Зборник радова "Изазови правном систему" Том II
Collection of papers "Challenges to the Legal System" Vol II
IX Scientific Conference on the Occasion of the Day of the Faculty
Contributor(s): Stanka Stjepanović (Editor), Radomir V. Lukić (Editor), Dimitrije Ćeranić (Editor)
Subject(s): Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
- Print-ISBN-13: 978-99938-57-62-4
- Page Count: 500
- Publication Year: 2021
- Language: English, Serbian, Italian
Циљеви и домашај реформе извршне процедуре
Циљеви и домашај реформе извршне процедуре
(Objectives and Scopes of the Executive Procedure Reform)
- Author(s):Gordana Stanković
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:1-17
- No. of Pages:17
- Keywords:The procedure of enforcement; Reform of the procedure of enforcement;
- Summary/Abstract:The procedure of enforcement as a part of the civil court procedure is the final act of exercising the postulated legal protection provided by the state and the legally regulated activity by which the legal order in factual life relations is achieved. The implementation of the procedure of enforcement ends the procedure for providing legal protection of civil subjective rights by enforcing in a legally regulated procedure the situation or right that was determined legal in the previously conducted legal protection procedure. In this way, the normative legal order is realized in factual life relations, because the facts are in line with the law, the principle of legality is realized and the idea of the legal state is manifested. The procedure of enforcement as a segment of the enforcement procedure is an indicator of the degree of realization of rights in the society. Non-enforcement of court decisions or delay in the procedure of enforcement is a sure sign of a general crisis of the legal system and an indicator of its dysfunction and inefficiency. For that reason, the reform of the procedure of enforcement has long been one of the legal-political and legal-technical priorities of the national procedural legislation, which should enable not only direct, final and fair protection of civil subjective rights but also legal, high quality, effective and expeditious legal protection. Although the reform of the procedure of enforcement is a critical issue for establishing the legality and rule of law, the third-in-a-row law in the recent history of Serbian statehood that regulates executive court procedure in the field of civil relations has not been favorably assessed by the professional and scientific public.
Заштита права потрошача у Републици Српској - стање и перспективе
Заштита права потрошача у Републици Српској - стање и перспективе
(Consumer Protection in the Republic of Srpska - Situation and Perspectives)
- Author(s):Branko Morait
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics
- Page Range:18-29
- No. of Pages:12
- Keywords:Contitution; Consumer code; EU consumer acquis; Unification; Implementation;
- Summary/Abstract:The paper examines whether the complex constitutional and legal system of Bosnia and Herzegovina can meet the challenge of implementing the EU consumer acquis. Legislation on consumer protection is being developed at the level of BiH, and at the same time at the level of the entities,especially the Republika Srpska, which has adopted its own Law on Consumer Protection. The right to consumer protection in the internal, Bosnian-Herzegovinian market should ensure equal legal protection of Bosnian-Herzegovinian consumers, on the one hand, and be compatible with the standards and directions of development of consumer rights in the EU market, of half a billion consumer.
Да ли се дивљач може сматрати опасном ствари?
Да ли се дивљач може сматрати опасном ствари?
(Can Game Animal Be Deemed Dangerous Thing?)
- Author(s):Stanka Stjepanović, Draženka Kudra
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:30-43
- No. of Pages:14
- Keywords:Strict liability; Damage; Game animal; Road; Collision; Car;
- Summary/Abstract:In most court rulings the users of the hunting ground were found liable for the damage caused by the collision of a car with game animal wandering on the road. In its rulings, the courts usually refer to the Article 173 of the Law on Obligations, claiming that game animal is a dangerous thing and that it, therefore, falls into the scope of strict liability of hunting ground users. Counterclaims of hunting associations for compensation for damage due to the death of game animal hit by a car are, as a rule, rejected, referring to Article 61 of the Law on Hunting of Republic of Srpska, which stipulates that the user of the hunting ground can be compensated only in case a game animal has been illegally killed.According to the Rule book on Compensation for Damage Caused to the User of the Hunting Ground by Illegal Hunting, for game animal injured or killed in traffic, the compensation is paid by a traffic participant who, by violating traffic regulations, caused a traffic accident through his own fault. The authors, by way of analyzing the first-instance and second-instance decisions, raise the question of viability of the standpoint established by the case law that wildlife on the road is a dangerous thing. They offer an answer to the basic question of whether game animal can be deemed a thing at all (and thus, it is also disputable whether it is a dangerous thing). The paper points out that such a standpoint taken by the caselaw has damaged hunting associations greatly, and thus has contributed to the reduction of the funds for basic investments in the development and care,for protected game animals and other types alike. An amendment to the Law on Hunting is proposed, which would explicitly regulate the liability for compensation for damage caused in traffic accidents involving cars and wildlife. The provisions of the most recent amendments to the Romanian Hunting Law are also being analyzed, and it is proposed that some of these solutions be adopted in the legislation of the Republic of Srpska. The authors recommend that these norms be a lex specialis in relation to the provisions of Article 173 of the Law on Obligations which would be suspended in case of establishing liability for damage resulting from a car and wildlife collision.
Odgovornost za oštećenje (oštećene) stvari i onečišćenje okoliša (zagađivanje životne sredine) prouzrokovano brodom (usporedba plovidbenog zakonodavstva Republike Srpske i Republike Hrvatske)
Odgovornost za oštećenje (oštećene) stvari i onečišćenje okoliša (zagađivanje životne sredine) prouzrokovano brodom (usporedba plovidbenog zakonodavstva Republike Srpske i Republike Hrvatske)
(The Liability for Damage to Property and Pollution of Environment Caused by Ship (the Comparasion Among the Navigational Legislation of Republic of Srpska and Republic of Croatia))
- Author(s):Dragan Bolanča
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Environmental interactions
- Page Range:44-61
- No. of Pages:18
- Keywords:Ship; Liability for damages to property; Liability for pollution of environment; Republic of Srpska; Republic of Croatia;
- Summary/Abstract:The author of this article deals with the tort liability for damage to property and pollution of environment, caused by ship (craft). He describes the legal solutions in Inland Navigation Act of Republic of Srpska (2001. These act is compared with Croatian Maritime Code (2004) and Croatian Inland Waterway Ports Act (2007). In conclusion the specific differences of mentioned law solutions are highlighted.
