Accesiunea imobiliară artificială

Aceasta a fost denumită astfel, deoarece se realizează prin intervenţia omului. În acest sens Codul civil prevede faptul că: orice construcţie, plantaţie sau lucru făcut în pământ sau asupra pământului, sunt prezumate a fi făcute de către proprietarul acelui pământ cu cheltuiala sa şi că sunt ale lui, până ce se dovedeşte din contra (art.492 C.civ).

În doctrina interbelică a fost exprimată opinia conform căreia pentru înlăturarea prezumţiei prevăzute de art.492 C.civ prin proba contrarie trebuie stabilite două puncte: că altă persoană în afara proprietarului a executat lucrările respective şi doi, că acea persoană a executat lucrările pe cheltuiala sa. Acest din urmă punct trebuie neapărat stabilit deoarece dacă s-ar stabili numai primul, persoana care a efectuat lucrările ar fi putut lucra ca mandatar al proprietarului sau în baza gestiunii de afaceri.^[1]

Credem că sunt binevenite prevederile cuprinse în Proiectul noului Cod civil , în art.445, alin.3, prin care se defineşte termenul de lucrare, ca fiind plantaţia precum şi amenajările aduse unui fond, care nu se încorporează în mod durabil în acesta .

Sunt reglementate de către textele legale două cazuri de accesiune imobiliară artificială şi anume: accesiunea construcţiilor, plantaţiilor sau a altor lucrări făcute de un proprietar pe terenul său cu materialele aflate în proprietatea altei persoane şi respectiv accesiunea construcţiilor, plantaţiilor sau a altor lucrări făcute de o persoană cu materialele sale pe un teren aflat în proprietatea altuia

■.1.Accesiunea construcţiilor, plantaţiilor sau a altor lucrări făcute de un proprietar pe terenul său cu materialele aflate în proprietatea altei persoane

În această situaţie, după cum prevede şi art. 493 C.civ, proprietarul pământului (…) este dator să plătească valoarea materialelor , devenind în acest mod, proprietarul şi a construcţiilor, plantaţiilor sau lucrărilor astfel ridicate. El poate fi obligat şi la plata unor daune-interese. Cu toate astea proprietarul materialelor nu are dreptul de a le ridica.

■.2.Accesiunea construcţiilor, plantaţiilor sau a altor lucrări făcute de o persoană cu materialele sale pe un teren aflat în proprietatea altuia

În această situaţie, principiul este acela că proprietarul terenului devine prin accesiune proprietarul construcţiilor, plantaţiilor sau altor lucrări având în schimb obligaţia de a-l despăgubi pe constructor. Art.494 C.civ face o distincţie între constructorul de bună-credinţă şi cel de rea-credinţă.

În doctrină s-a pus problema precizării conţinutului juridic al dreptului de accesiune. Astfel în cazul accesiunii imobiliare artificiale prevăzute de art.494 C.civ., în cazul constructorului de rea-credinţă efectul achizitiv de proprietate al accesiunii este condiţionat de exercitarea dreptului de accesiune de către proprietarul terenului, acest atribut de alegere fiind de esenţa dreptului mai sus menţionat. Prin urmare proprietarul terenului are un drept potestativ, întrucât el are puterea să intervină în mod unilateral şi să modifice sau să stingă o situaţie juridică preexistentă, în care autorul lucrării are anumite drepturi şi interese^[2].

Prin constructor de bună-credinţă se înţelege persoana care ridică o construcţie, face o plantaţie sau o altă lucrare pe un teren, fără a avea cunoştinţă că respectivul teren se află în proprietatea altei persoane.

Conform reglementărilor posibile şi viitoare ale Codului civil, art.451, constructorul este de bună-credinţă numai dacă se întemeiază pe cuprinsul cărţii funciare în care, la data edificării construcţie, este înscris ca proprietar al terenului. Mai mult decât atât, buna-credinţă nu poate fi invocată de cel care construieşte în lipsa sau cu nerespectarea autorizaţiilor cerute de lege^[3]. Dispoziţiile mai sus enumerate sunt aplicabile şi constructorului care se întemeiază pe un drept de superficie sau pe orice alt drept, care potrivit legii, îi permite, edificând pe terenul altuia să devină proprietarul construcţiei.

În această situaţie proprietarul terenului devine în mod obligatoriu proprietarul construcţiei, plantaţiei sau al lucrării urmând a-l despăgubi pe constructor. De asemenea proprietarul pământului nu va putea cere ridicarea sus-ziselor construcţii, plantaţii sau lucrări, dar va avea dreptul sau de a înapoia valoarea materialelor şi preţul muncii, sau de a plăti o sumă de bani egală cu aceea a creşterii valorii fondului.

Prin urmare proprietarul terenului are la îndemână două posibilităţi cât priveşte despăgubirile datorate constructorului: poate să achite acestuia contravaloarea materialelor şi a muncii prestate, sau poate să-i plătească o sumă de bani echivalentă cu sporul de valoare adus terenului său prin ridicarea construcţiei, plantaţiei sau a lucrării respective.

Dacă, în cazul în care, în momentul invocării accesiunii, construcţiile, plantaţiile sau lucrările nu mai există datorită unui caz fortuit, constructorul nu mai are dreptul să ceară vreo despăgubire, deoarece în acest caz proprietarul terenului nu mai obţine nici un profit din construcţiile respective, afară de cazul când constructorul a fost de bună-credinţă^[4].

Numai în aparenţă constructorul de rea-credinţă are o situaţie mai favorabilă decât cel de bună-credinţă, primul dintre aceştia putând fi silit de către proprietarul fondului să primească o sumă mai mică drept despăgubiri, în caz contrar fiind obligat să dărâme sau să ridice construcţiile ceea ce ar fi pentru el o soluţie dezavantajoasă^[5].

Indiferent de buna sau reaua credinţă a constructorului acesta are un drept de retenţie cu privire la construcţiile, plantaţiile sau lucrărilor efectuate până la plata integrală a despăgubirilor convenite. În acelaşi sens constructorul are o creanţă împotriva proprietarului terenului, acţiunea fiind prescriptibilă în termen de trei ani de zile, termenul de prescripţie curgând de la data la care proprietarul terenului ridică pretenţii cu privire la construcţiile respective^[6].

În doctrina interbelică a fost dezbătută pe larg problema dreptului de retenţie al constructorului. Astfel după o opinie, aceasta aparţine atât constructorului de bună cât şi celui de rea-credinţă, până ce i se va plăti preţul de către proprietarului fondului. După altă opinie, constructorul, fie chiar de bună-credinţă, nu are dreptul de retenţie asupra construcţiilor făcute deoarece acest drept care este un adevărat privilegiu, nu poate fi acordat în alte cazuri decât cele prevăzute de lege. Nu în ultimul rând, deşi constructorul nu are un drept de retenţie, instanţele de judecată au dreptul, atunci când proprietarul fondului este insolvabil şi luând în considerare buna-credinţă a constructorului să-l oblige pe acesta să părăsească construcţiunile făcute numai sub condiţiunea că proprietarul să-i plătească în prealabil indemnitatea plus valutei. După o ultimă opinie, dreptul de retenţie aparţine numai constructorului de bună-credinţă nu şi celui de rea-credinţă.^[7]

De asemenea a fost exprimată opinia conform căreia art.480 C.civ. definind proprietatea pune accent pe două atribute ale acestui drept: caracterul absolut şi caracterul exclusiv. În sens tradiţional acesta din urmă desemnează excluderea altora de la exercitarea oricăror puteri asupra lucrului. Prin urmare exclusivismul exprimă vocaţia acestui drept de a fi sancţionat în mod necesar în natură, chiar în lipsa unui prejudiciu şi în pofida bunei-credinţe a celui care a violat dreptul. Imposibilitatea proprietarului terenului de a-l obliga pe constructorul de bună-credinţă să ridice construcţiile aduce atingere posesiunii, folosinţei şi dreptului de dispoziţie asupra terenului. Se consideră ca inadmisibilă sacrificarea dreptului de proprietate, cel mai deplin drept, pe altarul bunei-credinţe a unui terţ.^[8]

O altă situaţie priveşte posibilitatea ridicării unei construcţii care depăşeşte propriul teren încălcând terenul altuia, din cauza stabilirii în mod greşit a limitelor fondului. Dacă încălcarea terenului este imperceptibilă, din considerente de echitate se poate recunoaşte dreptul de proprietate al constructorului asupra terenului în schimbul unei despăgubiri stabilite de instanţă. Această soluţie este şi în interesul proprietarului terenului deoarece în loc să obţină o hotărâre de demolare el va încerca, mai degrabă, să negocieze un preţ mai bun pentru vânzarea fragmentului de teren aflat sub construcţie^[9].

În acelaşi sens, în Proiectul noului Cod civil, sunt cuprinse în art.452 reglementări cu privire la construcţiile edificate parţial pe terenul constructorului. În acest caz proprietarul vecin, poate, în schimbul unei despăgubiri, să dobândească întreaga construcţie, dacă cel puţin o jumătate din suprafaţa ocupată de construcţie se află pe terenul său. Odată cu proprietatea asupra întregii construcţii, proprietarul vecin dobândeşte şi un drept de superficie asupra părţii ocupate din terenul constructorului, însă numai pe durata de existenţă a construcţiei. Este prevăzută şi sancţiunea decăderii pentru proprietarul vecin, privitoare la dobândirea acestor drepturi, dacă nu notifică , în scris, cererea referitoare la acestea, constructorului în termen de un an de la finalizarea construcţiei. Dacă cele două părţi nu se înţeleg, instanţa va stabili despăgubirea care va urma să fie plătită constructorului. Dacă acesta a fost de rea-credinţă despăgubirea se reduce la o treime din această sumă. Drepturile prevăzute în favoarea proprietarului vecin nu se pot dobândi înainte de plata integrală a despăgubirii. Înscrierea în cartea funciară a dreptului proprietarului vecin se va face în temeiul convenţiei părţilor sau, după caz, al hotărârii judecătoreşti cu efect constitutiv de drepturi.

