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Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy and Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks are basic regulations in the field of flood protection at the EU level. Serbia is currently in the process of harmonization of legal regulations in this field. The paper analyzes three phases of flood management envisaged in the Floods Directive, as well as their application in some European countries and Serbia. The problems that have arisen in the implementation process are considered, with special emphasis on the issues related to the development and implementation of flood hazard maps and flood risk maps as well as the practices of different countries regarding their use, particularly in the field of spatial and urban planning and insurance. The implications of applying these maps in Serbia are currently uncertain. The question is to what extent and in which areas they will be used. The analysis of their usage in individual countries, provided in this paper, can be a starting point when considering different solutions and possibilities for their integration into the domestic system. In addition to national flood risk mitigation measures, international cooperation in this area is also very significant. For this reason, one part of the paper focuses on international agreements on water management, which are important for Serbia and contain provisions on flood-related issues.
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Donatio mortis causa is regulated in the Preliminary Draft of the Civil Code as a type of donation contract including the special agreement that it should be executed after the death of the donor. Donatio mortis causa thus understood is an inter vivos contract whose execution has been postponed until the death of the donor. It is an inter vivos contract, with a deferred term of indefinite duration. Such a contract creates an obligation relationship immediately upon conclusion, and can result in the forced fulfillment of the donor’s obligation. This understanding is contrary to the Roman understanding of donatio mortis causa. Donatio mortis causa produces legal effect only after the death of the donor; until the moment of his death, there is only a natural obligation (or moral obligation) of the donor not to cancel the contract. In addition, the Preliminary Draft Code must clearly state the condition that the donor must outlive the donor, since it is only from the moment of the donor’s death that the donor can request the gift to be handed over. Since this contract does not result in a classic obligation, which gives rise to rights and obligations for the contracting parties from the moment of conclusion, the donor is free to dispose of the object of the gift. Accordingly, the donor is free to revoke the gift, at any time, without giving any reason.
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The right to legal aid in cross-border disputes is a procedural right of the person who has the citizenship, domicile or habitual residence on the territory of a state which provides for exercing the right to legal aid in disputes conducted before the competent authority of another state. In the Republic of Serbia, the right to free legal aid in cross-border disputes is regulated by the Free Legal Aid Act, which regulates the exercise of the right to free legal aid in the territory of European Union. In particular, it provides the definition of a cross-border dispute, the types of free legal aid, the conditions that the applicant is required to fulfill in order to be granted the status of a beneficiary, the procedure when the dispute with an international element is conducted before the court in the territory of Serbia or an EU Member State, and the types of costs covered by free legal aid. In order to exercise the right to free legal aid in a dispute which is conducted before the court of another EU Member State, the applicant who has domicile or habitual residence in the territory of an EU Member State may submit the free legal aid application in two ways: a) directly to the receiving authority of the state in which dispute is conducted, or b) indirectly via the transmitting authority of the state in which the applicant has domicile or habitual residence. In the Republic of Serbia, the transmitting and the receiving authority is the Ministry of Justice. When the cross-border dispute is conducted before the competent court in the territory of the Republic of Serbia, the Ministry of Justice is in charge of deceding about the applicant’s legal aid application.
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Although an integral part of most constitutions, the preamble has been on the margin of interest of legal studies for a long time. The key reason may rest on the fact that the legal nature of the preamble has not been fully determined and clarified yet. The process of determining and defining its legal nature is a delicate task, particularly considering that it is a phenomenon which lies at the junction between politics and law. Given the fact that most constitutions do not determine the legal effect of the preamble, the legal theory has engendered three distinct perspectives on the legal nature of the preamble. According to the first point of view, a preamble is a ceremonial political declaration and an introductory statement into the normative part of the constitution, for which reason it lacks the operative legal value. The second point of view attributes limited legal significance to the preamble, but only as an auxiliary tool for interpreting unclear constitutional norms, as it classifies them into a relevant socio-political context. According to the third point of view, the preamble is an integral part of the constitution and its legal effect is equal to the normative part of the constitution. The author suggests that any principal viewpoints and extremes should be avoided in drawing conclusions in this field because the legal nature of the preamble first and foremost depends on its content.
