Зборник радова"Правне празнине и пуноћа права" Том II
Collection of papers "Legal Gaps and the Completeness of Law" Vol II
Contributor(s): Dimitrije Ćeranić (Editor), Radislav Lale (Editor), Svjetlana Ivanović (Editor), Đorđe Marilović (Editor), Samir Aličić (Editor)
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
- Print-ISBN-13: 978-99938-57-84-6
- Page Count: 425
- Publication Year: 2024
- Language: English, Serbian
Filling Legal Gaps in Law Systems Through Various International or National Factors Other Than Laws and Constitutions
Filling Legal Gaps in Law Systems Through Various International or National Factors Other Than Laws and Constitutions
(Filling Legal Gaps in Law Systems Through Various International or National Factors Other Than Laws and Constitutions)
- Author(s):Zehra Odyakmaz
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:1-44
- No. of Pages:44
- Keywords:Legal gap; High courts; Equality bodies; Ombudsman; Integrity;
- Summary/Abstract:In a state of law, legal gaps are usually filled by constitutional amendments, enactment of new laws or amendments to laws. It is very difficult for a country to fulfill the necessary conditions for a new constitution. It also takes a long time for laws to be passed by parliaments.The subject of this study is to demonstrate with concrete examples how a legal gap can be filled not only by legislation but also by the decisions of international courts, equality bodies and ombudsman institutions. Countries have analyzed rights and principles like to right to be forgotten and legal certainty in constitutional courts and ombudsman institutions and implemented them by administrative authorities before including them in the constitution and laws.The aim of this study is to show that even institutions such as the ombudsman, which issue only advisory decisions, may change the practices of administrative authorities in a country. From an international perspective, EU Council Directives, the EU Charter of Fundamental Rights, judgments of the Court of Justice of the EU and the ECtHR directly or indirectly fill the gaps in domestic law.The point that we would like to emphasize in this study is that the decisions of such institutions, especially on human rights or human rights related issues, can influence over time even the that country’s high courts.The question of ensuring integrity can be divided in two parts: ensuring integrity in international law or ensuring integrity in national law. However, in this article, we will not restrict the subject to ensuring only national or only international integrity. Because, in our opinion, the binding judgments of the Court of Justice of the EU in terms of international law are implemented in the EU member states and these countries are already integrated. Countries that accept the ECtHR jurisdiction also ensure integration in practice in accordance with this high court decisions .In conclusion, this study will show with examples that, before the laws are drafted and come into force, legal gaps, especially in administrative law which is a case law, can be satisfactorily filled through the decisions of international high courts, equality bodies in countries and non-binding advisory decisions of ombudsman institutions.
Изазови стратешког националног развоја Републике Сјеверне Македоније - квалитативна правна анализа студије случаја Републике Сјеверне Македоније
Изазови стратешког националног развоја Републике Сјеверне Македоније - квалитативна правна анализа студије случаја Републике Сјеверне Македоније
(Challenges of Strategic National Development - Qualitative Legal Analysis in the Case Study of the Republic of North Macedonia)
- Author(s):Dragan Gocevski
- Language:Serbian
- Subject(s):Politics / Political Sciences, Social Sciences, Law, Constitution, Jurisprudence
- Page Range:45-71
- No. of Pages:27
- Keywords:Strategy; Strategic national development; Coordination of public policies;
- Summary/Abstract:The Paper represents a qualitative study, conducted using legal analysis of competencies in developing and adopting a national development strategy in the Republic of North Macedonia. The Paper addresses the legal competencies of state actors and their capacities for adopting national strategic documents: parliament, government and the potential role and limitations of the chief of state. Furthermore, the paper gives an overview of the challenges of multisectoral scope of national development and collaboration with local government. The paper focuses on coordination mechanisms between central authorities and social partners, including horizontal coordination such as permanent bodies, ad hoc bodies, and intra-sectoral collaboration; as well as vertical coordination between the government and civil society organizations. The paper also analyzes strategies as mechanism for coordination and the provision of coherent public development policies.
