Резенция за книгата на Ралица Костадинова „Условното осъждане по българското наказателно право“

Author(s): Ralitsa Ilkova / Language(s): Bulgarian Issue: 1/2020

The review is dedicated to the monograph entitled “Suspended Sentence under Bulgarian Criminal Law” by Ralitsa Kostadinova. In the book the author has pointed her scientific research in an academic area, namely that of suspended sentence, which so far has not been subject of a thorough and in-depth scientific analysis in Bulgaria, but at the same time it is of great practical significance in particular with regard to the work of the judicial bodies. The monograph under review undoubtedly contributes to the criminal legal theory.

РЕЗЕРВЕ И ИНТЕРПРЕТАТИВНЕ ИЗЈАВЕ – ПОЈАМ И МОГУЋНОСТ ЊИХОВЕ ПРИМЕНЕ НА СПОРАЗУМ О СТАБИЛИЗАЦИЈИ И ПРИДРУЖИВАЊУ

Author(s): Maja Lukić / Language(s): Serbian Issue: 1/2008

Serbia has recently signed the Stabilization and Association Agreement (SAA) with the European Union. A single clause of this Agreement – Article 135 Paragraph 2, which pertains to Kosovo and Metohia – stirred up the intense discussions, both in terms of policy and legal expertise. Consequently, it seems natural for Serbia to consider the option of making a reservation or an interpretative declaration with respect to that clause. This paper pays much more attention to the reservations than it does to the interpretative declarations, honoring the comparative complexity of the international law rules pertaining to interpretative declarations, and the fact that the rules on reservations form a conceptual basis for the rules on interpretative declarations.

Релевантност међународног суда правде и међународна безбедност

Author(s): Marko Novaković / Language(s): Serbian Issue: 2/2018

Professor Eric A. Posner published in December 2004 an article “The Decline of International Court of Justice”, in which he analyzed decline of a caseload and therefore a trust in the International court of justice (ICJ). He analyzed two possible theories for this decline. On the one side he sees the issue in bias law application by ICJ judges and on the other side he sees ICJ as a victim of conflicting states interests. Following his arguments and analysis, we are going to test these issues in the period 2004- 2017 and explore if there are additional causes of this distrust as well. One may ask how these statistical data are connected to the international security? Although these two things might seem as not very connected, trust in the ICJ, especially if it is put in the line with another analysis that was conducted in this research – judge appointment at the ICJ. Connection, when established as following, is very obvious – ICJ as a principal judicial organ of the UN and the court with importance in the world stage, that surpass this formal title. ICJ has an immensely important role in conducting one of the main UN tasks – keeping the world safe and peaceful place. This role can only be achieved if numbers of cases, potential military conflicts, are brought in front of the ICJ especially those by “great powers”. And one of the main reasons why states are reluctant to do this is lack of transparency and bias approach of the ICJ judges. This appointment procedure is heavily affected by the P5 influence, not only because of the fact that every P5 member has always its citizen in the chamber, but also due to the fact that this practice limits positions for the other countries within regional groups. However, even that this “privilege” might be perceived as an example of inequality and to some point it definitely is, one have to take into consideration the fact that P5 members are contributing to the UN budged with over 40%. Although ICJ has its procedural and material imperfections, it was a long way to its establishment and all actors at the international stage have to carefully consider its role and influence. This especially goes to the main and most important subjects of international law, and the ones that are responsible for the formation of the ICJ but also for its preservation and relevance – states.

Република Српска: двадесет година борбе за опстанак

Author(s): Momčilo Subotić / Language(s): Serbian Issue: 2/2012

In this work author deals with the newest period in political life of Republic of Srpska. At the same time, he considers original provisions of the Dayton treaty, which officials of RS in defense of their entity refer to, as well as “creative” application, i.e. ruthless violation of the “Dayton” by international representatives, with invitation to make “functional” state of Bosnian, which heats up unrealistic aspirations of Bosnians (and partly Croats) to establish a “civil” and “comprehensive” Bosnia and Herzegovina. The author pays special attention to the fact that the RS was created before the Dayton, and that in Dayton her international - legal personality was only confirmed, therefore, the RS is a subject of international law, part of a treaty, which its opponents repeatedly ignored and overlooked. For that reason, text deals with problems between “words” and “spirit” of Dayton, then Butmir negotiation, problem of the third Croatian entity, special connections between RS and Serbia, then phenomenon of Muslim/Bosnian identification with Bosnia and Herzegovina and finally state and perspectives of Republic of Srpska.

