Зборник радова "Право, традиција и промјене" Том II
Collection of papers "Law, Tradition and changes" Vol II
A scientific meeting on the occasion of the Day of the Faculty of Law, organized by Faculty of Law of the University of East Sarajevo, The International Bar Association of Moscow and the Serbian Association for Criminal Law, Theory and Practice
Contributor(s): Dimitrije Ćeranić (Editor)
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
- Print-ISBN-13: 978-99938-57-51-8
- Page Count: 463
- Publication Year: 2019
- Language: English, Serbian
Преиначење тужбе
Преиначење тужбе
(Modification of a Lawsuit)
- Author(s):Gordana Stanković, Marijana Dukić Mijatović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:1-17
- No. of Pages:17
- Keywords:Modofication of a lawsuit;Objective and subjective lawsuit modification;Conditions for lawsuit modification;Procedural contracts;
- Summary/Abstract:Reforms in the area of Serbian civil procedural law at the beginning of this millennium were introduced either to improve the efficiency of proceedings and advance and protect the right to a trial in due time, as an element of the right to a fair trial and the right to a fair procedure, or to operationalize the discussion principle in order to transfer responsibility for the quality of meritorious decisions to litigants. Unlike the earlier changes in the area of civil procedure, legislative interventions that begun to take place recently have been motivated by the new legal political reasons. They largely refer to changes in traditional procedural institutes, as is the case with modification of a lawsuit. Changes regarding conditions for modification of a lawsuit were brought about in the provisions of the Law on Enforcement and Security (2015) and the latest amendments to the Law on Civil Proceedings (2018). What characterizes the new legal resolutions regarding modification of a lawsuit is strengthening of the principle of disposition regarding the contents of legal protection and strengthening of the autonomy of will and influence of procedural contracts on the procedure. On one hand, it is manifested as strengthening of a prosecutor’s disposition, who can modify a lawsuit for determining inadmissibility of enforcement during proceedings without the consent of a defendant and cause an objective modification of a lawsuit, or, in cooperation with an acquirer, without a defendant's consent, cause procedural succession as a consequence of substantive legal succession that occurred during a litigation by making an agreement, as a new type of procedural contract, which has its effect after being submitted to court and therefore causing a subjective modification of a lawsuit.
О Преднацрту Грађанског законика Републике Србије
О Преднацрту Грађанског законика Републике Србије
(Preliminary Draft of the Civil Code of the Republic of Serbia)
- Author(s):Branko Morait
- Language:Serbian
- Subject(s):Civil Law
- Page Range:18-31
- No. of Pages:14
- Keywords:Codification;Injustice;Causing damage;
- Summary/Abstract:The paper analyzes provisions from the second book of preliminary draft of the Civil Code of Republic of Serbia on obligations. We have devoted special attention to the institute of liability for causing damage, the violation of the rights guaranteed by the personality and justice as a measure for awarding non-pecuniary damages.
Izvanugovorna odgovornost za smrt i tjelesne povrede kupača i drugih osoba u moru (vodi) koje prouzrokuje brod (usporedba bosansko-hercegovačkog i hrvatskog plovidbenog zakonodavstva)
Izvanugovorna odgovornost za smrt i tjelesne povrede kupača i drugih osoba u moru (vodi) koje prouzrokuje brod (usporedba bosansko-hercegovačkog i hrvatskog plovidbenog zakonodavstva)
(The Non-contractual Liability for the Death and Personal Injuries of Swimmers and Other Persons at Sea (Water) Caused by Ship (the Comparasion Between the Navigational Legislation of Bosnia and Herzegovina and Croatia))
- Author(s):Dragan Bolanča
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Maritime Law
- Page Range:32-45
- No. of Pages:14
- Keywords:Ship;Swimmer;Liability for death and personal injuries;
- Summary/Abstract:The author of this article deals with the liability for death and personal injuries of swimmers and other persons at sea (water) caused by ship (craft). He describes the legal solutions in four acts in Bosnia and Herzegovina: The Maritime and Inland Navigation Act of Bosnia and Herzegovina (1992) as lex generalis and Inland Navigation Act of Republic of Srpska (2001), Inland and Maritime Navigation Act of the Federation of Bosnia and Herzegovina (2005) and Inland Navigation Act in District of Brčko of Bosnia and Herzegovina (2008) as lex specialis. These acts are compared with Croatian Maritime Code (2004) and Croatian Inland Waterway Ports Act (2007). In conclusion, the specific similarities and differences of mentioned law solutions are noted. The ship-owner, the ship operator and the person operating the ship can be liable for the loss of life and personal injuries to swimmers and other persons at sea (water) caused by their ship. In many cases they can be responsible for damage on the basis of strict liability or proved fault (one case).The term “ship” or “craft” applies to all waterborne craft irrespective of their size and purpose and to hydroplanes at sea (water).
