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Десет години европейско членство: дефектна демокрация, зависими институции

Author(s): Atanas Slavov / Language(s): Bulgarian Issue: 1-2/2017

This article is focused on the effects of EU membership of the country in ten years perspective. The study analyzes institutional and legislative reforms, related to the rule of law, independence of the judiciary, establishing independent regulatory and controlling bodies for fighting political corruption and conflict of interests. These issues are studied in a comparative regional perspective taking into account the tendencies and phases in developing democratic institutions (their consolidation, stagnation and erosion). Institutional reforms are analyzed in the light of common European standards for strengthening the rule of law and the independence of the judiciary as well as taking in the light of the Cooperation and Verification Mechanism. The conclusion builds on the idea that legislative reforms are necessary, but not sufficient in achieving common democratic standards for independence and accountability of key institutions. These reforms need to be complemented by inclusion of important stakeholders and active participation of civil society actors in the process.

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ОБЗОР НА РИМСКОТО НАСЛЕДСТВЕНО ПРАВО

Author(s): Rafael Domingo / Language(s): Bulgarian Issue: 1/2020

The law of succession addresses the legal destiny of a person’s rights and duties after his death. Closely tied to the fundamental and peculiar features of Roman family and society, the law of succession presents vast difficulties for Roman lawyers because of its highly sophisticated nature and lack of systematic coherence. It is no coincidence that eleven out of fifty books in the Digest address the law of succession. The development of the law of succession reflects important social changes in Roman economic structures and value systems. It echoes the progression from an old Roman agrarian society to a new commercial one. From a technical legal perspective, the law of succession reveals the tension between civil law and praetorian law. Without formally altering the civil law, the praetor introduced fundamental adjustments to protect emancipated persons, blood relatives in the female line, and surviving spouses, among others.

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Ukraine’s International Obligations in the Field of Mother-Tongue-Medium Education of Minorities

Author(s): István Csernicskó / Language(s): English Issue: 1/2020

On September 5, 2017, the Verkhovna Rada (Parliament) of Ukraine voted for the Ukrainian Law “On Education”. Around Article 7 of the Law, discussions broke out, which gradually turned into one of the most acute conflicts in both internal political life and the external relations of Ukraine. The conflict rose from an internal to an international level when Hungary blocked the organization of high-level political meetings between Ukraine and NATO. The present paper examines Ukraine’s obligations in the field of mother-tongue-medium education of minorities. Kyiv had assumed such obligations with the ratification of the European Charter for Regional or Minority Languages and the Framework Convention for the Protection of National Minorities. Based on the official reports of the Advisory Committee on the Framework Convention for the Protection of National Minorities and the Committee of Experts of the European Charter for Regional or Minority Languages of Council of Europe bodies from 2017, the paper also examines how Ukraine fulfils its international obligations in this area.

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QUESTIONING DEFENDANTS VIA SKYPE DURING THE STATE OF EMERGENCY IN THE REPUBLIC OF SERBIA

Author(s): Aleksandar Bošković,Tanja Kesić / Language(s): English Issue: Suppl./2020

The state of emergency was declared in the Republic of Serbia on 15 March 2020, due to the COVID-19 pandemic, which lasted until 6 May 2020. During the state of emergency, certain human rights were restricted and suspended, which are otherwise protected and guaranteed by the Constitution. One of the measures introduced by the state was the possibility for the defendant to attend the main hearing via Skype. The basic question arises whether the right to a fair trial is violated in this way, since it is one of the rights that cannot be limited or suspended even during a state of emergency. In this regard, this paper addresses the national legal framework under which trials are permitted and conducted via Skype during a state of emergency and relevant case law of the European Court of Human Rights.

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PENITENTIARY INSTITUTIONS AND COVID-19: HOW TO STOP THE VIRUS AND GUARANTEE HUMAN RIGHTS?

Author(s): Angelina Stanojoska,Goran Ilik / Language(s): English Issue: Suppl./2020

Starting the COVID-19 pandemic, physical and social distancing, besides wearing masks and frequent use of disinfectant, was and still is the most important preventive measure in stopping the spreading of the new coronavirus. Penitentiary institutions, especially the crowded ones, became a hard place to manage in stopping the infections. Why? Because these institutions are the ones where there is even more need to balance health protection with human rights. Using medical isolation and quarantine in the process of prevention of infections with SARS-CoV-2 virus, is complicated as result of the use of punitive solitary confinement as disciplinary sanction. The paper analyses the possible methods of protection of prisoners’ health during COVID-19 pandemic with parallel protection and respect of their basic and guaranteed human rights.

