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THE RIGHT TO DISCONNECT - A NECESSARY DEMARCATION BETWEEN PROFESSIONAL AND PRIVATE LIFE

Author(s): Luiza Lungu / Language(s): English / Issue: IX/2021

Keywords: digitization; disconnection; work time; private life; teleworking;

Today, the technology involved in the employment relationship is meant to facilitate daily operations in the exercise of the duties of each employee. However, technology can also be, indirectly, a tool through which the employee is constrained, being connected to work related issues at all times. Against this background of the sustained connection with work problems and the overload resulting from overtime, the phenomenon of "burn out" appears. For this reason, several European countries have taken measures to regulate this situation and protect employees from requests from the employer even after business hours. Pioneers in this field of the "right to disconnect" were France and Spain, which adopted, since 2016 and 2017, legislative measures to guarantee the right of employees to disconnect in order to ensure a balance between work and personal life. Although not yet regulated at national level, the right to disconnect is becoming increasingly important in the employment relationship at the level of employers across Europe, including in our country. To this end, earlier this year, the European Parliament adopted a Legislative Resolution containing recommendations to the Commission on the right to disconnect.

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A BRIEF SUBSTANTIAL-PROCEDURAL ANALYSIS ON THE FULFILLMENT OF NON-PATRIMONIAL OBLIGATIONS REGARDING MINORS

Author(s): Emanuel Căliman-Habet,Maria-Suzana Căliman-Habet / Language(s): English / Issue: IX/2021

Keywords: Minors; enforcement; „to do” obligations; „not to do” obligations; penalties; direct enforcement;

The complexity of the various affective and social relationships between members of a family is inevitably transposed in the same complex way in terms of law. The need for this legal field to identify solutions inspired by the practical spirit of the Romans is hit by the fluidity of the principle of the best interests of the child and sometimes by the inefficiency of existing forms in positive law. The existence of „to do” obligations different from the primary subjective right which aim to support its exercise is a novelty for the general theory of enforcement. Regardless of the reasons that substantiated the decision of the legislator to create new forms of enforcement for the fulfillment of non patrimonial obligations regarding minors; either the sincere concern for the effective realization of these specific rights; or the concern to avoid in the future further other convictions on behalf of the European Court of Human Rights; their existence is a scientific evolution of civil procedural law that must be viewed positively.

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EMBEZZLEMENT - OFFENCE AGAINST PATRIMONY OR OFFENCE IN PUBLIC OFFICE?

Author(s): Mihai-Costin Toader / Language(s): English / Issue: IX/2021

Keywords: embezzlement; offence against patrimony; offence in public office; damage; offence entailing social danger; result crime;

Within this scientific article the author will briefly approach some views of the specialized literature which consider; in the light of the new criminal classification; that embezzlement has become; as a result of the intervention of the law; mainly an offence entailing dangerousness; and thus damage would be irrelevant for its actual perpetration. In this frame of mind; we shall also examine the impact of the scientific hypothesis on judicial practice; since it should develop at the same time as doctrinal opinions change.

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REFLECTIONS ON MONETARY DAMAGES THAT MAY BE GRANTED PURSUANT TO ARTICLE 388 CIVIL CODE FOR THE REPARATION OF MORAL PREJUDICES CAUSED BY THE DISSOLUTION OF MARRIAGE. ASPECTS OF COMPARATIVE LAW. SPECIFIC COMPARISONS TO FRANCE

Author(s): Laura Tuduruţ / Language(s): English / Issue: IX/2021

Keywords: moral prejudice; divorce; divorce; monetary damages; no fault spouse; civil liability;

This study refers to examining the possibility of applying the provisions of art. 388 Romanian Civil Code and in case of reparation of the moral prejudices caused by the dissolution of marriage and the granting of monetary damages to the spouse who us not at fault for the dissolution of marriage. The civil legislation regulates for the first time this "right to damages" but the legal provisions were inspired by the French regulation which provided for the possibility of granting monetary damages. The examination of the provisions of art. 266 French Civil Code led to the identification of additional requirements which the French legislator expressly provided for compared to the Romanian legislator.

