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Review of: Marie Cornu, Anita Vaivade, Lily Martinet, Clea Hance (Eds.): Intangible Cultural Heritage Under National and International Law. Going Beyond the 2003 UNESCO Convention; Cheltenham, Northampton: Edward Elgar Publishing, 2020, 224 p.
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The paper deals with the problem of conflicts between fundamental rights by presenting and analysing one of the possible methods for the resolution of such conflicts. The method in question is the so-called interpretative-subsumptive method, developed by Spanish legal philosopher Juan Antonio García Amado. The interpretative-subsumptive method represents an alternative to the mainstream method used for the resolution of conflicts between fundamental rights – judicial balancing, and particularly the version developed by Robert Alexy. After the introduction, interpretative-subsumptive method is contextualised by presenting Garcia Amado’s ideas which are of relevance for the inquiry – his inclusive legal positivist views, the theory of legal interpretation he ascribes to and his understanding and typology of fundamental rights and their conflicts. After that, in the central section of the paper, the theoretical framework of the interpretative-subsumptive method is presented, along with its application to a Spanish Supreme Court case, followed by the criticism that has been raised and ending with conclusions.
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The aim of this paper is to answer the question of why we need an unlawful state of affairs as a ground for legal liability. At its core is a polemic with Filip Melzer’s view that “a certain state of affairs cannot, strictly speaking, be described as unlawful in itself, but only the conduct of the legal subject that led to that consequence or state of affairs”. Its starting point is not “strict liability”, as we understood it until the adoption of the Civil Code in 2012, but the German concept of liability for endangerment (Gefährdungshaftung), which is based not on an unlawful condition but on liability for an increase in risk. For these reasons, I will first address the question of how liability for damages, as we have known and understood it under the 1964 Civil Code, differs from the obligation to compensate for damages, which is enshrined in the current and effective Civil Code. I then consider why we need “unlawfulness” (wrongfulness) to distinguish an unfortunate coincidence from an unlawful state of affairs, and why we do not merely distinguish legal events from unlawful states of affairs. Finally, I consider the concept of liability for endangerment (Gefährdungshaftung) itself and its weaknesses.
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This article discusses the controversial pay or okay business model and examines its legal prerequisites and implications when used on online platforms within the European legislative environment. The analysis begins with a review of a decision by the Court of Justice of the European Union, which deemed this model legal, followed by exploration of its theoretical and practical problematic aspects. Criticism of the model primarily focuses on freely given consent and the pricing of the “pay” option. Consequently, the European Data Protection Board and certain national authorities have formulated positions and outlined criteria to consider when contemplating the implementation of the pay or okay business model.
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The study focuses on the issue of the legal status of women in Great Moravia. It analyzes the possibilities of access to Great Moravian legal monuments and reflects on the legal and ecclesiastical-historical dimension of the function of these texts in society. Special attention is paid to the code, which is generally known as Zakon sudnyj ljudem. The study also points to the possibility of comparison with the Bavarian and Franconian environment.
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This article discusses the issue of humour in the context of intellectual property law,with a focus on parody in trademark law. Parody is a form of humorous expressionthat is generally protected by freedom of expression. Although copyright law hasa statutory exception for caricature, parody, and pastiche, no such exception existsin trademark law. Therefore, parody must be treated differently in this area of law.The article first introduces the legal position of parody and discusses the assessmentof parody in both copyright and trademark law in the EU and Czech law. Then itexamines the peculiarities of the trademark law approach and with the help of Germanlandmark cases, highlights the possibilities for the treatment of trademark parody inthe Czech Republic. The outcomes may apply to closely related laws throughoutthe EU territory.
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This paper critically examines the relevance of Section 230 of the Communications Decency Act in the context of recent United States Supreme Court rulings, specifically Twitter v. Taamneh and Gonzalez v. Google. The Supreme Court ruled in 2023 that determining the extent of CDA230’s immunity lies with legislators, not the judiciary. This study explores the potential liability of algorithms in supporting terrorism and the implications for European regulations under the Digital Services Act. Findings indicate that while CDA230 has fostered internet growth, it also challenges content regulation. The United States approach contrasts with the European Union’s more explicit service provider responsibilities, suggesting a need for legislative updates to balance free expression with the control of harmful content.
