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"CUSTODIA", "RECEPTUM" И ДОГОВОРНАТА ОТГОВОРНОСТ. ЕДНО ПРЕПРОЧИТАНЕ НА ДОГМИТЕ НА ГРАЖДАНСКОТО ПРАВО В СВЕТЛИНАТА НА КАЗУИСТИЧНИЯ РИМСКИ МЕТОД

Author(s): Carlo Peloso / Language(s): Bulgarian / Issue: 1/2016

The issues relating to liability under contract occur - regardless of their respective individual system - on the plane of the structure of decision and responsibility on the plane of the allocation of the burden of proof. The contribution, after consideration of the main classical sources on the topic of custodia and receptum, offers a rereading update of the criterion, carved in the expression praestare custodiam, by strict interpretation of Art. 1218 of the Civil code and the provisions relating to liability so-called ex recepto which focuses on general and objective one based on contractual liability (a.k.a.: what is considered a violation in itself, not guilt) and re-interpretation of the sign cause ‘that can not be attributed to the similar language and descriptive phrases in the field of lack of responsibility for duties that focus on flexibility 'classical method' of classical Roman jurisprudence and flow into the regula nautilitas contrahentium.

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"GEO-CULTURAL IDENTITY" IN MULTICULTURALISM: CAN IT BE A SOCIAL CONTRACT?

Author(s): Munir Hossain Talukder / Language(s): English / Issue: 1/2019

Multiculturalism is the system of society that allows people of different cultural backgrounds to live together in harmony, whereas geocultural identity is the framework by which to classify a person based on their geographical and cultural roots. If identity and culture are to be intertwined in a social contract, then in a multicultural society, people shall have a right to protection of culture only. However, in the case of geo-cultural identity, some other rights (for example, identification with one's geographical heritage and cultural values) are also fundamentally deserved by all. Since this will create a more reasonable notion of rights and justice, which is the goal of any modern society, it is rational to say that geo-cultural identity in multiculturalism can be seen as a social contract. In this paper, I have analyzed the possibility of the coexistence of geo-cultural identity and multiculturalism through a social contract.

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"NASCITURUS PRO IAM NATO HABETUR QUOTIENS DE COMMODIS EIUS AGITUR". РИМСКОТО ПРАВИЛО И СЪВРЕМЕННОТО МУ ПРИЛОЖЕНИЕ

Author(s): Malina Novkirishka- Stoyanova / Language(s): Bulgarian / Issue: 2/2017

The report presents the rule "Nasciturus pro iam nato habetur quotiens of commodis eius agitur" as it exists in Roman legal texts in relation to the ancient Greco-Roman concept of personae, different from that which we conceive today. In this context, the capacity of human embryo to be subject of right comes from social, religious, medical, moral and especially legal recognition. We discuss some of the heritage aspects of this rule, as well as the issues of early human life, abortion, infanticide and murder of pregnant women, recognition of the newborn by the father, State, etc. Some decisions of the Roman jurisprudence are surprisingly topical and are part of many discussions on its bioethical and legal aspects.

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"Panama żyrardowska" w okresie dwudziestolecia międzywojennego – wyrok Sądu Obywatelskiego w sprawie Aleksandra Lednickiego

Author(s): Przemysław Dąbrowski / Language(s): Polish / Issue: 1/2014

„The Żyrardów Affair” was the loudest case of interwar period. It is an excellent source to learn about the history of foreign capital in Poland. A major role was played by Alexander Lednicki – a lawyer, the leader of Moscow’s Poles in the period of the Russian Empire, former president of the Liquidation Committee for the Affairs of the former Kingdom of Poland, and president of the American Bank in Poland in the interwar period. He participated in the signing of the agreement in Biskupice, for what he was called a traitor to the Polish state. After this event, he committed suicide. His son, Wenceslaus, stood in defense of Alexander Lednicki’s honour. Thanks to his initiative, the convened Civil Court composed of well- known people in contemporary Poland. After initial process, Lednicki was acquitted of the charges against him.

