: Doing Legal Research in Romania
By Dana Neacşu
Dana Neacsu is a reference librarian at Columbia Law School, a lawyer and member of the bar of the State of New York, a former Romanian judge (1989-1990) and faculty member of the Romanian University School of Law (1990-1994). She holds an M.L.S. from CUNY (2001), an LL.M. from Harvard Law School (1994), a D.E.A. from Caen Université de Droit et des Etudes Politiques (1991), and a Diploma de Drept (J.D.) from Bucharest University School of Law (1989). She is author of Introduction to U.S. Law and Legal Research (Transnational, 2005)
This is an online guide to Romanian legal research. It provides information and links to print and online resources and is aimed primarily at researchers outside of Romania needing an overview of Romanian legal research.
Published November, 2007
Table of Contents
1. Introduction: The Romanian Legal System
2. Romanian Primary Legal Resources
2.4. European Legislation and Case Law
3. Romanian Secondary Legal Resources
3.1. Textbooks/Treatises & Legal Journals
3.2. WWW Meta-sites for Legal Research
4. Romanian Legal Organizations (Law Libraries, Law Schools, etc.)
4.2. Romanian Law Societies and Bar Associations
4.3. Romanian Law Libraries/Library Catalogs
4.5. Romanian Legal Publishers
5. Romanian Legal Research: By Topic
5.3. Bankruptcy and Insolvency Law
5.5. Civil and Criminal Procedure
5.6. Citizenship and Nationality (Immigration)
5.8.1. Competition (Antitrust) Law
5.17. Intellectual Property Law
5.18. International Private Law
There are two main legal systems in the world: civil law and common law. The Romanian legal system belongs to the first group, under which only the Constitution and other statutory legislation constitute a legitimate source of legal rules.
Therefore, unlike under the US and other common law systems,
· Formally, the Romanian legal system does not recognize case law or judicial precedent as a source of legal rules. Previously decided cases therefore are not binding upon lower courts and do not create "law";
· The doctrine provides the rule where the law is silent;
· Trials in the Romanian legal system do not have a pretrial phase during which, for instance, discovery might occur as it does in the common-law system. Instead, discovery or its equivalent occurs as the trial proceeds. In criminal cases, however, there is a pretrial phase;
· There are no jurors, and;
· The judge has a proactive role in searching for the judicial truth.
The Romanian legislative branch is composed of national and local bodies. Its main national body is the Parliament, which has two chambers: a lower house, the Chamber of Deputies, and an upper house, the Senate.
Parliament enacts statutes which are the main source of legal rules. Such statutes are officially published in Monitorul Oficial (Official Gazette).
Parliament also is the source of the Constitution, having enacted it as a species of supra-legislation.
In addition, Parliament may pass a special law enabling the Government to issue orders in fields outside the scope of organic laws (Constitution, Art. 115).
The county, urban and rural areas have their own autonomous ruling bodies, which, within defined geographical and jurisprudential boundaries, are empowered to enact binding decrees within their geographical areas (see Constitution, Chapter V. Sect. 2-a)
The Romanian executive branch has two main components: the Government and the President.
The Government consists of a Cabinet, which includes the Prime Minister and ministers of the various Ministries. Each Ministry has its own web site and can be contacted by phone, fax or email. For example, sources about The Ministry of Foreign Affairs are available here. Equally available is information about the role of its Legal Affairs Department: to coordinate the Ministry's role in the domestic application of international treaties (including the EU treaties) to which Romania is a party.
The public phone numbers for the Ministry's Legal Affairs Department are +4-021-319-2199; +4-021-319-2200. Fax communications can be sent to +4-021-319-2354, and emails can be sent here.
The Government issues Decisions and Orders (see Constitution, art. 108) whose brief subject-matter descriptions can be viewed The President may issue Presidential decrees (see Constitution, art. 100). The ministers also issue a large array of rules, regulations, and decisions (Ordine si Hotariri) (see the rules issued by the Minister of Justice). Additionally, national administrative agencies may issue rules and regulations (Oridine) (see the rules issued by the Agentia Nationala de Control al Exporturilor - ANCEX (The National Agency of Control of Exported Products). Finally, the Government appoints a Prefect in each county and in the City of Bucharest, who is its representative at the local level. (Constitution, Art. 123). Random executive orders from both the national and local level may be freely accessed on-line.
