Зборник радова "Правне празнине и пуноћа права" Том III
Collection of papers "Legal Gaps and the Completeness of Law" Vol III
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: 978-99938-57-85-3
- Page Count: 486
- Publication Year: 2024
- Language: English, Serbian
Евентуално пасивно супарничарство
Евентуално пасивно супарничарство
(Possible Passive Litis Consortium)
- Author(s):Gordana Stanković
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:1-21
- No. of Pages:21
- Keywords:Litis consortium; Possible passive litis consortium; Statement of claim;
- Summary/Abstract:Possible passive litis consortium, regulated by the rules of litigation procedure to remove disputes from legal relations as a pathological social phenomenon, is designated by different terms in the literature of procedural law. This is because the legislator did not name this procedural notion, which, as a special type of the so-called legal litis consortium differs significantly from other types of litis consortium. A possible passive litis consortium stands out due to its deviation from the general procedural rules applied in a litigation involving litis consortium and the court’s decision-making method. The fragmentary legal regulation of this procedural notion has resulted in numerous legal gaps that have been interpreted differently in court practice, leading to ongoing legal uncertainty.
Заштита личности од клевете
Заштита личности од клевете
(Protection of Personality Against Defamation)
- Author(s):Branko Morait
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Civil Law
- Page Range:22-42
- No. of Pages:21
- Keywords:Defamation; Fine;Damages; Criminal law; Civil law;
- Summary/Abstract:Twenty years ago, defamation was decriminalized in the Republic of Srpska. During that time, a civil lawsuit was successfully prosecuted against a person who defamed another. Defamation was once decriminalized through the lex specialis, the Law on Protection from Defamation. The political will necessitated initiating and completing the legislative procedure in 2023 to return the criminal offense of defamation to the criminal law codification system, the Criminal Code of the Republic of Srpska, be initiated and completed. Violent reactions from journalist associations, non-governmental organizations and representatives of the "international community" failed to stop the criminalization of defamation. The protest campaign achived relative success by reducing defamation fines in relation to the Draft Law on names and amendments to the Criminal Code of the Republic of Srpska. Consequently, the legal consequences of a conviction cannot occur when a fine has been imposed for a criminal offence.
Уговор о поклону - раскид и опозив - правна правила и Преднацрт грађанског законика из 2015
Уговор о поклону - раскид и опозив - правна правила и Преднацрт грађанског законика из 2015
(Gift Agreement - Termination and Revocation- Legal Rules and the Draft of the 2015 Civil Code)
- Author(s):Ilija Babić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:43-61
- No. of Pages:19
- Keywords:Gift agreement; Revocation of the gift agreement; Termination of the gift agreement; The donee's ingratitutde; The donor's impoverishment; Irrevocable gifts;
- Summary/Abstract:The gift agreement is not fully regulated under positive law. Legal rules included in civil codes which was previously in force apply to relationships arising from this agreement, such as revocation and termination. The gift agreement can be unilaterally terminated by agreement or in cases determined by law before its execution. Most often, it is terminated and revoked after execution, having retroactive effect. One cannot revoke or terminate ordinary, infrequent gifts (of small value), prizes, or gifts made for general useful purposes.The gift agreement can be revoked and terminated in case of the donnee's ingratitude (ungratefulness) and the donor's impoverishment (and when the gift has been handed over to the donee), and these are the two issues the paper deals with.If an agreement with an order, i.e. subjected to a condition or qualification (donatio sub modo) is concluded, and the donee does not fulfill that condition even within a subsequent reasonable period, the donor can terminate the contract and demand that the donee return what he received, except when a third party has acquired the right to demand the execution of the order. Then, a valid gift agreement shall be terminated and revoked. Should the contract become invalid due to nullity, the person with a legal interest in it will file a lawsuit to annul it.The author suggests amending and supplementing some concepts in the preliminary draft of the Serbian Civil Code with the necessary provisions.
Може ли пружалац бесплатних услуга на интернету одговарати за штету насталу детранзитима?
Може ли пружалац бесплатних услуга на интернету одговарати за штету насталу детранзитима?
(Can a Provider of Free Services on the Internet be Liable for Damages Caused to Detransitioners?)
