Revizuirea Constituției României. Aspecte de politică externă și integrare euroatlantică

Author(s): Radu Carp,Iulia Matei,Gabriel Sarafian / Language(s): Romanian Issue: 3/2003

After more than a decade from the elaboration of its Constitution, Romania is on the point to revise his Fundamental Law. This article focuses on the consequences that the new constitutional proceedings will have on the Romanian foreign policy. The issues that make the object of our research are grouped in five chapters: general principles regarding the balance of powers; the compatibility of the constitutional norms with the Council of Europe and the European Union's legislation; Romanian accession to the European Union; Romanian participation at the international security system; the relationship between international treaties and internal law. The main core of this article is the analysis of the relationship between the new constitutional provisions and the relevant Romanian and international legislation. Our general conclusion is that, even if the official purpose of this constitutional revision is to facilitate the Romania's integration into the euro-atlantic political structures, the hell norms were drew up in a manner that is sometimes in contradiction with the above – mentioned purpose.

СТЕЧАЈ У ФРАНЦУСКОМ ПРАВУ

Author(s): Ranko Vulić / Language(s): Serbian Issue: 38/2016

Bankruptcy in France has been regulated by the Commercial Code since 2005, with 1000 articles of the legal and by-law part of the Code. The same rules regulate the bankruptcy of private companies, registered artisans, registered farmers and members of liberal professions. Bankruptcy has 5 stages: 1. temporary mandate; 2. mediation; 3. reorganization of a liquid entity; 4. reorganization of an insolvent entity; 5. bankruptcy. It is obvious that the state is trying to save jobs and economic activity through the intervention of courts and other state authorities.

Проф. др Жељко Мирјанић: ПИСАЊЕ И ДОНОШЕЊЕ ЗАКОНА

Author(s): Marinko Učur / Language(s): Serbian Issue: 38/2016

Review of: Проф. др Жељко Мирјанић: ПИСАЊЕ И ДОНОШЕЊЕ ЗАКОНА, Правни факултет Универзитета у Бањој Луци, 2014

SESKUALNO ZLOSTAVLJANJE I ISKORIŠTAVANJE DJECE (NOVINE U KRIVIČNOM ZAKONU REPUBLIKE SRPSKE)

Author(s): Ivanka Marković / Language(s): Serbian Issue: 40/2018

The Criminal Code of the Republic of Srpska made significant changes in the system of criminal protection of the sexual integrity of children. The age limit up to which it is absolutely forbidden to commit adultery or sexual acts equated with it with a child has been raised, new criminal offenses have been introduced that incriminate actions that were outside the zone of punishment until now, greater punishment measures are provided for certain forms of criminal offences, and certain changes were made in the general part of the Criminal Code, which also contribute to the enhanced protection of children's sexual integrity. In addition, all criminal acts that threaten or injure the sexual integrity of children are systematized in a special group of criminal acts in Chapter XV, i.e. Criminal acts of sexual abuse and exploitation of a child, which emphasizes the importance of the good that is being protected. The aforementioned changes are the subject of consideration in this paper, where the author also explains the reasons for their introduction into the criminal justice system.

ПРАКСА ЕВРОПСКОГ СУДА ЗА ЉУДСКА ПРАВА У ОДНОСУ НА ПРАВО ЕВРОПСКЕ УНИЈЕ

Author(s): Ljiljana Mijović / Language(s): Serbian Issue: 40/2018

The process of accession of the European Union to the European Convention on Fundamental Human Rights and Freedoms, as a contracting party, as well as a party to the proceedings before the European Court of Human Rights, is ongoing and depends on the ongoing negotiations. Regardless, for many years the European Court of Human Rights has been dealing with certain issues related to both the law of the European Union and the mutual relationship between the member states and the Union itself. At the beginning of this practice, the Commission for Human Rights dealt with it very cautiously, more from a theoretical than from a practical aspect, so that only with the institutionalization of the European Court of Human Rights would conditions be created for judicial decision-making in cases of great legal importance, arising from practice. This article addresses some of those questions.

