ЗА „ЗАМЕСТВАЩИТЕ“ ДОХОДИ НА ЛИЦАТА В НАПРЕДНАЛА ВЪЗРАСТ – ВЪПРОС НА ИЗБОР ИЛИ НА ИКОНОМИЧЕСКА ПРИНУДА Е ВЪЗРАСТНИТЕ ХОРА ДА ТЪРСЯТ ТРУДОВИ ДОХОДИ?

Author(s): Andrey Aleksandrov / Language(s): Bulgarian / Publication Year: 0

The Bulgarian legislation in force is governed by the logic that the main income sources of a working-age person shall be the incomes from labor activity. Upon loss of working capacity as a result of the occurrence of social security risk, the persons shall be entitled to social security payment replacing the lost labor incomes. In case the preconditions for social security payments are not met, it is possible for the social assistance system to be applied. The subject of the present study is to find out whether such “replacement incomes” are suitable to adequately replace the lost incomes of people, whose age (and the related changes in their health condition) do not allow to gain subsistence means against labor activity.

За „правото на смърт“

Author(s): Nikoleta Puleva / Language(s): Bulgarian / Issue: 2/2019

The right to life is a fundamental, personal, constitutionally secured right of persons, which has the highest level of protection against the truth of order. Art. 28 of the Constitution of the Republic of Bulgaria, arrange the right to life as an accessory to every person. It is not regulated by the Bulgarian government, which has been produced on its life – the right to die. Its legal framework would contribute to the contribute of controversial issues regarding a person’s attitude to the death of persons in order to protect the basic human value – life.

За тълкувателно решение № 4 от 5 април 2006 г. на ОСГК на ВКС

Author(s): Borislav Velichkov / Language(s): Bulgarian / Issue: 3/2008

COURT PRACTICE REVIEW

За формалната страна на съдебното решение. Последици от нарушаването й

Author(s): Margarita Zlatareva / Language(s): Bulgarian / Issue: 1/2012

The paper analyses issues concerning the formal requirements about judgments. It raises the question whether the presence of each element of the legally provided mandatory contents of judgments proves its validity; the absence of any of these elements makes the judgment invalid or it makes it eligible to be annulled upon appeal (i. e. inadmissible) or reparable by the court that has declared it. There is also the issue about the significance of the absence of signature of one of the judges, where the court is composed of three judges. The author is at the opinion that the absence of any of the elements provided for in Article 236, Paragraph 1, points 1-7 of the Civil Procedure Act of the formal requirements of the judgment make it vulnerable to appeal even alongside any substantial appeal. Whether the higher instance court will accept its inadmissibility depends on the circumstance whether the absent element is implied by other means such as the reasoning of the court, the minutes of the hearing, the reading of the judgment, etc. In cases where there are irreparable formal deficiencies of the judgment such as absence of signature or there is the signature of a person who is not authorized to deliver justice, notwithstanding the instance that has delivered the judgment, the judgment is deemed to be invalid.

За характера на неустойката в приватизационния договор

Author(s): Ivaylo Kostov / Language(s): Bulgarian / Issue: 2/2006

CIVIL LAW

За характера на отговорността на управителя на дружеството с ограничена отговорност

Author(s): Milena Tsvetkovska / Language(s): Bulgarian / Issue: 2/2019

The manager is an authoritative representative of the Limited Liability Company (LLC) and in this capacity he/she has unlimited power of representation. His/her main role is to manage and represent the company in its commercial transactions, carrying out all the necessary legal and factual activities to that effect. Ultimately, the manager is the person whose activity is decisive for the company’s commercial realization in a competitive business environment. Therefore, the issue of liability ensuing from his/her potential failure to perform these obligations is of primary importance for the successful participation of the company in the realm of commerce. The topicality of the issue is determined by the fact that the conditions for realization of this liability follow the strictly established provisions of the Bulgarian Commercial Act, which must be cumulatively available for the liability to achieve its goals, on the one part, and to ensure that the rights of the managerial body will be guaranteed, on the other. Besides purely theoretical, these matters have great practical importance determined by the objective public necessity for clear and accurate setting of the limits of the liability of a manager. The purpose of this article is to characterize the manager’s liability and to clarify the limits thereof. The author makes theoretical analysis of the attributes of liability in the light of legal regulations, the different theoretical opinions and the judicial practice. On this basis, the main focal points are outlined and concrete conclusions are drawn.

