no. 301 of 8 May 2002, republished in Monitorul Oficial no. 326 of 5 June
2013. 240
Hotca, M. A., Codul penal - Comentarii şi explicaţii (The Criminal Code – Comments and Explanations), C.
H. Beck, Bucharest, 2007, p. 712.
115
In case that aggravating circumstances are taken into consideration, according to the provisions of
Article 78 of the Criminal Code, the penalty applied can reach the special maximum, and if the special
maximum is not enough, in case of imprisonment, a 2 year increment may be added, which cannot exceed a third
of the maximum penalty, while in case of a fine, an increment of at most a third of the special maximum may be
applied.
Moreover, most special limits of a penalty are possible only once, irrespective of the number of
aggravating circumstances taken into consideration.
Because a crime may be committed with a concurrence of aggravating and mitigating circumstances,
the legislator provided the order for their application in Article 79241
of the Criminal Code, as only observing the
order provided by law, the individualisation of a penalty can be just, according to the facts of the act provided by
the criminal law.
The treatment of legal or judicial aggravating circumstances is similar in the legislations of several
countries. So, the Spanish Criminal Code provides for the possibility to exceed the maximum limit by adding ½
of half the total duration of the penalty to the maximum limit (Article 70.1 point 1).
In the German Criminal Code, Article 49 stipulates that, in case of legal and special mitigating
circumstances, a reduction of the penalty is permitted (the penalty of life imprisonment is replaced by the penalty
of at least 3 year imprisonment; and the penalty of imprisonment or a fine is also reduced, with the observance of
certain rules).
In the Criminal Code of the Duchy of Luxembourg, life imprisonment is replaced with imprisonment
for a period not less than 15 years; imprisonment from 20 to 30 years is replaced with imprisonment not less than
10 years; imprisonment from 15 to 20 de years is replaced with imprisonment not less than 5 years;
imprisonment from 10 to 15 years is replaced with imprisonment between 5 and 10 years, however the minimal
limit should not be less than 3 years; imprisonment from 5 to 10 years is replaced with imprisonment of at least 3
months; fines can be reduced, but not less than 251 Euro (Article 76).
In the Finnish Criminal Code, we can see that the penalty given in case there are circumstances shall be
at most 3/4 of the minimum penalty provided for the crime involved: if the act is punished with life
imprisonment, the maximum penalty is 12 year imprisonment, and the minimum penalty is 2 year imprisonment,
and if the maximum penalty for a crime is imprisonment, the court may order a fine to be paid for the crime that
was committed.
4. CONCLUSIONS
Committing a crime under certain conditions means a more serious social danger that the danger
represented by that crime in normal circumstances, because there are some specific conditions requiring the
application of some increased penalties for the re-education and reintegration of perpetrators into society. To that
effect, the provisions of the Criminal Code have been developed so as to respond to some desiderata regarding
the establishment of a coherent legislative framework in criminal matters, which pursue a simplification of the
legal regulations so that they can be applied in a unitary way and with expedience by the judicial bodies242
,
meaning that the judicial bodies will be able to individualise penalties while respecting the human rights and
fundamental freedoms.
241
Article 79 of the Criminal Code “The concurrence of aggravating and mitigating causes - (1) When two or
more dispositions are incidental to the same crime, having as a result a reduced penalty, the special limits of the
penalty provided by law for the committed crime are reduced by applying successively the dispositions referring
to attempt, mitigating circumstances and special cases for penalty reduction, in this particular order. (2) If there
are two or more incidental dispositions, which result in the aggravation of criminal liability, the penalty is
determined by applying successively the dispositions referring to aggravating circumstances, continued crime,
concurrence or relapsing. (3) When one or more causes for the reduction of a penalty and one or more causes for
increasing a penalty are incidental to the same crime, the special limits of the punishment provided by law for
the crime that was committed are reduced according to para. 1, and afterwards, the limits of the penalty are
increased according to para. 2”. 242
The rationale of the draft Criminal Code and the draft Code of Criminal Proceedings, a document available
online on www.just.ro.
116
References:
1. Boroi, A., Drept penal. Partea generală. Conform Noului Cod penal (Criminal Law. The General Part.
According to the New Criminal Code), C. H. Beck, Bucharest, 2014
2. Daneş, Şt., Papadopol, V., Individualizarea judiciară a pedepselor (Judicial Individualization of Penalties),
Editura juridică, Bucharest, 1985
3. Hotca, M. A., Codul penal - Comentarii şi explicaţii (The Criminal Code – Comments and Explanations), C.
H. Beck, Bucharest, 2007
4. Ristea, I., Regimul circumstanţelor în dreptul penal român (The Regime of Circumstances in Romanian
Criminal Law), C. H. Beck, Bucharest, 2009
5. Zolyneac, M., Drept penal. Parte generală (Criminal Law. The General Part), volume III, Editura Fundaţiei
,,Chemarea” Iaşi, 1992
117
SOME CONSIDERATIONS OF THE NEED TO TRANSPOSE
THE DIRECTIVE 2014/42/EU ON THE FREEZING AND CONFISCATION OF
INSTRUMENTALITIES AND PROCEEDS OF CRIME IN THE EUROPEAN UNION
IN THE PROVISIONS OF ARTICLE 1121 OF THE CRIMINAL CODE
NEGRUŢ Gina, Lecturer Doctor - Al. I. Cuza Police Academy, Bucharest
DOCA George, PhD – Titu Maiorescu University, Bucharest
Abstract: Sanctions have an important place in criminal law, being brought under regulation in the framework
of one of the three fundamental institutions of criminal law together with criminal offence and criminal liability,
the doctrine in the matter considering that sanctions are obviously the effect of criminal liability. The Directive 2014/42/EU was adopted in order to facilitate international cooperation with regard to investigation
assistance, search, seizure and confiscation of proceeds of crime, especially in the case of more
serious criminal offences. On the other hand, if we analyse the provisions governing the institution of
confiscation, as well as the practical methods of investigation, search, seizure and confiscation
stipulated in the Criminal Code and the Code of Criminal Proceedings in the legislation of each state,
we can see that the legislation of the Member States is significantly different, and this is the reason for
the recommendation to the EU Member States to harmonise their legislation with the provisions of the
Directive in this matter.
1. GENERAL CONSIDERATIONS
For activities in society to run smoothly, it is necessary that the imperative dispositions of the law are
complied with. For this purpose, it becomes obviously imperative to abide by the legal norms in the legal
relation pertaining to material or substantial law.
To that end, the application of the legal-criminal regulations and the criminal policy of the state based
on the rule of law should contribute to reducing crime to reasonable limits, safeguarding the social values falling
under the scope of criminal law, in order to ensure a feeling of social protection and security for all members of
society243
.
For this matter, the framework of criminal sanctions represents the inevitable consequences of the
offenders’ dangerous conduct and its role is to ensure both their constraint and re-education in line with the
respect for the norms of criminal law.
1.1. THE INTERNATIONAL LEGISLATIVE FRAMEWORK FOR THE SAFETY MEASURE
OF CONFISCATION
The purpose for adopting provisions related to the search, seizing and confiscation of assets used
or acquired as a result of crime is stipulated in the Criminal Code and in the Code of Criminal
Proceedings in the legislation of every state, but we can see that the legislation of the EU Member
States differs significantly, and the differences are sometimes impediments to international
cooperation in criminal matters.
In order to settle these impediments which exist in practice, the provisions adopted by the
European Parliament and the Council of the European Union are intended to implement some norms
which establish a whole set of rules covering all the procedural stages, from the first investigation to
the enforcement of the confiscation decision, and this makes possible the creation of a flexible and
effective mechanism of international cooperation in order to make the confiscation of instrumentalities
and proceeds of crime more efficient. Some of the legal instruments adopted at this level are the
following:
1.1.1. The United Nations Convention against Corruption244, a legal instrument which besides
the measures necessary for the prevention and incrimination of corruption acts also includes provisions
referring to the obligation for each state to take the necessary measures allowing the confiscation of proceeds of
crime or of assets having the same value as those proceeds; of assets, materials or other instrumentalities used or
243
Boroi, A., Drept penal. Partea generală (Criminal Law. The General Part), C.H. Beck, Bucharest, 2014, p. 20 244
The United Nations Convention against Corruption (Merida Convention) was adopted by Resolution 58/4
of 31 October 2003 and entered into force on 14 December 2005, ratified by Romania with Law 365/2004,
published in Monitorul Oficial no. 903 of 5 October 2004.
118
intended to be used for the offences stipulated by the Convention. For this purpose, it is recommended to every
signatory state of the Convention to adopt the necessary measures which allow the identification, localisation,
blocking or seizure of these assets, for the purpose of their possible confiscation.
1.1.2. The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the
Proceeds from Crime245
The provisions of the Convention refer to general principles of international cooperation, given
the importance of the international legal assistance which the member States need to provide for the
preservation of evidence and proceeds of crime, and at the same time, they indicate the measures that may be
taken in order to ensure the confiscation of instrumentalities and proceeds of crime through the enforcement
by the requested state of the confiscation order issued abroad or through the establishment of judicial
procedures on confiscation in the requested state based on a request from other state. For this purpose,
the Convention requires the member States to adopt effective measures in their national legislation to fight
serious crime and confiscate the proceeds of crime, so as to make cooperation at international level possible.
This can be done with an attempt to bring the legislations of member States into line with each other,
and also with methods enabling efficient cooperation. 1.1.3. The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the
Proceeds from Crime and the Financing of Terrorism246
Because the provisions of the 1990 Convention left a series of problems unsolved, it was
necessary to adopt some provisions which correspond to the evolution of the modern money
laundering techniques which have appeared in the non-banking sector and use professional
intermediaries for investing proceeds from crime in the legitimate economy.
To that effect, legislative measures have been adopted in order to freeze the terrorists’ funds
with the adoption of specific procedures for a quick identification of bank accounts, which allow fast
access to financial information referring to criminal organisations, including terrorist groups and
groups of organised crime, in order to take preventive and repressive measures to fight crime. For this
purpose, a new Convention was adopted containing provisions which prevent and fight the money
laundering and terrorism financing operations more efficiently.
1.1.4. The Council Framework Decision 2005/212/JAI on Confiscation of Crime-Related
Proceeds, Instrumentalities and Property247
The Council of the European Union adopted the Framework Decision 2005/212/JAI on Confiscation of
Crime-Related Proceeds, Instrumentalities and Property due to the fact that the existing legal instruments in
matters of confiscation had not sufficiently contributed to ensuring effective cross-border cooperation248
. For
better cooperation at international level in order to prevent and fight cross-border crime, it was recommended
to the Member States to adopt - with consideration of the best practices in matters of confiscation of proceeds
of crime and with due respect for fundamental principles of law - legal norms of criminal, civil or fiscal law
which lead to a mitigation of the onus of proof with regard to the origin of assets held by a person convicted
of an offence related to organised crime.
245
The Convention was adopted in Strasbourg on 8 November 1990 (a document available online on
www.coe.ro) and was ratified by Romania with Law 263 of 15 May 2002 for the ratification of the European
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, published in
Monitorul Oficial no. 353 of 28 May 2002. 246
The Convention of the Council of Europe on Laundering, Search, Seizure and Confiscation of the
Proceeds from Crime and the Financing of Terrorism was adopted in Warsaw on 16 May 2005 (a
document available online on www.coe.ro), ratified by Romania with Law 420/2006 for the ratification of the
Convention of the Council of Europe on Laundering, Search, Seizure and Confiscation of the
Proceeds from Crime and the Financing of Terrorism, published in Monitorul Oficial no. 968 of 4
December 2006. 247
Published in the Official Journal L 68 of 15 March 2005, p. 49, a document available online on
www.europa.eu. 248
Rationale of Law 63/2012 for changing and complementing the Criminal Code of Romania and Law
286/2009 on the Criminal Code.
119
1.1.5. Framework Decision 2006/783/JAI on the application of the principle of mutual recognition
to confiscation orders 249
This Framework Decision contains rules according to which the Member States must recognise and
execute on their territory a confiscation order issued by a competent court of another Member State in the
framework of a criminal trial, for the purpose of facilitating cooperation between the Member States
based on the principle of mutual recognition and immediate execution of court rulings. The Decision
provides for the confiscation order to be accompanied by a certificate which needs to be sent to the
competent authorities of the executing state in which the issuing authority has reasons to believe that
the natural or legal person against whom the confiscation order has been issued holds property or has
other income.
1.1.6. Decision 2007/845/JAI of the Council of the European Union concerning cooperation
between Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds
from, or other property related to, crime250
With the provisions of Article 1 para (1) of the Framework Decision, each Member State has the
obligation to establish or designate a National Asset Recovery Office, in order to facilitate tracing and
identification of proceeds from crime or other crime-related property, which could be the subject of a freezing,
seizure or confiscation order issued by the competent judicial authority in the course of a criminal trial through
the express disposition of judicial bodies. It is also recommended to the Asset Recovery Office in each Member
State to cooperate closely with other authority having the duty to facilitate tracing and identification of proceeds
from crime, as well as with other Asset Recovery Offices from other Member States for the purpose of Article 1
para (1) of this Decision.
1.1.7. Directive 2014/42/UE of the European Parliament and of the Council on the freezing
and confiscation of instrumentalities and proceeds of crime in the European Union251
The provisions of the Directive of the European Parliament and of the Council respond to the
current economic context which is characterised by the consequences of a world financial crisis and as a result
by a slowdown of growth, a fact which laid the premises for new cross-border criminal offences committed by
groups of organised crime, these offences creating considerable profit from drug trafficking, trafficking in
human beings, illicit weapon trafficking, and corruption.
The Directive brings legislative changes especially in the area of confiscation that is not based on a
conviction decision, this situation being provided for in extremely limited cases, especially when the accused
cannot be prosecuted as a consequence of death, in case of illness or in the situation when the accused absconds
criminal prosecution.
In these cases, the extended confiscation is allowed only as far as the court becomes convinced based on
the existing evidence that the person convicted for having committed an offence possesses property derived from
criminal conduct. In this situation, the convicted person has the possibility to refute the evidence used in the
accusation. Confiscation from a third party is allowed only under specific conditions, when it has been proved
that the third party acquired the property paying for it an amount lower than its market value.
In the contents of the Directive, Article 2 takes over the definitions from previous EU Framework
Decisions or from international conventions in the field of confiscation of proceeds from crime. Only the
definition of “proceeds of crime” was extended compared to the definition provided by the Framework Decision
2005/212/JAI, in order to make it possible to confiscate all quantifiable advantages derived from criminal
offences, including the indirect income. The measure of extended confiscation is defined by the provisions of
Article 4 of the Directive as being the “ability to confiscate property exceeding the direct benefits deriving from
a criminal offence”. A criminal conviction may be followed by an extended confiscation of not only the property
which derives from the offence involved, but also of other property which the court has determined that derives
from similar offences.
To avoid abuse, Article 5 of the Directive introduces the institution of confiscation which is not based
on a conviction decision in limited situations to deal with cases where criminal prosecution cannot take place.
This allows Member States to opt for the confiscation to be imposed by criminal, civil or administrative courts.
These procedures which are not based on a conviction decision make it possible to freeze and confiscate
property independently of the prior criminal conviction of the owner, and this situation does not intervene in all
249
Published in the Official Journal L 328 of 24 November 2006, p. 59-78, a document available online on
www.europa.eu. 250
Published in the Official Journal L 332 of 18 December 2007, a document available online on
www.europa.eu. 251
Published in the Official Journal L 127 of 29 April 2014, a document available online on www.europa.eu.
120
cases, but only in circumstances when criminal conviction cannot be given, because the suspected person is
dead, suffers from a permanent illness, absconds criminal prosecution or his or her illness prevents effective
prosecution within a reasonable period of time and there is a risk of limitation of criminal liability.
As regards the confiscation from a third party, the provisions of the Directive include a possibility for
such confiscation for proceeds of crime or other property of the defendant which was received in exchange for
an amount lower than its market value. To that effect, the provisions in this situation require the test of the
reasonable person criterion based on concrete elements and circumstances, so as to avoid arbitrary decisions.
2. THE DOMESTIC LEGISLATIVE FRAMEWORK FOR THE SAFETY MEASURE OF EXTENDED
CONFISCATION
The measure of extended confiscation was introduced in the content of Law 286/2009 with the
dispositions of Article II point 2 of Law 63/2012252
, representing a transposition in the Law 286/2009 on the
Criminal Code of the provisions of Article 3 of the Framework Decision 2005/212/JAI.
For this safety measure to be taken, it is necessary that the general conditions for the application of a
safety measure are met, as well as some specific conditions stipulated by the provisions of Article 1121 para (2)
of the Criminal Code, as follows: the perpetrator must have committed an act stipulated by the criminal law; the
perpetrator must be a danger to society, where the dangerous condition may be removed not only with the
application of a penalty, but also by taking safety measures; the existence of a final conviction decision for
having committed one of the offences stipulated by Article 1121 para (1) of the Criminal Code; for committing
one of the offences expressly indicated in the content of Article 1121 para (1) of the Criminal Code; there must
have been a material gain; the penalty provided by law for the offence which was committed is 4 years or more;
the value of the property acquired by the convicted person in a 5 year period before and, if there may be the case,
after the time when the offence was committed, until the date of issuance of the document approaching the court
obviously exceeds the licit income of that person; the court is convinced that the property which is the subject of
extended confiscation derives from criminal offences of the same kind as those for which the criminal is
convicted; in order to determine the value of the property acquired by the convicted person, the value of the
property transferred by the convicted person or a third party to other people shall also be determined.
3. CHANGES AND ADDITIONS TO THE PROVISIONS RELATED TO EXTENDED
CONFISCATION
Considering the need to bring the provisions of the Criminal Code regarding the extended confiscation
in line with the Directives of the European Union in this area, a draft law has been developed in order to change
and complement several norms in the criminal field253
, which transposes into the national legislation the Article
4 para (2), Articles 5-7, Article 8 para (1) and (6), Article 9 and Article 11 of the Directive 2014/42/EU of the
European Parliament and of the Council on the freezing and confiscation of instrumentalities and proceeds of
crime in the European Union of 3 April 2014.
The changes envisaged are concerned with the provisions of Article 1121 para (1) of the Criminal Code.
Therefore, the legislator of the draft stipulates “Other property than that mentioned in Article 112 of the Criminal
Code254 is also subject to confiscation, when with regard to a person who is given a conviction decision for an
act susceptible to procure to that person a material gain and for which the penalty provided by law is 4 years of
imprisonment or more, the court becomes convinced that the respective property derives from criminal conduct.
The conviction of the court may rely inclusively on the disproportion between the licit income and the wealth of
that person”. We can see therefore a re-consideration of the provisions of Article 63 para (2) of the 1968 Code of
252
Law 63 of 2012 changing and complementing the Criminal Code and the Law 286/2009 on the Criminal
Code, published in Monitorul Oficial no. 258 of 19 April 2012. 253
The draft law changing and complementing several norms in the criminal field, a document available online
on www.gov.ro. 254
According to the provisions of Article 112 of the Criminal Code, the following categories of
property may be subject to special confiscation: property obtained through committing an action
stipulated by the criminal law; property which was used, in any way, or intended to be used in committing
an action stipulated by the criminal law, if it belongs to the perpetrator or if, belonging to another person, the
person knew for what purpose it was used; the property used immediately after the action was committed to
ensure that the perpetrator gets away or that the benefit or the obtained product is kept, if it belongs to the
perpetrator or if, belonging to another person, the person knew for what purpose it was used; property which was
given to determine an action stipulated by the criminal law to be committed or to reward the perpetrator;
property acquired by committing the action stipulated by the criminal law, if it is not given back to the aggrieved
person and as long as it does not serve to indemnify that person; property the possession of which is forbidden
by law.
121
Criminal Proceedings, so that the judge remains absolutely free in making a decision, based on his or her free
judgement and free conviction255 in judging the evidence.
Moreover, we can see that although the subsequent evolution of the doctrine and jurisprudence showed
that the free judgment system also needs certain limitations, a need to provide grounds for the decisions was
introduced as an instrument for control by the public opinion. As a matter of fact, the doctrine256 specified that
free judgment and free conviction do not mean an arbitrary decision, but the freedom to judge the evidence
reasonably, impartially, honestly, and they must not be based more on impressions, feelings and generally based
on inner psychological elements other than those arising from the examination of facts257.
Based on the principle of the free conviction of the judge, he or she shall judge freely the evidence
presented in the case, so as the court can build a conviction with regard to the origin of the property, so as if it
derives from crime, it is possible to confiscate it.
However, in connection with the second sentence of Article 1121 para (1) of the Criminal Code,
according to which “the conviction of the court may rely inclusively on the disproportion between the licit
income and the wealth of that person”, we mention that this disproportion is justly made obvious in the phrase
used by the legislator in Article 97 para (1) of the 2010 Code of Criminal Proceedings, where letter f) stipulates
that the evidence in a criminal trial may also be obtained by “any other means of evidence which is not forbidden
by law”, therefore also by revealing the disproportion between the licit income and the wealth of that person.
As a matter of fact, in the past, with the provisions of Article 2 of Law 18/1968 on the control of the
origin of some property belonging to natural persons, which was not acquired in a licit way258
, the control of the
origin of property could be applied to “any natural person, if there were data or indications that there was an
obvious disproportion between the value of the that person’s property and his or her legal income and the licit
acquisition of the property is not justified”, and the “justification of the origin of property” meant the obligation
of the person concerned to prove the licit nature of the means used to acquire or to accumulate property. The
control applied to the property acquired over 15 years before the approach, and included both the property
existing in the patrimony of the concerned person and the property given away by onerous title or for free.
But how could we admit some provisions which complement those which already exist in the Criminal
Code as long as it is necessary to analyse the constitutional consecration of the assumption of the licit acquisition
of wealth, so much the more when the application of a legal norm presumes an important interpretation process?
To give an answer, we need to analyse the provisions of Article 44 para (8) of the Constitution according to
which “Wealth acquired in a licit way cannot be confiscated. The licit nature of the acquisition is assumed”.
There have been several legislative initiatives for the removal of the second sentence in the content of para (8) of
Article 44 of the Constitution.
The first initiative for change was initiated in 1996 when there was a proposal to replace the assumption
of the licit nature of the acquisition of wealth with the following text: “Wealth for which the licit acquisition
cannot be proven is confiscated”. But with the Decision no. 85/1996259
, the Constitutional Court held that “the
assumption of the licit acquisition of wealth is one of the constitutional guarantees of the right of property in
accordance with the provisions of para (1) of Article 41 of the Constitution [the current para (1) of Article 44],
according to which the right of property is guaranteed, an assumption which is also founded on the general
principle pursuant to which any act or legal fact is licit unless there is proof to the contrary, imposing, with
regard to the wealth of a person, for its illicit acquisition to be proven.
Moreover, with the Decision no. 799/2011260
, the Constitutional Court concluded that “if there were not
such an assumption, a person holding property would go through a state of continuous insecurity, since
whenever the illicit acquisition of that property would be invoked, the burden of proof would rest not with the
person making the claim, but with the holder of the property.” As according to Article 152 para (2) of the
Constitution, “No review is possible if it results in a cancellation of citizens’ fundamental rights and freedoms or
of their guarantees”, the conclusion is that the assumption of the licit acquisition of wealth is, according to the
Constitutional Court, a guarantee of the right of private property.
255
Article 63 para (2) of the 1968Code of Criminal Proceedings was changed with the provisions of Law
281/2003, a change which expresses the Decision no. 171/2001 (published in Monitorul Oficial no. 387 of 16
July 2001), which admitted the non-constitutionality exception of the provision “each piece of evidence is
judged by the criminal prosecution body and by the court of law according to their conviction”. 256
Pop, T., Drept procesual penal (Criminal Proceedings Law), volume II, General Part, Tipografia Naţională S.
A., Cluj, 1946, p. 323. 257
Ghigheci, C., in Volonciu, N., Uzlău, A. S. (coord.), Moroşanu, R. Voicu, C., Văduva, V., Tudor, G., Atasiei,
D., Ghigheci, C., Gheorghe, T. V., Chiriţă, C. M., Noul Cod de procedură penală comentat (The New Code
of Criminal proceedings Commented), Hamangiu, Bucharest, 2014, p. 232 258
Published in Buletinul Oficial no. 81 of 24 June 1968 259
Published in Monitorul Oficial no. 211 of 6 September 1996 260
Published in Monitorul Oficial no. 440 of 23 June 2011
122
Only a dissenting opinion261
regarding the Decision no. 799/2011 considers that the assumption of the
licit nature of the acquisition of wealth is in conflict with the international treaties ratified by Romania, namely
the Convention of 8 November 1990 of the Council of Europe on the Laundering, Search, Seizure and
Confiscation of the Proceeds from Crime, and the United Nations Convention of 12 December 2000 against
Transnational Organized Crime for preventing and combating the following offences: money laundering, traffic
in human beings, child sexual exploitation and child pornography, illicit drug trafficking and terrorism, as well
as for identifying, tracing, freezing, seizing and confiscating the instrumentalities and proceeds of crime.
On the other hand, there is a mention that the review proposal envisaged to prevent and combat these
offences by removing the assumption of the licit acquisition of wealth resulting from the indicated offences,
which is in compliance with the Framework Decision 2005/212/JAI of the Council on Confiscation of Crime-
Related Proceeds, Instrumentalities and Property of 24 February 2005, a decision which produces obligatory
effects. Therefore, the proposal for reviewing the Article 44 para (8) second sentence of the Constitution does
not reflect in any way on the right of property and, moreover, it has been made in order to comply with the
international treaties which were previously mentioned and the European Union law, in line with Article 148
para (4) of the Constitution, and the rejection by the Constitutional Court of the change proposal concerned with
the removal of the second sentence of para (8) of Article 44 of the Constitution may trigger the responsibility of
the Romanian State for failure to comply with its obligations under the treaties to which it is a party.
At the same time, we can also see that the list of offences was, naturally in our opinion, removed from
the content of the provisions of para (1) ale Article 1121 of the Criminal Code, and we consider that this list was
not significant, since there are the provisions of Article 112of the Criminal Code, where the legislator referred to
any offence and the property which was to be confiscated.
On the other hand, we also note an opinion in the doctrine262, which as a matter of fact we agree to,
saying that if a person is convicted for committing an offence which cannot come under the provisions of Article
1121 of the Criminal Code, extended confiscation cannot be ordered. In addition, there is a requirement to be met
according to which the act is susceptible to procure to the convicted person a material gain, and the penalty
provided by law is 4 years of imprisonment or more, but in the case of the offence stipulated by Article 4 para
(1) of Law 143/2000, the measure of extended confiscation cannot be imposed since the penalty provided by law
is imprisonment between 6 months and 2 years or a fine.
With regard to the provisions for changing and complementing para (2) of Article 1121 of the Criminal
Code, the legislator reproduces the provisions of Article 6263
of the Directive 2014/42/EU. Therefore, extended
confiscation shall be ordered for property acquired by the convicted person in a 5 year period before and, if there
may be the case, after the time when the offence was committed, until the date of issuance of the document
approaching the court. Extended confiscation can also be ordered for property transferred to a third party, if they
knew or should have known that the purpose of the transfer was to avoid confiscation. Based on the analysed
text, we can see that the change is concerned with the extended confiscation imposed also for property
transferred to a third party, and this changes the former provisions of para (3) of Article 1121 of the Criminal
Code under which the judicial bodies were taking into account only the value of property transferred by the
convicted person or a third party to a family member or to a legal person.
4. CONCLUSIONS
It has become a fact that following the accession of Romania to the European Union, it is necessary to
adopt legislative measures which are in accordance with the provisions of the European Union legislation related
to extended confiscation, i.e. more recently with the provisions of the Framework Decision 2014/42/EU.
Despite the fact that the Directive 2014/42/EU should have been transposed in the content of the
Criminal Code and the Code of Criminal Proceedings ever since 2016, we can see that this is not the first time
when the transposition of dispositions included in documents originating from the Parliament and from the
Council of Europe is delayed in Romania. Although some provisions were included in the criminal legislation,
261
Dissenting opinion of Professor Doctor Motoc, I. A., published in Monitorul Oficial no. 440 of 23 June 2011. 262
Hotca, M. A., Neconstituţionalitatea şi inutilitatea dispoziţiilor care reglementează confiscarea extinsă (Non-
constitutionality and uselessness of the provisions bringing under regulation the extended confiscation), a
document available on www.hotca.ro 263
Article 6 of the Directive 2014/42/EU “Member States shall take the necessary measures to enable the
confiscation of proceeds, or other property the value of which corresponds to proceeds, which, directly or
indirectly, were transferred by a suspected or accused person to third parties, or which were acquired by third
parties from a suspected or accused person, at least if those third parties knew or ought to have known that the
purpose of the transfer or acquisition was to avoid confiscation, on the basis of concrete facts and circumstances,
including that the transfer or acquisition was carried out free of charge or in exchange for an amount
significantly lower than the market value.”
123
those concerned with the confiscation of proceeds of crime and the actual enforcement of the confiscation
decision have not been transposed yet, and the failure to achieve this objective determined the initiation of the
infringement procedure against Romania.
On the other hand, following the adoption of these provisions, some guarantees should be established
both for the convicted persons and for third parties, so as in case that the confiscation decision was issued by a
judicial body, this decision may be the subject of confirmation by a hierarchically superior judicial body, and the
interpretation and application of these provisions to be such as not to reflect on the rights of third parties who are
of good faith.