Угрожавање права жена на здравље у вантјелесној оплодњи
Угрожавање права жена на здравље у вантјелесној оплодњи
(Endangering the Right of Women to Health in the Process of In Vitro Fertilization)
- Author(s):Stanka Stjepanović
- Language:Serbian
- Subject(s):Gender Studies, Law, Constitution, Jurisprudence, Health and medicine and law
- Page Range:46-59
- No. of Pages:14
- Keywords:Extracorporeal fertilization;Women's health;Endangering rights;State measures;
- Summary/Abstract:The financial support of countries in the treatment of infertility with biomedically assisted fertilization is increasing in the world. That support comes either on the basis of law, or other acts. Fertility measures in the media have been portrayed as the last hope for couples without children to achieve the desired parenting. However, research shows that assisted technology in fertility is a threat to women's health, as strong hormone therapies are used that can cause severe health disruption in women. In this paper, the author analyzes the impact of extracorporeal fertilization on endangering women's rights to health. It gives opinions and examines the views of scientists from the United Kingdom and the United States on the treatment of infertility by biomedically assisted fertilization. Points to cases where a healthy woman is being treated for infertility, and questions how it is possible for a doctor to diagnose a man as infertile and commence a woman's medical treatment. It proposes measures that the state can achieve to address demographic problems without endangering women's right to health.
Право, традиција и промене - равноправност полова : димензија праксе идентитетског преображаја Србије
Право, традиција и промене - равноправност полова : димензија праксе идентитетског преображаја Србије
(Law, Tradition and Changes - Gender Equality : Practical Dimension of Identity Transformation of Serbia)
- Author(s):Slobodan Panov
- Language:Serbian
- Subject(s):Gender Studies, Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law
- Page Range:60-88
- No. of Pages:29
- Keywords:Gender equality;Conservative-modern;
- Summary/Abstract:This paper discusses the dialectic as a permanent feature of life and the rights, the religious meaning of the term, change of identity and frequent historical experience of legal involution. The author also analyzes examples of interpretation and application of equality. The reduction of aspects of the analysis of equality between genders is noted as well as absence of gender analysis in the context of gender: the equality of people and nations.
Међународни стандарди у националном систему пословне способности особа са инвалидитетом
Међународни стандарди у националном систему пословне способности особа са инвалидитетом
(International Standards in the National System of Legal Capacity of Persons With Disabilities)
- Author(s):Olga Jović Prlainović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law
- Page Range:89-107
- No. of Pages:19
- Keywords:Legal capacity;International standards;Decision support;Deprivation of legal capacity;
- Summary/Abstract:This paper deals with legal capacity as a possibility of deciding on one’s own rights and duties. It is a condition for the exercise of the right to equality and the right to a legal personality and it refers to the enjoyment of the right to privacy and family life as basic human right. The content of paper is dedicated to reminder of established international standards of legal capacity of person with disabilities and is focused on the research of this phenomenon in the national system. Disability as a basis for full deprivation of legal capacity and custody (substitute decision-making) in all modern legal system is considered an outdated approach that denies the enjoyment of human rights and fundamental freedoms. International obligations of the Republic of Serbia are to fulfill international agreements in providing legal opportunities for persons with disabilities to enjoy legal capacity. The question arises as to whether the existing mechanisms in domestic legislation and practice adequately protect the interests of this category of population. Author states that most important of all is the need to stop practice of complete deprivation of legal capacity, giving that the existing system already allows for a less restrictive measure, that is partial deprivation of legal capacity which is still a rarity in Serbia. The decision on partial deprivation should determine the legal areas in which the decision- making right is restricted, emphasizing that in all other situations the person is legally capable.
Заштита права на суђење у разумном року
Заштита права на суђење у разумном року
(Protecting the Right to Trial Within a Reasonable Time)
- Author(s):Radenko Jotanović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:108-124
- No. of Pages:17
- Keywords:Court;Trial;Time limt(s);Reasonable time;Protection of rights;Equitable satisfaction;Financial compensation;Publication of judgement;
- Summary/Abstract:The Republic of Srpska has not adopted a law to regulate the protection of the right to trial within a reasonable time. There is a need for such a legal solution, primarily to prevent a significant number of court proceedings before the Court of B&H and the European Court of Human Rights in Strasbourg. The practice of the surrounding countries, which have introduced into their legal system a law regulating the protection of the right to a trial within a reasonable time, shows that there has been an increase in the degree of the legal protection of every subject to law to decide within a reasonable time on his rights and obligations. As a result, there has been a reduction of long-term court proceedings thus increasing the efficiency of trial bodies, which finally led to an increase in legal safety and rule of law in general. The author affirms the arguments for the legal regulation of the protection of the right to a trial within a reasonable time in the legal system of the Republic of Srpska. In this sense, some aspects of legal solutions to the right to a trial within a reasonable time which are acceptable to our legal system have been analyzed within the neighbouring countries, as part of a universal "legal transplant". This refers to the procedure in which this form of judicial redress can be sought, the remedies, the jurisdiction to decide the claim, the time limits for rendering decision, the criteria for assessing the duration of the trial within a reasonable time, the forms of just satisfaction (financial compensation and/or publication of the judgment) and other aspects relevant to accomplishing the right to a trial within a reasonable time.
