Зборник радова "Право, традиција и промјене" Tom I - Научни скуп. (Београд, 26. октобра 2019. на Палама)
Collection of papers "Law, Tradition and Changes" Vol I - A scientific meeting (Belgrade, October 26, 2019)
Contributor(s): Dimitrije Ćeranić (Editor)
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: International Criminal Tribunal for the former Yugoslavia;war crimes;religious marriage in Bosnia and Herzegovina; constitutional law;
Summary/Abstract: Зборник радова Право, традиција и промјене резултат је научног ску- па који је под истим називом одржан на Правном факултету Универзитета у Источном Сарајеву, у Палама, октобра 2019. године. За овај скуп пријављено је 75 реферата, од 90 аутора и коаутора, из осам држава (Босне и Херцеговине, Србије, Словеније, Хрватске, Црне Горе, Сјеверне Македоније, Руске Федерације и САД). У раду скупа учествовало је више од 60 референата, а у овом зборнику у два тома објављујемо 45 реферата. Научни скуп је организован осми пут поводом Дана Правног фа- култета, а у септембру 2019. године, Министарство за научнотехнолошки развој, високо образовање и информационо друштво Републике Српске категорисало га је као научни скуп са међународним учешћем, што је најбоље категорисан научни скуп који организује један факултет друштвених или хуманистичких наука у Републици Српској. Очекујемо да ће у октобру 2020. године, научни скуп бити категорисан као међународни научни скуп, чему ће свој допринос дати не само организатор скупа и приређивач овог зборника, него и сви учесници научног скупа и аутори реферата у овом зборнику.
- Print-ISBN-13: 978-99938-57-50-1
- Page Count: 428
- Publication Year: 2019
- Language: Russian, Macedonian, Serbian
Принцип суверенитета и Међународни кривични трибунал за бившу Југославију и Руанду
(The Principle of Sovereignty and the International Criminal Tribunals the Former Yugoslavia and for Rwanda)
- Author(s):Milenko Kreća
- Subject(s):Criminal Law, International Law
- Page Range:1-26
- No. of Pages:26
- Keywords:Sovereignity;International Criminal Tribunal for the former Yugoslavia;International Criminal Tribumal for Rwanda;
- Summary/Abstract:The author considers the issue of relationship between the principle of sovereignty and the ICTY and the CTR on two levels: i) the establishment of the ICTY and ICTR in the light of the principle of sovereignty and ii) the rules of international criminal law as applied by Tribunals and the principle of sovereignty. He finds that the establishment of the ICTY, in contrast to the establishment of ICTR, represented violation of the judicial sovereignty of FR of Yugoslavia, since it strongly opposed its establishment. He also notes that adoption of the Law on cooperation with ICTY by State Union of Serbia and Montenegro means recognizing the Tribunal as a legal institution, but of limited scope per se serving as a basis for competent domestic agencies to cooperate with the Tribunal. The author holds that, in the light of relevant rules of international law, the purported legality of the Tribunals can be challenged on a number of grounds: - The establishment of the ad hoc tribunals cannot be considered as one of the measures to be taken under Chapter VII of UN Charter; -Security Council, as executive organ of the UN, is constitutionally incapable of creating a judicial organ which cannot be subsidiary organ of the Security Council in terms of independence and impartiality, being, per definitionem, under the authority of an executive organ; -Principle compètence de la compètence is incapable as a functional norm to form the basis of jurisdiction of the Tribunal per se as advocated by the ICTY in Tadic case. As regards the law applied, author considers that the Tribunals well exceeded the task of judicial organ defined by the dictum of the International Court of Justice. The Court states that „a court of law, cannot render judgment sub specie legis ferendae or anticipate the law before the legislator has laid it down (Fisheries Jurisdiction case). Exempli causa, the ICTY and the ICTR perception of custom as one of the main sources of international criminal law is highly innovative, going well beyond the generally accepted conception of custom. It is based on the predominant role of opinio iuris, often satisfied with extremely limited case law - mainly decisions of municipal courts. Moreover, „many a chamber of the ad hoc Tribunals have been too ready to brand norms as customary, without giving any reason or citing any authority...“ (Mettraux). Perception of the destruction of the protected group, as determinative element of the crime of genocide, is destruction in social terms rather than in physical and biological terms. As stat of the Convention on the Prevention and Punishment of the Crime of Genocide (Judgment of 2015), in the light of the travaux prepara- toires the genocide is limited to physical and biological destruction of the protected group (paras. 136, 157, 160, 163).
