THE CONCEPT AND TYPES OF MORTGAGE IN SERBIAN LEGISLATION

THE CONCEPT AND TYPES OF MORTGAGE IN SERBIAN LEGISLATION

Author(s): Miroslav Lazić / Language(s): English / Issue: 1/2014

Keywords: non-possessory pledge; reform; mortgage; registered pledge (chattel mortgage)

Mortgage is a real security right on another’s immovable property which empowers the mortgage creditor to initiate a sale of mortgaged property (foreclosure) in order to settle the due debt claim from the proceeeds of sale, i.e. out of the value obtained by sale of the mortgaged property. Although mortgage was originally created on immovable property (chattel real), in the contemporary legislation it may also be established on movable assets, primarily owing to the development of the so-called mortgage on movable assets (chattel mortgage) as a form of non-possessory pledge. Whereas the property owner (mortgagee) retains his right to possess, use and dispose of the mortgaged property, the mortgage creditor’s right is secured by having his right entered in the public chattels register. In Serbian legislation, this “formula” is applied to the conventional mortgage of immovables (chattels real) and the registered pledge on movable assets (chattels personal) which may be constituted on ships and aircraft; however, in the last 10 years, it has also been applied to registered non-possessory pledge on movable assets (chattels mortgage). After introducing this new form of registered pledge in 2005, the Serbian legislator reformed the legal framework regulating the mortgage on immovable property. In this article, the author provides a brief overview of the most significant forms of non-possessory securities in Serbian legislation and their distinctive features. Focusing on the institutes on mortgage and registered pledge, the author provides a critical analysis of some legal solutions envisaged in the Serbian legislation as opposed to related comparative law solutions, particularly those envisaged in the German and Austrian legislation.

NECESSITY OF AXIOLOGICAL EDUCATION OF LAWYERS

NECESSITY OF AXIOLOGICAL EDUCATION OF LAWYERS

Author(s): Marko Trajković / Language(s): English / Issue: 1/2014

Keywords: law; moral values; education

Education is a bridge that provides continuity of values. The task of legal education must be focused on the construction and protection of human values. Education should instruct us that it is necessary not only to acquire knowledge but also to live in compliance with it. Human judgment depends on education which must lead to sublimation. Education of lawyers must liberate its reality from “distorted lines”, non-values and “the princes of this world”. It must provide a safe climate for the action of both legal and other professionals. Can the entire legal education really be reduced to the following postulation: “We are studying what we need in order to appear before judges or to advise people in such a way as to keep them out of court.” The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is entrusted to the judges in certain case, and the power of the state will be put forth, if necessary, to carry out their judgments and decrees.

FORGING THE REFORM: BOLOGNA REFORM BETWEEN THE NATIONAL AND THE EUROPEAN, THE TRADITIONAL AND THE ‘MODERN’

FORGING THE REFORM: BOLOGNA REFORM BETWEEN THE NATIONAL AND THE EUROPEAN, THE TRADITIONAL AND THE ‘MODERN’

Author(s): Martina Topić / Language(s): / Issue: 1/2014

Keywords: higher education; Bologna reform; national; European; modern; traditional

This paper analyses the Bologna reform in Croatia in the context of a broader Europeanization debate. Hence, Bologna is analysed in line with Croatia’s long-term struggle to enforce Europeanization under its own terms. This means that, throughout history, Croatia has made attempts to Europeanise and modernise the country but, at the same time, enforced and maintained the national. This particularly applies to the education sector that has always been the battlefield for enforcing the national. In more recent history, this mostly reflects on the primary and secondary education whereas the higher education is left on its own. However, the higher education is poorly managed and the reform is imposed from the above. Thus, the Bologna reform clearly failed in Croatia. The qualitative research conducted for this study shows dichotomy of the national and the European, as well as the traditional and the modern. The conclusion of the paper is that Croatia is trying to enforce Europeanization under its own terms, which clearly fails every time such attempt is made and results in Europhobia. As a consequence, every reform with European connotation fails, and this happened with Bologna reform of the higher education.

OBSTACLES FOR THE INTEGRATION OF THE ASHKALI COMMUNITY INTO THE SERBIAN SOCIETY

OBSTACLES FOR THE INTEGRATION OF THE ASHKALI COMMUNITY INTO THE SERBIAN SOCIETY

Author(s): Snežana Đurđević / Language(s): / Issue: 1/2014

Keywords: Ashkali; Internally Displaced Persons; ethnic community; fundamental rights; integration

The Ashkali community copes with serious problems in order to integrate into the Serbian society. It is considered to be the most vulnerable community among the other Internally Displaced Persons. The magnitude of their problem is very often hidden, as many of them have not registered with the authorities. Non-registration causes many other problems and prevents their access to some fundamental rights, such as employment, education, health and social assistance. Most of them live in truly deplorable conditions, and due to the lack of education and language differences they are often subject to discrimination. It is necessary to undertake measures for their registration and further protection within the society.