ДВОРКИН И ОРИГИНАЛИЗАМ У ИНТЕРПРЕТАЦИЈИ УСТАВА

Author(s): Igor Milinković / Language(s): Serbian Issue: 40/2018

Ronald Dworkin is one of the most influential legal theorists and philosophers, whose thought marked the second half of the 20th and the beginning of the 21st century. One of the topics that Dworkin dealt with intensively during his career was the problem of interpreting the constitution. After the importance of the constitution, as a fundamental legal act, and the special responsibility of the interpreter of the constitutional provisions arising from such importance, Dworkin's teaching on the interpretation of the constitution will be subjected to analysis. Although Dworkin was known as one of the most prominent critics of originalism (as a special model of constitutional interpretation), his criticism of Scalia's version of originalist teaching will lead certain authors to include him among the representatives of originalism. After the paper presents the genesis of Dworkin's views on the interpretation of the constitution, the differences between his views and originalism will be pointed out.

PRACTICAL ASPECTS OF APPLYING DIFFERENT LEGAL TRADITIONS IN INTERNATIONAL ARBITRATIONS

Author(s): Dragan Zelić,Nenad Baroš / Language(s): English Issue: 40/2018

In legal science, there is no single and comprehensive definition of arbitration. Most of the positive regulations that regulate it, both in the world and in our country (Law on Arbitration), leave out the question of its determination. Nevertheless, in science and legal practice, arbitration is most often defined through the presentation of the arbitration dispute, its elements, course and legal consequences, as well as by stating the differences between arbitration and the court process, i.e. arbitration and other alternative ways to resolve disputes (Alternative Dispute Resolution). . It is established that arbitration is an alternative to judicial dispute resolution, that it is formed by consensus, that is, the agreement of the will of the parties involved in it, that it is of a private nature, and that its decisions are legally binding and final. The paper tried to administratively explain the differences, i.e. different ways of acting in the case when the participants in international arbitrations come from different legal systems, especially the differences between the two most important and most represented prana systems in the world, the European, continental legal system and the Anglo-Saxon law (common law).

ПРОФ. ДР ГОРДАНА СТАНКОВИЋ, ПРОФ. ДР РАНКА РАЧИЋ: ,,ПАРНИЧНО ПРОЦЕСНО ПРАВО“

Author(s): Stojana Petrović / Language(s): Serbian Issue: 40/2018

Review of: ПРОФ. ДР ГОРДАНА СТАНКОВИЋ, ПРОФ. ДР РАНКА РАЧИЋ: ,,ПАРНИЧНО ПРОЦЕСНО ПРАВО“ (Универзитет у Бањој Луци, Правни факултет, 2017)

Meandry w kwestii cywilnej kontroli nad Siłami Zbrojnymi w RP po 1989 roku

Author(s): Zenon Trejnis / Language(s): Polish Issue: 4/2022

The article presents considerations and opinions on the observance of constitutional principles related to civil and democratic control over the armed forces after 1989 in Poland. The control, supremacy, and supervision of the civil authorities over the organs of violence are one of the greatest challenges a democratic state must face. Civilian control of the military is vital today, as NATO has made it a prerequisite for membership. The article aims to present a research problem and answer the question – how each side perceives its role and what function it fulfils in terms of control, authority, and supervision – from the public respect and popularity enjoyed by a given politician, political institution, or armed forces to the administrative or political abilities of the ruling politicians. Civilian control should also be accepted by military commanders and political leaders in power and result from the institutional and legal regulations adopted in a given country and the experience of NATO members. The armed forces are to serve the state, protect its independence, security, and territorial integrity, and therefore maintain political neutrality, not selected political groups (parties) or society. Since there is no uniform model or system of control over the military, there are only common principles necessary to guarantee democratic and civilian control over the armed forces in the state.

