. It is a fair and rational solution that, in the Civil Code, which is the backbone system of
a state, to exist also some provisions on public property.But it was naturally that it actually be the
provision of maximum generality, reffering on this, at the scope of goods, eventually any mode of
acquisition, and not be cut provisions of the organic law on public property to be transferred to
the Civil Code . This seems to be an exaggeration of the legislator and only this can be a tendency of
damage of the character of institution of the public law that public property has. Including changing
the name of the organic law by Law no. 71/2011 of implementing the Civil Code seems to be a matter
exaggerated and unsatisfactory. Compared to the original name of the Law no. 213/1998
, which was
the law on public property and its legal status, which was generous, comprehensive, the current name
the Law on Public property seems more restrictive, it refers only to the assets public property and with
a pronounced tint given to private law, the assets being essentially an institution of this branch of law.
III. Public and private state property or administrative-unit property in view of the current
Civil Code. Correlation with public property.
Is regrettable that in the current Civil Code there is not found satisfactory regulations on public and
private domain, concepts that we appreciate it normally would have to find established and clarified
in terms of their significance, the correlation with public property. It can be said without big words,
that "we lost opportunity" that we had to do this, with all the consequences that result. Although
certain provisions support the distinction between public domain and public property. One reason is, in
our opinion, that in the composition of the team that has elaborated the draft of the Civil Code were
not, unfortunately, specialists in public law, whose contribution would have to be balanced and be
made compatible the regulation of the two visions, for specialists in public law and those in private
law. Article 860 of the law, which is called marginally the national public, county or local leve
domain, establish this concept, but does it in a different way than we have in view, which identifies the
public property with the public domain.
We reffer to the sense lato-sensu of the public domain, which includes, in addition to publicly
owned property, also some private goods, whose scientific , cultural, economic, historical significance
justifies public membership and governing of public power rules , with common law rules, which are
characteristic for them. Article 859 uses the term private domain, but also it is used in a manner that
identifies the private property, unsatisfactory formula, in our opinion and unable to clarify the
relationship between public and public property, private property, respectively. All this article uses the
concept of public domain, the text distinguishing b etween public property and public domain. In a
very interesting regulation, the text provides that all other goods not covered by public property can
be located either in public, or in private or in state administrative unit. We understand from this
text that the legislator does not equate public ownership and public domain issues on which we
Regarding the regulation that the Civil Code establishes in this matter, the analysis must be based
on Article 554 para. (A) according to that the goods of the state and administrative units which, by
their nature or purpose of the law, are public use or public property, is the subject of public property,
but only if they were legally acquired by them. We see that in this text we find the definition of public
property, therefore determining its object, by reference to the criteria that determines membership
of an asset to the public property. So it is on assets that are by their nature or by the will of the
legislator, his statement, presents use or public interest. If the definition would have stopped here,
there would be a legal solution that had a certain brevity and reasonableness. In an uninspired way, in
our opinion, it has been set the condition that the assets have been legally acquired by them, as if in
terms of state activity and its units, would not be held legally presumpting its legal character.
Imposing the condition that the asset was acquired in a legal manner reverse somehow the situation,
inducing the idea of a presumption of illegality, not one of legality. Moreover, it is a truism that the
legal force of the administrative act it is given by the three assumptions which are specific to the
presumption of legality, authenticity and reliability, and also of the enforceability character of
the act (executio ex officio). Seems questionable also the second provision of the text, that if the law
does not provide otherwise, provisions apply to private ownership and publi c ownership, but only if
they are compatible with the latter .
In the current constitutional and legal system, there are only two types of ownership, the private, which represents the
rule and the public, the exception. For development, see Anthony Iorgovan-Administra tive Law Treatise, All Beck
Publishing, Bucharest, 2005, vol II, Fourth Edition, p.310-323.
Law no. 213 / 1998 on Public property, published in the Official Gazette, Part I, no. 448 of 24 November 1998.