(У)скраћивање права на помоћ и негу другог лица - ограничена ретроактивност решења
(У)скраћивање права на помоћ и негу другог лица - ограничена ретроактивност решења
(Denial of the Right to Assistance and Care of Another Person - Limited Retroactivity of the Decision)
- Author(s):Vuk Cucić
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence
- Page Range:72-91
- No. of Pages:20
- Keywords:Right to assistance and care of another person; Declarative administrative acts; Retro-activity;
- Summary/Abstract:Those who, due to the nature and severity of their injury or illness, such as physical or sensory impairment, intellectual difficulties or changes in health, require the assistance and care of another person to meet their basic needs, are entitled to assistance and care of another person. This right is recognized in the Republic of Serbia as one of the rights derived from the pension and disability insurance (for insured persons and pension beneficiaries) or, in the event that a person cannot realize the said right on that legal basis, as a form of social protection. The regulations governing this right do not recognize it from the moment when the conditions for its realization have been met. Namely, the Law on Pension and Disability Insurance recognizes the right to financial compensation for the assistance and care of another person from the date of submission of the request for its recognition or, at the earliest, six months before that day. The Law on Social Protection is even stricter, and the right to an allowance for the assistance and care of another person and the right to an increased allowance for the assistance and care of another person are recognized from the date of submission of the application if the conditions for recognition of the right were met at the time of application submission. The author examines the possibility of eliminating the problem that arose by limiting the retroactivity of decisions recognizing these rights. De lege ferenda solutions are considered both at the level of special laws regulating these rights and at the level of the rules of general administrative procedure, through the appropriate amendment of the Law on General Administrative Procedure.
Анализа примјене Европске повеље о локалној самоуправи у Републици Српској
Анализа примјене Европске повеље о локалној самоуправи у Републици Српској
(Analysis of the Application of the European Charter on Local Self-Government in the Republic of Srpska)
- Author(s):Nevenko Vranješ
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Government/Political systems, Politics and law, EU-Legislation
- Page Range:92-113
- No. of Pages:22
- Keywords:European Charter on Local Self-Government; Principles of the European Charter on Local Self-Government; Local self-government; Decentralization and local power;
- Summary/Abstract:The European Charter of Local Self-Government, hereinafter referred to as the Charter, is a key document of the Council of Europe adopted on October 15, 1985, and it came into force on September 1, 1988. It was ratified by all 47 member states of the Council of Europe. The Charter projected standards for the most important segments of local self-government, such as positive legal position, i.e. concept, organization, control, financing, relationship with the central government, etc. The above standards contribute to the development and democratization of local self-government. The charter fundamentally understands local self-government as an element of decentralization of power and democratization of society. The charter does not contain a precise and universal, much less a unique model, but provides general principles of local self-government. The principles are broad enough for the signatory countries to build nationally recognizable and specific models of local self-government, which will still respect the same democratic principles, that is, make legal what is considered the standard in this area today. Bosnia and Herzegovina ratified the Charter on July 12, 2002. which entered into force on November 1, 2002, thereby committing itself to its implementation. It should be emphasized that, according to the Constitution of Bosnia and Herzegovina and the Dayton Peace Agreement, local self-government is under the jurisdiction of the entity. In this sense, the Republic of Srpska has the right to regulate its local self-government and harmonize it with the Charter. The subject of the paper is the analysis of the implementation of the Charter in the Republic of Srpska. According to its key parameters, the paper examines the level or degree of implementation of the Charter in local self-government in the Republic of Srpska. The research employs the comparative legal method as its basic method, along with content analysis, qualitative analysis using binary indicators, and legal synthesis.
Правотворачки извори
Правотворачки извори
(The Law-Making Sources)
- Author(s):Miloš Prica
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:114-133
- No. of Pages:20
- Keywords:Rational interpretation of legal norms and legal principals; Political assessment of expediency; Free will and administrative assessment of expediency;
- Summary/Abstract:In the author’s opinion, a legal order has the following structure: 1) The basic (constituent) entities of a legal order include: a) a legal subject; b) subjective rights; c) a legal duty; d) a legal object (subject-matter); e) a legal act; f) state action; g) legal action; and f) legal facts. All these elements have equal (constitutive) significance in a legal order, and it would be entirely wrong to put them in a hierarchical chart; 2) the subject matter of legal regulation, including legal goods (assets) and legal interests; 3) the law-making sources, including rational interpretation of legal norms and legal principles, political assessment of expediency, free will, and administrative assessment of expediency; 4) the forms of legal regulation, including a) direct dynamic forms: general legal acts, individual legal acts, state actions, and legal actions; b) direct static forms: legal principles, legal norms and legal standards; and c) higher static (legal-science) forms: legal matters, legal situations and legal institutes. Law-making sources reflect the subject-matter of a legal order in the process of the creating and applying the law, determining the causa (rationale) of its action. The functioning of a legal order cannot be precluded by a pyramidal course of creation and application of general legal norms as “formal legal sources”, bearing in mind that the principle of legality in material sense is a dominant principle in all areas of a legal order. Substantive law may also be created outside the institutional order of public authorities, as an activity that does not represent a concretization of legal norms as regulating legal attitudes, in the area of free will and private interest in an absolute sense. On the other hand, the institutional order of public authorities is necessarily broader in relation to substantive (statutory) law, taking into account the political activities of state authorities, which can also be above the law.