Stopień realizacji zasady odpowiedniego vacatio legis w polskiej praktyce parlamentarnej w latach 2011–2021 – wybrane problemy

Author(s): Małgorzata Stefaniuk / Language(s): Polish Issue: 41 (5)/2022

The study is to assess the degree of implementation of the principle of adequate vacatio legis in the Polish parliamentary practice in the period of 2011–2021. The issue discussed is very important and up-to-date, especially from the point of view of the basic functions to be performed by the legal institution of vacatio legis. The above-mentioned issue is particularly important in the case of laws, which differently from the existing regulations, shape the legal situations of many entities and in the light of the assertion of the importance of the principle of adequate vacatio legis for human rights. The aim of the study required analysing the normative situation regarding applicable options for the entry of legislation into force, and thus its vacatio legis, the case law of the Polish Constitutional Tribunal, the positions of legal scholars in the field, as well as the content of the provisions on entry into force included in the acts adopted in the 7th and 8th terms of office of the Sejm of the Republic of Poland and several months of the 9th term. To the extent necessary to illustrate the statements put forward, the course of the legislative process itself has also been analysed, including parliamentary speeches and debates in parliamentary committees. The statistical data that had been collected, allowed the author to identify the most frequently used options of entry into force and thus to determine the periods of their vacatio legis. The above provided material to conclude that the degree of implementation of the principle of adequate vacatio legis in the Polish parliamentary practice during the period in question can hardly be considered sufficient, not only when there is no adjustment period at all or when the entry into force takes place on the day following the date of publication, but also when the law addressees are allowed a little more time (even more than the minimum period of 14 days). While there are some positive signs that the need for rational law-making is perceived, these are not strong enough to overcome the weaknesses of the parliamentary procedure, which make the degree of implementation of the principle of adequate vacatio legis not optimal. These include: insufficiently convincing and too vague justifications for the proposed dates of entry into force for draft laws; insufficient attention to the views of other entities with more knowledge of what periods are needed for the laws to enter into force; adopting too optimistic periods for the entry into force of laws with a calendar date, the late announcement of which results in a shortening of the assumed period of vacatio legis or even a retroactive effect; abuse of the possibility to make changes to the provisions of the act during the adjustment period and use the dates of vacatio legis for the accomplishment of ad hoc political objectives. The sensitivity to the need to perform the basic functions of the vacatio legis, which include learning about the new law and enabling adaptation to the new legal regulations, has also become weaker and weaker.

Konstytucjonalizacja prawa do ochrony danych osobowych – proces trwający czy zakończony?

Author(s): Marcin Rojszczak / Language(s): Polish Issue: 2/2023

The article presents arguments for the need to further improve of the Polish constitutional provisions establishing guarantees in the area of personal data protection. To this end, the development and current framework of EU data protection law and the national guarantees of the individual’s informational autonomy introduced in the Polish Constitution are presented. Against this background, the author argues that the Polish Constitution, although it provides certain guarantees related to the protection of information concerning an individual, is not in fact a source of a coherent, consistent and independent public subjective right to the protection of personal data. The author considers whether the examined set of constitutional norms can constitute a control model for assessing the permissibility of using many modern (and intrusive) forms of interference with fundamental rights, including those used by public entities – in this regard, he discusses in detail the case of the ClearView AI system. Particular attention is paid to the impact of the recent reform of the sub-constitutional provisions on the protection of personal data on the legibility and effectiveness of constitutional guarantees of the informational autonomy of the individual.

