Civil liability issues in view of the national legislation in 2011

• Author: Diana Nicoleta Dascalu
• Position: Assistant professor, PHD candidate, Faculty of Law, University Titu Maiorescu, Bucuresti
• Pages: 338-344

17

CIVIL LIABILITY ISSUES IN VIEW OF THE NATIONAL LEGISLA TION

IN 2011 Dascălu Diana-Nicoleta

*

Abstract

The new Civil Code provisions maintains part of the provisions of the 1864 Civil

code, consecrates institutions accepted and devoted to the doctrine and judicial practice, and

also brings new elements taken from the codes and laws that were the source of inspiration.

Key words: civil liability, general provisions, novelties.

Introduction

Monistic theory, which led to the adoption of the new Civil Code, wa s imposed over

some items that were originally specific to the commercia l law and g ave them a general

nature, apply ing them in a way to the institutions which belonged to civil law by tradition.

From our point of view, monistic theory is welcomed in drafting such a code, trying to unify

the provisions in civil and commercial matters, however, the wording of the document code,

gives us the a reason to be lieve that it has n ot fully achieved its p urpose. For example,

although the actual code introduces a number of specific contracts of commercial law, such

as contracts of current account, bank contracts, insurance contracts etc., it leaves out other

commercial contracts such as leasing contracts.

1. General provisions referring to tort liability and contractual liability

Civil liability, perhaps the most important institution of civil and commercial law,

which Josserand

1

called “the sore point of all institutions”, is known within t he new code as a

a complex regulation, given by the legislature as the entire Chapter IV, of the “Obligations

Book”. The need to adapt the transformation of social relations to civil liability, although

acknowledged at times b y the 2011 legislature, does not pr esent major changes i n its

regulatory means or the foundation of this institution.

As very well put by a voice of international doctrine

2

, accidents at work, traffic

accidents, nuclear accidents as well as the full range of sources of danger created by

technical progress, have produced a more pronounced process of social responsibility in all

components products, and a decline in individual responsibility.

It is noted however that the vision of the 2011 legislation remains dependent to

subjective liability based on fault liability, which focuses on the punitive function o f criminal

liability rather than reparative function. This gives preference to repair damage suffered by

the victim and not to sanctioning the originator of the illegal deed. The importance of this

difference between these two views is that in certain legal r elations, subjective civil liability

does not meet the requirements of reparation either because of difficulty in the author’s fault

probations, or because the author will b e required to answer, even in the absence o f the

concept of guilt, on the principle of security risk, family solidarity etc.

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Assistant professor, PHD candidate, Faculty of Law, University Titu Maiorescu, Bucuresti, email:

diana.dascalu@gmail.com

1

L. Josserand, Rapports et domaines de la responsabilite contractuelle et delictuelle, Sirey, Paris, 1993, p. V.

2

G. Viney, La declin de la responsabilite individuelle, Librairie Generale de Droit et de Jurisprudence, Paris, 1965.