The Duality of Categories of Persons for Whom Civil Liability Is Involved. Aspects of Civil Law and Family Law

• Author: Mirela Costache, Tiberiu N. Chiriluta
• Pages: 131-137

Legal Sciences in the New Millennium

131

Duality of Categories of Persons for whom Civil Liability of Parents is

involved. Aspects of Civil Law and Family Law

Mirela P. Costache1, Tiberiu N. Chiriluţă2

Abstract: Objectives: In this study, we have analyzed the continuity of an old con cern, a brief aspect of

the broad issue of parental liability for the deed of a juvenile or a minor under court interdiction. Prior

Work: From the analysis of art. 1372 of the Civil Code the scope of this type of liability is easily noticed,

and in this paper we only analyze the category of liable persons for the purpose of repairing the damage.

Approach: In relation to the two categories of persons, that of the minor and that of the person under

court interdiction, there will also be highlighted interpretations from the field of family law, points of

view regarding situations arising from the interpretation of the text of the law. In addition, concepts such

as age, the presence or absence of minor discernment, anticipated exercise capacity, tort capacity will be

correlated.

Keywords: exercise capacity; discernment; minor under court interdiction; age

1. Introduction

The connotation that emerges from Descartes's statement “Before being parents, we were children”,

allows us to assert that the child is still at the center of the human universe. Beyond its social and

philosophical content, this assertion develops a few consequences in the legal terms, as it expresses the

child-parent-family relationship3, under all principles, rights and obligations, by directing our attention

to the content and the way of exercising the legal relations among parents and children. We will

develop in this study a particular aspect of this report, namely the “legal algorithm” whereby the law

obliges parents or guardians to be responsible and to repair the damage caused by their minor

children or the child without discernment. We therefore place at the center of the discussion an

analysis of the provisions of art. 1372 of the Civil Code, but also other texts of family law or special

laws with direct reference to this issue.

The minor, within the meaning of Law no. 272/2004 on the protection and promotion of the rights of

the child, republished and updated, the child, which we place in the center of the parental and

institutional concerns, is subjected by the human factor to many vulnerabilities, anxiety, consumerism,

challenges, morals, deprivation. These circumstances, along with belonging to a particular subculture

or inappropriate models to which they are attracted, cause them to act in directions that draw the illicit,

and implicitly, the sanction. If in criminal law the liability is a personal one and it cannot be

1 Senior Lecturer, “Dunarea de Jos” University of Galati, Romania, Address: 47 Domnească Str., Galati 800008, Romania,

Tel.: +400336 130 108, Corresponding author: costache_mirrela@yahoo.com.

2 PhD in progress, “τvidiu” University, Constanta, Romania, Address: 124 Mamaia Blvd., Constanța 900527, Romania, E-

mail: chirilutatiberiu@yahoo.com.

3 For a point of view that reflects the sociological and legal perspective of the family see (Lupşan, 2001, pp. 6-10).