References
1. Boroi, A., Drept penal. Partea generală (Criminal Law. The General Part), C.H. Beck, Bucharest, 2014
2. Volonciu, N., Uzlău, A. S. (coord.), Moroşanu, R. Voicu, C., Văduva, V., Tudor, G., Atasiei, D., Ghigheci,
C., Gheorghe, T. V., Chiriţă, C. M., Noul Cod de procedură penală comentat (The New Code of Criminal
proceedings Commented), Hamangiu, Bucharest, 2014
3. Hotca, M. A., , Neconstituţionalitatea şi inutilitatea dispoziţiilor care reglementează confiscarea extinsă (Non-
constitutionality and uselessness of the provisions bringing under regulation the extended confiscation), a
document available on www.hotca.ro
4. Pop, T., Drept procesual penal (Criminal Proceedings Law), volume II, General Part, Tipografia Naţională S.
A., Cluj, 1946.
124
RELIGION: A SUPREME SOCIO-LEGAL VALUE IN THE EUROPEAN UNION
Mihail NIEMESCH
264
Abstract In Europe, the Church had varied standings in relation to the world, in accordance with the stages of
social development. It is ascertained that in the first three centuries A.D., the Christian church was undergoing
ample and strong persecutions so that is tried to identify survival methods, at the same time searching for a way
to transmit the Word of Jesus through clear, understandable messages.
Presently, both at the level of the E.U. as well as in Romania, religion is acknowledged as a
fundamental liberty, thus entering the category of human rights that are acknowledged by the European legal
phenomenon.
Keywords: religion, jurisprudence, law, courts of law
Inductive considerations
Every rite, Every myth, every faith or divine figure reflects the experience of the sacred, and thus implies
the notions of being, of signification, and of truth...it is difficult to imagine how the human spirit could function
without the belief that something irreducibly real exists in the world; and it is impossible to imagine how
consciousness could arise, without conferring a meaning to the impulses and experiences of man.265
From the dawn of its existence, human society has lived and evolved through consideration and
acknowledgment for the power of Divinity. Religion and its normative framework has influence, influences, and
will continue to influence human nature, the social phenomenon in general, in conclusion, the legal phenomenon
as well.
It has been stated that religion… gives power to the law. Without the idea of God, as he highest
lawmaker, by whom human authorities have been granted power, laws would be devoid of any force. The myths
of some ancient peoples valued some divinities, for example: the Egyptians had Osiris and Isis, the Asiro-
Babylonians had Ea etc., as authors of their oldest laws, and some lawmakers claimed that they had received the
laws as they were from gods. Thus, for the Jewish people, Moses received the Tablets of the Law from the hands
of Jehovah on Mount Sinai, and for the Indians Manu received his laws from Brahma, and for the Romans, King
Numa Pompilius claimed to have been inspired by Egeria in writing the laws. What the idea of divinity was for
the Roman society later on, Cicero illustrates in the following: „ I don’t know, if once with undermining the fer
of God, fidelity and the social order between men ill both also disappear.”, „ Quid leges sine moribus?” a Latin
maxim says, and indeed healthy morals cannot exist without religion. Modern sovereigns themselves, hereditary
or elected, are titled sovereigns through the grace of God and the will of the nation266
.
Looking into the history of humanity, we notice that initially, all peoples, the Babylonians, the
Egyptians, even the Romans, for a long period of time, didn’t create a delimitation between legal norms, the
religious ones, and the ones of moral order. Extremely rational and pragmatic, the Romans were the ones who
made a distinction between the diverse normative systems, so that, the rules of law were referred to as IUS, and
the religious ones were referred to as FAS.
According to the opinion of Norbert Rouland, legal anthropology and history of law professor at the
university of Marseilles, an opinion mirrored by that of His Beatitude Daniel, the Patriarch of the Romanian
Orthodox Church, it is considered that for the religious man, religious thinking and legal thinking are closely
related “if the legal and the religious reflections are united, we cannot establish a priority between the two; the
way of thinking of a divine being does not precede in importance the thought of the world and its institutions.
Religious thought, as that of social, legal, and political institutions expresses, in these diverse domains, a way of
This paper is written during the susteinability stage of the project entitled “Horizon 2020 - Doctoral and
Postdoctoral Studies: Promoting the National Interest through Excellence, Competitiveness and
Responsibility in the Field of Romanian Fundamental and Applied Scientific Research”, contract number
POSDRU/159/1.5/S/140106. This project is co-financed by European Social Fund through Sectoral Operational
Programme for Human Resources Development 2007-2013. Investing in people! 264
Associate Professor, “Titu Maiorescu” University, Str. Dâmbovnicului, nr. 22, Sector 4, 040441,
Bucharest, ROMANIA. E-mail: [email protected] 265
Eliade, M.(1992). Istoria credințelor și ideilor religioase, vol.I, Chișinău, Moldavia: Universitas
Publishing House, p.8 266
Mihălcescu, I. (1941). Noţiuni de filozofia religiunii, ed. 7, Bucharest, Romania: Cugetarea-
Georgescu Delafras Publishing House, p. 36.
125
thinking a universe of each society in kind”.267
And Christianity is an essential element of the European identity,
the Europe of our times being confronted with am economic crisis and an identity crisis that changed the way we
relate to the world, to the financial resources and to economy in general. But it also changes something else: the
way in which we relate to the Christian values. The Economic context made the change necessary , and the
change began with the legal regulation of the European Union, a market that needed to become more flexible, as
did the legislation. The change brought forth new challenges. The implementation of the new regulations
requires an effort of knowledge and interpretation, effort that is not in any way easy, nor at hand. To understand
the scale and implications of these modifications, in the academic forums and not only, heated debates are taking
place on the role of the Christian roots of religions in the contemporary society”268
.
Throughout time, countless figures have referred to the role of religion in society and to the link it has
with law. Tocqvueville assessed that people have a common interest of building ideas about God for any doubt in
this sense would condemn them to disorder and helplessness, and Durkheim underlined the fact that one of the
main functions of religion is to ensure social order. Andre Marlaux’s affirmation is also well known, stating that
“the 21st ill either be religious or not at all”...
269
Etymologically, the term religion has its origin in the Latin word religare meaning to unite, to bind.
Thus, what results is that the term religion makes reference to the bond between man and God.
Brief considerations about the emergence and evolution of the European Union
The idea of a united Europe came from as far as the Middle Ages, brought forth by the humanist
movement, Erasmus of Rotterdam, launching the idea of a united Europe motivated by the fight for the
protection of the European civilization in the face of the Ottoman danger, and in order to promote Christian
concepts of happiness, love, and peace.
In the France of the 17th
century, during the reign of Henry the VI, a new idea emerges, that of a union
formed out of 15 states (6 hereditary kingdoms, 6 elective powers, and 3 federal republics). This union was
based on the political and religious setting.
In 1815 in Vienna, the Holy Alliance takes being, the first organism that united several states and
regarded the politico-strategic future of Europe.
The Forty-Eighter movement launches the concept of the United States of Europe.
In the 20th
century an institutional structure with its own normative system appears at a European level,
whose name, "the European Union" has been in use since 1992. The incipient stages of the EU have appeared
since 1951. If at the beginning we were talking about the economic dimension of this body, we are currently
dealing with an economic, monetary and political union.
Brief considerations on the evolution of the Church in Europe and on the link with the legal phenomenon
In Europe, the Church has had diverse positions in relation to the world, depending on the stages of
social development. It is noted that in the first three centuries AD, the Christian Church was subjected to
extensive and powerful persecutions that it sought to identify means of survival while seeking to convey the
Word of Jesus through clear, intelligible messages.
Later, with the ascension of Byzantine Emperor Constantine the Great, the status of the Christian
Church changes, becoming the religion supported by the Roman Empire.
In medieval Western Church acquires over time more power. The doctrine states that the theory of "two
swords" considers that "the worldly sword" was entrusted by God to the princes to lead the temporal world, and
the "spiritual sword" was entrusted to the church to lead the spiritual world. At one point, the claims of the papal
267 Ciobotea, D.I., His Beatitude Father Daniel, the Patriarch of the Romanian Orthodox Church (2015).
Originea religioasă a dreptului și secularizarea lui și nevoia actuală de dialog interdisciplinar, article published
in the volume edited with the event of awarding the title of Doctor Honoris Causa by the Titu Maiorescu
Univesity on 10.XII.2015 p.78 268
Bădescu, V.S. (2012). Dreptul Afacerilor, Bucharest, Romania: Universul Juridic Publishing House,
p. 451. 269
Albici, M. (2015). Despre drept ca fenomen complex al vieții sociale, Bucharest, Romania: Universul
Juridic Publishing House.
126
institution to plenitude potestatis, was nothing but an attempt by the church to impose an institutional ascendancy
over state authority.270
Unfortunately, this conception degenerated into abuses, culminating in the terrible tribunals of the
inquisition, based on a papal bubble issued by Pontiff Gregory IX. Inquisitor courts (inquisito - follow-up,
investigation) were organized at provincial council level with a procedure established by archbishops and
bishops, aiming at the detection and research of heretics. The investigation was carried out by the parish
commissions with full powers in the matter of heresy. The biggest abuses date back to the 15th –
17th
centuries,
when based on simulated processes, with imprecise procedures, inhuman, humiliating decisions are pronounced
(distinctive signs, seizure of wealth, but especially burning at the stake).
The most prominent representative of the incitement of the Inquisition was the Great Spanish Inquisitor
Tomas de Torquemada – also called the "Hound of the Lord," a figure that literally smothered any idea of justice
and righteousness.
In the European Union, the field of Church-State relations is within the competence of the member
countries, the method through which issue is resolved at national level being respected. The 11th Declaration
adopted by the Amsterdam European Conference in 1997 has already stated that "the European Union does not
prejudice the status enjoyed, on the basis of national law, by churches, religious associations or communities in
the Member States" This attitude was taken over by the Treaty of Lisbon into the Treaty on the Functioning of
the European Union (TFEU) in Article 17 stating that '(1) the Union respects and does not prejudice the status
enjoyed by churches and associations under national law, or by religious communities in the Member States".
Thus, in the wording of the TFEU, the field of relations between States and churches or other organizations
referred to in Article 17 falls within the scope of the principle of subsidiarity provided in art. 5 (3) of the Treaty
on European Union (TEU) which states that: Under the principle of subsidiarity, in the fields outside its
exclusive competence, the Union intervenes only if and to the extent that the objectives of the proposed action
can not be sufficiently achieved by the Member States, either at central level or at regional and local level, due
to the dimensions and effects of the envisaged action, that can be better achieved at the level of the Union.271
Currently, both the level of the EU As well as in Romania, religion is recognized as a fundamental
freedom, thus falling into the category of human rights recognized by the European legal phenomenon.
The merit272
of raising human dignity to the rank of social value lies with the School of
Natural Law, characterized by the idea that right is a means of achieving justice and equity. According to natural
law lawyers, people are social beings by nature that are born free and organize their lives based on a social
contract that limits state powers. The state has as its main mission, to respect the laws and to ensure equality and
freedom of citizens. The founder of the theory of natural law was Hugo Grotius who highlighted the idea that
people have rights and obligations resulting from their human nature. In the midst of his research into natural
law, we find Aristotle's ideas that man is good by nature, and the need for the rule of law, the rule of conduct,
derives from man's instinctive need to live in society.
Afterwards, the followers of the Enlightenment movement elaborate the concepts that launched the
values of the French Revolution, Montesquieu sees in the separation of the statist powers the best guarantee of
respect for the liberties of the people by the state, Voltaire uses for the first time the notion of "human rights",
claiming to be free equals to know Human rights, and their knowledge obliges them to defend themselves.
History shows us that the notion of human rights has been consecrated on the backdrop of the French
and American revolutions.
The preamble to the Declaration of the French Revolution of 1789 proclaims that "ignoring, forgetting
and contempting human rights are the only causes of public misery... people are born and remain free and equal
in rights."
The declaration of the state of Virginia of June 12th
, 1776 proclaimed that "all men are created equal,
free and independent; They have inherent rights that they can not, when entering into social relations, be
deprived or dispossessed by any contract, namely: the right to enjoy life and freedom, with the possibility of
acquiring and possessing goods and seeking And achieve personal happiness and security. "
In the preamble to the United States Declaration of Independence of July 4, 1776, edited by T. Jefferson
and reviewed by B. Franklin and J. Adams, it is stated: “We hold these truths to be self-evident, that all men are
created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life,
Liberty, and the pursuit of Happiness. hat to secure these rights, Governments are instituted among Men,
deriving their just powers from the consent of the governed”.
270
Bunaciu, O.I. (2012). O înțelegere a dreptății și a preocupării sociale în lumina scripturii, articol
publicat în revista dreptatea-abordare juridică, politică, socială și teologică, Bucharest, Romania: Universitară
Publishing House, pp.195-196 271
for more see: http://avereabisericii.ro/finantarea-cultelor-in-cadrul-uniunii-europene/ 272
for more please see: Niemesch M. (2015), Drepturile omului, factor de configurare a dreptului, Rev.
română de criminalistică (no. 6), p.2105-2109.
127
In 1948, the Universal Declaration of Human Rights states that "ignoring and despising human rights
has led to barbaric acts that revolt people's conscience."
The assertion of human rights, the consecration of this concept enjoys the highest appreciation at the
European level, so that through art. 3 of the Statute of the Council of Europe it is provided in essence that the
principles of the rule of law and the principle under which every person under his jurisdiction must enjoy the
fundamental rights and freedoms of man must be accepted. And now, as a result of the Treaty of Lisbon, the
Treaty on European Union has been amended and fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the
constitutional traditions common to the Member States, represent the general principles of Union law.
Thus, the European Union acts to ensure a high level of cooperation in all areas of international relations in order
to strengthen respect for human rights and the principles of international law.273
Under art. 6 p. (1) of the
Treaty on European Union, the Union recognizes the rights, freedoms and principles set out in the Charter of
Fundamental Rights of the European Union of 7 December 2000, as adapted in Strasbourg on 12 December
2007, which has the same legal value as the treaties. The provisions of the Charter do not in any way extend the
powers of the Union as defined in the Treaties. At the same time, the Union adheres to the European Convention
for the Protection of Human Rights and Fundamental Freedoms. The Union's competences, as defined in the
Treaties, are not altered by this accession.274
Currently, unfortunately, at the level of the EU it is clear that there are extreme acts of terrorism taking
place, any of the actions triggered through such attempts, are based on religious convictions, although
misinterpreted convictions that are in complete contradiction with the general perceptions of any type of religion.
As it stands... the last ten years have also brought a considerable increase in the number of cases of
religious freedom cases judged by the European Court of Human Rights. Some of them were also linked to the
presence of symbols or religious education in European schools. Insisting on the need to protect the religious
freedom of children and parents (that is, the possibility of obtaining an exemption from Religion class in
schools), the Court has until now considered that legislation in this area should remain at the discretion of each
national government in part275
.
By judgments of the European Court of Human Rights276
, we notice that this jurisdictional court has
regulated and interpreted several important judgments pertaining to religious freedom at a European level.
Thus, according to the cases of Kokkinakis vs. Greece-1991 and Mannosakis vs. Greece-1996:
Freedom of Conscience and Religion is considered by the Court to be one of the foundations of a
democratic society and one of the engines of pluralism inherent in such a society, so states can not, in principle,
prohibit, restrict or impose conditions too Rigid or prohibitive for the exercise of certain philosophical or
religious beliefs.
According to the case of Otto Preminger institute vs. Austria 1994, the ECHR stated that:
Freedom of expression constitutes one of the essential foundations of [a democratic] society, and also
applies to information that offends or shocks… Since it is not possible to discern across Europe a uniform
conception of the meaning of religion in society, a margin of appreciation is left to the authorities of the state.
As shown in Campbel and Cosans vs. The UK-1982 the jurisprudence of the Strasbourg authorities felt
the need to define what is meant by "religion" to avoid abusive complaints about this issue. Because a very
precise definition and the setting of precise criteria defining which religion is a religious one and which is not is
impossible to imagine, the Court has began from the argument that such a belief is distinguished from a simple
opinion or idea, since beliefs presuppose points of view that reach a certain level of force, seriousness and
consistency.
273 Popescu, D., Maxim, F. (2011) Drept internațional public, vol.1, Bucharest, Romania: Renaissance
Publishing House,.p.19.
274 Maxim, F.(2010) Tratatul de la Lisabona-geneză şi conţinut, in the volume of the international
conference organized by the Titu Maiorescu University, Educaţie şi creativitate pentru o societate bazată pe
cunoaştere, Bucharest, Romania: Univ.Titu Maiorescu Publishing House pp. 268-275.
275Șelaru, S. and Vălcu, G.,Studiul Religiei în Școlile publice din Statele membre ale U.E., online
source: http://www.orthodoxero.eu/media/Documente/Religia%20in%20Uniunea%20Europeana.pdf 276
for more see: http://abcjuridic.ro/libertatea-de-gandire-de-constiinta-si-de-religie-in-jurisprudenta-
cedo-partea-i/
128
These are, of course, only a few examples of decisions of the ECHR, on issues concerning the
regulation of religion from a legal point of view. The concern of ECHR judges in this very important area of
social life is obvious, and interpretative decisions are of real use at a EU level. Not to be neglected is that these
court rulings are mandatory.
Conclusions
Religion has been, is, and will be, an important factor in the configuration of law and social life. The
present shows us that religion, the commandments of God, the wisdom of Jesus is a spiritual support available to
man in a very tumultuous world with many contradictions and so few "support points".
That is why the right must be restored to its substance, a substance launched for the first time by ancient
Greek philosophers, who have laid the foundation stone of natural law.
European law, which is still in the process of development and generalization, has the obligation to
place at the top of the pyramid of the legal phenomenon, the rule of law, this wonderful creation that ensures the
supremacy of the law, the separation of powers in the state and thus the guarantee of fundamental freedoms,
where RELIGION holds a place of honor.
REFERENCES
1. Albici, M./ Despre drept ca fenomen complex al vieții sociale, Universul Juridic Publishing House,
Bucharest, 2015.
2. Bădescu, V.S./ Dreptul Afacerilor, Universul Juridic Publishing House, Bucharest 2012.
3. Bunaciu, O.I., O înțelegere a dreptății și a preocupării sociale în lumina scripturii, articol publicat în
revista dreptatea-abordare juridică, politică, socială și teologică, Universitară Publishing House,
Bucharest 2012.
4. Ciobotea, D.I., His Beatitude Father Daniel, the Patriarch of the Romanian Orthodox Church/ Originea
religioasă a dreptului și secularizarea lui și nevoia actuală de dialog interdisciplinar, article published in
the volume edited with the event of awarding the title of Doctor Honoris Causa by the Titu Maiorescu
Univesity on 10.XII.2015
5. Eliade, M./ Istoria credințelor și ideilor religioase, vol.I, Universitas Publishing House, Chișinău, 1992.
6. Maxim, F./ Tratatul de la Lisabona-geneză şi conţinut in the volume of the international conference
organized by the Titu Maiorescu University, ,,Educaţie şi creativitate pentru o societate bazată pe
cunoaştere, Univ.Titu Maiorescu Publishing House, 2010.
7. Mihălcescu, I./ Noţiuni de filozofia religiunii, ed. 7, Cugetarea-Georgescu Delafras Publishing House,
Bucharest, 1941.
8. Niemesch, M./ Drepturile omului, factor de configurare a dreptului, Rev. română de criminalistică no. 6,
Bucharest 2015
9. Popescu, D., Maxim, F./ Drept internațional public, vol.1, Renaissance Publishing House, Bucharest,
2011.
ONLINE REFERENCES
10. Șelaru, S. and Vălcu, G.,Studiul Religiei în Școlile publice din Statele membre ale U.E., online source:
http://www.orthodoxero.eu/media/Documente/Religia%20in%20Uniunea%20Europeana.pdf
11. http://abcjuridic.ro/libertatea-de-gandire-de-constiinta-si-de-religie-in-jurisprudenta-cedo-partea-i/
12. http://avereabisericii.ro/finantarea-cultelor-in-cadrul-uniunii-europene/
129
THE SCOPE OF THE INSOLVENCY LAW FOR NATURAL PERSONS. THE
DEBTOR’S APPLICATION TO OPEN THE INSOLVENCY PROCEEDINGS BASED
ON A PAYMENT PLAN
Carmen PĂLĂCEAN Associate Professor PhD, Titu Maiorescu University of Bucharest, Faculty of Law
Abstract
The adoption of legislation regulating the insolvency of natural persons is not only necessary, but also
mandatory, given that the provisions of (EC) Regulation no 1346/2000 of 29 May 2000 on insolvency
proceedings requires the Member States to extend the insolvency proceedings to natural persons.
The modern economy cannot function without the credit and individuals who have a credit can become
overly indebted also for reasons out of their control. As a result, the aim of the insolvency law of natural persons
cannot be the application of a stigma to the individual who uses the benefits of the law, or the restriction of the
access to the labor market or the public discredit of the debtor who is a natural person, but concerns his/her
economic and social reintegration, balancing the relationship between the creditor’s need to recover the debt
and the inability of the bona fide individual to pay the debts.
Key words: insolvency, debtor, natural person, consumer, good faith, creditors, insolvency committee,
reasonable living standard.
The Law of insolvency of natural persons no. 151/2015277
is addressed to natural persons in good
faith, simple individuals or consumers, whose debts arise from the non-payment in due time of the bank rates
made for the purchase of a personal service or product, or from activities carried out to meet personal needs,
such as arrears to suppliers of utilities. Thus, the insolvency procedure regulated by Law no. 151/2015 is
intended exclusively for the individual debtor whose obligations do not arise from an enterprise operation
according to the meaning of art. 3 of the Civil Code. 278
As a result, the law does not apply to professionals
whose insolvency is regulated by Law no. 85/2014,279
and to the liberal professions, namely to self-employed
persons.
As regards the liberal professions, we have to specify that: if the provisions of para. (1) art. 3 explicitly
exclude this category from the application of Law no. 85/2014, 280
the provisions of Law no. 151/2015 do not
regulate them. Consequently, according to the Romanian legislation in force, the liberal professions cannot
benefit from the effects of insolvency proceedings, and a part of the doctrine consider that these are
disadvantaged. 281
Law no. 151/2015 had to enter into force, according to art. 93, six months from the date of its
publication, on 26 December 2015, but had no implementing rules at that time. Through the Government
Emergency Ordinance no. 61/2015,282
the entry into force was extended until 31 December 2016.
On 22 January 2016 the Government Decision no. 11/2016283
was issued concerning the establishment
of insolvency committees at central and territorial level stipulated by Law no. 151/2015. This decision stipulated
277 Law no. 151/2015 on insolvency proceedings of natural persons was published in the Official Journal Part I, no. 464 of 26
June 2015 and comprises 93 articles. 278 According to art. 3 of the Civil Code: “1. The provisions of this Code shall also apply to the relationship between
professionals, and to their relationship with any other subject of civil law. (2) All those who operate an enterprise are
considered to be professionals. 3. An enterprise operation shall be the systematic exercise by one or more persons of an
organized activity consisting in the production, management or disposal of goods or in the provision of services, whether
or not it has a lucrative purpose.” 279 Law no. 85/2014 on insolvency proceedings and on preventing insolvency, published in the Official Journal Part I, no. 466
of 25 June 2014. 280 According to art. 3 para. (1) of Law no. 85/2014: “(1) The procedures provided by this law apply to professionals, as
defined by art. 3 para. (2) of the Civil Code, with the exception of those who exercise liberal professions, as well as those
with special provisions regarding their insolvency regime”. 281 Daniela Deteșan, Insolvența persoanei fizice (The Insolvency of the Natural Person), Hamangiu Publishing House,
Bucharest, 2015, p. 74-75, Marcela Comșa, Legea privind procedura insolvenței persoanelor fizice no. 151/2015, (The
Law regarding the Insolvency Proceedings of the Natural Persons no 151/2015), Universul Juridic Publishing House,
Bucharest, 2015, p. 57-58. 282 The Government Emergency Ordinance no. 61/2015 of 23 December 2015 for the extention of the term of the entry into
force of Law no. 151/2015 on the insolvency proceedings of the natural persons was published in the Official Journal Part
I, no. 962 of 24 December 2015. 283 The Government Ordinance no. 11/2016 on the formation of insolvency committees at central and territorial level
130
the establishment of insolvency committees, as a preliminary stage to the implementation of the insolvency law
of natural persons.
Subsequently, The Government Emergency Ordinance no. 98/2016 postponed the application of the
normative act until 1 August 2017.
The law did not come into force on 1 August 2017, but by the Government Decision no. 419/2017 the
methodological norms for application were approved and published in the Official Journal part I no. 436 of 13
June 2017.284
The methodological norms set out the application of the law as concerns the manner in which the
conciliation meetings are to be held, as well as the manner of communication with the debtor and the creditors,
the types of fees for the administrator of the procedure and for the liquidator, as well as the minimum and
maximum amount of these fees.
The enforcement of the law was again postponed, so that the Official Journal no. 614 of 28 July 2017
published the Government Ordinance no. 6/2017285
for the extension of the term for the entry in force of Law no.
151/2015: the term of the entry in force stipulated at art. 93 first thesis was prorogued until 1 January 2018.
I. The scope of Law no. 151/2015
According to the provisions of art. 4, the procedures regulated by Law no. 151/2015 apply to the debtor
who is a natural person, to the consumer, who complies with the following conditions:
1. He/she has the domicile, residence or common residence in Romania, for at least six months before
submitting the application.
Domicile or residence regards the natural persons who are Romanian citizens, and the phrase “common
residence in Romania” concerns the natural persons who are foreign citizens or stateless persons286
.
According to the provisions of art. 86 in the Civil Code287
, the Romanian citizens have the right to
freely establish or change their domicile sau residence in the country or abroad, except for certain cases
stipulated by law. If the law does not stipulate otherwise, natural persons can have at the same time only one
domicile and only one residence, even when they hold more dwellings. The dwelling designated as residence
cannot be at the same time domicile, and the dwelling designated as domicile cannot be at the same time
residence.
The provisions of art. 87 stipulate that the domicile of natural persons, in the view of exercising their
civil rights and freedoms, is where they declare to have the main dwelling, and the provisions of art. 88 stipulate
that the residence of natural persons is where they have the secondary dwelling.
The provisions of art. 2570 para. (1)288
of the same Code, as regards the common residence of the
natural person stipulate that this is in the state where the individual has the main dwelling, even if he/she have
not completed the legal forms for registration. The common residence of a natural person acting in the view of
the profession is the place where this person has the main headquarters.
The same article also establishes that personal and professional circumstances, which indicate durable
links with that State or the intention to establish such links shall be taken into account in determining the main
dwelling.
The common residence of the legal person is in the State in which this has the main headquarters. The
main headquarters is where the legal person has established the central administration. The proof of the common
residence can be done by any means of evidence.
Moreover, the provisions of the Government Emergency Ordinance no. 97/2015289
stipulate that the
Romanian citizens have the right to establish or to change freely their domicile sau residence, except for certain
cases specified by law, and that they can have at the same time only one domicile and/or only one residence. If
they have more dwellings, they can establish their domicile or residence in any of them. According to the
provisions of art. 27, the domicile of the natural person is where he/she declares to have the main dwelling.
stipulated by Law no. 151/2015 on the insolvency proceedings of the natural persons published in the Official Journal
Part I, no. 50 of 22 January 2016. 284 The methodological norms of application comprise 47 articles. 285 The Government Emergency Ordinance no. 6/2017 of 27 July 2017, for the extension of the term of the entry into force of
Law no. 151/2015 was published in the Official Journal Part I no. 614 of 28 July 2017. 286 Csabo Bela Nász, Procedura insolvenței persoanelor fizice (Insolvency Proceedings of the Natural Persons), Universul
Juridic Publishing House, Bucharest, 2016, p. 165. 287 The New Civil Code adopted through Law no. 287/2009 (published in the Official Journal no. 511 of 24 July 2009) was
modified through Law no. 71/2011 for the enforcement of Law no. 287/2009 regarding the Civil Code (publicată în
Official Journal no.409 of 10 June 2011) and amended in the Official Journal no. 427 of 17 June 2011 and in the Official
Journal no. 489 of 8 July 2011, and republished in the Official Journal no. 505 of 15 July 2011. 288 Art. 2570 of Book VII Dispoziții de drept internațional privat (Provisions of International Private Law) in the Civil Code. 289 Art. 26 of the Emergency Ordinance no. 97/2005 on evidence, domicile, residence and identity documents of the
Romanian citizens, in force since 20 July 2005, republished in the Official Journal Part I no. 719 of 12 October 2011.
131
2. He/she is in insolvency290
, in the sense of art. 3 point 12, and there is no reasonable probability to
become again, within a period of maximum 12 months, able to fulfil his/her obligations as they were
established by a contract, and maintaining a reasonable living standard for himself/herself and for the
dependants.
To determin the living standard, there is a series of criteria established both through the provisions of
Law no. 151/2015, and through the provisions of the methodological norms.
