My research work, followed and directed by Prof. Piera Campanella, the tutor, investigates the general clauses in the employment relationship. The first chapter examines, by a terminological perspective, the "general clauses". Then it analyzes the differences over the general rules and the general principles, over flexible rules and indetermined in content rules. The vagueness of the content and meaning of the general clauses has been found even in the practical application. In all of this aspect, great importance had the theme of the “delegation”, drawn by the legislator to the judge, of the power of concretization of the general clauses. This also in view of the problem of legal certainty, interpreted in line with EU forces, as predictability of decisions of the Courts. It has come to the conclusion that: - the “general clause” is the term by undetermined significance; - the standard is the criterion of judgment by which it determines the meaning of the general clause, resolving the indeterminacy; - the evaluation of the integration is the choice made by the interpreter between competing criteria. It deals with guiding criteria for the search of the values that the judge must be translated, through its own value judgment, in a rule of decision of the case. It has now reached the next step, which involves the analysis of the concepts of "fairness" and "good faith", with the aim to delineate its borders and to resolve the issue concerning the possible diversity of content, coming to the conclusion in sense of denial of their diversity, being the clauses the explication of the same rule, that of the “solidarity principle” contained in Article 2 of the Italian Constitution, at different times of the implementation of the obligatory relationship. It is then passed to the description of the content of these obligations, consisting of conduct that can’t be described in advance, but which require each party to act in order to preserve the interests of the other one, with the limit of its appreciable sacrifice, personal or economic. In the last part of the first chapter it was finally passed to analyze the consequences of the violation of the duty of honestly and good faith. They are then analyzed the characteristics of the employment contract, characterized by a particular relationship between private autonomy and mandatory nature and the personalistic connotations of the employee's performance. It is considered the theory of social contact and exposure "at risk" of legal spheres of the parties, in order to analyze the incidence of the general good faith and fair clauses in the worker's debt even in the light of the theories about the organization. At this point of the research, we made a fundamental question: concerning if the general conditions of good faith and fairness have some autonomous operation space compared with due diligence obligations (Article 2104 of the Italian Civil Code) and fidelity (Article 2015 of the Italian Civil Code) of the employee, the fulfillment of which the worker is required by contract. In particular, the operations of the general clauses is analyzed in collective autonomy, in the socalled “ethical codes”, ad also in different behaviors borrowed from social reality.
Clausole generali nel rapporto di lavoro
MICCOLI, ADELE
2017
Abstract
My research work, followed and directed by Prof. Piera Campanella, the tutor, investigates the general clauses in the employment relationship. The first chapter examines, by a terminological perspective, the "general clauses". Then it analyzes the differences over the general rules and the general principles, over flexible rules and indetermined in content rules. The vagueness of the content and meaning of the general clauses has been found even in the practical application. In all of this aspect, great importance had the theme of the “delegation”, drawn by the legislator to the judge, of the power of concretization of the general clauses. This also in view of the problem of legal certainty, interpreted in line with EU forces, as predictability of decisions of the Courts. It has come to the conclusion that: - the “general clause” is the term by undetermined significance; - the standard is the criterion of judgment by which it determines the meaning of the general clause, resolving the indeterminacy; - the evaluation of the integration is the choice made by the interpreter between competing criteria. It deals with guiding criteria for the search of the values that the judge must be translated, through its own value judgment, in a rule of decision of the case. It has now reached the next step, which involves the analysis of the concepts of "fairness" and "good faith", with the aim to delineate its borders and to resolve the issue concerning the possible diversity of content, coming to the conclusion in sense of denial of their diversity, being the clauses the explication of the same rule, that of the “solidarity principle” contained in Article 2 of the Italian Constitution, at different times of the implementation of the obligatory relationship. It is then passed to the description of the content of these obligations, consisting of conduct that can’t be described in advance, but which require each party to act in order to preserve the interests of the other one, with the limit of its appreciable sacrifice, personal or economic. In the last part of the first chapter it was finally passed to analyze the consequences of the violation of the duty of honestly and good faith. They are then analyzed the characteristics of the employment contract, characterized by a particular relationship between private autonomy and mandatory nature and the personalistic connotations of the employee's performance. It is considered the theory of social contact and exposure "at risk" of legal spheres of the parties, in order to analyze the incidence of the general good faith and fair clauses in the worker's debt even in the light of the theories about the organization. At this point of the research, we made a fundamental question: concerning if the general conditions of good faith and fairness have some autonomous operation space compared with due diligence obligations (Article 2104 of the Italian Civil Code) and fidelity (Article 2015 of the Italian Civil Code) of the employee, the fulfillment of which the worker is required by contract. In particular, the operations of the general clauses is analyzed in collective autonomy, in the socalled “ethical codes”, ad also in different behaviors borrowed from social reality.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
