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Преображаји правне државе и владавине права

Author(s): Dragan M. Mitrović,Kosta D. Mitrović / Language(s): Serbian Publication Year: 0

The static picture of the rule of law, which almost always imposes itself as the main one, we shall try to depict in its live flow, which is some-how or other put aside. And that flow is of such kind that it shows continual conceptual and practical transformation of the rule of law. Let us mention but a few examples of that transformation over the past two centuries: liberal rule of law, socialist rule of law, cultural rule of law, welfare state, neo-liberal rule of law, supranational rule of law, international rule of law, all the way up to a possible world rule of law, which are announced together with the establishment of the transhuman society with one and the same rule of law. It may look like the circle is closing. And it took only a little over two centuries of practicing those ideas in the most developed countries around the world.It is obvious that the rule of law is a fragile creation. It is exactly byway of that fact that it is rendered possible to explain its accelerated two-century long transformation which can result in its likewise accelerated disruption and revoke. Today, the rule of law is increasingly more distant from the values and needs of daily human life, despite the privileged nominal and normative treatment. This is done with the intention of creating a transhuman, i.e. a dehumanised society and the law. In such society people exist for the purpose of technocratically built law, and not the law for the people.

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Владавина права и институтционалне претпоставке независности судства у Србији

Author(s): Darko Simović / Language(s): Serbian Publication Year: 0

Despite the explicit proclamations of the independence of the judiciary in the Constitution of Serbia from 2006, some of its solutions represent a degradation of the standards already achieved in this field. Undoubtedly, it is necessary to execute certain corrections to the constitutional framework of judicial power in the Republic of Serbia. Firstly, the election of judges on a probationary three year period should be excluded because the idea of the re-election of judges is in logical contradiction with the permanency of the judicial function and the principle of the independence of the judiciary. Secondly, it is advisable to consider introducing changes to the manner in which elective members of the High Judicial Council are elected so as to avoid any possible indirect political influences during the election of judges and the termination of their term of office. To avoid the continuous uncertainty faced by judges it is necessary to define more restrictive conditions for termination of their office. The use of legal standards, such as “unconscionable” conduct in delicate situations such as this, surely cannot be a guarantee of the independence of the judicial system. Finally, for the judiciary to be truly independent, it is necessary to secure factual material independence of the judges, by creating some type of fixed budget which will remain outside the competence of the representative body. However, it also seems significant that a political culture be built, that would involve a steadfast awareness of the inviolability of the principle of the independence of the judicial power.

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О односу еколошких права и политике

Author(s): Slobodan P. Orlović / Language(s): Serbian Publication Year: 0

This article deals with part of the complex relationship of political and ecological activity. This complexity is evident in a number of subjects which deal with ecological issues and in several „green“ national and inter-national policies. Thus, under the term ecological activists we can differentiate between individuals, local, national and international environmental organizations. All of them have influence on different levels of the creation and implementation of policy - local, substate, state and inter-state level. The content of the relationship between ecological and political subject is seen through two kinds of activities. One is direct actions of ecological organizations regarding some specific environmental question. Other activities are pressures with proposals, petitions, and requests to the state authorities to issue a legal act. All these legal acts - local, regional, state and international, constitute a particular „environmental law“. Now, its most important international part is the Aarhus Convention.

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Реформа управног поступка

Author(s): Predrag Dimitrijević / Language(s): Serbian Publication Year: 0

Reform of administrative procedure is a part of complex process of reform of public administration. However, the modification of the public administration concept from public authority to public service in the circumstances of New Public Management requires change of the procedure of administrative activity. Reform of administrative decision-making, apropos general and particular administrative procedures, is a part of process of re-form of public administration and it is of crucial importance. It requires modification of the Law on Administrative Procedure, which has to be simpler and with effective legal remedies in the interest of a party as well as in public interest. In the contemporary general administrative procedure, as a legal procedure for the „new“ age, human rights must be given central role. They must be defined in the human’s interests and the public administration has to „serve“ them. Administrative procedures have to be in the function of administrative services. However, modifications of administrative procedure can be very dangerous if they don’t fit real possibilities of administration to accept and apply them in everyday practice. Therefore, this process has to move slowly, especially when it comes to the norms which regulate silence of administration, legal remedies but also the subject of administrative procedure, i.e. the issue of its purpose.

