Papers by Cosmin Dariescu
The aging of Europe's population, combined with the increasing mobility of people and the... more The aging of Europe's population, combined with the increasing mobility of people and the war in Ukraine, have raised the concern for the legal protection of vulnerable adults. This is why the Commission and the Council of the European Union recommended the member states to ratify Hague Convention no. 35 of January 13, 2000, enforced since January 1, 2009, between 14 states parties. In 2023, through Romania's accession to Hague Convention no. 35, Romanian Private International Law will undergo the following changes: in the matter of international competence regarding the protection of the vulnerable adult, there will be three sets of applicable rules (the Hague Convention, bilateral treaties on legal assistance and the Civil Procedure Code), regarding applicable law, there will be two sets of choice-of-law rules (bilateral treaties and the Hague Convention), and with regard to the international effectiveness of protective measures ordered in another state, there will be three regimes (the Convention regime, the regime of bilateral treaties and the Civil Procedure Code regime). In order to preserve the simplicity and efficiency of Romanian Private International Law, we support the transformation of the jurisdiction rules of Hague Convention no. 35 in common law (repealing art. 1079 points 3 and 4 and 1081 paragraph 2, point 1, both of the Civil Procedure Code). On the same grounds, we recommend the amendment of art. 2578 Civil Code by replacing the current text with a provision referring to Hague Convention no. 35. We emphasize the need to amend art. 1095 Civil Procedure Code by introducing a paragraph 2 by which the measures to protect the adult in need are de jure recognized in Romania, according to Hague Convention no. 35, while the reasons for non-recognition should be subject to the same treaty. Because art. 25 of the convention does not regulate the exequatur procedure of adult protection measures, ordered in another contracting state, it is necessary to supplement articles 1103-1107 of the Civil Procedure Code with special provisions in this regard, subjected to the imperatives of simplicity and speed. We suggest the unification of the exequatur of the protective measures of the vulnerable adult, according to Hague Convention no. 35, with the approval of the enforcement of the same measures according to the Civil Procedure Code.
Катерина Хмеленко, Космін Дарієску. ПРАВО, ЩО ЗАСТОСОВУЄТЬСЯ ДО ЗОБОВ’ЯЗАНЬ З ДЕЛІКТІВ У РУМУНСЬК... more Катерина Хмеленко, Космін Дарієску. ПРАВО, ЩО ЗАСТОСОВУЄТЬСЯ ДО ЗОБОВ’ЯЗАНЬ З ДЕЛІКТІВ У РУМУНСЬКОМУ ТА УКРАЇНСЬКОМУ МІЖНАРОДНОМУ ПРИВАТНОМУ ПРАВІ In the article, the authors focus on the state of research on tort obligations in private international law in Ukraine and Romania. They explain the differences in the choice of law legislation in Ukraine and Romania. They analyze the provisions of the Treaty between Ukraine and Romania on Legal Assistance and Legal Relations in Civil Matters of January 30, 2002. The authors describe the specifics of application of Articles 48, 49 and 50 of the Law of Ukraine "On Private International Law", the provisions of the Rome II Regulation and the Romanian Civil Code. In addition, the researchers substantiate the historical connection between Ukraine and Romania's cooperation over the centuries. The main conclusions of the study are to identify specific legal provisions based on a detailed analysis of the legislation of both countries.
Adriana Almășan, Flavius-Antoniu Baias, Bogdan Dumitrache, Ioana Vârsta, Cristina Elisabeta Zamșa (Editori), In honorem Corneliu Bîrsan: ius est ars boni et aequi, Tomul II, Editura Hamangiu, București, 2023, ISBN 978-606-27-2396-5, pp.3-26, 2023
THE GUIDE FOR THE WANDERERS - THE EXCLUSIVE INTERNATIONAL JURISDICTION OF THE ROMANIAN COURTS
The... more THE GUIDE FOR THE WANDERERS - THE EXCLUSIVE INTERNATIONAL JURISDICTION OF THE ROMANIAN COURTS
The exclusive international competence of the Romanian courts is a capital issue of the conflict of jurisdictions (an integral part of private international law). Disregarding these grounds of competence triggers disaster: the foreign jurisdictional act obtained in violation of them is without recognition and exequatur in Romania. When it comes to determining the exclusive international jurisdiction of the Romanian courts, the specialist gets lost in the complexity of the applicable legislation: articles 6, 24 and 25 of Regulation (EU) no. 1215, articles 4-13 of Regulation (EU) no. 650/2012, articles 3-16of Regulation (EU) 2019/1111, Convention no. 37 of 2005 from The Hague, articles 1067-1068, 1079-1080 Civil Procedure Code. This paper proposes to clarify the current configuration of exclusive international jurisdiction by indicating the implicit amendments and repeals of the provisions of the Civil Procedure Code induced by the regulations of the European Union and the international treaties ratified by our country. We believe that the grounds for exclusive international jurisdiction in personal matters will be modified by Romania's ratification of The Hague Convention no. 35 of 2000. Article 1080 of the Civil Procedure Code was implicitly repealed as a result of Regulations (EU) no. 1215/2012 and 650/2012. Articles 1067 paragraph 1 and 1068 of the Civil Procedure Code were implicitly repealed by European regulations and by The Hague Convention no. 37 of 2005.
