Prawo spadkowe w systematyce „Instytucji” Gaiusa

Author(s): Renata Świergoń-Skok / Language(s): Polish Issue: 2/2018

The study examines the position of inheritance in the systematics of Institutiones of Gaius and discussesthe significance of such approach to inheritance law in the subsequent development of private law. In Institutiones of Gaius issues related to succession account for approximately 1/3 of the entirecontents. Presentation of matters connected with inheritance comprises a larger part of the secondbook (G. 2, 99–289) focusing on various legal aspects of testate succession (G. 2, 100–190) and the related acquisition of material benefits at the expense of the legacy, through endowments (G. 2, 192–289); additionally, the beginning of the third book comprised rules of intestate succession (G. 3, 1–87).While analysing the specific problems associated with succession, Gaius presents them as examples of property rights acquisition under general and specific terms. Similar approach to inheritance in Rome was also adopted in Institutiones of Justinian. It was only the German Pandectists that distinguished succession law as a separate segment of law. However, the nineteenth century European civil codes in their contents and systematics make reference to the threefolddistinction of law (personae – res – actiones) introduced by Gaius in his Institutiones. For instancethe Civil Code of Austria (ABGB) did not treat succession law as a separate segment of law but, followingthe systematics in the Institutes of Gaius, as a part of property law related to acquisition of ownershiprights per universitatem. Similar approach was adopted in Napoleonic Code where matters relatedto succession were contained in Book Three, entitled Of the Different Modes of Acquiring Property.

Postepena transformacija španskog ustavnog prava: povodom 40. godišnjice španskog ustava iz 1978. godine

Author(s): Carlos Flores Juberías / Language(s): Serbian Issue: 1/2018

After a century and a half full of swings and hesitations, in which as a consequence of the limited rooting of the constitutional feeling and the lack of normative value of the constitutions, the study of constitutionalism suffered in Spain of lack of object and of method, turning itself into an encyclopedic discipline of magmatic consistency and imprecise limits, the adoption in 1978 of the current Spanish Constitution and the separation between Political Science and Constitutional Law imposed from 1981 onwards made it possible for the latter to have its object and its method precisely outlined, advancing by leaps and bounds to occupy the place it merits in a social and democratic rule of Law state – and above all, the place that such systems demand from it– and giving rise to a scientific community which in such period of time has grown, has renovated, and has buried many old clichés in the process.After carrying out a hasty characterization of the evolution of Spanish constitutional law since the times of the Cadiz Constitution and some more precise reflections on its state at the time of the beginning of the Spanish democratic transition, the present study will analyze the main dogmatic concerns and lines of research of Spanish Constitutional Law in the last forty years, differentiating those of the times of the implementation of the new constitutional system from those arising in the wake of its current crisis.

CAPACITAS IURIDICA И STATUS FAMILIAE У РИМСКОМ ПРАВУ

Author(s): Marija Ignjatović / Language(s): Serbian Issue: 78/2018

The question of legal capacity has not always had an equal treatment in all periods of the development of human society. In modern law, relying on the fundamental human rights and freedoms, it is considered that everyone acquires legal capacity at birth and that all people are equal at birth, regardless of their gender and race. However, the question of legal capacity had quite a different treatment in different societies in different historical periods. For instance, in the slave-holding society, a number of factors had an influence on defining one’s legal capacity. Thus, in Roman slave-holding society, it was very important whether a person was born as a free citizen or a slave, and whether a person was born as a Roman citizen (cives), a Latin or a Peregrinus. In addition, it was important whether a person was given the status sui iuris or alieni iuris at birth. In Roman law, the issue of one’s legal and contractual capacity largely depended on the person’s social status, i.e whether he was legally recognized as a citizen, a freeman, or through his/her family status. In this paper, special attention will be paid to the issue of legal capacity of natural persons within the family status (status familiae).

ИРАЦИОНАЛНА ДОКАЗНА СРЕДСТВА КАО ДЕО ПРАВНЕ ТРАДИЦИЈЕ СЛОВЕНА

Author(s): Stefan Stojanović / Language(s): Serbian Issue: 78/2018

Irrational evidence is part of the legal tradition of the Slavs. Considering the fact that irrational evidence is recognized in almost all relevant Slavic legal history sources, it can be reasonably assumed that this type of evidence has its origins in the deepest antiquity of the Slavic customary law. Тhe aim of the paper is to point out to the specific provisions of Slavic legal sources which regulate this type of evidence, to try to determine the procedure for adducing such evidence, and to discover their role as compared to rational evidence.