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Uticaj EU integracija na samostalnost-zavisnost domaće legislative (poseban osvrt na upravno pravo)

Author(s): Borče Davitkovski,Dragan Gocevski,Elena Davitkovska / Language(s): Serbian Publication Year: 0

When we speak of the “degree of dependence” or level of influence EU acts and agreements extend over national legislature, one must emphasize that this conditionality is above all voluntary. Member states and countries aspiring to EU membership strive to harmonize their laws and bylaws at a national level, in accordance to (mutually) determined directives, standards and recommendations adopted by the European Parliament and issued by the European Commission in the form of progress re-ports. In order to fully adapt to the founding values of the EU, all countries are driven to respect the common market and therefore follow the regulation adopted at supranational level by the legitimate EU institutions. Administrative law is no exception to this process of harmonization. Attempts to harmonize administrative legislature can be found in concepts such as European Administrative Space, Recommendations of the Council of Europe, partly in Agreements for Stabilization and Association (to the EU) and for the Western Balkans through Sigma. However, specifics of the national administrative systems were built and designed to serve the countries’ economic and political needs. Therefore, substantive legislative governing structure and institutions cannot be uniformed, and the Union indeed does not condition member states to adopt a uniformed administrative structure. Administrative procedural legislation, on the other hand is more convenient to such harmonizations and standardizing. Administrative procedure aims to protect the public (and EU) interest, as well as to protect the rights of parties in the procedure. In recent years there have been multiple attempts to adopt certain directions, recommendations and minimum of standards for administrative procedures at EU level as well as by the Council of Europe.Under the coordination and support from Sigma, states from the Western Balkan region, among which the Republic of Macedonia, have committed to reforming their administrative procedural laws. As a direct result, at the end of 2013 Macedonia adopted a Strategy for Reform of Law on General Administrative Procedure which aims to harmonize Macedonia’s administrative procedure with modern standards found in the EU.

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Концепт лидерства у јавној и локалној управи. CAF модел - заштита права грађана

Author(s): Slavko Arsovski,Srđan Nikezić,Dragan Bataveljić / Language(s): Serbian Publication Year: 0

The problem of quality in the state and local governments „has been opened“ by David Osborne and Ted Gaebler in the book Reinventing Government published in 1992. In those years, dissatisfaction with administration in state and local services levels culminated in the USA. That is why it is not surprising that in one issue of the Times magazine to the question „Is the state dead?“, most Americans answered „yes“. Why? Despite the large state funding, only 5% of Americans in 1980 were satisfied with the service and felt that it was the success to work in the civil service, while only 13% of civil servants would recommend this career to others. Debate started on whether there was too much or too little of the state apparatus. In the opinion of Osborne and Gaebler's (Hunt, 1994) „our fundamental problem is that we have bad kind of a state. We do not need more state or less state, we need a better state. To be more precise, we need better management. Management is the process by which we collectively solve our problems and meet the social needs. State is merely the instrument which is outdated and must begin the process of improving.“ It highlighted the importance of quality in public administration. This problem was later analyzed in other, particularly European countries, and later in the EU through the development of a common framework for evaluating the public sector (The Common Assessment Framework, 2002).In the first part of the paper the problem of the quality of public administration and public sector is analyzed and data structures of a common framework for the assessment (CAF) in the public sector are given. Second part of the paper offers an approach to improvement of leadership in the public sector.

