У двоумљу између противправности радње и противправности штете (de lege lata)
Dilema between the unlawfulness of an act and the unlawfulness of damage

Summary/Abstract: The legal institute of unlawfulness has never stopped intriguing legal experts from the first moment it was introduced. This is confirmed by the fact that unlawfulness is regularly a subject matter of debate in civil law theory. Even though legal theorists have been dealing with this problem for centuries, it might be interesting that they have failed to respond to some essential questions. One of those questions is whether unlawfulness is a requirement for civil liability and when. Today, it may be the right time to ask and answer this question particularly having in mind the current intense activities on creating our Civil Code. At first glance, our current law does not seem to recognize unlawfulness as a condition for establishing liability for damages, but a deeper analysis has yielded a completely different answer. In this context, starting from the claim that unlawfulness is explicitly set out as a requirement for establishing civil liability, the author focuses on analyzing what concept of unlawfulness has been accepted by the Serbian legislator. Surprisingly, the analysis has revealed that the legislator was extremely creative and original. Namely, combining two leading theories about unlawfulness, the legislator has created a most interesting concept of unlawfulness which may not be most accurate but which, in the author’s opinion, must be part of the aforementioned Civil Code.

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