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UNIVERSITY OF BUCHAREST

FACULTY OF LAW

DOCTORAL SCHOOL

PhD THESIS SUMMARY

THE JURISTIC REGIME OF PATRIMONIAL LIABILITY IN THE

CONTEXT OF JURIDICAL WORK RELATIONS

Scientific coordinator:

Univ. Prof. Dr. Alexandru ATHANASIU

Doctoral candidate:

FLORIAN RADU-GHEORGHE

Bucharest

2015

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Keywords: patrimonial liability, contractual liability, compensation of non-material

damages within the patrimonial liability, the liability for damages of the manager-

employee of a company.

Summary

The patrimonial liability is one of the important juristic institutions of the Labour Law,

representing a form of liability that is very common in legal practice, taking into account the

consideration of juristic work relations.

Certainly, the juristic work relation is as the juristic relation of private law that enjoys

a special derogating regulation from many principles that govern the reports of private law.

Likewise the patrimonial liability represents a variety of contractual liability, provided with

special derogating rules, according to the specificities of juristic work relations.

Starting with the legal dispositions that govern the patrimonial liability, this has been

defined in the published literature as a form of legal liability that consists of the obligations of

the employees to restore the material damages caused to the employer through his/her own

fault or associated with his/her work.

According to an illustrious author1, we deal with a patrimonial liability that originates

from the individual employment contract, has a remediable character and is founded on the

principles of contractual civil liability.

From our point of view this reciprocity of patrimonial liability is not total and

complete for both parties, since, as we are going to observe in the following chapters of this

thesis, it is a common rule that the liability of the employer is more severe not only as regards

its content (the employers is charged also for non-material damage), but also regarding the

way it is established (the burden of proof belongs always to the employer), as well as the

manner of efficient recovery of injury (normally the employee has also a limited liability by

paying a rate of 1/3 retained only from his/her wage income till the injury is covered).

Considering the traditional view on the liability unit, it has been estimated2 on good

reason that the patrimonial liability may be considered a variety of contractual civil liability,

1 Al. Ţiclea, Tratat de dreptul muncii, eighth Edition, Universul Juridic Press, Bucharest, 2014, pp. 876.

2 I.T. Ştefănescu, Tratat teoretic şi practic de drept al muncii, second edition, Universul Juridic Press, 2012, pp. 771.

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as it is based on „regulation and principles of the contractual civil liability, presenting some

peculiarities given by the juristic work relations.

As it is well known, the published literature1 defines the contractual civil liability as

the obligation of the debtor to repair pecuniary the injury caused to his creditor through non-

execution, inappropriate or delayed execution of his obligations which derive from a valid

concluded contract.

This contractual liability is considered unlawful as a particular application of the

principle of the civil liability of common law, that occurs any time there is lacking a special

derogating regulation, respectively there has not been concluded any contract between the

debtor of the obligation of compensation and the creditor, i.e. the injured party2.

In the same way the legal regulations that rule the contractual liability are divided in

two categories: legal regulations, that are generally applied to the contractual liability and

legal regulations that are particular to the liability of every contract, taking into account the

category of the mentioned contracts.

Because of this and taking into account the fact that the individual contract as well as

the collective employment contract belong to the mentioned category of contracts, being

provided with an express regulation, made up of special rules, derogating from the rules of

common law of the contractual liability, rules that are complementary with the general rules

if they are not contrary to the imperative principles and rules of the labour law; thus, we

estimate that truly the patrimonial liability regulated by the Employment Code, article 253-

259, is nothing but a variety of contractual liability.

Certainly it has been observed3, that the material liability is even currently regulated,

but only as concerns the employment reports of soldiers and of the employers of military and

national security units. So, if we accepted that the patrimonial liability regulated by the

Employment Code is specific to the labour law, it would mean that the labour law would

contain two forms of restorative liability, each of them being different from the contractual

civil liability.

1 I.T. Ştefănescu, op.cit.,2012, pp. 772.

2 L.Pop., I.F. Popa, S.I. Vidu, Tratat elementar de drept civil. Obligaţiile, Universul juridic Press, 2012, pp. 240.

3 L.Pop, Tratat de drept civil. Obligaţiile, Volumul II: Contractul, Universul Juridic Press, 2009, pp. 646; C. Stătescu, C.

Bârsan, Drept civil. Teoria generală a obligaţiilor, Ediţia a IX-a, Hamangiu Press, 2008, pp. 136. 3 I.T.Ştefănescu, op.cit., 2012, pp. 775.

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In order to underline much stronger the features of patrimonial liability, we established

a comparative analysis between the former and the present material liability, having

identified similarities but also basic differences.

Both liabilities are contingent upon their valid existence and the execution of an

individual employment contract. At the same time, they assume the guilt of the employee,

without which the material respectively the patrimonial liability would be inconceivable and

must be therefore proven. The former as well as the present liability are led by the principle

of joint liability, solidarity not being admitted as in the civil law; when the damage has been

caused by several employees, the amount of the liability of each of them is established

according to the level they contributed to cause it. If that level cannot be determined, their

respective liability is established in proportion to their net wage from the date, when the

damage occurred and if necessarily from the actual time worked from the last inventory.

The former material liability as well as the present patrimonial liability accustoms to

have a monetary value as compensation, pecuniary to the cased injury. It is admitted only a

single exception to this rule, namely if it is about a repayment obligation of the employees,

when he/she wrongly receives goods or other benefits.

The regulations that governed the material liability as well as those that govern the

patrimonial one have an imperative (prohibitive) character, not allowing the involved parties

to derogate collective or individual conventions by worsening the liability of the employee or

by mitigating the employer’s liability.

Also as regards the forced execution, the patrimonial liability is limited, that means

that the coverage of damages is realized by means of withholding a certain monthly rate on

the wage, as well as on any other amount that is assigned to that certain person by the unit

where they work in legal conditions. The rates can not exceed more than 1/3 of the monthly

net salary, without exceeding combined with the other withholdings of income, the half of

that salary.

At the same time we identified between the above mentioned forms of liability the

following differences of legal system1:

The differences between the two liability forms regarding the compensation for

damage are caused first of all by the legislative developments determined by the need of

1 Al. Ţiclea, op.cit., pp. 799.

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juristic rules to adapt to the requirements and demands of the market economy of the

constitutional and democratic state and can be listed as follows:

In the matter of patrimonial liability the employee as well as the employer are liable

for the effective damage as well as for the loss of benefit, while the material liability

presumed only the employee’s liability for the effective damage, but not for the loss of

benefit. As regards the loss of benefit, this can be provided for by the involved parties in the

individual employment contract as a penalty clause consisting of default interests for each

day of delay, a clause that is valid only if it is intended in the employee’s favour. The issue of

the admissibility of penalty clause in patrimonial liability will be extensively analyzed in the

third chapter of the fourth title of this study on the characters of damage.

Currently, the employee is liable for future damages, if they ware predictable and

certain, compared to the material liability which acknowledged only the liability for current

damages.

The Establishment of the damages in matters of material liability was realized both by

the issuance of a charging decision made unilaterally by the unity and by the employee’s

payment commitment. Both of them enjoy the effects of the instrument permitting

enforcement.1 Currently the establishment of damages is made by juridical decision in

employment conflicts for rights (so in legal proceedings), the agreement of the involved party

not being excluded as well, but this does not enjoy the effects of the instrument permitting

enforcement and which according to the new regulation is subjected to a certain procedure

and to a limit of the value of consented repair of the employee consisting of five minimum

gross wages.

The concept of limitation for the incurring of patrimonial liability is of three years

according to art. 211 lit. c. of the law no. 62/2011 regarding the social dialogue, compared to

the material liability, where the imputation decision has to be issued not later than 60 days

from the date of taking note of the produced damage, but not later than 3 years after it has

been caused.