Pravna pomoć u upravnim stvarima: stanje i perspektive
Pravna pomoć u upravnim stvarima: stanje i perspektive
(Legal Assistance in Administrative Matters: Current Situation and Perspectives)
- Author(s):Emir Mehmedović, Rijad Delić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Public Administration
- Page Range:134-153
- No. of Pages:20
- Keywords:Legal assistance; Legal assistance in administrative matters; Administrative acts; Service of documents; Obtaining of informations and evidence;
- Summary/Abstract:The principle of legality authorizes every administrative body to carry out only those tasks and duties within its scopes of competence. But administrative bodies sometimes find themselves in a situation where they cannot directly and independently carry out certain procedural actions, and therefor they require assistance from other bodies. These assisting bodies can be either domestic or foreign. The term "legal assistance in administrative matters" refers to the provision of specific administrative actions from one administrative body to another. The provision of legal assistance within national frameworks is primarily regulated by national legislation and the relevant provisions of the administrative procedure laws. This form of legal assistance primarily includes help in gathering evidence and obtaining documents. While legal assistance within national frameworks is relatively clearly regulated, there are significant uncertainties regarding legal assistance involving foreign elements, i.e., legal assistance requested by a foreign administrative body. This type of legal assistance encompasses a much broader and more complex range of actions, from delivering documents abroad to obtaining records or documents in the possession of foreign authorities or persons outside the country to gathering evidence and recognizing and enforcing foreign administrative decisions. The institution of legal assistance in administrative matters is less developed compared too the institution of legal assistance in criminal, civil and commercial matters. However, given the process of globalization and intensified movement of citizens, the issue of providing legal assistance with a foreign element in administrative matters is becoming increasingly important and requires a more serious approach. These processes have significantly influenced the internationalization of legal relationships, including administrative-legal relationships. At the international level, the provision of legal assistance is regulated by the provisions of numerous universal and regional international organizations, as well as bilaterally. Currently, the highest level of regulation of legal assistance in administrative matters has been achieved at the European Union level. , However, this article focuses on the Council of Europe's instruments because they are immediately applicable, unlike other instruments that merely represent a future prospect. Within the Council of Europe, two conventions (the European Convention on the Service Abroad of Documents relating to Administrative Matters and the European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters) regulate some general aspects of legal assistance in administrative matters with a foreign element. Another significant convention is the Joint Convention of the Council of Europe and the Organisation for Economic Co-operation and Development (OECD) - the Convention on Mutual Administrative Assistance in Tax Matters, amended by the Protocol of 2010.
Усмена расправа у управном спору у предметима јавних набавки - "празнина" или не?
Усмена расправа у управном спору у предметима јавних набавки - "празнина" или не?
(Oral Hearing in Administrative Disputes in Public Procurement Cases - "Gap" or Not?)
- Author(s):Sanja Golijanin
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Public Administration
- Page Range:154-167
- No. of Pages:14
- Keywords:Procurement Cases Public procurement; Legal protection; Administrative dispute; Oral argument;
- Summary/Abstract:In the paper, the author analyzes legal protection in public procurement procedures in Bosnia and Herzegovina, with special reference to administrative judicial protection. In this regard, an attempt is made to look at the administrative dispute in public procurement cases from the point of view of (not) holding an oral hearing. The author concludes that the Court of Bosnia and Herzegovina does not hold oral hearings in cases related to public procurement, and tries to determine the reasons for such court action. The relevant legal solutions of individual countries in the region were also presented in order to indicate the possible direction of further improvement of legislation on legal protection in public procurement procedures in Bosnia and Herzegovina.