LE GUIDE POUR LES VOYAGEURS - LA JURIDICTION INTERNATIONALE EXCLUSIVE DES TRIBUNAUX ROUMAINS
La compétence internationale exclusive des tribunaux roumains est une question capitale du conflit de juridictions (partie intégrante du droit international privé). La méconnaissance de ces bases de compétence déclenche un désastre : l'acte juridictionnel étranger obtenu en violation de celles-ci est sans reconnaissance et sans exequatur en Roumanie. Lorsqu'il s'agit de déterminer la compétence internationale exclusive des tribunaux roumains, le spécialiste se perd dans la complexité de la législation applicable : articles 6, 24 et 25 du règlement (UE) no. 1215, articles 4-13 du Règlement (UE) no. 650/2012, articles 3-16 du Règlement (UE) 2019/1111, Convention no. 37 de 2005 de La Haye, articles 1067-1068, 1079-1080 Code de procédure civile. Cet article propose de clarifier la configuration actuelle de la compétence internationale exclusive en indiquant les modifications et abrogations implicites des dispositions du Code de procédure induites par les règlements de l'Union européenne et les traités internationaux ratifiés par notre pays. Nous pensons que les fondements de la compétence internationale exclusive en matière personnelle seront modifiés par la ratification par la Roumanie de la Convention no. 35 de 2000 de La Haye. L'article 1080 du Code de procédure civile a été implicitement abrogé par le règlement (UE) no. 1215/2012 et 650/2012. Les articles 1067 alinéa 1 et 1068 du Code de procédure civile ont été implicitement abrogés par les règlements européennes et par la Convention no. 37 de 2005 de La Haye.
ANALELE UNIVERSITĂȚII DE VEST DIN TIMIȘOARA. SERIA DREPT. Nr.1, 2023
The aging of Europe's population, combined with the increasing mobility of
people and the war in... more The aging of Europe's population, combined with the increasing mobility of
people and the war in Ukraine, have raised the concern for the legal protection of vulnerable adults. This is why the Commission and the Council of the European Union recommended the member states to ratify Hague Convention no. 35 of January 13, 2000, enforced since January 1, 2009, between 14 states parties. In 2023, through Romania's accession to Hague Convention no. 35, Romanian Private International Law will undergo the following changes: in the matter of international competence regarding the protection of the vulnerable adult, there will be three sets of applicable rules (the Hague Convention, bilateral treaties on legal assistance and the Civil Procedure Code), regarding applicable law, there will be two sets of choice-of-law rules (bilateral treaties and the Hague Convention), and with regard to the international effectiveness of protective measures ordered in another state, there will
be three regimes (the Convention regime, the regime of bilateral treaties and the Civil Procedure Code regime). In order to preserve the simplicity and efficiency of Romanian Private International Law, we support the transformation of the jurisdiction rules of Hague Convention no. 35 in common law (repealing art. 1079 points 3 and 4 and 1081 paragraph 2, point 1, both of the Civil Procedure Code). On the same grounds, we recommend the amendment of art. 2578 Civil Code by replacing the
current text with a provision referring to Hague Convention no. 35. We emphasize the need to amend art. 1095 Civil Procedure Code by introducing a paragraph 2 by which the measures to protect the adult in need are de jure recognized in Romania, according to Hague Convention no. 35, while the reasons for non-recognition should be subject
to the same treaty. Because art. 25 of the convention does not regulate the exequatur procedure of adult protection measures, ordered in another contracting state, it is necessary to supplement articles 1103-1107 of the Civil Procedure Code with special provisions in this regard, subjected to the imperatives of simplicity and speed. We suggest the unification of the exequatur of the protective measures of the vulnerable
adult, according to Hague Convention no. 35, with the approval of the enforcement of the same measures according to the Civil Procedure Code.