Prin constructor de rea-credinţă se înţelege persoana care ridică o construcţie, face o plantaţie sau o altă lucrare ştiind că terenul respectiv se află în proprietatea altei persoane. Dovada relei-credinţe este în sarcina proprietarului.

Potrivit art.494, alin.1 şi 2 C.civ proprietarul are opţiunea de a cere ridicarea plantaţiilor şi a construcţiilor aceasta făcându-se pe cheltuiala celui care le-a făcut şi după caz constructorul putând fi condamnat la daune-interese pentru prejudiciile sau vătămările ce le-a putut suferi proprietarul locului. Ori, dacă proprietarul voieşte a păstra pentru dânsul acele plantaţii şi clădiri, el este dator a plăti valoarea materialelor şi preţul muncii, fără să se ia în considerare sporirea valorii fondului, ocazionată prin facerea unor asemenea plantaţii şi construcţii.

La stabilirea cuantumului sumei pe care trebuie să o plătească proprietarul terenului^[10] trebuie scăzută valoarea fructelor pe care constructorul eventual le-a perceput, deoarece acesta fiind de rea-credinţă nu are dreptul la fructele civile pentru imobilul în cauză.^[11]

În cazul în care lucrările făcute nu pot fi distruse, ridicate, cum ar fi cazul, de exemplu, a unei lucrări de defrişare, atât în cazul bunei cât şi în cel al relei-credinţe a celui care a executat lucrarea respectivă, există un drept la despăgubiri al acestuia din urmă faţă de proprietarul terenului pentru sporul de valoare adus fondului.^[12]

În sensul tezei reglementate de art.494, instanţele nu vor putea deduce reaua-credinţă numai din faptul că cel care a construit, plantat sau executat lucrări pe un teren ce nu-i aparţine nu are titlu asupra terenului ci vor cerceta condiţiile în care s-au făcut respectivele construcţii, etc. a căror desfiinţare se cere. De asemenea instanţele vor cerceta dacă acţiunea proprietarului fondului nu îmbracă aspectele unui abuz de drept prin pasivitatea sau acceptarea acestuia de a face lucrările făcând opunerea sau acţiunea pentru demolare numai după terminarea acestora. Instanţele vor căuta să înlocuiască soluţia neeconomicoasă a dărâmării sau desfiinţării construcţiilor, plantaţiilor sau a altor lucrări prin despăgubire în bani ori de câte ori această soluţie este mai echitabilă.^[13]

Cu titlu de inovaţie, Proiectul noului Cod civil prevede în art.449, alin.1 că atunci când proprietarul optează pentru păstrarea construcţiei acesta datorează o despăgubire care, la alegerea sa, trebuie să acopere doar o pătrime fie din valoarea materialelor şi a manoperei, fie din sporul de valoare adus fondului. Mai mult decât atât, proprietarului nu i se poate opune, în nici un caz, pasivitatea pe care ar fi vădit-o pe durata edificării construcţiei (art.454 din mai sus menţionatul act normativ).

În doctrina franceză a fost exprimată opinia conform căreia regulile care guvernează materia accesiunii imobiliare artificiale sunt inaplicabile coproprietarilor care construiesc pe timpul indiviziunii, iar construcţia rezultată astfel cade pe lotul altuia. Coindivizarii nu a calitatea de terţi şi faţă de construcţia, sau lucrarea respectivă sunt aplicabile regulile gestiunii de afaceri. În acelaşi sens, conform jurisprudenţei franceze, dacă uzufructuarul a făcut construcţii noi pe fondul care face obiectul uzufructului, proprietarul acestui are dreptul de a le conserva fără a plăti nimic^[14].

De asemenea în doctrina română există o opinie conform căreia coproprietarii au dreptul să ceară coproprietarului constructor să ridice lucrările făcute de el pe fondul comun, deoarece în timpul cât durează indiviziunea nici unul dintre coproprietari nu are dreptul, în principiu, să facă vreo inovaţie materială asupra fondului comun fără consimţământul celorlalţi coproprietari.^[15]

Cu privire la momentul dobândirii dreptului de proprietate se consideră, în mod tradiţional, că accesiunea se produce de plin drept, pe măsura edificării construcţiei, fără vreo manifestare de voinţă din partea proprietarului terenului. Însă, conform unei alte opinii proprietarului terenului dobândeşte un drept de proprietate pur şi simplu asupra lucrării numai în momentul în care îşi manifestă voinţa de o lua în stăpânire, indiferent dacă autorul lucrării este de bună sau rea-credinţă. Aşadar, dreptul de accesiune se naşte pe măsura încorporării materialelor în teren, dar dreptul de proprietate pur şi simplu asupra lucrării este dobândit de proprietarul terenului numai în momentul exercitării dreptului de accesiune.^[16]

În Proiectul Codului civil este reglementat, în art.445, alin.2, că dreptul de proprietate al construcţiei sau lucrării se naşte, pe măsura edificării, cu începere de la data încorporării fundaţiei, respectiv începerii lucrării.

Această reglementare a fost criticată deoarece se consideră că redactorii Proiectului Codului civil nu au fost consecvenţi în aplicarea acestei concepţii. Pe de o parte în ipoteza în care constructorul este de rea-credinţă, proprietarul terenului păstrează dreptul de a cere ridicare lucrării de pe teren, el nedevenind proprietar asupra acesteia decât dacă doreşte şi înţelege să-şi exercite dreptul de accesiune pentru a păstra lucrarea în proprietate (art.449, alin.1 din Proiectul Codului civil). Pe de altă parte, în situaţia reglementată în art.452 din Proiectul Codului civil, adică în situaţia în care constructorul a făcut lucrarea parţial pe terenul său şi parţial pe terenul vecinului, soluţia adoptată contrazice şi ea ideea că proprietarul terenului dobândeşte dreptul de proprietate asupra lucrării pe măsura încorporării materialelor în teren. Se propune adoptarea concepţiei proprietăţii rezolubile atipice^[17].

Cât timp proprietarul nu-şi valorifică dreptul de a invoca dobândirea proprietăţii prin accesiune asupra construcţiilor şi lasă pe constructor să le folosească nestingherit, el nu poate fi obligat să-l despăgubească pe constructor. Astfel ar însemna ca peste voinţa sa proprietarului terenului să i se creeze o situaţie împovărătoare, deşi , potrivit reglementărilor art.494 C.civ, neajunsurile trebuie suportate de către constructor. Instanţele sunt obligate să caracterizeze corect natura juridică a dreptului constructorilor asupra construcţiei, drept care este unul de creanţă, deci un drept personal şi nu un drept de proprietate. Trib. Supr.sec.civ., Decizia nr.2768/1888

În situaţia în care construcţia s-a edificat pe baza unei convenţii, proprietarul fondului nu va putea cere ridicarea lucrărilor, iar despăgubire acordată constructorului va fi calculată în funcţie de valoarea de circulaţie a imobilului, şi nu plătind doar valoarea materialelor şi a muncii. Trib.Supr., sec.civ., Decizia nr.720/1989

Chiar dacă edificarea construcţiei sau executarea plantaţiei s-a făcut cu bună-credinţă, nu se poate naşte un drept real, ci un drept de creanţă. Există însă posibilitatea la care se referă art.492 C.civ. în partea finală, de a fi înlăturată prezumţia dreptului proprietarului terenului asupra construcţiilor de pe teren dacă se dovedeşte că acestea au fost efectuate de altă persoană pe baza unei convenţii care să justifice dobândirea dreptului de proprietate al constructorului asupra construcţiei respective cât şi dreptul său de folosinţă asupra terenului, aceste drepturi concretizând dreptul real de superficie. C.S.J., sec.civ., Decizia nr.892/1994^[18]

---

[1] C. Hamangiu, N. Georgean, op.cit., p. 74.

[2] Acest drept potestativ are în conţinutul său juridic un element: alegerea momentului în care operează efectul achizitiv de proprietate al accesiunii. Ca drept potestativ, dreptul de accesiune este imprescriptibil şi nesusceptibil de exercitare abuzivă. A se vedea V. Stoica, Accesiunea imobiliară artificială (I), în Dreptul nr.1/2006, p.41 şi urm.

[3] Principalele reglementări în această materie sunt cuprinse în Legea nr.50/1991 privind autorizarea executării de construcţii, republicată în M.Of nr.3/1997 şi modificată substanţial de prin Legea nr.453/2001, în normele de aplicare a Legii nr.50/1991, precum şi în Legea nr.350/2001 privind amenajarea teritoriului şi urbanismului. Ca regulă generală, executarea oricăror lucrări de construcţii, fie că sunt civile, agricole, industriale sau de orice altă natură este permisă numai în baza şi cu respectarea autorizaţiei de construire. Autorizaţia de construire se emite în temeiul şi cu respectarea documentaţiilor de urbanism şi de amenajare a teritoriului, avizate şi aprobate conform legii, înainte de a solicita eliberarea acestei autorizaţii persoana interesată trebuind să obţină în prealabil certificatul de urbanism.

[4] C. Hamangiu, N. Georgean, op.cit., p.81.

[5] O. Ungureanu, C. Munteanu, op.cit., p. 380.

[6] Acţiunea personală cu privire la dreptul e a obţine despăgubiri se prescrie în termen de 3 ani care începe să curgă din momentul în care proprietarul şi-a manifestat intenţia e a-şi însuşi construcţia. Această manifestare de voinţă trebuie să fie neechivocă, putând să rezulte şi din împrejurări e fapt. Decizia sec.civ. nr.236 din 26 ian.1974 în C.D. pe anul 1974, p.68-70.

[7] C. Hamangiu, N. Georgean, op.cit., p.81 şi de asemenea A. Sebeni, Scurte consideraţii teoretice asupra dreptului de retenţie, în Supliment PR nr.1/2003, p.164-176.

