Lex et Scientia International Journal
- Universitatea Nicolae Titulescu
- Publication date:
- Nbr. XXVI-2, July 2019
- Nbr. XXVI-1, January 2019
- Nbr. XXV-2, July 2018
- Nbr. XXV-1, January 2018
- Nbr. XXIV-2, July 2017
- Nbr. XXIV-1, January 2017
- Nbr. XXIII-2, July 2016
- Nbr. XXIII-1, January 2016
- Nbr. XXII-2, July 2015
- Nbr. XXII-1, January 2015
- Nbr. XXI-2, July 2014
- Nbr. XXI-1, January 2014
- Nbr. XX-2, July 2013
- Nbr. XX-1, January 2013
- Nbr. XIX-2, July 2012
- Nbr. XIX-1, January 2012
- Nbr. XVIII-2, December 2011
- Nbr. XVIII-1, January 2011
- Nbr. XVII-2, July 2010
- Nbr. XVII-1, January 2010
- Implications of Cjeu Jurisprudence on the Delimitation of Working Time by Rest Time in the Collaborative Economy
The specificity of the collaborative economy has raised a number of issues with regard to the qualification of legal relationships between workers, final beneficiaries and the online platform that mediates the provision of work, respectively whether between the platform and the worker there is an employment relationship or there is a commercial relationship between the platform, self-employees and consumers. In particular, the question arises whether, in the case of these workers, the working time regulations apply and, if so, how they can be applied in concrete manner. The article contains an analysis on how some principles derived from the CJEU case law can be used to determine whether and under what conditions workers in the collaborative economy can benefit from protection by limiting working time and how can work time be delimited by rest time in their case, given the specificity of their work condition, in order to ensure an effective protection.
- The Legal Difficulties Generated by the Alteration of the Provisions Regarding the Hearing of Witnesses by the Court Within the Civil Procedural Code
Since Law no. 310/2018 has altered the legal provisions of the Civil procedural code regarding the way in which witness testimony is to be obtained, a certain number of difficulties have been generated due to the fact that the actual hearing of witnesses has to occur in a radically different manner, thus imposing on the court some obligations which may prove troublesome in the future. The paper aims to establish some proper practices, in terms of ensuring for all parties a fair trial whilst also abiding by the new legal solutions.
- The Effect of Traditional and Modern Policies on Termination of Employment Contract
This paper is looking for the best model of articulating termination rules of employment contract by referring to the most popular policies on this regard. Meanwhile, it tests how the provisions of such policies affect termination rules in terms of rigidity and flexibility. An acceptable degree of rigidity and flexibility of termination rules can be tested based on the possibility of combination between the basic argumentations of job security policy and what has been promoted by labour market flexibility in a new era. The policy of job security in regards to the termination of employment has taken a various forms. One form is termination costs including severance pay, notice periods for employees and compensation for dismissal based on the seniority. From an individual perspective, it is crucial for employees to be protected from the employers’ arbitrariness, while, from an economic perspective, the rate of employment and job turnover can be affected negatively. A balance, then, is needed by reducing the degree of job security provisions to an acceptable level according to the policy of flexibility in the labour market.
- Social Dimension of the EU ? the Pillar's Impact on European Labour Law
Over the past decades, the world of work has been changed. The concept of flexicurity was to provide answers to the challenges that arised. What has happened with security in the European Labour Law, what can be discerned as the European Pillar of Social Rights has been adopted? How has the social dimension of the EU been altered? The article attempts to give an overview of the Pillar from a point of view, according to which the Pillar is an employment model and a social and labour market program in itself.
- Personal Data Protection Issue Reflected in the Case-law of the Constitutional Court of Romania
Over the past few years, data privacy became more and more an issue that stirred on European level lots of debates and determined the adoption of a new set of rules, imposed with the compulsory force of a European regulation. Thus, the EU General Data Protection Regulation (GDPR) replaced the Data Protection Directive 95/46/EC and reshaped the way the data are managed in various fields of activity. In Romania, the Constitutional Court had to bring light over important areas that involved the use of personal data and developed a relevant case-law regarding the concordance with the essential standards implied by the protection of private life enshrined both in the Romanian Basic Law and in the European Convention on Human Rights. The paper intends to depict the main challenges that faced the constitutional review and the measure that the Romanian vision over this problem is consistent with the European landmarks set in this field.