За характера на споровете във връзка с медицинската експертиза

Author(s): Ivaylo Ivanov Staykov / Language(s): Bulgarian / Issue: 4/2013

In the present research paper the legal characteristics of disputes with regard to medical expertise are under analysis. The basic thesis is justified that in its legal nature these disputes constitute social security legal disputes. The issue of the twofold legal nature of the acts issued by the medical expertise bodies is under consideration, as well as the mechanism with regard to their appeal before the administrative or judicial bodies. The paper is based on an in depth study of the so far rich case-law of the Supreme Administrative Court in this area.

За характера на срока за предявяване на иска при допуснато обезпечение

Author(s): Tanya Gradinarova / Language(s): Bulgarian / Publication Year: 0

In the period since the entry into force of the current Civil Procedure Code (CPC) an extensive case law has accumulated on its application, including with respect to provisions that have introduced new institutes in the proceedings covered by the CPC. Unfortunately, in many cases this case law is controversial and necessitates the Supreme Court of Cassation (SCC) to align it through its interpretative powers under Art. 124, para. 1 of the Judicial System Act. Regarding the injunctions for a future action, the Bulgarian legislator through the provisions of Art. 390, para. 3 of the CPC has introduced two new rules for the court of the injunction: a maximum legal duration of the period for submission of the future claim of one month and the obligation of the court to revoke the granted injunction with own motion in the absence of evidence that the action was submitted within the deadline determined by the court within the one-month period. The application of these new rules has entailed different opinions in the case law, including on the level of the Supreme Court of Cassation. In many orders, held under the cassation proceedings for appellate orders under Art. 274, para. 3 CPC, the separate configurations of the SCC have held controversially on the issue: “Is it possible to extend the deadline under the conditions of Art. 63, para 1 CPC determined in the scenario under Art. 390, para. 3 regarding the submission of a future action.” The finding of different resolutions regarding the same procedural and legal issue within the current case law to the extent of court orders under Art. 274, para 3 CPC, held by different Chambers of the SCC is within the scope of the regulations under Art.292 CPC and reasons an initiation of proceedings for the upholding of an interpretive decision. In order to unify the controversial case law by the different Chambers of the SCC under the upheld procedural issue the Chairman of the SCC has held with a regulation from the 08th December 2015 an interpretive case No 4/2015 to be initiated by the General Assembly of the Civil and Commercial Division of the SCC, which is still to be held upon. The issue under discussion within this report is the critical analysis of the regulations under Art. 390, para 3 CPC as well as the existing two statements in the procedural theory and case law regarding the nature of the deadline for submission of an action in an admitted injunction. The author reasons her own statement in relation to the answer which the interpretive issue before the General Assembly of the Civil and Commercial Division of the SCC is supposed to resolve. As per the author, the deadline for submission of future action in an admitted injunction is crucial in its nature and cannot be extended beyond the determined by the CPC one-month period.

За целта на временните мерки, постановявани от Съда на Европейския съюз

Author(s): Iliyan Baychev / Language(s): Bulgarian / Issue: 1/2019

The article analyses the purpose of interim measures ordered by the CJEU. On one hand, it presents the restrictions limiting the CJEU, which are determined by this purpose. On the other hand, it also illustrates the vast discretionary powers the purpose grants the court within the procedure for adjudication of interim measures.

За частичната недействителност

Author(s): Krassimir Mitev / Language(s): Bulgarian / Issue: 4/2004

The debate concerning the consequences of the invalidity ofa single contractual clause is not a new one. A famous Roman maxim, attributed to Ulpianus says that "utile per inutile non vitiatur". It served as a starting point for modern codifications in their attempt to resolve the problem of invalidity of a contractual clause. Italian and Swiss legislative practice followed the Roman maxim, whereas German legislation rejected that solution. Usually, the chosen model of legal regulation of the invalidity of the separate contractual clause was explained with the related concepts of autonomy of will and freedom of contract. In this article, the author presents two theoretical models of partial invalidity: the one based on the theory of autonomy of will and freedom of contract and the other -on utilitarian theories of contract. He also examines Bulgarian civil law to see whether it follows either of these theoretical models and concludes that it accepts principles from both.

