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Collection of papers "Law Between Creation and Interpretation" Vol II Cover Image

Зборник радова "Право између стварања и тумачења" Том II
Collection of papers "Law Between Creation and Interpretation" Vol II

Contributor(s): Dimitrije Ćeranić (Editor), Svjetlana Ivanović (Editor), Radislav Lale (Editor), Samir Aličić (Editor)
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву

  • Print-ISBN-13: 978-99938-57-74-7
  • Page Count: 702
  • Publication Year: 2023
  • Language: English, Slovenian, Serbian
Суд између примене и стварања права

Суд између примене и стварања права
(The Court Between the Application and Creation of Law)

  • Author(s):Gordana Stanković
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Court case
  • Page Range:1-15
  • No. of Pages:15
  • Keywords:Separation of powers; Legislative and court authority; Application of law; Interpretation of law; Unification of court practice;
  • Summary/Abstract:In this paper, author analyzes the relationship between legislative and court authority according to the principle of separation of powers and the roles of the court in providing civil legal protection. While performing its judicial function, the court is obliged to act according to the procedural rules set out by the legislative authorities and to make decisions according to the rules of substantive law. Although the separation of powers implies that the court cannot create general legal norms instead of legislator, it takes the role of a kind of sub-legislator in situations when it interprets the law more closely, fills the legal gaps, interprets legal standards, and assesses concrete situations using its own criteria. The principle of separation of powers does not prevent the judge from using interpretation to, in effect, create a new law that differs from the one made by the legislator. Furthermore, it does not prevent the judge from modifying the existing rules or paralyzing the legislator's will, or even violating the law by rising above the legislators' authority, even though abuse of authority occurred. Interpretation of law as a precondition and during its application causes two problems: the correctness and the uniformity of interpretation for the sake of equality before the law and legal certainty. The legislator tries to solve the problem of the correctness of interpretation not only through the possibility of an authentic interpretation of the law but also through certain instruments in organizational and procedural law. The problem of uniformity in the interpretation of the law is solved within a judicial system in the domain of uniformity of court practice regarding legal remedies, in the procedure for resolving contentious legal issues in civil proceedings, and by the activity of courts in taking legal views.
Кодификовање грађанског материјалног и грађанског процесног права у Босни и Херцеговини

Кодификовање грађанског материјалног и грађанског процесног права у Босни и Херцеговини
(Codification of Civil Substantive and Civil Procedural Law in Bosnia and Herzegovina)

  • Author(s):Branko Morait
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Civil Law
  • Page Range:16-38
  • No. of Pages:23
  • Keywords:Civil code; Unification; Harmonization; Prosecutorial procedure; Trial principle;
  • Summary/Abstract:Civil law, in a broader sense, includes both substantive and procedural rules. Bosnia and Herzegovina, that is, its entities, face the challenges of creating a civil code. Civil court proceedings have been partially codified, that is, unified by the adoption of identical legal texts for the level of BiH, the entities and Brčko District of BiH. The paper critically examines the scopes and perspectives of codifying both domains of civil law.
Заступање детета у случају постојања супротности интереса са родитељима

Заступање детета у случају постојања супротности интереса са родитељима
(On Representing Children in Situations Where Parents May Have Adverse Interest)

  • Author(s):Zoran Ponjavić, Ivana Ponjavić Serdar
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:39-61
  • No. of Pages:23
  • Keywords:Legal representative; Adversary interests; Collision guardian; Temporary representative; Child participation;
  • Summary/Abstract:Due to their vulnerability an immaturity, children are under the special protection of their parents, their statutory guardians. They exercise their children's personal and property rights on their behalf and in their best interest. Parents have autonomous and general authority in this regard, which is prescribed by law and their mission exceeds the representation of persons lacking legal capacity based on civil law. In this way, the law has given parents a capital role in securing the legal lives of their minor children. The trust that the statutory guardian will be capable of guarding the minor's interests is the cornerstone of statutory representation. However, in cases where the interests of the statutory guardian conflict with the child's interests, this trust no longer exists, and a subsidiary form of representation needs to be established. Based on the Family Law of the Republic of Serbia, this situation is resolved by appointing collision guardian or temporary representative of a child. Their authority is restricted in the same way as the authority of the statutory guardian. The difference between them is that the temporary representative is appointed by the court when the civil case has already been filed and for this purpose only, while the collision guardian is appointed in advance and is given much broader authority. The adverse interests may be direct, with the most obvious case being the child's representation related to his or her property rights, that is, managing and disposing of his or her property, as well as the child's representation in civil cases where the child appears as a part to the proceedings. The existence of adverse interests is more difficult to establish in cases of child representation related to his or her personal and property rights, where the child appears as a "covert" party. There is a question of whether adverse interests exist in such cases at all, since the child does not have "autonomous material rights", or whether there is just an issue of different opinions of parents regarding the requirements of the child's best interest, which should not result in the appointment of a temporary representative. Under the influence of the Convention of the Rights of the Child and the trend of increasing participation of children in realizing their rights, resorting to these subsidiary methods of their protection represents the means of their indirect involvement in creating their own interests. Even without relieving the statutory representative, a child has acquired certain procedural autonomy, particularly given the fact that the child itself can demand the appointment of a temporary representative. In this way, the mechanism of children's protection is adapted to the progressive recognition of their rights according to their natural capacity from birth to adulthood. In this situation, the most challenging thing is to find the balance between the protection that a child needs and his or her participation in decision-making since, although it might seem counterproductive to include a a child in every single decision, it is also very dangerous to leave him or her unprotected.
Предаја ствари купцу у уговору о продаји

Предаја ствари купцу у уговору о продаји
(Delivery of the Goods in a Sales Contract)

  • Author(s):Ilija Babić
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Commercial Law
  • Page Range:62-81
  • No. of Pages:20
  • Keywords:The notion of thing (goods); Delivery of movable property; Transfer of real estate; The risk of loss; Acquisition of ownership;
  • Summary/Abstract:In a sales contract, it is the duty of the seller to transfer ownership of the thing (goods) to the buyer. The seller will have fulfilled his obligation when he has delivered the goods to the buyer, i.e., has provided him with the right of ownership of the goods being sold (when such right is the subject of a sale). Generally, in most European legal systems (Serbian included), in order to acquire ownership it is necessary not only that the contract be concluded (causa, titulus) but also that the goods which are the subject of a sale be delivered to the buyer (modus acquirendi). At the moment of delivery, the risk of loss or damage to the goods passes to the buyer. On the other hand, the French, Swiss and Italian civil codes include the rule stipulating the ownership of the goods (being the subject of a sale) is transferred to the buyer at the moment of the conclusion of a contract. From that moment on, the buyer bears the risk of accidental loss or damage to the goods (the right). Acquisition of the right of ownership over the sold goods, however, differs depending on the type of property (movable or immovable). The subjects of the sale and delivery include: the principal thing (the principle right), the appurtenance, and the fruits.
Право родитеља на накнаду штете због промјене пола дјетета

