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Treaty on liability for damages in employment relationships. Legislation. Doctrine. Jurisprudence - Alexandru Ticlea
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Publisher: Universul Juridic
Author: Alexandru Ticlea
Pages: 406
Publisher year: 2019
ISBN: 978-606-39-0408-0
Product Code:
9786063904080
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In the content of this paper, a component of the "Labor Law Treaty", are presented and analyzed methodically and thoroughly the fundamental, essential and relevant principles and aspects of liability for damages in labor relations, in their variety, both from the normative perspective and from the doctrinal and jurisprudential one.
Any of the parts of the legal labor / service relations, the employee, as a rule, but also the employer, can, in the exercise of his attributions, produce a damage in the patrimony of the other party, which determines his obligation to cover the damage.
I proceeded to the elaboration of the present paper, taking into account the legal provisions regarding the liability in question, the specialized doctrine, the employers' practice, as well as the relevant jurisprudence in the matter. We address, in particular, practitioners (of all categories), theorists, but also students, masters, doctoral students. We aimed in our approach to cover, if possible in full, the vast issue of legal liability analyzed.
Any of the parts of the legal labor / service relations, the employee, as a rule, but also the employer, can, in the exercise of his attributions, produce a damage in the patrimony of the other party, which determines his obligation to cover the damage.
I proceeded to the elaboration of the present paper, taking into account the legal provisions regarding the liability in question, the specialized doctrine, the employers' practice, as well as the relevant jurisprudence in the matter. We address, in particular, practitioners (of all categories), theorists, but also students, masters, doctoral students. We aimed in our approach to cover, if possible in full, the vast issue of legal liability analyzed.
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Treaty on liability for damages in employment relationships. Legislation. Doctrine. Jurisprudence - Alexandru Ticlea
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Alexandru Ticlea
Studies:
Bachelor of Laws (University of Bucharest, Faculty of Law: 1973-1977 - Department of Economic and Administrative Law; 1978-1982 - Department of Law); doctor of law (1989); has competences in Labor Law, Social Security Law, Civil Law, Commercial Law, Rhetoric.
Activities:
He is Vice President - Ecological University of Bucharest; Rector, PhD professor - Ecological University of Bucharest (2008-2016); lawyer - Bucharest Bar; president - Romanian Labor Law Association; founding director - Romanian Journal of Labor Law; associate member - Romanian Academy of Scientists; honorary president - Union of Experts in Labor Legislation; arbitrator - Arbitration Tribunal in Transports; corresponding member - Academy of Legal Sciences.
Doctor honoris causa:
- since December 2013 at the State University of Chisinau, Republic of Moldova;
- since May 2015 at the University of Wallachia in Targoviste;
- since September 2015 at Vasile Goldis University of Arad.
Publications:
- Published: 103 treatises, courses, monographs; 194 articles, studies, notes; 7 papers published abroad.
- Participated in numerous conferences, seminars, scientific symposia.
- He is a member of the scientific research committee on projects funded by the European Commission ("The right to strike in Europe", "Trade Union representation in the European Union member countries").
- Award-winning works: by the Union of Romanian Lawyers (Rhetoric, 2008, “Ioan Gruia” Award; Public Labor Law, 2011, Special Prize; Labor Law Treaty, 8th Edition, 2014, Honorary Diploma); of the Roman Academy
Studies:
Bachelor of Laws (University of Bucharest, Faculty of Law: 1973-1977 - Department of Economic and Administrative Law; 1978-1982 - Department of Law); doctor of law (1989); has competences in Labor Law, Social Security Law, Civil Law, Commercial Law, Rhetoric.
Activities:
He is Vice President - Ecological University of Bucharest; Rector, PhD professor - Ecological University of Bucharest (2008-2016); lawyer - Bucharest Bar; president - Romanian Labor Law Association; founding director - Romanian Journal of Labor Law; associate member - Romanian Academy of Scientists; honorary president - Union of Experts in Labor Legislation; arbitrator - Arbitration Tribunal in Transports; corresponding member - Academy of Legal Sciences.
Doctor honoris causa:
- since December 2013 at the State University of Chisinau, Republic of Moldova;
- since May 2015 at the University of Wallachia in Targoviste;
- since September 2015 at Vasile Goldis University of Arad.
Publications:
- Published: 103 treatises, courses, monographs; 194 articles, studies, notes; 7 papers published abroad.
- Participated in numerous conferences, seminars, scientific symposia.
- He is a member of the scientific research committee on projects funded by the European Commission ("The right to strike in Europe", "Trade Union representation in the European Union member countries").