Реституције Југословенске војне имовине из Чехословачке после Другог светског рата – Имовина ВТЗ Крагујевац, Вогошћа, Барич и Обилићево

Author(s): Slobodan Selinić / Language(s): Serbian Issue: 1-2/2006

In the international law the restitution means the obligation of former enemy state to return the property which was taken by force which was taken from the territory which that state held under occupation. Czechoslovakia, certainly, was not the enemy state, but a part of the Yugoslav property taken by the Germnans during the war finished in the territory of Czecholsovakia, and therefore, in the relations between Yugoslavia and Czechoslovakia emerged the issue of the restitution of the property. The reason why a part of the teken property finished in Czechoslovakia laid in the fact that the Yugoslav and Czechoslovakian industry cooperated before the war, that Czechoslovakian factories like “Zbrojovka” and “Skoda” delivered machines to the Yugoslav military industry, so that they were relevant to do the dismantling of these machines during the war within the intentions of the Germans to take away the machines from Yugoslavia. Besides, at the territory of Germany after the war, there was a number of machines made in Czechoslovakia which were either taken away from Yugoslavia or produced before the war but on order and probably paid in advance for the Yugoslav factories. In the first case the machines after the war were restituted into Czechoslovakia according to the principle of producer’s origin, and in the second case the Czechoslovakians restituted them stating that they had ownership of them, and these were the reasons for the disputes after the war, since Yugoslavia in both cases claimed the right of ownership over these machines. Due to the fact that before the war MTI Kragujevac cooperated first of all with “Zbrojovka” from Brno, аnd MTI Vogošća with “Skoda” from Plzen, the restitution requests for return of the property of these two institutions were mainly directed to these Czechoslovakian factories. However, all or almost all the Yugoslav requests for return of the property were negatively solved. The Yugoslav authorities did not have enough people to work more eagerly and more systematically on that issue, first of all on the very grounds in Czechoslovakia, so that these issues were solved only by pure correspondence with the Czechoslovakian authorities who answered on all the Yugoslav requests and urges that the demanded goods, first of all machines, were not at the territory of Czechoslovakia, and that the data given by the Yugoslav representatives were incomplete and that the archives of the Czechoslovakian factories were destroyed in war so that it was impossible to check the authenticity of the Yugoslav statements.

Реституцията в практиката на Европейския съд по правата на човека

Author(s): Mariana Karadzhova / Language(s): Bulgarian Issue: 6/2004

The article studies the problem of Eastern European restitution as it has appeared before the European Court of Human Rights in Strasbourg. The main topics examined are: — Is Art.1 of Protocol № 1 to the ECHR applicable to cases of Eastern European restitution? — Restitution and the requirement of “existing possessions” — The development of the Strasbourg case law regarding the “legitimate expectation” in case of restitution claims — Is it mandatory to respect the requirements for property rights protection in case of restitution and why? Despite the initial hesitance of the European Court of Human Rights to deal with restitution cases in Eastern Europe, reality has imposed a certain evolution in its case law. The Court can not avoid taking position on such a fundamental problem related to the property reform in Eastern Europe as restitution. The further development of the European Court of Human Rights case law as well as the coming into force of new protocols to the ECHR will certainly offer additional and concrete opportunities for people claiming restitution in Eastern Europe to see their rights protected.

Реформа в системата за разрешаване на инвестиционни спорове: от ad hoc арбитраж към постоянен инвестиционен съд

Author(s): Tzvetelina Dimitrova / Language(s): Bulgarian Issue: XIV/2016

The newly established competence of the European Union in the field offoreign investment requires substantial reform in the existing Investor-to-State dispute settlement mechanism. The current study aims to clarify the problems that theexisting ISDS mechanisms reveal and to overview the proposal for a new Investment court system as a possible solution.

