1. ANDREESCU, MARIUS – Constituționalitatea recursului în interesul legii și a deciziilor pronunțate. În: „Curierul judiciar” – nr. 1/2011, p. 35-38. Autorul susține propunerea de lege ferenda ca, în perspectiva unei revizuiri a Constituției, sã se prevadã competența Curții Constituționale de a exercita control de constituționalitate asupra deciziilor pronunțate de Înalta Curte de Casație și Justiție în procedura recursului în interesul legii și asupra actelor juridice exceptate de la controlul judecãtoresc.

The areas where the Civil Code brings regulations lacking in the previous legislation include the controversial area of civil legal acts nullity. As shown throughout this article, many of the current legislative solutions are inspired by the previously existing legal literature and jurisprudence, while others are unique. The author’s main concern is reflected in an attempt to outline some features of the civil legal act nullity as they can be drawn from the new regulation.

Essentially, throughout this study, the authors criticize the completion brought by Law no. 206/2012 both to the previous Code of Civil Procedure and to the new Code of Civil Procedure (republished), which entered into force on 1 February 2012, to the effect that, if an arbitration award involved a dispute relating to the transfer of ownership and / or the establishment of another right in rem on a real estate, the arbitration award will be “submitted” to the Court or the Notary Public to “get a court order or, where appropriate, a notarized document” and only after “verifying” the respective arbitration award (by the Court or the Notary Public), one will proceed to the registration of the arbitral award in the real estate registry and thus the transfer of ownership and / or establishment of rights in rem on thee concerned real estate will be achieved.

The author provides a detailed analysis of the legal content of bribe taking offense provided for in art. 289 of the new Criminal Code. He examines the subject of care proceedings, the subjects of the offense, the objective and subjective sides, the forms, procedures, sanctions and some procedural aspects relating to the deed provided for in art. 289 of the new Criminal Code and its aggravated versions. Also, the author does not hesitate to express his standpoint with regard to the systematization of this offense, the constituent content thereof, its nature, its relations with the provisions of Law no. 78/2000 on preventing, discovering and sanctioning corruption, as subsequently amended and supplemented, and to propose some of his own solutions and ideas in this regard. Not least, the author promotes some of his own opinions on the connection or relationship of this criminal deed with other offenses, as well as regards the law applicable for transitional cases.

In this study, the author makes a thorough analysis of the provisions of art. 61 letter d) of the Labor Code (Law no. 53/2003, republished) whereby, among the causes for dismissal by reason pertaining to the employee, the case of employee’s failure to professionally meet the job requirements is also expressly regulated.

Currently, disputes arising from the application of Law no. 85/2006 are a significant part of Romanian contentious matters, the role of the specialized sections within the courts throughout the country being most often overcrowded. For the years of crisis, insolvency is what claims and disputes arising from the property restitution laws enforcement meant for the years of increased growth. Although civil law specialists with tradition find the insolvency proceedings regulation quite simple, it arises nevertheless a number of interesting legal issues, worth a deeper look. One of these is the issue of compatibility between the intervention institution governed by the Code of Civil Procedure, and the applications specific to insolvency proceedings. Due to the fact that our jurisprudence has provided no consistent reply yet to this issue, the author states the reasons for which a particular solution (rule and exception) seems to be required.

Pentru a fi în prezența unei încãlcãri a dreptului moral la respectarea operei, în sens larg, în conformitate cu art. 10 lit. d) din Legea nr. 8/1996, prejudiciul moral, indiferent de modalitatea în care este produs, trebuie sã constea în afectarea a înseși onoarei sau a reputației autorului, valori expres prevãzute de legiuitor. Așadar, nu este suficientã simpla atingere fizicã, fiind necesar ca aceasta sã fie de o anumitã consistențã și gravitate, astfel încât sã afecteze onoarea și reputația autorului, consecințã ce echivaleazã cu denaturarea viziunii artistice a autorului asupra operei sale.

In the first part of this study the authors present the advantages of parties’ representation through a lawyer, namely through a legal adviser. They’re also showing the solutions promoted in comparative law in this matter, noting that the principle of European law is that of mandatory parties’ representation by a lawyer. Authors’ approach materializes in a comprehensive analysis of the new Code of Civil Procedure provisions concerning parties’ to the appeal mandatory representation through a lawyer or legal adviser. In the authors’ opinion this requirement is aimed not only at the appellant, but also at the intimate. Individual reflections are also formulated in terms of the representation of the parties in withdrawal extraordinary remedy at law, namely the appeal for annulment and revision. The provisions of the law regarding the measures for relieving courts and preparing the implementation of Law no. 134/2010 regarding the Code of Civil Procedure are also analyzed, summarized in the final part of the study. This normative act contains a particular provision on judicial and prosecutor offices’ representation in court. The authors opinion that the procedural rule subject to the analysis takes into account the representation of courts and prosecutors offices in the event that they participate on their own behalf in the substantive law report.

