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АКСИОЛОГИЈА МОНЕТАРНОГ ПРАВА У ВАНРЕДНИМ ОКОЛНОСТИМА:ПРИМЕР ПРАВА НУЖНОСТИ

Author(s): Marko Dimitrijević / Language(s): Serbian Issue: 95/2022

The process of qualitative evolution of monetary law in modern economic and business circumstances has resulted, among other things, in its transformation from a discipline that belongs to the domain of legal and economic science to a discipline that increasingly takes into account the social needs and problems of ordinary people. The emphasis on a humane approach in the regulation of monetary relations in periods of crisis implies the duty of the central bank (as the supreme subject of monetary law) to include a component that measures the impact of the specific central bank program, measure or instrument on people’s living standard, i.e. the quality of life of monetary users that can to be shaken in times of crisis. If, in addition to monetary law as an independent scientific discipline, there are subjective monetary rights of citizens to a safe and stable domestic currency, the central bank (as the bearer of monetary sovereignty) must help them in the circumstances when these rights are temporarily shaken and concurrently work to restore the credibility of the monetary system. Practice has shown that it is possible to achieve these goals by exploiting the potential of soft monetary legislation which is more adaptable the disruptions in the economy and takes more care of the well-being of the individual. The contribution of the subjects of monetary law in the implementation of this approach and success in the smart normative creation of new monetary solutions can differ more or less depending on the level of development of monetary awareness.

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ПРАВНИ ТРЕТМАН КУЋНИХ ЉУБИМАЦА И ЖИВОТИЊА КОЈЕ ПОМАЖУ ОСОБАМА СА ИНВАЛИДИТЕТОМ У ВАНРЕДНИМ СИТУАЦИЈАМA

Author(s): Nataša Stojanović / Language(s): Serbian Issue: 95/2022

During the catastrophic floods that struck the Republic of Serbia in May 2014, a large number of animals suffered and perished in the floods. The 2009 Emergency Situations Act, which was in force at the time, envisaged a solid legal mechanism for the protection of animals in such situations, which evidently did not function in practice. The most notable issues in the application of this legislative act that surfaced during the May 2014 floods are: the absence of any activities by the competent ministries aimed at preparing and organizing appropriate training courses and seminars; failure to publish any brochures concerning the conduct of animal owners or activities of associations involved in the protection of animals in the event of natural disasters; inadequate engagement of entities which were legally obliged to protect animals during the floods; non-existence of regional rescue teams within the Emergency Sector, specially trained to rescue animals at the time of natural disasters; non-existence of expert-operative teams for the evacuation of animals within the emergency headquarters; non-existence of resident civil protection units specialized in the rescue of animals; non-regulation of special animal rescue procedures from endangered areas in the emergency situation protection and rescue plans; refusal of rescue crews to save both pets and their owners; and the non-existence of shelters where both pets and their owners would stay during a natural disaster. The application of other legislative acts regulating the subject matter of animal protection and welfare, such as the Veterinary Medicine Act and the Animal Welfare Act of the Republic of Serbia, seems to have been equally ineffective during the May 2014 floods. For instance, a large number of owned dogs and cats could not have been found in the flooded areas because they were not registered, ID-marked or properly tagged. In the meantime, the Disaster Risk Reduction and Emergency Management Act was adopted in 2018. In this paper, the author primarily focuses on the legal solutions envisaged in this legislative act, in order to establish whether and to what extent the Serbian legislator has made an effort to address the afore¬said problems and demonstrated good will to legally regulate this subject matter.

