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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). -
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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.
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By Decision No 405/2016, the Romanian Constitutional Court (CCR) ruled that the provisions of Article 297 (1) of the Criminal Code (misfeasance in office or misconduct in office) are constitutional only if the sentence „fulfils wrongfully” has the meaning of „fulfils by breaching the law”. However, in more than two years from the publication of this Constitutional Court Decision, it is worth to notice that the jurisprudence of the criminal courts knows diametrically opposed interpretations. In one opinion, the Decision is interpreted as of the utmost generality, while a second opinion regards the CCR provisions as being of strict interpretation, whereas for the existence of the respective criminal offence is necessary that the public servant breach one of the laws that govern his activity or at least a provision that is part of its duties in office. The article presents the jurisprudence of the Romanian courts related to the crime of „misfeasance in office” while examining it in the light of the requirements of the principle of legality and of the CCR Decision considerations.
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Entrusting personal property to view and verify its operation does not constitute a waiver of its possession or detention, and the appropriation of someone else’s stuff touch-and-go in his grip stands for a fraudulent possession, which, without the consent of the victim, with strict reference to the stuff’s acquisition and not otherwise, shall be construed as crime of theft and not crime of fraud. -
Guaranteeing the right to defence is a fundamental principle under the Romanian criminal procedure law. Although it has strong constitutional and criminal procedure guarantees, however, its practical implementation is in some cases misinterpreted and, on the other hand, the prosecution bodies violate it sometimes, the consequence being the discrediting of the judicial process. The present article refers to jurisprudence in two cases where the defender’s right to question the opposing party and to inspect the prosecution file is restricted without legal basis. -
At this moment, the question of the application of the more favorable criminal law, as compared to the previous Criminal Code, of the existence of the transitional situations, of the comparative analysis of the criminalization norms of the current Criminal Code and of the provisions of the previous Criminal Code is less and less raised, but not all decisions pronounced by the High Court of Cassation and Justice in appeal in the interest of the law before 1 February 2014 have lost their applicability, as the opinions expressed in the specialised literature, regarding the different criminalization norms, in their evolution over time, are still of interest, both from a theoretical and a practical point of view. Although it entered into force relatively recently, the Criminal Code has undergone a series of changes, in its content, especially in the special part, either by criminalizing new acts, or by increasing the special punishment limits, or by introducing new aggravated variants of the already existing crimes. Considering the multitude of normative acts by which the provisions of the special part were amended and supplemented, we consider it necessary to analyze the way of drafting the various norms, having as a reference point also the various opinions from the recent specialized literature, with regard thereto. -
Although the European Union’s activities hardly integrate into the civilist logic of the „illicit legal act”, its non-contractual liability is triggered in particular for what the doctrine generically calls „behaviours” considered to be illegal. Even under this generous hypothesis, the Union liability can only be engaged under very strict conditions, less established by the Treaties and, rather, by the judge in Luxembourg, on the basis of some rules that discourage the litigants, limiting the possibility, in procedural and material terms, to bring such actions. The jurisdiction to settle the disputes concerning non-contractual liability of EU exclusively pertains to the European Unional jurisdictions, by applying Article 268 TFEU, which necessarily implies that the non-contractual liability of the Union must be engaged solely on the basis and under the conditions of EU law. Such an argument is fundamentally justified by the fact that engaging this liability very often implies that the scope of application is an appreciation of the Union’s policy, which is why the exclusion of the competence of any national jurisdiction appears to be natural.
