САВРЕМЕНЕ КОНЦЕПЦИЈЕ ПОЈМА „ПОСЛОДАВАЦ“

Author(s): Marija Dragićević / Language(s): Serbian Issue: 94/2022

The contemporary labour legislation, as a rule, provides the definition of the term “employer”. While the reason for defining the concept of “an employee” rests on the need to determine the personal field of application of labour legislation, the essence of providing a legal definition of the term “employer” is to identify the entity that is responsible for fulfilling the obligations towards employees and other temporarilly engaged individuals, as well as their unions and other representation insitutions. Despite the importance of providing an accurate definition, comparative labour legislation can barely offer a classification of the term “employer” which indicates that the legislation bodies have managed to overcome the circular (idem per idem) definition. Additionally, the present definitions are not adjusted to triangular (and multilateral) labour-generated relations. Consequently, in order to harmonize the legal framework with the changes which occur in economic reality, an increasing number of labour law systems initiate the process of introducing a new legal model of plural-employer. In that context, the author of this paper first considers the need to re-conceptualize the term “employer” and analyzes the current unitary and (new) plural-employer conceptions of this term. Finally, using the example of digital platforms, the author demonstrates the inadequacy of the existing legal definitions of the concept “employer” and emphasizes the need for adopting new ones which are more adjusted to the labour market realities.

CONSTITUTIONAL REFERENDUM AND JUDICIAL REFORM IN SERBIA

Author(s): Irena Pejić / Language(s): English Issue: 94/2022

The process of constitutional revision can be observed from two standpoints: the first refers to the elements of the procedure for amend¬ing the constitution; the second calls for a review of the subject matter of constitutional revision contained in the Act amending the Constitution. This paper discusses the constitutional legitimacy of the Act amending the Constitution and the new constitutional solutions aimed at changing the provisions on the election of judges and public prosecutors, as well as the provisions on judicial councils in the Republic of Serbia.

ПРИЛОГ РАСПРАВИ О ПРАВУ ЕВРОПСКЕ УНИЈЕ КАО САМОСТАЛНОМ ПРАВНОМ РЕЖИМУ

Author(s): Sanja Đorđević Aleksovski / Language(s): Serbian Issue: 94/2022

As the process of fragmentation of international public law has enabled the formation of numerous legal regimes, the question of the qualification of the legal order of the European Union (EU) arises. For a long time, it was not percieved as an self-contained regime. The classification contained in the International Law Commission’s Report “Fragmentation of International Law: Difficulties arising from Diversification and Dissemination of International Law“ indirectly contributed to such qualification. This Report classifies the EU legal order within the section on regionalization, thus relativizing it by reducing it to the cooperation of states determined only by geographical criteria. Although indisputable, the geographical criterion is of secondary value to a number of other arguments that take into account its qualitative dimension. Thus, the paper raises the key question of whether the EU legal order has reached such a level of development and quality that it can be considered a self-contained legal regime. Searching for answers to the research question, the paper analyzes arguments pro et contra. Arguments against the notion of the EU legal order as a self-contained legal regime relate to the omnipresence of general international public law, which necessarily implies the connection of the specialized EU law with general international law. In addition, the arguments on the origin, subjects and the manner of creating EU law are emphasized because they are inseparable from international law, for which reason it is denied the characteristic of independence. The emphasis on these arguments supports the thesis that EU law is and remains only a subsystem of inter-national law, which would be especially visible in case of inadequate regulation of state responsibility in EU law. In such situations, it would be necessary to resort to the provisions of international public law (so-called fall-back). In contrast, arguments in favor of the independence of the EU legal order are analyzed and emphasized. Without denying the fact that the EU legal order evolved from international public law, that it represented a nasciturus within it, that it was based on an international treaty, and that the EU itself represents an international organization, we must also accept the facts pertaining to its decades-long evolutionary development and a constantly increasing degree of autonomy from general international public law, which has been confirmed and supported by case law and attitudes from the legal doctrine. In addition, the specific way of filling legal gaps with solutions from EU law itself, rather than by applying the logic of the fall-back system, speaks in favor of the autonomy of the EU legal order. All of this points to the exceptional and unique nature of the EU legal order, and its comprehensive framework. Therefore, even if there were arguments in favor of imperfection and incomple¬teness of the EU legal order, its dynamic development leads us to the conclusion that nowadays it is at such a developmental and qualitative stage that it should be recognized as a self-contained legal regime.

