Хармонизација грађанског права у региону (Међународни научни скуп је одржан на Правном факултетау Универзитета у Источном Сарајеву 26. октобра 2012. године на Палама)
Harmonization of Civil Law in the Region (The International scientific meeting was held at the Law Faculty of the University of East Sarajevo on October 26th 2012 in Pale)
Contributor(s): Dijana Marković-Bajalović (Editor)
Subject(s): Law, Constitution, Jurisprudence, Civil Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: civil law; canon law; customary law;
Summary/Abstract: Већ готово читав век одвија се процес приближавања и унификације грађанског права на простору бивше Југославије. Стварањем јединствене југословенске државе после Првог светског рата, неминовно је покренуто питање унификације законодавства. Посебно је сложен био проблем унификације грађанског права, јер је нова југословенска држава обу-хватила више различитих правних подручја, на којима важило ауст-ријско, шеријатско, српско или црногорско грађанско право. Рад на доношењу јединственог грађанског законика започет је пре Другог светског рата, али је прекинут због његовог избијања. Након стварања социјалистичке државе, одмах по окончању Другог светског рата, успешно је извршена унификација брачног, породичног и наследног права. Међутим, током седамдесетих година прошлог века, републике и покрајине добијају законодавне надлежности и доносе своје посебне законе у области брачних, породичних и наследних односа. Унификација је за време СФРЈ успешно спроведена у области облигационих односа и, само у основним цртама, у области стварног права. Крупну препреку унифи-кацији целокупног грађанског права у време социјалистичке Југославије представљао је економски систем, који је почивао на концепту друштвене својине и самоуправљања. У том систему примена правних института класичног грађанског права није била могућа. Дезинтеграциони процеси коју су започели већ седамдесетих година прошлог века и експе-римент са самоуправним системом привређивања, вероватно су кључни разлози због којих покушај доношења јединственог грађанског законика у време СФРЈ није уродио плодом.
- Print-ISBN-13: 978-99938-57-28-0
- Page Count: 509
- Publication Year: 2013
- Language: Serbian
Морал (етика) у грађанском праву
Морал (етика) у грађанском праву
(Ethics in Civil Law)
- Author(s):Oliver Antić
- Language:Serbian
- Subject(s):Civil Law, Ethics / Practical Philosophy, Philosophy of Law
- Page Range:3-55
- No. of Pages:53
- Keywords:Morale;Ethics;Civil law;Private autonomy;Good faith;
- Summary/Abstract:The author discusses two basic principles on which Civil Law rests – principle of private autonomy (autonomy of the will) and principle of good faith. Private autonomy, originating from the theory of autonomy of the will, stands for individualistic, hence egoistic principles in law as confirmation of subjective civil rights and as a token of position and role an individual plays in constituting, changing and cessation of subjective civil rights. The principle of good faith stands in sharp contrast to the principle of autonomy of the will in the sense of the struggle of the opposites, thus striking a balance between egoistic on one and ethic, social i.e. common or collective on the other side. Law without ethics is injust, immoral law, „law“ which can easily slip into the realm of antilaw, violence or even crime, the fact that has, sadly, been confirmed in the history of our civilization too many times. Morale, ethics without legal sanction, hence, without law is but a forsaken righteous man warning and crying, but unable to avert deceit, violence or even crime. Ethical system devoid of law resembles a senior advisor whose advice is disregarded even when properly understood. In the world of conflicting interests legal and moral order rely on fellowship, interlacing, coegzistance. Those who fail to understand ethics cannot understand the essence of law; those who fail to understand the law will certainly not understand the point, the gist, the life of ethics. Hence law and ethics must never be two separate entities.
Депозит у римском, византијском и српском средњовјековном праву
Депозит у римском, византијском и српском средњовјековном праву
(Depositum in Roman, Byzantine and Serbian Medieval Law)
- Author(s):Srđan Šarkić
- Language:Serbian
- Subject(s):History of Law, Ancient World, Middle Ages
- Page Range:59-69
- No. of Pages:11
- Keywords:Depositum;Poklad;Pohrata;Postava;Ecloga;Procherion;Syntagma canonum;Roman Law;Byzantine law;Serbian law; Nomocanon;
- Summary/Abstract:According to the opinion of Roman lawyers, depositum was a contract in which a depositor gave a res to a depositee to be kept without renumeration and to be returned on demand. Special cases of depositum were: depositum sequestre, depositum necessarium or depositum miserabile and depositum irregulare. Byzantine law pays a special attention to the contract of depositum. Ecloga contains chapter XI referring to the depositum, entitled Περί πάσης παραθήκης. Chapter XVIII of Procheiron entitled Περί καταθήκης, contains fourteen rules concerning the depositum, and the chapter XXV from Epanagoge, with the same title, contains sixteen fragments on the same topic. However, Matthew Blastares in his Syntagma canonum incorporated only two fragments referring to the depositum, taken from the Procheiron, in a short chapter under the title Περί παρακάταθήκης: 1) the general definition of depositum, and 2) the law on responsibility of a depositee for a loss of a thing in case of vis maior, culpa or neglegentia.The contract of depositum was mentioned in medieval Serbia mostly in the translations of Byzantine legal miscellanies, while Serbian legal sources mention it very rarely.In chapter 48 of the Nomokanon of Saint Sava, entitled Selection of laws that God gave to Moses, we find a short title On depositum (O poklade). Much more important is chapter 55 in which Saint Sava has adopted the complete text of the Procheiron. Title XVIII On depositum (O pokladeži) contains fourteen fragments translated from the Procheiron. The Serbian redactors of the complete Syntagma of Matthew Blastares omitted nothing from the original Greek text. However, they added one more provision which increased the responsibility of the depositee. Serbian legal sources mention the contract of depositum especially in the relationships between the citizens of Serbia and the small City-Republic of Ragusa (Dubrovnik). The remaining documents were written either in Latin or in the old Serbian language.In the documents, written in the old Serbian language, besides the word poklad, used in the translations of Byzantine legal miscellanies, we can find, for depositum, the nouns postava and pohrana as well as the verb postaviti. The most important document, treating the depositum, is a very long list of deposited objects, left by Serbian Despot Đurađ Branković to be kept by the Ragusans (1441, January 25). The list was made by Ragusan notaries.
