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The subject of this paper is theoretical observation on the relations between patients’ advance directives and specific legal institutes with which they share the same legal grounds. The goal of this paper is to draw a clear line between them by pointing out to the characteristics they share, as well as to those which distinguish them. This is important for adequate understanding and regulation of the institute of advance directive which permeates the most delicate spheres of individual rights – the right to life and the right to dignity.In the first part of this paper, the authors briefly review the origin and development of patients’ advance directives within Europe’s legal framework pointing to the presence of terminological differences of phrases used to describe them in literature and regulations, as well as to their legal grounds. Having conducted a comparative analysis of the provisions pertaining to this matter in some European legislation (Austrian, German, British, Swiss and Italian), the authors establish the concept and identify the key characteristics of this institute.In the second part of the paper, patients’ advance directives are compared to the informed consent, continuing power of attorney and euthanasia. Having reviewed the concept, basic characteristics and purpose of aforementioned institutes, the authors conclude that there are major differences between these and the institute of patient’s advance directive. The latter is a strictly personal act, which is not the case with the informed consent that can be given via a legal representative. The patients’ advance directives are one-sided legal transactions whose effect is not contingent on anybody’s consent, while the effect of continuing power of attorney is contingent on the attorney’s consent.Their primary goal is not euthanasia, but rather empowering the patient to control his own life and medical treatment, as well as to influence the future decisions related to his medical treatment in case he loses his mental capacity. Therefore, they should not be viewed exclusively in the context of death.In their concluding remarks, the authors state that the legislators, including Serbian lawmakers, should take into consideration these differences in their attempts to reformulate the institute of patient’s advance directive.
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The paper deals with the possible legal implications of pandemic from the perspective of international family law in cases of wrongful cross-border transferring or withholding of a child. Assuming that competent authorities could in the future use pandemic as a pretext for decision to refuse to return the child to the state of its habitual residence, the authors of this article analyze from doctrinal and practical aspect Article 13, Section 1 of the Hague Convention on the Civil Aspects of International Child Abduction from 1980 which stipulates, inter alia, that judicial or administrative authority of the requested State is not bound to order the return of the child if there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The aim of this paper is to establish if and to what extent pandemic can lead to redefining the concept of „grave danger“ and to point to difficulties in establishing the concept of „grave danger“ in individual cases.
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International bankruptcy in the law of the Republika Srpska is regulated by the Bankruptcy Act from 2016. Although the goal of the Bankruptcy Act 2016 was to pass a more efficient regulation that is harmonized with solutions from the region, as well as with the law of the European Union, the author gets the impression that the new rules of international bankruptcy are much more vague and much worse than the Bankruptcy Procedure Act of 2002. This is especially evident in the part that regulates the international and special jurisdiction of the courts of the Republika Srpska, as well as the applicable law. In addition to the analysis of the rules of international bankruptcy, the author will try to point out the illogicality of the same, especially having in mind the comparative regulations which, evidently, were a model for the domestic legislator.
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This paper is designed along this line: the retro-cession of confiscated Church property is an act of justice and an enormous benefit for the Romanian society, since the Church carries out a very important social, educational and missionary work. Almost 1 million Romanians benefit from the social work of the Church! The Church faced a lot of difficulties in carrying out its work, difficulties which resulted both from the implementation of the Law on the secularization of monastic estates and from the confiscations that were effected during the atheist communist regime. While the properties of the monasteries both dedicated and not dedicated to the Holy Places were confiscated by the Romanian State in a non-discriminatory manner and without compensatory measures under the Law on the secularization of monastic estates of 1863, after 1948, the communist regime confiscated agricultural and forestland, as well as church buildings, except for the places of worship. After both stages, the Orthodox parishes and monasteries could no longer sustain themselves and could no longer carry out their multiple social, educational and missionary work. This justified the assumption by the Romanian State,in 1864 and 1893, of the obligation of compensatory measures, namely of making a modest contribution to the remuneration of the staff of religious denominations and of providing financial support for the maintenance and activities of church units. Starting with 1990, the Romanian Orthodox Church regained the possibility of freely carrying out its mission and of conducting an extensive social-philanthropic and cultural-educational work for the Romanian society. Therefore, there are over 670 social, medical and educational institutions currently operating within the Romanian Patriarchate and there are over 750 pastoral-missionary, social-charitable and cultural-educational projects and programs being implemented for the Romanian communities within the country and, in recent years, abroad.In order to maintain, consolidate and restore the places of worship,mostly historical monuments in the national cultural heritage, and to support the Church’s many activities conducted in favor of the Romanian society,it is vital to return Church property confiscated by the former communist regime in Romania. The properties that are returned will not be sold to foreigners, but will be used for the establishment of educational, social-charitable, medical