- Comparison Between the Legal Particularities of Romania's and the United Kingdom's Membership of the European Union
Since its early accession to the European Economic Community (the predecessor of the European Union), the United Kingdom has, at times, shown itself reluctant to fully integrate and adopt the acquis communautaire. The UK has chosen to negotiate several opt-outs – more than any other Member State – regarding certain EU policies, with notable examples being the Monetary Union and the Schengen Agreement. Despite being granted such exemptions, the UK has remained a more sceptical member of the EU and has become the first to ever invoke the applicability of Article 50 of the Treaty on European Union, starting the process of withdrawal from the organisation. According to the terms provided by Article 50, the completion of said process should take place in the first half of 2019, coinciding with the rotating Presidency of the Council being taken over by Romania, who only joined the EU in 2007. Its legal standing is noticeably different compared to that of the UK: Romania’s participation in the aforementioned EU policies, which the UK has opted out of, is mandatory, but conditioned by the fulfilment of specific criteria. Romania is also, alongside Bulgaria, the object of certain safeguard measures designed to address the specific issues faced by the two states. The purpose of this article is to compare certain legal particularities that characterise Romania’s and the United Kingdom’s membership of the EU, and to determine their consequences with regard to each of the two states’ relationship with the organisation, as well as to the complex position the EU finds itself in during the first half of 2019.
- The Precautionary Principle's strong Concept in the Case law of the Constitutional Court of Hungary
The present article focuses on the application and interpretation of the precautionary principle by the Constitutional Court of Hungary, especially concentrating on Decision 13/2018. (IX.4.) of the Constitutional Court of Hungary, in which the Constitutional Court of Hungary developed a considerably strong concept of the precautionary principle. In this article, the so-called strong concept of the precautionary principle in the case law of the Constitutional Court of Hungary means that the proper implementation of the precautionary principle is a strict condition for the Hungarian lawmakers. Namely, if the Hungarian lawmakers (e.g. parliament, government, ministers) do not take the precautionary principle into account in an appropriate way during the adoption of a legal provision, this situation shall cause a lack of conformity with the Hungarian constitution (i.e. the so-called Fundamental Law) and the Constitutional Court of Hungary shall annul the affected legal provision. In this article, the case law of the Constitutional Court of Hungary is assessed in the context of the genesis and development of the precautionary principle at international, European and Hungarian levels.
- The Size and the Importance of the Evidence Governed During the Prosecution in Rem
The jurisdiction developed on the edge of the implementation of the provisions of Code of Criminal Procedure, relating to the verification of the legality of the referral to the court, the legality of the management of evidences and documents of the prosecution, has proved the fact that in front of the judges of preliminary chamber has come, not infrequently, the request of the exclusion of the evidences governed during the criminal prosecution in rem, on the ground that these evidences have been managed either in total or in the majority of them, at this stage absolutely secret of the criminal prosecution, even though the offender of the deed was known and in this way, the future suspect or charged, has been deprived of any realistic and concrete possibility to defend himself, to assist with the help of a lawyer in the management of theses evidences and to combat them by appropriate procedural means. This raises the question which is the size of the evidences that reasonably can be taken during the criminal proceedings in rem, thus the suspect/ defendant should not be harmed in his procedural rights, in particular with regard to his right of defence. To search for an answer to this matter, this is very present in the proceedings in front of the judge of preliminary chamber, legal provisions must be primarily examined that implicitly separates the criminal prosecution in rem from the moment of further performing of the prosecution towards a certain person.