Облици и врсте тестамента у црногорском обичајном праву
Облици и врсте тестамента у црногорском обичајном праву
(Forms and Types of Testaments in Montenegrin Customary Law)
- Author(s):Savo D. Marković
- Language:Serbian
- Subject(s):History of Law, Civil Law
- Page Range:71-84
- No. of Pages:14
- Keywords:Montenegrin customs' law;Testament;Types of testament;Oral testament;Written and signed testament;Testament written in the presence of witnesses;Written official testament;
- Summary/Abstract:Montenegrin prescriptive law recognizes all kinds of testaments established by Justinian law and adopted by the majority of European laws from the Roman law. Two types of testament dominate in the Montenegrin prescriptive law - these are private and public testaments. The first one is made out of the court, and the second one is created with the involvement of the court. From the aspect of the way in which the testaments are made, the written testaments may be personally written and signed; written in the presence of witnesses and written with the participation of the court (public testament). An oral testament is a forerunner of the written one and it was the main kind of the testament in Montenegro in XV, XVI, XVII and by middle of the XVIII century, when it was surpassed by the written testament whose significance got increasingly important.
Први уџбеник грађанског и црквеног права - Јефтимија Јoвановића
Први уџбеник грађанског и црквеног права - Јефтимија Јoвановића
(The First Textbook on Civil Law and Canon Law by Jeftimije Jovanović)
- Author(s):Stanka Stjepanović
- Language:Serbian
- Subject(s):Civil Law, Canon Law / Church Law
- Page Range:85-106
- No. of Pages:22
- Keywords:Canon law;Civil law;Marital law;Secular law;Orthodox;Persons;Property,Court;
- Summary/Abstract:The first printed textbook which under the title Kormčej came along with the printed Proceedings Nomokanon of St. Sava from Russia in our region in the late eighteenth century was written by Jeftimije Jovanović. He was legal professional, notary, Grand Judge of city of Novi Sad and the secretary of Archbishop of Bačka. His textbook / reference book is particularly deserving for development of canon and civil law of the Orthodox Church in Slovene countries. The textbook has unjustly fallen into oblivion, and others used it as a basis for their own textbooks. The author gives an overview of its contents pointing out that by the tripartite division into persons, property and the court Jeftimije Janković offered the first system of canon law in Orthodox Church. Author also insists that this work and his author have unjustly been forgotten, although Latin translation of the book enabled both western and eastern world to familiarize with canon law of Orthodox Church. In his textbook, Jeftimije strictly followed teachings laid out in Kormčej (Nomocanon of St. Sava) in its printed form and Russian title. Although he did not intend for his work to become school textbook, Jeftimije was the first to systematically present Orthodox canon law which was followed by the Church and the State alike until the passing of Civil Code and afterwards. Furthermore, great injustice is done to Jeftimije Jovanović the author of first textbook on canon law and civil law for being confused with Jefgenije Jovanović, Archbishop and author of the book “O sudje crkovnih”. Russian and some western canon law scholars used the work of Jeftimije Jovanović in the 20th century. The author of this paper engages in pointing out the tremendous importance of Jeftimije’s work for the development of canon law and laying the foundations of civil law and, following the publication of the book “O stvarima sa rasuđivanjem u braku” especially in the field of marital relations.
Грађанско право на војвођанском правном подручју у Краљевини Срба, Хрвата и Словенаца
Грађанско право на војвођанском правном подручју у Краљевини Срба, Хрвата и Словенаца
(Civil Law in the Territory of Vojvodina in the Kingdom of Serbs, Croats and Slovenes)
- Author(s):Gordana Drakić
- Language:Serbian
- Subject(s):Civil Law
- Page Range:107-118
- No. of Pages:12
- Keywords:The Kingdom of Serbs, Croats and Slovens;Legal particularism;Unification of law;Territory of Vojvodina;Civil law;Marital law;
- Summary/Abstract:From the very beginnings of the Kingdom of Serbs, Croats and Slovenes one of the most outstanding problems in the state that had to be solved was legal particularism. The common state of Serbs, Croats and Slovenes was composed of six different legal territories. It was necessary to adopt new uniform laws in various areas of state life. The special shortened procedure for equating of the law was prescribed by the St. Vitus’ Day (Vidovdan) Constitution. In this procedure the Legislative Committee of the National Assembly had a prominent role.The Kingdom of Serbs, Croats and Slovenes was a state with six different systems of civil law in force in its territory. Existence and application of different legal regulations in the unitary state caused significant problems in practice and everyday life. Nor was there any uniformity in the validity of legislation in the territory of Vojvodina either. In the prevailing part of Vojvodina there was in effect the Hungarian Marital Law Act from 1894 by which civil marriage was introduced and religious differences were abolished as an impediment for marriage. The period from 1918 to 1929 in the history of Kingdom of Serbs, Croats and Slovenes was marked by numerous political and parliamentary crises that had a negative impact on the legislative work of the National Assembly. Also different socio-political circumstances rendered the legislative work in the first ten years of the existence of the Kingdom of Serbs, Croats and Slovenes inert and without more success.