Еволутивно тумачење међународних уговора
(The Evolutive Interpretation of International Treaties)
- Author(s):Rodoljub Etinski
- Subject(s):Law, Constitution, Jurisprudence, International Law
- Page Range:27-47
- No. of Pages:21
- Keywords:Evolutive interpretation;International treaties;
- Summary/Abstract:The evolutive interpretation of international treaties denotes the change of the meaning of a term in a treaty over time due to certain reasons. The jurisprudence of international courts is univocal concerning the conditions which a term should meet to be eligible for evolutive interpretation. The practices of the International Court of Justice and the European Court of Human Rights differ regarding the reasons which cause the change on meaning. The International Court of Justice has seen these reasons in external factors, beyond the will of contracting parties, such as the evolution of language or the evolution of international law. The European Court of Human Rights has also included internal factors, such as the change of intention of the parties or the change of understanding of a provision by the parties which have been manifested in the subsequent practice in the application of the European Convention of Human Rights. Another difference has been expressed in the understanding of importance of intention of the parties regarding the evolutive interpretation. The International Court of Justice has based the evolutive interpretation in the intentions or in presumed intentions of the parties to allow such interpretation. The European Court of Human Rights has attributed less importance to the intentions of the parties.
Проблем одговорности за ратне и друге злочине припадника међународних мировних снага
(The Problem of Liability for War and Other Crimes Committed by Members of the International Peace Forces)
- Author(s):Boris Krivokapić
- Subject(s):Criminal Law, International Law
- Page Range:48-85
- No. of Pages:38
- Keywords:International law;Peacekeeping missions;International crimes;United nations;
- Summary/Abstract:We are witnessing an increasing number of peacekeeping operations carried out by international armed forces. However, while they contribute to the termination of armed conflicts, the establishment of peace and order, the protection of the population, the fight against organized crime, etc. the reality is that a number of their members also commit various crimes, some of which represent war crimes or crimes against humanity. The number of these crimes is not small at all. Because of the immunity they enjoy and the unwillingness of the countries they come from to punish them adequately, the perpetrators of these acts often go unpunished. The paper points to this and related problems and tries to answer the question of what needs to be done to counteract this phenomenon. Although there are, in principle, solutions to this problem (among other things, the UN Secretary-General is empowered and obliged to strip a person in a UN mission of immunity when that immunity could prevent justice from being done and when the immunity could be lifted without prejudice to the interests of the UN) they are not applied in practice. Possible solutions include the conclusion of a special convention to regulate this matter; specifying, by the act by which each mission is formed, the conditions under which the persons concerned are deprived of immunity; introduction of a new international criminal offense and extending the jurisdiction of the International Criminal Court to include these acts as special crimes. However, the law alone cannot solve this problem, as it is complex one and affects the interests of many states.
