Владавина права у наследном и породичном праву
The Rule of Law in Inheritance and Family Law

Author(s): Slobodan I. Panov, Miloš Stanković
Subject(s): Law, Constitution, Jurisprudence, Civil Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Rule of law;Legal state;Family law;Inheritance law;Law on Restitution;
Summary/Abstract: The work has two authors and two parts: analysis of the rule of law in family law and in inheritance law. It compares the rule of law to legal state. The idea of the rule of law is a temporal, universal; in ideal variant of eschatological determination it is loyalty to timeless ideas of (legal) virtues. Concept of the rule of law is commitment to the current legality and more or less, the obvious resistance to the legitimate.In the initial section, the rule of law is discussed as one of the central ideas of modern legal civilization. Each element of the defining composition allows or imposes some concretizations and relativizations. Dominance as an attribute of the rule of law creates a contradiction and counterpoint. Preliminary substrate in rule of law authorizes the interpretation of the rule of law as harmonized by two elements: theoretical and practical, imaginary/thoughtful and achieved/operational. In particular, numerous ’’muddy facts of times“ which might seem subversive to the reality of achieving the idea of the rule of law are recorded. Modernity is understood as opposition of values, and civilization is understood as less worthy of culture. In the end, examples of ordination of rule of law in family law are given.The next section of the paper explores the idea of the rule of law in civil law, and that means also in inheritance law and in family law and its manifestation in the principle of good faith. In the field of inheritance law, this battle between the individual will on one hand, which tends to be as limited as possible, and social considerations and interests on the other hand, which have the aim to focus every individual will on general benefits, reflects primarily in universality principle of the inheritance and in the principle of equality.Furthermore the attention is paid to the new and current exception of mentioned principles in Serbian inheritance law, which appeared in the enactment of Law on Property Restitution and Compensation, often referred to as „Restitution Law’’. One specific and distinctive case is analyzed which represents an exception to the universality principle of inheritance and of the principle of equality, in which we participated on behalf of the Agency for Restitution of the Republic of Serbia and we afterwards wrote a complaint to the Ministry of Finance and Economy of the Republic of Serbia.The essence of the dispute is that Public attorney’s office, as a legal representative of the Republic of Serbia does not consider the applicants as legal heirs to the former owner, so they cannot exercise their right to restitution or indemnity in terms of confiscated property. Acting body found that the quotes of the authorized representative of the applicant that the term of legal heirs can be interpreted more broadly, in terms of invoking the legacy which is stipulated by law, both under the law (legal heirs), and based on the legacy, have no impact on decision in this administrative matter. According to the article 41, paragraph 1, of the same Law, right of action is defined in that way that the ’’request for the return of the property, in accordance with this Act, is submitted by all former owners of confiscated property, or their legal heirs and successors.”Reasoning of the acting body that they a priori are not entitled to restitution and indemnification based on the fact that they are not legal heirs of the former owners is legally unsustainable. Neither in the Serbian legal system nor in the legal systems of other democratic countries can we find the example that one person is guaranteed the right to file a motion seeking exercise or protection of any right and to ‘’know’’ in advance that they cannot count on recognition, exercise or protection of that right, regardless of the fulfillment of the legal requirements on which the request is based.Inheritance Act also makes no difference between legal and testamentary heirs in terms of the application of other institutes of inheritance law, for example in terms of incapacity to inherit. Additional argument to this claim is the fact that under article 5, paragraph 2 of the Law on Property Restitution and Compensation, system of enumeration explicitly mentions groups of people who are not entitled to restitution of confiscated property and compensation. As among these persons are not testamentary heirs of former owners, according to the general rules of interpretation of the law, a contrario it must be concluded that this right belongs to testamentary heirs.Ministry of Finance and Economy of Republic of Serbia has issued a decision rejecting the complaint as without merit. We can summarize that in this case, which is currently being decided by Administrative Court in Belgrade, dispute arose over following questions: question of right of action, question of the legal nature of the restitution and compensation and question of the notion of legal heirs. It is obvious that the Public Attorney’s Office and Agency for Restitution of Republic of Serbia and Ministry of Finance and Economy of Republic of Serbia understood this term restrictively, resting only on the linguistic interpretation of the standard. This interpretation is representing not only deviation from the principle of universality and principle of equity but is also in our opinion unconstitutional, because it is inconsistent with the article 21, paragraph 3 of the Constitution of Serbia, which ’’prohibits any discrimination, direct or indirect, on any grounds’’. The Constitutional Court in its decision said it had no jurisdiction, under the provisions of article 167 of the Constitution to decide on the compliance of the provision of article 5, paragraph 1, subparagraph 1 with the Inheritance Act and Act on Extra-judicial Proceedings.Analyzing this case, which final outcome is still to be seen, our intention was not in any way (except, of course, in the sphere of legal arguments) to affect the operation of administrative and judicial authorities of Republic of Serbia, but it seems that current situation is unsustainable in law. Time to come will show whether any changes will occur in modifying the practice of the Agency for Restitution of Republic of Serbia, or what is more likely (and for legal certainty and the rule of law more appropriate), introducing appropriate amendments to legislation in the Republic of Serbia.

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