The judicial system is divided into civilian and military courts. The civilian courts, generally, continue their pre-1989 structure of being organized at national, county (judeţ- 44 in total), and local levels.
Romanian justice is organized on the principle of double jurisdiction. Therefore, any case decision from a first-instance court (judecatorie) is subject to a complete de novo retrial on the facts, the procedure and the law by an appeals court (tribunal). The tribunale hear appeals (de novo) from the judecatorii. Tribunale may also act as a court of first instance for administrative and commercial law cases, including bankruptcies and the more important or serious civil and criminal cases.
Before 1989, the Minister of Justice was responsible for the administration of justice. After 1989, the Supreme Court of Justice and lower courts have that responsibility:
"Justice shall be administered by the High Court of Cassation and Justice, and other courts of law set up by the law." - (Constitution, Art. 126)
Additionally, under art. 131 of the Constitution, the Public Ministry is charged with the duty to represent the general interests of society and to defend the legal order, as well as the individual rights and freedoms. The Public Ministry, which discharges its powers through a system of Public Prosecutors, replaced the former Office of the Prosecutor General (Procuratura) - which had been established in 1952.
Civilian judges and Public Prosecutors are nominated by the Superior Council of the Magistracy. Once thereafter appointed by the President, judges are, by law, irremovable and therefore enjoy life tenure, under article 125 of the Constitution. The Council acts as an administrative/disciplinary organ within the Ministry of Justice. (It should be well-noted that, because judicial precedent is not a recognized source of law -and thus judges do not "make law" - and, further, because normal judges cannot exercise judicial review (see below), the professional status and importance of judges is very different, and generally less, than that enjoyed by common-law judges.)
Unlike the US Supreme Court, the Romanian High Court cannot exercise judicial review in deciding the constitutionality of legislation. That function is reserved for a different court, the Constitutional Court (see Constitution, art. 144)
Formally, Romanian courts apply only statutory laws, which are created by the legislature, and in some circumstances by the executive, but never by courts, and thus never include judicial precedent. The law is structured hierarchically, with the Constitution at the top, then codes and parliamentary statutes, and, at the bottom of the hierarchy, executive "laws." Before 1989, Romanian laws issued by the Parliament were published in an official journal called Buletinul Oficial al Republicii Socialiste România, and those issued by the Government were published in Colectia de hotarîri ale Consiliului de Ministri si alte acte normative. Those publications became Monitorul Oficial al Romaniei (Official Gazette) after the 1989 political changes.
The Columbia Law School Diamond Law Library has both Buletinul Oficial (the Romanian Gazette) and Colectia de hotarîri in its collection
The New York University Law Library has Monitorul Oficial in its collection.
Online, some legislation is available through the web page of the official legal publication, Monitorul Oficial.
When a statute is silent as to a particular set of facts, scholarly texts (textbooks and treatises) are heavily used by judges. The law libraries of Harvard Law School and New York University School of Law have large collections of such Romanian works.
Although legislative history is not as an important tool of statutory interpretation as it is in the United States, for those interested in it, the American Bar Association's Central and East European Law Initiative (CEELI) has posted on line a number of domestic draft law assessments in the Commercial, Environmental, Executive, and Media fields. Since these assessments are made, however, by non-Romanian consultants, their status as legislative history or even its equivalent is questionable.
The Romanian legal system, like any other civil law system, does not recognize legal precedent as stare decisis.
For example, although courts at every level are aware of the Constitutional Court's decisions holding laws unconstitutional, being officially published in Monitorul Oficial (Law No. 47 of 18 May 1992), they do not bind ordinary courts faced with similar cases. Every time a court is confronted with an unconstitutional statute, it has to defer the matter to the Constitutional Court, and await its decision in every such case, before the matter at issue can be retried upon one party's request. Selected decisions of the Constitutional Court are available on-line in English. The Court's selective on-line archive goes back to 1992. Various academic libraries, such as Columbia Law School Library carry the collection of decisions of the Constitutional Court, under the title Monitorul Oficial, Decizii si hotarâri.
