‘Amne Adverso’ Means ‘Looking Upstream’. Remarks on the Book by Laurent Waelkens, ‘Amne Adverso’. Roman Legal Heritage in European Legal Culture (Leuven University Press, 2015)

Author(s): Paulina Święcicka / Language(s): English / Issue: 4/2016

Arnaldo Momigliano, an Italian historian and an internationally renowned professor of classics and Roman law in particular, in the late sixties of the twentieth century, expressed the view about the end of the history of law as a discipline independent from positive law. This opinion led to the formation of two different approaches towards the study of Roman law: researchers practicing pure history of the ancient world (the so-called “antiquisti”), who combine historical and philological sciences and are detached from the contemporary law; and legal historians, who regard dialogue between legal historians, including Romanists, and representatives of various legal dogmatics as necessary. The first approach undoubtedly marginalises Roman law in the context of disciplines taught at universities, while the second one allows a discursive cooperation with other disciplines of law, especially positive law and legal comparatistics, or even theory and philosophy of law. According to supporters of the second approach, modern law dates back to Roman law which provides the basis for agreement between academics.From time to time reformers of legal studies have stressed the need for such model of legal studies which would equip graduates with knowledge that prepares them in the best way for their future profession, which undoubtedly is of paramount importance for the proper functioning of society. Lectures on Roman law, in its ancient and subsequent incarnations, make sense when the taught materia is associated with problems disputed in the current curriculum studiorum. What is more, the search for cross-references between various scientific materiae is a rational postulate on the level of scientific research, especially that its strength is reflected by the quality of research.The presented review of ‘Amne Adverso’. Roman Legal Heritage in European Legal Culture (Leuven University Press, 2015), the book by Laurent Waelkens, not only discusses the content, but addresses as well such issues as the presence and shape of law in Roman antiquity and its topicality for subsequent generations of lawyers - representatives of different historical schools. Finally, the review presents a possible rational model of the presence of Roman law in modern academic reality, particularly in today legal education.

‘En Çok Gözetilen Ulus Kaydı’ ve Uyuşmazlık Çözüm Yollarına İlişkin Kurallar

Author(s): Pınar Baklacı / Language(s): Turkish / Issue: 20/2009

Uluslararası ticaret ve yatırım antlaşmalarının temel ilkelerinden biri “En Çok Gözetilen Ulus Kaydı”’dır. En çok gözetilen ulus kaydı, önemli birçok çok taraflı antlaşmada ve ikili yatırım antlaşmasında kullanılmaktadır. Bu kayıt ile ilgili devlete ya da yatırımcısına diğer devletlere veya yatırımcılara gösterilen muamelenin en elverişlisi sağlanacağı için hükmün kapsamını belirlemek çok önemlidir. Özellikle yatırım uyuşmazlıklarının çözümü konusunda uluslararası tahkim başvurularında artış olduğu günümüzde bu konunun son derece dikkatli incelenerek değerlen-dirilmesi gerekmektedir. Uygulamada en çok gözetilen ulus kaydının usul kurallarına özelikle de uyuşmazlık çözüm yollarına ilişkin düzenlemelere uygulanıp uygu-lanmayacağı sorunu tartışılmış ve hakem mahkemelerinde bu konuda farklı kararlar verilmiştir. Çalışmada bu konudaki gelişmeleri yansıtabilmek için ICSID davalarından örnekler verilerek en çok gözetilen ulus kaydının uygulanması tartışılmakta ve aynı zamanda yol gösterici olması açısından “Model İkili Yatırım Antlaşmalarının” ilgili düzenlemelerine değinilmektedir.

