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The 19th-century International Law of the West and the Japanese Colonialization of Korea: Political Meaning of a Self-reliant State

Author(s): Kim Jong-hak / Language(s): English Issue: 2/2018

Carl Schmitt once stated that “a people is only conquered when it subordinates itself to the foreign vocabulary, the foreign construction [Vortellung] of what law, especially international law, is.” If this is true, the three East Asian states – Joseon (Korea), China, and Japan – were completely subordinated to the rule of Western imperialism in the mid-19th century when traditional Sinocentric world order collapsed and the Western international law was generally introduced.

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ЗАКОНИТЕ (DECRETA) НА ПЪРВИЯ КРАЛ НА REGNUM HUNGARIAЕ СВ. ИЩВАН I, И IUS GRAECO-ROMANUM

Author(s): Gábor Hamza / Language(s): Bulgarian Issue: 2/2015

The article claims that through analyzing the legislation of Hungary's first mon-arch Istvan I, one can specifically notice the realization of the principle ubi civitas, ibi ius. Namely, while setting the foundations of the state (civitas), the first Hun-garian souvereign, being gifted with a very broad European culture, managed to take into account both the universal nature of law and the necessity to preserve the national traditions of his people. The modern and global views of Istvan I, who successfully united Ius Romanum – or to be precise Ius Graeco-Romanum – with the legal customs of his own people, played a vital role in connection to Hunga-ry's European integration at that particular era.

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Nervus belli, pecunia infinita – mletački plan o zauzeću Zadra u zapisniku inkvizicijskoga sudskog postupka iz 1346. godine

Author(s): Sandra Begonja / Language(s): Croatian Issue: 60/2021

An unknown trial record of an inquisitorial procedure from 14th-century Zadar has been found among the documents of the Zaratin noble family of Fanfogna, in the “Fanfogna-Garagnin” family fond in the State Archives in Split. The document is preserved in an 18th-century copy. The inquisitorial procedure was initiated and conducted by the Zaratin criminal court against the Florentine nobleman Uguiccione Dellosti on September 16-17, 1346. Uguiccione was accused of secret dealings with Venetian commanders in order to conquer the city from within during the last phase of the Venetian siege. Considering that the trial record was copied from the lost criminal court register for medieval Zadar (Quaternus criminalium), this document is also the only written testimony about the criminal justice system and court practice in Zadar during the first half of the 14th century. Also, the copy confirms that the register was still in Zadar during the 18th century. This article analyses the main features of the copy as well as the content of the original legal text (trial record) in order to determine the authenticity of the data and their correlation with similar data in other sources from the same period. The copy was made by Domenico Ignazio Frauenberger, the Zaratin archivist of the Fanfogna library, at some point in the second half of the 1760s. This conclusion has been reached on the basis of a comparative analysis of the main features of this copy and some other copies in the same archival fond (mostly handwritten). However, the authorship and date of the copy have been confirmed by a signed personal letter of Frauenberger’s, found in the same bundle. A structural analysis of the text has revealed Frauenberger’s interventions during the copying process as well as some late interventions by an unknown person. Also, the original text shows similarities with other inquisitorial records of some Italian communes (13th-15th centuries), mostly in structure and the legal formula, which indicates a possible use of common legal templates. The original text from 1346 also shows similarities with another Zaratin trial record from 1412, which indicates a similar way of keeping inquisitorial records in the second half of the 14th century. A content analysis of the original text has confirmed the legal and military political aspects that determine the value of this document. The analysis of the legal aspect has established the type of legal document (trial record), the structure of the inquisitorial procedure, and the composition and jurisdiction of the criminal court. These data are also an important indicator of the penal system in medieval Zadar, about which we have almost no knowledge. The inquisitorial procedure was short and kept in secret. The method of torture was applied in order to extract a true statement.