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The paper explores the history of the Serbian Progressive Party in the Kingdom of Serbia from 1887 to 1896. After the fall of the government of Milutin Garašanin in June 1887, the Serbian Progressive Party ended among the opposition parties. After the fall of the Progressive Party from power, the first coalition liberal-radical government was formed, headed by Jovan Ristić. The Progressive Party members and supporters were persecuted by the ruling People’s Radical Party. The Progressive Party lost the voters and deputies in the National Assembly, which suggested that it would not be able to recover for an extended period. However, less than two years later, in May 1889, the Progressive Party managed to organize a General Assembly, attended by over 2,000 members, who adopted the party program and statute which did not differ substantially from the one from 1881. It was quite obvious that the party leadership wanted to show that the Progressive Party did not disappear from the political scene, but that it temporarily withdrew to reconsolidate and focus on gathering voters. Yet, due to the unrest that erupted in Belgrade during the party assembly, the Party leadership announced in June 1889 that the Progressive Party would temporarily suspend its activities. As the withdrawal from the political scene did not produce any results, the Party leaders decided to resume the Party’s activities, hoping that the situation would eventually change in their favor. In the September 1890 elections, the Progressive Party won one parliamentary mandate, which went to the Party’s leader, Milutin Garašanin. In the National Assembly, his political struggle against the ruling Radical Party government was hardly observable, but his articles published in the Progressive Party newpaper ‘Videlo’ (Daylight) had a much greater impact on the readers. During the minority liberal government of Jovan Avakumović, in 1892-1893, there were attempts to reach an agreement on a pre-election coalition between the Liberals and the Progressives against the Radicals, but these attempts failed. After the coup of 1st April 1893, when the Radicals regained power, it was quite clear to the Progressive Party leaders that they could not fight the Radicals on their own. The idea of forming a new political grouping of liberals and progressives was soon abandoned. After the 1888 Constitution had been repealed and the 1869 Constitution had been reinstated, King Alexander tried (with the assistance of rare non-partisan people) to avoid the intransigence of the Progressive Party leaders and the supremacy of the Radicals. After the period of several neutral governments headed by Đorđe Simić (January - April 1894), Svetomir Nikolajević (April - October 1894), and Nikola Hristić (October 1894 - July 1895), the Progressive Party government headed by Stojan Novaković (July 1895 - December 1896) was formed. This government initiated a change in the Constitution but the idea was not upheld by King Alexander, as the Liberals and the Radicals did not agree to instituting the constitutional reform under the administration of the weakest party in the country. In such circumstances, Novaković resigned on 29 December 1896. The next day, the Progressive Party was dissolved by the decision of the Party leadership.
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The paper analyzes the findings of the Human Rights Committee in the case of Ioane Teitiota v. New Zealand. The procedure was conducted in accordance with the provisions of the International Covenant on Civil and Political Rights and the First Optional Protocol to the Covenant. The Committee considered the violation of the right to life contained in Article 6, paragraph 1, of the Covenant. The applicant argued that his return to Kiribati, his country of origin, would jeopardize his right to life. The statement considered the negative effects of environmental damage and the impact of climate change on the applicant’s right to life. The basic hypothesis of the paper is to consider the Committee’s statement in the light of expanding the protection of the right to life and paving the way for recognizing the impact of climate change on the basis of human migration. In the future, this could develop normative activity and practice of international bodies and states in the direction of recognizing so-called environmental refugees.