‘The Court of the Last Word.’ Competences of the Polish Constitutional Tribunal in the Review of European Union Law

Author(s): Nina Półtorak,Sławomir Dudzik / Language(s): English / Issue: 15/2012

In its judgment of 16 November 2011 in case SK 45/09, the Polish Constitutional Tribunal (CT) called itself ‘the court of the last word.’ This self-determination aptly characterises the entire hitherto delivered line of jurisprudence of the Tribunal in European matters. In spite of the persevering doubts as to the scope of its jurisdiction at the juncture of EU and Polish law, eventually the CT has always come to confirm its competence to review the conformity of challenged EU law provisions with the Polish Constitution. The approach of the CT reflects the way the Court understands the constitutional principle of the primacy of the Constitution as the supreme law of the land in Poland. The aim of this article is to present and analyse the legal views of the Constitutional Tribunal regarding the review in Polish courts of European Union law. Firstly the article concentrates on the review of primary EU law as to its compatibility with the Polish Constitution, and then on the review of secondary EU law. The article also tries to answer the question whether the position taken by the Constitutional Tribunal and its argumentation is consistent with both EU law and Polish constitutional law, and what the consequences are for the jurisdiction of the¸CT and constitutional claims.

‘Wrong Price Tag’ at a Supermarket in the Focus of General Principles of Law

Author(s): Sergei Viktorovich KOROLEV,Yuri Leonidovich SHULZHENKO,Ekaterina Petrovna RUSAKOVA,Albina Ramazanovna BATYAEVA,Mikhail Nikolayevich Dudin / Language(s): English / Issue: 33/2018

The article compares the German and Russian sales contract models by the example of civil cases illustrating the specifics of shopping at a supermarket. Analyzing the ratio of offer and acceptance, as well as the specifics of invitatio ad offerendum and the so-called public agreement, the authors capture the gaps of legal regulation for both models. Basing on the materials presented in this article, the authors consider it necessary to formulate the following main conclusions: legal uncertainties exist not only in the civil and economic transactions in Russia and Germany. The civil cases considered in this article were studied not only from the perspective of national legislation norms of Germany and Russia but also in the context of general principles of law, the reasonable person standard and the trust protection principle; the model of the sales contract adopted in the Russian law leaves the seller and the buyer in a stalemate when solving the problem of a wrong price tag at the supermarket checkout. Moreover, such model in the trend creates a complex legal and technical issue. On the contrary, the German law model of the sales contract unambiguously indicates the fact that it is impossible to recognize the wrong price tag as mandatory, as this contravenes with the freedom-of-contract doctrine; the dominant paradigm of legal positivism determines that legal value is given only to the principles clearly entrenched in the active legislation. In the absence of positive law standards, these gaps can be filled by applying the general principles of law recognized by the civilized nations.

’EMPLOYING’ OF SELF-EMPLOYED PERSONS

Author(s): Marián Mészáros / Language(s): English / Issue: 1/2018

This paper deals with topic on potential legal consequences in case of contracted self-employed entities which would perform dependent activity (i.e. work). This paper provides a comprehensive overview of contracting self-employed persons to perform dependent work. This paper not only deals with legality of such practice in the Slovak Republic but also examines and assesses the legal practice of the relevant and competent public authorities in this sphere. Besides the evaluation of the legal situation in the Slovak Republic, this paper also provides an overview of the existing legislation mostly in the Czech Republic as well as an overview of recent case-law of the European Court of Justice in this particular sphere. In this paper author provide analysis of legal issue of employment of self-employed persons not only from the viewpoint of legal system of the Slovak and Czech Republic but also examines this phenomenon using an analytical and comparative method with selected European countries. The aim of this paper was from acquired knowledges draw conclusions and proposals de lege ferenda for the Slovak legislator and public authorities to improve the solution to this legal problem. In conclusion of this paper are mentioned recommendations for another research in this area.

“[…] DUAE SUNT POSITIONES, PUBLICUM ET PRIVATUM”: A PROPOSITO DELLA CRESCITA DELLA CIVITAS E DELLA CENTRALITA’ DELL’UOMO NEL SISTEMA GIURIDICO ROMANO

Author(s): Maria Teresa Capozza / Language(s): Italian / Issue: 2/2019

This paper aims to show as the distinction between ius publicum and ius privatum expressed by Ulpian in D. 1.1.1.2 has to be interpreted in the light of the unceasing interlocution which the duae positiones of the studium iuris are supposed to. Such interlocution clearly emerges from the analised sources and it is linked on one side to the concept of utilitas and on the other side to the unitarism of the Roman juridical system (ars boni et aequi). Furthermore, survey shows that the constant intertwining between ius publicum and ius privatum is justified by something deeper: by the need to ensure the increase of civitas and by the central role of human being as regards the scientific development of the Roman Jurists.