[8] În acest a se vedea Decizia nr.91 din 4 martie 2003 referitoare la excepţia de neconstituţionalitate a dispoziţiilor art. 494, alin.3, teze finală a Codului civil, cu notă critică de I. Deleanu, în PR nr.3/2003, p.25-29. Pentru opinia contrară conform căreia proprietarul terenului îşi păstrează toate atributele dreptului de proprietate asupra terenului şi dobândeşte în plus un drept deplin de proprietate asupra construcţiilor efectuate de terţul de bună-credinţă pe terenul său, o eventuală pagubă patrimonială care ar rezulta pentru proprietarului terenului din aplicarea art.494, alin.3 C.civ neînsemnând o expropriere a unui drept de proprietate a se vedea Decizia nr.91 din 4 martie 2003 referitoare la excepţia de neconstituţionalitate a dispoziţiilor art. 494, alin.3,teza finală a Codului civil, cu notă critică de B. Diamant, în PR nr.4/2003, p. 24-28.

[9] Pentru amănunte, O. Ungureanu, C. Munteanu, op.cit., p.385 şi urm şi de asemenea D. Gherasim, op.cit., p.180.

[10] Pentru propuneri de lege ferenda a se vedea V. Stoica, Accesiunea imobiliară artificială (II), în Dreptul nr.2/2006, p. 39-67.

[11] Pentru amănunte D.Gherasim, Buna-credinţă în raporturile juridice civile, Editura Academiei Republicii Socialiste România, Bucureşti, 1981, p. 178.

[12] C. Hamangiu, N. Georgean, op.cit., p.80

[13] O. Ungureanu, C. Munteanu, op.cit., p. 383.

[14] Pentru alte ipoteze M. Planiol, G. Ripert, Traite pratique de droit civil francais, Tome III, Les biens, Editura Librarie Generale de Droit et de Jurispruence, Paris, 1926,p. 266 şi urm.

[15] C. Hamamgiu, N. Georgean, op.cit., p. 83.

[16] Pentru amănunte, V.Stoica, Accesiunea...(I), p.47 şi urm.

[17] În această concepţie dreptul de proprietate asupra lucrării nu este, între momentul încorporării materialelor în teren şi momentul exercitării dreptului de accesiune, un drept pur şi simplu, ci un drept de proprietate rezolubilă, în formă atipică. Exercitarea dreptului de accesiune de către proprietarul terenului se prezintă ca o adevărată condiţie, a cărei împlinire stinge dreptul de proprietate sub condiţie rezolutorie asupra lucrării pe care îl are autorul acesteia şi transformă dreptul de proprietate sub condiţie suspensivă asupra lucrării pe care îl are proprietarul terenului într-un drept de proprietate pur şi simplu. Pentru amănunte, V. Stoica, Accesiune…(I), p. 51 şi urm.

[18] A. Pena, Accesiunea imobiliară şi uzucapiunea. Culegere de practică judiciară. Ediţia a II-a, Editura All Beck, Bucureşti, 2004, p.38 şi urm.

GENERAL CONSIDERATIONS REGARDING COMPETITION, UNLAWFUL AGREEMENTS AND ECONOMIC CONCENTRATIONS

Title IV of the Constitution of Romania is dedicated to the economy and finances of Romania, art. 134, paragraph 1 declaring: “the economy of Romania is a market economy, based on free initiative and competition”. This new version of the text underlines the important role of the free initiative, as well as the place or the environment it works in – the competitional economy. The next paragraph presents the way the legislator understands the responsibilities of the state the latest having the role to assure, among other things, the freedom of trade, the protection of the loyal competition, the creation of the frame adequate for the valorisation of all the factors of production, all these creating the premises of the economic freedom, as fundamental right established by art. 45 of the Constitution. 1

The state’s deliberated manipulation of a certain number of means in order to attain a certain aim, is known under the name of economical policy. 2 In order to concretise, when it is spoken about the state, it is advisable to keep in mind the complex ensemble of public authorities and institutions, with attributions in different domains, comprising in extent the legislative and executive power, at the central level as well as at the local one. In the present case, the Parliament settled the domain of competition, creating, in the same time, an autonomous administrative authority – the Council of Competition – and another one subordinated to the Government, the Office of Competition.

In the literature of speciality it was discussed a lot if it is necessary or not for the state to interfere in economy in order to regulate the market mechanisms and about the concrete way of manifestation of its interference. There are two conceptions situated on extreme positions, characterized by the fact that they are, in the same measure, utopian. We are speaking about the theory of the “invisible hand” of the market, that can be found between the principles of the capitalism and the plan economy, specific for socialism.

In the first one of the cases, economy adjusts itself, this procedure being synthesized by the syntagm “laissez faire, laissez passer, le monde va de lui même”. To this effect, the economic must be excluded from the state’s sphere of activity, because the economic organisms are governed by their own laws, in conditions of free competition and free initiative. 3 The key-question from the economic point of view “ How much and how must I produce?”, finds its answer and it is directed by the market’s invisible hand 4.

But this conception is not spared of critics. This theoretic type of economy may leave space to the creation of monopole, that, protected by the competition can maintain a high price, much more over the costs of production of a good or service, encouraging in this way the speculation5.

The planned economy is on the diametrically opposite position, economy in which the extremely important role of the free initiative is diminished, the economic agents being subdued by the central decisions.

The economic decision belongs to the central authority, the economy becoming, in this way, unipolar. All the decisions can be found in the centralized plan, and their accomplishment is compulsory, using, for this purpose, the state apparatus. The state sustains the economical relations between the subjects of the economy with vertical relations of administrative type, that, through their nature, exclude the idea of market and automatically the one of competition, not finding their purpose. The danger of this form of economy resides in the fact that, in its case, the state goes beyond its natural competence and arrives to adopt some measures with negative character, whose effects couldn’t be controlled anymore. This idea also finds itself in the main critics brought to this system, namely the fact that the invisible hand of the state that is politicised through its nature and, as a result, it is not protected by the danger of corruption, unlike the invisible hand of the market, that, being an impersonal mechanism, can’t be corrupted 6.

In the modern economic conditions, especially after having learnt the lesson given by the great economic crisis between the years 1929 and 1933, the self regulation of economy and its planning aren’t possible anymore. That is why, the two theories are considered to be utopian. Nowadays they mingle. For instance, even in the situation of a market economy, a form of intervention of the state in economy is accepted in unanimity, namely the institution of some special forms of control and surveillance of the activities of the financial – banking institutions or the legislative activity, through which the private property and the competition are protected7.

The economic policy of a state, without being judged from the political point of view, is characterized through an equilibrium that proves to be very delicate and sensible, situation that imposes the decision concerning the necessity to interfere or not to do it. This equilibrium differs from state to state and can’t be reproduced, the conditions determining it being very complex and private.

According to the constitutional text, the economy of Romania is a market economy. We understand by that a complex mechanism of coordinating people, activities and firms through a system of markets and prices. 8 One of its important features is the fact that it is motivated and led by the competition that is based on the free initiative of the economic agents.

We can’t speak about competition without making reference to “its place of display”, namely the market. It is a particular mechanism of coordination of the producers and consumers’ intentions (plans) and actions concerning some goods9. Because it is an interaction mechanism, the market can function only in the conditions of a high degree of freedom of the people in their economic activity. More specifically, the market is the meeting place of the offer representing the quantity of an X – product that an economic agent is willing to offer for sale and of the demand representing the quantity of merchandise that the consumers are willing to buy. We may speak about market in the real sense of the world, when the offer, the demand and the price are freely constituted.

The activity of production has as final step the satisfaction of the consummation need, so it is oriented in accordance with the demand manifested on the market. When more producers lead their activity towards the satisfaction of the same segment of demand, the phenomenon of competition appears.

The competition is considered to be a process extremely important, characteristic for the market economy, through which the firms are constrained to become efficient and to offer a large range of products or services at the lowest prices, manifesting themselves in an open confrontation and using different strategies and adequate actions, having as purpose the improvement of their position on the market.10

Because of the “stake of the game” there are cases when the competition misstates. That is why, it is accepted in unanimity the idea according to which the state must raise a legislative background in order to protect this phenomenon of the market. But, the idea according to which this one should refrain from deregulating it is accepted, at the same extent, the market respecting its verdict, in one way or another11.

The regulations from the field of the law are meant to assure, on one side, the free exercise of the competition and, on the other way, to sanction the illicit understandings or the unlawful agreements that disturb the competitional mechanism12.

So, there is a difference between the legislation concerning the unfaithful competition that assures the competition phenomenon and obliges all the participants to adapt themselves to the same rules and between the antitrust regulation that helps to the conservation and maintenance of the competition’s freedom, fighting off the obstacles in commerce and the abuses of the economic power.

Loyal competition and disloyal competition

The loyal competition was defined as the competition taking place in a legal environment, between the economic agents, based on the perfecting of the own activity13. This legal environment was given by the Law nr. 21/1996, with further completions and modifications, whose purpose is the maintenance and the stimulation of the competition and of a normal competitional environment in order to promote the consumers’ interests (art. 1 from the above mentioned law).14

The loyal competition exists when the sellers use the non-discriminating “fight” instruments in the conditions of this freedom on the market, in the respect of all the regulations given to the seller – buyer relationship. 15

Not a few times the competition misstates and this is the way in which an anti-competitional behaviour appears. The disloyal agreements are sanctioned in most of the countries by special laws, this also being the case of the law nr. 11/1991 concerning the disloyal competition. 16 So, by this law, it constitutes disloyal competition any act or fact against fair usance in the industrial activity and trade with goods, of execution of works, as well as of services’ carrying out17 .

