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Collection of papers "Law and Values" (The scientific meeting was held at the Law Faculty of the University of East Sarajevo, on October 26th 2018. in Pale) Cover Image

Збoрник радова "Право и вриједности" (Научни скуп одржан је на Правном факултету Универзитета у Источном Сарајеву, 26. октобра 2018. год. на Палама)
Collection of papers "Law and Values" (The scientific meeting was held at the Law Faculty of the University of East Sarajevo, on October 26th 2018. in Pale)

Contributor(s): Radomir V. Lukić (Editor)
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву

  • Print-ISBN-13: 987-99938-57-46-4
  • Page Count: 586
  • Publication Year: 2019
  • Language: Serbian
A Few Reflections about Practice of States Regarding Succession to Multilateral Treaties

A Few Reflections about Practice of States Regarding Succession to Multilateral Treaties
(A Few Reflections about Practice of States Regarding Succession to Multilateral Treaties)

  • Author(s):Milenko Kreća
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Politics and law
  • Page Range:1-11
  • No. of Pages:11
  • Keywords:Multilateral treaties; Succession; State practice; Jus cogens; Vienna Convention on Succession of States in respect to treaties
  • Summary/Abstract:The author discusses the practice of successor States in respect of multilateral treaties in the frame of dichotomy ipso iure /consented succession. He comes to the conclusion that the practice favours consented succession to multilateral treaties. Such practice seems reasonable for a number of reasons. First of all, if we stick to the difference between the predecessor State and the successor State in terms of legal personality, it is unclear how the successor State, a new State, may be considered bound by the will of the predecessor State, being another State in legal terms. Such an understanding obliterates the difference between the predecessor State and the successor State as distinct legal personalities and relies on the fiction that, in respect of treaties, their wills consur. Further, a rule on automatic succession runs counter to the fundamental principle of equality of States to the detriment of successor States. Successor States, by applying this rule, would be deprived of the rights which, otherwise, States have when expressing consent to be bound, such as, for example, making a reservation in respect of part of a treaty or accepting to be bound by a treaty under certain conditions. Finally, automatic succession rests on, or is substantially close to, the idea of universal succession in civil law which is incompatible with an essentially consensual order, in which the main legal persons are States as equal and sovereign political entities. Substantive provisions of general international treaties adopted in the interests of the international community as a whole being part of corpus iurus cogentis, have a special position. These provisions are ab initio et suo vigore binding on any successor State regardless of the law of succession in respect of treaties.
Лојзиду и Банковић: супротна тумачења члана 1 Европске конвенције о људским правима и универзалне вредности

Лојзиду и Банковић: супротна тумачења члана 1 Европске конвенције о људским правима и универзалне вредности
(Loizidou and Bankovic: Contrary Interpretations of Article 1 of the European Convention on Human Rights and Universal Values)

  • Author(s):Rodoljub Etinski
  • Language:Serbian
  • Subject(s):International Law, Human Rights and Humanitarian Law, EU-Legislation
  • Page Range:12-30
  • No. of Pages:19
  • Keywords:Interpretation; European Convention on Human Rights; Jurisdiction;
  • Summary/Abstract:The European Court of Human Rights (hereinafter: the ECtHR or the Court) has applied the same rules on interpretation of international treaties, as they are codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties to interpretation of Article 1 of the European Convention on Human Rights (herein- after: the Convention) in the cases Loizidou 1995 and Bankovic 2001. The Court interpreted Article 1 to answer the same question about extraterritorial effects of the Convention in both cases. Article 1 reads: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” The focus was on the words “within their jurisdiction”. By applying the same rules on interpretation on the same provision of the Convention, the ECtHR gave two different answers to the same question. The rules on interpretation of international treaties do not exclude a possibility of contrary outcomes of the process of interpretation. They leave enough broad discretion to an interpreter to choose one among possible interpretations. Choosing among available means of interpretation and attributing different significance to some of them, an interpreter chooses one among possible interpretation. Having emphasized importance of the purpose and object of the Convention and particular nature of the Convention in the Loizidou case, the Court found that “the concept of ‘jurisdiction’ under Article 1 is not restricted to the national territory of the High Contracting Parties” (para. 62). Shifting emphasize to the preparatory work, the comparative practice and the particular function of Article 1 in the Convention in the Bankovic case, the Court came to the opposite interpretation.The different choice of the European Court of Human Rights in the two cases is considered in the light of universal values. The preamble of the Universal Declaration on Human Rights and its Article 28 can and should constitute the framework of relevant values. The framework requires a broad interpretation of Article 1 of the European Convention on Human Rights.
Врсте овлашћења Европске уније

Врсте овлашћења Европске уније
(Types of Powers of the European Union)

  • Author(s):Zoran Radivojević
  • Language:Serbian
  • Subject(s):EU-Legislation
  • Page Range:31-46
  • No. of Pages:16
  • Keywords:European Union; Lisbon Treaty; Principle of conferral; Exclusive powers; Non-exclusive powrs; Shared powers; Complementary powers; Coordination powers; Common foreign and security policy;
  • Summary/Abstract:The founding treaties of the European Communities, and later of the European Union, did not attempt to establish any special classification of their powers. Nevertheless, as early as the 1970s, the EC institutions, primarily the Court of Justice, began to make a distinction between exclusive and competing powers. Since the adoption of the Single European Act, founding treaties started envisaging powers which could not be classified in either of the two categories. In the meantime, the number of these types of powers increased with the establishment of the European Union by the Treaty of Maastricht and the subsequent amendments to the founding treaties made in Amsterdam and Nice.The founding fathers of the Lisbon Treaty relied on the achievements of previous EU practice. An analysis of the relevant articles of this treaty, and above all the Treaty on the Functioning of the European Union, points to two basic categories of powers: exclusive and non-exclusive powers. Non-exclusive powers include shared and complementary powers. The latter includes EU’s powers to support, coordinate and supplement Member State activities, as well as the coordination powers that the EU enjoys in the area of economic policy, employment and social policy, regardless of the fact that they are specified in different articles. As a result of the earlier pillar structure, in the Lisbon Treaty, the powers in the area of common foreign and security policy are set out as a separate category.
Опорезивање зарада страних физичких лица упућених на рад у Србију