Савремени изазови јавне управе у Босни и Херцеговини - дигитализација и е-управа
Савремени изазови јавне управе у Босни и Херцеговини - дигитализација и е-управа
(Modern Challenges of Public Administration in Bosnia and Herzegovina - Digitalization and E-Government)
- Author(s):Jelena Starčević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Public Administration, Public Law, ICT Information and Communications Technologies
- Page Range:168-187
- No. of Pages:20
- Keywords:Digitalization; Public administration; E-governance; Electronic signature; Electronic document;
- Summary/Abstract:Bosnia and Herzegovina is currently at a digital crossroads. Torn between the necessity of reform in the processes of joining imposed by both the European Union and the accelerated development of society and economy on the one hand, and the impossibility of reaching political consensus on key issues concerning competences in the field of digitization on the other hand, BiH has been standing still for a long time, looking as the region rapidly catches up with the world. Digitization is no longer just a trend, but a necessity and a necessary prerequisite for a more efficient, transparent and economical public administration that will serve as a modern and expeditious public service for citizens. The COVID 19 pandemic has shown that this is a reality and not just an empty words. However, the European Commission does not give up its intention to raise the digitization of public administration to the level of state institutions in the process of joining BiH, which puts the actually competent entity and cantonal institutions in a particularly unenviable position, at the same time marking them in front of citizens and service users as the main culprits for blocking the process. In this political game, the biggest damage is suffered by the citizens and the economy that cannot use digital services that makes life and business easier for millions of people around the world today. If we add the fact of generally low level of digital literacy of citizens and public administration officials who should be users and provides services via e-government, it is clear that the scale of the challenge of digitalization of public administration in BiH is great. The paper analyzes the existing positive legal framework in this area and performs a comparative analysis of regulations at all levels of government in BiH, pointing out their shortcomings and possible improvements. The paper also identifies obstacles that slow down the digitization process and suggests possible solutions. By examining these key aspects, the paper provides a deeper understanding of the current state of digitization and electronic administration in BiH, and contributes to the debate on the improvement of public services and the modernization of public administration in the country.
Ограничавање аката органа државне управе кроз праксу омбудсмана у правном систему Републике Србије
Ограничавање аката органа државне управе кроз праксу омбудсмана у правном систему Републике Србије
(On Limiting the Impact of the State Administration Acts by Ombudsman in the Legal System of Serbia)
- Author(s):Jelena Milivojević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Public Administration, Public Law
- Page Range:188-197
- No. of Pages:10
- Keywords:Law; Acts; State administration; Ombudsman;
- Summary/Abstract:In this work, the author deals with the issue of the relationship between state administration bodies and independent control bodies. The author will specifically address the authorization of procedures and the legal impact of decisions. The central focus of the work will be on the ombudsman's role as an independent and neutral body and the state administration system. This primarily concerns the binding and non-binding effects of decisions, which can influence and limit the impact of acts passed by administrative bodies. Special attention will be paid to the recommendations by which the ombudsman points out irregularities but also seek corrections in terms of the protection of legal interests.
The Proactive Role of the Institution of the Local Ombudsman in the Protection of Human Rights Against the Systematic Violation by Adopting Illegal Acts of Local Self-Government Bodies
The Proactive Role of the Institution of the Local Ombudsman in the Protection of Human Rights Against the Systematic Violation by Adopting Illegal Acts of Local Self-Government Bodies
(The Proactive Role of the Institution of the Local Ombudsman in the Protection of Human Rights Against the Systematic Violation by Adopting Illegal Acts of Local Self-Government Bodies)
- Author(s):Ivan Petrović
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, Human Rights and Humanitarian Law
- Page Range:198-221
- No. of Pages:24
- Keywords:Local Ombudsman; Law on Misdemeanors; Law on Local Self-Government; General act;Decision; Illegality; Citizen's rights;
- Summary/Abstract:In the paper, the author focuses on the role of the Local Ombudsman, specifically highlighting the illegality of general act norms imposed by of local self-governments mayors. These norms contravene the Law on Local Self-Government when it comes to establishing special professional services and general acts. Additionally, decisions made by local self-government assemblies in relation with penal policy, specifically regarding the prescription of fines, violate the Law on Misdemeanors. In this context, the author highlights the illegality of the executive bodies of local self-government establishing special professional services, despite this being expressly within their jurisdiction. This creates the conflict of interest in the selection and the appointment of managers for these special professional services. The author also highlights the illegitimate imposition of fines, which the misdemeanor courts in the Republic of Serbia use to issue rulings that lack legal force, thereby infringing upon the citizens' guaranteed constitutional rights. In addition, the paper highlights the significance of establishing a local ombudsman to stop such infringements. This will enable local self-government assemblies to eliminate the aforementioned illegalities, preventing future occurrences that could harm citizens' rights and the Republic of Serbia judiciary.