- Award-winning works: by the Union of Romanian Lawyers (Rhetoric, 2008, “Ioan Gruia” Award; Public Labor Law, 2011, Special Prize; Labor Law Treaty, 8th Edition, 2014, Honorary Diploma); of the Roman Academy
content
ARGUMENTUM / 5
Chapter I
SPECIFIC LIABILITY FOR DAMAGES AND ITS FORMS / 7
General considerations / 7
The notion of damages / 7
Liability for damages - reparative liability / 7
The patrimonial responsibility and the disciplinary responsibility of the employees / 8
Persons responsible for damages in employment relationships / 8
Employees / 9
Definition, categories / 9
Employees / 9
Forestry staff / 10
Members of the Diplomatic and Consular Corps / 11
Civil servants / 12
Parliamentary civil servants / 13
Customs personnel / 13
Policemen / 14
Staff from the National Administration of Penitentiaries / 14
Military personnel / 15
Professional soldiers and grads / 15
Magistrates / 16
The specialized auxiliary staff of the courts and of the prosecutor's offices attached to them / 17
Forensic personnel and personnel holding forensic forensic positions / 18
Probation staff / 18
Employers / 19
Definition / 19
Employers of legal entities / 19
Individual employers / 21
Forms of liability for damages / 21
Enumeration / 21
Patrimonial liability / 21
Regulation / 21
The specifics of the patrimonial liability regulated by C. mun / 22
Civil liability / 23
Regulation / 23
The specifics of civil liability / 24
Civil liability of civil servants / 25
Material liability / 27
Regulation / 27
The specifics of material liability / 27
Liability for non - pecuniary damage / 28
Notion / 28
Regulation of liability for moral damages / 29
Decisions of the Constitutional Court / 30
Employee liability for non - pecuniary damage / 30
Synthesis of jurisprudence / 32
Liability for damages to employees - personal liability / 37
Preliminaries / 37
Joint liability / 38
Subsidiary liability / 40
Joint and several liability / 42
Judicial practice / 44
The specifics of the patrimonial responsibility / 44
The relationship between patrimonial liability and tortious civil liability. Subsidiary liability. Manage / 45
Patrimonial liability - disciplinary liability. Correlations. Limitation period. Prime / 45
The cumulation of the patrimonial responsibility with the disciplinary responsibility. The effects of the definitive character of the disciplinary sanction on the proof of the existence of the cumulative conditions required for the engagement of the patrimonial responsibility / 46
Patrimonial liability associated with criminal liability - tortious civil liability / 47
Disciplinary liability - patrimonial liability. Limitation period / 50
Sanctioning the employer. Making cash payments over the legal ceiling. Patrimonial responsibility, and not disciplinary one of the employee / 51
Contravention sanction applied to the driver for non-compliance with his professional duties. Training of patrimonial responsibility / 51
Joint liability. Damage caused by several employees / 52
Joint and several liability. Conditions / 53
Failure to meet the conditions for subsidiary liability. The fault of the employer in pursuing the damage / 53
Damages. Regulation / 54
Granting moral damages in labor disputes. Conditions / 55
Moral damage. Application of the norms and principles of contractual civil liability / 60
Material liability. Legal basis. Irrelevance of the form of guilt / 61
Chapter II
CONDITIONS OF DAMAGES / 62
The notion and enumeration of conditions / 62
The notion of condition / 62
Enumeration of conditions / 62
Injury / 62
Notion / 62
Classification of damages / 63
The characteristics of the damage / 64
Specification / 64
3.2 Certainty of damage / 64
The direct nature of the damage / 66
Personal character of the damage / 67
The material nature of the damage / 67
Injury assessment / 67
The illicit and personal act of the employee committed in connection with his work / 70
The notion of illicit deed / 70
The personal character of the illicit deed / 70
Illicit deeds of the military and civilian personnel from the military units and assimilated to them / 72
Causes that remove the illicit character of the deed / 73
Regulation / 73
Execution of the service order / 74
State of necessity / 76
Normal service risk / 77
Force majeure and fortuitous case / 80
The causal relationship between the wrongful act and the damage / 81
Vinovatia / 82
Regulation. Content / 82
Forms of guilt / 83
Judicial practice / 86
The conditions of the patrimonial responsibility / 86
The conditions of the patrimonial responsibility. Consequences / 95
The conditions of the patrimonial responsibility. The need to prove them. Rules of appeal judgment / 95
Cumulative fulfillment of the conditions of patrimonial responsibility / 98
The cumulative meeting of the conditions of the patrimonial responsibility of the employee. Effects / 98
The conditions of the patrimonial responsibility. Employee with guard and surveillance duties / 102
Failure to meet the conditions of patrimonial liability / 103
The conditions of the patrimonial responsibility. The illicit act of the employee consisting in the sale of the goods on debt. Damage. Lack of normal service risk / 10
4
Work accident. The conditions of the patrimonial responsibility / 109
Lack of patrimonial liability conditions. Road accident. Normal service risk / 109
Damage - condition of patrimonial liability. Proof of this / 110
The damage must be real and certain. Proof of the certainty of the damage / 111
The characteristics of the damage. The need to prove his / her employer / 119
Employing the patrimonial responsibility of the employees, in accordance with the provisions of art. 254 para. (1) of the Labor Code. The importance of proving the damage / 119
Proof and recognition of damage / 121
Professional qualification. Loyalty and exclusivity clause. The employee's obligation to perform work for the employer for a certain period. Termination of employment for reasons attributable to the employee / 122