Rozważania wokół (nie)dopuszczalności przedłużenia kadencji organów samorządu terytorialnego

Author(s): Agata Pyrzyńska / Language(s): Polish Issue: 2/2023

The aim of the article is to analyze the legitimacy and legal admissibility of the adoption of the Act of 29 September 2022 on the extension of the term of office of local government units. In the act, the legislator extended the term of office of local government bodies by half a year, in order to avoid the overlapping of two election processes in 2023 (local and parliamentary elections). The paper analyzes the arguments in favor of separating the two electoral processes and those which, from the constitutional and legal point of view, contradict the legislative actions taken. In particular, the aim will be to verify whether the measure adopted by the legislator was appropriate. In order to implement the above-mentioned assumptions, the work uses the formal and legal method and analyzes the achievements of jurisprudence and doctrine. To the extent necessary, the empirical method was also used (in particular in terms of identifying threats that could result from the overlapping of local government and parliamentary elections in 2023).

Sprawozdanie z realizacji projektu badawczego pt. „Crises and democracy: the long-term impacts of COVID-19 on V4 countries’ electoral systems”

Author(s): Monika Florczak-Wątor,Grzegorz Kuca / Language(s): Polish Issue: 2/2023

CONSTITUȚIA ISRAELULUI ȘI DREPTUL LA LIBERTATEA DE RELIGIE

Author(s): Cătălina Mititelu / Language(s): Romanian Issue: 2/2023

The right to freedom of religion was also expressly provided for in the Declaration of Independence of the State of Israel of May 14, 1948, which had and still has a constitutional value. This fundamental human right - provided both by jus divinum and jus naturale, as well as by jus scriptum - was also reaffirmed in the text of some fundamental laws that have a constitutional character, such as, for example, the Law on „human dignity and freedom”, from 1992; The Law on Freedom of Profession, from 1994, etc. A first collection of these fundamental laws, with constitutional value, was published under the name „Constitution of Israel” in 1958. All these fundamental laws, accompanied by amendments and additions to their text, were included in this Constitution. The fundamental human rights and freedoms are provided for in the first place in this Constitution, among which the freedom of religion occupies a dominant place.

RADNA I SOCIJALNA PRAVA U USTAVU FNRJ 1946. I USTAV NR HRVATSKE 1947.

Author(s): Marinko Učur,Željko Bartulović / Language(s): Serbian Issue: 3 (1)/2023

In this paper, the authors deal with the constitutional provisions of the Vidovdanski (1921) and Octroyed constitution (1931) in the field of labor and social rights. The analysis of those regulations in the Constitution of the FNRJ from 1946 follows. After reviewing the work of the Croatian Constituent Assembly, a comparison is made with similar regulations in the Constitution of the People’s Republic of Croatia from 1947.

ERGA OMNES ОБАВЕЗЕ И КРИЗА СУВЕРЕНИТЕТА ДРЖАВА У МЕЂУНАРОДНОМ ПРАВУ

Author(s): Bojan Milisavljević / Language(s): Serbian Issue: 3 (1)/2023

The paper analyzes the existence of an increasing number of norms with erga omnes effect in international law that influence the narrowing of the sovereignty of states. The international community is moving in the direction of building a universal order, which affects the traditionally understood sovereignty of states. The author carefully analyzes the effect of norming and the constant striving to establish a regime through cogent norms, which can affect the sovereignty of smaller states to a greater extent. In this sense, the recent work of the International Law Commission is critically reviewed and concrete proposals de lege ferenda are given. In the paper, the author advocates for finding a fair solution and a balance between the justified need to establish a universal system of general norms and the interests of individual states, which is an immanent feature of international law and which is represented through the sovereignty of states.

