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Cosmin DARIESCU: An explanation on the law applicable to the name of the child according to the new romanian Civil Code (Law no.287 of 2009 republished in 2011)

Abstract: This paper aims to discover a remedy for the conflict between two rules on the law which governs the name of the legitimate child. While Article 2576 paragraph 2 of the new Romanian Civil Code provided for the choice between the common national law of the child and his parents and the law of the State where the child was born and bred, Article 2603 Civil Code provides that the name of the legitimate child will be governed by the law of the common habitual residence of the spouses, by the spouses’common national law (if there is no common habitual residence) and by the lex loci celebrationis (if there is neither a common habitual residence nor a common national law). Under such circumstances, what is the purpose of Article 2576 paragraph 2 of the Romanian Civil Code? It should be the choice-of-law rule on the name of illegitimate child, but neither the authentic text (which make no specification and considers that the two parents are well known) nor the logic (the law that governs the filiation of the natural child is the same as the law provided for the name of the natural person in paragraph 1 of Article 2576 Civil Code) support this thesis. Considering the previous regulation on the law applicable to the name of the child (Articles 14, 25, 26 and 28 of the Law no. 105 of 1992), we assert the necessity to repeal paragraph 2 of Article 2576 Civil Code in order to restore the system of finding out the law that governs the name of the child imposed by Law no. 105 of 1992.

Key words: Conflict of laws, child's name, Civil Code, Romania, choice-of-law rules, legitimate child, natural child

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