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"Sucks Cases" in WIPO Domain Name Decisions

Author(s): Michal Koščík / Language(s): English / Issue: 1/2007

Does the use of a domain name for criticism constitute the use of the domain name in Bad Faith? Is there any right to register a domain name confusingly similar with the name of a well known company to tell other people that it is vivisecting animals? Or is it a legitimate interest to register domain name like bridgestonesucks.com when your car skids on the wet road? Generally speaking there are two approaches to answer these questions. The first approach says that the right to criticize does not extend to registering a domain name that is identical or confusingly similar to the owner’s registered trademark. Second approach considers the freedom of speech and says that there is a legitimate interest in using the trademark as part of the domain name of a criticism site if the use is fair and non-commercial. Both approaches can be found in the WIPO domain name decisions. The main issue is to consider whether defendants in “sucks cases” are really intending to practice their freedom of speech or are just trying to blackmail the complainants. To prove a good faith defendants have to prove that they are not competitors of complainants in any way and that they have no commercial profit from their sites. If there is no other intent than to protest and to ridicule the complainants, the defendands have legitimate interests in respect of the disputed domain name.

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"Tirania" clauzelor neuzuale

Author(s): Ionuţ Florin Popa / Language(s): Romanian / Issue: 01/2016

Art. 1.203 of the Civil Code regarding the unusual standardized clauses produces unjustified fear among the authors of agreements. The purpose of this study is to give the legal text the due importance and to identify an action intended to avoid the distorted enforcement of the legal text. Starting from the identification of the origin of the legal text (art. 1341 par. 2 of the Italian Civil Code) and after getting through the common sense comparisons with any texts provided by newer laws, this study is intended to actually identify the reasonable limits of the scope of the legal text: circumscribing the standardized clauses in the context of the fundamental mechanism of the offer and acceptance, the interfaces between art. 1.203 of the Civil Code and the legislation of abusive clauses, the formalism of special acceptance of the unusual clauses, the analysis of the legal list provided under art. 1.203 of the Civil Code. The unfriendly formalism of the special acceptance, as well as the restrictive nature of the legal list represents certain indisputable shortcomings of the legal text. A different and more flexible legal solution, the model for which was found in the comparative law, might have been taken into account.

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"Words hurt for life" – legal aspects of verbal punishment of children

Author(s): Sylwia Różycka-Jaroś / Language(s): English / Issue: 2/2016

This paper is dedicated to the issues of verbal punishment of children during the upbringing process. Statistics show that this is the most common type of punishment of children used by parents. Unfortunately, it often takes the form of a humiliating criticism, shouts or intimidation. All this affects negatively the child’s psyche. Taking into consideration the amendments which introduced a total prohibition on using corporal punishment towards children to Polish legislation, the issue of the limits of verbal punishments permitted by law still remains unsolved. Apart from a short definition and the description of the scale of this phenomenon, this paper is mainly dedicated to a legal analysis, which takes into account the stances of the doctrines of criminal and civil law. This paper attempts to give a straight answer to the doubts concerning this matter.

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"Zlaté rybičky" aneb jde platit náhradu škody za res nullius?

Author(s): Jaroslav Knotek / Language(s): Czech / Issue: 3/2006

S účinností od 14. dubna tohoto roku došlo k významově poměrně zásadní novelizaci zákona č. 115/2000 Sb., o poskytování náhrad škod způsobe­ných vybranými zvláště chráněnými živočichy, ve zně­ní pozdějších předpisů (dále jen zákon o náhradách). V čem lze význam této novely provedené v rám­ci zákona č. 130/2006 Sb., kterým se mění zákon č. 154/2000 Sb., o šlechtění, plemenitbě a evidenci hospodářských zvířat a o změně některých souvise­jících zákonů (plemenářský zákon), ve znění pozdějších předpisů a některé další zákony (dále jen novela) spatřovat? Nota bene, jde-li o novelu spočívající v do­plnění všeho všudy sedmi slov do stávajícího zákona o náhradách? Je to právě v samé podstatě provedené novely, která výrazně vybočuje z dosavadních manti­nelů zákona o náhradách a možná nejen jich.