Provođenje testa javnog interesa u primjeni Zakona o slobodi pristupa informacijama u Republici Srpskoj
Provođenje testa javnog interesa u primjeni Zakona o slobodi pristupa informacijama u Republici Srpskoj
(Public Interest Test Implementation of the Law on Freedom of Access to Information in Republic of Srpska)
- Author(s):Budimir Petković, Predrag Raosavljević, Filip Novaković
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Media studies, Human Rights and Humanitarian Law
- Page Range:222-236
- No. of Pages:15
- Keywords:Public interest test; Free access to information; Release of information;
- Summary/Abstract:Free access to information gives every person the right to access information that is under the control of a public authority, while imposing on every public authority the corresponding obligation to publish it. In the event that there are circumstances due to which the authority could exempt certain information from publication, it is obliged to conduct a public interest test, which determines whether the interest of publishing the information or its withholding prevails, since the requested information is in the domain of restrictions of a relative character, where access may or may not be denied. Denying access to information is not justified unless the public authority performs strict three-part test where the burden of proof of the justification of the restriction always falls on the authority in possession or in control of requested information. The aim of this paper is to indicate what exactly the public interest test entails, how it is carried out and what standards it should meet in order to consistently implement the principle according to which information in the possession of public authorities represents the public good. When evaluating the proportionality of interests, key elements that should be considered are whether the requested information indicates any crimes, injustice, abuse of power, negligence in the performance of official duties, non-compliance with legal obligations, unauthorized spending of public funds and danger to the health or safety of the individual, society and the human environment.
Конституционализација права на одмор
Конституционализација права на одмор
(Constitutionalization of the Right to Rest During Work)
- Author(s):Radoje Brković, Borislav Galić, Rajko Raonić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Labour and Social Security Law
- Page Range:237-260
- No. of Pages:24
- Keywords:Employee; Employer; Working hours; Rest during work; Daily rest; Annual leave;
- Summary/Abstract:With the dominant and accelerated development of labor law in the 21st century, employees’ rights and obligations also evolved. One of basic rights today, which is propagated and promoted by many constitutional systems and more detailed labor laws, is the right to rest during work and on the basis of work. The forerunner of the constitutionalization of this right, and its inclusion in constitutional systems around the world, is the Weimar Constitution from 1919, which was a turning point for the conceptualization of many constitutional systems and the inclusion of this right among them. With this right and its constitutionalization, the aim is to ensure a minimum of rights based on work - "dignified work", and to develop this right through legal texts in the most minimal scope, below which no employer can go. In this paper, the authors aim to examine today's fundamental legal framework, derived from the Constitution, the Labor Law and other secondary legal texts. They will define this framework from a theoretical and legal perspective, highlighting its significance and specifics. Therefore, of this paper will provide a theoretical and legal overview of the topic, highlighting its importance from the normative-legal perspective, taking into account the current situation, the definition provided by the "Lex fundamentalis" and the similarities and differences between these definitions in the country and region. The author believes that the importance of work reveals its goal, as evidenced by the fact that the labor law institute's right to rest represents one of the fundamental rights of employees. Despite this, there is a deeply underdeveloped awareness of its importance, which is why it is included in the Constitution of the Republic of Serbia.