Подјела надлежности између институција Босне и Херцеговине и ентитета, (не)оправданост преноса и могућност њиховог поврата
Подјела надлежности између институција Босне и Херцеговине и ентитета, (не)оправданост преноса и могућност њиховог поврата
(Division of Competencies Between Institutions of Bosnia and Herzegovina and Entities, Unjustified Transfer and Possibility of Their Restoration)
- Author(s):Mile Dmičić
- Subject(s):Constitutional Law, Governance, Government/Political systems, Politics and law
- Page Range:86-116
- No. of Pages:31
- Keywords:Complex state;Division of competencies;Transfer and effects of transfered competencies and the posibillity of their return;Entity and joint institutions;Constitutional changes;
- Summary/Abstract:The paper analyzes basic characteristics of the constitutional model of division of competencies between the institutions of Bosnia and Herzegovina (hereinafter: BiH) and the entities, previously transferred competencies, justification and effects of their transfer and the possibility of their restoration. This exceptionally important constitutional matter is also seen in the context of comparative constitutionality, according to which, in complex states, the competencies are shared between subjects of state character, some of which represent a country as a whole and others constituent parts of the community, but both having a certain degree of statehood and independence. According to the constitutional theory and empiricism, the division of competencies is mostly carried out directly by the constitution, with the provision that an authoritative institution must be determined for the objective and meritorious resolution of possible disputes over jurisdiction. Due to the character of state and social organization and rule, the division of competencies cannot be resolved once and for all, and therefore, as a rule, this phenomenon is a current and constantly changing constitutional category. The term “division” or “distribution” of competencies is regularly used when it comes to relations within complex states, which are more characterized and adequate by the notions of “trust” or “delegation” of competencies. As a multinational, multi religious and multicultural community under international protectorate, a divided society, one with unfinished state and social organization, this model of division of competencies, in which there is an institute of "additional competencies", powers of the High Representative that have no basis in an international peace treaty and unitarization with the advocacy of the principle of "one man - one vote", all this becomes a direct reflection on the stability, security, territorial and political integrity and especially on the identity and subjectivity of its state-building parts.
Правосознание как основа совершенствования законодательства
(The Sense of Justice as a Base for Improvement of the Legislation)
- Author(s):Elena Gennadievna Bagreeva
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:117-123
- No. of Pages:7
- Keywords:Legal consciousness of citizens;Legislation;Socio-cultural and power regulators of social relations;The stability of the state;Legal education and training;
- Summary/Abstract:The article is devoted to the theoretical problem of legal awareness of citizens, which is the basis and driving force for improving legislation in any country. The author of the article proves the urgency of the need to raise the legal consciousness of citizens, which depends not only on the implementation of the principles of democratic development of the state, but also on its stability.
Značaj pravne normativnosti za sadržaj pravnog iskustva
(The Significance of Legal Norms for the Content of the Legal Experience)
- Author(s):Mirjana Nadaždin-Defterdarević
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:124-143
- No. of Pages:20
- Keywords:Legal normativeness;Legal norm;Legal relationships;Legal values;Formal value-legal principles;
- Summary/Abstract:The legal norm is the most complex content of the legal science; its understanding goes beyond a mere description if its formal composition and it always implies finding and interpreting its message in the social relations regulated by law, legal values and goals which condition the creation of the legal norm and are used by it. While imposing norm and discipline on the social relationships, thus turning them into legal relationships, the system of legal norms aspires to coherence and legality, completeness and specificity, and promotes these requirements as political and legal ideals, as well as formal, value-legal principles which should govern all the creators of legal norms. As the lower legal norms' formulation and application are structured by formal legal principles, at the same time the material legal values are ensured which determine the legal norms. The relationship between high and lower-level norms in a legal system is organised on the basis of legality, both material and formal one. Legality, being a basic formal legal principle, is closely related to all the other formal principles: hierarchy, coherence, specificity and completeness, and it will acquire its full significance, as it turns out, in the interaction with material legal values: fairness and legal security. The formal principle of legality through its realization ensures the application of the material legal principle – the one of legal certainty, and, in order to better understand the relationship between legality and legal certainty, it ought to be extended to the principle of fairness. The principle of legality is also in a functional relationship with the requirement of coherence, and the formal principle of legality is in a specific relationship with the principle of completeness of the legal system – the requirement that there be no legal gaps in the legal system as well as the principle of specificity. The aspect of legal normativeness, without it being its intention, reflects most strongly law as a complex phenomenon, and in the context of formal value-legal principles it creates an impression of its unchangeable, independent and continuous application, thus making the idea of the permanent legal content very convincing, despite constant and inevitable changes of other elements of the legal phenomenon.