An additional disposition regarding the forced execution of wages is provided in the

patrimonial liability matters, according to which, if the withholdings do not cover during

three years the damage, the employer can approach the bailiff under the conditions of Code of

Civil Procedure.

1 Al. Ţiclea, op.cit., pp. 880.

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According to art. 253 of the Employment Code, the employer is obliged, under the

rules and principles of civil contractual liability, to compensate the employee if he/she has

suffered a material or non-material harm caused by the employer while fulfilling his public

service obligations or those linked to his service.

For the employment of the patrimonial liability of the employer, he/she must have

committed a tort (i.e. an infringement of his obligations towards the employees), a material or

non-material damage suffered by the employee, a causal relation between act and damage and

finally the guilt of the employer occurred by fault of the employer’s management bodies or

its servants.

As a particularity regarding the damaged caused to the employee, we remark that the

law covers only the situations when this takes place „during discharge of professional duties”,

that is why the liability of the employer is valid also for the following situations1: during the

duty travels in the same or in a different locality, if the travel was assured by the means of

transport of the unit; during the breaks of the work hours; before or after the work, if the

employee’s presence is required by interests of service in the unit where he /she works or in

another unit he/she was sent to work or any other place the employees discharge their public

service obligations.

In the previous regulation to the law no. 237/2007, the provisions of the former art.

269 (now art. 253 paragraph 1) of the Employment Code provided that „the employer is

obliged, based on the rules and principles of the civil contractual liability, to compensate the

employee, if he/she suffered a material damage caused by the employer, while discharging

his/her public service obligations or those linked to his/her service.”

Therefore, all the orders of court by which, canceling the measurement ordered by the

employer regarding the termination of the individual employment contract because of lacks

of any legal and factual basis and according to art. 78 paragraphs 1 and 2 of the Employment

Code, the employer obliges himself consequently to pay the pecuniary compensation and on

request of the employee and on his/her reintegration in his/her function, the employer is

furthermore obliged to compensate for the non-material damages suffered by the employee as

an effect of the unfair and abusive dismissal2.

1 I.T.Ștefănescu, op.cit., pp. 776, Al. Țiclea, op.cit., pp. 888.

2 Al. Athanasiu, L. Dima, Dreptul muncii, All Beck Press, 2005, pp. 161.

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In the configuration of the patrimonial liability of the employer for the repair of

material damage no. XL (40) from the 7th of May, 2007 was given to the appeal in the

interest of law by Înalta Curte de Casaţie şi Justiţie1.

The Supreme Court decided with binding also for the future that the provisions of the

former art. 269 of the Code (the current 253 republished Employment Code) has to be

interpreted in the e sense that the employer can be obliged to pay non-material damage, only

if there is an express clause mentioned in this regard in the applicable collective employment

contract or even in the individual employment contract.

Through the law no 237/20072 art. 1 paragraph 1 of the Employment Code (the current

art. 253 of the Employment Code) the following content was given to it: “The employer is

obliged under the rules and principles of civil contractual liability to compensate the

employee if he/she has suffered a material or non-material damage caused by the fault of the

employer while discharging his/her public service obligations or those linked to the service.”

We assess, that the new regulation is discriminatory, because it left unchanged art. 254

paragraph 1 of the Employment Code regarding the limits of patrimonial liability of the

employees, who will be liable hereinafter only for the material damages caused directly by

their acts. So the balance between the contracting parties is broken because of the principle of

guaranteeing protective provisions for the employees through the labour law.

Therefore we also line up properly to the doctrine3, that de lege ferenda be it in the

removal of modifications brought to the art. 253 paragraph 1 of the law no 237/2007 or for

the proper modifications even of the art. 254 of the Employment Code.

In this thesis we identified more concrete situations in which the employer has a

patrimonial liability towards his employee:

- in the circumstances, where the court abolishes the measure of the termination of the

applicant’s contract requested by the employer as illegal. In this case according to art. 78

paragraph 2 of the Employment Code, the employer is liable for compensations that can be

combined with the reestablishment of the former position. The amount of compensations

include only those incomes that the employee would have benefited from until the

appearance of a reason that causes the termination of the individual employment contract. At

the same time the possible wage premiums, offered to the employees to various public

1 Published in the Official Monitor no 763 oh the 12th of November 2007.

2 Published in the Official Monitor no 497 on the 25th of June 2007.

3 Ş. Beligrădeanu, Studii de drept al muncii, C.H. Beck Press, 2007, pp. 331.

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holidays, are also taken into account, as well as the 13th month payment, vouchers or food

tickets, collective salary increment etc.1

- The situation established by the art. 44 of the law no. 319/2006 the law of security

and health in labour to which “the employers have a patrimonial liability, according to the

civil law, for the damages caused to the victim of labour accidents or occupational disease, in

the extent that they are not totally covered by the benefits of the state social insurances”.

- The situation mentioned in the art. 166 paragraph 4 of the Employment Code

according to which the unjustified delay in the payment of the salary or non-payment of it can

oblige the employer to pay damages as a compensation for damage.2 On the resolution of an

appeal in the interest of law, the highest court decided in a given case through the decision

no. 2/17.02.20143 that the payment of default interest in the damages can be made in form of

a legal interest for the gradual payment of the debits. It was about the amount established by

the enforceable title having as object the granting of some salary rights for the budgetary

sector under the terms imposed by art. 1 and 2 of the Government Emergency Ordinance no.

71/2009.

- According to art. 52 paragraph 2 of the Employment Code in the case established by

the art. 52 paragraph 1 lit. a and b of the Employment Code, if the innocence of an employee

is proven, he/she resumes his/her former work, receiving under the rules and principles of

the civil contractual liability the equal compensation with the wage and the other rights, that

he/she has been deprived from, while the contract was suspended.

- The case established by the art. 146 paragraph 4 of the Employment Code, according

to which the monetary compensation for the untaken annual leave is allowed and mandatory

only if the individual employment contract is terminated.

As regards the patrimonial liability of the employee, this can be employed only if the

following conditions are cumulatively fulfilled: the employee status of the injuring party to

an extent contrary to the employer; the personal tort of the employee; the damage caused to

the employer; the casual relation between the tort and the damage; the guilt of the employee.

Regarding the employee status of the one called to be liable under the patrimonial

liability, in our scientific approach we underlined the special situation of the manager of a

unit, who pursued his/her activity under an individual employment contract.

1 Al. Athanasiu, L. Dima, Dreptul muncii, All Beck Press, 2005, pp. 161.

2 A. Ţiclea, op.cit., pp. 888.

3 Published in the Official Monitor no 411 on the 3rd of June 2014.

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We consider that there is nothing to preclude that to the assessment of the conditions

for the manager’s liability the rules of the mandate established in art 2017-20124 of the Civil

Code and the law no 31/1990 have to be taken into account and as regards the manner of

establishing the liability, for the compensation of the damage. Nothing precludes that the

relevant provisions should be those of art. 253-259 of the Employment Code.

It is only through such an interpretation, that we do not take the legal effects out of the

individual employment contract regarding the patrimonial liability of the employee.

It can be assumed, that, as the parties decided to conclude an employment contract

between the manager and the unit, the will of both parties was to make also the special rules

of the employee’s protection, established by the labour law, more efficient, including those

that refer to the patrimonial liability.

This solution assures also the compliance of the limits imposed by art. 38 of the

Employment Code, so that the employee is liable only within the limits conferred by the

patrimonial liability, regulated by the labour law, which is more protective towards the

employee-agent, than the law is with the agent.