Failure to perform duties. Employee with management position. Action in regression / 124
Damage consisting of the payment of contraventional fines. Employee guilt / 125
Driver. Damage consisting in the payment by the employer of the delay penalties for non-compliance with the contractual clauses / 125
Damage. Driver. Lack of fuel. Standardized consumption / 127
Driver. Damage consisting of lack of fuel. Sarcina probei / 129
Fuel consumption. Normal service risk. Lack of damage / 130
External causes exonerating from liability. Lack of the conditions required by law for incurring the patrimonial liability of the employee / 131
Failure to fulfill the employer's obligations. Removing the employee 's liability / 132
Moral damage - the need to prove it / 132
Damage and guilt - conditions of patrimonial liability / 133
Unproven injury / 133
Failure to prove the damage caused by embezzlement. Removal from criminal prosecution of the perpetrator / 134
Lack of injury. Acquisition of goods. Legality / 135
Manager. Legal provisions regarding the inventory of goods. Lack of proof of injury / 137
The employer's regression against the employees guilty of causing the damage. Lack of damage / 141
Non-existence of damage / 143
Non-competition clause. Failure to describe prohibited activities. Inefficiency of this clause / 144
The existence of some illicit deeds - the basis of the patrimonial responsibility of the employee. Conditions / 145
Illicit act. Limitation period. The patrimonial responsibility of the employee - legal advisor. Repair of the loss of chance damage / 150
Lack of wrongdoing. Receipt of goods / 152
Lack of wrongdoing. Compliance with the payment methodology. Fulfillment of the attributions / 153
The non-existence of the illicit deed. Lack of proof made by the employer / 153
Absence of the job description specifying the attributions that belonged to the employee. The non-existence of the illicit deed / 154
The conditions of the patrimonial responsibility of the employee. Lack of illicit deed / 155
Driver. Lack of fuel. Illicit and culpable deed / 163
Lack of wrongdoing. Standard fuel consumption. Irrelevance of the judicial precedent / 166
Driver. Lack of the wrongful act regarding fuel overconsumption. Sarcina probei / 168
Lack of the illicit character of the deed / 170
Manage. Presumption of guilt. Its non-reversal / 170
Unproven guilt of the employee / 171
Deficiencies in management. The presumption of guilt. Possibility of overturning it / 172
Manage. Presumption of guilt / 173
Forester. Presumption of guilt. Irrelevance of exoneration from criminal liability / 174
Normal service risk. Lack of causal link between the deed and the damage / 175
Traffic accident. Risk of service - exonerating cause of liability / 176
Normal service risk. Forester. Lack of wood / 177
Chapter III
OBLIGATION TO REFUND / 178
Regulation. Comparisons. Specific / 178
Regulation / 178
Obligation of restitution and patrimonial liability / 179
Obligation to return and undue payment / 179
Obligation to return and enrichment without just cause / 181
The specifics of the restitution obligation / 182
The content of the restitution obligation / 185
Obligation to return according to the Labor Code / 185
The obligation to return according to Law no. 188/1999 and Law no. 360/2002 / 190
The obligation to return according to the Government Ordinance no. 121/1998 / 191
Judicial practice / 192
Obligation to return. Conditions / 192
Inadmissibility of issuing imputation decisions for restitution
amounts unduly received according to the Labor Code / 193
Obligation to return. Legality of the amounts received / 196
The obligation to return the value of the goods and services obtained after the termination of the employment relations / 198
Inventory items received by the employee and not returned at the date of termination of employment. Labor dispute / 200
Negotiated daily allowance. Legal grant by card / 201
Undue amount. Content. Delegation allowance / 202
Invoking legal compensation in labor disputes. Obligation to reimburse compensatory payments. andnon-existence of the term of grace / 204
Undue payment found by the Court of Accounts. Legality of granting salary rights / 204
Obligation to return. Decision of the Court of Accounts. Rights established by the collective labor contract. Its preeminence / 207
Overpayments. Decision of the Court of Accounts. Its relevance. Preeminence of legal acts concluded at the level of the employer / 210
Overpayments. Execution of the sentence pronounced on the merits. Its abolition on appeal. Return of execution / 215
Obligation to return. Limitation period / 215
Obligation to return. Limitation period. Exemption from liability / 217
Chapter IV
PROCEDURE FOR DETERMINATION AND RECOVERY OF DAMAGES / 218
Common law procedure / 218
Regulation / 218
The agreement of the parties / 218
Mediation / 221
The lawsuit / 224
Justification / 224
Litigating party / 224
The court competent to judge the merits / 225
Referral to the court / 226
Term of notification / 227
Proof of claims / 229
Call / 230
Civil action in criminal proceedings / 233
Judicial practice / 234
Imputation decision. Inadmissibility / 234
Imputation decision based on payment commitment. Inadmissibility / 235
Complementary request for action. Term by which change is possible / 235
Property liability. The legal way of delaying the employee debtor / 236
Counterclaim. Deadline for submission / 237
Proof of fulfillment of the conditions of patrimonial liability / 237
The burden of proof. Conditions / 242
The burden of proof. Unproven guilt / 250
The burden of proof. Failure to prove the damage and the causal link between the wrongful act and the damage / 256
Unproven guilt of the employee / 260
Local public administration bodies. Procedural quality in labor disputes. The quality of declaring an appeal / 261
Appeal declared over the term provided by law. Late / 261
