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Considerations Regarding the Common Exertion of Parental Authority by the Parents in the Regulation of the New Romanian Civil Code ALIN
| Content Provider | Semantic Scholar |
|---|---|
| Author | Gavrilescu, Alin-Gheorghe |
| Copyright Year | 2013 |
| Abstract | The article wants to analyse the problems of the common exertion by the parents of the parental authority which, at the same time with the validation of the new Romanian Civil Code, constitutes the rule in the matter of exerting the parental authority. After an introduction presenting the parental authority notion, there is the examination of the aspects related to the common exertion of the parental authority by the cohabiting parents and by the separated parents, the parents’ agreement regarding the exertion of the parental authority, the disagreements between the parents regarding the exertion of the parental authority and the final part spotlights the conclusions of this study. Key-Words: parental authority, parents, child, divorce, parental rights and obligations, the new Civil Code, the agreement presumption 1. Introductive considerations regarding the parental authority In the new Romanian Civil Code [1] the parental authority is regulated in Title IV “Parental Authority” [2] of the 2 Book “About Family”. The name of this title represents a new element in the Romanian law in matter of the relations between parents and children. But the parental authority constitutes no innovation of the Romanian legislator, as it is also consecrated in other legislations (for example, in the French Civil Code, in the Luxembourg Civil Code, in the Québec Civil Code). The Romanian legislator preferred this notion to the injury of the one of protecting the minor by means of the parents (parental protection) previously stipulated by the stipulations of the Family Code, but this option of the legislator does not seem to be the best solution. This happens whereas the authority term interpreted stricto sensu rather spotlights the idea of power, of the children’s subordination to the parents than the one of protection the parents are obligated to provide to the child. This is why, regarding us, we consider that the responsibility term would have been much more indicated to be used in the regulation of the minor’s protection by means of the parents whereas it spotlights the care for providing and guaranteeing the child’s protection and the rights recognized by the law, according to its higher interest, as the parents are together the first ones responsible for raising their child, for the way the understand to accomplish their parental obligations and to exert their parental rights. The Romanian legislator defines the parental authority notion in art. 483 paragraph 1 of the new Civil Code as the ensemble of rights and obligations regarding both the child’s person and goods and equally belonging to both of the parents. The parental authority has two sides: 1. a personal side composed of parental rights and obligations regarding the minor’s person, considered as such: the right and the obligation to guide the minor child, the right and the obligation to survey the minor child, the right to settle the child’s residence and to keep him, the right to demand the child’s return from any person who keeps him with no right, the right to agree with the child’s displacement inside the country or abroad, the right to keep personal connections to the child, the right to consent to the child’s adoption, the right to consent to the child’s marriage, the right to survey the child’s raising and education, the right and the obligation to represent the minor in the civil documents or to accept his juridical documents, the obligation to raise the child, the obligation to support the child [3]. Advances in Fiscal, Political and Law Science ISBN: 978-1-61804-191-3 82 2. a patrimonial side composed of parental rights and obligations regarding the minor’s goods, respectively: the parents’ right and obligation to administrate the minor’s goods, the parents’ right and obligation to represent the minor in the civil documents or to accept his juridical documents (regarding the patrimonial side of the parental authority) [4]. The Romanian legislator does not regulate the parental authority regarding the minor’s present differently from the one regarding his goods, as it happens, for example, in the French Civil Code or in the Luxembourg Civil Code, preferring to keep the model of the Family Code and to regulate in the same chapter (Chapter II) the parental rights and obligations regarding the minor’s person together with the parental rights and obligations regarding his goods [5]. The parental authority is the most important effect of the filiation [6]. The beneficiary of the exertion of the parental rights and of the accomplishment of the parental obligations is the child, namely the person who has not reached 18 years old and who has not gained a full capacity of exertion according to the law (art. 263 paragraph 5 of the new Civil Code). From the stipulations of the new Civil Code, it results that the exertion of the rights and the accomplishment of the parental obligations are made by