Equity - Connotations in the Current Romanian Legal System

Author:Emilian Ciongaru
Position:PhD, Associate scientific researcher, Institute of Legal Research 'Andrei Radulescu' Academy of the Romanian Academy, Romania
Pages:13-19
SUMMARY

The underlying principle of the law, and a source of law - equity - has been expressly or explicitly integrated in the judicial development of law, with a view to giving a meaning to the law, for which reason it is aimed at peacefully solving or preventing the social disputes in society. Therefore, equity has a hermeneutic function, strictly for making interpretations when the legislator so... (see full summary)

 
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Legal Sciences in the New Millennium
13
Legal Sciences in the New Millennium
Equity Connotations in the
Current Romanian Legal System
Emilian Ciongaru
1
Abstract: The underlying principle of the law, and a source of law equity has been expressly or explicitly
integrated in the judicial development o f law, with a view to giving a meaning to th e law, for which reason it
is aimed at peacefully solving or preventing the social disputes in society. Therefore, equity has a
hermeneutic function, strictly for making interpretations when the legislator so allows it, it is intrinsic to the
law and contains all phases of good management and enforcement of justice, being a part of all stages of the
legal proceedings, from the application initiating proceeding to the actual implementation of the court
decision awarded, regardless of the nature or extent of jurisdiction, and of the nature of the litigation referred
for judgment. According to the requirements of equity, the judges have special powers for s ettling specific
cases, namely, they may o ffer resolutions they consider to be fair and conforming to the interests of the
parties involved, which is to be grounded on facts, and not on the positive law.
Keywords: equity; positive law; hermeneutic function; social conflicts; society
1. Concept of Equity
One of the most complex principles of law in general, and of civil law in particular the principle of
equity a moral and legal principle of fundamental importance finds its application both in the law-
making process (Mihai, 1999, p. 96), and in the actual activities of the institutions for the
implementation and enforcement of law. An immediate effect of this concept is the concept of justice,
defined as the ideal general state of a society, aimed at ensuring that each individual achieves his/her
rights and legitimate interests as a way of satisfying the individual good, and embodied in the general,
common good of all members of a given society, leading to a balance between honesty and tolerance
towards our neighbours, way observing social and legal order rules (Voicu, 2001, p. 236). Therefore,
there is an ideal connection between equity and justice (Pitulescu & Abraham, 2000, pp. 116-117),
because one is explained by the other, and they are subordinated to a value hierarchy created by the
society. At the same time, equity is a principle imposing equal rights and responsibilities for the
members of the human community and also of the nations and states, mutual respect, and fair and
unbiased resolution of any potential disputes that might arise in the relationships between them.
However, the principle of legal equity is not a general abstract principle; legal equity applies only in
actual cases and always operates a posteriori and under specific circumstances exclusively. (Deleanu,
2008, pp. 187-188)
1 PhD, Associate scientific researcher, Institute of Legal Research “Andrei Radulescu” Academy of the Romanian Academy,
Romania. Scientific researcher, Hyperion University, Romania, Address: Calea Clrailor, Bucharest 030615, Romania, Tel.
+40740 113 579, Corresponding author: emil_ciongaru@yahoo.com.

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