ЗАКОН СУДЊИ ЉУДЕМ – НАЈСТАРИЈИ СЛОВЕНСКИ ПРАВНИ СПОМЕНИК

Author(s): Dragan Nikolić / Language(s): Serbian Issue: 63/2012

The Law on the Trial of People (Zakon sudnyi lyudem) is one of the earliest historical sources of Slavonic law which is believed to have been made in the second half of the 9th century and at the beginning of the 10th century. The original manuscript of this document has not been preserved but there are several transcripts contained in the collection of miscellaneous Russian civil and canonical documents, the oldest of which dates back to the 13th century. This historical legal document primarily comprises penal law provisions but there is also a number of articles on civil law and civil procedure. Although this legal document has been the subject matter of theoretical study ever since the mid-19th century, many of these hypotheses have not yielded the specific answers until the present day. Most legal theoreticians support the hypothesis that this legal document originally comes from Bulgaria, where it was enacted as an official legislative act during the rule of one of the two Bulgarian rulers: either Prince Boris (in the period from 865 to 889 at the latest) or his son Simeon (893-927). The second hypothesis suggests that the origin of this document may be traced back to the rule of the Bulgarian Prince Boris and that it was enacted around the year 885 (at the time when numerous disciples of Cyril and Methodius arrived to Bulgaria from Moravia); however, the supporters of this hypothesis consider that it was not an official legislative act but rather a private collection of laws compiled by an anonymous author. There are two additional (but less prevalent) hypotheses: under the first hypothesis, this legal document was made in Great Moravia and, under the second, it was made in the Byzantine district of Strimon. There is a common agreement among the researchers on the time when it was made (in the second half of the 9th and at the beginning of the 10th century) as well as on its legal content and scope. There is no dispute about the fact that this legal document was modeled upon the 726 Byzantine Code Ecloga. Zakon Sudnyi Lyudem contains 32 articles, only three of which (Articles 1, 2 and 7a) are not based on the Byzantine Ecloga. Only ten of the remaining 29 articles (Articles 11, 14, 17, 18, 20, 21, 22, 23, 25 and 30a) are literal translations of the respective Ecloga articles. The remaining 19 articles are adapted versions of the Ecloga provisions and they contain significant modifications, particularly in respect of penal provisions. In this article, the author suggests the methodology for a further research on this legal document and points out the fact that these modifications are an abundant source of material which should be subject to a more extensive and comprehensive research from the sociological, historical and religious standpoints. The author considers that a general analysis of such an example of partial reception of a foreign law as well as the particular analysis of the contents of these modifications emerging in the process of reception may provide important answers on the specific social reality of early original Slavonic states and ultimately contribute to a better understanding of the phenomenon underlying the development of early states in general.

ЈАША ТОМИЋ И ПОЛИТИЧКА КРИТИКА ИСТОРИЈСКОГ МИШЉЕЊА

Author(s): Nebojša Ranđelović / Language(s): Serbian Issue: 63/2012

Jaša Tomić was an important political figure in the Serbian history who had a significant impact on shaping the political profile of the Serbs in Vojvodina (which was under the control of the Habsburg monarchy at the time) and the decision of the Vojvodina Serbs to join the new state of the South Slavs (in 1918). His activities may be observed from the aspect of his personal characteristics, his political ideology and his literary work. His literary opus includes polemics on a number of controversial issues with renowned Serbian historians of that time (Ruvarac, Stanojević and Radonić) as well as political criticism of historical thought. His criticism is clearly reflected in his syntagmatic concepts of “unpatriotic history”, “excessive criticism” and “noncontemporary and contemporary history”. In his ardent pursuit of his political ideals, he was prone to disregarding the fact that the epic history may be used and abused just like religion.

