Public property under the New civil Code

Author:Verginia Vedinas
Position:Faculty of Law, University of Bucharest
Pages:1-8
1
PUBLIC PROPERTY UNDER THE NEW CIVIL CODE
Prof. Verginia VEDINAŞ, Phd.
1
Faculty of Law, University of Bucharest
Abstract
The article analyzes the way that is analyzed, under the new Civil Code
2
, the public property in
Romania. The provisions dedicated in this matter creates problems of interpretation, contain
inconsistencies which certainly create difficulties in applying them in practice. We also add the fact
that in terms of the terminology used, the current regulation contains some inconsistencies. There are
used the concepts of public property, public sector, private sector, without clarifying the significance
of each relationship and correlation between them.
Key-words: public property, public domain, private property, private sector, public sector, the
characters of public property, public national, county or local level domain.
I. Introduction
Entry into force of the new Civil Code on October 1, 2011 had implications not only on civil law,
but also on other branches of law. Some of them were formally abolished, and we refer to commercial
law, particularly but not only, others require a change in legal status of some institutions that are
specific and refer to administrative law and, specifically, the public property .
We propose to analyze, in this material, i n a critical view, how public property is governed by the
current Civil Code, the changes that it brings on its regime juridic. It is known that public property is
one of the institutions which, over time, have generated disputes between public law specialists and
those in private law. Therefore, it seems useful that its legal regime, as it is dedicated by the Civil
Code, which is the main source of civil law, to be analyzed, equally, by the authors of private law, but
also by those of the public law.
II. Is justified the regulation, by the Civil Code, of the public property?
Regulations on public property are found in Title VI of the Civil Code, even bearing the name
"public property", Articles 858-875 and also in the Article 854 which has the same name. A first
problem that arises is whether it is natural that the Civil Code, which is the legislative basis for
private law, which may be qualified to represent the "Constitution of private law" is natural to
find regulations on public property an if somehow in this way is turning public property into a
private law institution, undermining its membership on public law and its quality of public law
institution .
Two possible answers can be envisaged. One to deny categorically that it may be contained in the
Civil Code rules on public property and another who consider naturally the coverage in the Civil
Code of some provisions on this issue. As far as we are concerned, we consider that the answer lies
in the middle, at the interference between the two solutions a t the extremes. It seems natural for
us that in the Civil Code exists also some provisions on public property, necessary from the
perspective of a more complex regulating of the private property .
To establish thus, the two types of property currently existing in Romania, recognized as
such by Article 136 paragraph (1) of the Constitution under which the property is public or
1
e-mail:verginia.vedinas@rcc.ro
2
Civil Code was adopted by Law no. 287/2009, published in the Official Gazette, Part I, no. 511 of 24 July 2009. It was
implemented by Law no. 71/2011, published in the Official Gazette, Part I, no. 409 of 10 June 2011 and republished in the
Official Gazette, Part I, no. 427 of June 17, 2011.
2
private
3
. 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
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, 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
will return.
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 .
3
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.
4
Law no. 213 / 1998 on Public property, published in the Official Gazette, Part I, no. 448 of 24 November 1998.
3
In terms of legal language and of the art of writing, it seems less inappropri ate and childish at
times, repeating, in the two paragraphs, but only expression. Passing over this, more formal, the
background approach is wrong in this text, because it establishes the character of common law
that private ownership would have against public ownership, a situation that obviously we do
not agree. We say this because the public ownership has an identity that lies at the opposite pole of
the law of private property and places it in public law, not to the private one.
Moreover, in terms of private property and state administrative units, which form its private
domain, it is subject to the rules of common law, unless the law provides otherwise. We mention
that the rule in regard to public property, is formed by the public law regime, and only by
exception we find private law rules. The text of law, as written in present, transformes the
exception in rule and the rule in exception, solution that we can not share. And details on the need
for compatibility with public law does not save the situation. Overall regulation of public property is
found in Title VI, which is divided into two chapters. The first chapter is dedicated to the general
provisions. In Article 858, as shown in its marginal designation, we find the definition of public
ownership. The legislator defines public property in the sense that it is the right of property belonging
to the state or administrative-territorial unit of property which, by i ts nature or the statement of the
law, are for public use, on condition that to be acquired by one o f the ways provided by law. We
notice first that the text is approached in a sensitive way as content, with Article 554 para. (1) what
changes, in an insignificant way terms of substance, but equally uninspired in terms of form, the final
part of it, that replaces the term but only with on condition of which regards the acquisition of these
goods in one of the ways provided by law. The same arguments that we express the content of Article
554 para. (1) are applicable in respect of this text, it also ignoring and equally overturning the
presumption of legality that characterizes the activity of public authorities, especially legal documents
on which it concludes, issues or adopts. In Article 859 there are regulated the subject of public
property and the demarcation of public property subject against to the private domain. In paragraph
(1) we find the subject of public property, in an identified formula that is identical in terms of content
and technique of writing, with the provisions of Article 136 para. (3) of the Constitution.