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Значај карактера изборних листа за остваривање бирачког права

Author(s): Goran Marković / Language(s): Serbian Publication Year: 0

Although the right to vote is universal and equal, many factors complicate its efficient realization. One of these factors is the nature of electoral lists, which determines to what extent the voters would be able to influence the election of their representatives. Besides, the nature of electoral lists influences the behaviour of political parties and candidates.In this work we analyse the factors determining the behaviour of political parties and candidates, as well as the influence of different types of electoral lists on exercizing the right to vote. More specifically, we analyse the influence of electoral lists on: composition of the parliament (social, gender and ideological and political); behaviour of the members of parliament (interests which they represent, relationship with voters and the way in which they decide how they would vote); political corruption. The overall analysis is expected to confirm the basic hypothesis that different types of electoral lists do not have substantially different importance for the realization of the principle of people's sovereignty, although some types of electoral lists enables citizens to participate in the creation of state power more efficiently.

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Смисао и циљ става о поштовању "територијалног интегритета Косова" у извештају Европске комисије о напретку Србије за 2012. годину

Author(s): Sava Aksić / Language(s): Serbian Publication Year: 0

In its annual report on Serbian progress in the process of integration into EU for the year 2012 the Europеan Commission asked from Serbia to respect ”territorial integrity of Kosovo” – southern Serbian province which has, contrary to international law, proclaimed its ”independence”. To ex-plain this kind of demand, the European Commissar has said that it doesn’t implicate any status of Kosovo, because the territory does not implicate that an entity has a character of the state. According to him, the aim is only to avoid division of Kosovo.But, every valid theory of state sees territory as the first condition for existence of a state. So, with regard to the valid theories of state, history and practice, it is impossible to draw any other conclusion other than that the existance of a state without territory is impossible.The only purpose of the European Commission's demand is to use Serbia's aspiration toward integration into European Union for Serbia's recognition of its own province as an independent state. Such demand of the European Union obviously shows that Serbia has no equal position in comparison to other states candidates for membership in the European Union.

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Narodni suverenitet i princip vladavine prava u savremenoj državi naciji sa posebnim osvrtom na Bosnu i Hercegovinu

