CODICELE (CODUL) DE JUSTIȚIE MILITARĂ ȘI MODIFICĂRILE SALE ÎN PERIOADA PREMERGĂTOARE RĂZBOIULUI DE ÎNTREGIRE

Author(s): Liviu Corciu / Language(s): Romanian Issue: 01/2021

The beginning of military justice in the Romanian Principalities regard the Organic Regulations’ era, where provisions concerning military discipline of the newly formed land-militia of both historical provinces were recorded. Subsequently, military justice continued to develop during the reign of Barbu Dimitrie Stirbei and prince Alexandru Ioan Cuza’s time, whose reign also concerns, among other military reforms, the unification of military criminal legislation, by adopting a single regulation in both historical provinces. The Military Justice Code was adopted in 1873, being subsequently modified and completed in the years of 1881, 1894, 1905, 1906, 1916 and 1917, in order to keep up with social, economic and legislative changes, but especially with the ever-changing battlefield reality, in the era of turmoil that hit Europe at the end of 19th and beginning of 20th century.

THE MILITARY JUSTICE CODE IN ROMANIA AND THE MODIFICATIONS IT SUFFERED PRIOR TO WORLD WAR ONE

Author(s): Liviu Corciu / Language(s): English Issue: 01/2021

The beginning of military justice in the Romanian Principalities regard the Organic Regulations’ era, where provisions concerning military discipline of the newly formed land-militia of both historical provinces were recorded. Subsequently, military justice continued to develop during the reign of Barbu Dimitrie Stirbei and prince Alexandru Ioan Cuza’s time, whose reign also concerns, among other military reforms, the unification of military criminal legislation, by adopting a single regulation in both historical provinces. The Military Justice Code was adopted in 1873, being subsequently modified and completed in the years of 1881, 1894, 1905, 1906, 1916 and 1917, in order to keep up with social, economic and legislative changes, but especially with the ever-changing battlefield reality, in the era of turmoil that hit Europe at the end of 19th and beginning of 20th century.

Trecerea de la forma cutumiară a regulilor de procedură parlamentară din Adunările obștești la consacrarea lor în norme juridice scrise

Author(s): Cristian Ionescu / Language(s): Romanian Issue: 05/2021

The formation of public law in the Romanian Principalities bears, on the one hand, the imprint of the political will of the states with strong influence in this part of Europe in the first half of the 19th century, and, on the other hand, it reflects the spirit of Western constitutional thought and practice, much modernized after the French Revolution of 1789. Concerned with the constitutional and administrative modernization of the two Principalities were mainly Russia, France, England and Austria, each of these great European powers pursuing, in fact, their own objectives, of political and economic nature. Instead, Turkey did not support at all the modernization of Wallachia and Moldova, being interested in maintaining the Phanariot regime. At the confluence of the contradictory interests of these powers, the Principalities did not have an active, decisive role in their own constitutional and administrative modernization. Nevertheless, the changes and transformations produced in the Principalities at the initiative and with the determination of the mentioned states, were generated by the clauses of some international documents (the Treaty of Adrianople of 1829, the Peace Treaty between Russia and Turkey of 1856 and the Paris Convention of 1858). To these it is added the Developing Statute of the Paris Convention, imposed by the will of Prince Alexandru Ioan Cuza.Within the constitutional modernization of the Principalities it was also included the Parliament, regardless of what name it bore and what organizational structure it had. What is certain is that in this process of institutional modernization, the feudal Legislative Assemblies have gradually transformed into a Western-style representative assembly, in which the old custom was replaced by parliamentary regulations, elaborated according to the models of the Western parliaments.The present study is devoted to these issues, in which the author analyzes, based on an extensive historical and legislative documentation, the process by which the old parliamentary custom formed for a long time in the medieval Legislative Assemblies was replaced by rules and procedures written in modern parliamentary regulations.