Journal of Public Administration, Finance and Law, 2022
The 2020 pandemic has accelerated bankruptcy in economic sectors directly affected by the evoluti... more The 2020 pandemic has accelerated bankruptcy in economic sectors directly affected by the evolution of prices (the oil industry, transportation, entertainment, the car industry etc). Thus, the number of distressed businesses has grown. The current paper aims to answer the following legitimate questions: what are the methods to early detect distressed businesses, and what are the paths that one can use in order to warn them of imminent distress? According to the European Commission, a company is distressed if, in the absence of State intervention, it will shut down its short-term or middle-term operations. The use of a multitude of definitions for financial distress is explained through the failure to find a measure of enterprise decline. Each country uses different terms to describe insolvency. Still, a model is necessary to improve the accuracy of the prediction. Liquidity flows, profitability and the leverage effect are the most useful indicators to predict a business' insolvency, along with: assessment of accounting documents, liquidity rates, changes in legislation etc. Certain steps have been taken to elaborate some innovative methods based on data and Artificial Intelligence. In the EU, there are three warning tendencies: the extra-judiciary tendency, the mixed tendency and the non-litigious judiciary tendency.
Migraciones y derechos humanos, 2020, ISBN 978-84-09-24200-9, págs. 73-90, 2020
Social Science Research Network, Jul 31, 2017
SSRN Electronic Journal, 2012
Contents: I A new source for the Romanian Private International Law. II. New choice-of-law rules ... more Contents: I A new source for the Romanian Private International Law. II. New choice-of-law rules for the general effects of the marriage. III New choice-of-law rules on the matrimonial regime.
SSRN Electronic Journal, 2015
A thorny problem of the Regulation (EU) no. 1215/2012 concerns the determination of the internati... more A thorny problem of the Regulation (EU) no. 1215/2012 concerns the determination of the international and territorial jurisdiction in matters related to the recognition as the main issue of a foreign judicial decision issued by a member state of the European Union. Considering the procedure identity existing between solving the recognition requests of the foreign judicial decisions and the one of the applications for refusal of enforcement of the same decisions, to which we also add the provisions of art. 24 paragraph 5 of the regulation, we deduce that for the recognition of foreign judicial decisions, the exclusive international jurisdictional competence belongs to the state on whose territory that recognition is sought. The competent court to decide, as a main issue, on the recognition of a decision given by a Member State of the European Union shall be determined based on the internal jurisdiction provisions of specific to each member state (for Romania by an extensive interpretation of article 1099 Code of Civil Procedure). A possible remedy of this gap in the regulation may be to introduce a new paragraph within art. 36 of the regulation which may give exclusive jurisdiction on the recognition of a foreign judicial decision, claimed as the main issue, to the court of the member state which receives the application, a court from the category notified to the Commission by the Member State addressed enforcing art. 75 letter (a) of the regulation.
Journal of Public Administration, Finance and Law, 2021
The need to restructure businesses has become a constant reality in the international economic la... more The need to restructure businesses has become a constant reality in the international economic landscape and hence the constant concern of the European legislature to harmonize the relevant legislation in the Member States. In order to harmonize the legislation, it is necessary to establish the common benchmark that will underpin the legislation of the EU countries. Defining the methods of restructuring, defining the financial difficulty and the ways of assessing the viability of companies are starting points in this approach.
ANALELE ȘTIINŢIFICE ALE UNIVERSITĂŢII „ALEXANDRU IOAN CUZA” DIN IAȘI (SERIE NOUĂ). ȘTIINŢE JURIDICE
Procedura româneasc a cererilor cu valoare redus a fost introdus prin Legea nr. 134/2010, Codul d... more Procedura româneasc a cererilor cu valoare redus a fost introdus prin Legea nr. 134/2010, Codul de procedur civil , sub influen a reglement rilor Uniunii Europene. Potrivit art. 1026 (nemodificat din 2010), pragul valoric pân la care se poate folosi aceast procedur a fost stabilit la 10 000 de lei, la data sesiz rii (adic 2.375,35 euro, la cursul mediu anual de schimb al euro în 2010). În aceea i epoc , Regulamentul (UE) nr. 861/2007 fixa pragul valoric al procedurii europene a cererilor cu valoare redus la 2000 de euro. În prezent, prin Regulamentul (UE) 2015/2421, domeniul procedurii men ionate a fost extins pân la suma de 5000 de euro. Considerând inten ia legiuitorului român de a acorda acestei proceduri un domeniu de aplicare intern mai larg decât cel conturat de dreptul U.E., rata infla iei în România i necesitatea armoniz rii procedurii interne cu cea din litigiile transfrontaliere, deducem necesitatea actualiz rii pragului valoric pân la echivalentul în lei a sumei de 5000 de euro sau chiar mai mult.