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Violent acts against life and physical integrity of others certainly fall among the most dangerous forms and manifestations of violent crime. These are different forms of homicide, including a range of criminal offences of murder; given the importance, nature, characteristics, and consequences of these criminal offences, all contemporary criminal legislations prescribe severe punishment. The Criminal Code of the Republic of Serbia envisages three types of murder (Art. 113-115 CC): a) ‘common’ murder, punishable by a term of 5-15 years’ imprisonment; b) “privileged” murder in a heat of passion (manslaughter) punishable by a term of up to 8 years’ imprisonment; and c) aggravated (“qualified”) murder punishable by a term of at least 10 years or 30-40 years’ imprisonment. In addition, many contemporary criminal legislations in Europe recognize a criminal offence of mercy killing; in different legislations, it is designated as mercy killing or euthanasia (killing out of mercy or compassion) or assisted-suicide at the request of the patient/injured party. Mercy killing is also envisaged in the Serbian criminal legislation as a special “privileged” form of murder, committed out of mercy or compassion voluntarily or at the explicit request of a person suffering a serious medical condition, which is punishable by a term of imprisonment ranging from 6 months to 5 years (Art. 117). In this article, the author discusses the concept, content and special characteristics of this “privileged” form of murder in Serbian law and in European criminal legislations, from the perspective of legal theory and practice.
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The Vienna Convention on Diplomatic Relations regulates the general framework for the implementation of diplomatic functions of State. Contemporary diplomacy is evolving in many areas that have not traditionally been in its focus, such as police and intelligence cooperation. The Republic of Serbia has also started appointing police and Security-Intelligence Agency representatives to diplomatic missions abroad. It is essential to monitor and study this practice from the standpoint of legal regulation. This matter is regulated by diplomatic and consular law, but also by national legislation and diplomatic practice. The experience and tradition of defense (military) diplomacy of the Republic of Serbia in adapting its functions to the Vienna Convention on Diplomatic Relations, legal regulation and organizational and functional support to the defense attachés network, the procedures for selecting defense attachés, training and preparing them for the duty, as well as monitoring and directing them during the performance of the diplomatic service are indisputable at the national level. The tradition of military diplomacy has prevailed for more than 140 years, which indicates the level of diplomatic practice that leads to the conclusion that Serbia does have all the needed criteria for quality and functional implementation of the assigned tasks. The question is how these criteria are met in the newly formed network of diplomatic representations of the Police and the Security-Information Agency, bearing in mind the extremely negative experiences with economic representatives of the Republic of Serbia abroad. There is no doubt that their engagement is in line with international and national legislation, but the issue of the lack of diplomatic practice in organizational and functional terms remains a questionable one. Furthermore, there is the issue of their responsibilities within the diplomatic and consular missions and the harmonization of different professional cultures and ethics, as well as the preparation for performing their duties abroad. It is clear that all these problems cannot be solved in a short term, which is a relatively new organizational solution. Some time is needed to detect shortcomings in practice and generate the experience necessary to overcome them. The practice of organizing defense (military) diplomacy of the Republic of Serbia can certainly serve as a signpost for their resolution, while respecting the specificities arising from different responsibilities and professional ethics. By analyzing the specifics of the implementation of the Vienna Convention on Diplomatic Relations in defense (military) diplomacy, analogies can be seen with the defining functions, while its legal and organizational experiences can serve as a guide to regulating the functions of Police and Security-Intelligence Agency representatives in the diplomatic service.