Интернационализовање уставног права Босне и Херцеговине - процес коме се (не) види крај
(Internationalization of the Constitutional Law of Bosnia and Herzegovina - a Process With (No) End in Sight)
- Author(s):Darko Simović
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, International Law
- Page Range:144-160
- No. of Pages:17
- Keywords:Bosnia and Herzegovina;Constitution,Internationalization;Constitutionalism;International community;
- Summary/Abstract:Despite the fact that the Dayton Constitution has been around for a respectable amount of time, the opinion that Bosnia and Herzegovina is an incomplete state continues to dominate. This is drawn from the fact that the state has been under the tutelage of the international community, which is securing its existence. Past experience has continued to affirm that with- out institutionalized support or uninstitutionalized political pressures of the international community the constitutional system of Bosnia and Herzegovina cannot function. The fact that the state did not fall into conflict again is a success that justifies international intervention, but on the other hand, the international community did not succeed in taking this a step further, be- cause the state remains in a position of incomplete peace with constant constitutional and political crises. Therefore, aside from the fundamental political goal of preserving Bosnia and Herzegovina which has been achieved, the international community still does not have a clear vision of their role in this state. Albeit, the weaknesses of the Dayton Constitution are evident, in theory and amongst the constitutive people, there is not the slightest agreement in terms of the ways the existing constitutional system should be modified. Hence, justified is the constitutional pessimism in the context of Bosnia and Herzegovina, because the political culture of dependence on the international community as well as the inertia between the constitutive people has been widely developed.
Странке у управном поступку - позитивно-правни аспекти са освртом на поједине земље бивше СФРЈ
(Parties to Administrative Procedure - From the Aspect of Positive Law With the Overview of Former SFRJ Countries)
- Author(s):Zoran Jovanović, Dejan Vučinić
- Subject(s):Law, Constitution, Jurisprudence, Public Law
- Page Range:161-177
- No. of Pages:17
- Keywords:Parties in administrative procedure;Partisan activity;Procedural conditions;Principle of general administrative procedure;Comparative position of parties;
- Summary/Abstract:The authors of this paper analyze the parties to the administrative procedure, as the main subject of this paper, with the focus on the key elements that determine their legal position – not only the direct provisions of substantive law defining their rights and duties, but also general legal principles and other provisions which directly or indirectly regulate their procedural status. Also, the nature of the administrative procedure, starting from the method of its initiation and management, to the issues about who presides over the procedure, who are the subjects to the administrative procedure, all the way to the final aspects of the purpose and goals of the administrative procedure – all this affects the legal position of the parties to this procedure. It is often said that the level of democracy in a society depends on the scope of declared rights. However, whether and to what extent these rights will essentially be achieved depends on the procedural conditions that is on the regulations which govern the procedure aimed at protection and exercising of subjective rights. In this sense, the administrative procedure represents a guarantee that the final outcome of the procedure will be an adequate legal solution related to the party’s right or duty. The author also attempts to present in this paper the analysis of the issues which further affect the position of parties to the administrative procedure, such as their conceptual definition, possibilities of partisan influence, certain principles of the administrative procedure which are directly related to the parties in the Republic of Serbia, but also in the countries of former Yugoslavia (Croatia, Montenegro and Bosnia and Herzegovina).
Право народа на самоопредељење - уставноправни и међународноправни аспекти
(People's Right to Self-determination - Constitutional and International Law Aspects)
- Author(s):Marko Stanković
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:178-192
- No. of Pages:15
- Keywords:People's right to self-determination;People;Secession;Cleavage;Collective rights;
- Summary/Abstract:This paper is devoted to a legal analysis of peoples' right to self- determination. At the outset, some theoretical views on this collective right were presented, followed by certain remarks on its evolution. Next, the analysis of the international regulation of this right is carried out, including both its external and internal aspect, as well as recent practice in the world. Finally, there is a debate of the political nature of this collective right.
Родовата рамноправност стереотипна фраза или демократско право?
(Gender Equality - Stereotyped Phrase or a Democratic Right?)