Право родитеља на накнаду штете због промјене пола дјетета
(The Rights of Parents to Damages Arising from Sex Change of Their Children)

  • Author(s):Stanka Stjepanović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:82-100
  • No. of Pages:19
  • Keywords:Child; Parents; Damages; Transgender; Sex change;
  • Summary/Abstract:Gender change is provided for by the legislation of the Republic of Serbia. Moreover, the state participates in financing up to 2/3 of the total costs of this complex operation, the amount which is far from negligible. This paper discusses the problems that arise when a child, after turning 15, decides to change sex, using his or her right to medical intervention, while their parent are expressly against it or give their alleged consent, out of fear that their child may, otherwise commit suicide. Of course, this complex operation implies a prior, very complicated , hormonal therapy, which may have very serious consequences for the child's health. The advertising of certain gender reassignment clinics is considered, as are numerous internet contents that influence a child at that adolescent age to make a decision about his or her gender, more precisely, decision about changing it. The fact is that parents consequently suffer psychological pain, which consists of fear for the child's health and disfigurement and fear of deviant+t behavior during child's further development. The question arises as to whether and at what point parents can claim compensation for damaged health and changed identity of their child. In this paper, the author provides an answer by analyzing the cases of children who changed gender and later repented and detransitioned with great difficulty, a situation which had serious psychological consequences for their parents as well.
Odgovornost poduzetnika nuklearnog broda

Odgovornost poduzetnika nuklearnog broda
(The Liability of Nuclear Ship Operator)

  • Author(s):Dragan Bolanča
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Energy and Environmental Studies
  • Page Range:101-114
  • No. of Pages:14
  • Keywords:Nuclear ship; Nuclear ship operator operator; Nuclear damage; Liability; Republic of Srpska; Republic of Croatia
  • Summary/Abstract:The author of this article deals with liability of nuclear ship operator for nuclear damage. He analyzes the legal solution in five acts in Bosnia and Herzegovina: Inland Navigation Act of Republic of Srpska (2001), Maritime and Inland Navigation Act of Bosnia and Herzegovina (1992), Inland and Maritime Navigation Act of the Federation of Bosnia and Herzegovina (2005), Inland Navigation Act of Brčko District of Bosnia and Herzegovina (2008) and Act of Liability for Nuclear Damage of Bosnia and Herzegovina (1992). These acts are compared with Croatian Maritime Code (2004) and Croatian Inland Waterway Ports Act (2021)
Избегавање права прече куповине пољопривредног земљишта

Избегавање права прече куповине пољопривредног земљишта
(Avoiding the Right of First Refusal in the Sales of Agricultural Land)

  • Author(s):Miroslav Lazić
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:115-133
  • No. of Pages:19
  • Keywords:Agricultural land; The right of first refusl; Avoiding giving the right of first refusal;
  • Summary/Abstract:The right of the first refusal is the limitation of the right to dispose of property, preventing the property owner from freely choosing the purchaser of his/her property. Instead, it requires the owner to invite the holders of the right of first refusal -owners of the neighboring property -to make the first bid. Such limitation of free property disposal is justified by the public interest of consolidation of free agricultural land - the supremacy of common over the individual, i.e., public over private interest. In practice, however, various attempts are made to avoid giving the right of first refusal and sell the land to a third party. In search of an optimal solution to this problem, we shall point to legal dilemmas and best recourse in the context of conflicting interests of the owner/seller of the land and holder of the right of first refusal. Special attention will be given to the cases of misrepresentation of contract price, fake contracts, and the cases of determining the amount of money the holder of the right of first refusal is to deposit-contractual or market amount.
Право нотара на накнаду трошкова поступка и награду у оставинском поступку

Право нотара на накнаду трошкова поступка и награду у оставинском поступку
(Right of Notary to Compensation for Procedure Costs and Award in Probate Proceeding)

  • Author(s):Ranka Račić
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:134-156
  • No. of Pages:23
  • Keywords:Notary service; Judicial professions; Probate proceedings; Notary as a court commissionaire; Right to costs of proceedings; Reward for work done;
  • Summary/Abstract:The Law on Amendments to the Law on Non-Litigation Procedure of the Republic of Srpska from 2016 entrusts notaries with the implementation of probate proceedings. Relieving the burden from the courts and speeding the resolution of "undisputed matters" were the most important legal and political reasons that motivated the legislator to transfer the jurisdiction in probate cases from the courts to the notary office. Notaries in Bosnia and Herzegovina are, under positive legal regulations, authorized to refuse to put a clause of finality on the decision on inheritance and deliver it to the participants and public registers until they have been payed the entire amount of the award and the costs of the procedure. According to the opinion of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, such behavior of the notary is in contradicion with the Convention on the Protection of Human Rights and Fundamental Freedoms. In the paper, the author answers questions that are problematic in practice and critically reviews the positions presented regarding the equalization of the position of a judge and that of notary, as a court commissioner. Legislative solution in post - Yugoslav states are also a special subject of analysis, and they concern the collection of costs and awards in probate cases in which a notary acts as a court commissioner. Bearing in mind the mixed legal nature of the notary service, which has public powers but also a specific status, because it indeed represents a profession that performs its activities independently, and exclusively with private means, the author presents the argument that it is not possible to put a sign in equality between the notary service and the judicial profession.
Тумачење правних стандарда - безобалних термина и акварелних правних норми

Тумачење правних стандарда - безобалних термина и акварелних правних норми
(On Interpretation of Legal Standards - Boundless Legal Terms and Fluid Legal Norms)