The most frequent disloyal practices refer to the disparagement of the competitioners, introducing in circulation wrong affirmations concerning their activity, to the corruption of the competitioners’ staff, to the economic spying or to the advantages’ acquiring, as a result of the confusion that can be created between the own activity and the one of the competitioners, this one being known under the name of parasitic competition. The enumeration of the disloyal activities is the object of art.4 and 5 of the Law of the disloyal competition.

The economic theory also appreciates that the violation of the law, especially of the fiscal ones and the obtaining, on this base, of some lower costs and, as a result, the possibility to practice lower prices compared to other producers, is also a form of disloyal competition, called illicit or fraudulent. The practice of some small prices, sacrificing the own profit, is considered disloyal competition, known under the name of dumping18.

The disparagement represents any communication having as object a false affirmation concerning a competitioner and that might have a negative effect on his commercial prosperous business, intending, in this way, to tempt new clients, through wrong information. It always implies a direct attack against a certain economic agent. The target mustn’t be absolutely named, being sufficient an easy identification by the consumer. The effective protection against discrediting is independent from any proof of an effective damage or intention19 . This action is a contravention, in the sense of art.4, letter e of the Law of disloyal competition.

We understand by confusion, the act of disloyal competition that consists of the credible dissimulation of the own market activity of the author under the appearance of the distinctive signs of the affected competitioner or of a group of concurents20. This is usually done by creating similitudes with the firm, the emblem or the wrappings, by selling some goods with false mentions, and others21. The test for the basic type of confusion is to see if the similar mark resembles to the protected mark, so that it can produce confusion for a substantial number of usual consumers, regarding the commercial source of the goods or services.

So, art. 5 letter a of the mentioned law establishes that the use of a firm, invention, mark, geographical indication, model or industrial drawing, of an emblem or wrapping, capable to produce confusion with those legitimately used by another trader, is infringement of the law22.

The confusion, as well as the disparagement, as facts of competition, present a disloyal character if, besides the specific conditions they also fulfil the demand to be credible for the clients in cause. The credibility supposes a great diversity of material elements, but also a psychic element, being necessary that in the client’s mind an error of appreciation is possible, concerning the injured economic agent23.

Unlawful agreements

By unlawful agreements the competition law understands any expressed or tacit agreements between economic agents, any decisions of association or concerted practices between them, that may have as object the restriction, impediment or misrepresentation of the competition.

It can be done, for instance, by the concerted establishment of prices, by the limitation of the production control, by the dividing of the display markets, the limitation or impediment of the access on the market of other economic agents (art.5 paragraph 1 of the Law of Competition).

The generic term of agreements aims only at the agreements and practices whose object or effect could be unlawful. There is no limitation of the contract modalities of fulfilment, so they may be verbal, public or secret, being enough that the economic agents express their will in a determined way24. For instance, the agreement concerning the repartition and delimitation of the transportation lines between partners (also called pool agreement), each of them reserving the exclusivity to explore the established direction, excluding those who don’t take part in.

The enterprises associations’ decisions are considered to be acts of collective will emanated by the competent organ of the group suspected of unlawful behaviour. They may take different forms, as directives, rules, circular letters25.

The concerted practices represent o form of coordination between enterprises that willingly replace the risks of the competition with a practical cooperation between them. They don’t have all the elements of a contract, but they may inter alia come out of a coordination that may be recognized by the parallel behaviour of the participants. They suppose the reunion of some specific objective and subjective elements and, in the same time, of a negative condition26.

The Council of the Competition is the one that pronounces itself in a decision concerning the exception of some individual cases of agreements, decisions of association or concerted practices, only if the conditions stipulated by the Law of Competition, in art.2, are cumulatively accomplished, as, for instance, the one referring to the prevailing of the positive effects on the negative ones or the first of them are enough to compensate the reduction of the produced competition.

Once again, the Council of Competition regulated, through the Regulation concerning the application of art.5, paragraph 2 of the Law of Competition nr. 21/1996 a new form of unlawful competition, namely the vertical agreements27. We understand by that any agreement or concerted practice agreed to between two or many economic agents, each of them operating to fulfil the respective agreement, on different levels of the production-distribution chain, referring to the conditions in which the parts can, for instance, sell or buy28. we may register here the agreements as the exclusive distribution, the territorial exclusivity or the exclusivity of the mark.

In order to apply correctly the law, the Council of Competition proposes, for the evaluation of the economic agents’ actions, the indicator of the market quota. If the participants at the agreement detain a market quota greater than 30%, it is presumed that this one can’t, generally, entail advantages that might compensate the unlawful effects they may produce on the competition29.

Economic concentration

According to the law of the competition, we understand by that, any juridical act, no matter the form, that operates the transfer of the estate or of the use on the whole or on a part of the goods, the rights or the obligations of an economic agent, or has as object or effect to allow to an economic agent or to a group of economic agents to exercise, directly or indirectly, a determined influence on one or many economic agents (art.11).

Any economic concentration, when the implied economic agents sum up a turnover greater than 10 billion lei, must be the subject of the Council of Competition’s control, in order to be authorized. The sanction for not respecting this imperative obligation is the absolute nullity of the concentration. For the omission of the notification, fines are applied and the modifications appeared in the societies implied in an unauthorized economic concentration can’t be registered in the Trade Registrar, so being non-opposable for third parties30.

Many solutions might be offered for the economic concentration: it is allowed, it may be authorized through a decision of non-objection, when it is found out that positive effects prevail on its negative ones, or when the negative effects don’t exist. It may be decided the starting of an investigation, when the economic concentration presents doubts concerning the pre-eminence of the positive effects on the negative ones31.

The mostly used way to realize a concentration is the fusion, through merger as well as through absorbtion32. The French Law knows, as structure of enterprises concentrations, the groups of economic interests and for the British or American Law , the traditional modality is the trust33.

The legislation in force assimilated a new form of patrimonial association endowed with juridical personality, respectively the group of economic interest, through the adoption of the Law nr. 161/2003 concerning some measures for assuring the transparency in the exercise of the public dignities, of the public functions and in the business environment, corruption’s prevention and sanctioning34.

This regulation inspires itself, first, from the model offered by the French Commercial Code, where this form of association was regulated in order to allow to the enterprisers to adapt themselves to the evolution of a market in expansion, organizing and exploiting in common some activities35.

The group of economic interest represents an association between two or many physical or juridical persons, constituted for a determined period of time, in order to facilitate or develop the economic activity of its members, as well as for the improvement of the respective activities results. GIE is a juridical person with patrimonial purpose, that can have the quality of a trader or non-trader (art. 118 paragraph 1 and 2 of the Law nr. 161/2003).

Some general features come out of the legal definition. GIE is a legal entity, as in the case of the commercial partnerships, the legislator regarding the group of economic interest as a convention, an association, as well as a juridical person. It has a patrimonial purpose and can be constituted on the association of two or many physical or juridical persons (but not more than 20, according to art.118 paragraph 3 of the Law nr. 161/2003). The activity of the group has an auxiliary character, it should be reported to the economic activity of its members and should have only an accessory character towards this one (art.118, paragraph 4 of the law)36.

It has been experimented the opinion on which the Romanian legislator conferred the group of economic interests a conceptual and functional ambivalence, that allows it to place itself in the civil sphere as well as in the commercial one37. So, according to the law, GIE may have the quality of a trader, as well as the one of a non-trader. Unlike the rest of the situations, when art.7 C.com. conferred the quality of tradesman to those exercising trade activities with professional title, the law qualifies this juridical person as tradesman, exclusively after the object of activity registered in the constitutive paper (art. 122 paragraph 1 letter d of the law). More than that, even the groups that don’t have the quality of traders will be registered in the Trade Register.

GIE is constituted through an act signed by all the founding members, drawn in authentic form (art. 120 paragraph 1 of the law)38. The law allows the constitution of groups of economic interest, through capital contribution, as well as without it (art. 121). In any case, this type of juridical person can’t aim at obtaining any profit. But if this one is obtained, it is distributed with title of dividends to the members of the group of economic interests39.

In order to get juridical personality, GIE must solicit the registration in the Trade Register, by registering a demand accompanied by the constitutive paper, the proof that the payment was done to the capital, acts concerning the property on the contributions in nature, the proof of the seat and the declaration of honorability of the founders at the Trade Register Office, in whose territorial circumscription the group has its seat (art. 125 paragraph 2 and art. 127 of the Law nr. 161/2003). Publicity is also requested, through the obligation instituted by law to publish the constitutive paper in the Official Monitor, altogether with the mentions referring to the registration code of the group, the date and the place of its registration (art. 129 of the Law nr. 161/2003).

An opinion has been expressed according to which the Romanian legislator chose to create the juridical institution of the GIE in the internal law, on the purpose of giving substance to the associations representing, in fact, the aim of the regulation, respectively the European groups of economic interest - GEIE40 . Between the two juridical persons there are some differences. The first one is the fact that GEIE may constitute itself not only for a determined period of time, but also for a non-determined one. The members of this kind of group can be only juridical persons having their seat and the main leading and administrating headquarter of its statutory activity on the territory of a state from the European Union, as well as physical persons developing industrial, commerce, domestic or agricultural activities, or who offer professional services, or of any other kind, on the territory of a state member of the EU. The maximum number of GEIE members is not limited, the law imposing its constitution from at least 2 members, juridical or physical persons, having their seat or developing the activity on the territory of two different states of the European Union41.

Conclusions

In the field of the competition, the base and secondary legislations are harmonized with the similar European legislation, existing an advanced degree of compatibility concerning the way of treating and regulating the agreements, the concerted practices and the control of the economic concentrations. The compatibility between the communitarian legislation and the Romanian one is also reflected in the brought – to – day Monitoring Report (screening), transmitted by the Commission of the European Union at the beginning of March 2000. As a general rule, the legislation concerning the competition that deals with the unlawful agreements and the economic concentrations follow, as it was appreciated in the last Evaluation Report of Progresses Registered by Romania, the line of the Community’s legislation: art. 81 and art. 82 of the Treaty from Amsterdam (including the Regulation 17/1962 concerning the application of these articles) are reflected in the Law of competition; the CEE Regulations 4064/1989 and 3384/1994 concerning the economic concentrations are taken by the Regulation concerning the authorization of the economic concentrations, adopted by the Council of Competition. There have been adopted, in the same time, the Regulation concerning the exception on categories of agreements, decisions or concerted practices; the Regulation of organizing, functioning and procedure of the Council of Competition; Instructions concerning the calculation of the turnover and Instructions for the market’s definition42.