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One of the major directions in IT development is the emergence of Blockchain technology, which is rooted in the concept of distributive ledger technology (DLT). Blockchain is based on the use of a cryptographically protected chain of transaction blocks containing information. Blockchain technology becomes relevant in economic exchange as it lowers costs and adds efficiency to transactions` implementation. The key quality of blockchain is that it ensures the authenticity of digital data; trust in the traditional legal relationship has been replaced by digital verification of data in blocks. Verification of digital data by tracing transaction blocks is identical to a hard copy ledger: blocks function as bookkeeping inputs of a digital manager. The blocks are functionally equal to sheets of paper, used by all participants to enter their transaction and sign it. In doing so, they grant authorization to all previous paper transactions. The foregoing process continues as long as there is space on paper available. When the sheet is filled, it is secured with a stamp and new transactions are recorded on a new sheet of paper which, once filled, is linked to the previous paper (secured with the signature and a stamp on the margin between the first and second paper). A functionally identical activity occurs in the framework of blockchain technology. As the important phenomenon, blockchain raises legal issues that have to be addressed in the process of its implementation. Currently, the legal regulation of blockchain is at the stage of developing customs, which are likely to be translated into standards relevant to this technology. Standards are a discretionary regulatory framework in the form of private law regulation; in essence, it is a software-driven expression of traditional contracts, translated into programming languages. The relevant doctrine labels this process as “legal engineering”. An example of this development is the legal regime of “Smart Contracts”. These contracts constitute the next stage in the development of blockchain deployment; they are based on a cryptographic process enabling the execution of contracts once the preconditions contained in the program code are satisfied. The emerging legal regulation of blockchain will not rule out the existing legal norms; rather, they will operate simultaneously and complementarily.
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The subject matter of this paper is the notion of spite (“inat” – relentless gridge and obstinacy in spite of consequences) and spiteful conduct as a special social preference. The goal is to examine the significance of spitefulness and its implications in analyzing the litigation and the choice between trial and settlement. In this paper, spitefulness is viewed from the perspective of different economic science disciplines (behavioral economics, experimental economics, neoclassical economic analysis of law) as well as psychology and evolutionary biology. Yet, primacy is given to the behavioral economics point of view, where spitefulness is defined as a willingness to inflict harm on others at one’s own detriment and expense. In that context, the paper presents statistics on the number of civil proceedings in Serbia, together with comparative data on this matter, and discusses the implications of spiteful behavior on the number of civil proceedings. The paper sets out a conceptual framework for further empirical research on spite and spiteful conduct, and their importance in deciding whether to initiate litigation and/or choose between trial and settlement. It also examines the preferences of the Serbian citizens on this issue in order to address the following questions: do Serbian citizens prefer to litigate, and what is the role of spite in that context?
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This paper analyzes international standards relating to discrimination in terms of employment and occupation, which are primarily contained in the legal instruments of the International Labor Organization. The above standards are contained in the Convention no. 111. and Recommendation no. 111 of 1958, as well as Convention no. 100 and Recommendation no. 90 relating to the equal rewarding of male and female labor force. In particular, the author analyzes the problems and obstacles arising in the application of international standards related to the issue of discrimination in employment and occupation, and standards pertaining to the equal rewarding of male and female labor force for equal work, i.e. for work of equal value.
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Recent studies, as well as the judicial and criminalistic practice, show that senior citizens can testify as reliable witnesses in the process of proving the commission of a criminal offence and provide complete (valid) statements, provided that they are subejct to adequately conducted inquiry. According to the latest population census of the Republic of Serbia (from 2011), there was a total of 1.250.316 registered citizens over the age of 65. It implies that approximately every sixth citizen of Serbia belonged to the category of senior citizens. Considering the general improvement of the living standard, the development of medical science and diverse possibilities of medical treatment in the contemporary world, the percentage of senior citizens in the total population of Serbia will keep rising, and it may be expected that senior citizens will soon become the prevalent population category. If the growth of human average lifespan continues, according to certain calculations, an average lifespan in sixty years will be 100 years for men, and 103 years for women. Thus, it is quite probable that that senior citizens are likely to appear in criminal proceedings in the capacity of witnesses. For this reason, there is a need for more extensive rearch on the fundamental psychophysical characteristics of senior citizens and determining relevant criminal law rules and procedures which would create objective and subjective conditions for their participation in criminal proceedings, particularly in terms of obtaining a complete, accurate and valid tertimony in the process of proving the commisison of a criminal offence. Concurrently, it would prevent secondary victimization of these witnesses. In this paper, we indicate the psychophysical traits of senior citizes, elaborate on the issue of interrogating senior citizen witnesses from the aspect of criminal procedure norms and rules of criminal tactics, and discuss the current issues encountered by interrogators in the course of the inquiry, with the aim of ensuring a better quality of witness statements of senior citizens.
