42. Temeiul acţiunii în regres în cazul antrenării răspunderii civile delictuale a comitentului pentru prepus. Principiul disponibilităţii
42. The basis of the recourse action in case of tort civil liability of the principal for the person in charge. Principle of availability

Summary/Abstract: The alleged damage was caused to the claimant on the basis of criminal court decisions, by which the accused (defendant in the present case) was criminally convicted and ordered jointly with the party liable under the civil law (claimant in the case) to pay for material and moral damages to the civil parties. The principal is not liable to the victim as guarantor, and its obligation to repair the damage caused by the person in charge is main and autonomous in relation to the tort obligation of the person in charge. Between the victim, on the one hand, and the accused and the person liable under the civil law, on the other hand, the civil side of the criminal proceedings is governed by the provisions of tort civil liability, but the relationship between the accused (employee) and the person liable under the civil law (employer) is distinct, respectively it is the one that derives exclusively from the employment contract concluded between the parties. The claimant (employer) did not invoke the provisions of Article 1456 of the Civil Code on the recourse between co debtors, if the joint debtor has executed the obligation in full, nor the norms regarding the subrogation in the creditor's rights contained by Article 1593 1597 of the Civil Code, but exclusively the provisions of the Labor Code (Article 254 paragraph 1) supplemented with the general rule on recourse from Article 1384 1385 of the Civil Code. Thus, the denial of the action based on the contractual liability on account of the exclusive possibility of recovering the damage by way of tort liability, according to the provisions of Article 1357 et seq. of the Civil Code, is a solution contrary to the legal provisions inserted in Article 1350 paragraph 3 of the Civil Code, respectively „neither party can remove the application of the rules of contractual liability in favor of other more favorable rules”. Therefore, in view of this principle expressly enshrined in the provisions of the new Civil Code, the solution of resorting to common law cannot be imposed on the party as long as there is a contractual labor law relationship, which the claimant intends to invoke.

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