• Selected
• Entire List

Abstract:
In the process of solving the litigations on the patrimonial effects of a marriage between an Italian citizen and a Romanian one (residing in Italy), both the parties and the courts will have to overcome three kinds of difficulties:

1. the problem concerning the choice-of-law rules to be applied.

2. the difference that appears between the Romanian private international law and the Italian private international law concerning the law that governs the personal and patrimonial relations between spouses, in default of a matrimonial convention.

3. the difference on the spouses' matrimonial regime, when they concluded a matrimonial convention.

These difficulties could baffle the authorities, the spouses and the third persons. A future E.U. Regulation (with uniform choice-of-law rules for both the patrimonial and the personal relations between spouses) and a new Romanian Civil Code could remove all these difficulties.

conflict of laws, patrimonial effects of marriage, spouses with different nationalities ( Italian and Romanian, respectively)

Abstract:
The present paper tries to solve the conflict between Article 57 paragraph 7 of Law no. 215 of 2001, Law of the Local Public Administration, the consolidated form and Article 87 paragraph 1 letter a of Law no. 161 of 2003 on Some Measures for Assuring the Transparency in Performing Public Dignities, Offices and within the Business World and for the Prevention and Punishment of Corruption, with the subsequent alterations. While Article 57 paragraph 7 of Law no. 215 of 2001, the consolidated form provides for the compatibility between the status of deputy mayor and the status of member of the city (village) council, Article 87 paragraph 1 letter a of Law no.161 of 2003 forbids such an association of statuses. Since July 21, 2006, Article 87 paragraph 1 letter a of Law no. 161 of 2003 has been repealed by Article I point 111 of Law no. 286 of 2006 which repeals Article 18 paragraph 2, the second sentence, of Law no. 393 of 2004 on the Statute of the Local Elected Officials (that provided for the incompatibility between the deputy mayor status and that of local counselor) as well as "any contrary legal provisions". The abrogation of Article 87 paragraph 1 letter a of Law no. 161 of 2003 is supported by the principles of legislative technique and of legal interpretation as well as by the Modern Romanian Legal History.

deputy mayor, legal compatibility, city council, local counselor, Romanian Administrative Law, local public administration,Romania

Abstract:
The enactment of the Code of Fiscal Procedure in 2003 represents a major step toward the unification of the Romanian fiscal legislation. Unfortunately, the Romanian Fiscal Law continues to be scattered, by the enactment of a plethora of legislative acts and regulations which intend to complete or modify the Code of Fiscal Procedure.

This paper studies chapter I of the Third Title of the Code of Fiscal Procedure entitled "General Procedural Provisions". This chapter provides for the general jurisdiction of the fiscal bodies (Article 32 to 36 of the Code of Fiscal Procedure).

The authors define concepts such as: jurisdiction of the fiscal bodies, general jurisdiction (Article 32 of the Code), territorial jurisdiction (Article 33 of the Code), jurisdiction on the secondary seats (Article 34 of the Code), territorial jurisdiction of the fiscal branches of the local public administration (Art. 35 of the Code) as well as special jurisdiction (Article 36 of the Code) by inference from the same notions used by the Civil Procedure Law (that is the common law for the interpretation and completion of the Code of Fiscal Procedure).

The authors indicate which are the fiscal bodies with jurisdiction on the fiscal claims management as well as the fiscal bodies entitled to regulate the application of the legal fiscal provisions and to exercise the fiscal control.

The paper highlights the legal gaps to be found in the provisions of Chapter I, Title III of the Code of Fiscal Procedure and tries to fill these gaps by de lege ferenda proposals.

jurisdiction of the fiscal bodies; general jurisdiction, territorial jurisdiction, jurisdiction on the secondary seats, territorial jurisdiction of the fiscal branches of the local public administration, special jurisdiction.

