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Ochrona praw jednostki w administracyjnych postępowaniach wyłączonych

Author(s): Przemysław Ostojski / Language(s): Polish Issue: 2/2018

This study regards protection of the individual’s rights in autonomous administrative proceedings in the light of the Act of 14 June 1960 – Code of Administrative Procedure, regulated in the special regulations in relation to the general standards arising from this act. The intention of the author was to demonstrate that establishment of excluded administrative proceedings by the legislator compromises protection of the individual’s rights in comparison to the standards guaranteed by the European legislative acts. This thesis was verified by way of analysis of two exemplary regulations concerning excluded administrative proceedings: proceedings regarding co-financing of projects within the framework of operational programs as well as verifying proceedings related to protection of confidential information. The regulations of the Code of Administrative Procedure correspond fully to the regulations adopted in the European law. Instrumental treatment of procedural provisions and their separate formation in the provisions of special acts must have an underlying justification and, first and foremost, must be compliant with the principle of proportionality. Otherwise, ad hoc creation of separate procedural solutions is not conducive to cohesion and completeness of the legal system in a democratic state under the rule of law. Concurrently, it reduces the level of protection of the individual's rights in the administrative proceedings. Such a situation occurs in the exemplary regulations subject to the analysis presented herein.

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Wykonywanie zawodu lekarza a ochrona praw pacjenta i odpowiedzialność lekarza w świetle uregulowań w prawie polskim

Author(s): Barbara Podgórska / Language(s): Polish Issue: 2/2018

Practicing the profession of a physician is associated with the human life and health protection. Attempts have been made to define rules that the physician should follow and embody these rules in both ethical and legal framework. Protection of life and health is one of the fundamental human rights and an obligation of the state guaranteed by the Constitution of the Republic of Poland, hence provisions governing this area are included in many pieces of legislation. In practicing his or her profession, the physician bears civil, criminal and professional responsibility. Civil responsibility involves responsibility for any damage that occurs as a result of an adequate causal link. Criminal-law life and health is regulated in detail by penal code. Professional responsibility is executed by the Chamber of Physicians. Statutory laws concern the physician’s responsibility and patient’s rights. There are new domains in medicine which require new solutions.

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Obowiązek lojalności pracownika po ustaniu stosunku pracy

Author(s): Urszula TORBUS / Language(s): Polish Issue: 2/2018

Duty of loyalty after a termination of employment contract is limited. It does not result from employment relationship, based on mutual confidence and trust, but is guaranteed by separate regulations – Unfair Competition Act of 1993 (UCA) or an additional covenant, introducing non-competition clause after termination of employment contract. UCA protects only against unfair competition, in other words, a qualified disloyalty of an ex-employee, aimed at causing damage to a former employer. It may involve a disclosure of trade secrets or a takeover of customers or employees. However, as long as this is not accompanied by unlawful soliciting or dishonest intentions, a submission of job or cooperation offers to employees or clients of a former employer is not prohibited, as it is considered a way of acquiring clients or employees on a free market.Wider protection can be granted by concluding a covenant with non-competition clause after a termination of employment contract, provided by Article 1012 of the Labour Code (LC). The LC grants a wide freedom to the employer in assessing whether to conclude such a covenant, limited merely to the obligation to pay to the ex-employee a relatively low compensation in the amount not lower than 25% of the remuneration received before the termination of the employment contract. However, a non-competition clause cannot prevent the ex-employee from earning his living. Thus, the obligation of loyalty after the termination of the employment contract is limited to the prohibition of competitive activity, including unfair competition.LC also allows the employer to protect his interests against disloyalty of an employee who is about to leave his employment by forcing a gardening leave. Since LC Amendment of 2016, it does not require the employee’s consent.

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Obowiązek lojalności stron stosunku pracy

Author(s): Mariusz Wieczorek / Language(s): Polish Issue: 2/2018

The article discusses the duty of loyalty of employee and employer as a mandatory employment relationship. Despite the fact that the Labour Code does not explicitly impose such a duty, both for the employee and the employer, recently the disloyal employee behavior towards the employer has become a frequent reason justifying the termination of the employment contract with notice and even without notice. Therefore, it became reasonable to determine whether the duty of loyalty is an element of the employment relationship, and if so from which of the provisions of the Labour Code such an obligation can be derived. The considerations carried out in this study resulted in the statement that most often, where there is a duty of employee loyalty, in fact, we have to deal with another employee’s obligation expressly stipulated in the labour law. Most often it is the duty to care for the good of the employer. There is no doubt that the employee should be loyal in the performance of their duties towards the employer. The order of the employee’s loyal behavior in connection with the performance of duties from the employment relationship with the employer is based on the obligation to observe the rules of social coexistence. Similarly, mutatis mutandis, the employer should behave towards the employee.