“AGREEMENTS”, “DECISIONS” AND “CONCERTED PRACTICES”: KEY CONCEPTS IN THE ANALYSIS OF ANTICOMPETITIVE AGREEMENTS

Author(s): Cristina Cucu / Language(s): English / Issue: 1/2013

In their economic activity, undertakings conclude many agreements between them. But agreements between undertakings which can distort the competition -anticompetitive agreements- are prohibited. The Romanian and EU law prohibit “all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition”. However, the terms ”agreements”, ”decisions” or ”concerted practices” are nowhere defined in the EU Treaties or in the Romanian law. These terms are key concepts in the analysis of anticompetitive agreements which can distort the competition. In the lack of a legal definition, these concepts have generated a complex body of jurisprudence, which has to be identified. The analysis of these key concepts necessarily entails the conceptual delimitation of the notions. On this purpose, the relevant legal provisions will be identified in the Romanian and EU law, as well as the decisions of the European Court of Justice in this matter. The present paper intends to present the conceptual evolution of the analysed notions, paying special attention to concerted practices and to parallel behaviour in price fixing on the market.

“Aryanization” Expanded?

Patent Rights of Jews under the Nazi Regime

Author(s): Lida Barner / Language(s): English / Publication Year: 0

The following chapter examines the fate of intellectual property rights owned by Jews who lived in Nazi-occupied Europe. When the authors and inventors of creations protected by patent, trademark and copyright law were defined as “non-Aryan” and purged from society, what became of the rights to their innovations and the creations themselves? One of the few statements to be found relating to these aspects was by Göring in 1938:“Jewish patents are property values and as such are to be Aryanized as well.” However, what he and others considered “Jewish patents,” whether this call for “aryanization” (that is, the transfer to “Aryans”) was to extend to other types of intellectual property, and how it was put into practice has been largely unexplored.

“BEHIND THE ISLAMIC FULL VEIL AND HEADSCARF IN THE FRAMEOWRK OF THE COUNCIL OF EUROPE”

Author(s): Alvarez Salvador Perez / Language(s): English / Issue: 03 (16)/2012

The term Hijab has been customarily used to talk about the veil of the Muslim women as a duty imposed by their religious beliefs. The result of these inconsistencies is that we will focus on the original meaning of the rules of the classic Islamic Law namely, the idea that wearing the full veil and headscarf in the public sphere is a religious duty for Muslim women who live in democratic societies. The study of this issue is necessary in order to analyze the proportionality of the recommendations that have been established by the Council of Europe and legal restrictions on the right to wear such religious dresses that have been introduced the European Court of Human Rights.

“Catch 23” — Izmjene Ustava RH radi ispunjavanja političkih kriterija za članstvo u EU

Author(s): Kristian Turkalj / Language(s): Bosnian,Croatian,Serbian / Issue: 11/2013

Od stjecanja nezavisnosti, ali vjerojatno i znatno prije toga, Hrvatska se usmjerila prema zapadu i vrijednostima koje nosi Europska unija. To usmjerenje je odražavalo težnju hrvatskog naroda za boljitkom i dostizanjem standarda, kako onih gospodarskih tako i onih demokratskih, koji vladaju u zemljama zapadne demokracije. Put integracije Hrvatske u sustav Europske unije bio je dug i trnovit, prožet mnogim bolnim reformama, te često praćen osjećajem nepravednih zahtjeva koji se ne ostvaruju niti u mnogim državama članicama Europske unije. Unatoč tome Hrvatska je uspjela savladati sve prepreke te došla na domak članstva u Europskoj uniji.