Author(s): Dženeta Miraščić / Language(s): Serbian Publication Year: 0

The modern nation-states represent the highest form of political organizing, so this is why they are presented with an extremely complex tasks related to the enforcement of the rule of law. Using the legitimate coercive apparatus, as well as all the mechanisms available to modern state-systems of law, nation-states are obliged to ensure the equality of all citizens as the primary political actors, and to protect them from all forms of discrimination and arbitrariness of the state authorities. Through consistent and full implementation of the principle of sovereignty of the people, modern nation-states are obliged to provide their citizens, regardless of their (non)membership to a particular social group, with assurance of their participation in the socio-political decision-making process under equal conditions. Furthermore, based on democracy as the rule of the people or the opportunities of equal and free members of the community and their rights to participate in public decision-making process, the modern nation-states, both on national and international level, are determined as the only subjects who can guarantee the protection and realization of fundamental rights and freedoms for all its citizens.The primary task of the modern states is to ensure the freedom and equality of all members of the specific socio-political community. But equality among individuals must necessarily be accompanied by appropriate state's instruments whereby government will guarantee to all citizens certain rights on the basis that will recognize their abilities, which will still result in enabling a common form of political action. However, despite numerous efforts, a significant number of states are not able to consistently and fully implement the idea of sovereignty of the people and the rule of law, which has resulted in the creation of the so-called systematic inequality of life chances which have serious consequences for citizens who are unable to participate in the work of public authorities. In this regard, it is absolutely impossible to achieve a stable and unified society within the nation-states in which common structure of political action is limited as a result of systematic inequality of life chances; thereby the process of decision making is becoming the sole privilege of the few.When it comes to Bosnia and Herzegovina, it is important to note that this is a pluralistic society which consists of a number of cultural, ethnic and religious communities, in which the “major role” of the socio-political decision-making process is played by three ethnic communities – constituent peoples: Bosniacs, Croats and Serbs, who, based on current normative regulations in the modern constitutional arrangements, enjoy privileges, certain rights and freedoms. Under provisions of the Constitution of Bosnia and Herzegovina, "most dominant" collectivities within Bosnian multicultural society - the constituent peoples - are guaranteed participation in the work of public authorities and they are thereby guaranteed proportional parity of representation at any level of government and in all major political institutions. In addition to parity and proportional representation, constituent peoples, at all state levels, can appeal for the application of mutual veto.In contrast to the Kingdom of Belgium and the Swiss Confederation, the states which are also subject to internal turmoil, as well as numerous requests for recognition of different status and rights, Bosnia and Herzegovina on the map of European (and global) states is defined as a state-legal community in which individuals (citizens) do not have the status of primary political subject, and also as a community in which there is no normative (and institutional) protection of individuals and their fundamental human rights and freedoms. Giving primacy to collectivities (constituent peoples), the Constitution of Bosnia and Herzegovina is deter-mined as one of the few constitutions in the whole world in which so-called undemocratic elements dominate, violating the basic postulates on which the entire modern international community is based. Under the provisions of the Constitution, the principle of the rule of law and the principle of “ethnic determinism” are proclaimed at the same time, which characterizes Bosnia and Herzegovina as a state that is located between the legal and authoritarian state's spheres.In Bosnia and Herzegovina it is necessary to set up such constitutional and legal frameworks that bring the principle of sovereignty of the people and the rule of law into the state-legal system and socio-political decision-making process. Bosnia and Herzegovina as Hegel's “organization of substantial freedom” shall be placed above all ethnic, religious and other existing communities, and shall allow to each citizen, on equal terms, free and complete realization of the basic rights and fundamental freedoms. Therefore, we suggest that all constitutional reforms go in the direction of the normative (constitutional) and institutional foundation of the Bosnia-Herzegovina nation. In other words, in the socio-political decision-making process, it is necessary that a nation of Bosnia and Herzegovina (citizens of Bosnia and Herzegovina) has priority over all existing cultural, religious and ethnic collectivities, in which process it is forbidden to negate or diminish the importance of the (specific) collective rights (and interests) that these communities and its members enjoy.

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Наставни садржаји који могу угрозити слободу вере

Author(s): Nenad Tupeša / Language(s): Serbian Publication Year: 0

In this paper, the author analyzes the impossibility of coexistence of educational contents that are contradictory to one another. The author tries to point at the problem of opposites that originates in the phenomenon of contemporary existence of religious education as an optional subject in the school system of Republic of Srpska and an attempt to introduce new educational content entitled “Sexual education” as an optional subject in high schools in Serbia. According to the Article 40 of the Law on Churches and Religious Associations, “the right to deliver religious education in civil and private elementary and high schools is guaranteed by the law”, which results from the Article 1 of the same Law (Official Gazette of Republic of Srpska, No. 36/2006). The author wants to point at the danger of introducing the subject “Sexual education” in schools, which is in collision with the aforementioned Law, which may endanger the principal moral values of the traditional Churches and religious associations, as well as to cause a negative critique by the society. The rush toward the European way of integrations, which, in the words of professor Panov, demands the sacrifice of real and original moral values for the sake of the propagated moral suspension, is actually a wrong path that has “Sexual education” or, as they named it in the pilot project, “Reproductive health education” as one of its many small stops.

