Abstract
Taking into account the recent change in Romanian civil legislation, we consider the present scientific material very useful for an overview of this institution under the auspices of the New Civil Code. The national legal provisions set clear, therefore, that the property is divided into two institutions, the public property and the private property. Property classification is very important in this form, for us to understand the legal nature and the applicable regime for each type of property. Moreover, the property right, either private or public, it has an elite regulation in most European laws, but also in universal laws the respect for it and the guarantee of this right can be also found in the fundamental human rights, in the international treaties, and in the constitutions of different nations. We will try, therefore, to offer a brief overview of the new Romanian legislation in the mentioned field, which is already harmonized with European legislation, the result being the New Romanian Civil Code. We believe that the interpretation should be considerably more extensive, but—pragmatically—we will try to capture the main theoretical and practical features, to denote the importance of this institution.
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Notes
- 1.
The New Civil Code entered into force on 1 October 2011.
- 2.
There was a similar definition in Article 480 of the old Civil Code, which was criticized by many authors. See C. Stătescu, Bîrsan, C. 1980. Civil Law. The General Theory of Real Rights. Bucharest: Editura Universității din Bucureşti. pp. 31–32.
- 3.
Cf. I. Sabău-Pop, Acquiring the right to property. Accent Publishing House, Bucharest, 2000, p. 45.
- 4.
O. Ungureanu, C. Munteanu, The content and definition of private property rights in the light of new Civil Code, in Roumanian Journal of Law, nr. 3/2013, pp. 102–109.
- 5.
European Convention on Human Rights, as amended by Protocol no. 11. European Treaty Series, no. 5, Strasbourg, 2001, p. 27.
- 6.
Court of Justice of the European Community, 1991, Cause Georg Von Deetzen C. Hauptzollampt Oldenburg, C 44/1989, Bulletin CJCE, No. 18-1, p. 2.
- 7.
Some authors inculde ad hoc collectives in the category of subject private property rights, for details see S. Văcăruş, Obştile de moşneni, obştile de răzeşi, comunităţile grănicereşti de avere şi composesoratele ca subiecte de drept, în lumina legislaţioei fondului funciar, in Law, nr. 10/2000, pp. 16–24.
- 8.
The reciprocity condition has many exceptions in international law. As a rule, international treaties have a sinalagmatic character, establishing reciprocal rights and obligations for both parties. However, in the context of the constitutional text, reciprocity becomes obligatory. In international law the reciprocity condition has a second meaning: certain problems can be resolved through agreement of states or on the basis of reciprocity. Namely, reciprocity is a principle of solution, of solving the problems between the states, in the absence of a treaty. Article 6, para 1 of Law No. 312/2005 states the condition of reciprocity: The foreign citizen, expatriate and legal entity belonging to tertiary states cannot acquire the right to private ownership of land in more favorable conditions than those applicable to a citizen of a member state and to the legal entity constituted according to the legislation of a member state.
- 9.
Cf. Fr. Deak, The right to preemption, in Law No. 7/1992, pp. 34–43; Gh. Beleiu, The Right to Preemption Regulated by Law No. 18/1991 of the Land Registry, in Law No. 12/1992, pp. 3–15; E. Chelaru, The Right to Preemption Regulated by Law No. 54/1998, in Law No. 8/1998, pp. 19–25.
- 10.
Beleiu, Gh. 1992. The Right to Preemption Regulated by Law No 18/1991 of the Land Registry. Bucharest: Dreptul 12. p. 14.
- 11.
In addition of the new Civile Code, there are other norm acts, which admit diffrent preemption rights, like:
-
preemption right of the last owner, in the situation when the working, wherefore the expropriation was made, wasn’t execute, but expropriator would like to appropriate the property, according to 37 din Legea nr. 33/1994, on the expropriation to the cause of public use
-
the preemption right of Romanian state, respective territorial administrativ units, at the selling of property, which are placed funeral and the military commemoration, and are in the property of individual or legal entity, according to Article 9 alin. (2) din Legea nr. 379/2003 on the system of funeral and the military commemoration
-
the preemption right in the favour of coproprietor and neigbour, at the selling of fields from forestry fond private property, according to Article 45 alin. (2) from Forestry code; New Civil code, through Article 1828.
-
- 12.
According to Article 1828 of the new Civil code, introduce a newness in the lease material, namely the right of preemption of the tenant in lease. A conversation in this topic, see Emőd Veress, Does estabilish the new Civil code a legal law of preemption for the tenant (renter) preference? Published in Curierul Judiciar, nr. 8/2012, pp. 459–462.
- 13.
Cf. I. Malaurie, L. Aynès, P.-Yv. Gautier, Cours de droit civil, t. VIII, Les contrats spéciaux civils et commerciaux, 14-e édition, Cujas, Paris, 2001, p. 132.
- 14.
C. Stătescu, C. Bârsan, Civil Law. The General Theory of Real Rights. University Publishing House, Bucharest, 1980, pp. 177–179; Gh. Beleiu, Romanian Civil Law. Introduction in Romanian Civil Law, Subjects of Civil Law. Şansa Publishing House, Bucharest, 1994, p. 154.
- 15.
For another perspective for the property rights in Romanian civil law, see T. Sâmbrian, Property in the time sharing sysitem–periodic property–a new method of the property law, in Dreptul nr. 5/1997, pp. 35–38.
- 16.
L. Josserand, Cours de droit civil positiv français, Tome prèmiere, Recueil Sirey, Paris, 1938, pp. 1009–1014.
References
Beleiu, Gh. 1992. The Right to Preemption Regulated by Law No 18/1991 of the Land Registry. Bucharest: Dreptul 12. 1994. Romanian Civil Law. Introduction in Romanian Civil Law, Subjects of Civil Law. Bucharest: Şansa.
Chelaru, E. 1998. The Right to Preemption Regulated by Law No 54/1998. Bucharest: Dreptul 8.
Coyrt of Justice of THE European Community. 1991. Cause Georg Von Deetzen C. Hauptzollampt Oldenburg. 1989. Bulletin CJCE 18(1).
Deak, Fr. 1992. The Right to Preemption. Bucharest: Dreptul 7.
European Convention on Human Rights, as amended by Protocol no 11. 2001. Strasbourg: European Treaty Series 5.
Josserand, L. 1938. Cours de droit civil positiv français. Paris, Recueil Sirey: Tome premiere.
Malaurie, I.–AYNÈS, L.–GAUTIER, P.-Yv. 2001. Cours de droit civil, Les contrats spéciaux civils et commerciaux. Paris, Cujas: 14-e edition.
Sabau-POP, I. 2000. Acquiring the Right to Property. Bucharest: Accent.
Statescu, C.–BÎRSAN, C. 1980. Civil Law. The General Theory of Real Rights. Bucharest: Editura Universității din Bucureşti.
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Sztranyiczki, S. (2017). Property Law in the New Romanian Civil Code. In: Menyhárd, A., Veress, E. (eds) New Civil Codes in Hungary and Romania. Ius Gentium: Comparative Perspectives on Law and Justice, vol 63. Springer, Cham. https://doi.org/10.1007/978-3-319-63327-5_6
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