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Armed guards on vessels : insurance and liability

Author(s): Mišo Mudrić / Language(s): English Issue: 165/2011

The Paper examines the insurance and liability issues resulting from the use of armed guards on board vessels. The study begins with an overview of the available data on key economic figures representing the projected overall annual costs of modern piracy. The focus is then shifted to the issue of public versus private security, where possible dangers of private-based security options are discussed in general. After explaining why the Somalia region deserves a closer attention when compared to other pirate-infested waters, a brief summary of the international effort to combat piracy threat is presented, followed by a structured overview of the use of private maritime security options in the maritime sector in general. One security option is the use of armed guards on board vessels. This option is explored both from the political (the acceptance by stakeholders) and legal standpoint (legal issues arising from the use of armed guards). An important remedy for the shipping companies/operators threatened by the piracy hazard is the existence of affordable and effective (specialized) marine insurance. A study of available piracy insurance policies is presented, followed by an analysis of case law and other legal issues arising from piracy attacks, which could prove important when considering the legal implications of armed guards employment. Finally, a simplified economic analysis of available security options is presented, followed by the final assessment of benefits derived from the use of armed guards.

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THE LEGAL RULE LIBERUM CORPUS NULLAM RECIPIT AESTIMATIONEM IN THE EUROPEAN LEGAL HISTORY

Author(s): Milena Polojac / Language(s): English Issue: 2/2018

The legal rule liberum corpus nullam recipit aestimationem – the body of a free man does not admit of valuation (in monetary terms), is referred to in the Digest of Justinian several times (D. 9.1.3, D. 9.3.7). It is formulated by the famous Roman lawyer Gaius. It emerged as a response to the question of whether the body of a free man may be the subject of a claim for damages. The body of a free man is contrasted to the body of slaves whose value may certainly be subject to monetary valuation. This rule played an important role in the formation of provisions about civil liability for damage even after ancient slavery had ceased to exist. Many legal thinkers have been referring to it; the glossators, moral theologians, natural lawyers, the German usus modernus Pandectarum. The influence of this rule is evident also in the contemporary civil legislations.

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HUMANITAS IN EMPEROR UXORIUS’ LEGISLATION

Author(s): Cristina Pop / Language(s): English Issue: 2/2018

Justinian’s administrative work and his religious efforts have been decisive for the development of human history. For Justinian, the notion of a Roman Empire was confused with that of Christian oikumene, and the victory of faith was not any less important to him than the restoration of Roman power and unity. His introduction of humanitas in his legislative work and the consequences that this entails was supported by the emperor’s religious convictions. From a legal standpoint, the beneficiaries of the term humanitas in Justinian’s time were women, children, slaves, the ill, the illiterate. Justinian's legal texts promoted, from a humanitas point of view, the woman’s legal position. Under the influence of the Christian Church, the legislation of the Byzantine Empire concerning marriage became increasingly severe. His legislation was strict and dominated the entire eastern Middle Age by aggravating the conditions required for two Roman citizens to divorce, disallowing divorce through mutual agreement, excepting situations in which both spouses wished to live in chastity. Not even the legal succession field was omitted from the stock of legal innovations brought about by Justinian. In the same time, as Justinian’s wife, Theodora must have influenced Justinian’s legislation with regards to the female status.

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LA DEFINIZIONE DELLA LIBERTÀ UMANA DI FIORENTINO. IUS COME PARTE DELLA LIBERTAS

Author(s): Petruţ-George Bran / Language(s): Italian Issue: 2/2018

The definition of freedom as given by the Roman jurist Florentinus is influenced by natural law (ius naturale). This definition refers to human freedom. Along time, the concept of ius in the definition of freedom was translated / interpreted in various ways. The law (ius) as a limit of human will is included in the notion of Roman freedom (libertas).

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“NEZAKONITA” DJECA PRED ZAKONOM – DOKAZIVANJE OČINSTVA U BOSNI I HERCEGOVINI NA RAZMEĐU 19. I 20. STOLJEĆA

Author(s): Hana Younis / Language(s): Bosnian Issue: 47/2018

This paper, based on the archival material, indicates the phenomenon of proving paternity in Bosnia and Herzegovina between the 19th and 20th century. Proving paternity is a topic which points out numerous changes which brought the Austro-Hungarian governance. How the lawsuits looked like and what were the rights of the child and the mother are questions which are especially responded to in this paper. The specific examples show the practice, problems, rights and wishes which followed these processes. How much were the “illegitimate” children a part of everyday life is illustrated through available numbers, which also show the difference in presence of the “illegitimate” children in bigger and in smaller cities.