In the published literature1 it has been stated, that from the logic and unitary

interpretation of the law no 31/1990, the liability of the managers, of the censors of

companies, even if they are their employees as well as the chief executives, is a civil liability-

in the broad sense of the term. This solution would clearly result from the provisions of art.

72 according to which “the obligations and liabilities of a manager are regulated by the

provisions regarding the mandate and the special ones established by this law”); of the art.

166 paragraph 1 according to which the extent and the effects of the censors’ liability are

determined by the rules of their mandate”; of art. 253 paragraph 2 under which “the

liquidators have the same liability as the managers”, as well as of art. 152 paragraph 3,

according to which the chief executives have the same liability towards the company as the

managers do.

We do not agree with such a point of view, as the rules of the mandate that the law no

31/1990 refers to, do not exclude automatically the incidence of the patrimonial liability.

Therefore, the assessment of the guilt, the establishment of the damage, of the

irregular nature of the manager’s and the censor’s acts, that have also the status of employees,

1 Ş. Beligrădeanu, „Derogări de la dreptul comun al muncii cuprinse în Legea nr. 31/1990 privind societăţile comerciale”

published in the review „Dreptul” no. 9-12/1990, pp. 32-37.

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will be truly assessed, according to the rule of the mandate established in the Civil Code, but

the legal system of establishing the patrimonial liability, as well as the means of

compensating the injury will be exclusively governed by the rules of the labour law, by the

rules covered by art. 253-259 of the Employment Code.

Only in this way the concerns of the legislator to refer expressly to the rules regarding

the mandate in the assessment of the manager can be assessed, this being a natural concern as

long as the manager’s, censor’s and liquidator’s tasks are expressly regulated through

imperative rules covered by special laws.

We consider, that there is nothing to preclude, that for the assessment of the conditions

for the manager’s liability the rules of the mandate established in art 2017-20124 of the Civil

Code and the law no 31/1990 have to be taken into account and as regards the manner of

establishing the liability, for the compensation of the damage nothing precludes, that the

relevant provisions should be those of art. 253-259 of the Employment Code.

It is only through such an interpretation, that we do not take the legal effects out of the

individual employment contract regarding the patrimonial liability of the employee.

It can be assumed, that as the parties decided to conclude an employment contract

between the manager and the unit, the will of both parties was to make also the special rules

of the employee’s protection established by the labour law more efficient, including those

that refer to the patrimonial liability.

This solution assures also the compliance of the limits imposed by art. 38 of the

Employment Code, so that the employee is liable only within the limits conferred on it by the

patrimonial liability, regulated by the labour law, which is more protective towards the

employee-agent, than the law is with the agent.

Therefore, the employee, who has the tasks of the manager, will have also the

obligations established in the law no 31/1990 in conjunction with the provisions of the Civil

Code in matters related to the mandate, since the manager status is compatible with that of

employee (excepting the public limited liability companies), but it will be liable according to

the rules of patrimonial regulation towards the eventual damages caused to the company

associated with the discharge of his/her public service obligations.

Thus, if the employers wish to remove the rules of patrimonial liability of the manager

or censor, he/she has at any time the legal option not to conclude an employment contract

with the manager, but concluding a civil contract of mandate under the terms of art. 2009-

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2071 of the Civil Code, in this case the common right in matters of contractual liability will

be incident.

As concerns the condition, that the act of the employee has to be linked with his/her

work, the doctrine1 states unanimously, that for the establishment of the relation between the

act and the work of the employee, the obligations attributed to the employee must be

analyzed by taking into account the content of the individual employment contract of the

internal regulation, of the employee’s job descriptions, of the collective employment contract,

and the specific rules, that regulate the work sector of the employee.

Certainly, there have been identified in the published literature2 some situations,

where, even if the damage is caused by the employee to the employer and the tort is linked

with his work, the specific rules of patrimonial liability can not be applied, but only the rules

of civil liability under the tort law for the act that meets all elements of a crime.

Truly in such a situation the damaged employer has the possibility to “join” the

compensation to the criminal proceedings (art. 14 paragraph 2 of the Code of Criminal

Procedure), thus the civil liability of tort law can take action.

Some conditions have to be fulfilled so that the employee has a patrimonial liability

and as regards the damage:

- It has to be real: the employee is liable for the effectively lost value from the estate

of the employer, but not for the values only nominally (on the staff) declared as

lost3.

The damage must be certain regarding both its existence and its material extent (to be

assessed). Thus the possible damage can not be the object of the obligations of the

patrimonial liability by the employee.

- It has to be current, i.e. it has taken entirely place by the time of its compensation is

required. The future and certain damages are those that even if they have not

occurred yet, it is certain, that they will take place, being evaluated based on

plentiful elements. In matters of patrimonial liability it is accepted that the future

achievement of a damage is certain and this is the exclusive result of the same tort,

1 S. Ghimpu, Al. Athanasiu, Gh. Brehoi, Gh. Mohanu, A. Popescu, Dreptul la muncă. Codul muncii comentat și adnotat,

Editura Științifică, Bucharest, 1988, pp. 359; I.T.Ștefănescu, Ș Beligrădeanu, Codul muncii, Lumina Lex Press,

Bucharest, 2003, pp. 109; I.T. Ștefănescu, Ș. Beligrădeanu, Prezentare de ansamblu şi observaţii critice asupra noului Cod

al muncii., published in the review Dreptul no. 4/2003. 2 Al. Ţiclea, op.cit., pp. 820.

3 I.T. Ştefănescu, op.cit., pp. 780.

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the compensations can be paid in advance, even for those damages that will take

place with no doubt in the future.

- To be directly caused to the employer, who can require the liability of the

employee, only if he/she proves the direct reduction of his/her estate, as a result of

the employee’s torts.

- It must have not been compensated by other legal means;

- To be material, a condition that results from the text of art. 254 paragraph 1 of the

Employment Code, according to which the employees have a patrimonial liability

for the material damages caused to the employer.

This last condition of the damage is also the object of our more detailed scientific

approach.

The patrimonial damages have an economic content, being pecuniary assessed, as

follows: destruction or degradation of goods, circumventing of goods, the killing of an

animal, harm to the health of a human, which is followed by the decrease or loss of the

capacity of working and the usual earning of the victim, the complete or partial loss of a

patrimonial right, as the right of maintenance etc.1

The non-material damages are negative consequences, that can not be financially

estimated and result from the infringement and violations of personal rights, without

economic content.

As opposed to the old Civil Code, which did not contain any provision for the non-

material damage, the new Civil Code, which entered into force on the 1st of October 2011,

regulates in many articles grouped in matters of civil liabilities (contractual and non-

contractual), respectively in matters of the way of defense of the non-material rights (art. 253-

256), compensation for non-material damage.

It can be remarked, that the terminology adopted by the legislators, namely that of

“non-material damage” compared to other regulation that refer to “moral damage”, as the

Law of Administrative Litigation, the Law of the Prevention of Unfair Competition.

Certainly, there has been assessed in the doctrine2 that the insertion of a stipulation in

the collective employment contract or in the job description is inadmissible, as, according to

art. 132 of the Law no 62/2011 regarding the social dialogue, not any clause can be included

1 L.Pop, I.F. Popa, S.I. Vidu, op.cit., pp. 242.

2 I.T. Ştefănescu, op.cit., pp. 783, Ş. Beligrădeanu, op.cit., pp. 315.

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in the collective employment contract, in order to create for the employee a more

unfavourable situation than that established by law.

At the same time not even through the individual employment contract (including the

job description, that is an attachment to this contract) the introduction of a clause through

which the employee is liable for the non-material damages- be it only certain strictly

forbidden assumptions- would not be legally acceptable, because such stipulations are hit by

the absolute nullity, according to art. 38 of the Employment Code. In accordance with art. 38

of the Labour Law, the employees can not renounce to the rights recognized to them by law.

