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СРПСКИ ГРАЂАНСКИ ЗАКОНИК И КВАЗИДЕЛИКТИ

Author(s): Milena Polojac / Language(s): Serbian Issue: 4 (2)/2024

Although quasi-delict is not a legal category in the Serbian civil code of 1844, articles812-814 show the reception of Roman law. Three Roman quasi-delicts were received into Serbian modern codification (furtum vel damnum in nave aut in caupona aut in stabulo, deiectum veleffusum, positum vel suspensum). The same is true for ABGB of 1811 which served as a model for Serbian codification. Roman law was the dominant factor in determining the shape of the rules. The rules can be fully understood regarding their form and substance only if there is an inquiry into their cultural history.

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Wpływ inflacji na wysokość obciążenia podatkiem dochodowym od osób fizycznych

Author(s): Marcin Burzec / Language(s): Polish Issue: 51 (5)/2024

In the construction of the personal income tax, it is important that, in addition to the proper shaping of its individual structural elements, the legislator also ensures that they are adequately protected against inflation. The lack of such regulations leads to a disproportionately high fiscal burden. The above is due to the fact that often the structural elements of the tax are expressed in terms of amounts. Thus, the lack of valorisation mechanisms in income tax leads to an erosion of nominally expressed structural elements. This situation undermines the fairness of the tax. The purpose of this article is to analyse the legal regulations from the point of view of proper protection of taxpayers against erosion of nominally determined structural elements of the Polish personal income tax. In view of the relatively low inflation for more than two decades, this problem was not noticeable. It was not until high inflation in the European Union countries, that attention was once again drawn to this very important issue.

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The impact of inflation on the personal income tax burden

Author(s): Marcin Burzec / Language(s): English Issue: 51 (5)/2024

In the design of personal income tax, it is important that, in addition to the proper formation of its individual design elements, the legislator also takes care of their adequate protection against inflation. The absence of such regulation leads to a disproportionately high fiscal burden. This is due to the fact that often the design elements of the tax are expressed in terms of amounts. Thus, the lack of indexing mechanisms in income tax leads to erosion of nominally expressed design elements. This undermines the fair burden of this tax. The purpose of this article is to analyse how legal regulations safeguard proper protection of taxpayers against erosion of nominally established design elements of the Polish personal income tax. With relatively low inflation for more than two decades, this problem had not been noticeable. Only the high inflation rate in the European Union has once again drawn attention to this very important issue.

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ЗАСТУПАЊЕ У СРПСКОМ ГРАЂАНСКОМ ЗАКОНИКУ

Author(s): Mirjana Miškić / Language(s): Bosnian Issue: 4 (2)/2024

The Serbian Civil Code, following its predecessors and originals, regulates the issue of representation in legal matters. Representation in legal matters is presented in the twenty-second chapter of the Serbian Civil Code, under the title “On Management and Administration”. The Serbian Civil Code, like its Austrian model, regulates representation only as a contract, and not as a general legal institution. More precisely, it is a more advanced concept of indirect representation based on the solutions of Roman law. The representative concludes legal matters in the name and on behalf of the principal, unlike the Roman solution where the representative undertakes legal matters in his own name and on his own behalf. However, the legal relationship between the principal and the representative is not entirely clear. According to the provisions of the introductory, Article 609, representation is carried out by concluding a power of attorney (mandate) agreement. The author will attempt to decipher the legal nature and effect of the power of attorney contract, and possibly determine the existence of elements of direct representation.

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НАЧИН РЕШАВАЊА УСТАВНЕ КРИЗЕ КРОЗ ПРИЗМУ УСТАВНИХ ЗАКОНА КНЕЗА МИХАИЛА