Abstract:
The laws of Moldavia and Wallachia (the two states united, since 1862, under the name of Romania) were a combination of customary and written rules. The medieval judgments on the settlement of boundaries describe the important role that special witnesses (named 'good and old people') played in this procedure, according to the custom. They walked on the boundaries they knew, carrying a piece of soil on their heads, on their lap, or in a bag, on their shoulders. That piece of soil was a sign that every old and good man was under oath and that he would tell the truth. The judge/judges decided the case considering the boundaries shown by these good and old people. A testimony from April 19, 1754 A.D., reveals the secret that allowed these 'old and good people' to remember the boundaries of a certain land over decades: 'And my father-in-law, Bogos, says that, while being a child, he was pulled by his hair by a judge of boundaries who was saying: 'You,child, always remember these boundaries!'. The children’s beating at boundaries marks was a very common procedure in the customary law of Moldavia or Wallachia. All Romanian legal historians have agreed on this matter. This exotic procedure demonstrates that the inhabitants of Moldavia and Wallachia were aware of the power of physical suffering to enhance human memory. This method should not be considered as a barbarian procedure, because, at the time, in all Europe, violence was used against children (on regular basis) in order to make them reading or writing. The importance of the good and old people’s testimony decreased in the second half of the 18-th century and disappeared in the first half of the next century, because of the spreading of the maps drown by topographists. The Constitutional Regulations (enforced in 1831 for Wallachia and in 1832 for Moldavia) provided special commissions for every county that would settle the boundaries for all estates, drawing the map for every estate. One copy of this map would be given to the owner and the other would be kept by the Princely Divan. Thus, the violent method used to learn the boundaries of an estate faded away. In 2005, Act no 247 provided that the ownership of land can be restored, solely, according to the testimonies of the neighbors (or their heirs). Thus, the testimony is coming back in the settlement of boundaries. But the learning method of the boundaries will be much peaceful because the violence against children is punished by Romanian Law.

settlement of boundaries, wittnesses, violence against children, Walachia, Moldavia, medieval procedure, pain, oblivion

Abstract:
An accurate interpretation of Gai Institutiones, IV 150,152, 160 and Iustiniani Institutiones, LIBER QUARTUS, XV, 4 a, reveals that in the utrubi interdict won that person who had possessed the mobile good for a longer time in the same year in which the interdict was granted. The general accepted opinion (that the winner was the person who had possessed the mobile good for a longer period in the year which had proceeded the granting of the interdict) implies the retroactivity of the imperium. But Romans rejected both the retroactivity and the ultra-activity of this power (Gai Institutiones IV, 105, 110 and Iustiniani Institutiones, LIBER QUARTUS, XII).

Roman Law, utrubi interdict, imperium, legal means to protect possesion

Abstract:
In the first half of the 19th century, the jurists of Walachia knew and put in practice some choice-of-law principles drawn upon the French theory of statutes as it was revised by Section 3 of the Code Napoleon and by the adjacent French doctrine (especially by J.A.Rogron’s writings). The cultural effect of these principles was so great that the Romanian Civil Code (the Code Alexandru Ioan the Ist) accepted them in Section 2 and the Romanian legal doctrine supported them even in the 20th century. Using Ioan Barbatescu’s book, published in Bucharest, in 1849, and entitled “The Course of the Romanian Civil Law or the Explanation of the Paragraphs of the Civil Laws Following the Order of the Code Caragea” we are able to summarize these choice-of-law principles:

1. The capacity and the civil status of a person are governed by the law of the state of citizenship.

2. The immovables are governed by the law of the place where they are situated.

3. The movables are governed by the law of the place where they were situated at the time of the conclusion of the contract.

4. The form of a juridical act is governed by the law of the state where the act was concluded.

5. The fulfillment of a juridical act or the enforcement of a judgment is governed by the law of the state where the fulfillment or the enforcement will take place.

conflict of laws, principles, Walachia, 19th Century, Romania, Private International Law, choice of law rules

Abstract:
The Moldavian choice-of-law rules were provided by the Civil Code of the Principality of Moldavia (the Code Calimach), enforced on October 1, 1817). Summarizing the provisions of paragraphs 2, 5, 6, 45, 46, 396 and 2009 of the Code Calimach, we discover the following choice-of-law rules:

A. The Code Calimach governed all the inhabitants of Moldavia, whether they were Moldavians or foreigners;

B. The Moldavian citizen’s legal capacity was governed by the Moldavian law even abroad, while the foreigner’s legal capacity to conclude juridical acts on Moldavian soil, was subjected to the Moldavian law;

C. The juridical acts concluded abroad by a Moldavian citizen were governed, in their substance, by the Moldavian law and in their form, by the law of the state where the act was concluded;

D. The juridical acts concluded on the territory of Moldavia were subjected to the Moldavian law, both in their substance and in their form;

E. The Code Calimach granted to a foreign creditor the same rights over a Moldavian bankrupt debtor which were granted by the foreigner’s national law to a Moldavian creditor in the same situation;

F. Immovables were governed by the law of the place where they were situated, while the movables were subjected to the owner’s personal law (which was always the Moldavian law as long as the owner was on Moldavian soil).

According to paragraph 45 of the Code Calimach, foreigners had the same civil rights as Moldavians, with the exclusion of those rights for which the Moldavian law required either the Moldavian citizenship or the attribute of Orthodox Christian (or both conditions).