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Umowne ograniczenie podejmowania dodatkowego zatrudnienia jako przejaw lojalności pracowniczej.

Author(s): Iwona Wieleba / Language(s): Polish Issue: 2/2018

The paper deals with a controversial issue of the admissibility of evaluation, additional stipulations of contracts signed by parties to an employment relationship, which forbid undertaking additional employment. The main aim of the work is to prove that parties to an employment relationship are allowed to establish a conventional limitation or prohibition of undertaking additional employment. What is more, concluding this agreement is a display of employee loyalty. The author emphasizes that prohibition of undertaking the additional employment is valid when it protects employer equitable business matter and the employee receives equivalent payment.

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Świadczenie pracy w okresie zwolnienia lekarskiego a obowiązek lojalności wobec pracodawcy

Author(s): Magdalena Zajchowska / Language(s): Polish Issue: 2/2018

The purpose of this article is to discuss the issue of provision work during the period of sick leave in the context the principle of employee loyalty. On the basis of the doctrine and case law, the author characterized the principle of loyalty to the employee and the fundamental duties of the employee. The author indicates the work during the sick leave as a serious violation of the employee’s fundamental duties. The article discusses the effects of the employee’s use the sick leave contrary to its intended purpose, resulting from the Labour Code and the Act of benefits from social insurance in case of illness and maternity. The author also mentions examples of performing work during a sick leave, which are not constituted as a violation of basic principles to the employer. In conclusions, the author indicates that the principle of employee loyalty towards the employer is the basis of relations between the parties to the employment relation.

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Charakter prawny studium uwarunkowań i kierunków zagospodarowania przestrzennego gminy

Author(s): Teresa Zyglewska / Language(s): Polish Issue: 2/2018

A study of conditions and directions of spatial development of the commune, in accordance with Article 9 § 5 of the Act of 27 March 2003 on spatial planning and development is not an act of local law. The legislator only in a negative way determines what is not a study, but it does not define in a positive way what is the legal nature of this planning act. The article is an attempt to answer the question whether the study of conditions and directions of spatial development is only an act of internal management or is a legal act of a different nature. After analyzing the nature of the study, the article puts forward a thesis that the argument is that if the study is not an act of local law, it does not produce any legal consequences for external entities.

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Regimurile matrimoniale de tip separatist

Author(s): Antigona-Camelia Iordana / Language(s): Romanian Issue: I/2013

The new Romanian Civil Code has substantially altered the vision of the spouse's matrimonial regime by introducing the possibility of adopting a matrimonial regime adapted to their patrimonial situation. Future spouses are able to choose between two totally different systems of family organization : either a system of separation of assets or a community-based system. Both systems have advantages and disadvantages, but only spouses may decide the formula that seems to be the most suitable .

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Perspectivele contractului de întreţinere în contextul reglementării sale în noul Cod civil

Author(s): Ioan Morariu / Language(s): Romanian Issue: I/2013

Under the condition that the maintenance contract was not a legal and crystallized legal figure, it has defined and finalized its legal profile over time, as legal practice offered an increasingly rich caseload,and the legal doctrine takes over and analysis. The regulation of this type of contract by the new civil code has a consistent impact on the legal institution itself, both from the perspective of the legal characters of the contract, but also from the practical perspective of the effects and that of the way of concluding and carrying out such a contract. Equally, the new regulation opens a fertile field of legal analysis through the intrinsic content of the legal norms introduced, but also leaves enough space for legal exploration and future legislative projections.

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Aspecte privind aplicarea instituţiei administrării bunurilor altuia în sistemul de drept românesc

Author(s): Mihnea Alexandru Angheni / Language(s): Romanian Issue: I/2013

The general legal framework of third party assets management, as a legal institution, is determined by the legislator in Title 5 of Book 3 "On assets" in the civil code. Nevertheless, the Civil Code as well as other special regulatory acts have provisions on third party assets management. The correlation between the general framework of third party assets management and other provisions that refer directly or indirectly to third party real estate management is determined by the legislator under art. 794 Civil Code, according to which: "In the absence of special provisions, the provisions of this title are applicable in all cases of third party assets management". This legal provision must be corroborated with the one of art. 792 par (3) Civil Code according to which, “the provisions of this title are applicable to any third party assets management, except for the case when the law, the articles of incorporation or the material circumstances impose the enforcement of a different legal management regime”.