РЕФОРМА МЕЂУНАРОДНОГ ПРИВАТНОГ ПРАВА У СР НЕМАЧКОЈ - УТИЦАЈ НА ЈУГОСЛОВЕНСКО-НЕМАЧКЕ ПОРОДИЧНО-ПРАВНЕ ОДНОСЕ

Author(s): Miroslav Geč Korošec / Language(s): Serbian Issue: 27/1987

In diesem Aufsaitz erläutert die Autorin zuerst die Zahl der jugoslawischen Gastarbeiter in der Bundesrepublik Deutschland, dainaoh aber die historische Entwicklung des deutschen internationalen Pimvatrechts. Das Haupthema dieser Ausführungen ist aber die Reform desdntematiiooalen Privatrechts in der Bundes-republik Deutschland. Die Autorin erlaubtet zuerst die allgemeinen Regeln des internationalen Privatrechts und danack des internationale Privatrecht der na¬türlichen Personen und der Rechtsgaschäfte, das internationale Familienrecht, internationales Erbracht und internationales Schuldrecht. Im Kapital VIII zeigt die Autorin, wie süch die Reform im Praxis tauf die deutsch-jugoslawischen Fa¬milien ' rechts beziehuogen auswirkt. Man darf aber nicht vergessen, dess auch das neue deutsche Gesetz nur eine Teilreform darstellt. Wichtige Bereiche des internationalen Privatrechts sind vom Reformgesetzgeber bewusst aus geklammert worden, so etwa dais internationale Sachenrecht, des Recht der juristischen Per¬sonen oder das ausservertragliche Schuldrecht.

Рецензия за сборника „Въпросът за справедливостта. Съдените журналисти в България”

Author(s): Maria Neikova / Language(s): Bulgarian Issue: 11/2022

The edited volume 'The Question of Justice. The Prosecuted Journalists in Bulgaria' (University Press 'St. Kliment Ohridski', 2022) with interviews, articles and commentaries, edited by Prof. Snezhana Popova and Assoc. Prof. Zhana Popova, is a valuable contemporary chronicle that fits into the history of Bulgarian media and journalism.

Решаване на дело от Международния съд на ООН при отсъствие на някоя от страните му

Author(s): Aleksander Dragiev / Language(s): Bulgarian Issue: 2/2006

РЕШАВАЊE СПОРОВА ПРЕД СВЕТСКОМ ТРГОВИНСКОМ ОРГАНИЗАЦИЈОМ И ГРАНИЦЕ МЕРОДАВНОГ ПРАВА

Author(s): Uroš Zdravković / Language(s): Serbian Issue: 72/2016

The question of applicable law is of essence in discussing access to justice and legal protection under the WTO dispute settlement system because it determines which disputes are suitable for resolving under the WTO framework. The WTO dispute settlement system is primarily oriented towards protection of rights under the covered agreements. One of the central problem in this discussion is the competence of the WTO judicial bodies (panels and the Appellate Body) to resolve disputes concerning rights and obligations that are not regulated by the covered agreements. According to the rulings of the WTO judicial bodies, they only have jurisdiction to examine covered agreements as the only relevant and applicable law in dispute settlement proceedings. Some scholars support a strict conception of the WTO judicial bodies’ jurisdiction pertaining only to the WTO law. Some other authors suggest a more flexible approach, given that the WTO is neither “a closed legal circuit” nor a self-contained regime. As a branch or a sub-system of Public International Law, the WTO has to interact with other branches or subsystems, such as human rights treaties and international environmental protection agreements. Many scholars and experts insist that the WTO bodies must take into account the “new dimensions of international trade”, like environmental protection and human rights. Hence, the rules of free trade cannot be legally and politically excommunicated from general international law. Nevertheless, this assertion must be taken with caution: it would be the only way for ensuring protection of security and predictability of the multilateral trading system under the WTO. Therefore, it is important to establish clear borderlines and situations in which interaction with extrinsic sources of law is necessary

Решението по делото за електрическата компания на София и България (Белгия срещу България) в практиката на Международния съд на ООН

Author(s): Gergana Gozanska / Language(s): Bulgarian Issue: 1/2019

The judgment of the case concerning the Electricity Company of Sofia and Bulgaria (Belgium v.Bulgaria) of the Permanent Court of International Justice is applicable in the practice of the International Court of Justice in two cases. These cases are the case concerning the Right of Passage over Indian Territory (Portugal v. India) and the case concerning the Certain Property (Liechtenstein v. Germany). This article examines three cases and makes comparison of the grounds for jurisdiction, the preliminary objections in view of the reservation ratione temporis and the judgments.

РИЗИЦИ ЈАВНО ЈАВНО-ПРИВАТНИХ ПАРТНЕРСТАВА: ПОЛАЗНА РАЗМАТРАЊА

Author(s): Predrag Cvetković / Language(s): Serbian Issue: 63/2012

The issue of adequate and balanced risk sharing is crucial to the success of a particular PPP project. The successful PPP project should allocate the risks in accordance with the following general rule: the risk is allocated to the actor that has not only an interest to eliminate or reduce the probability of occurrence of concrete risk and eliminate its effects, but also has available resources (technological, economical, expert knowledge, political support) to respond in the shortest possible time to the occurrence of the particular risk. The allocation of risk must contribute to the fulfillment of interest of various actors of PPP structure: namely, public partner needs positive results as the impetus for own political interests, based on the success in delivering the public services; on the other hand, private partner seeks recovery of investment and realization of appropriate margin of profit. The involvement of broader circle of participants in PPP project and higher level of rights, obligations and responsibilities diversification has positive effect on the risks allocation. The risk allocation in PPP projects is also determined by the roles taken by public partner (“grantor”; “exclusive buyer”) as well the role of private partner (“sponsors”, “creditor”, building contractor”, “manager”).