- Author(s):Stanka Stjepanović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:62-78
- No. of Pages:17
- Keywords:Sex change; Detransitioners; Liability; Compensation for damages; Judicial protection; Abuse of law;
- Summary/Abstract:Based on the general principles of the Law on Obligations, it could be assumed that the consumer was deliberately misled by the internet service provider, who, for the sake of his own profit, released such an ad that caused damage to the detransit consumer. Therefore, due to the lack of will, the consumer did something that he regretted. Therefore, we propose amending the Law on Obligations to include the following clause: "If the other responsible party is and internet service provides, it will be responsible for compensation for damage to the contractor that occurred as a result of aggressive advertising that allowed that service to be marketed".
Salvage on the Sea (Inland Waters) - From Roman Law to Modern Time
Salvage on the Sea (Inland Waters) - From Roman Law to Modern Time
(Salvage on the Sea (Inland Waters) - From Roman Law to Modern Time)
- Author(s):Dragan Bolanča
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Maritime Law, Roman law
- Page Range:79-90
- No. of Pages:12
- Keywords:Salvage on the sea; Roman law; Maritime law; Law of inland water navigation; Republic of Srpska; Republic of Croatia;
- Summary/Abstract:The law of salvage is a principle of maritime law whereby any person who helps recover another person's ship or cargo in peril at sea is entitled to a reward commensurate with the value of the property salved. The legal concept of an entitlement to reward for saving imperriled marine property can be traced back into antiquity for some 3.000 years. Beginning with the Edicts of Rhodes (Nomos Rhodion Nauticos), through the laws of the Romans (chapters XLV and XLVII of Book XIV of Justinian's Digest) into modern legal system, it has been recognized through the ages that an individual who risk himself and his own own property voluntarily to successfully rescue to property of another from peril at sea should be rewarded by the owner of the property saved. Today, salvage law is relatively international and uniform, because many of the world's maritime nations have adopted the text of the International Convention for the Unification of Certain Rules Relating to Assistance and Salvage at Sea (signed in Brussels in 1910) or International Convention on Salvage (signed in London in 1989) which is based on the same general principles as the 1910 Convention. In this article the law solutions of Republic of Srpska and Republic of Croatia will be compared.
Одступања од начела универзалности у наслеђивању у савременом српском праву
Одступања од начела универзалности у наслеђивању у савременом српском праву
(Derogations from the Principle of Universality in Succession in Serbian Contemporary Legislation)
- Author(s):Nataša Stojanović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:91-110
- No. of Pages:20
- Keywords:Serbian contemporary law; Principle of universality in succession; Principle of speciality in succession;
- Summary/Abstract:The principle of universality in succession as one of the foundations of the institute of succession in Serbian contemporary law implies that the rules of legal inheritance are general, identical and equal for the testator and all heirs, irrespective of: sex, marital or extra-marital status, order of birth, age, religious belief, occupation, property opportunities, etc. This principle also suggests that the same rules apply to everything that constitutes the estate, regardless of the type, purpose, origin, and quality of goods. The Serbian legislator deviates from this supreme principle in the Law on Inheritance, which prescribes special inheritance rules for situations such as the inheritability of the right to request a reduction of a portion of a spouse’s inheritance portion as an heir of the second legal inheritance order; the inheritability of the rights and obligations referred to in a concluded lifelong personal care agreement, following the death of caregiver. By means of different types of legal analysis – legal dogmatic, normative, comparative, and historical – we will try to establish what the real range of the principle of universality in succession is, keeping in mind its limits as set out in other legal texts like the : Law on Business Companies, Law on Cooperatives, and Law on Decorations of the Republic of Serbia.
Правна дејства и функције урбане комасације
Правна дејства и функције урбане комасације
(Legal Effects and Functions of Urban Re-parcellation)
- Author(s):Nina Planojević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:111-126
- No. of Pages:16
- Keywords:Re-parcellation; Urban re-parcellation; Effects of urban re-parcellation; Functions of urban re-parcellation;
- Summary/Abstract:Unlike rural re-parcellation, urban re-parcellation represents a form of new institute that is unknown to most of the countries in our region. Despite it s successful implementation in Europe for over one century, only three countries have introduced urban re-parcellation: Slovenia, Croatia, and Serbia. Since this is a new institute, our primary objective is to make an overview and analysis of Serbian solutions in relation to urban re-parcellation, in order to better inform legal public about key elements, effects and importance of this European institute. The further purpose of our paper is to contribute to popularization of urban re-parcellation, by providing a reminder of its reasons and existence, as well as highlighting the shortcomings in its regulations. – This information could be beneficial for countries planning to introduce re-parcellation.