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ПОЛИТИКА ВАКЦИНАЦИЈЕ ПРОТИВ КОВИДА 19 У РЕПУБЛИЦИ СРБИЈИ: ПРАВНО-ОРГАНИЗАЦИОНИ АСПЕКТ

Author(s): Aleksandar Mojašević,Stefan Stefanović / Language(s): Serbian Issue: 95/2022

The subject matter of analysis in this paper is the current vaccination policy against COVID-19 in the Republic of Serbia, relevant legal acts related to the pandemic and vaccination, as well as the organizational structure and competence of the authorities in charge of designing and implementing this policy. The paper aims to critically review the legal framework and organization of competent authorities regarding pandemics and vaccination. The starting hypothesis is that the shortcomings of the vaccination policy in the Republic of Serbia are inter alia due to the poor organizational structure of the authorities responsible for the policy design and implementation, as well as the inconsistent compliance with applicable regulations. In addition, the authors examine the vaccination policies in some other countries, such as Croatia and Germany, in order to better understand the benefits and drawbacks of the vaccination policy in Serbia. Based on the analysis of the relevant legal framework, current research and comparative findings, we propose the general recommendation to the vaccination policymaker in Serbia, which should ensure stricter and more consistent implementation of applicable regulations in the field of health protection and reliance on scientifically based facts.

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NON-PROMULGATION OF MANDATORY COVID-19 VACCINATION IN THE REPUBLIC OF SERBIA

Author(s): Srđan Radulović / Language(s): English Issue: 95/2022

The first COVID-19 case in the Republic of Serbia was registered on 6th March 2020. The World Health Organization declared the COVID-19 pandemic five days later. In the circumstances of the ongoing pandemic, the Republic of Serbia clearly faced, and is still facing, serious challenges. Once the infection began spreading, the state introduced various economic, legal, and medical measures to lessen the negative effects of the pandemic, constantly modifying them to adjust the rigidity of state response to the intensity of different waves of infection. Both individual and overall effects produced by the adopted measures are a highly interesting study topic. Yet, the available measures which were not introduced seem to be as interesting to research. This particularly refers to mandatory vaccination. In that context, two questions arise: what is the rationale for the authorities’ decision not to introduce mandatory vaccination, and what it actually means from legal perspective. This paper focuses on the later question. Specifically, the paper aims to provide a possible interpretation of the recommended (non-mandatory) COVID-19 vaccination, and discuss the roles of participants and possible civil liability. In this pursuit, the author relies on the normative method and different analytical techniques, with due respect for theoretical achievements in medical law.

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KAKO ZAUSTAVITI PLASIRANJE NEISTINITIH INFORMACIJA I GOVOR MRŽNJE NA INTERNETU?

Author(s): Katarina Knol Radoja,Dejan Bodul / Language(s): Croatian Issue: 95/2022

The subject matter of this paper will be the protection of fundamental human rights from false and offensive information and hate speech on the Internet. The authors analyze the regulations and case law of the national courts of the Republic of Croatia, the ECtHR and EU Court of Justice. In conclusion, the authors note that the legal framework governing the protection of human rights in the digital environment has not been precisely developed, either at the national or at the international level. Nor has the case law thus far demonstrated clear and unambiguous precision in the interpretation of existing regulations. It is extremely difficult and challenging to achieve the right balance between the freedom of expression of the media and the right of individuals to protection of personality rights. The media should react to inappropriate content in a timely manner, but the general obligation to ‘filter’ comments of online media users is incompatible with the freedom of expression. Excessive control of information can easily turn into censorship. However, we believe that it is necessary to clearly regulate the rights and obligations of participants on the Internet because transparency and predictability of accountability is the only way to establish protection of fundamental rights of individuals and certain vulnerable groups.

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ПОЧЕТАК ТОКА И ТРАЈАЊЕ ЈЕДНОГОДИШЊЕГ РОКА ЗАСТАРЈЕЛОСТИ ПОТРАЖИВАЊА У ОБЛИГАЦИОНОПРАВНОМ И ПОТРОШАЧКОМ КОНТЕКСТУ

Author(s): Dejan Pilipović / Language(s): Serbian Issue: 95/2022

This paper analyzes some issues related to the one-year statute of limitations for claims, from the beginning of this period and throughout its course, in the context of obligation (contract) law and consumer law relations. The focus is on reconsidering whether the length of the special one-year statute of limitations should be changed. The author examines whether there is room for refining, specifying and amending the provisions of the Obligation Relations Act, especially pertaining to the beginning of this period, given that the legal provisions on the one-year statute of limitations in this Act do not contain special rules on this issue. The discussion is further complicated by the fact that in the Republika Srpska, the Consumer Protection Act contains a provision on a one-year statute of limitations for claims on services of general economic interest. Is the circle of claims or the rule concerning the beginning of this statute of limitations different from the one prescribed in the Obligations Relations Act? The paper aims to find answers to these questions by using scientific research methods in the analysis of legislation, legal theory and case law, as well as the questionnaire techniques in the empirical research which is of both theoretical and practical importance.

