The application of law

The term law has two different meanings.

Firstly, law means all normative acts adopted by the state authorities (the
Parliament, the Government, the Ministries and the local administrative authorities).
This is the wide meaning of the term “law”.
Secondly, law means only the normative act adopted by the legislative power,
namely the Parliament.
In relation to the application of law, we should take into account three
coordinates, as follows:
- the application of law in time;
- the application of law on the territory;
- the application of law to persons.

The application of law in time

During the years, the existing laws are replaced by others, because the State is
interested to regulate in a different way certain social relations, in order to correlate
the law and the economic and social realities.
Therefore, it is very important to establish the period of time during which a
law must be applied, meaning the moment when the law begins its application, as
well as the end of its application.
Actually, the law begins its application from the moment of its entering into
force. As a consequence, the law becomes compulsory and it must be applied and
observed by everybody starting from its entering into force.
According to the Romanian Constitution, the law enters into force three days
after its publication in the Official Monitor of Romania or on a further date
expressly mentioned within the law itself.
Starting from its entering into force, the law is presumed to be known by
everybody. Indeed, nobody can plead his ignorance of the law in front of the judge.
The final moment of the application of law is the moment of its abrogation.
The abrogation (the repeal) means the future abolition or elimination of the
law.
The abrogation may be express or implicit (tacit).
1. The express abrogation occurs when the legislator expressly provides that a
certain law is repealed.
Furthermore, the express abrogation may be direct or indirect.
The direct express abrogation occurs when the new law mentions directly
the abrogated law or the abrogated articles of law. For example: “on the date of
entering into force of the present law, the Law no… is abrogated (repealed)”.
 The indirect express abrogation occurs when it is provided that the laws or
the articles that are contrary to the new law are abrogated. Thus, we generally use
the expression: “All contrary (conflicting) legal provisions are abrogated
(repealed)”.
2. The tacit (implicit) abrogation occurs whenever the new law contains legal
provisions which are incompatible with the previous law, without mentioning
expressly that the previous law is abrogated.

The principles and the exceptions concerning the application of law in time

Generally, the law must be applied between the moment of its entering into
force and the moment of its abrogation.
However, the juridical relations may produce their effects during periods of
time when different laws apply, especially because in time the existing laws may be
replaced by other legal provisions.
As a consequence, we should determine the applicable law to a particular
legal relation, on a certain moment in time, taking into account the following
principles:

1. the principle of the non-retroactivity of law.

This principle states that the law regulates only the circumstances, the
situations occurred after its entering into force. The new law can not regulate the
past situations, meaning those occurred before its entering into force.
Thus, article 6 of the Civil Code provides: “The law is applicable as long as it
is in force. It has no retroactive power”.
In the same way, the Romanian Constitution provides: “The law disposes only
for the future, except for the more favorable criminal law”.
As a consequence, according to the principle of the non-retroactivity of the
law, the following rules must be observed:
a. the new law does not regulate the juridical relations which were created, modified
or extinguished before its entering into force;
b. the new law regulates the following:
- the juridical situations which are created, modified or extinguished after its
entering into force;
- the future effects of juridical relations created prior to its entering into force.
However, there is an exception to the principle of the non-retroactivity of the
law, which is expressly provided by the Romanian Constitution. Thus, according to
the Romanian Constitution, the more favorable criminal law has retroactive power.

2. the principle of immediate application of the new law.

 This principle means that a prior normative act can not regulate the situations
occurred after its abrogation, because the new law must be applied immediately,
starting from its entering into force.
As a consequence, the future situations will be regulated by the new law.
However, there is an exception to this principle, which is called the ultra-
activity of the law. According to this exception, even after the entering into force of
the new law, the prior law may be applied to certain juridical situations which are
expressly provided by the new law.

The application of the law on the territory

This application of the law on the territory is governed by the principle of the
territoriality of law, which is expressly provided by article 7 Civil Code. Thus,
according to this principle, generally the Romanian law is applied on the Romanian
territory.
However, the application of this principle depends on the following elements:
- the extent of competence of the state bodies which have adopted the legal
provisions;
- the existence of juridical relations having a foreign element.
Therefore, taking into account the extent of competence of state authorities,
the normative acts adopted by the Parliament, the Government and the authorities of
central public administration are to be applied on the whole territory of Romania.
Nevertheless, the normative acts adopted by the local administrative authorities (the
local council and the county council) are to be applied only on the territory of the
county, the town or the village.
On the other hand, the juridical relations having a foreign element create a
conflict between different laws belonging to different states. As a consequence, this
problem of conflict of laws is to be solved by the legal rules of international private
law. Therefore, according to these legal rules, the Romanian law may be applied
outside the territory of Romania or a foreign law may be applied outside its territory,
namely on the territory of Romania. However, it should be mentioned that in such a
case, the application of a foreign law on the Romanian territory is possible in
accordance with the provisions of the Romanian legal rules of international private
law.

The application of law to persons

As mentioned before, the beneficiaries of legal rules are the natural or legal
persons. The law applies equally to all its beneficiaries, to all persons, regardless of
their sex, nationality and race. As a consequence, all persons are equal in front of the
law.
However, it does not mean that any law, any normative act applies in the same
way and within the same limits to all persons. From this point of view, there are
laws with general application (such as the Constitution or the Civil Code) and laws
which apply only to specific categories of persons (such as for example the Law no.
31/1990 on commercial companies, republished, amended and completed).
In addition, the application of law is always national, because the law applies
on the national territory. It means that the national law is to be applied on the
national territory to all the persons who are within the borders of the state at a
particular moment. As a consequence, the Romanian law applies not only to the
Romanians, but also to the foreigners, during their stay in Romania.