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An employment contract is decisively characterized by the relationship of subordination between the parties, which distinguishes it from a civil contract. The reclassification of a civil contract as having the legal nature of an employment contract can be done by the labour law court, by the fiscal control body and, more recently, even by the labour inspector. The paper analyzes the criteria under which such reclassification can intervene, what are its traps and its effects. It is finalized with a series of proposals aimed at simplifying the reclassification operation, as well as providing legal certainty. -
Neutral power can manifest itself in modern liberal democracies also in the form of autonomous authorities. Their neutrality is based on two kinds of reasons. The first category involves the positioning of the neutral authorities outside the separation of powers in the state, their reactive (not active) political character and their role of balancing the separate powers of the state or of balancing the relations between the state and civil society. They are in the Romanian law authorities with constitutional status. The second category of authorities that call/consider themselves neutral founds its position on the neutrality of the experts in their structure. They have in the Romanian Constitution the status of some atypical, autonomous administrative authorities. Modern states are based on political freedom, i.e. on the liberation of man from objective laws. The expression of this freedom substantiates all the institutional mechanisms of modern constitutionalism. In exchange, the autonomous administrative authorities are set up to release the regulation of certain social mechanisms of political influence. They are not based on modern political freedom. Formed of experts who know the „objective” laws of social development and apply them „scientifically”, these authorities are „objective”. It is thus created a dichotomy: the people or the expert? The increasingly dense contemporary option for the expert can lead to significant risks for the human rights and for the democratic system.
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Cererea formulată în temeiul art. 595 alin. (1) C.pr.pen., respectiv în caz de intervenire a unei legi penale noi după rămânerea definitivă a hotărârii de condamnare sau a hotărârii prin care s-a aplicat o măsură educativă, se adresează fie instanței de executare, fie instanței corespunzătoare în grad acesteia în a cărei circumscripție se află locul de deținere sau, după caz, centrul educativ ori centrul de detenție. Din perspectiva formelor competenței, cea reglementată potrivit art. 595 alin. (2) raportat la art. 553 alin. (1) C.pr.pen. este o competență funcțională (ratione officii) întrucât vizează o activitate ce se poate realiza strict de către instanța de executare ori de către instanța corespunzătoare în grad acesteia în circumscripția căreia se află locul de executare a pedepsei ori măsurii privative de libertate.
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This study proposes an analysis of the regulation of the institution of return by right of ownership of land located in the built-up area, with particular reference to the interpretation of the provisions of Article 25 (1) of the Law No 18/1991, amended, supplemented and republished. In the thematic approach, there are presented a series of reasons meant to clarify the legal content of the terminology of the text, emphasizing the jurisprudential meaning of the syntagms used by the legislator. Thus, the notions of reconstitution, constitution and return by right of ownership are analyzed distinctly, showing that the text of law in question is incidental both in the assumption that the agricultural cooperative of production has attributed lots for use in the gardens located in the built-up area of the former owners to third parties, cooperative members who were not the owners of that land, and in the assumption that such lots were attributed to the former owners themselves, who became members of C.A.P., either on the same site, in continuation of the 250 square meters of personal property, according to the regulations of that time (the dwelling house and household dependencies, the land on which they were located and the yard), or on another site in the built-up area. Some critical remarks are made on some approaches coming from a land fund county commission, but also from the court, which, in our opinion, did not take into account the conceptual efforts of the doctrine and the judicial practice in the matter. We are convinced that reading this study will effectively contribute to the reduction to evanescence of the risk of bringing prejudice to the real protection guaranteed by the legal order in the field of establishment, defence and exercise of the legitimate rights and interests of the persons covered by this text of law.