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ТРГОВИНА ЉУДИМА У ОКВИРУ СИСТЕМА МЕЂУНАРОДНОГ УСВОЈЕЊА – (НЕ)РЕШИВ ПРОБЛЕМ?

Author(s): Milica Radišić / Language(s): Serbian Issue: 95/2022

The article explores the relationship between human trafficking and international adoption from the perspective of international (criminal) law. The article aims to indicate the specific position of international adoptions in relation to human trafficking. To accomplish this goal, the article provides a review of relevant literature on this subject matter, including the views of authors who examined this relationship, with specific reference to current international documents in the field of human trafficking and international adoptions. The inadequate international documents on this matter and the authors’ insufficent commitment to exploring this issue more thoroughly have generated different and often contradictory standpoints, and ultimately resulted in diverse and fairly liberal interpretation of certain international law provisions. The literature review allows us to observe the diversity of those views and the lack of common agreement among the authors, particularly on the basic concepts, which is one of the major hindrances in exploring this relationship. In the end, the author of this article suggest that an adequate solution may be the re-examination and reform of international law in the area of human trafficking and international adoptions, which would entail amending and supplementing the existing provisions or regulating illicit intercountry adoptions in a separate international document.

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STEPS TOWARDS HARMONISING AND IMPROVING CONSUMER INSOLVENCY RULES IN THE EUROPEAN UNION

Author(s): Monica Calu / Language(s): English Issue: 2/2022

At various stages of the development of human society, personal insolvency has been studied in depth and analyzed in relation to various jurisdictions. Looking at the overall picture in the European Union just ahead of the implementation date of the restructuring and insolvency Directive 2019/1023 / EU, most Member States had some rules on consumer insolvency. Research and evidence from these areas indicate that recourse to personal insolvency proceedings not only makes economic sense, but is also necessary to protect the fundamental rights of human beings but also the rights of consumers. However, a fundamental problem that arises in the EU is related to the ability of the various legislative frameworks in Europe to address the problem of over-indebted citizens in a more uniform way, especially since personal debts can originate in various states and can generate cross-borders issues so that certain harmonization revisions were seen as necessary. The Covid-19 crisis has added urgency to an already delayed review of these frameworks. In their efforts to mitigate the economic effects of the COVID-19 pandemic on consumers, some measures introduced by Member States, although largely uncoordinated, reflect an upward trend towards harmonization and a convergence towards common approaches. This paper questions whether the personal insolvency frameworks in different Member States provide adequate answers to the personal bankruptcies induced by the COVID-19 pandemic in different European countries. Thus, the study reveals the current inadequacy of legal procedures for determining the insolvency of the debtor in various jurisdictions of the Union to the particular situations induced by the pandemic, the limitations of the current approach to the recovery of the debtor and the lack of harmonization in personal insolvency between Member States. Finally, the paper proposes steps to follow and key recommendations for an EU consumer insolvency directive.

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The DOs and DON’TS of franchising in Romania

Author(s): Roxana-Mihaela Catea / Language(s): English Issue: 2/2022

The importance of the franchise agreement per se is one which cannot be denied, both by European investors and by Romanian ones, since each business strives to gain the market relevance which characterizes a franchise. Also, more prominent EU franchises are entering Romanian markets while initially obscure Romanian brands are bolding emerging from the minds of visionary entrepreneurs. While The European Union lacks a common legal framework on franchising, each Member State has established its own rules, which are similar to a certain extent. This article aims to point out the main rules applicable for franchises established under Romanian laws, which both franchisor and franchisees should be aware of when analysing the potential success of a franchise located in Romania. The study shall address what is mandatory for the franchisee to perform before setting up a franchise is Romania and while the franchise network is carrying out is business as well as what are the obligations which each franchisee must undertake, both pursuant to contractual norms and stemming from the legally mandatory framework. Also, another of the study’s objectives is to determine the most frequent misinterpretations of Romanian franchise legal framework and to propose adequate solutions in order for future investors to avoid them.