The Legal Gaps in Regulating the Right of Pledge in the Macedonian Property Law
The Legal Gaps in Regulating the Right of Pledge in the Macedonian Property Law
(The Legal Gaps in Regulating the Right of Pledge in the Macedonian Property Law)
- Author(s):Tina Pržeska, Tea Lalevska
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:127-142
- No. of Pages:16
- Keywords:Property law; Rights in rem; Pledge; Mortgage; Legal gaps;
- Summary/Abstract:The right of pledge in the Macedonian legal system is a right in rem regulated by the basic Law on Ownership and Other Real Rights and several special laws such as the Law on Securing of Claims, the Law on Contract Pledge, the Law on Obligations and Property Relations in Air-traffic and other. Even though numerous laws regulate the right of pledge, there are still important issues that are underregulated or unregulated. This paper aims to analyze the existing regulation regarding the right of pledge in the Macedonian property law and to pinpoint the legal gaps in that regulation that caused problems in acquiring and exercising the right of pledge in legal practice. By analyzing the causes and effects of the existing legal gaps, the paper demonstrates the scope of the problem and suggests possible ways to address and overcome it. As the paper will demonstrate, overcoming the problem of the existing legal gaps in the regulation of the right of pledge will require revising and amending all the laws regulating the right of pledge so that a complete, comprehensive and harmonized regulation can be created.
Породични дом у праву Републике Српске
Породични дом у праву Републике Српске
(Family Home in the Republic of Srpska's Law)
- Author(s):Darko Radić, Dejan Pilipović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:143-172
- No. of Pages:30
- Keywords:Family home; Marital property; Exercising parental rights; The best interest of the child;
- Summary/Abstract:Within the framework of the latest reforms in family law in the Republic of Srpska, among numerous innovations, the concept of the family home stands out, which is, for the first time, part of positive law. This is a specific legal institution that has arisen as a result of the need to provide adequate protection of the interests of individual family members, primarily children, during the existence of a complete family, especially in the case of its dissolution. The family home, as a factor in the homogenization of the family and the fundamental element of its material base, requires special regulation, including deviations from the general rules, of property law, thus protecting individual interests of family members and the family's interests as a whole. On the other hand, upon the termination of marriage or cohabitation of the spouses, the issue of the family home emerges as a matter of vital importance. In this context, it is crucial to priorities the effective protection of the child's best interests, followed by the effective regulation of the relationship between former spouses, which is typically the most valuable aspect of marital property. Comparative law provides for different models of regulating the family home, but there are numerous elements that are common to almost all modern legislation. The subject of this work is the consideration of the institution of the family home in the positive legislation of the Republic of Srpska, its basic characteristics, and the justification for its inclusion in positive law.
Pravna regulativa nasilja u bračnoj/vanbračnoj zajednici u Federaciji Bosne i Hercegovine
Pravna regulativa nasilja u bračnoj/vanbračnoj zajednici u Federaciji Bosne i Hercegovine
(Legal Regulation of Violence in Marital/Extramarital Union in the Federation of Bosnia and Herzegovina)
- Author(s):Boris Krešić, Zlatan Begić
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, Criminal Law, Studies in violence and power
- Page Range:173-194
- No. of Pages:22
- Keywords:Marital union; Extramarital union; Domestic violence; Victim; Abuser;
- Summary/Abstract:In the strict sense of the word, family is the foundation of a healthy person’s development, while in a broad sense it represents the foundation of a society. By its legal definition, marriage implies the union of a woman and a man, and in social relations it denotes love, togetherness, peace, tranquility, and happiness. The appearance of domestic violence creates a serious problem not only for the immediate family or the marital/extramarital partner, but also for the entire society. The extended family, that is, third parties, do not necessarily have to be a part of this situation, as it usually happens between the marital/extramarital partners, and in most cases the problem remains between them.The legal position of one of the marital/extramarital partners who is the victim is a very complex problem that requires a thorough analysis and discussion. Since the marital/extramarital union represents an intimate relationship between partners, the occurrence of violent behavior leaves the victim unprotected and the problem remains within the union itself, which represents an essential problem from a legal point of view.One of the basic problems in protecting the victim of domestic violence is how to prevent the abuser from committing violence, which measure or sanction will result in him not committing or repeating the acts of violence. The analysis of this subject matter would lead to insights and potential solutions aimed at more adequate protection, education, and care for the victims of domestic violence in martial/extramarital union.