Опорезивање зарада страних физичких лица упућених на рад у Србију
(Taxation of Wages of Foreign Natural Persons Assigned to Work in Serbia)

  • Author(s):Gordana Ilić-Popov
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Fiscal Politics / Budgeting
  • Page Range:47-61
  • No. of Pages:15
  • Keywords:Employment; Foreign natural persons; Permanent establishment; Secondment; Salary; Tax Treaty; Wages tax;
  • Summary/Abstract:In this paper the author analyzes the collision rules in the international tax law regulating the taxation of salaries of the foreign natural persons employed by a foreign employer seconded to perform work for the needs of a Serbian legal entity at the territory of Serbia. Which state is entitled to raise a tax claim – a country of source (Serbia) and / or a country of residence of that worker depends on whether the conditions of the tax treaty provided for the labor relations are met. The author points out some dilemmas about these conditions. Assigned workers often have the right to reimburse certain costs incurred during their stay in Serbia (e.g., accommodation, transportation, food, etc.), thus the issue of the tax treatment of such other income is also raised. Tax implications of the situation when seconded worker is a resident of a state with which Serbia does not have a tax treaty are also analyzed. The main aim of this research is to determine from the tax aspects, on one hand, secondment of foreign workers and the international labor force hiring, on the other hand. As well, from the aspect of taxation of salaries and other benefits, the author focused on the situation when foreign natural per- sons are sent to work in a permanent establishment of a non-resident legal entity located at the territory of Serbia.
Устав и вредносни поредак - извор и уставносудска интерпретација

Устав и вредносни поредак - извор и уставносудска интерпретација
(The Constitution and the System of Values: a Source of Law and Constitutional Interpretation)

  • Author(s):Irena Pejić
  • Language:Serbian
  • Subject(s):Constitutional Law
  • Page Range:62-76
  • No. of Pages:15
  • Keywords:Constituent power; Constitutional interpretation; Constitutional Court; System of values; Fundamental constitutional principles;
  • Summary/Abstract:The Constitution is not only the major source of positive law but also the cornerstone of the value system resting on the basic principles of liberal representative democracy, human rights’ guarantees, and the rule of law. However, the constituent power decision about the elements of the value system embodied in the Constitution is not final, nor is it finished by the formal act of adopting the constitutional document as the fundamental and supreme general legal act, because ample issues related to the envisaged constitutional values arise from the elaboration, implementation and interpretation of the basic constitutional principles. In the context of considering the value system, the Constitution is the foundation for developing value-driven conceptions and value judgments, and citizens’ perceptions and understanding of values enshrined in the Constitution.This paper is an attempt to shed light on the correlations between three distinctive aspects of constitutional framework: the system of values – the constituent power – the constitutional court. Firstly, we consider the conditions governing the constituent power decision to design a constitution and establish a constitutional value system, and underscore the role of non-legal factors that contribute to shaping these values and have a significant effect on the interpretative evolution of the fundamental constitutional principles. The designing of the initial constitutional document is only a normative framework for developing the fundamental values of a new legal system. Therefore, these two dimensions (the constitutional document and the constitutional values) could not be considered separately because they are cor- related and mutually complementary. Despite this fact that the fundamental principles of the constitutional state are envisaged in all constitutional documents adopted at the end of the 20th century, it certainly does not mean that the citizens in those states have the same value judgments about their importance. In addition to the constitutional legitimacy, it is important to consider the constitutional interpretation by the constitutional court and its importance in preserving and developing the constitutional values.
Sadržaj i značaj vrijednosno-teleološkog aspekta prava

Sadržaj i značaj vrijednosno-teleološkog aspekta prava
(The Content and Significance of the Value-Teleological Aspect of the Law)

  • Author(s):Mirjana Nadaždin-Defterdarević
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Philosophy of Law
  • Page Range:77-92
  • No. of Pages:16
  • Keywords:Criterion of justice; Legal value; Evaluation procedure in law; Purpose and significance of valuation right;
  • Summary/Abstract:The value estimate as the basis of purpose is the assumption for the overall human activity. In law as well, the purpose of legal actions (as well as the legal norms governing them) justifies the legal objectives that legal entities value as achieving values.Legal rules regulate people’s conscious behavior guided by values.The attitudes to values, which manifest themselves as principles, specific value judgements or objectives, are the necessary content of the legal experience.Law, in the light of its value-teleological content, especially since the content of the value-teleological consciousness in the legal experience is not unique but is composed of more political-legal ideologies, ruling or not, that exist either in relative harmony or in conflict of varying intensity.The valuation in law is a gradual and relatively formalized process of simultaneous application of given and a creation of new axiological content in which the value attitude of higher actors represent a forced foundation, but also a very abstract framework for the free valuation of lower actors.This property of law confronts us with a whole range of questions: Who are the actors who are legitimisated to determine the value principles in law, which is the criterion of justice by which the choice of values is law, what are the values inherent to law, is the modus for valuation in law defined, and, in the end, what is the role and significance of the value for law?The research deals with the issue of content and importance of the value-teleological aspect of law and in its realization, relying on the application of normative and axiological method, and it comes to the conclusion that law is substantially defined by its value-teleological aspect.It is only with complete awareness of the content, importance and meth- od of evaluation in law that we have the opportunity to visualize and under- stand the content and the flow of legal experience in all its complexity.
Правни домашај преамбуле Устава у уставном систему Босне и Херцеговине

Правни домашај преамбуле Устава у уставном систему Босне и Херцеговине
(The Legal Scope of the Preamble of the Constitution in the Constitutional System of Bosnia and Herzegovina)