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Although the independent oversight bodies and regulatory bodies have been part of the politico-legal system of the Republic of Serbia for some years, their nature, functions and main characteristics have caused frequent misunderstandings both among scholars and general public. The key attributes of this type of state bodies, such as: independence, autonomy, oversight and regulation, are often used uncritically; moreover, they are frequently used for labelling the bodies that do not have these features. This article analyzes the national legislation and demonstrates that the Serbian legislator regulates the independence of oversight and regulatory bodies in an inconsistent and, sometimes, contradictory manner. At the same time, the analysis has shown that the unclear nomenclature of state bodies further complicates the placement of regulatory bodies in the legal system, primarily due to the widespread usage of the term “agency” for state bodies of completely different legal nature. The aim of this article is to contribute to the definition and clarification of the mutual relations between the concepts of independence and autonomy, as well to explain the similarities and differences between oversight bodies and regulatory bodies.
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This paper discusses the issues related to the question of the content and application of the principle of certainty (lex certa) in criminal law. Special attention is given to the lex certa principle as envisaged in recent amendments to the Criminal Code of the Republic of Serbia, particularly regarding the specific application and problems encountered in judicial practice. In particular, the author explains individual crimes and points to some shortcomings of the legislative technique in prescribing a legal norm. In this regard, the author analyzes individual Criminal Code provisions on relevant criminal offenses. Further on, the author emphasizes the importance of proper understanding and interpretation of the existing general clauses. One of the most difficult tasks of legislative technique in criminal law is to define and prescribe the substance of a criminal offense (corpus delicti, the body of crime). The precise and specific definition of distinctive elements of crime is essential in criminal legislation. In case the legal elements of a criminal offence are broadly defined or provided in vague and imprecise terms, there is inobservance of the lex certa principle. In this context, the author elaborates on the distinctive elements of certain criminal offenses, their incrimination, as well as the objective and subjective features of the specific crime, which may give rise to different interpretations and activities in criminal proceedings, ultimately resulting in the inobservance of the lex certa principle. First, the author analyzes the recent amendments to the Serbian Criminal Code in respect of the following criminal offenses: Stalking (Article 138a CC), Sexual harassment (Article 182a CC), and Female genital mutilation (Article 121a CC). Then, the author points out to prospective changes in the national provisions on some criminal offences, which are already envisaged in the Istanbul Convention.
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The turbulent events in the territory of the SFRY and in the Socialist Republic of Bosnia and Herzegovina in the 1990s can be observed and analyzed from historical, legal and constitutional perspective. These events are still topical and highly important to historians, politicologists, and constitutionalists, since they triggered the creation of the Republic of Srpska, first as a state of the Serbian people of Bosnia and Herzegovina, and later as a constitutional entity and an integral part of a complex state of Bosnia and Herzegovina. At the beginning of the 1990s, the Serbian people in Bosnia and Herzegovina wanted to preserve the federal state (SFRY), in its federal form of government. Legal and legitimate representatives of the Serbs advocated for changing the statehood status of SR Bosnia and Herzegovina, in compliance with the constitution of that time. The secession of Slovenia and Croatia triggered the dissolution of the SFRY, which inevitably resulted in the dissolution of the constitutional order of SR Bosnia and Herzegovina. The lack of consensus among the constitutive peoples of SR Bosnia and Herzegovina on the change of the statehood status and the form of its future organisation resulted in the outbreak of a civil war. The dissolution of SR Bosnia and Herzegovina institutions and its territorial organisation eventually resulted in the creation of the Republic of Srpska, and then the Federation of Bosnia and Herzegovina. Exposed to strong political, military and economic pressure during the civil war and in its aftermath (during the peace-building negotiations in Dayton), the Republic of Srpska accepted to become a constituent part of the B&H Federation. The Dayton Peace Agreement (Accords) affirmed the independence of Bosnia and Herzegovina, its constitutional order, and its bipartite structure composed of the Republic of Srpska and the B&H Federation, as two equal constitutive and state-building entities. In the past 27 years since its creation, the Constitution of the Republic of Srpska has sustained a series of changes, for various reasons. When analyzing the status of the Republic of Srpska in Bosnia and Herzegovina, its current position and loyalty toward a common state are based on adherence to the Dayton Peace Agreement and an endeavour to preserve its political, national, ethical, cultural and every other form of survival, identity and subjectivity. The European integrations cannot and should not be the reason for constitutional changes and for arriving at solutions contrary to the Dayton agreement.