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One of the key aspects of the development of electronic administrative justice in Ukraine is its compliance with European standards, which define important principles, methods, and recommendations aimed at ensuring the efficiency, accessibility, and quality of judicial activities in a digital environment. That is why the purpose of this article is to analyze European standards and foreign experience in the field of electronic administrative justice and the possibility of their implementation in national legislation. The conduct of this research is extremely important and relevant, as it will help to adapt the Ukrainian judicial system to international standards and norms. The methodological basis of the research is a set of general scientific and special methods of cognition, namely the methods of dialectics, comparative law, system-structural, formal-logical, etc. As a result of the analysis, it was concluded that significant attention should be paid to the protection of personal data, confidentiality, information security, as well as ensuring access to justice, impartiality, independence of judges, and justice. The article also highlights the experience of implementing information and telecommunications technologies in the system of administrative justice in such European Union member states as Estonia, Lithuania, and Austria, as well as Korea and China. It is noted that in these countries, electronic justice has become an important part of justice, and in view of this, the key aspects of their experience that can be useful for Ukraine are revealed. In addition, a comparative analysis of foreign and domestic experience in the functioning of electronic justice was carried out and the main reasons that slow down its development in Ukraine were identified. It has been proven that the involvement of advanced experience and best practices of foreign countries will significantly contribute to the successful implementation of electronic administrative justice in Ukraine. At the same time, it is important to take into account the unique context, capabilities, and needs of the national judicial system
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The legal regulation of individual labour disputes as disputes with a weaker party, which is the employee, underwent a major recodification in the Slovak Republic in 2016. The adoption of new procedural codes, one of which was Act No. 165/2015 Coll. Civil Procedure Code, a special institute of individual labour law dispute was established, which relatively comprehensively regulates several deviations and departures from the general legal regulation of civil procedure. Recodification simultaneously repealed and replaced Act No 99/1963 Coll., the Civil Procedure Code, which was an imitation of Act No 99/1963 Coll. Code of the Civil procedure regulating civil court proceedings or civil procedure in the Czech Republic to this day. Although the Civil Procedure Code does not contain a comprehensive special regulation of individual labour law litigation, it does, however, in several places, provide for certain derogations to be applied in the case of this specific type of litigation. The content of this article is precisely a comparison of the Czech and Slovak legal regulation of individual labour law litigation with regard to both the applicable legislation and the case law and judicial practice in this area. At the same time, on the basis of the analysis and comparison made, the article also contains their evaluation and de lege ferenda proposals.
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The article is focused on the analysis of main elements of the legal regulation of Czech labour-law relations based on the agreements on work performed outside an employment relationship. The main attention is dedicated to the established conditions for application of given relations (also from a historical perspective) and to the key pro¬blematic aspects of their regulation in the context of ensuring an adequate level of protec¬tion of legal status of employees. The aim is also to contribute to the debate on possible solutions of identified problems in the field of Labour law.
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Superficies is a real right over the good of another. It was consecrated in ancient Rome and ensured the exercise to the right of ownership over the construction erected on the land of another person, both in the Eternal City and in the territory of the provinces. The conquest of Dacia resulted in the application of Roman juridical institutions; they were applied in the Carpatho-Danubian-Pontic area, where they adapted to local realities, developed, and contributed to the formation of Daco-Roman law, and later, Romanian law. The provisions of the old Romanian law fit superficies into the category of real rights over the good of another. Although the representatives of the privileged social categories took advantage of this legal figure in their interest, it contributed to the development of urban life and commerce. This explains the fact that the jurists who carried out their activity between the half of the 17th century and the first half of the 19th century regulated this real right with the help of the Romanian Textbook (Cartea Românească de Învățătură), the The Re-shaping of Laws (Îndreptarea Legii) and some codes adopted in the second phase of the Turkish-Phanariot regime. But the adoption of the French Civil Code in 1804 brought new elements. Its provisions contributed to the removal of the last vestiges of feudal law by merging the legal regime of emphyteuse with superficies.