respecting the following principles: The principle of the child’s high interest consecrated by the stipulations of art. 483 paragraph 2 of the new Civil Code stipulating that the parental authority is exerted by the parents only in the child’s high interest, with the respect due to his person; The principle of equality before the law between the child outside the marriage and the one inside the marriage, and also the adopted one, which is regulated by art. 260 of the new Civil Code; The principle of the parents’ equality in exerting the parental rights and accomplishing the parental obligations. This principle results both from the stipulations of art. 483 paragraph 1 of the new Civil Code showing that the rights and the obligations regarding the minor’s person and goods equally belong to both of the parents, and also the ones of art. 503 paragraph 1 of the new Civil Code consecrating the rule according to which the parents exert together and equally the parental authority; The principle of patrimonial independence in the relations between parents and children. This principle is regulated by art. 500 stipulating that the parent has no right on the child’s goods and the child has no right on the parent’s goods either, beside the right to inheritance and support. The principle of respecting the child’s person, resulting from the stipulations of art. 483 paragraph 2 of the new Civil Code; The principle of associating the child to all the decisions related to him, considering his age and maturity degree reflected by the stipulations of art. 483 paragraph 2 of the new Civil Code. The parental authority stops the day when the child gains the full capacity of exertion (art. 484 of the new Civil Code). Considering that the person becomes major when reaching 18 years old (art. 38 paragraph 2 of the new Civil Code) and gains a full capacity of exertion (art. 38 paragraph 1 of the new Civil Code) the parental authority stops the day when the child reaches this age. Before this date, the parental authority may stop if the minor who reached 16 years old gets married in the conditions of art. 272 paragraph 2-5 of the new Civil Code and gains the full capacity of exertion by marriage (art. 39 paragraph 1 of the new Civil Code) or if the guardianship court recognizes for strong reasons the full capacity of exertion of the minor who reached 16 years old (art. 40 of the new Civil Code). 2. Exerting the parental authority in common by the parents when they live together According to the principle according to which both of the parents have common responsibilities for raising and developing the child mentioned by art. 18 paragraph 1 of the Convention regarding the child’s rights, the legislator consecrates in art. 503 paragraph 1 of the new Civil Code the rule according to which the parents exert together and equally the parental authority. The idea of exerting the parental authority in common also results from the stipulations of art. 483 paragraph 1 of the new Civil Code defining the parental authority, showing that it represents an ensemble of rights and obligations regarding both the child’s person and goods and equally belonging to both of the parents, and also the ones of art. 483 paragraph 3 of the new Civil Code establishing that both of the parents are responsible for the raising of their minor children. The way of exerting together and equally the parental authority by the parents means that the decisions regarding the minor’s person and goods are taken by the parents by mutual agreement [7]. In order to facilitate the daily exertion of the parental authority, the legislator regulates in the new Civil Advances in Fiscal, Political and Law Science ISBN: 978-1-61804-191-3 83 Code an agreement presumption allowing each parent to act alone when he or she accomplishes a current act of the parental authority. In this sense art. 503 paragraph 2 of the new Civil Code stipulates that, to the honest thirds any of the parents accomplishing alone a current act for exerting the parental rights and accomplishing the parental obligations is presumed to have the other parent’s consent. Therefore, in the Romanian legislator’s conception, the common exertion of the parental authority does not actually involve each parent’s material participation to the accomplishment of the current acts for exerting the parental rights and accomplishing the parental obligations. This presumption accompanying each parent when he or she accomplishes alone a current act for exerting the parental authority operates only to the thirds and only if they are honest. It offers them juridical security by giving them the possibility to treat with only one parent, authorising them to grant total trust to him or her. The thirds’ honesty is presumed until it is proved contrarily. The presumption regulated by art. 503 paragraph 2 of the new Civil Code is relative [8] and it may be turned over by the contrary by the parent who opposed to the accomplishment of the act, if he or she manages to prove the opposition, and also to prove t |
| File Format | PDF HTM / HTML |
| Alternate Webpage(s) | http://wseas.us/e-library/conferences/2013/Brasov/EPLS/EPLS-12.pdf |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