Regarding the private delimitation from the private domain, we cannot find certain criteria of
demarcation , wich would have been , in our opinion, correct. It is interesting that, although the
marginal name of the article referres to the demarcation from the private sector , we find in its
contents we both find demarcation between public and private property and also between the
public property and the public domain, which, instead of clarifying, it complicates things. As we
already stated, we understand, from the content of Article 859, that the legislator does not equate
public ownership and public domain. From the poor wording, , in our opinion, however we interpret
that:
a) on the one hand, the legislator distinguishes between public property and public domain,
meaning that public property includes only those assets which are expressly and exhaustively
provided for by Article 136, paragraph. (3) of the Constitution, Article 859 para. (1) of the Civil
Code and the Annex to the organic law, this law no. 213/1998 on public property assets, while
the public domain may also include other assets, without the legislator saying which are the
ones. From the interpretation of the text, we deduce that the public domain or territorial
administrative unit comprises those assets that are not public property, either private or state
territorial administrative unit, resulting in that they are public goods, meaning that they are
governed by public law rules, which do not fall within the scope of public assets as determined
by the Constitution or the two organic laws, namely Law no. 213/1998 and the Civil Code.
b) on the other hand, the legislator distinguishes between public and private property of the state
or administrative unit. Public property includes those items that are expressly and exhaustively
provided for and limited by the Constitution and organic law, while private domain includes all
other goods, which are not subject to public property. c) thirdly, the legislator distinguishes
between public and private domain of the state or territorial administrative unit, meaning that
their public domain includes all publicly owned property and other assets that are nor public
property either in their private domain, while the private domain includes those assets that are
nor public property either in the public domain or administrative unit. This criteria of
elimination creates serious problems i n respect of asstes falling within the public and private
domain of the state or administrative unit. If regarding the assets of public property the things
are relatively clarified, the Constitution and organic legislator drawing the limits of this category
of goods, not the same thing can be said about the two areas, public and private, state or local
administrative unit .
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Consistently with a regulation technique that I found and I criticized in equal measure, and Article
859 paragraph (2) sentence mentions that the assets which are not public property belongs to
public or private domain, but only if they were, in turn, acquired by one of the ways provided by
law. It is hard to understand the precaution for the lawfulness of the acquiring that the legislator of the
Civil Code manifests, as if, as we've already stated, the rule would be that the state and administrative-
territorial unit, works illegally, not legally. An article who "excels" by the blur is undoubtedly Article
860, which governs the national , county or local level domain. In the first two paragraphs, it states, on
the one hand, that the publicly owned assets can be part of one of the three areas, national, county
or local level, and the demarcation between them is the law. We note that the legislator of the
Civil Code uses , in the Articles 858-874, both the law or under the law expressions, and also
organic law and under the organic law which raises, of course, the problem if not taken into
account two different legal solutions: one of an ordinary law, for certain situations, and another
of the organic law for other cases. In our opinion, such an interpretation, even if considered by
the legislator of the Civil Code, does not have support and we relate to art. 73 para. (3) m) under
which the general legal status of property and of the inheritance are regulated by organic law. It
follows that any legal operations regarding property , no matter the type, follows the competence
of the organic law. It is applicable the principle of law contained in the Latin adage where the law
does not distinguish, no interpreter is not allowed to do (Ubi lex non distinguit, nec nos distinguere
debemus). The third paragraph of the text aims to cover how to make the transition from the public
domain into the public domain of administrative-territorial unit. The criterion-off between these
methods is whether the asset is or not the exclusive property of public property. Where there is a
good that belongs exclusively to the public property, then the transition from the public domain
in the public domain of administrative-territorial unit or vice versa can be achieved only by
changing the organic law. However, in other cases (i.e. when the asset is not exclusively the subject
to public property ex, subl. Ns. VV), an asset transition from the public domain to the public
domain of administrative-territorial unit and vice versa, is made under the law.