Učinci prekograničnog surogat materinstva: praksa nacionalnih sudova i Europskog suda za ljudska prava
Učinci prekograničnog surogat materinstva: praksa nacionalnih sudova i Europskog suda za ljudska prava
(The Effects of Cross-border Surrogate Motherhood: the Practice of National Courts and the European Court of Human Rights)
- Author(s):Anita Duraković, Jasmina Alihodžić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law
- Page Range:125-147
- No. of Pages:23
- Keywords:Cross-border surrogacy motherhood;Recognition of parental relationship;Legal status of child;National courts;European Court of Human Rights;
- Summary/Abstract:Surrogate motherhood is an interesting and current topic that engages legal theorists and practitioners at national, European and international level. For some, surrogacy is a business arrangement in which the child is treat- ed as a commodity, while others view it altruistically as an aid to couples who cannot otherwise realize their desire for parenthood. Variety of national regulations (a number of states explicitly prohibit or do not legally regulate surrogate motherhood, in others it is allowed under different conditions and the absence of international regulation) causes numerous problems of private international law, primarily, recognition of the parental relationship acquired abroad and related legal status of the child born abroad under a surrogate arrangement. In this context, the practice of individual national courts in states that prohibit or legally do not regulate surrogate motherhood is significant, pointing to the complexity of this issue. Particular attention will be paid to the recent decisions of the European Court of Human Rights, which has addressed the cross-border effects of surrogate motherhood in a number of cases and has made a major and inventive step in its decisions for all future cases of surrogate motherhood with an international element. Its views will undoubtedly affect the national and European legal framework and the decisions of national courts.
Lišenje nužnog nasljednog dijela kao oblik zaštite imovinskih interesa porodice
Lišenje nužnog nasljednog dijela kao oblik zaštite imovinskih interesa porodice
(Protection of Family Property Interests Through Deprivation of Forced Heirs of a Reserved Portion of Inheritance)
- Author(s):Maja Čolaković, Ramajana Demirović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:148-163
- No. of Pages:16
- Keywords:Will;Forcedinheritance;Relatives;Descendants;
- Summary/Abstract:The paper explores the issue of the protection of family property interests through the institute of deprivation of descendants of a reserved portion of inheritance. The freedom to dispose of one’s property in a form of a will entails, inter alia, the right to deprive forced heirs of their right to a reserved portion of the inheritance if they are heavily indebted or squanderers. The analysis of motives, conditions and legal effects of deprivation of forced heirs of their right to a reserved portion in both Bosnia and Herzegovina and comparative succession laws indicates its twofold significance for preservation of the existential foundation of a family. Its primary goal is to guarantee the preventive protection of the deprived heir’s offspring. At the same time, the forced heir is protected as well, as he/she is deprived of the material preconditions that would enable further harmful undertakings that jeopardize their property interests. A number of Western European countries are currently undergoing a reform of their inheritance legislation that shows the tendency to reconsider the purpose of the institute of deprivation of heirs of a reserved portion as a form of restricting the freedom of testamentary disposition, which reform may result in the narrowing down of a number of forced heirs. It is, therefore, the aim of the paper to discuss de lege ferendae the justification for such provision in legislation of Bosnia and Herzegovina.
О најзначајнијим новотама и највећим недостацима Преднацрта Грађанског законика Србије у области наслеђивања
О најзначајнијим новотама и највећим недостацима Преднацрта Грађанског законика Србије у области наслеђивања
(On the Most Significant Novelties and Major Flaws in the Pre-Draft of Serbian Civil Code in the Field of Inheritance)
- Author(s):Novak Krstić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:164-189
- No. of Pages:26
- Keywords:The Pre-Draft of the Civil Code;Inheritance;Contract on inheritance;Will(testament);Heirs;
- Summary/Abstract:Book V of the pre-draft of the Civil Code of the Republic of Serbia is dedicated to the inheritance. Inheritance law provisions in the Pre-Draft are based on solutions from the Serbian Inheritance Act of 1995 and have the same systematization that is established in this Act. However, as the Inheritance Act has been applied for more than two decades now, the codifier has, in light of certain current trends, proposed some new legislative solutions in the field of inheritance in comparative law. In the paper, the author critically examines the most significant novelties proposed in the Pre- Draft: doubts about the introduction of the contract on inheritance in Serbian law; dating holographic will as a condition of its validity; the extension of fiction of nasciturus; the expansion of the reasons for unworthiness to inherit; changes in regulation of collatio bonorum; changes in liability for the decedent's debts in case of renunciation of inheritance in favor of coheir, etc. The author, however, does not dwell on that but points out the failures of the Civil Code Drafting Commission to regulate some very important issues and indicates that some of the existing solutions should keep up with contemporary social trends and trends in comparative laws.