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POSTDEJTONSKO TRAGANJE ZA PRAVDOM: SUĐENJA ZA RATNE ZLOČINE U BOSNI I HERCEGOVINI PRED NADLEŽNIM SUDOVIMA

Author(s): Vedad Gurda,Dževad Mahmutović,Maja Iveljić / Language(s): Bosnian,Croatian,Serbian Issue: 6/2021

The armed conflicts in Bosnia and Herzegovina in the period from 1992 to 1995, which ended with the conclusion of the so-called The Dayton Peace Agreement was marked by serious violations of fundamental human rights and freedoms and the commission of horrific war crimes. Prosecution of defendants for these crimes takes place at several levels, ie before: a) the International Criminal Tribunal for the Former Yugoslavia (ICTY), b) domestic courts and c) courts of certain foreign states. The paper analyzes certain indicators related to the prosecution of these crimes, their scope and structure, as well as the ratio of convictions and acquittals for certain war crimes, the scope of application of conventional and summary forms of ending criminal cases and court policy of sanctioning perpetrators. It was learned that by the end of 2020, hundreds of criminal proceedings against approximately a thousand defendants had been completed. Most of the accused were prosecuted before the Court of Bosnia and Herzegovina (Court of B&H), followed by the ICTY, and a slightly smaller number before the courts of the former SFRY and some Western European countries.The research established that before the ICTY, out of the total number of accused for war crimes committed in Bosnia and Herzegovina, as many as 90.2% were convicted of some of these crimes, while the rate of convicted in relation to accused before the Court of B&H was 67.2% , and before the courts in the Republic of Serbia 70.2%. It is interesting that before the ICTY as many as 24.3% of the accused were convicted in summary proceedings on the basis of a plea agreement, while before the Court of B&H 13,3% of the accused were convicted using a plea bargaining as a consensual model for ending criminal cases. So far, 22 people have been convicted of the crime of genocide as the most serious crime before the ICTY, the Court of B&H and German courts, and all convictions related to the activities of the Army of Republika Srpska during the war in Bosnia and Herzegovina. Court of B&H, inherited a relatively mild policy of punishing war crimes. Finally, it was found that certain courts, especially Court of B&H, inherited a relatively mild policy of punishing war crimes.

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ODPOWIEDZI NA ANKIETĘ - KRZYSZTOF BRZECHCZYN

Author(s): Krzysztof Brzechczyn / Language(s): Polish Issue: 1/2021

Ad 1. Dziękując redaktorom „Kwartalnika Historycznego” za zaproszenie do udziału w ankiecie, chciałbym przekornie zapytać, czy istnieje w ogóle historiografi a polska i co należy uznać za jej cechy definicyjne: narodowość badacza (I), język prac naukowych (II), przedmiot zainteresowania, czyli historia Polski (III), specyficzne podejście badawcze (IV) i udział w rozwoju kultury narodowej (V)? Żadne z podanych kryteriów nie jest wystarczające, gdyż — jak dowodzą cyklicznie organizowane w Krakowie Kongresy Zagranicznych Badaczy Dziejów Polski — historią naszego kraju interesuje się wcale liczne grono historyków z różnych części świata.

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Privire sintetică asupra sistemului electoral roman

Author(s): Ionela Cuciureanu / Language(s): Romanian Issue: 2/2021

Talking about the Roman electoral system nowadays may certainly seem at a first glance, an outdated approach and one lacking a practical utility. However, if we leave aside the Greek democracy, the Roman electoral system was not only one of the best developed from a procedural point of view, but also one that overwhelmingly inspired modern systems. In the perception of the Romans, the state was not a separate and distinct entity from - and occasionally opposed to - the individual, but a group of individuals linked by various affiliations and sharing distinct obligations and privileges. But the real strength of the Roman state laid in the suffrage of the citizens, given that they had the necessary tools, legal and political alike, to elect those who exercised executive power, a basic feature today in all representative democracies.

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ZABRANA DISKRIMINACIJE U AFRIČKOM SISTEMU LJUDSKIH PRAVA

Author(s): Slaviša Bjelogrlić / Language(s): Serbian Issue: 2/2021

The paper analyzes the norms related to the prohibition of discrimination contained in the instruments of the African human rights system and the established standards of protection of the guarantee of the right to freedom from discrimination in practice of the African Commission on Human and Peoples’ Rights and the African Court of Human and Peoples’ Rights.

