І. General concepts and problems of family law
Abstract: In this article are considered some actual problems of the Bulgarian Family law, which derive by the application of the Family code since 2009 and the amendments and supplements of it. Firstly are exposed the cogitations of the notion of family, some aspects of the processual protection of the family legal relationships and mostly in connection with the processes of marriage cases and of civil status, establishment of the origin of illegitimate child and the application of the presumption of paternity.
Keywords: Family law, Family code, family, civil status, origin of child, presumption of paternity;
Abstract: The debate on the right to life must fit to reality itself. Thus, the author will present the subject starting from the meta-legal categories, firstly from its theological significance, secondly moving to complete analysis of philosophy and then to bioethics, to end with various legal philosophical considerations. The author is going from outside the Law to reach at the end the Philosophy of Law.
Keywords: Right to life, theology, philosophy, bioethics, philosophy of law.
Abstract: Through the comparison of the provisions on family law attributed by Dionysius and Plutarch to the first two kings of tradition, the paper highlights how the former looks interested in regulating relations within the family, in particular the position of supremacy enjoyed by the father on children and wives, while the latter traces a sketch on the woman's social condition in the archaic era, especially of the γαμετή. It's likely that the intent and consequently the weight of the two authors' re-working intervention, even when drawing on the same sources, is different.
Keywords: Leges regiae, Family law, Dionysius, Plutarch;
Abstract: Family law institutions should be always analized with care taking into account that the political, social and religious conceptions which have so much to do with their developing, differ themselves in each period of time. The marriage as well as the chidren born in the marriage set out questions of interest either in the Rome epoch or nowadays. The solutions given by jurists and the ones provided by the emperors confirm the arisen problems caused by the determination of paternity.
Keywords: iustaae nuptiae, tollere liberum, Senatusconsultum De partu agnoscendo;
Abstract: We conducted from October 2011 up to November 2016 a research on the evolution of the family concept and its influence on the legal succession order in Romania. Our scope was to provide an in depth analysis of the complex social, historical, philosophical and religious factors who worked together in modern and post‐modern Romanian civil law history, in order to evaluate the answer given by the recently enacted civil code of 2011.
The paper hereby can give an idea on the conclusions we drawn at the end of our work. It argues mainly if the new provisions are covering all the aspects drawn into practice by the family – in its traditional and recent presentations. We focus on the successive versions of the civil code's Book dedicated to the Law of successions, part of them being authored by ourselves. We take into account the recent evolutions in the Family law and in the Law of successions of several European and non‐European countries, with a special accent on France and the Canadian province of Québec – who deeply influenced the former and the present Romanian civil codification. The research ends with a set of conclusions leading to de lege ferenda propositions, meant to improve the actual state of the new Romanian civil code on the emphasized subject. They are meant to satisfy the specific needs of the present day Romanian society and to keep in touch with the tendencies we drawn out of the experience of comparative law of successions.
Keywords: law of succession, heirs, surviving spouse, civil code, family, comparative law, reform
ІІ. Marriage and divorce. Relationships between the spouses
Abstract: The aim of this article is to prove that the roots of the marriage model which characterizes the western European way of thinking, are in the Roman and Canonic Law. It is outlined that the marriage as every institute with a long tradition is a historic product. In every age it expresses a determined moral and social mentality, reflects the changes of the social attitude and the State policy and the tendencies of saving and updating of the existing legal regulation. Consecutively are considered the definition of the term of marriage, the species of marriages according to the Roman private law, the regulation of the factual cohabitation of the and the engagement. It is made the conclusion that basing on the historical experience could be done an evaluation of the modern relations, their legal regulation and its eventual reforming.
Keywords: Roman law, marriage legislation, matrimonium cum manu, matrimonium sine manu, concubinatus, sponsalia;
Abstract: Marriage is one of the most important juridical institutions in social life, both in antiquity and today. Therefore it's really important to know its legal regime. This work focuses on analyzing one of the aspects of its regulation: kinship relations as a marriage impediment. Each society the conditions required for the validity of marriage have been regulated, but in all these regulations there has always been one common element: kinship relations constitute an impediment to the valid celebration of a marriage; however, there are important differences in each country in relation to the degree and type of kinship involved. This work aims to show how this problem as addressed in the Roman Law, and the evolution than can be found in it.
