UNIVERSIT DEGLI STUDI DI MILANO

FACOLT DI GIURISPRUDENZA DRITTO DI FAMIGLIA

UNIVERSIT DEGLI STUDI DI MILANO FACOLT DI GIURISPRUDENZA

CORSO DI LAUREA IN GIURISPRUDENZA

FILIATION

the LEGAL

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 IV

CHAPTER V

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 of family relations and under art. 8 ECHR are protect both the relations based on marriage, and those between parents and biological children. In particular, the Strasbourg Court has ruled that in the name of respect for family life, is not possible to discriminate between legitimate and natural children. It is the fact of birth to give rise to a bond between parent (or parents) and the minor.

The position of the recognized natural child is so similar to that of a legitimate child, and the trend is to end the differences between legitimate and natural children, so that even in the legislative language Law no. 219 \ 2012 ordered in art. 1 paragraph 11 that: "In the Italian Civil Code, the words" legitimate children "and" natural children ", recur everywhere, are replaced by the following:" children, "a standard that will create problems as it has been formulated.

Therefore, the only criterion for distinction, purely terminological, should be between children born in marriage and children born outside of marriage (ex. art. 250 cc as amended by L. no. 219 \ 2012).

The purpose of the Law n.219 /2012, which amended several articles of the Civil Code it was to put an end to the differences in treatment between children, because they may be understood to be a privilege to be born within a marriage, than those born out.

Another important point to be analyze takes in considerations the principle conditions that have to be meet in order to be in the presence of a child born within a marriage or, respectively out of wedlock.Therefore, are are children of the marriage the following ones. The children born during the parents marriage, meaning in the period between the parents entered into the marriage and the date when the marriage ends or it is dissolute. Likewise, the child born within a void marriage it is considered from the marriage, because the nullity of marriage does not have any effects on the juridical status of the child. The second hypothesis it is the one regarding the children conceived during marriage, even if they were born after the dissolution of the marriage.The Italian doctrine, makes the distinctions between the following four assumptions : the child was born during a valid or putative marriage between the parents, the child was born by the married women, the child is her husband child and, not at least the conception occurred in wedlock.

In the Italian law, for proving the existence of the first two conditions there are no difficulties, but for the other two direct evidence proves impossible and the law intervenes with its presumptions. The test is easy for the marriage as well as for maternity for which it is needed only the birth certificate: mater semper certa est. But, because the pater numquam certus, the law intervenes with a presumption. The famous presumption of paternity under art. 231 of the I.C.C.: the childs father is simply the mother's husband.This is a rebuttable presumption, with limited evidence to the contrary: the evidence to the contrary is allowed only in cases strictly specified in art. 243-bis, I.C.C. through the exercise of action in denial of paternity. The other assumption, conception in wedlock,is wrapped in a veil of mystery, because the known physiological laws do not give us a clear rule about the length of gestation. The legal presumption in this case, that traditionally presumed to be lawful, in diversity of the other that we just talked about, is irrebuttable presumption, as regards the child born in the period indicated. Art. 232 I.C.C. says that it is assumed conceived during the marriage the son born when have not yet passed 180 days from the celebration of marriage and have not yet passed 300 days from the date of the cancellation, the dissolution or termination of the onboard effects of civil marriage.

For obvious reasons, the legislature likely goes a step further and equalizes the child conceived in wedlock with the child born in marriage, though, having been born in the first six months, his conception was certainly illegitimate. Here, however, there is no absolute attribution of legitimacy, and admits an opposition by the father or the son, with an action which in this case is called repudiation. The two presumptions of paternity and legitimacy, intimately linked to each other are inspired by the so-called favor legittimatis; recognizes a tendency to admit where possible, the legitimacy of the children. Para.(2) of the same article states that the presumption of paternity is not legitimate during the expiration of 300 days from the decision of a judicial separation or the approval of separation agreement, or from the date of the appearance of the spouses before the court, when they have been allowed to live separately while awaiting the judgment of separation, or dissolution or annulment of marriage. The couple and their heirs, however, can prove that the child was born after 300 days of the cancellation, or the dissolution of marriage, but it was conceived during the marriage, so you may prove that the pregnancy was of longer duration than the norm. In any case, the child may propose action to claim the status of legitimate. It is understandable why the presumption of paternity of the husband does not operate after the expiration of 300 days from the separation of the spouses: ceasing the obligation of marital fidelity appear incongruous permanence of that presumption. Upon expiry of the time prescribed by law, which is the normal gestation, the successful birth of a child, probably, is not attributable to the husband, in that, while surviving the separation of the marriage bond, or ceases one of the most significant duties, which that of loyalty.The status of a legitimate child you buy even if its birth is after the death of the husband of the woman who gave him the light. Art. 232 is presumed conception during marriage, when 300 days have not elapsed from the date of its dissolution, which occurs, in fact, even for the death of one spouse. Death, while extinguishing the bond of marriage, can not terminate the state on filiation, although the same is to find, in this case, a content less wide. The death of his father prior to the birth of the child in fact, precludes any parental authority, as well as the right to maintenance and education of her, but does not prevent the onset of certain rights to the name and inheritance rights.Are children out of wedlock, the children conceived and born outside the marriage, as it follows: the children conceived and born before the marriage, after the marriage ended or children conceived and born from parents that had not been married at all.Per a contrario, the children not born within a marriage, more accurate if the law in subject is not complied we are in the presence of a children born out of wedlock. Even in this respect, it is significant that, in term of motherhood, the classification is purely decorative, because establishing parentage to the mother knows a unified regulation without distinguishing between the child born within the marriage and the child born out of wedlock. On the contrary, regarding paternity, classification remains indispensable, the law distinguish between the models of establishing paternity, depending on whether the child was born within the marriage or pout of wedlock. Indeed the paternity to the child born in wedlock is established by the presumption of paternity that The mothers husband is the father (pate rest quem nuptiae demonstrat) while the paternity of the child born out of wedlock is established wither by voluntary recognition or by court order, in the action to establish paternity(art. 231 I.C.C. respectively art.414 R.C.C.)SECTION 2. FILIATION AND THE LEGAL STATUS OF AN INDIVIDUAL.It is an indispensable connection between the civil status of a person and affiliation. Practically, the filiation type, enter the structure of the civil status of a person. In the same time, affiliation it is not only a biological connection, by blood, but also a legal connection. This is way, in order to produce the effects provided by law , filiation must be established and proven through the means recognized by the law.Subsection 1 : PROOF OF FILIATION According to art.409 R.C.C parentage is proven by the birth certificate issued in the civil status Registry and by the birth certificate issued on the basis of it, and in the case of the child from marriage, he proof is made through the birth certificate and by the parents marriage certificate, listed in the civil status Registry, and by also by appropriate civil status certificates. The Italian Civil code provides a more succinct regulation in art.235 ICC stating that the filiation will be proved with the birth certificate registered in the civil status registryHowever, the birth certificate is not the only means of proof of filiation in the Romanian law. When filiation is challenged or when it comes to the establishment of motherhood or paternity, since it is the case of legal facts, proof may be brought is by any means.The birth results from the vital records that are obtained from the offices of each municipality and are public. The birth certificate is nothing but a document packaged by the officer of the civil status based on the declaration of birth. The birth certificate formally establishes the parent-child relationship, the title of state, and shall be the principal means of proof. In its absence, there can be used another means of proof such as, the possession of state. In the Italian system, the declaration of birth, which must be made within 10 days from the birth, at the municipality in whose territory the confinement took place or, alternatively, within three days, at the health department of the hospital, or nursing home where the birth took place. Is made, without distinction, by one of the parents, or by a special prosecutor, or the doctor or midwife or other person who was present at the birth, respecting the possible will of the mother not to be named. In comparison with the Romanian legislator which provides a longer term, more precisely , the declaration of birth must be made within 15 days from the birth.