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THEORETICAL AND PRACTICAL ASPECTS REGARDING THE ISSUANCE OF EUROPEAN INVESTIGATION ORDER

Author(s): Alina Andrescu / Language(s): English Issue: 2/2022

The chosen topic, through its novelty in the field of international judicial cooperation in criminal matters, presents both theoretical and practical importance through the procedural-criminal implications it determines. The author analyzes both synthetically and analytically the functionality of the institution of the European investigation order, determining its content, application limits and subjects involved in the criminal trial report, highlighting the aspects of non-correlation of the objective with the intended purpose. The conclusions materialized in proposals to complete and improve the existing legislative framework, represented by Law no. 236/2017.

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Dudová and Duda before the Czech Constitutional Court: The question of autonomy of religious organizations

Author(s): Marián Bartoloměj Čačík / Language(s): English Issue: 25/2022

In the Czech Republic, the autonomy of churches is constitutionally guaranteed in a rather broad manner. The constitutional and legal basis for Church autonomy lies in the Charter of Fundamental Rights and Freedoms, which is part of the Czech constitutional order. It represents both an objective institutional guarantee (religious neutrality of the state) and the subjective right of religious communities to independence from the state and self-governance of their own affairs (the right to self-determination). Compared to other domains of the said autonomy, the staffing of churches is a relatively frequent subject of theoretical reflection and decision-making on the part of Czech courts. The Constitutional Court of the Czech Republic had to express its opinion on some problematic cases, in particular, the limits of Church autonomy.The case of Duda and Dudová is an example of a conflict between civil rights and the autonomy of churches in the modern Czech history. It started with Duda and Dudová’s dismissal from the pastoral ministry in the Czechoslovak Hussite Church in 1993, and the last (so far) decision related to this case was issued by the Constitutional Court in 2021. This article discusses the long and tortuous journey through the Czech judiciary system, which Duda, Dudová, and the Czechoslovak Hussite Church had to go through in order to clarify consequences of church autonomy. A particular deviation in the Supreme Court’s decision-making played an interesting role in this process. However, it was the Constitutional Court, which acted as the guardian of constitutional values (including the internal autonomy of churches), that placed this anomaly in the decision-making of the Supreme Court and, subsequently, general courts back within constitutional limits.

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Filozofia Konkordatu między Stolicą Apostolską i Rzecząpospolitą Polską z dnia 28 lipca 1993 roku

Author(s): Wojciech Góralski / Language(s): Polish Issue: 25/2022

Every contemporary, postconciliar concordat concluded by states with the Holy See is set in a specific historical, sociological, cultural and normative context, which clearly affects the agreed provisions. Each concordat can be seen as having its own philosophy. This paper discusses the philosophy of the Concordat between the Holy See and the Republic of Poland concluded on July 28, 1993. It is argued that this philosophy essentially reflects the aspiration of the Polish State and the Catholic Church, both aware of their responsibilities and competencies, to contribute towards the common good and human development. The adopted model of State–Church relations, in harmony with the conciliar teaching, is based on mutual independence and autonomy as well as cooperation. As a consequence, the Concordat has significantly contributed to ensuring a proper balance in the relations between the State and the Catholic Church, while also having a positive impact on the legal situation of other religious organizations in Poland.

