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This paper focuses on the analysis of the phenomenon of domestic violence and the distinctive features for which is it may be recognized as a specific form of torture and/or terrorism at home. The author provides an overview of the scientific debate among feminist authors on this conception which has given rise to an innovative approach to understanding the concept of domestic violence. Underscoring the substantive similarity of domestic violence with the acts of torture and/or terrorism, the author urges for state action arguing that domestic violence as a form of gender-based violence should be approached by applying the same logic and strategies which are employed in response to traditional torture and terrorism.
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In the contemporary democratic societies, equality between men and women is one of the fundamental human rights as well as the key moral and legal value. In order to be exercised, this right must be legally recognized and efficiently exercised in all aspects of human life: political, economic, social and cultural. Experience has shown that an effective exercise of gender equality calls for integrating the gender perspective into all public policies, at all levels and in all decision-making processes. The necessary prerequisite is a proper institutional and legal framework. The institutional framework in the field of gender equality includes institutions operating within the legislative and the executive branch, as well as those involved in the protection of gender equality. The jurisdiction of the institutional mechanism within the legislative branch is defined in general terms and it does not reflect the multi-sectoral nature of activities covered by this operative body. The Gender Equality Council and the Gender Equality Agency, which were operative until the year 2014, differed in their composition and membership selection method, and they had different positions in the structure of executive authorities; the content and scope of their jurisdiction was not clearly defined, nor were they vested with sufficient and relevant powers. For that reason, it is essential to establish a new structure of institutional mechanisms within the executive branch as soon as possible. In that course, it should be ascertained that these institutions have direct communication with the government, and their competences have to be regulated adequately and precisely. In order to ensure that the normative and other measures and activities produce good results, it is necessary to provide and sustain an inter-sectoral approach to gender equality and create systemic presumptions and adequate procedures which will provide for utmost coordination and cooperation of all relevant state authorities. In addition, it is crucial to improve the capacity of independent bodies, to ascertain effective access to justice and to ensure a suitable quality and efficiency in the work of the judiciary.
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Студија др Бојана Ковачевића „Скривени федерализам: Федералистичко искуство у процесима европских интеграција“ настала је у тренутку када се политичке науке и теорија државе и права налазе у кризи без озбиљних теоријских и емпиријских резултата, варирајући већ постојеће концепте и појмове на нивоу прегледног или парафразирајућег.
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Правни факултет Универзитета у Нишу, у склопу обележавања 54. годишњице рада факултета, 16. маја 2014. године организовао је Међународну научну конференцију на тему „Усклађивање права Србије са правом Европске уније“.
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The idea of sustainable development has developed within the triangular framework of economic, social and environmental policy. It has been the result of man’s endeavor in the course of development of mankind to harmonize the relations between economy and ecology for the purpose of satisfying the present needs but without endangering the prospects of future generations to satisfy their own needs. The principle of sustainable development has been present in the international legislation for the past 40 years. The antagonism between economy and ecology has never ceased. Quite the reverse, at the beginning of the 21st century, mankind has encountered the dramatic effects of the rampant global politics and the unpromising prospects of man’s subsistence and development. The reason is certainly to be found in the fact that the environment protection policy does not have an adequate legal framework, which is not a matter of legal technique but a matter of substance in global politics. Consequently, this discussion on the legal nature of sustainable development takes us from technique to substance. First, the author analyzes the international legislation and judicature on the issues of sustainable development; thereupon, the author concludes that the principle of sustainable development has not obtained the rank and the outreach of a legal principle (source of law) in the international law, which ultimately makes the very existence of environmental law highly disputable. If sustainable development as a fundamental principle (supra-principle) does not have the power of a binding principle, the existing international legal sources concerning certain aspects of the living environment are nothing but arable land covered by sand. Actually, the significant feature of the existing international sources on sustainable development is “the legal ideology” which, being an instrument of environmental policy rather than an instrument of environmental law, actually reflects the governing modus operandi of the covert power-holders. When this issue is observed from the aspect of national law, some legal scholars consider that “environmental law” is a branch of law. However, this standpoint is based on the normativists’ misconception that the law equals the norm. As a matter of fact, the norm is only a source for the creation of law, whereas law implies the entire body of legal relations and legal institutes. With this in mind, the essential condition for establishing a branch of law is that it has to be rooted in judicature. Thus, “environmental law” cannot be designated as a branch of law. Moreover, as the principle of sustainable development in the national legislation is rooted neither in the judicature nor in the legal perception, this fact has given rise to the conclusion that it may be qualified as a purely declarative legal-political principle. In that context, the author discusses the concept and the classification of legal principles as a necessary presumption for shaping the regulatory legal nature of the principle of sustainable development. Finally, in this article, the author discusses the actual foundations of environmental, economic and social aspect of the idea of sustainable development in the system of neo-liberal global capitalism (imperialism), with specific reference to the ruling method of covert power-holders.