Author(s): Sara Mitic / Language(s): Serbian Issue: 4 (2)/2024

The beginning of the second reign of Prince Mihailo Obrenović was marked by a constitutional issue. Namely, the current constitution, the Constitution from 1838, better known as the Turkish Constitution, became inapplicable due to changed socio-economic circumstances. On the other hand, Serbia was still a dependent country with a changed status after the Paris Peace Treaty and under the auspices of the guarantor powers. In order not to repeat the fate of the Sretenjski Constitution and resolve the constitutional issue outside the borders of the country, Prince Mihailo decided to resolve the constitutional crisis by enacting laws that corresponded to the content of the constitution. Zakon o prestolonasleđu (The Law on the Succession to the Throne), Zakon o Narodnoj skupštini (the Law on the National Assembly), Ustrojenije Državnog sovjeta (the Organization ofthe State Council), Ustrojenije Centralne državne uprave u Knjažestvu Srbiji (the Organization ofthe Central State Administration in the Principality of Serbia), Zakon o narodnoj vojsi (the Law onthe People’s Army), Zakon o činovnicima građanskog reda (the Law on Officials of the Civil Order),Zakon o ustrojstvu obština i obštinski vlasti (the Law on the Organization of Municipalities and Municipal Authorities) represented the laws that are known in historiography as Constitutional Laws

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DIVORTIUM – POVIJESNOPRAVNE KONCEPTUALIZACIJE I EUROPSKA PERSPEKTIVA

Author(s): Ivona Šego-Marić / Language(s): Serbian Issue: 4 (2)/2024

Harmonization of European legal systems, economic and political connection of European countries are defined by processes of European integration. When we talk about the process of European integration, terms such as unification and harmonization are integral parts of that process. Eversince the Roman, European medieval social and feudal system, the institution of divorce (divortium) of marriage has been defined differently. The authors analyze the problem of the unification of the institute of divorce from Roman law, through the influence of the Church and the rules of canon law, modern codification work to European integrations, trying to compare different solutions and conceptualizations, looking back at the contemporary challenges and perspectives that this institute faces.

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UMJETNA INTELIGENCIJA I ZAŠTITA POTROŠAČA – PRIMJER PROCJENE KREDITNE SPOSOBNOSTI

Author(s): Anita Petrović / Language(s): Bosnian Issue: 4 (2)/2024

Artificial intelligence (AI) refers to systems that display intelligent behaviour by analysing their environment and taking actions – with some degree of autonomy – to achieve specific goals. As artificial intelligence rapidly infiltrates into various sectors, including the financial services, regulators are facing the challenge of adequate legal regulation so that subjects could have confidence in technology that has the ability to make autonomous decisions. The umbrella act by which the European Union seeks to regulate the application of artificial intelligence is the Regulation laying down harmonised rules on artificial intelligence (Artificial Intelligence Act). When it comes to business to-consumers transactions the mass use of AI-enabled tools should, among other, be harmonized with consumer legislation. Bearing in mind the Artificial Intelligence Act, the new Directive (EU)2023/2225 on consumer credits includes a provision that grants certain consumer rights in the case of the use of AI tools for creditworthiness assessments. The aim of the article is to analyze the new provisions of Directive (EU) 2023/2225 related to the creditworthiness assessment when it involves the use of automated processing of personal data in order to determine how the new rules affect the legal position of the consumer debtor.

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IZMEĐU TUŽBE I SPORAZUMA ZA RAZVOD BRAKA: PROCESNA NEDOUMICA ILI IZIGRAVANJE ZAKONA

Author(s): Dino Kovačević,Ena Morankić / Language(s): Bosnian Issue: 4 (2)/2024

According to the family law of the Federation of Bosnia and Herzegovina divorce proceedings can be initiated by a divorce complaint or a request for an amicable divorce. However, the initial submission does not necessarily have to exist until the end of the procedure. Namely, the law acknowledges two specific procedural situations, which may be initiated by the autonomy of the will of spouses during the divorce. If one spouse withdraws the request for an amicable divorce, and the other stands by the request, the request will be regarded as a divorce complaint. On the other hand, if one spouse files a divorce complaint, and the other no later than closing the main hearing explicitly states that he/she does not dispute the grounds for the complaint, it will be considered that the spouses filed a request for an amicable divorce. This disposal with the submission results in changing the procedural character of the submission and results in a series of questions that dictate further actions of the court and are the central point of this paper.

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USKLAĐIVANJE ODREĐENIH ASPEKATA PRAVA O NESOLVENTNOSTI

Author(s): Marija Vidić,Miho Baće / Language(s): Bosnian,Croatian Issue: 4 (2)/2024

In order to overcome obstacles to the free movement of capital in the European Union and greater integration of capital markets, a Proposal for a Directive of the European Parliament and of the Council on the alignment of certain aspects of insolvency law has been drafted. The proposal focuses on three key dimensions of insolvency law: the recovery of assets from the insolvent estate, procedural efficiency, and the predictable and fair distribution of recovered value among creditors.