  • Author(s):Darko Simović
  • Language:Serbian
  • Subject(s):Constitutional Law
  • Page Range:93-109
  • No. of Pages:17
  • Keywords:Constitution; Preamble; Constitutional Court; Judical review of law;Bosna and Hercegovina;Republic of Srpska;
  • Summary/Abstract:The preamble of the constitution is one of the most neglected legal phenomenon. For a long time, in accordance with the traditional doctrine of constitutional law, there was a dominant unquestionable belief that the preamble was a ceremonious introduction to the text and that its only significance is a political declaration. However, taking into consideration that there is an increasing number of examples in comparative law that point to its legal relevance, there is growing interest in the preamble of the constitution. Henceforth, in the first part of the text the author discusses the most relevant standpoints on the legal nature of the preamble, as well as the most illustrative examples from the judiciary in which the legal relevance of the preamble of the constitution was affirmed. In the second part of the text the author discusses the decision of the Constitutional Court of Bosnia and Herzegovina whereby in the preamble of the Constitution of Bosnia and Herzegovina the legally binding power is recognized. In addition to a critical analysis of the standpoints of the Constitutional Court, there is also a discussion of the differing views, seeing as the decision was not unanimous.
Spor pune jurisprudencije u upravno-sudskom postupku-pravilo ili izuzetak?

Spor pune jurisprudencije u upravno-sudskom postupku-pravilo ili izuzetak?
(The Dispute of Full Jurisdiction in the Administrative-Judical Procedure - the Rule or the Exception?)

  • Author(s):Borče Davitkovski, Elena Davitkovska
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:110-124
  • No. of Pages:15
  • Keywords:Administrative dispute; Administrative judicary; Full jurisdiction dispute; Oral hearing; Factual state;
  • Summary/Abstract:One particularly important topic when it comes to the interests of individuals and legal persons, as well as public authorities which deal with administrative matters and the Administrative Courts, is the construction of the administrative-judicial protection against the concrete administrative acts. Given the fact that the administrative dispute is the last instance in which Administrative Courts decide on formal and material legality of individual acts, the parties expect to be provided with the effective judicial protection. Namely, the parties expect the Administrative Court to issue a final decision which the competent authority will execute within 30 days.However, these expectations are not always met in the practice. There are cases when the competent authority decides to make a decision that does not comply with the instructions stated in the judgment. Thus, this paper focuses on the dilemma whether the parties’ (individuals’ and legal persons’) legal security is sufficiently protected in the cases where the Administrative Court only reaches a judgment for annulation, i.e. in the cases which are referred to as legality disputes; or, it is perhaps better for the parties if the Administrative Court decides in disputes of full jurisdiction more often. The latter type of dispute is the one where the Administrative Court does not merely set aside the individual act ex tunc, but it also resolves the administrative matter with its own decision (which replaces the act fully). There are pro and contra arguments for both approaches. Nevertheless, the European principles are set out in such a way that the judgments in disputes of full jurisdiction, which are based on a previously conducted oral hearing (where the Court will establish the factual state), become the rule, not the exception .On the basis of the above, it can be seen that in the paper we have used the comparative, the historical, and the normative methods. All this points to the necessary need for amendments and supplements to the Law on Administrative Dispute in the Republic of Macedonia with a view to more detailed regulation of the oral debate and the dispute of full jurisdiction.
Специфични случајеви утврђивања избегличког статуса

Специфични случајеви утврђивања избегличког статуса
(Specific Cases of Refugee Status Determination)

  • Author(s):Nebojša Raičević
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, International Law, Human Rights and Humanitarian Law, Military policy, EU-Legislation, Asylum, Refugees, Migration as Policy-fields
  • Page Range:125-143
  • No. of Pages:19
  • Keywords:Convention Relating to the Status of Refugees; Refugee status;Refugee sur place;Armed conflict;Military service evasion;
  • Summary/Abstract:Convention Relating to the Status of Refugees sets out in Art. 1A(2) a refugee definition and it applies to all persons wishing to obtain a refugee status. There are some situations in determining refugee status that are specific to other cases. One such situation is related to refugee sur place. Refugee sur place are persons who voluntarily left their own country, but which, because of some subsequent events, have a well-founded fear that in the case of their return to the homeland, they will be subjected to persecution there. The cause of this fear can be objective changes in the country of origin, such as the coming of the dictatorial regime to the power. Besides, the fear of persecution can also be caused by the actions of the individuals during their stay abroad. A second specific situation regards to persons fleeing from the country of origin due to international or non-international armed conflicts that are being conducted in that country. The Convention on the Status of Refugees does not contain special provisions for persons leaving the country of origin due to armed conflict, which means that they can only obtain refugee status if they prove well-founded fear of persecution for any of the five reasons mentioned in Art. 1A of this Convention. General danger of an armed conflict is not enough to qualify for refugee status because this danger is the same for the entire population in a given area. A person from a war-affected state may obtain refugee status only if the danger to which he or she is exposed is result of one of the grounds referred to in Art. 1A(2) of the Convention (race, religion, nationality, membership of a particular social group or political opinion). Finally, it is also specific to determine the refugee status of persons who fled the country of origin due to the evasion of military service. In principle, military service evasion per se is not enough to apply for refugee protection. A person who avoids military service can obtain refugee status only if he proves that he: a) refuse to participate in armed conflict condemned by the international community; b) was subject to discrimination in the performing military service; c) could not realize conscientious objection to military service; оr, d) avoided military service because of violation of fundamental human rights that can be treated as persecution.
Људска права и слободе као основне вредности демократског друштва

Људска права и слободе као основне вредности демократског друштва
(Human Rights and Freedoms as the Fundamental Values of Democratic Society)