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Vladavina prava i ovlašćenja ombudsmana

Author(s): Nada Grahovac / Language(s): Serbian Publication Year: 0

Institution of Ombudsman was introduced to legal system of Bosnia and Herzegovina by the Law on Ombudsman for Human Rights which was imposed by High Representative for B&H in 2000 and adopted in its original text by the Assembly of B&H Parliament in 2002. In its field of work Institution of Ombudsman faced lack of legally defined authorities for efficient exercise of Ombudsman mandate. It is emphasized that the Law on Ombudsman for Human Rights of Bosnia and Herzegovina did not give authority to the Institution to initiate laws and other bylaws that are important for respecting and protection of citizen’s rights as well as to initiate procedure before the Constitutional Court for legal removal of those laws and bylaws that lead to violation of citizen’s rights. Such legal solution is not only contrary to the Parisian Principles that set guidelines for establishing of institution, its competencies and independence of the institution for protection of human rights but it also con-strains institution’s abilities to protect citizen’s rights in individual cases and in its preventive activities. If it is kept in mind that, by definition, ombudsman is protector of legality and citizen’s rights, than his/her authorities must be widely and clearly stated in a way that allows him/her to meet requirements when facing mechanism of protection of human rights. That, among other things, includes authority of ombudsman to initiate proceedings in cases when, in his/her view, violation of human rights is a result of poor or faulty regulations, and ombudsman’s authority to initiate proceedings before the Constitutional Court in order to prevent violations of citizen’s rights that are consequence of application of the law and other regulations that are not in accordance with the Constitution and international standards for protection of human rights.

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Ovlašćenje ili dužnost stranaka da raspravljaju pred sudom. Posledice pasivnosti stranaka u parničnom postupku

Author(s): Arsen Janevski,Milka Rakočević / Language(s): Serbian Publication Year: 0

The subject of interest of this paper is the matter concerning the position of the parties and the manner of their conduct (active or passive) in the civil procedure. Are the parties obliged to argue before the court and actively participate in the court proceedings, or do they decide themselves what their attitude would be, which suggests that they may be completely passive without the need to turn to the procedural activities undertaken by other parties in the proceedings? The adversarial principle in the contemporary civil procedure is designed in a way that the principle itself means a power of the litigants to be heard in the proceedings, without imposing an obligation of referring to the allegations presented by the adversarial party. The lack of obligation of having an active posture in the proceedings doesn’t mean that the party could act arbitrarily and obstruct the speedy and efficient adjudication on the merits. Having this in mind, the procedural regimes, while proclaiming the power of the parties to adversarial proceedings, at the same time are proclaiming negative legal consequences for the passivity of the parties.

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Кодификација грађанског права као допринос владавини права

Author(s): Branko Morait / Language(s): Serbian Publication Year: 0

In this article, the author deals with legal regulation of contractual relations in countries that once formed Yugoslavia, especially in Bosnia and Herzegovina. In Bosnia and Herzegovina, the Draft Law on Contractual Relations was prepared by the date of 28th of January 2003, when two study groups from both entities completed their work formulating the text of Draft in organization of entities’ legal departments, which was sup-ported by the German government organization GTZ. After the said date, Department of Law took on the responsibility of organizing the work on completing the Draft, with the help of OHR, but the result of their labor did not become a positive judicial text. The author tries to clarify the importance of Yugoslav Law on Contractual Relations from today’s perspective and concludes that it still largely affects the legislative processes of regulating contractual relations in all former Yugoslav republics. Law on Contractual Relations has prolonged its judicial life with the reception into new legal orders, which, in turn, subjected it to smaller or larger adjustments. And in places where the new legal text on contractual laws was passed, major deviations from the source have not been noticed, as in term of both the systematic and the content of the legal text.

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Vladavina prava i pomorsko pravo u eri globalizacije

Author(s): Dragan Bolanča / Language(s): Serbian Publication Year: 0

Maritime law originally belongs to the continental legal system but is, in its essence, a mixed legal system, because it also contains a number of elements of Anglo-Saxon law. Despite some original solutions pertaining only to maritime law and irrespective of the great influence of international conventions, including the international law of the sea, it cannot be claimed that this is universal law, i.e. a special (third) legal system in the world. However, its great uniformity undoubtedly contributes to the rule of law in maritime enterprises.