Аутономија воље странака као повезница за уговоре са међународним елементом из перспективе Хашке конференције за међународно приватно право
Аутономија воље странака као повезница за уговоре са међународним елементом из перспективе Хашке конференције за међународно приватно право
(Party Autonomy as a Connecting Factor to International Contracts from the Perspective of the Hague Conference on Private International Law)
- Author(s):Valerija Šaula
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, International Law
- Page Range:62-82
- No. of Pages:21
- Keywords:Party autonomy; Hague Conference on private International law;Hague principles; Private International Law Act of the Republic of Srpska; Contracts with international element;
- Summary/Abstract:Party autonomy in international contracts is a subjective connecting factor that imposes the obligation on the court (arbitration) to apply the chosen law. This principle dominates in the legislation and practice worldwide and at first glance does not raise any dilemmas or problems. However, means of exercising party autonomy, manners of implementation of this principle andlimitations imposed on it are issues which are differently regulated in both national legislations of various countries and in the international sources of law.With the intention to fulfill its task stipulated by the Statute, The Hague Conference on Private International Law dedicated almost fifteen years to the project of preparing the instrument called “Hague Principles on Choice of Law in International Commercial Contracts” (Hague Principles).Regardless of the fact that the Hague Principles do not have an obligatory force, the importance of this document is profound, having in mind the authority of The Hague Conference and the competence of the experts who participated in their drafting. Therefore, the Hague Principles are “communis opinio doctorum” in this specific area of law. Each Member State of the Hague Conference is able to use these principles as a tool for harmonizing the internal legislation with the business environment. Harmonization and coordination of the legal systems is certainly one of the models to avoid conflict of laws and its consequences.Having in mind the importance of the Hague Principles for the future codifications, this paper focuses not only on presenting the most important achievements regarding the party autonomy in the work of the Hague Conference, but also on the comparison of the Hague Principles with the existing legislation in the Republic of Srpska.
Закон и(ли) судија
Закон и(ли) судија
(Law and / or Judge)
- Author(s):Slobodan I. Panov
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, Family and social welfare
- Page Range:83-113
- No. of Pages:31
- Keywords:Divorce; Cause for divorce; Language and script;
- Summary/Abstract:Iura novit curia is, after all, a presumption a bit too optimistic. One court case reveals quite interesting „undertakings“. One judge holds that he/she is in no way bound by the legal definition of cause for divorce. Thus, he/she places him/herself above the law, considering him/herself autonomous from any law. If we are to wipe away this gentle sfumato by an inch deeper analysis, it becomes clear that the judge gives him/herself the importance of a Parliament. Beyond Parliament, even, since Parliament passes new laws by the majority of votes of the parliamentary assembly, by parliamentary plurality so to speak, whereas the judicial hero/heroine from our story promulgates laws/regulations as a single royal or absolute individual. Deeming Parliament to be irrelevant from the legislative aspect, our judicial hero/heroine holds him/herself above constitutional principles and fundamental norms which define official language and script. We assess this „feature“ of the subject as emanation of Parliament, medical syncope.
Tužba zbog smetanja odnosno uznemiravanja (negatorna tužba)
Tužba zbog smetanja odnosno uznemiravanja (negatorna tužba)
(Lawsuit for Interference or Nuisance (Negatory Lawsuit))
- Author(s):Duško Medić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:114-129
- No. of Pages:16
- Keywords:Property; Property harassment; Immissions; Environment;
- Summary/Abstract:The real aspect of protection of property rights is widely represented in the Law on Real Rights of the Republic of Srpska. Everyone is obliged to refrain from violating the property rights of another person. Negatory lawsuit (actio negatoria) is a property lawsuit that is filed in case of unlawful nuisance to the owner. The act of interfering with the use of the property or nuisance can take different forms. Nuisance can be based on a positive action(doing) or on a failure (inaction) of a certain person to do what he would otherwise be obliged to do. If the defendant claims that he has the right to take the disputed actions, he is obliged to prove it. Whether an action or omission constitutes nuisance is determined depending on the circumstances of each specific case. Only nuisance that prevents or significantly impedes the exercise of property rights is legally relevant. The number of actions by which it can be performed is in fact unlimited. Most often, nuisance is performed on the owner’s real estate, but it can also happen on movable property. Most cases of real estate owner nuisance stem from excessive immissions that make it difficult to use real estate. Protection against impermissible immissions, by the nature of things, goes beyond the classic civil law relationship between the two subjects, since immissions endanger the environment as a collective good. It is realized by a specific negatory lawsuit (sui generis)which differs from an ordinary negatory lawsuit by the circle of persons who can seek protection and by its content. The right to file a negatory lawsuit, as well as other property lawsuits, is not subject to statute of limitations.