КОНЦЕПТ РЕДОВНОГ БОРАВИШТА КРОЗ ОДАБРАНЕ ИЗВОРЕ МЕЂУНАРОДНОГ ПРИВАТНОГ ПРАВА И ЈУРИСПРУДЕНЦИЈУ СУДА ПРАВДЕ ЕВРОПСКЕ УНИЈЕ − Функционални приступ насупрот стриктног текстуализма

Author(s): Radmila Dragišić / Language(s): Serbian Issue: 94/2022

The concept of habitual residence is an important connecting factor in contemporary EU Private International Law (EU PIL). In this paper, the author examines this concept through content analysis and comparative analysis of selected sources of EU PIL and the jurisprudence of the Court of Justice of the European Union (CJEU). The author inevitably refers to the Regulations Rome I and Rome II, which provide a conceptual definition of habitual residence of legal and natural persons (in the context of performing economic activities). Unlike the sources of law pertaining to personal status, these Regulations did not leave the concept of habitual residence indefinite. The author underscores the importance of recitals from the acquis corpus. Being part of the preamble of the sources of EU law, they serve as basic guidelines for the Court of Justice when providing guidance to national courts on criteria for determining what is to be considered a habitual residence in different situations. The author further points out to the positions taken by the Court of Justice in its judgments in cases C-80/19 and C-289/20, regarding the possibility of disposing of multiple habitual residences, as well as the position taken in the judgment of 27 April 2016 in case C -528/14 on the question of whether a natural person can simultaneously have a habitual residence in an EU Member State and in a third country. In the final remarks, the author presents key considerations on the functional approach to this concept in view of ensuring an autonomous, uniform and consistent definition.

СПРОВОЂЕЊЕ ПОСТУПКА ЗА РАСПРАВЉАЊЕ ЗАОСТАВШТИНЕ ОД СТРАНЕ ЈАВНОГ БЕЛЕЖНИКА У РЕПУБЛИЦИ СРБИЈИ

Author(s): Jovana Milović / Language(s): Serbian Issue: 94/2022

The introduction of the notary public service in the Serbian legal system has introduced a number of novelties in matters concerning inheritance law. The most important of them is the possibility of entrusting the probate proceedings in inheritance cases to notaries public. In the Serbian legal system, probate proceedings dealing with inheritance matters have traditionally been conducted competent courts. This long-standing tradition is difficult to break with. Thus, the Serbian legislator still envisages the jurisdiction of the court to discuss inheritance matters, but now there is a possibility of entrusting this procedure to a notary public, when it is deemed to be expedient. In this paper, the author examines the judicial practice and the public notaries practice in an attempt to determine the justification of entrusting some probate proceedings to notaries public. Concurrently, the author analyzes the possibility of transferring competences for conducting probate proceedings entirely to public notaries. In the author’s opinion, it is a realistic possibility considering that the hether to practice of public notaries in probate proceedings speaks in favour of this legal solution, particularly taking into account the reduced caseload and timeframe needed to complete these non-litigious probate proceedings.

Међународна научна конференција „Деловање институција система у ванредним ситуацијама: искуства и изазови“, Правни факултет Универзитета у Нишу, Ниш, 20. и 21. април 2022. године

Author(s): Bojana Arsenijević / Language(s): Serbian Issue: 94/2022

Ethics of Strategic Voting in Popular Elections

Author(s): Łukasz Łyżwa / Language(s): English Issue: 3/2022

Misreporting of preferences is a common behavior among voters but still considered as moral wrongdoing. I propose the conceptual framework of its dilemmas and argue that tactical voting may NOT be regarded as a moral wrong if implemented in a popular election. I examine the relationship between strategic voting and its moral burden in correspondence to particular moral doubts possible to found in respective literature. Thanks to voting paradoxes revealed by mathematicians and economists gathered around a movement called social choice theory I challenge 1) “the consequentialistic argument” and 2) the “express value argument” which eventually is regarded as non-conclusive whereas it presupposes not commonly accepted view on the role of election in democracy itself. In answer to 3) “sincere argument” which suggests manipulation since the agent does not express one’s profound preference, so to say, does not vote naively, I distinguish sincere and insincere manipulations. Then, I challenge five of Sattherwaite’s “transparency arguments”: 4) inequality of skills, 5) inefficiency, 6) non-transparency of voters’ preferences, 7) non-transparency of representatives’ preferences, and 8) randomness, which I treat by and large as a valid with minor comments added. However, I believe that some of the “transparency arguments” can be adopted as a virtue rather than a vice of democracy, because encourage cooperation and induce to actualize ongoing coalitions. Finally, I distinguish a weak and a strong position against treating strategic voting as moral wrongdoing. Former one argues that strategic voting may be “sincere”, therefore morally acceptable according to argument 3). However, the latter rejects the election’s claim to bear any moral burden and persuades that voting itself should be perceived as an ethics-free decision-making device.