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TELEWORKING AND THE BLURRED BOUNDARY BETWEEN THE EMPLOYEE'S PRIVATE AND PROFESSIONAL LIFE

Author(s): Alice Dobrinoiu / Language(s): English / Issue: IX/2021

Keywords: Telework; teleworker; private life; monitoring; the right to disconnect;

The concept of “teleworking” used reluctantly by employers until the outbreak of the COVID 19 Pandemic became, after this moment, the solution to protect the health of workers and businesses at the same time. But working most of the times, from home leads to the difficulty in determining the work program and to the interference between the working time and the resting time, with direct consequences on the employees' private life. Research shows that employees who work regularly from home are more than twice as likely to exceed a maximum of 48 hours of work per week, compared to those who work at the employer's premises, while almost 30% of those who work from home declared that they work in their free time every day or several times a week, compared to less than 5% of those who work at the employer's premises.

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APPROACH OF LEGAL CAPACITY OF THE UNDERAGE PERSON FROM THE PERSPECTIVE OF LABOUR RELATIONS AND TELEWORK

Author(s): Ana-Maria Păduraru / Language(s): English / Issue: IX/2021

Keywords: telework; young person; child; legal capacity; work capacity; consent of parents; emancipation of underage persons;

The work capacity recognized for the underage person who is at least 16 years old represents a completion brought by the Labour Code to the legal capacity provided by Civil Code, reflecting the Common Law on the matter, as the Labour Law rules that there is a third variant of the capacity resulting from the legal capacity, i.e. the work capacity creating a part and whole relation of the legal capacity. Therefore, the work capacity of the underage person appears as a partial capacity conditional upon the restricted legal capacity, as it becomes full at the age of 16 years. Subject to Law no. 81/2018 on regulating the telework activity, it is required to analyse the possibility of the underage person having work capacity to carry on activity as telework, using information and communications technology and taking into consideration also the legal frame related to definition, forbiddance and removal of dangerous works for children, which, by their nature or conditions of being carried out are harmful to health, safety or morality of children, being found in Government’s Decision no. 867/2009.

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PREVENTING ACCESS TO MANDATORY GENERAL EDUCATION (OFFENCE AFFECTING FAMILY RELATIONSHIPS)

Author(s): Adina Maria Alexandra Popescu,Bogdan Mihai Dumitru / Language(s): English / Issue: IX/2021

Keywords: education; parent; minor; withdrawal; impediment; frequency;

The legal protection of the family includes all the social relations that exist in connection with the manifestations of those who have the quality of spouses, parents and children regardless of the fact that the latter come from adoption. From the perspective of ensuring education and intellectual training, the crime of preventing access to mandatory general education takes into account the family in terms of the relationship between parents and underage child. Education means accessibility to an education system that meets the future aspirations of children and is necessary for social progress. The family has a direct impact on the way children achieve and develop school performance, and mandatory general education is an essential element. School dropout is a danger, so it is necessary to highlight the role and responsibility of the parent or of the persons to whom a child has been entrusted, according to law, in terms of compliance with the right to education. With a largely preventive purpose, the Criminal Code includes the criminalization of the offence of preventing the access to mandatory general education as a fact that damages the family relationships as a component of social relations.

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THEORETICAL AND PRACTICAL ASPECTS REGARDING ON CO-AUTHORED DISPUTES IN COMMITTING CRIMINAL OFFENSES AND CRIMES AGAINST A FAMILY MEMBER OR AGAINST A FAMILY

Author(s): Adinan Halil,Adina Maria Alexandra Popescu / Language(s): English / Issue: IX/2021

Keywords: criminal liability; authorship; co authorship; participation; crimes committed against a family member;

The new regulations brought by the Criminal Code offer fresh conception on the issue of criminal participation in Romanian criminal law. Thus, following other European models, the Romanian legislator chose to exclude the author from the sphere of participants, thus using what is called the restrictive concept, given the qualitative differences that exist between the author, on the one hand, and instigator and accomplice, on the other. on the other hand. At the same time, unlike the regulation from the Criminal Code of 1969, the New Criminal Code chose to explicitly define, the content of art. 46 para. (2) the co authors, placing them in an uncertain place, however, between the author, to whom he resembles himself by committing the act directly, and participants. The doctrine and jurisprudence have been given the task of interpreting the legal provisions governing the situation of co authorship so that over time different opinions have arisen on various issues and at the same time in criminal matters that have embraced one or the other of them. The institution of criminal participation has particularities, which implicitly determine the appearance of controversies, regarding certain categories of crimes such as those committed through guilt or against a family member. In the present study, we aimed to analyze these controversies trying to present different opinions and arguments in support of them..