Европски зелени договор и стратегија од "њиве до трпезе", за праведан, здрав и еколошки прихватљив прехрамбени систем
Европски зелени договор и стратегија од "њиве до трпезе", за праведан, здрав и еколошки прихватљив прехрамбени систем
(European Green Deal and the Farm to Fork Strategy, for a Just, Healthy and Ecologically Acceptable Food System)
- Author(s):Nataša Stojanović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Agriculture, EU-Legislation
- Page Range:130-149
- No. of Pages:20
- Keywords:European Green Deal; Farm to Fork strategy; Agricultural production; Fishery and aquaculture; Sustainable food system;
- Summary/Abstract:The European Commission, being aware of climatic changes and biodiversity losses, caused primarily by human activities, presented both to the European and the world public the European Green Deal on 11 December 2019. The basic goal of this legal document is the transformation of the European Union into a fair and prosperous society with a modern, efficient and competitive economy, where greenhouse gas emission will not exist in 2050 and where economic growth is not conditioned by the use of resources. An integral part of the European Green Deal is the Farm to Fork strategy, for a just, healthy and ecologically acceptable food system, dated 20 May 2020,providing an entire set of measures and activities that the European Union Member States must undertake to reduce adverse influence of agricultural production, fishery and aquaculture on people’s health, environment and biodiversity. Additionally, the purpose of this Strategy is the transition to a sustainable food system that guarantees safety in food provision and access to healthy foodstuffs, simultaneously providing income sources to all the active participants in the food production/ supply chain. The author analyses solutions contained in the European Green Deal related to the creation of a sustainable, just and healthy food system in the Farm to Fork strategy,aiming to shed light to their positive and negative sides, and particularly to any effects they may have on people’s health, environment and biodiversity.For the purpose of this paper, the following methods are used: legal and dogmatic, normative and legal, and sociological methods. Irrespective of the fact that the Republic of Serbia is still not a full member of the European Union, the author advocates in her paper the implementation of solutions and ecological and legal mechanisms, standardized in the European Green Deal and in the Farm to Fork strategy in Serbian law, in order to facilitate the creation of a sustainable food system.
Пандемија као катастрофални ризик - изазов за делатност осигурања
Пандемија као катастрофални ризик - изазов за делатност осигурања
(Pandemic as a Catastrophic Risk - a Challenge for Insurance Activity)
- Author(s):Vladimir Čolović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Health and medicine and law
- Page Range:150-167
- No. of Pages:18
- Keywords:Pandemic; Catastrophic risk; Insurance; Premium; Damage; Public funding;
- Summary/Abstract:The year 2020 will be remembered for the pandemic caused by the spread of the corona virus, which will cause the problem of economic protection from the consequences in all spheres of life for several years. One of the types of protection against this pandemic is the conclusion of insurance contracts. From the point of view of insurance, a pandemic is a catastrophic event, i.e., a catastrophic risk. Catastrophic risks are different from standard risks. They have their peculiarities, and one of them is the partial unpredictability of both the event itself and the amount of damage that can occur.Therefore, the pandemic is a challenge for insurance, given that insurance companies do not have sufficient creditworthiness to “cover” this risk, that is, to compensate for the damage that may occur due to its realization. The author emphasizes the characteristics of catastrophic risks, as well as the ways of transferring these risks to the insurance companies. It is particularly noted that a homogeneous community of risks with a sufficient number of insurance in a wider area cannot be established when insuring these risks.In addition, the paper pays special attention to the characteristics of catastrophic risks. It is emphasized that these risks are objective - independent of human will. Furthermore, they are technical risks because they are related to the consequences of certain actions. These risks are also dependent, because there is a territorial connection between them. The paper concludes that it is necessary to co-finance premiums and that there are two forms of such co-financing - general public financing and premium subsidies.
Антиципарне наредбе пацијената и сродни правни системи
Антиципарне наредбе пацијената и сродни правни системи
(On Patient's Advance Directives and Related Legal Institutes)
- Author(s):Dragica Živojinović, Nina Planojević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Health and medicine and law
- Page Range:168-189
- No. of Pages:22
- Keywords:Patient's advance directive; Autonomy; Right to self-determination; Informed consent; Continuing power attorney; Euthanasia;
- Summary/Abstract:The subject of this paper is theoretical observation on the relations between patients’ advance directives and specific legal institutes with which they share the same legal grounds. The goal of this paper is to draw a clear line between them by pointing out to the characteristics they share, as well as to those which distinguish them. This is important for adequate understanding and regulation of the institute of advance directive which permeates the most delicate spheres of individual rights – the right to life and the right to dignity.In the first part of this paper, the authors briefly review the origin and development of patients’ advance directives within Europe’s legal framework pointing to the presence of terminological differences of phrases used to describe them in literature and regulations, as well as to their legal grounds. Having conducted a comparative analysis of the provisions pertaining to this matter in some European legislation (Austrian, German, British, Swiss and Italian), the authors establish the concept and identify the key characteristics of this institute.In the second part of the paper, patients’ advance directives are compared to the informed consent, continuing power of attorney and euthanasia. Having reviewed the concept, basic characteristics and purpose of aforementioned institutes, the authors conclude that there are major differences between these and the institute of patient’s advance directive. The latter is a strictly personal act, which is not the case with the informed consent that can be given via a legal representative. The patients’ advance directives are one-sided legal transactions whose effect is not contingent on anybody’s consent, while the effect of continuing power of attorney is contingent on the attorney’s consent.Their primary goal is not euthanasia, but rather empowering the patient to control his own life and medical treatment, as well as to influence the future decisions related to his medical treatment in case he loses his mental capacity. Therefore, they should not be viewed exclusively in the context of death.In their concluding remarks, the authors state that the legislators, including Serbian lawmakers, should take into consideration these differences in their attempts to reformulate the institute of patient’s advance directive.