Načelo In favorem laboratoris u sistemu radnih odnosa, sa posebnim osvrtom na radno zakonodavstvo u Bosni i Hercegovini
Načelo In favorem laboratoris u sistemu radnih odnosa, sa posebnim osvrtom na radno zakonodavstvo u Bosni i Hercegovini
(The Principle In favorem laboratoris in the Labor Relations System, With the Special Reference to Bosnia and Herzegovina Labor Legislation)
- Author(s):Mehmed Hadžić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Labour and Social Security Law
- Page Range:261-273
- No. of Pages:13
- Keywords:In favorem laboratoris; Hierarchy of legal sources;
- Summary/Abstract:The principle in favorem laboratoris, i.e. the principle of convenience, is inextricably linked to the modern labour relations system in cases when rights at work or in connection with work are regulated in several legal sources. In the labour relations system, sources are applied in such a way that it starts from individual employment contracts, through autonomous general acts of the employer and collective agreements, to labor laws as lex generalis and other lex specialis laws that establish minimum standards of rights at work.This direction of application of sources of labor law is corrected in certain cases by applying the principle in favorem laboratoris. The fundamental purpose of this principle is to protect the worker as an economically weaker party in the employment relationship whenever possible. The principle in favorem laboratoris is applied at the regulation stage when one institute is regulated in multiple sources that have different legal force. The principle is also used by decision-makers in the process of implementation and protecting rights at work and in connection with work in those situations where the facts can be applied to a number of different sources of law. The principle in favorem laboratoris is generally used in the application of substantive law, but the question of the possibility of its use in the application of procedures for the exercise and protection of rights at work and in connection with work remains open.
Судска заштита права из радног односа у Републици Српској
Судска заштита права из радног односа у Републици Српској
(Judicial Protection of Employment Rights in the Republic of Srpska)
- Author(s):Radislav Lale, Aleksandra Jelisić-Brčkalo
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Labour and Social Security Law
- Page Range:274-303
- No. of Pages:30
- Keywords:Employment relationship; Individual labor dispute; Court protection; Labor court;
- Summary/Abstract:This work will conduct a systematic analysis of the positive legal regulation of judicial protection of rights arising from the employment relationship in the Republic of Srpska, which is one of the most significant forms of external protection of the rights of employees. Special attention will be paid to the principles by which the court resolves labor disputes. The issue of apparent independent work or hidden employment, which is evident in the Republic of Srpska, significantly burdens modern labor law. Domestic law does not regulate methods at all, i.e. techniques of legal presumption of the existence of an employment relationship, nor does it know the provisions confirming the principle of factual primacy, which results in "inadequate access by courts and judicial practice", as well as the absence of complete and adequate legal protection of persons who perform various forms of work in an apparent (disguised) employment relationship. As our labor legislation does not inherit a clear and complete definition of the employment relationship, the authors emphasize the need to provide a clear legal definition of this term through future amendments to the labor law regulation, along with the qualification of legal subordination or its most important aspects as a general essential element of the employment relationship. Legal confirmation of the principle of factual primacy can also contribute to the protection of workers who perform apparent independent work, which is why it is recommended to introduce a legal ban on performing work based on civil law contracts, if there are elements of an employment relationship in the relationship between the worker and the client. Furthermore, the authors believe that the establishment of special courts, specializing in labor disputes, would make a significant contribution to their faster and more efficient resolution.
Pravo na prekograničnu zdravstvenu zaštitu
Pravo na prekograničnu zdravstvenu zaštitu
(The Right to Cross-Border Healthcare)
- Author(s):Ivana Grubešić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Health and medicine and law, Labour and Social Security Law
- Page Range:304-329
- No. of Pages:26
- Keywords:Cross-border health care; Health services; Patient's rights; Coordination; Healthcare system;
- Summary/Abstract:The right to healthcare is one of the basic human rights from the corpus of social rights, and the possibility of cross-border healthcare significantly contributes to the freedom of movement of citizens as workers and patients. The subject of the research within the aforementioned topic will be focused on the possibility of exercising cross-border healthcare in the European Union, with reference to the implications the existing system in the EU has for the legislation in Bosnia and Herzegovina. The EU provided a complex system of coordination of national healthcare systems, with the possibility of exercising healthcare when applying the freedom of movement of workers. However, the opinions expressed by the EU Court of Justice in the cases of Kohll, Decker and others pointed out the shortcomings of the existing system, which resulted in the adoption of the Directive 2011/24/EU on cross-border healthcare of patients. In the context of the freedom of movement of health services, the Directive provides the possibility of obtaining healthcare in another member state without prior approval by the insurance carrier in the country of residence, which is of crucial importance for providing health services of appropriate quality in the EU and beyond. In this regard, the research will look at the scope of the ten-year application of the aforementioned Directive within the complex system of healthcare in the EU, as well as its possible implications for the legislation in BiH, considering the process of achieving EU membership.