  • Author(s):Maja Nastić
  • Language:Serbian
  • Subject(s):Constitutional Law, Human Rights and Humanitarian Law
  • Page Range:144-164
  • No. of Pages:21
  • Keywords:Human rights; Constitution; Value; Democratic society;
  • Summary/Abstract:Starting from the fact that human rights are fundamental values of each constitution of the democratic state, the focal point of the paper is their importance for the whole legal order. Human rights as the fundamental values of democratic society are directly related to the principle of the rule of law. Therefore, if human rights are not guaranteed and protected in a state, one can not talk about a society based on the rule of law.The paper points to the multidimensional nature of human rights; they are regarded as subjective rights, then as a basic element of an objective order, but also they contain the most important values of contemporary society and democratic organization.After the Second World Word, with the trend of internationalization of constitutional law, human rights outgrew national borders. This created international human rights law, which reflected common values, while constitutional rights have remained in the function of achieving values in national framework.The Serbian Constitution devotes considerable attention to the human rights issues. It is emphasized that provisions on human and minority rights should be interpreted to the benefit of promoting values of a democratic society, pursuant to valid international standards in human and minority rights, as well as the practice of international institutions which supervise their implementation. The constitutional guarantees of human and minority rights have the purpose of preserving human dignity and exercising full freedom and equality of each individual in a just, open and democratic society based on the principle of the rule of law. The valuable content of human rights, which the Constitution has set out, its final form gets into the jurisprudence of the Constitutional Court of Serbia.
Изборни депозит и демократски избори

Изборни депозит и демократски избори
(Election Deposit and Democratic Elections)

  • Author(s):Goran Marković
  • Language:Serbian
  • Subject(s):Human Rights and Humanitarian Law, Electoral systems
  • Page Range:165-186
  • No. of Pages:22
  • Keywords:Election deposit;Elections;Political subjects;Test of proportionality;European Court of Human Rights;
  • Summary/Abstract:The author explores the nature and significance of the election deposit, which is one of the conditions which the political subjects have to fulfill in order to participate in the elections. The main dilemma is if the election deposit is legitimate, having in mind the aim which has to be realized, namely the prevention of the frivolous candidates participation in the elections.In this work, the author analyzes legal solutions in different states as well, concluding that the election deposit is not universally accepted measure. Even when it is accepted, it is coupled with some other conditions for participation in the elections. The author also analyzes the practices of the European Court on Human Rights as well as of the national courts, which are different, since some courts consider the election deposit is a legitimate and rational measure, while the others negate its constitutionality.The author concludes that the election deposit is not a legitimate measure since it causes unequal position of the political subjects, preventing or worsening participation in the elections of the small and new founded political parties, or independent candidates. This measure has discriminatory character since its aim can be achieved with another, less restrictive measure, such as the collection of the voters’ signatures.
Ефикасност система управноправне заштите у Републици Македонији

Ефикасност система управноправне заштите у Републици Македонији
(The Efficiency of the System of the Administrative Legal Protection in the Republic of Macedonia)

  • Author(s):Iskra Akimovska-Maletić, Dragan Gocevski
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Public Administration, Public Law
  • Page Range:187-205
  • No. of Pages:19
  • Keywords:System of administrative legal protection;Efficiency;Public sector;Republic of Macedonia;
  • Summary/Abstract:The authors evaluate direct as well as indirect influence of the factors of the efficiency of the system of administrative legal protection in the Republic of Macedonia. The legal and institutional frameworks of the public institutions which provide administrative legal protection have been analyzed: the autonomous state organs which decide in the second instance of the administrative procedure, the Administrative Court, as well as the Higher Administrative Court.The independent variables are the factors of internal efficiency of the institutions involved: the number of employees in the institution’s services, the number of decision-makers (members of the commission or judges), the number of newly formed cases, the number of cases resolved in one year and the number of unresolved cases in one year.The working hypothesis of the work is that institutional efficiency achieved by adequate human resources and internal work allocation (independent variables) affects the overall system efficiency (of all institutions providing legal assistance in administrative cases), if the communication channels between institutions are well established, and ICT systems are effectively applied (intervention variables).The research questions are: (1) whether independent variables affect the efficiency of institutions equally and consistently independent of the form of the organization; (2) whether the presence of prescribed deadlines or quotas differentially affects the institutional effectiveness and quality of decisions (intervening variables); and (3) whether systemic predictability and stability decline with frequent changes in the legal framework, due to the time required and the (human and material) resources of institutions applying the regulations concerned to adapt to legal changes.
Забрана злостављања на раду у законодавству Републике Српске

Забрана злостављања на раду у законодавству Републике Српске
(Prohibition of Mobbing in the Legislation of the Republic of Srpska)

  • Author(s):Radislav Lale
  • Language:Serbian
  • Subject(s):Human Rights and Humanitarian Law, Labor relations
  • Page Range:206-237
  • No. of Pages:32
  • Keywords:Dignity at work;Discrimination;Harassment at work;Horizontal mobbing;Vertical mobbing;
  • Summary/Abstract:In the labour legislation of the Republic of Srpska (as well as FBiH and BD BiH legislation) there is no lex specialis that directly and comprehensively regulates the issue of abuse at work. In legal terms, however, abuse at work can be viewed from the aspect of constitutional, civil, criminal and legal norms of our positive law. Such fragmentation in the legal regulation of mobbing is insufficient and incomplete for expressing the unlawfulness and dimensions of this social phenomenon and does not provide adequate protection for victims of abuse at work. Considering the fact that the positive labour legislation of the Republic of Srpska in relation to abuse at work does not provide adequate protection to victims of abuse, the author concludes that the issue of abuse at work in domestic law is necessary to be regulated by a special regulation, modeled on the law of the Republic of Serbia, in order to create the conditions necessary for establishing a healthy and safe working environment.
Правна регулатива јавног дуга у Босни и Херцеговини и европске вриједности

Правна регулатива јавног дуга у Босни и Херцеговини и европске вриједности
(Legislation on Public Debt in Bosnia and Herzegovina and the European Values)

  • Author(s):Miroljub Krunić
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Public Finances
  • Page Range:238-254
  • No. of Pages:17
  • Keywords:Public debt;External debt;State aid;Economic growth;Single market;Rule of law;
  • Summary/Abstract:Bosnia and Herzegovina signed the Stabilization and Association Agreement with the European Union and its members on 16 June 2008, thereby assuming the obligation to establish the rule of law as one of the key objectives, as well as agreeing to a six-year transition period.Within the domain of the system of regulations that allow sovereign lending, this entailed a complete adaptation to the EU acquis communautaire, and the establishment of a mechanism of full public debt management. A particular challenge for the country was the issuance of sovereign guarantees for undertaken obligations, including a state aid guarantee, which necessarily should be compatible with the internal and single market. This was to promote economic and social progress in a balanced and sustainable way, and to remove barriers that kept the market division within the country and its isolation from the markets of the countries of the community.The current state of the legislation regarding external and internal debt as well as its application in Bosnia and Herzegovina point to significant deviations from the desired goals and endanger the sustainability of the country’s economic growth.
Нематеријалне вриједности и облигационо право