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European Union Gender Regulations in the East: The Czech and Polish Accession Process

Author(s): Leah Seppanen Anderson / Language(s): English Issue: 01/2006

This article explains, first, why there was a uniform emergence of equal opportunities legislation across East Central European states in the late 1990s and early 2000s and, second, why the speed of adoption varied across countries. The author deviates from a traditional comparative focus on domestic factors and instead treats her two case studies—Poland and the Czech Republic—as part of an international system in which external actors can exert a simultaneous but differential effect on domestic policies. The author argues that the European Union (EU) accession process prompted equal opportunities legislation in both countries but domestic actors mediated this influence in different ways. In Poland, legislation was delayed due to an organized opposition to EU gender equity laws and its close ties to parties of the Right in government, two factors absent from the Czech case where laws passed earlier. The author also suggests that the EU’s financial and political resources may enable it to reshape these domestic actors in the future.

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Дневният ред на българската телевизионна журналистика

Author(s): Ralitsa Kovacheva / Language(s): Bulgarian Issue: 8/2020

The text presents the results of a case study on how the journalistic investigation, known as the 'Eight Dwarfs', is covered by the most watched and trusted Bulgarian televisions BNT, bTV and Nova. The study aims to establish whether topics that are neglected by the institutions could find a place in the Bulgarian televisions` agenda. It has been found that the three media have applied different approaches to the topic, varying from relatively good coverage, through institutionally influenced coverage, to the lack of any coverage. Based on the results, conclusions are made about the agenda of Bulgarian television journalism and the factors that influence its formation.The text presents the results of a case study on how the journalistic investigation, known as the “Eight Dwarfs”, is covered by the most watched and trusted Bulgarian televisions BNT, bTV and Nova. The study aims to establish whether topics that are neglected by the institutions could find a place in the Bulgarian televisions` agenda. It has been found that the three media have applied different approaches to the topic, varying from relatively good coverage, through institutionally influenced coverage, to the lack of any coverage. Based on the results, conclusions are made about the agenda of Bulgarian television journalism and the factors that influence its formation.

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Kształtowanie i monitorowanie Strategii Bezpieczeństwa Wewnętrznego Unii Europejskiej

Author(s): Helena Wyligała / Language(s): Polish Issue: 1/2014

The aim of the article is to present conclusions from the reviews of the European Internal Security Strategy made in 2011 and 2013. First of all, the research applied the method of the critical analysis of the source documents created by European institutions. What was presented in the study were the European methods and funds, by the means of which the cooperation within the areas of freedom, security and justice is deepened, as well as the areas where it is planned. The knowledge acquired from this analysis allows to state that in the field of internal matters for several years there has been going on an intensive process of communitisation, where the key role has been played by the EU institutions. Despite the fact that the process of implementing the Strategy is a little delayed on the side of the member states, the new financial perspective for years 2014-2020 allows to have hope for the continuation of the development dynamics of the EU internal policy.

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RISKS AND THREATS TO PUBLIC ORDER

Author(s): Constantin Gabăr / Language(s): English Issue: 2/2020

The adapting process of public order forces to the new features of social protest forms faces a number of factors that alter or hinder its development.In the context of globalization, threats to public order have two defining features that make difficult the efficient use of the national and European legislative measures, as well as the enforcement ones to remove them.The potential domestic instability arises out of the economic, social and political difficulties, caused by the process of democratization and implementation of market economy principles, and also from the risks in the international environment.The social and economic transformations occurred in Romania after the 1989 Revolution have led to important mutations in the exercise of citizens’ rights and freedoms, in their attitude to property and state institutions, in the organization of society, in the structure and dynamics of the criminal phenomenon, in the field of public order and security.The internal environment is characterized by the spread of non-conformist behaviors and by the denial of moral values, the expansion of illicit drug use at the same time with the diminishing of the chances of social integration. The lack of active responses of the citizens towards the necessity to prevent the criminal phenomenon exerts a significant negative influence on the state of public security.

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PUBLIC POLICY: AN AMORPHOUS CONCEPT IN THE ENFORCEMENT OF ARBITRAL AWARDS

Author(s): Akosua Serwaah Akoto / Language(s): English Issue: 1/2021

Public policy permeates the legal principles of a state and its ruling government. The justification of public policy is topical to the ethics and canons acknowledged by that state. These values are determined by the applicable political, social, economic, religious, and legal systems, which differ among states. As public policy usually best illuminates the broad area of government laws, regulations, provincial ordinances, and court decisions, the standards creating public policy alter as states develop. The motif of public policy is critical when the question of enforcement of arbitral awards suffice. There is no definite meaning of the term in the famous Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Arbitration Convention) to enforce foreign arbitral awards. Hence, this paper explores and traces some contemporary trends in defense of public policy as an exception to the enforcement of arbitral awards worldwide.