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RECENT CHANGES REGARDING THE LAW APPLICABLE TO MAINTENANCE OBLIGATIONS IN UKRAINE

Author(s): Anna Juryk / Language(s): English Issue: 105/2024

The article concerns recent changes regarding the law applicable to maintenance obligations in Ukraine. The author analyzes the impact of the ratification of the 2007 Hague Protocol on the amendment of the Ukrainian Law on Private International Law of 2005. The accession to the 2007 Hague Protocol by Ukraine opens a new chapter in the scope of law applicable to maintenance in Ukraine. The law applicable to the maintenance obligation from parents in favour of children will no longer be determined by the connecting factor of citizenship but by the habitual residence. The habitual residence is the most appropriate connecting factor to determine the form and the amount of maintenance in a given situation. Determining the law applicable to the maintenance for children will be based on the correcting technique, designed to ensure that the creditor has the possibility of obtaining maintenance. In such a way the child’s interest is protected against the applicable law which does not guarantee such child the maintenance. Ukraine has joined the group of countries whose aim is to harmonize the governing laws applicable to the maintenance on a global scale because the 2007 Hague Protocol is the international agreement developed by the Hague Conference on Private International Law (HCCH).

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REGULATING THE RIGHT TO DISCONNECT AT THE EU LEVEL: CONSIDERATIONS ON THE FUTURE LEGISLATION SCOPE

Author(s): Irmina Miernicka / Language(s): English Issue: 105/2024

The following study concerns the actions taken by the European social partners and the EU institutions in recent years, aiming to regulate the right to disconnect at the EU level. This issue has been on the agenda for several years, yet the European Commission put the legislative process on hold, allowing space for the social partners to negotiate. However, due to the lack of agreement the issue has to be settled by the EU institutions’ court again. A complex analysis of the proposals already in place is necessary, as they will significantly impact the shape of future legislation and further European integration at the social level in times of digital revolution. The aim of this article is to identify key elements of future legislation and critically analyse the already existing proposals. To put the considerations in context, the author describes the circumstances of the adoption of the resolution and explores the nature of the right to disconnect. Consequently, the author concludes that there are key issues that need to be included in future legislation, such as the definition of the right to disconnect (R2D), personal scope, or mutual obligations. However, some interpretative doubts arise within these fields.

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ПРИМЈЕНА РЕСТОРАТИВНЕ ПРАВДЕ ПРЕМА МАЛОЉЕТНИЦИМА У СУКОБУ СА ЗАКОНОМ – ДОБРОБИТИ АЛТЕРНАТИВНИХ МЈЕРА

Author(s): Miomira P. Kostić,Marina M. Simović / Language(s): Serbian Issue: 4 (2)/2024

In the field of juvenile judiciary, there were significant changes in the second half of the 20th century, which are ongoing. These changes were particularly related to the criminal law response of the state to the delinquency of juveniles by combining two models, the “protective” and the “fairness model”. The application of diversionary models and alternative sanctions has been established in international documents, which is accepted at the national level in some countries. Thus, in modern systems of juvenile judiciary, the essence of responding to juvenile delinquency is based on encouraging minors to change their behavior, on developing a sense of personal responsibility for their actions and their impact on others, including in certain cases the victim/damaged person in the process of implementing the measure, on constructive resolution within the community, avoiding the involvement of the formal court system and avoiding punishment, whenever possible.

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КРИВИЧНА ДЈЕЛА У ВЕЗИ СА “ПЛАЋЕНИЦИМА” – МЕЂУНАРОДНИ СТАНДАРДИ И ПРАВО БОСНЕ И ХЕРЦЕГОВИНЕ

Author(s): Miodrag N. Simović,Vladimir M. Simović / Language(s): Bosnian Issue: 4 (2)/2024

Mercenaries, also called rich soldiers or „hired gunmen“, are private individuals who join an armed conflict for personal gain. They are not members of any official army, they fight for money or other forms of payment, not for political interests. Beginning in the 20th century, mercenaries were increasingly considered less eligible for protection from the rules of war that apply to non-mercenaries. The Geneva Conventions stipulate that mercenaries are not recognized as legitimate fighters and do not have to be granted the same legal protection as captured members of the armed forces. In practice, whether a person is a mercenary is an issue of each specific case, because financial and political interests can overlap