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Forma contractului de mandat. Problema mandatului aparent

Author(s): Andreea Stoican / Language(s): Romanian Issue: I/2013

The mandate is a contract whereby one party undertakes to conclude one or more legal acts on behalf of the other party. However, although the rule for the contract of mandate is that the mere expression of the parties’ will is sufficient to validly enter into a contract, the form that the law recognizes for entering into such an agreement should not be completely neglected, on the one hand because the legislator has provided however, some cases where the power of attorney must meet certain conditions ad validitatem and on the other hand, as the problem of proving the quality the trustee has when acting before third parties, can not be ignored. For these reasons, this paper will focus on the analysis of express and tacit mandate and especially on the problems in the case of an apparent mandate, the possibility of its ratification by the principal and, not least, the trustee’s liability in the event it acted without the principal’s knowledge.

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Răspunderea contractuală şi răspunderea delictuală în noul Cod civil. Asemănări şi deosebiri

Author(s): Florin Ludușan / Language(s): Romanian Issue: I/2013

The New Civil Code establishes civil tort liability (articles 1349-1395) and civil contractual liability (articles 1350 and 1516 - 1548). From the point of view of the editors of the New Civil Code, civil liability in its essence is unique, namely, it forms a single legal institution, non-unitary in terms of its legal status, meaning that it comes through in two forms: the tort liability, of common law and the contractual liability, special and derogatory.The institution of liability, being based on common essential elements, is undoubtedly unitary. Two branches come from this common core. Considering that in a case, the liability arises from the breach of the obligations of all members of society, while in the other case, liability means the breach of an obligation that would not have existed if a contract had not been concluded between the victim and the agent, the regulation of the two liabilities depicts differentiating features of technical organization, unessential, which, undoubtedly, typically differentiate them, without being able to transform them into two completely different institutions.

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Răspunderea civilă delictuală – formă a răspunderii juridice a producătorului pentru calitatea produselor alimentare. Faptă ilicită

Author(s): Mădălina Dinu / Language(s): Romanian Issue: I/2013

Social progress is the main reason that led to the broadening of consumer liability, the liability of the manufacturer for quality food. Against this background of social development, it was necessary consumer protection under the manufacturer's wrongdoing meets these food products launched in the market and its accountability so that food market be protected from possible abuses. When we talk about producer responsibility, the essential question is related to how liability for the manufacturer. In other words, the manufacturer shall be liable for damage caused as a result of inadequate fulfillment of the obligations incumbent on the land by virtue of its tort or contract? Although differing views so in a sense as well as in other, Law nr.287/2009 the New Civil Code has come to clarify this issue by establishing, in its paragraph 4 art.1349 that "liability for damage caused by defective products is determined by a special law. "Although apparently do not employ text producer responsibility in the field of torts, however marginal art.1349 is called "tort", so we can say only that the legislature's intent was to include producer responsibility in the field of torts.

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Uniformizarea reglementărilor naţionale în materia arbitrajului

Author(s): Diana - Loredana HOGAŞ / Language(s): Romanian Issue: I/2013

International arbitration is continuously expanding and is increasingly preferred method for resolving disputes between business partners worldwide. The Arbitration Institution is regulated differently from one country to another, but there are a number of conventions and model laws regulating this matter, so there are the premises of a uniform regulation. This article seeks to analyze the trend toward harmonization of the national laws on arbitration and the desire of a single and unified legal system. The regulation on Arbitration from the new Romanian Code of Civil Procedure falls into this trend.

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Aspecte privind răspunderea civilă rezultată din tulburările aduse stării de vecinătate

Author(s): Diana DEACONU-DASCĂLU,Silviu Deaconu / Language(s): Romanian Issue: I/2013

Neighborly relations arising from the right to property, exclusive and absolute, as characterized by our Constitution, shall be based on a behavior related on good faith and tolerance and on the mutual obligation not to harm the neighbors and not to cause intolerable prejudices, otherwise will be required to repair any damage produced.The violation of requirements, in the opinions expressed in doctrine and practice specialty, has been linked to two legal mechanisms: abuse of rights and neighborhood abnormal inconveniences.This study examines both legal mechanisms, following their evolution in legal concepts under the old Civil Code and especially under the new Civil Code, compared with French law and doctrine, which was the main source of inspiration for Romanian doctrine and the national legislation in 2011 .