“Common Good of Marriage and the Family.” Canonical Reflections

Author(s): Andrzej Pastwa / Language(s): English / Issue: 1/2015

The initial thesis of the study is John Paul II’s proclamation in the Letter to Family (1994), which states that an individual can exist “for himself” through the sincere gift of self—and, at the same time, fulfill himself as “common good”: “the common good of the whole of the society” and “the common good of marriage and the family” (nn. 10, 11). These latter words give an impulse to undertake an attempt of transforming the profound theological thought of the papal document into conclusions on the canon law plane. The most fundamental ones seem to be: (1) a considerable meaning for the Church matrimonial discipline has its foundation on a realistic vision of a human being; (2) a basis of the contemporary theological and legal doctrine de matrimonio et familia is the structural (ethical) principle of love; (3) the acceptance of the appropriate premises of the juridical anthropology of marriage gives life to all attempts of setting the personalistic dimension of marriage against its legal value; (4) the indissoluble character of marriage is the basis of the common good of the family.

“Creditor rem sibi oppignoratam a debitore emere non potest” (Brev. IP. 2, 12, 6)

Author(s): Magdolna Szűcs / Language(s): English / Issue: 2/2011

In the Lex Romana Visigothorum is present the rule on the prohibition to the pledgee to buy the pledged thing from the debtor. The author analyzing the texts of the Breviary intends to answer the question: why the texts of Pauli Sententiae and the Constantine’s constitution on commissoria rescindenda were interpreted as a prohibition to the creditor to purchase the object of the pledge from the debtor? By the interpretations the new rule was introduced which is contrary to the classical and Justinian’s law. Accepting the opinion that the ius was subordinated to the leges and even harmonized with it in the Breviary, the research embraces also those imperial constitutions which can show the circumstances in which the rule was made. Using both, the dogmatic and historical method, the author’s conclusion is that creditors used sale contract to cover unlawful appropriation of the debtor’s property. This practice and the problems of Vth century were well known to the interpreters and to the people as well, therefore the rule expresses the common understanding

“CSI: WARSAW” – Crime Scene Investigation Training at the University of Warsaw

Author(s): Kacper Gradoń / Language(s): English / Issue: 62/2016

The author presents the position of forensic and investigative sciences within the framework of legal education at Polish universities. The paper confronts the traditional scope of the highly theoretical criminalistics/forensics courses with the modern and innovative hands-on workshops designed and successfully employed at the Faculty of Law and Administration, University of Warsaw. The educational project nicknamed “CSI: Warsaw” was designed in order to mitigate the pop-culture driven and unrealistic expectations of the general public towards the potential and effectiveness of the investigative sciences (an approach known as the “CSI Effect”). The practical course of crime scene analysis, evidence collection and interpretation became and instantly popular and sought-after part of the University of Warsaw curriculum. The paper describes the outline and structure of the course, providing the description of the students’ selection process, the nature of the highly realistic, hands-on and real-time exercises and their assessment, as well as the practical effects for the course graduates when they enter the job market in the legal and law-enforcement professions.

“Defect of Sex”: Exclusion of Women from Jury Service in Istria 1873 – 1918

Author(s): Dunja Pastović / Language(s): English / Issue: 1/2016

Upon adopting the institution of jury from English Common Law, European continental legislation also took the view according to which jury service was reserved exclusively for men. The exclusion of women from jury service was also adopted by the Austrian legislator who explicitly prescribed male sex among the prerequisites for performing jury service. Legal theorists did not offer any explanation for such a decision. Only with the expressing of demands for the introduction of jury service for women at the beginning of the twentieth century did the opponents of these demands start to express arguments against the idea of female jurors. This paper will give a brief overview of the legal and social status of women in Istria and their potential impact on the ability to perform jury duty. Emphasis will be placed on showing the reasons and opinions (expressed in legal literature, parliamentary debates and the press) why women were considered incapable of performing jury service until the collapse of the Austro-Hungarian Monarchy.