There would be the problem of determining the significance of the formula under the law that
the text of the Civil Code sends to. The answer is found in the Article 9 of Law no. 213/1998 on
Public property which establishes the following two solutions: a) passing an asset from the public
domain to the state's public administrative unit domain is at the request of the county council,
respectively of the General Council of Bucharest municipality or of the local board, as
appropriate, by Government decision; b) passing a public asset of a territorial-administrative
units in the public domain is, at the request of the Government, by decision of the County
Council, namely the General Council of Bucharest municipality or of the local board. Law no.
213/1998 establishes also the ways of crossing a public asset of the state or administrative-
territorial units in their private domain. They are found in the Article 10 paragraph (2) and (3)
according to that the transition from public to private domain is made, where appropriate, by
Government decision, the county council, or the General Council of Bucharest municipality or
local board, if it is not otherwise provided by the Constitution or by law . No matter the situation,
the decision of transition may be appealed under the law, at the competent administrative court
in whose territorial jurisdiction where the property is.
Reporting to the Law no. 554/2004 of administrative contentious
5
, as amended and supplemented
6
we understand that when it is a Government decision, this is to be attacked to the Court of Appeal
and appealed to the High Court of Cassation and Justice, departments of contentious
administrative and fiscal, and when there would be a county council decision, at General Council
of Bucharest or the local council decision, it will be att acked to the law court and on appeal to
the Court of Appeal in administrative and fiscal section.
The Law no. 213/1998 we find thereof regulated also the way an asset crosses from private or
state administrative territorial unit domain in the public domain. The legal document by which
this is achieved is the Government decision, or, where appropriate, the deliberative organ of local
self-determination.
We interpret that, when it comes about an asset of national interest, which belongs to the state, will
be talking about a Government decision, and when it is about an asset from territorial
administrative unit, it will be a decision of the local council, county council or the General
Council of Bucharest.
A special regulation establishes the law for the situation that there are listed in the public
domain assets which are in the heritage of the companies where the state or territorial unit is a
5
Published in the Official Gazette of Romania, Part I , no. 1154, 7 december 2004
5
shareholder. In this case, the transition can be made only with fee and with the consent of the
general meeting of shareholders of that company. If such an agreement is not obtained, there
would be the expropriation for the public after a just and prior compensation. The next aspect of
public property which is covered by the Civil Code in Article 861, are the characters of public
property, being about, in the traditional language of public law, the principles governing the legal
status of public property. In Article 862 we find regulated the limits regarding the exercise of
public ownership.
The Constitutional basis of this provision is the Article 53 of the Basic Law, which establishes the
principle rule that the exercise of any fundamental right and freedoms may be restricted, on condition
that the restriction should be made only by law and be determined by the circumstances expressly
provided and limiting by it
5
.
Regarding the private ownership, there should be noted that the appurtenance of an asset to the
public domain has the significance of restricting of this fundamental right, allowed by Article 53
of the Constitution. Protection of a legitimate interest justifies the restriction of the right of private
property and makes that a good private property to be governed both by private and public law rules,
which, moreover, have pre-eminent character first, according to traditional doctrine of administrative
law
7
.
Correspondent of this legal situation is the norm in art. 862, which admits that when a legitimate
private interest requires and public ownership is restricted in its exercise, on condition that the
restriction is compatible with public use or interest that the asset is affected to.
Alin. 1 of Art. 862 states that the public property right is capable of any limits stipulated by the
law or this code to private ownership, in extent that they are compatible with public use or in the
public interest for which the assets are affected to. In developing this rule principle, paragraph 2 states
that the incompatibility is established by agreement between the owner of the public property and the
person who is interested or, in case of divergence, by judicial way. And in the last paragraph of the
text is established the right of the interested person to a fairly and timely interest compensation from
the owner of public property, which could not be limited in exercising its right due to the
incompatibility found or judicial settlement with limitation.
From the interpretation of this text, it results the following legal status of public ownership
restriction established by the Civil Code: a) the rule is represented by the possibility that the public
ownership should be subject to any limits. b) the exception is represented by a situation where there is
incompatibility between the form of limitation and the public use or public interest to which it is
intended the public property asset likely to be limited in its exercise. c) the legal character of the
limitation, which means that, for a limitation can operate, it is necessary that it be prescribed by
law or Civil Code.
The formulation is relatively redundant, given that the Civil Code is also a law, which means that
it was sufficient to provide that the restriction or limitation to be regulated by law.
The term "law" must be interpreted as meaning its stricto-senso, the legal act of Parliament.