Appeal declared overdue. Sanction. Lack of duly justified reasons for rescheduling the appeal / 261
Call. The limits of the devolutive character. Preeminence of the employment contract regarding the salary rights compared to the decision of the Court of Accounts / 262
Procedure for establishing damages in case of civil servants / 263
Regulation / 263
Imputation order (disposition) / 264
Definition / 264
Issuing body / 264
Term / 264
Form and content of the imputation order (disposition) / 264
Payment commitment / 265
Regulation. Features / 265
Form and content of the payment commitment / 265
Remedies / 266
Appeals against the imputation order (disposition) / 266
Appeal against the payment undertaking / 268
Judicial practice / 268
Former civil servant. Impossibility to issue an imputation decision. Recovery of damage by common law / 268
Exception of illegality, Acts of the Court of Accounts. The right to salary incentives / 270
Hiring the liability of the civil servant as a result of the finding of a prejudice by the Court of Accounts. The moment from which the term of 30 days provided by art. 85 para. (10) of Law no. 188/1999 / 273
Civil servants. Joint liability. Annulment of imputation decisions / 275
Suspension of the administrative act. Admissibility conditions / 277
Policeman. Imputation decision. Administrative research. Legality / 280
Suspension of the execution of the imputation decision. Appeal. Term / 282
Policeman. Transportation costs. Carrying out a new administrative research. Legality / 283
Personnel from the penitentiary system. Illegal joint and several liability / 284
Personnel from the penitentiary system. Imputation decision. Legality / 286
Imputation decision. Deadlines. Cancel / 287
Personnel from the penitentiary system. The deadlines for issuing the imputation decision. Prescription of the right of public authority / 288
Personnel from the penitentiary system. Imputation decision. Damage consisting of compensation. Court costs. Execution
service order. Exemption from liability / 289
Appeal. Reasons for cancellation. Salary rights in case of suspension of the employment relationship / 296
Appeal. Cassation with reference. Motive / 297
The procedure for establishing the damages according to the Government Ordinance no. 121/1998 regarding the material responsibility of the military / 299
Regulation / 299
Definition and categories of damages / 299
Damages that do not attract material liability / 301
Procedural steps / 302
Administrative research / 302
Imputation decision / 304
Payment commitment / 305
Remedies / 306
Judicial practice / 307
Decision to impute tuition fees / 307
Competence to settle the appeal against the imputation decision / 308
Other procedures for establishing liability for damages / 309
The procedure provided by O.U.G. no. 59/2000 regarding the status of forestry personnel / 309
The procedure provided by the National Education Law no. 1/2011 / 310
Judicial practice / 310
Forestry staff. Determining the damage. Applicable law / 310
Sharp actionpatrimonial management of forestry personnel. Inadmissibility / 311
Forestry staff with guard duties. Competence to settle disputes in patrimonial liability / 311
Damage recovery / 314
Modalities / 314
Salary deductions / 314
Forced pursuit of property / 316
Judicial practice / 317
Damage recovery procedure / 317
Enforcement of salary rights. Conditions / 318
Return of forced execution / 319
Chapter V
PATRIMONIAL RESPONSIBILITY OF MAGISTRATES FOR JUDICIAL ERRORS / 322
Regulation and legal nature / 322
The constitutional norm and its significance / 322
Criminal regulation / 323
Civil regulation / 323
Regulation by Law no. 303/2004 regarding the status of judges and prosecutors / 324
Government Ordinance no. 94/1999 on Romania's participation in proceedings before the European Court of Human Rights and the Committee of Ministers of the Council of Europe and the exercise of the right of recourse of the state following amicable settlement decisions and conventions / 324
Comments / 324
The legal nature of the patrimonial responsibility of judges and prosecutors / 325
The patrimonial responsibility of the state for the prejudices caused by judicial errors / 325
Decisions of the Constitutional Court / 325
Legal nature of state liability / 326
Civil action - the legal instrument for awarding damages / 327
The notion of civil action and its importance / 327
Object of the civil action / 328
The holder of the action for damages / 328
Defendant / 329
Competent court / 329
The bottom / 329
Court of judicial control / 330
Deadline for bringing the action / 330
Procedural aspects regarding the trial / 331
Judicial error - condition of state responsibility / 331
Term for payment of compensations / 333
The regressive action of the state / 333
Exercising the function of magistrate with bad faith or serious negligence - condition of exercising the action in regress / 333
Special procedure for exercising the action in regress / 336
Chapter VI
EMPLOYERS 'LIABILITY FOR DAMAGES / 338
Regulation. Features / 338
Regulation / 338
Characteristics of the employer's liability according to C. mun / 338
Characteristics of the responsibility of the public authority / institution / 339
General conditions of liability / 339
Enumeration / 339
Categories of facts of the employer generating damages / 340
Unjustified delay in payment of salary or non - payment of salary / 340
The patrimonial responsibility of the employer in case of non-payment of social contributions / 341
Coverage of damages caused to employees - victims of accidents
work or occupational diseases / 342
Compensation in case of illegal dismissal / 343
Granting compensations in case of termination of service relations of civil servants / 346
Other prejudicial illicit deeds that can be committed by the employer / 346
Procedure for recovering damages from the employer / 347
Modalities / 347
The agreement of the parties according to the Labor Code / 347