Dreptul nr.9, 2020
Since the beginning of the 19th century, the phenomenon of immigration has increased in Argentine... more Since the beginning of the 19th century, the phenomenon of immigration has increased in Argentine. In the 20th century, the majority of immigrants came from the European continent. Despite some tempering measures, the immigration to Argentina continues to manifest itself, producing legal consequences. The family relations of foreigners are ruled, like other types of social relations with a foreign element, by private international law. This paper aims to analyse the current state of marriage regulations in Argentine private international law (with brief historical forays to understand the evolution). The scientific impact of this paper is increased by the novelty of the studied legislation and by the low interest that the Romanian doctrine has shown for the legal realities in Latin America. Its conclusions are relevant both to researchers and legal practitioners and to the general public, interested in resolving the many legal issues involved in a marriage with an Argentine citizen or immigration to Argentina.
:Analele Universității ”Al. I.Cuza” din Iași, Seria Științe Juridice, 2022
The Romanian small claims procedure was introduced by Law nr. 134/2010, Code of Civil Procedure, ... more The Romanian small claims procedure was introduced by Law nr. 134/2010, Code of Civil Procedure, under the influence of European Union regulations. According to art. 1026 (unchanged since 2010), the value threshold up to which this track can be used was set at 10,000 lei, on the date of the court referral (i.e. 2,375.35 euros, at the average annual exchange rate of the euro in 2010). At the same time, Regulation (EU) No 861/2007 fixed the value threshold of the European Small Claims Procedure at EUR 2000. Currently, by Regulation (EU) 2015/2421, the scope of that procedure has been extended to the amount of EUR 5000. Considering the intention of the Romanian legislator to grant this procedure a broader internal scope than that outlined by the EU law, the inflation rate in Romania and the need to harmonize the internal procedure with that of cross-border disputes, we infer the need to update the value threshold up to the equivalent in lei of 5000 euros or more.
Keywords: small claims, value threshold, Romania, Code of Civil Procedure, jurisdiction, special civil track
Dreptul Nr. 1, 2022
Family relationships are an area of great interest due to its intimacy and sensitivity. Because o... more Family relationships are an area of great interest due to its intimacy and sensitivity. Because of the unpredictability of modern life, many families are falling apart. Thus, the issue of dissolution of marriage, whether through divorce or separation, is of paramount importance for modern society.
Both the European Union and some Member States, especially the predominantly Catholic ones, have adapted to religious realities and regulated spouses’ separation through secular laws. The purpose of this article is to reveal that the Romanian law has the institution of spouses’ separation which produces, however, only effects of Canon law, and not of Civil law. The methods used in support of our thesis are analysis and synthesis. In Romania, the state recognized the Canonical Codes of the Roman-Catholic and the Oriental Churches that provide for separation. But it denies any civil, secular effects of the institution. It is high time for the Romanian legislator to regulate the institution of spouses’ separation whether by altering the Civil Code or through a concordat between the state and the Holy See. The secular effects of spouses’ separation will protect the religious freedom of the Catholic people and the traditions of the Roman Catholic denomination. Moreover, introducing legal separation in the Romanian Law will ensure a better application of the Private International Law of the European Union which provides for the international jurisdiction and for the law applicable to such separation.
Key words:
Family, dissolution of marriage, legal separation, Romanian Law, Roman-Catholic Church, Canonical Code.
The enforcement of Article 553 paragraph (3) of the Civil Code (Law no. 287/2009 republished in 2... more The enforcement of Article 553 paragraph (3) of the Civil Code (Law no. 287/2009 republished in 2011), which provides that the Romanian state acquires any inheritance in abeyance from abroad or any abandoned immovable from abroad is impossible. That because it would contradict the choice-of-law rules of Articles 2636 paragraph (2) and 2613 paragraph (1), both of the Civil Code and it would infringe the sovereignty of other states which entitled them to acquire the estates without a claimant or the abandoned immovable on their territory. Therefore we recommend the abrogation of Article 553 paragraph (3) of the Romanian Civil Code.