and cultural institutions. The Romanian State did not return to the Church its property confiscated during the secularization of church estates by Prince Alexandru Ioan Cuza, and the Church property abusively confiscated by the communist regime (buildings, agricultural lands, forests)was returned only in part in the last 20 years. In conclusion, the retro-cession of Church properties confiscated by the communist regime is an act of justice and, at the same time, of support to the Church’s many social activities aimed at helping the poor and disadvantaged, as well as children and young people in schools. In any case, the property returned to the Romanian Orthodox Church will not be alienated, but will help the Romanians, because justice and generosity are essential components of human dignity, both individually and socially. Therefore, the current relations between the Romanian State and the cults largely reflect the heritage of the last 150 years of national history,originating in the reforms of Prince Alexandru Ioan Cuza, which aimed at modernizing Romania, as well as the assumption by the State of the partial compensation for the losses suffered by the Church following the secularization of its estates. The communist regime deprived the Church of everything else it owned, except the places of worship, but maintained forms of financial support from the State for all religious denominations, both in terms of remuneration for church staff and in terms of restoration, conservation and maintenance of places of worship, particularly historical monuments. Today, the Romanian State financially supports only part of the salaries of church staff, and the maintenance, consolidation, restoration and repair of places of worship and other church buildings, which ensure the active presence of the Church in society and the presence of God in people’s hearts, is left mostly to the responsibility of the communities of believers, who are also affected by the economic-financial crisis that the contemporary society is facing.
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The object of this paper are the rules of the article 119 of the Law of Real Rights of the Republic of Srpska on specificatio, i. e. on the acquisition of property by change of species of a thing. These rules are subject to an ontological interpretation, in regard with the original context which they had in the Roman law, and are contrasted with the solutions of the comparative law. The scope of the paper is to offer interpretation of the text that would cover the situations that could appear in the legal praxis, and which are not explicitly regulated by the Law, and to offer possible solutions de lege ferenda.
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In accordance with a legal construction, of feudal origin and dominant today, the universal nature of the collectivity is understandable and understood exclusively as an abstract legal person, and, accordingly, the regime of it's will has to be and is exclusively in hands of smalls number of representatives. Such a construction negates to any concrete collective body the management, in general, of the proper goods and, in particular, of those essential as environment.The hope entrusted (in a manner of highest authority too, with the Encyclical letter “Laudato si’”) to the Roman legal categories of res communes and actio popularis, to invert the logic of the feudal construct, seems to be professed by legal-historical doctrine of the nineteenth century by attribution of such constructs to the Roman law. But this doctrine is out in doubt by those claiming that, on the contrary, the rule of the roman law on the unitary ownership and management of the common goods by, precisely, the same collective understood concretely. In this article, a first, positive confirmation of the verisimilitude of this new claim is being obtained by an examination of the studies dedicated to the structure and the dynamic of homologous private and public collectivities: municipia and collegia.
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The paper discusses current issues of the dynamic process of achieving compliance with EU law and legislative changes in Bulgaria, which aim to improve commercial insolvency proceedings. Innovations in insolvency proceedings in the EU with the adoption of Directive (EU) 2019/1023 of the European Parliament and of the Council of the EU are justified as a necessary condition for effective participation in the Single Internal Market. The challenges for the implementation of the Directive until 2021 are analyzed. Conclusions are summarized on the progress of Bulgaria in harmonization with EU law in the areas of restructuring, insolvency and debt forgiveness and the ongoing legal changes in this field.
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Creativity in law has to deal with some controversial aspects. The principle of legal certainty implies that the law is stable over time, which is obtained by a certain stability of the legislation. Even though the legislator offers to the person who interprets and applies the law a certain freedom of appreciation, which implies the aptitude of creativity, the interpretation must not change the sense of the legislative act, and the spirit in which it was created. If the principles of law themselves contain some legal requirements, the effects of which become conflicting, in order to solve such situations one has to look for the legal provisions of other, connected principles, from which an order of preference may be deduced. If still no clear criteria is found, then the interpreter needs to get creative.
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One of the atypical forms of work performance dynamically developing on the Polish labour market is temporary employment, under which a temporary employment agency as an employer (employing entity) engages employees or non-employees in order to direct them to perform temporary work for the user employer. According to the latest data compiled by the Polish HR Forum, the number of temporary employees increased from 433,000 in 2010 to 648,000 in 2021, and the estimated value of the entire Polish temporary labour market is now over PLN 3 billion. The aim of the study is to introduce the reader to the issue of temporary employment, which was the subject of the III National Scientific Conference from the series „Atypical employment relations” organized in Łódź by the Centre for Atypical Employment Relations of the Faculty of Law and Administration of the University of Lodz on December 3, 2020. The author will present his own reflections on the Act on the Employment of Temporary Workers after its amendment, which entered into force on 1 June 2017.
