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A Legal Perspective on Career Limitations upon Female Astronauts Due to Cosmic Radiation Exposure

Author(s): Sami Mehmeti,Stefani Stojchevska / Language(s): English / Issue: 1/2020

Triggered by the contemporary assumption that female astronauts are facing a manifestation of gender-based discrimination regarding career options due to NASA’s strict cosmic radiation exposure limit restrictions, the main purpose of this paper is to analyze the legal perspective of this issue through labor principles of opportunity and health. By recognizing galactic cosmic rays as a special type of radiation exposure naturally occurring within the astronaut’s working environment, it is questioned whether such a severe health threat deserves to be used as a justification for labor discrimination. While examining the legal status of astronauts in labor relations may contribute in realizing the importance of an astronaut’s profession as an individual as well as for the benefit of mankind, the capacities that space agencies, as employers, have in order to fulfill their obligation of eliminating health risks originating from cosmic radiation and solar storms, can be further examined in order to find out if this spaceflight opportunity limitation is just another well hidden demonstration of gender-based discrimination, mainly through the following determinants: 1) Duration of the space mission, and 2) Position of the space object. Also, given the fact that the notion of “outer space labor law” is still nonexistent, this paper additionally emphasizes the need for the establishment of international standards concerning protection against cosmic radiation, in order for astronauts, irrelevant of their nationality, to receive equal health protection measures, as subjects to labor relations.

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Access to health among women with disabilities – legal aspects and practical problems in Bulgaria

Author(s): Iliyana Miteva / Language(s): English / Issue: 28 (4)/2019

This scientific study is dedicated to the legal aspects and practical problems in the Bulgarian legislation of access to healthcare for women with disabilities. Its relevance comes from the growing need to understand the legal construction linked to the right to health of one of the vulnerable groups in society. Attention herein is directed to the existing legal framework in the People with Disabilities Act, the Health Act, the Health Insurance Act and the Medical-Treatment Facilities Act, as well as separate provisions in other legal acts. The analysis is accompanied by conclusions and suggestions for optimising practice and legislation.

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Analiza konstytucyjności ograniczeń w korzystaniu z wolności religii podczas pandemii koronawirusa w Polsce

Author(s): Konrad Dyda,Marcin Olszówka / Language(s): Polish / Issue: 23/2020

The need to prevent the development of the SARS-CoV-2 coronavirus pandemic makes it necessary to maintain physical distance to comply with various types of sanitary standards. However, when restrictions imposed by public authorities lead to limiting the exercise of human rights and freedoms, they must be laid down in normative acts of appropriate form and content. Meanwhile, many of the restrictions introduced by the Polish authorities with a view to combatting the pandemic, which restricted the exercise of freedom of religion, did not meet the standards defined by the Polish Constitution.

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Aplicabilitatea interdicțiilor temporare de concediere în cazul încetării contractului individual de muncă pe durata sau la sfârșitul perioadei de probă

Author(s): Maria Violeta Duca / Language(s): Romanian / Issue: 03/2021

The interpretation and the application of the provisions of Article 31 (3) and Article 60 of the Labour Code have led to the existence of a non-unitary judicial practice and to the expression of some divergent positions in the doctrine as regards the applicability of the temporary prohibitions on dismissal in case of termination of the individual labour contract at the initiative of the employer, during or at the end of the period of probation. In a first doctrinal and jurisprudential orientation it is argued that Article 60 of the Labour Code is not applicable, because we are not in the presence of a dismissal, but of a separate case of termination of the individual labour contract at the initiative of the employer. The second opinion argues the thesis according to which the termination of the individual labour contract at the initiative of the employer during or at the end of the period of probation is also a case of dismissal, the legislative derogations aiming only at simplifying the dismissal procedure during the period of probation, and not at removing the temporary prohibitions on dismissal provided by Article 60 of the Labour Code. The paper emphasizes that, by applying the rules of interpretation of the domestic legal norms and the principle of interpretation in compliance of the national law with European Union law, it follows that the termination of the individual labour contract at the initiative of the employer during or at the end of the period of probation must be qualified as dismissal. In accordance with the principle of equal treatment and in order to ensure the useful effect of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, the corroborated interpretation of the provisions of Article 60 and Article 31 (3) of the Labour Code reflects the applicability of the temporary prohibitions on dismissal and in case of termination of the individual labour contract of the employee during the period of probation.The employees on probation enjoy the right to health and safety at work and the right to annual rest leave under the same conditions as the employees whose labour relations have been strengthened, with no express legal derogation as concerns the benefit of these rights. De lege lata, the difference in treatment is enshrined in law only for restricting the right to protection against dismissal, not for the restrictions brought to these fundamental rights as well.