INTESTATE HEIR LAW ACCORDING TO THE LAW OF THE TWELVE TABLES

Author(s): Danijela Kovačević / Language(s): English Issue: 1-3/2019

The text of the Law of Twelve Tables was passed in 451 and 450 BC. It was displayed in the Forum, but the original bronze plates were not preserved through the Roman history. Based on the number of quotes made by many authors, their full content can be established with great certainty. Concerning claims being made about their authenticity, it should be taken into consideration that jurists had to know them by heart and later lawyers built their legal authority on those quotes. The Law of Twelve Tables represents a basis of ius civile. The Romans had a great respect for the Law of Twelve Tables through the history and they stated that those regulations could not be abolished by any law, so they practically adapted legislation to new social relations while respecting the traditions connected to the Law of Twelve Tables.

Рецензия за книгата „Върховният административен съд (1913—2006)“ от Петко Добчев, научен редактор Даниела Доковска

Author(s): Darina Zinovoeva / Language(s): Bulgarian Issue: 3/2007

O ARMATĂ, DOUĂ SISTEME. JUSTIȚIA MILITARĂ ÎN TRANSILVANIA, ÎN A DOUA CAMPANIE A RĂZBOIULUI DE ÎNTREGIRE 1918-1920

Author(s): Ion Giurcă,Liviu Corciu / Language(s): Romanian Issue: 02/2021

In the middle of the campaign for Transylvania’s liberation, the Governing Council of Sibiu had decided to support the efforts of the Romanian army and ordered the establishment of a Territorial General Commandment meant to begin recruitment in Transylvania, Banat and the Romanian provinces in Hungary, in order to constitute an unit of volunteers. Ulteriorly, out of their ranks, 6th and 7th Army Corps have been established, recruited exclusively from Transylvanians regardless of their nationality. Under Decree I passed by the Governing Council of Sibiu, laws, ordinances, regulations and legal statutes issued prior to December 18th1918, when Transylvania was proclaimed independent of Budapest, were temporarily in force. Within this context, militaries of Transylvanian divisions were subject to military jurisdiction under Austro-Hungarian Military Criminal Code of 1855, whereas Romanian militaries who were under the command of Transylvanian Commandment of Troops were subject to the jurisdiction of Romanian laws, implicitly to the Code of military justice.

ONE ARMY, TWO SYSTEMS. MILITARY JUSTICE IN TRANSYLVANIA, DURING THE SECOND CAMPAIGN OF THE WAR OF REUNIFICATION 1918-1920

Author(s): Ion Giurcă,Liviu Corciu / Language(s): English Issue: 02/2021

In the middle of the campaign for Transylvania’s liberation, the Governing Council of Sibiu had decided to support the efforts of the Romanian army and ordered the establishment of a Territorial General Commandment meant to begin recruitment in Transylvania, Banat and the Romanian provinces in Hungary, in order to constitute an unit of volunteers. Ulteriorly, out of their ranks, 6th and 7th Army Corps have been established, recruited exclusively from Transylvanians regardless of their nationality. Under Decree I passed by the Governing Council of Sibiu, laws, ordinances, regulations and legal statutes issued prior to December 18th1918, when Transylvania was proclaimed independent of Budapest, were temporarily in force. Within this context, militaries of Transylvanian divisions were subject to military jurisdiction under Austro-Hungarian Military Criminal Code of 1855, whereas Romanian militaries who were under the command of Transylvanian Commandment of Troops were subject to the jurisdiction of Romanian laws, implicitly to the Code of military justice.