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THE IMPACT OF GLOBALIZATION AND THE INTERCONNECTEDNESS WITH THE COMPREHENSIVE ECONOMIC AND TRADE AGREEMENT BETWEEN CANADA AND THE EUROPEAN UNION

Author(s): Marija Fileva / Language(s): English Issue: 1/2021

Elimination of the trade barriers and stimulation of business activity through trade liberalization led to the expansion in the field of the global economy. There are plentiful hesitations about who gains the highest benefit from free trade, especially when it comes to the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union. Analogously, the previous mention guides to the dilemma about the trade negotiations and their position in the same agreement in which are the labor standards. Additionally, trade liberalization has influenced the creation of a close link connection between trade, labor, and globalization. This paper focuses on the effects of globalization and trade liberalization with their connection apropos the provisions from CETA; especially with an emphasis on Chapter 23: ‘Trade and Labour’.

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International organizations as sui generis subjects of international law

Author(s): Marko Aćić / Language(s): English Issue: 51/2021

This paper deals in detail with the concept and the most important characteristics of international organizations as subjects of international law. Aware of the fact that a lot has already been written about this sui generis subject of international law, we will try to contribute to an even better understanding of this complex concept in a study carried out with the method of functional analysis and induction. This will be done by emphasizing the importance of constitutive elements, subjectivity, responsibilities, jurisdiction, and supranationalism of international organizations. We will also propose, as an expression of freedom of scientific thought, some de lege ferenda solutions related to the work of officials in international organizations, all with the aim of further progressive development of international law. In particular, the synthetic and comparative method will support a set of hypotheses and emphasize the supranationalism of international organizations, exemplified by the practice of the EU functioning.

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ГРЕШКАТА В РИМСКОТО ПРАВО СПОРЕД ФИЛИП ЛОТМАР И ИЗГУБЕНОТО МУ НАСЛЕДСТВО В ШВЕЙЦАРСКОТО ПРАВО

Author(s): Iole Fargnoli / Language(s): Bulgarian Issue: 2/2020

With comprehensive research on the error in all areas of law, Philipp Lotmar (1850-1922) aimed at solving the eternal question of the definition and effects of errors on the basis of the Roman sources, in particular to what extent the contract is binding in the event of a error – until today one of the core questions of private law. His work could have influenced the revision of the law of errors until 1911 in Switzerland in some aspects, if the publication of his work had taken place in time. He offered other solutions to the issue of dissent and error about the future. Lotmar would certainly have welcomed the most famous provision of Swiss law on errors, Art. 24 para. 4 CO, through which the external error can also become considerable.

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HISTORICAL – JURIDICAL KEYS ON THE ORIGIN OF THE CONCEPT OF ABUSE OF RIGHT

Author(s): Carmen Salcedo / Language(s): Bulgarian Issue: 2/2020

The non-existence in Roman Law of jurisprudential theories, specific terminology or legal provisions prohibiting the abuse of rihgt does not prevent us from affirming that surely, based on the general interest of peaceful coexistence and by application of principles of justice, good faith and equity, there were specific actions prohibited in defense of the concurrent rights of others that would lay the foundations on which the current doctrinal and normative conceptions regarding the theorizing and regulation of the abuse of rihgt are based.

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TESTAMENTARY FREEDOM AND THE 'GUALDENSE' OR SOCINI MEASURE OF CAUTION. BACKGROUND AND HISTORICAL DEVELOPMENT

Author(s): Maria del Pilar Perez Alvarez / Language(s): English Issue: 2/2020

Our study focuses on the measure known as the Socini caution, its background in Roman Law and its subsequent formulation and development until its codification, some records of its reception remaining in current Spanish Common Law. The Socini measure of caution consists in the testamentary provision granting the inheritor of the legitime, or 'forced heir', the choice between accepting the testator's disposition, leaving more than the lawful share of an inheritance but subjecting it to an encumbrance, or receiving only the strict 'portio legitima' and renouncing the excess. This precise concept of the caution is examined herein. This figure is on the borderline between testamentary freedom and respect for the 'portio legitima', or what is known as ‘the qualitative intangibility of the legitime’, which is tantamount to a restriction on testamentary freedom. Therefore, before analysing these testamentary cautions I shall briefly refer to the historical background and development of the legitime and its legal nature, in order to set the context for this study.