- Author(s):Zoran Jovanovski, Elena Ivanova
- Subject(s):Gender Studies, Law, Constitution, Jurisprudence
- Page Range:193-209
- No. of Pages:17
- Keywords:Gender equality;Equality;International legal framework;
- Summary/Abstract:Inequality between men and women has had a long tradition. Its pervasiveness throughout history made no contributions to the stability of any society. Women fought long battle for equality against formidable enemies such as patriarchy and tradition. In the middle of the last century the need to begin the battle for equality arose. This was achieved by means of inter- national legal framework of the Organization of the United Nations for pro- motion of gender equality. A series of international acts in favor of women's cause have been adopted; women acquired right to equal opportunities, while being protected against traditional elements. Equality does not imply that woman and men are the same or that hey should be the same; it simply means that enjoying rights and having opportunities in life is not limited to nor does it depend on whether one was born as a boy or a girl. Indeed, the same opportunities for all will eventually lead to equality. It is worth noting here that gender equality implies dedication to equal society, where human rights are not conditioned by one's sex and gender. Only stable society is a good society which provides creative environment for all and brings progress, prosperity and future for all its members. This paper presents achievements in both legislation and case law and regulatory changes which in time contributed to the strengthening of the principle of equality between men and women, and their application in the EU countries. Globally viewed however, the facts about this issue portray entirely different picture, since the stereotypes about cultural, religious and traditional values still persist. Hence the question: Is gender equality perceived as a cliche and a stereotyped phrase or is it truly a democratic right?
О социјално-економском бикамерализму
(On Socio-economic Bicameralism)
- Author(s):Goran Marković
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Socio-Economic Research
- Page Range:210-234
- No. of Pages:25
- Keywords:Socio-economic bicameralism;Socio-economic chamber;Slovenia;The National Council;Ireland;The Senate;Morocco;Functional representation;Interest organizations;
- Summary/Abstract:The author analyzes the least explored and constitutionalized form of the bicameralism – the socio-economic bicameralism. He examines theoretical basis of its existence, thinking that the socio-economic bicameralism is necessary since the parliament can't be the representation of the abstract citizens only, but also of the social groups, which objectively exist and have differing interests. The author thinks here on the social groups which are formed in the economic sphere, i.e. which are formed in the connection with the social organization of production. Another level of the analysis is the comparative one, since the author analyzes three constitutional systems (those of Slovenia, Ireland, and Morocco) which recognize the socio-economic bicameralism. He explores constitutional position of the socio-economic chamber, its legal nature, com- position, election, competences, and relationship with other parliamentary chamber. As much as it is necessary, the author uses the historical as well as the political methods, in order to explain the reasons for the constitutionalization of the socio-economic bicameralism. The author’s conclusion is that the socio-economic bicameralism is almost unknown in the modern constitutions, while the socio-economic chambers have very limited competences, which significantly decrease the possibilities of their influence on the realization of the functions of the parliament. This chamber is more or less only a corrective factor, which ad- vices, proposes, and vetoes, but rarely has the chance to effectively decide.
Pravo na sklapanje vjerskog braka u Bosni i Hercegovini
(The Right to Conclude Religious Marriage in Bosnia and Herzegovina)
- Author(s):Dženeta Omerdić, Boris Krešić
- Subject(s):Civil Law, Family and social welfare
- Page Range:235-251
- No. of Pages:17
- Keywords:Freedom of thought, conscience and religion;Prohibition of discrimination;Religious marriage;Bosnia and Herzegovina; European Convention on Human Rights;The Family Law of Federation of B&H;
- Summary/Abstract:Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to manifest one's religion or belief, in worship, teaching, practice and observance either alone or in community with others and in public or private. The conclusion of religious marriage is a ritual. It represents practice and, as such, is guaranteed by the provisions of the European Convention. In Bosnia and Herzegovina marriage is a community of life between a woman and a man, governed by the law. It is based on the principle of legality. From a formal-legal point of view, if the prescribed conditions are fulfilled, civil marriage produces legal consequences. Religious marriage, however, does not. Persons who have concluded only religious marriage can exercise rights if the laws of the state recognize the rights of informal communities of life. Thus, in FB&H, people who have concluded a religious marriage can exercise the rights of extramarital partners provided that they fulfill the conditions needed to enter into an extramarital union. However, having in mind