Thus, the provisions of art. 45 para. (1) point d) in the methodological norms establish the following:
the insolvency committee at the central level will provide, through a decision of the chairman, the general
criteria for determining the reasonable living standard, which will be published yearly. Para. (2) stipulates that
the chairman of this committee will issue a decision and will order the publication in the Official Journal and on
the ANPC (National Authority for Consumers Protection) website of the criteria for determining the reasonable
standard of living in the insolvency proceedings based on a payment plan and in the insolvency proceedings
through the liquidation of assets.
Para. (2) of art. 2 of the same norms mentions the landmarks which the committee will take into
account at the central level to establish the criteria:
The value of the minimum monthly consumer basket;
The amount of the professional tuition fees;
The price of utilities and basic food;
The composition and structure of the debtor’s family;
The special health circumstances;
The minimum costs related to the operation and maintenance of an indispensable vehicle;
The expenses related to the child care and growth;
The minimum requirements of a convenient home.
3. The total amount of his/her overdue obligation is at least equal to the threshold value291
of 15 minimum
wages (even if law does not specify whether they are gross or net salaries, we consider that the gross
minimum wage in Romania should be taken into account, since only this is a fixed one, which is
periodically updated by Government – minimum gross wage by country, from 1 February 2017, is of
1,450 lei. / 15 x 1,450 lei = 21,750 lei).
Besides the state of insolvency of a natural person, it is necessary that the person should have been of
good faith (the law-maker did not define in art. 3 what debtor of good faith means).
According to the provisions of art. 14 Good faith in the Civil Code:
(1) Any natural or legal person must exercise his/her rights and perform his/her civil obligations in
good faith in accordance with public order and morals.
(2) Good faith is assumed until the contrary.
The law-maker felt the need to emphasize the particular importance of good faith in this special matter
that governs the insolvency proceedings for natural persons.
Good faith must exist throughout the proceedings, and even after they end, until the judicial decision is
delivered on the issue of residual debt discharge, in the case of insolvency proceedings based on a debt
repayment plan and of the insolvency proceedings by liquidation of assets, or of the closure of the simplified
insolvency proceedings.
Although Law no. 151/2015 does not define the phrase debtor of good faith, it enumerates the debtors
who cannot benefit from the procedure regulated by this act.
Thus, law stipulated in art. 4 para. (4) the debtor’s facts that lead to the assumption of bad faith.
The following persons cannot benefit from this procedure:
The debtor who was the subject of such a procedure, ended with the residual debt discharge, at
least 5 years before making a new cereri for opening the insolvency proceedings.
The law prohibits this category of debtors from benefiting from the provisions of the law, precisely in
order to avoid a repeated debt discharge and irresponsible behavior of the debtor.
According to the provisions of art. 3 para. (1) point 1) of Law no. 151/2015, the Insolvency Proceedings
Bulletin – the section “Debtors – natural persons with obligations not arising from the operation of an
290 According to point 12 art. 3 Definitions, “Insolvency is that state of the debtor’s patrimony that is characterized by
insufficient funds available for the payment of debts as they become overdue. The debtor’s insolvency is assumed when, after
a period of 90 days from the due date, he/she has not paid his/her debt to one or more creditors. The assumption is relative.” 291 The threshold value is defined by point 24 of art. 3 of Law no. 151/2015.
132
enterprise” aims to publish, in compliance with the legislation in the field of personal data protection,
the decisions of the insolvency committee and the court decisions as well as other acts that the law
specifies to be published.
According to para. (2) și (3) of 91:
- The debtor will be deleted from the Insolvency Proceedings Bulletin at the end of 5 years from the date
of the court decision on the closure of the proceedings, by the conclusion of the director of the
Insolvency Proceedings Bulletin;
- From the date of publication in the Insolvency Proceedings Bulletin of the director’s conclusion, the
access to all documents and information regarding a debtor, including on-line related services, will be
provided only to the debtor, insolvency committees, courts, prosecution and criminal investigation,
public authorities and institutions.
- As a result, the five-year period begins to run from the announcement of the court decision of closing
the proceedings.
At the same time, the three procedures cannot be applied to the debtor:
In the case one of the three procedures enumerated by law was closed, at least 5 years before making a
new application for opening the insolvency proceedings, for imputable reasons;
Who was convicted definitively for committing a crime of tax evasion, a crime of forgery or an
intentional crime against the patrimony by breach of trust;
Who was fired in the last 2 years for imputable reasons;
Who, although able to work and without a job or other sources of income, did not make the
reasonable diligence necessary to find a job or who unjustifiably refused a proposed job or other
lucrative activity;
Who accumulated new debts, by unnecessary expenses, while he knew or should have known that
he/she was in insolvency;
Who determined or facilitated the state of insolvency, wilful misconduct or gross negligence. It is
assumed to have had this effect:
o Contracting, in the last 6 months prior to the application for opening the insolvency
proceedings, a debt representing at least 25% of the total amount of the liabilities, apart from
the excluded obligations.
According to art. 3 point 14 of the Law no. 151/2015, Excluded obligations are the debtor’s
obligations that cannot be subject to steps of rescheduling, reduction or deletion:
1. statutory or conventional maintenance obligations – the latter cannot exceed a threshold of 5
average salaries per year;
2. legal obligations resulting from the attracting criminal and contraventional liability.
o Acquiring, in the last 3 years prior to the application, excessive obligations in relation to
his/her patrimonial status, to the benefits derived from the contract or to all the circumstances
that have contributed significantly to the debtor’s inability to pay the debts, other than those
due to the persons with whom he/she made a contract;
o Performing preferential payments, over the last 3 years prior to the application, which have
significantly contributed to reducing the amount available for the payment of other debts;
o Transferring, in the last 3 years prior to the application, goods or chattels from the own
patrimony to another natural or legal person, while knowing or ought to have known that such
transfers will lead to insolvency;
o The fact that, at the date of making the application for the opening of insolvency proceedings,
the person already had opened another insolvency proceeding.
These assumptions are relative.
II. The debtor’s application to open the insolvency proceedings based on a payment plan
The insolvency proceedings regulated by Law no. 151/2015 can be carried out in three forms292
:
- The insolvency proceedings based on a payment plan of the debts;
- The judicial insolvency proceedings by liquidation of assets;
- Simplified insolvency proceeedings.
292 Art. 5 Formele procedurii de insolvență (The Forms of the Insolvency Proceedings) of Law no. 151/2015.
133
The procedure, in any of its forms, is triggered at the debtor’s application, alone or with the spouse,
fiancee or person with whom the debtor is living, under the conditions of art. 13 para. (2) and (3).
The debtor’s application is standardized and is exempt from the stamp duty, regardless of whether it is
submitted to the insolvency committee, in order to open the proceedings based on payment plan or the simplified
proceedings, or directly to the competent court for opening the proceedings by liquidation of assets.
According to art. 13 para. (5), the debitor’s application is a standard form comprising information
regarding:
- The reasons which have led to the state of insolvency;
- The name/designation of the creditors, their domicile/ social headquarters, the value and the type of the
debt: certain or conditional, due or undue, showing the amount and where appropriate the cause of
preference;
- The legal actions against the debtor’s wealth/the initiated forced execution procedures/the applied
precautionary measures;
- Extrajudicial renegotiations of certain debts incurred by the debtor prior to the application for opening
the insolvency proceedings;
- The civil and the professional status;
- The amount of income from work and assimilated earnings, of the sums of money due as social pension
or other social benefits, as well as any other income, including revenue accruing under an intellectual
property right and dividends received over a period of 3 years prior to the application, as well as the
projected changes in revenue over the next 3 years;
- The debtor’s goods, including the goods in common property with share percentages or joint property,
with the specification of other real rights than the ownership that the debtor owns over the assets of
others;
- The accounts open to credit institutions or investment firms by the debtor, as well as the accounts by
which the debtor is running its financial or investment funds, as well as the funds available from those
accounts;
- Debts the holder of which is the debtor, as well as any real rights, other than the property right, which
the debtor holds over the assets of others;
- Transfers of property without valuable consideration and other similar acts, as well as transactions of
more than 10 minimum salaries concluded in the last 3 years prior to the application;
- The names of the persons to whom the debtor normally provides maintenance and the title of the
maintenance and, where appropriate, the names of the persons contributing with the debtor to the
maintenance;
- The disputes in progress or finalized in which the debtor is or was a party and which could affect in any
way the patrimony thereof;
- The specification that he/she has not been convicted of committing the crimes of breach of trust by
frauding creditors, tax evasion, or intentional crime against the patrimony by breach of trust that he/she
had rehabilitation for such convictions, together with supporting documents;
- The specification that he/she has not benefitted from a residual debt discharge in the last 5 years
preceding the application, namely that he/she has not been the subject of insolvency proceedings based
on a debt payment plan or on liquidation of the assets, which has been concluded for reasons
attributable to him/her during the last 5 years preceding the application;
- If applicable, the name of the companies in which the debtor was the sole associate, administrator or
associate/shareholder in the last 2 years prior to the application; and the number or percentage of the
held shares/equity interests/stakes;
- If applicable, the status of authorized natural person, holder of an individual enterprise or member of a
family enterprise, for the last 2 years prior to submitting the application.
The form will be established by the decision of the chairman of the insolvency committee at central
level and will be made available to the public free of charge at the headquarters of the insolvency committee as
well as on-line on the central insolvency committee’s website.
The debtor’s will annex the evidence stipulated in para. (6):
134
- The evidence that he/she is employed or carrying out an income-generating activity or, as the case may
be, documents proving his/her lack of/limitation of ability to work and, if unemployed, the proof that
he/she was not fired for imputable reasons and that he/she made the specific steps taken by a diligent
person to get a job;
- Documents attesting the income from work and other income assimilated to it, the sums of money due
as social pension or other social benefits, as well as any other income, including income due according
to an intellectual property right and dividends received during a period of 3 years prior to the
submission of the application, as well as a specification of the expected income changes over the next 3
years;
- Copies of tax statements for the last 3 years prior to the application;
- A current copy of the criminal record and fiscal record;
- A complete report from the Credit Bureau issued no more than 30 days before the date of submitting the
application;
- A proposal for a debt payment plan, containing at least the amounts that the debtor believes will be able
to pay periodically to the creditors.
Although the law does not expressly stipulate, we consider that the debtor has the obligation to annex to
the application the proof of the notification made to the creditors as regards his/her intention to open the
proceedings, regardless of the means of communication.
In the absence of an express sanction to be stipulated in the law against the non-compliance with this
obligation, it may be concluded that it is legally irrelevant if the debtor communicates or not his/her intention 30
days before postponing the settlement of the application in the absence of evidence or in the case when the 30-
day deadline has not been fulfilled.
The argument is a legal one because, although the lack of notification is not a reason to reject the
application, the committee has the possibility stipulated in art. 14 para. (3) to require the debtor to complete
his/her application and/or the acts and information submitted for its support.
Conclusions It is undeniable and well-known the existence of over-indebtedness of many natural persons in
Romania, in many cases due to contracting credits in CHFs or other currencies.
The emergence of a law of insolvency of natural persons has long been expected, so that its
enforcement would follow the natural course of legislative reformation in our country.
Law no. 151/21015 is not a perfect law, but it is a big step forward made by the Romanian legislative
system, being a social protection law, along with Law no. 77/2016293
on giving in payment.
While it is obvious that the law should be subject to certain modifications, it is the judicial practice that
will in fact determine the changes that will make the law of insolvency of natural persons a law as functional and
as useful as possible to society.
The procedure for professionals has improved over the years, since 1995, when the first law appeared –
Law no. 64/1995294
– and until the latest law – Law no. 85/2014. It is obvious that the same thing will happen in
the case of individuals’ insolvency, and time will decide the real needs of consumers and the solutions that
legislation can offer them in a special insolvency such as that of natural persons.
References: 1. Daniela Deteșan, Insolvența persoanei fizice (The Insolvency of the Natural Person),
Hamangiu Publishing House, Bucharest, 2015;
2. Marcela Comșa, Legea privind procedura insolvenței persoanelor fizice nr. 151/2015 (The
Law regarding the Insolvency Proceedings of the Natural Persons no 151/2015), Universul
Juridic Publishing House, Bucharest, 2015;
3. Csabo Bela Nász, Procedura insolvenței persoanelor fizice (Insolvency Proceedings of the
Natural Persons), Universul Juridic Publishing House, Bucharest, 2016.
293 Law no. 77/2016 on giving in payment of immovable property in the view of the exctinction of the obligations assumed
through credits was published in the Official Journal Part I, no. 330 of 28 April 2016. The Law entered into force on
13.05.2016. 294 Law no. 64/1995 on the procedure of judicial reorganization and bankruptcy, republished in the Official Journal of
Romania Part I, no. 1.066 of 17 November 2004, with further modifications and completions, abrogated at the date of the
enforcement of Law no. 85/2006.
135
THE ESTABLISHMENT OF FILIATION IN THE CASE OF ASSISTED
REPRODUCTIVE TECHNOLOGY
Nicoleta-Ramona PREDESCU Ph.D. candidate, TituMaiorescu University
Abstract Technological and scientific progress in the field of assisted reproductive technology manages to overturn the
concepts and principles underpinning the foundation of legal relationships between people, especially those
about the way of establishing filiation.This article analyzes a series of legal and ethical issues regarding the
filiation of children born using medical assisted reproduction techniques and the way in which maternity or
paternity can be established in the context of current Romanian regulations.
Keywords: filiation, assisted reproductive technology, donor, surrogate, consent, maternity, paternity,
INTRODUCTION
Under the conditions of contemporary society, the use ofassisted reproductive technology (ART)295
, such as
intrauterine insemination (IUI), in vitro fertilization (IVF) or assisted reproduction with a third person - tertiary
donor or surrogate mother - have opened new perspectives for humans and lead to improvement of the lives of
infertile people and those who want to have a child and implicitly set up a family in this way. At the same time, a
number of controversies have arisen over the consequences in the social sphere following the use of reproductive
techniques, consequences that need to be studied from an ethical, moral, psychological, religious, medical
perspective and last but not least, from a legal perspective.
Nearly four decades after the birth of the first infant born using the in vitro fertilization technique, we can not yet
speak of the existence of internationally harmonized legislation on the regulation of a uniform framework for
assisted reproductive technology (ART). In this context, the Romanian legislation, although it contains
provisions that regulate aspects related to assisted reproduction with a third party donor aggregated in the
provisions of the Civil Code, supplemented by the provisions regarding getting organ and tissue transplantation
of human origin, which are regulated by the legislation especially in Law no. 95/2006 on Health Reform, these
are not sufficient to fully cover the diverse range of legal situations that arise in practice. An example of this is
the establishment of paternity or maternity that can no longer be based on certain circumstances, the biological
truth of the child's concept, if prospective parents have turned to assisted reproduction with a third party donor.
Uncertain legal situations relating to the establishment of the filiation of children born using medical assisted
human reproductive techniques may arise not only from the use of those who wish to become parents, by
assisted reproduction with a donor (egg, sperm donor or embryos), but also by using a surrogate mother without
using the genetic material of a third party donor (the embryo to be implanted in the uterus of the surrogate
mother comes from the future parents). In the latter situation, in Romania, the child's filiation will be established
according to the principle of mater in jure semper certaest, in other words, the filiation will be established on the
basis of the birth, aganst the surrogate mother and not against the biological mother of the child. These situations
and not only, are going to be analyzed in this article.
1. GENERAL CONSIDERATIONS ON FILIATION
At present, the definition of filiation is not explicitly regulated in Romanian law, the definition of this institution
being the product of doctrine and long practice in this field.
Just as it is defined in the doctrine296
, the filiation evokes in a broad sense the juridical link between a person and
his ascendants as a result of the biological progeny, and in a narrow sense, the ratio of descendance between a
295
Assisted reproductive technology - a general term referring to the totality of medical techniques and practices
used to obtain a pregnancy by means other than those involving sexual intercourse; The definition given by
French law to the term RUAM within the scope of art. 2141 of the French Public Health Code
designatesART as those "clinicaland biological practices that allow in vitro design, embryo transfer and
artificial insemination" - in this respect, E. Florian, Family Law (Dreptul familiei), Edition 5, Ed. C.H. Beck,
Bucharest, 2016, p. 444. 296
In this respect, E. Florian, Family Law (Dreptul familiei), ed. 3, Ed. C.H. Beck, Bucharest, 2010, p. 283; D.
Lupascu, C.M. Crăciunescu, Family Law (Dreptul familiei), Ed. Universul Juridic, Bucharest, 2011, p. 262.
136
child and each of his parents, that is, the immediate and direct link between a child and his parents297
, regardless
of the biological reality resulting from procreation.
The base of the matter of filiation is consecrated by the Romanian Civil Code in Chapter II with the same name,
from Title III - "Relationship" in Book II - "About the Family", starting with Art. 408 to art. 450, being
structured in three sections, namely: "Establishing the Filiation" in Section 1; "Medical Assisted Human
Reproduction with Third Party Donor" in Section 2; "The Legal Situation of the Child" in Section 3. It is also
worth mentioning that besides the filiation, the institution of adoption is also regulated in the Title III of the
"Relationship". We note from this systematization carried out by the Romanian legislator, following the French
model, that assisted reproductive technology with third donor is integrated in the chapter dedicated to the natural
filiation and does not appear as a distinct chapter. In the literature298
, the filiation was classified according to a
series of criteria as follows:
a) Depending on the parent to whom the filiation is established:
- mother filiation (maternity);
- father filiation (paternity).
b) Depending on the nature of parents' relationships:
- filiation from marriage (legitimate);
- filiation from outside of marriage (natural).
c) Depending on its source:
- natural filiation (based on the fact of procreation);
- artificial filiation (in the case of assisted reproductive technology);
- adoptive filiation (resulting from adoption - civil).
The Romanian legislation currently only knows the natural and adoptive filiation as a legal connection between
the child and the parents and not the artificial one also. In the case of the latter, the legal connection must be
made between the child and the parents that will provide the education, protection and conditions for
development, whether they are genetically related to the child. As a rule, filiation represents a biological
relationship resulting from the fact of conception as well as from the birth, as we have shown above. But,
referring to the advancement of today's medicine, filiation can no longer be based on a biological link, and we
will accept the existence of a relationship of kinship like natural filiation, which in some instances299
gives rise to
the same effects as natural filiation.300
In the current context of society and rapid scientific progress in ART, a number of legal controversies have
arisen that the child's legal parents may be different from genetic and even gestational ones. Thus, we can speak
of three mothers - the biological mother (egg donor), the mother who bears the baby (surrogate mother) and the
mother who uses ART (the mother who is to grow the child and implicitly to whom the filiation must be
established) . In the case of ART with a third party donor, the consent previously expressed by future parents
regarding the use of specific medical procedures is sufficient to establish the child's filiation with them. In most
of these situations, the affiliation to the mother will be established as if the child was conceived naturally,
applying the universal rule of law mater semper certaest and the child will be considered, as the case may be,
either born of marriage or born out of marriage, depending on the civil status of the woman at the time of birth,
the paternal filiation being determined in accordance with the civil provisions, by the effect of the paternity
presumption, respectively by recognition or by court order, as the case may be. Establishing the parental filiation
of future parents using ART with a donor third party, especially when referring to a sperm donor, does not, in
principle, raise uncertainties as the general framework of this medical procedure is regulated in the provisions of
art. 441 - art. 447 of the Civil Code, but not the same can be said about ART with surrogate mother who is
currently practicing in Romania, but does not enjoy the existence of express regulations in this respect. We
therefore appreciate that civil law legislation on ART needs to be revised and adapted to the current demands of
society to ensure this way legal protection for the human being and implicitly respect for fundamental human
rights.
Artificial filiation301
is to some extent identified with both natural and adoptive filiation. There are some
similarities and differences between the filiation resulting from the adoption and the artificial one. Similarities
include the reasons (infertility) or the effects (obtaining a child) characteristic of assisted reproduction
297
A. Ionascu in A. Ionaşcu and others, Filiationandunder-ageprotection (Filiața și protecția minorilor), Dacia
PublishingHouse, Cluj-Napoca, 1980, p. 14; C. Hamangiu and Others, Romanian Civil Law Treaty (Tratat de
drept civil român), vol. I, Ed. All, Bucharest, 1997, p. 283, quoted in E. Florian, op. cit. ed. 5, p. 359. 298
D. Lupascu, C.M. Crăciunescu in M. Uliescu (coord.), New Civil Code, studiesandcomments (Noul Cod Civil,
studii și comentarii), vol. I, Ed. Universul Juridic, Buureşti, 2012, p. 803. 299
Situations differentiated byassistedreproductiontechnology. For example: in vitro fertilization with tertiary
donor or in vitro fertilization with genetic material from the couple intending to raise a child. 300
D. Lupascu, C.M. Crăciunescu, op. cit., vol. I, p. 802. 301
See S. Guţan, Medical HumanReproductionandFiliation (Reproducerea umană asistată medical și filiația),
Ed. Hamangiu, Bucharest, 2011, p. 85 et seq.
137
techniques and adoption, and the significant differences are mainly of biological nature, because in the case of
adoptions, the adopted child has no biological connection with the adoptive parents, instead, in the ART
situation, in most cases at least one parent is biologically related to the child, except for the situation where the
future parents choose to turn to donated embryos.
2. ESTABLISHING THE CHILD FILIATION BORN WITH THE HELP OF TECHINQUES OF
MEDICAL ASSISTED HUMAN REPRODUCTION WITH THIRD PARTY DONOR
Within the section of the Civil Code on ART with a third-party donor (Article 441 - Article 447) the Romanian
legislator creates the general framework specific to this procedure, referring to the medical procedure through
which the conception is made using the genetic material of a third person (the third party donor), a person
distinct from the two members of the couple, more specifically by gametes donation or embryo donation. At the
same time, the legislator establishes within the provisions of art. 447 of the Civil Code that assisted reproduction
with a third-party donor, its legal regime and other aspects related to the confidentiality of the information are to
be established by special legislation. We mention in this way that until now, 6 years after the entry into force of
the current Civil Code, an adequate legal framework for assisted reproductive technology has not been created
by special legislation.302
According to par. (1) of art. 441 of the Civil Code, entitled "the regime of filiation", shows that between the
third-party donor and the child conceived by assisted reproduction with a third party donor, there will be no
connection of filiation. Parents of the child thus conceived will be in accordance with par. (2) of the same article,
a man and a woman or a single woman. We note that the right of a single man to have a child is forbidden,
and there is no legal possibility for him to turn to a donor, but this does not prevent the "single man" from using
embryos (not donated). Only with the help of a surrogate mother and using in vitro fertilization techniques a
single man could become a father, whether the carrier mother would be genetically related to the future child or
not.
Future parents who choose to use this assisted reproduction technique to have a child must first consent to a
public notary who will explain the consequences of this act regarding the future child filiation under full
confidentiality. Consent must be prior to the conception and must be expressed in solemn form, by authentic
notarial inscription, under conditions that ensure full confidentiality, as is apparent from the provisions of art.
442 par. (1) of the Civil Code. It is also stated that the public notary has the duty to inform the parties of the
consequences of their act in the matter of filiation. In the case of couples, information must be given, in
particular, on how to determine the child's paternity and on the particular legal regime of the filiation thus
established303
. By expressing consent, parents accept that the future child will be conceived by using genetic
material from a third-party donor. The principle of confidentiality has the role of protecting the right to privacy,
as conferred by art. 8 of the European Convention on Human Rights304
and Art. 26 of the Constitution of
Romania305
, which refers to intimate, family and private life. Moreover, assisted reproduction with a third party
donor is subject to the patient's right to the confidentiality of medical information.306
However, paragraph (2) of
art. 445 of the Civil Code establishes the possibility for a person conceived with a sperm donor or his / her
descendants to request the court to authorize transmission of data on the donor's medical history or other medical
information related to the medical technique by which that person was conceived in the event of occurring
serious harm to a person conceived by means of a reproductive technique assisted by a third party donor or his /
her descendants. Beneficiaries of the authorization are the medic or competent authority, the transmission of the
data taking place under conditions of confidentiality.307
Expression of consent is a revocable legal act. Such consent may be expressly revoked in writing at any time
until the conception is reached, including the physician called to provide assistance for assisted reproduction.
Such consent will remain ineffective in the case of the death of the parents, the making of a request for divorce
or separation in fact, as it appears from the art. 442 par. (2) of the Civil Code.
According to the Latin principle "mater in iure semper certaest", the establishment of maternal filiation results
from the birth. In the case of a child conceived by assisted reproduction with a third-party donor, his or her
302
A last step in this respect was made in 2013, during which the Draft Law on Medical Human Reproduction
(PL-x no. 462/2013) passed the Senate of Romania and was sent for debate and approval to the Chamber of
Deputies. 303
In this respect: Fl. A. Baias, New Civil Code Comment on articlesart.1-2664 (Noul Cod Civil Comentarii pe
articole, art. 1-2664), C.H. Beck, Bucureşti 2012, p. 485. 304
Article 8 of the European Convention on Human Rights provides that "Everyone has the right to respect for
his private and family life, his home and his correspondence." 305
Article 26 of the Constitution of Romania provides in par. (1): "Public authorities respect and protect intimate,
family and private life". 306
Provided in art. 21 of Law No. 46/2003 on Patient Rights (Official Gazette No. 51 of January 29, 2003). 307
See more: Fl. A. Baias, op. cit., p. 490.
138
affiliation to the father will be determined differently, depending on the marital status of the woman giving birth.
Thus, in the situation of the married woman, according to art. 408 par. (1) of the Civil Code, the child will have
the father of the mother's husband, by the effect of the assumption of paternity, and there is an indivisibility in
that respect, that is to say once maternity has been proved, this also leads to the establishment of paternity.308
In
the case of an unmarried couple (the mother is not married either at the time of conception or at the time of
birth), the father filiation is established by the father's voluntary acknowledgment309
or by a court order310
if the
man who expressed his consent to the procedure subsequently to the child's birth refuses to recognize his
filiation311
. In this respect, are also the provisions of art. 444 of the Civil Code which establishes the father's
responsibility towards the mother and the child.
In the provisions of art. 443 par. (1) of the Civil Code is the rule that no one can challenge the child's filiation for
reasons related to ART, nor can the child so conceived be able to contest his filiation. There are two exceptions
to the rule outlined above. The first exception is provided in paragraph (2) of art. 443 of the Civil Code
according to which the mother's husband has the right to deny the child's paternity, according to the law. In this
hypothesis, the only person able to deny paternity is the mother's husband312
in the situation where he did not
express consent to the procedure of assisted reproduction with a third party donor. The action may also be
triggered if the husband has withdrawn his or her consent before the moment of the conception, or if during that
time also occurred one of the circumstances that, according to the law, removes the effects of the previously
expressed consent, namely the formulation of a request divorce or divorce in fact.313
The second exception is set
out in Art. 443 par. (3) of the Civil Code and refers to the challenge to the very fact that the birth of the child
conceived by ART with a third party donor is the consequence of the conception outside of the natural
process314
, in other words, in the letter of law, the situation in which "the child was not conceived in this way".
Regarding the filiation of the child born following the use of ART with a third party donor, biologically, mother,
father or "parents", as the case may be, will be the donor/donors of the genetic material, so we are in the presence
of only a genetic filiation315
. But in this respect, the law does not recognize any effect, therefore there will be no
legal relationship between donors and the child316
. However, the biological link between the donor and the child
will remain a factual reality and not a state of law.
3. ESTABLISHING THE FILIATION IN THE CASE OF APPEALING TO A SURROGATE
MOTHER
The surrogate mother317
or carrier mother is a woman who, following a convention, agrees to carry the baby
and give birth for another person or couple, whether or not it is genetically related to the future child, or whether
it will be rewarded financially or not.
At international level, there is no harmonization of national laws, which has led to the creation of controversies
of an ethical and legal nature on how to establish the filiation of ART-born children with a surrogate mother.
Problems also arise in relation to the recognition of birth certificates (when parents used the services of a
surrogate mother in another state and the child was born on the territory of that state), the establishment of
nationality, etc. In Romania substitute maternity is practiced, but she does not enjoy the existence of a legal
framework. However, before using this technique, the parties are required to enter into a genuine agreement in
the presence of a notary. By the parties we understand the married couple who wants to have a child or a single
person, the surrogate mother and her husband in the event she is married.
Even if prospective parents are tempted to believe that if they go through the notarial procedure before the
embryo transfer (in the surrogate mother's uterus) and express their consent to perform specific medical
procedures, they will no longer have to go to the court to challenge the parental filiation of the child following an
IVF surrogate with a surrogate mother, however, they are forced to do so because, at the birth of the child, the
308
In this respect, Dan Lupaşcu, Cristiana-Mihaela Crăciunescu in the New Civil Code Studies and Comments
(Marilena Uliescu - coord.), Volume I, The Universe Juridic, Bucharest, 2012, p. 805. 309
See art. 415 par. (2) of the Civil Code. 310
See art. 424 of the Civil Code. 311
In this respect, Dan Lupaşcu, Cristiana-Mihaela Crăciunescu, op. cit., p. 837 312
See more E. Florian, op. cit., Edition 5, p. 450. 313
Dan Lupaşcu, Cristiana-Mihaela Crăciunescu, op. cit. p. 837. 314
E. Florian, op. cit., Edition 5, p. 451. 315
See Artin Sarchizian, Paternal Filth in the context of assisted human reproduction. Brief Considerations,
October 31, 2012, http://www.juridice.ro/226825/filiatia-paterna-in-contextul-reproducerii-umane-asistate-
scurte-consideratii.html, accessed on October 27, 2017. 316
In this respect, art. 441 par. (1) of the Civil Code. 317
In the literature, there are two types of surrogate, traditional surrogate and gestational surrogate, each of
which has different legal implications due to the genetic links that the mother has with the child in the case of
the traditional surrogate or the lack of genetic links in the case of gestational surrogate
139
mother (from a civil point of view) will be the surrogate mother, even though she has no biological link with the
child, according to the general rule established in the art. 408 par. (1) of the Civil Code - "maternal filiation
results from the fact of birth". In the practice of Romanian courts318
, the institution of the substitute maternity has
been established, in the sense that the court has rightly found that both maternity and paternity of the child are
established in relation to those who have resorted to the medical assisted reproduction with surrogate mother
(biological parents) and not to the surrogate mother and her husband, and between the latter and the child there
are no biological links.
