Зборник радова "Правне празнине и пуноћа права" Том V
Collection of papers "Legal Gaps and the Completeness of Law" Vol V
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
Summary/Abstract: We present to the scientific public the Proceedings “Legal gaps and the completeness of law”, which is the result of the scientific conference held for the twelfth time on the occasion of the Day of the Faculty of Law. At the conference held in October 2023, 206 authors and co-authors, from three continents and 23 countries (Russia, Greece, China, Italy, Hungary, Spain, Cuba, Mexico, Turkey, Bulgaria, Romania, Georgia, Moldova, Cyprus, the Netherlands, Denmark, Sweden, Serbia, North Macedonia, Croatia, Slovenia, Montenegro and Bosnia and Herzegovina with authors from the Republika Srpska and the Federation of Bosnia and Herzegovina), presented 162 reports in Serbian, Russian, English, Italian, Spanish that is, in their native languages. This was the largest conference held in the field of law in Southeast Europe, as well as one of the largest, perhaps the largest one, in Europe in 2023.
- Print-ISBN-13: 978-99938-57-87-7
- Page Count: 404
- Publication Year: 2024
- Language: English, Serbian, Italian
Relation Between the Mileševa Transcript and the Morača Transcript of the Nomocanon of Saint Sava
Relation Between the Mileševa Transcript and the Morača Transcript of the Nomocanon of Saint Sava
(Relation Between the Mileševa Transcript and the Morača Transcript of the Nomocanon of Saint Sava)
- Author(s):Stanka Stjepanović, Simeon Petković, Mihailo Damjanović
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, History of Law, Canon Law / Church Law
- Page Range:1-23
- No. of Pages:23
- Keywords:Mileševa transcript; Morača transcript; Nomocanon; Saint Sava; Proheiron;
- Summary/Abstract:The Mileševa transcript of the Nomocanon of Saint Sava originated in the XVI century in the Principality of Wallachia and is kept in the National library in Bucharest. This transcript bears witness that the aforementioned Principality and also the Church were being governed by this Nomocanon which was a transcript of the older Mileševa transcript. The Morača transcript of the Nomocanon of Saint Sava is considered to be the most complete and was transcribed in the Morača monastery in 1613, using the Teophile transcription from 1252. Both are written on parchment. The authors analyze the relation between these two transcripts after directly inspecting them and comparing them with analyses of said transcripts, which were conducted in the middle of the XIX and XX centuries by leading researchers of these transcripts, archimandrite N. Dučić and Sergije Viktorovič Troicki. The authors also illustrate this paper by displaying parts of the mentioned transcripts and showing to the wider academic and professional audience their unpublished parts.
Some Aspects of the Formation and Content of Medieval Statutes - Legal Gaps and Legal Fullness
Some Aspects of the Formation and Content of Medieval Statutes - Legal Gaps and Legal Fullness
(Some Aspects of the Formation and Content of Medieval Statutes - Legal Gaps and Legal Fullness)
- Author(s):Željko Bartulović, Ines Matić Matešković
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, History of Law, Roman law
- Page Range:24-40
- No. of Pages:17
- Keywords:Middle Ages; Statutory law; Roman law; Legal gaps; Kvarner Statutes;
- Summary/Abstract:This paper examines certain aspects of the formation and content of medieval statutes, offering a deeper insight into the mechanisms for filling legal gaps. Given that Roman law is one of the most influential legal systems in history, whose legal principles have had a lasting impact on modern legal systems, the first part of the paper provides a critical review of the processes of legislative creation and ways of addressing legal gaps in Roman law, highlighting their innovativeness and flexibility. In the second part of the paper, the authors address the issue of legislative formation in the Middle Ages using the example of the Vinodol Statute, in which the term "lex" refers to written custom, but the enactment of a new law is also referred to as a "new custom" (according to the Krk/Vrbnik Statute). Consequently, in neighboring sources (Kastav, Veprinac, and Mošćenice), the term "lex" is encountered. Such written custom does not fully regulate all legal relationships, and therefore, sources of law included unwritten customs, as well as free interpretation and regulation of specific legal situations, albeit with certain limitations to maintain the legal certainty of the addressees. Contractual or negotiated methods for enacting laws to resolve interpersonal relationships are even recognized in land registers, which are typically considered to be imposed by the will of the feudal lord. Additionally, special attention is given to the issues of enacting the Rijeka Statute and the reception of Roman law as a means of addressing legal gaps, which is also observed in the Mošćenice Statute. This confirms how the influence and methodology of Roman solutions have remained an inspiration for contemporary legal systems and underscores the importance of legal adaptability to address changing societal needs.