On the other hand, the decisions of the highest Romanian court, Înalta Curte de Casaţie şi Justiţie a României (which, of course, are limited to statutory application and interpretation and do not address issues of constitutionality) are consciously followed by lower courts' judges in an effort to unify the law of the land. Although there is no system of general publication of judicial decisions similar to that in the US (see the Atlantic Reporter, etc.), its decisions from 2003 onward may be accessed to a certain extent on-line. Often only their summaries (all in Romanian) are available. However, the search may be done by subject matter, by typing words contained in the text of the decision.
Romania ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms (with only one reservation regarding military discipline).
By ratifying this convention, Romania has agreed to enforce the rights guaranteed by the convention, including the right of individual petition to, and the obligatory jurisdiction of, the European Court of Human Rights (ECHR) . Accordingly, any Romanian citizen may bring a case against the Romanian State before the Court and the decision will be binding upon the Romanian State.
Some of the Courts' decisions regarding Romania may be viewed here, while its current docket may be viewed on the EHCR page.
After a long and sinuous accession process -- Romania presented its application for membership in the European Union on 22 June 1995 - Romania was finally admitted to the EU family on January 1st, 2007. As a result, Romania has a judge in the Court of Justice of the European Communities (EJC) and another one in the Court of First Instance (CFI). Both judges are appointed for a six years term, which can be renewed.
The ECJ has the power to settle community legal disputes between EU member states, EU institutions, businesses and individuals.
The CFI is responsible for giving rulings on certain kinds of case, particularly actions brought by private individuals, companies and some organizations, and cases relating to competition law.
Thus, if ECJ interprets Community law, the Romanian national courts will be expected to apply the EJC's interpretation of Community law to the facts of the case.
Textbooks/Treatises:
Instead of textbooks, so common in North American law schools, the most common type of legal academic work in Romanian law schools is the legal treatise, which explains legal principles as applied to one legal area. Harvard Law School, New York University Law School, and Columbia Law School all carry Romanian legal treatises.
Legal Journals:
The major public law schools have their own law reviews. For example the Bucharest Faculty of Law publishes Analele Universitatii Bucuresti. Drept, and the Cluj Faculty of Law publishes Analele Facultatii de drept din Cluj.
The Columbia Law School Diamond Law Library has in its collection Analele Universitatii Bucuresti. Drept as well as Analele Facultatii de drept din Cluj.
Additionally, one of the most influential Romanian law reviews is Dreptul (The Law), which superseded Revista Romana de Drept (The Romanian Law Review) which superseded Justitia Noua (New Justice), published by Uniunea Juristilor Democrati Din România (The Union of Romanian Democratic Lawyers). Other legal periodicals are Studii si Cercetari Juridice (Legal Studies and Research), and Revue roumaine des sciences sociales. Serie de sciences juridiques, both published by the Institute of Legal Research of the Romanian Academy. One of the most useful legal periodicals for a practitioner is Revista de Drept Comercial (The Review of Commercial Law) published by a commercial publisher, which contains notes, commentaries, and articles on newly evolved legal issues.
For example, the Columbia Law School Diamond Law Library has Dreptul in its collection, while the New York University Law Library has Revista Romana de Drept in its collection, as well as Revue roumaine d'études internationales.
Although not published in Romania, The East European Constitutional Review, which is published by New York University Law School and Central European University, also contains articles focused on Romania, such as Constitution Watch: A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR.
General sources:
· The Global Legal Information Network (GLIN) is a U.S.-governmental database which "maintains and provides a database of laws, regulations, and other complementary legal sources."
· Part of the FindLaw legal search engine
· An English guide to foreign and international databases edited by Mirela Roznovski, New York University Law Library
· Romanian database of various legal codes
· Romanian database of central legal codes assembled and maintained by Iulian Gherghevici
· This English-language database is a portion of Pritchard Law Webs' Internet Law Library, which is the successor to the US House of Representatives Internet Law Library
· Legal search engine maintained by Washburn University School of Law Library
· CORPVS WEB is a Romanian legal database
Specific Sources:
· Herzfeld & Rubin's Romanian Digest - an update of Romanian legislation at the
· Legislatie (laws, cases in vernacular) at the Romanian Ministry of Justice
Miscellaneous:
The Romanian higher education system comprises both public and private law schools. The major public law schools are faculties within the major universities: Bucharest University - Faculty of Law, Iasi University, and Cluj University. Aside from those, there are few other public schools, and scores of private law schools who attract those who failed the entrance exam to the public law schools.