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Пословно удружење као посебан правноорганизациони облик у праву Републике Србије

Author(s): Ljubiša Dabić / Language(s): Serbian Publication Year: 0

In his paper the author offers an in-depth analysis of status and legal nature of business association as distinct legal organizational form as defined by the law of Republic of Serbia. It highlights the fact that this pertains to business entity only in its wider sense.Business Association is an independent organization with legal personality, which is established by articles of association by at least two business entities operating under mutual name with the purpose of accomplishing mutual interests of its members, with liabilities to third parties guaranteed by its total assets, while its members are liable in the manner determined by the articles of association. It must be noted that business association in our legal system is not by its legal nature legal form for business activities with goal of making profit, moreover its not business entity, regardless of the fact that is regulated by the Company Law, that it is founded by other business entities, that it is entered into Business Register, that it has business name (company) and not the name under which it operates etc. The author in this paper considers the similarities and differences between business association and European group of economic interests, respectively business chamber.

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Ostvarivanje prava na izdržavanje - (ne) moć države

Author(s): Nevena Petrušić,Slobodanka Konstantinović Vilić / Language(s): Serbian Publication Year: 0

Because of the patriarchal ideology and gender role stereotypes, mot-hers are the ones who most frequently have sole legal custody of the child, based on the certain legal agreement, or on certain decision of the court. This form of child custody means that the father is obliged to pay child support – allimony, in accordance with his possibilities and the child’s needs. However, in practice, child support avoidance is a frequent phenomenon, which causes children and mothers, especially the unemployed mothers, to fall below poverty line. The court realization of the legally enforceable right to child support is followed by many difficulties because the system of free legal assistance does not exist, and the regulations about the exemption from the previous obligation to pay legal fees and free legal representation are not applied. The enforcement of judicial decisions regarding the obligation to pay child support is extremely ineffective and inefficient, which has been confirmed by the recorded proceedings of the cases from different courts in Vranje, Preševo and Bujanovac, which refer to the enforcement of judicial decisions in child support trials. Taking into account the current significance of the right to child support, it is necessary to take measures in order to increase the efficiency of the court in terms of giving legal protection. It is highly important to establish child support funds which would provide child support in cases when parents avoid paying child support. The postponement of criminal trials (Article 283, Section 4 of the Criminal Procedure Law), which has, in practice, produced positive effects, should be applied more widely; also, positive effects can be produced by means of efficient court proceedings and adequate punishment of the perpetrators who commit a criminal act of the failure to comply with child support order.

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Споразумна диоба у браку стечене имовине (de lege lata и de lege ferenda)

Author(s): Stanka Stjepanović / Language(s): Serbian Publication Year: 0

Amicable division of property acquired in marriage may be the desire of spouses to their undetermined interests. This can happen during marriage and at point of dissolution of marriage. The focus of this paper is on amicable division of property acquired in marriage. But the agreement does not always reflect the free will of the contractor; usually it is the pressure of one spouse which leads to violation of the rights of another spouse. The analysis of consensual division leads to a conclusion that there is a need to amend the law regulating mandatory form of such an agreement. Amicable division of property acquired in marriage has two dimensions: the constitutionally guaranteed freedom of contract and equality of spouses and at the same time limits the freedom rights of third parties, in particular, freedom rights of public bodies. Therefore, amicable division of property acquired in marriage should always take the form of a court settlement. If the spouses have minor children or children over whom they have extended parental rights and guardianship, representative of authority should be present at the proceedings. The court should require that the parties make a statement, under civil and criminal liability, that they have no debts to third parties. If, however, parties do have debts to third parties, the said third party(ies) should submit statements confirming they are familiar with the agreement of the spouses, and that this agreement is not contrary to their interests. This would prevent abuse of the rights of spouses to amicably division. It is also important that the judge at the hearing carries out detailed examination in order to make sure that neither of the spouses was forced or tricked into concluding such an agreement. In legal theory and jurisprudence there are different possible interpretations of using the Paulian claim in canceling agreement on division of property acquired during marriage. Paulian claim is possible in these cases, but anyway, it is better to prevent a lawsuit being filed before the court by corroborating an agreement with participants and creditors.