Il problema della legittimazione attiva all'uso dell' actio damni iniuriae nel caso della distruzione o del danneggiamento di un bene-oggetto di prestazione
Il problema della legittimazione attiva all'uso dell' actio damni iniuriae nel caso della distruzione o del danneggiamento di un bene-oggetto di prestazione
(The Problem of the Active Legitimation for Use of the Aquilian Lawsuit in the Case of Destruction of Damaging of an Object of Prestation)
- Author(s):Samir Aličić
- Language:Italian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:41-59
- No. of Pages:19
- Keywords:Diritto romano; Obbligazioni; Risarcimento del danno extracontrattuale; Damnum iniuria datum; Legge Aquilia; Legittimazione processuale;
- Summary/Abstract:The subject of research is the question of active legitimation for bringing aquilian lawsuit (actio legis Aquiliae), known also as lawsuit for unjust damage (actio damni iniuriae), in the case of destruction of a thing that used to be object of an obligation in the classical roman law. The situations of destruction of a thing by the creditor and by a third person have been analysed, as well as the problems of concurrence of aquilian lawsuit with actio doli and with contractual lawsuits, and of the legitimation of a detentor who held the thing on the basis of a contract. By exegesis of sources, author is trying to find out in which way the circumstance that the destroyed or damaged thing was object of an obligation influences the active legitimation for the use of aqlilian lawsuit. If the destroyed thing should have been given to the creditor on the basis of an obligation, the aquilian lawsuit depends to the debtor in the quality of the owner of this thing, no matter if it was destroyed by creditor itself or by a third person. The lawsuit does not depend to him if the debtor was late with fulfillment of the obligation, as well as in the case when a third person destroyed the thing with an explicit intention to inflict damage to the creditor. In the last case to the creditor depends actio doli. Further, in the cases when aqulian lawsuit is not being given to debtor, he is being freed from the obligation if the thing destroyed has been non fungible one. The aqulian lawsuit depends to the debtor in the case of damaging of a thing that should have been given to the creditor too, but if the thing is damaged by third person, creditor has right to ask the lawsuit to be ceded to him. If a detentor destroys or damages a thing held on the basis of a contract, creditor can to use either contractual or aquilian lawsuit. If the thing is destroyed by third person, aqulian lawsuit is given to the creditor in the quality of the owner of the thing, while detentor can ask the reimbursement of damages on fruits, as their owner.
Judicial Discretion in Canary Islands In Early Modern Age. The Spanish Criminal Justice in a Border Place
Judicial Discretion in Canary Islands In Early Modern Age. The Spanish Criminal Justice in a Border Place
(Judicial Discretion in Canary Islands In Early Modern Age. The Spanish Criminal Justice in a Border Place)
- Author(s):Belinda Rodríguez Arrocha
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:60-71
- No. of Pages:12
- Keywords:The Canary Islands; Criminal Justice; Early Modern Age; The Spanish Monarchy; Women;
- Summary/Abstract:The main purpose of this paper is to elucidate the impact of judicial discretion in criminal justice during the 17th and 18th centuries, paying special attention to Canary Islands. This Atlantic archipelago was a territory belonging to Spanish Monarchy, and it was an enclave between Africa, Europe and America. For this reason, those islands were considered frontier areas in Early Modern Age and the Contemporary Age. This characteristic manifested itself social reality and daily life. Furthermore, the projection of those factors was notorious in criminal cases. The judicial records pertaining to sexual offences provided illustrative examples of the connection between social problems and certain types of crimes. During this historical era, the judges’ discretion served as a crucial tactic to mitigate the impact of unsystematized royal legislation, while also safeguarding medieval laws that remained in the 18th century. Simultaneously, the judges’ reasoning and the specific circumstances of each case, such as the ages of offender and victim, their social status, or the location of the crime, shaped the judicial decisions without any motivation. In this sense, discretion played a decisive role under the Castilian model of justice. The sources of this essay are the specialized literature, the Early Modern legal and doctrinal works, and the records belonging to the Historical Archive of the Province of Santa Cruz de Tenerife and the Historical Archive of the Canarian Museum.