Subsection 2: POSSESSION OF STATETraditionally , use of civil status" or" possession of state " was defined as the legal status resulting from the cumulative meeting of three elements : nomen, tractus and fama. Nomen means the individualization of the person by wearing the name corresponding to the alleged civil status. Tractus consists in treating, consideration by the appropriate individuals, as the person with the civil status used. Fama means the recognition, in family and society, as the person with the civil status that he claims.Ro.Civil Codes integrates in art.410 a definition and the elements of possession of state. Therefore, possession of state it is defined as the status quo which indicates the lineage links and relationship between the child and the family to which allegedly belongs. It consists, in principal, in any of the following circumstances:

a) a person acts toward the child as its own, caring for raising and educating him, and the child behaves toward this person as his parent;

b) the child is recognized by family, society and, where appropriate, by public authorities, as the person who is claiming to be his parent;

c) the child carries the name of the person who is pretending to be his parent.

Para.(2) of the above mentioned article states that : Possession of state must be continuous, peaceful, public and unequivocal.

The definition includes the traditional elements that the juridical doctrine had identified in the structure of the possession of state, with the specifying that the enumeration is not limitative.

Effects. As included in the legislation of many other legal systems, the Civil Code regulates the effects of possession of state in this field. First of all, in the field of the maternity, possession of state that complies with the birth certificate creates an irrebuttable presumption of existence of that civil state. Thus, according to art.411 C.Code, no person can claim lineage to another mother than that resulting from his birth certificate and possession of state consistent with it. Withal, no one can claim parentage to the mother of the person who has a possession of state consistent with his birth certificate. However, if by a court order is established that a substitution of child occurred or that it was registered as a mother of a child another woman than the one who gave birth to the child, it can be proven the true lineages by any means

Correlative, according to art. 421, par.(1) Ro.C.Code, any person may claim, at any time, by action in justice, affiliation established through a birth certificate which it is not in accordance with the possession of state.

Second of all, possession of state is a rebuttable and relative presumption, in the sense that the affiliation proved by it corresponds to reality shows. Along with other means of evidence, presumption based on the use of civil status may be invoked in an action in establishing maternity or, if necessary, in an action in establishing paternity outside the marriage. According to par.(2) of art.421 R.C.Code, in case of contestation of filiation, affiliation is proven by medical certificate of birth, through forensic expertise establishing parentage or, in the absence of the certificate or in case of impossibility to perform the expertise by any means, including the possession of state. Therefore, possession of state, is by itself a means of proof in subject of filiation.

The Italian legislator states in art.236 that in the absence of the birth certificate, the lineage can be proved trough a continuous possession of state of a legitimate child. Such failure, to provide the birth certificate, may be due to various causes: destruction of vital records and failure to declare the birth. Possession of State in its essence has the same foundation of protection of possession which is the protection of the status quo: this is assumed corresponding to the right until it is proven otherwise. It results from a set of facts which suggests the relationship of the child with the parent and with family. The italian doctrine gives the following definition of the components of possession of state. First of all, the nomen, means that the child must have always carried the name of the parents. The tractus, is required that the child has received the treatment granted to legitimate children, both from his father and family; fame, that is the consideration of the child in social relations must have been that enjoyed generally by any legitimate children.As seen in art. 410 of the R.C.C. , art. 237 of the I.C.C. offers, more or less the same three circumstances that have to be meet in order for the possession of state to be legitimate. Thus, according to art.410 I.C.C. possession of state results from a series of facts which together shows the relationship of filiation and kinship between a person and he family to which it claims to belong. Thus it must be taken into account the follwong facts: that the parents have treated the child as their own; providing him the place where to stay and education, and not at least maintenance; that the person has been consistently considered as such in the social life and not at least, that it had been recognized as having that quality by the family.

In the same vein, such regulations stipulated in Romanian legislation can be found in the Italian legislation. Thus, possession of State is not relevant in the face of a different birth certificate; instead validates the content if it fulfills the same. Exceptions are provided for the denial of paternity and for the challenge of motherhood. No one can challenge a state resulting from the compliance of the two elements. Therefore, those who find themselves in this situation can not claim a different state. If missing, beyond the birth certificte, proof of filiation may be given by witnesses, also useful in cases where the child has been placed under a false name or as born of unknown parents. It is necessary, however, that there is prima facie evidence accepting office in writing - for example, family records - or that the presumptions and the clues are severe enough to determine the admission of the evidence of witnesses; in contrary , this test will not be admitted. Through the possession of state, you can also compensate the absence of the birth of the natural son; the sufficient demand being the incidence of tractus and fama. The parentage to the child orn out of wedlock, can be prove by any means. SECTION 3RECOGNITION OF FILIATION - ACT OF CIVIL STATUSSubsection 1 : GENERAL CONCEPTSCivil status of an individual is based on certain facts or legal acts of civil status. Among the acts interesting filiation, the most important one is the recognition of filiation. Recognition of filiation represents the unilateral juridical act which is, at the same time, a civil status act - by which a person declares about the lineage between her and a child which claimed to be his own. Recognition of filiation can be, a recognition of maternity or paternity, by case.

Subsection 2: LEGAL NATURERegarding the juridical nature of the act, both in Italy and Romania, it is opportune to frame out that it has a double legal nature. On one side, it is a means of proof, more precisely a confesion, and on the other hand it is a legal act, namely a unilateral legal act, consisting in the will of the author, in the sense to recognize the parent-child relationship between him and a certain childIn the Italian doctrine, there is debate about the legal nature of the recognition because it has doubts that the nature of negotiations.It is true that the legislature has given maximum value to the will contained in the act (and this might suggest the thesis that sees it as a legal transaction), but it is also true that the recognition is irrevocable even if contained in a will, and what does suggests that the legislature has given the prevalence to the interest of the child, even against a subsequent will of those who approved them. is certain, however, that recognition is unilateral legal act, voluntary and non-discretionary.Subsection 3 : LEGAL CHARACTERSRecognition of filiation is a civil status act, extra-patrimonial. It is a unilateral legal act, because it is valid only through the manifestation of will of its author. It is a declarative act, because its object is not the creation of a new kinship but instead the filiation relationship based on the legal fact of birth or conception of the child. It is a irrevocable act. The fact that the author of the recognition can claim the recognition which is not in accordance with the reality does not alterate the irrevocable character of the recognition act, because we are in the presence of two different situations. Annulment is also a unilateral manifestation of will, but to the contrary, for the reason to annul the effects of the annulled act and depends only on the will of its author. Recognition can not be annulled arbitrarily, because it would infringe the principle of confession, and the civil status of an individual it is on the interest of the entire community and therefore the legal order of the state itself, which can not be met assigning a false lineage, alleging the existence of a civil statute based on a lie. It is a personal act and not at least it is a solemn legal act, which must be drawn in the forms regulated by law. Subsection 4: SUBSTANCE CONDITIONSForasmuch it is a legal act, the recognition must comply with all the conditions ad validitem provided by law: capacity, consent, object and cause. Capacity.Even if it is a legal act, it is not binding that the author of the recognition to have full exercise capacity, therefore it is sufficient to be made by a person which has judgement. In this sense, art, 417 Ro.C.C. stipulates that unmarried minor can recognize by himself his child, if he has judgement at the time of the recognition. The consent must be free and uncorrupted. The cause of the recognition it is constituted by the establishment of the filiation between the author of the recognition and the child allegedly yours and the object is the very fact of filiation.Subsection 5: FORMBeing a solemn legal act the law provides all the conditions that the act must meet. Therfore as stated in art.416, par.(1) R.C.C., the recognition my be made in the following forms:a) by statement lodged to the civil status service,

b) through authentic document, if so a copy of it is automatically transferred to the competent civil service, to make the corresponding entry in the civil status registryc) by will.