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Concediere pentru necorespundere profesională efectuată cu respectarea condițiilor de fond și de formă ale deciziei de concediere. Concediere având la bază evaluarea profesională efectută conform procedurii stabilite prin Regulamentul Intern

Author(s): Dragoș Brezeanu / Language(s): Romanian / Issue: 1/2020

The article aims to analyze the dismissal for professional misconduct ordered by an employer in accordance with the conditions of substance and form provided by the Labor Code and which, following the appeal in the labour court, was found legal and well-founded.

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CONSIDERAȚII ASUPRA CAUZELOR CEDO PRIVIND MALPRAXIS-UL. DISPOZIȚII LEGALE INCIDENTE ÎN LEGEA NAȚIONALĂ

Author(s): Doian Chiriță / Language(s): Romanian / Issue: 45/2021

Malpractice is a relatively recent institution in Romanian law, and can be categorized, at present, as a bitter reality of our society, which is increasingly faced by both medical professionals and beneficiaries of medical services. Unlike other legal systems, in which the term malpractice refers to negligence or incompetence on the part of a professional, in the national legislation we encounter the term malpractice defined in art. 653 of Law no. 95/2006 on the health care reform as “a professional error committed in the exercise of the medical or medico-pharmaceutical act, generating damages on the patient, involving the civil liability of the medical staff and the provider of medical, sanitary and pharmaceutical products and services” . As such, we can say that in the national legislation, when we talk about malpractice, we refer to medical malpractice.

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HUMAN RESOURCES AND PERSONAL DATA PROTECTION: AN INDISSOLUBLE RELATIONSHIP

Author(s): Georgiana Florentina Tataru,Ștefan Răzvan Tătaru / Language(s): English / Issue: 18/2020

Starting from the application file, payroll information, medical file and getting to employees’ internet behaviour or the images taken through the surveillance camera, these personal data are processed by employers all around the world. As the essence of the human resources is dealing with various types of information on the individuals working within an organization, it is of great importance to have a clear outline on how this data is to be processed. The EU's General Data Protection Regulation (GDPR) provides a comprehensive framework that helps smoothing the unfolding of the indissoluble relationship between HR activities and data protection methods.

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Internal Forced Migration in Ukraine: Legal Aspects

Author(s): Andrii Butyrskyi,Viktoriia Reznikova / Language(s): English / Issue: 26/2021

The article is devoted to the study of the problems of forced internal migration in Ukraine. Forced migration significantly affects the geography, structure and dynamics of the population of Ukraine and its regions, the level of development of productive forces in the regions, the state of the labor market and the socio-economic characteristics of living standards of different categories of the population. At present, migration processes in Ukraine are difficult to track, given that the last demographic census was conducted in 2001, and therefore it is difficult to establish the actual number of people in our country, and, accordingly, almost impossible to determine the number of internally displaced persons. According to the results of the study, the authors conclude that internally displaced persons (under current legislation) have the same rights and freedoms as other citizens of Ukraine permanently residing in Ukraine. However, in practice, internally displaced persons face restrictions on their rights and freedoms due to subjective factors. The basic rights that the state guarantees to internally displaced persons include: the right to employment, pensions, compulsory state social insurance, education, suffrage and economic rights. It is expedient to introduce tax benefits for enterprises founded by internally displaced persons, as well as to provide these benefits for enterprises that employ internally displaced persons.

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LIABILITY INSURANCE AS A (SOCIAL) RESPONSE TO THE CHANGING REGULATORY FRAMEWORK: FROM PROHIBITED TO COMPULSORY

Author(s): Nataša Petrović Tomić / Language(s): English / Issue: 4/2020

The article analyzes the relationship between the institutions of liability and liability insurance, aimed at identifying the modalities of their interaction. Insurance indisputably affects the development and scope of tort law, but this influence is not one-sided. At the present development level it has been noted that liability insurance also plays an indispensable role in indemnity litigation. The development path of liability insurance shows that the developed legal order entails two mutually compatible systems. Whilst objective liability for damages is the response to numerous activities that render realistic the possibility of causing damage to others, regardless of whether the damage could have been avoided through cautious behavior, liability insurance is the response to the changed regulatory framework, which leads to liability reaching unprecedented proportions. Therefore, the author concludes that insurance does not threaten to substitute the principle of compensatory damages with the logic of loss-spreading.