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Dialogul social. Necesitate şi realitate

Author(s): Magda Volonciu / Language(s): Romanian Issue: I/2013

Social dialogue requires a balance between the social partners and it is the main instrument in maintaining social peace. Social dialogue is mainly addressed in collective bargaining, with the Romanian legislative authority determining, through the provisions adopted, the appropriate framework for the development of collective labor relations. The latest regulations adopted in this area, although harshly criticized by both trade unions and an important part of the doctrine, do not violate the constitutional principles of negotiation, a step forward in terms of the flexibility of labor law. Thus, the legal nature of the collective labor contract has acquired more conventional valences, to the detriment of the normative character. The efforts made in this area, even though they may initially lead to hardening of the social bargaining practice, can lead in time to a proper understanding of the need for real and meaningful dialogue between social partners aimed at finalizing collective agreements to respond to the parties' interests in negotiation. Collective agreements should be understood not only as conventions with declaratory rights for employees but as real labour instruments for both social partners. It is the reason why, even though within the current law of the social dialogue, Law no. 62/2011 there are many technical imperatives, the rules of principle imposed by it in the field of negotiation of collective labor agreements must be maintained.

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Contractul de muncă pe durată determinată în România între flexibilitate şi securitate

Author(s): Marioara Ţichindelean / Language(s): Romanian Issue: I/2013

Défini comme concept politique et stratégique utilisé pour produire des innovations sociales et politiques, le terme de flexicurité est présenté comme une norme positive ou comme un concept avantageux dans les deux cas , et par conséquent, les modifications portées à la loi nr. 40/2011 ont visé principalement la flexibilité des rapports de travail, la dynamisation du marché par la croissance des emplois et à la fois l`harmonisation des réglementations du Code du Travail avec les directives européennes et les Conventions de l`Organisation Internationale du Travail. Dans l`étude présente, nous allons analyser les limites et les bénéfices de la réglementation roumaine du contrat individuel de travail à durée déterminée sous les deux aspects, flexibilité et sécurité, reflétés aussi dans les prévisions de la Directive 1999/70 du Conseil concernant l`Accord-cadre sur le travail déterminé.

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Analiză critică asupra cazurilor de încetare de drept a contractului individual de muncă

Author(s): Cosmin Cernat / Language(s): Romanian Issue: I/2013

The legal institution of termination of the individual employment contract, is of particular importance, because the stability of the legal working relationship is given by the correct identification of its termination posibilities, especially those established by the law.

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Viaţa privată la locul de muncă

Author(s): Mircea Chebeleu / Language(s): Romanian Issue: I/2013

The development of technique and science made possible for the employer to have multiple possibilities to supervise the employee during the working hours. Some of these technical possibilities are the cameras, GPS system, interception through e-mail, yahoo messenger and other programs. The development of technique and science, generally, represented the reason to take seriously the legal previsions in the field of private life in order to correspond to the current life.

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Medierea în litigiile de muncă

Author(s): Marius Eftimie / Language(s): Romanian Issue: I/2013

The mediation procedure presents some of peculiarities within labor litigations, as opposed to the interdiction provided in the Labor code in favor of the employees, to waive the minimal rights recognized by law. Thus, the domain of the causes within labor jurisdiction, which can be settled through this alternative procedure, is significantly restricted.The area of litigations liable to be settled by mediation is to be delimited by analyzing the specifics for each type of labor litigation, by verifying the incidence of dispositions in art. 38 Labor Code. The law also imposes, as mandatory a procedure prior to submitting the summons, that the parties participate to a briefing session regarding the advantages of mediation. Within such procedure, the parties' obligations are analyzed regarding their presence to the mediator, the judge’s obligation to recommend that they participate to the briefing session, as well as the sanctions that may be applied in case of failure to observe the obligation to attend the briefing session. Also, the main stages of the mediation procedure are outlined, the estimated duration of such procedure, as well as the effects it may have on the rights invoked in the summons. In the end, the main differences between the individual conflict mediation regulated by Law no 192/2006 shall be analyzed, as well as the mediation of collective conflicts, regulated by Law no. 62/2011 regarding social dialog.

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