Права издавача у дигиталном окружењу
Права издавача у дигиталном окружењу
(Publisher's Rights in the Digital Environment)
- Author(s):Svjetlana Ivanović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, ICT Information and Communications Technologies
- Page Range:190-210
- No. of Pages:21
- Keywords:Copyright;Related rights;Publisher's right;Fair compensation;Internet;
- Summary/Abstract:The idea of copyright protection arose from the practical need to protect the first publishers of printed editions of copyrighted works from unfair competition. On the basis of the protection of publishers' interests, author's right was created, and publishers protected their interests primarily through contractual provisions. However, the wheel of history has once again brought publishers to the forefront, this time recognizing their protection in the form of related rights, i.e. rights related to copyright. The paper analyzes the forms of related rights protection enjoyed by publishers. These are several special forms of protection that exist in domestic and comparative law, and are subsumed under the rights of publishers. Special attention is paid to the position of publishers in the digital environment, i.e. on the Internet, especially taking into account the provisions of the recently adopted Directive on Copyright and Related Rights in the Digital Single Market, which provides a special form of related right for publishers of press publications.
Проблем двоструког парадокса важећег одштетног права
Проблем двоструког парадокса важећег одштетног права
(Double Paradox of Current Tort Law)
- Author(s):Srđan Radulović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:211-225
- No. of Pages:15
- Keywords:Damage;Unlawfulness;Conditions of liability for caused damage;Exclusion of unlawfulness;Abuse of rights;Constituents of abuse of rights;
- Summary/Abstract:Relations between legal subjects – relations created under Tort Law are not exception in this sense – are created, modified and ended when so-called legal facts come to light in everyday life. Due to their constitutive effect, theory of law is especially interested in group of facts called “conditions of liability for caused damage”. A careful analysis of unlawfulness which is, author has no doubts about that, one of previously mentioned conditions of liability for caused damage, reveals the existence of two very different, but closely related, legal paradoxes. On the one hand, in context of Law of Tort, unlawfulness as a term is at the same time wider in one sense and narrower in other sense then the concept of unlawfulness in the general sense (as negation of Law). On the other hand, the so-called exercise of individual right, in context of the prohibition of abuse of subjective rights, in a number of situations may at the same time be “the reason” for exclusion of unlawfulness (and consequently exclusion of liability for caused damage), but also one of conditions of civil liability. Intrigued by these paradoxes (author points out that there is the third or even fourth paradox), both separately and in their interconnectedness, in this paper author presents results of independent theoretical and empirical research which aims to raise and stimulate discussion regarding the issues that have been set aside during process of codification of Civil Law in Re- public of Serbia.
Систем накнађивања чланова управе компанија и банкарска легислатива
Систем накнађивања чланова управе компанија и банкарска легислатива
(System of Compensation Arrangements for Corporate Board Members and Banking Legislation)
- Author(s):Damjan Danilović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics, Financial Markets
- Page Range:226-243
- No. of Pages:18
- Keywords:Compensation;Corporate governance;Banks;
- Summary/Abstract:Corporate governance is a complex system encompassing different legal institutes. One of its important segments is clearly the system of compensation arrangements for corporate board members. This area has been no exception to omnipresent acceleration in the development of legal institutes. Domestic banking legislation too has lately been subject to different regulatory changes. Therefore, this paper aims at analyzing domestic system of compensation arrangements, especially from the perspective of banking legislation. We will prove that the system of compensation arrangements is covered by a special legal regime and that it is harmonized to a certain extent with the legislation of the European countries, which does not necessarily imply the good quality of the said legislation.