  • Author(s):Slobodan I. Panov
  • Language:Serbian
  • Subject(s):Social Sciences, Law, Constitution, Jurisprudence
  • Page Range:157-182
  • No. of Pages:26
  • Keywords:Language; Interpretation; Legal standards; Boundless and fluid legal stylizations;
  • Summary/Abstract:The essence of (family) law lies in harmonizing Manichaeism and becalming its creative forces. (Family) law is far from being the culmination of spirituality, a jewel in the crown of mindful beauty. Art, philosophy, psychology (medicine)... all outcharm it. The law is not closest to God; it doesn't glow or bask in the utmost God's blessing and sapience; the law is not otherworldly. Professor Sergei Troitsky contended that in the Old Testament, Jesus figured as an adjudicator, whereas in the New Testament, he was a healer. However, despite this initial handicap, despite constraints to its marvels, compared to other spheres, dimensions, and spiritual disciplines, the law displays one attribute that clearly stands out. Cognition, or more precisely, the necessity of cognition when learning and understanding about people and society/family, is the paramount quality of law... Law is exactness and freedom. Law is strictness and freedom of thought. Law is the mathematics of autonomy. It is the synthesis and the synonym for life from its individual and/or collective aspect. The quality of gradience of law allows for the conclusion that the essence/definition/understanding of law is synonymous with life itself. the very(pre)beginning of life (type and dynamics of legal transactions), and its end (identifying the exact moment of delation in the law of inheritance), and even after death (Canon law governing matters of the legal status of mortal remains, grave, prayer for the departed soul).
Социјална улога установе наслеђивања у руском и српском праву

Социјална улога установе наслеђивања у руском и српском праву
(Social Role of the Institute of Succession in Russian and Serbian Law)

  • Author(s):Nataša Stojanović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:184-204
  • No. of Pages:21
  • Keywords:Social role of the institute of succession; Russian law; Serbian law;
  • Summary/Abstract:In this paper, the author considers the social role of the institute of succession, starting from the solutions contained in the current inheritance law regulations of the Russian Federation and those of the Republic of Serbia. The research has been conducted with the aim of finding some substantiated answers to the following questions: Whose inheritance law regulations, of the Russian or the Serbian legislator, provide a socially fairer distribution of inherited goods and prompt a socially more beneficial behavior or individuals? Where is the institute of succession, as a legal creation, more in the service of preventing any disruptions in the society that can be brought about by the death of one person and of preserving private property - in Russia or in Serbia? Which inheritance law regulations, Russian or Serbian, better protect the economic base of the family and the interests of persons completely or partially incapable of reasoning or those materially deprived who were related to the testator during his life? For the purpose of this paper, the following methods are used: dogmatic, normative, comparative, and historical. In order to achieve higher level of social well-being, to mitigate to a greater extent differences in an inheritance law situations of those who inherit in a concrete case, and to protect more completely the interests of materially deprived persons who were either aided by the testator or aided the testator during his life, the author proposes some adequate amendments to the current inheritance law regulations in the Republic of Serbia that would be moving in the direction of an increased social role of the institute of succession as a legal creation.
Pravna zaštita djece u digitalnom okruženju: djeca influenseri (Kidfluencers)

Pravna zaštita djece u digitalnom okruženju: djeca influenseri (Kidfluencers)
(Legal Protection of Children in the Digital Environment: Children Influencers (Kidfluencers))

  • Author(s):Maja Čolaković, Marko Bevanda
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, ICT Information and Communications Technologies
  • Page Range:205-231
  • No. of Pages:27
  • Keywords:Internet; Child labor; Sharenting; Privacy; Personal data;
  • Summary/Abstract:Since they have the excellent skills with modern telecommunication means and technologies, new generations - children of the digital age- are increasingly frequent participants in electronic legal transactions. They appear not only as consumers, but also as a service providers. By creating media content on social networks, some of them have become globally famous and influential people - influencers (kidfluencers). They promote various products and services from different companies to their followers and generate impressively large profits. This category of children also include children of preschool and early school age, introduced to the virtual world by their parents. The phenomenon of kidfluencers opens numerous legal issues and warns of real danger of violation of children's rights. This paper focuses on two. The first is the issue of child labor e.g. the exploitation of children at the earliest age by their parents for the purpose of making a profit. At the same time those children have been exploited by companies that advertise their brands through children's content on the Internet and not always consistently following marketing rules. Another important issue is the protection of kidfluencers's rights to privacy and freedom of expression, opinion and information, The phenomenon of sharenting, parents' sharing of various information about their children on social networks, which, encroaches on the child's privacy, personal data and informational self-determination, is showing more and more negative consequences. When parents do it for a profitable purpose, than such actions have a special weight. According to experts' predictions, this segment of the influencer industry will grow even more strongly. Therefore, urgent normative action is needed, in order to eliminate the danger of violation the rights of children in the digital environment, especially the kidfluencers's rights. Activities that have already been undertaken internationally and in certain national legislations show that this danger is taken very seriously.
Razmerje med zdravnikom in pacientom v okviru nekrivdnega odškodninskega sistema

Razmerje med zdravnikom in pacientom v okviru nekrivdnega odškodninskega sistema
(Relationship Between a Doctor and Patient in the Context of No-fault Liability)

  • Author(s):Suzana Kraljić, Katja Drnovšek, Velibor Korać
  • Language:Slovenian
  • Subject(s):Law, Constitution, Jurisprudence, Health and medicine and law
  • Page Range:232-249
  • No. of Pages:18
  • Keywords:Compensation systems; Damages; Compensation; Patients; Healthcare;
  • Summary/Abstract:The basis of a doctor's liability in Slovenia and, as a rule, in the other countries e.g. Montenegro, Croatia) is based on contract liability for damages. In the current legal framework, specific weaknesses of the existing system have been identified (e.g. long (court) proceedings, significant costs burdening the clients, insurance companies or the whole health system, and dissatisfaction of patients as a victims and doctors). In particular, the letter has an impact on the doctor-patient relationship, which has severely damaged the mutual trust in this relationship. Some countries (e.g. New Zealand, Denmark, Sweden, Finland, Norway) have already developed compensation systems that move away from the classical tort system in healthcare. The paper analyses legal issues that arise in the context of the existing liability system and the potential benefits that a no-fault liability system could bring to the doctor-patient relationship.
Pravo djeteta na lični identitet (mogućnost promjene identiteta)

Pravo djeteta na lični identitet (mogućnost promjene identiteta)
(The Right of a Child to Personal Identity (The Possibility of Changing Identity))