Издвајање (ван)брачне тековине у насљедном праву
Издвајање (ван)брачне тековине у насљедном праву
(Separation of (Extra)Marital Property in the Law of Inheritance)
- Author(s):Đorđe Raković
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:195-209
- No. of Pages:15
- Keywords:Separation of the matrimonial assets; Estate; Marital/non-marital assets; Inheritance law;
- Summary/Abstract:Separation of matrimonial or non-marital assets in inheritance law represents, in addition to several other forms, a type of separation from the composition of the legacy (estate), in favor of the spouse or non-marital partner. The paper will also look into the issue of a spouse's or non-marital partner's inheritance rights and matrimonial assets. It will also talk about the content and elements of the institution of separation of (extra)marital assets, since the current inheritance law in BH doesn't have any special rules for this. It will also look at similar institutions, procedural issues, and legal consequences, both in domestic and comparative law, in order to gain a better understanding of the issue and possible solutions.
Pravna zaštita starijih osoba s onesposobljenjem u svjetlu preporuke Komiteta ministara Vijeća Evrope broj R(99)4
Pravna zaštita starijih osoba s onesposobljenjem u svjetlu preporuke Komiteta ministara Vijeća Evrope broj R(99)4
(Legal Protection of Elderly Persons With Disabilities in the Light of the Recommendation of the Committee of Ministers of the Council of Europe Number R(99)4)
- Author(s):Borjana Miković
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, EU-Legislation
- Page Range:210-238
- No. of Pages:29
- Keywords:Recommendation R(99)4;Principles; Disability; Elderly; Legal protection; Protection measures; Dignity; Autonomy;
- Summary/Abstract:The paper analyses the provisions of Recommendation of the Council of Europe number R(99)4 on Principles Concerning the legal Protection of Incapable Adults, which is one of the key international instruments in the field of legal protection, especially for older persons who need help or have been ordered to some of the protection measures, which includes substitute decision-making. In this regard, Recommendation R(99)4 contains important guidelines for the reform of national legislation, the aim which is to guarantee, wherever possible, the rights, integrity, and independence of these persons to greatest extent possible. This procedure dictates that substitute decision-making should be applied only in the case when it is necessary, with the fact that the principles themselves, in addition to protection measures and procedural rules, also refer to the role of the guardian, who is appointed by the competent authority in accordance with the law. On the basis of the above, the indicators obtained from the comparative legal analysis of the principles contained in Recommendation R(99)4 and the corresponding provisions of the Bosnian legislation in the area of guardianship, especially all three family laws which, as the only measure of protection for all adults with disabilities, standardize guardianship, i.e. substitute decision-making are presented in this paper. Their content for the most part shows the inconsistency of the legislation of Bosnia and Herzegovina with the principles of Recommendation R(99)4, especially in the part that refers to the promotion of self-determination and autonomy, as key prerequisites for respecting human dignity, human rights and freedoms of all adults with disabilities who are after the fully or partially deprivation of their legal capacity placed under guardianship.