Ten, który łączył niepołączalne. O profesorze Petrze Nedbajle i prawach człowieka

Author(s): Rusłan Siromśkyj / Language(s): Polish Issue: 13/2021

The article analyses the scientific and diplomatic activities of Professor Petro Nedbailo. At the end of 1939, as part of the policy of “strengthening personnel” after the accession of Western Ukraine to the Ukrainian SSR, he was sent to work at the Lviv University. Since then, Petro Nedbailo headed the departments of state law, theory and history of state as well as law, state and administrative law, and he was twice appointed the dean of the law faculty. Initially, the scientist studied the issues of “socialist legitimacy”, but after being appointed the permanent representative of the Ukrainian SSR to the UN Commission on Human Rights (1958-1971) and the transition to teaching at the University of Kyiv, he paid more attention to human rights and freedoms. Repeating the Soviet official position, Petro Nedbailo interpret-ed human rights as a subject of internal competence of the state, and accepted international cooperation in this area only as a component of the “struggle for peace and security of the So-viet Union”. In his speeches in the UN General Assembly, Petro Nedbailo argued about the full respect for human rights in the Ukrainian SSR, but such allegations were far from the truth.

Rüdiger Ritter: Solidarität mit Schwierigkeiten

Author(s): Łukasz Jasiński / Language(s): English Issue: 3/2022

Review of: Rüdiger Ritter: Solidarität mit Schwierigkeiten. Das Bremer Koordinationsbüro der polnischen Gewerkschaft Solidarność und das Engagement Bremens für Polen in den 1980er Jahren. Edition Falkenberg. Bremen 2020. 332 S., XXXIV graph. Darst. ISBN 978-3-95494-219-0.

The Forensic Expertise in Judicial Practice. Case Law Study on Medical Malpractice

Author(s): Rodica Diana Apan,Maria-Roxana ANGHELUȚĂ / Language(s): English Issue: 15/2022

This study is comprised of an analysis of the case law, relative to medical malpractice, pronounced by the court in cases in which one of the means that provided both the evidence and the solution was the medico-legal expertise. The study is centered on the conditions in which this type of evidence is regulated and administrated in the case and on highlighting the evidence-generating power of the medico-lega expertise.

Theoretical Aspects Regarding Tax Evasion

Author(s): Anișoara Băbălău / Language(s): English Issue: 15/2022

Tax evasion is one of the complex economic and social phenomena of great importance that today's states face and whose undesirable consequences seek to limit them as much as possible, eradication being virtually impossible. The effects of tax evasion are directly felt on the levels of tax revenues, lead to distortions in the market mechanism and can contribute to social inequities (their increase) as a result of different "access" and "inclination" to tax evasion of taxpayers. The phenomenon of tax evasion in Romania still requires research and analysis in order to reach a correct and complete perception of its dimensions.

The Crime of Illegal Provocation of Abortion between Statistics and Reality

Author(s): Alexandru Cicală,Igor Soroceanu / Language(s): English Issue: 15/2022

This article analyzes the statistical data of the offense of unlawful provocation of abortion, based on the information provided by the Information Technology Service of the Ministry of Internal Affairs. Also, arguments are presented on the issue of non-recording of cases of criminal abortion in official statistical data.

The Use of Cyber Attacks during Traditional Armed Conflicts. Specific and the Commitment of State Responsibility

Author(s): Vasile Coman / Language(s): English Issue: 15/2022

Due to their worrying presence, cyber attacks pose new challenges to states, both nationally and between states, and are almost non-existent during recent military conflicts. Global peace requires at the legal and practical level a firm reaction against their use, but with the observance of rules and limits of the intensity of the force used, including the real need and proportionality.The study seeks to establish some guidelines under the mentioned aspects, far from being widely accepted in current legal and political doctrines, and can be a starting point in developing a predictable legislative framework effective, effective in action and decisive in preserving the real sense of security individual and collective.

Protocol no.16 to the European Convention on Human Rights and Its Implementation through the Law no. 173/2022

Author(s): Mariana Grădinescu / Language(s): English Issue: 15/2022

The idea of harmonization of national law with conventional law generated the necesity of finding an instrument to facilitate this dialogue. Protocol no. 16 to the European Convention on Human Rights created a new path towards the cooperation between national courts and the European Court, institutionalized the dialogue between them, with the purpose of ensuring a unitary jurisprudence regarding the conventional rights. Although consultative, the opinion emitted by the Court will ensure guidance for national courts regarding the interpretation and implementation of conventional rights.

Aspects regarding the Evolution of Regulations for Forest Protection in Romania

Author(s): Ștefania-Diana Ioniță-Burda / Language(s): English Issue: 15/2022

This study highlights some aspects of the evolution of Romanian regulations developed and adopted for forest protection. Many of them, old and valuable, were regulatory landmarks. Unfortunately, at present, the forestry sector is facing an over-regulation, “characterized” both by the inconsistency and incoherency of the legislator, and by the lack of a correlation of the provisions.