Digital Exhaustion: Furthering Social Justice in a Streaming-dominated Copyright Ecosystem - Critical Remarks After the ECJ's Tom Kabinet Judgement
Digital Exhaustion: Furthering Social Justice in a Streaming-dominated Copyright Ecosystem - Critical Remarks After the ECJ's Tom Kabinet Judgement
(Digital Exhaustion: Furthering Social Justice in a Streaming-dominated Copyright Ecosystem - Critical Remarks After the ECJ's Tom Kabinet Judgement)
- Author(s):Péter Mezei
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:190-203
- No. of Pages:14
- Keywords:Copyright; Social justice; First sale doctrine; Exhaustion doctrine: Digital copyright; Tom Kabinet; European Court of Justice;
- Summary/Abstract:The role of copyright law in furthering social justice is blurred. On the one hand (and primarily), copyright law aims to guarantee a more or less exclusive protection for the benefit of creators and other contributors to the creative process (e.g. publishers, producers). On the other hand, copyright law also intends to strike a fair balance between the interests of various stakeholders, both for the benefit of individuals and the society as a whole. Such balancing tools include e.g. various limitations and exceptions (including the fair use doctrine in the US), the limited term of protection, procedural and fundamental rights based safeguards. Most often, however, these balancing tools remain “objective” in nature, and apply to all members of a given class of stakeholders (e.g. right holders, licensed or free users, consumers etc.). Copyright norms (and, occasionally,the lack of exclusive rights) often further socially desirable goals, e.g. strengthening the access to and preservation or dissemination of cultural goods; supporting creative re-uses of contents etc. These norms nevertheless lack “social justice” perspectives. This paper intends to highlight the key social justice role of the first sale or exhaustion doctrine, especially in the light of the most recent case law related to the applicability of the doctrine in the digital domain.
Utjecaj pandemije na donošenje odluke o povratku nezakonito odvedenog djeteta u državu njegovog uobičajenog boravišta
Utjecaj pandemije na donošenje odluke o povratku nezakonito odvedenog djeteta u državu njegovog uobičajenog boravišta
(The Effects of Pandemic to Decision to Return a Wrongfully Taken Child to the State of Its Habitual Residence)
- Author(s):Ramajana Demirović, Anita Duraković
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence
- Page Range:204-227
- No. of Pages:24
- Keywords:Pandemic; Grave danger; Serous danger; Refusing the Return of a Child; Cross-border Transferring or Withholding of a Child; Hague Convention from 1980;
- Summary/Abstract:The paper deals with the possible legal implications of pandemic from the perspective of international family law in cases of wrongful cross-border transferring or withholding of a child. Assuming that competent authorities could in the future use pandemic as a pretext for decision to refuse to return the child to the state of its habitual residence, the authors of this article analyze from doctrinal and practical aspect Article 13, Section 1 of the Hague Convention on the Civil Aspects of International Child Abduction from 1980 which stipulates, inter alia, that judicial or administrative authority of the requested State is not bound to order the return of the child if there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The aim of this paper is to establish if and to what extent pandemic can lead to redefining the concept of „grave danger“ and to point to difficulties in establishing the concept of „grave danger“ in individual cases.
Krug korisnika hetorologne biomedicinski potpomognute oplodnje u pravu Federacije Bosne i Hercegovine
Krug korisnika hetorologne biomedicinski potpomognute oplodnje u pravu Federacije Bosne i Hercegovine
(The Scope of Consumers of Heterologous Bio-medically Assisted Reproduction in the Law of Federation of Bosnia and Herzegovina)
- Author(s):Boris Krešić, Ena Morankić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Health and medicine and law
- Page Range:228-247
- No. of Pages:20
- Keywords:Biomedically assisted reproduction; Discrimination; Heterologous fertilization; Homologous fertilization; Reproductive cells;
- Summary/Abstract:The fast pace of development of bio-medically assisted reproduction combined with conservatism, traditional views and ethical and moral discourse, often results in inability of legislature to respond adequately to the challenges presented and to contain this area in a sphere of law. The law governing bio-medically assisted reproduction was adopted in Federation of Bosnia and Herzegovina as late as in 2018 and its provisions compared to the provisions of similar laws in the neighboring countries are feared to be among the more restrictive ones. Complex issues such as defining the scope of consumers who are eligible for the treatment with bio-medically assisted reproduction related to deciding whether medical procedures of heterologous or only homologous artificial fertilization will be allowed and governing the matter of exporting and importing reproductive cells raise numerous ethical,moral, social and other questions. Finding satisfactory answers to these questions calls for comparison of legal solutions in the positive domestic law with those in force in the neighboring countries which is why this paper puts a special emphasis on the solutions which are fundamentally different. The aim of this paper is to identify relevant theoretical and practical effects that legal solutions have on consumers of bio-medically assisted reproduction.The importance of this research is reflected first and foremost in the currency of the topic since the questions in the field of medicine are urgent.Therefore, it is of utmost importance to understand the matter thoroughly and properly, so as to set the course for regulatory changes in domestic legislation in the field. Understanding these complex issues and acknowledging impacts that current legal solutions may have in the background of constant and rapid development in this field are particularly important, especially in the light of the imminent need to change existing regulation.
Стицање предмета домаћинства и грађанско сродство
Стицање предмета домаћинства и грађанско сродство
(On Obtaining Rights to Household Items and Adoptive Kinship)
- Author(s):Dimitrije Ćeranić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:248-265
- No. of Pages:18
- Keywords:Obtaining rights to household items; Adoptive kinship; Full adoption; Partial adoption;
- Summary/Abstract:Author attempts to analyze relationship between legal rules which in specific jurisdiction govern obtaining the right to household items and rules which regulate legal consequences of creating adoptive kinship. Since some legal systems stipulate that personal household items of lesser value for everyday use are not considered part of deceased estate, author raises the question as to whether individuals from adoptive kinship can exercise this right. Further aim of this paper is to estimate effects of possible exclusion and limitation of inheritance rights to household items of adoptees in partial adoption. Author also examines the effects that annulling an adoption oder which was created after death of a party to the adoption process, may have on obtaining the right to household items. Author came to the conclusion that, under all legislation analyzed in this paper, both adopter and adoptee from either partial or full adoption relationship are entitled to obtain household items. Exclusion or limitation of inheritance rights of the adoptee in the moment of creating partial adoption produces no legal effects on this right.In addition, the fact that an order of adoption created after the death of the decedent has been declared void has no effect to obtaining rights to household items of lesser value.