ПРАВНИ ПОЛОЖАЈ ПЕРЕГРИНА КАО МАЊИНЕ У РИМСКОМ ПРАВУ

Author(s): Marija Ignjatović / Language(s): Serbian Issue: 62/2012

Given the considerable interest of the international community in the protection of national minorities, this issue has been re-addressed and made the focal point of extensive scientific study. In fact, the protection of human and minority rights has always been an issue of concern and interest. Historically speaking, minority groups have always been part of the population of different countries throughout human history and they have always had their distinctive ethical, religious, cultural or linguistic features which differentiated them from the majority population in their countries. In the states of the ancient world, the human rights protection of this category of population was subject to a more or less extensive debate, primarily depending on the level of social development of each state. In the Roman slavery system of government, this issue became prominent only after the expansion of the state in the second period of the Roman Empire, particularly after the fall of the Carthaginian Empire in the Second Punic War of 201 BC. In this paper, the author provides a brief overview of the social circumstances in the second period of the Roman Empire particularly and elaborates on the protection of minority rights, with specific reference to the legal position of peregrines as a minority group in the Roman law.

ХАТИШЕРИФИ ИЗ 1830. И 1833. ГОДИНЕ И ЗЕМЉИШНА СВОЈИНА У СРБИЈИ

Author(s): Milica Todorović / Language(s): Serbian Issue: 62/2012

The concept of land ownership in Serbia was subject to radical changes in the 1830s. By that time, the ownership of land had been fundamentally governed by the Ottoman feudal laws, which were generally characterized by the fiction of God as the supreme landowner and the inherent right of the Muslim community to enjoy the use of land (which was considered to be the collective property of the Ottoman state). The predominant type of estates in the Belgrade Pashaluk were the estates of military feudal lords; these estates were awarded ad personam to the Ottoman elite soldiers (spahi) in exchange for their military services. The spahis were not the land owners but they had the right to enjoy the benefits from the land. The estates which were held and cultivated by ordinary people in exchange for paying duties to the Ottoman state were subject to a limited inheritance right. The estates of military feudal lords were abolished by the Ottoman Hatisheriffs of 1830 and 1833, which eventually made private land ownership possible. The subsequent changes in the tax system facilitated the departure from feudalism and enabled the peasants (commoners) to become owners of the land they cultivated.

RZYMSKIE ŹRÓDŁA ZASADY NE BIS IN IDEM

Author(s): Maciej Rogalski / Language(s): Polish Issue: 22/2018

The subject of the article is the ne bis in idem principle, mainly in the historical and comparativeperspective. The ne bis in idem principle is presented in the Roman period and its formation in latercenturies. The meaning and conceptual scope of this principle is clarified, both in continental lawand in Anglo-Saxon law. Under the Polish law this principle is presented in the codes of criminalproceedings of 1928, 1969 and 1997. The changes which were subject to the Polish penal codesare discussed. The present form of the ne bis in idem principle allows to treat this principle as thisprinciple the Polish criminal process.

HISTORYCZNE ZNACZENIE ZASADY IN POENALIBUS CAUSIS BENIGNIUS INTERPRETANDUM EST

Author(s): Bartosz Zalewski / Language(s): Polish Issue: 22/2018

Searching the historical roots of the humanitarianism principle, which in some way determinesthe institutional shaping of the legal norms of criminal law and the rules of their interpretation, it isusual to point to the period of Enlightenment. However it should be noted, that the directive requiringthe most favorable interpretation for the perpetrators was already known to Roman law. One of themwas undoubtedly the principle in poenalibus causis benignius interpretandum est. The subject of thispaper is the history of the title legal maxim, from its formulation by the Roman jurist Paulus to thecanon law of the twentieth century.