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The disputes arising as a consequence of the violation of subjective civil rights can be resolved through litigation, settlement, alternative dispute resolution, or some other method (compromise, force, etc.). By choosing the method in which they wish to resolve their dispute, the disputing parties also choose the rules that must be followed in the dispute resolution proceedings. If the disputing parties choose to protect their violated or threatened rights in litigation proceedings, they are obliged to comply with the established rules regulating civil procedure. If the decision on dispute resolution proceedings involves impartial third parties (a mediator, an arbitrator, etc.), the disputing parties’ relations will be regulated by the rules of particular proceedings. Acting as rational individuals, the disputing parties choose the dispute resolution method that enables them to obtain the highest benefit. The parties’ decision on the choice of the dispute resolution method is influenced by a number of factors. Economic analysis has developed models and offered answers for determining the reasons why disputing parties decide to choose a specific dispute resolution option. This paper presents the decision-making factors which influence the parties’ choice to resolve their dispute through litigation, settlement, or particular alternative dispute resolution proceedings.
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This article deals with the relationship between parody and intellectual property law. First, the author presents the concept of parody in European law. In this context, the CJEU judgment delivered in the case Deckmyn v. Vandersteen is extensively analyzed. In addition to discussing parody within the framework of copyright and trademark law, the author presents several cases from the emerging area of fashion law. As the CJEU has not ruled on any case concerning fashion law, the author mainly focuses on the United States case law. Most cases related to fashion law usually end in confidential agreements and out of court settlement. Yet, several cases were decided in national court proceedings. All these cases illustrate how parody is used ineverydaylife in the fashion world.
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In the new reality of these days, professional associations of magistrates have asked, through public calls, for urgent decisions intended to stop the pandemic spread in courts and prosecutors’ offices, and for legislative and administrative amendments, either by a reduction of the court examination activity to the settlement of urgent cases or by eliminating the stage of oral proceedings in some of the cases pending in courts and the immediate digitization of courts.This article seeks to bring into discussion once again the (alternative) proposal regarding the elimination of the stage of oral proceedings, by bringing back the relevant procedure provisions to the forefront, even under the temporary circumstances faced by the society, in order to see whether such restriction is in the letter and spirit of Art. 6 of the Convention, of ECHR’s jurisprudence and of the rigors imposed on the practice of the lawyer profession, in order to conclude whether such intervention in the normal, natural judicial activity is necessary and should be adopted. By changing the procedure rules in courts, can we eventually conclude that such requested restriction is able to guarantee an efficient and safe administration of justice?
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This article aims to analyse the premises and the need to document the economic interest, in the context of the intercompany guarantee operations provided by Law no. 31/1990. The celerity presumed by the commercial transactions, the urgent need for competition and streamlining of the contractual documentation, especially within a group of companies, where there is a community of shareholders and management can sometimes lead to the setting-up the of intercompany guarantees without a thorough prior analysis of the economic interest, taking into consideration that any operation of a company must bring a benefit, direct or indirect, present or future. This is all the more so as the lack of such an interest can lead to a breach of the provisions on the unlawful cause as provided by the Civil Code, with important effects on the company. In other words, the economic interest has to be considered prior to the signing of the guarantee act, from a financial-accounting and legal perspective, inclusively through the amendment of the law, so that the guarantee act to be outside of any reservations.
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