Fraud of the interests of the creditor of the legal support obligation – old and new rules, perennial doctrinaire and case law solutions

Abstract

The legal support obligation represents the legislative expression of family solidarity. The feelings of affection which characterize the family relationships are still put to the test in different situations of family crisis. Neither fault, not bad faith are excluded in this matter, and their legal effects are regulated either by the civil law, or by the criminal law. During the period of enforcement of the Family Code, before and after 1990, when many of its dispositions were (re)interpreted under the new political, social and economic circumstances, various rules which maintain their applicability to a large extent, have been enshrined in the doctrine and case‑law. The rules relating to the legal support obligation provided for in the Civil Code are special rules, of strict interpretation and application, and their scope cannot be extended to any situations or persons other than those expressly and exhaustively provided for by law. In the event that, in the personal relationships between spouses, the regulation of the Civil Code in the field of divorce seems to be the legislative expression of the Romanian saying “love cannot be commanded”, in the matter of the support obligation the message of law is firm: “love fades away, the support obligation remains”.

Keywords: legal support obligation; debtor’s fault; bad faith of the debtor; debtor’s means; principle of the best interests of the child.