dritto di famiglia
Post on 14-Sep-2015
Embed Size (px)
UNIVERSIT DEGLI STUDI DI MILANO
FACOLT DI GIURISPRUDENZA DRITTO DI FAMIGLIA
UNIVERSIT DEGLI STUDI DI MILANO FACOLT DI GIURISPRUDENZA
CORSO DI LAUREA IN GIURISPRUDENZA
PARENT AND CHILD RELATIONSHIPELABORATO FINALE DI : LAURA BUZATU-TEODORESCURELATORE : PROF. VERA TAGLIAFERRI
ANNO ACCADEMICO : 2014/2015CHAPTER I : TABLE OF CONTENT CHAPTER I : TABLE OF CONTENTCHAPTER II : CHAPTER III
CHAPTER VI CHAPTER II : BIBLIOGRAPHYhttp://www.dirittoprivatoinrete.it/azione_di_disconoscimento_della.htmCHAPTER III : SUMMARYIn this thesis Affiliation The Legal Parent and Child relationship I decided to analyze natural filiation, lineage that is based on blood relation, which springs from procreation and birth.The paper is divided into chapters, some of these being divided into sections, subsections and paragraphs. In the first chapter entitled General considerations concerning the affiliation institution I have submitted content and concepts regarding the legal regulations of filiation both in Italy and Romania.
I pointed out that affiliation is blood relationship , a biological connection stemming from procreation and birth, but also a social institution, a artificial creation which includes social, cultural and religious elements, which along the time, had put the stamp on the legal solution to the matter. Parentage, stricto sensu, is the relationship that bond parents to their children, this raport is immediately, for he unites directely the child to his father and mother. In a more generic meaning, lineage is synonymous with descent; it unites successively all people that descent from a joint author; affiliation depicting as a important element of civil status; which helps to determine the legal personality of a person. Seen from the child point of view, lineage express a persons quality of being the children of some parents, while perceived from the parents point of view, indicates the correlative qualities of being a mother or a father thereof, the maternity and paternity. This relation between mother and father, on the one hand and child on the other hand, results from the direct fact of procreation, which is not necessary related to the existence of a family. On the other hand this relation may be the result of an adoption, therof it is the direct result of a civil agreement. Filiation produces civil effects of fundamental importance, the law must give the possibility to those concerned to establish the precise relationship between children and parents, relationship from witch springs both rights and obligations.As the person was born or conceived during a marriage or out of wedlock the affiliation shall be within the marriage or out of wedlock. It is a affiliation within the marriage when the birth or, by the case, the conception of the child took place during the marriage, specifying the fact that it is of no interest the validity of the legal act of marriage; and we are in the presence of affiliation out of wedlock when wither the parents were not married at the time of the conception or at the time of the birth either, even if the child was born with the status of a child born within marriage, his presumed paternal filiation was removed by irrevocable court order. In the following chapters we shall provide an analysis on how the maternity and paternity can be established, depending on whether the child was born within the marriage or out of wedlock.Therefore, it can distinguish between establishing lineage through :
1. Birth registration procedure 2. Recognition act
3. Court order
4. Presumption of paternity
In the same line, we obeyed to analyzes how the interest person, mother, father, biological father, or as the case may be, the child, can challenge the current kinship, due to the fact that it does not correspond to the factual reality.
And not in the end, in the final chapter we had analyzed the principal characteristic of the notion of name and after will resort to a more comprehensive analysis of how the surname of the child either born witin a marriage, out of wedlock or of unknown parents, is established. CHAPTER IV : GENERAL CONSIDERATIONS CONCERNING THEAFFILIATION INSTITUTIONSECTION 1.GENERAL CONSIDERATIONSSubsection 1 : PRELIMINARY SPECIFICATIONS
Filiation is a form of kinship, being the starting point of it. Beyond the reason related to the reliable establishment of the childs parents and the protection of his superior interests legal regime of filiation is extremely important, being regulated per se in the Civil Code, both in Romania and Italy. Thereof in the Romanian Civil Code, the provisions regarding the matter of filiation are included in the Chapter II (Filiation) from Title III (Kinship) of Book 2nd (About family), and in the Italian Civil Code are included in Title VII (Filiation) from First Book(Of persons and of family )
Subsection 2 : THE BIRTH
Before access to a broader analysis of the institution of filiation, regulated both in Italy and in Romania, in the Civil Code in force, it is just to start with a brief analysis of the event that leads to the application of the rules in terms : the birth.