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Легитимни хируршки захват у човеково тело претпоставља три битна услова: 1) медицинску индикацију захвата; 2) пристанак обавештеног пацијента на захват; 3) поступање лекара (хирурга) према правилима струке и пажљиво. Ако неки од тих услова недостаје, хируршки захват има карактер лекарске грешке што повлачи одговорност лекара. To је чврст правни став, који је довољно разјашњен и у нашој домаћој стручној литератури.Није, међутим,у довољној мери разјашњен однос између медицинске индикације захвата и пацијентовог права на самоодређење у односу на властито тело. У том контексту, намећу се три практична питања. Прво, да ли пацијентово право на самоодређење подразумева и могућност да пацијент учествује у одређивању медицинске индикације поступка за његово лечење, или се то право своди искључиво на овлашћење да пристане или не пристане на оно што му лекар предложи. Друго, може ли пристанак или чак упорно настојање пацијента да оправда хируршки захват у његово тело који није медицински индикован? При том су могуће две различите ситуације, тј. да је лекар свестан недостатка индикације захвата или да погрешно сматра да индикација постоји. Треће, може ли пацијент, захваљујући своме праву самоодређења, да преузме на себе одговорност за хируршки захват у своје тело који, по мишљењу лекара, није медицински индикован? Другим речима, може ли се одговорност лекара за медицински захват споразумом између њега и пацијента унапред искључити?На основу спроведених истраживања, аутор ће закључити да неиндиковани хируршки захват у пацијентово тело представља правно недопустив чин, лекарску грешку, која повлачи одговорност. Ни упорно настојање пацијента да се такав захват обави није у стању да промени његову противправну природу. Јер лекар има и правну и моралну обавезу да пре било каквог захвата у пацијентово тело постави његову медицинску индикацију. Ако неиндикованим поступком нанесе штету пацијентовом здрављу, следује му одговорност која се, пo правилу, не може унапред ни споразумно искључити.
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Legal remedies applied in the proceedings before the Court of Justice of the European Union have some distinctive features as compared to the legal remedies used in the national judicial systems. At first, the communitarian justice system originally did not envisage the possibility of filing an appeal with this Court as a regular legal remedy but there were other remedies that could be pursued in respect of the judgments issued by the Court. After the establishment of the Court of First Instance, the Procedural Law of the European Union introduced the possibility of filing an appeal with the Court of Justice against the judgments of the Court of First Instance. Later, the Court of First Instance became competent to decide on appeals against the judgments rendered by the judical panels, which were established in the meantime. The Court of First Instance and judical panels reserved the possibility of using other legal remedies against the final decisions rendered by these judicial authorities. In this respect, the Lisbon Treaty did not bring any significant changes, except that the Court of First Instance was renamed into the General Court whereas the judicial panels were designated as specialized courts. Taking into account the system of legal remedies recognized by the Procedural Law of the European Union, the first part of the paper deals with appeals as a regular legal instrument for bringing the case before a higher instance court which is to review the judgment of a lower instance court, including appeals against the decisions of the General Court and specialized courts. In the second part of the paper, the authors focus on the legal remedies which are awarded by the same court that issued the judgment. This category includes the application of a third party and revision, which may be considered as extraordinary legal remedies, as well as the objection against the judgment by default, judgment interpretation, judgment rectification and supplementing the judgment, which are considered to be extraordinary procedural remedies.
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A political thought is an area of legitimate contribution of competitive ideas. Liberalism is often considered as one of the most significant and influential paradigm of our times. The common acceptance of liberal conception of negative liberty can be acknowledged as a proof of this tendency. At the same time clearly visible is the renaissance of republicanism and the conception of active participation in governance. The liberal and republican assumptions have similar roots but different social practices. The aim of this paper is to examine in contrast liberal and republican conceptions of freedom. The author discusses main categories of both political traditions: state, commonwealth, common good, citizen, individualism, law, limited power and freedom itself. The author attempts to compere republicanism and liberalism as the competitive political paradigms to show the dilemmas of modern states and societies where there is no common consensus referring to definition of liberty.