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Wolność religijna i stosunek państwa do wspólnot religijnych w konstytucjach wybranych państw muzułmańskich

Author(s): Katarzyna Krzysztofek-Strzała / Language(s): Polish Issue: 25/2022

The aim of this paper is to analyze the provisions of the constitutions of twenty-one states in which Islam is practiced by the majority of the population, although it is not necessarily recognized as the state religion. The author examines the connection between the scope of individual and collective religious freedom and the type of relations between the state and religious organizations, taking as a point of reference the distinction between confessional and secular states. The comparative analysis shows that the scope of religious freedom guaranteed in individual states tends to vary and does not fully depend on the adopted model of relations with religious organizations. Moreover, there is no direct relationship between the number of Muslims living in a given country and the type of these relations. It is also argued that the division of confessional states into closed and open variants is of limited usefulness, as it does not reflect the diversity of the regulations on religious freedom adopted in the constitutions of the analyzed states.

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Działalność gospodarcza kościelnych osób prawnych a alienacja majątku Kościoła Katolickiego w Polsce. Problem spółek z ograniczoną odpowiedzialnością

Author(s): Lucjan Świto / Language(s): Polish Issue: 25/2022

The article addresses the question of whether ecclesiastical legal persons can have the status of entrepreneurs in Poland and pursue economic activity. The analysis of the norms of Polish and canon law shows that both in canon law and in the Polish legal order there are no regulations excluding ecclesiastical legal entities from economic activities due to their religious nature. This does not mean, however, that starting business activity by an ecclesiastical legal person is irrelevant in light of canon law. Economic activity which takes place under civil law should also take into account the canon law rules on the temporal goods of the Church. Thus, starting business activity by an ecclesiastical legal person by setting up a limited liability company constitutes alienation under the internal law of the Catholic Church and requires consent of the relevant Church authorities.

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Zryczałtowany podatek dochodowy od przychodów osób duchownych po wprowadzeniu „Polskiego Ładu”: uwagi do ustawy z dnia 9 czerwca 2022 r. o zmianie ustawy o podatku dochodowym od osób fizycznych oraz niektórych innych ustaw

Author(s): Piotr Stanisz,Dariusz Walencik / Language(s): Polish Issue: 25/2022

This paper discusses the Act of June 9, 2022 amending the Personal Income Tax Act and some other acts. One of the purposes of the amendment is to broaden the circle of taxpayers who will benefit from or remain unaffected by the changes introduced by the Act of October 29, 2021. Generally speaking, the drafters’ intentions should be viewed in a positive light. However, religious ministers who pay lump-sum income tax still remain outside the circle of taxpayers for whom the abolition of the possibility to deduct 7,75% of health insurance contributions from income tax has in some way been compensated. As argued by the authors, this contradicts the principle of equality, and hence the principle of tax justice. It is thus proposed to adopt provisions repairing the criticized state of affairs.

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Wyłączenie osoby duchownej z ryczałtu. Glosa krytyczna do wyroku Naczelnego Sądu Administracyjnego z dnia 20 kwietnia 2016 r. (II FSK 491/14)

Author(s): Tomasz Rakoczy / Language(s): Polish Issue: 25/2022

As follows from the wording of art. 42 para. 1 of the Act of 20 November 1998 on the lump-sum income tax on certain revenues earned by natural persons, clergymen are subject to the tax obligation when they fulfill two conditions: performing pastoral functions (as indicated in the Act) and earning income from fees received when performing these functions. Under a strict interpretation, a clergyman who does not earn a permanent income when performing a pastoral function does not fall under the aforementioned provision and is not subject to taxation even if he does exercise a pastoral role. This is the case with members of religious institutes who have taken the vow of poverty. Canon law deprives them of the capacity to acquire goods in accordance with the principle that „whatever is acquired by a religious is acquired by the monastery”. Therefore, the judgement of the Supreme Administrative Court of 20 April 2016 (II FSK 491/14) discussed in the present paper should be assessed critically. The Court ruled that the religious vow of poverty does not deprive a religious of the right to earn a personal income but merely involves the obligation (irrelevant from the tax law perspective) to transfer the earned revenues to his religious institute. In the case under discussion, as claimed by the author, the norms of canon law should be treated as a necessary complement to the provisions of Polish law.