- Prosecuting Charges for the Accomplishment of Certain Legal Activities. Protection, Guarantees and Limits in the Practice of the Lawyer Profession
In any democratic society the lawyer plays an essential role in defending the rights and freedoms recognized by law. The actual accomplishment of his mission can expose the lawyer to some risks and pressures exerted by the same judicial authorities called to ensure compliance with the law. The current article aims to analyse the possible implications of prosecuting charges against a lawyer for facts that represent nothing but concrete ways to perform some legal activities. The limits within which such accusations can be formulated, the potential consequences of the criminal judicial activity from the perspective of the basis of the accusations brought and the possible forms of protection available to the lawyer will be considered.
- European and Canadian Provisions on Keeping Contact Between the Person Deprived of his Liberty and his Family, Differences and Similarities
Every democratic society seeks to create a stable environment for its members, trying to identify the needs of citizens, in all aspects, creating legal norms to ensure the proper functioning of society as a whole is one of the needs. The family as an institution, but also as a form of people's approach, requires maintaining a balance in the family relations, a desideratum pursued by both society and its members. Situations where a family member is deprived of liberty following a final court decision raise various questions about the family situation and the links between the family and the person in custody. The European states, as well as Canada, have recognized the importance of the family in the life of a person deprived of liberty by adopting rules in the field of penitentiary that contribute to the desideratum of the proper functioning of the family. But these rules also present, carefully scrutinized.
- Legal Basis And 'Trasversal' Interpretation Of The Ultimate Reforms Of The European Union Jurisdictional System
The present work focuses on the analysis of the latest reform of the EU jurisprudential system which started in 2011 and has been completed on March 2018. The purpose of the analysis is to interpret the need for these reforms, the time needed, the reasons and the effectiveness they will have for...
- Causa and consideration - a comparative overview
The article examines the Roman origin and historical development of "causa" as an essential requirement of the contracts, as well as its adoption in the majority of the national legislations belonging to the French legal family. Moreover, the article analyzes what has become to be known...
- Harmonization of national procedural provisions concerning the enforcement of intellectual property rights
This short paper looks at provisions concerning very specific aspects provided for at international, regional and national level and analyzes the level of harmonization between such. Given the importance of provisional measures (and especially of preliminary injunctions) for the protection of...
- Effect Of Labour Law Regulation On The Employment Relations Based On The Connection Between Social Rights And Labour Market
In the world of employment, we can find several aspects that have effect on the labour market. Labour market cannot be independent from the legal regulation of employment; moreover - according to the tendencies - labour market processes basically define the role of labour law. A fundamental...
- Observance of the fundamental rights of convicted individuals during the re-education and social reinsertion process
The recent criminal justice reform brought by the entry into force of the new Criminal Code and the new Criminal Procedure Code carries forward the changes in approach with regard to sentence execution, introduced following the adoption of Law No. 275/2006 on the execution of sentences and the...
- Significant contributions of the gatt and the world trade organization to the settlement of international economic disputes
This study examines the role of the degree of legal controversy with respect to a panel ruling in determining the countries’ tendency to block/appeal a panel report. It shows that, under both the GATT and WTO regimes, there is an asymmetric advantage between the plaintiff and the defendant. The...
- Copyright protection for creative industries: Comparison among China and Europe
The impact and creativity has increased in the last years in Europe. It was focused by a United Nations report on creative economy in 2008. Cooperation and trade in goods and services has increased. Today, the EU is the biggest destination for China's exports and the second supplier to China. For...
- Successoral Capacity Peculiarities Of The Romanian Eclesiastical Staff - A Case Of Anomalous Inheritance
The present study aims at radiographing the condition of the legal capacity to inherit, situated at the confluence of two domains, the legal and the theological one, with convergence points, but also with some distinct consequences. Thus, the basic benchmark of the study focuses on one of the...
- Social innovation and civil service law
The framework of administrative law is a static area of the legal system, but its content is very dynamic. The administration and the civil service law have been influenced by new technologies and social situations. These new things make innovations not just in the economy, but in the society as...
- Systematic Thinking About Employee Status
Over the past decades, the international and European policy debate has focused on who is considered to be an employee and what kind of workers are covered by the protection of employees, i.e. the extension of the scope of labour law There is a deep-set problem lying behind this global thinking....