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CURRENT CONSIDERATIONS REGARDING THE LEGAL REGIME OF CONTRIBUTIONS CONSISTING OF COMMON PROPERTY OF THE SPOUSES WHEN SETTING UP COMPANIES, ASSOCIATIONS OR FOUNDATIONS

Author(s): George-Bogdan Ioniță / Language(s): English / Issue: IX/2021

Keywords: contribution; legal communities regime; common good; associate and society;

This research aims to analyze the provisions regarding the possibility regulated by the current Civil Code to be able to bring as contribution a common good of the spouses to the establishment of a company, association or foundation. In this sense, in the first part we will mainly analyze the provisions regarding the legal community regime and we will also analyze the scope of the notion of “common goods” of the spouses. The second part will have as main objective the continuation of the analysis on the types of companies where the contribution of a common good is possible as well as the types of regulated contributions in the corporate matter according to the legal regime prescribed by the current Civil Code. In carrying out this research, the legal provisions in force were analyzed, as well as the opinions of the specialists transposed in the existing specialized doctrine in the field.

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EUROPEAN BEST PRACTICES AND THEIR IMPORTANCE IN CONSOLIDATING THE ROMANIAN LEGISLATION IN THE MATTER OF DOMESTIC VIOLENCE

Author(s): Mihaela Sava / Language(s): English / Issue: IX/2021

Keywords: Romania; Norway; domestic violence legislation, procedural improvements;

The paper revises current legal provisions concerning family violence in Romania, outlining its main improvements, as well as incomplete or unharmonized procedures. These perfectible legal and procedural aspects are discussed on the background of European best practices, with a particular focus on Norway, taken as a desirable standard. The conclusions of the paper summarize the steps to be taken towards harmonization and improvement of current legal practices and procedures in Romania, outlining the benefits of adopting compatible Norwegian patterns.

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PARENTAL LEAVE AND WORK-LIFE BALANCE. EVOLUTION, CHALLENGES AND PERSPECTIVES

Author(s): Valentina Lidia Zărnescu (Lupu) / Language(s): English / Issue: IX/2021

Keywords: work life balance; parental leave; fertility rates;

Parental leave can be an effective tool in balancing work and family life, but in order to achieve this goal, its legal construction should be adapted to the new social and technological challenges. This study aims to examine and analyse the parental leave regulations adopted at European Union and national levels, as well as how they respond to the challenges faced by the workers with family responsibilities. The study ends with closing remarks and a list of de lege ferenda proposals.

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ON FAMILY PROTECTION AND TESTAMENTARY FREEDOM IN THE COMMON LAW TRADITION

Author(s): Anthony Murphy / Language(s): English / Issue: IX/2021

Keywords: maintenance; family protection; testamentary freedom; hereditary reserve; forced heirship;

During the past century, legal systems belonging to the Common Law tradition abandoned their unfettered attachment to testamentary freedom in favour of a seemingly novel restriction. Instead of borrowing the Civilian forced share or the Scots Law legitim, said legislations sought to protect the family and dependants of the deceased by expanding the latter’s duty to provide maintenance beyond death. Such a solution proved to be conceptually far enough from the Civilian solution so that it would not threaten its relationship with testamentary freedom. New Zealand was the first country to adopt such a form of family protection, which later inspired similar reforms in Canada, Australia and English Law. The present paper argues that, far from being a novel doctrine, the Common Law system of family protection builds upon some perennial answers given millennia ago within the Roman law of succession. Moreover, the drafters behind the New Zealand reform were possibly oblivious to this fact.