PROTOCOL 16 TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND FREEDOMS

PROTOCOL 16 TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND FREEDOMS

Author(s): Sanja Đorđević / Language(s): English / Issue: 2/2014

Keywords: Protocol 2; Protocol 16; European Convention for the Protection of Human Rights and Fundamental Freedoms; European Court of Human Rights; advisory jurisdiction; advisory opinion

Although the primary jurisdiction of the European Court of Human Rights is the one relating to applications, the Court also has advisory jurisdiction which was established by adopting Protocol 2 in 1963. However, the scope of this Protocol was limited in a twofold manner: the circle of entities authorized to request an advisory opinion was very narrowly defined and there were also uncertainties as to the type of legal issues that may require review. Only the Committee of Ministers had the authority to request an advisory opinion, provided that the decision was made by a two-thirds majority vote. Moreover, the advisory opinion could only be requested on the questions that did not fall within the scope of content, interpretation and/or effects of the rights and freedoms guaranteed under the European Convention and the related protocols. As a result of this restrictive approach, Protocol 2 has been applied in only three cases so far, for which reason it is considered to have little practical significance. The idea of expanding the Court’s advisory jurisdiction was revived in the process of reforming the European human rights protection mechanism. The result of these endeavors was the adoption of Protocol 16 in 2013, which is yet expected to enter into force. Protocol 16 aims to achieve a dual objective: 1) to intensify and strengthen the dialogue between higher national courts and the European Court; and 2) to reduce the large backlog of applications. During the drafting process, the debate was concentrated on four key issues: a) the nature of the authorized national courts; b) the legal effect of advisory opinions; c) the category and type of questions which may be referred; and d) the process of adoption of advisory opinions. However, despite some good legal solutions, there are some reservations on the likelihood of accomplishing the goals envisaged in Protocol 16.

THE APPLICATION OF THE MOST FAVORED NATION CLAUSE TO THE PROCEDURAL PROVISIONS OF BILATERAL INVESTMENT TREATIES: POSSIBILITIES FOR ESTABLISHING ICSID JURISDICTION FOR RESOLVING INVESTMENT DISPUTES

THE APPLICATION OF THE MOST FAVORED NATION CLAUSE TO THE PROCEDURAL PROVISIONS OF BILATERAL INVESTMENT TREATIES: POSSIBILITIES FOR ESTABLISHING ICSID JURISDICTION FOR RESOLVING INVESTMENT DISPUTES

Author(s): Kristina Anđelić / Language(s): English / Issue: 2/2014

Keywords: MFN clause; investment disputes; ICSID jurisdiction

This article explores problems related to establishing the ICSID jurisdiction to the BITs dispute settlement provisions by application of the MFN clause. Being that the application of the clause asks for very extensive interpretation of the BIT which contains this clause, the practice of ICSID tribunals in this field has been very much debated in professional and academic circles. Not only has it raised concerns about stability, predictability and legal certainty in international investment law but, more importantly, about its further development in respect of arbitrators’ powers. The article analyzes three representative cases in which ICSID tribunals made decisions on jurisdiction based on the usage of the MFN clause: Maffezini, Plama and Salini. On the basis of this analysis, certain guidelines are proposed that might be applied in future disputes brought before ICSID tribunals. These guidelines are in compliance with modern tendencies in international scene, which should be considered as the indicators of the direction for further development of this particular area of law.

COMPARATIVE ANALYSIS OF CYBER PRIVACY LAW IN INDIA AND IN THE UNITED STATES OF AMERICA

COMPARATIVE ANALYSIS OF CYBER PRIVACY LAW IN INDIA AND IN THE UNITED STATES OF AMERICA

Author(s): Geetika Sood / Language(s): English / Issue: 2/2014

Keywords: cyber law; privacy; India; United States of America

In today’s cut-throat competition life, everybody is concerned about one’s own privacy. Due to the inculcation of technology in daily life, privacy factor is an increasinglyimportant issue of significant concern for the human being. This paper is an attempt to make a comparative analysis of the cyber law relating to the privacy issue and also to study the applicable law and steps taken by the two countries: one already developed (United States of America) and one of the fastest developing countries (India).