  • Author(s):Boris Krešić, Ervina Ibrahimović, Ena Morankić
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:250-264
  • No. of Pages:15
  • Keywords:Personal identity; Determination of origin; Right to a name; Family relations; Child; International standards;
  • Summary/Abstract:In the context of children's rights, an unavoidable international document is the Convention on the Rights of the Child, which indeed occupies the most important place among international documents that proclaim the rights of this unique and vulnerable group of people - children. The right of the child to preserve his or her identity is guaranteed by the Convention on the Right of the Child, in the sense that the Convention under "identity" means the child's name, nationality, and family relations. The Convention stipulates that a child must be registered after birth. A narrow interpretation of the Convention could create a legal dilemma: When, in fact, does a child acquire a right to a personal identity- by birth or enrollment? Would that mean that children are not born with fundamental freedoms and rights but become their holders only after they are registered in the birth register? The disputed issue regarding the child's right to identity refers to the possibility of changing the identity and participating in the procedure itself. Furthermore, along with the child's personal identity goes the issue of theft of his personal identity, where the question of the effectiveness of the Convention as an international instrument of protection arises. The Family Law of the Federation of Bosnia and Herzegovina prescribes the child's right to personal identity as a separate right.
Ко има право на нужни дио у праву Републике Српске?

Ко има право на нужни дио у праву Републике Српске?
(Who is Entitled to the Reserved Share in Inheritance Law of Republic of Srpska?)

  • Author(s):Dimitrije Ćeranić
  • Language:Serbian
  • Subject(s):Social Sciences, Law, Constitution, Jurisprudence
  • Page Range:265-295
  • No. of Pages:31
  • Keywords:The reserved share; The law of Republic of Srpska;
  • Summary/Abstract:The author examines the realization of the concept of the rule of law concerning the question of who is entitled to the reserved share in the inheritance law of the Republic of Srpska. Current legal solutions are critically analyzed from the aspect of their social justification and the principle of legal certainty. The paper also focuses on determining which family members can act as next of kin. The author came to the conclusion that the principle of legal certainty has been seriously threatened by positive law. Violation of the said principle may occur due to vague and imprecise legal provisions which adversely affect the uniform application of the law. Definiteness and precision of a legal norm are primarily determined by the lawmaker. However, they may also be affected by the decisions of constitutional courts. In such cases, the lawmaker can eliminate the imprecisions in legal texts by adopting the amendments to the particular piece of legislation without resorting to abrogation of the provisions which have already been rendered void by the court decision.
Нека спорна питања код поклона за случај смрти

Нека спорна питања код поклона за случај смрти
(Some Contentious Issues Concerning Gift in Contemplation of Death)

  • Author(s):Tamara Đurđić-Milošević, Novak Krstić
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:296-306
  • No. of Pages:11
  • Keywords:Legal business inter vivos; Legal business mortis causa; Donatio post mortem; Donatio mortis causa; Gift contract; Legacy;
  • Summary/Abstract:Gift in contemplation of death is a specific legal institute that has been in the focus of legal doctrine since its inception, primarily because of its complex legal nature. Its legal nature has been defined in various ways throughout legal history, from a lucrative and unilaterally revocable disposal in case of death, to a hybrid institution with a mixed legal nature between a legacy and a contract, to a kind of gift contract modality (donatio post mortem). Despite the long legal tradition and representation in practice, this institute is not legally regulated by positive regulations. Hence, the importance of his legal perception de lege lata de lege ferenda, with the aim to determine its place in the legal system of the RS. In this context, it is essential to focus on its legal nature, which further implies the issue of demarcation of legal business during life and the one in case of death, as one of the most important issues of contractual inheritance law.
Судска заштита права детета на образовање у Републици Србији

Судска заштита права детета на образовање у Републици Србији
(Exercise and Protection of the Right of the Child to Education in Republic of Serbia)

  • Author(s):Anđelija Tasić
  • Language:Serbian
  • Subject(s):Education, Law, Constitution, Jurisprudence, Family and social welfare
  • Page Range:307-321
  • No. of Pages:15
  • Keywords:Right to education; Procedural aspect; Civil procedure; The procedure for protection of children's rights;
  • Summary/Abstract:The focus of this paper is on the procedural aspects of the child's right to education. The author deals with the primarily judicial mechanisms that are available to the child to exercise one of the fundamental rights, which can determine its future life. Through the analysis of the provisions of the procedure for the protection of children's rights, prescribed by the Family Law and the relevant case law, the author examines the extent to which this procedure responds to the request to provide adequate protection of the child's right to education. At the same time, it has been noticed that the courts deal with protecting this right through the procedure for determining the alimony or changing the decision on alimony, sometimes entering into the assessments of the rationality of choosing a particular educational profile, type or place of schooling. Finally, children who consider themselves victims of discrimination based on certain personal characteristics have at their disposal the procedure for protection against discrimination prescribed by the Anti-Discrimination Act.
Ustanova usvojenja u svjetlu prakse Ustavnog suda Bosne i Hercegovine

Ustanova usvojenja u svjetlu prakse Ustavnog suda Bosne i Hercegovine
(Adoption of Children in the Light of the Practice of the Constitutional Court of Bosnia and Herzegovina)

  • Author(s):Ramajana Demirović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, Family and social welfare
  • Page Range:322-342
  • No. of Pages:21
  • Keywords:Constitutional Court; Adoptee(child); Adoptive parent; Partial adoption; Judicial practice; The right to respect for private and family life; Family Law; Brčko District;
  • Summary/Abstract:In modern family law, adoption represents the highest quality form of protection for children without parents of without appropriate parental care and at the same time enables the establishment of a parental legal relationship for persons who cannot fulfill their desire for biological children. The legal regulation of adoption in Bosnia and Herzegovina has a long tradition. Despite this, the small number of adopted children, the large number of requests from potential adopters for adoption and the large number of children who are without adequate parental care point to the conclusion of the existence of certain obstacles due to which adoption is not representedin practice to a greater extent. Analyzing the legal framework of adoption in Bosnia and Herzegovina in the light of the recent Decision of the Constitutional Court of Bosnia and Herzegovina (AP 3040/21), the author identifies some of the possible reasons that make it difficult or impossible to establish a larger number of adoptions. In conclusion, the author it points out the necessity and possible improvement of legal regulation, especially emphasizing the need to harmonize it with European standards in this field.
Usvojenje djeteta u Porodičnom zakonu Federacije Bosne i Hercegovine - potreba za izmjenama zakonskih odredaba i politike usvojenja