4. CONCLUSIONS
Considering the rapid progress of medical science, we can state that the content of the legal norm is currently
dictated by the conditions of material life, that is to say, the right finds its source in the living conditions of life.
Furthermore, it is the social reality that determines and imposes the need for a regulated legal framework for
assisted reproductive technology. From the analysis of the medical assisted human reproduction regulation with
a third-party donor in the Civil Code, we can conclude that in the case of the child's maternity resulting from this
technique there are no special rules that create a new type of parental filiation.
Moreover, there are no exceptional rules on the establishment of maternity, so the principle of common law will
be applied, established in Art. 408 of the Civil Code, according to which the filiation to the mother results from
the fact of the birth. However, the application of this principle in this field can generate a series of controversies
regarding the establishment of the filiation of the child born through ART.
REFERENCES
Baias Fl. A. and others (2012). Noul Cod Civil. Comentariupearticole (The New Civil Code. The Articles Commented), C. H.
Beck, Bucharest;
Florian E. (2010), Dreptulfamiliei (Family Law), 3th. Edition , C.H. Beck, Bucharest;
Florian E. (2016), Dreptulfamiliei (Family Law), 5th. Edition , C.H. Beck, Bucharest;
Guțan S. (2011), Reproducereaumanăasistată medical șifiliația (Assisted Human Reproduction and the Lineage), Hamangiu,
Bucharest;
Hamangiu C., Rosetti I., Băicoianu Al. (1997), Tratat de drept civil român (Romanian civil law treaty), VolumeI, All,
Bucharest;
Ionașcu A. and others (1980), Filiațiașiocrotireaminorilor (Filiation and the protection of minors), Dacia, Cluj-Napoca;
Lupașcu D., Crăciunescu C.M. (2011), Dreptulfamiliei (Family Law), UniversulJuridic, Bucharest ;
Romanian Civil Code
Romanian Constitution
Uliescu M. and others (2012). Noul Cod civil. Studiișicomentarii (The New Civil Code. Studies and Commentaries) Volume I,
UniversulJuridic, Bucharest;
UN General Assembly (1948). Universal Declaration of Human Rights, 217 A (III);
Civil Sentence no. 8681 of November 1, 2012, pronounced by the 5th District Court of Bucharest;
Civil decision no. 1196 of 26 September 2013 issued by the Timişoara Court of Appeal;
Civil Sentence no. 1168 of June 11, 2014, pronounced by Drăgăşani Court.
ArtinSarchizian (2012), Filiațiapaternăîncontextulreproduceriiumaneasistate. Scurteconsiderații,
http://www.juridice.ro/226825/filiatia-paterna-in-contextul-reproducerii-umane-asistate-scurte-consideratii.html;
318
Civil Sentence no. 8681 of November 1, 2012, pronounced by the 5th District Court of Bucharest; Civil
decision no. 1196 of 26 September 2013 issued by the Timişoara Court of Appeal in the file no.
5101/325/2012; Civil Sentence no. 1168 of June 11, 2014, pronounced by Drăgăşani Court in the file no.
1601/223/2014 (not published).
140
THE CONCEPT OF CRIME IN EUROPEAN DOCTRINE
Prof. univ. dr. Constantin SIMA
Abstract
The synthesis of some elements that characterize the crime concerned jurists from all over the world and from
all places.
The first attempts were made in the feudal age, but we can only speak of a real crime concept with the
emergence of the classical school, the positivist school continuing with the sociological school and currents in
the contemporary criminal doctrine. Each of these trends has attempted to define the crime either from a
material or a formal perspective. The study aims to establish the closest position to the contemporary social and
juridical reality.
Key words: crime, offense, delict, misdemeanor
Historical evolution of the notion of crime
1. Feudal criminal law
Until the first encodings appeared, in criminal feudal law, the sphere of crime was imprecise and
uncertain.
Historians have, however, retained three concepts of the crime developed during this period.
The first of these concepts considers the crime to be a violation of the law and is best expressed by the
Italian glossary Tiberio Deciani (1508-1582) defining the offense "Maleficium est factum hominis, which is the
very law of the scripture, nulla iusta causa excusari potest "(The offense is what the man committed by deed,
word or writing, intentionally or by fault, and is forbidden under the law, and can not be excused by any just
cause).
The second conception sees in the offense a rebellion against authority, the offender is a rebel, and the
report that is born by committing the offense between the author and society is political rather than legal.
The third conception is Christian, according to which crime is a sin, the manifestation of a criminal
inclination that has its source in original sin. This doctrine is developed by Blessed Augustine and Toma
d'Aquino, underlying canon law.
2. Classical school
The first elements of a definition of the crime were provided by the Classical School, whose representatives
have drawn a line of demarcation between religion and morals, on the one hand, and civil and political laws, on
the other.
This idea is clearly affirmed in Montesquieu and Voltaire, who said that in hidden actions that damage the
deity, where there is no public action, there is no crime.
Here is another important element of the definition of the offense: only external conduct is the subject of
incrimination, the inner conduit remaining to God. Thus, De Jaucourt proposes as a crime definition “the action
directly affecting the public interest or the rights of the citizen".
Beccaria's position will then be sustained and accentuated by J. Bentham, stating that "an offense is any act
the legislator forbids."
But while Bentham adopts a utilitarian and relativistic conception of criminality, considering that crime "any
act we believe must be forbidden on the grounds that it may cause harm or tends to cause harm", Beccaria
introduces the additional condition the intrinsic immorality of the act. In other words, there must be no
punishable offenses other than those that affect at the same time natural law and social law.
This difference of opinion between J. Bentham and Beccaria was later developed by the Neoclassical School
stating that the criminalization of a canon is legitimate only if that conduct is both socially and immorally
harmful.
This idea was expressed by J. Bentham who stated that it deserved to be punished "any act contrary to
the notion of just and which is necessary to be expressed for preservation or social welfare.
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3. Pozitivist school
In opposition to classical authors who were less concerned with the definition of crime than the
establishment of rational principles of incrimination, positivist authors gave this issue a central place. Thus,
Garofalo distinguishes between the notion of criminal offense and the sociological notion of offense. On this
basis, it is opposed to the notion of a "legal offense" of "natural offense." The natural or social delinquency
would consist in "violating feelings through acts that are at the same time harmful to the community."
Taking into account the changing and varying character of the feelings in relation to space and time,
Garofalo proposes to remember the "really substantial and identical part of every man of our age and our race, or
alteration, not very different from ours, from a psychic point of view. "
In other words, Garofalo wants to have in mind, when defining the offense an average moral sense of the
civilized peoples, a common sense that goes through the whole work of criminalization of modern history.
Garofalo distinguishes between a sense of mercy, to which he resists cruelty and demands resistance to the
impulses that cause suffering to our fellows and the feeling of probity that expresses respect for all that belongs
to another.
These two feelings would be the basis of the criminalization of the facts directed against the person and the
actions directed against the patrimony. Natural delinquency is determined by the damage to this part of the moral
sentiment that gives birth to mercy and probity, taking into account the average level at which these feelings can
be identified in a society. Garofalo does not rule out the lawmaker to incriminate other behaviors that may be of
interest to science in search of natural causes and social remedies.
In accordance with its definition of the offense, Garofalo defines the offender as the person who is missing,
has eclipsed or weak feelings of mercy and probity. E. Ferri preserves a definition of natural crime from a
different perspective from that of Garofalo to which he replies that he has not taken into account other feelings
other than mercy and probity. Jurist by formation E. Ferri is at a high degree of generalization, stating that "the
elements characteristic of the natural offense are the antisocial nature of the determining motives and the
attainment of the conditions of existence that involve elements of offense to the average morality of a determined
collective group."
The Italian criminalist seems less concerned with the formal aspects of the definition of crime (typically,
anti-jail) and attacks the substance of the crime: the anti-social and offensive to public morality. This approach to
the offense will decisively influence the criminal legal flows of the 20th century. The positivist school,
especially represented by E. Ferri, stressed the importance of the social factors both in defining the notion of
crime and in explaining crime prevention.
4. Sociological school
In order to define the offense, E. Durkheim attempts to separate a number of essential resemblances to define the
offense not only between offenses mentioned by the law of a particular society but among all those that are
recognized and punished in different societies. Contrary to Garofalo's opinion, E. Durkheim believes it is
possible to establish acts that at all times and in all places were classified as crimes, but such a method would not
yield the expected results. Continuing to be in opposite positions to Garofalo, he thinks he can not give up the
juridic notion of crime and calls an offense "any act that, to a certain degree, causes a characteristic reaction to
the author to call it punishment."
So, according to Durkheim, the offense is any act that society through the legislative forum finds fit to punish.
Since it can not be synthesized the intrinsic characteristics of acts forbidden by criminal law comment on the
report that these acts have under previous conditions. Durkheim does not accept the utilitarian idea that the
offense violates the fundamental requirements of collective life, and equally departs from the idea that criminal
acts are those that seem or are injurious, because in a large number of cases, society has been mistaken.
Neither Garofalo's idea that criminal acts are offensive to moral feelings is not agreed by Durkheim, who
estimates that a common feature of all crimes is that they affect the feelings common to the majority of the
individuals of a society.
We note that although he states that the notion of crime can not be waived, Durkheim introduces in the
definitions that he proposes important sociological notions: social reaction, collective and common
consciousness, moral feelings, etc.
Durkheim's position is an eclectic one, oscillating between the rigor of the classical school and the deepening
dedication to the problems faced by society in the face of the criminal phenomenon of the Positive School.
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5. Theories of social reaction
The promoters of the social reaction theories focused on two issues: criminalization as a process of creating the
offense and accepting the criminal norm in society, its representations within different social categories
In modern societies, there are strong differentiations based on social class criteria, ethnic, professional or
cultural criteria that make the social group's choices in the legislative process totally opposed to other social
groups. The same situation we find in the process of accepting the criminal norm that differs from one social
group to another The concept of crime and, more broadly, the deviance are, in the view of the authors of the
theory of social reaction extremely relative to the rules adopted by a society ordinary. "Social groups create a
deviant by adopting rules according to which the offense is deviant.
Crime, like any deviant, is only a derived concept that sends the study of the norm, the criminal law being the
one that creates the offense by itself. Therefore, according to the adherents of social reaction theories, the offense
is a deviant behavioral type that is provided for in the criminal law. On the one hand, we distinguish, in a first
stage, an assessment of the behavior of companies that select the dangerous ones. On the other hand, at a later
stage, the representatives of the society gathered in a legislative forum, criminalizes the selected behaviors as
dangerous, stipulating them in the criminal law.
Social response measures are means used by society to fight crime. Traditionally these were only punishments,
the most deprived of which was the deprivation of liberty. Alternatives to the deprivation of liberty and later to
other preventive criminal penalties appeared.
Starting from the thesis that not deviance leads to social reaction but social reaction leads to deviant and
deviance is not a quality of the act committed by a person but rather the consequence of the application of the
norms and sanctions by others to the one who violates the law, these criminologists consider the subject of
criminology to be the sociological analysis of the social reaction mechanisms from the adoption of criminal law
to the application of criminal sanctions.
6. Contemporary criminal doctrine
6.1 Formal conceptions and material conceptions
It is easy to define the perpetrator, but it is less easy to define the offense as a conceptual entity, says Professor
Roger Merle30 and Professor Jean Pradel has the same opinion 31, arguing that such a definition should include
the views of the moralist, sociologist and jurist . What is of interest is the legal definition of the offense and not
an ethical or sociological one. "From a formal point of view, in all countries of the world, the crime can be
defined as a sanctioned act with a punishment." "Crime, understood in a broad sense, is a lawful and punishable
behavior" or "a punishable act of criminal punishment and causing prejudice to another"
Obviously, the legal concept of crime is distinguished from sin and deviant. Sin is a religious notion linked to
personal morality and thus detached from social morality, and deviant, broadly, includes crime and uninvited
behaviors, even if they are immoral or socially dangerous.
The distinction between offense and deviance is based on a global analysis of antisocial or associal conduct,
some of which are incriminated, and others, many, remain, for various reasons, outside a criminal sanction.
While some criminologists, like Filippo Gramatica, would like to obey the law of penae all the forms of deviant
and antisocialism, many laws advocate the decriminalization of prostitution, vagabondage, suicide, alcoholism,
juvenile delinquency, which are less and less penalized .
Apart from the deviant, the crime is also distinguishable from the blameless conduct: the concept of crime as the
act of punishment.
In other words, we add, any offense implies a blatant conduct, not any blameable conduct is a crime. The
distinction between crime and problem situations, a concept brought to the fore by Western doctrine, is based on
some attempts by criminologists to substitute the offense with "problem situations", neutral notion, no moral
resonance, on which to construct any system of institutional responses or spontaneous, unlike the crime that
leads to the designation of a culprit.
8 Once the delimitation of the social phenomena, R. Merle and A. Vitu have established three characteristic
traits: the ultravalority of the offense, the offense produces social disturbances and the necessity of the social
reaction against the offense. Thus, by delimiting the offense from other similar phenomena and by enumerating
the constant features, a definition of the offense is implicitly made. The legal definition of the offense, as a
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premeditated and punished by law, based only on legalism, aims to prevent arbitrariness and protect the
individual from the society, but also the individual society. This type of definition, which only refers to the
presentation of the form of the offense (a fact stipulated and punished by the criminal law) was referred to in
formal definitions doctrine. In a formal conception, the offense exists only within the limits of an act being
criminalized in the sense that the criminal law accuses the offense by describing and sanctioning it. The
provision in the law that criminalizes an act contains all the conditions for an act to constitute an offense. The
definition of offense as a fact incriminated by law is a formal definition because it relates to the legal (formal
substance) aspects of the act and not to its material content (the real substance).
In a formal conception, the notion of offense has the content indicated by the rule of criminality, it only
highlights the formal aspect of the offense, its external aspect, the contradiction of the concrete act with the
precept of the criminality rule. In a material or substantial conception what prevails in the characterization of a
concrete act as a crime is not both the rule of criminalization and the realities, the substantive processes that led
the legislator to criminalize a deed and to attribute to it a socially dangerous character, that is unconventional in
the report with the interests of society. Thus, one of the most well-known French criminal law treaties defines
the offense as the act prescribed and punished by criminal law because of the disorder it causes to social order.
45 Similarly, Dictionnaire des Sciences Criminelles defines the offense as an act contrary to social order,
foreseen and punished by criminal law.
6.2 Mixed conceptions
A careful analysis of the stated definitions leads us to find that formal conceptions are not so far removed from
material conception. This is because, as we have seen, many definitions of the offense contain, besides strictly
formal elements (the deed prescribed and punished by criminal law) and material elements (the act contrary to
social order). The presence of some material references in the definition the offense is the consequence of social
realities that can not be neglected: the elaboration of criminal laws presupposes the evaluation, grouping,
systematization of the most important values in the society: life and physical integrity, human dignity,
reputation, property etc.
Criminological doctrine accepts the idea that criminal laws have a first repressive function consisting of the
provision of a sanctioning system elaborated according to the protected social values
A second, expressive function is based on a system of values recognized by collective consciousness.
These values are protected by prohibitions and the guarantee of these prohibitions is achieved by punishment for
those who violate them. Thus the criminal law is related to its sanctions against the value system of a company.
For this reason, there are few authors who have successively defined material definitions and formal definitions
without being disturbed by their apparent contradictions and without trying to combine them.
Durkheim thus defined the offense as an act that offends the strong and defined states of collective
consciousness in his work "On the Division of Social Work" in 1893 (material definition), and two years later, in
1895, in the "Rules of the Sociological Method" the offense as an act of this external character that, once
fulfilled, determines from the society the specific reaction that we call punishment (formal conception)
Even the well-known penalties, such as R. Merle and A. Vitu, when defining the offense as "the act that the law
punishes him with a punishment" refer to the objective social realities that legislators regard as crimes and refers
to the essential values behind who have collective feelings that affectively attach the members of a group to their
norms of conduct. It also refers to a criminal threshold triggering a sufficiently intense emotion within society to
provoke a punishing reaction.
Michele Laure Rassat acknowledges that French law has circumvented the difficulty of defining the offense by
choosing a purely formal and legal definition: the offense is any act prescribed and punished by criminal law. In
doing so, the greatest inconvenience of a definition, the arbitrariness, was removed, but it retained a major
defect, namely the excessively schematic character, which lost sight of the fact that the offense is a human deed,
a social act. If a legal definition has to meet a predominantly technical need, it must not exclude the moral and
social coloration of the act. The author concludes that an exact definition of the offense should be any act
foreseen and punished by criminal law because it stirs morals or disturbs social order.
In the Italian criminal doctrine it is accepted the formal definition of the offense according to which the offense
is "any human deed to which the law associates a criminal sanction." However, it underlines the necessity of a
material definition of the offense such as: "It is a crime that human behavior, provided by law, which contradicts
the state's aims and requires, as a penalty, a punishment. "
144
Or "is an offense an inhuman deed which causes injuries to a social value protected by law in accordance with
constitutional principles, provided that the harm is such as to inevitably be sanctioned by a punishment and non-
criminal sanctions prove to be insufficient" . Mixed definitions, mostly used in doctrine, attempt to compensate
for the overly schematic nature of formal definitions by introducing intrinsic elements that delimit the criminal
illicit of other forms of illicit.
Thus, Professor F. Antolisei introduced the phrase "contrasts with the purposes of the state" by understanding in
general the general representative of society. Therefore, the goals of the state are not those that concern the
management of political power but those that refer to the good administration of the society, the creation of a
climate of safety and social comfort.
Professors G. Fiandaca and E. Musco formulated a more complex definition in which they introduced as a
distinctive element the consequence of illicit human conduct: the breach of a social value which requires
protection under the constitutional order
The necessity of introducing elements of distinctive character in the notion of crime is determined by the
historical evolution of society, by the fact that a certain action is considered a crime in a law, at a certain moment
it could be lawful in another society, at another moment.
The definition of crime is an object of study for criminal doctrine and less for criminal law, except for the
central and eastern European states that are concerned with defining the offense in criminal law. In these states,
the offense is defined as a socially dangerous act (Russian Criminal Code 1961, Russian Criminal Code 1997,
Chinese Criminal Code 1980, Vietnamese Criminal Code 1999, Polish Penal Code of 2003), which violates a set
of social values starting with those of general interest (social or state economic system, property) and ending
with those of personal interest (person and rights).
The offense must cause concrete harm to the society or third party (Croatian Criminal Code 1997, Polish Penal
Code 1999), a principle inspired by the French doctrine (indispensability theory) where incrimination is
legitimate only if it tends to avoid serious harm society and the Italian doctrine (the principle of offense) where
incriminated behavior must damage or endanger a legal good. We therefore find that material and mixed
definitions have a consistent relationship with a system of values that are threatened or harmed by human
conduct prohibited by criminal law
According to these concepts, crime, as a conducting act, can not be studied in an abstract environment, isolated
from social life, because the offense is a social reality.
6.3. The Criminological Concept
Classical criminology expressed reservations about the legal notion of crime, but also about classification in
crimes, offenses, offenses that have purely formal incriminations, lacking scientific character because of the
extreme variability of incriminations in time and space that makes the offense a relative phenomenon, but also
due to the very disparity of incriminations contained in national legislation that confers heterogeneity.
To avoid the relativity of the notion of crime as the human and social reality prior to any incrimination consisting
of one-person aggression against the most important values of the social group.
The heterogeneity of offenses has been remedied by establishing new contours for the various categories of
crimes, and some criminologists have proposed rejecting the qualifications used in criminal law and replacing
them with categories of criminology such as utilitarian appropriation and symbolic appropriation of the good of
another instead of theft , cheating or abuse of trust. These attempts to develop new concepts to replace the notion
of criminal offense have in the end created many dissatisfactions that have led to a return to the concepts of
criminal law that have these advantages mainly because it uses more clearly defined and easier to use notions.
However, the criminological conception reveals the ineffectiveness of using formal criteria in defining the basic
notions of criminal law, among which the offense
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THE CONCEPT OF CRIME – TYPOLOGIES AND MODERN THEORIES
PERSPECTIVES
Adriana Iuliana STANCU, Ph. D Lecturer, Faculty of Judicial, Social and Political Sciences,
“Dunarea de Jos” University of Galati, Romania
The word “crime” conjures up many images: mugging and murder, cheating on taxes, and selling crack. Penal
codes define thousands of different crimes. But all crimes have certain elements in common. All are human acts
in violation of law, committed by an actor who acted with a criminal intent to cause a specified harm. The
various legal defenses to crime are based on the defendant's alleging that one of the required elements was
missing. After analyzing the common ingredients of all crimes, we examine criminal events from two
criminological perspectives. The rational-choice perspective explains the criminal event in terms of the criminal,
the motivation, and the situation surrounding the crime. The routine-activities perspective explains the criminal
event in terms of motivated offenders, suitable targets, and the absence of guardians.
1. TYPOLOGIES OF CRIME
There is hardly a subject on which the public holds stronger views than that of crime. Perhaps this is as it
should be, since crime concerns the entire community. Yet crime is not just an emotional issue capable of being
discussed by everybody. It is also a technical subject, a legal construct developed over the centuries by
monarchs, courts, and legal scholars. In addition, it is a concept (or concepts) developed and still being refined
by social and behavioral scientists.
All crimes have something in common, a set of characteristics, or elements, that distinguish them from all
noncrimes. The general term “crimes” covers a wide variety of different types of crimes with their own distinct
features. Murder and arson, for example, both are crimes. They have the same seven general elements, including
a criminal intent (mens rea), and a harm element. But these elements take different forms in different crimes. In
murder the criminal intent takes the form of intending to kill another human being wrongfully, while in arson the
intent is that of burning the property of another. Lawyers and criminologists have searched for a system of
grouping the many types of crimes into coherent, rational categories, for ease of understanding, of learning, and
of finding them in the law books and for purposes of studying them from both a legal and a criminological
perspective. Such categorizations are called typologies.
Here are some examples: The ancient Romans classified their crimes as those against the gods and those
against other human beings. As late as the eighteenth century, some English lawyers simply listed crimes
alphabetically. The French of the early nineteenth century created a typology with three categories: serious
crimes (which we would call felonies), medium serious crimes (which we would call misdemeanors), and crimes
of a petty character (which we would call violations). The more serious crimes were grouped into categories
based on the harm those crimes entailed, such as harm against life, against physical integrity, against honor,
against property, and so on.
Nowadays the French categorization is generally accepted, worldwide, although lawyers and criminologists
may differ on the desirability of lumping various crime types together into categories. Lawyers, after all, may be
much more interested in the procedural consequences that flow from the categorizations, while criminologists
may be much more concerned with criminological implications for studying different types of perpetrators and
devising schemes of crime prevention.
There are also political considerations in devising a typology. For example, the criminal codes of the former
communist countries have large categories of political crimes, which are given the most prominent place in those
codes They include many crimes which in Western democracies are grouped in other categories, such as
property crimes or crimes against the person, or which may have no counterpart at all.
The typology we have chosen for this article seeks to accommodate both the established legal typology - for
example, that used in the Model Penal Code and the criminological objectives that are so important for the study
of crime from a sociological and behavioural perspective. These categories are: Violent crimes, Crimes against
property, Organizational criminality, Drug, alcohol, and sex - related crimes.
Since criminologists want to know much more about crime than prosecutors, judges, and jurors need to know
to establish the guilt or innocence of an individual offender, we have chosen the perspectives of two
criminological theories crime to explain crime types within the four categories. These are the rational-choice and
the routine-activities theories.
2. THEORIES OF CRIME
In recent years, some criminologists have focused on why offenders choose to commit one offense rather
than another at a given time and place. They stress the important distinction between theories of crime and
146
theories of criminality. Theories of criminality, Michael Gottfred-son and Travis Hirschi point out, explain why
some people are more likely than others to commit crimes; theories of crime identify conditions under which
those who are prone to commit crime will in fact do so.
Crimes are events. They take place at a specific time in a specific place. The presence of an offender is only
one of the necessary components; crimes require many conditions that are independent of the offender, such as
the availability of goods to be stolen or persons to be assaulted. Some experts have argued that if crimes are to be
prevented and effective crime-control policies developed, the study of criminal behavior must be closely tied to
the decision making process of offenders and to the criminal acts themselves.
2.1. Rational Choice
The rational-choice perspective, developed by Derek Cornish and Ronald Clarke, takes into account the
entire criminal event, which includes the criminal, the motivation, and the situation. “Rational” refers to the fact
that criminals process information and evaluate alternatives. “Choice” suggests that they make decisions.
According to Cornish and Clarke, an individual commits a crime after he or she has made a rational decision
to do so that is, has weighed the risks and benefits of the act and selected a particular offense according to
various criteria. Before committing a theft, for example, an offender may consider: The number of targets and
their accessibility; His or her familiarity with the chosen method (for example, fraud by credit card); The
monetary yield per crime; The expertise needed; The time required to commit the act; The physical danger
involved; The risk of apprehension.
Consider the following scenario: A young man is unemployed. He has no savings. Most of the money he
makes doing odd jobs goes into his car, which the bank is about to repossess. He feels desperate. He needs
money just to tide him over. Some of his peers have suggested that he work in the local crack house. He knows
that though the rewards are good, the risks are high. Instead, he decides to commit a robbery. Where can he find
the best target ? The local bank ? No, it's too well protected. The gasoline station ? No, it has guard dogs - and
besides, he knows some of the guys who work there. The Mc Donald s in the next town is perfect. Only two
people work behind the counter after midnight, a side street offers a quick getaway, police seldom put in an
appearance, and no one over there knows him.
Let us analyze this scenario in terms of the rational-choice approach. The young man is desperate for money
and needs it fast (the motive). He weighs the risks. The probability of a raid on the crack house is too high. He
looks for suitable targets that are not well protected and are likely to have quite a bit of cash on hand. Two
distinct sets of characteristics, then, are involved in law-violating behavior: those of the offender and those of the
offense. The offender's characteristics include specific needs, values, learning experiences, and so on. The
characteristics of the offense include the location of the target and the potential yield. According to rational-
choice theory, involvement in crime depends on a personal decision made after one has weighed available
information.
What will happen if the young man is frustrated in his holdup attempt? Suppose he arrives at the Mc Donalds
only to find police officers having dinner there. Will he then automatically look for another place to rob? Cornish
and Clarke argue that displacement - the commission of a qualitatively similar crime at a different time or place -
does not always follow. Of course, some offenders will try again, but the rational-choice approach suggests that
others will quit for some time - or, indeed, forever.
2.2. Routine Activities
Another new approach, the routine-activities perspective, is closely linked to rational-choice theory. It, too,
focuses on the characteristics of the crime rather than on those of the offender. According to Lawrence Cohen
and Marcus Felson, there will always be a good supply of motivated offenders. What we need to understand is
the range of options among which offenders choose when they decide to commit a crime. “Just as lions look for
deer near their watering hole”, Felson says, “criminal offenders disproportionately find victims in certain
settings.” This approach focuses on the circumstances in which crimes are committed.
Each criminal act requires the convergence of three elements: Likely and motivated offenders (for example,
unemployed teenagers); Suitable targets (for example, easily transportable goods); An absence of capable
guardians to prevent the would-be offender from committing the crime (for example, friends or neighbors).
Cohen and Felson point out that crime rates rise along with the number of suitable targets and the absence of
people to protect those targets. Over the last few decades, the number and variety of suitable targets - goods
easily transported and sold, such as videocassette recorders and compact disc players - have increased steadily.
At the same time, changes in the routine activities of everyday life have left most of those targets unguarded a
good part of the day.
In the past, neighborhoods were smaller than they are now; when people leu home, they walked. They
shopped at neighborhood stores and visited movie houses, restaurants, clubs, and friends close to home. Feu-
places they went to regularly were more than a couple of blocks away. Since World War II, the territory of
routine activities has expanded outward. The development of suburbs and expressways, the ease of air travel, the
147
proliferation of day-care centers and nursery schools, and the increasing participation of women in the labor
force have left homes empty and unguarded.
The logic of the argument is straightforward: routine patterns of work, play, and leisure time affect the
convergence in time and place of motivated offenders, suitable targets, and the absence of guardians. Cohen and
Felson argue that if one component is missing, crime is not likely to be committed. And if all components are in
place and one of them is strengthened, crime is likely to increase. Even if the proportions of motivated offenders
and targets stay the same, for example, changes in routine activities of the sort we have experienced since World
War II will alone raise the crime rate by multiplying the opportunities for crime. This approach has helped
explain, among other things, rates of victimization for specific crimes, rates of urban homicide, and “hot spots” -
areas that produce a disproportionate number of calls to police.