EDITORIAL

EDITORIAL

Author(s): Miomira P. Kostić / Language(s): English / Issue: 1/2015

The first issue of the scientific journal Facta Universitatis, Law and Politics, for the year 2015 includes scientific papers in the field of law and politics. The members of the new Editorial Board and the Editor-in-Chief, Prof. dr Miomira Kostić, hereby extend their appreciation to all contributing authors from the country and abroad, as well as special gratitude to the individual reviewers, whose submissions and reviews have substantially contributed to the publication of this issue.

COMPARATIVE LEGAL ASPECT OF PROHIBITION OF USE OF ILLEGAL EVIDENCE IN CRIMINAL PROCEEDINGS

COMPARATIVE LEGAL ASPECT OF PROHIBITION OF USE OF ILLEGAL EVIDENCE IN CRIMINAL PROCEEDINGS

Author(s): Miodrag N. Simović,Marina M. Simović,Vladimir M. Simović / Language(s): English / Issue: 1/2015

Keywords: evidence; criminal proceedings; exclusion of illegal evidence; AngloSaxon system; European-Continental system.

Illegal evidence term in the criminal proceedings arises many theoretical deliberations and disputes and is one of mail problems of modern law of evidence. The complexity of the problem is one of the most difficult issues of criminal procedural law. The issue is about a complex criminal procedural term which is constantly and slowly evolving and developing due to legal interventions, but primarely due to its practical value. When having look at the situation with comparative law, one may see that the majority of legal systems does not use absolute exclusion of illegal evidence in the criminal proceedings. Just the opposite, such a model is subject to criticism due to numerous lacks and negative consequences. Only rare systems using the absolute way of selecting of illegal evidence do not have a wide scale of rules and apply various exceptions. When analysing comparative law analysis confirms that it is necessary to focus not only on existence of rules but also to the scale of exclusion.

TRUST IN POLITICAL INSTITUTIONS IN WESTERN BALKAN COUNTRIES

TRUST IN POLITICAL INSTITUTIONS IN WESTERN BALKAN COUNTRIES

Author(s): Nataša Golubović,Marija Džunić,Srđan Golubović / Language(s): English / Issue: 1/2015

Keywords: trust; political institutions; government; Western Balkans

Trust in political institutions is very important for the stability of society and functioning of democracy, that is, for the legitimacy of democratic regime. The question of legitimacy is especially important for the consolidation of new democracies, such as Western Balkan countries. Since trust in political institutions determines citizens’ willingness to comply with the decisions of these institutions, as well as governability of modern society, vicious circle could develop where low level of trust in political institutions impedes their efficient functioning, contributing to further decline of trust. Starting from the importance of trust in political institutions for the normal functioning of society, this paper explores the levels of trust in these institutions over time in Western Balkan countries, in order to establish whether existing levels of trust could represent an obstacle to governance and further consolidation of democracy.

ABILITY TO UNDERTAKE ACTION THAT CONSTITUTES A CRIMINAL OFFENCE; MENTAL CAPACITY AND GUILT

ABILITY TO UNDERTAKE ACTION THAT CONSTITUTES A CRIMINAL OFFENCE; MENTAL CAPACITY AND GUILT

Author(s): Dragiša Drakić / Language(s): English / Issue: 1/2015

Keywords: ability to take action that constitutes a criminal offence; guilt; criminal law

In the paper the author offers an analysis, from the standpoint of legal theory, of the ability to undertake action that constitutes a criminal offence and the mental capacity, on one hand, and the mental capacity and the guilt, on the other hand. In the first part of the paper the author pointed to the significance of the action that constitutes a criminal offence, than he set its minimal requirements without which existence of the actions, as an element of the general notion of the criminal offence, would not have existed. In the second part of his paper the author puts into correlation the ability to undertake criminal action and the mental capacity of the offender. The last part of the paper discuses a delimitation between the mental capacity and other integral parts of the guilt, as well as the correlation between mental capacity and the guilt as a higher theoretical notion. His position presented in the paper could be demonstrated in two main conclusions. Firstly, the author concludes that the will, as a subjective element of the notion of the action, is immanent to every human being, where the subjective element of the notion of mental capacity is only possessed by mentally sound and mature persons. Secondly, the author concludes that since mental capacity is the ability to be guilty, the guilt is a relationship between the psychological being and the value judgment based on the presumption of the existence of mental capacity.