that the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly and have priority over all other law in Bosnia and Herzegovina, the competent state authorities of the FB&H should amend the provisions that do not allow conclusion of religious marriage before the civil marriage. The amendments should allow conclusion of religious marriage as a religious ceremony, with the emphasis that the religious ritual does not imply rights (and obligations) in the way that civil marriage does. Individuals interested in the conclusion of a religious marriage should be clearly and unambiguously aware of the fact that religious marriage does not in itself produce legal consequences. If they still opt for religious marriage, they should not be restricted. After all, citizens should be aware of the consequences of using and enjoying their rights and freedoms. Furthermore, bearing in mind international, regional and national normative solutions, as well as the court's practice, punishing religious officers is not necessary in a democratic society. It is very difficult to prove that punishment is in the interests of public safety, for protection of public order, health or morals, or for the protection of the rights and freedoms of others. It is necessary to ensure that citizens enjoy Convention’s rights and freedoms. Namely, for many people, marriage is not valid if it is not received appropriately by a religious institution. The purpose and function of the secular law governing the issue of marriage should not be defeated by not leaving the possibility of performing a religious ceremony. The fact that religious marriage will not produce legal consequences goes to the detriment of the spouses. Aware of the risks, they will be able to exercise another right — the right to freedom of thought, conscience and religion. Having in mind the fact that everyone has the right to freedom of thought, conscience and religion, responsibility for not enjoying some rights should be removed from the state. State should allow individual to manifest his or her religion in practice. Aware of the risks, individuals should decide and make their choices: legal consequences or religious ritual. In that sense it is necessary to transfer responsibility from the state to the citizen. Only then, with the responsible individuals, aware of the consequences of their choices, can we secure a democratic society and the rule of law.
Родна равноправност у јавним политикама
(Gender Equality in Public Policies)
- Author(s):Marina M. Simović, Miomira P. Kostić
- Subject(s):Gender Studies, Human Rights and Humanitarian Law
- Page Range:252-270
- No. of Pages:19
- Keywords:Management in public administration;Gender equality;Public politics;Discrimination;Prevention of gender discrimination;
- Summary/Abstract:Serbia and Bosnia and Herzegovina in relation to the implementation of the undertaken international documents in this field are pointed out. Particular attention is paid to the analysis of the reports of competent ministries, namely those data that lead to conclusions about gender representation, that is, implemented principles of gender equality in different segments of public policies “which are reduced to governmental choice and top-to- bottom approaches”. The aim is to point out emerging issues, to make them visible, because the authors are of the legal profession, so with professional and pedagogical responsibility they tend to expose dilemmas more in the application than in the nomotechnical process of passing the laws, strategies and action plans related to the implementation of gender equality in different segments, especially in public policies, the non-application of which leads to discrimination. The authors also refer to the phenomenon of pink washing. Different methodological procedures were applied in the paper: historical law, comparative law, as well as case analysis.
Пореска ослобођења за почетнике у пословању у Србији
(Tax Exemptions for Beginner Entrepreneurs in Serbia)
- Author(s):Suzana Dimić
- Subject(s):Law, Constitution, Jurisprudence, Public Finances, Fiscal Politics / Budgeting
- Page Range:271-281
- No. of Pages:11
- Keywords:Tax exemption;Income tax;Compulsory social security contributions;
- Summary/Abstract:In the conditions of large movements of young people in search of employment, it has proven necessary to take measures to create a favorable business environment for beginner entrepreneurs. In addition to the numerous administrative and financial obstacles that may be encountered in the initial phase of running a business, the tax system can be a significant burden. Hence, an increasing number of countries are opting for the introduction of various forms of tax incentives, which achieve tax relief for certain factors of production. As the fiscal burden on labor affects the demand for labor, and thus indirectly employment, measures are most often taken to exempt from paying payroll taxes and contributions for compulsory social insurance. Also, in order to provide beginner entrepreneurs with easier access to capital, which they lack in the initial phase of running a business, tax incentives are introduced for potential investors in the form of a tax credit. Significant positive effects are expected from the introduction of such tax reliefs in the tax system of Serbia, because the problem of youth unemployment in recent years is not only a social and economic problem, but also a major demographic problem.
