The Scope of the Notions of Marriage, Property Relations and Matrimonial Agreement in Romanian Private International Law (English version)

Application of private international law is impossible without deciphering the meaning of the legal rules specific to this branch or without classifying the test cases on categories. This dual mental operation that the judge has to do is called qualification. The notion of qualification is defined by authors differently. According to a first opinion the qualification is defined as the operation performed by an authority that is required to solve a conflict, when asked to find the conflict category of the situation, in order to decide what rule should be applied. According to another opinion, the qualification establishes the meaning of the notions of legal rules on the subject of regulation and the law applicable to the legal relationship. In a reverse operation, through qualification, they determine the legal category to which a fact situation belongs and indicate the competent law. According to a last opinion, qualification is defined in two ways: starting from the conflict of laws towards the facts (legal relationship) or vice versa. Thus: a. the qualification is the logical-judicial operation of determining the exact full meaning of legal terms expressing the content and relations of the conflict of laws, in order to see whether a legal relationship (a state of facts) is included (or not) among these terms; b. the qualification is the interpretation of a legal relationship (of a specific fact situation)in order to see the to which conflict of laws, in terms of content and relationship, it belongs. In foreign literature qualification is defined differently. Thus, according to a first view, the qualification is defined as the legal operation performed to include a specific legal situation in the contents of a conflict of laws. This operation gives rise to a conflict between the contents of the conflict of laws belonging to the same legal system, and to a qualifications conflict when another system of law, which relates to the facts, places it within the content of a conflict of laws different from that chosen by the legal system of the forum. According to another point of view, the qualification means defining the terms used by the rules of private international law: nationality (citizenship), domicile, residence, capacity, family rights, inheritance rights, etc.