Presented at 5th Journal of Private International Law Conference, Madrid, 12-13 Sep 2013, 2013
This paper aims to highlight a contradiction between two international jurisdiction rules of the ... more This paper aims to highlight a contradiction between two international jurisdiction rules of the new Romanian Civil Procedure Code (Law no. 134 of 2010, republished, which will enter into force on July 1, 2013). According to Article 1070 paragraph 2 of Civil Procedure Code, the objection of forum non conveniens can be invoked before Romanian courts in any stage of the proceedings, even directly in remedy, excepting the provisions of Article 1066. Article 1066 Civil Procedure Code deals with the prorogation of the jurisdiction of the Romanian courts in patrimonial cases (both by a choice-of-court agreement and by the mere appearance of the defendant). Article 1066 paragraph 2 Civil Procedure Code provides for the jurisdiction of Romanian courts based on the presence of the defendant who does not contest Romanian jurisdiction until the end of cross-examination before the first court, unless otherwise provided by law. Because Articles 1070 paragraph 1, 130 and 131 Civil Procedure Code ...
The enactment of the Code of Fiscal Procedure in 2003 represents a major step toward the unificat... more 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 (Art. 32 to 36 of the Code of Fiscal Procedure). The authors define concepts such as jurisdiction of the fiscal bodies, general jurisdiction (Art. 32 of the Code), territorial jurisdiction (Art. 33 of the Code), jurisdiction on the secondary seats (Art. 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 (Art. 36 of the Code) by inference from the same notions used...
The New Romanian Civil Code (Law no. 287 of 2009, enforced since October 1, 2011), has introduced... more The New Romanian Civil Code (Law no. 287 of 2009, enforced since October 1, 2011), has introduced, in the Romanian Law, the matrimonial property regimes (the statutory community of property, the conventional community of property and the separation of property) as well as the concept of basic matrimonial property regime (Articles 312-338 Civil code). This paper aims to clarify the status of the rules of the basic matrimonial property regime from the point of view of conflict of laws. Are these rules mandatory in the sense that they suppress any conflict of laws, being applied to any married couple, whether Romanian or foreign? The presence of the choice-of-law rules of Articles 2589, 2590, 2592, 2594 and 2595, corroborated with the provisions of Articles 312 paragraph 2 and 2593 paragraph 1 letter b, all of the Civil Code supports the thesis that the Romanian legislator allows the conflict of laws in matters pertaining to the basic matrimonial property regime. The provisions of Arti...
The enactment of the Code of Fiscal Procedure in 2003 represents a major step toward the unificat... more 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...
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Papers by Cosmin Dariescu
The exclusive international competence of the Romanian courts is a capital issue of the conflict of jurisdictions (an integral part of private international law). Disregarding these grounds of competence triggers disaster: the foreign jurisdictional act obtained in violation of them is without recognition and exequatur in Romania. When it comes to determining the exclusive international jurisdiction of the Romanian courts, the specialist gets lost in the complexity of the applicable legislation: articles 6, 24 and 25 of Regulation (EU) no. 1215, articles 4-13 of Regulation (EU) no. 650/2012, articles 3-16of Regulation (EU) 2019/1111, Convention no. 37 of 2005 from The Hague, articles 1067-1068, 1079-1080 Civil Procedure Code. This paper proposes to clarify the current configuration of exclusive international jurisdiction by indicating the implicit amendments and repeals of the provisions of the Civil Procedure Code induced by the regulations of the European Union and the international treaties ratified by our country. We believe that the grounds for exclusive international jurisdiction in personal matters will be modified by Romania's ratification of The Hague Convention no. 35 of 2000. Article 1080 of the Civil Procedure Code was implicitly repealed as a result of Regulations (EU) no. 1215/2012 and 650/2012. Articles 1067 paragraph 1 and 1068 of the Civil Procedure Code were implicitly repealed by European regulations and by The Hague Convention no. 37 of 2005.