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The harmonisation of the European Union's Digital Services Law epitomises a joint collaboration in the making of a legal framework where innovation and economic growth may find fertile ground. The convergence of such legal frameworks would not turn out to be an idle bureaucratic practice, but a visionary step toward a digitally integrated Europe. This harmonisation process means evading legal uncertainties and incoherencies deterring the smooth delivery of digital services by bringing national laws into line with overarching EU directives. This study, therefore, seeks to look at the detailed legal and regulatory framework that shapes the notion of a unified Digital Single Market in the European Union. With services crossing borders so easily, this article explains the subtle balance that has to be struck in a bid to nurture innovation while maintaining consumer rights, non-distorted competition, and data privacy. The narrative meanders to the pivotal legislative milestones of the Digital Services Act and the Digital Markets Act as a way to appraise the transformation this will exact on service providers and consumers alike. It contemplates the subtleties of cross-border data flows, dismantling barriers to digital trade, and emphasising harmonisation at the level of national rules in this domain. By providing a comprehensive analysis of current policies and landmark decisions of the European Court of Justice, the article underlines an urgent need for a smooth-acting, responsive legal framework - one that will foster the growth of the digital economy while protecting the fundamental rights of citizens. It further emphasises the ethos of collaboration amongst member states in the EU and stands to uphold a uniform approach in the mastering of the complexities surrounding service provision in the digital market, displaying that the DSM is resilient and inclusive in the whirlwind created by technological evolution.
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The aim of this essay is to analyse the scientific works - dating from before the “birth” of modernrestorative justice - of two Paduan criminal law scholars, Alberto Domenico Tolomei and GiuseppeBettiol. Starting from their reflections on issues that are still topical in the current debate oncriminal law and justice, it is possible to draw inspiration to seriously rethink the response to crimeand the need for punishment. Although being exponents of the traditional paradigm of justice, thesetwo scholars already expressed the need to overcome its limitations and their studies demonstratethat, today as in the past, “doing justice” requires the courage to find new solutions to old,unresolved problems. These solutions can now be offered by restorative justice as an autonomousparadigm capable of entering into a dynamic relationship of complementarity with the criminaljustice system as a whole
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The paper reflects on the seventy-year history of Acta Universitatis Carolinae Iuridica, one of the oldest law reviews in the Czech Republic. It focuses on the changes in its content and scope in relation to social and political events, from ideological influences in its early years to its internationalization and inclusion in the Scopus database. The aim of the paper is to analyze the journal’s development concerning various legal disciplines and highlight its role in aligning national law with EU law, as well as its significance for legal scholarship at both the national and international levels. Special attention is given to its contribution to the development of the theoretical foundations of national law and their practical application.
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In this paper I attempt to examine the question of whether the court can aid an employee with a disability through judicial law-making. I do so by analysing the Supreme Court’s decision 21 Cdo 1276/2016. I will try to demonstrate, that it did not in my opinion consider and reflect the EU and international approach to the integration of employees with disabilities into the workforce with a sufficient degree of intensity. I introduce these approaches, and I try to showcase their possible relevance to Czech case law. I overall try to assess the decision in terms of the (in)admissibility of its judicial law-making. This means that I am attempting to determine whether the court has impermissibly encroached (by the way it interprets the law) upon the legislative authority of parliament. I firstly address the issue of judicial law-making itself theoretically and then through case law. In the case law section, I outline a “methodology”, describing a procedure a court should follow when wanting to engage in judicial law-making. I then analyse the case 21 Cdo 1276/2016 through the lens of the theoretical setting, “methodology”, and knowledge of the EU and international approach. I point out its legal framework, present its two legal conclusions, and I attempt to evaluate them in terms of their conformity with the approaches, and their (in)admissibility respectively. I affirmatively answer the question posed in the title in this part of the text in the context of a specific labor law case. I then outline the abstract implications derivable from such an analysis in the conclusion. There I provide a positive answer to the question posed in the title in a general way. Finally, I note the non-exhaustive, practicality, topicality, and interdisciplinary applicability of the topic of judicial law-making as a whole.
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The research focus of this paper is the victimological dimension of the criminal phenomenon, that is, the victim of a criminal offence, as well as the typology of victims, the risk of victimization, victimogenic predispositions and the protection of victims of crime in the substantive and procedural criminal legislation of Montenegro and the European Union. Criminal law protection of victims of criminal offences is still not complete and satisfactory, despite the alarming data on the increasingly pronounced victimization of a large number of people at the national and global level. The efforts of the European Union and individual states to standardize and implement appropriate criminal law instruments for providing assistance in the protection of victims of crime, despite good normative solutions, still do not give the expected results in terms of reducing the number of victims of criminal offences. A major problem is the secondary victimization to which the victims are exposed due to the lack of an effective support system, in order to alleviate the trauma of victimization. Every person victimized by different types of incriminations experienced suffering and pain, was harmed or had their personal rights violated. Therefore, criminal law theory increasingly focuses on researching the position of the victim in criminal proceedings. The victim is given public legal importance since she can make a great contribution to the correct and complete determination of the factual situation in criminal proceedings. In the paper, special attention will be paid to European legal standards in this area with emphasis on Directive 2012/29/EU of the European Parliament and the Council on the establishment of minimum standards in the rights, support and protection of victims of crime and its compatibility with Montenegrin criminal legislation.