Odlučivanje o troškovima drugostepenog parničnog postupka
Odlučivanje o troškovima drugostepenog parničnog postupka
(On Awarding Costs of Litigation in the Second Instance Proceeding)
- Author(s):Adis Poljić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:244-260
- No. of Pages:17
- Keywords:Litigation;Costs;Second instance;Share in litigation;Success in litigation;
- Summary/Abstract:Civil proceedings generally consist of a first instance and a second in- stance proceedings, and in the case of an audit, a third instance proceedings. All stages of litigation form one whole, which ends with a decision that will produce legal effect. In the law of Bosnia and Herzegovina, the “English rule” is accepted that “the loser bears all the costs.” The rule that “the loser bears all the costs” becomes more difficult when the parties partially succeed in litigation, which success should properly affect the costs of litigation. Although these are costs of the second instance, in some cases the court of first instance may decide on the costs of the second instance proceedings. The rules of civil procedure standardize deciding on the costs of litigation without separating costs in the various stages of litigation, except in the case of rejection or refusal of a remedy. However, case law is used to decide on the costs of the second instance proceedings separately from the costs of the first instance proceedings and to reverse the first instance decision in such a way that the costs of the second instance proceedings are awarded according to the success of the second instance proceedings, although the rules of civil procedure stipulate that litigation form one whole. In this way there is no uniform determination on awarding the costs of litigation, which is contrary to the rules of civil procedure.
Сурогатство - нови изазов за међународно приватно право
Сурогатство - нови изазов за међународно приватно право
(Surrogacy - a New Challenge for Private International Law)
- Author(s):Dragana Damjanović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, International Law
- Page Range:261-286
- No. of Pages:26
- Keywords:Child rights;Surrogate mother;Cross-border surrogate arrangement;Legal parenting;Recognition of a foreign court decision;The Hague Conference;The best interests of the child;
- Summary/Abstract:It is the right of every child to know, as far as possible, his or her parents and to enjoy their care. However, the development of medical science, as well as changes in established family patterns, have brought uncertainty into the issue of establishing, acknowledging and denying legal parenting. In this regard, in this paper, the author considered surrogacy, and parenting which arises as a consequence of the surrogate arrangement. The author has come to the conclusion that cross-border surrogacy arrangements are very common, which is the consequence of the fact that many countries do not allow birth for another, allow only altruistic surrogacy motherhood or, simply, because surrogate arrangements are cheaper abroad. Either way, this leads to the emergence of a foreign element and raises many questions: jurisdiction of the courts to decide the legal consequences of a surrogate arrangement, choice of the applicable law for legal parenting of the child and status-related issues of the child, the issue of recognition of foreign judicial decisions on legal parenting, recognition of foreign public documents, etc. Regulating this legal situation is within the jurisdiction of each country’s domestic legislation, but the author believes that the time has come to unify the rules, all with the aim of protecting the child. In this regard, the work of the Hague Conference on Private International Law on the Parenting/Surrogacy project was presented, in particular the proposals were contained in the last Report of the October/November 2019 meeting of the Expert’s Group. In addition, the author also examines a study by the University of Aberdeen team dedicated specifically to the international unification of a cross-border surrogate arrangements. In order to give the reader a better understanding of the complexity of the situation in the cross-border surrogate arrangement, a number of examples of case law are presented, including the case law of the European Court of Human Rights. At the end of the this paper, the author draws attention to the situation in Bosnia and Herzegovina, giving his opinion regarding the recognition of foreign court decisions on legal parenting.
Одговорност за штету коју проузрокују домаће животиње
Одговорност за штету коју проузрокују домаће животиње
(Liability for the Damage Caused by Domestic Animals)
- Author(s):Tijana Baćović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:287-303
- No. of Pages:17
- Keywords:Damage;Domestic animals;Dangerous things;Responsibility;
- Summary/Abstract:Although animals are useful for the individual and a whole society, they can cause material and non-material damage. In this work we will talk about the responsibility for the damage caused by animals owned by humans (both those who live with humans and are economically exploited by them, and the animals which are usually classified as wild but, in specific cases, live under human rule), and liability for damage caused by abandoned animals. The Law on Obligations does not contain specific rules on liability for damage caused by domestic animals. However, in domestic legal theory and case law, the prevailing view is that domestic animals are dangerous things and that the liability for the damage they cause is determined on the principle of strict liability. Modern European civil law systems are increasingly abandoning this idea. Some legal systems adopt the concept of subjective liability for damage caused by domestic animals. In modern civil law systems, there is a tendency for animals not to be equated with things, but increasingly they are accorded a kind of legal subjectivity and special protection. In this work we will use the historical, positive law and comparative method to determine the similarities and differences in the regulation of the same problem in different legal systems.