The dynamic context of the Romanian economy evolution obliges to a permanent evaluation of the necessity of adaptation of these normative acts – for instance inflation or depreciation of the national currency needs a re-evaluation of the minimal steps in the case of the economic concentrations’ notification and in the case of the exceptions from the legal stipulations, in the case of the agreement between enterprises or of the concerted practices.

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1 For details, see Gh.Glavan, Noile drepturi fundamentale. Accessul la cultură şi libertatea economica (The New Fundamental Rights. Access to Culture and Economic Freedom), in A.U.B., nr. 1/2004, p. 34-36

2 I. Ignat, I. Pohoata, N. Clipa, G. Lutac, Economie politică (Political Economy), Economica Publishing House, Bucharest 1998, p. 441

3 I. Ignat, ş.a (and others), op.cit., (Cited Works), p. 442

4 The market appears as an ensemble of means of communication, through which the sellers and the buyers inform one another about what they dispose of and respectively about what they need and the prices asked and proposed for drawing transactions. There is the „place”of meeting the request and the offer for a certain good or for a certain service. The level or the expensiveness of the price established in these conditions is what guides the producers and orient their activity. For details, D.Popescu, Economie politică(Political Economy), Continent Publishing House, 2000, p.17

5 See M.Didier, Economia: regulile jocului (The Economy: the Rules of the Game), Humanitas Publishing House, Bucharest, 1998, p.79-81

6 For developing, L.Balcerowicz, Libertate şi dezvoltare. Economia pieţei libere (Liberty and development. The Economy of the Free Market), Company „Astfel”, Bucharest, 2001, p.142

7 Ibidem (The same), p.159

8 D.Popescu, op.cit., (cited works), p.13

9 L.Balcerowicz, op.cit (cited works), p. 144-146

10 The strategy of the firm consists in the creation of a „shield” to prevent any threaten of the firm, namely the profit. That is because the competition permanently erodes the profit and the firm has to adapt to the market in order to exploit all the ways of the profit. The economic theory turned into concrete some of these programs. The first of them is known under the name of strategy of the concerted effort, when the firm aims at the concentration of its efforts on particular customers or particular product, or any other particular region. Another strategy is the one of the differentiation, consisting in the creation of the ensemble product – mark – image – service that is perceived by the client as „unique” for the respective category of goods. The third type is the strategy of the global domination through costs, that means doing the same thing as the competitioners, but at invincible prices, eliminating them in this way. (M.Didier, op.cit., (cited works), p.74-75)

11 Concerning this aspect, it should be seen the Decision nr. 446 from 25.11.2003 of C.S.J. concerning the exception of non-constitionality of the stipulations of art. 1 paragraph 1 and 4 of the Law nr. 254/2002 regarding some measures for raising the private activity of the commercial societies with state integral or partial capital having in administration agricultural lots, public or private property of the state, modified and completed through the O.U.G. nr. 209/2002, referring to the fact that, through the same law, at different paragraphs, the legislator institutes a discriminatory treatment under the aspect of the facilities he offered, between commercial societies with integral or partial state capital that are to become private. The jurisprudence archives from the official site of the Ministry of Justice: http://mj/superlex.nsf

12 See I.Bacanu, Libera concurenţă în perioada de tranziţie spre economia de piaţă (The Free Competition in the Period of Transition towards the Market Economy), in Dreptul, nr. 9-12/1990 and O. Cojocaru, Consideraţii asupra legii privind combaterea concurenţei neloiale (Considerations on the Law regarding the Fight against the Disloyal Competition), in Dreptul, nr. 7-8/1991.

13 For details V.Balaure and collaborators, Marketing (Marketing), Uranus Publishing House, Bucharest, 2003, p.113

14 It was modified and completed through the Law nr. 538/2004 concerning the modification and completing of the Law of competition nr. 21/1996 and the Order nr. 510/2004 concerning the modification of the value level stipulated by art. 8 paragraph 1 of the Law of Competition, with further modification and completions.

15 D. Popescu, op.cit., (cited works), p.75

16 It was modified and completed by the Law nr. 298/2001 for the modification and completion of the Law nr.11/1991 concerning the fighting of the unfaithful competition, published in M.O. nr. 313 from the 12-th of June 2001

17 The same normative act explains the understanding of the term „contrary to fair usance”, as the disloyal use of the commercial secrets of an economic agent through practices as the unilateral non-execution of the contract or the use of some disloyal procedures, the abuse of confidence, etc. being able to affect the position of the competitioners on the market (art.1¹ of the Law nr. 11/1991)

18 See V.Balaure…, op.cit., ( cited works), p. 114

19 See WIPO, Introducere în proprietatea intelectuală (Introduction in the Intellectual Property), Rosetti Publishing House, Bucharest, p. 241-243

20 See O.Capatana, Dreptul concurenţei comerciale. Concurenţa neloială pe piaţa internă şi internaţională (Law of the Commercial Competition. Disloyal Competition on the Internal an International Market), Lumina Lex Publishing House, Bucharest, 1996, p.16

21 Concerning the confusion regarding the indications, concerning the product’s forms, see WIPO, op.cit., (cited works), p.231-236

22 For the forms of responsibility for disloyal competition, see Y.Eminescu, Concurenţa neleală. Drept român şi comparat (Disloyal Competition. Romanian and Compared Law), LuminaLex Publishing House, Bucharest, 1995, p.29-39

23 O.Capatana, op.cit., (cited works), p.17

24 It is essential to express their common intention to behave on the market in the sense of the agreement concerning the restriction of the competition. See O.Manolache, Regimul juridic al concurenţei în dreptul comunitar(The Juridical Regime of the Competition in the Communitarian Law), All Publishing House, Bucharest 1997, p. 12-14

25 See O.Capatana, Dreptul concurenţei comerciale. Concurenţa patologică. Monopolismul (Law of Commercial Competition. Pathological Competition. Monopolism.) Lumina Lex Publishing House, Bucharest 1993, p.43-44

26 From the objective point of view it is requested the existence, at a certain moment, of a parallel and similar behavior of the economic agents, having the reservation that the objective element, isolately considered, is not, through itself, an unlawful agreement. Subjectively it is necessary for this parallel behavior to be observed willingly, so to be deliberate. The negative condition is the inexistence of a proper agreement, as basement of the analogue behavior. For details, O.Capatana, Consimţământul participanţilor la înţelegerile monopoliste (The Consent of the Participants to the Monopolist Agreements), in R.D.C. nr. 3/1993, p. 33-53

27 Through the Order nr. 68 from 05.04.2004 concerning the application of the regulations of the Council of Competition elaborated based on the Law of the Competition nr. 21/1996, with further modifications and completions.

28 For the sanctioning of the unfaithful agreements done under the form of vertical agreements, see Decision nr. 1571/26.04.2000 of C.S.J. in The Judicial Courier, nr. 2/2002 and Decision nr. 955/15.04.1998 of C.S.J. in The Judicial Courier, nr.1/2002

29 In the same sense, for instance, EU fined Microsoft for unfaithful agreements and that was done in the conditions of a perfectly competitive market. The strategy of Bill Gates company is to introduce in the Windows package, preinstalled by the computers’ producers, new and new applications. Because of those, MS is accused of abuse on his dominant position on the market of the operation systems, in order to extend on adjacent markets and to steal the clients of the competitioners. More than that, MS refused to furnish an interoperation code for Windows in order to allow the use, in the same computer network, of an alternative operating system. None of the counter-measures of the regulating authorities in matter of competition could stop the MS offensive. The judicial decision to divide Microsoft was annulled as excessive. The processes intended by Sun Microsystems had no echo. The obligation imposed by MS to offer a Windows package without the browser Explorer, in order to leave the market the choice to express itself, failed lamentably, because, with no exception, the computers’ producers preferred the alternative package, with browser included. In the magazine Capital, nr. 15/April 2004

30 The Law of Competition establishes some criteria function of which it is appreciated the compatibility of an economical concentration with the normal competitional environment, establishing also the conditions to be fulfilled, in a cumulative way, in order to realize this compatibility when such an operation could raise doubts concerning the positive effects it might have on the competioners (art. 13 and 14). For details concerning the control exercised by the Council of Competition, see The Civil Sentence nr. 1695 / 29.11.2000 of the Court of Appeal Bucharest, in Judicial Courier nr. 2/2002, p.101/105

31 See C.Gheorghe, Commercial Societies. The Will of the Associates and the Social Will, All Beck Publishing House, Bucharest 2003, p.255-256

32 The economic theory considers that there are different forms through which an economic concentration is realized. One of them represents the economic concentration in the form of the active acquisition, when they serve to the carrying out of a certain activity and the society that transmitted them can’t carry out this activity or does it at an insignificant level. The second one concerns the concentration in the form of the society concentrative in common, when the new company manifests itself as an entity with its own juridical and economical life, differing from the one of the firms that created it and doesn’t coordinate their competitional behavior. The third one is represented by the form of getting the unique control through the acquisition of the major package of actions, when the acquiring society gets the right to exercise a determinant influence on the acquired one. See V.Balaure…,op.cit.,( cited works), p.116-117 and, in the same time, for examples of each of the forms of economic concentration and for the way the Council of Competition agrees or not with the respective juridical operations, see the magazine Capital, nr. 47/the 25-th of November 1999

33 For developments O.Ungureanu, C.Jugastru, Drept civil. Persoanele (Civil Law. The Persons), Print House Rosetti, Bucharest, 2003, p.326-330