A primitív jogról

Author(s): Zsolt Lazar / Language(s): Hungarian Issue: 4/2017

Bronislav Malinovski: Zločin i običaj u primitivnom društvu. Novi Sad, Mediterran Publishing, 2016

Пројекат и мотиви казненог законика за Краљевину Србију

Author(s): Author Not Specified / Language(s): Serbian Issue: 1/2018

Римско право у докторским тезама Николе Крстића из 1854. године

Author(s): Žika Bujuklić / Language(s): Serbian Issue: 3/2018

The author analyses a dozen of claims (“theses”) from Roman law in the doctoral work of Nikola Krstić “Theses ex scientis juridicis et po liticis”, who defended it at the Royal University of Pest in 1854. This Latin text has not been published so far, so comprehensive translation with expert commentary is a task that is awaiting our legal science. However, on the basis of this partial analysis, which includes only a small piece of a total of seventy theses, the author concludes that this candidate had an enviable legal education and a boldness to engage in an under-investigated area of legal science. Krstić showed a good knowledge of the basic institu tions of Roman law and desire to introduce in its “theses” the issues that are innovative, insufficiently tested. He was comparing different Roman institutions mutually, comparing them also with the law of other ancient nations, searching for their influences in medieval Serbia and modern Civ il Codes (Serbian and Austrian). Krstić’s work represents the first step in the area of legal history in Serbia and he is justified as the founder of this legal discipline at the University of Belgrade. The author concludes that the questions that Krstić raised still remain the subject of studying of nu merous civilians and Romanists, up to the most recent times.

Ethics and Law - The Role of Legal Ethics Course in the Formation of Future Romanian Juridical Professionals

Author(s): Daniel Fodorean / Language(s): English Issue: 2/2018

Morality has connotations and implications in all spheres of personal life and social life. One of these spheres in which morality should be present is the justice system, from which there is the expectation to be a defender of human rights and fundamental freedoms and to make justice. In order to achieve this goal, law professionals must act morally and responsible, and the laws of a state must integrate the morality in their text and transpose moral principles into practice. A role in the formation of the moral personality of a lawyer is his education, education that must also addressed the moral dimension. One of the courses addressing this moral dimension is Legal Ethics prepares the student to integrate personal ethics with professional ethics. The purpose of this article is to present the importance of integrating into the School of Law curriculum of the Legal Ethics course and a possible approach to ethics in relation to the law.

„Die Katze muss weg!“: odchod českého obyvateľstva zo Slovenska 1938

Author(s): Michal Chorvát / Language(s): Slovak Issue: 2/2018

This article focuses on the historical-legal analysis of the Czech population’s position in Slovakia during the interwar period with regard to retreat of the Czech employees and their families from the territory of Slovakia. The article judges historical reasons for the big influx of Czechs to Slovakia, then deals with gradually worsening relations between Czechs and Slovaks and the legislation for mass departure of the Czech population from the Slovak State. The biggest amount of the Czech immigrants occurred right after establishing of Czechoslovakia. Initial enthusiasm was replaced by disappointment of the young Slovak generation which could not find any positions in the state administration or another skilled work (occupied by the Czechs). These facts and the changed situation in Europe were a great ground for the fascist propaganda in the 1930s which led the Slovak society to declaring their own state and fights against everybody who harmed the Slovak nation – including Czechs.

In dubio contra fiscum – A Few Remarks on the “Barbarian” Legal Principle

Author(s): Maciej Jońca / Language(s): English Issue: 2/2018

Among many fundamental rules relating to the functioning of a democratic rule of law, which do not have a Roman provenience belong famous Latin maxim in dubio contra fiscum. At the level of content, the oldest document which includes an officially expressed willingness to resolve doubts in favour of the taxpayer is the letter from King Theoderic to his treasury administrator Marcellus. The document is little-known and is usually overlooked in the world of science. The king instructs his advocatus fisci to strictly adhere to the letter of the law and win cases only on the basis of fair-play game. At the same time, when in doubt, he is obliged to acquiesce to the claims of the citizens and give up.

Premunicipální správa obce Curictae v Liburnii

Author(s): David Temer / Language(s): Czech Issue: 2/2018

This article will cover the pre-autonomous city administration of the Curicum municipality (town of Krk) located on the island of Krk in the Kvarner gulf. Originally, this region was part of the Illyricum Roman province, in the later years (9 A.D.) it became part of the newly established Roman province Dalmatia. The subject matter of examination are two Latin inscription discovered in the aforementioned municipality. These inscriptions record information about two significant structures found in the municipality (the city walls and the temple of Venus) and the government officials who approved the construction of said structures. The inscriptions designate the title of “PRA” to the government officials, which is commonly conceived as an abbreviation for praefecti or praetores in the academic community. In this article, I will elaborate on the correct way how to interpret the “PRA” abbreviation and the possible authority and standing of the aforementioned officials it the provincial public administration.

