Legal subordination - criterion applicable to the recurrence of legal nature of the contract (as individual labor)

• Author: Ana Vidat
• Position: Law Department of the Bucharest University of Economic Studies, Bucharest,Romania
• Pages: 200-207

Legal subordination – criterion applicable to the recurrence

of legal nature of the contract (as individual labor)

Associate professor Ana VIDAT

1

Abstract

The International Labor Organization adopted, in 2006, Recommendation no. 198,

synthetically describing the features of a working relationship. Thus, work done in a labor

relationship must meet certain requirements, namely: to be performed according to

instructions and under the control of another person; to involve the integrator of the

organization in the organization of an enterprise; be executed exclusively or principally for

the account of another person; be personally fulfilled by the worker; to be carried out in

accordance with a determined timetable and at a specific place or accepted by the

beneficiary of the work; have a given (predetermined) duration and show some continuity;

to assume that the worker is at the disposal of the other person; to involve the beneficiary

in the provision of equipment, materials, energy, as the case may be. In its turn, the High

Court of Cassation and Justice stated in Decision no. 574/2011 that – in order to qualify a

contract as a work – there must be three elements, namely: performance of the work as the

primary purpose of the contract; remuneration of the work done; the existence of a

subordination report. In the absence of the subordination report, the contractual relations

agreed by the parties are not objectively reflected in an employment relationship, but

remain only in the sphere of civil law.

Keywords: individual employment contract; legal subordination; the po wer to

control; the power to issue legal orders; the power to sanction.

JEL Classification: K31

1. Introductory issues

In the current legislative context, the parties are free to conclude any

contracts

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and determine their content, within the limits imposed by law, public

order and good morals.

1

Ana Vidat ‒ Law Department of the Bucharest University of Economic Studies, Bucharest,

Romania; Lawyer, member of the Bucharest Bar Association, ana.vidat@yahoo.com

2

To be seen A. Ionaşcu, Drept civil. Partea Generală Publishing House Didactică şi Pedagogică,

Bucharest, 1963; Tr. Ionaşcu a.o., Tratat de drept civil, vol. I, Partea generală, Publishing House

Academiei, Bucharest, 1967; Ghe. Beleiu, Drept civil român, 5th edition, Publishing House „Şansa”,

Bucharest, 1998; R. Dimitriu, Curs de drept civil, Publishing House Tribuna Economică, Bucharest,

2002; G. Boroi, Drept civil. Partea generală. Persoanele, ed. 3rd, revised and added, Publishing House

Hamangiu, Bucharest, 2008; L. Pop, Tratat de drept civil. Obligaţiile, vol. II. Contractul, Publishing

House Universul Juridic, Bucharest, 2009; A.G. Atanasiu, A.P. Dimitriu, A.F. Dobre, D.N. Dumitru,

A.G. Banc, R.A. Ionescu, M. Paraschiv, I. Pădurariu, M. Piperea, P. Piperea, A.Ş. Răţoi, A.I. Slijitoru,

I. Sorecu, M. Şerban, A.G. Uluitu, C.M. Văduva, Noul Cod Civil, Note·Corelaţii·Explicaţii, Publishing

House C.H. Beck, Bucharest, 2011; M. Uliescu (coord.), Noul Cod Civil. Comentarii, ed. 3rd, revised

and added, Publishing House Universul Juridic, Bucharest, 2011.