Keywords: marriage impediments, Roman law, kinship relations, incest , eplicerate, levirate;
Abstract: A married woman in marriage just assumed the rank and the domicile of her husband, the auctoritas maritalis expressions, and kept them in the widowhood unless she got remarried. In this case, she assumed the status and the domicile of her new husband. This home on the court determined the remaining subject and the place where it should be named to the honors and munera compatible with their status.
Keywords: uxor, marriage, domicile, conventio in manum
Abstract: In the article is considered the termination of the marriage with unilateral will statement as it is regulated in the Classical Roman law. As a result of the recent modifications of the field of the divorce according to the Swiss civil law, the author confirms that it is approaching too much the Roman law. In the paper it is made a comparison between the divorce, based on the mutual will of the spouses (divorce strictu sensu) and the divorce by the unilateral will of some of them thus along the Roman law regulation is presented and a view of the development of the divorce in the Swiss law. With this comparative analysis the author reasonably poses the question whether the Swiss law will not admit soon a possibility for unilateral termination of the marriage amongst the conditions for the divorce.
Keywords: Roman law, Swiss family law, marriage, divorce, divortium, repudium
Abstract: This article analyzes D.22.3.70: In ambiguis pro dotibus respondere melius est. We study the political - social circumstances for which it is necessary to decide pro dote in case of ambiguity, what type of juridical transaction has given place to this ambiguous situation, which is the argumentative reason for which to decide pro dote melius est (in our opinion is the utilitas publica) and, finally, the argumentation of the jurist.
Keywords: ambiguitas,pro dote,melius est,utilitas publica;
ІІІ. Рater familias and alieni iuris
Abstract: The study researches Paulus's sentence in D.2.4.5.
The author shares the objections that it is not a paternity presumption and accepts the view that it is a praesumptio voluntatis and an interpretation rule. The link between marriage and children's origin belongs to Plato in "The Republic"-380 BC, Book V, 416D- long before Paulus and the Digests. The suggestion for a paternity presumption comes from Hugo Grotius "The Law of War and Peace"-1625, book II, chapter VI, para VIII 1-3 but first Montesquieu mentions it as a law provision in Lettres Persanes-1721, Letter 86 and then Paris lawyer Mathieu Marais in volume III of his Memoires-1724.
Keywords: presumption of paternity, Paul, Roman law, origin;
Abstract: We can ask ourselves wheter the position of the children in the Roman law permits forms of recognition of their rights. It looks like it does.
It is necessary to review again the ancient sources, abstaining from modern concepts of persons based on the theories of legal personality and legal capacity. By considering the notion of "child" (puer, infans, impubes), we can note the existence of the right to be born and, more generally, the right to life and the ensuing from it right to alimentation and care.
These rights are also accompanied by appropriate forms of protection, such as exemption from the obligation to carry out public service or appear in court for others, and tutela impuberum.
In single cases, children is recognized the possibility to possess, because it consists simply of a factual situation.
It is important the right to be recognized by their own father and the right to identity, including through the name.
Keywords: child, legal capacity, юношество, tutela impuberum, recognition by the father;
Abstract: The development of the Roman economy and the trade requires the inclusion of a large part of the population- the slaves and the personae alieni iuris, in these activities and impose serious changes in the rules of civil law. The pretorian edict regulates so-called by Glossators "actiones adjectitiae qualitatis" for the liability of pater familias / dominus for negotiationes with his slaves, subjects sub potestate (alieni iuris) and praepositi. The romanistic doctrine contains many discussions and contradictions, some of which presented in this article.
Keywords: Roman law, Roman economy, slaves, personae alieni iuris, actiones adjectitiae qualitatis;
Abstract: The doctrinal debate about the people who were actually subject to this regime of food obligation at first. We can speak of the existence of an obligation of reciprocal food in classic law between ascending and descending in a straight line.The importance attributed by Ulpiano to the effect of consanguinity justifies in itself the extension of the provision of food to both to the paternal ascendants and to the ascendant matters.
Keywords: obligation, reciprocal food, paternal ascendants, ascendant matters, consanguinity;
Abstract: Investigation brings over of the competent organisms in reasons of adoption, both of the adrogatio and of the datio in adoptionem. Also there are studied some procedural questions of the roman adoptio and datio in adoptionem.
Keywords: adoption, adoptio, adrogatio, Roman Law.
ІV. Legal status of women
Abstract: The author examines the overall legal status of the woman in Rome. She has consistently presented, though in brief, the central role of the woman in the Roman family as domus householder and as mother of her children who took their home-schooling and initial education and her overall obligations included in the notion of munus feminarum. Conclusions have been made about the basic principles of the law, valid in this matter and passed into the modern legal systems.