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One of the essential issues in any internal legal order is to determine the scope and intensity of the effect of confirmed international treaties. In this respect, the solutions of the EU legal order should be analzysed and the effects of international agreements should be classified by using methods of content analysis in combination with the evolving jurisprudence of EU courts. Despite the initial impression of a friendly, monistic attitude of the Court of Justice towards the general international law, based on the premise of giving direct effect in the narrower sense to individual provisions of international treaties, the situation has dramatically changed. For several decades, the Court of Justice recognized the direct effect of provisions of international agreements of an economic nature. However, today, due to the increasing expansion of EU Law to other fields, the number of international agreements that do not have direct effect is increasing. Bearing in mind this “guard” of the Court of Justice, there is a growing number of situations involving essential impermeability of international law norms within EU Law or their formal reception without the possibility of producing an effect internally. Therefore, EU Member States had to review the possibility of referring to international agreements both within EU law (for the purpose of challenging secondary legislation or revision of national regulations, as well as interpretation) and before other international bodies, which ultimately generated a critical analysis and review of the classic doctrine of direct effect of international agreements. Considering that the direct effect has various functions in the internal and (so-called) external law of the EU, itis viewed in two ways: the narrower sense (stricto sensu) and the broader sense (lato sensu). Fora long time, the prevailing view in jurisprudence and academic literature was that direct effect in the narrower sense is a prerequisite for referring to an international agreement within EU law. As a result of the subsequent criticism of this solution, the concept of direct effect has been expanded. Now, it has a different meaning in the context of application of international agreements and approaches the concept of direct applicability.
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In order to better understand the legal status of religious marriage, it is necessary to go back "ad fontes", i.e., to the "Fas" (religious law) and to the "jus civile romanum" (Roman civil law), commented on by the renowned Roman jurisconsults of the first three centuries, whose definitions of marriage created the classical doctrine of marriage law. According to the testimonies of Roman jurisconsults, religious marriage took place in the temple of Jupiter, the patron of the married, and was performed in a solemn atmosphere, culminating in the ritual administered by the priests of that place of worship according to the rules laid down by the jus sacrum, i.e., the divine (sacred) law, which gave this marriage priority over civil marriage. In the New Civil Code, religious marriage is conditional on the prior conclusion of civil marriage and does not carry legal effects. We are therefore far from the rules laid down in 10th century Byzantine law, according to which a marriage was valid only if the spouses entered into a religious marriage (cf. Novel 89, Leo the Wise). Considering these peculiarities of Roman and Byzantine law, and the current rules of Romanian law on the institution of marriage, we wanted, through our scientific approach, to bring new clarifications and precisions to contribute to a better knowledge of matrimonial law.
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Artificial intelligence has steadily become an essential tool for humanity, shaping various aspects of society, economics, and legal affairs. However, as artificial intelligence evolves and adapts to its environment, humanity must recognize the need to regulate its use and complex processing capabilities. Therefore, we propose to analyze how fundamental rights and obligations found in the constitutions of the United States, Romania, and other nations might be extended to AI systems or used to govern their behavior. This paper seeks to answer whether constitutional rights can be applied to electronic agents or if machines might receive freedoms akin to those granted to animals.
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In Romania, the emergence and development of leadership in public authorities is not a novelty, but has been the subject of much debate among theorists and practitioners over the past decades of reform, becoming a highly topical concept. The particularities of the public sector in our country, which is constantly changing and adapting to the European model, inline with the national interest now and in the future, lead to the development of a certain type of leadership that offers solutions and is in line with the specific features of national public structures. Also, the future Romanian leaders in the public space must be identified on the basis of their leadership skills as well as their training and specialization in the field, given that transformational leadership means vision and the ability to get people to act and adhere to the proposed goal and, for this very reason, it is recognized as a basic component of good governance.
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