"Viam muniunto": Sull'onere di mantenimento del terreno d'uso comune a carico dei proprietari contigui: dalle XII tavole a una novella del codice edile russo e alle legislazioni regionali in Russia
"Viam muniunto": Sull'onere di mantenimento del terreno d'uso comune a carico dei proprietari contigui: dalle XII tavole a una novella del codice edile russo e alle legislazioni regionali in Russia
("Viam muniunto": On the Burden of Maintaining Common Land on Adjacent Owners: From the XII Tables to a New Version of the Russian Building Code and Regional Legislation in Russia)
- Author(s):Daniil Tuzov
- Language:Italian
- Subject(s):Law, Constitution, Jurisprudence, History of Law, Roman law
- Page Range:72-77
- No. of Pages:6
- Keywords:Diritto russo; Diritto civile; Diritto romano; Proprietà; Proprietà pubblica; Proprietà privata; Onere di mantenimento della proprietà; Legislazioni locali;
- Summary/Abstract:È ben noto, sia al diritto romano sia agli ordinamenti odierni, il principio secondo cui il proprietario ha l’onere di mantenere i propri beni. Sennonché già le XII Tavole conoscevano una norma che accollava l’obbligo di mantenere le strade rurali pubbliche sui proprietari dei terreni contigui. Eventuali deroghe al suddetto principio sono ammesse anche dal Codice civile russo che ne prevede la possibilità per legge o per contratto. Avvalendosene, molteplici leggi regionali e regolamenti di urbanizzazione comunali mettono non di rado a carico di proprietari privati degli immobili contigui a terreni d’uso comune l’onere di mantenimento di quest’ultimi. Tuttavia, fino a poco tempo fa la Corte Suprema della Federazione Russa seguiva rigorosamente il principio basilare, e appoggiandosi anche alla norma costituzionale sull’esclusiva competenza federale nella legislazione civile, disconosceva ogni validità e il valore giuridico alle dette normative regionali e comunali. La situazione è cambiata però a partire dal 2018, con l’entrata in vigore delle modifiche del Codice edile russo, che hanno previsto l’onere in esame su livello federale. Nell’articolo si discute la fondatezza e l’opportunità di tali modifiche e la recente giurisprudenza che sta consolidandosi in base alle stesse. Si arriva alla conclusione che esse violano palesemente tre fondamentali principi costituzionali e gli dovrebbe perciò disconoscersi la legittimità.
Аграрно питање у Босни и Херцеговини за време аустроугарске управе
Аграрно питање у Босни и Херцеговини за време аустроугарске управе
(Agrarian Question in Bosnia and Herzegovina During the Austrian-Hungarian Administration)
- Author(s):Sanja Savić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Agriculture, History of Law, Economic history, Political history, Social history, 19th Century
- Page Range:78-96
- No. of Pages:19
- Keywords:Bosnia and Herzegovina; Austro-Hungarian rule; The agrarian issue; the Parliament;
- Summary/Abstract:Although unresolved agrarian relations in Bosnia and Herzegovina and the conflicts that broke out on that occasion served Austria-Hungary as an excuse to obtain a mandate for occupation at the Berlin Congress, Article XXV of the Berlin Treaty did not formally obliged the Monarchy to resolve this issue. The occupation administration decided to keep the established agrarian relations and Ottoman agrarian regulations. Because it was between two irreconcilable sides, the Austro-Hungarian administration looked at the agrarian question exclusively from a political standpoint. However, for the interested parties, it represented the most significant economic-social, national, and confessional issue. Therefore, the agrarian question represented a suitable tool for creating intolerance among the population of Bosnia and Herzegovina, which the Austro-Hungarian administration successfully used for its goals. The importance of the agrarian issue was also understood by the political parties formed at the beginning of the 20th century in Bosnia and Herzegovina, and it represented one of the most important issues in their political activity. Petar Kočić particularly stood out in the work on its solution. The agrarian issue came before the Bosnian-Herzegovinian Parliament after the government submitted a draft law on the optional settlement of the agrarian relations. The resolution of the agrarian issue was significant not only for its impact on economic and social relations, but also for the political realignments it sparked. This issue was the biggest stumbling block in the cooperation between Serbs and Muslims. On the other hand, the existence of a significant number of serfs among the Catholics should have united Serbian and Croatian politics in the fight for the compulsory purchase of serfs. Political tactics, however, took politics in Bosnia and Herzegovina in a completely different direction. A Croat-Muslim pact is created, and the Serbian Parliamentary Club disintegrates precisely because of internal contradictions regarding the way in which the agrarian issue will be resolved. Despite the differing positions of the Serbian and Muslim parliamentary groups, the regime managed to form the necessary majority in Parliament during the vote. Aside from Croats and Muslims, the law is also supported by some Serbian deputies. The government believed that with a lower interest rate, it would provide the serf with more favorable conditions for redemption, which would further lead to the creation of a free peasant class that would be able to develop agriculture in the county. Solving the agrarian issue by voluntary redemption showed that the Muslims were guided by their economic calculation. Their relations with Serbs and Croats during parliamentary work were motivated solely by the desire to preserve old privileges.