Keywords: Roman law, legal status of the women, mulier, uxor, mater, munus feminarum;
Abstract: The traditional model of Roman family is conceived in a double dimension on hand the interior strengthening of the group and on the other hand its socio-political projection. The changes in Roman society at the end of the Republic force these intrinsic keys of the familiar institution up to breaking it. In addition, the familia principis, as propaganda instrument of a new stage, materializes the family and blurs the marked materfamiliae's civil roles.
Keywords: Family, citizenship, female emancipation, imperial domus and misogyny
Abstract: This work starts with an analysis of the numerous „common places" on the topic of the Roman women which are found in the epigraphical and literary testimonies between II century B.C. and III A.D. Amongst them it is glorified the Roman „domiseda" and this who works the wool „lanifica" between the walls of the home, praising first her chastity and observation of the customs („pudicitia"). As a result of the examination of plenty of literary, epigraphical and legal testimonials it is shown how there, where it is considered the position of the woman it is alluded for a certain type of an autonomy or some kind of an eccentricity according to its model the general stereotypes are converted. The woman is blamed that she is „virile", and on the place of the compliments of her temperance and moderation it is passed at the accusation of the female „barking", and the woman without doubts automatically is blamed that she is a prostitute.
Keywords: Roman women, general stereotypes, virile women, chastity, immodesty;
Abstract: According to the sources, the life of the upper class Roman women was both quiet and insignificant during the Republic. In spite of the fact that a few ones stand out within a more mythical rather than realistic ancient literature, women had to stay at home, whereas men, outside «feminine» place, had the choice to access an enormous universe of possibilities and political dreams. Nevertheless, one woman will shine above the other matronae in the last decades of the Roman Republic: Terentia, Cicero's first wife. Thanks to this eloquent orator –the most important source of those last times– and his epistolary work, we will be able to observe how this woman could manage the family finances during the absences of her husband; we will see that this was an action which followed no patterns.
Keywords: Terentia, upper class Roman woman, feminine finances, Cicero, Roman Republic
V. Other problems on family law
Abstract: The essay aims to study some specific issues contained in "new laws" (novellae) enacted by Justinian in criminal matters, with particular reference to the offenses against morality and the family, in which the legislator pays particular attention to the degree of punishment, in relation to the personal qualities of the agents. What emerges is a picture that testifies to the emperor particular sensitivity for deviant phenomena capable of undermining the correct moral order and endangering the intimate morality of women.
Abstract: This article deals with a number of Family law and Law of obligations problems of the contract of rent. It is made a characterization of the rent contract. It is shown who will be a titular of the acquired through the contract real rents and how the spouses would be responsible for the obligation of rental payments under the regime of community. It is considered the question is it acceptable one of the spouses to transfer to the other real rights with a rent contract with lifelong payments, as we know for the existence of the obligation for maintenance between the spouses. With the analysis of the contract regime it is examined the hypothesis, where the marriage contract consists the clauses of the rent contract, and also of the question if the creditor of the rent payment can claim on the basis of contracted by the spouses solidary liability, thus the author corroborates her thesis with a lot of arguments. When it is applicable the regime of separation are discussed the possibilities of solidary liability between spouses for the obligation of periodical payments on the rent contract and emergence of the common titularity of spouses of the acquired by the rent contract.
Keywords: regime of community, regime of separation, perpetuity, marriage contract, common property, personal property, liability for solidary obligations.
Abstract: The article focuses on the origin of the concept for the inheritance of debts. Its purpose is to discover the Roman roots of this responsibility, to argument their relationship with the Roman familia and to trace its development in the contemporary law. It is argumented that the responsibility of the heirs for the hereditary debts has arisen in Roman law and probably in an early stage of its development. Its origin is associated with the community between the members of the Roman familia in the rights and obligations and with the thesis for the continuation of the person of the deceased pater familias by his heirs. In classical Roman law, on this ground rises the concept for the universal succession, which is a specific for the modern law of the continental legal family.
Keywords: inheritance of debts; inheritance of obligations; universal succession; Roman familia
Abstract: The article discusses the acquisitive prescription by spouses in Roman law and contemporary Bulgarian law. It follows the development of acquisitive prescription from antiquity to the present day. A critical analysis of the case-law is made under the Family Code of 1968, 1985 and 2009.
Keywords: acquisitive prescription, matrimonial property, real estate