Iusta causa usucapionis w poglądach Trebacjusza i Fragmentach Watykańskich

Author(s): Kamil Stolarski / Language(s): Polish Issue: 2/2019

The author of the paper discusses the construct of usucaption as approached by Trebatius and Fragmentum Vaticanum 1 in the context of just cause of usucaption (iusta causa usucapionis). In the sources analyzed in the text, one may find the oldest preserved mentions concerning the prerequisite for usucapio, which, according to the author, is an important element of that legal construct. The article presents the following fragments: D. 41,4,2,7; D. 41,6,4, D. 41,10,4 pr. and Fragmentum Vaticanum 1, giving much thought to the latter – particularly focusing on Labeo’s notion incorporated in the source. His standpoint, included in Fragmentum Vaticanum 1, was presented together with the opinions of earlier (veteres) and later (Sabinus, Cassius, Proculus, Celsus, Julian, and Paul) jurists. The texts indicate that at the turn of the republic and the Principate, usucaption was a well-formed institution, for which the reasonable cause of usucaption was an important premise. The lawyers of those times focused on the analyses of cases which today we would think of as the most difficult ones.

Wybrane projekty pokoju powszechnego w Europie od XV do XVII wieku jako remedium na problem wojen religijnych

Author(s): Wacław Uruszczak,Daniela Szczepaniak / Language(s): Polish Issue: 2/2019

The article is devoted to three projects focused on establishing international organizations whose aim was to bring about a common peace in Europe. The first of them was worked out at the court of the King of Bohemia, George of Podiebrad, most probably in 1462; the second is mentioned in the treatise authored by French monk Émeric Crucé, andedited in 1623, under the telling title Le Nouveau Cynée; the third, on the other hand, is Grand Dessein,described in the Memoiresof Duke of Sully Maximilien de Béthune, a minister of Henry IV, the first two volumes of which appeared in 1638. The authors of the present study propose to take a new look at the projects under analysis, perceiving in them an attempt to find a remedy for the problem of wars of religion. Hence, the first of them is shown in the context of the Hussite Wars in Bohemia, whereas the other two are shown in that of the Huguenot Wars in France. The thesis is accepted in the article that George of Podiebrad’s project was primarily meant to be an answer to the current political problems of the day which the “Hussite King” was confronted with. The legal solutions included in the project could – as it seems – offer the Bohemian monarch a handy tool facilitating prevention of both a possible mutiny raised by the internal Catholic opposition, and an attack from outside, which, as a result of Pius II’s repealing of the Compactataand George’s refusal to accept the conditions of agreement proposed by the Holy See, could not be excluded. The acceptance of the thesis of political motives behind the propositions offered by the “Hussite King” does not belittle the value of the very project itself, which, in the history of European political and legal thought, was undoubtedly of paramount importance. Of the three peace plans presented here it is only the project put forward by George of Podiebrad that was invested with legal norms, constituting a ready project of an international contract. It distinguished itself against the other projects with its detailed elaboration and the complexity of the proposed solutions. Moreover, as the only one that was well-known at European courts, it became the subject of diplomatic negotiations which raised considerable interest also among its opponents. The latter were led by the papacy, fighting it, as it eventually turned out, with success. Both George of Podiebrad’s project and the Count of Sully’s proposal took into account the establishment of international organisations of regional character which would associate exclusively Christian states, regarding the fight against the Ottoman Empire as one of the more significant goals of their existence. Only the project by Crucé, which – contrary to the other two was written not by a politician, but by a thinker – assumed bringing peace in a universal dimension, including all the sovereign states of the world. The innovatory approach of Crucé’s proposition consisted in acknowledging as the fundamental one the idea of expected binding the members of the projected organisation by freedom of trade exchange which would be guaranteed in the global dimension”. For the authors of all the aforementioned peace plans the institutional factors uniting the states associated in the organizations to be established were to be commonwealth organs, among which a particular place was to be assigned to organs capable of settling conflicts between states. They can be considered to be a prototype of a contemporary international judiciary. The projects in question were founded on the principle of formal equality of sovereign states, which was accepted as the basis of international relations in the Peace of Westphalia in 1648. Furthermore, they introduced the principles of renouncing war and accepting the peaceful settlement of conflicts in mutual relations, and of striving for the creation of a system of collective safety. In this way they evidently went beyond the canons of the epochs in which they were created, and some of the ideas lying at their foundations did not materialize until the 20th century.