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Munkaidőszabályok változása a rendszerváltás óta Magyarországon és Romániában

Author(s): Katalin Lipták,Gábor Mélypataki,Magdolna Vallasek,Zoltán Musinszki / Language(s): Hungarian / Issue: 02/2020

We examined two main questions in our paper, on the one hand, to find out how the legal regulations on working time and rest time have changed in Hungary and Romania in the last 3 decades, and on the other hand, to find out how the 20-29 age group relates to working time, overtime. In both countries, pre-transition labour codes have been replaced, bringing a new perspective to these countries. On the one hand, pre-regime change work organization models were partially or completely transformed, adapting to a new kind of capitalist market perception. Related to the previous two effects is the fact that both countries applied for membership in the European Union, which meant the incorporation of EU standards into national law and compliance with EU minimum standards. These EU effects have largely affected labour law and working time. In addition to the above, it is necessary to look not only at legal and economic changes, but also at social changes, shifts towards flexible legal relations and the effects of digitalisation. In the questionnaire, we asked young people (aged 20-29) with a degree in economics or law in Romania and Hungary, or who are still pursuing such studies, about how working time and overtime are perceived. As a research question, we formulated whether there is a difference or similarity between the opinions of young people living in Romania or Hungary in terms of working hours, overtime, and esteem from the employer. We hypothesize that this young age group, regardless of place of residence, typically has a similar view of working time and the labour market, but work experience has an influential power on the issue of working time.

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Obligatory suspension of a police officer from official duties

Author(s): Paweł Gacek / Language(s): English / Issue: 28 (4)/2019

This paper focuses solely on issues related to the obligatory suspension of police officers from official duties. The relevant provisions are contained in Art. 39 (1) of the Act of 6 April 1990 on the Police. Suspension from official duties is obligatory when the stage of preparatory proceedings conducted against a police officer changes from in rem to ad personam. Such change automatically results in loss of impeccable opinion, which is a necessary condition for serving in the Police. Attention is focused on the objective to be achieved by the institution. The limits of the meaning of the phrase “initiation of proceedings against a police officer” were also indicated as a prerequisite for the application of the legal construction of Art. 39 (1) of the Police Act.

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Opinia prawna na temat beneficjenta rzeczywistego w przypadku spółki kapitałowej, której jedynym (100%) udziałowcem czy akcjonariuszem jest zakon bądź jego jednostka organizacyjna (prowincja zakonna, opactwo, klasztor niezależny, dom zakonny)

Author(s): Dariusz Walencik / Language(s): Polish / Issue: 23/2020

The aim of this legal opinion is to address the following question: Who is the real beneficiary of a limited company in which the only (100%) shockholder or shareholder is an order or its organizational unit (a monastic province, an abbey, an independent monastery or a monastic house)? The analysis of Polish law and canon law leads to the conclusion that in the case of a limited company whose only (100%) shockholder or shareholder is an order or its organizational unit (a monastic province, an abbey, an independent monastery or a monastic house), the real beneficiary is the competent higher superior of this order as well as members of its council. These persons satisfy the conditions specified in art. 2 para. 2 of the act of 1 March 2018 on countering money laundering and financing of terrorism, because they are a group of natural persons who exercise direct control of the company due to the entitlements they have (shareholders’ meeting/general meeting), which make it possible to exert a decisive influence on the actions or activities undertaken by the company. This is so because it is a group of natural persons who exert control over a legal person (an order or its organizational unit) who is entitled to hold more than 25% of the shares of the company stock and more than 25% of the voting rights in the decision-making body of the company (art. 2 para. 2 point 1 letter a and tiret three of the act on countering money laundering and financing of terrorism).