In the same manner, the I.C.C. stipulates that the recognition can only be made in the manner provided by law, in contrary the act is null. Therefore art. 254 I.C.C. regulates the forms of recognition as it follows:

a) in the birth certificate

b) through a specific statement, after the birth or the conception, in front of a public official

c) in a public act

d) in a will (in this case will take effect from the time of death of the testator if the will was revoked), whatever the form of this is.

e) Through an action introduced in front of a Guardianship judge.

Once completed, the recognition is irrevocable.Clearly it makes sense to speak of recognition only to children born outside of marriage and not for legitimate ones that, as we have seen, they acquire this status automatically when the conditions provided for by law are meet. The recognition, however, does not occurs automatically, but it is produced only in the circumstances provided in the Civil Code Articles 250 and following of the ICC and art. 415 and follwoimg of the R.C.C.Subsection 6: REGISTRATIONAccording with art.43 letter a) from L. no 119/1996 regarding the civil status acts, establishment of filiation through recognition will be registered by reference on the childs birth certificate. The registration of the reference on the chids birth certificate shall be made ex officio or at the request of the interested, on the basis of the recognition drafted, in accordance with the law, and is a measure of publicity for enforceability against third parties. In the same manner art. 49, letter k of D.P.R. no.396/2000 states that in the birth certificate are noted the acts of recognition, made in any form.Subsection 7: CONTESTATIONAccording to art.420 R.C.C., the recognition that is not in accordance with the reality can be challenged anytime by any interested person. Surely , there can be situations when, by error or by will, it had been done a recognition which is not in accordance with the truth. In order to remove this legal kinship and reestablish the biological truth, the law gives to the one interested the possibility to make the proof in the contrary, through an action in contestation of the recognition of filiation. In proving the merits of the action it can be used any proof. Bow task incubates to the applicant.

Nevertheless, art.420, par. (2) of R.C.C., institutes an exception, that reverses the burden of proof, according to, If the recognition is disputed by the other parent, the child recognized or its descendants, the proof of parentage is in responsibility of the author of recognition or his heirs.

According to art.43 leter. b) of L.no.119/1996, the contestation will be registered by reference on the childs birth certificate. In the same manner, the italian Civil Code, gives the possibility to the person interested, to introduce a contestation if the recognition is not in accordance with the status quo. Subsection 8: ANNULMENTDue to the fact that the recognition of affiliation is a legal act, if the act is draw without compliance with the legal provisions, the act will be subject to an absolute or, by case relative annulment.

Absolute nullity. Art. 418 provides the legal framework and stipulates that, the act is absolutely null if : a) has been recognized a child whose parentage, established by law, has not been removed. However, if previous affiliation was removed by court order the recognition is in force

b) was made after the death of the child, and he did not left natural descendants

c) was made in other forms than those provided by law.Relative nullity. Given the special legal nature of recognition, that borrows the characteristics both of a legal act, as well as those of a means of proof, it raised the question of whether this category of unilateral acts is consistent with theory of vices of consent or is an exception to the rule according to which unilateral legal acts may be null and void if the consent was vitiated. Even if, the reality is that the consent of the author was vitiated by error, fraud or violence, it must be recognized the possibility to introduce an action in annulment on the basis of it. The rights of the recognized child, in such a situation will not be violated due to the fact that, if the recognition is in accordance with the reality, and the author refuses to draw the recognition act after the admission of the application for annulment, the child has at his disposal action in establishing filiation. R.C.C. regulates this solution expressly in art.419 par.(1), which establish that recognition may be annulled for error, fraud or violence. According with par.(2) The prescription of the right of action starts from the date at which the violence ends or, where appropriate, the discovery of the error or fraudRegarding the subject of nullity , it is opportune to make the specification that the Italian Civil Code, does not include express provisions regarding the above mentioned field. While the Romanian legislator regulates the cases where the nullity is incident, and the distinction between relative and absolute nullity providing the field in which the previews rules are applied. The Italian legislator, in art.263 266 provides more or less, the provisions in matter, without operating a difference or, by case, stipulating expressly the incidence of absolute or relative nullity. Therefore, the recognition, whatever its form, can be challenged, as well as defects inherent to it, for lack of truthfulness, for violence and incapacity that comes from judicial interdiction; the act is invalid, moreover, was packed in breach of a legal prohibition of recognition. If the reason upon which the appeal was granted is real, the court order will remove the status of natural son purchased through recognition.

The final judgment upholding the appeal of accreditation, is communicated by the prosecutor's office, or is notified by the interested parties to the civil officer, which makes the act of annotation in the birth certificate.Art.263 stipulates that the recognition may be challenged for lack of truthfulness by the author of the recognition, by the person who has been recognized, and anyone who is interested. and art 266 stipulates that the recognition act can be challenged for the incapacity that derives from the judicial interdiction of the representative Even if the recognition, once made, is irrevocable. This does not mean, however that it can never be challenged by the same author of the act of recognition, or by anyone who is interested.Due to the fact that the I.C.C. regulates in art.265 only the possibility that the recognition can be challenged only because of violence, we are entitled to affirm that, the Italian legislator does not give the possibility to the one interested to challenge the act of recognition on the basis of error or fraud, because what matters is only the truth of recognition, and not the cause that caused it. If, then, there was error or fraud, but the recognition was true, it will still be valid but if, instead, the presence of visible error, shall be able to grasp it. In the doctrine it was raised the question : why did the legislator gave a specific relevance to the hypothesis of the violence that still can be served to recognize a child "real". In many cases the answer lies in the fact that violence is an illegal act of the will of the defects and affects the root of the discretionary recognition. If, then, was not expected to appeal to violence the child would have an easy means, most of the intent, to achieve its aims, also of a financial nature.In comparison with the R.C.C., the I.C.C. deals in the same chapter, even with cases of transmissibility of the right to introduce an action on the basis of existence of violence or lack of truthfulness. The first question that should be raised is : if it is possible that the action of which we speak can be transmitted to individuals other than the ones specified in art.263. The Italian doctrine considers that the answer should be no, because the right to introduce such an action is strictly personal, but faced with the death of locus standi, you can think about the transmissibility of the action before it has been exercised by the entitled. In this case we are in the presence of two hypothesis.