За чл.кор. проф. д.ю.н. Александър Янков

Author(s): Todor Koburov / Language(s): Bulgarian / Issue: 4/2019

За юридическата отговорност за нарушения на закона от публични институции

Author(s): Yanaki Stoilov / Language(s): Bulgarian / Publication Year: 0

: This article addresses the complex and current problem of legal liability in cases of breach of regulations by public institutions.The first part deals with the general questions of responsibility for breaking the law by such institutions. Institutions to which the state entrusts the performance of public functions are becoming more and more obliged to hold them accountable in case of violation of the rights of natural and legal persons. The discretion of public authorities at national and European level tends to be limited by the rights of citizens and the principle of legal equality. Offenses committed by public institutions may be committed by action or omission. It is more difficult to exercise liability in the event of inaction, because in many cases it is not possible for another authority to issue the legal act necessary for the realization of the rights.The second part deals with the issue of legal protection when normative acts violate the law. Cases have been considered with regard to under-laws acts contrary to the law as well as to laws which are contrary to the constitution. Attention has been paid to cases where a law has been declared unconstitutional but no action has been taken to settle the consequences on the part of the body issuing the unlawful act. Decisions are justified that take into account the need to reconcile the rule of law, the supremacy of the constitution and the separation of powers. The measures taken at European level against unlawful actions/omissions of public institutions are also noted. The introduction of the right to good administration plays a special role in this regard.

За юридическия характер на методиката за определяне на санкциите по Закона за защита на конкуренцията

Author(s): Asen Mingov / Language(s): Bulgarian / Issue: 1/2015

The article analyzes the power of Commission on Protection of Competition to adopt the rules used in setting pecuniary sanctions, fines, periodic penalty payments and periodic fines, imposed on undertakings, associations of undertakings or natural persons for infringements committed by them under the LPC. According to the author the Methodology is issued by an independent specialised state body, explicitly authorized by article 100 (4) of the Law on protection of competition, contains administrative legal norms, concerns indefinite and unlimited number of addressees, has repeated legal action and by its legal nature is normative administrative act.

ЗАБАВАТА НА ИЗПЪЛНЕНИЕТО УВЕЛИЧАВА РИСКА! ОСОБЕНОСТИ НА MORA DEBITORIS И НЕЙНАТА ЕВОЛЮЦИЯ ОТ ДРЕВНИЯ РИМ ДО БЪДЕЩОТО ЕВРОПЕЙСКО ПРАВО

Author(s): Jean-François Gerkens / Language(s): Bulgarian / Issue: 1/2016

The question of the evolution of the effects of the debtor's delay in performance will be addressed here through a particular case: when the debtor is obliged to deliver a specific thing in a specific time and he does not, after which delayed performance becomes impossible by the occurrence of a force majeure. Imagine that John is required to deliver to Pierre a horse called Lightning on March 1st. Jean does not deliver Lightning on the scheduled date and this horse dies naturally on March 10th. The question then is: does John remain bound by his obligation, or is it Peter who bears the risk? This case seems to have received a similar answer in the different modern legal systems of Europe and Latin America.

Забезпечення законності під час відкриття іншій стороні речових доказів у порядку статті 290 Кримінального процесуального кодексу України

Author(s): I. O. Krytska / Language(s): Ukrainian / Issue: 146/2019

The article is devoted to the consideration of the issue regarding the specifics of the procedure for the disclosure of physical evidence to the defense at the end of the preliminary investigation before sending the indictment to the court. This question is investigated under three points of view: de jure (formally, by law), de facto (in fact, as is the case in practice) and de lege ferenda (from the point of view of the law, the adoption of which is desirable).The main areas of research are: (1) analysis of the possibility of the existence of exceptions from the general rule on the mandatory disclosure of physical evidence, regulated by Art. 290 of Criminal Procedural Code of Ukraine. Based on the analysis of law enforcement positions, the author concludes that all material evidence that is at the disposal of the prosecution should be disclosed to the defense. When they are transferred for safekeeping to individuals, it is enough that the defense side is informed of the fact of the existence of such physical evidence in criminal proceedings; (2) determination of the peculiarities of the procedural and organizational order for disclosure of material evidence. In particular, according to the author, it is advisable for the prosecution to draw up a protocol providing access to the materials with an attachment to it in the form of a description of the materials provided, since in such a case there is hardly a risk that the investigator will not indicate the material evidence that was not stored among the sheets criminal proceedings, and in other places. But taking into account Part 1 of Art. 104 of the CPC, to ensure legal certainty, the author proposes the introduction of appropriate legislative amendments; (3) clarification of the procedural consequences of non-disclosure of material evidence to the other party in accordance with Art. 290 Criminal Procedural Code. In this aspect, the article focuses on the fact that the purpose of the regulatory requirements set forth in Art. 290 of the Criminal Procedural Code, is to ensure that the defense is aware of all the factual data collected by the prosecution during the pre-trial investigation that she wishes to use in court proceedings, and she had the opportunity to investigate and challenge in court on a par with the prosecution.