LE GUIDE POUR LES VOYAGEURS - LA JURIDICTION INTERNATIONALE EXCLUSIVE DES TRIBUNAUX ROUMAINS
La compétence internationale exclusive des tribunaux roumains est une question capitale du conflit de juridictions (partie intégrante du droit international privé). La méconnaissance de ces bases de compétence déclenche un désastre : l'acte juridictionnel étranger obtenu en violation de celles-ci est sans reconnaissance et sans exequatur en Roumanie. Lorsqu'il s'agit de déterminer la compétence internationale exclusive des tribunaux roumains, le spécialiste se perd dans la complexité de la législation applicable : articles 6, 24 et 25 du règlement (UE) no. 1215, articles 4-13 du Règlement (UE) no. 650/2012, articles 3-16 du Règlement (UE) 2019/1111, Convention no. 37 de 2005 de La Haye, articles 1067-1068, 1079-1080 Code de procédure civile. Cet article propose de clarifier la configuration actuelle de la compétence internationale exclusive en indiquant les modifications et abrogations implicites des dispositions du Code de procédure induites par les règlements de l'Union européenne et les traités internationaux ratifiés par notre pays. Nous pensons que les fondements de la compétence internationale exclusive en matière personnelle seront modifiés par la ratification par la Roumanie de la Convention no. 35 de 2000 de La Haye. L'article 1080 du Code de procédure civile a été implicitement abrogé par le règlement (UE) no. 1215/2012 et 650/2012. Les articles 1067 alinéa 1 et 1068 du Code de procédure civile ont été implicitement abrogés par les règlements européennes et par la Convention no. 37 de 2005 de La Haye.
people and the war in Ukraine, have raised the concern for the legal protection of vulnerable adults. This is why the Commission and the Council of the European Union recommended the member states to ratify Hague Convention no. 35 of January 13, 2000, enforced since January 1, 2009, between 14 states parties. In 2023, through Romania's accession to Hague Convention no. 35, Romanian Private International Law will undergo the following changes: in the matter of international competence regarding the protection of the vulnerable adult, there will be three sets of applicable rules (the Hague Convention, bilateral treaties on legal assistance and the Civil Procedure Code), regarding applicable law, there will be two sets of choice-of-law rules (bilateral treaties and the Hague Convention), and with regard to the international effectiveness of protective measures ordered in another state, there will
be three regimes (the Convention regime, the regime of bilateral treaties and the Civil Procedure Code regime). In order to preserve the simplicity and efficiency of Romanian Private International Law, we support the transformation of the jurisdiction rules of Hague Convention no. 35 in common law (repealing art. 1079 points 3 and 4 and 1081 paragraph 2, point 1, both of the Civil Procedure Code). On the same grounds, we recommend the amendment of art. 2578 Civil Code by replacing the
current text with a provision referring to Hague Convention no. 35. We emphasize the need to amend art. 1095 Civil Procedure Code by introducing a paragraph 2 by which the measures to protect the adult in need are de jure recognized in Romania, according to Hague Convention no. 35, while the reasons for non-recognition should be subject
to the same treaty. Because art. 25 of the convention does not regulate the exequatur procedure of adult protection measures, ordered in another contracting state, it is necessary to supplement articles 1103-1107 of the Civil Procedure Code with special provisions in this regard, subjected to the imperatives of simplicity and speed. We suggest the unification of the exequatur of the protective measures of the vulnerable
adult, according to Hague Convention no. 35, with the approval of the enforcement of the same measures according to the Civil Procedure Code.
Keywords: small claims, value threshold, Romania, Code of Civil Procedure, jurisdiction, special civil track
Both the European Union and some Member States, especially the predominantly Catholic ones, have adapted to religious realities and regulated spouses’ separation through secular laws. The purpose of this article is to reveal that the Romanian law has the institution of spouses’ separation which produces, however, only effects of Canon law, and not of Civil law. The methods used in support of our thesis are analysis and synthesis. In Romania, the state recognized the Canonical Codes of the Roman-Catholic and the Oriental Churches that provide for separation. But it denies any civil, secular effects of the institution. It is high time for the Romanian legislator to regulate the institution of spouses’ separation whether by altering the Civil Code or through a concordat between the state and the Holy See. The secular effects of spouses’ separation will protect the religious freedom of the Catholic people and the traditions of the Roman Catholic denomination. Moreover, introducing legal separation in the Romanian Law will ensure a better application of the Private International Law of the European Union which provides for the international jurisdiction and for the law applicable to such separation.
Key words:
Family, dissolution of marriage, legal separation, Romanian Law, Roman-Catholic Church, Canonical Code.