2.3. Free Will?
This formula gives the impression that the law is based on "free will," the idea that people are accountable
only if they freely choose to do a thing and then consciously do it. But scientists and lawyers have yet to
discover an individual who is completely free to make choices. All of us have been molded by factors beyond
our control, and our choices are to some extent conditioned by external factors and forces. It is only when
choices are overpoweringly influenced by forces beyond our control, such as the case of the sleepwalking stone
thrower, that the law will consider behavior irrational and beyond its reach.
Determinists, however, argue that all human behavior is determined by forces beyond the control of human
actors. Rational- choice and routine-activities scholars take no position in this debate. Rational-choice theory
neither demands nor presupposes the existence of free will. To choose one moment rather than another, or one
target rather than another, does not require free will. Even a mouse learns quickly that it cannot get at the cheese
by gnawing at the refrigerator door. But cheese on an open tray is fair game. Obviously the mouse prefers the
tray to be in the room without the cat. Rational-choice theorists are interested in preventing a crime (once
something is recognized to be a crime). They would recommend putting a glass dome over the cheese tray.
2.4. Act vs. Status
The criminal law, in principle, does not penalize anyone for a status or condition. Suppose the law made it a
crime to be more than 190 cm tall or to have red hair. Or suppose the law made it a crime to be a member of the
family of an army deserter or to be of a given religion or ethnic background. That was exactly the situation in the
Soviet Union under Stalin's penal code, which made it a crime to be related to a deserter from the Red Army. It
was also the situation in Hitler's Germany, where the crime was to be Jewish, and it was punishable by death.
There is more to the act requirement than the issue of a behavior's being voluntary and rational: there is the
problem of distinguishing between act and status. A California law made it a criminal offense, subject to a jail
term, to be a drug addict. In Robinson v. California the U.S. Supreme Court held that statute to be
unconstitutional. By making a status or condition a crime, the statute violated the Eighth Amendment to the U.S.
Constitution, which prohibits “cruel and unusual punishments”. Addiction, the Court noted, is a condition, an
illness, much like leprosy or venereal disease. Even babies born of addict mothers are addicts. Said the Court:
“Even one day in prison would be cruel and unusual punishment for the 'crime' of having a common cold.”
2.5. Failure to Act
The act requirement has yet another aspect An act requires the interaction of mind and body. If only the mind
is active and the body does not move, we do not have an act: just thinking about punching someone in the nose is
not a crime. We are free to think. But if we carry a thought into physical action, we commit an act which may be
a crime.
Then there is the problem of omission, or failure to act. If the law requires that young men register for the
draft, and if you are a young man and you decide not to fill out the registration form, you are guilty of a crime by
omission. But haven't you really acted? You told your hand not to pick up that pen, not to fill out the form.
Inaction may be action when the law clearly spells out what you have to do and you decide not to do it.
3. THE LEGALITY REQUIREMENT
Marion Palendrano was charged with, among other things, being a “common scold” because she disturbed
“the peace of the neighborhood and of all good and quiet people of this State”. Mrs. Palendrano moved that the
charge be dismissed, and the Superior Court of New Jersey agreed with her, reasoning:
1. Such a crime cannot be found anywhere in the New Jersey statute books. Hence there is no such crime,
although, long ago, the common law of England may have recognized such a crime.
148
2. “Being a common scold” is so vague a concept that to punish somebody for it would violate constitutional
due process: “We insist that laws give the person of ordinary intelligence a reasonable opportunity to know what
is prohibited, so that he may act accordingly”, ruled the court.
If we want a person to adhere to a standard, the person has to know what that standard is. Thus we have the
ancient proposition that only conduct which has been made criminal by law before an act is committed can be a
crime; in Latin, nullum crimen sine lege (“no crime without law”). Police, prosecutors, and courts are not
interested in the billions of acts human beings engage in unless such acts have previously been defined by law as
criminal. The law is interested only in an act (actus) that is reus, in the sense of guilty, evil, and prohibited.
Additionally, as Marion Palendrano's case demonstrates, when the law has made some behavior a crime, the
language defining it must be clear enough to be understood.
4. THE HARM REQUIREMENT
Every crime has been created to prevent something bad (a given harm) from happening. Murder is prohibited
because we don't want people to be killed. Arson and theft are prohibited because we don't want people to be
deprived of their property. This detrimental consequence that we are trying to avoid is called harm. If the
specified harm has not been created by the defendant's act, the crime is not complete. Just think of would-be
assassin John W. Hinckley, who tried to kill President Reagan. He shot Reagan, but the president did not die.
The harm envisioned by the law against murder had not been accomplished. (Hinckley could have been found
guilty of attempted murder - but he was acquitted by reason of insanity.)
Sometimes the harm is less drastic than a dead person or a burned house. Pooper-scooper laws (you must
clean up after your dog) are designed to prevent the harm of dirty streets and sidewalks. In the case of drunk-
driving statutes, the harm is not of a physical nature. It consists of the grave danger to the public which driving
while intoxicated constitutes. (If the drunk driver kills someone, a more serious charge is brought.)
From a criminological perspective, most crimes are grouped by the harm that each entails. Offenses against
the person involve harm to an individual, and offenses against property involve damage to property or loss of its
possession. The notion of harm is of particular importance to the rational-choice and routine-activities theories.
After all, criminal law is meant I pre vent the harm envisaged by penal statutes. The interests threatened by
criminal harm, the values of life and property, need protection from people who have a motivation and an
opportunity to inflict such harm.
5. MENS REA: THE “GUILTY MIND” REQUIREMENT
Every crime, according to tradition, requires mens rea, a “guilty mind”. Let us examine the case of Ms.
Lambert. She was convicted in Los Angeles of an offense created by city ordinance: having lived in the city
without registering with the police as a person previously convicted of a crime. Ms. Lambert had no idea that
Los Angeles had such a registration requirement. Nor could she possibly have known that she was required to
register. She appealed all the way to the U.S. Supreme Court, and she won. Said the Court: “Where a person did
not know [of the prohibition] (s)he may not be convicted consistent with due process”.
Of course, to blame Ms. Lambert for violating the Los Angeles city ordinance would make no sense. Ms.
Lambert had no notion that she was doing something wrong by living in Los Angeles and not registering herself
as a convicted person. The potential of blame that follows a choice to commit a crime is meant to be a powerful
incentive to do the right thing and avoid doing the wrong thing. That is the function of mens rea. (We will return
to Ms. Lambert later on.)
With Ms, Lambert's case we have reached a fundamental point: No one can be guilty of a crime unless he or
she acted with the knowledge of doing something wrong. This principle always has existed. It is implicit in the
concept of crime that the perpetrator know the wrongfulness of the act. It is not required that the perpetrator
know the penal code or have personal feelings of guilt. It is enough that the perpetrator knows that and decided
to do it anyway.
Anyone who violently attacks another person, takes another's property, invades another’s home, forces
intercourse, or forges a signature on someone vise’s check knows rather well that he or she is doing something
wrong. All these examples of mens rea entail an intention to achieve harm or a knowledge that the prohibited
harm will result. For some crimes, however, less than a definite intention suffices: reckless actions by which the
actors consciously risk producing a prohibited harm (for example, the driver who races down a rain-slicked
highway or the employer who sends his employees to work without safety equipment, knowing full well that
lives are thereby being endangered).
Strict liability is an exception to the mens rea requirement. There is a class of offenses for which legislatures
or courts require no showing of criminal intent or mens rea. For these offenses, the fact that the actor makes an
innocent mistake and proceeds in good faith does not affect criminal liability. Such offenses are called strict-
liability offenses, and they crept into our law with the Industrial Revolution. Most of them involve conduct
subject to regulation, conduct that threatens the public welfare as a whole. Strict-liability offenses range all the
149
way from distributing adulterated food to passing a red light. Typically these offenses are subject to small
penalties only, but in a few cases substantial punishments can be and have been imposed.
6. THE CONCURRENCE REQUIREMENT
The concurrence requirement states that the criminal act must be accompanied by an equally criminal mind.
Suppose a striker throws a stone at an office window in order to shatter it, and a broken piece of glass pierces the
throat of a secretary, who bleeds to death. Wanting to damage property deserves condemnation, but of a far
lesser degree than wanting to kill. Act and intent did not concur in this case, and the striker should not be found
guilty of murder.
7. THE PUNISHMENT REQUIREMENT
The last ingredient needed to constitute a crime is that of punishment. An illegal act coupled with an evil
mind (criminal intent or mens rea) still does not constitute a crime unless the law subjects it to a punishment. If a
sign posted in the park states “Do not step on the grass” and you do it anyway, have you committed a criminal
offense? Not unless there is a law that subjects that act to punishment. Otherwise it is simply an improper or
inconsiderate act.
The punishment requirement, more than any of the others, helps us differentiate between crimes (which are
subject to punishments) and torts, civil wrongs for which the law does not prescribe punishment but merely
grants the injured party the right to recover damages.
The nature and severity of punishments also help us differentiate between grades of crime. Most penal codes
recognize three degrees of severity: Felonies are severe crimes, subject to punishments of a year or more in
prison or to capita] punishment. Misdemeanors are less severe crimes, subject to a maximum of 1 year in jail,
(For crimes of both grades, fines can also be imposed as punishments.) Violations are minor offenses, normally
subject only to fines.
8. THE DEFENSES: EXCUSES
When we turn to the various defenses recognized by law, we discover that each defense simply claims that
one or more of the seven basic constituent elements of the crime does not exist. In other words, what at first
glance may indicate that a crime was committed - a dead body or a burned building - may turn out not to be a
crime after all because, for example, the perpetrator lacked criminal intent or the law granted the actor the right
to do what he or she did so that the “illegality” is absent.
9. CONCLUSIONS
Unlike theories of criminality, which explain why people commit crimes, recent approaches, such as the
theories of rational choice and routine activities, try to explain why specific crimes are committed. The emphasis
of these new, crime-specific theories is on the crime rather than on the perpetrator, so it becomes necessary to
focus on: he meaning of crime. In terms of the legal meaning of crime, in order for a crime to exist, seven basic
elements must be present: (1) an act (actus) drat (2) is in violation of law (reus), that (3) causes 4) the harm
identified by the law, and that is committed with (5) criminal intent (mens rea, or a guilty mind). In addition, (6)
the criminal act must concur with the guilty mind, and (7) the act must be subject to punishment.
Defenses to crime simply negate the existence of one of the seven basic elements, usually the mens rea (as in
mistake of fact and insanity), sometimes even the act itself (as in some insanity defenses), and sometimes the
unlawfulness of: he act (as in justification defenses).
10. REFERENCES
1. Adler F., Mueller g., Laufer W., Criminology, 2d ed., McGraw-Hill, Inc, 1995.
2. Clarke Ronald and Felson M., Introduction: Criminology, Routine Activity, and Rational Choice, Routine
Activity and Rational Choice, Advances in Criminological Theory, vol. 5, Ronald V. Clarke and Marcus Felson,
New Brunswick, N.J.: Transaction, 1993.
3. Clarke R., Harris P., A Rational Choice Perspective on the Targets of Automobile Theft, Criminal Behaviour
and Mental Health, 1992.
4. Cornish D., Clarke R., The Reasoning Criminal, New York: Springer Verlag, 1986.
5. Cornish D., Clarke R., Under standing Crime Displacement: An Application of Rational Choice Theory,
Criminology, 1987.
6. Cohen L., Felson M., Social Changes and Crime Rate Trends: A Routine Activity Approach, American
Sociological Review, 1979.
150
7. Felson M., Routine Activities and Crime Prevention in the Developing Metropolis, Criminology, 1987.
8. Gottfredson M., Hirschi T., A Propensity-Event Theory of Crime, Advances in Criminological Theory, vol. 1,
William S. Laufer and Freda Adler, New Brunswick, N.J.: Transaction, 1989.
9. LaFave W., Scott A., Criminal Law, St. Paul , Minn.: West, 1983.
10. Mueller, On Common Law Mens Rea, Minnesota Law Review, 1958.
11. Sherman L., Gartin P., Buerger M., Hot Spots of Predatory Crime: Routine Activities and the Criminology of
Place, Criminology, 1989.
151
THE LEGAL CONSEQUENCES OF EVICTION RESULTING FROM THE DEEDS
OF A THIRD PARTY TO A SALE CONTRACT
STOICA Veronica, Prof. Dr. – Dean of the Faculty of Law – Al. Ioan Cuza Police
Academy of Bucharest
RADA Elena, Phd. Candidate, Rada&Asociații
Abstract: The aim of this paper is to review the legal consequences of eviction resulting from the deeds of a third
party, considered both from the perspective of the regulations of the current civil code as to the sale contract, and
from that of the most recent case law released by the judicial bodies. Last but not least, these regulations will
also be contrasted with the provisions of the1864 Civil Code.
1. INTRODUCTION
As mentioned by the doctrine319
, the guarantee against eviction has not been, in recent times, a topic that
could make the object of specialists’ interest, authors being especially concerned with the guarantee against
vices, both due to the great variety of goods that are now in civil circulation, but also to the newly emerging
situations determined by the many specific regulations currently in force. For example, on matters regarding the
guarantee against vices of a building, given the evolution of technologies and materials used today when erecting
a building, it was only natural to also adapt such guarantee against hidden vices to the present context, thus
generating an extremely well drafted and detailed document of such type. Under these circumstances, the
guarantee against eviction has not been given the same amount of attention in the legal literature.
According to the definition provided by private property law, as regulated under the provisions of Article 555
Civil Code, this is “the right of the titleholder to carry in possession, use and dispose of an asset exclusively,
absolutely and continuously, within the limits set forth by the law”. As a general rule, by means of the sale
contract, the seller transmits to the buyer the property right over a good in consideration of a certain price. On
the basis of such property right, the buyer will be interested in being able to use and dispose of the acquired asset
freely and without any claims and/or restrictions related thereto.
2. SOME CONSIDERATIONS ON THE GUARANTEE AGAINST EVICTION
2.1. Notion
Eviction refers, on the one hand, to the loss, in whole or in part, of the property right or of another right
acquired by sale or, on the other hand, to the disturbance of the buyer in his/her exercise of the prerogatives
conferred via the transmitted right.
Guaranteeing somebody against eviction means to ensure undisturbed possession over an asset delivered to
the respective person. In this context, it is obvious that the guarantee against eviction is that guarantee that any
acquirer of a property right has in view intently when deciding upon whether to conclude a legal instrument or
not, such guarantee being weighed against the solvency of the party with which they conclude such document.
The basis of the guarantee against eviction relating to the sale contract is represented by Article 1695 -1706
Civil Code. The sale contract is considered, in the doctrine320
, as the standard contract reflecting issues related to
the guarantee against eviction, the lawmaker stipulating, in the aforementioned articles, the rules applicable in
case that the seller failed to perform all possible diligences in order to ensure, for the buyer, an undisturbed and
useful utilization of the sold asset or good, such rules being possibly applicable also in the case of other contracts
accompanied by a transmission of rights. According to Article 1695 para. (1) Civil Code, “The Seller is
obligated de jure to guarantee the Buyer against eviction, which would fully or partially prevent him/her from
peacefully possessing the asset or good that has been sold.” It thus results that eviction may consist either in
losing property or any of the components of the property right over the purchased asset or good (in whole or in
part), or in disturbing the exercise of the buyer’s owner prerogatives, such hindrance occurring as a result of the
capitalization/use by a third party or by the former owner himself/herself, of a right over the acquired asset or
good321
.
319
Camelia Toader, Evicțiunea în contractele civile (Eviction in Civil Contracts), All Publishing House, 1997,
page 7 320
Ibidem, page 8 321
Aspazia Cojocaru, Contracte civile (Civil Contracts), Lumina Lex Publishing House, Bucharest, 2005, page
32
152
2.2. Types of guarantees against eviction
From the perspective of the person causing the occurrence of the eviction, the Civil Code stipulates two cases
of guarantee against eviction: (i) Guarantee against eviction occurring as a result of deeds perpetrated by the
Seller, and (ii) Guarantee against eviction deriving from a third party’s claims.
Considering the legal consequences taking places after the occurrence of a case of disturbance in peacefully
possessing the sold asset or good, the Civil Code mentions three situations: (1) total eviction; (2) partial eviction,
and (3) eviction removed by the buyer in exchange for a certain patrimonial price.
3. THE GUARANTEE AGAINST EVICTION RESULTING FROM THE SELLER’S OWN
DEED/CONDUCT
According to the Civil Code, the guarantee against eviction resulting from the Seller’s own deed/conduct is
considered as a perpetual obligation to abstain (not to do) which falls both in the Seller’s charge, as well as in
that of its successors with universal vocation. It is undoubted that, by the sale contract, the Seller has transmitted
to the Buyer not only all the rights that they had with regard to the asset making the object of the Seller’s action
at the date of concluding the contract, but also all the rights that are likely to be acquired by it in the future, such
as, for example, the right to build, based on a building permit that was not issued yet at the date of executing the
sale-purchase contract for a plot of land. A classical example of a guarantee against eviction regarding any
future rights that the Seller might have onto an asset, and that involves the Seller’s obligation to abstain, is that
in which an asset is sold to another party, but the Seller subsequently becomes an heir of the actual owner
thereof.
The guarantee against eviction has a wide scope of applicability, including both de facto and de jure
disturbances having occurred before the transfer of the property right and not brought to the purchaser’s
knowledge, or after such transfer yet unprovided for under the sale contract. De facto disturbances imply the
Seller’s prohibition from committing any material deed, even legal in nature, that might adversely affect the
buyer in exercising its property right prerogatives322
. De jure disturbances presuppose the Seller’s prohibition
from raising any claims regarding a right (real or represented by a receivable) over the sold object, as long as
the contract is still valid. This does not mean that the Seller will be prohibited from questioning the validity of
the sale act or to request, in any other legal manner, the execution of the buyer’s obligations. The same situation
of a de jure disturbance occurs when the Seller concludes, previously to executing the sale contract, any other
acts with third parties whereby limiting the sold right or having the Seller take note of the existence of any
limiting causes, keeping such knowledge away from the Buyer’s attention323
. If the Seller does execute any act
of this nature whereby limiting the property right, such as, for example, selling a real property to two buyers,
what will happen is that the first party that will record its right with the Land Book Registry will automatically
evict the second one. Eviction takes place, nevertheless, as a result of having the Seller conclude a sale contract
with the evicting third party. In such case, it thus results that, the Seller’s obligation to provide a guarantee
against eviction, generated by its own deeds, shall have effects as a result of a direct or an indirect eviction
(occurring via a third party wishing to record its right with the Land Book Registry).
4. GUARANTEE AGAINST EVICTION DUE TO A THIRD PARTY’S DEED
4.1. Notion
The Seller also has the obligation to guarantee the Buyer against any disturbance caused to the latter by any
third parties while exercising the prerogatives associated with the property right over the purchased asset or
good. Thus, by contrast with the guarantee generated by own deeds/conduct, which is, in fact, an obligation to
abstain (not to do), the guarantee for the third party’s deed is an obligation to do, consisting in holding the buyer
harmless from the third party’s claims, based upon meeting certain conditions.
A few more notes must be made concerning those disturbances of the property right’s prerogatives. Thus, in
the case of such disturbances, the buyer may be responsible himself for any possible limitations of the property
right, allowing third parties to lawfully act, or the buyer can remove the respective claims should the third
parties’ action be illegal. In the first case, we cannot identify any legal grounds that could be invoked by the
buyer in requesting the guarantee whereas, in the second case, such request would be futile, the buyer having all
possibilities to defend itself against such situations of disturbances. Therefore, the Seller shall guarantee the
Buyer against those actions performed by third parties that are likely to limit or prevent the exercise of the
property right over the purchased asset/good, actions that must be equally lawful and not be caused by the buyer
itself.
322
Comăniță Gheorghe, Comăniță Ioana-Iulia, Drept civil. Contracte civile speciale (Civil Law. Special Civil
Contracts), Universul Juridic Publishing House, Bucharest, 2013, page 47 323
Ibidem, page 51
153
4.2. Conditions
So as to invoke the guarantee against eviction from a third party, the lawmaker has imposed the requirement
of meeting the following conditions: existence of a de jure disturbance, the cause of the eviction should have
happened before the execution of the sale contract, and the buyer should not have known about the cause of the
eviction at the date of executing the sale contract. These conditions have also been under scrutiny in judicial
practice by those courts of law that have been entrusted with settling cases on eviction matters. Thus, in Case no.
1098R/09.11.201, the Court of Appeal of Bucharest has retained the following: “The Seller’s obligation to
provide to the Buyer ‘peaceful possession over an object’ involves not only the guarantee for own deeds, but also
for those of any other third parties. As such, it is presumed that the Seller is aware of the legal status of the sold
object, on which ground it is only natural to have the obligation to hold the Buyer harmless against any third
party. The Seller’s obligation to provide a guarantee exists, in this case, if the following conditions are met: in
case of a de jure disturbance; the cause of the eviction came before the sale, and the cause of the eviction was
not known by the Buyer.”324
As regards the existence of a de jure disturbance (a real or receivable-related right), such fact entails that the
third party must invoke in its favour either a right, a freedom/liberty or power allowing it to act such that it
prevents or limits the buyer from exercising the right acquired or, by its actions, the third party may trigger a
decrease in asset value or usefulness (for example, the right of use under a lease contract).
This obligation shall not be activated in the case of de facto disturbances against which the buyer may defend
itself on its own, via a possessory or petitory action. The de jure disturbance of the buyer must be happening at
the present moment or at least be imminent, and not only simply possible.325
More often than not, this intervenes
as a result of a definitive judgment whereby the third party obtains a right over the asset. Nevertheless, the
existence of the judgment is not a sine qua non condition generating liability for the Seller, the eviction
producing its effects also in the absence of any legal action filed by any third party. However, the legal doctrine
has established that, in order to justify the Seller’s liability regarding the eviction, the disturbance must be real or
it should result from a serious threat of dispossession.326
The mere likelihood of a disturbance in exercising the
prerogatives of the property right is not and cannot be sufficient so as to admit an action in guarantee against the
Seller, even when the Buyer uncovered the existence of a right favouring a third party which might expose it to
an eventual eviction.
As regards the condition according to which the cause of the eviction should have happened before the
execution of the sale contract, this refers to the fact that the legal deed or instrument giving birth to the right the
third party acts upon or to the limit of the transmitted right that it invokes should be dated before the conclusion
of the sale contract. It is worth noting that, so as to meet this condition, it is not necessary that the right invoked
by the third party already be in its patrimony at the date of concluding the sale contract, such condition being
also fulfilled if, at the date of executing the sale, such right was already included into the patrimony of another
person that has subsequently transmitted it to the third party. In other words, of interest is the existence of the
right, irrespective of in whose patrimony this is found at the date of executing the sale contract.327
We must also highlight that, should we accept the fact that the Seller could be held accountable for causes
that arise after the performance of the sale and that are not imputable to it, the provisions regarding contractual
risks would be infringed, such risks being borne by the Buyer, after transferring the property right and delivering
the asset. Moreover, in such case, the Seller could not be protected in any way whatsoever against any possible
abuses on the part of the Buyer. If the case for eviction occurs thereafter, and the ground thereof is imputable to
the Seller, the latter will be liable as a result of its own deeds, and not in relation with the ones of a third party.
In accordance with the provisions of Article 1695 para. 1 Civil Code, one of the conditions regarding the
existence of the guarantee against eviction is that the right claimed by the third party should not have been
known by the Buyer at the date of executing the sale contract. In case that, at the date of executing the contract,
the Buyer had knowledge about the cause of the eviction, it undertook to pay a price being fully aware of the
limits attached to the acquired right and/or regarding a possible threat against the exercise of such right, thus
accepting the possibility that such threat could actually turn into reality. As the doctrine has rightly stated it328
,
the Buyer who was aware of the cause of the eviction has accepted the risk of total or partial loss of the asset,
since it agreed to the execution of the sale contract, which thus begets a random character329
. If the Seller, who is
324
See Civil Judgement no. 1098R/09.11.2015 released by Bucharest Court of Appeal – IVth Civil Section,
irrevocable, published on the website: http://www.rolii.ro/hotarari/58a03517e49009b433000ff0 325
Moțiu Florin, Contractele speciale în noul Cod civil (Special Contracts in the New Civil Code), V-th edition,
Universul Juridic Publishing House, Bucharest, 2014, page 68 326
Toader Camelia, op. cit., page 45 327
Dincă Răzvan, Contracte civile speciale in noul Cod civil (Special Civil Contracts in the New Civil Code),
Universul Juridic Publishing House, 2013, page 129 328
Comăniță Gheorghe, Comăniță Ioana-Iulia, op.cit., page 48 329
Supreme Court, Civil Judgment no. 1754/1972, in CD 1972, quoted in Camelia Toader, op. cit.
154
in charge with producing evidence, proves, by any evidentiary means, the fact that the Buyer was actually aware
of the danger of eviction (and not of the mere possibility of such occurrence), it shall be exonerated from
liability. We need to remind that the good faith of the Buyer when concluding the contract entails the lack of
knowledge about eviction by the Buyer and it is a presumption automatically made by the law.
5. LEGAL CONSEQUENCES OF CONSUMED GUARANTEE
As mentioned in Section 2.2. above, with reference to the effects of the guarantee against eviction, the Civil
Code sets forth three distinct situations: (i) total eviction; (ii) partial eviction, and (iii) eviction removed by the
Buyer in exchange for certain patrimonial expenses.
It is worth noting, at this point, that irrespective of its form, the Seller’s obligation to offer a guarantee is a
patrimonial obligation which is transmitted, after the Seller’s demise, to its universal successor or as a universal
title. The Seller’s obligation to guarantee the Buyer against eviction exists and operates de jure, no contractual
provisions being necessary in this respect.330
5.1. TOTAL EVICTION
According to the provisions of Article 1700 Civil Code, the Buyer may request the termination of the sale if
having been evicted from the entire asset, and, as a natural consequence of eviction, the Buyer may request the
returning of the paid price and the reparation of incurred prejudices. In the aforementioned article, the lawmaker
has regulated total eviction as blatantly distinct from partial eviction, which is stipulated in Article 1703 Civil
Code.
Hence, as resulting from the formulation of the legal text just mentioned, as a rule of thumb, contract
termination shall be reached via judiciary means, such conclusion being unequivocally drawn from Article 1700
Civil Code: “The Buyer may file action …”. However, the contracting parties may stipulate, in the sale contract,
the possibility of unilaterally terminating the contract or may regulate its cessation by virtue of a comissoria lex
clause, as per the provisions of Articles 1552 and 1553 Civil Code, respectively, including also the case of
eviction occurrence.
In the case of total eviction, as per the legal provisions in force (Article 1701 para. 1 Civil Code), the Seller
shall have the obligation to return to the Buyer the paid price in full, even if, at the date of acknowledging the
eviction, the value of the asset has decreased as compared to the time when it has been bought. Nevertheless, the
lawmaker has provided an exception to this rule (Article 1701 para. 2 Civil Code) – in the case of the Buyer who
has obtained a benefit further to the deterioration of the asset, situation in which the Seller is entitled to subtract
the amount corresponding to such benefit from the overall price.
Mention is made that the aforementioned rules shall be applicable also in the case of successive sales, when
the initial Seller will have the obligation to return the price received to a sub-acquirer who exercises the action
for guarantee directly against it, without distinguishing between sub-acquirers under an onerous or free title
(Article 1706 Civil Code).
Furthermore, in addition to returning the price, the Seller shall also be obliged to pay damages, irrespective of
its good or bad faith when concluding the sale-purchase contract. According to the provisions of Article 1702
Civil Code, the damages due by the Seller include the following:
• The value of the fruits that the Buyer was obliged to return to the party evicting it; these fruits are the
ones the Buyer has collected as an ill-meaning owner, i.e. since the date when it became aware of the
eviction. The fruits collected by the Buyer before the occurrence of the eviction case shall be kept by the
Buyer in its role of well-meaning owner, as it is not entitled to request them from the Seller.
• Trial charges incurred by the Buyer in the action versus the party evicting it, as well as in the impleader
of the Seller; such expenses also include attorney fees paid by the Buyer, any likely travel expenses, as
well as judicial taxes and duties if the Buyer has also filed a counterclaim and/or impleader with the
Seller as part of the same case in litigation.
• Expenses for the conclusion and execution of the contract, borne by the Buyer; this category includes
the following: expenses made by the Buyer with authenticating a sale-purchase contract, costs borne for
recording a property right with the Land Book Registry, any possible travel expenses, etc.
• Losses incurred and gains unrealized by the Buyer as a result of the eviction; as far as losses are
concerned, we can note, for illustration purposes, the additional costs borne by the Buyer for acquiring a
similar asset from another Seller against a much higher price or expenses made with rent until acquiring
another real property for dwelling purposes; in regards of gains unrealized by the Buyer as a result of
eviction, we can mention the situation of acquiring goods for re-sale to a sub-acquirer who would pay a
price that is higher than the one paid by the Buyer.
