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.

A new concept in the Turkish legal system: Mobbing

Author(s): Nuray Çelik,Melike Yaman / Language(s): English / Issue: 18/2020

Mobbing is a phenomenon which has existed since employment relationships were established in business life. But this issue has been taken into consideration as a legal problem only relatively recently. Thus, within the scope of our work, the definition of mobbing shall be clarified. Moreover, Turkish legislation and judicial opinion regarding mobbing will be analysed.

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.

Analele Științifice ale Universităţii Alexandru Ioan Cuza din Iași, seria Ştiinţe Juridice

Frequency: 2 issues / Country: Romania

Scientific Annals of Alexandru Ioan Cuza University of Iași, Juridical Sciences Series, is a publication with tradition in the field of legal sciences.

The Journal includes research work of teachers, visiting professors, researchers and PhD students from the Faculty of Law of Alexandru Ioan Cuza University of Iasi.

Annals of Alexandru Ioan Cuza, Juridical Sciences Series contain analysis of specific issues of law, subscribed to the four cardinal points of legal taxonomy - Public Law, Criminal Law and Criminal Sciences, Private Law, International and European law - dubbed the reviews and comments of jurisprudence.

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.

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.

Arbitration in employment disputes – de lege ferenda comments 15 years after arbitration clauses in employment relations were introduced in the civil procedure

Author(s): Radosław T. Skowron / Language(s): English / Issue: 31 (3)/2020

The purpose of this paper is to analyse the existing model of employment arbitration in Poland in force since 2005. According to Article 1164 of the Code of Civil Procedure, arbitration clauses in employment disputes can only be established once a dispute has already arisen. In reality, this post-dispute voluntary regulation has no practical value and employment arbitration is an instrument used extremely rarely in Poland. On the basis of examination of applicable laws, the author shows that in given factual and legal circumstances a reasonable employee and a reasonable employer shall seldom have a cause to simultaneously agree to arbitrate an already existing dispute. By applying the comparative method at the same time, the paper examines possible criteria of distinguishing categories of disputes, agreements, persons and other conditions that would permit a valid arbitration clause in employment agreements. In conclusion, the author demonstrates that, firstly, the existing voluntary post-dispute employment arbitration model in Poland is a fictitious one and requires reform and, secondly, that both a full elimination of arbitration clauses in employment agreements and a full arbitration clause for all future disputes are too blunt a tool not taking into account the real needs and requirements of today’s employees and employers. The author calls for a more nuanced regulation of employment arbitration in Poland.

Artificial Intelligence and Its Impact on Labour Relations in Estonia

Author(s): Kristi Joamets,Archil Chochia / Language(s): English / Issue: 2/2020

The third industrial revolution, the digital revolution, affected economy and thus labour relations, too. Now the so-called fourth revolution, the artificial intelligence (AI) revolution, will cause further massive changes in the labour market. This is not just about the caution that robots will replace all employees, but this also raises a question about new skills the labour market requires the employees to have. Scientific literature and the EU policy documents do not cover the AI – labour market issues in a unified approach, however welcoming the development of new technologies on the one hand, with concerns about weakening the labour force by jobs loses, on the other hand. The article elucidates the AI revolution and analyses the AI influence on labour market, specifically identifying the new skills required, based on relevant scientific literature and the EU policy documents. Considering the AI impact on labour relations, continuous alteration of skills and knowledge offered should be of special concern– it is not only about a labour relation per se, new models emerge all the time in the labour market. The authors also investigate the impact of AI on the Estonian labour market, i.e. whether the AI´s effects appear as disastrous as expected or simply a welcome development for the welfare of the state. The article discusses how AI impacts labour relations and which professions fall in a greater risk of disappearing and, more specifically, the AI´s influence on the Estonian labour market.

Atlikėjo samprata intelektinės nuosavybės ir mokesčių bei valstybinio socialinio draudimo įstatymuose

Author(s): Ramūnas Birštonas,Nijolė Janina Matulevičienė,Jūratė Usonienė / Language(s): Lithuanian / Issue: 1/2011

