The institution of legal guardianship in the new civil code. Brief considerations

• Author: Andreea Draghici
• Position: Faculty of Law and Administrative Sciences University of Pitesti, Pitesti, Romania
• Pages: 19-24

AGORA International Journal of Juridical Sciences, www.juridicalj ournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 2 (2012), pp. 19-24

19

THE INSTITUTION OF LEGAL GUARDIANSHIP IN THE NEW CIVIL

CODE. BRIEF CONSIDERATIONS

A. Drghici

Andreea Drghici

Faculty of Law and Administrative Sciences

University of Piteti, Piteti, Romania

*Correspondence: Andreea Drghici, 71Republicii Blvd., Piteti, Romania

E-mail: andidraghici@yahoo.com

Abstract

The present article seeks to outline the main improvements brought by the Civil Code

of 2009 to the field of protection of minors through legal guardianship. Although not

changing the fabric of this legal institution, the stipulations of the Civil Code introduce new

notions, such as: family council, or the appointment of a legal guardian by the child’s

parents.

Keywords: Romanian Civil Code, instituting a guardianship, family council,

termination of guardianship.

Introduction

In the words of John Locke, “Childhood is a trial we must all go through before we

can become adults”. “It is the time of prejudice and mistakes, because the child has neither

reflexive conscience nor judgment”, added Descartes. The modern concept of legal infancy

was built mostly on this type of philosophy about childhood. Taking into consideration the

fact that children become rational beings, they are our equals. It is this lack of reason that

characterizes them and imposes the need for legal guardianship. Thus, the protection of a

child has always been at the core of philosophical and legal preoccupations.

1. The Notion of Guardianship, Legal Characteristics and Principles

The institution of the legal guardianship has remained essentially the same throughout

the history of Romanian law and it may be described as a complex mechanism. From a

terminological point of view, the phrase “legal guardianship” comes from the idea of

protecting and has two meanings: a legal means of protection and a legal institution, the

totality of legal norms which constitute it and which regulate the protection given to children

by another person than the parent.

At present, it is the Civil Code

1

, in force since the 1 October 2011, which regulates this

institution and which has a whole chapter in Tome I, Persons, Title III, Protecting the Physical

Person, Chapter II, beginning with article 110 and ending with article 163. Starting with the

aforementioned stipulations from the current legal doctrine

2

, the legal guardianship was

defined as a “the legal means of protecting a minor deprived of parental protection, which is

instituted in cases and conditions stipulated by law”. The guardianship constitutes a means of

protecting a child lacking parental protection. It is a responsibility for the guardian, as

expressly stipulated by article 122, paragraph 1 from the Civil Code: “Being a legal guardian

1

Forward Civil Cod used as Romanian Civil Code.

2

E. Chelaru, Drept Civil. Persoanele, C.H. Beck Publishing Ho use, Bucharest, 2012, p. 150.