Stand-alone Insurance Product for Rescue Operation ?
Stand-alone Insurance Product for Rescue Operation ?
(Stand-alone Insurance Product for Rescue Operation ?)
- Author(s):Sinem Ogis
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:266-270
- No. of Pages:5
- Summary/Abstract:Critiques have echoed over the years within the political spectrum about the governance of immigration. For instance, in 2019, the Dutch-flagged Sea-Watch 3 has been stuck in the Mediterranean.1 After over two weeks at sea, the captain of the ship, Carola Rackete, decided she had no choice but to enter Italian waters illegally to bring the remaining 42 migrants to safety.2 In such cases, when the shipmaster deviates from the route for search and rescue (SAR) operations, the shipowner needs to bear some costs which insurers do not provide coverage for.
Ауторскоправни аспекти наставе на даљину
Ауторскоправни аспекти наставе на даљину
(Copyright Aspects of Distance Learning)
- Author(s):Svjetlana Ivanović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, ICT Information and Communications Technologies, Distance learning / e-learning
- Page Range:271-289
- No. of Pages:19
- Keywords:Copyright; Related rights; Digital education; Exceptions and limitations;
- Summary/Abstract:Digitalization process enables wide use of modern technologies in various segments of everyday life. One of the areas in which the application of digital technologies is of increasing importance is education. In addition to the classroom and traditional forms of teaching, we are increasingly witnessing the use of digital platforms and various tools, especially within certain forms of distance learning. Unfortunately, we have seen that digital education is not just a matter of choice, but sometimes, due to the crisis circumstances, a matter of necessity. Each form of teaching implies the use of copyrighted works and other protected subject matter. Therefore, teaching in general, and distance education in particular, opens up a whole range of copyright-related questions. One of the key issues that are the subject of consideration in the paper is whether and to what extent it is possible to use protected content for teaching purposes, especially in the online environment.If the teaching takes place through certain online content sharing platforms,the question of service provider liability for possible copyright infringement arises. There is a special form of copyright exceptions or limitations for the purpose of teaching, but it is not appropriate for digital teaching in all countries. Directive on copyright and related rights in the Digital Single Market prescribes copyright exception or limitation in order to allow the digital use of works and other subject matter in digital and cross-border teaching activities. The paper analyzes certain copyright exceptions and limitations for the purpose of education in domestic law and in European Union law.
Међународни стечај банака у контексту УНЦИТРАЛ модел закона о прекограничној инсолвентности и јединственог механизма резолуције ЕУ
Међународни стечај банака у контексту УНЦИТРАЛ модел закона о прекограничној инсолвентности и јединственог механизма резолуције ЕУ
(International Insolvency Law in the Context of UNCITRAL Model of the Law on Cross-border Insolvency and EU Single Resolution Mechanism)
- Author(s):Damjan Danilović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, EU-Legislation
- Page Range:290-307
- No. of Pages:18
- Keywords:International bankruptcy; Banks;
- Summary/Abstract:This paper analyzes key aspects of international insolvency of banks. Peculiarities of loan and deposit transactions along with internationalization of their operations make banks prone to generating negative systemic effects, situation which calls for consolidated monitoring in banking. This approach may lead to specific solutions concerning international bankruptcy in banking. International jurisdiction over bankruptcy of banks is determined in a different manner compared to jurisdiction over non-financial entities and is to be carried out on the principle of universality. International bankruptcy of banks will be analyzed in the context of relevant sources of law such as UNCITRAL model on cross-border insolvency which represents important legal instrument of harmonization of laws in this area and EU single resolution mechanism in which international bankruptcy procedure reached the ultimate stage of integration.
Наследноправна дејства уговора у наследном праву
Наследноправна дејства уговора у наследном праву
(Inheritance-related Effects of Contracts in Inheritance Law)
- Author(s):Tamara Đurđić-Milošević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:308-320
- No. of Pages:13
- Keywords:Contracts in inheritance law; Succession agreements; Inheritance contract; Contract on assignment and distribution of property for life; Lifelong support agreement; Inheritance-related effects;
- Summary/Abstract:Disposition in contemplation of death is equated in Serbian law with testamentary disposition. This identification is a consequence of the traditionally ingrained understanding that the last will can be manifested only in the form of a last will as a one-sided, personal, revocable statement of will that is not conditioned by the will of other persons. Hence, in Serbian law, a will is the only legal transaction that can serve as grounds for claiming inheritance. In other legal systems, primarily German legal tradition, in addition to bequest as an instrument of voluntary inheritance, there is contract of inheritance as the strongest basis for inheritance, but there are also other types of contract-governed inheritance-related consequences of death of a person (contract on future inheritance / legacy, contract on anticipated renunciation of inheritance in different modalities). Positive inheritance law of the Republic of Serbia does not allow for inheritance contracts as instruments of inheritance planning, but governs certain agreements that determine the legal status of heirs, which is why they are of special importance for inheritance law - such as lifelong support agreements and contract on assignment and distribution of property for life. In this paper, author tries to determine the inheritance-related effects of these contracts (their intensity and scope) and thus find the justification for the fact that these contracts are traditionally governed by the inheritance laws. Finally, by comparing these agreements as permissible instruments of property disposal in Serbian law with inheritance agreements of modern legal systems, an attempt is made to determine the boundary line in the domain of inheritance-related effects of these institutes.