Regarding the category of law referred to the text, we appreciate that it must be an organic law,
solution that art . 73 paragraph (3) m) of the Constitution sends, according to that the matters r eserved
to an organic law is also found "the general legal status of property and inheritance."
d) the effective exercise of a limitation, brought to the public ownership is conditioned by the
compatibility with its use, the public interest to which the object is affected to.
Per a contrario, we deduce from the content of Article 862, that in the absence of compatibility can
not intervene the limitation. d) the manner of ascertaining the compatibility between the
limitations and the public use or interest is the friendly one, respectively the agreement between
the owner of public property and the person concerned, and in case of divergence, when there is
no such agreement, the jurisdiction lies with the court .
The text does not provide which is the court which is referred to by the words "the judicial
process." In the absence of some express provisions , we appreciate that in this case, jurisdiction lies
with the administrative contentious. e) recognizing the right of compensation damages, in the case
that the limitation which should be brought to the public ownership cannot occur due to an
incompatibility found, amicably or by court, with the public use or interest. f) the fair and prompt
character to compensation which the owner of public property must give to the person concerned,
5
According to this text, the constitutional frame of restriction is as follows: the restriction to be imposed to pr otect
national security, public order, health or morals, rights and freedoms of citizens, conducting a criminal investigation,
preventing the consequences of natural disasters, of a very serious disas ter, or catastrophe, to be necessary in a democratic
society; to be proportionate to the situation that caused it and do not affect the existence of such right or freedom.
7
For developments on this matter, see Anthony Iorgovan-Treaty, op. cit., pp. 173-178
6
who will be prejudiced by the failure to make a limited to the public ownership, due to incompatibility
with public use or interest to which he is affected. According to the legal regime of compensation,
traditionally, from the first law regarding the expropriation for cause of public use
8
, it includes
characters of prior fair compensation, and the possibility that, determinining the amount to be
made in an amiable way, and if there are some divergences that make it impossible a fr iendly
settlement, through the court. We found that, in the current Civil Code, the previously
compensation character is replaced with its prompt character. It also does not provide how the
amount of compensation shall be determined, respectively by agreement or by law. Unless stated by
the legislator, we interpret that the same rules are applicable, that the Constitution embodied in the
Article 44 paragraph 6, that is, in our opinion, the constitutional framework within which must be
established any damages caused by an injury brought to the right of private ownership.
For these reasons, in what concerns us, we appreciate that it would be fair that art. 862 par. 3 of the
Civil Code to provide that compensation to be fair in advance, and not fair and timely, as currently
foreseen.
There is a problem of the acknowledge of the phrase "prompt compensation". What does it
means, what we understand by promptness of compensation, depending on what criteria is it judged
as such? Therefore, the law ferenda we propose that the text to be modified for the purposes of
replacement the term prompt by the prior period.
IV. Methods of acquirement and suspension of public ownership
In the Article 863 there are regulated "cases of attainment of public ownership" respectively the
legal ways of attaining public ownership .
Prior to adoption of the Civil Code, such rules
8
were laid down in art. 7 of Law no.213/1998,
which was repealed
9
. Comparing the former Article 7 of the organic law no. 213/1998 with the current
art. 863 of the Civil Code, we find the common elements and essential differences of their contents.
In accordance with Article 863, there are the following cases of acquisition of public ownership:
a) through public procurement carried out under the law. This procedure is provided in an identical
form also by the old text.
b) by expropriation for a public interest, under the law. Also this formula was provided by
former Article 7, the only difference consisting in specifying the "under the law", which was not
previously provided. To rigorously , it is necessary to supplement the text in order to be made in
accordance with Article 44 paragraph 3 from the Basic Law, which lays down the principle that no
one may b e expropriated except in the public interest, established by law, with the right and prior
compensation.
In condition that the fundamental law allows only this type of expropriation, for being in full
compliance with this, the Article. 863 point. b) should provide "expropriation for the public interest ,
established by law, with just and prior compensation" formula that we propose as law ferenda .
c) by donation or legacy, supported by law, if the property, by nature or by the will of the owner,
became for the use or public interest. The formula was provided also by the former art. 7
11
, in a close-
sensitive editing, the difference being that is no longer provided the authority to accept the
donation or legacy, but that acceptance is to be made under the law. It adds that the acquisition of
the intended use or public interest can be achieved through good nature or will of the acquirer.
d) by convention with onerous title, if the property, by its nature or by the will of the acquirer,
becomes of interest or public utility. Such a possibility was not referred to above, and we consider
benefic including it in the modalities by which state or administrative-territorial unit may acquire an
asset from a particular, natural or legal person, in that situation when the asset has the vocation to
become for use or public interest.
e) by the transfer of an asset from private property of the state in the public domain of the state
or from its public or private sector of the administrative – territorial unit domain in the public domain,
under the law. This procedure was provided also by the former Article 7
10
of Law no. 213/1998, in a
formula containing a certain imperfections which have been properly removed from the current text of
8
Adopted by the ruler Alexandru Ioan Cuza in 1864.