Legal Culture of the Third Reich
Legal Culture of the Third Reich
(Legal Culture of the Third Reich)
- Author(s):Evgenii Aleksandrovitch Palamarchuk
- Language:English
- Subject(s):Politics / Political Sciences, Law, Constitution, Jurisprudence, History of Law, WW II and following years (1940 - 1949)
- Page Range:97-105
- No. of Pages:9
- Keywords:Nazi regime; Legal culture; Legal nihilism; Deformation; Constitutional theory; Law; Legality; Justice;
- Summary/Abstract:The purpose of the study is to analyze the essential transformation that the phenomenon of legal culture underwent in Germany during the Nazi dictatorship. The author based the article on an interdisciplinary approach, theoretically guided by the theory of totalitarianism, which retains significant potential when addressing Nazi issues. This research is based on the basic principle of historical knowledge: histroricism; objectivity; scientific, and systematic principles. The principle of system analysis played a crucial role in revealing the problem, enabling the identification of its essential aspects. The work employed problem-solving, historical-systematic, and concrete-historical methods. As Nazi rule took hold, a constitutional legal consciousness emerged, leading to the sacrifice of constitutional principles for the regime's political objectives. The deformation of the professional legal culture had extremely negative consequences. It was based on the legal nihilism of civil servants, purposefully implanted among them by the authorities. In the Fuhrer state, Hitler was the main arbiter in all spheres of public and state life. The historical will of the Fuhrer was officially interpreted as an exclusive source of law. The investigation led to the following conclusions: The legal culture of German society in the years in question was characterized by an extreme degree of deformation. Legal nihilism was elevated to the rank of basic values by Nazi leaders. The independence of the judiciary was eliminated. The principles of rule of law and justice have evolved into a tool to meet the regime's political needs.
Oralità e scrittura, limite e innovazione della legge nei diritti del Mediterraneo antico. Alle origini della codificazione
Oralità e scrittura, limite e innovazione della legge nei diritti del Mediterraneo antico. Alle origini della codificazione
(Orality, Writing, Law, Limit and Innovation in the Rights of the Ancient Mediterranean: The Origins of Codification)
- Author(s):Giovanni Brandi Cordasco Salmena
- Language:Italian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:106-159
- No. of Pages:54
- Keywords:Codification; Orality; Writing; Limit; Innovation; Colonization;
- Summary/Abstract:In the heritage of ancestral experiences, the writing of laws among the peoples of the ancient Mediterranean, and then, more specifically starting from the 8th century BC, among the Greeks of colonization, a fundamental innovation, though primarily cultural and political rather than strictly legal, is evident from the Near East to the West in the codification of normative texts. The notion of law being "profoundly enigmatic" marks the beginning of a narrative that ventures beyond a confined reflection solely on the legal sphere. From this perspective, I find it intriguing to observe how such an aspect remains closely connected to contemporary Western legal systems. Indeed, a certain, even rapid, devolution is tethered to the decline of existing codes, which grow increasingly distant from their historical foundations due to a multitude of all-too-familiar factors. For Romanists, such a complex articulation of the legal production system would have appeared, as noted by Giodice Sabbatelli, almost like an echo of the catalog of constituent elements of Roman iura populi, as stated by Gaius in the opening of the Institutions (constant autem iura populi Romani ex legibus, plebiscitis, senatusconsultis, constitutionibus principum, edictis eorum qui ius edicendi habent, responsis prudentium). A potential, although certainly partial, parallel between recent and historical experiences can only facilitate the understanding of certain as-yet-unexplored circumstances. The legal historian, therefore, questions, with the aim of profiting from it, in what sense the terms "code" and "codification" should still be used in the context of