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The article attempts to verify a common conception that has by now become an integral part oflegal culture in civil law jurisdictions, namely, the conception that despite its unresolved legal status, case law (i.e. the body of past judicial decisions) is widely used by the courts when they are justifying their interpretative choices. For this purpose, an exploratory empirical study of court citation practices was conducted. The study focused on a sample of the officially reported decisions of the Supreme Court of the Republic of Slovenia and the appellate (Higher) courts on civil matters in 2011 that were publicly accessible on the official internet database of the Slovene courts. The aim of the study, which provides the first systematic outline of the use of case law in the judicial decisionmaking process within the Slovene legal system, was to verify whether case law in fact constitutes an important factor in judicial decision-making. It did so by focusing on the extentand the manner in which Slovene courts refer to case law, as these may be inferred from the reasoning of their decisions.
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In 1965 Kálmán Kulcsár, the leading researcher of legal sociology carried out the first and for long the last questionnaire survey that aimed to assess the legal knowledge of the Hungarian population. In an omnibus survey representative for the adult Hungarian population we used several questions identical with those of Kulcsár’s in order to answer some of his research question. These questions are for instance: how the knowledge of law (criminal, constitutional, procedural) differs; or how the knowledge level of various social groups (based on gender, age, social status etc.) varies; or how media consumption, civil activity or previous interaction with legal institutions (e.g court) influences knowledge level. Obviously, we had an additional major question: how all these have changed in the past almost half century? Our main finding is that the knowledge about law has certainly increased during this period; moreover, the main impetus behind this was the increase of the general educational level in the country.
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The 2010 election in Hungary resulted in the victory of Fidesz, a conservative party which acquired a comfortable majority in the parliament and used it to initiate a number of important policy reforms. However, there are good reasons to think that both the way these reforms were adopted and their content violated a number of procedural fairness norms, such as participation in decision making and even some aspects of the rule of law. According to David Beetham, Tom Tyler and others, legitimacy is dependent on moral evaluations concerning the ruling power, and among those evaluations, perceptions of the procedural fairness being exercised by the authorities are of a crucial importance. If the theory holds, then the legitimacy of Fidesz’s rule would have eroded over the years, and indeed this is what happened, by 2012 trust in the government and in political institutions has dropped to the levels seen before the 2010 elections. But since economic problems have persisted, we cannot say whether this drop was caused by discontent with governmental performance or procedural fairness or both. Our research aims at investigating the role of procedural fairness in the formation of legitimacy beliefs. Our preliminary analysis suggest that moral evaluations and, more particularly, procedural fairness expectations do have an effect on people’s legitimacy believes in the Hungarian context as well.
More...THE ROLE OF PROFESSIONAL COMMUNITIES AND MIDDLE CLASSES IN FOSTERING SOCIAL REFORMS WITHIN SERBIA
In this article, I analyze the role of professionals (as part of the middle classes) and their communities in fostering reforms within the fields of higher education and social protection, and working towards, and supporting, the development of civil society. The analysis is based on the series of studies that explored lawmaking and policy-making processes in the fields of law, employment, social protection, rural development, tax policies and civil society development. The analysis of the work of professional communities, and the course of changes in these fields, indicates that policy networks had a major impact on the public policymaking process. These networks bring together typical representatives of the middle class: professionals, government officials, professional associations, representatives of modern non-governmental organizations, etc. The interests, upon which these networks were based, can be classified into three groups: (1) control of conditions of reproduction of the profession, (2) control of public resources in a given system (which includes, but is not limited to, control of the funding channels) and (3) control of conditions of reproduction of a given system. All these interests have a clear redistributive character, are –in general – focused on the control of public resources and have created an alliance between the middle classes and the elite. Middle classes have participated in the process of making laws and public policies in a way that has deepened the political inequalities, and to phenomena which, by analogy with the process of state capture by the elite, can be recognized as the capture of resources by the middle classes. The analysis points to an important aspect of sluggish social reforms: the lack of enthusiasm among middle classes and professional elite in fostering deep social change which is due to their ideological and redistributive alliances and strategies of “resources capturing.
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The proceeding for declaring a will (testament) ineffective on the basis of facts presuming incompliance with the previously expressed last will of the testator, which is prescribed in several contemporary legislations, is distinct from the revocation of a testament as a strictly personal act by which the testator explicitly or tacitly expresses or manifests animus revocandi. The subject matter of this paper is the analysis of legal solutions regulating cases when the last will can be revoked in Austrian law (in case of cessation of partnership or kinship relations after making a last will and exclusion of the only child from the will due to the testator’s misconception) and in Serbian law (in case of a substantial change of circumstances which were the testator’s decisive motive to make the bequest of certain content at the time of making the will). After examining the facts which are the basis for the presumption of incompliance with the testator’s last will and considering other conditions as prerequisites for the application of this institute, as well as their comparison, the author concludes that the legislator’s intervention into the freedom of testation could be justified only if it is crucial for exercising this freedom. In other cases, such an intervention bears the risk of imposing additional restrictions, including the interference into testamentary freedom.