The employee's complaint addressed to the competent courts / 347
The agreement in the case of civil servants / 348
Referral to the administrative contentious court / 348
Employer recourse action / 350
Regulation. Specific / 350
Jurisprudential solutions / 351
Judicial practice / 352
The right of the trade union organization to bring legal actions on behalf of its members / 352
The conditions of the employer's patrimonial liability. Non - award of non - pecuniary damage / 352
Employer liability. Return guarantee managed / 353
Employer liability. Financial aid granted to teachers / 357
The employer's liability in case of work accident towards the heirs of the deceased employee / 362
Liability for damages to the public authority. Applicable law / 362
Budgetary unit. Payment of outstanding salary rights. Passive procedural quality. Chief Authorizing Officer. Increase for dangerous working conditions / 363
Wage rights due according to the collective labor contract. Legality of their granting / 366
Unilateral reduction of salary. Unlawfulness. Injury / 371
Non-compete indemnity. Obligation to pay / 372
Application regarding the obligation of the employer to pay the annual performance bonus / bonus. Reject / 372
Wage discrimination. Compensation / 373
Damage consisting in non-payment of the bonus for overtime on public holidays / 374
Termination of the individual employment contract. Withdrawal of approvals, authorizations or attestations necessary for the exercise of the medical profession. Their significance. Moral damage to personal and professional image / 374
Failure to receive the employee at work. Illegal sanction. Compensation for non - pecuniary damage / 377
Conditioning the civil liability for the existence of guilt / 379
Damages. The need for their proof / 379
Damages. Impairing the image in front of the group of employees. Illegal granting / 379
lossmorale. Mobbing action / 382
Illegal granting. Classified criminal complaint. Employer liability for non - pecuniary damage / 395
The burden of proof. Proof of payment of salary. Interpretation of evidence / 395
ARGUMENTUM / 5
Chapter I
SPECIFIC LIABILITY FOR DAMAGES AND ITS FORMS / 7
General considerations / 7
The notion of damages / 7
Liability for damages - reparative liability / 7
The patrimonial responsibility and the disciplinary responsibility of the employees / 8
Persons responsible for damages in employment relationships / 8
Employees / 9
Definition, categories / 9
Employees / 9
Forestry staff / 10
Members of the Diplomatic and Consular Corps / 11
Civil servants / 12
Parliamentary civil servants / 13
Customs personnel / 13
Policemen / 14
Staff from the National Administration of Penitentiaries / 14
Military personnel / 15
Professional soldiers and grads / 15
Magistrates / 16
The specialized auxiliary staff of the courts and of the prosecutor's offices attached to them / 17
Forensic personnel and personnel holding forensic forensic positions / 18
Probation staff / 18
Employers / 19
Definition / 19
Employers of legal entities / 19
Individual employers / 21
Forms of liability for damages / 21
Enumeration / 21
Patrimonial liability / 21
Regulation / 21
The specifics of the patrimonial liability regulated by C. mun / 22
Civil liability / 23
Regulation / 23
The specifics of civil liability / 24
Civil liability of civil servants / 25
Material liability / 27
Regulation / 27
The specifics of material liability / 27
Liability for non - pecuniary damage / 28
Notion / 28
Regulation of liability for moral damages / 29
Decisions of the Constitutional Court / 30
Employee liability for non - pecuniary damage / 30
Synthesis of jurisprudence / 32
Liability for damages to employees - personal liability / 37
Preliminaries / 37
Joint liability / 38
Subsidiary liability / 40
Joint and several liability / 42
Judicial practice / 44
The specifics of the patrimonial responsibility / 44
The relationship between patrimonial liability and tortious civil liability. Subsidiary liability. Manage / 45
Patrimonial liability - disciplinary liability. Correlations. Limitation period. Prime / 45
The cumulation of the patrimonial responsibility with the disciplinary responsibility. The effects of the definitive character of the disciplinary sanction on the proof of the existence of the cumulative conditions required for the engagement of the patrimonial responsibility / 46
Patrimonial liability associated with criminal liability - tortious civil liability / 47
Disciplinary liability - patrimonial liability. Limitation period / 50
Sanctioning the employer. Making cash payments over the legal ceiling. Patrimonial responsibility, and not disciplinary one of the employee / 51
Contravention sanction applied to the driver for non-compliance with his professional duties. Training of patrimonial responsibility / 51
Joint liability. Damage caused by several employees / 52
Joint and several liability. Conditions / 53
Failure to meet the conditions for subsidiary liability. The fault of the employer in pursuing the damage / 53
Damages. Regulation / 54
Granting moral damages in labor disputes. Conditions / 55
Moral damage. Application of the norms and principles of contractual civil liability / 60
Material liability. Legal basis. Irrelevance of the form of guilt / 61
Chapter II
CONDITIONS OF DAMAGES / 62
The notion and enumeration of conditions / 62
The notion of condition / 62
Enumeration of conditions / 62
Injury / 62
Notion / 62
Classification of damages / 63
The characteristics of the damage / 64
Specification / 64
3.2 Certainty of damage / 64
The direct nature of the damage / 66
Personal character of the damage / 67
The material nature of the damage / 67
Injury assessment / 67
The illicit and personal act of the employee committed in connection with his work / 70
The notion of illicit deed / 70
The personal character of the illicit deed / 70
Illicit deeds of the military and civilian personnel from the military units and assimilated to them / 72