Any transaction to give up the rights recognized to the employees by law or the limitation of

these rights is hit by nullity.

It is to remark, that the entire justification from the published literature, that want to

justify the inapplicability of the rule of compensating the non-material damage, is founded on

the nature of patrimonial liability, as a variety of contractual liability that allows the

compensation of non-patrimonial damage only by way of exception.

In this situation the question arises to which extent this arguments are valid, taking

into account the new provisions of the Civil Code, that allow, by way of exception, the

possibility of the creditor to obtain also the compensation of the non-material damage,

according to art. 1531 paragraph 3 of the Civil Code.

Thus, currently the system of contractual liability allows the liability of the debtor also

for the non-material damages caused by the breach of the contract lato sensu.

This principle adopted by the Romanian lawmakers in matters of contractual liability

may have a negative influence on the legal situation that is exclusively regulated by special,

specific provisions.

Hence, the provisions of the Employment Code and in matters of patrimonial liability

have the character of a special law opposed to the provisions of art. 1531 paragraph 3 of the

Civil Code and therefore, according to the specialia generalibus derogant rule, the special

law is applied with priority, so that until the current text of art. 254 paragraph 1 of the

Employment Code is not modified, the employees are liable only for material, patrimonial

damages.

We estimate, that the regulation of the employees’ liability is imposed de lege ferenda

aslo for the non-material damages, caused to the employers by a tort linked to his/her work.

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An additional argument is represented by the new perspective on the non-material

damages that results from the economy of the Civil Code entered into force on the 1st of

October 2011. Thus, this regulates not only the vocation of the legal person for the

compensation of non-material damages, but also makes a rule of the compensation of the

non-material damages caused by the debtor to his/her creditor by the breach of the contract

lato sensu (art. 1531 paragraph 3 Civil Code).

But, as the patrimonial liability of the employee represents a variety of the contractual

liability, and on the other hand the employer is already liable, according to art. 252 paragraph

1 of the Employment Code for the non-material damages, we assume, that the involvement of

the legislator is needed, in order to establish the right of the employer for the compensation of

non-material damages caused by the tort of the employee in connection with his work.

Thus, the equality of treatment is assured for both parties, i.e. the employee and the

employer under the patrimonial liability, as well as the adaptation of the patrimonial liability

to the new demanding, imposed by the new Civil Code in matters of contractual liability.

This equal treatment between the legal entities clarifies the relations of private law and

does not diminish in any regard the principle of protection of the employees, established by

art. 6 of the Employment Code, because by the breach of a contractual obligation, by fault or

on purpose, a legal relation results, the content of which consists of the obligation of author

of tort to compensate the damage and the corollary right of the injured party to be

compensated for that damage.

It is for this reason, that we consider, that there should not be made any difference of

legal system between the patrimonial liability of the employee and that of the employer, the

principle of the protection of the employee being applicable only in those legal institutions

distinct and specific to the labour law. But as shown before the patrimonial liability is not a

distinct form of liability specific to the labour law, being just a variety of patrimonial

liability.

From the provision of the principle mentioned in art. 254 paragraph 1 of the

Employment Code there are also some derogations, established by legal special rules:

1) It is about, the situation when the damage, caused by the employee to his/her

employer, by his/her fault and in connection to his/her work, represents the consequence of

an infringement, when we have to deal with a derogation not only from the rule established

by the text of art. 254 paragraph 1 of the Civil Code, but also from the principle of the

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inadmissibility of the option between the civil contractual liability and the civil liability under

the law of tort, as the employer represents the civil party, he/she has the right, if necessarily,

to demand from the accused employee the compensation also for the “restoration of non-

material damages, according to the Civil Law”, as it is expressly established by art, 14

paragraph 5 of the Code of Criminal Procedure, amended by the Law no 281/2003).

2) Art. 9 of the Law no. 11/1991 regarding the prevention of unfair competition, in its

form previous to the amendments and completion brought by the law no. 255/2013 for the

implementation of the law no 135/2010 regarding the Code of Criminal Procedure regulated

the civil liability of the author of acts of unfair competition, mentioned in art. 4 and 5 of this

legislation, not only for material but also for non-material damages. Hence, art. 4 established

in the former regulation, that as an act of unfair competition can be represented by the

“offering, promise and granting of gifts or other benefits to the employee or to a trader or

his/her representatives – directly or indirectly – in order to find out, by means of this unfair

conduct, the industrial procedures, in order to know and use its diligence or for gaining

another interest for themselves or for another person to the detriment of a competitor.”

Therefore, that certain employee does not only infringe the obligation of fidelity

toward his/her employer, but at the same time by committing the mentioned contravention.

The provision of art. 9 paragraph 1 of the law no 11/1991, according to which “If one of the

acts mentioned in art 4 or 5, causes material or non-material damages, then the injured party

has the right to address to the competent court with action in the corresponding civil liability”

become incident.

3) Under art. 144 paragraph 1 combined with art. 72 of the law no 31/1990 regarding

companies, the managers of these companies “are responsible for the fulfillment of all

obligations, according to the provisions of that, 72 and 73”, art. 72 establishing that “the

obligations and liability of managers are regulated by the provisions referring to the mandate

and by those specially established by this law. This legal text is applied in our opinion only to

those managers that carry their work under an individual employment contract, have a

patrimonial liability under art. 254 of the Employment Code, the liability for non-material

damages being excluded by law.

The same conclusions are valid also in case of art. 152 paragraph 1 of the Law no

31/1990, according to which the chief executives of a company “are liable towards the

company and third parties for the infringement of their tasks”, to the extent that these

16

directors exercise their functions under a contract of mandate, of management and of

employment.

4) The liability for the declaration and participation at an illegal strike is specific to all

syndicated and non-syndicated employees that took part to a strike. It has been judiciously

remarked in the doctrine1, that the liability for the caused damages can be attracted not only

by a usual strike, but also by a warning strike or that of solidarity. We assume, that the

organization of an illegal strike, as well as the participation at such a manifestation represents

an infringement of the public service obligations, which mean that the provisions of the

employment code referring to their liability for the compensation of the damages, caused to

the employer through the illegal strike, are used against the strikers. In conclusion, the

employees, that take part to an illegal strike, will be liable in a patrimonial way, under the

terms of art. 254 paragraph 1 of the employment Code, while the organizer of the strike,

respectively the trade union will incur liability in tort under the terms established by art 1349

of the Civil Code. This conclusion is also valid in the light of the new Civil Code that

establishes in art. 219 “that the lawful and unlawful acts committed by the bodies of the legal

person, oblige the legal person itself only if these acts are linked to its tasks or to the purpose

of the entrusted functions. The unlawful acts incur the personal and collective liability of

those who committed them towards both the legal person and the third parties”.

Thus, we consider that the trade union, the members of their management bodies will

incur liability in tort towards the employer and/or the organization of an illegal strike, while

the other members of the trade union, that are not a part of the management bodies, as well as

the non-syndicated employees are materially liable according to art 254 paragraph 1 of the

Employment Code for the damages caused by the illegal strike, they took part at.

As regards the representatives of the trade unionists, they are not grouped in a legal

entity different form their juristic personality, they represent the employees and not a legal

person, and therefore they will be materially liable towards their employer for the damaged

caused by the declaration and organization of an illegal strike.

5) The civil servants are liable also for the non-material damages even if art. 72 lit. a

of the law no. 188/1999 (republished).

Another issue that this PhD thesis is dealing with, refers to the admissibility of the

penalty clause in matters of the patrimonial liability. The penalty clause is regulated by art.