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The Serbian Corporate Income Tax Act contains a provision on the beneficial ownership of income (hereinafter: the BO provision), which is one of the conditions for the application of the preferential tax rate on income tax after tax deduction, which is envisaged in Treaties for the avoidance of Double Taxation on income and capital (hereinafter: Double Taxation Treaties/ DTTs). The subject matter of research in this paper is the term “beneficial ownership“, which is not defined in the Corportate Income Tax Act. It may ultimately lead to abusing the preferential tax rates from the DTTs in tax planning and “treaty shopping“ through the use of conduit companies. Tax experts have different opinions on the legal nature of the BO provision, which is given the function of an anti-abusive measure (on the one hand) and a rule for the attribution of income (on the other hand). The author analyzes the current function of the BO provision envisaged in the Serbian Serbian Corporate Income Tax Act (CITA), and its inadequate application. The author advocates for enacting the BO provision as an anti-abusive measure, and examines the possible application of the BO provision in domestic tax law, with reference to Articles 10, 11, and 12 of the DTTs that Serbia contracted with other states, as well as Articles 10-12 of the OECD Model-Convention on Income and Capital (2017) and Commentaries on these articles. Such an application of the BO provision may preclude “treaty shopping“. In final remarks, the author points out why the BO provision should be envisaged as an anti-abusive measure in Serbian tax law.
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In modern Russian succession law, factual grounds (incapacity for work, maintenance and community of life with the testator, etc.) have a decisive influence on the construction of the legal and necessary hereditary order. Thus, the Russian legislator protected incapable persons who were, after the death of the provider, supported by the testator during his lifetime. By enacting such inheritance regulations, the legislator has remained faithful to the Russian legal tradition and the idea of subsistence (which is the basis of legal inheritance in Russian law), and successfully ensured the continuity of family law protection for incapacitated individuals. This paper focuses on the inheritance mechanism aimed at ensuring the continuity of family law protection to persons who are incapable to work, and who were supported by the testator during his/her lifetime. In light of current inheritance legislation of the Russian Federation and the views presented in the Russian legal literature and jurisprudence, the author points out that the continuity of family law protection of incapacitated persons who were supported by the testator may be effectively ensured through the institute of universal succession.
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The separation of company assets from the assets of its shareholders and the limited liability of company shareholders are two fundamental principles of company law. The principle of limited liability places a “corporate veil“ betweeen the company and its shareholders, protecting them from personal responsibility for corporate obligations. It also enables investors to limit their exposure to potential loss to their actual investment in company and to shift the risk of corporate insolvency to the business’s creditors. By creating incentives for business ventures, the“corporate veil“ of limited liability principle is beneficial to corporate shareholders and the society in general. However, it also opens the door for different kinds of abuses, one of which is embodied in the emergence of “phoenix“ companies. A “phoenix“ company is usually defined as a new company that arises from the ashes of its failed predcessor, taking over its assets and continuing its business, usually under the same or similar name, and with the same (de facto or de iure) controllers. The phenomenon of “phoenixism“ encompasses a range of activities, some of which are legitimate and lawful means of saving the business in financial distress, while others are illegal and constitute an abuse of the corporate limited liability form and the abuse of insolvency and tax law; there are also different shades of grey inbetween the two. The aim of this paper is to describe the conceptual framework of “phoenix“ companies, present the main indicators for detecting their activities, and categorise the various types of phoenix activity, with the aim of distinguishing between the harmful and beneficial “phoenixing“.
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Abstract: Desirable or not, rules of law are necessary. Despite the sustained efforts of self-regulation or of codes as law in cyberspace, these rules, whatever they are, are invariably breached and those whose rights have been disregarded or violated are seeking for solutions. In interpreting the existing ones and in the attempt of adapting and adjusting them to the new reality or in creating new provisions, legal experts need to enter into a collaborative and constructive alliance with IT professionals as to cope with the current challenges.
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The entry into force of the General Data Protection Regulation (EU Regulation no. 2016/679) brought back into question cookies and their interference with the privacy of Internet users, an old problem, which has remained unclarified and unregulated since their development in 1994. This study aims to analyse cookies and their legal implications in relation to international trade operations and data protection regulations. Internet Cookies are small files that contain information about the user, extracted from the analysis of his online activity. Cookies facilitate the user's digital experience, being responsible for storing preferences, settings or username, but also for displaying personalized advertising campaigns or the price fluctuation of a previously visited product. Monitoring users' online behaviour can determine economic advantages for the website owners; however, it raises complex issues regarding the legality of the processing of personal data and the data protection means.
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Nowadays consumers spend a significant amount of time on social networks and enterprises have followed them and have built their presence online in order to make themselves more visible. The shift from real-world business and marketing to the online environment has led to a series of new ways of doing business, implementing marketing strategies and thinking advertising. As enterprises started competing on social media platforms, unfair competition slipped in. The article analyses the specific manner in which unfair commercial practices materialize themselves on social media platforms and it focuses on the main types of unfair competition namely aggressive commercial practices and misleading commercial practices. In addition, there will also be considered and discussed the unfair commercial practices that are intended to prejudice other traders. The analysis takes into consideration mainly the features and the activity that is possible on the social media platform Facebook as it is the largest at the moment and it raises stringent issues regarding the protection of consumers and even the protection of enterprises.