Causes that remove the illicit character of the deed / 73
Regulation / 73
Execution of the service order / 74
State of necessity / 76
Normal service risk / 77
Force majeure and fortuitous case / 80
The causal relationship between the wrongful act and the damage / 81
Vinovatia / 82
Regulation. Content / 82
Forms of guilt / 83
Judicial practice / 86
The conditions of the patrimonial responsibility / 86
The conditions of the patrimonial responsibility. Consequences / 95
The conditions of the patrimonial responsibility. The need to prove them. Rules of appeal judgment / 95
Cumulative fulfillment of the conditions of patrimonial responsibility / 98
The cumulative meeting of the conditions of the patrimonial responsibility of the employee. Effects / 98
The conditions of the patrimonial responsibility. Employee with guard and surveillance duties / 102
Failure to meet the conditions of patrimonial liability / 103
The conditions of the patrimonial responsibility. The illicit act of the employee consisting in the sale of the goods on debt. Damage. Lack of normal service risk / 10
4
Work accident. The conditions of the patrimonial responsibility / 109
Lack of patrimonial liability conditions. Road accident. Normal service risk / 109
Damage - condition of patrimonial liability. Proof of this / 110
The damage must be real and certain. Proof of the certainty of the damage / 111
The characteristics of the damage. The need to prove his / her employer / 119
Employing the patrimonial responsibility of the employees, in accordance with the provisions of art. 254 para. (1) of the Labor Code. The importance of proving the damage / 119
Proof and recognition of damage / 121
Professional qualification. Loyalty and exclusivity clause. The employee's obligation to perform work for the employer for a certain period. Termination of employment for reasons attributable to the employee / 122
Failure to perform duties. Employee with management position. Action in regression / 124
Damage consisting of the payment of contraventional fines. Employee guilt / 125
Driver. Damage consisting in the payment by the employer of the delay penalties for non-compliance with the contractual clauses / 125
Damage. Driver. Lack of fuel. Standardized consumption / 127
Driver. Damage consisting of lack of fuel. Sarcina probei / 129
Fuel consumption. Normal service risk. Lack of damage / 130
External causes exonerating from liability. Lack of the conditions required by law for incurring the patrimonial liability of the employee / 131
Failure to fulfill the employer's obligations. Removing the employee 's liability / 132
Moral damage - the need to prove it / 132
Damage and guilt - conditions of patrimonial liability / 133
Unproven injury / 133
Failure to prove the damage caused by embezzlement. Removal from criminal prosecution of the perpetrator / 134
Lack of injury. Acquisition of goods. Legality / 135
Manager. Legal provisions regarding the inventory of goods. Lack of proof of injury / 137
The employer's regression against the employees guilty of causing the damage. Lack of damage / 141
Non-existence of damage / 143
Non-competition clause. Failure to describe prohibited activities. Inefficiency of this clause / 144
The existence of some illicit deeds - the basis of the patrimonial responsibility of the employee. Conditions / 145
Illicit act. Limitation period. The patrimonial responsibility of the employee - legal advisor. Repair of the loss of chance damage / 150
Lack of wrongdoing. Receipt of goods / 152
Lack of wrongdoing. Compliance with the payment methodology. Fulfillment of the attributions / 153
The non-existence of the illicit deed. Lack of proof made by the employer / 153
Absence of the job description specifying the attributions that belonged to the employee. The non-existence of the illicit deed / 154
The conditions of the patrimonial responsibility of the employee. Lack of illicit deed / 155
Driver. Lack of fuel. Illicit and culpable deed / 163
Lack of wrongdoing. Standard fuel consumption. Irrelevance of the judicial precedent / 166
Driver. Lack of the wrongful act regarding fuel overconsumption. Sarcina probei / 168
Lack of the illicit character of the deed / 170
Manage. Presumption of guilt. Its non-reversal / 170
Unproven guilt of the employee / 171
Deficiencies in management. The presumption of guilt. Possibility of overturning it / 172
Manage. Presumption of guilt / 173
Forester. Presumption of guilt. Irrelevance of exoneration from criminal liability / 174
Normal service risk. Lack of causal link between the deed and the damage / 175
Traffic accident. Risk of service - exonerating cause of liability / 176
Normal service risk. Forester. Lack of wood / 177
Chapter III
OBLIGATION TO REFUND / 178
Regulation. Comparisons. Specific / 178
Regulation / 178
Obligation of restitution and patrimonial liability / 179
Obligation to return and undue payment / 179
Obligation to return and enrichment without just cause / 181
The specifics of the restitution obligation / 182
The content of the restitution obligation / 185
Obligation to return according to the Labor Code / 185
The obligation to return according to Law no. 188/1999 and Law no. 360/2002 / 190
The obligation to return according to the Government Ordinance no. 121/1998 / 191
Judicial practice / 192
Obligation to return. Conditions / 192
Inadmissibility of issuing imputation decisions for restitution
amounts unduly received according to the Labor Code / 193
Obligation to return. Legality of the amounts received / 196
The obligation to return the value of the goods and services obtained after the termination of the employment relations / 198
Inventory items received by the employee and not returned at the date of termination of employment. Labor dispute / 200
Negotiated daily allowance. Legal grant by card / 201
Undue amount. Content. Delegation allowance / 202