Попуњавање правних празнина у судском поступку
Попуњавање правних празнина у судском поступку
(Filling In Legal Loopholes in Judicial Proceedings)
- Author(s):Božana Gužvić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:239-250
- No. of Pages:12
- Keywords:Legal loophole; Creative role of the court; Principles of legal order;
- Summary/Abstract:Upon the initiation of the judicial proceedings, an obligation of the court to resolve a dispute comes into existence. The court is obligated to administer the law in dispute resolution. In situations where a legal norm is clear, the court's task is to administer the legal norm to the specific situation. However, situations where the legislative body fails to provide or regulate all the relations with legal norms are possible. That should not come as a surprise because of the great dynamism of social relations that is not possible to standardize comprehensively. The primary function of the court is to resolve disputes between the parties, also in the absence of written legal norms that would regulate a certain disputed relation in a judicial proceeding. Namely, when an issue or situation that is not regulated by existing legal norms (legal loophole) arises in judicial practice, the court is obligated to compensate for the lack of written legal norms because it may not refuse to make decisions under the pretence of the existence of a legal loophole, the vagueness or incompleteness of law. Practically, in such a situation, the court is authorized to act as a legislative body and establish a rule for resolving some legally relevant issue that does not exist in the existing written norms until the legislative body recognizes the existence of the legal loophole using the experience in the judicial practice and removes the legal loophole with their legislative intervention. Otherwise, if the court resolving the dispute concludes that a certain relation is not regulated by a legal norm or that the current facts do not fall under any existing legal norm, it would deny access to justice. Such actions of the court would represent a breach of the provision of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms guaranteeing the right to a fair trial. Of course, when filling in legal loopholes by court decisions, care must be taken not to simultaneously violate the principles on which the legal order is based and to prevent such activity of the court from growing into the self-will of judges through failure to accept the same legal principle when resolving another identical disputed social relation.
The Principle of Autonomy of the Will and the Marriage Contract
The Principle of Autonomy of the Will and the Marriage Contract
(The Principle of Autonomy of the Will and the Marriage Contract)
- Author(s):Bogdana Stjepanović
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:251-270
- No. of Pages:20
- Keywords:Autonomy of will; Freedom of contract; Marriage contract; Relational contract theory;
- Summary/Abstract:Autonomy of the will is a key principle in the contractual arrangement of property relations between spouses. One of the most complex, but also the most important questions that arise with regard to the conclusion of a marriage contract, and in connection with the autonomy of the will of the contracting parties, is the problem of the "dilemma of choice". The „dilemma of choice" consists in the conflict between promoting, on the one hand, women's autonomy and freedom of choice, and on the other hand, protecting women from harmful consequences that would result from the use of autonomy of will in conditions of inequality, i.e. power imbalance.Competent authorities usually assume that the autonomy of the will exists, and it appears as a presumption. This attitude is particularly harmful in terms of the marriage contract, because it can result in economic consequences not only for the "weaker" contracting party, but also for the children and society as a whole. For this reason, it is necessary to review the principle of autonomy of will and adapt it to the peculiarities of the personal relationship of the contracting parties.In this paper, we will examine the application of the principle of autonomy of will to the spouses in the marriage contract, posing a potentially bold yet feasible question and attempt to provide an answer. Namely, is it possible to talk about the autonomy of the will with regard to the spouses who conclude the marriage contract, i.e. one of its manifestos, freedom of contract in the true sense of the word, and can the question of the existence of autonomy of will in this case be viewed in the same way as in regard to the conclusion of legal transactions between persons who are not bound by any previous relationship, or does the validity of a marriage contract need to introduce a new criterion that would enable a fairer outcome?
Obrazovanje djeteta i roditeljska autonomija - neriješena pitanja
Obrazovanje djeteta i roditeljska autonomija - neriješena pitanja
(Public Interest and Autonomy of Family - Unresolved Issues)
- Author(s):Dino Kovačević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:271-283
- No. of Pages:13
- Keywords:Parental responsibility; Parental autonomy; Child education; Public interest; Public authority;
- Summary/Abstract:There are two opposite tendencies in contemporary family law. On the one hand, public authorities interfere with the exercise of parental responsibility, primarily through social welfare services and the court system. On the other hand, there are demands for family autonomy, expressed as the need of family members to free themselves from formal control over their family life. This paper intends to explore the borderline between family decisions on child education and when the best interests of the child regarding education are considered by the public authorities.
Примена норми у случају правне празнине у међународном приватном праву
Примена норми у случају правне празнине у међународном приватном праву
(Application of Norms in Case of Legal Gaps in Private International Law)
- Author(s):Vladimir Čolović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, International Law
- Page Range:284-302
- No. of Pages:19
- Keywords:Private International Law; Legal gap; Foreign element; Collision rule; Qualification
- Summary/Abstract:In Private International Law, legal gaps represent a special problem that can lead to situations where it is impossible to resolve a case with a foreign element, i.e., it is impossible to determine the jurisdiction of a court or other authority. Three category of regulations fall under the preview of private international law: international ones, further subdivided into multilateral and bilateral, and internal. The latter category includes predominantly the legal acts itself. If there is no regulation that addresses a specific case, a legal gap will emerge. The Republic of Serbia's Act on Resolving Conflict of Laws with the Regulations of Other Countries includes a clause that addresses legal gaps by applying the Act's provisions and principles, the home country's legal order's principles, and finally, the principles of private international law. In the paper, the author pays attention to the way this matter is regulated in the above mentioned legal act, but also to the problem of the legal gap in the qualification of the collision rule and in the deviation clause. Additionally, the author examines specific solutions found in comparative law. The author concludes that it is crucial to approach the problem of filling the legal gap in private international law with utmost care, considering the impact such solutions can have on other countries.