Tactical Peculiarities Regarding the Performance of Certain Categories of Searches in the Case of Crimes Against Life

Author(s): Adrian Cristian Moise / Language(s): English Issue: 15/2022

Crimes against life are contained in Articles 188-192 of the Romanian Criminal Code as follows: the crime of homicide; the crime of qualified homicide; killing at the request of the victim; determining or facilitating suicide; manslaughter. Also, the study considers for analysis another crime that is not expressly stipulated in the chapter of crimes against life, such as the killing or injury of the newborn committed by the mother. The crime of killing or injury of the newborn committed by the mother is provided by the Article 200 of the Romanian Criminal Code in the chapter on crimes committed against a family member. During the process of the forensic investigating of the crimes against life, the competent judicial bodies may authorize all categories of searches: home searches; body searches; computer searches; vehicle searches. The study concludes that searches play an important role in the process of investigation of the crimes against life.

Brief Reflections on the Decision of the Constitutional Court of Romania no. 405/2016

Author(s): Iulia Nistor,GHeorghiță Toma / Language(s): English Issue: 15/2022

The crime of abuse of office has been the subject of extensive debates in recent years, due to the various controversies involved in the analysis of the incriminating text. Even if the Constitutional Court was repeatedly informed about the inconsistencies reported by the courts, the legislator did not take care to correct the reported deficiencies, allowing the existence of such a legislative framework in the future. The social and other implications of committing an act of abuse at work are extremely complex, so rethinking, or adapting the incriminating text to the current situation, appears more than necessary. The corrections identified by the constitutional court appear to be not only mandatory, but also necessary, as they prevent in the future an erroneous application of the legal norms, manifested by ordering different solutions in similar cases.

Protection of Personal Data in the Context of Preventing and Combatting Money Laundering and Terrorist Financing

Author(s): Alina V. Popescu / Language(s): English Issue: 15/2022

Public policy considerations underlying the fight against money laundering and terrorist financing may restrict individuals’ right to the protection of personal data, a relative fundamental right. However, it is important that authorities strike a balance between the rights of data subjects and limitations related to the fight against money laundering and terrorist financing1. The study aims to examine whether the relevant legislation and international treaties provide sufficient guarantees in relation to the transfer of personal data outside the state of which the data subject is a national or the state in whose territory the material acts of money laundering and terrorist financing offences have been perpetrated.

The Use of the Mother Language in Relation to the Local Public Administration Authorities. Comparative study Romania – Republic of Moldova

Author(s): Mihaela Săftoiu / Language(s): English Issue: 15/2022

In the relationship with the public administration authorities, the language used by the citizens represents an important aspect, a true binder on which depends the complete and unequivocal understanding of the rights and duties of the parties and the efficiency and effectiveness of a productive citizen-authority dialogue of the local public administration. In the moldovan legislation, Law nr. 436/28.12.2006 on the local public administration does not contain express provisions regarding the language used in relation to local public authorities, but there are provisions that bring to the fore the direct relationship between citizen and local public authority, for example through public consultation of certain issues of local interest, unrestricted public access to the State Register of local acts and others. In the Romanian legislation, provisions regarding the language used by citizens in relation to the local public administration authorities are in the Administrative Code, which, in various chapters, makes numerous clarifications regarding the official language and the language of national minorities, the communication of administrative acts of a normative nature and those of individual character, the use of the language of national minorities in the functioning of the city council and county council, as well as many common and transitory aspects. With few exceptions, the Administrative Code refers to the share of citizens who are part of a national minority that exceeds one fifth of the number of inhabitants within the respective administrative-territorial unit. An important aspect in the analysis of the way in which the mother language is used in the relationship of citizens with the public administration authorities in Romania is the signing of the European Charter of Regional or Minority Languages on 17.07.1995 and its ratification by Law no. 282 from 2007.

Biological Traces – A Constituent Element of the Investigation

Author(s): Iuliana ȚIBICHI / Language(s): English Issue: 15/2022

This paper represents an analysis of the main investigation methods of biological traces of human nature, and it especially capitalizes on the contribution of biological traces of blood in the criminal investigation process. The central place that the optimal exploitation of the traces of blood in the criminal investigation occupies will be supported by a famous example from the judicial practice, respectively the case of the defendant Constantin Cristian Cioacă. The grounds for the conduct of an effective criminal investigation are so necessary is recalled, more precisely to guarantee the observance and defence of the fundamental human rights enshrined in the Romanian Constitution. In addition, general aspects related to the notion of crime tracking, their role in the general classification of traces in forensics, the role played by comparison models in the identification of persons, as well as forensic investigation of biological traces are reviewed. However, the paper focuses on the study of blood traces, as a result of which issues such as the classification of blood traces, the search, discovery, fixation, collection and interpretation of blood traces on the spot or the bio-criminal expertise of blood traces will be analyzed.