Choosing between civil contract and employment contract
Vol. 17, No. 4/2018 , p663..676
Author(s):
Raluca Dimitriu
Keywords:
Labour law, civil contract, employment contract, requalification, labour inspection
Abstract:
The requalification of the civil contract as an employment contract is the work of unlocking its true legal nature, thus removing the improper (or deliberately misleading) terms used by the parties and revealing the true understanding between them. The requalification can be performed by a fiscal control body, as representative of the third party – namely the state – damaged by the non-payment of contributions and fees, according to the true legal nature of the relationship between the parties. The requalification can be performed by a labour control body, which seeks to eliminate the risk of undeclared work and prevents the employer from abusing the worker. Or it can be carried out by the courts themselves, most often at the request of the worker, who seeks to open the way for the benefits deriving from the protective rules of labour law, inaccessible to the worker who concludes a mere civil contract. The current set of regulations on requalification of the employment contract is far from ideal. Therefore, a number of improvements to ensure coherence in the system would be welcome. The paper aims to identify the relation between the current rules in civil law, labour law, and fiscal law and to include some de lege ferenda proposals in order to make the Romanian legislation more prepared to fight against undeclared work, by still observing the parties right to freely contract.
Download:
http://online-cig.ase.ro/jcig/art/17_4_8.pdf
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