1 Al. Athanasiu, M. Volnciu, L. Dima, O. Cazan, op.cit., vol. II, pp. 341.

17

1538-1543 of the Civil Code and is defined as the convention, through which the parties of a

contract determine in advance the extend of the damages, that the debtor will be obliged to

pay in case of non-execution, the inadequate execution or the delay of the services, he/she is

indebted1. In the labour law, even if it does not consist an express regulation in this regard, it

is considered, that the inclusion of a penalty clause in the employment contract, if the

patrimonial liability of the employee is not possible.2

We have to take into account the nature of the services of the employee, which implies

the execution especially personally of the public service obligation. The inclusion of a

penalty clause could change the obligations of an employee form the duty of care to an

obligation of result and on the other hand the personal service of the employee could be

replaced by an equal service (generally pecuniary).

All these elements are incompatible with the nature of legal relations of employment,

and for this reason we consider also that such a clause is inadmissible as regards the

patrimonial liability of the employee.

Another condition of the patrimonial liability of the employee is the guilt, which

represents the subjective element of the patrimonial liability, which is assessed by taking into

account both the obligations listed in the job description and the real possibility of

accomplishing, the existence of the quality and authority of accomplishing, because the

employee must have normal work conditions and exercise properly his functions of the job

description without hindrance.

As each form of legal liability, the patrimonial liability is excluded if the concrete

circumstances of the employee exclude his/her guilt or the unlawful nature of his/her acts. It

is about the regulated or unregulated risk of the public service, the force majeure and the

unforeseeable circumstances, state of need, the execution of a legal or contractual obligation,

Associated with the incidence of these causes, that exclude the patrimonial liability,

there arises the problem of the admissibility of the clauses of patrimonial non-liability in

matters of the legal employment relations.

According to this common right, in matters of civil contractual liability the admissible

clauses are those of aggravation, limitation and exemption of liability.3

1 L. Pop, op.cit., pp. 348; C. Stătescu, C. Bîrsan, op.cit., pp. 325.

2 I.T. Ştefănescu, op.cit., pp. 880.

3 L. Pop, I.F.Popa, S.I. Vidu, op.cit., pp. 388, I.M. Anghel, Fr. Deak, M.F. Popa, Răspunderea civilă, Editura Ştiinţifică,

1970, pp. 348.

18

Such clauses of conventional modification of liability can be valid, they have to be

concluded before the appearance of the damage. The understandings between the creditor and

debtor after the occurring of the damages regarding the establishment of the debtor’s liability

to conclude in the form of transaction or other legal operation, that leads to the amicable

settlement of a dispute.

In matters of patrimonial liability, which is as mentioned before a variety of the civil

contractual liability, that include certain derogations specific to the labour report, these

clauses of conventional modification of the patrimonial liability would be admissible only to

the extent, that they would limit or mitigate the liability of the employee, respectively, if the

liability of the employers would become worse.

According to art. 38 of the Employment Code, the employees can not renounce to their

rights attributed to them by law, as the conventions they used for that would be hit to the

absolute nullity.

Hence, the clauses, that worsen the liability of the employees, will never be

admissible. (E.g., the clause through which the employee obliges himself/herself to account

for certain cases of force majeure or unforeseeable circumstances). Also from this

perspective, the possible clauses established in the individual employment contract in the

duty of the employee for not discharging certain public service obligations is illegal.

Instead nothing precludes, that it may be established in the collective or individual

employment contract the fact, that the employee could benefit from certain clauses that

increase the normal risk of the service taking into account the complexity of the work that has

to be executed and the great importance for the employer in the event of the success of the

project within the limits of art. 11 of the Civil Code.

In the doctrine1 there arose the problem of admissibility of a clause of aggravation of

the employee’s liability for his unlawful acts that have all elements of a crime, when the

employer has the option to add to the civil proceedings also the criminal ones, in this case

giving rise to the civil liability under the tort law and not to a contractual/patrimonial liability.

We consider that such clauses are not admissible in an individual or collective

employment contract, because of the following reasons:

Such a clause would be without effects, as, if the employer chose the incurring of the

patrimonial liability of the employee under art. 254 of the Employment Code, the provisions

1 Idem, pp. 245.

19

o art. 38 of the Employment Law, that punish such clauses with the absolute nullity, would

become incident.

If the employer would choose for the employee the incurring of civil liability under

the tort law, adding to the civil proceeding the criminal ones, such a clause is inadmissible as

long as it assesses a damage before it eventually occurs.1 We estimate that such clause in

conjunction with the legal nature of the civil liability under the tort law could not have legal

effects. The liability under the law of torts excludes de plano any kind of contractual relations

between the author of the unlawful act and the injured party, thus a possible penalty clause

covered by the individual employment contract would not be enforceable in the criminal

court, that will solve the civil part only on the basis of the rules that regulate the civil liability

under tort law. Certainly, nothing hinders the parties to reach a consensus, regarding the

obligation of compensating the damage that is met by the employee after the occurring of the

unlawful act. This convention can be valid without the limitation established by art. 254

paragraph 3 and 4 of the Employment Code, if the transaction takes place before the criminal

court, that has jurisdiction for solving the criminal acts resulted from crime committed by the

employee, as well as the settlement of the civil action.

The procedure of establishing the employee’s liability towards his/her employer for

the damage, caused by not carrying out their public service obligations, suffered various

changes.

Thus, according to the Employment Code from 1950 (law no 31/1950), when the

material liability of the employee was regulated, the means of compensating the damage

consisted only of the issuance of a provision to retain which represented an enforceable title.

The current Employment Code (law no 53/2003) changed radically the possibilities of

compensating for the damage by the employer, the only regulated manner being that of

making a letter of request with this object before the body of jurisdiction of work, within 3

years from the birth of the action right, according to art. 286 paragraph 1 lit. c. before being

republished.

By changes of the Employment Code occurred through the law no 40/2011, the

employer was expressly established a new way to compensate the damage, through the

agreement between the employer and the employee.

1 L.Pop, Teoria generală a obligațiilor, Lumina Lex Press, 2000, pp. 355.

20

Hence, the text of art. 270 of the Employment Code (the current art. 254 of the

republished Employment Code) was completed with two other paragraphs, i.e. 3 and 4, their

content being the following:

“(3) If the employer notices, that his/her employee caused a damage by his/her fault

and in connection with his/her work, he/she will be allowed to demand from the employee

through a note of finding and assessment of the damage, the compensation of the

consideration of that, by agreement of the parties within maximum 30 days from the date of

its notification.”

“(4) The counter value of the damage compensate through the agreement of both

parties, according to paragraph (3), can not exceed the equivalent of 5 minimum gross

wages.”

The agreement of the parts must be set down in a submission (art. 2272 of the Civil

Code), as it prevents a trial that could take place.

From their agreement- no matter which its designation is – understanding, additional

act, convention etc. - there has to result undeniably1:

- The recognition of the employee, that he/she caused a damage to his/her employer,

inclusively an undue amount of money.

- The description of the damage;

- The extent of this damage and the manner of establishing it;

- The means of compensation for the damage (covering this with a single payment at

a certain date or payment by instalments taken from his/her wage or at certain

dates).

Prior to the demand of an agreement with the employee, the employer has the

obligation to draw up a note of identifying and assessing the damage, a document that

represents the basis for the agreement.

It has been judiciously2 remarked, that the agreement regarding the obligation of the

employee to compensate the employer, he/she could not oblige himself/herself than for the

withholdings of a maximum rate of 1/3 of the wage and staggering payments for 3 years,

because the employee is prohibited to renounce to the rights established by the labour law

(according to art. 38 of the Employment Code).

1 Al. Ţiclea, op.cit., pp. 920.

2 I.T. Ştefănescu, op.cit., pp. 890.

21

It has been stated1, that through the conclusion of the agreement the payment of the

damage can be made both by withholdings from the wage and by the voluntary complete

payment.