Нематеријалне вриједности и облигационо право
(Non-pecuniary Values and the Law of Obligations)

  • Author(s):Branko Morait
  • Language:Serbian
  • Subject(s):Social Sciences, Law, Constitution, Jurisprudence
  • Page Range:257-276
  • No. of Pages:20
  • Keywords:Human values;Fairness;Functionality;Individual rights;Non-pecuniary damage;Harmonization of case law;
  • Summary/Abstract:The abstract reviews the concept of non-pecuniary values by which the law of obligation recognizes protection and realistic possibilities of their material validation. There are two approaches prevailing today: the traditional one, also known as the subjective concept of non-pecuniary damages, which finds its basis for the damager’s responsibility in the sufferings of the injured party, and the new, objective concept of non-pecuniary dam- age, where the basis for damager’s responsibility is seen in violations of the protected individual rights. The problem lies in a fair determination of the amount of monetary compensations for non-material damage in case of violations of non-pecuniary values.
Načelo saslušanja stranaka u parničnom postupku

Načelo saslušanja stranaka u parničnom postupku
(The Adversarial principle in Civil Litigation)

  • Author(s):Arsen Janevski, Milka Rakočević
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Civil Law
  • Page Range:277-291
  • No. of Pages:15
  • Keywords:Hearing of the parties;Adversarial principle;Procedural equality;Civil litigation;
  • Summary/Abstract:The article elaborates the concept and meaning of the principle of hearing the parties in the contemporary civil litigation, in the procedural theory also known as the adversarial principle. As one of the basic postulates of the civil litigation, the adversarial principle stands for a principle that is of exceptional importance for providing quality legal protection, due to the fact that its use pursues overriding goal – providing procedural equality of the parties in the procedure.The article deals with theoretical analysis of the essence of this basic principle. The focus of interest is set on its concept, meaning, function and goals that are being realized with its presence in the contemporary procedural systems.
Stvarna prava na brodu (usporedba hrvatskog i bosansko-hercegovačkog plovidbenog zakonodavstva)

Stvarna prava na brodu (usporedba hrvatskog i bosansko-hercegovačkog plovidbenog zakonodavstva)
(The Law of Property on Ship (the Comparison among the Navigational Legislation of Croatia and Bosnia and Herzegovina))

  • Author(s):Dragan Bolanča
  • Language:Serbian
  • Subject(s):Maritime Law
  • Page Range:292-306
  • No. of Pages:15
  • Keywords:Republic of Croatia; Republic of Bosnia and Herzegovina; Republic ofSrpska; Ship hypotheque; Mortgage; Maritime liens;
  • Summary/Abstract:This paper represents an analysis of the law of property on ship (the institute of ship hypotheque and maritime liens). In this context, the author points out Croatian Maritime Code (2004) and The Maritime and Inland Navigation Act of Bosnia and Herzegovina (1992). In conclusion the specific differences of mentioned law solutions are enacted.
Начело савесности и поштења у неким уговорним односима наследног и породичног права

Начело савесности и поштења у неким уговорним односима наследног и породичног права
(The Principle of the Conscientiousness and Honesty in Some Contractual Relations in the Inheritance and Family LAw)

  • Author(s):Slobodan Panov, Miloš Stanković
  • Language:Serbian
  • Subject(s):Civil Law
  • Page Range:307-328
  • No. of Pages:22
  • Keywords:Moral;The principle of conscientiousness and honesty;Blatant injustice;Martial Law;Parental Law;Marriage contract;Lifetime support contract;Contractual inheritance;
  • Summary/Abstract:The authors analyze the principle of conscientiousness and honesty, as one of two fundamental principles of civil law, which is also reflected in the specific contractual relations of the Inheritance and Family Law, which is the focus of this research. Considering the fact that the principle of conscientiousness and honesty is based on the value of morality, which is not only the basis of this principle, but also the basis of permissible and valid contractual relations and counterbalance the principle of the autonomy of the will, the authors carry out a three-step analysis.The first part of the paper defines the principle of conscientiousness and honesty in abstracto, but also in concreto, in the sphere of Inheritance and Family Law, and then explains how moral values are conditiones sine qua non for the existence and application of this principle. The second part of the paper analyzes a specific contract for life support from case law, while the third part gives a scientific, theoretical overview of how this principle is manifested, inter alia, in the field of Marital and Parental Law.The authors conclude that one of the potential ways of overcoming the possibility of misuse of the principles of conscientiousness and honesty could be the introduction of the institute of contractual inheritance in the legal systems of states in the territory of the former Yugoslavia. Through this institute not only that the considered contractual relations of the Inheritance and Family Law are summarized and shaped in the relation of harmony, but it also achieves a fine balance against the competitive principle of the autonomy of the will.
Најбољи интерес детета у породичном и наследном праву

Најбољи интерес детета у породичном и наследном праву
(The Best Interest of the Child in the Family and Inheritance Law)