First hypothesis regards the possibility to introduce an action on the basis of violence or introduced by a person who has been put under judicial interdiction (Arts. 265 and 266). In this case, if the author entitled to introduce the action is dead without having promoted the action, but before the prescription was incident, the action may be brought by the descendants, ascendants or the heirs. As regarding the possibility to introduce an action under art. 263 first paragraph, we make the specification that, if the author of the award is dead without having promoted the action, but before the expiry of the period of one year (art. 263 paragraph 3 ), his descendants or ascendants are allowed to exercise the right to introduce the action , within one year after the death of the author of the right or the birth of the child if it is posthumous child or at the full age of each descendant.If the child recognized died without having promoted the action, are allowed to exercise it in its place : the spouse or descendants in the period of one year commencing on the death of their son or when each descendant reaches full age. Not least, the death of the author of the recognition or of the child recognized does not prevent the exercise of the action on their name by those who have an interest, within five years from the date of record of the recognition in the act of birth.Effects. The nullity produces retroactive effects, the relationship of filiation being removed since the birth of the child. Subsection 9: FICTIVE RECOGNITIONIt is that recognition made by an individual which is aware of the inaccurate nature of the recognition, in reality the recognized child is not his. It raises the dicution that, when the fictive recognition was made with knowledge may incur civil liability for damage caused by the author's of the recognition to the child. Both R.C.C. and I.C.C. does not regulates expressly such a situations, this is way it comes in the task of jurisprudence, the role to clarify the possible liability of the author.

Subsection 10: ACTIONS IN JUSTICE REGARDING AFFILIATIONActions regarding filiation are action of civil status, which have as object of civil status, more precisely, filiation. In the practice it can be found more criteria, on the basis of which can be classified the court actions on filiation.Taken into account the two types of filiation we can be in the presence of : action regarding the filiation to the mother and actions regarding the filiation to the father.

On the basis of their object and finality : state complaint actions and state contestation actions. Through state complaint actions, aims at getting another civil status than the one which the persona concerned have. Are part of this category actions in establishing maternity and paternity of the child born out of wedlock. Likewise, state complaint actions, aims the removal of a civil status, respectively of a filiation, allegedly false, and replacing it with another, allegedly real. Are part of this category the following types of actions : action challenging the recognition of lineage, action in nullity of the recognition, action to challenge paternity of the child born within marriage, action to disclaim paternity, action in challenging the paternity established by court order.

After the categories of persons entitled to exercise them we distinguish between , action which can be introduced only by the holders of the civil status or by the legal guardian or by certain individuals provided by law and it can be continued by the heirs. For example action in establishing the paternity. And actions that can be introduced by any interested person. CHAPTER V: MATERNITYSECTION 1 :BASIS OF MATERNITYMaternity represents the lineage resulting from the fact tthat the child was born from the woman who is considered the mother of him. The basis of the affiliation to the mother is the simple fact of birth. In this context, art.408 thesis I. R.C.C. states that affiliation towards mother result from the fact of birth, without any distinction between children born within the marriage or out of wedlock. Also, in accordance with art.2 of the European Convention on the Legal Status of Children Born out of Wedlock, ratified by Romania through L. no. 101/1992, affiliation towords the mother of all the children born out of wedlock is established through the simple fact of birth.

This is the fundamental principle of maternity, which is translated in a fundamental right of the mother and the child to establish lineage, incontestably, immediately after birth, without any discrimination based on the fact that the mother is married or not.

SECTION 2: FORMS OF ESTABLISHING MATERNITYSubsection 1 : ESTABLISHING MATERNITY THROUGH REGISTERING THE CHILDS BIRTH BIRTH REGISTRATION PROCEDUREDECLARATION OF BIRTHUnder art.14 par.(1) from L. n. 119/1996, the birth certificate is drawn at the local public service of persons evidence or, by case, by the officer of civil status of the administrative-teritorial town hall, in whose jurisdiction occurred the event, based on a statement, drown by the persons reffered to in art.16, on the basis of the mothers identity card and of the declaration, the medical birth certificate and, if the case, of the marriage certificate of the parents.

Are required to make the declaration of birth either of parent, and if, for various reasons, they can not do it , it comes in the obligation of the physician, the persons who were present at birth, or to the health unit staff where the birth occurred or anyone who has knowledge about the childbirth.

According to art.30, par (1) of the D.P.R. 396/2000 the declaration of birth is made by a parent, by a special prosecutor, or by the doctor or by the midwife or a person who has witnessed the birth , moreover par.(2) of the same art. stipulates that for the purpose of the formation of the birth certificate, the statement made to the officer shall contain the declaration of birth. TERMThe birth declaration must be made in the term provided by law, respectively 15 days for the child born alive and 3 days for the child born dead. When the child died inside the term of 15 days provided by law, the birth declaration shall be made in 24h from the decease. If this terms were not complied, the law regulates two situations.

First of all, when the declaration is made within one year from the birth, the birth certificate is drawn with the approval of the mayor, respectively the head of the diplomatic mission or consular posts.Second of all, if the declaration was made after one year, the birth certificate shall be made based on a final and irrevocable court decision, which must contain all information required for the act of birth.In the Italian system the declaration must be made within ten days (not 15 as regulated by the Romanian law), at the municipality in which the birth took place or, alternatively, within three days, at the direction, hospital or nursing home were the birth took place.

An exception, regarding the second thesis shall be made if the baby was born dead or if he died after the birth. In this case the declaration must be made exclusively to the registrar of the town where occurred the birth.In case of a delay, the registrant must state the reasons of the delay. In this case, the registrar will draw up a late birth certificate and gives warning to the public prosecutor.

According to art.31 para.(2) if the registrant does not produce the documentation stipulated by law or does not disclose the reasons for the delay, the declaration of birth can be received only by virtue of a Decree

PROOF OF MATERNITYBased on the birth registration statement or, if necessary, based on court decision of late registration, are drawn the birth certificate and the act of birth

According to art.409, par.(1) R.C.C. in conjunction with art.12 from L. no.119/1996, affiliation shall be proved through the act of birth listed in the civil status registry, and by the birth certificate issued on the basis of it. It is considered that the act of birth, issued in the basis of the certificate acknowledging the birth as a proof by excellence of filiation to the mother.And according to art. 236, ICC affiliation is proven through the birth certificate registered at the civil status registry.

Subsection 2 : ESTABLISHING MATERNITY THROUGH A RECOGNITION ACTHYPOTHESISAccording to art.415 par.(1) R.C.C. If the birth was not registered in the civil status register or the child was listed in the civil status register as born of unknown parents, the mother may recognize the child.A. THE BIRTH WAS NOT REGISTERED IN THE CIVIL STATUS REGISTRY Even if the text does not distinguish between the reasons which lead to not making the registration, taken into account the provisions of L. no. 119/1996 regarding the further drawing of the birth certificate, results that the recognition can be made in all the situations in which the birth certificate was not registered, except when the lack of it is the fault of the civil status officer. B. THE CHILDREN WAS REGISTERED AS BORN FROM UNKNOWN PARENTSIt regards the child found, which registration falls under art.19 of L. no.119/1996 and the child abandoned by his mother in the hospital, when the maternity was not established and the registration falls under art.20 of L. no.119/1996.The Romanian legal literature show that special circumstances may arise which may pose practical issues regarding the possibility for the mother to recognize the child.That been said, the child which has a birth certificate that establishes the maternal lineage, but the mother but it leaves him and retains the birth certificate, then the child being registered as born of unknown parents. If, after a while, the mother reappears and shows the birth certificate, there is no question of filiation to the mother because the affiliation was legally established.The analysis of the situation reveals that recognition problem arises in cases where the child is found and recorded as born of unknown parents without his birth to be, previously registered under the law, by ticking the name of the mother on the birth certificate.

CHILDREN THAT CAN BE RECOGNIZEDAny children born, which falls under art. 415 R.C.C. can be recognized. The child conceived can be recognized by the mother before the birth, but this recognition will produce effects only if, exceptionally, at the time of the birth the children situations falls under art.415 R.C.C.

