ТРАНСПОЗИЦИЈА СТРАНИХ СТВАРНИХ ПРАВА НА ПОКРЕТНИМ СТВАРИМА ПРЕМА НАЦРТУ ЗАКОНА О МЕЂУНАРОДНОМ ПРИВАТНОМ ПРАВУ
TRANSPOSITION OF FOREIGN RIGHTS IN REM ACCORDING TO THE DRAFT CODE OF PRIVATE INTERNATIONAL LAW OF REPUBLIC OF SERBIA

Summary/Abstract: Transposition in Private International Law enables transformation of unknown foreign right in rem over movables imported in Serbia into the closest domestic equivalent. Having in mind that the Serbian Code of Private International Law from 1982 contained no provisions dedicated to this issue, it comes as no surprise that the case law of domestic courts has also remained silent on this topic. However, following comparative doctrinal and practical tendencies, working group of the Serbian Ministry of Justice, entrusted with drafting of the new Code of Private International Law, decided to include transposition of unknown rights in rem within the Art. 118 of the Draft. The focus of the present paper is on careful analysis of these provisions and potential implications and benefits of the transposition of foreign rights within the scope of the Serbian legal system. At the outset, the paper focuses on the problem of changing of the situs of movable property and how this impacts on the actual need of a legal system for transposition of unknown rights in rem acquired abroad. Followed by a detailed discussion of Art. 118 of the Draft Code of Private International Law, the paper turns to inspection of all the legislative nuances of the rules on transposition (general rules on transposition of unknown rights in rem contained in the first two paragraphs of the draft article, as well as special rules on transposition of unknown non-possessory security rights into Serbian registered non-possessory pledge from the last two paragraphs of Art. 118). In the final part of the paper, particular emphasis is given to analysis of a so called theory of acceptance (Hinnahmetheorie), its view on tolerable adaptation of unknown rights in rem in the new situs and how all of this reflects the application of the rules on transposition of rights.

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