34 C.Gheorghe, op.cit., ( cited works,) p.295

35 See I.Schiau, Grupurile de interes economic (Groups of Economic Interest), in Dreptul, nr.4/2003, p. 69

36 For details E.Carcei, Constituirea grupurilor de innteres economic-GIE (Constitution of the Groups of Economic Interest – GIE), in R.D.C., nr. 9/2003, p.59

37 For a complete debate on the ambivalent character of the GIE, see I.Schiau, Groups…, in Dreptul, nr.4/2003, p.72

38 The contract of society should fulfill all the conditions of validation stipulated by art.948 Code Civil, as well as the condition of the authentic form ad validitatem. It was characterized as a solemn, plurilateral, onerous, commutative contract, when the group of economic interest is constituted through the contribution of capital, the extent of the contribution obligations and its nature being already known at the date of the contract. It may have a commercial character or a civil one, function of the object of activity registered. For details E.Carcei, Constitution… in R.D.C. nr. 9/2003, p.60

39 Concerning the functioning of the GIE, see E.Carcei, Funcţionarea şi modificarea grupurilor de interes economic (Functioning and Modification of the Groups of Economic Interest), in R.D.C. nr. 12/2003, p.53-80

40 Because Romania isn’t yet a member of the European Union, European groups of economic interest can’t be validly constituted on its territory (but only their subsidiaries and branches), because they must be compulsory situated on the land of the EU. For details see C.Gheorghe, opcit., (cited works), p.295

41 For details of these differences as well as for underlining the resemblances between the two juridical persons, see I.Schiau, Groups…, in Dreptul, nr. 4/2003, p.77-78

42 See Documentul de poziţie al României. Capitolul 6- concurenţa şi ajutorul de stat (The Document of Position of Romania. Chapter 6 – The Competition and the Help of the State), from the official site of the Ministry of Internal Affairs of Romania, www.ministeruldeinterne.ro

ETHICS AND LAW

Epitome

The purpose of this article is to emphasize the role of ethics from among other sciences that study human nature and also to reveal its common points with law and sociology. For this it is presented the greek school of philosophy and some of its greatest scholars, Plato and Artistotle. Christian ethics had an important role in human history and civilazation, starting with Moses and the frist code of morals. Then the philosophers St. Augustine and Thomas D Aquinas debated the nature and the role of the state and natural law. The reformation period, represented by Martin Luther, changed people regarding the responsibility of ones actions.

Hopefully this article answers the question of every modern men: „ Do we need ethics?”

The necessity of a science appears usually under the incidence of two factors, having a cumulative character in its accomplishment, the objective and the subjective ones, its purpose being to serve in practice, to support an economic, social and cultural progress.

According to the multiple aspects of the human life, the social or humanist sciences that deal with individuals and the relationship established between them in a determined society have their own system of disciplines. Here we can distinguish the juridical science close to the ethic one, known as normative sciences, because the fragment from the social and human reality they study is represented by norms, juridical or moral, as they may be (operating with some concepts, definitions and principles)1.

It became a frequent practice, in the doctrine, for the authors, when talking about the object of law science, to include the analyse of its connection with other social phenomena. One of them may be the ethics or the moral, that has a manifestation very much connected to law, with a day-to-day character, that appears at individual or collective level.

The practical philosophy, or the ethics, tries to justify the behaviours and the actions that determine the human existence, individually or socially, that become visible and, so, perceptible as moral actions or not. The human action represents a special case of behaviour, this one circumscribing any activity of an organism reported to the surrounding. The human action is always equivoque and interpretable, the German sociologist Max Weber considering that it may have a different subjective sense. The functioning of the social system is due, as such, to the fact that each of the individuals understands or accepts the reasons of somebody else’s action, reaching a commutation, fictive and temporary, inside the other one’s world; world that, otherwise, through the complexity and oneness of its determinations, determined, in one way or another, the action itself.2

Law is called to order and orientate the human behaviour, after the profound research of the human existence dynamic, of the factors that shape it and of the values it takes into consideration as determinants and, accordingly, promotes them. This system or circuit is reflected by the juridical phenomenon in three plans: an ideatic one (the theories, the juridical culture), another one – normative (the objective law) and the last one, the plan of the social relationship and the eventful or factual plan3, the last one presenting the most interferences between ethics and law.

The resemblances between ethics and law are mentioned in the literature of specialty, both referring to the reports between the individual and the collectivity and establishing the behavioural models, concerning the human existence. Both build their prescriptions on one of the most important themes of the universal thinking, the one of liberty.4

Thus, some questions arose very concretely: When is an action just or unjust?; What is the nature of the differentiation between right and wrong? and How is justice possible?

The notion of justice implies many senses, assimilated in different proportions by the members of the society. One of them is the one of legality, of justice and morality, having a complex and subjective sense, or the one of justice as worth, especially manifested at the level of the individual concepts.

Along the years the philosophers tried to determine the positive value of a certain behaviour, determination that is absolutely necessary in the consolidation of a certain order. That is why some actions have been considered just through their own intrinsic value, having, consequently, an absolute value (summum bonum) wished for itself and not as means, or just due to the subordination to a certain moral standard.

The notions of moral, ethic, just have been completed, due to a direct and objective determination, the result of the social-political conditions met at certain moments and phases of the society’s development, some concepts that appeared definitive in the judgment of the human action. It was taken into consideration, either the divine will, when the obedience in front of the sacred texts is considered as the most important standard of the human existence, or the print of nature, when the existence according to some natural behavioural lines or types is what determines the positive or negative character of an action, or the imperatives of the reason, when a moral conduct is the result of the cognitive processes, compulsory for the concept of human being.5

1. THE GREEK SCHOOL

Nietzsche used to say6: The results of all the schools and of all their experiences are lawfully due. We won’t omit to adopt any stoic receipt, on the pretext that we have already used epicurean receipts. The learning of the Greeks became, indeed, along the centuries, one of the most important sources of perception of different concepts, presenting themselves with a great diversity and complexity.

Pythagoras was the one who elaborated the first philosophy of the moral, from an old mystical cult devoted to Orpheus that was considered to be founded on the writings of the legendary poet. The fragments found in the 6-th century B.C. indicated a cosmogony that had in its centre the figure of Dionysus. According to this creed, peoples shouldn’t abandon themselves to evil, but would better follow the way to discovering their good, divine nature, attending purifying rituals.7

One of the greatest Greek philosophers is Platoon (428 – 348 B.C.). His intention is a political one, believing, in fact, that the political life could be changed through the philosophical education of peoples.

On Platoon’s opinion, the good is an essential element for reality, the evil being, in fact, an imperfect reflexion of reality. The philosopher talks about virtues, the ones specific for the human being, due to the three components of the human soul, wisdom, courage, temper, as well as the supreme virtue that is justice, representing the harmonious relationship between all the others. 9

The theme of justice is a central one in the history of ethics. A first given sense was the one of equity of a system of laws. The Greeks asked themselves if the sense of justice is due to nature or is born from certain social conventions. The philosophers to come reached to the idea that justice serves to the defence of everybody’s interests, nevertheless going on in contradicting itself on the idea according to which the standards of justice are relative from one society to the other or are universal. The tradition of the natural law supports the idea that justice is divine, finding its roots in the divine will and, accordingly, in the attributes of the human being. The skepticals contested the idea of universality as being a sign of hypocrisy and selfishness10. But justice doesn’t signify that all the members of the society are equally treated. For instance, an infringer of law to be treated equally to his victim. It is asked, in fact, for an equal consideration towards each person or, more precisely, towards the rights of each person, needing a good reason for a differential treatment. The differential treatment doesn’t refer to discriminating measures that, in their general sense, concerning peoples’ equality, are forbidden by law.

The schemes of justice are differently applied in each society, thus reaching to a distinction between the distributive and retributive justice or the procedural and social justice. The first one refers to the respect of the objective laws, of the juridical, economical norms, those ones being valid for all the members of the society, their non-respect bringing the responsibility, through the sanctioning of the respective fact by law. The social justice actions on much more colourful principles, because it tries to offer an equalization of individuals’ chances, the most outstanding examples being the theories of Karl Marx (the distribution of goods is done on peoples’ necessities or needs) and Aristotle (the individual worth of peoples).11

Platoon’s dialogue The Republic is the most important as for the idea of state and justice, the political sense being subordinated to the moral – educational component, proposing many themes: What is justice and injustice? ; Where does the moral necessity come from, for a state and for an individual, to found themselves on the principle of justice?; What is the principle of the good order in a society?.

The answer formulated for the first question is the myth of Gyges. According to it, justice is not a definitive feature of the human being, but, even more than that, nobody is willingly just but only forced and the one who does justice does it from his powerlessness to do un-justice, so, the essence of the human being is the injustice. But Socrates proposes the good as behavioural rule, in antithesis with an un-controlled, selfish behaviour. For Socrates the practice of justice was synonymous with virtue.12 The philosopher reaches the conclusion that justice means that every person is preoccupied in the state with the job he was trained for. So, it is reached the well-known “political” formula that presents the state as being led by philosopher kings.

But Socrates’ conviction, the theme of the dialogue Criton, makes Platoon search for the reason of law in wisdom, in philosophy, thinking that the reign if the infallible kings is, nevertheless, a utopia. What is essential in a society is the knowledge of good (the perfect leader can do without laws, because there is no law above knowledge and the spirit shouldn’t be subordinated to any law)13.

The law is imperfect because it is an imitation. The way to true knowledge can be fulfilled only when a detachment from perceptions, from their captivity, is tried (the well-known theme of the cave). But however imperfect laws could be, they still have the role to establish a certain hierarchy of values, they themselves being values.