Usvojenje djeteta u Porodičnom zakonu Federacije Bosne i Hercegovine - potreba za izmjenama zakonskih odredaba i politike usvojenja
(Adoption of Children in the Family Law of the Federation of Bosnia and Herzegovina - the need for amendments to the legal provisions and adoption policy)

  • Author(s):Borjana Miković
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Welfare systems, Family and social welfare, Welfare services
  • Page Range:343-369
  • No. of Pages:27
  • Keywords:Children without parental care; Guardianship; Adoption; Adoptive parents; Professionals; Center for social work;
  • Summary/Abstract:In addition to defining the child, the child without parental care and the adoption institute, the paper analyzes the "conflict" between potential adopters and professionals employed in social work centers. The said conflict is related to the large number of those who want to adopt a child compared to the small number of adopted children. Professionals more often refer to legal obstacles in the process, while the potential adopters point to inertness,i.e., lack of interest of professionals and inappropriate adoption policy. In the wake of these "accusations", the paper presents the results of research conducted with two groups of respondents: social workers, who are engaged in the protection and care of children without parental care, according to their best interests, social work centers, and parents who have adopted a child.
Ослобођење од грађанскоправне одговорности произвођача вакцина против COVID 19 за штетне последице изазване вакцинацијом

Ослобођење од грађанскоправне одговорности произвођача вакцина против COVID 19 за штетне последице изазване вакцинацијом
(Exemption from Civil Liability of the Manufacturer of the Vaccine Against COVID-19 for Harmful Consequences Caused by the Vaccination)

  • Author(s):Bogdana Stjepanović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Health and medicine and law
  • Page Range:370-399
  • No. of Pages:30
  • Keywords:COVID 19;Vaccination; Civil liability; Pharmaceutical companies; Compensation programs for adverse effects of vaccination;
  • Summary/Abstract:Until the advent of the vaccines against COVID-19, new vaccines had to go through extensive, multi-year safety testing before being approved and used. Considering that the vaccines against COVID-19 are based on new technologies (mRNA and DNA vaccines), it was expected that the testing process itself would take longer compared to vaccines based on decades of existing technologies. The dramatically accelerated process of manufacturing vaccines against COVID-19 (only few months) has created the prospect that existing vaccines are either ineffective against the virus itself or carry serious health risks, which is reflected in the numerous side effects that followed the vaccination and which continue to occur. With the appearance of side effects came the question of responsibility for them. Different legal systems regulate the issue of liability for adverse effects caused by vaccination differently. There is a noticeable trend in the world to release vaccine manufacturers from civil liability and to establish no- fault liability system, with the implementation of special compensation programs for adverse consequences caused by vaccination. In the paper we investigate the validity of exemption from civil liability of vaccine manufacturers and the applicability of existing compensation programs for injures caused by vaccines against COVID-19.
Право православне цркве да поседује и управља добрима - канонске одредбе

Право православне цркве да поседује и управља добрима - канонске одредбе
(The Right of Orthodox Church to Own and Use Property - Canonical Provisions)

  • Author(s):Joachim Bejenariu
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Canon Law / Church Law
  • Page Range:400-419
  • No. of Pages:20
  • Keywords:Colportage in the church; Church store; Liturgical objects; Economic-missionary activity; Church autonomy;
  • Summary/Abstract:Nowadays, colportage has taken on a wider dimension and a character of multiple benefits, both for monetary purposes, increasing financial sources needed for church activities, especially missionary, cultural and charitable, as well as spreading of liturgical objects and popularization of Orthodoxy through books, magazines, icons and other objects.
Одговорна лица у случају постојања материјалних недостатака ствари у праву БиХ

Одговорна лица у случају постојања материјалних недостатака ствари у праву БиХ
(Responsible Parties in Case of Defects of Goods in the Law of BiH)

  • Author(s):Tijana Baćović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Commercial Law
  • Page Range:420-432
  • No. of Pages:13
  • Keywords:Consumer; Seller; Producer; Consumer Protection Act of Republic of Srpska; Consumer Protection Act of Bosnia and Herzegovina;
  • Summary/Abstract:Regarding consumer protection, a crucial question is who the consumer can approach to enforce their rights due to defects in the purchased goods. In this study, we will delve into the entities accountable in situations involving defects in goods as outlined in the legal framework of Bosnia and Herzegovina (BiH). As BiH operates under two distinct laws for consumer protection, namely the Law on Consumer Protection of BiH and the Law on the Consumer Protection of Republic of Srpska (RS), we will ascertain whether consumers on the entire territory of BiH are afforded an equivalent level of protection in such scenarios. We will underscore the necessity of aligning regulations across BiH and assess their compatibility with EU directives designed to safeguard consumers as a distinct category of purchasers. Furthermore, we will put forth recommendations for enhancing consumer protection, particularly concerning the responsible parties in cases involving material defects.
Дилеме које прате начине сазнања и примене страног права

Дилеме које прате начине сазнања и примене страног права
(Dilemmas Arising from the Ways of Finding Out About and Applying Foreign Law)

  • Author(s):Vladimir Čolović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Court case
  • Page Range:433-451
  • No. of Pages:19
  • Keywords:Foreign law; Court; Foreign element; Service of documents; Letter of request; Authentic instrument;
  • Summary/Abstract:Private International Law rules regulate the matter of domestic judicial and other authorities finding out about and applying foreign law in cases involving foreign element. Article 13 of the Act on the Resolution of Conflicts of Laws with the Regulations of Other Countries stipulates that the court or other authority shall be obliged to determine, ex officio, the application of foreign law or that the court may request the content foreign rule from the Ministry of Justice. Also, the parties can submit a public document on the content of foreign law. Applying above mentioned provisions raises many questions which require proper answers, especially bearing in mind that the practice is sometimes contrary not only to provisions of the said law but to basic rules of Private International Law. The paper will discuss the ways of finding out about foreign law, the possibility of receiving information about the content of foreign law from domestic institutions and the risk involved when a party submits a public document about the content of foreign law. In addition, for the correct finding out and application of foreign law, it is important to take care of the delivery of the act to the authority of the foreign state, from which the notification is required. Furthermore, it is essential that the party consider the issue of whether the domestic court or other authority will be able to correctly interpret and apply the provisions of the foreign law, without additional information obtained from the authorities of a foreign country. Also, the paper will raise the question of whether it is advisable, in any case, to apply domestic law in a situation where it is not possible to find out about foreign law for any reason.
Право и електронска трговина - да ли норма прати и контролише технологију и иновације?

