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IL FONDAMENTO NOMOCANONICO ROMANO DELLE FUNZIONI ETNARCHICHE PATRIARCALI

Author(s): Giorgio Barone Adesi / Language(s): Italian Issue: 2/2020

In the thematic context of the Fifth International Conference of the Balkan Association of Roman Law and Roman Law Tradition "Societas pro iure romano" I would like to make some observations on the impact exercised by Roman law in the elaboration of the canonical order of the ecclesia catholica. The following annotations address the genesis of the patriarchal institution, to reveal its original Roman legislative concept. Moreover, the identity of the patriarchal function today constitutes a question not entirely unrelated to the conflicting opinions, found in Orthodox circles, regarding the recent proclamation of Ukrainian autocephaly.

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ARBITER OF THE ROMAN ARBITRATION PROCEDURE

Author(s): Ivan Milotić / Language(s): English Issue: 2/2020

Unclear distinctions between arbiter and iudex and thereby the difficulties and inconsistencies of understanding accurately the legal nature of arbiter in Roman law were primarily conditioned by the vague differentiation between arbitration and court procedure per formulas. The legal sources indicate that the precise meaning of an arbiter could be reached only from case to case analysis because it seems that this term and institute signified only a basic concept or an idea, or even a common denominator of a wide spectrum of decision makers that dealt with disputes differently than the iudex in court procedure. In different localities, disputes, among different disputants and on the grounds of different arbitration arrangement an arbiter receive substantially diverse meanings, roles and functions. Moreover, at least sometimes even the Romans themselves might use the terms iudex and arbiter indiscriminately. The problem did not go unnoticed by the scholars who study Roman law and was to some extent elaborated and clarified which provides better understanding of this specific procedural phenomena, but still requires the ongoing work and analyses of the legal sources. Although the Romans used the term arbiter to denote more a universal concept than a complex role and function of an individual decision maker in an actual case, the term and the specific language referring to him, as well as the differentiation between more types of arbitri, survived in late antiquity and were transferred to the Middle Ages and the procedural treaties of the time.

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ПЪТИЩА НА (ДИС)КОНТИНУИТЕТА ОТ РИМСКОТО ПРАВО ДО ЕВРОПЕЙСКОТО ПРАВО

Author(s): Felice Mercoliano / Language(s): Bulgarian Issue: 2/2020

The article is a review of Gianni Santucci's book "Roman law and European rights. Continuity and discontinuity in legal figures "(Diritto romano e diritti europei. Continuità e discontinuità nelle figure giuridiche), published by Il Mulino Editore in Bologna in 2010. It presents the main chapters of the study dedicated to an in-depth and unconventional analysis of some significant institutions and their transition to European legal systems. The author not only follows the main ideas and arguments of Santucci, but also presents his views on the topic, following other authors in the footnotes. From this point of view, the review is important not only in view of the presentation of Santucci's book, but also in provoking interest in this kind of research on European law.

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Soft law – współczesny instrument regulacji życia gospodarczego

Author(s): Monika Iwaniec / Language(s): Polish Issue: 5/2020

This study focuses on the nature (Part II), functions (Part III) and legal effects of soft law instruments (Part IV) both in the national and international system. Its aim is to construct a theoretical and practical framework for legal compliance (in particular in the form of: guidelines, communications, compliance programmes, best practices, etc.) – in the discourse of national and EU courts. Courts do not convert soft law into hard law, but subject it to judicial interpretation and/or recognition. Recognition and binding force are used in cases where the judiciary clearly interprets – that is, agrees or disagrees with the content of the non-binding acts, or treats their content implicitly but in a circular manner – that is, without express reference to soft law instruments in the judgment, but rather more to moral, ethical norms and customs. The dynamic changes that are taking place in social life today are influencing changes that are related to the formalization of the sources of international law. Soft law should not be considered a ‘normative disease’ but rather, a symbol of the present day and a product of necessity. The strength of the state depends on the coherence of the law and the environment of non-legal regulations created, in particular, by large corporations, and which exert a significant influence on entities that conduct economic activities. Multicentricity, multisource, multi-level structure and the power of ‘soft law’ lead to the transformation of the law and changes in its functions. The aim of the article is to present the problem of applying soft law in practice, to draw attention to the ‘fictitious’ assumption that it has no binding force (in legal theory), but has a strong impact and fulfills many important functions in practice, mainly in economic law – hence its special place and role in the legal system.

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Report on the Conference ‘Wyzwania dla prawa w dobie pandemii. Doświadczenia Niemiec, Szwecji i Polski'

Author(s): Marianna WAWRZYNIAK / Language(s): English Issue: 2/2021

An international conference on challenges for law in the wake of the COVID-19 pandemic was organised on 28 April 2021 by the Legal Interdisciplinary Science Centre at Kozminski University, together with the editorial board of the journal “The Critique of Law”.

