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Within the new Romanian law for preventing insolvency and for insolvency (Law No 85/2014) a regulation of novelty is represented by the provisions of Article 182 (1) and (3), according to which the judicial administrator/judicial liquidator may be held liable for exercising his duties in bad faith or in gross negligence, but not if he acts in good faith within the limits of the duties provided by the law and of the available information. This new regulation in the matter is analyzed in detail in this study. -
This study raises for discussion the condition of full recognition of facts and changing the legal classification within the trial procedure in case of recognition of accusation. A deed, which the defendant must recognize, means the act of conduct committed under both its sides, objective and subjective, as well as all the circumstances surrounding this act, regardless of their nature and of the moment when they occur in relation to the act itself. The defendant may contest the legal classification established by the public prosecutor and may benefit from the settlement of the case in simplified procedure only when the contestation against the legal classification is not based on a change of the state of facts. -
The Romanian Labour Code (Article 80) provides that, in case the dismissal was made groundlessly or unlawfully, the court will decide its cancellation and will order the employer to pay a compensation in cash. If the employee expressly requests it, in addition, the court will restore the parties to the situation prior to the issuance of the act of dismissal (therefore it will decide the reinstatement of the employee to the position held). If the employee does not request to be reinstated to the position held, the individual labour contract will cease de jure on the date when the judgment remains final. Whereas the regulation of the Labour Code in the matter (the reinstatement to the position held, if the employee so requests) is, in the author’s opinion, overly rigid, a series of de lege ferenda proposals are made in this study, in the sense of promoting a more pliable (flexible) solution, as regards the mandatory reinstatement to the position, if the employee so requests, in a given case.
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Pursuant to Article 65 of the (Romanian) Labour Code, the dismissal of the employee due to the dissolution of his workplace, for one or more reasons not related to this employee, involves, according to paragraph (2) of this text, that such a dissolution „be effective and have a real and serious cause”. Having a view that in the case law there is a difference of opinions on the above-mentioned phrase, the author makes an exhaustive analysis of the text of Article 65 and comes to the firm conclusion that, in case of dispute, the court must determine whether, in this case: – the dissolution of the workplace has occurred due to a real cause, therefore the cause was objective, of an undeniable nature; – the cause is serious, so it has a certain degree of gravity, with harmful consequences for the employer, thus requiring the dismissal of the employee; – if, following the principle of good faith, the employer has used, prior to dismissal, all the other possible legal remedies, so that the dismissal had only been a last resort.
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Among the assets that are the object to public property and are likely to be subject to concession and lease of particular importance are the permanent lawns. A special normative act was dedicated to them, namely the Government Emergency Ordinance No 34/2013, which regulates inclusively the concession and lease of lawns which are in the public or private property of communes, towns and municipalities. As regards the concession and lease of the lawns which are in the public property of the above-mentioned administrative-territorial units, the legislator understood to derogate in some respects from the common law. Thus, the local public authorities are obliged to approve until 1 March every year the concession or lease for a period of 7 years to 10 years, without having the opportunity to assess the appropriateness of these juridical operations, the place of the opportunity study is taken by the pastoral arrangement, the award procedure is triggered at the written request of the animal breeders registered in the National Register of exploitations, there is no possibility of changing the destination of the concessioned or leased assets, even if there would be a consent of the owners, the lease contract for the lawns is non-transmissible even in the hypotheses regulated by Article 1846 of the Civil Code and others. The derogatory legal regime for concessioning of lawns which are in the public property is justified by the importance the legislator gives to the capitalization of these assets. Thus, in the statement of reasons of the cited normative act it is shown that animal breeding is an activity of national interest and the permanent lawns owned by the administrative-territorial units is for many breeders the only source of providing food for these. At the same time, capitalizing these assets is the premise of granting subsidies per area. These subsidies being granted from European funds the importance of the concession of those assets is undeniable. This explains why the administrative-territorial units to which a request for concession has been made do not have the possibility to assess the appropriateness of such a juridical operation, by law being imposed on them an obligation to grant permanent lawns. Correlatively, the animal breeders, natural persons or legal persons, who make in due time requests for concession acquire the right to participate in the award procedure, right which can be defended by resorting to the action in administrative disputes. -
