Izvorni znanstveni članak
Alimentary Obligation in the Italian Legal Order
Romana Pacia
; Facolta` di Giurisprudenza, Universita` degli studi di Trieste, Trieste, Italia
Sažetak
Presumptions for alimentary obligation are a state of necessity and economic conditions of a debtor. Due to the first presumption, this institute differs from other obligations of contribution and maintenance. Moreover, the presumption is a basis for its identification with hereditary legal maintenance of a separated spouse with duties or of a divorced spouse. The second presumption does not call for a special diligence of a debtor, and therefore, it presents an exception from the general rule prescribed in the Article 1175 c.c. Under the Article 445. c.c. the right to alimony can be executed from the day when legal actions were brought in court or from the day of debtor’s costitutio in mora. Having in mind that a complaint or costitutio in mora has an exclusive function to limit retroactivity of a court judgment, it is believed that the right to alimony does not exclude a constitutive nature of the judgment if the complaint is filed in the period of six months. It is a complex case where plaintiff’s potestative right is involved together with a decision on the establishment of presented facts and condemnatory judgment as an outcome.
Contrary to the prevailing opinion it is thought that, with debtor’s consensus, it is possible to overcome the prohibition of alimentary claim cession under the Article 447. c.c. Furthermore, it is not possible to conclude that mentioned provision is also about undisposable rights in cases of aspects which are not explicitly regulated (withdrawal, settlement, compromise during the arbitration). According to the Article 448 c.c. and Article 660 c.c. that regulates the legacy, private subjects have a right to create alimentary obligations and possibility to apply solutions that are provided for legal obligations.
Regulation (EC) no. 4/2009 (in force from 18 October 2011) contains new provisions which were created due to the implementation of the Hague Convention of 23 November 2007, and the Hague Protocol of 23 November 2007. Now, provisions on jurisdiction, implementation of rights, recognition and enforcement of decisions, court settlements, public acts, cover of expenses by the state and cooperation with the central authorities have been provided in a single legal act. The Regulation accepts a common notion of alimentary obligation, which also stands for maintenance, exclusively relating to family legal relations. In regard to the issue of jurisdiction, the Regulation presents a comprehensive and exclusive system that entirely substitutes domestic (internal) provisions. The Article 15 specifies that the applicable law shall be determined in accordance with the Hague Protocol of 23 November 2007.
Ključne riječi
notion; expiration of the time-limit; disposability; sources; Regulation
Hrčak ID:
63622
URI
Datum izdavanja:
20.12.2010.
Posjeta: 9.782 *