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Sprawozdanie z konferencji „Wyzwania dla prawa w dobie pandemii. Doświadczenie Niemiec, Szwecji i Polski”

Author(s): Marianna WAWRZYNIAK / Language(s): Polish Issue: 2/2021

W dniu 28 kwietnia 2021 r. odbyła się międzynarodowa konferencja zorganizowana przez Prawnicze Interdyscyplinarne Centrum Badawcze Akademii Leona Koźmińskiego (ALK) oraz redakcję czasopisma „Krytyka Prawa” dotycząca wyzwań, jakie dla prawa przyniosła pandemia COVID-19.

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Osoby duchowne i ich odpowiedzialność za przestępstwa seksualne w świetle prawa karnego oraz kanonicznego

Author(s): Anna Więcek-Durańska / Language(s): Polish Issue: 27/2020

The sexual crime of clergy is a controversial phenomenon. The Church is associated with highly developed ethical and moral norms. Until recently, it was common to believe that clergy are excluded from secular responsibility. The article presents the characteristics of criminal and canonical responsibility of clergy. An analysis of the literature indicates that the punishment received by a cleric from one legal system does not relieve or replace the punishment imposed in another system. It can even be said that the cleric is subject to double responsibility. The first under secular law and the second under canon law.

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ON THE MANUFACTURER’S LIABILITY FOR NON-FUNCTIONAL, PERISHABLE AND/OR REPLACEABLE MEDICAL COMPONENTS OF MEDICAL DEVICES

Author(s): Maria-Magdalena Cardis / Language(s): English Issue: 1/2020

As many other industries, the industry of medical devices has also been severely affected by the SARS-CoV-2 pandemics. In this context, every medical device became more than necessary because they were all supposed to be working on their highest level. Still, as it often happens in practice, a crisis is not something which is very well anticipated, so one is to be found in the middle of it, not exactly knowing what to do. The present article aims to set a simple legal framework in which some aspects on the manufacturer’s liability for non-functional, perishable and/or replaceable medical components of medical devices are discussed.

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ВАСПИТНА МЕРА УПУЋИВАЊЕ У ВАСПИТНУ УСТАНОВУ У УПОРЕДНОМ ПРАВУ

Author(s): Filip Mirić / Language(s): Serbian Issue: 6/2021

Social and legal response to juvenile crime is of paramount importance for the process of re-socialization of juveniles in conflict with the law. In the process, special place determining appropriate criminal sanction. Although in recent years the intention to minors who have committed an offense imposed non-institutional educational measures and institutional educational measures have their justification in all cases where because of the seriousness of a crime, the personality of the minor and other circumstances necessarily imposing them. The subject of the work is the mildest of these institutional measures-referral to an educational institution. The work will be analyzed by the relevant provisions of the Law on Juvenile Offenders and Criminal Protection of Juveniles, relating to the imposition and execution of the educational measure. There will also be presented and the provisions of the relevant law countries of the former Yugoslavia by using the comparative method. This is particularly important bearing in mind that these countries share a common legal tradition. The aim of this paper is to pay attention of scientific and expert public on the educational potential of these educational measures and thus contribute to its frequent pronouncement by the courts.

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EMPLOYEE’S CONSENT FOR PSYCHOLOGICAL SERVICES. BRIEF CONSIDERATIONS

Author(s): Dana Volosevici / Language(s): English Issue: 2/2020

Starting with recruitment and selection, throughout the employment relationship and until its termination, the intervention of the psychologist is recommended for the evaluation of the candidates and later of the employees. Employees are, as specified in the Code of Ethics of the profession of psychologist, partially dependent persons, as the decision and informed consent are divided by two or more parties, respectively the employer and the employee. The article analyses some aspects related to how the situation of legal dependence of the employee on the employer has an ethical and legal impact on obtaining the employee’s regarding the psychological services.

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ARE UNIVERSAL HUMAN RIGHTS UNIVERSAL?

Author(s): Ildus Yarulin,Evgeny Pozdnyakov / Language(s): English Issue: 71/2021

One of the issues constantly discussed in the context of human rights is their assessment as universal or relative. International human rights norms are universal, which corresponds to the nature of human rights. The process of universalization of human rights began after the second world war with the creation of the United Nations, whose Charter declared its determination to reaffirm faith in the fundamental rights of the individual, in the equality of men and women and in the equality of nations large and small. These intentions of the organization were confirmed by the adoption of universal documents: the International Bill of Human Rights, including the Universal Declaration of Human Rights of 1948, the International Covenants on Human Rights, opened for signature on December 16, 1966, and other acts. However, the problem lies in the fact that human rights recognized at the international level as universal and enshrined in international instruments, which must be respected by all and everywhere, lose the signs and qualities of universality under the influence of various socio-cultural, national traditions and customs, religious and other factors, and acquire the meaning or status of relative ones.