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Wydział do Spraw Wyznań Prezydium Wojewódzkiej Rady Narodowej we Wrocławiu wobec procesji Bożego Ciała w latach 1950-1965

Author(s): Tomasz Resler / Language(s): Polish Issue: 24/2021

Public worship between 1950–1989 in Poland was considered hostile to the idea of secular state. The state authorities regarded the Catholic Church as an ideological enemy and sought to limit the freedom of conscience and religion of citizens, pushing religion into the private sphere. Similar tactics were used in relation to one of the most important Catholic holidays – Corpus Christi. The denominational administration in Wrocław tried to limit religious expression in public spaces on that day. The assembly law, which gave the instruments to license religious processions, was used for this purpose. The measures taken by the state authorities against the Catholic Church and its believers violated the legal standards of the time. The laws were often interpreted expansively or ignored altogether. Numerous restrictions were imposed on participants of processions and the pressure was exerted, for example, through workplaces. In addition, the state authorities competed with the Catholic Church by organizing numerous alternatives. Open-air events, excursions and sports competitions were supposed to draw the faithful away from religious ceremonies. These efforts directly violated the standards of state-church separation.

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German Citizenship versus Protectorate Membership in the Protectorate of Bohemia and Moravia (1939–1945)

Author(s): František Emmert / Language(s): English Issue: 2/2021

As a direct consequence of the Nazi occupation of the Czech lands in 1938–48, the institution of German citizenship (i.e., Reich citizenship as established by the Nuremburg Race Laws) was introduced in the Czech lands. Pursuant to newly promulgated German laws, ethnic German inhabitants of the Czech lands became citizens of the territorially expanding Reich in two phases, in 1938 and 1939. In the occupied Czech lands, ethnic Germans acquired the status of privileged citizens, but nonetheless their rights were significantly restricted by the totalitarian power of the Nazi state. In autumn 1939 more than three million people living in the Sudetenland, including come Czechs, became German citizens. After the establishment of the Protectorate of Bohemia and Moravia on 15 March 1939 the institution of German citizenship penetrated the Czech interior, where ethnic Germans comprised only 2 % of the population. For the Czech inhabitants of the Protectorate, the occupiers created a citizenship status known as Protectorate membership because, in the eyes of the Germans, the Czechoslovak state, and hence Czechoslovak citizenship, had ceased to exist. Czechs, who became Protectorate members, were denied »political rights« and the right to govern their own country. They became mere inhabitants of a territory. In 1939–45 two legal systems, one for Germans and one for Czechs, and two analogous administrative and judicial systems existed side by side in the Protectorate. Legal historians refer to this unusual situation as legal dualism.

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Benedikt Carpzov’s Influence on the 18th Century Criminal Practice in Hungary – Analysis of a Legal Case from Debrecen

Author(s): András Biczó / Language(s): English Issue: 2/2021

This paper is essentially founded on two observations regarding early modern periodical criminal law. On the one hand, according to the apparent consensus, the German (Austrian) law had a significant impact on the legal development of the Central-Eastern European region and the marks of these effects can be detected in Hungarian criminal practice as well. On the other hand, the minority age as a relevant circumstance in criminal litigation was a momentous factor concerning the improvement of modern criminal justice. Due to these assertions, my reseach is based on the “arsenal” of classical and text-related jurisprudential methodology (especially using interpretatio grammatica and systematica) is confined to provide insight into Benedikt Carpzov’s influence on the criminal case law of one crucially important city located in the eastern part of Hungary (Debrecen) in the middle of the 18th century. “Carpzovian-effect” is going to be descriptively illustrated through the analysis of minority age. One legal case chosen among the criminal praxis of Magistrates of Debrecen is going to be dissected with regard to presenting a few contemporary aspects of minority age. This is not an overall case note, since certain procedural parts of the criminal proceedings picked out of the archival file of the legal case on the strength of the research goals are going to be elaborated. The paper aims to demonstrate the noted Saxon legal scholar’s emergence in the criminal case law of Debrecen as well as to scrutinize minority age with particular respect to the mitigation of punishment.

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Regulation of the Relations between Jews and Christians in Roman Law

Author(s): Pál Sáry / Language(s): English Issue: 2/2021

Even the pagan Roman emperors issued a number of decrees concerning Jews and Christians. However, the regulation of the relationship between Jews and Christians did not begin until after the Constantinian change. The Christian emperors ruling in the fourth to sixth centuries sought to achieve the following three main goals in this area: (1) promoting the conversion of Jews to Christianity; (2) hindering the conversion of Christians to the Jewish religion; (3) elimination of hostility between Jews and Christians. For the first purpose, the rights of Jews were restricted (for example, they were excluded from public offices). Jews who converted to the Christian faith received special legal protection. For the second purpose, the conversion of Christians to the Jewish faith was declared a crime. Jews were forbidden to keep Christian slaves. Mixed marriages between Jews and Christians were prohibited. For the third purpose, Christians were forbidden to abuse Jews; attacking, looting and setting fire to synagogues was severely punished. Jews were also strictly forbidden to violate the Christian religion.