Престанак радног односа на иницијативу послодавца
(Termination of Employment on the Initiative of the Employer)
- Author(s):Radislav Lale
- Subject(s):Civil Law, Labor relations
- Page Range:282-326
- No. of Pages:45
- Keywords:Discontinuation of employment;Termination of employment contract;Justified reasons for dissmisal;Cancellation procedure;Unlawful termination of employment contract;
- Summary/Abstract:The paper systematically discusses the issue of termination of employment on the initiative of the employer in domestic, comparative and international law, as one of the most significant and sensitive labour law institutes. The author analyzed the positive regulation of termination of the employment contract by the employer as an essential element of his freedom to contract, as well as his freedom of entrepreneurship and management. Valid (allowable) dismissal reasons related to an employee's abilities and behavior, and dismissal considerations related to the needs of the employer, as well as the issue of prohibited dismissal reasons have been thoroughly discussed in the relevant sections of this paper. Also, the subject of analysis is the procedure in the case of dismissal, and special attention is paid to the legal consequences of unlawful termination of employment.
Преиспитивање традиционалних схватања о међународноправном субјективитету
(Rethinking Traditional Doctrines on International Legal Subjectivity)
- Author(s):Sanja Kreštalica
- Subject(s):International Law
- Page Range:327-348
- No. of Pages:22
- Keywords:International legal personality;State;International organization;Individual;
- Summary/Abstract:Centuries of legal thought have been dedicated to reflections on the concept of international legal subjectivity, its constitutive elements, and ultimate achievements in legal practice. The theory of international law presented various definitions of subjectivity, which have arisen from the premise of the non-existence of a single criterion based on which an entity could be defined as a subject of international law. In an attempt to define the concept of the subjectivity, the theory starts from the fact that there is no generally accepted definition of the notion at hand since it is not a normative, but rather the fruit of theoretical considerations. Common to all theories, whether developed in the early twentieth century or modern terms, natural law or positivist orientations, is that they define subjectivity as a set of characteristics that can be represented in different ways in the body of any entity. Therefore, we conclude that only the analysis of positive law can lead to the conclusion of who are the subjects of international law in the given circumstances. In this paper, the author tries to prove that subjectivity in international law should be viewed as a posteriori legal construction, rather than an a priori established concept. In this way, it becomes obvious that all ideas of exclusive state subjectivity in international law are legally unsustainable today.
Утврђивање пореза и покретање пореског поступка
(Tax Assessment and Determination and Commencement of Tax Proceeding)
- Author(s):Đorđe Marilović
- Subject(s):Law, Constitution, Jurisprudence, Fiscal Politics / Budgeting
- Page Range:349-366
- No. of Pages:18
- Keywords:Tax procedure;Tax assessment and determination;Self-assessment;Administrative procedure;Tax return;
- Summary/Abstract:The relation between tax assessment and determination by means of administrative tax act tax return (self-assessment), on the one hand, and commencement of tax procedure as a special administrative procedure, on the other hand, is important for a number of procedural and material reasons. Commencement of tax procedure is defined differently in legal theory and legal practice. The author analyses theoretical views and positive tax law and tax practice in The Republic of Srpska, and offers comments and conclusions on commencement of tax procedure. He argues that tax returns cannot be accepted as administrative acts, and decries relevant paragraphs of Law on Tax Procedure of Republic of Srpska for thereof lack of consistence with basic principles of positive administrative law. The exact moment of tax procedure commencement, legal definition and nature of tax returns, as well as actions of participants in the tax proceedings should be legally redefined in accordance with general administrative legal principles.