„Seym ten bez początku zaczął się, bez końca kończy się”. Sejm pacyfikacyjny z 1698 r. i jego znaczenie w kontekście ewolucji liberum veto

Author(s): Tomasz Kucharski / Language(s): Polish Issue: 2/2019

The article presented is devoted to an interesting episode from the legal and political history of the Polish-Lithuanian Commonwealth at the end of the seventeenth century – the “breaking up” of the General Diet in 1698 by liberum veto. This particular session of the General Diet was summoned by the newly-elected king – August II, for the ‘pacification’ of the nation and the legitimization of his reign against the opposition that had gathered around the archbishop of Gniezno – Cardinal Michał Radziejowski in Łowicz. The Diet failed to satisfy the king’s expectations. Poor attendance by envoys and senators, as well as the negative attitude of the Lithuanian delegation, caused a brief ‘breaking up’ of the Diet.The author of the paper tries to show this episode, not as a political, but as a legal phenomenon, and also as an underestimated precedent in the history of old-Polish ‘deliberative’ democracy. He points out the insufficiency of previously known procedures of negotiation with envoys announcing their vetoes. He also emphasizes that the contradiction of the Lithuanian envoys was completely irrational, and that the acceptance shown for their demands was commonly considered to be obviously illegal. Besides this, the envoys were strictly obliged to ‘break up’ the Diet, which was clearly against the essence of the parliamentary mandate. However, this was not enough to reject contradiction. From this very moment any attempt to limit or restrain liberum veto was not possible.The article presented is devoted to an interesting episode from the legal and political history of the Polish-Lithuanian Commonwealth at the end of the seventeenth century – the “breaking up” of the General Diet in 1698 by liberum veto. This particular session of the General Diet was summoned by the newly-elected king – August II, for the ‘pacification’ of the nation and the legitimization of his reign against the opposition that had gathered around the archbishop of Gniezno – Cardinal Michał Radziejowski in Łowicz. The Diet failed to satisfy the king’s expectations. Poor attendance by envoys and senators, as well as the negative attitude of the Lithuanian delegation, caused a brief ‘breaking up’ of the Diet.The author of the paper tries to show this episode, not as a political, but as a legal phenomenon, and also as an underestimated precedent in the history of old-Polish ‘deliberative’ democracy. He points out the insufficiency of previously known procedures of negotiation with envoys announcing their vetoes. He also emphasizes that the contradiction of the Lithuanian envoys was completely irrational, and that the acceptance shown for their demands was commonly considered to be obviously illegal. Besides this, the envoys were strictly obliged to ‘break up’ the Diet, which was clearly against the essence of the parliamentary mandate. However, this was not enough to reject contradiction. From this very moment any attempt to limit or restrain liberum veto was not possible.

Instytucja wydawania przestępców w okresie obowiązywania k.p.k. z 1928 roku

Author(s): Jakub Pokoj / Language(s): Polish Issue: 2/2019

The institution of transferring of criminals, which was regulated in articles 642-650 of the Polish Penal Procedure Code of 1928, was an element of the development of the Polish penal procedure in the interwar period. The Code’s regulation consisted of three elements: regulation on transferring criminals to Poland, transferring of criminals by Poland and transport of prisoners. The regulation contained in the Code were supplementary to regulations of international law and constitutional regulations. In the following paper the roots of the regulation were presented as well as it’s characteristics and the changes of the regulation which occurred during the communist period.