ДИПЛОМАТИЈА ЕВРОПСКЕ УНИЈЕ

Author(s): Nikola Stanković / Language(s): Serbian Issue: 3 (1)/2023

The paper analyzes the diplomatic system of the European Union in the context of diplomatic activities directed primarily outside the external borders of the Union. Аuthor links the analysis to the period after the adoption of the Treaty of Lisbon, keeping the analysis from the previous period only on the Common Foreign and Security Policy of the Union, and for the reason that the treaty generated a normative space for the establishment of the European External Action Service and the High Representative as a formal the most important modern diplomatic actors of this organization. The author also analyzes the European Council as a collegial body whose competence is the formation of the Union’s foreign policy. The author also reviews the Council оf the European Union. Finally, the author analyzes the position of the Union in the context of multilateral diplomacy. Although the author believes that the Lisbon reforms are a big step in the right direction, they are just that. The foundation provided by this contractual framework must be further strengthened, both politically and normatively, but further steps must be taken towards establishing a clearer and more extensive functional autonomy of both the High Representative, the Service, and the Commission. This is the only way the EU will succeed in occupying the diplomatic position it has been striving for since the founding of the European Communities.

ANALYSIS OF THE CAPACITIES OF CIVIL SOCIETY ORGANIZATIONS IN MONGOLIA

Author(s): Tuyagerel GANBAT / Language(s): English Issue: 1/2023

Included in the list of countries with limited freedom according to the Global Federation of Civil Society Organizations report- 2018, the capacity of Mongolian civil society organizations (CSOs) is revealed to be weak with no influence on government policy decisions, and limited rights and responsibilities. In this regard, the internal factors- key to enhancing the role of CSOs in Mongolia will be examined along with the challenges and solutions to develop their capacity. The study can be significant in a way that the analysis of the dimensions internally affecting the development of the CSOs fully intends to improve and push forward the engagement of CSOs with the society, reinforcing their roles and strengthening democratic process. Within the qualitative research framework, the database is enabled with the secondary resources- theories, methodology, research report and more on employing qualitative modes of inquiry through the document analysis and comparative study. Moreover, the quantitative approach to the analysis of the dimensions that affect CSOs capacity is based on a certain number of NGOs selected by random sampling followed by the data collected and analyzed using the SPSS statistical program.

Global Patterns of Constitutional Judicial Review Systems: Two Major Models of Constitutional Judicial Review in the World

Author(s): Blerton Sinani / Language(s): English Issue: 1/2024

Judicial constitutional review is an essential component of upholding constitutionalism, even though it is a relatively new concept outside the United States. The US Supreme Court set a precedent in 1803 in the Marbury v. Madison case by declaring legislative acts unconstitutional, which is widely regarded as the beginning of the principle or doctrine of judicial constitutional review. Since then, judicial constitutional review has become a widely accepted feature of most democratic legal systems. Comparative constitutional law recognizes two well-known models of judicial constitutional review: the American model of dispersed or decentralized review by ordinary courts and the constitutional Kelsen/European model of centralized review by a specialized constitutional court. Additionally, there are mixed or hybrid systems that combine elements of both models.

PHILOSOPHICAL-LEGAL CONSIDERATIONS OF COERCION CONCEPT

Author(s): Oleg Tănase / Language(s): Romanian Issue: 4/2020

The issue of state coercion in the last decade is becoming particularly current, its role and value have been reconsidered, which is largely conditioned by the socio-economic and political changes in contemporary society. The state coercion is one of the methods of performing state administration functions in different areas of social life (at the same time different methods can be applied to influence the members of society, such as: sanction or threat of its application, remuneration or other incentives, persuasion, etc.). Thus, the research of any legal phenomenon must not have a separate fragmentary character, but must be carried out, taking into account its place in the larger phenomena that absorb it, with the detection of functional, genetic and other social and legal phenomena. Here, we can also mention that the examination of the concept of coercion in the implementation of the rule of law, starting from the philosophical-legal desideratum, can widen the range of knowledge and can give us a more complex presentation of coercion, because its content, its role, its value are revealed in the realization of the right. Democracy, as a concept, means the power that emanates from the people and belongs to it; but at the same time, the people entrusted this power to be exercised by the state, which by virtue of a good and efficient activity divided its power. Under these conditions, the state organized on the principle of separation of powers in the state, joins the rule of law, with all the effects of functionality: state-citizen, citizen-state, mutual responsibility and coercion.