We do not agree with this opinion, taking into account the imperative character of the

express provisions of art. 169 paragraph 2 of the Employment Code, according to which the

salary withholding entitled compensations for loss can be carried out only based on an

irrevocable and definitive judicial decision.

We do not consider any impediment for the proceeding of the agreement established

by art. 254 paragraph 3 and the Employment Code shall be applied as well as the other forms

of patrimonial liability, like the obligation of compensation, subsidiary liability, the

obligation of the defrayal of professional education etc. as regards the obligation of

compensation established by art. 256 of the republished Employment Code, this is a form of

patrimonial liability, which does not presuppose the guilt of the employee, this being also the

reason why we consider it is irrelevant to cover the proceedings of the agreement established

by art. 254 paragraph 3 and 4 of the republished Employment Code and the maximum ceiling

of the agreement consisting of 5 minimum gross wages will not be applicable.

The possibility of the parties to take recourse to the court for the establishment of

patrimonial liability is regulated expressly both by the provisions of art. 268 paragraph of the

republished Employment Code (that regulates the notion of prescription for the establishment

of the patrimonial liability of the employee towards the employer; art. 268 paragraph 2 of the

republished Employment Code that regulates the general notion of prescription of the

conflicts of work in general other than those mentioned in paragraph 1; art. 211 lit a of the

law no 62/2011 that regulates the possibility of complaint against the undertakings of

payment within 45 days from the date “when the interested one hears the adopted

measurement”; art 211 lit. c of the same law 62/2011 which establishes that the demands for

the payment of the compensations, respectively the repayment of the money that represented

the object of undue payments can be formulated within 3 years from the occurrence of the

damage.

1 Ş. Beligrădeanu – Principalele aspecte teoretice şi practice rezultate din cuprinsul Legii nr. 40/2011 pentru modificarea

şi completarea Legii nr. 53/2011 – Codul Muncii, published in RDM no. 3/2011, pp. 39.

22

We estimate first of all, that the text of art 211 lit. a of the second thesis of the law no.

62/2011 is confusing, because it establishes that the term of 45 day with the date, hence the

interested party noticed the adopted measurement.

But, in the case of a commitment of payment we can talk about an adopted

measurement, the commitment of payment being unanimously accepted in the doctrine, as it

represents an unilateral act of the employee, through which he recognizes due debit as a result

of the caused damage and is forced to return it within a certain period. 1

We can not agree, compared to the legal nature of the commitment of payment that the

text of art. 211 lit a of the law no 62/2011 is applied also to the “commitment of the parties”

established by art. 254 of the republished Employment Code. The rules that regulate the

system of relations of work as well as the legal system actions derived from these are

imperative, of strict interpretation that can not be extended by analogy. Therefore, as long as

the legal text refers only to the commitment of paying some amounts of money, this notion

can not include the new legal institution of “the agreement of the parties”, that, opposed to

the commitment of payment, is a bilateral document, negotiated but not being an enforceable

title.

As regards the commitment of payment, that art. 211 lit a of the law no 62/2011, we

assume together with other authors2, that this must be the one regulated by the law no

188/1999 regarding the status of public servants. Thus, in matters of the civil liability of the

public servants, the establishment of their civil liability can be achieved also if the public

servant assumes the commitment of payment. The special law of the public servant’s status

does not regulate appeals against the commitment of payment as it is done with the decision

of imputation issued by the head of the public authority against the public servant guilty of

the infringement. Thus, according to art. 85 paragraph 2 of the law 188/1999 it is referred

only to the order/decision of imputation that can be contested for administrative disputes

before the court, so that in paragraph 2 of the same article is established that the order or

disposition of imputation remained definitive as a result of not introducing or rejecting action

in the court of administrative disputes and represent the enforceable title.

But, taking into account that the provisions of the law no 188/1999 complements to

the provisions of the labour law according to art. 117, we can conclude the fact that without a

1 M. Gheorghe, op.cit., pp. 78.

2 I.T. Ștefănescu, op.cit., pp. 906.

23

special regulation of appeal against the commitment of payment, there are applied the

provisions of art. 211 lit. a of the law no62/2011, that establishes for the prescription a period

of 45 days. Associated with the establishment of patrimonial liability on legal terms, the

problem arose of knowing whether the delay of the debtor for incurring his/her patrimonial

liability is necessary or not.

Regarding the fact, that according to art. 171 of the Employment Code the right of

action as regards the salary rights starts from the moment those rights were due, we consider

that this default interests must be granted from the moment of the outstanding rights that

represent the object of the action.

This interpretation is valid also for the cases when the provisions of the civil code of

1864 would be incident, because we deal with some obligation for the discharging of which

the delay of the debtor is needed, as the employer is delayed in fact as regards his obligation

of paying the wages.

In the light of the new Civil Code this interpretation is more valid as according to art

1535 paragraph 1 the debtor owes default interest from the outstanding debt, the issue of the

delay not being of actuality.

As regards the restoration of the previous situation of both parties as a result of the

cancelling the decision of dismissal issued by the employer, the provisions of art. 80

paragraph 2 are clear: “If the dismissal lacks any legal and factual basis, the court will

demand its cancelling and will force the employer to pay a compensation equal to the indexed

wages, increased and updated and the other right the employee would have benefited from”,

if it had not been for the decision of dismissal (emphasis added).

Thus in both situations the liability of the employer for default interests is attracted

from the maturity, a prior procedure would not be necessary as that of delay being necessary

(dies interpellat pro hominem).

Opposed to that as regards the employee, the question arises if her/his patrimonial

liability can be incurred without delaying it.

But, at the same time the problem arises regarding the date on which default interests

are demanded.

Taking into account the provisions of art.1079 and 1081 of the civil code from 1864

according to which the debtor can not be demanded for damages, than only after a delay,

excepting the cases when the debtor is righteously put to delay and taking into account the

24

fact that the employer is not put to delay by any means of special or common legal rule, the

employer must proceed for the delay of the employee according to art. 1079 of the Civil

Code, when he/she wishes to demand from him/her default interests for the period prior to the

proceedings before a legal court, as well as if he/she wishes to transfer the risk of

unforeseeable loss of the object desired to be returned.

If the employer does not discharge the formality of delaying the employee, then it will

be have the effect of proceeding before the court in order to solve the action by establishing

the patrimonial liability of the employee, respectively to solve the requirement of the

obligation to the return of the undeserved goods.

Under the government of civil law we must take into account that according to art.

1535 paragraph 1 of the civil code the default interest are due to the outstanding, and that is

why the issue of the debtor’s delay is excluded in order to establish the moment of the flow of

these default interests.

As regards the obligation of the employee to return the undeserved goods, we consider

that the procedure of delaying is maintains its utility also in the light of the new civil code.

Thus, according to art 1525 of the civil code the effects of delaying the debtor

consisted of transferring the risk of unforeseeable receipt of the undeserved good over the

employee that will be liable even if the good is lost due to an unforeseeable circumstance.

In conclusion, it can be remarked, that the patrimonial liability has sufficient defining

and derogating from the common law features, the common law being represented by the

patrimonial liability.

In this context, it can be observed, that where the labour law does not expressly

regulates, the common law becomes applicable but only to the extent that this is compatible

with the demands and the specific of the regulations of work relations.

The current regulation for the liability of damages caused within the legal work

relations is assimilated by the principles of contractual law not only because this is

established by the legal text of art. 253 paragraph 1 and art. 254 paragraph 1 of the

Employment Code, but also because the current regulation of patrimonial liability dos not

contain any more elements that are incompatible with the legal system of civil contractual

liability, deciding in a certain sense, strictly regarding the establishment of patrimonial

liability, the principle of legal equality between the employer and employee, none of the

parties being submitted to the other.

