Die Kodifikationsentwicklung des Zivilrechts in Serbien – insbesondere über den Vorentwurf des Bürgerlichen Gesetzbuches und über das neue Handelsgesetzbuch der Republik Serbien
The Development of Codification of Civil Law in Serbia – Particularly about the Draft Proposal of the Civil Code and about the New Commercial Code of the Republic of Serbia

Summary/Abstract: The aim of the paper is to analyse the evolution of codification of Serbian civil and commercial law. The codifications from 19th and 20th century were so-called partial codifications, i.e. they regulated only certain areas of private law. A notable exception is the 1844 Civil Code that regulated all classical branches of civil law (family law, law of obligations, proprietary law and inheritance law) and bears the signs of the influence of the Austrian General Civil Code. The law-maker however decided at the time to regulate commercial law in a separate act (1863). In the period of the first Yugoslavia (1918-1941), aiming at centralisation of competencies, just as in the period of second Yugoslavia (1945-1999), aiming at decentralisation of competencies, either on federal or on the level of federal units, the approach to create partial codification was more present then the opposite one, supporting the idea of a whole codification. At the level of Federation, the most notable act is the 1978 Law on Obligations, which shows the influence of the 1911 Swiss Law on Obligations. Not long after Serbia became a unitary state in 2006, the preparatory works on a draft of a civil code began in 2007, with the purpose of drafting a civil code embodying the whole area of civil law. The work of the codification committee ended in 2015 by publishing the first normative draft of the Civil Code of Republic of Serbia. The draft does not contain rules on the legal status of business organisations, unlike to the solution adopted in Swiss law. However, in the part pertaining to the law of obligations, besides classical types of contracts, envisages rules on specific commercial contracts. On the other hand, in 2011 the new Law on Business Organisations came into force that has been amended several times since then. Therefore, the evolution of codification of private law in Serbia demonstrates that the process of codification is expected to be achieved in two separate legislative acts: regulating the field of classical civil law, according to its pandectist division, in a civil code, and the matter of legal status of business organisations in a separate act. Thus the Serbian legislator adopts the dualistic approach to the codification of civil law, whereby both acts would certainly be harmonised in terms of general principles (freedom of contract and freedom of entrepreneurship).

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