8
We consider that the formula "modalilties of aquisition" is preferable to "cases of acquisition".
9
The repeal was made by pt. 2 of art. 89, Section 3 , Chapter V of Law no. 71/2009.
11
Art. 7 of Law no. 213/1998, repealled in pres ent, stipulated by passing of assets f rom the private domain of the state
or of th administrative-territorial unit thereof in the public domain, for a public interest cause
10
It provides "the acts of donation, acceptance made by the Govern ment, the County Council or City Council, as
appropriate if the property in question enters the public domain"
7
the Civil Code. We refer to formula passing the assets instead transfer the assets , which is legally
rigorous and specifying, in an incorrectly way, that the passing of the public asset from the public
domain to the private one was made for public utility cause . The formula under the law that sends art.
863 points. e) in its final part, must be interpreted by reference to the Law no. 213/1998 which
regulates the ways in art. 8-10, that we previously reviewed. f) by other means established by law.
As the old art. 7, of Law no. 213/1998 or Article 863 of the current text of the Civil Code does not
exhaust the ways in which the public ownership may be achieved allowing, by the standard of
reference, that this area to be extended to other methods provided by law. Formula set by law, must
determine the category of law to which the text refers. For reasons that we mentioned earlier, we
consider that it should be an organic law under Art. 73 para. 3 letter. m) of the Constitution. One way
that the Civil Code doesn’t states but was included in the former Article 7 of Law no. 213/1998 was
the natural way of acquisition of public property. We can not share its elimination, as long as the
Civil Code makes continuously reference to the fact that is about assets that by their nature or
purpose of the law, are of public interest or use. It was natural, therefore, to be maintained and
included among the cases of acquisition of public property also the natural way. The redemption
of public ownership is object of regulation of the Article 864 from the Civil Code .
We appreciate the dedication through the Civil Code of some provisions on this matter.
The regulatory sequence is natural after the regulation of the way of acquisition, to be regulated
also the ones of redemption of public ownership. There are provided three ways for redemption of
public ownership, and all of them have to intervene under the law, namely: a) destruction of the
asset, which attracts loss of property in its materiality; b) transfer of the asset in the private domain,
or more correctly, its transfer from public to private domain, in order to be consistent with the
established language regarding the acquiring of public ownership
13
. c) when the use or the public
interest to the asset affected was stopped . It is natural that stopping this attracts the stopping of
being a public asset and redemption of public ownership of this asset.
By the Article 865 is regulated the defense of public ownership. The text operates with two
concepts whose meaning must be cleared to their proper understanding, namely: a) the holder of
public property, which is the state or administrative-territorial unit. To the quality of owner of public
ownership corresponds the grant of a legal obligation to defend in court the public property. The
text states that "the obligation of defense in court belongs to the public property holder." b) The
holders of the appropriate rights of public property, rights that are object of regulation of Title VI,
which are called "real rights corresponding to the public property". It is about three such rights,
namely the right of management, concession right and right to use free of charge. Paragraph 2 of
Article 863 provides that relevant rights holders of public property, respectively the property
right holders, the management right holders , concession or use free of charge, shall: a) to inform the
owner of any disorder brought to public ownership; b) to introduce in the process the owner of the
public property, as provided by Code of Civil Procedure. It's about the Articles 74-76 of the Code of
Civil Procedure governing institution of presentation the right holder
14
.
The l ast paragraph of this article provides that the provisions of Article 563 of the Civil Code
shall apply accordingly. This article covers: "Action for recovery of possession (1) The owner of
property has the right to claim f rom the owner or from other person who holds it without right. He is
also entitled to compensation, if any. (2) right of action claim is indefeasible, unless otherwise
provided by law. (3) The right to property acquired in good faith, under the law, is fully recognized.