Покушаји да се законским путем ублаже последице зеленаштва у Србији XIX века
Покушаји да се законским путем ублаже последице зеленаштва у Србији XIX века
(Legislative Attempts to Reduce Effects of Usury in 19th Century Serbia)
- Author(s):Maša Kulauzov
- Language:Serbian
- Subject(s):Civil Law, 19th Century
- Page Range:119-129
- No. of Pages:11
- Keywords:Usury;Peasants;Over indebtedness;Peasants' real property;Legislature;
- Summary/Abstract:In this paper author pointed out in which ways major changes in ownership structure that occurred in 19th century as a result of abolishment of feudal system and declaration of peasants as free owners of their real property, affected peasants' material status and their real estate. Market economy and private property prevailed, and in considerably different social and economic circumstances usury became ever more common. Destructive effects of excessive indebting and rapid pauperization of peasants are emphasized in this paper. However, there were a few legislative attempts to protect farmers from usurers which are examined and critically analyzed. Unfortunately, those legislative measures didn't give considerable results and failed to, over the long term, significantly diminish over indebtedness of villagers.
Један пример непосредне рецепције римског права у Српском грађанском законику (1844)
Један пример непосредне рецепције римског права у Српском грађанском законику (1844)
(One Example of Direct Reception of Roman Law in the Serbian Civil Code (1844))
- Author(s):Samir Aličić
- Language:Serbian
- Subject(s):History of Law, Civil Law
- Page Range:131-143
- No. of Pages:13
- Keywords:Gift;Revocation of gifts;Reception;Serbian Civil Code;Austrian Civil Code;Roman law;
- Summary/Abstract:The aim of this paper is to point out to some specific regulations of institute of gift in the Serbian Civil Code (1844) created under the influence of the original Roman law. These specificities are consequence of modifications and abbreviations of the text of Austrian Civil Code (1811), which was used as a model for the Serbian Civil Code under the influence of roman legal concepts, rather than simply adopting norms of Roman law. The originality of the provisions on donations in the Serbian Civil Code has not been fully utilized by our modern legal theory and practice, but has, however, made a significant impact on the application of law in modern practice, at least in the terms of determining the conditions for annulment of gifts because of ingratitude of donee.
Рад Комисије за унапређење грађанског поступка од 1845. године
Рад Комисије за унапређење грађанског поступка од 1845. године
(Activity of the Commission for the Improvement of Civil Procedures in 1845.)
- Author(s):Uroš Stanković
- Language:Serbian
- Subject(s):Civil Law, 19th Century
- Page Range:145-163
- No. of Pages:19
- Keywords:Commission for the Improvement of Civil Proceedings;History of Serbian civil proceedings;Dopunitelna pravila;Jovan Hadžić;Serbian judicary in the time of the Defenders of the Constitution;
- Summary/Abstract:The article sheds light on the activity of the Commission for the Improvement of Civil Procedure, formed in the very beginning of 1845. Following the abdication of Prince Miloš Obrenović in 1839, the opportunity to restructure civil procedure on entirely new, more contemporary foundations was presented. In the process of procedure-making legislators erred to a large extent. Due to some dysfunctional provisions in terms of civil procedure, multifold multiplication of litigations was caused.Being aware of the problem, legislative power resolved to determine what principal causes provoking ever increasing number of unfinished litigations were. That task was confined to the ad hoc commission, consisting of four state counselors and renowned lawmaker Jovan Hadžić. The Commission's duty was threefold: to examine all Ministry of Justice’s circulars sent from the enactment of so-called Turkish Constitution (1838) thereon and two reports on the outlook of Serbian judiciary, one of which was drafted by Ministry of Justice, as the other was composed by the auxiliary of that very same state body.The Commission fulfilled its duty in one-month term. It nominated major factors inhibiting the activity of Serbian courts and put propositions for overcoming them. Following the acceptance of the Commission’s suggestions, the State Council had consigned to the prince a throughout act made up of thirteen articles aiming to sanitize Serbian judiciary, nine of which were promulgated in the form of provision, whereas other four appeared shaped as the prince’s ordinances.Proposed solutions had not been a success and were consequently altered by the interpretive rule sanctioned on July, 20th 1846. Howsoever, it does not diminish the value of the Commission’s work. It identified neuralgic points of civil procedure, hence alleviating latterly executed attempts to prevail the errors of prime lawgivers in Serbia.