the multifaceted current reality compared to the significance of ancient experiences, such as Roman law and even earlier, those of the ancient Mediterranean rights; whether there is an identity of structure and functions between ancient codes, eighteenth-century codes, post-revolutionary codes (nineteenth and twentieth centuries), and codes of the contemporary era. Over the centuries, numerous meanings of "code" have succeeded each other; the term, already used by the Sumerians and Babylonians, except where I will specify, refers to the assembly of written texts (established as a limit on the sovereign), but it says too little about the characteristics of the collected legal material; the Latin derivation, on the other hand, is structurally linked to the precepts of the Twelve Tables.The study of codification movements allows us to observe that when, within legal systems, laws and the complex of doctrinal opinions began to appear as cumbersome and contradictory, several natural movements emerged: firstly, there was the control and selection of the activities of jurists, or interpreters, then, a natural tendency towards the reorganization and consolidation of pre-existing normative materials into coherent groups became evident. Only after these steps did instances of innovative collections emerge, capable of replacing the pre-existing legal framework.That's what happened in Rome, but to some extent also in the ancient Mediterranean civilizations. The Tables of the Law represent the earliest written law of Rome, the ‘embryo’ of a legal system that begins to organize itself on a rational basis, both procedurally and substantively. They would differ from previous collections of norms, most notably the Code of Hammurabi, which instead limited their scope to mere prescriptive enumerations. However, an undeniable common trait is the sense of limitation. The Twelve Tables were established in 451 BC when, under the pressure of the plebeian tribunes who sought to wrest jurisdictional authority from the patricians, the decemviri, all of whom were patricians, were appointed to draft written laws. They were appointed for a term of one year, while all other magistracies remained suspended.Nor can it be dismissed as of little significance that both Livio and other Roman authors attest to the fact that the decemvirs, while not necessarily for the content, certainly for the form, took as a model similar type of laws already written in the Greek world. These included Lycurgus in Sparta (750 BC), Zaleucus in Locri (660 BC), Draco (620 BC), and later Solon (594 BC) in Athens, Charondas in Catania (550 BC), and finally, the laws of Gortyn in Crete in 500 BC. Pomponius and Pliny even transmit the name of a certain Hermodorus of Ephesus, exiled from his homeland, who purportedly acted as an interpreter.
Interpretationes sacerdotali tra ius publicum e ius sacrum: le procedure di nomina dei magistrati repubblicani
Interpretationes sacerdotali tra ius publicum e ius sacrum: le procedure di nomina dei magistrati repubblicani
(Priestly Interpretations Between Ius publicum and Ius sacrum: the Appointment Procedures of Republican Magistrates)
- Author(s):Cristiana M.A. Rinolfi
- Language:Italian
- Subject(s):Law, Constitution, Jurisprudence, Roman law
- Page Range:160-206
- No. of Pages:47
- Keywords:Ius publicum; Sacerdotes populi Romani; Magistratus;
- Summary/Abstract:The paper analyzes some episodes of ancient republican Rome in which the political institutions overcome, through the priestly action, some regulatory deficiencies in the process of crating magistrates. Among the most relevant cases, worthy of mention are the pontifical presidency of the concilia plebis, established after the disastrous fall of the legislative decemvirate, the augury responsum of 426 BC, concerning the dictio dictatoris by the tribuni militum consulari protestate, and that too o 176 BC, around to the competence of the consul suffectus to preside over the comitia consularia. With the help of the priestly support, the irregular situation was overcome, adapting the needs of the present to the juridical tradition. In these circumstances the sacerdotes populi Romani confirm themselves as the co-protagonists of an open and dynamic constitutional system, foreign to the generalizing (and distorting) schematizations of the Staatsrecht.