Wizerunek Sejmu Ustawodawczego w opinii politycznych przedstawicieli społeczeństwa polskiego okresu II Rzeczypospolitej

Author(s): Arkadiusz Adamczyk / Language(s): Polish Issue: 6/2018

One of the greatest mysteries, which the time was to solve, was the political, systemic, economic and social form of the state resulting from the processes accompanying the summoning of the Legislative Sejm. An argument may be propounded that the way the Sejm was perceived had been decisivel influenced by the atmosphere of the electoral campaign, which differed considerably from the Poles’ general enthusiasm expressed less than three months earlier. When Józef Piłsudski ceremonially opened the sitting on 10 February 1919, the opinion on the Sejm had already been established. When the Chief of State declared that he “is honoured to open the Polish Sejm, which shall again be the sole master and host of its homeland”, he was evoking a vision rather than reality. The divisions established during the rivalry for Deputies’ mandates caused the reception of the Sejm by the society to be conditioned not on the authority of the legislative body formed by the sovereign’s will, but rather on political support of the voters of individual parties and the reaction to success (or failure) of the supported party. For those supporting the left, the parliament elected in January 1919 was not peasant enough. For the national right, especially when the Deputies’ chamber was joined by minority representatives, it was not consistent with the Poles’ national interests. Particularly disappointed were all those, whose representatives had not been elected, especially representatives of the radical intelligentsia. The disappointment with the election results greatly affected the social reception of the re-established parliament.

RAZVOJ INSTITUTA ATMIJE U GRČKOM PRAVU

Author(s): Ivana Vrkatić / Language(s): Serbian Issue: 01/2018

Atimia is most often understood as the loss of honour or civic rights. Atimia existed in most civic states in Ancient Greece, reaching the height of its power in the Athenian democracy. Most sources cite two stages in the development of atimia: archaic and classical atimia. Archaic atimia involved outlawry, while the classical atimia meant disenfranchisement. However, there is no strict dividing line between the two stages. As relics of archaic atimia may be found in the stage of classical atimia, it is more accurate to discuss the evolution of this phenomenon, rather than the separate stages. Te aim of this paper is to confrm this claim.

Maurice Hauriou (1856–1929), părintele fondator al dreptului administrativ francez

Author(s): Cristian Clipa / Language(s): Romanian Issue: 04/2019

With Marice Hauriou, in France, public law goes into the modern age. By his style, by the number and complexity of the themes he approached as well as by their exhaustiveness, this founding father of French administrative law – as we know it today – leaves behind a legal literature that, up to him, has only been able to provide sterile and purely descriptive commentaries of normative acts, modest works belonging to those that the modern history of public law labelled as of glossary or repertory writers. Hauriou is the one who, for the first time in the history of French administrative law, confers it the terminological and ideological substance for which it is highly appreciated by public law specialists today.Among the major themes that Professor Hauriou has approached in his work, the following are still outstanding, due to the accuracy and relevance of the analyses surrounding them, such as: – the administrative regime and the administrative function; – the institution and the institutional phenomenon; – the legal persons of public law, the public establishments and the establishments of public utility; – the public administration; – the public interest and the administrative management; – the public service; – the civil service and the civil servant; – the public property and the public domain; – the self-executing decisions or the unilateral administrative act; the administrative contract; – the administrative litigations; – the acts of government; – the discretionary power of the public administration; – the patrimonial liability for the public administration’s illicit acts; – the administrative police. Most of these themes have been systematically addressed by Hauriou, either by reference to the ideological foundation represented by the „public power”, or in relation to the notion of corporate institution, or in connection with the fact that administrative law groups rules with a derogatory nature from the rules of civil law, and legal persons under public law called upon to carry out the administrative function of the State are endowed with exorbitant prerogatives, the exercice of their duties being likely to result in a restriction of the freedom or the property of individuals. Surely, this risk – far from being totally eliminated – can be diminished, but only when individuals have effective tools to fight against abuses by executive authorities. According to Hauriou, an important place among these instruments is occupied by the so-called judicial review on abuse of power, a type of judicial action aiming at the annulment of unlawful administrative acts.