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THE CHILD’S RIGHT TO A NAME

Author(s): Paul-Augustin Pușcaș / Language(s): English / Issue: IX/2021

Keywords: right to a name; child’s name; surname; forename; change of name; child’s rights;

The article conducts a detailed examination of the child’s right to a name as an expression of the minor child’s right to establish and preserve his or her identity. The scope of the approach is a complex one that depicts both incidental and national European regulations. While the Civil Code represents the seat of the common law matter, the Law no. 272/2004 on the protection and promotion of the rights of the child establishes a series of measures that must be taken so that the right of the child to a name is realized and thus, is guaranteed to all children without any discrimination. At the same time, taking into account the dynamics of society in an evolutionary context, attention was paid to cases and situations requiring a name change, this study being a useful tool for legal professionals, child protection authorities, students from the faculties in the field, parents, as well as any other practitioners or organizations whose purpose is to ensure the legal protection of the rights of the child.

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ASSESSMENT OF THE LEASE AGREEMENTS’ ENFORCEABILITY DEPENDING ON THE FORM OF LEGAL INSURANCE FOR THE FAMILY’S HOUSE

Author(s): Manuela Tăbăraş / Language(s): English / Issue: IX/2021

Keywords: lease agreement; rent; enforceable title; debt; family house;

Changes brought to the Civil Code through provisions of art. 1798 is therefore establishing the enforceable feature of lease agreements even when they are concluded under private signature under sine qua non condition to be registered with fiscal authorities, consecrating their status exclusively as enforceable title for rent payment on terms, in the amount and way of payment established in the agreement, the lawmaker showing (!) that the same status is also applied to lease agreements concluded in authentical form which also represent enforceable titles for rent payment. Therefore, lease agreements’ enforceability envisaged by these provisions are applied to: (i) exclusively for the rent, (ii) it regards both authentical agreements and those concluded under private signature, noting that although theoretically enforceability can derive from the authentical title, this fact however does not offer de plano enforceability because the general norm establishes enforceability only to the document authenticated by the public notary that recognizes a firm, liquid and due debt. Consequently, the essence of enforceability will be extracted not only from the conclusion form of the document but also from the authentical document wording – so that the lease to constitute enforceable title at least in theory and also with regards to other contractual obligations envisaged by this feature.

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PARTICULAR ASPECTS REGARDING THE APPLICATION OF THE CONVENTION ON CONSENT TO MARRIAGE, MINIMUM AGE FOR MARRIAGE AND REGISTRATION OF MARRIAGES IN STATES PARTIES

Author(s): Roxana Popescu / Language(s): English / Issue: IX/2021

Keywords: convention; consent to marriage; minimum age for marriage; registration of marriages; application; reservations; declarations;

Marriages between minors, early marriages and forced marriages have been and continue to be a serious violation of human rights, in general and of the rights of minors, in particular. It is a violation of the right to freely express one’s consent, on the one hand, and of the right to physical integrity and mental health, on the other. Failing to comply with these rights results in the violation of other rights such as the right to education. These were sufficient reasons for the international society to understand in 1962 the need to regulate, by an international legal instrument, the consent to marriage, the minimum age for marriage and the registration of marriages. The Convention entered into force in 1964, but once the consent expressed, the States customized its application at national level, through reservations and declarations.

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THE RIGHT TO FAMILY LIFE AT THE LEVEL OF EUROPE

Author(s): Felicia Maxim / Language(s): English / Issue: IX/2021

Keywords: family life; family members; family relations; European Convention on Human Rights; Charter of Fundamental Rights of the European Union;

The importance of the family in society has been emphasized since ancient times, which has led to its enshrinement in international human rights law, stating that every person should benefit from family life. Existing universal international regulations are an example of how states have agreed to enshrine various issues related to ensuring and guaranteeing the right to family life. Being faithful to universal provisions, however also under the influence of the traditions specific to each region, the states have adopted a series of legal instruments of a regional nature. Thus, the analysis of European regional regulations leads us to a research of the documents adopted at the level of the Council of Europe, but also at the level of the European Union without neglecting the jurisprudence of the two European courts, namely: the European Court of Human Rights and the Court of Justice of the European Union.