Унутрашњи сукоби радног законодавства у Босни и Херцеговини
Унутрашњи сукоби радног законодавства у Босни и Херцеговини
(Internal Conflicts of Labor Laws in Bosnia and Herzegovina)
- Author(s):Živorad Rašević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Labour and Social Security Law
- Page Range:330-347
- No. of Pages:18
- Keywords:Conflict of law; Labor relations; Applicable law;
- Summary/Abstract:One of specialties of the Bosnia and Herzegovina legal system is the validity of four labour laws, with different personal, material and territorial scopes, and disparate provisions that lead to internal conflicts of laws. This paper evaluates the severity of this issue and suggests a resolution through the application of conflict-of-laws methods. This involves the determining the applicable law and jurisdiction in inter-entity labor disputes, utilizing positive conflict-of-laws provisions and fostering a more innovative jurisprudence. The result of the research reveals that conflicts of labour laws are not only possible but also frequent, and that there is a large and neglected legal lacuna in conflict-of-laws in this matter. Furthermore, compelling arguments have been found to fill this lacuna with broader and analogous interpretations of the only positive source for resolution of inter-local conflicts of law, which only in Bosnia and Herzegovina survived the transition from the ex-federal state,, i.e. the Law on the Resolution of Conflicts of Law in Status, Family and Inheritance Relations. The analysis of positive legal provisions proved that endeavor is feasible. Finally, we have presented the legislative, judicial and theoretical reasons behind the development of conflict law in Bosnia and Herzegovina. This interdisciplinary legal branch is necessary for systematic regulation of the choice of applicable law in the circumstances of the atypical and complicated vertical division of power in the legal system of Bosnia and Herzegovina.
Брачни и породични статус као забрањени основ дискриминације - општи осврт
Брачни и породични статус као забрањени основ дискриминације - општи осврт
(Marital and Family Status as a Prohibited Grounds of Discrimination - General Review)
- Author(s):Jovana Rajić Ćalić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, Labour and Social Security Law
- Page Range:348-366
- No. of Pages:19
- Keywords:Discrimination; Gender; Illegal questions; Labor law; Gender equality;
- Summary/Abstract:Although the Labor Law prohibits direct and indirect discrimination based on gender, research and statistics show a different position of female compared to male job candidates in the employment process. Different treatment is caused by the reproductive role of women, which consequently leads to discrimination on the basis of marital status, a still legally undefined ground of discrimination. Patriarchal patterns of society's functioning view women as bearers of family duties, which entails discrimination on the basis of family duties, a basis of discrimination that seeks its place on the list of prohibited grounds of discrimination. Different treatment of women based on marital and family status is particularly visible in the employment process, in the form of asking illegal questions about family planning and the number of children. That is why the largest number of reported cases of discrimination in the report of the Commissioner for the Protection of Equality in Serbia is precisely in the employment process, reported by women. Despite the advanced provisions of the Law on Gender Equality, it is not possible to eradicate discrimination against women on these grounds, and the question arises as to how to protect women in the employment relationship, especially in the employment process, and provide them with equal treatment. The author stands from the hypothesis that the positive legal framework is not adequate to provide protection against discrimination to women in the employment process and at work, and that changes should move in the direction of prescribing additional protection mechanisms, such as the possibility of remaining silent on illegal questions and the presence of representatives union with job interviews, which would reduce the possibility of asking such questions and making differences between candidates.