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Ґенеза розвитку інституту обґрунтованої підозри на українських територіях

Author(s): Mykola Misechko / Language(s): Ukrainian Issue: 11/2021

The article analyzes the historical development path of the institute of reasonable suspicion in criminal proceedings. It is established that reasonable suspicion as a procedural institution originates from the investigative form of justice. It is substantiated that the publication of the brief description of proceedings and litigation at the beginning of the XVIII century is the starting point for studying the history of this institution, which in one form or another has been enshrined in the essential sources of procedural law that have operated for the last three centuries in Ukraine.

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INTERESTS PROTECTED UNDER THE POLISH LAW ON COMBATING UNFAIR COMPETITION

Author(s): Jakub Kępiński / Language(s): English Issue: 2/2020

The article concerns the problem of determining the relationship between the Polish Act on Combating Unfair Competition of 1993 and the Polish Act on Combating Unfair Market Practices of 2007. The problem arose when the Unfair Commercial Practices Directive was implemented in the Polish system in 2007. The Directive is based on the division, which was not known in the Polish Act on Combating Unfair Competition, relating to business-to-business (B2B) and business to-consumer (B2C) relationships. The adoption of such an artificial division has raised numerous problems of interpretation. A better solution would be to adopt in subsequent legislative works the criterion of protected interests, which are the basis of each of the analysed legal acts. Consequently, it will be necessary to introduce legislative changes to the Polish Law on Combating Unfair Competition.

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HENRYK DEMBIŃSKI (1908–1941) I JEGO POGLĄDY NA ISTOTĘ SAMORZĄDU

Author(s): Jarosław Dobkowski / Language(s): Polish Issue: 4/2020

The article presents Henryk Dembiński’s views on the essence of local self-government through the prism of the notion of public-law personality. His key finding is that the ideological and sociological context is important, but not conclusive as to the legal essence of local government. In this respect, one can disagree with Henryk Dembiński’s downgrading or even denying the public-law personality of local self-government. However, while his views represent a particular perspective, they must always be taken into account when considering this issue.

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Polscy socjaliści w kampanii wyborczej do Sejmu Ustawodawczego na przełomie 1918 i 1919 r.

Author(s): Grzegorz Zackiewicz / Language(s): Polish Issue: 1/2020

The article discusses the election campaign for the Legislative Sejm, conducted by the Polish socialists at the turn of 1918 and 1919. Activists of PPS (Polish Socialist Party) and PPSD (Polish Social Democratic Party of Galicia) were trying to convince the voters that the election planned for January 26th 1919 was in fact going to be a plebiscite which would decide about the future of reborn Poland. Founding their propaganda action primarily on slogans referring to defence of the achievements of the “people’s government”, the socialists indicated that only if the radical social and economic reforms were continued, would further evolution of the political system of the Republic of Poland towards democracy and progress be ensured. At the same time, the competitive right-wing camp was harshly attacked and presented as reactionist and clerical. The election campaign of the turn of the 1918 and 1919 ended as an obvious failure for the socialist movement, although it was not a crushing defeat and in the case of Galicia it might even be described as moderate success. It was due to various factors, such as the effectiveness of propaganda from the contending political camps but also their election strategy, experience in running such campaigns and their broad social base.

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Prawo spadkowe vs. sprawiedliwa sukcesja obiektów dziedzictwa kulturowego?