Оправданост закључивања TRIPS-плус споразума
Оправданост закључивања TRIPS-плус споразума
(Justification for Conclusion on TRIPS-plus Agreement)
- Author(s):Njegoslav Jović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:321-334
- No. of Pages:14
- Keywords:TRIPS; TRIPS-plus agreements; Intellectual property protection; Bilateral agreements;
- Summary/Abstract:The adoption of TRIPS within the WTO and not within WIPO was not accidental and is the result of the most developed countries assessment that TRIPS could not be adopted within WIPO due to the decision-making and opposition procedures of underdeveloped and developing countries. TRIPS prescribes minimum rights for the protection of all branches of intellectual property, referring to the existing conventions which regulate intellectual property, and regulate certain rights itself. Developed countries have especially insisted on the adoption of the TRIPS and its mandatory acceptance by all countries as a condition for WTO membership. With the adoption of TRIPS, developed countries have forced underdeveloped and developing countries to raise the level of intellectual property protection in their legislation. However, this multilateral approach was not enough for developed countries, so they continued to put pressure by concluding bilateral agreements with clauses that provide for a higher degree of protection of intellectual property, the so-called TRIPS -plus agreements. The term is of a colloquial nature and does not appear in these agreements. Instead, the said agreements contain provisions on the protection of intellectual property within the trade agreement that are above the minimum standards provided by the TRIPS agreement. The subject of this research is to explore the justification for concluding TRIPS - plus agreements and their impact on the economies of underdeveloped and developing countries, knowing that the initiative for their conclusion comes from the US and EU member states.
Међународни стечај у праву Републике Српске: међународна надлежност суда и мјеродавно право
Међународни стечај у праву Републике Српске: међународна надлежност суда и мјеродавно право
(International Bankruptcy in the Law of the Republic of Srpska: International Jurisdiction of the Court and Applicable Law)
- Author(s):Dragana Damjanović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics
- Page Range:335-353
- No. of Pages:19
- Keywords:International bankruptcy; International jurisdiction; Special bankruptcy proceedings; Applicable law; Bankruptcy proceedings;
- Summary/Abstract:International bankruptcy in the law of the Republika Srpska is regulated by the Bankruptcy Act from 2016. Although the goal of the Bankruptcy Act 2016 was to pass a more efficient regulation that is harmonized with solutions from the region, as well as with the law of the European Union, the author gets the impression that the new rules of international bankruptcy are much more vague and much worse than the Bankruptcy Procedure Act of 2002. This is especially evident in the part that regulates the international and special jurisdiction of the courts of the Republika Srpska, as well as the applicable law. In addition to the analysis of the rules of international bankruptcy, the author will try to point out the illogicality of the same, especially having in mind the comparative regulations which, evidently, were a model for the domestic legislator.
Критеријуми за утврђивање материјалних недостатака/несаобразност робе уговору
Критеријуми за утврђивање материјалних недостатака/несаобразност робе уговору
(Criteria for Determining the Existence of Material Defects or Non-conformity of Goods to the Contract)
- Author(s):Tijana Baćović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:354-373
- No. of Pages:20
- Keywords:Material defects; Non-conformity; Consumer; European Union;
- Summary/Abstract:One of the basic obligations of the seller regarding the contract of sale is to hand over the thing to the buyer without material defects. If it happens that the sold and delivered item does not have the appropriate quality, the rules on liability for material defects are applied in order to establish a balance in the mutual performance of the contracting parties. The subject of this paper will be the criteria for determining the existence of material defects or non-conformity of goods to the contract in domestic law and European Union law. We will indicate whether and to what extent domestic regulations are harmonized with the law of the European Union regarding this issue and what activities should be undertaken in order to provide a higher level of protection for consumer in the domestic market.
Положај и улога повјерилаца у поступку судског реструктурирања
Положај и улога повјерилаца у поступку судског реструктурирања
(Position and Role of Creditors in the Judicial Restructuring Procedure)
- Author(s):Đorđe Perišić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:374-391
- No. of Pages:18
- Keywords:Creditors; Restructuring; Restructuring plan; Interest of creditors;
- Summary/Abstract:In this paper, the author deals with the position of creditors in the process of judicial restructuring, as a framework that offers the possibility to change the relationship between creditors and debtors in financial difficulties. Creditors in this procedure enjoy a special status, because the protection of their interests is one of the goals of the procedure. However, the means and the way it is done puts them in a worse position than the one they have in bankruptcy proceedings. At this point we will highlight that: the role of the court and the commissioner in the proceedings is overemphasized, there are no creditor bodies such as the board of creditors, nor are the creditors classified in the appropriate ranks. The author puts in the foreground the provisions of the Insolvency law of the Republic of Srpska which refers to judicial restructuring. Of the comparative legislation, the Croatian Insolvency Act, the German Insolvency Code and the Bankruptcy Code of the United States of America were consulted. The legal regulation of restructuring is important for the economy of each country, for its stability, productivity, competitiveness, but it is also far-reaching from the social aspect. In that sense, the law of the Republika Srpska is keeping pace with the legal development in this area, which is shown by the recent legal regulation of out-of-court restructuring, which is a world trend, but also a request coming from the European Union.