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As a result of the particular regulation of a long-standing principle of European Union law, as of 25 May 2018, data controllers have an express obligation to process personal data „lawfully, fairly and in a transparent manner in relation to the data subject («lawfulness, fairness and transparency»)”. In the light of the arguments which will be presented in this article, it will follow that the principle of transparency gives data subjects the possibility to hold controllers and processors accountable and, in particular, to exercise concrete and effective control over their personal data, e.g. by giving or withdrawing informed consent, and by exercising regulated rights in favour of data subjects. In other words, by virtue of the principle of transparency, data controllers are obliged to take any measure necessary to ensure that data subjects – customers or other users – whose data are processed are fully and accurately informed. As regards the concrete way in which compliance with this fundamental principle can be ensured, the General Data Protection Regulation provides some guidance, stating in Article 12 (1) that the controller is obliged to take appropriate measures to provide the data subject with any information referred to in Articles 13 and 14 and any communications pursuant to Articles 15–22 and 34 relating to processing in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. Therefore, the information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means. Last but not least, information or communication should, as a rule, be provided free of charge. Throughout the article, on the basis of the doctrine and case law, the meaning of the notions used by the European legislator in Articles 5, 12, 13 and 14 of the General Data Protection Regulation will be explained. -
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The article analyzes the Decision of the Constitutional Court No 369/2017, by which the phrase „as well as in other requests assessable in cash worth up to ROL 1 000 000 inclusive” was declared unconstitutional. In the Civil Procedure Code, in Article 483 (2), there are listed the judgments that can not be challenged with recourse, among which there are the requests assessable in cash worth up to ROL 500 000. By Article XVIII of the Law No 2/2013, this threshold was increased to the amount of ROL 1 000 000 inclusive. We consider criticizable the establishing of the categories of court judgments that have eluded the recourse taking into account the value criterion and we propose to eliminate this criterion. In our opinion, we agree with the admission of the plea of unconstitutionality, which has eliminated the value threshold for the promotion of judgments that can be challenged with recourse. Likewise, we consider criticizable also the delimitation of the material competence between judges and tribunals, being based on the value criterion. In our opinion, the delimitation of the material competence must be made depending on the nature of the litigation brought to justice, not on the value criterion of the request for summons. -
The study analyzes the way in which the High Court of Cassation and Justice – the Panel for the settlement of the appeal in the interest of the law ruled on the unitary interpretation and application of the provisions of Article 472, Article 473 and Article 491 of the Civil Procedure Code, in the sense that the object of the incidental appeal or review, respectively the provoked one, may concern a part of the judgment of the court of first instance or of the court of appeal that was not challenged with a main appeal or review. In the opinion of the supreme court, it was considered that the provisions of Article 491 (1), Article 472 (2) and Article 473 of the Civil Procedure Code are not conditional on the filing of the incidental appeal/review or of the one provoked by the invocation of some grounds of appeal/review that concern only the provisions of the challenged judgment that were criticized by the main appeal/review, considering that the reasons of the incidental or provoked appeal/review may tend to annul the judgment challenged under any aspect that is of interest to the respondent declaring an incidental or provoked appeal/review. The main argument for adopting this interpretation is the premise of regulating the incidental appeal/review.
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The sale-purchase contract is undoubtedly, in the 21st century and in the landscape of the Romanian law, the most frequent contract used in practice, having an essential and decisive role in the organization and development of social and economic life. The complexity, variations and particularities of this contract, starting from its conclusion and until the exhaustion of all its effects, contribute to shaping the overwhelming importance of the sale, of the „standard contract” which is the most used legal instrument for transferring goods. In this context, the effectiveness, usefulness and practical applicability of a sale-purchase contract depend essentially on its structural, „anatomical” elements, namely the essential, intrinsic and extrinsic conditions of validity which directly determine the effects of the sale. Depending on these structural elements there are researched and assessed the validity of any contract, in whose absence its legal effects cannot operate, and, if they operate, they will be abolished with all the consequences which they entail. Thus, the valid formation of the sale contract implies more than a simple analysis of the mechanism of realization of the will agreement; it necessarily involves a detailed examination of the structural elements of the contract which are referred in the law as being „the essential conditions for the validity of the contract”. Any dispute which may arise, having as object a sale-purchase contract, will be based primarily on the analysis of the legal fulfilment of the very conditions of validity of this contract, which will unequivocally determine the subsistence of the contract, as well as the extent and applicability of its effects
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The behaviour of a free and conscious man is the result of his will, which is guided by a reasonable intentionality that gives it meaning. In the absence of a purpose, any action becomes chaotic, accidental and raises questions about the mental health of the person who takes action 1 . We find that the fourth essential condition, a substantive one, necessary for the valid existence of the sales contract is the cause. According to the rules of common law, in matters of legal acts, the cause is the determining reason for the consent expr essed when concluding the legal act. The obligation without cause or with an illicit or false cause cannot have any effect.