Harmonizacija stvarnog prava u Republici Makedoniji
Harmonizacija stvarnog prava u Republici Makedoniji
(Harmonization of Property Law in the Republic of Macedonia)
- Author(s):Rodna Živkovska, Tina Pržeska
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:167-191
- No. of Pages:25
- Keywords:Property law;Other real rights;Harmonization;
- Summary/Abstract:This text shows that the Macedonian legal system regulating property law consists of the general Law of Ownership and Other Real Rights and special laws that regulate parts of the property law. It is evident from the text that the special laws that regulate certain parts of the property law can be categorized in several groups:1. Special laws that regulate legal regime upon things,2. Special laws that regulate certain forms of ownership,3. Special laws that regulate various ways of acquiring ownership,4. Special laws that regulate other real rights and 5. Special law that regulates the registration of property rights in the real estate cadastre. The group of special laws that regulate legal regime upon things consists of laws that regulate the things of public interest, things of public use, ships, aircrafts and apartments as objects of ownership and other real rights (Law on Agricultural Land, Law on Construction Land, Law on Forests, Law on Protection of Cultural Heritage, Law on Pastures, Law on Water, Law on Public Roads, Law on Cemeteries and Cemetery Services, Law on Internal Sailing, Law on Obligations, and Real Rights in Air Traffic, Law on Housing, etc.).Special laws that regulate certain forms of ownership are: Law on Use and Disposition of Things of Government Bodies, Law on Municipalities, and Law on Companies.Special laws that regulate various ways of acquiring ownership are: Law on Denationalization, Law on Expropriation, Law on Privatization and Long Term Lease on Construction Grounds Owned by the State, Law on Expropriation, Law on Construction, Law on Treatment of Illegal Objects and The Penal Code.Special law that regulates the registration of ownership and other real rights in the real estate cadastre is The Law on Real Estate Cadastre. The analysis of the property law system in Republic of Macedonia in this text shows that there is a great degree of discrepancies between the Law on Ownership and Other Real Rights and the special laws that regulate property law relations. The discrepancies are: 1. Discrepancies between the general Law on Ownership and Other Real Rights and the special laws that regulate the legal regime upon things of public interest for the Republic of Macedonia; 2. Discrepancies between the Law on Ownership and Other Real Rights and special laws that regulate the legal regime of things such as: apartments, boats and aircrafts; 3. Discrepancies between the Law on Ownership and Other Real Rights with special laws that regulate various ways for acquiring ownership; 4. Discrepancies between the Law on Ownership and Other Real Rights and the special law that regulates the registration of ownership and other real rights on real estate in the real estate cadastre (The Law on Real Estate Cadastre) and 5. Discrepancies between the terminologies used in the general Law on Ownership and Other Real Rights and the special laws.Besides the numerous discrepancies between The Law on Ownership and Other Real Rights and special laws, this text shows that the Macedonian property law has a problem with the insufficient regulation of property law institutes such as: the right of long term lease on agricultural land, the future things as object of ownership and other real rights, the infrastructures as special type of things, etc. The authors are of the opinion that the process of harmonization of the Macedonian property law should start by amending the Law on Ownership and Other Real Rights. Amendments are also needed in the special laws in order to harmonize them with the general law and with each other.The general conclusion of the authors is that there is a need for harmonization of the property law in the Macedonian legal system which should be performed before or during the codification of the civil law.
Odnos između upravnog (javnog) prava i građanskog (privatnog) prava vs. kodifikacije građanskog prava
Odnos između upravnog (javnog) prava i građanskog (privatnog) prava vs. kodifikacije građanskog prava
(Relation Between Administrative (Public) Law and Civil (Private) Law vs Civil Law Codification)
- Author(s):Borče Davitkovski, Elena Davitkovska, Dragan Gocevski
- Language:Serbian
- Subject(s):Civil Law, Public Law
- Page Range:193-204
- No. of Pages:12
- Keywords:Administrative law;Civil law;Civil law codification;Contracts;Concessions;Public procurement;Expropriation;
- Summary/Abstract:In the process of codification of civil law, one must take into account bordering points where public and private law intersect. This intersecting relationship between administrative (public) law and civil (private) law is of utmost significance for any civil law codification. This paper focuses on elaborating these intersecting points in Macedonian Law. Relations between administrative and civil law appear most convergent during direct comparison of administrative relations with civil relations. This is most evident in determining the legal character of administrative contracts as a legal institute derived from public law, yet reflected directly on contract law as part of civil law (public procurement contracts, concessions, public private partnerships etc.). Administrative contracts are concluded in compliance with administrative procedure law, and potential failure to fulfill contract obligations is settled in civil litigation. Another intersecting point of the aforementioned laws is expropriation as administrative constriction of property, or procedure in which private property is transformed into public-state owned property according to administrative law.