Правни режим на објекту у изградњи у праву Републике Српске
Правни режим на објекту у изградњи у праву Републике Српске
(Legal Status on the Building Under Construction in the Law of the Republic of Srpska)
- Author(s):Bosiljka Čubrilović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:392-407
- No. of Pages:16
- Keywords:Real estate; Mortgage; Building under construction; Apartment ownership; Protection of property; The right to a home
- Summary/Abstract:In the real estate market in the Republic of Srpska, buildings under construction as objects of full or partial rights of disposal of property are fairly commonplace. As the focus here is on the so-called future thing, many practical questions are raised to which neither jurisprudence, nor legislation, nor judicature offered adequate answers. One especially interesting question refers to the possibility of constituting a mortgage on a building under construction. Namely, in the case of a building under construction, the subject of the mortgage is the land registry body as a whole, and following the principle of the extensiveness of the mortgage, it includes land and everything on the land (built on land). This especially refers to a separate part of the building (apartment ownership) as a mortgage object, considering that the division can be done only after the construction of the object and after use permit has been obtained. Until then, formally and legally it is not possible to dispose of (transfer of property or the constitution of mortgages)a separate part of real estate, although in practice, there is such a possibility via making the notification existence of contractual rights or making a notification acquisition priority order (mortgage). In the paper the author, by analyzing existing legislation, points out to possible solutions in this area.
Повратак одузете црквене имовине, чин правде и огромна добит за румунско друштво
Повратак одузете црквене имовине, чин правде и огромна добит за румунско друштво
(Retrocession of Confiscated Church Property, an Act of Justice and Enormous Benefit for the Romanian Society)
- Author(s):Joakim Beženariu
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence
- Page Range:408-420
- No. of Pages:13
- Keywords:Secularization; Confiscations; Retro-cession; Monastic estates; Orthodox Church; State; Patriarchate;
- Summary/Abstract:This paper is designed along this line: the retro-cession of confiscated Church property is an act of justice and an enormous benefit for the Romanian society, since the Church carries out a very important social, educational and missionary work. Almost 1 million Romanians benefit from the social work of the Church! The Church faced a lot of difficulties in carrying out its work, difficulties which resulted both from the implementation of the Law on the secularization of monastic estates and from the confiscations that were effected during the atheist communist regime. While the properties of the monasteries both dedicated and not dedicated to the Holy Places were confiscated by the Romanian State in a non-discriminatory manner and without compensatory measures under the Law on the secularization of monastic estates of 1863, after 1948, the communist regime confiscated agricultural and forestland, as well as church buildings, except for the places of worship. After both stages, the Orthodox parishes and monasteries could no longer sustain themselves and could no longer carry out their multiple social, educational and missionary work. This justified the assumption by the Romanian State,in 1864 and 1893, of the obligation of compensatory measures, namely of making a modest contribution to the remuneration of the staff of religious denominations and of providing financial support for the maintenance and activities of church units. Starting with 1990, the Romanian Orthodox Church regained the possibility of freely carrying out its mission and of conducting an extensive social-philanthropic and cultural-educational work for the Romanian society. Therefore, there are over 670 social, medical and educational institutions currently operating within the Romanian Patriarchate and there are over 750 pastoral-missionary, social-charitable and cultural-educational projects and programs being implemented for the Romanian communities within the country and, in recent years, abroad.In order to maintain, consolidate and restore the places of worship,mostly historical monuments in the national cultural heritage, and to support the Church’s many activities conducted in favor of the Romanian society,it is vital to return Church property confiscated by the former communist regime in Romania. The properties that are returned will not be sold to foreigners, but will be used for the establishment of educational, social-charitable, medical and cultural institutions. The Romanian State did not return to the Church its property confiscated during the secularization of church estates by Prince Alexandru Ioan Cuza, and the Church property abusively confiscated by the communist regime (buildings, agricultural lands, forests)was returned only in part in the last 20 years. In conclusion, the retro-cession of Church properties confiscated by the communist regime is an act of justice and, at the same time, of support to the Church’s many social activities aimed at helping the poor and disadvantaged, as well as children and young people in schools. In any case, the property returned to the Romanian Orthodox Church will not be alienated, but will help the Romanians, because justice and generosity are essential components of human dignity, both individually and socially. Therefore, the current relations between the Romanian State and the cults largely reflect the heritage of the last 150 years of national history,originating in the reforms of Prince Alexandru Ioan Cuza, which aimed at modernizing Romania, as well as the assumption by the State of the partial compensation for the losses suffered by the Church following the secularization of its estates. The communist regime deprived the Church of everything else it owned, except the places of worship, but maintained forms of financial support from the State for all religious denominations, both in terms of remuneration for church staff and in terms of restoration, conservation and maintenance of places of worship, particularly historical monuments. Today, the Romanian State financially supports only part of the salaries of church staff, and the maintenance, consolidation, restoration and repair of places of worship and other church buildings, which ensure the active presence of the Church in society and the presence of God in people’s hearts, is left mostly to the responsibility of the communities of believers, who are also affected by the economic-financial crisis that the contemporary society is facing.
The Roman Roots of Minors' Criminal Liability
The Roman Roots of Minors' Criminal Liability
(The Roman Roots of Minors' Criminal Liability)
- Author(s):Mariateresa Carbone
- Language:English
- Subject(s):Criminal Law, Roman law
- Page Range:423-435
- No. of Pages:13
- Keywords:Impuber;Dolus capax;Culpae capax;Pubertati proximus;Minors' imputability;Impubise's delict liability;
- Summary/Abstract:The impubes’s delict liability, in the classic period, is subordinated to being doli or culpae capax; two decemviral provisions, instead, established a less severe sanction with respect to pubes in case of impubes’s criminal behavior regardless from assessment about their actual ability to commit crime. Some textual clues allow us to speculate on the historical event that determined this evolution whose goal stands as a fundament of our current regulations, where an age range is also expected, characterized from an absolute presumption of not-imputability to the next one (that a recent proposal of law would tend to turndown, bringing it closer to the ages of pubertati proximi) where the imputability depends on the ability to understand and want the subject.