Prace Komitetu Cywilnego Reformy nad przygotowaniem narodowej kodyfikacji prawa cywilnego i procedury cywilnej w przededniu utworzenia Królestwa Polskiego (1814 – 1815) – edycja źródłowa. Część I

Author(s): Michał Gałędek,Anna Klimaszewska,Piotr Zbigniew Pomianowski / Language(s): Polish Issue: 2/2019

Edition. Part IThe present paper is an introduction to the source edition of 13 documents concerning the organization of the Civil Reform Committee and the Committee’s work on changes in civil law and civil procedure. The Civil Reform Committee was appointed by Tsar Alexander I on 19 May 1814 in connection with the plan to transform the Duchy of Warsaw into the Kingdom of Poland, a Russian client state. Participants of the Committee’s works were Adam Jerzy Czartoryski, Mikołaj Nowosilcow, Tomasz Ostrowski, Stanisław Zamoyski, Tadeusz Matuszewicz, Aleksander Linowski, Józef Kalasanty Szaniawski, Tomasz Wawrzecki, Franciszek Grabowski, Antoni Bieńkowski, Józef Koźmian, and Andrzej Horodyski.The Committee’s goal was to prepare a reform of the administration, the treasury, and the codes of civil and penal law. The Tsar’s guidelines urged the Committee to sever all ties with the French models and to draw from native traditions. As regards civil law and civil procedure, the works reached a moderate degree of advancement. Only outlines of the future codes and fragmentary legislative drafts were prepared. Even though these works may be deemed to have been a beginning of Polish codification of law within the modern meaning of the word, the documents used in this process have been heretofore used sparsely by historians, including historians of law. Thus the need for their publication. At the same time we are publishing fundamental documents concerning the organization of the Committee itself.

Post-Austrian Divorce Law in Małopolska from 1918 to 1945. Selected Issues

Author(s): Zdzisław Zarzycki / Language(s): English Issue: 3/2019

Austrian divorce law was in force in the territory of the former region of Galicia until the end of 1945. The possibility of seeking a civil divorce was determined by the internal law of the church that the betrothed couple belonged to on the wedding day. Thus, divorce was outlawed both for people of the Roman Catholic confession [§ 111(1) ABGB] and for married couples where even one of the spouses confessed the Roman Catholic religion at the time of their wedding to a non-Catholic Christian [§ 111(2) ABGB]. Not even a religious conversion on the part of the Catholic after the date of the wedding could create the possibility for the couple to obtain a divorce. In practice, Catholic residents of Małopolska resorted to “divorce migration” to more lenient legal jurisdictions. In any case, a divorce dispute was adjudicated before common courts according to state procedural rules. Divorce proceedings could be initiated in two ways, i.e. by unilateral request of one of the spouses, or by joint request of both spouses. Divorce in Jewish marriage was subject to certain legal differences, and could also be initiated in two ways, i.e. by the voluntary, uncontested request of both spouses [§§ 133–134 ABGB] or by way of a divorce application filed by the husband [§ 135(1) ABGB]. In both cases, the procedures were aimed at terminating the marriage by the husband’s presenting the wife with a so-called bill of divorce. Different civil proceedings regulated divorce disputes in Krakow in the period described (1918- 1945), i.e. the Austrian proceedings until the end of 1932 and the Polish proceedings of 1930 thereafter.

The Lawsuit of Public Interest in Cartel Law: Case Law of the Cartel Court in Hungary

Author(s): Norbert Varga / Language(s): English Issue: 3/2019

The lawsuit of public interest was introduced by the 20th Act of 1931 after the economic crisis in the interwar period special attention to the regulation of cartels in Europe. This Act regulated the unfair economic agreements in Hungary. The Hungarian Cartel Law regulated the supreme organs related to the cartels. In my paper I would like to examine the cases of the Cartel Court and its jurisdiction. By examining the cases, it can be stated that the role of the Cartel Court was strongly administrational in connection to lawsuits of public interest. The Cartel Court and the Cartel Committee become one of the most decisive legal institutions in the Hungarian Economic life up until the middle of the 20th Century. The state intervention appeared in the Hungarian Private Law special attention to the cartel regulation.