These provisions of the Code Calimach were abolished on December 1, 1865, when the Romanian Civil Code was enforced.

conflict of laws, choice-of-law rules, Moldavia, 19th century, Private International Law, legal history, Code Calimach

Abstract:
After the accession of Romania to the European Union ( on January 1, 2007), the Romanian judges have to use a more intricate method for solving cases of divorce or marriage annulment between spouses that are Czech citizens with habitual residence in Romania, or Romanian citizens with habitual residence in the Czech Republic, or a Czech citizen and a Romanian one. They have to establish their jurisdiction on the provisions of Article 3 and Article 4 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000. These new legal provisions repealed the international jurisdiction rules provided by Article 28 and Article 29 ( that refers to Article 28, in this respect) of the Treaty between Romania and the Czech Republic on Legal Assistance in Civil and Criminal Matters ( Bucharest, July 11, 1994), ratified by Romania by Law no. 44 of May 27, 1994. The provisions of Articles 3 and 4 of the regulation will suffer an adaptation to the specific requirements provided by the choice-of-law rules of the two paragraphs of Article 28 of the treaty, rules which are, still, in force. Thus, the conflicts of jurisdictions raised by such cases will be solved in the same manner used by Articles 28 of the treaty with one exception. When the spouses have different nationalities (one has the Romanian nationality, the other, the Czech citizenship) but they are habitually resident in just one state (Romania or the Czech Republic), only the courts of the state where the spouses are habitually resident will have jurisdiction and not the courts of the both states (as it was provided in Article 28 paragraph 2 and, by reference, in Article 29 paragraph 2 of the treaty). In order to find out the substantial law that will govern the divorce or the claim for the marriage annulment, the Romanian judges will use the choice-of-law rules provided by Article 28 and Article 29 paragraph 1 of the above mentioned treaty.

The introduction of uniform choice-of-law rules regarding divorce and marriage annulment, by an E.U. regulation should lighten the Romanian judges’ burden in such cases.

conflict of laws, divorce, marriage anullment, Romania, Czech Republic

Abstract:
On August 27, 2008, by Government Decree no. 999, the Romanian Government recognized the Statute of the Federation of Jewish Communities of Romania-The Mosaic Cult. According to Article 41 of the statute, the Rabbinical Chancery is a body of the Federation entrusted with the fulfillment of the religious needs of the members of the Federation, observing “the rules of the Mosaic law, halaha [i.e. halakhah] and the Mosaic tradition”. Article 41 enumerating the competences of the Rabbinical Chancery, provides under letter h that the Chancery has jurisdiction over “the religious disputes inside Communities”. But in Judaism, because Torah is the blueprint of the entire universe, every aspect of human life is a religious one. As a proof of this fact we can invoke the extraordinarily rich content of the Talmud (the Mishnah with its six orders and Gemarah, 517 chapters in total). The third order of the Talmud deals mainly with laws concerning marriage, the relationship between spouses and divorce. So, disputes concerning marriages concluded between members of the Federation (whether from the same Community or not) are religious disputes, that should be solved by the Rabbinical Chancery.

My paper discusses the legal status in Romania of decisions and writs (especially the kind of writs named get) delivered or drawn up by the Rabbinical Chancery in solving the matrimonial disputes of the members of the Federation of Jewish Communities of Romania - The Mosaic Cult. On the one hand, these documents could be recognized as having binding effect on the Romanian authorities on the grounds of Articles 7, 8, 9 and 26 of Law no.489 of 2006 on the Freedom of Religion and the General Status of Denominations. On the other hand, there is no hard evidence that Romanian Government intended to allow religious courts to rule in litigation concerning such sensible areas as Family Law or Civil Law. On the contrary, Article 5 of Law no.489 of 2006 emphasizes that all religious cults have to observe the Constitution and the others Romanian laws. Or neither Article 124 and 126 of the Constitution nor Articles 3 or 38 of the Romanian Family Code recognize the jurisdiction of a religious authority in concluding or dissolving a matrimonial liaison. Moreover, only the Mosaic Cult and the Catholic Church have in their statutes provisions that enables a religious body to have jurisdiction over laity (while the statutes of the Orthodox Church or the Muslim cult don’t contain such provisions). Article 9 of Law no.489 of 2006 provides for the equality of all religious cults before the Romanian authorities. Or Article 41 of Statute of the Federation of Jewish Communities of Romania-The Mosaic Cult infringes upon this equality, allowing Jews of Romanian nationality to solve their matrimonial causes before a religious court with the observance of other rules than those provided for by the Romanian Family Law.

The status of the Rabbinical Chancery as a court of justice with jurisdiction in family matters is not sound enough according to the present Romanian Law. Romanian authorities have to confirm it or to explicitly reject it (by demanding the modification of Article 41 of the Statute of the Federation of Jewish Communities of Romania - The Mosaic Cult).

Beit Din, Romania, marital litigations, religious courts, jurisdiction