Specificatio in the Law of Real Rights of the Republic of Srpska in the Light of the Roman Law
Specificatio in the Law of Real Rights of the Republic of Srpska in the Light of the Roman Law
(Specificatio in the Law of Real Rights of the Republic of Srpska in the Light of the Roman Law)
- Author(s):Samir Aličić
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Roman law
- Page Range:436-446
- No. of Pages:11
- Keywords:Roman law;Real rights;Comparative law;Original Acquisition of property;Specificatio;
- Summary/Abstract:The object of this paper are the rules of the article 119 of the Law of Real Rights of the Republic of Srpska on specificatio, i. e. on the acquisition of property by change of species of a thing. These rules are subject to an ontological interpretation, in regard with the original context which they had in the Roman law, and are contrasted with the solutions of the comparative law. The scope of the paper is to offer interpretation of the text that would cover the situations that could appear in the legal praxis, and which are not explicitly regulated by the Law, and to offer possible solutions de lege ferenda.
"Bene Comune" e ambiente: una lettura romanistica della enciclica laudatio si'
"Bene Comune" e ambiente: una lettura romanistica della enciclica laudatio si'
("Common Good" and Environment: a Romanist Reading of the Encyclical Laudatio Si')
- Author(s):Giovanni Carlo Seazzu
- Language:Italian
- Subject(s):Law, Constitution, Jurisprudence, Roman law
- Page Range:447-470
- No. of Pages:24
- Keywords:Ecology;Environment; Roman law; Common goods; "Laudatio si'" Encyclical;
- Summary/Abstract:In accordance with a legal construction, of feudal origin and dominant today, the universal nature of the collectivity is understandable and understood exclusively as an abstract legal person, and, accordingly, the regime of it's will has to be and is exclusively in hands of smalls number of representatives. Such a construction negates to any concrete collective body the management, in general, of the proper goods and, in particular, of those essential as environment.The hope entrusted (in a manner of highest authority too, with the Encyclical letter “Laudato si’”) to the Roman legal categories of res communes and actio popularis, to invert the logic of the feudal construct, seems to be professed by legal-historical doctrine of the nineteenth century by attribution of such constructs to the Roman law. But this doctrine is out in doubt by those claiming that, on the contrary, the rule of the roman law on the unitary ownership and management of the common goods by, precisely, the same collective understood concretely. In this article, a first, positive confirmation of the verisimilitude of this new claim is being obtained by an examination of the studies dedicated to the structure and the dynamic of homologous private and public collectivities: municipia and collegia.
Термини облигационог права у држави Првог српског устанка
Термини облигационог права у држави Првог српског устанка
(The Terms of Law of Obligations in the State of the First Serbian Uprising)
- Author(s):Uroš Stanković
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Political history, 19th Century
- Page Range:471-486
- No. of Pages:16
- Keywords:The First Serbian Uprising; Legal terminology; Law of obligations; Turkish loanwords; Slavic loanwords;
- Summary/Abstract:The paper sheds light on the terms primarily belonging to the terminology of law of obligations appearing in the texts originating from the state of the First Serbian Uprising. The author shall list the terms, provide the explanation of their etymology and as for loanwords, specify when they entered Serbian language. The texts created in the state of the Uprising contain the terms equivalent to: bound by a contract obligation, parties to an obligation, modifications of legal transactions, certain sorts of contracts, contracting parties,security, claim and debenture.Bound by a contract was termed ‘obeščati se/obještati se/obješčati se’,‘obvezati se/obavezati se’, ‘obligirati se/oblegirati se’ (‘to promise oneself’) and ‘podvezati se’ (‘to tie oneself from below’). The terms for the parties of an obligation were ‘dužnik’ (‘debtor’) and ‘kreditor’ (‘creditor’). ‘Termin’ (‘term’), ‘rok’ (‘deadline’) and ‘ugovor’ (‘condition’) were used for the modifications of legal transactions. The terminology of security consisted o ffour terms: ‘zaloga/zalog’ (‘pawn’), ‘kapara’ (‘deposit’), ‘pišmanluk’ (‘cancellation fee’) and ‘jemac’ (‘bondsman’). ‘Tražiti’ and ‘iskati’ meaning ‘to search for’ and ‘istraživati/iztraživati’ (‘to inquire’, ‘to investigate’) were the terms in use for ‘claim’. A borrowing from Latin ‘obligacija’ (‘obligation’) had the meaning of debenture. The terms mostly come from folk language, which is understandable; taking into consideration that law of obligations is very present in everyday life of the people as the law related to goods exchange. Turkish loan words were to the most extent used for naming various sorts of contracts and the parties to contracts, which is doubtlessly the result of business contacts with the Turks during the Turkish rule over Serbia. The other borrowings were present in all fields of the terminology of law of obligations and were in usage not only for the terms for which Serbian words had not existed yet, but also for those already being a part of Serbian vocabulary. As to the latter, their presence was no doubt consequence of the striving to use the ’language of educatedness’ in the formal texts.
Епитропи у дубровачком праву
Епитропи у дубровачком праву
(Epitropes in Dubrovnik Law)
- Author(s):Mirjana Pupić
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, History of Law
- Page Range:487-500
- No. of Pages:14
- Keywords:Epitropi; Dubrovnik; Statutorum civitatis Ragusii;
- Summary/Abstract:With the help of archival material, author in this work reviews some fundamental questions referring to the institute of epitropes in Dubrovnik law. First, it is pointed to the origin of this institute which is very complex. The author believes that it may bear relation to Roman post classical law on one and Byzantine law on the other hand. Further, the provisions about epitropes which are contained in Statutorum civitatis Ragusii and Liber Omnium Reformationum are analysed. For the purpose of comparison there provisions of epitropes in the statutes of other coastal cities are also studied.The numerous perceived similarities and some important differences are outlined together with the concluding considerations.