Komparativna analiza instituta miraza u rimskom pravu i pravu u Bosni i Hercegovini za vrijeme austro-ugarske uprave
Komparativna analiza instituta miraza u rimskom pravu i pravu u Bosni i Hercegovini za vrijeme austro-ugarske uprave
(Comparative Analysis of the Dowry Institute in Roman Law and Law in Bosnia and Herzegovina During the Austro-Hungarian Administration)
- Author(s):Ervina Ibrahimović, Ena Morankić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Comparative Law, Roman law
- Page Range:207-228
- No. of Pages:22
- Keywords:Dowry; Marriage; Inheritance; Tradition; Law;
- Summary/Abstract:The authors in the work will analyze the rules of dowry in Roman law and the law of Bosnia and Herzegovina during the Austro-Hungarian administration. The first part of the thesis will deal with the development of the dowry and its characteristics in Roman law. The institution of the dowry, like other legal rules in Roman law, has been elaborated upon by jurisprudence, but its legal regulation has remained insufficiently explained. The dowry was at the beginning of the development of the Roman state regulated by customary law, to be in time, under the influence of state interventionism, regulated by legal rules. His legal regulation went from considering dowry like husband's property to remaining the full property of wife. The second part of the paper will relate to the regulation of the dowry institute in Bosnia and Herzegovina during the Austro-Hungarian administration. In that period, religious law was applied to the Bosnian population in the regulation of private law relations, depending on the membership of the religious group. The paper will attempt to answer the question of whether the dowry was considered a hereditary part of female heirs, and how the said question was regulated in that context. The Austrian General Civil Code (hereinafter OGZ) was applied in Bosnia and Herzegovina as a subsidiary source of law. The basis of the OGZ was Roman law, and the article will analyze to what extent the Roman law solution was accepted and maintained, especially in view of the fact that the principle of gender equality in the field of marriage law was accepted. The dowry as a legal institution in the modern world is disappearing, but in some places it still has far-reaching social consequences.
Sardegna "un'isola al centro del Mediterraneo". Valore della insularità e sue tradizioni politiche-giuridiche
Sardegna "un'isola al centro del Mediterraneo". Valore della insularità e sue tradizioni politiche-giuridiche
(Sardinia "An Island in the Center of the Mediterranean". The Importance of the Island Character and Political and Legal Tradition)
- Author(s):Vanni Piras
- Language:Italian
- Subject(s):Law, Constitution, Jurisprudence, Maritime Law
- Page Range:229-264
- No. of Pages:36
- Keywords:Institutions; Continents; Mediterranean; Insular character; Central position;
- Summary/Abstract:Among the factors on which the uniqueness of Sardinia history depends ,island character and central position in the Mediterranean seem particularly significant. It is on the island of Sardinia, "in the center of the Mediterranean". Realized historical synthesis of geographical, political and legal special features. Historical events show that the Island of Sardinia it was never an isolated entity in the context of Mediterranean civilization. Against the insular character as almost a "general place" in the sense of disparaging the island as a periphery in relation to the continents,the insular character proved to be a value, a great value indeed for Sardinia, a central island in the Mediterranean, a sea that is only half exceptional to itself (as evidenced, in fact, by its name), located "in the middle of countries", that is, in the middle of three continents: Asia, Africa and Europe. We can say that in the history of Sardinia the physical-environmental components of its island position, rather than as an obstacle with contacts with other territories and peoples, can be seen as a predetermining condition for the way these contacts were assimilated/absorbed to the extent they were compatible, or rejected if they were opposite and in conflict with already existing social and legal structures.
Sovrascrittura della rappresentanza sul mandato. 1. Dal Leviatano al sistema del diritto romano odierno
Sovrascrittura della rappresentanza sul mandato. 1. Dal Leviatano al sistema del diritto romano odierno
(Attribution of the Origin of the Institution of Representation to the Institution of Order (Mandate). From Leviathan to Today's System of Roman Law)
- Author(s):Giovanni Carlo Seazzu
- Language:Italian
- Subject(s):Law, Constitution, Jurisprudence, History and theory of political science, Roman law
- Page Range:265-287
- No. of Pages:23
- Keywords:Mandate; Representation; Hobbes; Constitution; Democracy;
- Summary/Abstract:In modern public and private law, the institutes of mandate and representation are closely related. With more terminological than conceptual variations, the elements with which one tries to 'cube' the link between them, are the obligation and authorization to act on behalf of others. In Italian in legal jargon, a distinction is made (in the Civil Code) between orders (mandates) without representation and with representation, and, with regard to the latter,is distinguished (in the Constitution) free mandate, i.e. without obligation (“unbound”) imperative mandate, i.e. bound, which is not found in current Italian law, because it is not compatible with the "system" of which it is a part. In the German legal dictionary, an order (Auftrag) is only an obligation to act for the principal, while a representation (Vertretung, Repräsentation) is only complete power or power of attorney (Vollmacht) to act on behalf of the person to be represented. Modern doctrine attributes this connection to Roman law.Our assumption is that the connection between the two institutes is the fruit of modernity manipulation preceded by long-term preparation in the Middle Ages and in modern times. Indeed, in our opinion, in Roman law, in the first half of the 19th century, the institution of representation simply did not exist and the institution of mandate includes together and without the possibility of separation the obligation of the principal to act for the principal and the power of attorney to do so. The first sign of the institute from which the representation will develop, on the contrary, it can observed at the end of the 13th century, when King Edward I released the mandates of the Municipalities in the Parliament of England from the obligation to follow the instructions, giving the mandates the power that was called plena potestas. For theoretical development it will be necessary to wait for the appearance of Thomas Hobbes in the 17th century, who constructs Leviathan by elaborating the legal categories of persons and representations.Hobbes's elaboration will be grafted onto Roman law, thus radically reinterpreted, by Carl Friedrich von Savigny. We propose to investigate how Savigny's work was completed - with the decisive help of the positivist Paul Laban - by Bernhard Windscheid, by erasing the Roman concept of mandate.