MULTIPARTY ARBITRATION – PROBLEMS AND LATEST DEVELOPMENTS

MULTIPARTY ARBITRATION – PROBLEMS AND LATEST DEVELOPMENTS

Author(s): Dejan Janićijević / Language(s): English / Issue: 1/2015

Keywords: multi-party arbitration; arbitration agreement; consolidation; joinder; intervention

The author presents key issues related to participation of multiple parties in the arbitration procedure. Consolidation of arbitration proceeding, resulting in a multi-party procedural relationship, as well as joinder and intervention of third persons, non-signatories to the arbitration agreement, are viewed for the purpose of identifying possible problems their emergence in arbitration may cause. The development of judicial approach to procedural questions raised by participation of multiple subjects in the contractual relationships, out of which the dispute before the arbitral tribunal has arisen, is showcased through the analysis of the 2010 United States Supreme Court Decision, which sets grounds for restricting multi-party arbitration only to situations where participation of multiple parties in a single proceeding is expressly provided for in the arbitration agreement.

JUVENILE DELINQUENCY OR JUVENILE CRIME

JUVENILE DELINQUENCY OR JUVENILE CRIME

Author(s): Miomira P. Kostić,Filip Mirić / Language(s): English / Issue: 1/2015

Keywords: juvenile delinquency; juvenile crime; concept definition

The subject matter of this paper is the concept of juvenile delinquency, its conceptual distinction from the concept of juvenile crime and other forms of juvenile deviant behaviour. The conceptual framework of a phenomenon is never a matter of purely linguistic and terminological designation because the definition of a concept has a significant impact not only on the social response of public authorities but also on the attitude of individual members of the specific society towards the phenomenon. This issue is particularly important when it comes to the socially unacceptable phenomena, such as juvenile delinquency and juvenile crime. This paper is not aimed at advocating for the specific use of one or the other legal term in the process of defining the illicit behaviour of juvenile offenders. The authors underscore that the proper application of these legal terms largely depends on the scope and extent of illicit conduct that the specific term entails and conceptually defines.

THE LAWYER'S ROLE IN ADVISING CLIENTS – NEW THEORETHICAL APPROACH OF BEHAVIORAL LAW AND ECONOMICS

THE LAWYER'S ROLE IN ADVISING CLIENTS – NEW THEORETHICAL APPROACH OF BEHAVIORAL LAW AND ECONOMICS

Author(s): Aleksandar Mojašević / Language(s): English / Issue: 1/2015

Keywords: lawyer; client; cognitive errors; trial; settlement

In this paper, the author shows the standard theoretical models of counseling clients (principals) by lawyers (agent), their advantages and limitations. In addition to these standard models, an innovative one, which was developed within the framework of scientific discipline Behavioral Law and Economics, the so-called cognitive model, will be presented. This model casts a different light on the relationship between clients and lawyers, introducing certain psychological factors that are related to cognitive errors in client's reasoning. Some typical cognitive errors that justify a lawyer intervention in client's decision concerning the choice between a trial and settlement will be described.

LEGAL CAPACITY OF THE CHILD IN SERBIAN LEGISLATION

LEGAL CAPACITY OF THE CHILD IN SERBIAN LEGISLATION

Author(s): Nevena Petrušić / Language(s): English / Issue: 2/2015

Keywords: rights of the child; evolving capacities of the child; legal capacity of the child

In this paper the author provides a critical analysis of the statutory solutions of the the Serbian Family Law 2005 and the Preliminary Draft of the Civil Code regarding the legal capacity of the child. The first part of the paper is devoted to the Childhood and the concept of the evolving capacities of the child in lights of the UN Convention on the Rights of the Child. In the second part of the paper the author critically analyzed the regulations which define the limits of the legal capacity of the child in Serbian legislation in the context of modern trends in the field of the rights of the child.

SOCIAL POLICY OF THE UNITED NATIONS AND ITS IMPLEMENTATION IN LOCAL COMMUNITIES

SOCIAL POLICY OF THE UNITED NATIONS AND ITS IMPLEMENTATION IN LOCAL COMMUNITIES

Author(s): Mile Ilić,Milan N. Jovanović / Language(s): English / Issue: 2/2015

Keywords: Unites Nations; international cooperation; social policy; local communities; ECOSOC

The study of social policy almost always has its beginning in the Organization of the United Nations. It is also the source and meeting place for local social policy, benchmark against which the standards are established. Poverty, illiteracy, hunger and social inequality have become serious reasons that can impair global relations, which is the main motive for the creation of ECOSOC. Since its formation, the United Nations has made significant achievements in the field of social policy and has proven to be an indispensable instrument for international cooperation. The UN, with more or less success, remained consistent with its proclaimed goals and principles. A large number of UN declarations in the field of protection of workers, women, children and many other aspects of social policy attain its final form and true value only after their implementation in local communities. Inequalities between regions, crime and unemployment must be accepted as a reality. But it is right there that the need for the UN activities emerges, which should create timely and appropriate measures in the field of social policy and be applied all the way to the local level.