Uloga usklađenosti poslovanja u prevazilaženju pravnih praznina
Uloga usklađenosti poslovanja u prevazilaženju pravnih praznina
(The Role of Business Complience in Overcoming Legal Gaps)
- Author(s):Armina Čunjalo
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Labour and Social Security Law
- Page Range:367-379
- No. of Pages:13
- Keywords:Legal compliance; Compliance; Business law; Legal gaps;
- Summary/Abstract:Globalization and modernization of society simultaneously require the flexibility of law and legal regulations. The foregoing stems from the fact that it is very important that business at the international level be as simple and as safe as possible from a legal point of view.The national legal framework regulates (almost) all legal matters, but difficulties arise in situations where they are not regulated in detail or where they are not regulated in detail skillfully. This can be a problem at the national and also at the international level - for companies that operate outside the borders of their country of origin. Recently, it has been necessary to devise a mechanism by which it will be easier to bridge legal gaps in various spheres, especially in the sphere of business.Thus, the introduction of the concept of "legal compliance" into everyday business is becoming more and more frequent. Legal compliance in business is a mechanism by which policies and procedures, as well as business itself in a practical sense, are harmonized with all laws, by-laws, international regulations that regulate a certain area, which contributes to overcoming legal gaps by relying on several regulations that regulate a certain area.The focus of this paper will be on legal business despite the fact that not all legal relationships and actions are foreseen and defined in advance. Therefore, in the context of legal gaps, the focus shifts from the legal relations of private persons to the legal relations/actions of legal and natural persons in business.For the purpose of paper, examples of legal gaps in domestic legislation and possible consequences which can be minimized or completely avoided by the business compliance mechanism will be presented.In the concluding remarks, the author of the paper will give certain possible solutions that can be achieved through the mechanism of legal compliance and business.
Правни режим заснивања радног односа у институцијама Босне и Херцеговине
Правни режим заснивања радног односа у институцијама Босне и Херцеговине
(Legal Regime for Establishing Employment Relationship in Institutions of Bosnia and Herzegovina)
- Author(s):Jelena Lale, Aida Hadžiahmetović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Labour and Social Security Law
- Page Range:380-399
- No. of Pages:20
- Keywords:Establishment of and employment relationship; Job vacancy announcements; Right to appeal;
- Summary/Abstract:The establishment of an employment relationship has a multifaceted role and significance. Through the establishment of an employment relationship, society ensures the quantity and quality of socially necessary work-employers provide the workforce, while workers provide themselves and their family members with material and social security. Therefore, appropriate legal formalization of the establishment of an employment relationship is necessary, i.e., the establishment of a legal framework. This work will conduct of systematic analysis of the legal framework of the establishment of an employment relationship in the institutions of Bosnia and Herzegovina, one of the most significant labor law institutions, bearing in mind that this institution represents the first and most direct elaboration of the labor law. In relevant sections of this article, attention will be devoted to the process and key phases of establishing an employment relationship for civil servants and other employees, with a special focus on protecting participant in the recruitment process and their right to effective legal remedies. This research work will also address the possibility of extending the employment relationship for civil servants who, in accordance with current legal regulations, have fulfilled the conditions for receiving old-age pension benefits, considering that such cases arise in the institutions of Bosnia and Herzegovina. This practice raises several unresolved questions, especially given that the appropriate legal norms typically stipulate the termination of the employment relationship upon meeting the eligibility criteria for old-age pensions. To address this issue, the authors will provide de lege ferenda suggestions for better and more comprehensive regulatory solutions.
No-Poach Agreements: Between the Restriction of the Right to Work and Anti-Competitive Violations
No-Poach Agreements: Between the Restriction of the Right to Work and Anti-Competitive Violations
(No-Poach Agreements: Between the Restriction of the Right to Work and Anti-Competitive Violations)
- Author(s):Lucaciu George-Doru
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Labour and Social Security Law
- Page Range:400-409
- No. of Pages:10
- Keywords:Labor; No-poach agreement; Competition; Non-discrimination;
- Summary/Abstract:No-pouch agreements represent agreements between companies not to contact, recruit or offer work to the employees of a competing company ( those who work/worked at one of the companies involved). On the one hand, these agreements reduce the competitiveness of the workforce, as employees remain trapped for a long period of time without the possibility of freely choosing another job. This also leads to an infringement of the fundamental right to work, which is regulated and protected at both EU and national level by the provisions of the 2003 Constitution of Romania, republished. On the other hand, these agreements infringe anti-competitive rules, affecting the right of employers to recruit employees that work in similar fields/sectors of activity.Recently, an increased number of investigations organized by different authorities in several Member States are designed to discover and sanction no-pouch and wage-fixing agreements (e.g. in Lithuania, Poland, Hungary, Portugal).In Romania, the Competition Council investigates several companies that operate in the market of production of motor vehicles and/or other related activities (e.g. vehicle components and systems, testing, projecting). If these companies are proven to have violated anti-competitive rules, they risk fines up to 10%of their total turnover. This could be a major risk for them to face financial difficulties and potentially insolvency proceedings. However, the prohibition of non-poach agreements contributes to both increasing competitiveness among employees and improving the competitive business environment.