Законоправило Светог Саве као смјерница савременом законодавству
(St. Sava's Legislation as a Guideline for the Modern Legislator)
- Author(s):Stanka Stjepanović
- Subject(s):Law, Constitution, Jurisprudence, History of Law, Civil Law
- Page Range:369-384
- No. of Pages:16
- Summary/Abstract:St. Sava also included in his Zakonopravilo some of the secular legislation which he had taken from the Byzantine collections, with the aim of directing the Serbian state and its subjects in a legal way and thus extending Serbian customary law to secular laws. Jeftimije Jovanovic has been studying Zakonopravilo for forty years and wrote a first textbook based on Zakonopravilo. Sergei Viktorovich Troicki also studied Zakonopravilo for as many years as Jeftimie Jovanovic and left numerous papers and especially detailed guidance on how photo-types of the Zakonopravilo should be made. The author points to the need to consolidate the study of the Zakonopravilo of St. Sava in the works of Jeftimie Jovanovic and Troicki and believes that this would lead to the conclusion that St. Sava is the creator of legal terminology, not only among Serbs, but among other Slovenian nations as well. Author thinks that connecting the study of the Zakonopravilo of St. Sava with works of Jovan Hadžić, Slapkin, Beneševič and Valtazar Bogišić, would lead the doctrine of church and civil law to the conclusion that returning to sources is the safest route to the modern organization of legal institutes. The Zakonopravilo could be a guideline for the legislator on how to adopt applicable regulations that will be tailored to the addressees' needs, taking into account geographical location and economic and social status.
Српска револуција (1804-1813) и античке правне и политичке идеје
(Serbian Revolution (1804-1813) and the Legal and Political Ideas of Antiquity)
- Author(s):Samir Aličić
- Subject(s):Law, Constitution, Jurisprudence, History of Law, Political history, 19th Century
- Page Range:385-405
- No. of Pages:21
- Keywords:Revolution;Serbia;Democracy;Statutory law;People;Forms of government;
- Summary/Abstract:The subject of the research is the reception of ancient legal and political ideas by Serbian intellectuals who actively participated in the First Serbian Up- rising (1804-1813) and in the creation of the ideology of the Serbian Revolution. They generally accepted the theory of social contract according to which the state is not an abstract term separate from the people who make it, that is, it is equated with the community of citizens. Serbian scholars knew about the forms of government that existed in classical antiquity, and they accepted the division of forms of government into monarchical, aristocratic and democratic, just like some fundamental legal principles of Roman law, such as equality of citizens before the law and the rational and ethical character of law. Also, defining the concept of law as an expression of the people's will expresses the influence of the analogous concept of Roman law.
Право у Босни и Херцеговини за време аустроугарске владавине
(Law in Bosnia and Herzegovina During Austro-Hungary Government)
- Author(s):Sanja Savić
- Subject(s):Law, Constitution, Jurisprudence, History of Law, 19th Century, Pre-WW I & WW I (1900 -1919)
- Page Range:406-413
- No. of Pages:8
- Keywords:Bosnia and Hercegovina;Austria-Hungary;Law;
- Summary/Abstract:One of the issues that the newly established Austro-Hungarian authorities had to deal with after the occupation of Bosnia and Herzegovina was its legal order. Despite the reformist intentions, the replacement of the Ottoman right by the Austro-Hungarian right could not be carried out at once. In this paper the author will try to answer the questions as to how the Austro-Hungarian authorities treated the current Ottoman legal order and if Bosnia and Herzegovina could influence the formation of its own legal system? Ultimately, these answers should project a picture of what was the law in Bosnia and Herzegovina like during the Austro-Hungarian rule.
Структура и садржај касносредњовјековних дубровачких тестамената
(Structure and Content of Late Medieval Testaments in Dubrovnik)
- Author(s):Mirjana Pupić
- Subject(s):Law, Constitution, Jurisprudence, History of Law, Middle Ages
- Page Range:414-428
- No. of Pages:15
- Keywords:Testament;Structure;Content;Legacies;Dubrovnik;Late Middle Ages;
- Summary/Abstract:At the beginning of the paper, the author points to the origin, usage and form of the testament. Internal structure of the testament consisting of three main parts - the introduction, the disposition and the final part is also presented. With few exceptions every testamentary disposition follows the established sequence which indicates the significance of the certain testamentary provisions in Late Medieval Dubrovnik. Particular attention was given to the content analysis in Dubrovnik’s testaments based on materials from the State Archives in Dubrovnik. At the same time, the types of legacies that the late medieval Dubrovnik’s testators donated for various purposes are also considered. The author concludes that the legislator could not prescribe contents of the testament, because it is contrary to the provisions of the Statute which legalized the freedom of testamentary disposition.
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