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THE UNDERSTANDING OF HUMAN RIGHTS IN THE NEO-EURASIANIST DOCTRINE

Author(s): Joachim Diec / Language(s): English Issue: 71/2021

Neo-Eurasianism as a political doctrine is a descendant of the Eurasianist thought in the interwar period and L.N. Gumilev’s ethnological speculations during the Soviet era. Similarly to the oldest generation, Neo-Eurasianists, respond to the trauma of the lost empire in their thought: denying the leading position of the victorious competitor, they also deny the Western understanding of human rights. The polemic is conducted by a group of Russian visionaries, such as A. Panarin, A. Dugin, V. Korovin, as well as by much more pragmatic Kazakh theoreticians of law led by Z. Busurmanov. The Neo-Eurasianist narrative generally rejects the Lockean absolutization of inalienable individual’s rights and emphasizes the communitarian aspect instead. Russian Neo-Eurasianists blame the Western ideologists for treating human rights as a diplomatic weapon against foreign independent powers and try to present the liberal concept as a speculative idea. However, contrary to the Russian tradition, the idea of individual rights is not rejected in the Kazakh legal theory; it is presented in the light of a necessity to protect the right to cultivate one’s identity in the realities of a multiethnic state.

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HUMAN RIGHTS IN HONG KONG – INTERNATIONAL CONTEXT

Author(s): Katarzyna Gruszko / Language(s): English Issue: 71/2021

Human rights in international relations are defined by the boundaries between individual states and regions, as well as the most important theories of international relations. The assumption of their universal character often finds no reflection in the foreign policy of states, especially the strongest ones. The most important players and theories do not question the existence of human rights as such, however, their role and place in international relations are interpreted differently. Human rights in Hong Kong, the meeting place of the West and Confucianism in the context of globalization, may become the litmus test of the intentions of the world powers and their vision of a World Order in regard to human rights.

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Religious slaughter of animals in light of the EU and in the Polish law

Author(s): Agnieszka Skóra / Language(s): English Issue: 43/2019

Summing up the considerations, it should be stated that nowadays the problems of religious slaughter form a platform on which important values protected by international, European and the Polish legal order clash. These include ensuring the welfare of animals and allowing the slaughter and killing only in a humane manner, the protection of religious freedom by enabling participation in traditional rites and consumption of particular types of meat and the protection of economic values by ensuring the use of economic freedom by food producers. The assessment of religious slaughter therefore depends on the adopted system of values. At the same time, it should be noted that today’s slaughter is carried out with respect for animal welfare and is only allowed if the conditions laid down in European law and – harmonized with it – national law are met. Due to globalist tendencies and the settlement of Islam and Judaism in Europe, it is rather difficult to imagine a universal and uniform ban on slaughter in all EU countries.

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Status prawny przepisów (norm) bhp w prawie kolizyjnym zgodnie ze statutem umownym

Author(s): Magdalena Wasylkowska-Michór / Language(s): Polish Issue: 52/2021

The main purpose of the article is to answer the question whether health and safety rules can be considered as overriding mandatory provisions within the area of conflicts of law. At the beginning of the article it is mentioned that its scope is limited to the situation in which accident at work happens. The accident at work is on the other hand assessed either as a violation of the employment contract or as a tort. Due to the limited scope of the article, the legal nature of health and safety rules has been considered only in the contractual contex. Therefore, firstly article introduces the way of determining law applicable to the employment contract, both the rules of choice of law and the rules applied in the absence of such a choice. Already at this point article’s author draws attention to the distinction between overriding mandatory provisions and provisions of the law of particular country which cannot be derogated from by agreement. Later on the article discusses the term of overriding mandatory provisions, both in doctrinal and in the Rome I Regulation’s context. In the further part of the study, author presents the legal status of health and safety both from the Polish and international law perspecitive, including EU law. The article ends with a summary leading to the conclusion that health and safety rules can be considered as overriding mandatory provisions.