Author(s): Wojciech Dajczak / Language(s): Polish Issue: 1/2021

Heirless property in European countries is typically inherited by the state. However, the routine application of this rule to assets belonging to victims of the German genocide during WWII continues to raise doubts. The recognition of a moral responsibility towards Holocaust victims in the Terezin Declaration legitimates the international debate on tensions between inheritance law and justice. The lack of a universal model for the succession of heirless Jewish cultural property acknowledged by this Declaration provokes different recommendations. One of the possibilities is the collective cultural restitution notion as a countermeasure to the crime of cultural genocide. This theory links the reinterpretation of the concept of genocide presented by Lemkin in 1944 with the restitution actions of Jewish succession organizations in 1940s and 50s. The theory mentioned is challenged in the article. The analysis is based on historical arguments, i.e. Lemkin’s focus on criminal liability and the specific nature of legal grounds for Jewish succession organizations after WWII. The history of inheritance law provides arguments to recommend another innovative way of dealing with the heirless property forming part of genocide victims’ inheritance. It is reasonable to distinguish between solutions pro futuro and those possible today. The paper concludes with a recommendation to supplement the Genocide Convention with specific rules about the heirless property of genocide victims. The state responsible for committing genocide should be eliminated from the inheritance of bona vacantia in favour of local successor organizations appointed by an international penal tribunal. Cultural property should be excluded from universal succession in the case of genocide and regarded as a legal person that continues victims’ remembrance. Currently, this model can inspire Polish policy regarding heirless Jewish cultural property. It should be focused on three goals: for objects to remain in Poland, the creation of a new complex database of objects accessible online and, if possible, the exhibition of objects alongside information about their last respective owners who died heirless.

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Administracyjnoprawny status muzealiów w hiszpańskim porządku prawnym

Author(s): Maja Kozłowska / Language(s): Polish Issue: 1/2021

The paper deals with the administrative status of museum exhibits in the Spanish legal system. The assumptions of the Spanish Historical Heritage Act of 1985, which regulates the status of BIC (bienes de interés cultural) cultural property (both movable and immovable) and various levels of protection depending on the category, were presented. The procedure of granting BIC status and the systems for cataloguing cultural property were also discussed. The system of protection of cultural property in Spain is highly decentralized, which also applies to the functioning of museums. The Spanish Autonomous Communities have extensive regional legislation regulating the above-mentioned issues. The article analyses regional regulations in this area based on the example of the autonomous community of Catalonia - on the basis of statutory regulations in the field of culture and cultural heritage and the Catalan Historical Heritage Act of 1993. This allowed for a comprehensive presentation of the complexity of the system of cultural property protection in Spain (at the state and regional level) and prompted reflection on the legitimacy and effectiveness of decentralized solutions in this area.

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Prawo do czystego powietrza

Author(s): Kamila Doktór-Bindas / Language(s): Polish Issue: 4/2020

The issue of clean air is one of the most important problems of the modern world. Air pollution has no borders, therefore its protection is primarily the domain of international law, which is increasingly striving to strengthen this protection. The Constitution of the Republic of Poland of 1997 contains a number of provisions concerning the environment - for example, program norms that determine the tasks of public authorities such as preventing the negative health consequences of degradation of the environment, or the norms that contains the right to be informed about the quality of the environment and its protection). However, it is disputed whether the right to clean air can be considered as one of the fundamental rights that are subject to constitutional protection. The article shows the most important legal problems related to clean air protection: essential postulates of the legal doctrine, key legal regulations, and the most important court decisions that may affect the way this law is perceived in the near future.

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THE HISTORICAL ROMAN PRECEDENT OF THE LEGAL PROTECTION OF NATURAL WATER RESOURCES

Author(s): Salvador Ruiz Pino / Language(s): English Issue: 2/2021

This study discusses certain situations involving the protection of natural resources by the Roman Law, some of them constituting the most remote antecedent of environmental protections that today constitute this branch of administrative law which the doctrine calls environmental law.

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Preocupări istorice şi juridice în operele lui Guillaume Budé

Author(s): Elena Damian / Language(s): Romanian Issue: 14-15/2016

Guillaume Budé, «le père de la Renaissance», a eu des préoccupations multiples et ses résultats ont été remarquables dans tous les domaines qu’il avait abordés. A côté de ses ouvrages philologiques renommés, ceux qui témoignent de son intérêt pour l‘histoire ou pour le domaine du droit ont suscité eux aussi la curiosité des intellectuels de Transylvanie. 16 exemplaires d’un réel mérite sont conservés dans trois prestigieuses bibliothèques de Cluj-Napoca, Sibiu et Alba Iulia et leur mise en valeur constitue le but de notre présente démarche.

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