  • Author(s):Miloš Stanković, Slobodan Panov
  • Language:Serbian
  • Subject(s):Civil Law
  • Page Range:329-360
  • No. of Pages:32
  • Keywords:The best interest of the child;Nomotehnics;Legal inheritance;reduction of the hereditary part of the spouse up to two times;Change of the legal nature of the right to necessary part;
  • Summary/Abstract:The Serbian legal circle and its (modern) star: the principle of the best interest of the child. This principle is, prima facie, illsuited for the objection. Yet everything is in words because the word is “the logos which God breathes into substances in order to reach the fullness of God’s meaning”: the best interest of the child, in prima facie analysis, is a principle that has implicit absoluteness, a principle that is an axiom of nobility, a principle of the inevitable, monistic dialectic. However, the truth is not a value which for the covenant has a spiritual laziness manifested in “easy” knowledge at a “first glance”. The truth, scientific and in life, requires all sacrifice, the truth is in spiritual union with martyrion – witnessing the sacrifice and with painstaking knowledge of the concept, meaning, meandering, locating in the Pantheon of (all godly) legal values or the Parthenon (morally indisputable, virgin, innocent values and practices), degree of application, oscillation of the relation between universal and endemic.In the Serbian legal circle, the principle of the best interests of the child is the “voluntary” import with suspicious meaning and concretization. The initial suspicion of the principle of the best interest of the child is in the illusion of originality, that is, the cherished/designed illusion of the novum. Essentially, the best interest of the child has the power of natural law. It is an implicitly non-verbalized, not just rule, but also a contemporary experience, not only of legal entities, but of all other entities. It is a condition of life in the present and a condition of a comfortable future. Just as the law of the Earth’s weight tends to exclude democratic decision-making, especially established talents with chronically rusty results that have greatly empowered the modern family – as the Hilandar books say.We have written that Isidora Sekulić said that salvation was in isohymena (central line), in the panorama of cultural traditions and philosophy of the whole world. Milan Kašanin calls it the tradition of the Serbian spiritual synthetism, and Momčilo Nastasijević strives for a native melody (“As human as flower is above, so much root is below national ...”), and speaks of the danger “to reduce the whole globe to several emission springs, and all the rest of the world is haunted by the eternal passivity of receiving. Something creepy is absurd.”The principle of the best interest of the child in this paper is the thoughtful motive for the analysis of some institutions in Family Law and Heredi- tary Law (oscillation of the legal nature of the necessary part, deprivation of the right to the necessary part, reduction of the hereditary part of the spouse in the first hereditary order, conditions for the execution of the decision on inheritance when child heir, making an inheritance statement, specifics of reconstruction of the will ...).
Има ли места реформи законског наслеђивања у праву Републике Србије?

Има ли места реформи законског наслеђивања у праву Републике Србије?
(Is There Any Room for the Reform of Intestate Succession in Serbian Law?)

  • Author(s):Nataša Stojanović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:361-382
  • No. of Pages:22
  • Keywords:Intestate succession;Blood relatives;Spouse;Cohabitee;Inheritance Fund;
  • Summary/Abstract:The author’s attention is focused on certain solutions in the domain of in- testate succession in Serbian law, with special reference to relevant rules from legislative praxis of contemporary legal systems within European legal space. This research has been conducted with an aim to find argumented answers to the following questions: Are domestic rules, dedicated to the line of intestate succession, adapted to what happens in reality most commonly? Are the solutions that standardize intestate succession specified and precise enough to prevent different actions of courts in identical disputed situations? To what extent are domestic regulations in the domain of intestate succession close in their contents and aims to relevant regulations in European legal systems?For the purpose of this paper, the following methods are used: legal-dogmatic, normative-legal, comparative-legal, and historical-legal methods. Starting from a long-established Roman law regula that the application of law is the aim and the use thereof, the author in her paper proposes a reduction of the circle of blood relatives that might be invited to inherit, up to and including the third line of intestate succession, along with the full application of the right of representation and the establishment, as in Swedish law, an Inheritance Fund. The author advocates for strict adherence to the principle of fairness and recognition the spouse’s right, as the heir of the first line of intestate succession, to demand the increase of the legitime due to lack of necessary funds for life. The author, instead of an imprecise and undefined provision, contained in the Serbian Law on Inheritance, on the spouse’s legitime reduction, as the heir of the second line of intestate succession, suggests, by reference to Hungarian law, a solution about the spouse’s right to get the testator’s property, which they had acquired from their blood relatives by the way of gift or inheritance, to usufruct and to establish the right of ownership on the remaining property of the deceased. Whereby, the protection of extended family must also be implemented consistently in regard to the heirs of the third line of intestate succession. By reference to Russian, Czech, and Slovak laws, the author advocates for respecting the fact of support provided by the testator, as well as for recognizing the right to inherit to a cohabitee in creating a line of intestate succession. In the author’s opinion, the differences that exist in standardizing a line of intestate succession in the states within the European legal space would not facilitate the harmonization of inheritance-law regulations, but they might help in regulating individual situations in domestic law.
Osvrt na Zakon o liječenju neplodnosti biomedicinski potpomognutom oplodnjom Federacije Bosne i Hercegovine

Osvrt na Zakon o liječenju neplodnosti biomedicinski potpomognutom oplodnjom Federacije Bosne i Hercegovine
(Review of the Law on the Treatment of Infertility with Biomedically Assisted Fertilization of the Federation of Bosnia and Herzegovina)

  • Author(s):Maja Čolaković, Marko Bevanda
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Health and medicine and law
  • Page Range:383-399
  • No. of Pages:17
  • Keywords:Patient;Reproductive health;Progeny;Human reproduction;
  • Summary/Abstract:Medically assisted fertilization has been a topic of great interest during the last decades both from the medical and the legal point of view, largely owing to the great successes in the field of reproductive medicine. An at- tempt to legally standardize it in certain countries provokes a heated debate within the wider public, since it does not only affect the interests of individuals but also the interests of the entire community.Until recently, in Bosnia and Herzegovina, there was no special regulation on medically assisted fertilization, but it was treated only within family laws in both Entities and the Brčko District of Bosnia and Herzegovina, in provisions regulating the issue of parenting of a child conceived by medically assisted fertilization. Apart from this, at the entity and Brčko District level, respectively the cantons in the Federation of Bosnia and Herzegovina, the issue of financing the costs of the procedures of medically assisted fertilization has been regulated in a sporadic and mutually incompatible manner, which places patients in Bosnia and Herzegovina who wish to undergo these procedures in an unequal position. In June 2018, the Parliament of the Federation of Bosnia and Herzegovina adopted the Law on the Treatment of Infertility with Biomedically Assisted Fertilization, thus ending the multi-year process of adopting this extremely important piece of legislation in the field of healthcare and bringing Bosnia and Herzegovina closer to the countries in the region that have regulated this issue in its entirety.The provisions of the above Law are presented and analyzed in this pa- per. In addition, a comparative review with the provisions of the same laws of the countries of the region (Serbia, Croatia, Slovenia, Macedonia and Montenegro) and the European Union regulations in this area is presented to determine the advantages and disadvantages of the newly adopted legal solutions and determine the degree of its compatibility with the acquis of the European Union.
Reforma Uredbe Bruxelles IIa