This study aims to advance solutions in view of determining the effects triggered by decisions issued by the Court of Auditors, establishing the unlawfulness of granting certain rights through collective labour agreements concluded at the level of public institutions financed entirely from own revenues, on the clauses of the collective labour agreement by which those rights were established. -
The study devoted to the loan contract resumes in a new form, determined, indeed, by the new Civil Code as well, this type of contract with a millenary existence, which has its roots in the Roman Age. The study emphasizes the evolution in time of the loan contract, from the essentially free loan, concluded between relatives, friends, acquaintances, a contract in which the moral precepts, including those related to religious morals, were extremely obvious, to the current loan contract, with an onerous variant, a contract that, without having lost its viability, has become extremely topical, useful. The study also emphasizes the form in which the Civil Code has insisted on regulating this type of contract, under the more or less beneficial influence of the doctrine and of the case law prior to its adoption. We tried, where we found it necessary, to go beyond the traditional patterns of the contract, as it is regarded by a significant part of the doctrine, and to accredit other points of view, being fully aware of their fragility. Last but not least, we tried to adapt the theories of some pragmatic exigencies, which, ultimately, should prevail over any constructions more related to the philosophy of law, not to the changing law.
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This study makes an examination of the legal provisions regarding the retirement of the university teaching staff. There are analyzed in a critical manner the provisions stated in Article 289 (3) and (6) of the Law on national education No 1/2011, which refers to the continuation of activity by the retired teaching staff and to the maintenance of the quality of titular in education and/or research. The author believes that the syntagms used by the mentioned texts do not receive an exemplary drafting, which may lead to different interpretations. The author also points out that, in the administrative practice, some university senates have adopted methodologies capable of annihilating the application of the legal provisions regarding the maintenance of the quality of titular of the teaching staff, solution appreciated as deeply illegal. At the end of his study, the author considers that it is necessary a better drafting of the texts relating to the maintainance in office of the university teaching staff whose teaching and scientific performance is undeniable. Likewise, de lege ferenda, it is estimated that such a possibility should be recognized only for university professors, not for all teaching staff. -
This article emphasises the special situations of some employees of the public hospitals, of the forensic medicine institutes and of the employees of some quarry mining exploitations, who have reported prejudices to their right to health and safety at work by the conduct of the employers, of the trade unions and even of the public institutions with powers of control and of ensuring the respect for these rights.
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This article aims to examine Article 16 of the Labour Code, republished, on the requirement of drafting individual employment agreement in Romanian language, from various standpoints, such as: (i) applicable sanction for failure to conclude the individual employment agreement in Romanian language; (ii) the requirement to observe the principle of equal treatment in cases where the individual employment agreement is concluded with a foreign citizen or a national of another Member State of the European Union or the European Economic Area, concretized, inter alia, by drafting the individual employment agreement in the language of the foreign citizen; (iii) the probative value of the versions of the individual employment agreement concluded in several languages.
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This study proposes the approach of an identified problem with regard to the regulation of the manner of applying the complementary punishment of prohibition to exercise some rights. By the analysis made within this study, the author identifies a situation of inequity which can arise in precise cases between the case of the sentenced person conditionally released from serving the punishment of life imprisonment and the case of the conditionally released person sentenced to imprisonment in detention. -
The study deals with the particularities of the human medically assisted reproduction in the cross-border private relationships. Among the artificial procreation techniques, surrogate motherhood is of present interest, as a result of the multiplication of the requests for recognition, on the territory of the forum, of the foreign judgments which establish the filiation of the child born abroad. The implications of private international law are tangential to the qualification, to the conflicts of laws in time and space and to the effectiveness of the foreign judgments. The heterogeneity of the national regulations is the main factor creating non-unitary case laws and different practices – some of them, questionable. The context of the analysis does not allow the dissociation of the artificial procreation from the higher interest of the child, so that any de lege lata or de lege ferenda solutions must be examined through the filter of this fundamental principle.