Утицај одлука државне власти на црквено-правни положај епископа - случај Епископа скадарског Виктора Михаиловића
Утицај одлука државне власти на црквено-правни положај епископа - случај Епископа скадарског Виктора Михаиловића
(The Impact of the State Authority Decisions on Ecclesiastical and Legal Position of the Bishops - the Case of Bishop of Skadar Viktor Mihailović)
- Author(s):Aleksandar M. Vujović
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, Politics and law, Politics and religion
- Page Range:288-301
- No. of Pages:14
- Keywords:Bishop Victor; Serbian Church; Legal position; Exile; Jurisdiction;
- Summary/Abstract:In the paper, we dealt with the life of the Bishop of Skadar, Viktor Mihailović, and the circumstances in which he lived in Skadar as the competent Serbian bishop. From 1914-1933, he managed the Serbian church and vicariate in Shkoder. He organized the life of the Church and the Serbian people, maintaining the ecclesiastical and legal stability in the area of the Skadar vicariate, and also coordinated the exile when himself and 300 Serbian families were forced from Vraka and Skadar. The paper also examines the impact of King Ahmet Zogu's decision on Bishop Victor’s persecution.
Декарбонизација у Босни и Херцеговини - неки друштвени, економски и технолошки аспекти и улога природног гаса
Декарбонизација у Босни и Херцеговини - неки друштвени, економски и технолошки аспекти и улога природног гаса
(Decarbonization in Bosnia and Herzegovina - Some Social, Economic and Technical Aspects With Role of Natural Gas)
- Author(s):Branko Đerić, Goran Ašonja
- Language:Serbian
- Subject(s):Economy, Law, Constitution, Jurisprudence, Energy and Environmental Studies
- Page Range:302-317
- No. of Pages:16
- Keywords:Climate changes; Decarbonization; Energy transition; NECP BiH; Energy mix; Global development risks; Role of natural gas;
- Summary/Abstract:In the light of accepted international obligations and proposed Bosnia and Herzegovina National Energy and Climate Plan (NECP), some social, economic and technical aspects of decarbonization are considered in this paper. The goal of Bosnia and Herzegovina energy sector decarbonization, as an integral part of EU effort to decarbonize economy and society, should be the gradual leaving of fossil fuels and decreasing anthropogenic influence on the environment. The traditional orientation of the energy sector on domestic coal, with its dominant share in the energy mix, makes decarbonization a highly sensitive process, with far-reaching social, political and economic consequences. Western Balkan Countries, including Bosnia and Herzegovina, as Sofia Declaration signatories, have undertaken the obligation to harmonize national energy legislation with EU acquis and to decarbonize their energy sectors by 2050. These accepted obligations call for a radical reduction of coal consumption as well as GHG and particle emissions, opening the opportunity for increased natural gas consumption throughout the entire energy sector transition in Bosnia and Herzegovina. On the road of total fossil fuel replacement, natural gas is accepted as a transition fuel in European Union. Despite this, it appears that Bosnia and Herzegovina will be compelled to maintain coal plants for power production, given their significant reliance on domestic coal. Even for Bosnia and Herzegovina, decarbonization as a political, economic and technological dictate of developed and rich countries is inevitable, the only remaining question is the order, magnitude, and dynamics of moves on this challenging road.