Invoking legal compensation in labor disputes. Obligation to reimburse compensatory payments. andnon-existence of the term of grace / 204
Undue payment found by the Court of Accounts. Legality of granting salary rights / 204
Obligation to return. Decision of the Court of Accounts. Rights established by the collective labor contract. Its preeminence / 207
Overpayments. Decision of the Court of Accounts. Its relevance. Preeminence of legal acts concluded at the level of the employer / 210
Overpayments. Execution of the sentence pronounced on the merits. Its abolition on appeal. Return of execution / 215
Obligation to return. Limitation period / 215
Obligation to return. Limitation period. Exemption from liability / 217
Chapter IV
PROCEDURE FOR DETERMINATION AND RECOVERY OF DAMAGES / 218
Common law procedure / 218
Regulation / 218
The agreement of the parties / 218
Mediation / 221
The lawsuit / 224
Justification / 224
Litigating party / 224
The court competent to judge the merits / 225
Referral to the court / 226
Term of notification / 227
Proof of claims / 229
Call / 230
Civil action in criminal proceedings / 233
Judicial practice / 234
Imputation decision. Inadmissibility / 234
Imputation decision based on payment commitment. Inadmissibility / 235
Complementary request for action. Term by which change is possible / 235
Property liability. The legal way of delaying the employee debtor / 236
Counterclaim. Deadline for submission / 237
Proof of fulfillment of the conditions of patrimonial liability / 237
The burden of proof. Conditions / 242
The burden of proof. Unproven guilt / 250
The burden of proof. Failure to prove the damage and the causal link between the wrongful act and the damage / 256
Unproven guilt of the employee / 260
Local public administration bodies. Procedural quality in labor disputes. The quality of declaring an appeal / 261
Appeal declared over the term provided by law. Late / 261
Appeal declared overdue. Sanction. Lack of duly justified reasons for rescheduling the appeal / 261
Call. The limits of the devolutive character. Preeminence of the employment contract regarding the salary rights compared to the decision of the Court of Accounts / 262
Procedure for establishing damages in case of civil servants / 263
Regulation / 263
Imputation order (disposition) / 264
Definition / 264
Issuing body / 264
Term / 264
Form and content of the imputation order (disposition) / 264
Payment commitment / 265
Regulation. Features / 265
Form and content of the payment commitment / 265
Remedies / 266
Appeals against the imputation order (disposition) / 266
Appeal against the payment undertaking / 268
Judicial practice / 268
Former civil servant. Impossibility to issue an imputation decision. Recovery of damage by common law / 268
Exception of illegality, Acts of the Court of Accounts. The right to salary incentives / 270
Hiring the liability of the civil servant as a result of the finding of a prejudice by the Court of Accounts. The moment from which the term of 30 days provided by art. 85 para. (10) of Law no. 188/1999 / 273
Civil servants. Joint liability. Annulment of imputation decisions / 275
Suspension of the administrative act. Admissibility conditions / 277
Policeman. Imputation decision. Administrative research. Legality / 280
Suspension of the execution of the imputation decision. Appeal. Term / 282
Policeman. Transportation costs. Carrying out a new administrative research. Legality / 283
Personnel from the penitentiary system. Illegal joint and several liability / 284
Personnel from the penitentiary system. Imputation decision. Legality / 286
Imputation decision. Deadlines. Cancel / 287
Personnel from the penitentiary system. The deadlines for issuing the imputation decision. Prescription of the right of public authority / 288
Personnel from the penitentiary system. Imputation decision. Damage consisting of compensation. Court costs. Execution
service order. Exemption from liability / 289
Appeal. Reasons for cancellation. Salary rights in case of suspension of the employment relationship / 296
Appeal. Cassation with reference. Motive / 297
The procedure for establishing the damages according to the Government Ordinance no. 121/1998 regarding the material responsibility of the military / 299
Regulation / 299
Definition and categories of damages / 299
Damages that do not attract material liability / 301
Procedural steps / 302
Administrative research / 302
Imputation decision / 304
Payment commitment / 305
Remedies / 306
Judicial practice / 307
Decision to impute tuition fees / 307
Competence to settle the appeal against the imputation decision / 308
Other procedures for establishing liability for damages / 309
The procedure provided by O.U.G. no. 59/2000 regarding the status of forestry personnel / 309
The procedure provided by the National Education Law no. 1/2011 / 310
Judicial practice / 310
Forestry staff. Determining the damage. Applicable law / 310
Sharp actionpatrimonial management of forestry personnel. Inadmissibility / 311
Forestry staff with guard duties. Competence to settle disputes in patrimonial liability / 311
Damage recovery / 314
Modalities / 314
Salary deductions / 314
Forced pursuit of property / 316
Judicial practice / 317
Damage recovery procedure / 317
Enforcement of salary rights. Conditions / 318
Return of forced execution / 319
Chapter V
PATRIMONIAL RESPONSIBILITY OF MAGISTRATES FOR JUDICIAL ERRORS / 322
Regulation and legal nature / 322
The constitutional norm and its significance / 322
Criminal regulation / 323
Civil regulation / 323
Regulation by Law no. 303/2004 regarding the status of judges and prosecutors / 324
Government Ordinance no. 94/1999 on Romania's participation in proceedings before the European Court of Human Rights and the Committee of Ministers of the Council of Europe and the exercise of the right of recourse of the state following amicable settlement decisions and conventions / 324
Comments / 324
The legal nature of the patrimonial responsibility of judges and prosecutors / 325