Platoon dedicates the greatest part of his work to the fight against moral and political decay, fighting against the sophists he considered real enemies of truth, because, as they used to say, they could demonstrate that something is real and fake in the same time. The political community specific for the history of Greeks, the polis, is the practical space of the accomplishment of the moral life and it represents for Greeks not only an important economical community but, in the same time, the ensemble of the social life aspects of a determined community.14

Aristotle (384 – 322 B.C.), Platoon’s disciple, was the philosopher who mainly influenced the Roman juridical thinking and the political science and then the mediaeval one15.

His purpose in life is happiness, the eudaimonia, as he names it. In The Nicomahic Ethics, that may be considered the first scientific system of ethics, he defines happiness as the activity that equals the specific of the human nature, what is searched for itself, and never for somebody else’s sake. But there is a sharp distinction between the aspiration for happiness and the simple living of some sensations of pleasure. From here, two distinct ways to discover the eudaimonia. The first one refers to the theoretic existence, considered to be the supreme model, that is in the search of the principles of reality and that supposes contemplative activities. This existence doesn’t need an exterior intervention, namely the one of the law. The second way is represented by the practical existence that becomes, in fact, a necessity since the existence in a socially and politically determined space, as the one of the polis, and it is a practical orientation of the theoretical existence, that not only needs the intervention of law, but, in a certain measure, owes its continuity to this existence.16

In his dialogue The Politics, Aristotle talks about justice and state, the justice being a moral virtue that can’t be manifested but in society, giving politics a great importance and condemning anarchy. The city has the great role to “fulfil” justice, a distributive one, where the function of recognizing everyone what is just to belong to him, everyone being entitle to receive exactly what he deserves, as well as a compensative one, in order to correct injustice, either in the best interest of the city (when the public interest is prime), or in private interest.

As Platoon, Aristotle talks about virtues leading to a happy life (justice, generosity, braveness). They represent a rational average between “too much” and “too little” that must be known and learnt; the one who runs from everything and is afraid and doesn’t dare anything, becomes a lazybones, the one who isn’t afraid of anything, but faces everything, becomes audacious, as the one who takes advantage in any pleasure not having any limits becomes uncontrolled, and the one who avoids all of them becomes insensitive. Therefore, moderation and courage are destroyed both by excess and insufficiency, while moderation saves them.17

For Platoon as well as for Aristotle the state represents a necessity. The state regulates the life of the individuals – that, therefore, belongs to it – helped by law. Law, in order to be just, should base itself on morality and on the practice of virtues.

2. CHRISTIAN ETHICS

Once the Christianity appeared18, a new series of social – ethic concepts emerged, with a great impact on the already known and practiced systems.

The old tendency of this system intended to relate any action to God’s will, peoples being in an absolute dependence on divinity and without possibility to know the good or the evil but through this will.

The primary Christian creed was settled by rules as: everything you want peoples to do for you, do it, as well, for them ( Mateo 7:12), or the imperative to love your enemies (Mateo 5:4), or Jesus’ words: Give Cesar what is for Cesar and God, what is for God (Mateo 22:21). The main sense of the Jewish law is: Love your God from all your heart, with all your power and with all your thought and your fellow man as yourself. (Luca 10:27), all these being found in the holly book of the Bible, that, besides the fact that it has a main role in educating peoples in a Christian sense, of the belief in God and his powers, played an important role in educating peoples in a moral and even “juridical” sense.

One of the clearest examples in this sense is The Decalogue of Moise.

C.F.Potter supports the fact that the Christianity as well as the Mohammedanism are the direct products of the Judaism founded by Moise and their moral flows from his moral, the importance of Moise moment being understood, if we compare the religion from the beginning of his mission with the religion he left after, as a historical bridge between superstition and religion.19

One of the problems Moise was confronted with in the desert was the one of the elaboration of a system to guarantee the maintenance of some good relationship between rival individuals, groups and tribes, finding, as such, the solution in the elaboration of the Decalogue.

In the Bible there are two well-defined and distinct Decalogues, the one from the Exodus (20:1-17) that is also found in the Deuteronom with small modifications (5:6-21) and the less used from the Exodus (34:14-26).20

Moise was the one who took out the Israelites from Egypt and led them for forty years in their way to the Land of Promises. On Sinai Mountain, God transmits him the Decalogue. When he came down from the mountain and saw the peoples adoring the golden veal, he broke the table laws in an access of fury. He climbed again on the mountain where he stood for forty days and forty nights, without eating and drinking, to come down with a new Decalogue, this time closed in the Holly Ark.

So, the Decalogue is a direct divine revelation. It is the foundation of all the ethical – juridical systems of the human condition, but, first of all, it is a “primary legislation” given to the people of Israel.

Because the chosen people was not from a state or a political form that could have been invested with some authority, the only possibility to guarantee the respect of the norms was their registration in the divine sphere, more precisely, of the divine commandments. More than that, the norms belonging to a religious moral or finding, or not, the a posteriori expression in the legal texts, have a bigger impact on peoples, due to the fact that they belong to the sacred that is considered to be perfect, good, just by itself, wished for its perfection. More than that, the submission of the people of Israel and latter of the Christians, during the Roman empire and during Nero’s oppression, around 64 B.C., compared to any other profaned texts would have equalled an act of treason towards their owns but first of all towards God. Thus, the fact that the Decalogue was inscriptioned, according to tradition, under the direct intervention of the transcendent, is perfectly explained by the social – political conditions of that period. It also was an important step in the development of the people of Israel and of Christianity as religion, in general, registering new concepts that transform a form of collectivity into a form of moral and religious organization, great premise for a social-political one.

This law has a religious character, as a whole. God doesn’t protect but those who are faithful to Him, if they respect their fellow men, the law and doesn’t oppress the others. It is a religious law, a prophetic, nationalist, warlike one, but, in the same time, humanist and rationalist.21

But, through some of its aspects, the laws express clearly the potentials of a violent and intolerant civilization and more than conservative as for its own blood: If it is to be found on you (…) man or woman who could have done evil in front of God eyes, not respecting His oath and will go and serve other Gods and will bend in front of them (…) and will be announced and will hear it, search well and if this is true and this evil will have been done in Israel, take that man or woman, who did evil, out to your gates and kill them with stones. (Deuteronome 17:2-5).22

A strong feeling for justice can be detached from the Mosaic law, law that used to be done with means that are considered wrong today (the lex talionis), determined by their contemporary conditions, ways that the nations of the world tried to undermine promoting an arbitrary dialogue and judgment.

Moise led the people of Israel to the Land of Promise that he perceived in the heights of Moab Mountain, giving them a code of sacrum and profane moral in which the individual is searching for justice and justice again (Deuteronome 16:20)23

Ethics of the Church priests. One of the greatest theologians, St. Augustine, dealt with the Christian moral. A force that competed at the time with the Christian dogma was a Persian religion24, encouraging in this way many of the progresses and ideas of the Christian thinking. After his conversion in 387, St.Augustin25 underlined the idea of Christianity and Platonism, believing that the essential of the Platonist doctrines and the one of the Christian ones identify themselves. The logic of the Greek philosopher helps us recognize the methods through which we can discover their reality: physics teaches us that all the things that are born, die and live their lives because of God’s will who shape them; ethics helps us discover that only the rational soul and the intellect are endowed with the joy to contemplate God’s eternity. The only difference, for Augustine, is the incapacity of Platonism to convert masses, to orient them on spiritual things, the only one holding this capacity being the Christianity that succeeds to determine the masses to come back in the world of sensitivity, in order to contemplate God and the spiritual reality.26

Justice is a perfect virtue coming from God, reaching an identification of the two concepts, so, it is untouchable, none of us being able to wish for justice; but we may intuit what is right or wrong by comparison with the divinity. So we may formulate the two well-known concepts of: civitas Dei, love of God up to forgetting and self-contempt and civitas terrena, love of the self up to forgetting and despising God. The sin is the essence of the city of peoples and it is defined as the love of the creature for another creator but more than for the creator, the place of justice being civitas Dei; those predestined to be redeemed are those who make it, being called to eternal happiness, those who make the earthly city being for ever deemed. 27

So, there is an eternal law and a “natural” law, this one being the strengthening of the first one in the human body. The positive laws should derive from the natural ones and their destination is to defend the peace and social order established by God and if some of them don’t derive from the natural law the, their respect is not compulsory.28

In the 13-th century the Aristotle current was pleading for the empirical knowledge, as an opposite of the revelation, menaced the authority of the Church. The theologian Thomas D’Aquino (1228 – 1274) succeeded to make peace between the two, in his work “Summa Teologica”, succeeding to survive and convert Aristotel29 to catholicism.30

Before him, the occidental thinking was dominated by the thinking of Augustine as well as of other great philosophers of the 4-th and 5-th centuries. Preserving certain continuity with his Aristotle influences, the theologian elaborates a theory of the truth. It is about the theory of sequence, synthetized in the formula: veritas est adaequatio intellectus et rei (the truth is the sequence between spirit and thing). The thing is called true only if it is in a sequence with the spirit that knows.31

But it is decisive to take into consideration, in the formulation of the theory, the sequence between the things of nature and the divine and human spirit: the things of nature (…) are called true function of their sequence with both of them: function of the sequence with the divine spirit they are called true if they fulfil the tasks they have been granted with by the divine spirit (…). Function of the sequence with the human spirit they are called true if they have to justify, in themselves, a correct judgment.32

So we can make reference now to the truth of the law. We may consider as “closer” to the divine spirit the natural law that, more than sure, has a very well shaped function influencing many aspects of the human existence, including the natural law. It has a very clear function: to assure the continuity of the human existence, being very close to divine knowledge. The human law, positive, is true only in the measure in which it is in concordance with the natural law in which it can offer solutions corresponding to human nature.

Thomas D’Aquino continues St.Augustine’s idea concerning the superiority of the divine kingdom on the interests of the human state, the interests if the peoples, drawn by principles, that should be subordinate to the spiritual interests represented by the Pope, so he underlines what characterized from the political point of view, a great part of the Middle Age, namely the teocracy.33

Aristotle’s ideas find their influence also in the idea of the theologian who doesn’t see anymore, as his predecessor, in the state an instrument of Satan and a result of the sin, but a development and evolution of the individual who is a social human being.