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ДОПРИНОС ТУЖИЛАЧКЕ ИСТРАГЕ (НЕ) ЕФИКАСНОСТИ КРИВИЧНОГ ПОСТУПКА

Author(s): Ivan Ilić,Dimitrije Andrejić / Language(s): Serbian Issue: 4 (2)/2024

The wave of criminal procedural law reforms brought to the criminal legislation of the Republic of Serbia, specifically the Criminal Procedure Code from 2011, a model of public prosecutorial investigation. Since the introduction of the public prosecutor’s investigation into the criminal procedural legislation, this model of investigation has been under the scrutiny of the professional public. In this regard, the authors of the paper try to explain how the public prosecutor’s investigation, as an accepted model of investigation in the modern criminal procedural law of the Republic of Serbia and criminal procedure in the Republic of Serbia, reflects on the effectiveness of the criminal procedure. Through the analysis of the actions of the public prosecution authorities in all stages of the preliminary and main criminal proceedings, the authors will point out the degree of respect and compliance of the existing legal framework in the Republic of Serbia with the standards of the European Court of Human Rights in the context of the right to a trial within a reasonable time as one of the basic human rights. which are also guaranteed in criminal proceedings

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ИСТОРИЈСКО-ДОГМАТСКИ РАЗВОЈ УЧЕЊА О БИЋУ КРИВИЧНОГ ДЕЛА

Author(s): Ivan Đokić / Language(s): Serbian Issue: 4 (2)/2024

In the paper, the author discusses the historical-dogmatic development of the concept of the actus reus of a criminal offence. While this notion was initially understood only in the sense of the traces and objects of the committed criminal offence, at the turn of the 18th and 19th centuries ,the term “actus reus” began to denote the totality of features that make up the concept of a criminal offence. This term acquired an independent role in the criminal offence system at the beginning of the20th century, when the German theoretician Beling defined it as an element in the general concept of a criminal offence. The concept of actus reus of a criminal offence in that period, in the spirit of the classic approach to the criminal offence system, is understood exclusively as an objective category, devoid of subjective admixtures (which belong to guilt), with elements of a descriptive character. Itis only later that subjective elements are noticed within the framework of unlawfulness, and even of actus reus itself, as well as certain characteristics that cannot be known by sensory perception, but must be evaluated and whose meaning depends on the appropriate legal, social, or moral norm. Despite the fact that in the modern science of criminal law, a different view of the essence of an actus reus dominates, there are still certain disagreements regarding its content, which essentially depends on the basic features and traditions of a certain criminal justice system.

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ПОГЛЕД НА ТЕОРИЈСКЕ ОСНОВЕ НЕПРИЈАТЕЉСКОГ КРИВИЧНОГ ПРАВА

Author(s): Ivana Marković,Miloš Zdravković,Sava D. Vojnović / Language(s): Serbian Issue: 4 (2)/2024

The paper deals with the theoretical foundations of the so-called Enemy Criminal Law; a concept that has been criticized, but whose reflections we see in today´s Criminal Law (for example, in the preventive detention in Germany or in the newly introduced lifetime sentence without the right to be released on parole for certain crimes in Serbia). This approach of the German scholar Günther Jakobs distinguishes the Citizen Criminal Law (Bürgerstrafrecht), with a functioning communication on the relation crime (criminal) – punishment, and Enemy Criminal Law (Feindstrafrecht), where the perpetrator, under certain circumstances, has consciously violated the norm and has been de-personalized as a consequence of this. References on the philosophical roots of this concept have been made with regard to the ideas of contractualism and the works of Rousseau, Fichte, Kant, Hobbes, and others.

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НЕКИ ПРЕКРШАЈНОПРАВНИ АСПЕКТИ КОНТРОЛЕ ОРУЖЈА У СРБИЈИ

Author(s): Branko Leštanin,Željko Nikač / Language(s): Serbian Issue: 4 (2)/2024

Mass murders in Serbia in 2023 caused ‘tectonic’ disturbances in Serbian society. One of the issues that has been raised and is still being resolved is gun control. In the paper, the authors explore only one segment of gun control, namely the misdemeanor law aspect. The research is set in the timeframe from 2018 to 2023 and refers to the territory of the entire country of Serbia. For the purposes of the research, data from the Ministry of Interior of Republice of Serbia and the Misdemeanor Courts in Serbia were used. With the help of the obtained data and the use of methods of content analysis, statistical methods and normative methods, the authors drew certain conclusions. Misdemeanors in tehe area of weapons and ammunition in the observed period recorded an increase in nominal numbers and by the misdemeanors’ rate. Cold weapons are the item that is found in most cases, while firearms are in second place. However, some questions remained open, such as how to reconcile certain opposites, such as the right to personal security, on the one hand, and the maintenance of public safety and order in society, on the other hand? The authors believe that in the area of gun control, prevention should be implemented by public authorities, especially the police.