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KONKUBINAT U BOSNI I HERCEGOVINI NA PRIJELOMU 19. I 20. STOLJEĆA

Author(s): Amila Kasumović / Language(s): Bosnian Issue: 47/2018

This paper deals with, till now unexplored, fragments of marital everyday life of ordinary people, as well as synchronized cooperation of Provincial Government and religious communities in Bosnia and Herzegovina at the end of the 19th and the beginning of the 20th century.

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Imenovanje članova državne komisije za kontrolu postupaka javne nabave: vladavina prava ili vladavina birokracije?

Author(s): Ivan Šprajc / Language(s): Croatian Issue: 34/2018

The paper examines the regulation of appointment of the members of the State Commission for Supervision of Public Procurement Procedure according to the Act on the State Commission for Supervision of Public Procurement Procedure. The author criticises existing legal norms from the perspective of relevant constitutional and international agreements' norms. The lack of appropriate procedures indicates the potential violations of rights of the interested citizens as well as it points to excessive discretion of the authorities. Finally, it is recommended to enact the necessary procedures.

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Непълен работен ден и работа на повикване

Author(s): Nenko Salchev / Language(s): Bulgarian Issue: 3/2018

This article examines the extent and nature of part-time work and how it has changed over time. It examines factors influencing decisions of enterprises and individuals to offer and accept part-time work. Part-time work has become an important form of employment, which has grown continuously since the 1970s to the present. Its benefits are related to the prerequisites for reconciliation of work-life balance and the possibility of including in the labour market some groups of the society who are unable to work full-time. Part-time work allows employers to reduce their expenses for wages and gives them flexibility in organizing the work in enterprise. Its widespread use in certain cases entails risks of reducing the general level of worker’s protection, deteriorating working conditions, discrimination and even marginalizing part of the employees. Thus the possible continuation of the trend towards more flexible working time patterns should be pursued through a holistic approach combining certain aspects of employment, social security and tax legislation. In this way, the rights of employees will be guaranteed and expanded and also the negative effect of reducing the protection of workers and the transfer of economic risks to them will be limited. Special attention is paid to “on-call” and “zero-hours” labour contracts, in which there is no contractual minimum length of working time. Indicated are the negative impacts on the employee’s interests in the use of these types of labour contracts and how they transfer the economic risks from the employer to the employees. It is clearly stated why these types of labour contracts are not eligible under Bulgarian labour legislation and how their possible regulation could lead to the violation of the workers’ subjective rights.In conclusion, it is assert that in the Bulgarian system of labourrelations, part-time work has the necessary balance to protect theinterests of the parties. Employers in Bulgaria have the opportunity to take advantage of various forms of work organization in the enterprise, with only one of them being part-time work. The use of parttimework requires good planning of work processes and knowledge ofthe nature of business activity in order to ensure maximum efficiency of work and to reduce labour costs, which is the essence of good business management.

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The Legal Regulation of Hate Speech: The International and European Frameworks

Author(s): Natalie Alkiviadou / Language(s): English Issue: 04/2018

This paper looks at the tools available on an international and European level in relation to the legal regulation of hate speech. More particularly, it considers the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination along with related case-law of the respective monitoring committees. It looks at the European Convention on Human Rights and how the European Court of Human Rights interprets the limits of free speech when confronted with cases of hate speech. It also looks at the Framework Decision on Racism and Xenophobia of the European Union and the Additional Protocol to the Cybercrime Convention of the Council of Europe. Through the analysis it demonstrates that there is no common approach amongst international and European institutions on what hate speech is and the threshold which needs to be met for legal regulation to be permissible. It also demonstrates that the tools available focus only on some types of hate speech.

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Wpływ religii rzymskiej na kształtowanie się prawa spadkowego wczesnej republiki

Author(s): Karol Chyłka / Language(s): Polish Issue: 11 (2)/2018

The normative system originating at the beginnings of the Roman monarchy bound the sacral realm and the realm of law together in ways that made it impossible to distinguish between those two orders. It was not until the 5th century BCE, when the rising autonomy of law prompted the question of the impact of Roman beliefs on the formation of legal institutions, especially the law of succession, highly reflective of religious convictions of the Romans in the early Republic. The law at that time, being formed by the college of pontiffs, or priests (pontifical jurisprudence), remained under a strong influence of faith professed by society, at the core of which was domestic worship (sacra privata) practiced in order to provide families and gentes with prosperity. The regulations regarding succession were aimed to maintain its continuity by introducing a universal successor (heres), linking an obligation to continue domestic worship with the patrimony (patrimonium), controlling a universal succession by way of pontiffs on the strength of the calatis comitiis will, and also by enabling the acquisition of an inheritance through usucapion (usucapio pro herede), and, finally, by broadening the scope of people responsible for religious rites to co-heirs (coheredes) and members of the gens (gentiles).