The Concept of Originality in Greece and the EU
The Concept of Originality in Greece and the EU
(The Concept of Originality in Greece and the EU)
- Author(s):Irini A. Stamatoudi
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, EU-Legislation
- Page Range:303-330
- No. of Pages:28
- Keywords:Copyright law; Originality; European Union; CJEU case law; Infopaq;
- Summary/Abstract:Greece is an EU member state. It has ratified all important international conventions on copyright and related rights, and it is part of the civil law tradition. The Copyright Act 2121/1993 provides a high level of protection for authors and related rights holders. The only basic requirement for a work to receive copyright protection is originality. The Greek standard of originality was for a work to be "statistically unique" meaning that no other author, under similar circumstances and with the same aim in mind, would reasonable reach the same creative outcome. Following the recent developments in CJEU case law, particularly the Infopaq case, EU member states are no longer able to apply their own criteria for originality, as the EU criterion now takes precedence. According to it, a work is original if it is its author's own intellectual creation, meaning that the author should have made free and creative choices and stamped the work with his personal touch.
Заштита жигом заштићених ознака у метаверзуму - предмет Hermès International v. Mason Rothschild
Заштита жигом заштићених ознака у метаверзуму - предмет Hermès International v. Mason Rothschild
(The Protection of Trademarks in Metaverse - case Hermès International v. Mason Rothschild)
- Author(s):Jelena Ćeranić Perišić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:331-344
- No. of Pages:14
- Keywords:Metaverse; Trademark; Non-fungible tokens; Trademark infringement; MetaBirkin;
- Summary/Abstract:Different forms of communication in the metaverse raised several legal issues related to intellectual property, primarily in the context of trademark use. The case that caused the most attention regarding the use of the trademark to tokenized goods in the metaverse concerned the trademark of the French manufacturer of the bags and fashion accessories – Hermès. The company Hermès owns the trademark Birkin for the leather women’s handbag, symbol of luxury and prestige. Artist Mason Rotschild used the MetaBirkin trademark for non-fungible tokens (NFT) representing virtual bags, very similar to Hermès Birkin bag. Rotschild’s artwork was sold for tens of thousands of US dollars. Afterwards he created a new collection of MetaBirkin NFTs. The company Hermès filed a lawsuit in New York court against artist Rotschild for producing NFT MetaBirkin, each of which was a digital image of Hermès Birkin bag as if it was made of fur. The key legal issue was whether NFTs that contained an unauthorized use of a protected trademark for physical goods can constitute a trademark infringement. In March 2023, New York court ruled that a collection of digital images of fur-covered handbags attached to an NFT called MetaBirkin was likely to confuse consumers with a luxury fashion brand, Hermès Birkin bag. The jurors also found that Rothschild's NFTs were not protected speech. For the first time, this ruling established the legal nature of NFTs, comparing them more to commodities, subject to strict trademark laws that prevent copycats, than to artworks that enjoy protection for appropriation.