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This study analyzes briefly the new rules of the private international law of the European Union applicable to cross-border insolvency, contained in the Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) and applicable in their large majority starting with 26 June 2017. The study presents the legislative history of cross-border insolvency in the Union, the context of the adoption of Regulation (EU) 2015/848 and the objectives aimed thereby. Similarly, there are briefly presented the scope of application of the Regulation, the rules on international jurisdiction, the main and secondary insolvency proceedings, the law applicable to insolvency proceedings and their effects, the recognition of the judgment for opening the insolvency proceedings, the insolvency proceedings applicable to companies of the group and the insolvency registers.
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In this study, the author analyzes the ratio of the „data of a personal nature” and „personal data” and he draws up an inventory of the most important qualifications offered so far by the doctrine about the legal nature of these data. Finally, the author concludes that „personal data” are intangible movable assets, then he presents a number of practical consequences of this qualification.
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The new Criminal Code has introduced the imputability as essential feature of the offence. In the current meaning, imputability also includes guilt. Nevertheless, the legislator has mentioned also guilt as essential feature of the offence, together with imputability. The author analyzes to what extent the two essential features of the offence are complementary or exclude each other.
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This article addresses the matter of the correct legal classification of the introduction of drugs into the country for personal use. Our attention was drawn whereas not only that the judicial practice of the national courts and the specialized literature are not unitary in terms of legal classification, but even the High Court of Cassation and Justice has pronounced diametrically opposed solutions. Within the paper, it is performed an analysis of the incidental texts of law and of the judicial practice in the field, as well as some aspects of legislative technique and criminal policy.
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This paper addresses the matter subordinated to the substantive competence of settlement, during the criminal investigation phase, of the cases in which, initially under the competence of the D.I.I.C.O.T., the procedure of disjunction intervenes. His authors conclude that the provisions of Article 11 (3) of the Government Emergency Ordinance No 78/2016 must in no way be interpreted as being enacted in order to arbitrarily prorogue a prosecutor’s competence, but only for the purpose of the proper administration of justice, purpose to which any decision of disjunction must be subordinated.
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The way of exercising the parental rights and duties suffered after the adoption in 2009 of the Civil Code significant amendments as compared to the previous regulation. At the time of elaboration of the current Criminal Code, especially of the Chapter reserved to the family offences, this aspect has not been taken into account, so currently it is established the lack of synchronicity between the two regulations. The current regulation of the offence of non-compliance with the measures regarding minors, provided by Article 379 of the Criminal Code, refers to family relations that do not cover the new socio-economic realities, in which it is witnessed the labour migration from Romania to other states, in many cases doubled by the dissolution of some families. Similarly, the situations in which the children are left in the care of other persons or where the distance between the child and one or both parents is beyond the borders of a state become increasingly frequent.
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In this study, the author, starting with a specific case, refers to the patrimonial liability of the employees grounded on Article 253 (3) of the Labour Code. The text takes over from the common law the so-called action for regress of the principal for the act of the agent, provided by Article 1384 of the Civil Code. However, this action is possible only if the agent (the summoned employee) is liable for the prejudice, and not in the assumption that other persons or the principal himself (the employer) is guilty for causing the prejudice. At the same time, the elements of the contractual civil liability of the employees, consisting in the illicit act, causing damage to the employer’s patrimony, the causal link between the illicit act and the prejudice, as well as their guilt, are cumulative; the lack of one of them removes the mentioned liability.
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In this study we are making reference to the refusal to accept the bill of exchange and the extraordinary acceptance in the Republic of Moldova and Romania. By accepting the bill of exchange, the drawer becomes the principal debtor and, consequently, the bill of exchange must be presented to him. In case the drawee refuses the acceptance of the bill of exchange, the statement of refusal must be ascertained, within the time limits set for presentation on acceptance, by an act drawn up. Normally, the acceptance of the bill of exchange is made by the drawee. In the case of refusal of acceptance from the drawee, in order to protect the interests of the holder of the bill of exchange, the law regulates the possibility for a person other than the drawee to accept the bill of exchange. Such an extraordinary acceptance avoids the initiation of the action for regress.