The rule is that, once cutting the umbilical cord, shall appear a new individual on the legal scene. The child, until then pars viscerum becomes a distinct person.
First of all, are called legal facts, the events to which the law binds certain legal effects. Among the most important ones is the birth, because from that certain moment, the individual person, has the aptitude to become the holder of rights and obligations, synthetically with the birth, every individual will acquire legal capacity.
The law guarantees the right to procreation and recognize the social values of motherhood, protecting human life from its beginning. From the legal point of view, one of the most interesting profiles of birth is affiliation.
Subsection 3 : DEFINITIONFiliation, designates stricto sensu, the descent of a person from its parents. Lato sensu, filiation may be seem as an infinite string of individuals between whom the act of birth established the parent child relationship. This notion shall apply even to the parentage relationship raised through the act of adoption, specifying that, in this hypothesis , we can not be in the presence of a biological relationship, by blood, instead we are in the presence of a civil affiliation, in which, by law, it follows the natural lineage. Subsection 4 : CLASIFICATION
Filation can be classified at least after two criteria : person to whom filiation is established and the relationship the persons who conceived and gave birth to the child : married or not married (in the Romanian law and Italian law, regarding the latter case, is indifferent whether the parents have a stable relationship, of cohabiting , or had only incidental intimate relationship )Filiation to the mother and filiation to the father. The filiation to the mother is called maternity, and the filiation to the father it is called paternity. This distinction is fundamental not only from a biological point of view, but even from a juridical one. Beyond the famous adage mater simper certa est pater simper incertus est, the regulations providing the means of establishing the two types of affiliation are different.
Filiation with in the marriage and out of wedlock. Unlike other legal systems which are using diversified legal terminology to describe the diverse ways of filiation, such as legitimate and natural filiation, general classification reflected, both in the Romanian and Italian Civil Code is in: the affiliation within the marriage and filiation out of wedlock, as the child's mother is married or not, at the time of conception or on the birth date of the child. Even if before 2012, I.C.C. still used to make the distinction between legal and natural child, respectively legitimate and natural filiation, after 2012 with the civil code review, the Italian legislator put the national legislation in accordance with the international treaties, thus adopting the above specified classification. Due to this ununiform classification, the European Court of Human Rights in its various case-law condemns the states which still maintains discrimination between children in relation to the way of birth. The states having the positive obligation to implement a regulation in accordance with art.9 of the European Convention on the Legal Status of Children Born out of Wedlock(Strasbourg 1975) which stipulates that the child born out of wedlock shall have the same rights as the child born with in the marriagePrecisely to overcome the remaining differences intervened in matters of filiation, most recently was Leg. No. 154/2013 which eliminated this clear differences between the status of legitimate child and the status of natural son. This intervention was necessary not only to fully implement the principle of equality recognized by the Italian Constitution in art.3, but also because the discriminatory concept based on birth, was sentenced expressly by the Charter of Fundamental Rights of the European Union, which prohibits in art.21 any form of discrimination based on a person's birth. Also at the international level, in conjunction with article 8 (right to respect for private and family life) with the article 14 (prohibition of discrimination) of the European Convention of Human Rights (ECHR) is the foundation of the ban on discrimination between legitimate children and born out of wedlock, as well as interpreted by the European Court of Human Rights.
The case law of the Court states that the protection of private life and family implies full protection