ЗАБРАВЕНАТА ИЛИ ПРЕНЕБРЕГНАТАТА БЪЛГАРСКА ДИПЛОМАЦИЯ

Author(s): Yordan Velichkov / Language(s): Bulgarian / Issue: 1/2019

The article examines certain requirements towards the diplomat, namely to objectively inform, to reasonably predict and offer not what will appeal to superiors, but ideas, in which they believe would be useful to their country, even if they are in conflict with the official state policy. Milan Milanov is one of the most striking examples of an impressive successful diplomatic career in the last century. He started his career in the UN as an attache, who often edited and corrected errors in the documents of the international organization; then he became an ambassador to France and a representative of Bulgaria to the United Nations. He is one of the leading Bulgarian journalists, talented Bulgarian diplomat, founder of the Department of “International Law and International Relations” and Vice-Dean of the Faculty of Law and History of the South-West University “Neofit Rilski” – Blagoevgrad. He has left indelible traces in the minds of thousands of students whose lecturer he has been for over 20 years. Prof. Milanov has also been a Director of the Diplomatic Institute to the Minister of Foreign Affairs for four years.

ЗАБРАНА REFORMATIO IN PEIUS У КРИВИЧНОМ ПОСТУПКУ

Author(s): Vojislav Đurđić / Language(s): Serbian / Issue: 17/1977

Dans cette étude est exposée l'interdiction reformatio in peius en tant qu'institution de la procédure pénale contemporaine- L'interdiction signifie dans le fond que dans la procédure d'après les voies de droit on ne peut pas prendre une décision au détriment de l'inculpé à l'occasion de la voie de droit déclarée à son profit.Eu égard qu'il y a des adversaires de l'introduction de cette institution dans la procédure pénale, on allègue les raisons pour la justification de son exi¬stence. L'auteur considère que les principes socialistes de l'humanité, de l'équité, de la sécurité juridique, ainsi que les raisons de la validité juridique du jugement et du caractère facultatif de la procédure d'après les voies de droit, justifient l'existence de l'interdiction reformatio in peius.Au sujet du volume de l'application qui est également examiné, on s'est placé sur le point de vue que l'interdiction se rapporte àl'application de la loi plus sévère, à la punition plus sévère, ainsi qu'à l'état de choses est motivée de telle façon que les faits dont on a pris connaissance dans la procédure d'après les voies de droit qui sont au détriment de l'inculpé sont considérés comme ju- ridérés comme étant prouvés et ils ne sont pas inclus dans le jugement. En tra¬itant la question du volume de l'application de l'interdiction l'auteur présente un exposé des motifs qui fait ressortir quelle loi doit être considérée comme plus sévère- et quelle peine est plus sévère pour l'inculpé dans la situation concrè¬te. Ensuite est exposée la validité de l'interdiction dans le jugement réitéré de¬vant le tribunal de première instance et l'auteur considère que les limites de sa validité sont adéquates au volume de son application devant le tribunal des voies de droit.Ensuite le rapport est déterminé de l'interdiction reformatio in peius d'après la modification et l'élargissement de la plainte, et de la possibilité du plaignant autorisé de présentar de nouveaux faits et de proposer de nouvelles preuves. La position est prise que la modification de la plainte au dépens de l'inculpé exclut cette institution. La même chose se rapporte aux nouveaux faits et preuves au dépens de l'inculpé. A cause de l'effet absolu de l'interdiction l'au¬teur considère que l'interdiction reformatio in peius est valable aussi dans la procédure d'après les voies de droit initiée sur la décision prise dans le jugement réitéré devant le tribunal de première instance.A la fin est examiné le problème de la validité de l'interdiction quand le plaignant autorisé a engagé les voies de droit en même temps que le prévenu^ Si les voies de droit sont angagées seulement au dépens du prévenu l'interdiction n'est pas valable, mais si elles sont initiées au profit, sans égards si elles sont engagées seulement par le prévenu ou aussi par le prévenu et par le plaignant autorisé, l'interdiction est valable. Dans la situation litigieuse lorsque avec l'in¬culpé les voies de droit ont été engagées aussi par le plaignant autorisé, mais à ses dépens, l'auteur considère que la validité de l'interdiction reformatio in peius dépénd du fait à l'occasion de quelle voie de droit le tribunal rend ladécision. Ainsi, si la voie de droit prononcée au dépens de l'inculpé, est écartée ou refu¬sée, l'interdiction est valable, car le tribunal peut rendre la décision seulement à l'occasion de la voie de droit prononcée au profit eu égard qu'il est resté seul, c'est-à-dire que lui seul existe maintenant au point de vue juridique- Dans le cas que les deux voies de droit sont adoptées, donc tant au dépens qu'au profit, l'interdiction n'est pas valable car dans cette circonstance on ne décide pas à l'occasion de la voie de droit au profit de l'inculpé, mais à l'occasion de la voie de droit à son détriment. On a en vue la situation quand les mêmes fondements légaux sont mentionnés pour attaquer le jugement. De même, toutes les autres si¬tuations sont réglées à l'aide du critère — à l'occasion de quelle voie de droit le tribunal rend la décision.