„КВAЛИTET ВAЗДУХA“ У ПРOПИСИMA РEПУБЛИКE СРБИJE И EВРOПСКE УНИJE (OД НEJAСНE ДEФИНИЦИJE ДO СЛOЖEНOГ СИСTEMA ЗAШTИTE ВAЗДУХA)

Author(s): Dragoljub Todić,Ivan Dujić / Language(s): Serbian / Issue: 87/2020

The introductory part of the paper highlights the importance of ‘air quality’ and provides methodological clarifications. The second part of the paper compares some elements of the legal systems of the Republic of Serbia (RS) and the European Union (EU) in the field of air protection: the existence of strategic documents in the field of air protection, legal framework, legal definition of the term ‘air quality’, prescribing pollutants that threaten ‘air quality’, prescribing the competencies of respective authorities and bodies in the field of air protection, setting up zones and agglomerations, monitoring ‘air quality’, informing the public about ‘air quality’, and the status in relevant treaties relating to air quality. The main objective of the paper is to identify the position that ‘air quality’ occupies in the legal system of RS, and the EU (respectively), as well as to analyse the level of compliance of RS internal regulations with the relevant EU regulations. In conclusion, it is noted that a significant part of the rules deriving directly from the Air Quality Directive 2008/50/ EC has been transposed into the internal regulations of RS. However, another part of the rules are yet to be transposed. Notably, the law does not clearly define what exactly the term ‘air quality’ means, although the term occupies a significant place in RS and the EU regulations. The content of this term should be interpreted in the context of the air protection system as a whole.

„Наказателният потенциал“ на някои принудително административни мерки

Author(s): Miroslava Chifchieva / Language(s): Bulgarian / Issue: 2/2020

The present article discusses the question about the main differences between coerciveadministrative measures and administrative penalties as manifestations of administrative coercion. Emphasis is placed on the issue of the „criminal potential” of some specific coercive administrative measures, which regardless of the qualification of the law, are essentially administrative penalties.

„ПРИВИЛЕГИРОВАН ДРУЖЕСТВЕН ДЯЛ” В ООД ЗА УГОВОРЕНОТО „ДРУГО” В РАЗПОРЕДБИТЕ НА ТЪРГОВСКИЯ ЗАКОН

Author(s): József Modra,Raya Ilieva / Language(s): Bulgarian / Issue: 3/2019

This article discusses whether the term preference share may exist in a limited liability company. It explores some possible deviations from the legislative provisions by setting up privileges for certain partners, without infringing the fundamental principle for equality. In order to justify their statements, the authors apply comparative law methods using for basis the Bulgarian, Hungarian, German and Russian law. They point out relevant examples from the case law of the Supreme Court of Cassation

–History of the Legal Profession in Romania – –moments, people and personalities –

Author(s): F R I E D M A N N – N I C O L E S C U Iosif / Language(s): English / Issue: 4/2015

Short History of legal profession in Romania presents several personalities of national legal culture

№216. From Lisbon to Deauville: Practicalities of the Lisbon treaty revision(s)

Author(s): Piotr Maciej Kaczyński,Peadar ó Broin / Language(s): English / Publication Year: 2010

It has only been one year since the Treaty of Lisbon entered into force and already there is a stack of pending issues requiring primary law change in the EU. The Franco-German Deauville Declaration of 18 October 2010 is probably the most politically prominent of them all, yet it is not the first, nor will it be the last in a long, incremental process of constant treaty revision similar to the national process of amending national constitutions. All of these proposals have one feature in common: none of them is an overarching treaty change and each one is designed in such a way that amends only one element of the system. This, in theory, should avoid the need to submit the change to public referenda in the EU as part of the ratification process. This paper explores the political difficulties of treaty reform in the context of five pending revisions. It first looks at the Deauville Declaration and its translation into political and legal reality. The second part is dedicated to the four other treaty revisions on the European agenda. Finally, it focuses on some of the potential problems in the ratification phase.

حق التصرف بالأراضي الأميرية

Author(s): Mahmoud Saadeddin Shaban / Language(s): Arabic / Issue: 1/2019

That the right to disposition is a major issue of the Royal Land, Since the form of the right of disposal is different from the other contract; The fuqaha 'differed in its description, And tried hard to explain its provisions. And that the princely lands are linked to the laws issued by the Sultan; There have been changes to the right of disposition as time progresses, This opens the way for the search for the relationship between the tenant and the public treasury, And the characterization of this contract between the two parties, From birth to the laws of the last sultans.