Considerations on the Draft regarding the amendment and addition of Law no. 287/2009 on the Romanian Civil Code, of Law no. 134/2010 on the Romanian Code of Civil Procedure, as well as other regulations on the protection of persons with disabilities

Abstract

The implementation in the national legislation of the principles established by the New York Convention of 2007, regarding the rights of persons with disabilities, desideratum to which the decision of the Constitutional Court no. 601 of 16 July 2020 is referring, requiring a paradigm shift in regulation: limitation of capacity or loss of capacity will have to comply with the principles of necessity, proportionality, and subsidiarity. The legislator will have to offer, through the new regulation, a protection system with variable geometry, which will allow the guardianship court to modulate the capacity limitation according to the material circumstances under which the vulnerable person finds him/her/self both from the perspective of mental faculties and from the patrimonial status. The new regulation will have to find a balance between the predictability of the limits of the capacity of exercise, demanded by the security of the civil circuit, and the proportionality of the protection measures, which should be modulated on the respective status of the person subject to the measure.