THE POLITICAL AND LEGAL FRAMEWORK OF THE POSITION OF SERBIA AT THE BERLIN CONGRESS

THE POLITICAL AND LEGAL FRAMEWORK OF THE POSITION OF SERBIA AT THE BERLIN CONGRESS

Author(s): Nebojša Ranđelović / Language(s): English / Issue: 2/2015

Keywords: Serbia; Congress of Berlin; Treaty of San Stefano; Serbian-Turkish wars; Jovan Ristić; Bismarck

The Treaty of San Stefano brought peace after the Russian-Turkish and the second Serbo-Turkish wars. Russian interests prevailed in this treaty, creating Greater Bulgaria as a Russian interest sphere, among other things. This state of things did not bode well with European powers, which found the possibility of regulating the new state ofEurope in convening the Congress of Berlin and revising the Treaty of San Stefano. At the Congress,Serbia, still a vassal country de jure, could not participate, so it defended its interests by a whole spectre of diplomatic activities, on the margins of the Congress and in the capitals of the powers that had the power to decide at the Congress.Serbia did not attain the maximum of its interests, but what it did attain was much more than what the Treaty of San Stefano offered.

LEGAL STATUS OF CIVIL SERVANTS - BASIC SOLUTIONS

LEGAL STATUS OF CIVIL SERVANTS - BASIC SOLUTIONS

Author(s): Aleksandra Ilić Petković / Language(s): English / Issue: 2/2015

Keywords: civil servants; legal position; basic law; special laws

Different organs of state administration employ a large number of people of different qualifications and different jobs. Some of them perform simple tasks, while others perform more complex ones, including management. The issue of legal status of civil servants has been thoroughly regulated by a special law - the Law on Civil Servants from 2005. Individual issues are regulated by other laws. Thus, the status of civil servants is regulated by many laws, so there is the impression of the inhomogeneity of regulations. Questions of legal status of civil servants are complex. Many can be discussed from various aspects. There are different standards and comparative experiences. In any case, a comprehensive understanding of the position of civil servants creates conditions for further improvement of the civil service system in the state administration and paves the way towards the creation of a new legal discipline, such as civil service law.

WHAT NEEDS TO BE CHANGED IN SERBIAN LEGAL REGIME OF ELECTORAL RIGHTS PROTECTION?

WHAT NEEDS TO BE CHANGED IN SERBIAN LEGAL REGIME OF ELECTORAL RIGHTS PROTECTION?

Author(s): Dejan Vučetić / Language(s): English / Issue: 2/2015

Keywords: elections; electoral disputes; protection of electoral rights; electoral administration; Administrative Court

This paper gives deep and thorough analysis of the Serbian system for protection of electoral rights, both parliamentary and municipal, and its shortcomings. After analysing legal position, powers and comepetences, duties and responsibilities of electoral commissions (Republic and municipal ones), Administrative Court and the Constitutional Court, author comes to a conclusion that legal protection of electoral rights can be improved by increasing transparency, clarifying the nature of "silence" of the electoral administration actions, as well as with providing the electoral administration with power to protect electoral rights ex officio, expanding the scope of the Administrative Court’s decisions in the dispute of full jurisdiction and by specifying the role of the Constitutional Court along with continuing re-education of all participants in the electoral process.

BENCHMARKING ANALYSIS OF THE BALKAN COUNTRIES ACCORDING TO THE CORRUPTION PERCEPTION INDEX

BENCHMARKING ANALYSIS OF THE BALKAN COUNTRIES ACCORDING TO THE CORRUPTION PERCEPTION INDEX

Author(s): Jelena Stanojević,Darko Dimovski / Language(s): English / Issue: 2/2015

Keywords: benchmarking; corruption; Balkan countries; European Union

The aim of this paper is to analyze the position of the Balkan countries, according to the Corruption Perception Index (CPI). Due to the efforts of the Balkans countries to improve their level of economic development and for some of them that are not already, to become members of the European Union (EU), the average of relevant indicator for the EU is used as a benchmark in the analysis. The purpose of the paper is to identify deviations of the Balkans in the level of corruption in relation to the EU and to each other. Also, the aim is to formulate recommendations for the possible reduction of corruption and improvement of the position of these countries with regards to the CPI.