Значење појмова унификације, кодификације и хармонизације правних прописа
Значење појмова унификације, кодификације и хармонизације правних прописа
(Meanings of the Concepts of Unification, Harmonization and Codification)
- Author(s):Sava Aksić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:205-215
- No. of Pages:11
- Keywords:Unification;Codification;Harmonization;Nation;Legal brunch;System of law;Law;Validity;Logical connection;Legal solution;Worth;Source of law;
- Summary/Abstract:Concepts of unification, codification and harmonization of legal regulations are sometimes in theory of law and in practice, used imprecisely.Unification of regulations is the process of their equalization by which, instead of validity of several legal systems, only one legal system appears applicable in those areas in which previous systems were applicable. Unification implies previous existence of several different legislative powers, formal legal sources and independent legal areas which then, in the process of unification, become only one legal solution.Codification signifies systematization and reconciling, in technical meaning, of regulations from one or several related legal branches. Such an essential connection between concepts already exists, thanks to which connecting those concepts makes part of valid systematic whole of legal concepts.Harmonization, as opposed to unification, represents only essential arranging of legal regulations, that is adoption of appropriate valuable judgments which exist in legal system with which harmonization is to take place. As a result of harmonization of laws, legal system is not completely equalized, but it obtains the same material originality, which means that specific characteristics, such as consequences of different national and legal history, culture, development of legal systems, still remain. Unlike unification, where instead of more then one, only one legal system occurs, by harmonization the existing legal systems do not lose their positivity, but still apply independently.
Уговор о игри и опклади као правна празнина
Уговор о игри и опклади као правна празнина
(Gaming and Wagering Contract as a Legal Loophole)
- Author(s):Nebojša Jovanović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:219-234
- No. of Pages:16
- Keywords:Contract;Gaming;Wagering;Betting;Legal loophole;Invalidity;
- Summary/Abstract:In this paper the author points out that gaming and wagering contract became a legal loophole within the current laws of the former Yugoslav states. This contract was considered as very immoral one in the time of the socialist Yugoslavia and for that reason any gaming (for instance, gambling, card games) was being strictly prohibited and sanctioned, with the exception of the lottery which was organized by the state. Nowadays, however, not only the state (i.e. state enterprises), but also many private persons deal with gaming and wagering, earning big revenues in their business. While all states of former Yugoslavia have regulated gaming and wagering business by public law provisions, they have not done it by private law provisions in relation to the gaming and wagering contract. That is why the author discusses the possible methods of filling the legal loophole. He thinks that the most convenient method is application of rules of the civil codes, which were in force in Kingdom of Yugoslavia on the ground of legal continuance of the present states with the law of the former Republic and Kingdom of Yugoslavia.
Zakon o plovidbi i lukama unutarnjih voda Republike Hrvatske iz 2007. godine - osnovne značajke
Zakon o plovidbi i lukama unutarnjih voda Republike Hrvatske iz 2007. godine - osnovne značajke
(The Basic Characteristics of the New Croatian Act on Navigation and Ports in Internal Waters (2007))
- Author(s):Dragan Bolanča
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Maritime Law
- Page Range:235-252
- No. of Pages:18
- Keywords:Croatia;Navigation in internal waters;EU law
- Summary/Abstract:In this paper the author describes in detail the basic characteristics of the new Croatian Navigation and Ports in Internal Waters Act (2007). He elaborates nine parts of the mentioned act: 1. basic provisions, 2. safety of navigation, 3. nationality, identification, registration and deregistration of vessels, 4. waterways, ports and harbors, 5. carriage and contracts on carriage, 6. navigation incidents, 7. port offices and inspection control, 8. navigational misdemeanors and 9. transitional and final provisions. In conclusion he points out that new act follows acquis communitaire and represents an improvement in the development of Croatian navigation in internal waters.
Заштита и престанак права службености у праву Републике Српске
Заштита и престанак права службености у праву Републике Српске
(Protection and Cessation of the Property Utilization Rights in the Law of the Republic of Srpska)
- Author(s):Duško Medić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:253-277
- No. of Pages:25
- Keywords:Protection of property utilization rights;Cessation of property utilization rights;Utilized property;Exploiative property;Altered circumstances;
- Summary/Abstract:This article deals with protection and cessation of the property exploitation rights according to the Law on Proprietary Rights of the Republic of Srpska, especially focusing on the issue of cessation of the property utilization rights in case that they are no longer needed, at the request of the owner of the utilized property. In the contemporary court`s practice the majority of lawsuits are brought as a result of aforementioned ending which creates most of the dilemmas.. Undoubtedly, no matter how strongly the owner of the utilization right opposes its ending, those rights should be brought to an end when they become meaningless. In addition, the article also deals with issues of protection of the property utilization rights and other ways of their cessation
(Не)могућност располагања правом на законско издржавање
(Не)могућност располагања правом на законско издржавање
((Im)possibility to Dispose With Alimony)
- Author(s):Olga Jović S.
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:279-291
- No. of Pages:13
- Keywords:Legal right to alimony;Creditor in alimony obligation;Debtor in alimony obligation;Impossibility to dispose with the alimony right;Impossibility of revocation of alimony;Alimony agreement;
- Summary/Abstract:It is well known that maintenance has special characteristics that mark its legal nature and which are clearly distinct from other forms of support in civil law. Among the many specific characteristics of maintenance, in this paper author paid attention to maintenance as a personal property right, and as a legal institution that is regulated by the imperative norms. The basic characteristics of the maintenance is that, mainly due to its specific personal and property nature it can not be a matter of unrestricted disposal between the creditor and the person with the obligation to support. The personal character of that kind of obligation results in the following: impossibility of transfer, that is, of change of the subjects involved in alimony relation, as well as the impossibility of renouncing the right to receive support. The area of law concerning legal support does not recognize the disposition of parties involved in such matters because the provisions regulating the institution of the right to receive alimony are of an imperative nature and they strictly prescribe that renouncing the right to receive support is to be considered legally void.