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PARTICULARITIES REGARDING SPECIAL ROMANIAN INDIVIDUAL EMPLOYMENT CONTRACTS

Author(s): Adrian Nicolescu / Language(s): English / Issue: 1/2021

CURRENTLY, A SERIES OF SPECIAL INDIVIDUAL EMPLOYMENT CONTRACTS, WHICH ENJOY BOTH DOMESTIC AND INTERNATIONAL REGULATIONS, ARE BEING MENTIONED IN THE LEGAL DOCTRINE. IN THE PAST, THESE SPECIAL EMPLOYMENT CONTRACTS WERE NOT GIVEN MORE ATTENTION, BUT THE DIVERSIFICATION OF LABOR RELATIONS AND THE POLITICAL, SOCIOLOGICAL, IDEOLOGICAL CHANGES FACING TODAY'S SOCIETY, DETERMINED THE ROMANIAN LEGISLATOR TO BEND MORE TO THEM. IT SHOULD NOT BE NEGLECTED THAT THE CURRENT PROVISIONS OF THE ROMANIAN LABOR CODE ARE AT LEAST PARTIALLY IN LINE WITH REGULATIONS FROM OTHER EUROPEAN COUNTRIES AND, AT THE SAME TIME, THE COMPETENT INSTITUTIONS IN THE FIELD ARE REQUIRED TO MAKE EVERY EFFORT TO HARMONIZE THE LEGISLATION IN OUR COUNTRY WITH EUROPEAN UNION LEGISLATION. IN ORDER TO LEGALLY STRENGTHEN THESE INDIVIDUAL EMPLOYMENT CONTRACTS, THE ROMANIAN LEGISLATOR IMPOSED THAT THE WRITTEN FORM BE IMPERATIVE FOR THEIR VALID CONCLUSION.

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PUBLIC POLICY: AN AMORPHOUS CONCEPT IN THE ENFORCEMENT OF ARBITRAL AWARDS

Author(s): Akosua Serwaah Akoto / Language(s): English / Issue: 1/2021

Public policy permeates the legal principles of a state and its ruling government. The justification of public policy is topical to the ethics and canons acknowledged by that state. These values are determined by the applicable political, social, economic, religious, and legal systems, which differ among states. As public policy usually best illuminates the broad area of government laws, regulations, provincial ordinances, and court decisions, the standards creating public policy alter as states develop. The motif of public policy is critical when the question of enforcement of arbitral awards suffice. There is no definite meaning of the term in the famous Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Arbitration Convention) to enforce foreign arbitral awards. Hence, this paper explores and traces some contemporary trends in defense of public policy as an exception to the enforcement of arbitral awards worldwide.

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Reglementarea juridică a grevelor în actuala configurație legislativă din România

Author(s): Aurelia Gidro / Language(s): Romanian / Issue: 2/2018

After analyzing the plurality of conditions that must be complied with in order to legally initiate a strike, the authors acknowledge that the Romanian legislation is so restrictive that the right to initiate a strike is practically nothing but a constitutional statement because the current applicable law in force (Law no. 62/2011) actually blocks the opportunity of those entitled to use the strike as means of fight (protest). The laws that regulated the strike and the right to a strike after the fall of communism in Romania (Law no. 15/1991 and Law no. 168/1999) also revealed a certain amount of formalism which became excessive under the current settlement of regulations, intolerably multiplying the reasons of illegality related to a strike. The authors of the present study believe that the legitimacy and the content of the political strike notion must be imperatively reviewed.

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Remunerarea „specială” a magistraților. Un argument inedit

Author(s): Ferdinand Secoşan / Language(s): Romanian / Issue: 1/2020

The issue of the service pensions of magistrates is part of the wider problem of the remuneration of this profession. The amount of service pensions and the salary level of magistrates is, at present, clearly "exceptional” in relation to the overall income level in Romania. The subject of this article is the justification of this special amount in relation to a regulatory context unexpected for most readers: that of national security. We will conclude with some references to the extent to which other fields of activity (administrative, educational, health) can base their future claims on national security Arguments.