In the same line, it can be recognized even the dead children, if he has descendents. The solution provided by art.415 par. (3) R.C.C. , is justified by the interest to prevent recognitions based solely on the opportunity to receive the child inheritance.Subsection 3 : ESTABLISHING MATERNITY THROUGH A COURT ORDERHYPOTHESIS If the mother does not recognize the child which maternity is not established, she has the possibility to introduce an action in front of a judge.

According to art.422 R.C.C., the action in establishing the filiation towards the mother can be introduced in the following two cases:

First of all, when, by en reason, the proof of filiation can not be made through the birth certificate. In conjunction with L. no. 119/1996 it must be stated that this action can be introduced only if the impossibility to proof the filiation is absolute.

If it's a case where subsequent reconstitution or recovery of the birth certificate, can be made, or if the conditions to make late registration are meet, it will resort to the procedure provided by art. 57, respectively art. 17 of L. 119/1996Secondly, when the reality of the birth certificate is challenged. Clearly, such an appeal must be possible under the law. According to art. 421 R.C.C. it can be challenged filiation toward the mother established through a birth certificate if is not in accordance with the possession of state. ACTION HOLDERS The action can be introduced only by the children, having a personal character and it is introduced, in his name, by his legal guardian under art. 423 R.C.C. Regarding the right to introduce such an action, we must say that, not only the full exercise capacity but even the restricted exercise capacity child can introduce the action, by his own, without prior approval.

In the case of the child which did not reached 14 years old, the action can be introduced by the legal guardian, in his name without prior approval. But, when there is a conflict between the child and the legal guardian, the action can be indtoduced by a curator named by the court.

According to art.423 par.(2) R.C.C. the children heirs can introduce or continue the action. IMPRESCRIPTIBILITYAccording to art. 423 par.(4) R.C.C. the action is imprescriptible with the minor exceptions that falls under par.(5) of the same article which states that If, however, the child died before bringing the action, his heirs may introduce it within one year from the date of death.

THE PERSON AGAINST WHOM THE ACTION STARTSThe action is introduced against the allegedly mother, or if deceased, against her heirs, according to art. 423, par.(3) R.C.C.PROOF OF MATERNITY In proving maternity, the Romanian legislator offers the possibility for the applicant to use any means, thus a special role is given to the forensic expertise. SECTION 3 : CHALLENGING THE MATERNITY

Subsection 1: PRESUMPTION OF FILIATIONAccording to art. 411 par. (1) R.C.C. No person can claim lineage to another mother than that resulting from his birth certificate and possession of state consistent with it, and par.(2) states that no one can deny parentage to the mother of the person who has a state possession consistent with birth certificate. These legal provisions establish an absolute presumption (iuris et de iure) in the subject.

This have been said, challenging the maternity can not be possible if there is an accordance between the affiliation established in the birth certificate and possession of state. Two hypotheses can be identified in order to challenge the affiliation toward the mother : either there is consistent, but the assumption is not accurate or, there is no consistency.The presumption is not in accordance with the biological reality

In principle , this assumption is in accordance with the reality most of the time. Thus, in the spirt of the case-law created under art.411 par. (3) devote the solution according to which, if by a court order is established that a substitution of child occurred or that it was registered as a mother of a child another woman than the one who gave birth to the child, it can be proven the true lineages by any means.

Subsection 2: INAPPLICABILITYFilliation toward the mother can be challenged any time, when there is no consistency between the filiation established through the birth certificate and the possession of state, because in this situation the presumption is not applicable.

The result of the possibility to challenge it results from the interpretation per a contrario of art, 411 R.C.C., also by the content of art.421 R.C.C., according to which any interested person may challenge anytime, by action in justice, filiation established through a birth certificate which is not consistent with the possession of state.

Subsection 3: BURDON OF PROOF

According to art. 421 par. (2), when the filiation is challenged on the basis that the birth certificate is not in accordance with the possession of state, affiliation is proven by medical certificate of birth, through forensic expertise establishing parentage or, in the absence of the certificate or in case of impossibility to perform the expertise by any means, including the possession of state. However, par. (3), introduces an exception, namely : proof of parentage can not be done through the witnesses unless the situation stipulated in art. 411 para. (3) or when there are documents that are worthy of believe the claims.Challenging the content of the birth certificate, in which the affiliation is indicated on the basis of an recognition act, consists in challenging the recognition of maternity, due to the fact that the affiliation is not in accordance with the truth .

Challenging the maternity established though court order. Due to the fact that between the parties to the litigation, the court order has the force of res judicata, the only individuals entitled to contest the court order are the third parties. CHAPTER VI: PATERNITYSECTION 1 :NOTION AND GROUNDSFiliation toward the father represent the juridical relationship between the child and the man considered, by law, his father.

Paternity, from a physiological point of view, results from the fact of conceiving a child by a men.

SECTION 2 :LEGAL TIME OF CONCEPTIONSubsection 1 : RELEVANCEThe date of conception can not be determined exactly, being hind in the intimate life of the parents. Thus, date of conception is important, both in the establishment of paternity of the child born within the marriage or born out of wedlock.

Subsection 2 : NOTIONDue to the fact the date of conception can not be determined exactly, the legislator has regulated a presumption under which the legal time of conception is determined. Represents a period of time in which the conception could have took place, period determined by the fact that, from a medical point of view, outside its limits the conception of the child whose paternity raises discussion could not took place.

This presumption has the nature to facilitate the establishment of the paternity both for the child from the marriage and the child out of wedlock.

According to art.412 par.(1) R.C.C. the time interval between the three hundred and one hundred and eightieth day before the child is born is the legal time of conception.. It is calculated daily which means that the starting date (dies a quo) shall not be taken into account , but the end date (dies ad quem) shall be taken into account. Therefore, results that, the legal time of conception is of 121 days.

In the same line, art. 232 of the I.C.C. stipulates that it is assumed conceived during marriage a child born not earlier than one hundred eighty days after the celebration of the marriage and not after 300 days of the dissolution or annulment

Subsection 3 : PROBATIVE FORCE OF THE PRESUMPTIONAccording to par.(2) of the same article, the presumption gains a relative character (iuris tantum), in that by scientific means it can be proven that the child was concepted during a certain period of time inside the frame provided in par. (1), or even outside this range.

In the Italian doctrine is stated that this presumption is not absolute in the sense that it may be rebutted, but this should not suggest that the husband must necessarily be considered the father of the child born in these periods.

SECTION 2 :PATERNITY OF THE CHILD BORN WITHIN THE MARRIAGESubsection 1 : PRESUMPTION OF PATERNITYDEFINITION According to art.408 par.(2) R.C.C. affiliation towards the father from the marriage is determined by the effect of the presumption of paternity. Pater is est quod nuptiae demonstrate, which means that the father is the one shown by the legal act of marriage. Under art. 414, par.(1) R.C.C. The child born or conceived during the marriage has as its father the mother's husband.

In the same manner, the I.C.C. stipulated in art.231 that It is assumed that the husband is the father of the child conceived during the marriage. Presumption of paternity may be defines as a legal mean to establish paternity, which indicates that the child father is the mothers husband, from the marriage in which the fact of conception or birth took place.

GROUNDS

Presumption of paternity has its ground in the simple fact of conception of the child during the marriage, due to the fact that the biological affiliation towards the father results from the fact of conception. In this hypothesis , does not matter if the child was born during or after the marriage ended.