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Nabywanie przez kościoły i inne związki wyznaniowe nieruchomości z bonifikatą. Uwagi do art. 68 ust. 1 pkt 6 ustawy z dnia 21 sierpnia 1997 roku o gospodarce nieruchomościami

Author(s): Tadeusz Stanisławski,Agnieszka Filak / Language(s): Polish Issue: 25/2022

The present paper aims to critically analyze the regulations on purchasing real estates with a discount by churches and other religious organizations under Article 68 para. 1.6 of the Act of 21 August 1997 on the management of real estates. This provision is motivated by the freedom of conscience and religion and specifically by the right to possess sanctuaries and other places of worship for the satisfaction of the needs of believers guaranteed by the Constitution of the Republic of Poland. However, the relevant regulations are not precise enough. In particular, there is no legal definition of the “purposes of sacral activity” that are to be served by the purchased real estates. This gives rise to interpretation problems, which has a negative effect on practice. The paper points out the legal loopholes in the current legislation and makes de lege ferenda proposals aimed at enhancing transparency of the rules applied to purchasing real estates with a discount by religious organizations and ensuring that the purchased real estates are actually used for sacral purposes.

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Ograniczenie wolności pielgrzymowania jako konsekwencja nowelizacji ustawy – Prawo o ruchu drogowym z dnia 30 marca 2021 r. Kazus Rolkowej Pielgrzymki Wrocławskiej

Author(s): Tomasz Resler / Language(s): Polish Issue: 25/2022

Based on an analysis of the case of the Wrocław Rollerblade Pilgrimage, the article addresses the consequences of the amendment to the Road Traffic Act made on March 30, 2021 and in particular its impact on the freedom of pilgrimage. The new legal definitions have created a situation in which some pilgrimages can no longer take place in their original format. This applies in particular to pilgrimages whose participants move by means of “assistive mobility devices” (rollerblades). It is argued that, de lege lata, such pilgrimages cannot take place if their participants move on roadways. The paper also clarifies which authorities are competent to agree on the route and time of a pilgrimage and argues that the regional governor (wojewoda) is not authorized to do so, despite the fact that this practice has been adopted in recent years. Moreover, the paper highlights the need to change the existing regulations so that the organizer can effectively exercise the right to a court in resolving potential disputes with administrative authorities over the organization of the pilgrimage.

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Postanowienie Europejskiego Trybunału Praw Człowieka z dnia 9 listopada 2021 r., Hermina Geertruida de Wilde v. Netherlands, skarga nr 9476/19

Author(s): / Language(s): Polish Issue: 25/2022

The present text is a translation of the decision of the European Court of Human Rights of 9 November 2021 in De Wilde v. the Netherlands (Application no. 9476/19). The applicant identified herself as a follower of the Church of the Flying Spaghetti Monster and complained that by refusing to issue a new identity card and driving license showing her with a colander on her head, the public authorities in the Netherlands had violated Article 9 (freedom of thought, conscience and religion) both taken alone and read in conjunction with Article 14 (prohibition of discrimination) of the European Convention on Human Rights. However, the Tribunal declared the application inadmissible and agreed with the domestic authorities in finding that pastafarianism cannot be considered a “religion” or “belief” within the meaning of Article 9 of the Convention.

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Działalność Funduszu Kościelnego w okresie Polskiej Rzeczypospolitej Ludowej w świetle najnowszych badań źródłowych

Author(s): Marek Strzała / Language(s): Polish Issue: 25/2022

The Church Fund is an important institution in the history of Church–State relations in the period of the Polish People’s Republic. The book under review analyzes a broad range of so far under-researched documents of the Office for Religious Denominations and presents the functioning of the Church Fund in the period 1950–1989. The study reports previously unpublished data regarding specific financial operations of the Church Fund, demonstrating that the Church Fund was used instrumentally and its funds were used for non-statutory purposes. The book is a compendium of knowledge about the regulations concerning the Church Fund between 1950 and 1989 and its activities during that period, valuable both for readers who would like to learn about the institution of the Church Fund, but also for experts looking for the relevant detailed information.

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