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The process of establishing associations and foundations is a difficult one and is done in violation of the Romanian law which provides that associations and foundations shall be established within 3 days from the date of filing the application. This article analyses this problem and the need for a better establishment process and proposes the establishment of a legal regime similar to the Romanian Trade Register for the Register of Associations and Foundations, in order to relieve the courts of the activity of establishing associations and foundations and to increase the speed of the process of granting legal personality to associations and foundations, using an electronic platform similar to the Trade Register portal.
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The last period of time was marked by a major increase of the number of contracts concluded through electronic means. Considering the measures imposed globally in order to prevent the spreading of the Covid-19 virus, more individuals adopted a new way of acquisition of goods. These new factual circumstances lead us to the analysis of different topics: the role and the liability of the online platforms, which usually intermediate the conclusion of the most part of this kind of contracts. The first part of my article will focus on the analysis of the functioning of these online platforms, while the second one will present the platforms´ liability in case the goods that are sold through them do not meet the mandatory criteria.
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Finding the truth is a key element in solving criminal cases, so forensic investigators have been searching for appropriate methods to detect lies. Starting from the findings in the field of Psychology which show that, when lying, people have certain patterns in presenting their version of events, forensic experts have tried to create automatic devices which can detect these patterns. Such a device uses the methods developed by the science of Natural Language Processing. The methods consist mainly in using some algorithms in order to find and analyse the content of a text. Although the use of Natural Language Processing in detecting lies is only at the beginning, experiments carried out so far have been showing an accuracy of over 80%, which is a strong impetus for further research in this area.
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The year of 2020 will certainly be in all future books on the history of epidemiology and the Covid-19 pandemic will be discussed in them as perhaps the most significant public health challenge since the Spanish flu. But I also hope that it will feature as a new chapter in the books on health and human rights. The suffering of millions of people around the world, the deaths and medical challenges have alreadypresented many lessons to learn from. One of the lessons should be to recognize the right to health as a full-fledged human and constitutional right that deserves a much closer attention whenever annual budgets are drafted and it should be considered as a fundamental human right without which no other rights can be exercised in epidemiological crises and even after that.
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In the article, author analyzes analogy generally and analogy in law, as a way of reasoning. The traditional division of the application of analogy in law into analogia legis and analogia iuris is perceived as incomplete and insufficiently clarifying for what is really happening in the practice of law. Instead, as a starting point, it emphasizes the division of analogies in law into casuistic and statutory analogy. While in common law systems the former is more applied and studied, in continental legal systems, due to the primacy of written sources of law, it is more interesting to consider the latter. The statutory analogy is firstly analyzed from the aspect of its form and content (retrieval and mapping). After that, its basic types are described. The first is the analogy extra legem, which serves to fill legal gaps, or more precisely, which attributes legal consequences to facts that are not explicitly described in the applicable legal provision. The second type of statutory analogy is analogy intra legem, in which the argument of analogy is used to interpret legal norms. In the article are particularly depicted the two “incarnations” of analogy intra legem, extensive interpretation and systemic interpretative argument of analogy. Finally, through several cases from judicial practice of Serbian courts, it is illustrated how the statutory analogy is applied in this practice only intuitively, and therefore insufficiently explained, and, after all, incorrect.
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Serbian Law on General Administrative Procedure (LGAP) opened a possibility for broadening the standing in administrative procedures and administrative disputes, by inclusion of subjects representing collective interests and interest of the wider public – primarily, citizen associations and similar organizations. However, by failing to regulate a series of concrete issues, the Law places the administration and the Administrative Court before a challenge, demanding from them an extensive interpretation of not only LGAP’s provisions, but other legislation already recognizing such organizations as aids in realization of the public interest. The author analyzes relevant legislation, as well as available administrative and court caselaw in search of these answers. The lack of explicit legal provisions could be balanced by a creative approach in practice, especially by the Administrative Court. Having in mind comparative solutions, the question arises whether it is necessary to regulate this category of potential parties separately or to link it more explicitly to the already existing notion of an interested party. Instead, completely new notions have been introduced – collective interests and the wider interests of the public – which are not or not consistently defined in Serbian law. The current, not so voluminous case law, shows that the administrative bodies need a more direct indication of the rules, i.e. a more explicit definitions of these terms. However, despite the restrictive legal framework, administrative bodies should be open to understanding the specific circumstances, i.e. the motivation that an organization has when it seeks standing. In the normative sphere, one of the solutions could be to envisage the analogous application of LGAP’s provisions on the interested party. Other solutions could be sought in explicitly mentioning them in the provisions on right to appeal. The current formulations of LGAP do not provide sufficient guidance to the administration and an extensive interpretation would be a great challenge for them. An active approach of the Administrative Court could show the way for the administration toward and effective application of these provisions of LGAP.
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