(4) A decree that upheld the action in the claim is opposable and can be enforced against third party
purchaser, under Code of Civil Procedure. "
13
It is about art. 863 lit. e) of Civil Code
14
Art. 74 The accountant who helds an asset for another or exercises on behalf of another a right on a thing may show
the one in whose name holds the thing or exercises the right, if it was sued by a person claiming a real right to the thing.
Art. 75 The request shall be reasoned and shall b e submitted before the first court of law within the prescribed period
for filling defense. If the meeting is not mandatory, application may be made no later than the first term .
Art. 76 (1) The application, together with accompanying documents and a copy of the request of the proceedings will
be communicated to the holder of the right, as shown. (2) The provisions of art. 63 and 64 shall apply accordingly. (3) If the
holder of the right r ecognisez the arguments of accountant and plaintiff consents, he will take the place of the accountant,
which will be removed from the process.
(4) If the plaintiff disagrees with the rep lacement or the one who appears as holder fails to appear or c ontests the claims
of the applicant, the third party intervener get the quality of t he main intervenient, with the provisions of art. 61 and Article
63-65 applying properly.
8
V. Real property rights corresponding to the public property Chapter II of Title VI on public
property is devoted to actual proper regulation of real public property rights. In the doctrine of
public law, this issue is treated as generic ways of enhancing of assets public ownership, formula
which is also found otherwise, in the content of Law no. 554/2004 of administrative contentious in the
art. 2. 1 letter. c) second sentence, assimilates to the administrative acts also contracts concluded by
public authorities dealing with the upgrading of public assets and execution of public works, public
services, public procurement. Civil Code establishes three real rights corresponding to the public
property, namely the right of management, concession right and right to use free of charge.
The constitutional basis of this provision is the art. 136 par. 4, second and third sentence, which
provides that publicly owned property, in accordance with the law, can be managed by public
autonomous or public institutions, can be leased or rented and also can be put into free use for
public institutions.
Comparing the constitutional text with the provisions contained in Chapter II of Title VI of the
Civil Code, we find that the Civil Code does not mention the lease contract, which determines us to
ask whether the renting represents or not longer represents a way of revaluation of public
property. The answer is obviously yes, renting remains a legal procedure, since it is provided in
the Constitution. The loss of such quality could occur only if the Constitution would be changed and
it would be removed from its text content, which did not happen. The things are different , and this
results from the fact that the provisions governing the lease of public ownership from the Law no.
213/1998 were maintained in law, being about art. 14 in conjunction with art. 16 of it.
VI. CONCLUSION
We aimed to detect in this article how the current Civil Code is governing the public property, in a
vision that is specific to an author of public law. Which is the follower of the concept that the concept
of public domain and public property is not the same, the latter being only a part of the public, which
includes, in addition to the public goods, also some pr ivate goods that have some special significance
in a State , hence the thesis of public domain in the sense lato-sensu, which was founded by the
professor Antonie Iorgovan and whose content we strive to develop it by our works.
In our view, the current provisions of the Civil Code would be necessary to clarify things and not to
fuel disputes between specialists in public law and those in private law regarding the meaning of the
concepts , range of goods and legal regime of the institutions. Unfortunately, things are far from this
and the current provisions rather to simplify more complicates the things. Therefore we consider that
in perspective many of the current provisions of the Civil Code should be reconsidered, for which
purpose I have made in this material, some proposals. The main coordinates that should be considered
are: a) rethinking on the whole, of the regulation, for the purpose of preserving in the Civil Code, only
those general provisions, following that the remaining provisions to be contained in an organic law, by
which to regulate the general legal status of the public and public property;
b) clarifying the relationship between public property, public and private domain of the state or
territorial administrative unit.
Refferences
1. Dana-Tofan Apostol , Administrative Law, University Course, CH Beck Publishing House,
Bucharest, 2009, ed. II, Volume II, 2009, pp. 127-138; Collectively, New Civil Code, Comments,
doctrine, jurisprudence, ed. Hamangiu, Bucharest, 2012;
2. Emil Bălan, Administrative Law of the goods, ed. C H Beck, Bucharest, 2007, pp.64-74 and
120-126;
3. Corneliu Bârsan, Mary Gaita, Pivniceru-Mary Mina, Real rights, European Institute, Iasi, 1997,
pp. 47-59;
4. Antonie Iorgovan, Administrative Law Treatise, All Beck Publishing House, Bucharest, 2005,
vol II, ed. Fourth, pp. 171-178 and 210-221;
5. Verginia Vedinaş, Administrative Law, Legal Publishing House, Bucharest, 2012, edition VII,
pp. 225-250;