Odgovornost za štetu zbog izbacivanja predmeta ili prosipanja tekućina iz prostorija
Odgovornost za štetu zbog izbacivanja predmeta ili prosipanja tekućina iz prostorija
(Liability for Damage Caused by Throwing Objects or Liquids Out of the Premises)
- Author(s):Slobodan Stanišić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:293-311
- No. of Pages:19
- Keywords:Liability;Damage;Space;Discharge;Spillage;
- Summary/Abstract:The subject matter of the article is a special kind of strict liability for damage of the holder of the premises, who is not responsible for his own actions, but for the actions of other, unknown persons - perpetrators of the damage. The liability of the holder of the premises is justified by the risk of the use or enjoyment of the premises.
Заложно право на непокретним стварима уписаним у регистар
Заложно право на непокретним стварима уписаним у регистар
(Registered Pledge)
- Author(s):Milica Vučković
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:313-329
- No. of Pages:17
- Keywords:Non-possessory security rights;Regfisterde pledge;Pawning of movables;
- Summary/Abstract:The saying res mobiles res villis – movables are worthless is no longer valid for movables. The need for non-possessory pledge of movable property which was the basic of economic activity of the owner existed even in the old Rome. With the development of the economy, an outstanding need for non-possessory pawning of these things emerged. Modern law has developed security rights over movables that are favorable for debtors and also satisfactory and efficient enough for creditors. The object of the paper is registered pledge. The author analyses the law of Republic of Serbia, and certain attention has been given to law regulations of former republics of SFRJ and for the west European laws. In Serbian law the most important statute of this area is the Statute of Registered Pledge. That statute regulates non-possessory pawning of movables with no restriction for the subjects and for objects of registered pledge. The statute also provides a number of ways for the realization of pledge, most important of them being extra-judicial repayment which makes the registered pledge one of the most efficient security rights in modern law. The registered pledge enables the full use of credit potential of movables without endangerment of regular economic activity of the owner – the debtor. The creditor gains needed certainty with the registration of the security right, and at the other side, he has no obligation of preserving the movable. There is a great expectation that this right can achieve main goals of pledge – certain and efficient securing of claims and full use of credit potential of movable property of the debtor.
Трансформација власничких односа у Републици Српској
Трансформација власничких односа у Републици Српској
(Transformation of Property Rights in Republic of Srpska)
- Author(s):Nikola Kovačević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:331-351
- No. of Pages:21
- Keywords:Transformation of property rights;Act on Real Property Rights;Estate;Right to build on another's land;Right of non-possessory lien;
- Summary/Abstract:This article deals with transformation of property rights carried out in BiH entities after the disintegration of Socialist Federal Republic of Yugoslavia and shift to socio-economic system based on private property and free market economy. In the introductory part, the author gives brief overview of transformation of the right of property and other real property rights in former SFRY. At the time, private property was suppressed in favor of social property - legal concept which has never been fully defined. Social property had no rightful owner; it belonged to everybody and nobody at the same time. This resulted in diminishing the importance of real property rights from both the aspect of positive regulations and the aspect of theoretical analysis and practical application. The process of transformation began in late 1990s with the constitution of Bosnia and Herzegovina as a sovereign state. Social ownership of company capital, urban construction land and apartments in Republic of Srpska was first transformed into state-owned property after which privatization of apartments and state-owned property in companies and denationalization of construction land followed. Thus, private property became dominant form of ownership, although state-owned property still exists. By adoption of the Act on Real Property Rights in Republic of Srpska in 2003, radical reform of real property rights was carried out. In the second part of the paper, author presents main postulates on which this Act is based: equality among different forms of property title regardless of their rightful owner, establishment of the principle superficies solo credit, regulation of apartment title as a combination of joint ownership on collective parts of building and sole ownership on apartment, establishment of new real-property rights such as the right to build on another’s land, the right of non-possessory lien etc.
Постоји ли потреба за хармонизацијом права привредних друштава у Босни и Херцеговини?
Постоји ли потреба за хармонизацијом права привредних друштава у Босни и Херцеговини?
(Is There a Need for Harmonization of Company Law in Bosnia and Herzegovina?)
- Author(s):Dijana Marković-Bajalović
- Language:Serbian
- Subject(s):Civil Law, Law on Economics, EU-Legislation
- Page Range:355-375
- No. of Pages:21
- Keywords:Companies;Harmonization;Bosnia and Herzegovina;European Union;
- Summary/Abstract:Entities of Bosnia and Herzegovina possess autonomy in the sphere of regulation of legal status of companies and other business organizations. Existing legislation is featured by deep differences in regimes for establishment and governance of companies, predominantly resulting from imitation of legislation of different neighboring countries, i.e. Serbia and Croatia, and influence of foreign experts involved in process of legislation drafting. The BH Constitution declares the principle of freedom of movement of goods, people, services and capital. Realization of the principle presupposes some degree of harmonization of the entire commercial legislation and, logically, the legislation on companies. The author first analyses the process of harmonization of the company law in the EU countries, which had been necessary for creation and functioning of the EU internal market and realization of four basic freedoms. The analysis helps making useful conclusions on the necessity of the process and its extent. The author then quotes arguments pro and contra harmonization and concludes that the process did not bring significant results. Nevertheless, the process has not been discarded. It advances step by step, by making agreement among member states and the EU organs on the possible way of regulation of certain issues which are considered significant for the functioning if the single market. In the second part of the article the author analyses the most significant differences in company laws of three BH entities. The need for harmonization of company law in Bosnia and Herzegovina has not been recognized by the authorities on the level of entities and on the BH level, although it is evident that harmonization of rules on establishing of companies and their governance would help improving the legal protection of investors and the overall business climate in Bosnia and Herzegovina.