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RESOLUTION OF DUAL RESIDENCE INSTANCES IN THE CASE OF COMPANIES

Author(s): Lidija Živković / Language(s): English / Issue: 4/2020

The application of double taxation treaties presupposes that the potential cases of dual residence have been previously resolved. For this purpose, the major model-conventions on the basis of which double taxation treaties around the globe are negotiated contain the so-called tie-breaker rule. In the wake of the recent revision of the international tax system resulting from the OECD’s Base Erosion and Profit Shifting Action Plan, the existing tie-breaker rule for companies has been thoroughly amended. Instead of determining companies’ residence based on the place of the effective management criterion, the new approach stipulates that such cases will be decided through the application of the Mutual Agreement Procedure, between the competent authorities of the relevant contracting states. After outlining the historical development of the said mechanism in the context of dual residence resolution, this article purports to critically assess its desirability, with a special focus on its implementation in Serbia.

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RESPECTAREA PRINCIPIULUI TRATAMENTULUI EGAL ÎN RELAȚIILE DE MUNCĂ

Author(s): Dragoş Lucian Rădulescu / Language(s): English / Issue: 45/2021

The institution of discrimination presupposes the application of differentiations between employees, respectively of unequal treatments in the labor relations, which will lead to the non-recognition of the fundamental rights of the respective persons.The existence of acts of discrimination requires the knowledge of their subjects, usually in comparable situations as attributions, on which unequal treatment is applied or even in different situations, this time the treatment applied being similar. Discrimination involves the non-recognition of protected criteria, which are established either in the case of provisions of European law or in a non-limiting manner in national legal systems. In this respect, if the primary non-discrimination legislation is found in the European treaties, similar provisions have been transposed in the European directives, but also in the relevant national legislation. The article contains an analysis of the main criteria of discrimination, including the right of employers to objectively justify non-discrimination.

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Status prawny zawodnika w Polsce w dobie późnego socjalizmu i w pierwszych latach po transformacji ustrojowej (lata 1984-1996)

Author(s): Radosław Niwiński / Language(s): Polish / Issue: 2/2020

The main objective of this article is to present an overall insight into the legal status of sportsmen in Poland, from 1984 to 1996, i.e., in the period when the sports system was thoroughly transformed. The study uses historical and formal-dogmatic methods. In addition, the author interviewed a long-time curator of Legia Warsaw Museum and a sports fan, perfectly familiarised with reality of sport in Poland at that time, which enriches theoretical and legal considerations with a practical value. The research strives to draw attention to the importance of political aspects in the sports sector within the era of late socialism and in the first years after the transformation of political system in Poland. Additionally, it also aims to discuss their ramifications for legal protection of players. The author highlights the implications of interventionist regulatory model in sport which was adopted by the authorities of People’s Republic of Poland by virtue of the Physical Culture Act of 3 June 1984. The article also presents the main tasks and importance of the state in process of creating the sports reality, in particular the position of Polish athletes. The article includes theoretical and practical issues related to amateur sport under the socialism in Poland. The research is intended to compare the regulatory framework concerning sportsmen stated in the Physical Culture Act of 3 June 1984 with the provisions of the Physical Culture Act of 18 January 1996. The author undertakes an evaluation of specific legal institutions from the point of view of the competition between Polish sport on the world stage and dynamic development of professional sport.

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Taxation of free-of-charge employee benefits. Gloss to the Judgement of the Supreme Administrative Court of 29 November 2018, II FSK 799/18

Author(s): Artur Janicki / Language(s): English / Issue: 28 (4)/2019

In this paper, the author presented his critical view of the position which the Supreme Administrative Court expressed in its judgement of 29 November 2018 (II FSK 799/18).1 The case in question concerned taxation of free-of-charge employee benefits, which consisted in providing an employee with accommodation in the place of secondiment. The court stated that, as a result of using the accommodation provided, the employee obtained taxable revenue. The author conducted a dogmatic and legal analysis of applicable provisions of the Personal Income Tax Act of 26 July 1991 and referred to views expressed in the doctrine of law and numerous judgements passed by administrative courts. The author paid particular attention to discussing the ruling of the Constitutional Tribunal of 8 July 2014 (K 7/13), in which the conditions under which a free-of-charge employee benefit may be deemed as revenue were described. Furthermore, the author expressed his critical view of the conclusions which arise from the resolution of the Supreme Court of 10 December 2015 (III UZP 14/15) and which the Supreme Administrative Court passively accepted in its grounds of the judgement in question. Finally, the author demonstrated that in the case in question, the requirement to provide the benefit in the interest of the employee was not met, and thus the benefit should not have been deemed the employee’s revenue.

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