330
Judgment no. 225/2016 of 19 January 2016, Bucharest Tribunalul, (Civil) Claims Section
155
• Expenses for works carried out in connection with the sold asset, regardless of whether the works have
been separate or additional, but, in the latter case, only if deemed necessary or useful. Returning such
expenses is done by the Seller directly to the Buyer or the Seller will make sure such expenses are
returned by the party enacting the eviction; in regards of added expenses, they may be returned only if
they have not been already included into the additional value of the asset, i.e. into costs that shall be
returned to the Buyer as an accessory to the paid-up price.
• Expenses made for the execution and, as the case may be, performance of voluptuary works, if the
Seller was aware of the cause of eviction at the date of concluding the contract.
5.2. PARTIAL EVICTION
Partial eviction occurs either when it regards a fraction of an asset or good or a certain quota of the property
right, or when it regards the capitalization or negation of another right relating to the acquired good. Partial
eviction occurs, for instance, when the right invoked by the third party affects only one part of the Buyer’s
property right. Article 1703 sets forth the effects of partial eviction, which does not trigger contract termination,
case in which the Seller shall have the obligation to return to the Buyer that share of the price pro rata with the
value of the part it has been evicted from. Additionally, the Buyer will be entitled to receive damages to be
granted as per the provisions of Article 1702 (as detailed above).
The solution of granting damages in the case of partial eviction was adopted in practice by the judicial courts
of law even before the coming into force of the present Civil Code. Thus, the Bucharest Court of Appeal has
retained, in Civil Judgment no 203/27 March 2014 (which kept its definitive character further to the overruling
of the second appeal action brought before the High Court of Cassation and Justice), that, according to Article
1344 of the 1864 Civil Code, in case of eviction, the Buyer is entitled to receive indemnifications pro rata with
the value of the asset at the date of being evicted, trial charges incurred with the eviction process, expenses
related to the sale as well as damages. The text of the law does not distinguish between total or partial eviction.
Or, where the law does not make such distinctions, the judge cannot do so either. Article 1348 of the 1864 Civil
Code is not a norm that derogates from the aforementioned one, but a provision regulating the manner of
determining the value of the asset to be returned in case of partial eviction. This article does not exclude the
granting of trial charges or expenses related to the sale in case of a likely partial eviction. There is absolutely no
rationale for which a totally evicted buyer could be indemnified for such expenses while a partially evicted one
could not.331
In the case of partial eviction, it is essential to note that the Buyer can request the termination of the sale
contract only if proving that the part of the asset / property right it has been evicted of was so important that,
should they have been able to foresee the occurrence of such eviction, they would have no longer entered such
contract.
5.3. Removal of eviction by the Buyer
Removal of eviction by the Buyer is provided for in Article 1704 Civil Code and is a novelty in this field.
The Buyer is thus permitted, when the eviction takes place, to keep the acquired asset or good, choosing
between:
• Paying an amount of money to the evicting third party, or
• Offering another asset or good to the evicting third party.
By this procedure, the Seller is not released from the obligation to provide a guarantee against eviction; the
modification concerns only the manner in which its effects are removed.
6. CONCLUSIONS
As already specified in the above, the guarantee against eviction is an essential obligation of the Seller,
provided under Article 1672 Civil Code, along with the obligation to transfer the property right and deliver the
sold asset.
In principle, the termination of the sale-purchase contract on eviction grounds is established by the judiciary
who will also rule on the damages that the Buyer is entitled to receive. This conclusion is based on Article 1700
Civil Code – the Buyer may request the termination of the sale. The Civil Code has also stipulated the exception
to this rule in Article 1552 – unilateral termination of the contract, or Article 1553 Civil Code – existence of a
commissoria lex clause based on which the parties agree on the fact that the contract shall cease in case of
eviction.
331
See Civil Judgment no. 203/27.03.2014 released by the Bucharest Court of Appeal – VI-th Civil Section,
published on the website: http://www.rolii.ro/hotarari/58ac428fe490090c43000328
156
As a general rule, the parties may freely establish, by contract, the limits of the guarantee against eviction, as
well as its effects. By way of derogation from legal provisions, these contractual clauses must be drafted in such
a way that the parties’ intention to enlarge or restrict the effects of the guarantee against eviction be clear and
unequivocal. From the text of the articles regulating the guarantee against eviction from third parties, it results
that the parties may go as far as completely remove the Seller’s liability in such situations. Nevertheless, the
lawmaker has adopted a different solution in the case of eviction deriving from the Seller’s own deeds or of the
eviction generated by other causes that, even if known by the Seller at the date of performing the sale, have not
been brought to the Buyer’s knowledge; the possible contractual clauses that would remove the Seller’s liability
in such cases being deemed unwritten, the rules mentioned above shall apply.
BIBLIOGRAFY
1. Chirică Dan, Tratat de drept civil. Contracte speciale. Volumul I. Vanzarea si schimbul. (Civil law
treaty. Special Contracts. Volume I. Sale and Exchange), Hamangiu Publishing House, Bucharest,
2017
2. Cojocaru Aspazia, Contracte civile (Civil Contracts), Lumina Lex Publishing House, Bucharest, 2005
3. Comăniță Gheorghe, Comăniță Ioana-Iulia, Drept civil. Contracte civile speciale (Civil Law. Special
Civil Contracts), Universul Juridic Publishing House, Bucharest, 2013
4. Deak Francisc, Popescu Romeo, Mihai Lucian, Tratat de drept civil. Contracte speciale, eviția a V-a
actualizată și completată, Vol. I, Vânzarea. Schimbul. (Civil law treaty. Special Contracts, your
evacuation updated and completed, Vol. I, Sale. Exchange) Universul Juridic Publishing House,
Bucharest, 2017
5. Dincă Răzvan, Contracte civile speciale in noul Cod civil (Special Civil Contracts in the New Civil
Code), Universul Juridic Publishing House, 2013
6. Florin Moțiu, Contractele speciale în noul Cod civil (Special Contracts in the New Civil Code), V-th
edition, Universul Juridic Publshing House, Bucharest, 2014
7. Popescu Romeo, Efectele obligației de garanție în cazul evicțiunii consumate în reglementarea Noului
Cod civil (The effects of the warranty obligation in case of eviction consumed in the regulation of the
New Civil Code), Universul Juridic Magazine, No. 6 of June 2015
8. Tincu Simina-Lavinia, Garanția de evicțiune în dreptul civil român (Warranty for eviction in Romanian
civil law)
9. Toader Camelia, Evicțiunea în contractele civile (Eviction in Civil Contracts), All Publishing House,
1997
157
PARLIAMENTARY IMMUNITY.
THEORETICAL AND PRACTICAL ASPECTS
drd. TITI SULTAN (RO)
Titu Maiorescu University
ABSTRACT Protection of parliamentary mandate presents a very special meaning, it constitutes a guarantee of
accomplishment of the constitutional prerogatives and, also, a prerequisite condition of state institutions
functioning in the framework of constitutional democracy. As rightly, two great researchers and specialists in
the field of parliamentary, teachers Pierre Avril and Jean Gicquel, believe that "the parliamentary mandate is a
public position, under which each parliamentarian represents the whole nation, competing in the exercise of
national sovereignty" [1], in the fundamental law of Romania in Article 2 paragraph 1 it is stipulated that
"national sovereignty belongs to the Romanian people who exert it through its representative bodies, constituted
through regular free and fair elections and also through the referendum." In this context, the correct
understanding of the legal dimensions of the parliamentary immunity requires exact knowledge of the
significance of this concept, the stipulations established in the legislation of the democratic states, so that the
protection of the parliamentary mandate to be achieved in terms of increased responsibilities of those who were
elected to carry out their - protected from any influence or interference, of personal interests - mandate that
they've been invested with through free, regular and fair elections.
Parliamentary immunity is well known in legal systems, especially regarding the diplomatic and consular
right, a fact also mentioned in the preamble from the Vienna Convention in 1961, concerning diplomatic
relations and the Vienna Convention in 1963, regarding consular relations. The Preamble of the Convention it is
stated that the purpose of parliamentary immunity is "not to create advantages to individuals, but to ensure the
efficient performance of their duties". Parliamentary immunity is intended to protect the members of the
parliament against repressive or judicial actions that may be brought against them. This immunity represents the
guarantees before any unfair actions from the administrative part, judicial part or from private individuals. In
this regard and within these limits, parliamentary immunity involves certain derogations from the rules of the
common law. The most important privilege is freedom of expression. In other words, for the expressed opinions,
of the given vote and in general, they are not legally responsible for how they exercise their parliament deputy
mandate. This parliamentary immunity is respected today with more scrupulosity. It applies to the principle of
the parliamentarian irresponsibility for the acts committed within their mandate and during exercise thereof
(speeches, questions, interpellations, motions for resolutions, presenting the reports, etc.), even if, in the
meantime, the mandate has expired.
PARLIAMENTARY IMMUNITY is a guarantee of exercising their mandate and not a privilege of the
individual, much less a question of exemption from liability.
PARLIAMENTARY IMMUNITY is the feature of the parliamentary mandate under which the
parliamentarian is protected against possible pressure or abuses that would commit against his person and
which ensures his independence, liberty and security of in exercising their rights and obligations which are
assigned to him according to the Constitution and laws. Parliamentary immunity protects the mandate itself,
reason why it is considered to be objective in nature [2].
Keywords: Parliament, immunity, inviolability, legal liability, political opinions.
1. HISTORICAL SURVEY OF THE REGULATION OF PARLIAMENTARY IMMUNITY IN
ROMANIA
In Romania, the institution of parliamentary immunity imposed itself as a corollary of the recognition of
the parliamentary status, as parliamentary life in the Romanian Principalities affirmed and crystallized. The
Constitution of 1866 contained firm provisions that members of the National Representation could not be
prosecuted or persecuted for opinions or votes cast in the exercise of their mandate (Article 51). Also, during the
session, no member of the Assembly could be arrested or detained without the authorization of the Assembly of
which he was "except for the obvious guilt" (Article 52). The same text of the 1866 Constitution provided that
the detention or prosecution of a member of one or other of the Assemblies would be suspended throughout the
session if the Assembly so requested.
The Constitution of 1923 contained even more precise provisions, stating that "None of the members of
one or other Assembly may be prosecuted or persecuted for the opinions or votes cast by him during his term of
office." The same basic law also stipulated that "No member of one or other Assembly may, during the session,
be prosecuted or arrested in respect of repression except by the authorization the Assembly of which he is a
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member, except for the offense of offense. If preventively arrested or followed during the session was closed, the
prosecution or arrest had to be subject to the approval of the Assembly to which he belonged, immediately after
the session of the legislative bodies was opened. "
The Romanian constitutional law doctrine of the interwar period gave a high appreciation of
parliamentary immunity. As Professors Paul Negulescu and George Alexianu point out, "In the parliamentary
regime, where the state leadership is entrusted to Parliament, which plays a leading role, the presence of
parliamentarians in the Assemblies and the possibility that they can perform their duties with all independence
and all freedom, is considered as an essential requirement "[3].
The Romanian doctrine of constitutional law of the interwar period differentiates also from the theoretical
acceptance recognized in the democratic states, the parliamentary irresponsibility, the right of the
parliamentarians to express freely about any facts within Parliament, in the interest of the parliamentary function,
parliamentary inviolability , aimed at defending MPs from any criminal investigation during the parliamentary
session, so that they can best fulfill the function with which the voters invested.
After the reinstatement of the parliamentary institution in its natural rights, the requirement for the
parliamentary immunity, which was virtually abolished during the years 1948-1989, was placed with great
urgency in Romania. After the December 1989 Revolution, the assertion of democratic pluralism and the
requirement to ensure that parliamentarians were able to manifest themselves by expressing the most diverse
political forces, on parliamentary immunity. The rationale for such provisions was justified by the concern that
lawmakers would not artificially create the impediment of expressing their opinions, staging unfounded
accusations that would have prevented them even briefly from participating in the debate and voting on
important issues. At present, however, as a result of the accumulation of a certain experience in the field of
parliamentary life, the conditions have been created for rethinking and redistributing the entire concept and
procedures regarding parliamentary immunity.
2. GENERAL CONSIDERATIONS ON THE NOTION OF PARLIAMENTARY IMMUNITY
The parliamentary immunity institution has a long tradition [4]. In antiquity, Romanian tribes enjoyed
immunity, recognizing what was transmitted to us as SACRO SANCTITAS. At the time of asserting
parliamentary powers, in opposition to absolutist regimes, parliaments have developed rules that would
guarantee the immunity of its members.
In response to the courageous attitude of Thomas Haxey, who in 1397, after proposing a motion
denouncing the scandalous customs of King Richard II's Court, was arrested, the House of Commons adopted a
determined attitude to pardon this member his. The prerogative of lawmakers' right to debate these subjects has
been particularly prominent, without any pressure from the royal authority. Article 9 of the Declaration the (Bill
of Rights) of 1689 expressly states that the debates and acts of Members of Parliament will be protected against
any interference or pressure from outside.
In France, where the traditions of freedom are so strong, the protection of the Parliament's members for
the opinions expressed in the exercise of their mandate was enshrined in the Decree of 23 June 1789, initiated by
Mirabeau, followed by the establishment by another Decree of 26 June 1789, of measures designed to prevent
the incrimination of members of the Assembly without prior authorization. Affirming the right of the MPs, who
expressed THE PEOPLE'S VOICE, to resist the BAZETTE POWER, Mirabeau expects to secure the work
done by the Parliament by declaring the inviolability of the person of the deputies who were members of the
General States. The Constitution of 1791, a document containing for the first time a provision on parliamentary
immunity, enshrines the principle according to which "Representatives of the nation may be arrested for criminal
acts if they are caught in flagrante delicto or by virtue of an arrest warrant, the legislative body will be
immediately notified, the proceeding can not be continued until it decides that the charges can be brought."
Over time, parliamentary immunity imposed itself as a constituent element of the status of
parliamentarians, being recognized today in many countries, especially European, over which the French model
that specifically regulates the lack of legal liability and inviolability has had a predominant influence, as
recognized in - a study by the European Parliament.
Regarding its content, according to the point expressed by the Romanian specialists who studied this
institution, "Parliamentary immunity is that feature of the parliamentary mandate under which the MP is
protected against any pressure or misconduct against his person and which provides him with the independence,
freedom and security in exercising his rights and obligations under the Constitution and the laws "[5].
In another opinion, parliamentary immunity means a set of legal provisions that provide deputies and
senators with a legal regime derogating from common law in their relations with the judiciary and in order to
guarantee their independence [6].
Under the conditions laid down by Law no. 96/2006 on the Statute for Deputies and Senators,
parliamentary immunity is not susceptible to suspension or interruption, can not be waived, and it is also
imperative of public order. Parliamentary immunity can only be lifted by the Chamber of which Parliament is a
member [7].
159
The parliamentary immunity begins with the validation of the mandate of a deputy or senator and ends at
the date of the end of the mandate, in the cases and under the conditions provided by the Constitution and laws.
3. THE FORMS WHERE PARLIAMENTARY IMMUNITY IS MANIFESTED
In the Romanian specialized literature it was emphasized that the protection of the parliamentary mandate
results from the very constitutional role of the Parliament, which exercises the sovereign power of the people.
Such protection is therefore imperatively necessary to ensure the independence of the MP, against any pressure,
whatever that nature may be, and to allow him to exercise his duties unhindered.
The Constitution of Romania states, moreover, in paragraph 1 of Article 69, that "In performing the
mandate, deputies and senators are in the service of the people", and in paragraph 2 that "any imperative mandate
is null".
Parliamentary immunity therefore protects the parliamentary mandate itself, which is why it is considered
to have an objective character. In practice, parliamentary immunity is known in two forms:
a) LACK OF LEGAL LIABILITY for the opinions expressed in the exercise of the mandate,
irresponsibility being considered in such cases as immunity as it concerns the intrinsic acts of the mandate and,
at the same time, functional as it concerns its exercise and,
b) INVALIBILITIES - situations where immunity is in fact a procedural immunity, which refers solely
to criminal and contraventional liability, protecting the person of the parliamentary person against prosecutions
for actions that are foreign to the mandate, abusive or vexatious.
Regarding the issue of the Lack of Legal Liability, we will take into account the fact that in his activity
the MP should enjoy a real freedom of thought and action so that the mandate can be effectively exercised.
The specific nature of the parliamentary activity involves participating in debates, expressing opinions,
attitudes (often critical), their participation in voting (often open). In order for this participation to be real, the
MP must be assured that his position, in principle, will not expose him to any legal consequences.
Since it is intended to guarantee the INDEPENDENCE OF OPINION, the lack of legal liability consists
of the prohibition stipulated by art. 72 paragraph (1) of the Romanian Constitution in force, of legal liability for
the votes or political opinions expressed in the exercise of their mandate. She therefore defends the MP as
regards acts committed in the exercise of her mandate, such as voting, amendments, speeches, questions and
interpellations, reports and opinions presented by the committee she is part of, etc.
In other words, irresponsibility concerns the intrinsic acts of the mandate, not those extrinsic to its
exercise, aiming at defending the freedom of expression and decision of the MP. That is why it is absolutely
absolute, both in the sense that it can not be lifted, and in the one which refers to all the acts of parliamentary
mandate and all forms of legal liability. At the same time, it is perpetual, defending the MP not only during the
term of office, but also later on. What goes beyond, however, the exercise of the mandate does not fall under this
immunity. The Parliamentarian is not on the law, it is not above this, and here we have in mind the provisions of
art.16 paragraph 2 of the Constitution, which stipulates that "No one is above the law". As a consequence, the
acts of the MP who are not in the exercise of his office may entail liability, such as opinions expressed in the
press, television, radio, internet, speeches at public meetings - because the exercise the mandate is in the
Parliament, in its working organs, or at its stand, in carrying out tasks, established by the Regulations of the
Chambers, by the Statute of Deputies and Senators, etc. - incitement to public violence or conducting of events
aimed at the disruption of public order, insults - freedom of political struggle involving the confrontation of ideas
and arguments in parliamentary debates - trafficking of votes or trafficking of influence, generally private acts.
In such situations, Members and senators are subject to the rules common law. By extrapolation, irresponsibility
also covers those who inform about what has happened to Parliament, but only to the extent that they do so in
good faith and not as a purpose of agitation, by the tendency of debates and their deformation. Ensuring the
independence of opinions in political confrontations in the Romanian Parliament is not a privilege, so it can not
legalize abuse. Therefore, legal irresponsibility for the vote and opinions expressed does not exclude disciplinary
liability for the breach regulations, political responsibility of the MP and no criminal or civil liability for
committing deeds outside his / her mandate. Instead, it concerns the acts committed by the Parliamentarian
within and outside the Parliament, but in the exercise of an assignment established by the Chambers.
It clearly follows that irresponsibility is a substantive immunity, since it concerns intrinsic and functional
acts as it concerns its exercise. It refers to any kind of liability: criminal, civil, contraventional, etc., even if it
causes damage or acts can be considered crimes (eg calumnious imprisonment) [8].
Unlike irresponsibility, INVIOLABILITY is an IMMUNITY PROCEDURE and refers only to
criminal liability involving not only the prosecution, but also the application of deprivation of liberty sanctions.
It is an aspect of parliamentary immunity, it protects the mandate but also the parliamentarian against criminal
prosecution or contraventions of foreign, abusive or vexatious acts. This immunity therefore suspends only the
initiation of the repressive procedure, the course of the criminal or contraventional proceedings, as long as a
person is a parliamentary person. However, in the system of current regulations, in Romania the prosecution can
be approved by Parliament Houses. Thus, in the case of flagrant offenses, a parliamentarian may be detained and
subjected to the search, but the Minister of Justice is obliged to inform immediately the chairman of the Chamber
160
of Parliament and the plenum of the Chamber has the right to order the revocation of the measure if it is
appreciated as unfounded.
It is important to note, therefore, that the waiver of immunity has no meaning whatsoever of the legal
classification of the act, nor does it have the value of a presumption of guilt, because INVIOLABILITY is
procedural immunity, not substantive, acting only during the term of office.
The constitutional provisions to which we refer in terms of parliamentary immunity are to be corroborated
with the Regulations of the two Chambers of Parliament. They point out that parliamentary immunity is intended
to protect deputies and senators from prosecution and guarantee freedom of thought and action. Inviolability is
therefore temporary, that is, it only occurs during exercise mandate. If perpetual, it would turn into a privilege
that, by its very nature, is irreconcilable with democracy, freedom and responsibility inherent in human dignity.
Therefore, inviolability does not imply irresponsibility. At the same time, the Chambers of Parliament may
waive the immunity, by allowing detention, arrest or search.
Also, according to the provisions of paragraph 2 of art. 72 of the Romanian Constitution, it is stipulated
that "Deputies or senators may be prosecuted and prosecuted for facts not related to the votes or to the political
opinions expressed in the exercise of their mandate, but they can not to be searched, detained or arrested without
the consent of the Chamber of which they are part after hearing them. The prosecution and prosecution can only
be made by the Prosecutor's Office attached to the High Court of Cassation and Justice. Justice".
Regarding the procedure to be followed in the case of a request for arrest, arrest, search or prosecution of
a parliamentarian, this involves the notification of the President of the respective Chamber by the Prosecutor
General, who is to inform the MPs at the sitting publishes that request. This request will first be examined by the
Legal Commission of Appointments, Discipline, immunities and validations, which will determine whether there
are good grounds for approving the application. The Commission's decision shall be taken by secret ballot of at
least half plus one of the members of the committee. It is only then that the report is to be submitted to the
plenum of the Chamber, which will decide by a majority vote of one plus one of its members.
4. PARLIAMENTARY IMMUNITY IN COMPARATIVE LAW
In the constitutional law compared, the parliamentary immunity for the opinions expressed is found in
almost all the constitutions of the world states and the parliamentary regulations. It is generally accepted that no
lawmaker can be prosecuted, civil or criminal, because of the statements made and the votes cast in the exercise
of his functions. This immunity is referred to in the doctrine of professional immunity or absolute criminal
responsibility. Meet, thus immunity for opinions in the Constitutions: Belgium, Spain, France, Greece, Italy,
Luxembourg, Portugal and other states. In the case of the Constitution of Ireland, immunity covers both verbal
and written opinions (Article 15, paragraph 12). The Constitution of the Netherlands in Article 71 also refers to
the allegations made by parliamentarians in the General Affairs and Parliamentary Committees, as well as to the
communications they have made to them in writing. This parliamentary immunity can not be waived (the
Constitution of Armenia).
The constitutions of Cyprus and Finland stipulate that freedom of expression hides parliamentarians from
any kind of civil or criminal liability. The German Constitution also includes this type of immunity in Article 46
(1), but states that these provisions do not apply to defamatory offenses. Other Constitutions stipulate that
defamatory insults and claims can not protect their authors from civil liability (Armenia, Croatia, Germany,
Denmark, Lithuania, Latvia, Poland, Slovakia).
Apart from professional immunity or absolute criminal irresponsibility, lawmakers also enjoy material
immunity, which is also referred to as relative, unprofessional or inviolability immunity. Thus, as a rule, a
lawmaker can not be arrested, investigated or prosecuted in criminal or correctional matters, without the
authorization of the Chamber of which he is a party, unless he is surprised at the fact or immediately after he is
committed. In some cases, even if the MP was caught in flagrancy, he can not be arrested unless the offense is
punishable by imprisonment of at least five years (Croatia, Cyprus, Macedonia, Slovenia) or at least six months
(Finland). In Italy it is necessary to authorize the Parliament to intercept - in any way - the parliamentary
communications or to control its correspondence. It is admitted the principle that for any arrest, investigation or
investigation, the competent authority must inform the President Assembly (of the Parliament). Instead, in the
case of minor offenses, the MPs only answer the disciplinary body of the Assembly (Czech Republic, Poland). In
Denmark, however, it is possible to prosecute lawmakers for such minor offenses.
As for the duration of immunity, the solutions differ in the comparative law. In general, three systems are
distinguished: countries which recognize immunity throughout the mandate (Germany, Argentina, Austria,
Brazil, Cameroon, Denmark, Spain, the Netherlands, Israel, Italy, etc.) Belgium, USA, Finland, France, Jordan,
Kuwait, Lienchenstein, Monaco, Korea, Switzerland etc.) and countries that recognize immunity only during
session duration, and a number of days before and after the session (Australia 40 days, Bangladesh 15 days,
Canada 40 days, India 40 days, Pakistan 14 days). The Netherlands and Sweden, where parliamentary immunity
is alive, are completely unique. In the Netherlands, immunity can never be lifted, but in Sweden it can be lifted
by the Rikstag, with a majority of five.
161
Regarding the PROCEDURE FOR IMPROVING PARLIAMENTARY IMMUNITY, several
systems are used. In Belgium, for example, the President of the Chamber, after receiving the notification from
the Prosecutor General, informs the MP in question of the situation complained of, and then sends his remarks to
the Prosecutor General and only if he submits a new request for waiver of immunity informed the Chamber. It is
only then that the Jury produces a report on which the Chamber decides in plenary. In Switzerland, the Chamber
notified with a request for waiver of the immunity from the Prosecutor General is, first of all, a special
committee that examines this request. It is only then that the Commission's report is submitted to the Legal
Affairs Committee. In France, the President of the Chamber decides, on the recommendation of the Bureau of
the Chamber. In Poland, the Prosecutor General must file a request to obtain the authorization to prosecute,
arrest or imprison a parliamentarian in the office of the Chamber of which the MP is a member. It sends the
Commission's request to settle the issues concerning Members or Senators among the members of Parliament.
In certain situations, the parliamentary committee of inquiry must present its conclusions within a certain
timeframe (30 days in Italy). In other cases, as exemplified by Denmark, the prosecution of an MP, except for
the offense, can only be done with his consent (Article 57). In Ireland, except for tracing and of the offenses
against public order, the members of the Chambers can not be arrested in Parliament or when they go from one
Chamber to another (art.15 p.13).
The lifting of parliamentary immunity often involves the absolute majority of parliamentarians or the
majority of votes cast. In Poland, for the lifting of parliamentary immunity, a two-thirds majority is required, and
in Finland a majority of five-sixths of parliamentarians. However, there are also specific situations, such as in
Greece, where if within 40 days of receiving the request for waiver of parliamentary immunity the Chamber the
authorization shall be deemed to be definitively refused and no further complaint may be made.
5. ASPECTS OF THE CONSTITUTIONAL COURT'S PRACTICE WITH REGARD TO
PARLIAMENTARY IMMUNITY
In clarifying the theoretical and practical problems of parliamentary immunity, the views expressed by the
Constitutional Court as a guarantor of the supremacy of the Constitution are of particular significance. It is clear
from its case-law:
a) By the Decision of the Constitutional Court of Romania no.45 / 1994 on the constitutionality of the
Chamber of Deputies Regulation, the Constitutional Court, in the recitals of the decision, adopted some
assessments regarding IMMUNITY.
"The definition given to parliamentary immunity is unnecessary and, of course, unconstitutional, because
art.69 and art.70 of the Constitution delimit the sphere. The writing of paragraph 2 is unconstitutional because its
ambiguity can receive interpretations that go beyond this sphere."
b) By Decision no. 46/1994 on the constitutionality of the Senate Regulation, the Constitutional Court has
taken into account in the recitals of the Decision some aspects regarding IMMUNITY, such as:
In Article 149, paragraph 2 of the Regulation, the reference without any circumstance to the protection of
senators against judicial prosecutions is unconstitutional, since, according to the provisions of Article 69 of the
Constitution, it provides only for criminal prosecution or abusive contraventions, so that it can be lifted by to the
Chamber, and only during his mandate, being linked to senatorial status. Only the independence of the opinions
provided in paragraph 3 of this article has an absolute character, according to Article 70 of the Constitution.
According to the provisions of art.69, par. 1 of the Constitution, the Senator can not be detained, arrested,
searched, or sent to trial or contravention, without Senate approval. It follows from this constitutional provision
that parliamentary immunity is a constitutional protection measure of the parliamentary mandate, so that, given
its imperative nature, it can not be extended or restricted by an act under the Constitution. The essence of this
provision is that it can be lifted only by the Chamber and only on the basis of the factual and legal basis
justifying the arrest, arrest, search or prosecution of the senator.
However, Article 149 (5) and (8) of the Regulation adds a new way of removing parliamentary immunity,
suspending parliamentary immunity. This is unconstitutional for the following reasons:
- the parliamentary immunity and lifting it are regulated by the Constitution; the regulation as well as the
law can not modify this regime; by regulation only the procedural norms for applying in the parliamentary
activity can be established;
- the suspension of immunity removes, during the period of liability, the constitutional protection of the
parliamentary immunity, according to art.69 par. 1 of the Constitution, this protection can not be removed for a
period of time but only interrupted in order to apply coercive procedural norms such as arrest, arrest, search or
the prosecution or the contravention, depending on a specific reason and within the limits of this reason, the
suspension of immunity changes the constitutional status of the senator, which is contrary to the legal nature of
the regulation as an act under the Constitution.
- Apart from the fact that the suspension of immunity is a way that is not generally found in a democratic
regime, as it is contrary to the rationale of parliamentary immunity itself, allowing an undesirable political
minority to be discriminated against, it is to be noticed that the group parliamentary, senator, deputy and Legal
Commission of appointments, discipline, immunities and validations are not subject to criminal repression to be
162
entitled to demanding the lifting of the constitutional impediment to trigger this repression of parliamentary
immunity, as regards the reference to deputies, it is contrary to the principle of regulatory autonomy, according
to the provisions of art. 61, paragraph 1 of the Romanian Constitution.