25

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51. Raiciu, Dimitrie-Dan - Raporturile juridice de muncă ale cadrelor militare în activitate.

Reglementări specifice privind securitatea socială a acestora, Editura Universul Juridic,

2011;

52. Reghini, Ionel, Diaconescu, Șerban, Vasilescu, Paul, Introducere în drept civil, Editura

Hamangiu, 2013;

53. Stătescu, Constantin, Bârsan Corneliu – Drept civil. Teoria generală a obligaţiilor,

Editura All Beck, 2003;

54. Stătescu, Constantin, Bârsan, Corneliu - Drept civil. Teoria generală a obligaţiilor,

Editura Hamangiu, Ediţia a IX-a, 2008;

28

55. Stoica, Valeriu - Drept civil, Drepturile reale, Editura C.H. Beck,. 2009;

56. Ştefănescu, Ion Traian, Tratat teoretic şi practic de drept al muncii, Ediţia a II-a Editura

Universul Juridic, 2012;

57. Ştefănescu, Ion Traian – Tratat teoretic şi practic de drept al muncii, Editura Universul

Juridic, 2010;

58. Ştefănescu, Ion Traian – Tratat de dreptul muncii, Editura Wolters Kluver, 2007

59. Ştefănescu, Ion Traian - Tratat de dreptul muncii, Ed. Lumina Lex, 2004;

60. Ştefănescu, Ion Traian, Beligrădeanu, Șerban - Codul muncii comentat şi adnotat,

Editura Universul Juridic, 2003;

61. Ştefănescu, Ion Traian – Modificările Codului Muncii, Comentate, Editura Lumina Lex,

2006;

62. Ştefănescu, Ion Traian - Tratat elementar de Dreptul muncii, Editura Lumina Lex,

Bucureşti, 1999;

63. Ştefănescu, Ion traian - Contractul individual de muncă, Editura Lumina Lex, Bucureşti,

1997;

64. Ştefănescu, Ion Traian - Dreptul muncii, Editura Pedagogică, Bucureşti, 1996;

65. Tăbârcă, Mihaela – Drept procesual civil, Editura Universul Juridic, 2006;

66. Toader, Camelia - Drept civil. Contracte speciale, Ediţia a 2-a, Editura C.H. Beck, 2005;

67. Țiclea, Alexandru - Răspunderea pentru daune în raporturile de muncă, Teorie și

jurisprudență, Editura Universul Juridic, 2014;

68. Ţiclea, Alexandru - Tratat de dreptul muncii, Ediţia a VII-a, Editura Universul Juridic,

Bucureşti, 2014;

69. Ţiclea, Alexandru - Codul muncii comentat, Editura Universul Juridic, 2011;

70. Ţiclea, Alexandru – Tratat de dreptul muncii, Editura Universul Juridic, 2007;

71. Ţiclea, Alexandru - Codul Muncii, Comentat şi Adnotat, Ediţia a II-a, Editura Lumina

Lex, 2006;

72. Ţiclea, Alexandru – Dreptul muncii, Editura Rosetti, 2005;

73. Ţiclea, Alexandru, Popescu, Andrei, Țichindelean, Marioara, Tufan, Constantin, Ţinca,

Ovidiu – Dreptul muncii, Editura Rosetti, Bucureşti, 2004;

74. Ţinca, Ovidiu - Dreptul muncii, Ed. Didactică şi Ştiinţifică, Bucureşti, 1998;

75. Ţinca, Ovidiu - Dreptul muncii. Relaţiile colective, Editura Lumina Lex, 2004;

29

76. Vedinaş, Verginia - Legea nr. 188/1999 privind Statutul funcţionarilor publici cu

modificările ulterioare - comentată -, Editura Lumina Lex, Bucureşti, 2004;

77. Viespescu,V.D. - Legislaţia muncii – legislaţie, doctrină, jurisprudenţă, Partea I,

Bucureşti, 1937;

78. M. Witzman, Curs de drept muncitoresc, Litografia Învăţământului, Bucureşti, 1955;

79. Zanfir, Valeriu – Forţa majoră în raporturile de muncă, Editura Wolters Kluver, 2010;

80. Zanfir, Valeriu – Răspunderea patrimonială a salariaţilor şi funcţionarilor publici,

Editura Tribuna Economică, 2005.

II. Articles, expert studies, notes of case law

1. Albu, Ioan – „Probleme actuale privind reevaluarea juridică a creanţelor, indexarea

convenţională a obligaţiilor pecuniare şi indexarea dobânzilor” în Revista „Dreptul” nr.

1/1994;

2. Albu, Ioan– „Răspunderea civilă contractuală pentru prejudiciile nepatrimoniale (daune

morale)” în Revista „Dreptul” nr. 8/1992;

3. Alexandru, Cătălin - Discuții privind actualizarea creanțelor pecuniare, în Pandectele

române, nr. 6/2002;

4. Athanasiu, Alexandru - Aspecte teoretice și practice privind jurisdicția muncii în lumina

legii nr. 40/2011 și a legii nr. 62/2011, publicat în Modificările Codului Muncii și ale

legii dialogului social, Editura universul Juridic, 2012;

5. Athanasiu, Alexandru Dima, Luminița - Regimul juridic al raporturilor de muncă în

reglementarea noului Cod al muncii, Partea a II-a, în Revista ”Pandectele române”, nr.

4/2003;

6. Beligrădeanu, Șerban – Principalele aspecte teoretice şi practice rezultate din cuprinsul

Legii nr. 40/2011 pentru modificarea şi completarea Legii nr. 53/2011 – Codul Muncii,

publicată în RDM nr. 3/2011;

7. Beligrădeanu, Șerban - Studii de drept al muncii, Editura C.H. Beck, 2007;

8. Beligrădeanu, Șerban – Inadmisibilitatea – de regulă – a acordării daunelor morale în

cadrul raportului juridic reglementat de Codul Muncii, în revista Dreptul nr. 2/2006;

9. Beligrădeanu, Șerban – „Situaţiile care pot atrage răspunderea salariaţilor, faţă de

angajatorii lor, prejudiciaţi de terţi – debitori ai acestora din urmă – prin neexecutarea

30

contractelor încheiate ori prin nerespectarea obligaţiei de restituire”, în revista „Dreptul”

nr. 11/2006;

10. Beligrădeanu, Șerban - Competenţa materială de soluţionare de către instanţele

judecătoreşti a cauzelor derivate din raportul juridic de muncă al personalului aflat sub

incidenţa statutului personalului silvic, publicat în revista Dreptul nr. 2/2005;

11. Beligrădeanu, Șerban – Consideraţii de ansamblu şi observaţii critice referitoare la

tribunalele specializate de muncă şi asigurări sociale, precum şi la asistenţii judiciari, în

lumina Legii nr. 304/2004 privind organizarea judiciară, în Dreptul nr. 9/2004;

12. Beligrădeanu, Șerban - Consideraţii – teoretice şi practice – în legătură cu legea nr.

188/1999 privind statutul funcţionarilor publici, în Dreptul nr. 2/2000;

13. Brehoi, Gheroghe – „Contribuţii la stabilirea răspunderii patrimoniale a unităţii în cazul

anulării unor măsuri unilaterale ale acesteia privind contractul de muncă” în revista

română de drept nr. 3/1989;

14. Bodoaşcă, Teodor - Unele aspecte critice referitoare la noua reglementare privind

răspunderea materială a militarilor, în „Dreptul” nr.2/1999;

15. Chelaru, Eugen - Forța obligatorie s contractului, teoria impreviziunii și competența în

materie a instanțelor judecătorești, în revista Dreptul, nr. 9/2003;