The exclusive international competence of the Romanian courts is a capital issue of the conflict of jurisdictions (an integral part of private international law). Disregarding these grounds of competence triggers disaster: the foreign jurisdictional act obtained in violation of them is without recognition and exequatur in Romania. When it comes to determining the exclusive international jurisdiction of the Romanian courts, the specialist gets lost in the complexity of the applicable legislation: articles 6, 24 and 25 of Regulation (EU) no. 1215, articles 4-13 of Regulation (EU) no. 650/2012, articles 3-16of Regulation (EU) 2019/1111, Convention no. 37 of 2005 from The Hague, articles 1067-1068, 1079-1080 Civil Procedure Code. This paper proposes to clarify the current configuration of exclusive international jurisdiction by indicating the implicit amendments and repeals of the provisions of the Civil Procedure Code induced by the regulations of the European Union and the international treaties ratified by our country. We believe that the grounds for exclusive international jurisdiction in personal matters will be modified by Romania's ratification of The Hague Convention no. 35 of 2000. Article 1080 of the Civil Procedure Code was implicitly repealed as a result of Regulations (EU) no. 1215/2012 and 650/2012. Articles 1067 paragraph 1 and 1068 of the Civil Procedure Code were implicitly repealed by European regulations and by The Hague Convention no. 37 of 2005.
LE GUIDE POUR LES VOYAGEURS - LA JURIDICTION INTERNATIONALE EXCLUSIVE DES TRIBUNAUX ROUMAINS
La compétence internationale exclusive des tribunaux roumains est une question capitale du conflit de juridictions (partie intégrante du droit international privé). La méconnaissance de ces bases de compétence déclenche un désastre : l'acte juridictionnel étranger obtenu en violation de celles-ci est sans reconnaissance et sans exequatur en Roumanie. Lorsqu'il s'agit de déterminer la compétence internationale exclusive des tribunaux roumains, le spécialiste se perd dans la complexité de la législation applicable : articles 6, 24 et 25 du règlement (UE) no. 1215, articles 4-13 du Règlement (UE) no. 650/2012, articles 3-16 du Règlement (UE) 2019/1111, Convention no. 37 de 2005 de La Haye, articles 1067-1068, 1079-1080 Code de procédure civile. Cet article propose de clarifier la configuration actuelle de la compétence internationale exclusive en indiquant les modifications et abrogations implicites des dispositions du Code de procédure induites par les règlements de l'Union européenne et les traités internationaux ratifiés par notre pays. Nous pensons que les fondements de la compétence internationale exclusive en matière personnelle seront modifiés par la ratification par la Roumanie de la Convention no. 35 de 2000 de La Haye. L'article 1080 du Code de procédure civile a été implicitement abrogé par le règlement (UE) no. 1215/2012 et 650/2012. Les articles 1067 alinéa 1 et 1068 du Code de procédure civile ont été implicitement abrogés par les règlements européennes et par la Convention no. 37 de 2005 de La Haye.
people and the war in Ukraine, have raised the concern for the legal protection of vulnerable adults. This is why the Commission and the Council of the European Union recommended the member states to ratify Hague Convention no. 35 of January 13, 2000, enforced since January 1, 2009, between 14 states parties. In 2023, through Romania's accession to Hague Convention no. 35, Romanian Private International Law will undergo the following changes: in the matter of international competence regarding the protection of the vulnerable adult, there will be three sets of applicable rules (the Hague Convention, bilateral treaties on legal assistance and the Civil Procedure Code), regarding applicable law, there will be two sets of choice-of-law rules (bilateral treaties and the Hague Convention), and with regard to the international effectiveness of protective measures ordered in another state, there will
be three regimes (the Convention regime, the regime of bilateral treaties and the Civil Procedure Code regime). In order to preserve the simplicity and efficiency of Romanian Private International Law, we support the transformation of the jurisdiction rules of Hague Convention no. 35 in common law (repealing art. 1079 points 3 and 4 and 1081 paragraph 2, point 1, both of the Civil Procedure Code). On the same grounds, we recommend the amendment of art. 2578 Civil Code by replacing the
current text with a provision referring to Hague Convention no. 35. We emphasize the need to amend art. 1095 Civil Procedure Code by introducing a paragraph 2 by which the measures to protect the adult in need are de jure recognized in Romania, according to Hague Convention no. 35, while the reasons for non-recognition should be subject
to the same treaty. Because art. 25 of the convention does not regulate the exequatur procedure of adult protection measures, ordered in another contracting state, it is necessary to supplement articles 1103-1107 of the Civil Procedure Code with special provisions in this regard, subjected to the imperatives of simplicity and speed. We suggest the unification of the exequatur of the protective measures of the vulnerable
adult, according to Hague Convention no. 35, with the approval of the enforcement of the same measures according to the Civil Procedure Code.