So, spouses living together and respecting the obligation of fidelity by the wife are two simple assumptions underpinning the presumption of paternity of the child conceived during marriage.

However, the presumption of paternity apply even to the child conceived before the marriage, but born in wedlock. In this case, the presumption has its grounds in the fundamental principle of proecting the interest of the child and family.CONDITIONS

In order for the presumption to be applied, both in the Romanian and Italian legal system, the following condition shall be meet: establishing filiation to the mother (it is not possible from a juridical point of view, the establishment of paternity from the child born within the marriage before establishing maternity), the mothers marriage, the conception or birth took place during the marriage.

If the child was conceived and born during a marriage that afterwards was annulated, the presumption of paternity is still valid, because nullity f the marriage does not have any effects regarding the children. EXCLUSIVE CHARACTER

The paternity of the child born within the marriage can be established only on the basis of the presumption of paternity. In other words, paternity of the child born within the marriage can not be established through recognition, neither by court order, ways of establishing paternity exclusive in the case of the child born out of wedlock.

CONFLICTS OF PATERNITY

Due to the fact the presumption of paternity can have its grounds only on the fact of conception or birth of the child within the marriage, can be raised conflicts of paternity when a child receives two paternities from marriage.

First of all, there can be conflicts of paternity in the following hypothesis: if the child was conceived during one marriage which ended, but was born after the mother remarried or when the husband was declared dead on the basis of a court order, and after that the wife remarries and the child is born in 300 days and the husband declared dead reappears.

Second of all, it may happen that the wife will give birth to a child meanwhile si is married with two mans, in violation of legal provisions regulating monogamy.

We consider that the legislator should have inserted in the Civil Code express provisions for resolving the conflicts of paternity, because currently the Civil Code lack of such provisions. PRESUMPTIONS OF PATERNITY AND THE MENTIONS ON THE BIRTH CERTIFICATE

The principle is that the presumption of paternity operates independently of the references in the birth certificate of the child. Regarding this rule, different situations may appear in practice.

The mothers husband was registered in the birth certificate as being the childs father. Aldo, this reference does not make an conclusive proof of the paternity. There must be verified if the conditions are meet in the case. Another hypothesis, is the case when a different man is registered as being the childs father or not t least, the birth certificate does not identify the fathers name. In all the above mentioned cases, the law offers to the one interested, the possibility to introduce an action in order to put the present situations in accordance with the reality. Thus, it is undoubtedly that the presumption of paternity shall apply and shall produce effects independently of the references from the childs birth certificate. FORCE OF THE PRESUMPTION The rule pater is est quem nuptiae demonstart had as its origin the power of an absolute presumption (iure et de iure). Nowadays, the presumption is not absolute due to the fact that the law provides the possibility to prove the contrary, in that the mothers husband is not the father. But, even if its not an absolute presumption, it can not be considered to be am usual relative presumption, taken into account the fact that the proof in contrary can not be done anytime, anyway and by anyone. It had been shown that, even if it is universally recognized, the presumption of paternity loses daily its importance, to the extent that the judicial systems recognize to an increased number of people the right to disavow or, by case, to challenge the paternity established this way.

Subsection 2 : ACTION IN DENIAL OF PATERNITY

Paternity of the child born within the marriage can be removed only by an action for denial of paternity.

According to art.414 par.2 R.C.C. Paternity may be denied if it is impossible for mother's husband to be the father. The law does not include the cases in which the mother's husband may deny paternity, but only enunciate a general rule, the court will decide on a case by case.

The impossibility for the husband to be the father can be of physical nature, social nature ( for example the impossibility of cohabiting, due to a deprivation of liberty detentions) or moral nature.

The solely fact of separation during the legal time of conception represents only an indication and not a plentiful evidence to disprove paternity. In the same line, the fact that the wife had extramarital relationships during the legal time of conception, is not sufficient to rebut the presumption of paternity.

The proof that the mothers husband is not the father can be made by any means, a special role being awarded to the forensic expertise.

We have seen that when the child was conceived during the marriage, it is assumed that the husband of the mother he is the father.

This presumption, however, not even in the Italian legislation, is not absolute and it is possible to prove the contrary. To do this you need to introduce an action in denial of paternity under art. 235 I.C.C.

We can see that, the Italian System introduces certain conditions that have to be meet in order for the holders of the action to gain the right to introduce it. Therefore, the action of disavowal is permitted only in the following cases.

First of all, if the spouses have not lived together in the period between the three hundredth and the eightieth day before the birth. Second of all, if during the time predicted the husband was suffering from impotence. And third at all, but not least, if in that period his wife has committed adultery or kept hidden her pregnancy to her husband and the child's birth.

In the first two cases will be sufficient proof of cohabitation not to get the pronunciation of repudiation, in the last, that is, in the case of adultery, the proof will be necessarily more rigorous sense that we must prove that the child has genetic characteristics or blood group incompatible with those of the alleged father, or try any other fact which excludes paternity.HOLDERS

Under art. 429 par.(1) R.C.C. An action for denial of paternity can be introduced by the mother's husband, mother, biological father and the child. It can be introduced or, where appropriate, continued by their heirs, under the law

In comparison with the art. 243-bis I.C.C. which stipulates that the action in denial of paternity o the son born within the marriage, can be introduced by the husband, mother or the child who had reached age of majority.I. HUSBAND.

The mothers husband remains the principal holder of the action in denial of paternity, even if he is not an exclusive holder of the right. Being one of the legal paternity relationship subject, is fully legitimate in the sense of allowing the solution to deny paternity, knowing that it does not correspond to reality.

According par. (3) of art. 429 R.C.C. if the husband is under interdiction, the action may be initiated by the guardian, and in lack of it, by a curator appointed by the court.

Prescription. In compliance with art. 430 R.C.C., the prescription term is 3 years. Even if the action in denial of paternity has a extra-patrimonial character, as an exception to the rule according to these action are imprescriptible , the solution in the field is justified by the necessity to clarify the situation in a reasonable time.

The term runs out either from the date on which her husband knew that is the presumed father of the child, or at a later date, when he learned that the presumption does not correspond with the reality.

As regarding the first hypothesis, in practice, the mothers husband is acquainted with the fact that is presumed to be the childs father from the date that learned about the birth.

In compliance with par. (2) of art. 430, the term does not run against the husband placed under judicial interdiction and even if the action was not initiated by the guardian, it can be brought by the husband within 3 years from the date of lifting the interdiction. Also, under par. (3) of the same art, if the husband died before the deadline stated in para. (1) without introducing the action, it can be introduced by the heirs within one year from the date of death.

In accordance with art. 244 I.C.C. the action can be introduced by the husband within one year after the child's birth, but if he was away at the time of birth on the day of his return to the place where the child was born or, in any case, if he has not been informed within one year from the day where he heard about it. The action can not in any case be brought more than five years from the birth of the child (art. 244, paragraph 4 , I.C.C.)

If the alleged father died without having promoted the action, but before the expiry of the period specified in Article 244, are allowed to exercise the action, on their behalf, the descendants or ascendants.

In the event that the term has not yet matured, the new term starts on the death of the alleged father or the child's birth if it is posthumous child or the coming of age on the part of each of the descendants.