16. Crumpănă, Diana - Aspecte privind modalitatea de stabilire şi recuperare a daunei

cauzate de salariat angajatorului său, în Revista Română de Dreptul Muncii, nr. 3/2005,

17. Deak, Francisc - Condiţiile şi fundamentul răspunderii pentru prejudiciile cauzate de

lucruri, în R.R.D. nr.1/1967;

18. Dumitru, Maria – Cumulul dobânzii legale cu alte tipuri de daune în materia obligaţiilor

băneşti, în revista „Dreptul nr. 12/2006;

19. Georgescu, Mihai, Oproiu, Alexandru – „Cu privire la natura juridică a răspunderii

materiale solidare în „Revista Română de Drept” nr. 9/1983;

20. Gheorghe, Monica - Consideraţii privind termenele de sesizare a instanţei judecătoreşti

în materia conflictelor individuale de muncă, în R.R..D.M. nr. 5/2011;

21. Mohanu, Gheorghe – Opinii în legătură cu existenţa unei răspunderi materiale

„subsecvente” publicată în R.R.D. nr. 7/1982;

22. Mohanu, Gheorghe, Bădică, Gheorghe, Brehoi Gheorghe – În legătură cu răspunderea

patrimonială a unităţii în cazul înlocuirii de către organul de jurisdicţie a muncii a

31

sancţiunii desfacerii disciplinare a contractului de muncă cu o sancţiune mai uşoară.” În

Revista Română de Drept, nr. 3/1986;

23. Musta, Ovidiu - Considerații privitoare la particularităţile răspunderii civile consacrate

de art. 4 alin. 2 din Legea nr. 346/2002, în Revista de dreptul muncii, nr. 3/2007;

24. Piperea, Gheorghe - Notă la decizia nr. 1897 din 06 aprilie 2000 și la decizia nr.

3208/15 iunie 2000 a Curții Supreme de Justiție, în Pandectele Române, nr. 4/2001;

25. Pivniceru, Mona Maria, Gaiță, Maria - Notă la decizia civilă nr. 26 din 7 ianuarie 2000 a

Curții de Apel Iași, în Revista Dreptul nr. 10/2001;

26. Radu, Roxana Cristina - Discriminări interzise și discriminări permise în materia

angajării și a raporturilor juridice de muncă, Revista Română de Drept privat nr. 5/2008;

27. Stătescu, Constantin - Cu privire la raportul dintre norma de drept procesual și norma de

drept substanțial. Implicații referitoare la cumulul răspunderii civile delictuale și

răspunderea contractuală, în Revista Română de Drept, nr. 5/1981;

28. Ştefănescu, Ion Traian - Repere concrete rezultate din recenta modificare şi completare

a Codului muncii, în Revista Română de Jurisprudenţă nr. 2/2011;

29. Ştefănescu, Ion Traian, Beligrădeanu, Șerban - Înţelesul şi sfera de aplicare a noţiunilor

de forţă majoră şi caz fortuit în dreptul muncii, în Dreptul nr. 6/2008;

30. Ştefănescu, Ion Traian, Beligrădeanu, Șerban – Prezentare de ansamblu şi observaţii

critice asupra noului Cod al muncii, în Revista „Dreptul” nr. 4/2003;

31. Ştefănescu, Ion Traian - Răspunderea materială a militarilor, în „Raporturi de muncă”

nr. 11/1998 ;

32. Ţiclea, Alexandru – „Soluţii şi propuneri privind interpretarea şi aplicarea unor

dispoziţii din Codul muncii” în Revista română de dreptul muncii” nr. 2/2003;

33. Uluitu, Aurelian Gabriel Inadmisibilitatea de regulă a clauzei penale în contractul

individual de muncă, în Revista de Dreptul muncii, nr. 1/2008;

34. Vintilă, Gheorghe, Furtună, Constantin – Daunele morale. Studiu de doctrină şi

jurisprudenţă, Editura All Beck, 2002.

III. Case Law

1. Comșa, Carmen Georgiana, Scrob, Bianca-Antoaneta - Litigii de muncă, Jurisprudența

relevantă a Curții de Apel București pe semestrul I 2010, Editura Hamangiu, 2010;

32

2. Harabagiu Lizeta, Udrea, Elena Luissa - Litigii de muncă. Jurisprudenţa relevantă a

Curţii de Apel Bucureşti pe semestrul II 2011, Editura Hamangiu, 2013;

3. Enache, Daniela Georgeta, Ceauşescu, Maria - Litigii de muncă. Jurisprudenţă relevantă

a Curţii de Apel Bucureşti pe semestrul I, 2011, Editura Hamangiu, 2011

4. Rotaru, Florentina, Ceuașescu, Maria, Harabagiu, Lizeta - Litigii de munca.

Jurisprudență relevantă a Curții de Apel București pe anul 2012, Editura Hamangiu,

2013;

5. Rotaru, Florentina, Cristescu, Simona - Litigii de muncă, Jurisprudența relevantă a

Curții de Apel București, pe semestrul II 2010, Editura Hamangiu, 2011;

6. Uţă, Lucia, Rotaru, Florentina, Cristescu, Simona - Codul muncii adnotat, Legislaţie.

Jurisprudenţă naţională şi comunitară. Doctrină şi comentarii, vol. II, Editura

Hamangiu, Bucureşti, 2009

7. Uţă, Lucia, Rotaru, Florentina, Cristescu, Simona - Dreptul muncii. Răspundere

patrimonială, contravențională și penală. Practică judiciară, Editura Hamangiu, 2009;

8. Uţă, Lucia, Rotaru, Florentina, Cristescu, Simona, Dreptul muncii. Răspunderea

disciplinară. Practică judiciară, Editura Hamangiu, 2009;

9. Decizia nr. 2391/25.09.2013 Curtea de Apel Ploiești, publicată în Buletinul Curților de

Apel, nr. 5/2014, Editura C.H. Beck;

10. Decizia civilă nr. 22/2014 a Curții de Apel Galați, publicată în Revista de Dreptul

muncii, nr. 4/2014;

11. Decizia civilă nr. 1344 din 6 martie 2014 Curtea de Apel București, publicată în Revista

Română de Dreptul Muncii nr. 8/2014;

12. Decizia nr. 1941 din 2 aprilie 2012 a Curții de Apel Galați, publicată în Buletinul

Curților de Apel, Editura C.H. Beck, Supliment nr. 2/2012, disponibil pe

www.legalis.ro;

13. Decizia nr. 1763 din 11 iulie 2012 a Curții de Apel Timișoara, publicată în Revista

Buletinul Curților de Apel, Supliment, nr. 3/2012, Editura C.H. Beck, versiune

disponibilă online www.legalis.ro;

14. Decizia civilă nr. 2745/R din 11 iunie 2010, Curtea de Apel București, publicată în

revista Română de dreptul muncii nr. 1/2011;

15. Decizia civila nr. 601 din data de 25 martie 2009 a Curții de Apel Timișoara, publicată

pe www.avocatura.com;

33

16. Decizia civila nr. 213/12 februarie 2008 a Curții de Apel Oradea, publicată pe

www.jurisprudenta.com;

17. Culegere de practică judiciară în materie de conflicte de muncă și asigurări sociale,

2006-2008, Curtea de Apel București, Editura Wolters Kluwer, 2008;

18. Decizia civilă nr. 1091/24.04.2007 a Curții de Apel București publicară în Revista

Română de Dreptul Muncii, nr. 6/2008;

19. Decizia civilă nr. 1091/24.04.2007 publicară în Revista Română de Dreptul Muncii, nr.

6/2008;

20. Decizia civilă nr. 28/16.01.2007 a Curţii de Apel Ploieşti, publicată în Buletinul Curţilor

de Apel, nr. 2/2007.