Ликвидациони управник
Ликвидациони управник
(Liquidation Administrator (Manager))
- Author(s):Dara Milenović
- Language:Serbian
- Subject(s):Business Economy / Management, Law on Economics
- Page Range:377-392
- No. of Pages:16
- Keywords:Company;Protector of creditors and company members;Liquidation;Liquidation administrator-manager;
- Summary/Abstract:Liquidation is the final phase of the existence of solvent economic company. The liquidation procedure is initiated by company proprietors themselves (partners, complementarians and the assembly of the limited liability company and joint stock company) with the supervision of the court. It starts on the day of the registration of the decision of the company liquidation and the announcement of the notice of liquidation initiation, according to the Registration Act.During the liquidation process, the company has the same bodies as it used to have before the liquidation.Rules for initiation, carrying out and termination of the company liquidation protect the interests of creditors and company members. The liquidation is carried out by the liquidation administrators or managers (liquidators). They represent the company (legal representatives) and they are responsible for the legality of the activities of the company. Because of the importance in the process of liquidation and in the realization of the goals which are supposed to be reached by it, this paper will elaborate only on the basic questions connected with the institution of liquidation administrator (manager).
Корпоративно управљање у земљама региона
Корпоративно управљање у земљама региона
(Corporate Governance in the Region)
- Author(s):Miodrag Mićović
- Language:Serbian
- Subject(s):Economy, Business Economy / Management
- Page Range:393-407
- No. of Pages:15
- Keywords:Model;System of management;Administration;Director;Supervisory Board;
- Summary/Abstract:This paper analyzes the models of (one-tier, two-tier and mixed) governance in comparative law, but also the systematic and individual solutions for management issues that have been adopted in the region, i.e. in the countries of the former Yugoslavia. Based on the analysis, it is evident that in most countries of the region (Serbia, Croatia, Slovenia, Macedonia) a mixed system of governance is adopted. The system is based on the principle of freedom of contract and effect of the peremptory norms to a certain extent, which leaves enough space for the companies to decide on the model of governance. In any case, the system must comply with the material and personal substrate of the company.
Обавезе са више дужника или поверилаца и извршење према солидарним дужницима
Обавезе са више дужника или поверилаца и извршење према солидарним дужницима
(Obligation With Multiples Debtors or Creditors and Enforcement Towards Joint Debtors)
- Author(s):Arsen Janevski
- Language:Serbian
- Subject(s):Civil Law
- Page Range:411-428
- No. of Pages:18
- Keywords:Joint liability;Joint debtors;Enforcement towards joint debtors;Law on Enforcement;Law on Obligations;Divisible, joint and indivisible obligations;
- Summary/Abstract:The article “Obligations with multiple debtors or creditors and enforcement towards joint debtors” deals with several issues connected to obligations with more debtors and creditors (divisible, joint and indivisible obligations and joint responsibility as provided by the Law on Obligations) and enforcement towards joint debtors according to the Law on Enforcement of the Republic of Macedonia. In the beginning of the article entitled Obligations with Multiple Debtors or Creditors, the divisible obligations are elaborated and further, the author elaborates on the joint obligations and the indivisible obligations. In the article the author briefly elaborates on the joint obligations of two or more persons for the same debt, when the co-creditors are obligated to fulfill their obligation severally or jointly. The issue of enforcement towards joint debtors is elaborated in the article in details. In this part of the article, the provisions of the article 207 from the Law on Enforcement of the Republic of Macedonia are discussed, and an overview is given of the solutions in the Law on Enforcement and Security of the Republic of Serbia and the Law on Enforcement of the Republic of Croatia. At the end of the article, the author gives some suggestions and proposals for the improvement of the Law on Enforcement of the Republic of Macedonia.