Право и електронска трговина - да ли норма прати и контролише технологију и иновације?
(Law and Electronic Commerce: Does the Norm Keep Up With and Control Technology and Innovation?)

  • Author(s):Igor Kambovski
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, ICT Information and Communications Technologies, Commercial Law
  • Page Range:452-462
  • No. of Pages:11
  • Keywords:Electronic commerce; Norm; Technology;
  • Summary/Abstract:Every newly conquered or at least touched border, in all spheres of society, is characterize by the lack of laws that would regulate that "newly conquered territory". In the past, lawmakers had to face and obey the challenges arising from specific social conditions and specific communities or nations. International law bridged the gap, but it often took years and decades for a particular legal norm to be formulated, agreed upon, and put into effect. But it was so before and during industrial revolution, before technology began to guide us, our society and our institutions; before our dependence on a world governed by computers and the Internet began, in which man had to find his place, prosperity and well-being. In the meantime, the Internet has developed to unprecedented proportions, leading to the emergence of E-commerce, which brought about a revolution in providing commercial services. The creation of law is a complicated and slow process, and technological advances are to rapid, so there is a problem and a dilemma: can law keep pace with the dynamic changes and development of information and communication technologies? Every new law that governs the relationships arising from new technologies quickly becomes obsolete, and there is a need for its revision and modification., and so on, ad infinitum. This contributes to the creation of legal norms that are too broadly set or imprecise to be lasting, which in turn increases legal uncertainty, which then, inversely proportionally, affects the trust among entities that participate in E-commerce. Also, technical achievements create certain practical standards much faster than the law is able to regulate them. Therefor, a standard de facto becomes a norm long before the law normatively supports such a standard.
Употреба туђе жигом заштићене ознаке у контексту уметничког изражавања - осврт на предмет Rogers V. Grimaldi

Употреба туђе жигом заштићене ознаке у контексту уметничког изражавања - осврт на предмет Rogers V. Grimaldi
(The Use of Third-Party Trademarks in the Context of Artistic Expression - Review of the Rogers V. Grimaldi Case)

  • Author(s):Jelena Ćeranić Perišić
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:463-476
  • No. of Pages:14
  • Keywords:Trademark; Artistic expression; Trademark infringement; Virtual reality; The Metaverse;
  • Summary/Abstract:The use of third-party trademarks in the context of artistic expression has been attracting the attention of the scientific and professional public for a long time. This issue is especially gaining importance with the accelerated development of digital technology and the use of trademarks in Virtual Reality, including the Metaverse. The use of a trademark by a third party does not always constitute trademark infringement. If trademark is used for commentary or criticism, such use is not considered infringement and the First Amendment right to free expression. The Second Circuit held in Rogers that "in general , the Act should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression". To balance these two considerations, the Second Circuit articulated the widely used two-factor Rogers test, which requires that the trademark use have "no artistic relevance to the underlying work" or "does not explicitly mislead" as to the source of the work for a finding of infringement. Due to the development of digital technology, a new form of social and economic exchange in virtual reality, including Metaverse, has been created. The first disputes regarding the trademark in virtual reality and the Metaverse relate to the use of third-party trademarks in the context of artistic expression. In this respect, a significant case from US judicial practice Hermes Int'l v. Rothschild. The decision provides helpful guidance on how courts will treat the issue of the use of third-party trademarks in the context of artistic expression in the future.
Međunarodna nadležnost u brakorazvodnim sporovima u Europskoj uniji i Bosni i Hercegovini

Međunarodna nadležnost u brakorazvodnim sporovima u Europskoj uniji i Bosni i Hercegovini
(International Jurisdiction in Divorce Disputes in the European Union and Bosnia and Herzegovina)

  • Author(s):Anita Duraković, Jasmina Alihodžić
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, International Law, EU-Legislation
  • Page Range:477-502
  • No. of Pages:26
  • Keywords:International jurisdiction; Divorce dispute; Decisions of ECJ; Legislative activities; Proposals de lege ferenda;
  • Summary/Abstract:The increased mobility of the population within the European Union that we are witnessing today, as well as the fact that young people decide to marry a national of another country much more easily than before, regardless of differences in language, culture and religion, lead to a growing number of "international marriages". Consequently, the number of international divorces has also increased. The legislator of European Union, aware of this problem and the fact that any unification leads to the mitigation of differences which inevitably exist in the legal systems of European countries, took specific steps that resulted first in the adoption of Brussels Convention II from 1998, then Regulation 1347/2000, which was replaced by Regulation 2201/1111. In all the instruments mentioned, the matter of international jurisdiction in divorce disputes is regulated similarly, that is, there were no significant interventions, although there were specific disputed issues. It was the Court of Justice of the EU with its decisions, especially the decision in case C-522/20, that removed particular dilemmas which had been the subject of many discussions for almost a quarter of a century and, thereby, contributed to a welcome calm in the area of European family law, where in recent years there have been significant differences between the fundamental legal and political beliefs of member states. This decision and legislative activities within the European Union are important for Bosnia and Herzegovina, given its international obligations arising from the Stabilization and Association Agreement. If we compare the solutions of the European Union with those of Bosnia and Herzegovina, it is evident in which direction the future reform in this area should go.
Preživljanje otrok - analiza primerov z mednarodnim elementom

Preživljanje otrok - analiza primerov z mednarodnim elementom
(Maintaining Children - the Analysis of Case Law With International Dimensions)