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"Постконфликтно уређење" одржаја на Косову и Метохији-ка поразу права прогнаних лица и "легализацији"противправних аката узурпатора?

Author(s): Duško M. Čelić / Language(s): Serbian / Publication Year: 0

Violence against property, which in Kosovo continues to be made and in terms of the “post-conflict peace“, through the activity of quasi-governmental institutions, favors and systematic encroachment on property-legal relations to real estate through „normative“ activities of self-proclaimed authorities in the province. The Law on Property and Other Real Rights, adopted by the Kosovo Assembly in 2009, changed the rules on acquisition by prescription by altering the requirements of bona fide and lawful possession existing under the previously applicable law. The long absence of the rule of law,mass usurpation of real estate of refugees from Kosovo and Metohija, the lack of continuity of keeping the public registers and storing collections of documents and difficult or impossible access to justice for the greatest number of refugees, some of the reasons for the critical attitude towards these authors "provisions“. Bearing in mind the relevant international and domestic legal standards for the protection of human rights of displaced persons, we believe that ‘the provisions’ of the possession, flung open the door for legalization violent established the factual situation on the real estate of refugees from Kosovo and Metohija.

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(1) Faptă tipică şi antijuridică îndreptată împotriva siguranţei circulaţiei pe drumurile publice. Imposibilitatea confiscării vehiculului condus de subiectul activ. (2) Faptă tipică şi antijuridică pentru care prin rechizitoriu s-a dispus clasarea.

Author(s): Cristian Valentin Ştefan / Language(s): Romanian / Issue: 01/2020

1. In the event of a typical and unlawful act directed against the safety of traffic on public roads, the vehicle driven by the active subject cannot be confiscated under art. 112 paragraph 1 letter b C. pen. 2. If the confiscation is ordered through the indictment by the cessation of the prosecution for a typical and unlawful act, the competence to take the safety measure belongs to the preliminary chamber judge, not to the court seized with the indictment and the applicable procedure is the special confiscation in the case of cessation, not that of common law, in which the trial starts as normal.

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(I) Dare de mită. Elementul circumstanţial agravant referitor la săvârşirea infracţiunii în raport cu un funcţionaravând atribuţii de control. Condiţii

Author(s): Cristian Valentin Ştefan / Language(s): Romanian / Issue: 04/2018

I. According to art. 7 par. 2 of the Law no. 78/2000 for preventing, discovering and combating corruption, in force at the time of the events, bribery, in the form of offering, was more seriously punished if committed in relation to an official having control duties. Firstly, control duties involve prerogatives so as to verify certain situations, as well as powers to follow up on these situations and, if necessary, to take or propose measures accordingly. Secondly, the aggravating circumstantial element can be enforced only if the offense of bribery is committed in connection to the exercise of the control duties. II. a) Decriminalization occurs through two mechanisms: the abolition of criminal provisions in the context of an objective impossibility to frame the committed acts in another criminal provision in force and by modifying the constitutive elements of the offense in such a way that the in concreto act is no longer found in the legal content described by the new law. b) The activity of criminal law and the retroactivity of the decriminalization are based on different premises, so they cannot coexist. In the event of a succession of legal provisions, the activity of the criminal law claims that the act should be incriminated both in the old law and in the new law, the new law not being favourable. The retroactivity of the decriminalization claims that the act, incriminated in the old law, is no longer incriminated in the new law.

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(Ne)konzistentnost “diferenciranog građanstva” u Preporukama za promjenu Ustava Federacije BiH

Author(s): Nedim Kulenović / Language(s): Bosnian,Croatian,Serbian / Issue: 13/2013

Jedna od karakteristika ustavnih sistema u BiH, pa i onog Federacije BiH, jeste postojanje interne antinomičnosti koja se ogleda u činjenici da su “pojedina ustavna rješenja uzajamno proturječna, i da se, unatoč jednakoj pravnoj snazi, uzajamno isključuju”. Ekspertna grupa za reformu Ustava Federacije Bosne i Hercegovine (Ekspertna grupa) za regulativno područje ljudskih prava i osnovnih sloboda u Ustavu FBiH zapaža da u smislu antinomičnosti postoji “nekonzistentnost” između garantovanih ljudskih prava. Posebno se ističe pravo na nediskriminaciju iz normativnog dijela i preambule Ustava FBiH, gdje se vrši “nominalno razlikovanje” nosilaca suvereniteta, a što u konačnici vodi “različit[om] tretman[u] u pravima”.