Students at both public and private law schools have to pass an admission test (or have obtained certain grades in high school and, for private schools, pay certain fees), and must complete four years of study.
Generally, the first year includes:
General Theory of Law, Romanian State and Law History, Romanian Constitutional Law and Political Institutions, Roman Law, Civil law (I), Management, Political Economy or Philosophy, Sociology, Latin, and/or a foreign language.
The second year includes:
Civil law (II), General Penal Law, Administrative Law, International Public Law, Financial Law, Criminology, Accountability, and International Protection of Human Rights.
The third year includes:
Civil Law (III), Special Penal Law, Procedural Penal Law, Trade Law Work and Social Security Law, EU Law, Banks and Currency Law, Competition Law, Intellectual Property Law, International Trade Law, International Private Law, Criminal Investigation, (IV), Procedural Civil Law, Forensic Pathology, Family Law, Civil Jurisprudence, Penal Jurisprudence, and License Examination Training.
As in the US, after graduation and receipt of an approved law degree, students must pass a National Examination in order to legally practice law. Unlike in the US, after graduation, candidates must complete two years of supervised practical training leading to an examination, which once passed ensures full qualification.
Law Societies:
Law students have always been organized-- before 1989, as part of the so-called Communist Party, per each public law school, and after 1989, these associations became organized according to interests less ideological and more economic or commercial, see, for example, ELSA.
Professional/Bar Associations:
After 1989, the rules of legal practice were provided by Law no. 51 of 7 January 1995, on the profession of advocate.
Currently, Romanian jurists have a variety of professional associations:
The largest one is Uniunea Nationala a Barourilor din România - UNBR (The Romanian National Bar Association):
Str. Dr. Râureanu nr. 3-5, Etaj 2, Sector 5, Bucureşti, România
CF 4315794
Tel: +4021-313-8631 / -4875 / -4876
Fax: +4021-313-4880
E-mail: uar@uar.ro
Each county, including Bucuresti (Bucharest), the capital, also has bar associations. See Baroul Bucuresti (The Bucharest Bar Association), str. dr. Raureanu nr. 3-5, sector 5, Telephone: 0213.154.538, Fax: 0213.121.084.
Generally, each public law school, each court of appeal, and district courts in major cities have a law library.
After 1989, the state bar became privatized and currently there are many private law firms in the cities where courts are located. Additionally, international law firms have opened offices in Bucharest. Some of them may be contacted via the Internet:
Regia Autonomă "Monitorul Oficial" publishes Romanian legislation, including the Romanian Official Gazette, and collections of foreign translations of Romanian laws.
Romanian administrative law is legally framed by the following statutes:
It should be well noted, however, that the term "administrative law" has a meaning quite different from its common-law counterpart. It is not agency law, in the common-law sense, but deals with the entire, and relatively autonomous, body of law within the jurisdiction of the Government as opposed to that deriving from Parliamentary statutory law.
After 1989, the Romanian Parliament adopted banking laws mirroring the privatization changes, and they used to available online. Currently, Romania has a national Bank and a multitude of private banks, a list of which can be found on the national Bank's site.
Strong supporters of economic changes in Eastern Europe, the World Bank and the International Monetary Fund (IMF) have been increasingly involved in Romanian politics. Both institutions support the privatization of Romanian financial institutions, whose legal regime was established by Law no. 83/1997. Their economic power, and Romania's financial condition, means their decisions frequently had legal, as well as political, consequences.