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CONSIDERATIONS REGARDING THE NOTION “FAMILY MEMBER”. EVOLUTION OF LEGAL REGULATION

Author(s): Adrian-Milutin Truichici,Luiza Neagu / Language(s): English / Issue: IX/2021

Keywords: close relatives; family member;

The family was a priority of the Romanian legislator, who gave increased importance to the family institution. For example, the "Explanatory Memorandum" of the Criminal Code of 1968 states that "in our organization, the development and consolidation of the family is a major concern of the state, of society as a whole." The family, in modern society, has been protected not only by the Romanian legislator, but also by European and international bodies, there are constant concerns in adopting an optimal legal framework. The adoption of the European Convention on Human Rights in 1950 was an important moment in ensuring the legislative framework necessary to protect private and family life.

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KILLING OR INJURING OF THE NEWBORN COMMITTED BY THE MOTHER IN THE NEW INCRIMINATING FORMULA

Author(s): Andrada Nour / Language(s): English / Issue: IX/2021

Keywords: infanticide; child murder; attempt; biological mother; surrogate mother; newborn; mental disorder; diminished discernment; murder; family violence;

The killing of the newborn by the mother constitutes one of the offences with a strong emotional impact, unfortunately, still quite widespread especially in social environments in precarious situations. In this paper we set out to analyse this offence from a complex perspective, so that we can define and explain as correctly as possible the legislation in force, by reference to established doctrinal opinions in the matter, to judicial practice, and to the different ways of criminalising this act in the legislation of other states. We have addressed a number of controversial issues, such as the novelty of the current incrimination, the attempt to the offence of infanticide, the sanctioning of criminal participation or the notion and limits of the state of mental disorder, characterized by diminished discernment. This scientific approach includes a number of proposals for a ferenda law, formulated with a view to supplementing and improving the legal text, as well as eliminating ambiguities likely to give rise to an uneven judicial practice in such a sensitive area.

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CRIMINAL AND CRIMINOLOGICAL ASPECTS OF INCEST

Author(s): Bogdan Vîrjan / Language(s): English / Issue: IX/2021

Keywords: incest; sexual intercourse; direct relatives; crime against family; brothers and sisters;

Through this paper we propose an analysis of the crime of incest, as it is currently regulated in the Romanian Criminal Code by comparison with the old regulation, highlighting certain relevant aspects of this crime, as well as problems that may arise in the interpretation and application of the incest incrimination rule. As we know, the crime of incest has generated several discussions in the literature. Divergent views focused both on how to regulate this crime and on the idea of decriminalizing consensual incest. Last but not least, given the evolution over time of the norm of incrimination of incest, it seems that the legislator was not very clear about the social value protected by this crime. In this regard, we recall that in the draft of the new Criminal Code, incest was no longer provided as an independent crime, it being considered that it is sufficient to incriminate the incest committed by coercion or by making the victim unable to defend himself or to express his will or taking advantage of this state, as an aggravated variant of the crime of rape. Eventually, the current Criminal Code came out of the parliamentary procedure, keeping the crime of incest in crimes against the family, but with certain modifications compared to the old Criminal Code, in the sense of restricting the scope of this crime only in the case of consensual sexual intercourse and reducing the limits of punishment. Also, although the Explanatory Memorandum of the new Criminal Code states that this crime protects the morality of family relationships, we note that the legislator included in the rule of incrimination only sexual intercourse, excluding oral sex or anal intercourse – vaginal or anal penetration or any other acts of a sexual nature, as alternative normative ways of accomplishing the material element of this crime.

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THE FUNERAL IN TIMES OF COVID-19: WHERE IS THE BOUNDARY BETWEEN THE MEASURES NEEDED TO COMBAT THE PANDEMIC AND THE ORTHODOX CANONICAL NORMS?

Author(s): Andrei Tinu,Mirela Popescu / Language(s): English / Issue: IX/2021

Keywords: pandemic; human dignity; canon law; burial; religious freedom;

By an order of the Minister of Health dated 6.04.2020, the state authorities took a series of sanitary measures in the cases of people suffering from COVID 19 who died in hospital units, respectively banned the cosmetic and dressing manpower of their bodies, before to be placed in plastic bags. These procedures contradict the canonical tradition and norms, because, for Eastern Christians, the preparation of the body of the deceased for the funeral ritual has a special significance. In the Christian conception, death is only a stage that man must go through to enter eternity. This study aims to analyze the legal provisions adopted by the authorities of the temporal power in the fight against the pandemic and the impact they had on the rights and obligations of the families of the deceased, both from a canonical and secular national and international perspective.

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