Спровођење поступка државне ревизије
Спровођење поступка државне ревизије
(Implementation of the State Audit Procedure)
- Author(s):Ljubiša Dabić
- Language:Serbian
- Subject(s):Economy, Law, Constitution, Jurisprudence
- Page Range:318-359
- No. of Pages:42
- Keywords:State audit procedure; State audit; Supreme Audit Institution; Subjects of state audit;
- Summary/Abstract:The research is is based on the assumption that the state audit procedure is unique and of a specific kind. On one hand, it differs from general and special types of administrative proceedings, and on the other hand, it differs from court proceedings, as well as from other types, such as disciplinary proceedings. Nevertheless, it contains elements of an administrative process, and in some countries, a judicial process.The aim of the paper is to, through analysis of the process-normative side of the state audit procedure, point out all the complexity, peculiarities, content, and importance of its implementation in practice. The subject of the research is the implementation of the state audit procedure by the supreme audit institution (SAI) according to the subject of the audit, which is regulated by a special national law and by-laws of the SAI, and its course takes place through certain phases and sub-phases: the phase preceding the audit, the phase of initiating the audit procedure, the phase of carrying out the audit, the phase of completing the audit, and the phase after the audit.The research aims to provide a more dependable understanding of the state audit procedure’s type and legal nature, the legal and substantive acts incorporated into it, and the legal strategies audit subjects can employ to protect their legal interests.
Нова перспектива управљања пореском дисциплином обвезника пореза
Нова перспектива управљања пореском дисциплином обвезника пореза
(A New Perspective of Managing Tax Discipline of Taxpayers)
- Author(s):Marina Dimitrijević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Fiscal Politics / Budgeting
- Page Range:360-375
- No. of Pages:16
- Keywords:Taxes; Taxation; Tax discipline; Managing tax discipline; Voluntary tax compliance;
- Summary/Abstract:The enormous role of taxes in modern countries once again actualizes the need for studious consideration of the issue of compliance with tax regulations. Taxation represents a particularly sensitive "point" in the differentiation between the state’s interests and taxpayers’ interest, so it is very important to ensure that the tax structure established by law is implemented without causing major tensions in society. In this sense, rational and coordinated tax relations represent an important support for the construction and implementation of the tax system, and a high level of tax discipline is an indisputable indicator of the success of fiscal policy measures. For any democratically oriented country, it is politically and financially more convenient for its taxpayers to voluntarily comply with tax obligations. Therefore, the new perspective on managing taxpayers tax discipline in contemporary conditions is primarily based on promoting the concept of voluntary tax compliance. To achieve this, tax authorities have a range of measures at their disposal, which they should integrate harmoniously to thwart various types of tax fraud. These forms, given their intensity and consequences, have the potential to inflict significant social harm across various sectors of economic and social life. The public’s tolerant attitude towards various forms of tax indiscipline is a reflection of the general understanding and acceptance of taxes, and it serves as a indicator of the lack or insufficient social engagement in cultivating and nurturing taxpayer loyalty. The full complexity of today, the growing trend of integration and interdependence in the world, the open issues concerning the preservation of fundamental values and ethical principles, the opposition of values and interests, the change of social paradigms, and the increased social challenges also determine the way of observing the management of taxpayers’ tax discipline, with the indication that excessive taxes, in their final consequence, have never enriched the state treasury, but have instead impoverished it, thereby generating enormous dissatisfaction.
Концепт државе благостања у правном систему Босне и Херцеговине
Концепт државе благостања у правном систему Босне и Херцеговине
(The Concept of the Welfare State in the Legal System of Bosnia and Herzegovina)
- Author(s):Predrag Mlinarević, Goran Balotić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:376-388
- No. of Pages:13
- Keywords:Welfare state; Social benefits; Public expenditures; Social services;
- Summary/Abstract:The concept of the welfare state represents the evolution of the economic shaping of of social solidarity phenomenon. The welfare state was created to increase the well-being of the poor, weak or vulnerable and those belonging to neither social category, for whom the state provides public services and social security. Essentially, allocations for the state of social care and welfare represent a measure of institutionalized social empathy and solidarity. This concept affirms the role of economics as a science that must have the potential for good, as argued by Keynes, and which is human-centered in its essence. Furthermore, citizens’ identification with a certain state, beyond patriotic motives, depends on what that state provides for them. A significant demographic problem, exemplified by the high migration propensity, stems from the absence of state concern for people. In addition to familiarization oneself with the basic postulates and concept of the welfare state, the subject of this work will be an analysis of the legal basis of social benefits and other expenditures related to the welfare state in Bosnia and Herzegovina. This analysis will enable conclusions about the presence and level of development of the welfare state concept in Bosnia and Herzegovina.