However, since this guide was first written in 2000, the World Bank's conditional commitments to Romania, totaling US$3 billion, have remained unchanged. (See, World Bank - Romania)
Originally, issues of bankruptcy were governed by the Commercial Code. Currently, Law no. 64 of 22 June 1995 regulates both the procedures for reorganization in commercial insolvencies and those for judicial liquidation. In addition,
The body of Romanian law that defines the entire Romanian legal system is codified under the title of Codul civil român (The Romanian Civil Code). The Code came into force on Dec. 1, 1865. The Civil Code, which follows the French Civil Code of 1804, was reinstated after 1989 (see Monitorul Oficial 21 Nov. 1991), excluding the sections on persons and personal status which are currently contained in Codul familiei (Family Code) and Decree no. 31 of 31 December 1953, and Decree no. 32 of 30 January 1954, both published in Buletinul Oficial from 30 January 1954. The text of the Romanian Civil Code is available online.
However, it is worth noting that there is a draft of the Civil code currently being considered by the Chamber of Deputies.
The Civil Code is divided into four parts:
The New York University Law Library has ordered for its collection a recently published introductory textbook on Romanian civil law: Boroi, Gabriel, Drept civil. Partea Generala. Bucharest : Editorial All, 1998
For a more condensed explanation see, Flavius A. Baias, Romanian Civil and Commercial Law in Frankowski, Stanislaw & Stephan, Paul B. (editors), Legal reform in post-communist Europe: the view from within, 1995.
While the 19th century Code of Civil Procedure is still enforced (see Monitorul Oficial 26 July 1993) largely in its original form, the 19th century Code of Criminal Procedure was abrogated and replaced by the 1968 Code of Criminal (Penal) Procedure, which was substantially amended in 1973, 1996 (see Monitorul Oficial 14 November 1996), 2003, and 2005.
The Code of Civil Procedure is divided into seven books, or parts.
The first part covers judicial competency, the second covers certain general rules of procedure during trials, the third part covers other general rules of procedure, the fourth part covers arbitration, the fifth part covers execution and attachment, and the sixth part contains specific rules of procedures governing specific types of trials, such as divorce. The last part contains transitional rules adopted in 1993.
The Code of Criminal Procedure is divided into two main parts: a general part and a special part. The general part is further subdivided into five titles:
The special part is further divided into four parts:
Major procedural reforms were introduced by Law no. 281 of 24 Jun 2003 and Emergency ordinance 66 of 10 Jul 2003 as well as Emergency ordinance 55 of 25 June 2004. The text of the Code of Criminal Procedure is available online.
Law no. 21 of 1 March 1991, published in Monitorul Oficial 44/1991, establishes new rules governing citizenship. Law no.15 of 2 April 1996, published in Monitorul Oficial 69/1996 governs the legal status of refugees.
After 1989, Romania adopted a series of new laws in a desire to ensure the rapid change of power. Among them are the new communications laws, including telecommunications and satellite transmissions (see Law of 12 July 1996 about postal service, published in Monitorul Oficial no. 156/1996, and Law no 504 of 2002 about radio and television, published in Monitorul Oficial no. 534 of 22 July 2002.
The 19th century Commercial code (Codul comercial), which followed the Italian model, is still enforced, although some of its provisions have been abrogated or amended. The code is divided into four parts (books).
The first part is further subdivided into fourteen titles containing general rules of commerce (agents and acts of commerce). Title XIII contains insurance rules, some of them having been abrogated by post 1989 legislation.
The second part is further subdivided into nine titles containing maritime law rules.
The third and fourth parts contain bankruptcy rules, which have also been abrogated. (See section on bankruptcy)
After 1989, the Romanian Parliament adopted legislation pursuant to the government's decision to adopt a capitalist legal system.
· Law no. 15 of 31 July 1990, published in Monitorul Oficial no. 98/1990, governs the reorganization of state-owned enterprises as autonomously administered concerns and specifies the procedures for privatization and creation of privately held business associations.
· Law no. 26 of 5 November 1990, published in Monitorul Oficial no. 121/1990, provides the commercial and trade registry rules.
· Law no 31 of 15 November 1990, published in Monitorul Oficial no 126-27/1990, covers the formation, powers, activities, and liquidation of partnerships, companies with limited liability, and joint stock companies.
· Law no. 58 of 31 July 1991, published in Monitorul Oficial of 16 August 1991, amends and improves Law no. 15 in the area of commercial privatization.
· Law no. 36 of 30 April 1991, published in Monitorul Oficial no 97/1991, contains the rules for the creation of private agricultural entities.
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