Грађанскоправна заштита од имисија
Грађанскоправна заштита од имисија
(Civil Law Protection from Harmful Emission)
- Author(s):Ivana Lazarević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Energy and Environmental Studies
- Page Range:304-332
- No. of Pages:29
- Keywords:Emission;Property disturbance lawsuit;Actio negatoria;Environmental (popular)lawsuit;Action for damages;
- Summary/Abstract:Although in the modern day the protection against undue harmful influence i.e. emission is increasingly moving towards public law, it is certainly not wise to ignore the importance of civil protection in this field of law. Within the framework of civil protection, we distinguish the preventive protection which is related to preventing the damage from occurring. The second type of protection is reаctive and it implies a classical legal protection that is achieved by filing a claim for damages. The author deals with the analysis of the above claims. Although the positive aspects of this type of protection cannot be ignored, it is certain that in practice it would yield much better results if particular shortcomings of the lawsuits to which they were subjected were removed. When talking about substantive legal instruments of protection, lawsuits for property interference and actio negatoria law- suits, we notice that the protection provided by them is to a certain degree limited and that they cannot provide a prompt reaction that would prevent emissions, but could possibly prevent the repetition of the same emissions. On the other hand, when we talk about the obligatory legal protection that is realized through the classical lawsuit for compensation of damages and ecological (popular) lawsuits, in preventive ecological litigation the need for urgent resolution of the dispute in terms of precise determination of deadlines for scheduling and decision-making is emphasized. These procedures are ex- tremely expensive, with uncertain outcome, and the claimant is the one to bear the costs, so in practice the citizen is rarely willing to file this type of lawsuit. In order for this type of lawsuit to be more used in practice, which is advisable if we want to protect the environment from increasing pollution, attention should also be paid to the stimulation of parties to initiate such disputes.
О неким основним појмовима и изворима међународног кривичног права
О неким основним појмовима и изворима међународног кривичног права
(On Some Basic Concepts and Sources of International Criminal Law)
- Author(s):Miodrag N. Simović, Vladimir M. Simović
- Language:Serbian
- Subject(s):Criminal Law, International Law
- Page Range:335-357
- No. of Pages:23
- Keywords:International criminal law;Sources;Customs;Court decisions;International criminal offenses;
- Summary/Abstract:International criminal law is a sub-field of public international law and while the latter is generally concerned with the interstate relations, international criminal law applies to individuals. The essence of international law rests on the equality of the states as abstract legal entities, where, through the constellation of relations, the function of international law is imposed as a guarantee for the establishment of peaceful and constructive relations be- tween the states regardless of the differences that may exist between them. Also, in the scientific literature, the idea is present that international criminal law signifies the rules of criminal law that a particular country defines and enacts on the basis of international treaties, given that this concept includes various forms of international criminal justice cooperation. The authors particularly emphasize that in the existing constellation of relations the states are no longer the sole holders of political and legal-generating power and that they place their emphasis on interacting within global, regional and transnational forums of international, and in some cases transnational, character. In this context, in both theory of national criminal law and in substantial international criminal law the issues of criminal matters are perceived as fundamental. The most restrictive definition of international criminal law concept was related to the spatial validity of a country's criminal law. Today, this law is increasingly understood as an integrative law that has two components: national and international. The second part of the paper deals with the relevance and importance of the factors and content of the sources of international criminal law in national criminal jurisdictions, which differs for each country individually. As a common example, in some jurisdictions, the immediate source of inter- national criminal law is national legislation including this law. In this case, contractual and international common law cannot be used as immediate source. In the opposite case, some courts may apply contractual law but not international common law, while the other courts may apply common law as well. In addition, even if domestic law is an immediate source of applicable law, international criminal law treaties, their comments and international court rulings are often used as an aid in interpreting domestic law and are sometimes considered as compelling (but not binding) precedents.
Terrorist Criminal Offences in the Criminal Code of the Republic of Slovenia
Terrorist Criminal Offences in the Criminal Code of the Republic of Slovenia
(Terrorist Criminal Offences in the Criminal Code of the Republic of Slovenia)
- Author(s):Vid Jakulin
- Language:English
- Subject(s):Criminal Law, Security and defense
- Page Range:358-366
- No. of Pages:9
- Keywords:Slovenia;Terrorism;Terrorist criminal offences;Financing of terrorism;Inticement and public glorification of terrorist activities;recruitment and training for terrorist activities;
- Summary/Abstract:he article deals with the Terrorist criminal offences in the Criminal Code of the Republic of Slovenia. The author states that terrorism is a worldwide phenomenon. Despite the fact that international organisations (the United Nations Organisation, the Council of Europe and the European Union) issued a number of international legal acts aimed at preventing and fighting terrorism, there is still no uniform definition of terrorism. The Republic of Slovenia is a small country situated in the southern part of Central Europe, which has fortunately not yet been victim of a terrorist attack. Nevertheless, the competent authorities of the Republic of Slovenia are aware of the importance of the fight against terrorism, where the primary focus is on prevention and international cooperation. The Criminal Code of the Republic of Slovenia (KZ-1) defines five criminal offences relating to terrorism. This is very important since, according to the principle of legality, a criminal offence and the corresponding sentences are defined by law before the criminal offence is committed. The legal definition of criminal offences relating to terrorism by an act is also important for inter- national cooperation since such cooperation is more effective when there is identity of norms (double criminality). The author believes that we have sufficient means to combat terrorism, but that the effectiveness of such efforts depends on the political will to implement them. Notwithstanding the above, we must be aware that fight against terrorism is not a short-term engagement but a long-term process.