Međunarodni privatnopravni aspekti talaq-a u pravu Europske unije i Bosne i Hercegovine
Međunarodni privatnopravni aspekti talaq-a u pravu Europske unije i Bosne i Hercegovine
(Private International Law Aspects of Talaq in the Law of the European Union and Bosnia and Herzegovina)
- Author(s):Anita Duraković, Jasmina Alihodžić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, EU-Legislation
- Page Range:345-368
- No. of Pages:24
- Keywords:Talaq; Regulation 2019/1111; Regulation Rome III; EU Court decisions; Bosnia and Herzegovina; Legal order;
- Summary/Abstract:Talaq, an institute of Islamic law, as a method of private dissolution of marriage, has cussed some legal difficulties in the EU member states. From the standpoint of private international and procedural law. particularly problematic is the issue of admitting talaq in the states that do recognize such a method of dissolving a marriage. Given that neither the EU member state (with the exception of one part of Greece)nor Bosnia and Herzegovina admit talaq, the question of recognizing talaq uttered in another state inevitably arises. Furthermore, the application of foreign law that admits this method of dissolving a marriage in cross-border cases is also contentious. Two EU legal instruments currently govern the issue of marriage dissolution: Regulation 2019/1111 and Regulation Rome III. In the past, courts in EU member states grappled with this issue in the Sahyouni case. Unfortunately, the EU Court did not seize the opportunity to contribute to a consistent approach to this matter within the EU. Given that Bosnia and Herzegovina is a candidate for EU membership, it is crucial that it recognizes the legal solutions for talaq established by EU sources of law and case law, as presented in the paper's final section.
Art, Originality and Creativity in the Intellectual Property Law
Art, Originality and Creativity in the Intellectual Property Law
(Art, Originality and Creativity in the Intellectual Property Law)
- Author(s):Luis-Javier Capote-Pérez
- Language:English
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:369-374
- No. of Pages:6
- Keywords:Spanish Law; Spanish Constitution; Intellectual Property Law; Cultural property; Art;
- Summary/Abstract:In this paper, we will explore the notions of art, originality and creativity, which serve as the foundation for the protection of each author's property rights when their ideas become tangible. This reflection of extra-legal concept is, always but especially now, an important point of discussion in the emergency of AI and the possibility of recognizing it some kind of legal capacity.
Filling Legal Gaps in North Macedonian Private International Law
Filling Legal Gaps in North Macedonian Private International Law
(Filling Legal Gaps in North Macedonian Private International Law)
- Author(s):Mirjana Ristovska
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, International Law
- Page Range:375-391
- No. of Pages:17
- Keywords:Legal gaps; Private international law; Legal category; Classification;
- Summary/Abstract:Legal gaps present intriguing topics for legal theorists, including situations where the legislator has failed to prescribe regulations for specific legal relationships. These gaps can be categorized as axiological, normative, or technical in nature. Within the private international law, the potential for legal gaps arises when a particular legal relationship, legal institution, or legal issue cannot be subsumed under an existing legal category, as an integral part of a certain conflict norm. Consequently, these legal gaps pose a distinct challenge to judges, who are tasked with rectifying the gaps in individual cases. This paper will primarily conduct a normative analysis of the provisions governing the resolution of legal gaps in private international law within the Republic of Slovenia, the Republic of Croatia, the Republic of Montenegro, and the Republic of North Macedonia. The primary focus will be on the North Macedonian legislation and its application in the judiciary.The objectives of this paper are twofold: firstly, to provide a comparative examination оf the legal provisions found in the private international law acts of the aforementioned states, and secondly, to identify the methodologies prescribed by positive law for filling the legal gaps.
Relation Between Bankruptcy and Civil Proceedings in Terms of Subject Matter and Territorial Jurisdiction: the Need for Establishment of Commercial Courts in FBiH
Relation Between Bankruptcy and Civil Proceedings in Terms of Subject Matter and Territorial Jurisdiction: the Need for Establishment of Commercial Courts in FBiH
(Relation Between Bankruptcy and Civil Proceedings in Terms of Subject Matter and Territorial Jurisdiction: the Need for Establishment of Commercial Courts in FBiH)
- Author(s):Viktorija Haubrich, Marija Vidić, Mirjana Kevo
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, Law on Economics, Commercial Law
- Page Range:392-425
- No. of Pages:34
- Keywords:Court with subject matter jurisdiction for bankruptcy proceedings; Court with territorial jurisdiction for bankruptcy proceedings; Exclusive territorial jurisdiction in civil proceedings;
- Summary/Abstract:A bankruptcy proceeding is a special type of civil court proceeding and is conducted by the court which has subject matter and territorial jurisdiction in the area where the registered office of a legal entity or the residence of an individual debtor is located. In this paper, the authors explore the relationship between bankruptcy proceeding and civil proceeding regarding the determination of subject matter jurisdiction and territorial jurisdiction for bankruptcy cases, as well as the attraction of civil proceedings regarding territorial jurisdiction. The paper focuses on the analysis of legal regulations concerning subject matter jurisdiction, general delegation, and comparison with the aim of prescribing de lege ferenda regulations for the establishment of specialized commercial courts for commercial cases and bankruptcy proceedings in the Federation of Bosnia and Herzegovina.