Reforma Uredbe Bruxelles IIa
(Reform of the Brussels IIa Regulation)

  • Author(s):Anita Duraković
  • Language:Serbian
  • Subject(s):Civil Law, EU-Legislation
  • Page Range:400-421
  • No. of Pages:22
  • Keywords:Reform;Brussels IIa Regulation;Matrimonial cases;Parental responsability cases;
  • Summary/Abstract:The Brussels IIa Regulation, which came into force on 1 March 2005, established uniform rules on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and cases related to parental responsibility in international situations. In accordance with Art. 65. of the Regulation on 15 April 2014 the European Commission submitted a Report stating that the Brussels IIa Regulation is a well-functioning instrument, which implementation has shown certain shortcomings that needed to be eliminated. Therefore, on 30 June 2016, the European Commission presented the Proposal for the Reform of the Brussels II Regulation, which stated that cases related to parental responsibility caused certain problems and needed to be addressed urgently, whereas cases related to matrimonial matters show only a small number of problems and pledges to maintain the status quo situation. The paper will discuss the proposed new regulation – six major shortcomings in cases related to parental responsibility have been pointed out. Besides that, the need for certain changes in matrimonial matters as well as in relation to the scope of application of the Brussels IIa Regulation will be point out. We intend to inform the public with the legislative activities of the European Union, both already adopted and proposed legal instruments, considering the obligation of Bosnia and Herzegovina to harmonize existing legislation with those in the European Union under the Stabilization and Association Agreement.
Стицање без основа

Стицање без основа
(Unjust Enrichment)

  • Author(s):Milica Panić
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:422-438
  • No. of Pages:17
  • Keywords:Enrichment;Impoverishment;Condition;Conscientiousness;
  • Summary/Abstract:In this paper we discuss some general questions relating to the unjust enrichment for which different terms are used in theory, such as: ungrounded enrichment, legal ungrounded enrichment, acquisition without legal basis, unjustified enrichment. According to Art. 210 of the Law on Obligations, the unjust enrichment means the transfer of some part of the property of a per- son in any way into the property of another person, while this transition has no legal basis in any legal transaction or law. In this case, the acquirer will be obliged to return it, and when it is not possible, he/she will be obliged to compensate for the value of the achieved benefits.We analyze the solutions from the draft of the Civil Code of Serbia, the Draft Law on Obligations of the Federation of Bosnia and Herzegovina/ Republika Srpska, as well as the solutions from the Law on Obligations of the former Yugoslav Republics. We pay special attention to the solutions of the court practice.
Способност уговарања код уговора о поклону

Способност уговарања код уговора о поклону
(Ability to Conclude a Gift Contract)

  • Author(s):Tijana Baćović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Civil Law
  • Page Range:439-455
  • No. of Pages:17
  • Keywords:Gift;Contract;Ability;
  • Summary/Abstract:The gift contract is characterized by a number of specifics that set it apart not only from other charity contracts but also from all other contractual obligations. These specifics are also evident when it comes to the conditions for its conclusion. When it comes to the ability of the contracting parties, this contract is subject to special rules, since this contract cannot be subject to the regime of other contractual obligations in terms of the ability of the recipient. The ability of the parties to the gift contract is not uniformly regulated. In this paper, a number of questions will be raised regarding the ability to conclude a gift contract. The positive-law method will be applied in order to investigate in detail the legal solutions in national legislation,while the comparative method will identify similarities and differences in the regulation of the same problem in different lega systems.
Кажњавање само на основу закона (из члана 7 Европске конвенције за заштиту људских права и основних слобода) у пракси Европског суда за људска права и Уставног суда Босне и Херцеговине

Кажњавање само на основу закона (из члана 7 Европске конвенције за заштиту људских права и основних слобода) у пракси Европског суда за људска права и Уставног суда Босне и Херцеговине
(Punishment Solely on the Basis of Law(Under Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms)in the Case-law of the European Court for Human Rights and the Constitutional Court of Bosnia and Herzegovina)

  • Author(s):Miodrag N. Simović, Marina M. Simović
  • Language:Serbian
  • Subject(s):Human Rights and Humanitarian Law, EU-Legislation
  • Page Range:459-505
  • No. of Pages:47
  • Keywords:Constitution of Bosnia and Herzegovina;The European Convention for the Protection of Human Rights and Fundamental Freedoms;The Constitutional Court of Bosnia and Herzegovina;The European Court of Human Rights
  • Summary/Abstract:Guarantees set out in Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which is an essential element of the rule of law, has a prominent place in the system of protection under this Convention, as emphasized by the fact that it cannot be derogated under Article 15, not even in war times or other public extraordinary situations endangering the life of the nation. It should be interpreted and applied, as follows from its aim and purpose, in a way to provide efficient protection mechanisms against arbitrary prosecution, convictions and punishment.Article 7 of the Convention is not limited to prohibition of retroactive application of criminal law to the detriment of the accused. Generally ob- served, it also includes the principle that only the law may define a criminal offense and prescribe a punishment (nullum crimen, nulla poena sine lege). Even though it prohibits widening of the scope of existing criminal offenses to behaviors that have not been criminal offences before, it also prescribes a principle that criminal law should not be interpreted in a wide sense to the detriment of the accused, for example by analogy. It follows that criminal offenses and relevant punishments have to be defined clearly in the law. This requirement is fulfilled when an individual, from the formulation of relevant provision, and if necessary with interpretation of the court and after obtaining an appropriate legal advice, may know which actions or non-actions shall make him criminally liable and which punishment may be imposed on him for that. Therefore, the court has to confirm that, at a time the accused person had committed the actions that led to his prosecution and conviction – legal provisions declaring that action punishable and that the punishment imposed did not exceed the boundary determined under that provision, were in force.
Пореска утаја - кривична одговорност и кажњивост у праву Републике Србије