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The Condition of Fault in Private Enforcement of Competition Law – a Comparative Analysis of U.S. v. Polish and European Approach

Author(s): Marta Maćkiewicz / Language(s): English Issue: 21/2020

The purpose of the Polish Act on Claims for Damages for Remedying the Damage Caused by Infringements of Competition Law, based on and implementing EU law – the Damages Directive, was to enable undertakings to effectively use private enforcement of their damages claims from competition law offenders. Infringement of competition law is classified as a tort according to the said Act on Claims. Therefore, the Act on Claims refers to tort liability rules. The conditions of classic tort liability in domestic law do not have exactly the same dogmatic meaning and scope as the conditions of public or private liability for the infringements of domestic and EU competition law. In practice, their application by national courts may rise many questions regarding conformity between domestic and EU law. This paper aims to analyse one of the key conditions of tort liability, that is, the fault of both the undertaking – the offenders, as well as the fault of their governing bodies and officers. If one were to understand the notion of fault within the limits laid down by civil law, and follow the literal wording of the Polish Civil Code’s provisions referring to the fault condition, the efficiency of private enforcement of damage claims arising from infringements of competition law would be doubtful. Therefore, the aim of this paper is to provide the readers with such an interpretation of the notion of fault, as a condition of liability of undertakings, that the legislative purpose of the Act on Claims is achieved and that the principles of efficiency and equivalence of the EU law are observed. In order to present a comprehensive picture, this paper will also discuss the case law of the CJEU concerning ‘anti-trust fault’, accompanied by a comparative analysis of the German and French approach to the fault condition as well as United States antitrust laws in the same area.

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Particularities of Proving a Single and Continuous Infringement of EU Competition Rules

Author(s): Mirna Romić / Language(s): English Issue: 22/2020

A single and continuous infringement of EU competition rules is a qualified form of infringement of EU Competition Law characterized by the existence of a global plan having a single objective between undertakings. Given the specificity of this form of infringement, proving it is somewhat different from the standard evidentiary process for proving infringements of competition rules before EU courts. This article aims to give an overview of the evidentiary rules through the case law of the Court of Justice of the EU and analyze their application in practice.

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Competition Enforcement Models in the Western Balkans Countries – The Rule of Law Still Terra Incognita?

Author(s): Dijana Marković-Bajalović / Language(s): English Issue: 22/2020

The administrative model of competition law enforcement is the prevailing model in the EU Member States. Although Member States are free to choose between the administrative and the judicial model or their combination, many of them opted for the administrative model taking the EU model as an example. The same is valid for the candidate and potential candidate states of Western Balkans. The new Directive 2019/1 deals with the issue of safeguarding the fundamental rights in competition proceedings in general terms only, while stabilisation and association agreements lay down the rule of law as a fundamental principle, but do not say much regarding the features of the competition enforcement model. Candidate countries did not consider the rule of law requirements when designing their competition enforcement models. Competition authorities combine investigative and decision-making powers, preventing them from impartial decision-making. Rules on the appointment, that is, election of members of decision-making bodies, and the limited term of office, made competition authorities susceptible to political influence. Administrative courts are in charge of disputes initiated against decisions of competition authorities in the second instance.

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Institutional Design, Efficiency and Due Process in Competition Enforcement: Lessons from Slovenia and Serbia

Author(s): Veljko Smiljanić,Kevin Rihtar / Language(s): English Issue: 22/2020

The article compares the institutional designs and historic legacy of the Slovenian and Serbian competition enforcement framework, and discusses the advantages and drawbacks of each model. Slovenia implemented a mixed model, where the competition enforcement procedure is divided into functionally separate investigation and misdemeanour administrative procedures for the imposition of sanctions. The Slovenian model has generally been perceived as inefficient, with specific difficulties arising from the unclear relationship between the administrative and the misdemeanour procedures. On the other hand, Serbia significantly changed its institutional design in 2009 from its Austrian-inspired roots to a single administrative procedure. The new system appears to have been more effective, but strong judicial safeguards are necessary. The Authors further review the matter from a national and international point of view, considering the ECN+ Directive and the case-law of the Court of Justice of the European Union and European Court of Human Rights.

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Competition Law Framework in Kosovo and the Role of the EU in Promoting Competition Policies in Other Countries and Regions Wishing to Join the Block

Author(s): Avdylkader Mucaj / Language(s): English Issue: 22/2020

The aim of this article is, on the one hand, to provide an overview of the competition law framework in Kosovo vis-á-vis the establishment of the Kosovo Competition Authority (hereinafter; the Authority), its institutional design as well as the criteria for becoming a member of the Commission within the Authority, which is the most important decision-making body in the field of competition law in Kosovo. On the other hand, it discusses some of the challenges the Authority as well as the courts are facing as regards the effective enforcement of competition law provisions in Kosovo, be it procedural or substantive. In addition, the only three cases decided by the Authority, since its establishment in 2008, are briefly discussed. Last but not least, it tries to contextualise the role of the EU concerning enacting as well as enforcing competition law in some of the South East Europe (hereinafter; SEE) countries, with the main focus placed on Kosovo. Without the European perspective, it is convincing to say that the picture that would result from a competitiveness viewpoint would change dramatically, although the EU’s efforts alone are not sufficient in the absence of serious efforts by the states themselves.

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