РИМ II УРЕДБА (РЕГУЛАТИВА) ЕВРОПСКЕ УНИЈЕ: МЕРОДАВНО ПРАВО ЗА ВАНУГОВОРНЕ ОБАВЕЗЕ

Author(s): Uglješa Grušić / Language(s): Serbian Issue: 1/2009

As of 11 January 2009, courts of the Member States of the European Union are required to apply the provisions of the Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). This Regulation contains unified rules for determining the applicable law for non-contractual obligations arising out of delict, unjust enrichment, negotiorum gestio and culpa in contrahendo. Together with the Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and the Rome I Regulation on the law applicable to contractual obligations, it codifies to a large extent conflict of laws rules for obligations in European Union. This article examines the provisions of the Rome II Regulation, indicates some issues that may prove to be problematic in its application, and concludes by recommending its provisions as a model for future drafting of the relevant rules in Serbian Private International Law.

РИМСКАТА ИДЕЯ ЗА „ПЕРПЕТИУРАНЕ НА ЗАДЪЛЖЕНИЕТО“ И ПРОБЛЕМЪТ С ДОГОВОРНАТА ОТГОВОРНОСТ

Author(s): Riccardo Cardilli / Language(s): Bulgarian Issue: 1/2021

The perpetuatio obligationis is the result, in a terminology proper to the jurisprudence subsequent to the veteres, of a creative interpretation of the late-republican jurisprudence which will assume in the subsequent tradition the relevant qualification of constitution veteris. The terminological formulation may also have had a modernization in the writing of the Severian jurist Paul, but without altering its dogmatic meaning. It is an up-to-date expression of what was technically the effect of the constitutio veterum on the level of the claimant in the event of perishing of the thing object of the rem dare oportere for a cause attributable to the debtor. The veteres believed, that the persistence of actionability with condictio of the rem dare oportere was based precisely on the idea that rem dare oportere was perpetuated even though the due thing perished.

РИМСКИТЕ ФЛОТИ. МЕЖДУ ИНТЕГРАЦИЯТА И ГРАЖДАНСТВОТО

Author(s): Maria Casola / Language(s): Bulgarian Issue: 2/2021

In the study I Intend to examine some profiles relating to the organization of military fleets in the ancient Mediterranean and to integration policies in the military field, to their recruitment which have their roots in antiquity and, significantly, in the experience of Roman law.

РИМСКОПРАВНАТА ТРАДИЦИЯ В ШВЕЙЦАРСКОТО ЗАКОНОДАТЕЛСТВО

Author(s): Jean-Philippe Dunand / Language(s): Bulgarian Issue: 1/2016

A true State since 1848, Switzerland was a political creation of the end of the Middle Ages. Situated at the centre of Europe, the country has benefited from a multitude of cultural influences that have contributed to the evolution of the law. This contribution puts forward a synthesis of the experience of Roman private law in Switzerland. The text concentrates on four significant aspects: the reception of Roman law (thirteenth – seventeenth centuries); legal science (sixteenth – nineteenth centuries); the cantonal and federal codifications (nineteenth – twentieth centuries) and finally, Roman law today. The contribution concludes that it is not enough to simply speak of the experience of Roman law; rather it is necessary to speak of a variety of diverse experiences. Whether it be medieval Roman law, humanist Roman law, pandectist Roman law or codified Roman law, it is never the same Roman law.