Keywords: small claims, value threshold, Romania, Code of Civil Procedure, jurisdiction, special civil track
Both the European Union and some Member States, especially the predominantly Catholic ones, have adapted to religious realities and regulated spouses’ separation through secular laws. The purpose of this article is to reveal that the Romanian law has the institution of spouses’ separation which produces, however, only effects of Canon law, and not of Civil law. The methods used in support of our thesis are analysis and synthesis. In Romania, the state recognized the Canonical Codes of the Roman-Catholic and the Oriental Churches that provide for separation. But it denies any civil, secular effects of the institution. It is high time for the Romanian legislator to regulate the institution of spouses’ separation whether by altering the Civil Code or through a concordat between the state and the Holy See. The secular effects of spouses’ separation will protect the religious freedom of the Catholic people and the traditions of the Roman Catholic denomination. Moreover, introducing legal separation in the Romanian Law will ensure a better application of the Private International Law of the European Union which provides for the international jurisdiction and for the law applicable to such separation.
Key words:
Family, dissolution of marriage, legal separation, Romanian Law, Roman-Catholic Church, Canonical Code.
The paper describes the ways in which Google, Bing and the Romanian National Supervisory Authority for Personal Data Processing ignored the legal effects of a prosecutor’s order to close a criminal case. Because the public interest is protected only by a truthfully information of the public, we emphasize, the necessity of legal rules that can ensure the right to be forgotten on the ground of the legal solution given by a prosecutor’s orders to close a certain criminal case. Otherwise, a natural person should be subjected to an illegal infamous punishment which depends solely on the humours of certain search-engines ‘administrators.
This communication aims to highlight the ambivalent, often contradictory attitude of Romanian society towards prostitution. In what follows we will show that, despite the criminalisation of this phenomenon, throughout the Middle Ages, the Church and the secular authorities were content to combat prostitution only when it seriously disturbed the social order (in particular by endangering public health or the peace and order of a slum) or the smooth running of a marriage (in which case the sanction was focused on the guilty woman). In the same era, even the Lord used this social phenomenon in the interests of the state. In the modern era, the Romanian state legalised prostitution, mainly concerned with the preservation of public health, only to recriminalise it after the Second World War under the influence of communist morality.
Articolul a fost prezentat in data de joi, 3 aprilie 2008, in cadrul Conferintei "Prostitutia-ilegalitate care intra in legalitate?" organizata de Asociatia Europeana a Studentilor in Drept, Iasi (ELSA Iasi), in Amf. I1, intre orele 14.20 si 15.40.
Comunicarea de faţă îşi propune să reliefeze atitudinea ambivalentă, adesea contradictorie, manifestată de societatea românească faţă de prostituţie. În cele ce urmează vom arăta că, în ciuda incriminării acestui fenomen, pe toată durata evului mediu, Biserica şi autorităţile laice s-au mulţumit să combată prostituţia doar atunci când aceasta tulbura în mod grav ordinea socială ( în special prin periclitarea sănătăţii publice ori a liniştii şi ordinii dintr-o mahala) sau bunul mers al vreunei căsnicii (caz în care sancţiunea se concentra asupra femeii vinovate). În aceeaşi epocă, chiar Domnul a folosit în interesul statului acest fenomen social. În epoca modernă, statul român va legaliza prostituţia, preocupându-se în special de păstrarea sănătăţii publice, pentru ca, după al Doilea Război Mondial, să o reincrimineze sub influenţa moralei comuniste.
In the article, the authors focus on the state of research on tort obligations in private international law in Ukraine and Romania. They explain the differences in the choice of law legislation in Ukraine and Romania. They analyze the provisions of the Treaty between Ukraine and Romania on Legal Assistance and Legal Relations in Civil Matters of January 30, 2002. The authors describe the specifics of application of Articles 48, 49 and 50 of the Law of Ukraine "On Private International Law", the provisions of the Rome II Regulation and the Romanian Civil Code. In addition, the researchers substantiate the historical connection between Ukraine and Romania's cooperation over the centuries. The main conclusions of the study are to identify specific legal provisions based on a detailed analysis of the legislation of both countries.