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Остварување на принципот на владеење на правото во граганскоправните односи

Author(s): Rodna Živkovska,Tina Pržeska / Language(s): Macedonian Publication Year: 0

The text shows that the rule of law in modern legal systems is accepted as a fundamental principle in direct correlation with democracy, protection of human rights, and recently with economic development. Due to the different approaches in defining the rule of law in modern legal theory, the text shows that there are two stages of realization of the rule of law – thin principle of rule of law and thick principle of rule of law. The thin principle of rule of law involves laws that in formal sense provide law and order, protection of human rights and civil rights, efficient judicial system etc. The thick rule of law involves certain values such as democracy, security, justice, equality. The text shows that in article 8 of the Constitution rule of law is determined as one of the fundamental values of the constitutional system in Republic of Macedonia. Beside the constitutional proclamation of rule of law, the text shows that the guarantee of ownership, legal protection of ownership and free market play crucial role in realization of this principle in civil relations. In the analysis of general and special laws, it is stated that in achieving rule of law, in the broader sense of the word, the quality of the laws is as important as their quantity (sufficient number of laws that regulate civil relations) because the rule of law should involve values such as justice and equality. Realizing the principle of rule of law in civil relations, as it is shown in the text, involves creating legislation based on the principles that govern civil relations. Consistent application of these principles when regulating civil relations is crucial regarding the rule of law because it underlines the nature of these relations instead of suppressing it. The text shows that limitations in civil relations are also in the function of rule of law because the limitations are set in order to create space where the rights of one person may be exercised without limiting the rights of others.The analysis of special laws in the text shows that regulations increasing the liability of government bodies when they are in position to deter-mine right and duties of persons has been recently implemented (for government officials there is a misdemeanor responsibility, and for government bodies liability for damages).The general conclusion is that in Republic of Macedonia there has been a progress regarding the rule of law in all areas of the legal system. However, achieving the so called thick principle of rule of law still represents a challenge for Republic of Macedonia.

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Владавина права у наследном и породичном праву

Author(s): Slobodan I. Panov,Miloš Stanković / Language(s): Serbian Publication Year: 0

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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Кодификација на Семејното право во Република Македонија

Author(s): Dejan Mickovik,Angel Ristov / Language(s): Macedonian Publication Year: 0

The Republic of Macedonia is in the phase of drafting the Civil Code of the Republic of Macedonia. The Commission for developing the Civil Code has prepared the pre-draft relating to the Obligations and the Inheritance Law. In this paper, the authors are elaborating the suggestions for the reform of family law, which should be an integral part of the codification of Civil Law in Macedonia. The authors believe that Civil Code, in part related to family law, should include the marriage contract, which is now governed by the law of the family. The marriage contract allows spouses to regulate their own mutual property rights, which corresponds to the con-temporary nature of marriage and allows the realization of the free will of the spouses. The authors also believe that the Civil Code should regulate the marital bans in the extramartial community, which is not the case in the existing family legislation in Macedonia. One of the most pressing issues that arise in the course of reforms in the family law systems in modern societies is the need to provide special legal protection for the marital home. Keeping in mind the needs of the children in practice, as well as solutions from comparative law, the authors believe that the Civil Code should provide special legal regime for the joint matrimonial home. The authors also invoke the principle that after a divorce the parents should jointly exercise parental rights corresponding to the rights and interests of their children. In addition, changes should be carried out relating to children's rights which would provide harmonization of the Macedonian family legislation with the UN Convention on the Rights of the Child. The codification of family law should also provide the mediation in family disputes, especially when it comes to divorce. The authors believe that in the case of a divorce mediator should predict the jurisdiction of the Center for Social Work in the conciliation proceedings, which is currently being conducted by the primary court judges. In addition, in the case of divorce by consent, and when the spouses do not have mutual children, the authors find that after mediation, marriage should be divorced by the notary, and not by the court.

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