This article aims to analyse the concept of the performer in three different legal contexts: first, the concept of the performer in the field of intellectual property, second, the concept of the performer in the field of tax law, and third, the perception of the performer from the point of view of social insurance laws. Analysis of the performers’ concept in the legislation on intellectual property has shown that in the light of these acts the concept of “performer” has a broad sense. In the Law on Copyright the performer is perceived as every person who performs literary and artistic works. The only requirement for the performance to be protected is related to the fact that the performer has to perform literary or artistic work. Since the work is perceived in very broad sense, a big variety of acts related to entertainment and presentation are considered as subject matter of performances protection. The borderline between authors and performers is analysed in the article. Though the distinction between these two rights owners’ groups is not always evident (for example in the case of improvised performances) it has relevant legal outcome: the taxation of the performer’s and author’s income is governed by different rules, different social and health security contributions are applied to authors and to performers. The conclusion is made that the qualifying of actual subject matter of contractual relationship is essential for the correct choice of applicable tax and social insurance legal acts. The second part of the article focuses on the performer’s legal status within the meaning of law on income tax, law on health and social insurance. Despite the fact that Law on income tax defines performing activities as activities of a performing artist (actor, singer, musician, conductor, dancer or another individual acting, singing, reading, reciting or otherwise performing literary, artistic, folklore performances or circus shows), this law requires that this activity involve preparation for and participation in a public appearance. This requirement is rather unclear and raises the question if the performing activity in the meaning of tax law is perceived narrower than in the meaning of Copyright act. The notion of performing activity under the tax law is directly related to the legal position of the performer in the context of social insurance and compulsory health insurance laws, since the performing activity in these laws is defined according to the definition contained in the Law on income tax. The conclusion that the definition of performing activity in analysed legal acts should be uniformed is made.

Atypical work as flexible work: The rise of labour instability in the Spanish labour market

Author(s): Anna Ginès i Fabrellas / Language(s): English / Issue: 18/2020

The aim of the article is to analyze the Spanish labour law reforms adopted in a period of ten years and their impact in terms of increasing or decreasing employment precariousness; particularly, in terms of increasing or decreasing labour instability through the promotion of atypical forms of work. The paper concludes that the legislative efforts aimed at promoting permanent employment mainly through reductions on Social Security contributions on behalf of the employer have been offset with other reforms that promote and favour atypical forms of work, such as fixed-term, training, internship, part-time contracts, and self-employment. As a result, atypical forms of work have significantly increased and become flexible forms of work, thus, increasing labour instability.

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: 01/2020

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.

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.

CONSIDERATIONS ON EMPLOYEE SHARING IN THE CONTEXT OF GDPR

Author(s): Mihaela-Emilia Marica / Language(s): English / Issue: 1/2021

At European level, the legal contemporary framework regarding individual employment relations is generally characterized by the proliferation of non-standard forms of employment, which respond equally to both employer and employee’s need for flexibility. Today’s enterprises face more and more situations that require a non-standard approach, a broader look at the problems and fast, innovative solutions. In an unpredictable business environment, globalization has enabled the European labour market to introduce multiple new forms of employment, which are not yet acknowledged by Romanian legislation. However, Regulation (EU)2016/679 provides a derogation for employee sharing – a new work arrangement which in the juridical context of GDPR would also apply to internal (domestic) law. The general regulations on data protection stipulate that a Data Protection Officer may be shared by several enterprises, a hypothesis in line with the concept on which the employee sharing scheme is based.

CONSULTANȚĂ FISCALĂ: IMPOZITAREA SUMELOR DECONTATE SALARIAȚILOR PENTRU ÎNCHIRIEREA LOCUINŢELOR

Author(s): Sorin Roman / Language(s): Romanian / Issue: 5/2020

Prezentăm în acest articol o analiză cu privire la unul dintre avantajele pe care companiile îl au la îndemână pentru suplimentarea veniturilor asociate salariilor fără a suporta, uneori, sarcina taxării sau măcar beneficiind de reducerea acesteia.

DEOSEBIRILE PE TEREN PROBATOR ÎNTRE BINOMUL CHELTUIELI – VENITURI ȘI ACHIZIȚII – LIVRĂRI/PRESTĂRI

Author(s): Radu Bufan / Language(s): Romanian / Issue: 5/2020

In a substantial study, the author analyses the conditions for deductibility of expanses in the field of corporate income tax, as compared to the conditions required for the exercise of the right of deduction in the field of value added tax. Inspired by chronical difficulties in national tax audits as to the distinction between these two approaches, the study provides for the theoretical legal arguments that are able to allow the interpreter to rule in each case. Reference is made to the relevant case-law of the Court of Justice of the European Union, as well as to national tax case-law.

Designation of the General Concept of Compensation for Work in English and Lithuanian

Author(s): Aušra Tekoriūtė / Language(s): English / Issue: 13/2020

As part of a systematic knowledge-based analysis of terms related to regulation of wages, the paper analyzes the meaning, usage, and translation of terms designating the general concept of compensation for work in English and Lithuanian. The analysis is based mainly on Chapter IX of the Labour Code of the Republic of Lithuania and its translation into English, as well as the translation of conventions of the International Labour Organization (ILO) and some other legal texts related to wages into Lithuanian. It has been established that while some English and Lithuanian terms with the general meaning of compensation for work are very similar both semantically and functionally, it is possible to trace certain smaller or greater differences between them.