In conclusion, parliamentary immunity can not be extended or restricted by an act under the fundamental
law, it can not be suspended and can only be lifted by the Chamber and only by considering the factual and legal
basis justifying the taking of this measure.
c) By the Decision of the Constitutional Court of Romania no.63 / 1997 it has been established that the
lifting of the parliamentary immunity concerns only the facts in respect of which such a measure has been
adopted; once the mandate ceases to end, and the immunity he assures: a new term of office corresponds to a
new immunity, which would entail her being lifted in accordance with the statutory provisions, not the
declaration of immunity in a previous term.
d) Decision of the Constitutional Court no. 319/19 June 2013 on the objection of unconstitutionality of
the provisions of art. 1, item 18 (regarding the amendment to art.24) and of art.1, item 19 (referring to the
introduction of art.24, index 2 ) of the Law for amending and completing the Law no. 96/2006 on the Statute of
Deputies and Senators, the objection of unconstitutionality being transmitted by the President of Romania,
through Address no. 336/20 April 2013.
e) Decision of the Constitutional Court no.260 / 8 April 2015 regarding the unconstitutionality of the
provisions of Article 173 of the Senate Regulation, published in the Official Gazette of Romania no.318 of
11.05. 2015.
6. CONCLUSION
Lately, in the press, television, communication media, but especially in political circles, there have been
numerous discussions on the significance, scope and even proposals to restrict the limits of parliamentary
immunity. Thus, criticisms have been made not only of the way in which the practical mechanism of lifting
parliamentary immunity works, but also of the concept itself and the significance of the institution as such. The
extensive discussions held in Romania among the jurists converge to highlight the value of the parliamentary
immunity institution, conceived not as a UMBRELA at the shelter of which a member of the legislature would
enjoy the freedom to behave anyway, even defying the law, but only as an indispensable tool for defining its
freedom of opinion.
A pluralist democracy can not exist without ensuring the independence and dignity of the national
representation. It is also the reason why parliamentary immunity is imperative, is not a mere subjective right of
the MP to whom he can give up. It is public order and can therefore be invoked ex officio and at any time, not
just by the one concerned, as part of the status of the MP, who is in turn public order.
Therefore, parliamentary immunity must be dealt with only in the light of these considerations and viewed
as a natural consequence of the parliamentary mandate as an attribute of parliamentary status to which he can
not give up. At the same time, the procedure for the lifting of parliamentary immunity can not in any case be
assimilated to a procedure that would require a clear majority only in the case of the revision of the
Constitution. At the same time, we must also start from the reason that the deputies and senators, once elected by
universal, equal, direct, secret and freely expressed vote, gain some autonomy from those who elected them and
even with the political formations they are part of. In the name of a party discipline, a deputy or senator can not
be compelled to act against his own beliefs. In previous and even current legislatures there have been many
cases of deputies and senators who have left the political formations they belonged to, preferring rather to
renounce their membership of political parties or political parties than to the independent way of exercising
their mandate. The idea of imperative mandate is natural, unacceptable, and it is impossible to conceive in a
rule of law that a deputy or a senator be expressly compelled by his voters to support a particular position or
claim.
Obviously, if deputies or senators move away from the positions of principle dictated by their membership
in a particular party, it is, of course, entitled not to consider them among its adherents. The tendency for the
constitutional regulation of parliamentary immunity lies in its reporting to the actual exercise of the mandate of
the senator or deputy. Besides them, any MP is treated, from a criminal point of view, as any other citizen.
SELECTIVE BIBLIOGRAPHY
1. PIERRE AVRIL, JEAN GICQUEL - The Parliamentary Troop, Troisieme Edition, Montchrestien
Publishing House, Paris, 2004, page 29.
2. IOAN MURARU, ELENA SIMINA TĂNĂSESCU - Romanian Constitution - Comment on articles, C.H.
Beck, Bucharest, 2008, page 681.
3. PAUL NEGULESCU, GEORGE ALEXIANU - Public Law Treaty, Casa Scoalelor Publishing House,
Bucharest, 1942, page 536.
4. Parliamentary immunity in the Member States of the European Community and the European
Parliament, working paper.
163
5. IOAN MURARU, MIHAI CONSTANTINESCU - Romanian Parliamentary Law, ALL Beck Publishing
House, Bucharest, 2005, page.329.
6. VICTOR DUCULESCU, CONSTANŢA CĂLINOIU - Parliamentary Law, 2nd Edition, Lumina Lex
Publishing House, Bucharest, 2008, page 132.
7. LAW no. 96/2006 on the statute for deputies and senators, published in the Official Gazette of
Romania, 174, XVI, Part I, Laws and decrees, de unde e?
and other acts, Wednesday 3 May 2006 - Principles and rules of parliamentary conduct.
8. IOAN MURARU, SIMINA TĂNĂSESCU - Op.cit., Page 682-683.
9.IOAN MURARU, MIHAI CONSTANTINESCU - Romanian Parliamentary Law, Actami Publishing
House, Bucharest, 1999, page 364.
10. THE CONSTITUTION OF ROMANIA from 2003 - Art.15, Art.69, Art.72.
11. Regulation of the Senate of Romania adopted by the Senate Decision no. 28/2005, republished in the
Official Gazette of Romania, Part I, no.152 of February 29, 2016.
12. Regulation of the Chamber of Deputies, published in the Official Gazette of Romania, Part I, no. 277 /
12.04.2016, approved by the Decision of the Chamber of Deputies no. 8/1994, updated and republished pursuant
to Article 1 of the Decision of the Chamber of Deputies no. 48/2016.
164
RIGHT TO LIFE. PROTECTION OF THE UNBORN CHILD
Simona ElenaTAŞCU
Doctoral Candidate in Criminal Law (ROMANIA)
e-mail: [email protected]
Abstract
The right to life is sanctioned and protected by a number of instruments, both nationally and
internationally.
But how can be the right to life protected if the right to give birth or to be born does not exist? The
embryo becomes foetus, the foetus become child and the child turns into an adult, this is the evolution of each
individual, which contributes to the renewal of the society through the perpetuation of species.
The international legislation does not recognise the right to abortion; however the European Court of
Human Rights has not accused any State so far for having allowed it.
In Romania, the Chapter “Aggression towards the Foetus”, a new chapter in the Criminal Code,
represents a progress in the child’s protection domain, covering, beside the protection of the foetus during
pregnancy – by regulating the termination of pregnancy –, the foetal injury during childbirth, a novelty in this
domain.
Key words: right to life, embryo, foetus, abortion, aggression towards the foetus, jurisprudence
1. The Right to Life in the International Legislation and the Right of the Child to be Born
Beginning with the Antiquity, when Plato, uttering the first philosophical principles regarding the
human rights, asserted that no person should answer at an injustice with another injustice, and continuing with
the apparition of the Bible where, in the Book of Exodus, Moses ordered to the Israelites “But if there is any
further injury, then you shall appoint as a penalty life for life, eye for eye, tooth for tooth, hand for hand, foot for
foot, burn for burn, wound for wound, bruise for bruise”332
and arriving at our days, the right to life, to physical
and psychical integrity, are intangible rights of the person who enjoys increased legal protection, being rights
that focus not only on the individual and his own rights, but also on the community of individuals and the
correlative obligation of each other’s right at respect and at not prejudicing the rights and values of the others,
their individual existence conditioning reciprocally.
When these fundamental rights concern the children, their both legal and social protection augments,
having the final purpose of ensuring the high interest of the child and his development in a system of values and
principles that would recommend him for maturity.
The right to life is consecrated and guaranteed by a number of international instruments, among which
the Universal Declaration of Human Rights, the European Convention of Human Rights, the International
Covenant on Civil and Political Rights.
The essential problem that occurs and that is the source of so many different interpretations is the
moment when the right to life is recognised to the individual, more exactly if an embryo may be considered a
person, for abortion to be forbidden and the perpetrator that hurts the embryo’s right to life to be punished, in a
similar way as is the case of a born person.
These controversies have occurred considering that article 2 of the European Convention of Human
Rights protects the right to life, but does not define life and, therefore, the holders of the right to life. Unlike
other international instruments of protection of the right to life, the Convention does not pronounce at the
moment when life begins, moment when we speak of a “person” and its right to life.
The European Court of Human Rights, in its Decision dated May 13th
, 1980 X v. UK333
excluded the
absolutist conception of the embryo’s right to life. In this case, the complaint came from the father who claimed
that his wife’s termination of pregnancy, undergone for therapeutic reasons, without his consent, violates the
right to life of his unborn child. The Court showed that the mother’s life is indissolubly linked to the foetus’,
therefore the right to life cannot be absolutely offered to the foetus, without endangering the mother’s life, in
case complications occur during labour. Besides, such an approach would violate the spirit of the Convention
adopted by States that allowed voluntary termination of pregnancy in different situations.
332
Bible, Book of Exodus, the second book of Moses, Chapter 21, points 23, 24, 25 333
ECHR Decision in the Case X. v. United Kingdom, dated May 10, 1980;
165
In this regard, the Commission considered that the expression “every person”, used in several articles
of the Convention, could not be applied previously to birth, the child to be born not being a person – in the
general meaning of the term and in the context it is used in the conventional disposition. The Convention also
observed that article 2 could not be interpreted as recognising the right of a foetus to life with absolute character,
because “the life of the foetus is intimately linked to the life of the woman wearing it, and it cannot be
considered separately”.
If it were considered that article 2 also applied to the foetus and that the protection afforded by this
article should – in the absence of certain express limitations – be regarded as absolute, it should be deducted
from this that abortion is forbidden, even when the pregnancy would endanger the mother’s life. This would
mean that the life of the foetus would be considered more precious than the pregnant mother’s life334
.”
Considering the doctrinarian discussions, it is obvious and natural the non-unitary application of the law
by the national Courts which do not have at their disposal a unique interpretation given by an international body,
which they should start from in order to build logical, juridical and social reasonings.
Therefore, the child to be born is not considered a “person” who benefits from the provisions of article.
2 of the Convention and from the “right” to “life” which, if exists, is implicitly limited by the mother’s rights and
interests. As shown before, the European Court considers that it is not indicated to give an answer at the issue of
qualifying as a “person” – as per article 2 – the child who is not yet born.
2. Abortion in the Acceptation of the Justice Court of Human Rights
The European legislation does not recognise, and even less guarantees, the right to abortion. The
promotion of the right to the termination of pregnancy as an individual right has been in accentuated decline in
the latest years. The experience in practice has proven that permissive legislation leads to unsatisfactory results
and the scientific progress and social, even moral, evolution makes many reconsider the dignity of the human
being, starting from the very conception.
The article “Abortion in European Law – Human Rights, Social Rights, and the New Cultural Trend”335
,
published in “Ave Maria International Law Journal” in September 2015 analyses: 1) whether there is a right to
abortion within the European Convention on Human Rights, 2) whether abortion is a violation of social rights,
and 3) whether a recent trend in Europe toward a restriction on abortion shows abortion is a social problem, and
not a right or individual freedom.
The lawmakers and the organisations that hope for a stronger protection of children and women when
faced to abortion shall find here critics at the idea whether there is a right to abortion, and also a legal framework
within which such legislative protection measures should be drafted.
3. The Right to Life in the National Legislation and the Moment when this Right Starts Being
Protected
The right to life is regulated in the national legislation, first of all, by the fundamental law. Thus, article
22 of the Romanian Constitution says, under para. 1, that: “The right to life, as well as the right to physical and
mental integrity of person are guaranteed”, under para. 2 “No one may be subjected to torture or to any kind of
inhuman or degrading punishment or treatment”, and under para. 3 “The death penalty is prohibited”336
”.
From the perspective of the criminal law, a subject of criminal protection is also represented by the right
to life, this being the legal subject of several offences. Our legislation is in full concordance with the
jurisprudence of the European Court of Human Rights, which has constantly ruled that the States “have the
primordial duty of guaranteeing the right to life, by creating a concrete criminal legislation which would
discourage the damages brought to the person and which would lean against an application mechanism
conceived for the prevention, repression and sanctioning of violations337
”.
The long-time discussed controversial issue is the moment when the right to life, which must be
protected, begins. The moment when a person’s life begins is the moment of the birth. Though it would seem
that it is simple to point that moment, in reality, it is not. A person’s birth, implicitly the life’s birth, being a
process made up of several stages, several opinions exist in the specialised literature at the moment when a
human is considered to be alive338
.
334
Bîrsan Corneliu, “Convenția Europeană a Drepturilor Omului. Comentariu pe articole. Vol I. Drepturi și
libertăți.” C.H.Beck Publishing House , Bucharest, 2005, pag. 161-162 335
http://www.culturavietii.ro/2016/06/20/avortul-legislatia-europeana-nou-studiu/ 336
The Constitution of Romania, in force starting with October 29, 2003; 337
ECHR Decision in the Case Kilic v. Turley of 1993; 338
Alexandru Boroi, Drept penal. Partea specială, 2nd
Ed., C.H.Beck Publishing House, Bucharest 2014, pag. 26
166
In accordance with the majority opinion, the beginning of life is marked by the detachment of the foetus
of the mother’s body, by cutting the umbilical cord, moment when this one is considered a child, a person, thus
benefiting from the protection regulated by the criminal law339
.
According to an earlier opinion, a person is considered alive when the foetus gets, through birth,
independent ectopic existence, the moment marked by the child’s breathing340
.
The specialised literature also contains the point of view according to which a person’s life does not
necessarily begin at the moment of the first breathing of the child, but at the moment when the child enters the
process of birth, therefore, before being expulsed and before starting its ectopic existence341
.
As for the rights of an unborn child, we may draw the conclusion that, in the actual regulations, the
child’s right to life is not protected, as is to an already born subject, therefore it is necessary to incriminate
certain deeds against this one, in the newly introduced chapter of the Criminal Code “Aggression Towards the
Foetus”.
4. Aggressions Towards the Foetus in the Romanian Criminal Code
The criminal law, which represents the body of law regulating the repression of deeds that constitute
offences, also sanctions the prevention of the existence of the ectopic life, the injury of the foetus during
pregnancy or during childbirth, followed or not by the later death of the child born alive, caused with intention.
The actual Criminal Code, adopted by the Law no. 286/2009, contains now a separate chapter called
“Aggression towards the Foetus”, composed of: “Termination of Pregnancy”, regulated by art. 201 and “Injury
of the Foetus”, as foreseen by art. 202.
If, under “Termination of Pregnancy”, the old rule foreseen by art. 185 of the previous Criminal Code,
called “Illegal termination of abortion” is resumed, as shown above, in order to continue an adequate policy and
to avoid the bad consequences of the past, the other offence “Injury of the Foetus” is regulated for the first time,
covering situations when something happens to the foetus during childbirth. Between the moment when the
termination of pregnancy ends and the moment of cutting the umbilical cord, there is the moment of birth –
during these moments, a factor may occur which could cause an injury or even could endanger the life of the
foetus.
If the perpetrator, through culpable action or inaction, creates those special conditions when the
termination of pregnancy is forbidden or causes an injury to the foetus during birth, shall be held liable
criminally either for the offence of termination of pregnancy or for the offence of injuring the foetus, the border
between these being relatively difficultly to establish. The contents of these two offences have in common both a
part of the modalities of achieving the material element (regarding the instruments and actions damaging to the
foetus) and the protected social value: the right to normal intrauterine development of the embryo, the right to
life and corporal integrity and health of the child during birth, and also after that moment.
The aggression shall represent therefore that action that causes the interruption of the normal
equilibrium of the pregnancy with direct implications on the foetus and which results may prevent ectopic life or
later corporal injury of the child.
Intrauterine life appears at the moment of conception, but this benefits from the protection of the
criminal law at the moment when the embryo becomes foetus, which is the eighth week of pregnancy.
In the medical domain, research has revealed that the foetus is able to feel pain beginning with the
eighth week of pregnancy, because from that moment on, thalamus starts functioning, taking over the impulse of
pain from the sensorial nerves and commanding the respective painful place to react342.
The antisocial deeds of the human being have made the object of the research studies in the criminology
domain, for a long time, in order to determine their causes and to find solutions for the decrease of the
phenomenon of crimes. Thus, the specialists have explained these deeds either as a consequence of some internal
causes and conditions related to the differences existing in the psychophysical structure and conscience of the
active subjects of these offences, or as a consequence of some external causes and conditions, related to the near
social environment or to the larger social environment, the offence being the result of an accumulation of
internal and external factors (plurigenesis)343
.
The publication of Chapter IV: “Aggression Towards the Foetus” distinctly within the Title regarding
the Crimes against Person, and not as a section within the chapter related to the Crimes against Life, Corporal
339
http://www.srdo.ro/2016/01/15/avortul-terapeutic-protejarea-vietii-mamei-vs-sansa-la-viata-a-fatului/ 340
Salteli Romano- Di Falco, Nuovo Codice penale comentate, U.T.E.T., Torino, 1940, p.232, apud Al. Boroi,
op. cit., pag. 26 341
Gr. Râpeanu, Manual de drept penal al R.P.R., Partea specială, Bucharest, 1960, pag. 73; B. Braunstein, Drept
penal al R.P.R., Partea specială, Iasi, 1959, p. 135 apud Al Boroi, op. cit., pag 26 342
www.sfatulmedicului.ro/dictionar-medical/talamus_5103; 343
See V. Dongoroz, Drept penal(Tratat), Asociaţia română de ştiinţe penale, (Romanian Association of
Criminal Sciences), Bucharest, 2000, p.368-375.
167
Integrity and Health, such was the offence of illegal termination of abortion within the section called “Abortion”
in the Criminal Code of 1968, underlines once more the special emphasis put on such crimes in the new
legislation. This means that the lawmakers pay special attention to the social relationships related to the normal
development of the foetus even from the moment of its conception and until its birth, and also to the social
relationships related to the protection of the pregnant woman.
The aggression represents therefore that action that leads to the interruption of the normal equilibrium
of the pregnancy with direct implications on the foetus, not only on the pregnant woman, and which results could
prevent ectopic life or later corporal injury of the child.
At the same time, the offence of injury of the foetus also includes the deeds of violence committed on
the mother during pregnancy, which were not committed with the intention of causing abortion and did not have
that result, but led to the harming of the foetus and eventually to the corporal injury or even death of the child
after birth.
The introduction of the incriminator text in the Title regarding the Crimes against Person, under Chapter
IV, does not lead to a ranking of the social values protected by these norms, but represent a systematisation
depending on the actual criminal policy of the State.
Conclusions
The right of a child to be born, his physical and psychical integrity to be respected, is indispensable to a
modern society, in continuous progress.
At the European level, the European Court of Human Rights has not clarified the status of the embryo and
foetus yet, remaining the States’ responsibility to consider or not whether an unborn child is a person, whose
right to life must be respected, fact that has as consequence the non-unitary application of the law.
In our legislation, the right to life is protected starting with the moment of birth, moment which is
controversial and long-time disputed, as shown above, by applying the criterion according to which life begins
with the autonomous existence of the child; so far, between the protection of the unborn child by the
incrimination of abortion and the moment when the protection of the right to life is incident, there is a period, the
moment of birth, which has not been covered by our legislation. If the foetus died during childbirth, because of
the doctor’s fault, what offence would we define? The termination of pregnancy / the illegal abortion could not
be incident, given that the pregnancy reached its end. Homicide could not be invoked, as the foetus’ right to life
was not recognised.
On the background of these aspects which have generated problems in the judicial practice, the actual
rules on the “Aggressions towards the Foetus” are in agreement with the evolution of our society, as they
introduce modern elements, besides the classic offences.
References
1. Bible, Book of Exodus, the second book of Moses, Chapter 21, points 23, 24, 25 ;
2. ECHR Decision in the Case X. v. United Kingdom, dated May 10, 1980;
3. Bîrsan, C. “Convenţia Europeană a Drepturilor Omului. Comentariu pe articole. Vol I. Drepturi şi
libertăţi.” C.H.Beck Publishing House, Bucharest, 2005;
4. http://www.culturavietii.ro/2016/06/20/avortul-legislatia-europeana-nou-studiu/;
5. The Constitution of Romania in force starting with October 29, 2003;
6. ECHR Decision in the Case Kilic v. Turley of 1993;
7. Boroi, A. “Drept penal. Partea specială, Ediţia 2”, C.H.Beck Publishing House, Bucharest 2014;
8. http://www.srdo.ro/2016/01/15/avortul-terapeutic-protejarea-vietii-mamei-vs-sansa-la-viata-a-fatului/;
9. www.sfatulmedicului.ro/dictionar-medical/talamus_5103;
10. Dongoroz, V., “Drept penal(Tratat), Asociaţia română de ştiinţe penale (Romanian Association of
Criminal Sciences), Bucharest, 2000.
168
THE DIMENSION AND DEVELOPMENT OF LAW AND JUSTICE IN
CONTEMPORARY ERA
Mircea TUTUNARU, Associate Professor, Titu Maiorescu University Bucharest, Faculty of Law Tg-
Jiu
Romulus MOREGA, University lector, Titu Maiorescu University Bucharest, Faculty of Law Tg-Jiu
Abstract: The Law accompanies social life from the oldest days to the present. We are living in a period in which
Law and justice have more than ever a particular importance for the development of the society. The main
elements that form the social body of the contemporary society fall under the incidence of the Law. The evolution
of the human society confirmed the dictum „ubi societas ubi jus” (where there is society there is Law too). The
human is a political being, a “zoon politikon”, as the great philosopher Aristotle used to say, and he lives in the
society as being a social creature. Therefore, it is observed the connection between the Law and the politics,
between the Law and the public power. Assisting human existence, representing the frame and the foundation of
human society, the Law opens paths to future evolution, through sometimes radical reforms, that require
courage and clairvoyance, bearing the legal mark so that they can be imposed.
Keywords: law, society, state, justice
THE LEGAL SOCIOLOGY IN CONTEMPORARY ERA
Considered the father of French sociology, Durckheim is one of the founders of legal sociology. Being an
advocate of scientific positivism, and under the influence of Auguste Comte, he approached sociology as a
positive science of social facts and identified two features of these ones: exteriority and constraint/as pressure
exerted over the individual to integrate him/her into the society). In his view, the genesis of social norms, and in
particular of the legal ones, must be searched in the essential varieties of social solidarity, inside the social
environment. The legal standard does not appear as an immutable rational expression, but as a changing variable,
depending on the historical needs and aspirations of the human groups.344
Therefore, the law has a social feature and cannot avoid social interrelations. Durckheim distinguishes two
types of legal standards: the repressive law (criminal law) which is implemented if the mechanical solidarity is
violated, and the right of restitution (family law, commercial law) to protect organic solidarity. Legal sanctions,
as organized sanctions, regulated and applied by well determined social bodies, oppose the decline of social
cohesion, being a means of conservation of social groups.
Durckheim’s ideas about social solidarity, as fact and necessity, have inspired and contributed to Léon
Duguit’s (1859–1928) view about social solidarity as interrelation that connects the members of all mankind and
especially those of a certain social group, through the community of needs and the labor division.345
Another representative of legal sociology, Eugen Ehrlich (1862-1922), underlined: ”The center of gravity of
Law evolution is neither found in law, nor in legal science, nor in judicial decisions, but in the society itself.”346
In his view, the judicial reality comprises three levels: the abstract sentences of the Law, the decision rules
regarding the conflicts and the peaceful and spontaneous order of society.
The specific task of legal sociology, in Ehrlich’s view, is precisely the investigation of the living law, of the
dynamic legal realities, of the social facts in law. This can be done by direct observation, by studying legal acts
of law enforcement, jurisprudence. Jurisprudence must correlate the legislation with specific conditions in which
the law is applied, motivating social development.347
An iconic personality of Romanian culture, Mircea Djuvara (1886-1945) is one of the greatest
contemporary thinkers of the legal doctrine and philosophy, formed on neokantian basis, but who deviates from
the neokantian formalism through a deep and original analysis of the living law.348
Djuvara conceives the general theory of Law from a synthetic and generalizing perspective, which retains
what is persistent in Law, the legal constants. It also highlights the social dimension of the Law, the fact that the
legal reality, in itself, implies law subjects, rights and obligations, activities that form the legal object of these
rights and obligations, the legal sanction recognized as a result of establishing the legal obligations. The law, he
344 Craiovan, Ion. Introduction in Law phylosophy. Bucharest: All Beck, 1998, p. 59 345 ibidem 346 Gurvitch, Georges. Problemes de sociologie du droit, in: Traité de sociologie, tome II, Paris: PUF, 1960, p. 180-181 347 I. Craiovan, op.cit., p. 61 348 del Vecchio, Giorgio. Philosophie du droit, Paris: Dalloz, 1953, p. 166
169
states, shows the permissible, forbidden or imposed acts in the society on the basis of the idea of justice, and
makes an important distinction: the rational law and the positive law.349
The rational law exists as a series of principles prior the positive law, which he sets up. The positive law,
respectively the legal rules imposed by customs and laws, the law that is applied in a society at a certain
moment, as Djuvara underlines, must develop, apply and organize the principles and the norms of the rational
law. According to this determination, the systematic ensemble of positive law must be felt as fair in its
fundamental elements in the society where it applies; otherwise the unfair legal solution is not a solution but a
legal error. Both lawmaking and law enforcement can only have one meaning - achieving justice among
people.350
Djuvara stated that freedom is the postulate of any matter of law, is the foundation of law. The Law is,
therefore, conceived as a means of regulating the coexistence of freedoms. The law limits the freedom, but it is
precisely through this apparent limitation that accomplishes the freedom of each of us.
Jean Carbonnier (1908–2003) has a humanistic, skeptical but active vision on the Law, emphasizing,
among others, the fact that the law must be overrated as a normative tool, the moral ambiguity of the law, its
insignificant character in the whole of human relations, the limits of the evolutionism in law, the role of the
absence of law in society, and the flexibility of law.351
Carbonnier has studied legal phenomena in all their complexity, both the primary ones such as law or
judgment, and the secondary ones such as inefficiency or intolerance. These must react against a temptation – the
panjuridism, which pushes us to see the law everywhere, behind every social or individual relationship.
The legal sociology knows that the law exists, that it is the cause or the effect of many of the people’s
actions. It does not escape the fact that, however, there are many more things in life than in law. The law is foam
on the surface of social or inter-individual relationships.352
Approaching the evolutionist hypothesis in law, Jean Carbonnier wonders if there is no permanent,
immutable element in human nature. He elaborated a theory of non-law which means the absence of law in a
number of human relations in which the law would be present through its theoretical vocation. The non-law, in
what he has more significant, expresses the contraction or withdrawal of the law.353
Jean Carbonnier also advocates for a flexible law, because “the law is too human to aspire to the absolute of
the straight line”354
that does not allow to squeeze under the necessary rigor, the rigidity, the affection, and the
imposture in the world of law, and in the implementation of justice.
The principles of the law, as Carbonnier underlined, will not be considered in the sense of law generators, but
what makes it possible that, beyond the variability of the legal systems to find their unity, on the one hand, and
on the other hand, what gives them the right to be; this "right to be" of any system of law, as an established
entity, is the Justice.
In Carbonnier’s view, a principle is not a law; is the word law polysemantic? Of course, it is. We say “law of
nature” meaning sentences that describe regularities in nature: “the osmotic pressure of the diluted solutions is
commensurate with the molar concentration of the solution if the temperature is maintained constant”, “The
same force or equal forces acting on different mass bodies prints accelerations inversely proportional to their
masses” etc. We say “legal law” (or moral or religious etc.) referring to sentences that prescribe guiding behavior
for people, regulating relations between them through legislation given by a recognized public authority that, if
necessary, resorts to a coercive force to impose what it regulated. It is also called a law and a certain legal
normative act (e.g. Law 18/1990) or all internal or traditional normative acts at a given time.355
The judge decides “in the name of the law”, meaning the legal law in force is the basis of the lawfulness of
its judgment, is what makes it possible for it to be justifiable and just, here and now. But the legal law itself, as
all the normative acts, including the Constitution, in force, on what is founded, what gives them the quality of
being right? And if the Libyan law system from 1996, the Burmese law system and the English law system from
1996, the Ottoman law system from the 18th
century and the Justinian one from the 6th
century are so different,
what does establish them to be right? What is the measure of all the law systems, after which we investigate
their purpose? Djuvara wrote: “... there can be no immutable principles of law, which are worth at any time and
any place.”356
The author wants to say that on the one hand there are principles of law, and on the other hand,
their valorization, variable by time and place; indeed, one is the existence of the principle of equity, as old as the
law and the other with its Roman, Medieval, Modern interpretations, etc.
349 Djuvara, Mircea. General theory of law. Rational law, sources and positive law, Bucharest: All, 1995, p. 7 350 idem, p. 114 351 Carbonnier, Jean. Flexible droit, Paris: LGDJ, 1995, p. 22 352 ibidem 353 idem, p. 23-25 354 idem, p. 2 355 Gheorghe Mihai, Radu I. Motica, Fundaments of law. Theory and philosophy of law, Bucharest: All, 1997, p.120-121 356 Mircea Djuvara, Law and sociology, Bucharest: Arhiva pentru știință și reformă socială, 1936, p.11
170
LEGAL NEOPOSITIVISM (LOGICAL POSITIVISM)
The French author, Michel Villey (1914-1988) has supported the return to natural law, which he claims to be
found in the Roman law, the only one which, in fact, retains what is authentic in law. He criticizes the notion of
subjective right, based on the thesis according to which the law is not related to a subject, but to the nature of
things. He considers that individualism is the major deficiency of modernism, because it does not take into
account the human’s natural sociability, being founded on a rationalist volunteerism that confuses the law order
and the politics order, attaching the moral right.357
Villey argues that the jurists must return to the ancient legal thinking of natural law, criticizing legal
positivism and natural modern law. His main argument in this sense is that law cannot be created by man
because it pre-exists, being inscribed in the nature of things.