Неке дилеме поводом будуће реформе парничне процедуре
Неке дилеме поводом будуће реформе парничне процедуре
(Some Dilemmas Concerning Future Reforms of Civil Proceedings)
- Author(s):Ranka Račić
- Language:Serbian
- Subject(s):Civil Law
- Page Range:429-446
- No. of Pages:18
- Keywords:Default judgement;Review of the trial court decision;Tres-passing against the proceedings;Appellate court decision;
- Summary/Abstract:Act on Civil Proceedings has been applied for nine years now in the entities of Bosnia and Herzegovina. That period is sufficient enough to assess and critically analyze the effects of public reform. Efficiency of civil proceedings was, apparently, one of the objectives of reforms of civil proceedings. However, legislator’s constant demand for the excessive efficiency has rendered the providing of legal protection and its control in the process of appeal more difficult, sometimes even impossible. This paper takes a critical view of certain solutions contained in acts on civil proceedings in both entities of Bosnia and Herzegovina with accent on particular procedural institutes which created serious dilemmas in practice as well as among scientific and professional community. The paper also offers answers to some of the issues concerning the course which should be taken in amending particular statutory provisions
Reforme sistema izvršenja u državama regiona. Konceptualne sličnosti i razlike, kontroverze i dileme
Reforme sistema izvršenja u državama regiona. Konceptualne sličnosti i razlike, kontroverze i dileme
(Reform of the Enforcement System in the Countries of the Region. Conceptual Similarities,Differences, Controversies and Dilemmas)
- Author(s):Tatjana Zoroska-Kamilovska
- Language:Serbian
- Subject(s):Civil Law
- Page Range:447-477
- No. of Pages:31
- Keywords:Enforcement;Reform of enforcement systems;Structure of enforcement;Court;Bailiff;Enforcement procedure;Control mechanism of enforcement procedure;
- Summary/Abstract:This article focuses on the currently most relevant topic in the field of civil protection of rights in the states of the region. After being marginalized for several decades, the issue of civil enforcement in the past years climbed to the top of the list of priorities in legal and political reforms of the judiciary in the countries of the region. This paper analyzes the reforms that were implemented or are being implemented in the states of the region, while at the same time focuses on the few issues that have sparked the biggest dilemmas and controversies in the scientific and expert community: which organizational structures should be entrusted with the enforcement, how to reform the process in terms of functionality and what kind of control mechanism to prescribe in the enforcement procedure? The questions are processed through the standards for enforcement formulated in the European context, as well as through comparative examples of good practice in this area. As for many other issues, the paper shows that the legal implants in this area are irrational and counterproductive. The success of one enforcement model achieved in one country does not necessarily guarantee its success in other countries, even in the case of countries that have decade long shared law policy and procedural tradition.
Punovažnost arbitražnog sporazuma
Punovažnost arbitražnog sporazuma
(Validity of Arbitration Agreement)
- Author(s):Milena Petrović
- Language:Serbian
- Subject(s):Civil Law
- Page Range:479-497
- No. of Pages:19
- Keywords:Arbitration agreement;Form of arbitration agreement;Arbitrationality;Meritory law;
- Summary/Abstract:Arbitration agreement is at the root of every international commercial arbitration. It is the prerequisite for establishing jurisdiction of arbitration and, at the same time, the ground for derogation from state courts’ jurisdiction. By referring their dispute to arbitration, the parties consent to submit to arbitration, to exclude jurisdiction of the ordinary courts and to accept the arbitral award as binding. It is common knowledge that the value of every arbitration rests on the arbitration agreement. Only a valid arbitration agreement will allow you to determine the jurisdiction of arbitration and to reach an enforceable decision. Validity of an arbitration agreement can be the assessed at different stages of the process and by different organs. Thus, the issue of validity may be raised either before or after the arbitral award have been made, and it will be decided by arbitration or the court, depending on the point of time at which validity is being assessed. The subject-matter of this paper is the validity of arbitration agreement. The author focuses on the elements of the agreement which are essential for its validity. However, the author also examines the issue of meritory law by which this validity will be assessed, aiming to improve the safety of parties in international transactions, as well as to ensure that their submission of dispute to arbitration will bring full effect.
Isticanje više tužbenih zahtjeva u jednoj tužbi
Isticanje više tužbenih zahtjeva u jednoj tužbi
(Submitting Multiple Statements of Claim Within Single Claim)
- Author(s):Jadranka Stanišić
- Language:Serbian
- Subject(s):Civil Law
- Page Range:499-509
- No. of Pages:11
- Keywords:Alternative claim;Cumulative claim;Alternative obligation;Procedural facultas alternativa;Alternative authorisation;
- Summary/Abstract:Author discusses issues of objective and subjective cumulation and alternation of statements of claim within single claim. Subjective and objective cumulation is allowed for by the Acts on Civil Proceedings of Republic of Srpska and Federation of Bosnia and Herzegovina, whereas conditional objective cumulation of claim is governed by family law. Acts on Civil Proceedings of B&H also regulate institutes of objective and subjective alternation of claim. Author compares institute of objective alternation of claim with alternative obligation at defendant’s choice. Institute of alternative obligation of debtor (facultas alternativa) is governed by the Law on Obligations. In cases involving facultas alternativa, claimant cannot submit claim alternatively, he can only claim what is owed to him under a contract, unilateral statement of will or statute. Author believes that the courts are mistaken when they, in the cases of alternative obligations, dismiss primary claim and admit secondary claim, because it is the question of single claim that can only be dismissed or admitted as a whole. This position is mainly justified by the fact that alternative obligations at defendant’s choice lay on the same factual and legal foundation. Author differentiates between institute of procedural facultas alternativa and institute of alternative authorization. Procedural facultas alternativa is a type of civil-law offer made to the defendant in the claim by which claimant gives the option to the defendant to be relieved from an obligation to return the thing owed by paying a sum of money. When debtor is, under article 409 of the Law on Obligations, authorized to perform other obligation instead of the obligation owed, claimant is bound to submit the claim conditionally, so that the court, in case of default on performing obligations, forces the debtor to perform other – alternative obligation.