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(Ne)odgovornost pomorskog prijevoznika za štete na teretu uslijed nautičke pogreške

Author(s): Ivana Oršulić / Language(s): Croatian / Issue: 162/2008

The paper deals with the nautical fault as a specific corrective of the sea carrier liability for damages on goods caused by the activities of the master, the crew and others of whom the sea carrier makes use in his activities. Beside the historical circumstances which caused the genesis and evolution of the nautical fault defence, the legal regulation is analyzed through the existing international conventions and with a special overview of difficulties in delimitation of carrier's liability. Contrasting opinions that appeared during the process of reassessment of the justifiability of nautical fault existence are presented, especially the ones that emerged during the work on the new international convention. Importance of a prompt conciliation of experts in this matter is emphasized, coveted not only because of the achievement of legal security, but also because of the harmonization of the carriage of goods by sea with other sectors of transport as well as the future undisturbed development of nautical navigation and trade.

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(Ne)zakonitost imenovanja upravnih odbora javnih ustanova u Tuzlanskom kantonu

Author(s): Ervin Mujkić / Language(s): Bosnian,Croatian,Serbian / Issue: 12/2013

Imenovanje i razrješenje članova upravnih odbora javnih ustanova u Federaciji BiH regulisano je zakonskim i podzakonskim propisima na entitetskom, kantonalnom i općinskom nivou. Odredbama Zakona o ministarskim, vladinim i drugim imenovanjima Federacije Bosne i Hercegovine, koji se primjenjuje na svim nivoima vlasti u F BiH, uključujući kantone, općine i gradove, utvrđen je otvoreni postupak izbora kojim se vrši konačno imenovanje i ponovno imenovanje na pozicije u reguliranim organima.

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(Ne)zaštićenost trećih osoba ugovorima o osiguranju od autoodgovornosti u Bosni i Hercegovini

Author(s): Alma Smailhodžić / Language(s): Bosnian / Issue: 20/2017

Under the Motor Vehicle Damage Liability Insurance Contract, a legal relationship is established between the insurer and the insured. However, if in the traffic accident the damage is caused to a third person, that person is entitled to compensation directly to the insurer of the motor vehicle liability insurance contract between the insurer and the owner of the vehicle engine, but not according to the basis of this contract, but according to the basis of the law itself. For this this kind of insurance we call extracontractual or legal insurance. The circle of third persons, the people who have the right to compensation by motor vehicle use in the movement, does not have the same magnitude in all countries. There are many factors that influence the width of the circle of third persons (the level of economic and civilizational development, the material possibility of certain countries, etc.). The development of insurance law up to now shows the trend of expanding the protection of the damaged, as well as an ever smaller number of people and victims of traffic accidents who are left out of the law for compensation.

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(Nejen) tržní řády v ústavní pasti

Author(s): Stanislav Kadečka / Language(s): Czech / Issue: 1/2001

The article points to the important (for law theory as well as praxis) problem of position of substatutory law in relation to the constitutionally guaranteed free­dom of business activities. The author mentions espe­cially the article 18 of the Trade Act and the article 26 of the Charter of Fundamental Rights and Freedoms. The article also describes as though new law situation - the article 10 of the Municipal Act, and the article 96 of the Protection of Public Health Act. The text is then concerned with some (in their conclusions) different findings of the Czech Constitutional Court and their consequences. Finally author of the text summa­rises and concludes that there is necessity of change of judicature of the Constitutional Court and presents two possible ways of this change.