The action is introduced by the mothers husband against the child, and when the child is deceased , the action is introduced against the mother and, if case, against other heirs of the child. II. MOTHER OF THE CHILD

In the case of the mothers husband , the aim of the in action to disclaim paternity is the remove a paternity which is not in accordance with the biological reality, while in the case of the mother, the aim is circumscribed to the interests of the child to remove a paternity that is not real, so that it opens the possibility of establishing legal paternity of the child to the biological father.

As regarding the prescription terms, we the legislator places the above mention situation under the same regulations as analyzed in the previews paragraphs.

The solely difference that can be observed is in the subject of the defendant, who in this case, is the husband. And if the husband is deceased, the action is introduced against his heirs.

In the case of the mother, in the same art. 244, par. (4) of the I.C.C. is stipulated that the action of denial of paternity can be introduced by the mother within six months from the date of the child's birth or the day on which it became aware of the impotence of generating the husband at the time of conception and not later than five years from the birth of the child.

If the mother died without having promoted the action, but before the expiry of the period specified in Article 244, are allowed to exercise the action on her behalf, the descendants or ascendants.

In the event that the term has not yet matured, the new term starts on the death of the mother, or the child's birth if it is posthumous child or the coming of age on the part of each of the descendants.

III. THE CHILD

Recognizing the child's right to an action to disclaim paternity is undoubtedly a natural and necessary solution, claimed by the constitutional principles, and the provisions of international instruments on human rights and child rights. Thus in the case Gaskin vs. United Kingdome, European Court of Human Rights determined that the state has the positive obligation to facilitate the child's possibility of knowledge of his biological family.

Returning to the solution regulated by the national law it must be observed that correctly, the legal norm provides that the holder of the action is the child, without making any distinction between children born in wedlock and those conceived during marriage.According to art.433 par. (1) R.C.C. the action is introduced by the child, during his minority, by his legal representative. Consequential, if the child does not have full legal capacity, we distinguish between the following cases. First of all if the child has restricted capacity of exercise, due to the fact that is a personal extra-patrimonial action, the child can introduce the action by himself. If the child does not have capacity of exercise, the action shall be introduced by the mother, in the childs name, as a legal guardian of him.

If the child dies before the moment when the action could have been introduced, shall be applied the provisions of art.423 par.(5), which means that the heirs can introduce the action within one year from the date of the death.

In comparison, the I.C.C. stipulates in art. 244 par. (5) that only the child who had reached the age of majority can introduce the action in denial of paternity As regarding the minor child,the disownment can also be promoted by a special guardian appointed by the court, gathered summary information, upon request of the minor child who has completed their fourteenth year, or the prosecutor or the other parent, in the case of children aged under fourteen.

We then saw that the child has no limit for bringing the action, while for parents there are time limits for bringing an action for denial of paternity.

If the child died before having promoted the action in denial of paternity, are allowed to exercise in his stead the spouse or descendants within a year following the death of the child or the coming of age on the part of each of the descendants .

The action may also be initiated by a special guardian if the person entitled to introduce the action is placed under judicial interdiction.Imprescriptibility. According to art.433 par.(2) R.C.C. the right of action is not prescribed during the child's life.In accordance with art.433 par.(2) R.C.C., the child can introduce the action against the husband, and if this one is dead, against his heirs. Moreover, even art. 244 I.C.C. confers the status of an imprescriptible action.IV. BIOLOGICAL FATHER

For the first time in the Romanian legislation gives the right to the biological father to introduce the action in denial ofpaternity. Although to some extent "avant-garde", the action exercised by the bological father is supported by the same fundamental principle in matters of filiation, namely biological finding the truth.

Even more concerned, in the case Kroon v Netherlands, which was the main landmark in the jurisprudence of the ECHR to reform the rules governing Paternity, the Court has recognized not only the mother but also the biological father's interests and capacity to act in order to remove any false paternity, as a prior condition in establishing the real paternity.Art. 432 par.(1) puts in the charge of the biological father an extra special condition. Therefore, the action is admissible only if he makes proof of his paternity to the child.

In comparison with the first two situations analyzed above, in the case of the biological father, the action is imprescriptible during the lifetime of the biological father. If he dies, the action may be brought by his heirs but not later than one year after the date of death.

According to art.429 par.(5) stipulates that the action shall be introduced against the mothers husband and the child. If they are deceased, the action shall be introduced against their heirs. We specify the fact that the Italian legislation does not confer to the biological father the possibility to introduce an action in denial of paternity. V. MINISTRY OF PUBLIC AFFAIRS

The representative of the Ministry of Public Affairs may introduce the action, because under art.92 par.1 of the New Code of Civil Proceedings , it can introduce the action anytime when it is needed in order to protect the rights and legitimate interests of the minors, persons placed under judicial interdiction and missing persons. Of course, the one in whose name the MPA introduced the action shall be introduced as part of the litigation. DEFENDENT Under art. 247 I.C.C. Subsection 2 : ACTION IN CHALLENGING THE FILIATION TOWARD THE FATHER WITHIN THE MARRIAGE

Distinct from the action in denial of paternity, art. 434 R.C.C. and art. 248 249 I.C.C regulates the action in challenging the paternity of the child born within the marriage. The two actions distinguish one from another by the object regulated by each. Meanwhile the action in denial of paternity has as premises the application of the presumption of paternity, but it tends to tipping it, in that it does not correspond with the biological reality, through the action in challenging the filiation tends to has as object the removal of the apparent paternity within the marriage, to prove that the conditions are not meet, for the presumption of paternity of a child registered in civil status documents as born in wedlock.

The action can be introduced by any person interested and it is imprescriptible, in correlative with the action in denial of paternity which can be introduced only by certain individuals stipulated by law (mothers husband, mother, child and the biological father) and not at least in same cases, the action analyzed above can be prescriptive.

SECTION 2 :PATERNITY OF THE CHILD BORN OUT OF WEDLOCKSubsection 1 : REGULATION

Filiation of the child born out of wedlock toward the father shall be established through recognition or through court order, under art.408 par.(3) RCC and art.3 from the European Convention on the Legal Status of Children Born out of Wedlock, ratified by Romania through L. no. 101/1992Subsection 2 : ESTABLISHING PATERNITY THROUGH RECOGNITION

Recognition of paternity is the legal act (unilateral manifestation of will) by which a man states that a particular children is his.

According to art.415 par.(2) R.C.C., The child conceived and born out of wedlock can be recognized by his father.CHILDREN THAT CAN BE RECOGNIZED

In principle, it can be recognized nay child born out of wedlock. Rule is that, it is recognize the child born, but the norms admits the fact that it can be recognized in the child conceived, but not born, under the standstill condition that, at the birth, the child shall have the situation of a child born out of wedlock.

The child deceased can be recognized, but only he has descendents. The solution provided by art.415 par,(30, is justified by the interest to prevent those recognition made by the father only due to the interest of him to receive the quality of a heir.

The child recognized may be recognized by another man. In another words, there can be possible successive recognitions of paternity.

Regarding the possibility to recognize the child born out of wedlock, in the cases of establishing paternity through a court order. In this case the doctrine states that, due to the fact the court order is opposable erga omnes , such a recognition is devoid of legal effect until the date on which evidence to the contrary is made through judicial proceedings, and the paternity established through a court order is removed, moment at which the recognition will generate effect.

Subsection 2 : ESTABLISHING PATERNITY THROUGH COURT ORDER

The child born out of wedlock may establish filiation by trough a legal action, if the father did not recognized him. Remarkable is that, the research of paternity is free, that the law does not establish limiting cases in which such action can be started, the only condition being that, by this action to be established the paternity of a child born out of wedlock.