The new Civil Code achieves in art. 1730-1740 a general-rule regulation of both legal and conventional preemption right, regulation applicable wherever the law or the contract do not stipulate otherwise. The conventional preemption right is recognized and regulated under the name of preemption right established by contract; it is nothing but a preference pact in the matter of the sales Contract. Considering that, regardless of the legal or conventional nature of the preemption right, is not normal to have two different systems that penalize violations in the beneficiary’s purchasing priority, the mechanism operating in case of preemption was governed unitary, the freedom of contract left to preemption’s promisor and this freedom overcome consequences being outlined. Whilst trying to settle the doctrinal controversy on the legal characteristics of the right of preemption, the new Civil Code provided for in Art. 1731 that the sale of the property on which there is a legal or conventional preemption right can be concluded with a third party only provided that there is a condition precedent of the preemptor non-exercising the right of preemption, but without specifying explicitly whether such a condition should be considered implicit where it has not been stipulated in the sales contract with the third party. Removing the jurisprudential shortcomings of the substitution mechanism related to the beneficiary instead of the third party purchaser, who is incompatible with the dissolution contract signed between the latter and the promisor, Art. 1732 and 1723 of the new Civil Code, without expressly referring to the sale under condition precedent, stipulate that, through the exercise of preemption, the sales contract is deemed concluded between the preemptor and the seller in the conditions contained in the contract with the third party, and this latter contracts shall be canceled retroactively. In terms of obligations, the creditor is entitled to proper execution and should the creditor have such right, he/she should be granted the opportunity to find effective means to protect it. Reading of Art. 1731 of the new Civil Code, in the sense of making the condition precedent of the preemptor’s non-exercise of the right of preemption in the any sale between the promisor and the third party to be implied, corresponds to the doctrine and jurisprudence attempts to find appropriate means to ensure the observance of the preemptor’s ignored rights, while considering the above principle.

In this article, the author examines the provisions of the new Criminal Code relating to the definition of railway accident, achieving a comparative examination of the current provisions. This paper is a continuation of other research in this area conducted by the author, activities which have resulted in the publication of a monograph and several articles in professional journals. Research results consist of a comparative examination of current and new provisions within the above-mentioned scope, and critical remarks. Research may be useful to theorists and practitioners in the field, especially the legislator, where the latter considers necessary to amend and supplement the definition of railway accidents. The major contribution of the article lies in author’s critical remarks, the de lege ferenda proposals concerning the definition of railway accidents, and in the need to provide another aggravated variant of offenses against railway traffic safety.

Legislative changes occurring in recent years in terms of the legal nature of the public procurement contracts were subject to doctrinal debate and generated disputed solutions in the judicial practice. We refer to the definition of public procurement contract as a Commercial Agreement, under Law no. 278/2010 which has amended and supplemented the Government Emergency Ordinance no. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services concession contracts, approved with amendments and supplements by Law No. 337/2006, as subsequently amended and completed. This legislative approach has shown legislator’s inconsistency in the matter, considering that by organic law - the Law of the contentious administrative No. 554/2004 – public procurement contracts are expressly defined as administrative contracts. At the end of July 2012, the National Authority for Regulating and Monitoring Public Procurement has published a draft emergency ordinance designed to bring new amendments and supplements to the Government Emergency Ordinance No. 34/2006. These proposals were successively amended by the issuer, the final form been approved through the Government Emergency Ordinance No. 77/2012. From the point of view of this study, the legislative changes contained in the Government Emergency Ordinance No. 77/2012 regarding the legal nature of the public procurement contracts and, consequently, the courts competent to hear disputes under these contracts are remarkable.

What seems relevant to this study highlight is the current trend of Europeanization guarantees the right to a fair trial in civil matters established by art. 6, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms and relativization constitutional provisions to guarantee this right, from the perspective of European Court of Human Rights. With this approach, the study proposed open a complex and complete vision, but not exhaustive approach guarantees within the current right to a fair trial in civil matters. Following an outline Key – are analyzed successively three major parts of the study, namely, 1. Identification of universal standards and regulations contained in the European human rights and, of Romanian constitutional and legal regulations on the right to a fair trial in civil matters. 2. Doctrinal guidelines on the requirements of the right to a fair trial in civil matters. 3. Jurisprudential guidelines on the requirements of the right to a fair trial in civil matters.