The Attributions Of The Family Council

Author:Mihai-Adrian Damian
Position:Doctoral School of the Faculty of Law, University of Craiova, Romania
Pages:368-375
SUMMARY

The Civil Code provides for the attributions for the family council a framework provision which is comprised in one article, namely Art 130. The legal text is complex, being structured of 4 paragraphs creating an image of ensemble over the role fulfilled by this guardianship organ, as well as over its specific means of functioning. The current paper aims to approach this issue starting from this... (see full summary)

 
FREE EXCERPT
THE ATTRIBUTIONS OF THE FAMILY COUNCIL
PhD. student Mihai-Adrian DAMIAN1
Abstract
The Civil Cod e provides for the attributions for the family council a framework provision which is comprised
in one article, namely Art 130. The legal text is comp lex, being structured of 4 paragraphs creating an image of
ensemble over the role fulfilled by this guardianship organ, as well as over its specific means of functioning. The
current pa per aims to approach this issue starting from this framework regulation, but in the same time to consider
each legal provision through which the legislator sets tasks for the family council con verging towards its role of
supervision of the guardianship.
Keywords: guardianship, family council, council member, advisory opinion s, decisions.
JEL Classification: K36
1. General provisions
In this section we shall debate upon the first three paragraphs of Art. 130 of the Civil Code,
whose marginal name is “Attributions” and which contains provisions related to the type of the
documents which could be issued by the family council and the procedure for their adoption.
Beside the competence attributed by the legislator in order to issue advisory opinions and
decisions for the cases in which are necessary according to the law, the family council may stand in
justice as plaintiff for the litigations for which the Code states his active procedural quality2.
2. The documents issued by the family council
The supervision of the guardianship is fulfilled by the family council through opinions and
decisions that this collegial organ issues in accordance with the law. Thus, the Civil Code states two
categories of documents in the competence of the council: advisory opinions and decisions. The
advisory opinions are to be issued upon the request of the guardian or of the guardianship court and
have the role to emphasize the perspective of the council towards a legal operation with effects
against the protected person or his assets. As the legal text states, their legal force is reduced, for as
long as they have an advisory feature, thus the guardian or the court shall have the freedom to
decide without taking into consideration the advisory opinion favorable or not for a certain legal
operation.
Though the current Civil Code states for the family council the competence to issue both
opinions and decisions we need to mention that the powers of the council are considerably
diminished in relation to the importance given by the legislator in 1864. One can state that the
statement of this legal institution is found in the new codification of the private law only because
the legislator aimed to be in line with the other legal systems of reference for the Roman-Germanic
law, without the real purpose of transforming the council into a valid organ of the guardianship. The
doctrine subsequent to the former code3 describes the family council as being the organ which
empowers the guardian to conclude different documents on behalf of the protected person, while the
guardian simply resumes in carrying out the decisions of the council.
Despite the fact that the advisory opinions are preponderant if we not the regulation of
guardianship in its ensemble, the family council has the ability to decide in certain cases for which
the law considers that the protected person’s interest is better protected if the council’s opinions will
1 Mihai-Adrian Damian - Doctoral School of the Faculty of Law, University of Craiova, Romania, damian_mihai_adrian@yahoo.com.
2 We are talking about the action for annulment of the legal acts concluded with the non-compliance of the provisions stated by Art
144 and 146 and about the complaint against the acts and offences of the guardian.
3 Constantin Hamangiu, Ioan Rosetti Bălănescu and Alexandru Băicoianu, Tratat de drept civil româ n, 1st Volume, All Beck,
Bucharest, 2002, p. 410.

To continue reading

REQUEST YOUR TRIAL