  • Author(s):Katja Drnovšek, Suzana Kraljić
  • Language:Slovenian
  • Subject(s):Law, Constitution, Jurisprudence, International Law, Court case
  • Page Range:503-537
  • No. of Pages:35
  • Keywords:Right to maintenance; Enforcement of maintenance; Child maintenance; Cross-border dispute; Maintenance debtor; Maintenance beneficiary; Jurisdiction;
  • Summary/Abstract:The already complex issue of child support enforcement, which is a critical factor in ensuring the child's best interest in all cases where the child does not live with the persons obliged to support them, gains additional dimensions in an international environment. International conventions, bilateral and multilateral agreement, and European legislation- most notably Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance with the Hague Protocol, and Council regulation (EC) no 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations - have undoubtedly facilitated cross-border enforcement of maintenance claims in cases where the maintenance debtor does not reside in the Republic of Slovenia. However, in practice, the parties involved in proceedings are faced with some ambiguities and uncertainties that can bi partly attributed to the multitude of applicable legal acts and the result in variety of situations depending on the country of residence of the maintenance debtor and the beneficiary, which further exacerbates the general reluctance of parties involved in international proceedings. The article will provide a general overview of the Slovenian regulation of the right to maintenance and the specifics of enforcing unpaid maintenance before Slovenian courts. Furthermore, it will focus on analyzing relevant Slovenian case law with an international element, with particular attention paid to evaluating the use of European and international legal acts before Slovenian courts and the problems faced by participants in the proceedings.
Creation and Interpretation of the Concept of Cultural Heritage in the Spanish Law

Creation and Interpretation of the Concept of Cultural Heritage in the Spanish Law
(Creation and Interpretation of the Concept of Cultural Heritage in the Spanish Law)

  • Author(s):Luis Javier Capote Pérez
  • Language:English
  • Subject(s):Law, Constitution, Jurisprudence, Museology & Heritage Studies
  • Page Range:538-547
  • No. of Pages:10
  • Keywords:Spanish law; Spanish Constitution; Cultural Heritage; Cultural property;
  • Summary/Abstract:In this paper we are going to talk and discuss about the creation of the concept of "cultural heritage" in the Spanish law and the characters of the legal definition of cultural property or cultural heritage goods, according with the legal system established by the 1978 Constitution. We will comment some cases of the Spanish Jurisprudence where the concept is developed.
Balancing AI and Privacy: Cross-Border Perspectives

Balancing AI and Privacy: Cross-Border Perspectives
(Balancing AI and Privacy: Cross-Border Perspectives)

  • Author(s):Biagio Andò, Cinzia Valente
  • Language:English
  • Subject(s):Law, Constitution, Jurisprudence, ICT Information and Communications Technologies
  • Page Range:548-569
  • No. of Pages:22
  • Keywords:Socio-technological innovation; Regulation; Privacy; Obsolescence; Inadequacy; Discretion; Statutory construction;
  • Summary/Abstract:The objective of this paper is to provide an overview of the prevailing trends observed within common law and civil law systems concerning the protection of personality rights in relation to the utilization of artificial intelligence (AI) systems. Specifically, the aim is to accentuate the divergent approach adopted by legal practitioners within the American and Italian legal systems when the absence of specific regulatory provisions requires distinct legal reasoning, resulting in disparate resolutions for specific cases. The equilibrium between rights now deemed indispensable, such as the regulation of personal data, circulation, and the promotion of technology to advance economic progress within these systems, has now been entrusted to the discretion of the various interpretative criteria reveals co of the courts. A comparative analyses contrasting methodologies that typify the respective legal systems.
Pojam ugovora o isporuci digitalnog sadržaja ili digitalne usluge

Pojam ugovora o isporuci digitalnog sadržaja ili digitalne usluge
(The Notion of the Contract for the Supply of Digital Content or Digital Services)

  • Author(s):Anita Petrović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, ICT Information and Communications Technologies
  • Page Range:570-593
  • No. of Pages:24
  • Keywords:Directive (EU) 2019/770; Digital content; Digital services; Price; Personal data; "Free" digital content;
  • Summary/Abstract:European contract law has seen significant changes in recent years. Contract law that once suited specific period of time and particular market relationships has now entered the new age of digital technologies. As a consequence of this "fourth industrial revolution" legislative measures are being adopted at the EU level, with the purpose of modernizing European contract law to meet the requirements of the digital market. In the digital world of data, data is a tradable commodity as any other good and can be an independent element of the contract or "consideration". In order to regulate contractual relations that already exist in practice, Directive (EU) 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services was adopted on 20 May 2019. It came into force on 1 January 2022. For the first time at the EU level and the most member states, this Directive has regulated contracts for the supply of digital content or digital service. It governs contracts where the trader supplies data to the consumer, and the consumer pays a price. However, what is even more important is that the scope of the Directive also includes situations where the trader supplies digital content or digital services to the consumer in exchange for his personal data. The aim of the paper is to critically analyze the legal notion of the contract for the supply of digital content or digital services, especially bearing in mind the new definitions of digital content and digital service, and to analyze the legal regulation of "free" digital content or services.
Уобичајено боравиште оставиоца: да ли је ријеч о посебном појму уобичајеног боравишта?

Уобичајено боравиште оставиоца: да ли је ријеч о посебном појму уобичајеног боравишта?
(Habitual Residence of the Deceased: Is This a Special Notion of Habitual Residence?)

  • Author(s):Dragana Damjanović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:594-610
  • No. of Pages:17
  • Keywords:Habitual residence; Habitual residence of the decease; Regulation (EU) on Succession;
  • Summary/Abstract:Today, habitual residence represents a general connecting factor in determining both jurisdiction and applicable law. Special notions of habitual residence have developed over time in addition to the general notion of habitual residence. These notions include the habitual residence of a child, the habitual residence of an entrepreneur , and the habitual residence of a legal entity, i.e., an organization without legal status. The question arises, however, whether the deceased's habitual residence also represents a special notion of habitual residence. The habitual residence of the deceased was first mentioned in the Convention 5 October 1961 on the Conflicts of Laws related to the Form of Testamentary Dispositions. In addition, the deceased's habitual residence appears as a criterion for determining the applicable law in the Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons. However, it remained relatively unnoticed until the implementation and enforcement of the Regulation (EU) on Succession from 2012. In this regard, the habitual residence of the deceased serves a triple function: it is a criterion of general jurisdiction, it is a point of attachment for determining the applicable law to succession as a whole in the absence of choice, and it is one of the criteria used to order the competent authority to issue the European Certificate of Succession, which was provided by this Regulation. In the paper, the author first analyzes the notion of habitual residence, as it is given in the mentioned Regulation, and then attempts to resolve whether the habitual residence of a deceased person is a special notion of habitual residence.
Усклађеност пословања у осигуравајућим друштвима

Усклађеност пословања у осигуравајућим друштвима
(Compliance Function in Insurance Undertakings)

  • Author(s):Iva Tošić, Jovana Misailović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Law on Economics
  • Page Range:611-625
  • No. of Pages:15
  • Keywords:Insurance companies; Principles of business legality; Compliance function; Key function;
  • Summary/Abstract:The financial crisis lead to considerable changes in the corporate governance regimes of all companies, including insurance undertakings. Therefor, it was necessary to establish new mechanisms to regain consumer's trust. The compliance function occurs as one of the forms of strengthening corporate governance in these companies. This function derives from principles of business legality, which, in addition to being one of the basic principles, is also an expression of the company's business ethics. In the Solvency II Directive, the compliance function is given a formal status within the insurance company as one of the four critical functions of the management system. In the paper, the authors analyze the basic features, tasks and importance of the newly established compliance function and its impact on improving corporate governance in insurance companies.
Забрана уговорних ограничења на производима - случај Impression Prods., Inc. v. Lexmark Int'l, Inc.