Ethics and reform. The influence of Christian ethics diminished during the Reform. Generally speaking in this period the individual’s responsibility is considered more important than the responsibility towards an authority or towards tradition, this change implicitly leading to a modification of concepts and to the development of a modern ethics.

One of the most important contribution in this sense is the one of Martin Luther.

During the night of the 31-th of October 1517, Luther showed on the door of the Church the ninety-five thesis establishing the free forgiveness of the sins, as an adverse reaction to what Middle Age knew under the term of indulgences. The thesis enjoyed a great success and have been immediately translated into German and largely distributed. Luther supported his arguments through university public debates, his acts enjoying a great success among students coming to listen to his lectures. All these lead, in the end, to a “sentencing” of his concepts in 1520 and to his excommunication in 1521.34

The condemned fact was represented by the ethical problems he raised to the Church, defying through his clarity as well as through his sharpness: Those who share indulgences are wrong when they say that the forgiveness of sins given by the Pope assures the forgiveness of any sin and everybody’s salvation: those who believe that the papal indulgences bring forgiveness of the sins will be cursed as well as their masters; the Christian who sincerely repents gets the forgiveness of his sins without papal indulgence.35

Thus Luther withdraws from under the domination of the Church what was considered to be the attribute and its “license”, namely the ethical action, placing the attribute of the morality as something natural and tangible in its proper existence.

The reformer also talks about laws and Evangel, supporting the idea that divinity is sensed in peoples lives in two ways: through law (representing the ethical requests of God, expressed in order to be best known in the Decalogue) and through the Evangel (that is the gift of divinity). All the peoples, no matter their religious convictions have a certain degree of access to what represent these legal – ethical commandments and through their own ethical culture, although the understanding of this thing is affected by sin. The law has two functions: it helps people to maintain order inside their world, inside their community, in spite of their furthering from God and makes people conscious of the need of salvation of sins, leading them towards creed and ethic ideal. Luther used to think that inside all the Christian live in the same time the sinful and the saint, so that the most respected citizen and a criminal, too, need God’s forgiveness.36

He detached himself from his predecessors, because of his convictions, erasing a part of the Middle Ages’ darkness, during which peoples were easy preys due to their ignorance and who are learning now that it is very important to bear on your own the responsibility of being moral and of acting as such.

It is to notice the fact that the divinity didn’t lose its character of example, of model, of ideal in matter of justice, morality remaining the point of reference in the peoples’ lives and in their actions. What was, nevertheless, changed, is the peoples’ attitude towards themselves, towards their own creeds and the liberty of their spirit to which they gave a greater importance, and assumed a greater responsibility of their deeds starting from this point to behave, in a certain way, ethically.

3. CONCLUSIONS

The purpose of mankind’s aspirations is to create a just world where justice and legitimacy have the main place inside an amorphous society with a lot of principles and customs belonging to different funds. The common denominator all should report to could be just the system of moral values. What would be the authority of this system?, could be the question. The authority is given, from centuries, by people who started to consider themselves individuals and to try to develop in common sense, in order to build an existence in society and so they understood that they should conceive some things and formulate some ideas, so that they, as well as their fellow citizens, can live enjoying liberty.

The attribute of moral belongs to the rational human beings. They are the only ones who are conscious of themselves and of the world around them.

Ethics can be considered as element of the divine sphere re-found inside the human being, or it may be considered as the element of the human nature, or as a form of the self-consciousness, or as a process of accumulating during time some truths unanimously accepted, or as foundation of the regulation of law, or as print to establish the legitimacy of the human actions or even of the legitimacy of the state institutions.

It must, for sure, exist in the modern societies in order to make the existence of each individual easier, in order to guarantee his individual liberty and to offer the legitimacy of the law’s settlements.

The complex and common system of moral values, generally accepted by individuals and by society, offers to law the authority and power of sanctioning, its action being, at its turn, for the protection of the moral concepts.

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1 See I.Ceterchi, I.Craiovan, Introducere in teoria generala a dreptului, „All Beck” Printing House, Bucharest, 1998, page 4-11

2 See, in this sense, M.Kurst, J.Trinks, Manual de filozofie, „Humanitas” Printing House, Bucharest, 1998, page 189-191

3 See I.Ceterchi, I.Craiovan, cited works, page 4-11

4 Ibidem

5 Translation done on Encarta Encyclopedia, Microsoft, 1998

6 See P.Hardot, Ce este filozofia antica?, „Politom” Printing House, Iasi, 1997, page 25

7 Translation done on Encarta Encyclopedia, Microsoft, 1998

9 Ibidem

10 Translation done on Encarta Encyclopedia, Microsoft, 1998

11 Ibidem

12 For details, see P.Hardot, cited works, page 27

13 See Ph.Malaurie, Antologia gindirii juridice, „Humanitas” Printing House, Bucharest, 1997, page 28-29

14 Polis also represents a social-political institution unique for the antique world. The translation of the term polis as city – state, draws only partially and approximately the sense it had for Greeks. In fact a polis was a territorial area, with its city, lands and villages from around it; but, first of all, it was a community of religious origins, interests, traditions and creeds. In the whole Greek world there were over 200 such small autonomous and independent states – communities; see O.Drimba, Istoria culturii si civilizatiei, „Stiintifica si Enciclopedica” Printing House, Bucharest, 1984, I-st vol, page 536-539

15 See Ph.Malaurie, cited works, page 32

16 See M.Kurst, J.Trinks, cited works, page 189-191

17 Ibidem

18 Augustine talks about Christianity as a historical religion based on a unique historical event. In fact, in the vision of the theologist the whole history is a straight evolution with unique events: God the creator raised the world from nothing, Jesus is the saviour sent by God to save the peoples. History is the story of the salvation led by divinity, between the Creation and the Day of Judgement (eshaton), its dynamic being due to the fight between creed and lack of creed; for details, see M.Kurst, J.Trinks, cited works, page 229-230

19 See C.F.Potter, Fondatori de mari religii, „Prietenii cartii” Printing House, 1998, page 41-47

20 Ibidem, page 186

21 See Ph.Malaurie, cited works, page 34

22 See Ph.Malaurie, cited works, page 34

23 Ibidem

24 „Manikhaios” – Greek term deriving from Manes, the name of the wise Persian (216-276), founder of the cult. He declared himself as the last prophet from the succession including Zoroastru, Buddha and Jesus, whose revelations, as he considered, were included somehow in his doctrine (with important Gnostic influences). The cult presented a dualist vision on the universe that contains the laws of the good and of the evil, the first ones being led to light by God and the ones belonging to the second category, to darkness, by Satan. At the origins, the two were separated, but, as a result of the cosmogony, they mixed in a continuous struggle, the human race being the result and in the same time the copy, at the level of the microcosms, of this fight; translation by Encarta Encyclopedia, Microsoft, 1998

25 It had the title of „Doctor Eclasiae” representing the recognition as eminent theologian by the Church, due to the important contribution brought to the Christian doctrine, by a proclamation of the Pope or of the Ecumenical Council (translation by Encarta Encyclopedia, Microsoft, 1998).

26 See P.Hardot, cited works, page 271 - 273

27 See I.Craiovan, Introducere in filozofia dreptului, „All Beck” Printing House, 1998, page 29

28 See I.Craiovan, cited works, page 29

29 At the end of the 13-th century, the works of Aristotle became well-known in their Latin translation and accompanied by commentaries, through some thinkers belonging to the school led by Sigir Bracabat, known as Averroes; (…) the reconstruction of mediaeval philosophy isn’t possible without taking into consideration the Oriental moment, especially without Avicena and Averroes, as dominant attitudes. First of all, because they maintain vivid and develop Platoon’s tradition, especially the Aristotle one, then for what they bring new. They haven’t been only commenters but also registrators” – quotation belonging to G.Vladutescu, in O.Drimba, Istoria culturii si civilizatiei, „Vestal” Printing House, Bucharest, 1998, IV-th vol., page 480

30 Ibidem

31 See M.Kurst, J.Trinks, cited works, page 56

32 Ibidem, page 57

33 At the beginning of the 5-th century the Christian bishops were the most prominent personalities, except the official world, the authorities had to take into consideration; later on, when the Christian community became the great majority of the inhabitants of a town, the bishop practically became the most influent person of a region. More than that, the most important real estate owner was the Church, its large fortune counting lands, real estates, donations as well as the obligation of the agricultural producers to give to the Church, regularly, the tenth part of their products. The consistent incomes were also from taxes on goods selling, because even the monasteries had their weekly and annually fair. So, as for the financial power, the Church was among the most favoured institutions. The bishops used to have, inherited as a tradition, the power of judges (since 318 and since 333 their jurisdiction was recognized in civil causes, too) during the years the principle of the Pope’s absolute personal authority was built, in the matter of the dogma and the moral, the papacy having and exercising a supreme authority through decretali (answers given in the shape of a letter to problems of dogma and of moral, with the value of a rule for resembling cases). In spite of all these, compared to the German Empire the papacy had a subordinate position from the political point of view, so that in the second half of the 10-th century a compromise had to be done, „an Imperial Church” where the emperor had the right to name the bishops. The situation couldn’t last too long and Pope Grigore the 7-th decided to emancipate the papal power. The emperor wasn’t recognized anymore the right to investment, more than that, now only the Pope could give the imperial dignity, proclaiming as such the political power on the Empire. So, the fight for investment begins, reaching the end only in 1122 when the power of the monarchy declines as well as the papacy’s supremacy on the laic world; for details see O.Drimba, cited works, page 68-83

34 See for details C.F.Potter, Fondatori de mari religii, „Prietenii cartii” Printing House, 1998, page 240-241

35 Ibidem, page 242

36 Translation by Encarta Encyclopedia, Microsoft 1998