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REHABILITACIJA U REPUBLICI SRBIJI

Author(s): Ljubiša Zdravković,Srđan Aleksić / Language(s): Serbian Issue: 4 (2)/2024

Rehabilitation consists in abolishing the legal consequences of a conviction and erasing the conviction so that the convicted person is considered unconvicted. With the onset of rehabilitation, the legal consequences of the conviction cease to apply and the convicted person acquires all the rights that other citizens have. His crime is forgotten, and his name is erased from the criminal record. The official documents do not mention that he was convicted. This is how a fiction is created about the innocence of a convicted person with the aim of equalizing him with other members of society. This means that the “model of full rehabilitation” is accepted in the criminal legislation of the Republic of Serbia, which also provides that the granting of rehabilitation to a certain person does not affect the rights of third parties based on the conviction.

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COMPANIES AS APPLICANTS BEFORE THE ECtHR: ANALYSIS OF JUDGMENTS OF THE ECtHR AGAINST THE COUNTRIES OF THE WESTERN BALKANS REGARDING THE VIOLATION OF ARTICLE 1 PROTOCOL 1

Author(s): Biljana Petrevska,Katerina Zhateva / Language(s): English Issue: 4 (2)/2024

This paper focuses on the judgments of the European Court of Human Rights (ECtHR, the Court) concerning countries in the Western Balkans region, where companies have been the applicants and where the ECtHR found violations of Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR, the Convention). Considering that in recent years there has been a noticeable increase in cases involving companies as applicants before the ECtHR, it is of particular importance to examine this trend. Moreover, due to the fact that companies appearing before the ECtHR usually complain of violation of the right to property, which is a basic human right, and its violation can have serious implications on the business climate in the countries of the Western Balkans. Analyzing the specific judgments of the ECtHR will provide significant insights into the effectiveness of the legal protection of the property rights of companies in the region. In this context, the analysis of the specific judgments of the ECtHR aims to show the most frequent and repeated violations of the right to protection of property of the companies operating in the region. By examining the Court’s reasoning, policymakers and stakeholders can identify areas where legal frameworks and practices need improvement, ultimately helping to enhance the investment climate and promote business development in the Western Balkans

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ЗНАЧАЈ МЕЂУНАРОДНИХ АДМИНИСТРАТИВНИХ ТРИБУНАЛА ЗА ЗАШТИТУ ПРАВА И СТАТУСА СЛУЖБЕНИКА МЕЂУНАРОДНИХ ОРГАНИЗАЦИЈА

Author(s): Duško Glodić / Language(s): Bosnian Issue: 4 (2)/2024

The paper examines the importance of international administrative tribunals, as specific judicial bodies of international organizations, for the enforcement of the rights of officials/international civil servants of international organizations. In this regard, the article firstly starts examining this topic from the concept of international administrative law, as it has been defined in the practice of international administrative tribunals, as a set of rules that regulate the rights, obligations and status of international officials and which is subject to autonomous regulation by international organizations. Then, the paper shows the legal nature and position of international administrative tribunals within the institutional framework of international organizations, that are usually created as subsidiary or auxiliary bodies, the ways of their establishment, as well as their typical competences. In this sense, various modalities of enabling judicial protection of the rights of international officials are being considered - either by establishing their own tribunal or by recognizing the jurisdiction of the administrative tribunal of another international organization. Finally, the paper points to the influence that international administrative tribunals had on the constitution of international administrative law and enabling its effective application. The paper concludes that, although international administrative law is special and specific for each individual international organization, there is nevertheless a similarity between certain institutes and principles applied by various international administrative tribunals, whereby their existence, as a mechanism of judicial protection of international officials, represents an accepted standard within the law of international organizations.

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