Villey's doctrine is criticized for promoting the return to ancient jusnaturalism (legal positivism), but what is
interesting is that the doctrine supports the idea of separation of the moral right and the positivism it criticizes.
As a reaction to the rehabilitation of natural law, the Anglo-Saxon School of Law promotes a new orientation in
legal thinking - legal neopositivism (logical positivism). Most prominent representatives of the legal
neopositivism are Herbert Lionel Adolphus Hart (1907-1992) and Neil MacCormick (n. 1941).
British professor and a representative personality of law, H.L.A. Hart has as a central concern the definition
of the law, his main work being called The Concept of Law. Hart belongs to the group called The new analytical
jurists, of which also belong R.S. Summer, R. Dworkin, M. Cohen and N. MacCormick. The essential
coordinates of this outlook have been extensively analyzed and nuanced by the well-known author and professor
of law Sofia Popescu.
Hart makes a shift from logical-formal analysis to informal analysis, succeeding in highlighting the valences
of the common language, pleading for the doctrinal and practical utility of analyzing this language that must be
cleaned and precise. This thing can have beneficial effects in law. Moreover, this shows that a definition of
exclusive law could be obtained by eliminating the concept of law, and that the conceptual analysis could be the
proper tool in discovering the nature of legal institutions, irrespective of the differences between the societies in
which the law order can be found. 358
This analysis is considered to be distinct from the historical investigation
of the origins and causes of the laws, the sociological investigation of the relations between law and other social
phenomena, and the investigation of the law through its aims and functions. 359
H.L.A. Hart points out that each legal standard and each expression has a unique central concept, not
susceptible of disputes, determined by the use of the common language. The problem of the moral personality,
says Hart, is controversial in its nature. Some authors are partisans of the realistic theory and have in mind the
real existence of the group of people that form this subject of law; others consider it is nothing but a fiction, not
being about that, in fact, this group could have legal will. Thus, Hart considers that this problem can be
decrypted and solved by reaching out the human language. Judges often take into account the standard meanings
contained in the legal rules, underlines Hart, which they sometimes apply mechanically, not taking into account
the special cases of "the shade”.360
Hart, also, underlines that the normative dimension of law is a constitutive and critical dimension, reducing
the right to what courts do, as the followers of American realism do, and argues that the legal realities of the
application of law, the establishment and the powers of the courts are based on the legal norm. The right must
not be limited to its repressive-sanctioning function, social control and litigation; its functions are manifested
outside the courts, in the social life, through legal rules that give individuals the means to create, under certain
conditions, structures of rights and duties. Hart conceives the law as being the unity of primary and secondary
norms.361
By primary norms, Hart understands those fundamental norms that impose obligations or prescribe abstention
from certain behaviour. By secondary norms he understands those norms that confer public authority in relation
to the primary ones, and that give the possibility that, by completing certain acts, either to introduce new
primary-type rules, or to repeal or to modify the old ones. Thus, the minimum conditions of existence of a legal
system are: complying with the valid legal rules according to the validity criteria, by the majority of the
population; the acceptance by the authorities of the recognition, changing and decision norms, as public and
common models of conduct.362
It is important to remember that, in his view, Hart emphasizes the specific character of legal thinking and
language, the importance of establishing some legal concepts such as the complexity of the relations between the
social reality and the legal rules of rights in social life.
357 Cristea, Simona. Legal doctrines. 6th Edition Revised and Added. Bucharest: Universul Juridic, 2014, p. 126 358 Sofia Popescu, Contemporary concepts about the law, Bucharest: Editura Academiei R.S.R., 1985, p. 102-116; Sofia
Popescu, Introduction to the study of law, Bucharest: UNEX, 1991, vol. I, p. 116-120 359 I. Craiovan, op.cit., p. 77 360 H.L.A. Hart, Le Concept de droit, Bruxelles: Facultés Universitaires Saint-Louis, 1976, p. 47 361 idem, p. 105-120 362 Sofia Popescu, Introduction…, op.cit., p. 112-113
171
Hart underlines that the law is a creation of the state, whose authority cannot be disputed, and retains the
following notes of analytical positivism in contemporary science:
- the laws are the commands of the human being;
- there is no need to report the Law to morality;
- the analysis of legal concepts must be undertaken separately from the historical research of the causes and the
origin of laws, from the sociological research on law and from other social phenomena;
- the legal system is a closed logic system, from which can be deduced, by logical means, correct legal decisions
based on pre-established legal rules.363
The teaching of the Scottish Neil MacCormick, referred to in the literature, legal non-institutionalism, is
characterized by denying jus naturalism (natural law), showing the law is not based on universal values and
principles to which the legal order should correspond.
MacCormick’s neo-institutionalism expands the positivism issue and cannot conceive the existence of an
institution that is independent of its constituent norms. The valid legal rules that form the institutional legal order
must meet the general interests and justice achievement.364
LEGAL PRAGMATISM
Alongside neo-positivism (logical positivism), the pragmatism (pragma=action) represents the main
consequences of the classic and synthetic positivism. It underlines that the meaning of a concept must be looked
out in the experiential or practical consequences of its application. The pragmatism has represented, for a long
time, the official philosophy on the North-American continent, being represented by thinkers such as Charles
Sanders Peirce (1839-1914), William James (1842-1910), John Dewey (1859-1952) and influenced the
American law system.
This trend, by identifying the object of knowledge with the process of knowledge itself, was to formulate
what was called the genetic theory of truth. According to this theory, there are no real ideas but only ideas that
become true to the extent they prove to be useful for knowledge. 365
According to this belief, true is not what is
properly reflected in reality, but what is proving to be cognitively advantageous, as W. James says it: “a real idea
is not a simple copy of the reality”.366
Only to the extent that an idea is a useful guide to action, it is in agreement
with the reality and, therefore, true. We can conceive meaningful expressions as rules of actions. The rules and
the practical habits are general ways of action and can be repeated in countless cases.
LAW RECONSTRUCTION
The legal positivism criticism has known a new evolution and dimension both in the North-American, and in the
Italian legal thinking, which drew attention to the need of rematching the law to justice, of rethinking the role of
the judge. This belief has been sustained by Ronald Myles Dworkin (1931-2013) in USA, Jürgen Habermas
(n. 1929) in Germany.
The law is not defined as an institutional fact, but as an interpretative one. The narrative consistency, which
refers to establishing the facts in the course of a trial, is counterbalanced by the normative coherence. In
Dworkin’s view, the law represents the interpretative attitude of a community that performs justice. Always, a
legal norm must correspond to a material interest, a principle, a value or a purpose.
The concept of law “cannot be independent of the conception about the legal phenomenon and of justice.
Before talking about the law as a set of rules, there is the idea of law, the law as justice.”367
The interpretative attitude is useful in applying the law, but at Dworkin the application of law requires the
historical dimension. He states that “the interpretative attitude does not mean the continuation of what has
always been done in law, but the examination of the meaning of the norm, the understanding of the extended
legal rules, modified, indicated or limited, according to the meaning. In his view, applying the law must combine
the historical dimension with the law reconstruction process.”368
In the law reconstruction process, the main part goes to the judge, who must do a coherent and global
reconstruction of the legal history
Dworkin establishes sets two rules for the interpretation of the law:
- the agreement law, according to which to apply the law, first this one must be identified, and the authorities
must establish the law according to the facts;
- the value rule, which supposes that it must be chosen that legal standard that is in accordance with the
political morality or with the general theory of justice.
363 I. Craiovan, op.cit., p. 94-95 364 Sofia Popescu, Introduction…, op.cit., p. 112-113 365 Tomiță Ciulei, Small gnoseology treaty, Iași: Lumen, 2014, p. 400 366 W. James apud T. Ciulei, op.cit., p. 400 367 R.M. Dworkin, La théorie du droit comme interprétation, in: Droit et Société no. 1/1985, p. 87 368 R.M. Dworkin, L'empire du droit, Paris: PUF, 1994, p. 250-254
172
The political morality, in Dworkin’s conception, consists of respecting the equality and equal attention for all
the citizens. Referring to power division, Dworkin says that is important the division of these two powers, the
legislative one from the judiciary (of control). He defines the politics as a standard that determines reaching an
economic, social or politic end. The principle is defined as a standard that constitutes an exigency of justice or
another dimension of morality. 369
Jürgen Habermas (born 1929) considers that law reconstruction must take into consideration the
achievement of the basis of the validity of the legal norms. A legal standard, in his opinion, in order to be valid
must satisfy the interests of everyone and must be accepted by all the people targeted by the regulation.
The justification of the legal norms does not come from their normative content, but from the adoption
procedure considered legitimate by the citizens. It appears that cannot be assimilated the legitimacy of the legal
rule, only the legal form of the adoption procedure. The justification of the legal rules is related to their editing
and enforcement procedure.
Habermas criticizes Max Weber because he opposes the social state and social rights and criticizes him that
he does not take account of the advantages of the social state. He is concerned about the social state and its
principles, about the principle of popular sovereignty, the principle of legal protection of the individual, the
principle of the lawfulness of administrative action, the principle of parliamentary and jurisdictional control and
the principle of separation of state and civil society.
In Habermas’s vision, the law can act in two ways: as a social environment (a device that coordinates the
social actions) and as an institution. There are typical the standards that constitute the foundations of
constitutional law, the principles of the criminal law, criminal rules that regulate facts regarding the infringement
of morality.
Because they belong to a legitimate social order, these rules require a material justification; the justification
of the legal norms comes from the mode of adoption that must be recognized as legitimate.
As a means of social integration, the law must take into account two factors: the state of play and the
justification of its validity. The model of procedural justice proposed by Habermas is necessary to create new
legal institutions that promote the idea of creating a community of equal and free people.
The Italian school of law represents the combination of two theories of law: the normative theory and the
realistic theory. The most important representatives are Riccardo Guastini and Vittorio Villa.
Guastini proposes an anti-normative and realistic definition of the law. Thus, in his opinion, the law contains
the prescriptions of the legislator, the judge, the public administration, which create the right every time they are
called to show it in one way or another.370
He argues that the validity of the law is not determined by the judicial
practice and the creator of the legal norm is not the one who elaborates it, but it is only her interpreter, who, in
his opinion, is the legislator when interpreting the constitutional provisions or the judge when interpreting the
law or the public administration.
V. Villa promotes a post-analytical conception of law, and the law, in his opinion, is a social discursive
practice, based on a certain legal conception of society, including the justice.371
The evaluation of this legal current can highlight the elements of rationalization and modernization of the
law, so that it agrees with the progress of civilization.
CONCLUSIONS
The law system (the positive law here and now) regulates the conducts of the individuals and the legal
entities in their relations, their rights and obligations as subjects of law in determined legal relationships, and
contributes to the normative order of social coexistence, establishing the legal dimension of this order.
Considering the indispensable legal dimension of the normative order, called law order, the translation into
practice of the content of the rules of law, and implementing its commands represent a matter of normal
community life.
The social dimension of law makes that the achievement of the normative acts in force be an effective means
for achieving the objectives of social organization, as established by the legislator. The normative order of
societies is not only a legal one, the human freedom is not reduced to legal freedom, man's conduct in action is
not only characterized by legality, for homo juris is not identified neither in general, nor in particular with the
human being. But, at the same time, without a legal dimension, the normative order, the freedom, the human
conduct fall into precariousness that finally undermines cohabitation in society.
369 R.M. Dworkin, Le positivisme, in: Droit et Société no. 1/1986, p. 36 370 Billier, Jean-Cassien; Maryioli, Aglaé. Histoire de la philosophie du droit. Paris: Armand Colin, 2001, p. 307 371 Vittorio Villa, Conoscenza giuridica e concetto di diritto positivo: lezioni di filosofia del diritto, Torino: G. Giappichelli,
1993, cap. 8-10, apud Jean-Cassien Billier, Aglaé Maryioli, op.cit., p. 308
173
REFERENCES
[1] Billier, Jean-Cassien; Maryioli, Aglaé; Histoire de la philosophie du droit. Paris: Armand Colin, 2001
[2] Carbonnier, Jean. Flexible droit. Paris: LGDJ, 1995
[3] Ciulei, Tomiță. Small gnoseology treaty. Iași: Lumen, 2014
[4] Craiovan, Ion. Introduction in Law phylosophy. Bucharest: All Beck, 1998
[5] Cristea, Simona. Legal doctrines. 6th Edition Revised and Added. Bucharest: Universul Juridic, 2014
[6] del Vecchio, Giorgio. Philosophie du droit. Paris: Dalloz, 1953
[7] Djuvara, Mircea. General theory of law. Rational law, sources and positive law. Bucharest: All, 1995
[8] Djuvara, Mircea. Law and sociology. Bucharest: Arhiva pentru știință și reformă socială, 1936
[9] Dworkin, Ronald M. La théorie du droit comme interprétation, in: Droit et Société, no. 1/1985
[10] Dworkin, Ronald M. Le positivisme, in:Droit et Société no. 1/1986
[11] Dworkin, Ronald M. L'empire du droit, Paris: PUF, 1994
[12] Gurvitch, Georges. Problemes de sociologie du droit, in: Traité de sociologie, tome II, Paris: PUF, 1960
[13] Hart, Herbert L.A. Le Concept de droit. Bruxelles: Facultés Universitaires Saint-Louis, 1976
[14] Mihai, Gheorghe; Motica, Radu I. Fundaments of law. Theory and philosophy of law. Bucharest: All,
1997
[15] Popescu, Sofia. Contemporary concepts about the law. Bucharest: Editura Academiei R.S.R., 1985
[16] Popescu, Sofia. Introduction to the study of law. Bucharest: UNEX, 1991
[17] Villa, Vittorio. Conoscenza giuridica e concetto di diritto positivo: lezioni di filosofia del diritto. Torino:
G. Giappichelli, 1993
174
THE SUSPENSION OF THE EXECUTION OF THE G.M.A.’S DECISION
STIPULATED BY ARTICLE 133 OF THE LAW NO. 31/1991
ȚÂRU Petre Andrei
Ph.D. candidate, Titu Maiorescu University Abstract:
The adjournment for the execution of the General Assembly’s provisions is of utmost importance with respect to
the judgments that apply immediately and that have as a main effect the company's patrimony or which directly
affect the activity of the company.
The procedure of the injunction is regulated by the provisions of Law no. 31/1990, referring to those of the Civil
Procedure Code referring to the Judge’s Order, the differences between the two types of actions in court being
emphasized in the present paper and the nature and characters of this form of ordinances as well as the
regulation in the law of commercial companies make this variety one of the few forms of this kind that the
legislator has agreed to regulate separately in a special law.
Keywords: adjournment, presiding judge's order, company
1. THE NATURE OF THE PROCEDURE
The decisions challenged with an action for annulment may be suspended through the procedure
regulated by article 133 of the Law of Companies, the applicable procedure being that of the presiding Judge's
order. In view of these issues, it is imperative that the applicant proves that the conditions for admissibility for
the judge's order are met, namely the timeliness, the failure to judge the merits and the urgency.372
However
some authors 373
and some courts of law 374
considers that the application for suspension must be admissible
whenever proof of the action for annulment is made.
Interesting is the fact that the interwar case law considers that there is no need to prove the existence of an action
for annulment pending the submission to the court of a request for suspension which is being resolved by way of
a presidential decree.375
2 CAPACITY TO PURSUE THE PROCEEDINGS
Given the nature of the request, that of presiding Judge's order, the parties are the same as in the main
application, the action for annulment. Currently, in which the passive quality of action in the nullity of the
decisions of the general assembly is in accordance with the provisions of Law no. 31/1990, belongs to the
commercial company is practically unambiguous as in the judge's order the company through its representatives
has the passive quality of proceedings. According to article 70 the company is represented by its administrators.
The hypothesis that needs to be considered is about the situation when the decision is being challenged by all its
administrators. The legislator by article 132 paragraph (6) provided that the company would be represented by
the person appointed by the president of the court among its shareholders who will carry out the mandate with
which was given until the general assembly convened for this purpose will choose another person. The solution
required for the representation of the company, under the conditions of the common law, is made according to
the provisions of article 58 par. (1) of the Civil Procedure Code, a legal text giving the court the possibility of
appointing a special curator in the event of a conflict of interest between the represented and the representative.
Article 132 provides for the same remedy for the action for annulment, but the text in question cannot be applied
by analogy, being practically strict interpretation, being a special rule, according to the rule specilia generalibus
non derogant.
The rules of appointment of the company's representative follow the non-contentious procedure. Thus, a
complainant who knows that he is in such a situation may request the President of the court or judge designated
to receive the application to make such appointment right from the introduction of the request for a judge's order.
372
Bucharest Court of Appeal, commercial division, Decision no. 365/2000, Judicial Practice Collection in
Commercial Matters 2000-2001, p.224-225. In that decision, the court held that the only necessary and
sufficient condition for the admission of the application for suspension is the existence of an action for
annulment, and it is not necessary to prove the conditions provided by article581 of the Civil Procedure
Code. 373
M. Scheaua, The Law of Companies no.31/1990, commented and annotated, Publishing House All Beck,
Bucharest, 2000,p. 297-298./ 374
, Bucharest Court of Appeal, division VI-a commercial, Decision no. 246R/19.07.2006, delivered in case no.
16821/3/2006 (not published). 375
Court of Cassation, Division III, Decision no. 612/1932 and no. 277/1926, Judicial practice in commercial
matters, vol. II, Ed. Lumina, Bucharest, 1991, p.111-113.
175
Regarding the intervention on our own behalf, we appreciate that the judicial practice376
also considers that it is
not permissible to intervene in the name of the creditors who have opened the way to the opposition. This
appreciation is sound and verifiable only in relation to relative nullity, and not to the situation where absolute
nullity is invoked.
3. THE ISSUE OF BAIL
According to article133 paragraph (2): "the President, agreeing to the suspension may oblige the applicant to a
bailment." The wording of the legal text leaves it to the court to assess whether there is a need to bail out such
requests.
Doctrinal assessments are in the sense that the submittal of the bail should be ordered whenever the judgment
under appeal is not contrary to the law or articles of incorporation, that is to say, the illegality or breach of the
articles of incorporation stems from the judgment itself, without the need for other evidence.377
The necessary
elements to be taken into account in establishing the bail are primarily linked to the existence and extent of the
damage suffered by the company by postponing the execution of the judgment under appeal until the application
is declared void, since the intended purpose of the bail is to ensure, at least in part, the recovery of the damage.378
The court will have to exercise caution in determining the amount of the bail in order to maintain a balance
between the risk that a bail will become a way of unduly restricting the applicant's access to the requested
suspension and the risk that a very low bail will open the door to an abusive exercise of rights by the applicant.379
Some exceptions of unconstitutionality have also been invoked in practice, but the Constitutional Court380
has
pointed out that article 133 paragraph (1) and (2) allows the court to assess, in the light of the circumstances of
the case, the eventual and baffling nature of the application for suspension of the decision of the disputed general
assembly of the shareholders to establish a bail to deter unsubstantiated or abusive claims made with bad faith.
The submittal of the bail is a guarantee in the sense that, following the dismissal of the action for annulment of
the decisions taken by the general assembly of the shareholders, the interested party will be able to demand and
obtain compensation for the damages suffered due to the delay in executing the respective decision.
The introduction of a new suspension request appears to be hampered by the wording of article 133 paragraph
(1), which provides that 'once the action for annulment is brought, the applicant may request the President of the
Court to suspend the execution of the judgment under appeal'. Therefore, the law temporarily locates the moment
when the application for suspension is filed, but this is excessive and there may be no interest in the suspension
at the time of filing the action for annulment, and the acceptance will occur later with the first act of execution of
the general assembly’s decision.
Another issue that arises is that of the authority of resolving the ruling on the first request for suspension
formulated. The conflicting views of the practice have led to the emergence in the case-law of solutions for the
cancellation of the petition for failure to make the bail, which leads to the admissibility of a new application for
suspension. If the application is to be dismissed as inadmissible for failure to provide a bail, there is authority to
act as it is in the matter of judge' orders that the authority of the court of law is relative, being circumspect when
the circumstances of the case do not change. If the factual situation changes, we consider that it may also include
the possibility of the plaintiff to pay the bail, the court being able to appreciate and implicitly settle, without
being hindered by the authority of the court.
5. JURISDICTION AND SETTLEMENT PROCEDURE OF THE REQUEST Under Article 998 of the Code of Civil Procedure, the court having jurisdiction to hear the judge’s order
is the court with jurisdiction to rule in the first instance on the merits. In the present case, the jurisdiction on the
merits of the action for the nullity of the decision of the general assembly rest with the court at the specialized
section of the professionals in whose territorial jurisdiction the company has its headquarters whose decision of
the general assembly is requested to be suspended.
Jurisdiction of the courts is exclusive, as the claims made by way of the judge’s order are not in general likely to
be settled by arbitration, all the more so since the main claim is itself the exclusive competence of the court.381
376
C.A Bucharest, s.a-V-a com, Decision no. 899 of 22 May 2003, R.R.D.A no.5-6/2004, p.105-107. 377
M. Scheaua, quoted work, p. 298. 378
Demetrescu, I. L. Georgescu, Carol al- II- lea Commercial Code. The text of the law. Legislative Council
report. References to existing legislation. Comment, Publishing house Cartea Românească, Bucharest, 1938,
p.169. 379
C. Leaua, Commercial companies. Special Procedures, Edition 2, Publishing house C. H. Beck, Bucharest
2009, p.197-198. 380
Constitutional Court Decision no. 209 of 14 April 2005 regarding the exception of unconstitutionality of the
provisions of article 133 paragraph (1) and (2) of Law no. 31/1990 regarding the companies- M.O. no. 528 of
22 June 2005. 381
C.A. Bucharest, Division VI-a com, Judgment no. 165 of 30 July 2006, R.R.D.A nr.6/2007, p.77-83.
176
Regarding the procedure for solving the adjournment request, the literature considered that it is a contentious and
not graceful.382
To the extent that the procedural provisions derogating from Law no. 31/1990 does not order otherwise, the
procedure for settlement is the one stipulated in article 997 of the Civil Procedure Code and the following.
Given the absence of an express text that deviates from the common law in the matter of the judge’s orders, the
request for adjournment will be settled in a public hearing.
6. COURT JUDGMENT AND APPEAL
In the settlement of the judge’s order, the pronounced ruling will be included in a decision, the request
being solved separately from the request for annulment. The case-law has found solutions to the fact that the
request for adjournment may be dealt with in the same file as the nullity of the decision of the general meeting,
without the need for a dissolution order, and the name of the judgment as “court decision” is not such as to
attract its cassation.383
The solution pronounced by the Supreme Court cannot be maintained due to the current
regulation of the provisions of Article 133.
As regards the appeal against the “adjournment order, an appeal may be lodged within 5 days of delivery”. By
the phrase “adjournment order” is meant only the solution for the admission of the application for adjournment
or the rejection of the request for adjournment. This has led in practice to the invocation in some instances of the
plea of inadmissibility of the appeal against the presidential decree dismissing the application for enforcement
adjournment of the decision of the general assembly of shareholders. In dealing with the exception courts have a
non-unitary practice. Thus, the solution took into account the fact that Article 133 paragraph (3) of The Law on
Commercial Companies derogates from the common law, according to which both the claimant and the
defendant can appeal, irrespective of whether or not the Ordinance has been rejected. Accordingly, since the
special law expressly provides that an appeal may be brought only against the decision ordering the adjournment
of enforcement of the decision of the general assembly of shareholders, it is no longer possible whether that
appeal is lodged in the event of rejection of such an application. Other courts have decided otherwise, in the
sense that the order dismissing the request for the adjournment of execution of the decision of the general
assembly of the shareholders can be also be appealed.
The General Prosecutor’s Office, as a result of the non-unitary practice, filed an appeal in the interest of the law,
concluding that it was admissible in order to establish that the appeal against the presidential decree dismissing
the application for adjournment of the execution of the provisions of a decision of the general assembly of
shareholders is inadmissible. By Decision no. LXII (62) of 24 September 2007384
the referral in the interests of
the law has been admitted and have established that the provisions of Article 133 paragraph (3) of the Law no.
31/1990 is interpreted meaning that the presiding judge’s order by which the application for suspension of the
adjournment of the provisions of a decision of the general assembly of shareholders was rejected may be
appealed. The reasoning of the Supreme Court states that the provisions of Article 133 paragraph (3) cannot lead
to the restriction of the right of the dissatisfied party to challenge the decision only when the application is
accepted. This restrictive statement on the possibility of appeal against the decision to suspend the execution
cannot be considered as limiting as long as it would invalidate the principle of the appeal procedure symmetry,
specific to our procedural law. Restrict the right of the unsatisfied party to the possibility of exercising the
remedy of the appeal only against the decision to suspend the execution would mean to proceed to the implicit
violation of the provisions of Articles 21 and 129 of the Constitution regarding free access to justice and the use
of appeals. Moreover, an extensive interpretation of the provisions of Article 133 paragraph (3) of the Law no.
31/1990, republished, as subsequently amended, is imposed especially by the necessity of equal treatment of the
parties in the process, with regard to the rules of common law in the matter of the judge’s order, respectively
those contained in articles 998-999 of the Code of Civil Procedure385
, allow all parties to the dispute to challenge
the order given at first instance by way of appeal, irrespective of whether the action is admissible or dismissed
386.
The fundamental difference between the term referred to in Article 133 (3) and the term of the classical presiding
Judge’s order is given by its statute of limitation, since in the case of the classical judge’s order, lapses from the
pronouncement, if the request was settled with summoning the parties, and from the communication, if it was
settled without the summoning of the parties, for the judge’s order suspending the execution of the decision of
the general assembly of the shareholders the term of appeal of 5 days always lapses from the delivery.
382
I. L. Georgescu, quoted works, vol. II, p.460-461. For the contrary, see Court of Cassation, decision of
10.07.1993, quoted by I. L. Georgescu, quoted work, p 459-460. 383
See SUPREME COURT OF JUSTICE, commercial division, decision o. 128/1996, R.D.C no. 1/1997. 384
High Court of Cassation and Justice, Unified Divisions, Decision no. 62 din 24 September 2007, delivered in
case no. 29/2007, Official Gazette no. 276 din 8 April 2008. 385
n.a V.c.p.c 386
article 582 paragraph (1) (n.a.V.c.p.c
177
The Supreme Court has held 387
that the term for challenging the judgment given in the settlement of the
application for adjournment would be different depending on the court’s decision, namely, if the court rejects the
request for adjournment, the time limit will be 5 days, since Article 133 paragraph (3) expressly provides: “the
order of adjournment”, and if the court rejects the request for adjournment, the term will be the common law,
which is 15 days. At present, the terms are not different, the term being the common law of 5 days, but as to the
moment from which this term lapses, the expression of the Law no. 31/1990, which refers only to the
“adjournment order”, not to the order by which the request for suspension was rejected, it leaves room for
interpretation.
It should be noted that in court practice it is considered that it is not permissible to make a request for review
against the judgment given in the appeal because this appeal is not admissible against the decisions rendered in
the settlement of the judge’s orders388
. However, it will be possible to file an appeal for annulment.389
CONCLUSIONS
The action for the adjournment of the effects of the General Assembly’s decision is practically a special
form of judge’s order.
The specific features of this procedure are complemented by the common law where the procedure allows it
because this form of the judge’s order contains the elements provided for in Article 133 and can practically be
merely a suspension order which, by touching the merits of the case, allows the court to deliver a temporary
solution with limited effects in time in the case of admission, i.e. until a solution has been given in the
cancellation request.
REFERENCES
1. Judicial Practice Collection in Commercial Matters 2000-2001, p.224-225.
2. M. Scheaua, Law of the Companies no. 31/1990, commented and annotated, Publishing house All Beck,
Bucharest, 2000.
3. Bucharest Court of Appeal, Division VI commercial, Decision no. 246R/19.07.2006, delivered in case no.
16821/3/2006 (not published).
4. Court of Cassation, Division III, Decision no. 612/1932 and no. 277/1926, Judicial practice in commercial
matters, vol. II, Publishing house Lumina, Bucharest, 1991.
5. R.R.D.A no. 5-6/2004.
6. Demetrescu, I. L. Georgescu, Carol al- II- lea Commercial Code. The text of the law. Legislative Council
report. References to existing legislation. Comment, Publishing house Cartea Românească, Bucharest, 1938.
7. R.D.C no. 1/1997
8. R.D.C no. 9/2002
387
SUPREME COURT OF JUSTICE., decision no. 679 of 5 February 2002, R.D.C no. 9/2002, p.185 388
Bucharest Court of Appeal, Division V commercial, Decision no. 63 of 15 January 2007, delivered in case no.
8410/2/2006 (not published). 389
I. Les, Principles and institutions of Romanian procedural law, vol. I, II and III, Lumina Lex, Bucharest,
1998 and 1999, p.91-92.