РИМСКОТО ПРАВО КАТО ИЗТОЧНИК НА ТЕОРЕТИЧНО ВДЪХНОВЕНИЕ: СЛУЧАЯТ НА СКАНДИНАВСКИЯ ПРАВЕН РЕАЛИЗЪМ

Author(s): Simeon Efimov Groysman / Language(s): Bulgarian Issue: 2/2020

The article analyzes the large-scale theoretical significance of Axel Hägerström's idea of the magical origin of a number of the institutes of the most ancient Roman law. In the theoretical thought of Scandinavian legal realism, and especially of Hagerstrom's student Karl Olivecrona, the idea develops that legal thinking bears a number of features of primitive magical thinking. Scandinavian realists oppose the alternative of a fact-oriented legal method, which considers legal norms as mere probabilistic conditional statements for how a hypothetical judge would decide in a hypothetical situation. The proposed analysis develops the idea of analogies between magical and legal thinking, considering the relationships between magic and science and magic and religion. The term "magic" in the authors under consideration is shown in its role of an argumentative tool rather than a strictly anthropological concept. The scientific endeavor of Scandinavian legal realists is explained as a radical opposition to the older legal theory. The idea of magic served Olivecronа ultimately to emphasize the importance of legal psychology for legal thinking and to present legal force as the belief in the binding nature of a rule.

Розуміння терміна «сімейне життя» в контексті ст. 8 Конвенції про захист прав людини і основоположних свобод

Author(s): Zhanna Chevychalova / Language(s): Ukrainian Issue: 08/2015

Since the extension of jurisdiction of the European Court of Human Rights toUkraine, when European Convention on Human Rights and Fundamental Freedomscame into force (11 September 1997; ratified on July 17 of the same year), there areexamples of estimation of norms of Ukrainian legislation in General, and Art. 8,which is the subject of our consideration, from the point of compliance with theprovisions of the Convention. Unfortunately, the annual practice of the StrasbourgCourt demonstrates the discrepancy of the legislation of Ukraine with the provisionson protection of rights guaranteed by the Convention itself and the Protocols thereto.Ukraine is consistently among the top five on amount of applications on theprotection of violated rights to the European Court of Human Rights, taking into theaccountand the fact that object to the appeal against Ukraine could be violationscommitted since 11 September 1997. On the contrary, there is consistently lowpercentage of enforcement of the European Court Judgments on Ukraine, particularlyin damages. Our work is in grater extent devoted to understanding of the concept of«family life» within the meaning of Art. 8 of the Convention and its relationship withthe concept of «private life».Current understanding of the concept of «family life» by the Conventionpassed a certain evolutionary way. Not accidentally Art. 8 of the Convention apliesthe term «family» using a multifaceted construction «family life», and of coursr,considering understanding of «family» in face legal orders. Understanding of theconcept of «family life» constantly goes through expansion due to the influence ofdifferent social processes, from migration to advanced medical technologyies, thatillustrates the application of the principle of effective and dynamic interpretation oflaw the Strasbourg court. This principle stipulates the evolutionary interpretation ofConvention norms, transforming Convention into a living instrument that responds tothe changing of present situation and allows to constantly expand guaranteesprovided by this document.In the examples considered in the paper, we note that the interpretation of theterm «family life» primarily carried out by the Court from giving preference toprotecting the interests of children, even if not their rights are violated in fact.

Роль рішень міжнародних судів у системі джерел міжнародного фінансового права

Author(s): Oksana Vaitsekhovska,О. Chepel / Language(s): Ukrainian Issue: 155/2021

The paper deals with the analysis of the legal nature of international courts’ decisions and their impact on the international financial legal order. The author claims that decisions of international courts,creating no new international legal financial norms, act as an additional source of international finan-cial law, having no autonomy, and in combination with other sources of international law, performs the following functions: 1) regulatory-prescriptive (via opinio juris of existing traditions in interstate practice in the financial sphere transforming them into international customary law); 2) regulatory-affirming (confirming the legal nature of the international agreement between the subjects of international financial legal relations which caused a disputable situation).The judicial practice on financial issues and specificity of functioning of such judicial institutions as the Permanent Court of International Justice, the International Court of Justice, the CIS Economic Court, the Court of Justice of the European Union, the Court of Justice of the Central African Economic and Monetary Community, etc. are examined. The features of the provisions of international agreements on financial issues regarding the procedure for resolving disputes between the parties of the agreement about its implementation are analyzed.The paper explores particularities of the origin and development of the idea of the creation of an international financial court. Amid modern processes of the rapid growth of the amount of cross-border financial flows in the context of globalization, which is the consequence of the implementation of numerous international financial agreements, the idea of creation of an international financial court, which was first suggested in 1935, due to the complexity of legal nature of interstate financial disputes, is an objective necessity.The following features intrinsic to decisions of international courts (including decisions on financial issues) have been identified: 1) locality (binding only on the parties involved in the case, and only in the current case); 2) situatedness and unprompted appearance; 3) impartiality (due to the judges’ lack of political interest); 4) authority (international courts include generally recognized experts in international law).