Пореска утаја - кривична одговорност и кажњивост у праву Републике Србије
(Tax Evasion - Criminal Liability and Culpability in the Law of the Republic of Serbia)

  • Author(s):Dragan Jovašević, Vladimir M. Simović
  • Language:Serbian
  • Subject(s):Criminal Law
  • Page Range:506-529
  • No. of Pages:24
  • Keywords:Tax evasion;Tax;Criminal act;Criminal Code;Republic of Serbia;
  • Summary/Abstract:Tax criminal act especially tax evasion (eng. tax evasion, franc. fraude fiscale, ital. omesso versamento di imposte, germ. steuerbetrug), represents extremely socially dangerous behavior od both individuals and groups i.e. legal entities (companies, institutions or other organisations) that through violation of rules directly or indirectly compromises financial interests of the whole social community by causing large damages to fiscal system and system of public profits in general. Providing how important fiscal system is, its duly, beforehand, completely and quality attainment has for existence, preservation and even growth of the state i.e. society, it is clear how important it is for a country to have a broad variety of different measures, means, ways and procedures taken by different subjects at all levels in order to confront different forms and manners of non-payment, concealment, failing to report or evade payment of taxes, contributions and other regulatory commitments that represent public auction i.e. public profit.
Европски комитет за спречавање мучења и нечовјечних или понижавајућих казни или поступака - улога и значај

Европски комитет за спречавање мучења и нечовјечних или понижавајућих казни или поступака - улога и значај
(European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment - Role and Importance)

  • Author(s):Uroš Pena, Ljubana Kandić
  • Language:Serbian
  • Subject(s):EU-Legislation
  • Page Range:530-538
  • No. of Pages:9
  • Keywords:Europian Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment;European Committeefor the Prevention of Torture and Inhuman or Degrading Treatment or Punishment;
  • Summary/Abstract:Given the importance of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the fact that on its base the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment and Punishment (CPT) has been established, this essay aims to present the role and importance of this Committee. It has been established with the task to, through visiting institutions where persons are deprived of their liberty or arrested, examine how they are treat- ed in order, if necessary, to increase the level of protection of such people from torture, inhuman or degrading treatment or punishment. In organizing its visits, the Committee has not bypassed our country and in this essay some segments of the visits to the local institutions as well as the recommendations which were addressed to them will be shown.
Načelo ne bis idem u praksi Evropskog suda za ljudska prava sa osvrtom na Bosnu i Hercegovinu

Načelo ne bis idem u praksi Evropskog suda za ljudska prava sa osvrtom na Bosnu i Hercegovinu
(The principle ne bis idem in the European Court on Human Rights Practice with Reference to Bosnia and Herzegovina)

  • Author(s):Sunčica Hajdarović
  • Language:Serbian
  • Subject(s):Human Rights and Humanitarian Law, EU-Legislation
  • Page Range:539-562
  • No. of Pages:24
  • Keywords:Ne bis idem principle;Duplicity of procedure;Engel measures;Nature of the felony;The identity of the felony;Criminal charge;
  • Summary/Abstract:The ne bis in idem principle is enshrined in Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and falls within the principles with conventional and constitutional importance. It is a principle which at the national level prohibits the duplicity of trial or punishment in criminal proceedings for an offense for which the accused has already been convicted or released before a national court in another procedure (misdemeanor, administrative or disciplinary). The European Court of Human Rights has discussed in numerous judgments about the violation of this principle. Significant position of this court regarding Bosnia and Herzegovina has been formulated in the Muslija v. Bosnia and Herzegovina case, which concerns the prohibition of double trial in misdemeanor and criminal proceedings. Following this judgment, the ECtHR found that the jurisprudence of the courts of BiH was not in line with the standards required by the Convention on the Prohibition of Double Trial and Punishment, and on this basis, the Court called on BiH to bring its practice into line with those standards. Since BiH is obliged to follow the instructions given to it by the Court regarding compliance with the standards prescribed by the Convention, BiH has drawn up an Action Plan for the implementation of general measures in the judgment of Muslija v. BiH.Also, when presenting the protection of legal values proclaimed by Article 4 of Protocol No. 7, it is important to emphasize the importance of the decisions of the European Court of Human Rights in the cases of Zolotukhin v. Russia and A. and B. v. Norway, which represent two major milestones in the development of the judicial practices related to the ne bis in idem principle.
Lex falcidia у Законоправилу (номоканону) Светог Саве

Lex falcidia у Законоправилу (номоканону) Светог Саве
(Lex falcidia in the Saint Sava's Nomocanon (Zakonopravilo))

  • Author(s):Stanka Stjepanović, Samir Aličić
  • Language:Serbian
  • Subject(s):History of Law, History of Religion
  • Page Range:565-584
  • No. of Pages:20
  • Keywords:Saint Sava;Nomocanon(Zakonopravilo);Legal terminology;Inheritance law;Lex Falcidia;
  • Summary/Abstract:In the Nomocanon (Zakonopravilo) of Saint Sava, the medieval Serbian legal code-book, also known as Krmčija, the entire Prochiron, the Byzan- tine legal code containing provisions of Greco-Roman (Byzantine) law, had been taken over. With Prochiron, the provisions of the Roman inheritance law on the freedom to dispose of legacies and the distribution of inheritance originating from the law of Lex Falcidia, a Roman plebiscite dating from around AD 40, were also adopted in medieval Serbia.Translating the above mentioned provisions into Serbian, instead of accepting Greek or Latin legal expressions, Saint Sava often created many new legal terms, some of which influenced the creation of modern Serbian legal terminology, such as the expression for legacy. The aim of the paper is to draw attention to the contribution of Saint Sava to the creation of legal terminology in Serbia.
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