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ИЗРАЗИТЕ „RES PERIT DEBITORI“, „RES PERIT CREDITORI“ И „RES PERIT DOMINO“

Author(s): Patrick Wery / Language(s): Bulgarian Issue: 2/2020

Many Latin expressions and maxims are used in the legal literature dedicated to the Law of Obligations. But these expressions could not be always perceived literally and without any reserves. Some of these sentences are given a meaning far different from their literal interpretation. Others are redundant and do not add anything to what the legislation already provides. In its judgment of 5 May 1981 the Belgian Court of Cassation declared that 'the Latin maxim does not in itself constitute a general principle of law'. The article examines the Latin maxims "Res perit debitori", "Res perit creditori" and "Res perit domino", which the doctrine uses as principles to explain the theory of risk, which makes a difference between the contracts that transfer property on the one hand and those which do not fullfill such a transfer, as well as between the consequences of force majeure for the obligations of the debtor and between the contract itself.

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ВАРИАЦИИ ВЪРХУ "PACTA SUNT SERVАNDA". ОКОЛО И ИЗВЪН ФРЕНСКИЯ ГРАЖДАНСКИ КОДЕКС

Author(s): Pierre Jadoul / Language(s): Bulgarian Issue: 2/2020

Over the time, the experts spared no praise and competed for compliments to describe the French Civil Code entered into force on March 21st 1804. Nevertheless, on the bicentennial anniversary of this code the famous French lawyer Robert Badinter noted: „The most remarkable about the Civil Code today is its longevity rather than its content.” The article provides a brief overview of the process of creating of the French Civil Code, the preparatory actions and discussions, as well as their modern re-evaluation, mainly in connection with the general theory of the obligations and the principle of "Pacta sunt servаnda".

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DOLUS O CULPAE CAPAX. LA CAPACITÀ DI DELINQUERE DELL’IMPUBERE TRA CONTINUITÀ E DISCONTINUITÀ

Author(s): Mariateresa Carbone / Language(s): Italian Issue: 2/2020

The impubes’s delict laibility, in the classic period, is subordinated to being doli or culpae capax; two decemviral provisions, instead, established a less severe sanction respect to pubes in case of impubes’s criminal behavior regardless from assessment about his actual ability to commit crime. Some textual clues allow us to speculate the historical happening that determined this evolution whose goal stands as a fondament of our current regulations, where is expected also an age range characterized from absolute presuption not-imputability and a next one (that a recent proposal of law would tend to turn down, bringing it closer to the ages of pubertati proximi) where the imputability depends on the ability understanding and wanting of the subject.

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FROM FAS TO IUS AND THEIR ROLE IN TRADITIO IURIS ROMANI

Author(s): Cristina Pop / Language(s): English Issue: 2/2020

Among the numerous law systems known in history, the only one capable to develop a well-defined legal terminology, distinct in relation to the average, ordinary language, was the Roman law one. Even though in the ancient comprehension of the Quirites the laws would take a religious garb from both the point of view of their linguistic expression and from the point of view of their meaning, it was for the first time in history that the Romans created a unity of notions, able to transpose in a juridical language society's major interests. It was a fact also due to the general evolution from the antique fas to the exhaustive ius.

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КОРПОРАТИВНА ОТГОВОРНОСТ. ПОЛСКОТО ЧАСТНО ПРАВО И ЗАПАДНАТА ПРАВНА ТРАДИЦИЯ

Author(s): Grzegorz Blicharz / Language(s): Bulgarian Issue: 2/2020

The Polish legislator has extended the strict liability of entrepreneurs to in-clude cases of damages and injuries caused by conducting special business activity. It was justified by the principle cuius commodum eius periculum, cuius commodum eius damnum which was also invoked in the jurisprudence of the Polish Supreme Court. This principle, together with the similar principle of ubi emolumentum ibi onus, shows that strict liability is grounded in the principle of economic utility. Historical research, however, has shown that neither of these two justifications originates in Roman law. Although the prin-ciples are taken from Roman legal sources, they were used by Roman jurists in different contexts: in contractual obligations and in the law of succession, where they have their roots. The ancients also applied strict liability to certain types of entrepreneurs, yet with a different ratio: to limit the abuse of customer trust. The development of law shows that after centuries of the prevailing idea of fault liability, legislators are nowadays returning to strict liability in the case of entrepreneurs with a different kind of justification, recalling the fact that all types of liability were already present in Roman law.

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