Солидарна одговорност - "conditio sine qua non" постојања привредних субјеката и тржишне економије
Солидарна одговорност - "conditio sine qua non" постојања привредних субјеката и тржишне економије
(Joint and Several Liability - "Conditio sine qua non" of the Existence of Business Entities and the Market Economy)
- Author(s):Damjan Danilović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics
- Page Range:426-443
- No. of Pages:18
- Keywords:Joint and several liability; Status changes; Contractual relations; Securities; Legal certainty;
- Summary/Abstract:In this paper, the author examines the concept of joint and several liability within the context of legal relationships that business entities frequently engage in. Some of them are mandatory in nature, while others are based on a voluntary basis. In this framework, joint and several liability towards creditors is considered from several aspects. The law of commercial companies encompasses instances of joint and several liability during status changes, the liability of individual company members, and the lifting of the corporate veil, among other aspects. From the point of view of business law, joint liability is established in various contracts. Ultimately, the establishment of joint and several liability relations in the case of securities enhances the standing of creditors. The author demonstrates that without this institution, the market economy, and consequently the economic entities, would not be able to function at all. In other scenarios, the absence of joint responsibility would cause the economic system to deteriorate to a primitive state, lacking the essential legal assurance.
Правни положај општег превозиоца робе (Common carrier) у општем праву (Common law)
Правни положај општег превозиоца робе (Common carrier) у општем праву (Common law)
(Legal Position of the Common Carrier in Anglo-Saxon Law)
- Author(s):Đorđe Perišić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:444-460
- No. of Pages:17
- Keywords:Common carrier; Public service; Strict liability; Unfair contract terms;
- Summary/Abstract:A common carrier is one that offers public transportation to an unspecific number of people. It is about a specific legal concept that appeared around 1700 and, without a doubt, has a prominent place in Anglo-Saxon traffic law. It derived its status from common law, which was later supplemented by the carriage contract and the law's provisions. Despite the fact that court decisions and legal regulations have altered this concept over the past three centuries to the point where it's nearly nonexistent today, it's important to examine its features and boundaries. The paper explained how the status of common carrier was acquired and what were the legal consequences of that status. Emphasis was placed on the features of his liability for damage to the goods he was transporting and the obligation to accept transportation. Carrier responsibilities in modern traffic law do not deviate much from characteristics of the liability of the public carrier, so inspiration for some future legal solutions can be found in the common carrier concept.
On the Pre-Contractual Information Duty in the Field of Electronic Commerce: a Comparative Analysis of EU and Chinese Law
On the Pre-Contractual Information Duty in the Field of Electronic Commerce: a Comparative Analysis of EU and Chinese Law
(On the Pre-Contractual Information Duty in the Field of Electronic Commerce: a Comparative Analysis of EU and Chinese Law)
- Author(s):Zhibo Luan
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, ICT Information and Communications Technologies, Commercial Law
- Page Range:461-470
- No. of Pages:10
- Keywords:Pre-contractual information duty; Directive on electronic commerce of EU; Electronic Commerce Law of China; Electronic commerce;
- Summary/Abstract:The pre-contractual information duty of electronic commerce contract is quite distinctively stipulated in different legal systems. In the European Union, according to the Directive 2000/31/EC, the Directive on Electronic Commerce, a large amount of necessary information of three levels is required to be published or provided to the receivers of information society services. In the process of incorporating of this Directive, Italy, France and Germany followed distinct paths and even designed distinct rules. Apart from the rules related to the Directive, the civil codes of member states stipulate a general pre-contractual information duty towards the conclusion of every single contract, while the consumer protection laws, or the codes of consumption, regulate this duty at the scene of contracting with consumers. On the contrary, in China, the Electronic Commerce Law dispersed the normative group of that duty in several sections but in less detail. Furthermore, the Civil Code and the Consumer Protection Law have established a number of universal rules. The administrative measures and judicial decisions act as an indispensable supplement, completing the normative system about that duty and reflecting a rather unique thought of regulation in the field of e-commerce.