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(NON)DISCRIMINATION WHEN CONCLUDING THE ADOPTION BY SETTING FORTH A MAXIMUM AGE LIMIT FOR THE ADOPTER. ECHR DECISION IN THE SCHWIZGEBEL VS. SWITZERLAND CASE

Author(s): Georgeta-Bianca Spîrchez,Enache Carmen-Beatrice / Language(s): English / Issue: 1/2018

This paper analyzes the solution offered by the ECHR regarding the impossibility to adopt a Swiss citizen based on the adopter's age. A question regarding this solution may occur: is this criterion discriminating or, by contrast, is it beneficial to protect the best interest of the child? In order to determine/develop a series of arguments to establish an answer, it is of utmost importance to discuss along the essay the importance of the adoption, as a civil institution, and also what its pupose is. Furthermore, it is necessary to highlight the manner in which the best interest of the child should be respected in regards to the adoption and to what extent the principle of proportionality is applied or, in other words, is there proportionality between the decision of the Swiss authorities and the respect of the best interest of the child? In order to identify the presence or the absence of discrimination, it is important to define this institution and to analyse what are the potentially discriminating elements in regards to the adoption and to what extent they have occured so far.

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(Zrewidowana) Europejska Karta Społeczna jako międzynarodowy standard chroniący prawa wynikające z systemu zabezpieczenia społecznego w okresie przemian ekonomiczno-społecznych

Author(s): Marcin Wujczyk / Language(s): Polish / Issue: 3/2018

The article analyzes the rights in the area of social security resulting from the European Social Charter and the Revised European Social Charter. The study presents both standards resulting directly from the provisions of the above-mentioned treaties as well as requirements interpreted by the European Committee of Social Rights. Particular attention was paid to the guarantees of the social security system and protection of entitled persons in the event of the necessity to limit the level of granted benefits, especially in the event of an economic crisis.

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(НЕ)ДИСКРИМИНАТОРНИ ТРЕТМАН ВАНБРАЧНИХ ПАРТНЕРА У ОСТВАРИВАЊУ ПРАВА НА ПОРОДИЧНУ ПЕНЗИЈУ

Author(s): Ivana Grubešić,Dženana Radončić / Language(s): Serbian / Issue: 86/2020

This paper has been inspired by a recent decision of the Constitutional Court of Bosnia and Herzegovina, which establishes the existence of unequal treatment of marital and cohabitation partners regarding the exercise of the right to survivor´s pension, as one of the key property rights deriving from the family union. Such a progressive interpretation comes as a follow-up to an earlier decision of the same Court finding discrimination of cohabitation partners in comparison to spouses with respect to inheritance rights. The authors of the paper agree with the conclusions of the Constitutional Court of B&H in both of these decisions, but partly for other reasons, which is why they consider it important to supplement the argumentation and reasoning used in said decisions. Therefore, the paper first outlines the trends in the case law of the European Court of Human Rights, followed by an analysis of relevant legislation in B&H, in order to examine, within the discrimination test, whether the B&H legislature has adequately used the discretionary space to create and implement public social security policies and whether, based on the entire legal regime set up for the cohabitation union, it created legitimate (justifiable) expectations for the extramarital partners (bona fide) that their de facto extramarital cohabitation is equalized in property effects with the marital community.

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(Не)могућност располагања правом на законско издржавање

Author(s): Olga Jović S. / Language(s): Serbian / Publication Year: 0

It is well known that maintenance has special characteristics that mark its legal nature and which are clearly distinct from other forms of support in civil law. Among the many specific characteristics of maintenance, in this paper author paid attention to maintenance as a personal property right, and as a legal institution that is regulated by the imperative norms. The basic characteristics of the maintenance is that, mainly due to its specific personal and property nature it can not be a matter of unrestricted disposal between the creditor and the person with the obligation to support. The personal character of that kind of obligation results in the following: impossibility of transfer, that is, of change of the subjects involved in alimony relation, as well as the impossibility of renouncing the right to receive support. The area of law concerning legal support does not recognize the disposition of parties involved in such matters because the provisions regulating the institution of the right to receive alimony are of an imperative nature and they strictly prescribe that renouncing the right to receive support is to be considered legally void.

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