Thus, according to art. 424 R.C.C. if the father out of wedlock does not recognize the child, the paternity shall be established through a court order. HOLDERS

Has a personal character and shall be introduced, if the case, by the child.According to art 425, par (1) R.C.C the action to establish paternity outside marriage is introduced in the name of the child by the mother, even if she is a minor, or by his legal representatives. We specify the fact that the mother is not the holder of the action, she only acts in the name and the interests of the child.

If the child does not have full legal capacity, we distinguish between the following cases. First of all if the child has restricted capacity of exercise, due to the fact that is a personal extra-patrimonial action, the child can introduce the action by himself. If the child does not have capacity of exercise, the action shall be introduced by the mother, in the childs name, as a legal guardian of him.

According to art. 425 par. (2) the action can be introduced or, where appropriate, continued by the child heirs, under the law.

The father outside the marriage can not introduce such an action because he has the possibility to recognize the child. IMPRESCRIPTIBILITY

In accordance with the European Court of Human Rights case-law in the field, establishment of the inalienable character of this action was a legitimate option, fully justified, which gave expression to the superior interests of the child principle and its fundamental right to know his parents, enshrined in Article 7 pt. 1 of the Convention on the childs rights, ratified by Romanian through Law no.18/1990.

The solution of inalienability was taken by the Civil Code in art. 427 par.(1), in that the right to introduce an action does not prescribe during the lifetime f the child. Thus, if the child deceased, in application of art. 427 par.(2), which send to art. 423 par.(5) the action can be introduced by his heirs in one year time, from the date of his death.

DEFENDANT

The action is introduced against the alleged father or against his heirs if this one is deceased. OBJECT

Through the action in establishing paternity the applicant follows to prove that the defendant is th childs father. this means that the following circumstances must be proved. First of all, the birth of the child. Second of all, the intimate relationship between the alleged father and the childs mother during the legal period of conception. In this case, shall be applied the presumption of the legal time of conception.

Third of all, the fact that the man who had such relationship with the mother is indeed the childs father. the fact that, during the child conception, the mother had multiple relationships (exception plurium concubentium) is not sufficient in order to overrule the action, if the proofs can lead to the presumption of paternity. This exception can not lead to an overruling of the action as inadmissible, but instead shall be administered all the proofs in order to establish the real kinship. In lack of other proofs, the court can not admit such an action, because if so, it would lead to the possibility of the mother to choose the childs father. MEANS OF PROOF.

The paternity can be proved by using any means.

Art. 426 par (1) R.C.C. establishes a relative presumption of paternity in the favor of the allegedly father who lived together with the childs mother during the legal time of conception., the assumption can be removed if the alleged father proves that it is not possible to be the father.

Another proofs that serves in the investigation can be the recognition by the defendant or the forensic expertise.

CHAPTER VII: ITALIAN LEGISLATION

RECOGNITION OF THE CHILD BY THE

MOTHER or FATHER

First of all, in the same manner like in the other European legal systems, pursuant to art. 30 par.(3) of the Constitution, the law ensures to children born outside of marriage full legal and social protection, compatible with the rights of members of the legitimate family.

Due to the fact that there is a slightly difference between the format in which the Romanian and Italian legislator finds adequate to regulate the institution of recognition, we find opportune to provide a separate analyzes of the regulations founded in the Italian law. Surely, even if structurally the analysis shall be provided in a different chapter, the content will be subjected to a comparative analysis, highlighting the main differences between the two systems.

While the Romanian legislator gives narrow regulation in the matter, the Italian legislator, trough Chapter IV of the Civil Code, gives a wide range of provisions with regard the subject of the filiation of the child born out of wedlock.

As seen in the above analyzed chapters, the Romanian legislator gives separate provisions in the field of lineage to the mother and father. Moreover regulates the possibility of the mother to establish maternity only in certain cases, stipulated by the law, through recognition. Thus, the first fundamental difference is that the Italian Civil Code provides that the son born out of wedlock can be recognized by both mother and father, although already united in marriage with another person at the time of conception, without any limitation in this regard.

The term filiation of the child born out of wedlock, indicates the generation occurred in non-double, both due to occasional sexual relationship or a permanent cohabitation. The simple fact of birth by unmarried parents do not automatically assigns the status of a child born out of wedlock.

For the acquisition of this status, the law requires or a formal act of recognition, or a judicial declaration of paternity or maternity. Frequently, there is recognition, since the act of birth, by the mother if the parents are not married, it is usually the mother to declare the birth, and the child assumes the surname.

However, the mother may not recognize the child at birth, so that the same will be registered in the civil status registers, as born of parents not known or that you do not want to declare; in this case is the registrar to impose the name; the child will be admitted to an institution pending the adoption of the necessary acts. In this case we will face to a possible future recognition by the father or even by the mother, or both of them jointly.

The Italian doctrine defines recognition, almost in the same manner, thus the recognition is an act by which the natural children (now children born outside of marriage) can be recognized by the mother or father or both, separately or jointly, although already united in marriage with another person. The recognition institution was recently reformed with the introduction of the Law n. 219/2012 which has essentially equated the status of all the children. Following the Legislative Decree no. 154/2013, implementing Law n. 219/2012, this equation has become almost complete: there will be no natural children and legitimate children but children born in wedlock and out of wedlock.

In the same direction, both Romanian and Italian legislation were brought into line with the international instruments in the field.

Clearly it makes sense to speak of recognition only to children born outside of marriage and not for the ones born within the marriage, as we have seen, they acquire this status automatically when the conditions provided for by law are meet. The recognition, however, do not occurs automatically, by it produces effects only by fulfillment of the conditions provided in art.250 I.C.C.

The recognition is the formal act by which a person certifies to be the father or mother of a given child, born outside of marriage. This act, which certifies a certain situation, has retroactive effect from the time of the child's birth. The natural parents certainly have a moral obligation to recognize the natural son, moreover a legal obligation.

The natural son, however, has the right to obtain in the absence of recognition, the judicial declaration of paternity or maternity natural. The recognition, is a spontaneous act of private autonomy, is not amenable to conditions or terms; therefore, every provision purporting to limit the effects of recognition is void. The recognition has not only the character of voluntariness, but also that of irrevocability, once issued the statement of recognition, the result is the assertion of the child kinship, subject to the possibility of appeal only in cases allowed by law and except in cases where it is necessary consent or approval, as required by Article 250. The recognition is a unilateral declaration minutely regulated by law, which, among other things, the act conceived not as free-form, but as an act that must be packaged in the form specified in art. 254 I.C.C. The nature of unilateral act does not apply in cases where it is required consent of third parties, which only reflects the effectiveness of the recognition. The paragraph (2) of Article 250 I.C.C, in fact, states that the recognition of his son, who has turned 14 years, has no effect without his consent, and the third paragraph of that article provides that the recognition of the child, who has not completed 14 years, can not take place without the consent of the other parent who has already made the recognition.

In the latter case, the consent can not be refused, if the recognition is in the interest of the child. If there is opposition, the court shall decide and the court order takes the place of the missing consent.

Parents can also recognize incestuous children (art. 251 I.C.C.), but only with the consent of the judge and having regard to the interest of the child and the need to avoid him any injury.

The case-law, emphasized that the right of paternity or maternity compared to a minor is a primary right of personality, notes that it can be eliminated only in the presence of serious and reasonable grounds, that reveal the endangered balance, emotional and psychological of the child.

In both legislative system, the recognition can also relat