The patrimonial responsibility of the state for the prejudices caused by judicial errors / 325
Decisions of the Constitutional Court / 325
Legal nature of state liability / 326
Civil action - the legal instrument for awarding damages / 327
The notion of civil action and its importance / 327
Object of the civil action / 328
The holder of the action for damages / 328
Defendant / 329
Competent court / 329
The bottom / 329
Court of judicial control / 330
Deadline for bringing the action / 330
Procedural aspects regarding the trial / 331
Judicial error - condition of state responsibility / 331
Term for payment of compensations / 333
The regressive action of the state / 333
Exercising the function of magistrate with bad faith or serious negligence - condition of exercising the action in regress / 333
Special procedure for exercising the action in regress / 336
Chapter VI
EMPLOYERS 'LIABILITY FOR DAMAGES / 338
Regulation. Features / 338
Regulation / 338
Characteristics of the employer's liability according to C. mun / 338
Characteristics of the responsibility of the public authority / institution / 339
General conditions of liability / 339
Enumeration / 339
Categories of facts of the employer generating damages / 340
Unjustified delay in payment of salary or non - payment of salary / 340
The patrimonial responsibility of the employer in case of non-payment of social contributions / 341
Coverage of damages caused to employees - victims of accidents
work or occupational diseases / 342
Compensation in case of illegal dismissal / 343
Granting compensations in case of termination of service relations of civil servants / 346
Other prejudicial illicit deeds that can be committed by the employer / 346
Procedure for recovering damages from the employer / 347
Modalities / 347
The agreement of the parties according to the Labor Code / 347
The employee's complaint addressed to the competent courts / 347
The agreement in the case of civil servants / 348
Referral to the administrative contentious court / 348
Employer recourse action / 350
Regulation. Specific / 350
Jurisprudential solutions / 351
Judicial practice / 352
The right of the trade union organization to bring legal actions on behalf of its members / 352
The conditions of the employer's patrimonial liability. Non - award of non - pecuniary damage / 352
Employer liability. Return guarantee managed / 353
Employer liability. Financial aid granted to teachers / 357
The employer's liability in case of work accident towards the heirs of the deceased employee / 362
Liability for damages to the public authority. Applicable law / 362
Budgetary unit. Payment of outstanding salary rights. Passive procedural quality. Chief Authorizing Officer. Increase for dangerous working conditions / 363
Wage rights due according to the collective labor contract. Legality of their granting / 366
Unilateral reduction of salary. Unlawfulness. Injury / 371
Non-compete indemnity. Obligation to pay / 372
Application regarding the obligation of the employer to pay the annual performance bonus / bonus. Reject / 372
Wage discrimination. Compensation / 373
Damage consisting in non-payment of the bonus for overtime on public holidays / 374
Termination of the individual employment contract. Withdrawal of approvals, authorizations or attestations necessary for the exercise of the medical profession. Their significance. Moral damage to personal and professional image / 374
Failure to receive the employee at work. Illegal sanction. Compensation for non - pecuniary damage / 377
Conditioning the civil liability for the existence of guilt / 379
Damages. The need for their proof / 379
Damages. Impairing the image in front of the group of employees. Illegal granting / 379
lossmorale. Mobbing action / 382
Illegal granting. Classified criminal complaint. Employer liability for non - pecuniary damage / 395
The burden of proof. Proof of payment of salary. Interpretation of evidence / 395
In the content of this paper, a component of the "Labor Law Treaty", are presented and analyzed methodically and thoroughly the fundamental, essential and relevant principles and aspects of liability for damages in labor relations, in their variety, both from the normative perspective and from the doctrinal and jurisprudential one.
Any of the parts of the legal labor / service relations, the employee, as a rule, but also the employer, can, in the exercise of his attributions, produce a damage in the patrimony of the other party, which determines his obligation to cover the damage.
I proceeded to the elaboration of the present paper, taking into account the legal provisions regarding the liability in question, the specialized doctrine, the employers' practice, as well as the relevant jurisprudence in the matter. We address, in particular, practitioners (of all categories), theorists, but also students, masters, doctoral students. We aimed in our approach to cover, if possible in full, the vast issue of legal liability analyzed.
Any of the parts of the legal labor / service relations, the employee, as a rule, but also the employer, can, in the exercise of his attributions, produce a damage in the patrimony of the other party, which determines his obligation to cover the damage.
I proceeded to the elaboration of the present paper, taking into account the legal provisions regarding the liability in question, the specialized doctrine, the employers' practice, as well as the relevant jurisprudence in the matter. We address, in particular, practitioners (of all categories), theorists, but also students, masters, doctoral students. We aimed in our approach to cover, if possible in full, the vast issue of legal liability analyzed.
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Introduction to the study of law and state. University course
Civil Code. January 2024 - Edited by: Prof. Univ. Dr. Dan Lupascu
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