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The problems of inheritance law change with the needs of society. In the era of new technologies there is a temptation to use them to achieve goals set by law. One of the areas of inheritance law that can be adapted to changing reality resulting from the possibilities created by the benevolence of technology, is the area of the form of the will. The testament, as a formal legal act, must be drawn up in a form prescribed by law. Should this form be based on new technology solutions is a dilemma, which is analyzed by the author on the example of proposals for changes in Swiss law.
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In the case of acceptance of the inheritance bearing the benefit of inventory, an heir shall be liable for inherited debts only up to the value of the assets of the estate as established in the list of the inventory or the inventory. According to Article 319 of the Polish Civil Procedure Code, if a defendant is liable under specific assets or up to the value of such assets, the court may, without specifying the assets or value thereof, uphold an action and allow the defendant to rely on his limited liability in enforcement proceedings. The problem of limited liability of heirs who have accepted the inheritance with the favour of the inventory becomes current especially in the situation of the changed legal status introducing as the principle of inheritance with the favour of the inventory. The article draws attention to the meaning of such acceptance of the inheritance on the course of enforcement proceeding. It searches for a model of how to implement this law. There are two variants which may be formed as a restriction acting under the enforcement title and taken into account ex officio or, as a consequence of an enforceable title, but taken into account on the request or the claim of a debtor exercising that right. According to Article 837 of the Code, a debtor may refer to limited liability, if such limitation is stipulated in an enforcement title. The creditor is not obliged to show the amount that is enforceable by the enforceable limitation, but the debtor should demonstrate the grounds and scope of limited liability. The conclusions include the assessment of such legal status. The second problem raised in the article related to the limited liability of the heirs is the cost of inventory and the possibility of taking it from the inheritance. The analysis of the legislation indicates that the decision on what constituents of the estate may take place can only be made by a court and not by a bailiff.
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The subject of the paper is the issue of application of the provisions governing the instruction concerning the disposal of a deposit in the event of death. The institution above mentioned is used in banking practice and cooperative banking. The legislator decided that the amounts paid on the title of the instruction concerning the disposal of the deposit in the event of death, in accordance with Article 56 sec. 1 of the Banking Act and Article 14 sec. 1 p. 2 of the Act on the Cooperative Cash Saving Bank, shall not be included in the account holder’s estate. The aim of the paper is to answer the question - how the amounts paid on the title of the instruction concerning the disposal of the deposit in the event of death should be treated given the provisions of Article 993 and 996 of the Civil Code. In her conclusions the author states that the amounts paid on the title of the instruction concerning the disposal of the deposit in the event of death should be treated in the same way as gratuitous donations, regulated by Article 993 and 996 of the Code.
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The article describes the borders of acknowledgement of the actual will of a mentally deficient testator under Polish inheritance law, which is an issue of vital importance in an ageing society. This is done by analysis of those institutions of the inheritance law, the application of which demands examination of the testator’s will assumed to be the fundament of this branch of law. By examining the legal premises of testation ability, defects of the statement of will and interpretation of the testament, as well as the practical problems connected therewith, there is an adjustment of those institutions to the specificity of the inheritance law shown together with its further protection of the testator’s will in comparison with the general rules of civil law protecting participants of the legal turnover. It is, however, also shown that still far-reaching limitations of the acknowledgement of a testator’s will, especially one with the mental deficiency, lead to a lack of legal protection of the actual and doubtless testator’s will. This is why the legal solutions acknowledging it to a greater extent are briefly described.
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The article is an analysis of substantive, procedural and practical issues concerning the appointment of an executor of a will and his duties. First, the issues related to the appointment of an executor of a will are discussed, including the possibility of restricting the content of a will to the very appointment of an executor, restrictions as to the person of the executor, and the possibility of appointing several executors whose powers overlap. The next part of the article describes problems associated with refusal to act as an executor. This is followed by an analysis of the duties and powers of executors, focusing on questions relating to the administration of an inheritance. It also raises the issue concerning the liability of an executor of a will. The article then discusses the certificates issued to executors. Finally, some practical issues are raised; the problem of overlapping competence of the executor of a will and the attorney, the trustee and the administrator appointed under the provisions of the Family and Guardianship Code, and the executor’s possibility of acting against banks.
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This article discusses the problematic aspects related to the inclusion of donations and specific bequests in the inherited share, provoking controversy in legal doctrine and judicial practice. The author presents specific issues in detail, and then goes on to express his view on each of them. The comments on the adjustment to Article 1039 of the Civil Code are not only proposals de lege lata, some are proposals de lege ferenda. Although the provision of the inclusion of donations and specific bequests in the inherited share does not seem to require immediate attention from the Polish legislator, there are many rational arguments for the above-mentioned adjustment. There are several courses of action for the possible future amendment to Article 1039 of the Civil Code: removing the obligation for the inclusion of donations and specific bequests in the inherited share or reversing the mechanism of the law in question by assuming that donations and specific bequests will be subject to inclusion only under the testator’s will. It is also conceivable that the amendment would be small, and would take into consideration the comments made in this article.