Pravni okvir i mjere zaštite od nasilja u porodici u Republici Hrvatskoj
Pravni okvir i mjere zaštite od nasilja u porodici u Republici Hrvatskoj
(Legal Framework and Domestic Violence Protection Measures in the Republic of Croatia)
- Author(s):Borislav Petrović, Hrvoje Boban
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Studies in violence and power, Family and social welfare
- Page Range:367-390
- No. of Pages:24
- Keywords:Family;Protection;Family law;Misdemeanour Law;
- Summary/Abstract:Catalogue of domestic violence protection measures in Croatia is an excellent base for protection from violence against children, women and other family members or relatives. Although not completely systematized and coherent, we can conclude that a system of protection measures for all forms of domestic violence has been established. The basis is to be found in adopted standards and relevant international regulations, Constitution of the Republic of Croatia and acts in the field of civil, administrative, misdemeanour and criminal law. There is still work to be done in establishing and defining activities which are to be implemented by different authorities and institutions. Therefore, provisions from the family act have to be complied with the pro- visions from the criminal act. Furthermore, criminal and misdemeanour juris- diction have to be defined as well. The latter should be implemented to enable faster and more efficient protection in domestic violence cases. Apart from the existing legal acts, in April 2018, Croatian Parliament ratified Council of Europe Convention on preventing and combating violence against women and domestic violence of 2011. By having done so, the Republic of Croatia took additional obligation from this international agreement. The obligation primarily refers to the compliance between Croatian acts and the above de- fined Convention. Numerous systematized legal activities in Croatia were implemented even prior to this Convention. Therefore, there should not be any significant changes as regards to the criminal act amendments.
Кривичноправна заштита животне средине у Србији и процес приступања Европској унији
Кривичноправна заштита животне средине у Србији и процес приступања Европској унији
(Criminal Law Environmental Protection in Serbia and the Process of Accession to the European Union)
- Author(s):Vladimir V. Veković, Violeta V. Ćulafić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, EU-Accession / EU-DEvelopment
- Page Range:409-426
- No. of Pages:18
- Keywords:Environment;Criminal Law Protection;Serbia;European Union;Chapter 27;Directive 2008/99/EC on the Protection of the Environment through Criminal Law;
- Summary/Abstract:Criminal Code (CC) provides for criminal offenses against the environment within a separate chapter. Chapter XXIV of CC – Environmental offenses based on a biocentric conception that treats the environment as a protected good in itself (per se). As part of the European Union (EU) accession negotiations, Serbia expects the opening of Chapter 27 – Environment and Climate Change. It represents about one-third of all EU acquis, and nearly 90% of national environmental regulations are directly derived from over 500 secondary sources of EU environmental law (directives, regulations, decisions, recommendations and opinions). Chapter 27 defines, inter alia, the results to be achieved in the field of environmental criminal law, which requires significant amendments to the CC and its alignment with Directive 2008/99/EC on the Protection of the Environment through Criminal Law, as well as an adequate and meaningful response to institutional, economic and other challenges. Accordingly, the authors, in addition to considering the positive environmental criminal law, analyze a number of measures and activities to be taken to ensure the full transposition, implementation and effective application of the EU acquis in this field.
Мјесто и улога жртве у истрагама кривичног дјела силовања
Мјесто и улога жртве у истрагама кривичног дјела силовања
(Place and Role of the Victim in Criminal Investigation of Rape)
- Author(s):Uroš Pena, Dragan Mitrović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Victimology
- Page Range:409-426
- No. of Pages:18
- Keywords:Victim;Rape;Reports;Investigation;
- Summary/Abstract:Sexual delinquency is a phenomenon that goes beyond the framework of naturalness and voluntariness of partners in a sexual relationship. That is complex phenomenon whose essence derives from the special behavior of the offender and his relationship to the victim. The criminal offense of "rape" is a serious crime or serious criminal offense, whose implications are manifested in a person's physical and psychological integrity with very difficult and long-term consequences, both for the individual and for society as a whole. During the investigation of these offenses, a large number of operational and criminalistic measures, as well as proving actions are undertaken. Rape as an offence of sexual violence is a serious attack on person's physical and mental integrity, and the consequences for the victim are serious and long-term. This offense causes a feeling of fear, uncertainty and anxiety among the citizens, and has wide sociological, criminological sociopolitical significance and consequences. The victims of sexual offenses must be treated with caution, and they need to know that they are protected. Inhuman and frivolous behavior to the victim of sexual offence aggravates a traumatized state of the victim. The victims should be provided with adequate treatment, in order to come back to normal life.