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Franciszka Ksawerego Bohusza uwagi o prawie sądowym w podróżach po Europie poczynione

Author(s): Marian Mikołajczyk / Language(s): Polish Issue: 11 (2)/2018

Franciszek Ksawery Bohusz (1746—1820), Jesuit and diocese priest after the dissolution of the monastery, was a man educated in philosophy, theology, and law. Between 1777—1778 and 1781—1782, he made long journeys abroad, during which he got to know Czechia, Germany, France, England, Austria, Italy, and Switzerland. These were the journeys of an intellectual, typical of the period of Enlightenment. Not only did he admire edifices worthy of interest, visit museums and libraries, but he also tried to gain knowledge of the political regimes, social and economic relations in the visited countries. His observations were diligently noted down in travel journals and finally edited upon his return to the country. A lot of comments concern court law: civil and criminal, particularly procedural law. The traveler was also interested in the administration of punishments. The references to law vary from extensive, comprehensive discussions of whole branches of law to prevailing brief mentions of particularly interesting legal institutions. The author attempts to offer a possible objective view of legal solutions he became familiar with, yet, does not always fully succeed. It is worth noting his commentaries on English law, which are not only exceptionally extensive, but also filled with not always well-justified praise. On the other hand, his evaluations of other legal systems, for instance Swiss, seem to be rather harsh and stereotypical. Nevertheless, Franciszek Ksawery Bohusz’s observations on court law in the visited countries deserve a thorough analysis since they let us assess their accuracy and the degree to which some foreign legal solutions found appreciation in his eyes.

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The Militar Gränitz Rechten: An 18th-Century Legal Reform of the Military Frontier

Author(s): Ivana Funda,Kristina Milković / Language(s): English Issue: 55/2018

This article analyses one of the most important legal documents in the history of the Military Frontier in the 18th century, primarily from the social and legal point of view. The document in question was a medium of centralisation and legal modernisation carried out at the time by the court in Vienna.

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Deklaracija ZAVNOBiH-a o pravima građana Bosne i Hercegovine – Historijski značaj i aktuelnost –

Author(s): Kasim Trnka / Language(s): Bosnian Issue: 37/2007

U svom prilogu autor izlaže sadržaj i ocjenjuje značenje dviju Rezolucija donesenih na dva prva zasjedanja ZAVNOBiH-a, onog u Mrkonjić Gradu 1943. i onog u Sanskom Mostu 1944. godine. On nastoji da ukaže u čemu je historijska važnost i kakav je demokratski i uopće ustavno-pravni sadržaj i politička orijentacija tih dokumenata, kojima je ne samo obnovljena bosanska državnost nego i definiran demokratski sadržaje nove države.

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Corporative governance, медиация и арбитраж в дружественото право

Author(s): Polya Goleva / Language(s): Bulgarian Issue: 2/2018

The focus of Directive 2013/11/EU of 21 May 2013 on alternative dispute resolution of consumer disputes is set on the mediation in disputes, arising from sales and service contracts, in which one of the parties is consumer, but а lot of disputes remain outside the field of the directive, and are ready to be resolved by alternative methods. In theory mediation is not allowed in tax–, administrative–, family–, and labour – and social disputes. This article brings up the question whether and to what extent mediation could contribute to the creation of best practices for corporate governance of the public limited liability companies and whether it can be used to resolve disputes in company law. Mediation is examined as a means to optimize the negotiations between two parties and as an alternative to the existing tools for resolving conflicts. It can be useful in resolving conflicts, which arise in the relationships between persons who take part in the management of a company and which are the result of the tension between different groups of interests, in herent to the character of the business activity. The results of mediation go beyond the boundaries of the decision in the given case. Whereas the decision must be good for both sides, the resolution of the specific conflict improves the relations between the persons involved. This also has a positive influence on resolving the forthcoming conflicts and enhances corporate governance practices. That’s why in this paper there is an attempt to reveal the application of mediation in resolving disputes related to challenging the decisions of the general meeting of shareholders and disputes concerning the right to information. Both types of disputes refer to the control over the legality of the decisions of general meetings of shareholders. Mediation cannot be bypassed through judicial claims as the parties are always invited by the court to refer to conciliation and to reach an amicable solution.

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Относно начина за изчисляване на обезщетението по чл. 225, ал.3 от Кодекса на труда

Author(s): Ivaylo Ivanov Staykov / Language(s): Bulgarian Issue: 1/2013

This legal analysis presents an opinion regarding interpretative case No 2/2013 of the General Assembly of the Civil Colleges of the Supreme Court of Cassation whose subject-matter provides an answer to the substantive issue about the calculation method to be used in order to define the compensation under article 225 (3) of the Labour Code. The said legal provision regulates the right of compensation in cases of illegal non admission to working place following the reestablishment of illegally terminated employment. The case-law of the Supreme Court of Cassation is not uniform which has necessitated the interpretative proceedings. In the article there is doctrinal interpretation of the legal provision of article 225 (3) of the Labour Code with regard to article 228 of the Labour Code. On that basis the answer to the substantive issue which is the subject-matter of the interpretative case is as follows: The amount of the compensation under article 225 (3) of the Labour Code is defined on the basis of the most recent remuneration in a full employment month, which the worker has received before the illegal termination of his/her employment. This amount is not dependent on any later raise of the amount of the minimal salary in the period of illegal non admission to work. In this opinion there is also criticism of the arguments in support of the other two views submitted in the course of the interpretative proceedings.