ЗАБРАНА БИОЛОШКОГ ОРУЖЈА У МЕЂУНАРОДНОМ ХУМАНИТАРНОМ ПРАВУ

Author(s): Nebojša Raičević / Language(s): Serbian / Issue: 56/2010

Once the military circles became aware that the results of the biological research might be used for warfare purposes, the immediate result was the creation of biological weapons. The effect of biological weapons is based on biological agents or toxins which are spread by special live and tehnical means for the purpose of causing contagious diseases in people, animals or plants. The biological weapons were first specifically prohibited in 1925 by the Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare. However, the serious drawbacks of the Geneva Protocol were the permission to use biological weapons in non-international armed conflicts and against the non-state parties, and the unlimited possibility of entering reservations. The Biological Weapons Convention was adopted in 1972 as an attempt to deal with these drawbacks. In addition to the use of nuclear weapons, the Convention also prohibited the production, stockpiling, development and transfer of biological weapons, and obliged the signatories (state parties) to destroy the existing stocks of these weapons. This Convention set a good legal framework for the eradication of this kind of mass destruction weapons. However, the major drawback of this Convention was the lack of a reliable mechanism of international supervision and control over the observance of the assumed obligations. All the attempts to strengthen the supervision mechanism have not yielded practical results yet.

Забрана дискриминације-међународни и национални правни оквир

Author(s): Olga Jović Prlainović / Language(s): Serbian / Publication Year: 0

The effective and efficient system of legal protection against discrimination involves the identification of different legal mechanisms to be applied in cases of discrimination. Each legal mechanism for protection against discrimination is regulated by law and each has its own object and purpose. Some are used to protect the person discriminated against, in order to prevent the repetition of discrimination and to eliminate the effects of discrimination, and some are used to discriminator was punished for what he did. In some cases of discrimination, it is sufficient to use only one mechanism, but it is sometimes necessary to use multiple mechanisms,because the only way to prevent further manifestation of discrimination.The document of the United Nations, the Council of Europe and the European Union are frameworks for the implementation of adequate normative regulations prohibiting discrimination in the national legal system. International position of the Republic of Serbia (which was in March 2012 became a candidate for membership in the European Union), imposes a special need for harmonization of national legislation with international standards (universal and regional) and their full implementation. An important moment in this direction was made with the adoption of the Law on Prohibition of Discrimination 2009. On the purpose of combatting discrimination, adopted a Strategy of prevention and protection against discrimination in 2013 as a systemic framework that uniquely integrates legal norms contained in the sectoral laws of the Republic of Serbia and the Action Plan for the implementation of the Strategy of prevention and protection from discrimination 2014- of 2018.

ЗАБРАНА КОНКУРЕНЦИЈЕ ПРЕМА ЗАКОНУ О РАДУ

Author(s): Goran Obradović / Language(s): Serbian / Issue: 42/2002

On the grounds of the legal provisions comprised in the Labour Law Act of the Republic of Serbia, in this paper the author analyses the legal institute of competition prohibition in Labour Law. The prohibition of competition is viewed primarily in the light of the freedom of labour principle, as the prohibition of competition represents one of the most significant restrictions of this freedom. Further on in the paper, the author elaborates on the standpoints of positive law pertaining to this issue.