Контрола оптужнице од стране осумњиченог у кривичном поступку
Контрола оптужнице од стране осумњиченог у кривичном поступку
(Indictment Control on the Part of the Defendant in Criminal Proceedings)
- Author(s):Mladenka Govedarica
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:427-439
- No. of Pages:13
- Keywords:Public prosecutor;Indictment;Suspects;Prior objections;Court;Defendants;
- Summary/Abstract:The Defense may file preliminary objections to the confirmed indictment as a remedy in criminal proceedings aimed at enabling formal and substantive control of the indictment by the accused and the defense attorney. As the previous objections are filed to a confirmed indictment or to an indictment of a public prosecutor for whom the court has already declared itself founded and justified, it is important to note that the principles of criminal procedure are the basis of the principle of equality of parties before a court in criminal proceedings, i.e. the parties must be guaranteed equal access to court with regard to the consideration of all matters relevant to the criminal matter which is the main subject of the criminal proceedings. We believe that such a legal arrangement of this remedy favors the position of the public prosecutor stated in the indictment, while the defense is given the opportunity to present an “attitude” on the indictment only when it has already been confirmed (the position of the public prosecutor has become the position of the court). Consistent with the protection of the principle of equality, we are of the opinion that the law should regulate this institute in such a way that upon receipt of the indictment by the public prosecutor, the court would only take a position on its formal correctness, while assessing the issue of material correctness after deciding on previous objections, if they were filed by the defense. Also, in such a legal order, the court would have much sounder material for trial and a more secure outcome of the main proceedings with a reduced chance of appealing against the aforementioned violations of the criminal procedure provisions. Finally, the number of dis- missals and acquittals would be reduced if it were known that certain reasons for the previous objections were finding their place among the reasons for reaching these court decisions.
Реформа кривичних дјела против части и угледа у хрватском кривичном законодавству са освртом на судску праксу
Реформа кривичних дјела против части и угледа у хрватском кривичном законодавству са освртом на судску праксу
(Reform of Criminal Offenses Against Honor and Reputation in the Croatian Criminal Legislation With Reference to Judical Practice)
- Author(s):Vanda Božić, Milena Simović
- Language:Serbian
- Subject(s):Criminal Law, Court case
- Page Range:440-458
- No. of Pages:19
- Keywords:Crimes against honor and reputation;Insult;Defamation;Hard shaming;Reform of Croatian criminal legislation;
- Summary/Abstract:It has been almost 18 years since the reform of the Croatian criminal legislation in respect of criminal offenses against honor and reputation had begun. Namely, after the passing of the 1997 Criminal Code, there have been several attempts to prescribe the acts listed as criminal offenses with different names of criminal offenses, incriminations and prescribed sanctions. However, these attempts encountered various obstructions stemming from the idea that the protection of honor and reputation in Croatian law should not fall in the domain of criminal law, but in the domain of offenses. There were also proposals to protect these particular human rights only through civil proceedings. The Croatian criminal law for these crimes is in line with the Swiss criminal law, although after the 2011 reform it was necessary to implement additional amendments to the 2015 Criminal Code, since it was not easy for courts to apply the legal provisions in practice. The paper presents legal solutions to crimes against the honor and reputation of de lege lata with motions for de lege ferenda, and investigates case law through reports, charges and convictions of these crimes.
Anti-Corruption and Combating Organized Crime, Terrorism and Corruption in Modern Law
Anti-Corruption and Combating Organized Crime, Terrorism and Corruption in Modern Law
(Anti-Corruption and Combating Organized Crime, Terrorism and Corruption in Modern Law)
- Author(s):James May
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Security and defense, Corruption - Transparency - Anti-Corruption
- Page Range:459-463
- No. of Pages:5
- Keywords:Anti-Corruption;Organized crime;Terrorism;Corruption;Financial Investigation strategy;
- Summary/Abstract:The author explores the issues of the National Anti-Corruption Strategy, financial investigation strategy and the enactment of the Law on Organization and Jurisdiction of State Authorities in Combating Organized Crime, Terrorism and Corruption in Republic of Serbia. He emphasizes that the organizational achievements have been met also. For example, the special anti-corruption departments in four locations in Republic of Serbia have been established. Anti-corruption strategy has to involve various activities, including training of the police and public prosecutor’s office, as well as training judges and magistrates. Financial investigations should both assist in resolving the case and defining and identifying the flow of money and assets.
