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universul juridic magazin
Revista Română de Drept Privat

Civil Law enforcement over time in the light of the new civil code

Concomitant vocation of several successive legal norms to regulate a particular legal circumstance is designated as conflict of laws over time, while regulations in their entirety, establishing the relationships between successive laws in time are known as transitional law (intertemporal law). Therefore, assuming the case of a conflict of laws over time, it deems necessary that the laws are sequential (i.e. to be promulgated, in time, on different dates) and cover a given legal situation that gives rise, alters or extinguishes certain rights and obligations (specific to a legal institution) on behalf of an individual. For a real conflict to arise between two legal rules, two cumulative conditions should be fulfilled: 1. to be the case for a legal deed, fact or circumstance, which was incurred under the old regulations and continues to be effective also after the enactment of the new law; 2. the two successive regulations regulate the legal deed, fact or circumstance in a different manner. After verifying that the two cumulative conditions set out above are fulfilled and establishing that there is the case of a real conflict between two (or more) normative acts regulating the same legal circumstance in a different manner, the Court is to rule upon the applicable legal rule, specifically, in terms of the de facto and de jure case referred to the Court. In achieving this aim, the Court shall apply the principle according to which: where there are no transitional provisions, expressly regulated by the legislator with the view to settle the conflict of laws over time for the particular case referred to the Court, the same shall rule upon the relevant applicable law by appealing to the general principles of law governing law enforcement over time; and where the legislature regulated certain transitional rules for the relevant case referred to the Court, it shall apply the same. By the Civil Code adopted under Law no. 287/2009, republished, the legislature directly involved in the settlement of conflicts of law over time, regulating by the instrumentality of general rules the principles of civil law enforcement over time. Thus, by the provisions of Article 6 of Chapter II („Civil Law Enforcement”) of the preliminary Title, the legislature adopted some rough principles in the field of transitional law, provisions acting as „general rules”, in that the same shall apply whenever there are no special provisions regulating the issue of conflict of laws over time. Thus, it was expressly enshrined the non-retroactivity rule of the civil law provided for in Article 15 paragraph 2 of the Constitution (Article 6 paragraph 1), there was settled the rule according to which a legal act or fact cannot generate but the legal effects provided for by the law in force at the date of conclusion of the deed, or, where appropriate, the accomplishment or occurrence of the legal facts(Article 6 paragraph 2); it was ruled upon the law applicable to the causes of ineffectiveness of a deed (Article 6 paragraph 3); which shall be the law applicable to the negative prescription, acquisitive prescription or revocations arising on and unfulfilled on the enforcement date of the new law (Article 6 paragraph 4), there was established the rule of immediate enforcement of the new law for deeds, legal facts and circumstances concluded, performed, accomplished, respectively arisen following the enforcement of the Civil Code in 2009 (Article 6 paragraph 5), as well as scopes covered by the new law, without delay, and future effects of legal circumstances arisen prior to its enforcement (Article 6, paragraph 6). These are general provisions, ranking as principles, which shall be applicable whenever there shall be ascertained the lack of a special provision regulating the issue of conflict of laws over time in a circumstance ensuing from the application of laws that shall be effective after October 1st, 2011. Concurrently, the legislature enacted the Law no. 71/2011 for implementing the Law no. 287/2009 on the Civil Code, mainly covering (as per Article 1 of the Law) the imposition of measures on the settlement of conflict of laws ensuing from the enforcement of the Civil Code adopted by Law no. 287/2009, as compared to the previous rules enshrined in the Civil Code of 1864 or in other regulations in civil matters expressly covered by the law under review. Therefore, Law no. 71/2011 includes special provisions on the method of settling a conflict that could possibly arise between the provisions of the Civil Code of 1864 and those of the Civil Code enacted by Law no. 287/2009 republished, covered by Articles 3-5 in Chapter I (entitled “General provisions”), as well as the transitional provisions included in Section I of each chapter of the law (provisions that were not covered in the Civil Code, acting as freestanding provisions). According to the provisions of Article 223 of Law no. 71/2011, trials and claims in civil or commercial matters pending settlement on the enforcement date of the Civil Code shall be settled by the Courts legally vested thereupon, in accordance with the legal, procedural and substantive provisions in force on their commencement date, except for contrary provisions under this law. Therefore, in terms of the substantive law, disputes pending resolution before courts on October 1st, 2011 shall bear application of the relevant provisions under the Civil Code of 1864, in force on the date the writ of summons is submitted, except where the Law no. 71/2011 fails to expressly provide for the immediate enforcement of the provisions under the new Civil Code and for the case of trials pending settlement on the enforcement date of the new law. These waivers expressly and exhaustively provided for under Law no. 71/2011 shall be reviewed hereinafter.