Particular Type of Property Restitution after World War II – German Military Exercise Areas on the Territory of the Ex-Protectorate Bohemia and Moravia Václav Valeš

Author(s): Václav Valeš / Language(s): English Issue: 3/2019

The article describes the restitution process that took place after 1945 in Czechoslovakia in relation to the property occupied in 1939–1945 in the Protectorate of Bohemia and Moravia for the creation of German military exercise areas. They were supposed to be used for the Germanization of the Czech lands. To create these spaces, the Nazis abused the legal order of the Czechoslovak Republic from 1918 to 1938. The restitution process subject to this territory after 1945 was governed by the separate Directive of the Settlement Office and the National Renewal Fund of 2 December 1947. It was generally based on the principles contained in the Act No. 128/1946 Coll., on the invalidity of certain propertyright acts from the time of oppression and of some other intervention into property-rights, as amended by the Act No. 79/1948 Coll. This directive was, generally speaking, more favorable to restituents than analogous legal regulations. Attention is paid not only to the content of the Directive of 2 December 1947 and related legislation, but also to its application from the end of World War II to the present. The article also refers to the professional literature, which was devoted to the topic.

Prace Komitetu Cywilnego Reformy nad przygotowaniem narodowej kodyfikacji prawa cywilnego i procedury cywilnej w przededniu utworzenia Królestwa Polskiego (1814 – 1815) – edycja źródłowa. Część II

Author(s): Michał Gałędek,Anna Klimaszewska,Piotr Zbigniew Pomianowski / Language(s): Polish Issue: 3/2019

As part of the series of source publications commenced in the second fascicule of the 12th volume of “Krakowskie Studia z Historii Państwa i Prawa” [Krakow Studies in History of State and Law], we are publishing [Draft] to Replace Title 5 of Book 1 of the French Civil Code and fragments of the minutes of Civil Reform Committee’s sessions concerning this draft. On 23 October of 1814 Antoni Bieńkowski presented at the Committee’s session drafts of marital laws: personal and property. The former of the two drafts is published below, whereas the latter will be printed in the upcoming fascicule of “Krakowskie Studia z Historii Państwa i Prawa”. This draft, similarly to the others penned by Committee members, never came into effect as law. The issue of upholding the lay system of marital law, introduced by the Napoleonic Code, remained a contentious one for years to come. In 1825 the Sejm enacted Book One of the Civil Code of the Kingdom of Poland, which implemented a mixed model of marital personal law. Lay elements, however, were a lot stronger there than in the 1814 draft (particularly, also marital issues concerning Catholics were placed within the jurisdiction of common courts of law). Also this law was heavily criticized by the conservative circles.

Legal Historical Research in Belgium (2018)

Author(s): Wouter DRUWÉ / Language(s): English Issue: 3/2019

Chronicle of Research in the Field of Legal and Constitutional History in France in 2018

Author(s): Pierre-Olivier Rigaudeau / Language(s): English Issue: 3/2019

Over the course of 2018 there were a number of significant developments in the area of legal and constitutional history in France and a large number of academic works were produced. Only the most relevant developments have been considered below. Publication dates have been omitted since this chronicle is by definition restricted to events having taken place in 2018.

The Chronicle of Research and Scholarly Events in Legal and Constitutional History at the Faculty of Law and Administration of the Jagiellonian University in 2018

Author(s): Krzysztof Fokt / Language(s): English Issue: 3/2019

In the year 2018, several research projects of the Chairs of the Faculty of Law and Administration of the Jagiellonian University which are concerned with legal and constitutional history were continued, and an important new one – project IURA – was launched. Apart from these, the faculty members and postgraduates, of the Chairs were engaged in cooperation with other academic centers, including several international conferences, and the preparation of a book devoted to the memory of Prof. Janusz Sondel (1937–2017).1 A very challenging but fruitful event was the 72nd World Congress of SIHDA (Société Internationale Fernand de Visscher pour l’Histoire des Droits de l’Antiquité), organized by the Chair of Roman Law.

Chronicle of Scholarly Events in the Field of Legal History Held in the Slovak Republic in 2018

Author(s): Adriana Švecová,Miriam Laclavíková,Ingrid Lanczová / Language(s): English Issue: 3/2019