3. In the national system, the statement of the
associative forms brings in view, first, the provisions of art.40 of the Constitution,
revised in 2003, according to which the citizens are entitled to exert, within the
law, the right of association in political parties, unions, trade unions and other
associative forms. The constitutional legal norm also indicates the limits of the
exertion of this important right4.
The association, in its diversified forms of manifestation as an expression
of the right to association5, represents a modality of colaboration and cooperation
between persons for achieving a purpose for - profit or, by case, non - profit, and is
part of the private law domain. Due to the fact that, in the last years, at the
legislative level there have been significant changes, in our country, as a
consequence of entering into force of the new codes for the regulation of the
private law and also public law relations, we would like to outline, for the
begining, some aspects that emphasize the impact of the new Civil Code,
republished in 2011, on the private law domain.
2. The impact of the Civil Code, republished in 2011,
on the private law domain.
The associative forms between tradition and present days
The entering into force of the Civil Code, republished in 2011, and of the
Law no.71/2011 for the implementation of the new code, marked, as we consider,
the unification of the private law around the civil law branch, with the consequence
of eliminating the former and traditional distinction between the civil law branch,
on one hand, and the commercial law branch, on the other hand.
The legislative solution was founded on the monist conception of the
regulation according to which, in a unique code, were subsumed legislative
segments that interested the entire aria of the private law, including those
concerning the relations and the professionals of the economic activities named,
3 The Convention for the protection of the Human Rights and the Fundamental Liberties was ratified
by Romania through Law no.3 0/1994, which in art.11 disposes that any person has the right to a
free and peaceful association, including the right to constitute trade unions with others and to be
afiliated to unions for the protection of their own interests.
4 Art.40 “Right of association”of the Constitution, revised in 2003, states: “(1) Citizens may freely
associate into political parties, trade unions, employers' associations, and other forms o f
association. (2) The political parties or organizations which, by their aims or activity, militate
against political pluralism, the principles of a State governed by the rule of law, or against the
sovereignty, integrity o r independence of Romania shall be unconstitutional. (3) Judges of the
Constitutional Court, the advocates of the people, magistrates, active members of the Armed
Forces, policemen and other categories of civil servants, established by an organic law, shall not
join political parties. (4) Secret associations are prohibited“.
5 From the juisp rudence point of view, the former Supreme Court of Justice, comm. div., by decision
no.511 of 3rd November 1994, stated upon the setting up of the trading companies, in the conditions
of Law no.31/1990, in the sense that “it is dominated by the principle of the liberty of association of
the physical and legal persons. The limitations brought to the liberty of association, by the
imperative legal norms, should be strictly interpreted”, in the Law Review no.4/1995, p. 73.