Забрана уговорних ограничења на производима - случај Impression Prods., Inc. v. Lexmark Int'l, Inc.
(Prohibition of Contractual Limitations on Products- the Case of Impression Prods., Inc. v. Lexmark Int'l, Inc.)

  • Author(s):Njegoslav Jović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Commercial Law
  • Page Range:626-643
  • No. of Pages:18
  • Keywords:Contractual restrictions on products; Types of contractual restrictions; International patent exhaustion; Parallel trade;
  • Summary/Abstract:The decision of the US Supreme Court in Impression Products v. Lexmark Int'l. sets a precedent and establishes a regime of international patent exhaustion in the US. According to this ruling, a patent holder who sells a product exhausts the patent authority on that product, regardless of any restrictions it intends to impose on the product or the location of the sale. This ruling significantly weakened the position of US patent holders. The ban on post-sale restrictions in Impression Products is a crude instrument compared to the justifications offered for it. In its favor, the rule of per se exhaustion on sale is simple and easy to understand, but because it is categorical, it does not distinguish the harmful effects of post-sale contractual restrictions from the many beneficial ones. US antitrust law on limited distribution began similarly, adopting categorical rules per se that changed and eventually gave way to nuanced treatment under the rule of reason. An examination of the types of contractual restrictions imposed in patent exhaustion cases indicated that they are used for different purposes and with different effects. Therefor, introducing a complete ban on imposing post-sale restrictions come in various forms, with different effects on competition or innovation. The system of rules for reviewing and enforcing such restrictions must take these differences into account, and patent laws should include provisions that should be sensitive to the different market situations in which patents may arise. by introducing a complete ban on contractual restrictions on products and the international patent exhaustion regime, US Supreme Court significantly changed the previous practice of lower courts and allowed parallel trade. Therefor, it significantly affects the business practice of economic entities in the USA, which will have to change the current concepts of placing products on the market that are covered by patent protection.
Испитивање могућности финансирања стечајних поступака у случају недовољности имовине стечајног дужника

Испитивање могућности финансирања стечајних поступака у случају недовољности имовине стечајног дужника
(Delving Into the Possibilities of Funding the Insolvencies of Assetless Estates)

  • Author(s):Irena Radić
  • Language:Serbian
  • Subject(s):Social Sciences, Law, Constitution, Jurisprudence, Law on Economics
  • Page Range:644-662
  • No. of Pages:19
  • Keywords:Assetless; Funding mechanisms in insolvency; State funding of assetless estates in insolvency; Public interest in insolvency; Abuse of company; Actio Pauliana;
  • Summary/Abstract:According to the Insolvency Act of Republika Srpska, the costs of the bankruptcy proceedings are to be paid from the bankruptcy estate before any creditors. However, if debtor's assets are insufficient to cover these costs and the creditors (or other interested parties) do not make an advanced payment for the costs, the bankruptcy court will dismiss the request to open bankruptcy proceedings. Namely, the bankruptcy proceedings are financed primarily from the bankruptcy estate. If the estate cannot cover the proceedings' costs, interested parties, primarily creditors, will be expected to finance the proceedings. However, creditors are often reluctant to prepay the costs, especially when when the debtor's assets are insignificant, as it increases the debt the debtor already owes them with a dubious chance of recovery. This is probably why more than half of the bankruptcy proceedings are terminated due to insufficient bankruptcy estate, meaning no distribution of assets to the creditors. While there may be many reasons why a bankrupt's assets may be little value, it raises suspicions about its lawful and honest business dealings. Therefor, it is crucial to investigate the reasons that led to the bankruptcy and whether there are grounds to challenge the debtor's actions or potentially hold certain individual criminally or civilly liable. This paper compares approaches to this problem in the Netherlands, Australia and Finland and proposes a possible solution compatible with the domestic legal and business environment.
Уговор о сефу - проблем и значај одређивања правне природе

Уговор о сефу - проблем и значај одређивања правне природе
(Safe Deposit Box Contract - Problems and Importance of Determining Its Legal Nature)

  • Author(s):Milena Momčilov
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:663-685
  • No. of Pages:23
  • Keywords:Safe deposit box contract; Safe deposit box; Legal nature; Lease agreement; Deposit; Sui generis contract;
  • Summary/Abstract:The legal nature of the contract is of great theoretical and practical importance. When the rules of a contract do not specifically regulate a particular contract issue, finding measurable regulations involves determining its legal nature. Generally, determining the legal nature of a contract does not cause specific dilemmas in legal theory and practice. However, there are some contracts with a disputed legal natures. Regarding the safe deposit box contract, there is no single answer to the question of its legal nature. Also, the regulation of this contract in most legal systems is rudimentary. Bearing that in mind, the legal nature of the safe deposit box contract becomes especially significant. This article attempts to analyze safe deposit box contracts with respect to their legal nature, the problems involved in determining their essence and importance. By comparing the safe deposit box contract to similar contracts, the author seeks to determine which of these share the most characteristics with the safe deposit box contract. Furthermore, since the safe deposit box contract has many specific characteristics, an attempt is made to determine which rules would be the most appropriate to apply to the safe deposit box contract. In this way, defining the legal nature of the safe deposit box contract gains equal theoretical and practical significance, solving a number of practical problems and contributing to further development of legal theory.
Списак рецензената

Списак рецензената
(List of Reviewers)

  • Author(s):Author Not Specified
  • Language:English, Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:687-703
  • No. of Pages:17
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