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O VIZIUNE GLOBALĂ ASUPRA SITUAȚIEI PATRIMONIALE A SOȚULUI SUPRAVIEȚUITOR ÎN DREPTUL ROMAN

Author(s): Alina-Emilia Ciortea / Language(s): Romanian Issue: 1/2019

We conducted an analysis of the succession rights of surviving spouse the succession rights of surviving spouse in Ancient Roman Law, Pretorian Law and Imperial Roman Law. Thus, we have done research starting from the Law of Twelve Tables, dating from Ancient Roman Law and we have come across the years until Iustinian’s Codification, in the 6th century BC. The focus is mainly on the historical and sociological context in which the surviving spouse had a usufruct over the decedent’s share which was generated by the transmission of the estate of the deceased and the termination of the matrimonial regime. Concerning every relevant historical period, we have studied the mandatory conditions that needed to be fulfilled in order to provide a legal usufruct to the surviving spouse. However, to enhance the fluency of the study, we have made some remarks related to the rights of the surviving spouse and other heirs, in general.

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КЛАСИЦИЗЪМ И НОВАТОРСТВО В ЗАКОНОДАТЕЛСТВОТО НА ИМПЕРАТОРИТЕ ДИОКЛЕЦИАН И КОНСТАНТИН I

Author(s): Methody Shushkov / Language(s): Bulgarian Issue: 3/2018

In the present work there is compared the imperial constitutions of Diocletian and Constantine I, both in terms of their consistency with the opinions of the classical Roman lawyers and at the level of the legislative technique of their imperial chancelleries, and an explanation of the reasons for the decline of the legislative technique during the reign of Constantine I.

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ПРАВОТО НА НАСЛЕДЯВАНЕ – РИМСКОПРАВНИ ОСНОВИ

Author(s): Ventsislav L. Petrov / Language(s): Bulgarian Issue: 3/2018

In the article are researched the roots of the right of inheritance, as a right to accept or to renounce the inheritance, in the Roman private law. An overview over the acquirement of the inheritance in the different periods of the development of the Roman law is made. The author noticed the status of the different groups of heirs in every one of the periods. A conclusion is made that one part of the heirs received a right, which is the same like the right of in-heritance in the contemporary Succession law.

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ЗА НЯКОИ ВЪПРОСИ НА ДЕЕСПОСОБНОСТТА

Author(s): Tihomir Rachev / Language(s): Bulgarian Issue: 3/2018

The issue of a future amendment of Persons and Family act has not been resolved from 2014 until nowadays. In the beginning of the motives of the project for Persons and measures of support act is indicated that changes in the institute of legal capacity are necessary. This institute is of fundamental importance to the legal system and its modification must be made taking into account a number of peculiarities. A starting point in the debate about future changes may be Roman private law. The complex structure of this institute in Ancient Rome can be a major source of ideas for the reform of the modern institute. For this reason the report aims at analyzing the possibilities for changing the age at which maturity occurs in the light of Roman private law.

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ИСТОРИЯТА НА НЕНАИМЕНОВАНИТЕ ДОГОВОРИ И НЕЗАПОЧНАТИТЕ ДЕБАТИ ЗА ТЯХ В СЪВРЕМЕННОТО НИ ПРАВО

Author(s): Dimitar Stoimenov / Language(s): Bulgarian Issue: 3/2018

The article deals briefly with the historical development of the innominate contracts, from mere agreements not fitting into any of the classical categories of the Roman contracts – the formal, real and consensual contracts to a bunch of diverse pacts which were actionable and had a binding character for the parties who concluded them. After the terminological clarifications introduced by the glossators and under the influence of the cannon lawyers, the commercial practices and the school of the natural lawyers there is no further doubt that innominate contracts have the same binding effect between the parties as all typical contracts, e.g. the sale, the lease and the mandate. The principle “pacta sunt servanda” becomes the major concept behind the conclusion of a contract in the European codifications of the XIX century. The next chapter of the article makes an overview of the regime of the innominate contracts in Bulgarian law after the Bulgarian Deliberation until present by rendering the Bulgarian readers a possible answer how to find the rules applicable to the innominate contracts.

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