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The European Union created a common market with free movement of persons, goods, services and capital, which has resulted in the “Europeanisation” of many civil relations, including trade, contracts and family issues. In recent years, at least 30% of companies within the European Union were involved in cross-border civil and commercial activities. Such commerce is not limited to big multinational companies but also engages small and medium size enterprises, which form the core of the economy. Nevertheless, a lot of companies still refrain from cross-border relations because each commercial activity inevitably carries at least a minimum risk of legal conflict and, consequently, involvement in a cross-border judicial process. Cross-border judicial processes can bring inconveniences, beginning from the language of the process and finalizing with the foreign regulation of civil procedure and possible application of foreign substantial law. For some small and medium size enterprises this can mean a significant loss and in some instances it can ruin the business. This article presents mediation as an alternative to the judicial process and considers the advantages and deficiencies that still prevent it from becoming a totally effective tool.
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This article presents selected issues relating to the concept and realization of the right to court, comparing them with alternative methods of dispute resolution – ADR. It points out some of the causes leading to the crisis of traditional justice, and at the same time points out the advantages of alternative methods of complementary judicial procedures in those areas where they have weaknesses. There is now no doubt that the phenomenon of ADR in the current world cannot be ignored or downplayed. Slowly it begins to gain more and more importance, responding to the expectations of at least a part of the society in which the opinion of justice performed by the courts, is not able to fully satisfy their interests. Also, judges themselves are increasingly using methods of ADR, particularly mediation, seeing the case and its underlying factors, more suitably resolved by the parties themselves than by a decision made by the court. This could be due to various reasons: the complexity of the dispute, the dominant role of personal conflicts between the conflicting parties and therewith to the creation of communication barriers, more so than a straightforward legal issue. In these situations, because the court is rather powerless and doubtful despite the possibility of a binding decision by the judge, such judgement will probably be far from what the parties expected or consider to be “fair”.
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For the first time since mediation was introduced in the Code of Civil Procedure in 2005, the Polish legislator recognized the need to develop comprehensive changes in the procedure. Since the 1 January 2016 amendment, judges are expected to take a more important part in encouraging mediation. These amendments assume that citizens will be more willing to participate in mediation when they are aware of what it is and the procedure of mediation is better known. The amendments saw mediation as a remedy to lighten the work of the courts. This article attempts to analyze the changes from the judges’ point of view and their experience with mediation. In particular, the article identifies barriers in directing cases to mediation recognized by judges on the basis of the law before the amendments. These considerations also shall indicate whether the current shape of the procedures, evaluated by the judges, has a chance to shorten disputes, improve court proceedings and reduce the cost of lawsuits.
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The Supreme Court in its resolution adopted on 17th March 2017 r. (III CZP 110/16) indicated that “It is admissible to conclude a contract on a waiver of legitime (Article 1048 of the Civil Code)”. So far this matter has been presented diversely in the law doctrine, with the majority of voices in favour of the admissibility of such contract. A legal basis of this institution has been deduced from the provision enabling to conclude a contract on a waiver of succession, using a maiori ad maius inference – if it is permitted to waive of succession, it may also be permitted to waive of legitime, which is a right that derivates from the right of succession. The argument for the admissibility of the contract on a waiver of legitime is enlarging the freedom of a person to dispose of their assets aft er death. Concluding such a contract is particularly essential when a sole proprietor makes a succession plan for his enterprise. The Supreme Court’s standpoint should be assessed positively, it emphasizes the signifcance of freedom of succession in all institutions of inheritance law.
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The procedure of concluding ‘concordat’ marriage covers a complex of specific actions whose fulfilment is necessary for an effective occurrence of marriage in the area of the Polish law and the Catholic Church law. In its course one can distinguish a few comprising stages, i.e. actions preceding conclusion of marriage, actions associated with concluding marriage and actions connected with registration of marriage. The subject at issue contains both administrative law and civil law elements. The goal of the article is to determine which elements from the procedure of concluding ‘concordat’ marriage have the administrative character and which of them fall within the scope of the civil law interest. Moreover, attention has been paid to a mode of regulating rules which standardize the procedure of concluding ‘concordat’ marriage in the context of reception of legal and canonical norms in the area of the mentioned fields of the Polish law.
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