-
Art. 1 of the Romanian Labor Code states that its provisions shall apply to employment relationships, and the legal literature established that the employment relationship arises mainly from the employment contract between the employees and their employers. Law no. 52/2001, which regulates the casual work performed by the day laborer, by way of derogation from the provisions the Labor Code, provides that an employment relationship is established between the labor beneficiary and the day laborer, but an employment contract (which, according to Article 16 of the Labor Code requires written form) is not concluded. As the Court of Justice of the European Union decided in the Land Tirol Case that workers performing occasionally work, even for a single day, fall within the scope of the Framework Agreement on temporary work, and the Albron Catering BV decision stated that between the “employment contract” and “employment relationship” terms there is a relation of subsidiarity, the employment relationship of workers who provide occasional work must produce the same effects, in terms of the concerned person’s rights, with those of an individual employment contract Is concluded that Community legislation conferring rights to workers who have a employment contract or an employment relationship under the national law in force must be construed and enforced in accordance with the jurisprudence of the Court of Justice of the European Union, with regard to the relationship between the employment contract and the employment relationship. -
The mitigation case provided by Article 3201 Code of Criminal Procedure may coexist with the mitigating circumstance under Article 74 par. (1) point c) Criminal Code, whereas the two mitigating circumstances are different in content (especially in terms of intensity of the readiness of the defendant to cooperate with legal authorities) and different functions (under Article 3201 Code of Criminal Procedure it is rewarded the defendant’s readiness to accept a short and summary procedure resulting in reducing the trial’s duration, whereas under Article 74 par. (1) point c) Criminal Code honesty is rewarded). Therefore, there can not be the case of taking advantage twice of the same mitigating circumstance. If there should be agreed upon the idea that the retention of Article 3201 Code of Criminal Procedure prevents retention of Article 74 par. (1) point c) Criminal Code, then the defendant may prefer not to invoke Article 3201 Code of Criminal Procedure in order to capitalize on the more generous mitigating effects of Article 74 par. (1) point c) Criminal Code. -
The article presents the special cases where the defendant benefits from the mitigating effects of the abbreviated procedure, appreciating that they must also be extended in case the application for judgment has been rejected according to the abbreviated procedure, because the defendant did not recognize all the material acts in the indictment or all the deeds described therein, but after performing the judicial investigation the court retains the factual situation recognized by the defendant. -
Pursuant to Article 65 (1) of the (Romanian) Labour Code, the dismissal may occur for reasons not related to the employee in case the workplace held by the employee has been dissolved, for one or more reasons not related to the employee, and paragraph (2) of the text stipulates that the dissolution of the workplace must be effective and must have a real and serious cause. In this study, the author exhaustively examines the diverging opinions (solutions) in the doctrine and the case-law from Romania concerning the meaning and the scope of Article 65 (2) of the Labour Code and, then, firmly considers that, in the event of litigations, the law courts are obliged to examine not only the formallegal aspects of the measure of dismissal in the given situation, but also the opportunity of such measure, therefore, in other terms, the reality and the seriousness of dismissal (by the employer) for the reason of dissolution of the workplace held by the employee. -
The study is devoted to the analysis of the provisions of Article 304 of the Civil Code referring to the „putative marriage”, a legal institution meant to protect the good faith upon the conclusion of the null or annulled marriage. Unlike other authors, but in agreement with the provisions of Article 304 (1) of the Civil Code, we have also analyzed, together with the condition that at least one of the future spouses act in good faith, the requirement of existence, on the date of conclusion of marriage, of a factual situation which causes the nullity or the annulment thereof. Similarly, because the analysis of the effects of the putative marriage does not present difficulties of interpretation in case both future spouses have acted in good faith upon the conclusion of the marriage, we have focused on the situation in which, on the contrary, one of them acted in good faith and the other acted in bad faith. Finally, we have tried to elucidate the reason which determined the legislator to subject the patrimonial relations between former spouses, including in case that only one of them acted in good faith, to the provisions concerning the divorce and we have grounded a proposal de lege ferenda likely to eliminate the „legal compromise” generated by the current normative solution. -
The right of the creditor to request the opening of the insolvency procedure is one of the modalities which the legislator has made available to the creditor in order to materialize his claim right held against his debtor. The opening of the insolvency procedure does not have the characteristic of a proper enforcement, whereas insolvency does not offer to the creditor the guarantee of actual satisfaction of the claim right held against the debtor. The creditor entitled to request the opening of the insolvency procedure must have held against its debtor a certain, liquid and exigible claim for more than 60 days, which shall have the minimum amount set by the law. This study intends to analyze the characters of the claim of a creditor entitled to request the opening of the insolvency procedure, respectively the certain, liquid and exigible character. -
By the Law No 187/2012 for the implementation of the Law No 286/2009 on the Criminal Code there have been amended and supplemented some normative acts that include criminal provisions. In this context, this study examines the amendments brought by the mentioned law on the offence of unauthorized reproduction of software on computer systems, regulated by Article 1399 of the Law No 8/1996 on copyright and neighbouring rights. The author presents his personal and doctrinal points of view on the characterization of the constitutive content of the analyzed offence, as well as on the interpretation and on the application of the amending legal rules. -
Since the new Romanian Civil Code entered into force (Law no. 287/2009, republished on July 15th 2011) on October 1st 2011, the author examines in which circumstances the new legislation regarding the divorce cases on the docket (in first instance or appeal) might or not apply as at the date of entry into force of the new law (October 1st 2011). The author concludes that in the field of family right, due to the absence of expressly contrary provisions within the Law no. 71/2011 concerning enactment of the new Civil Code, the processes and requests on the docket are governed only by the law in force at the date the action (summons) was advanced. Therefore, the new law cannot be enforced (in absence of an expressly contrary provision) for a case already on remedy (appeal, second appeal). -
-
As the author herself states, the purpose of this study is to identify the sources of the international law which grounds the interdiction of the „hate speech”, as well as the manner of their perception and application at European level, particularly in the case-law of the European Court of Human Rights. In this respect there are presented: the foundations of the interdiction of the „hate speech” at universal and European level; the elements analyzed in this respect by the European Court of Human Rights (reference to the context of the speech; instigation to hatred on grounds of race and religion; negativistic and revisionist speech); the regulations adopted by the Council of Europe and by the European Commission against Racism and Intolerance; the normative framework of the European Union on racism and xenophobia, and, finally, the reference of the current Romanian criminal legislation to international exigences. -
At the conclusion of the individual labour contract it can be established, as provided in Article 31 of the Labour Code, a probation period. The legislator has established only the maximum duration of the probation period; specifically, the duration of the probation period is agreed upon in the individual labour contract, when negotiating the clauses. The probation period cannot be modified, being established upon the conclusion of the individual labour contract, but it can be suspended. In the case of the probation period, the dismissal procedure is limited only to the written notification, which must not be motivated, without other obligations for the employer, not even granting a notice period, nor carrying out the procedure of evaluation of the employee. -
Luarea măsurii recoltării de probe biologice de la inculpatul condamnat, chiar și pentru una dintre infracțiunile indicate expres în anexa la Legea nr. 76/2008 privind organizarea și funcționarea Sistemului Național de Date Genetice Judiciare (în continuare S.N.D.G.J.), în vederea determinării profilului genetic și înscrierii în S.N.D.G.J. este o măsură facultativă.