Despre unele contracte de muncă total atipice

Author(s): Aurelia Gidro / Language(s): Romanian / Issue: 1/2020

The process of flexibility in the field of labor relations, as well as the technological and scientific explosion worldwide has also had its effects in the field of forms of employment where employers are looking for solutions on how to conclude employment agreements in unconventional forms, some completely different. of the classic standard contracts. The new forms of employment have in view a less close link between the employer and the employee, a greater so-called freedom granted to the worker, but all this comes at the cost of increasing the risks of precariousness for employees. In this content we have made a brief analysis of new types of very atypical contracts, emphasizing that it would be a mistake to ignore them and not seek legal regulations that would benefit both parties.

Dovedirea stagiului de cotizare şi a veniturilor corespunzând bazei de calcul a contribuţiei de asigurări sociale, altfel decât cu declaraţii nominale de asigurare, în sistemul public de pensii

Author(s): Mihail Stănescu-Sas / Language(s): Romanian / Issue: 10/2020

Within the public pensions system, the contribution periods starting from 1 April 2001 and the income representing the basis of the corresponding monthly scores are grounded, as a general rule, according to article 10 paragraph 1 of Law no. 263/2010, on the content of the nominal social security declarations. For those cases when “the performance of employment or public office relations cannot be proven” in this manner, paragraph 2 of the same article allows the insured person to prove the corresponding contribution period, by other means of evidence. This exception, which at first sight appears to regard only the evidentiary regime of the contribution period and income, was differently received within case-law, as I illustrate at large in this article. The analysis of the selected court decisions reveals that, beyond a derogation in the line of evidence, article 10 paragraph 2 of Law no. 263/2010 enshrines a genuine exception from the principle of contributivity itself, to which the general rule of evidence provided by paragraph 1 of the same article is related. This research also sets the boundaries of the applicability of special provision of paragraph 2, in relation to paragraph 1. Article 8 paragraph 2 of the new Law regarding the public pensions system no. 127/2019, awaited to come into force on 1 September 2021, restrains the scope of application of this exception to the cases when the existence (and not anymore just the performance) of employment or public office relations cannot be proven by nominal social security declarations.

Dreptul la apărare al salariaţilor în contextul aplicării sancţiunii avertismentului scris

Author(s): Bogdan Ioniţă / Language(s): Romanian / Issue: 2/2019

The existence and application of the rules of labor discipline represent a sine qua non conditions in order to ensure an optimal environment for performing the activity of the employer, contributing to the ordering of the employees' behavior, materialized, in this matter, by complinance the rules imposed by law, by the employer or assumed through the contracts either of individual and / or, as the case may be, of collective labor contracts. Violation of these rules can lead to the application of disciplinary sanctions for the employees who prove a behavior that does not comply with the standards required by law, by the employer or contractually agreed. The Labor Code establishes the principle of the legality of the disciplinary sanction, expressly and exhaustively establishing the sanctions that can be applied to the employees, by reference to the gravity of the disciplinary offence committed, gravity that is quantified by means of individualization criteria, such as the circumstances in which the deed was committed, the consequences disciplinary offence, degree of guilt of the employee, etc. The present study aims to analyze the importance of respecting the right of defense of the employees with special regard to the hypothesis of applying the disciplinary sanction of the written warning.

Dyskryminacja pracowników wypełniających obowiązki rodzicielskie

Author(s): Justyna Czerniak-Swędzioł / Language(s): Polish / Issue: 18/2020

Discrimination of employees who, apart from their professional duties, perform also parental duties, remains highly exceptionable. Professional life, as well as family life, constitute the most important spheres of a person’s life, inextricably connected and interdependent, but also highly competitive. The protection of such a parent-employee should entail not only granting them appropriate privileges, but also creating effective countermeasures (legal, extralegal) against discrimination. If being granted numerous privileges becomes the source of unequal treatment, then what occurs is unsanctioned discrimination on account of being a parent. The life choice of becoming a parent, and consequently, the fulfillment of related duties can have substantial impact on the employee’s treatment and position in their professional environment, and thus should be, de lege ferenda, included in the rules as a forbidden differentiation criterion. However, such protection against discrimination should encompass not only the current, but also prospective and former employees. The legislator has created several possibilities for the parent-employee to utilize in case of discrimination, such as immediate resignation with no notice (though not applicable in all cases) or compensatory measures, though these are by no means sufficient when it comes to real, actual protection from discrimination. Such protection from discrimination against parent-employees will not be comprehensive if it remains restricted only to the Employment Code solutions. Without specific solutions with regard to obligatory introduction of appropriate antidiscrimination policies by the employers, it will be impossible to guarantee full and effective protection measures. However, in order to be able to implement the protective solutions delineated by the Code, they should first be regulated so that there remains no question of their legal character as well as scope. Therefore, a change in the already functioning regulations is necessary.