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The author reflects on the usefulness of temporary work in the post-industrial era. He believes that this form of atypical employment can be replaced by electronic employment technologies.
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The subject of the article is the analysis of the regulations in the field of temporary agency work. Introduction of the Act on the Employment of Temporary Agency Workers in 2003 showed that the law was ineffective in terms of protecting the temporary worker. In practice, doubts have arisen regarding the application of the maximum period of temporary agency work or assignment to temporary work on the basis of a civil law contract. In 2017, the provisions of the Temporary Agency Employment Act were amended and their aim was to remove the shortcomings of the Act. The author evaluates the solutions introduced by the amendment.
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The aim of the article is to present the legal basis for the functioning of temporary employment agencies. Their specificity lies in the fact that they are economic entities and at the same time labour market institutions. The services provided by the agencies constitute a regulated activity and are subject to many administrative requirements, which have been discussed in detail by the Author. A distinguishing property of agencies is temporary work classified as an atypical form of employment, due to the characteristic features assigned to it, mainly the tripartite legal structure and limited duration, which are presented later in this article.
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Temporary work and work on digital employment platforms are considered new atypical forms of employment, and the share of workers employed in this way does not exceed 3%. They are similar in the temporary and tripartite nature of employment, as well as the division of the basic functions of the employer between two entities, noticeable also in the case of many platforms. However, temporary employment agencies operate within a legal framework defined at international, European and national level, and with regard to digital employment platforms, this framework is still emerging. However, an unambiguous comparison of both forms of employment and determining the appropriate shape of regulations for digital platforms is hindered by the diversity of platforms’ operating patterns.
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The regulation concerning the prevention of the abuse of a fixed-term employment contract included in the Labour Code does not apply to temporary work in Polish law. This does not mean, however, that the abuse cannot occur in this type of employment as well. The article examines where the phenomenon of abuse occurs within the three-way relationship in temporary employment. It was found that the source of the abuse is the legal relationship between the employer-user and the temporary-employment agency. At the same time, the statutory mechanisms limiting temporary employment are mechanisms to counteract these abuses.
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Temporary employment on the basis of civil law contracts raises serious doubts. According to the Author, temporary employment agencies, due to their specificity, should employ only on the basis of labour law contracts. Assigning people to work on the basis of civil law contracts can be carried out only in the mediation formula. Thus, the temporary employment agency becomes the agent of the employed person, and on his behalf sets the terms of the contract. Under this assumption, any statutory restrictions on the terms and conditions of employment constitute a violation of the freedom to conduct a business resulting from the Constitution. This also applies to the need to provide trade unions with information on the conditions under which the cooperation agreement is to be implemented. These regulations make the civil law way of doing work a fiction. On the other hand, employment may be considered a violation of the provisions of the Labour Code.
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The stimulus for the preparation of the article is the amendment to the Act on the Employment of Temporary Workers, in force since 1 June 2017, which allowed for the widespread use of civil law contracts in temporary employment. This solution raises a number of doubts and interpretation problems, also in the context of managerial authority that in the construction of temporary employment, until the adoption of this amendment, was granted both to the temporary employment agency and the user employer. The main goal of the author is to present managerial authority in temporary employment on three different levels: firstly in case of temporary employees employed on the basis of an employment contract, secondly in case of civil law temporary employment, and thirdly in employee outsourcing, which is the employment option closely linked with the temporary employment and often combined with it. The reflections included in the study show how important the role of managerial authority is in the context of the admissibility of using the atypical form of employment analysed here.
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The aim of the foregoing study is to indicate the interdependence between the law on the employment of foreigners and the law on the employment of temporary workers. First, the author analyzes the assumptions of the law on the employment of foreigners. Next, he discusses the assumptions of the law on the employment of temporary workers, which makes it possible to crystallize mutual relations and connections. The author contrasts dogmatic-legal analysis with axiological conditions and tries to explain the classic conflict between the protection of the employee’s interest and the protection of the domestic labour market.
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The article written by a representative of the National Labour Inspectorate presents infringements of regulations exposed during inspections and examples of circumvention of the applicable legal regulations which misinterpret the nature of temporary employment, with particular focus on outsourcing bearing the characteristics of temporary employment. The author analyses the reasons of negative phenomena on the temporary employment market, discusses the procedures used by labour inspectors when finding violations of provisions in this area, and also indicates proposals for changes in the applicable law that would facilitate the National Labour Inspectorate to combat the irregularities revealed and could contribute to restoring the proper meaning of temporary work, in accordance with its essence. Such proposals include, the possibility for labour inspectors to issue administrative decisions establishing the existence of an employment relationship between a person performing temporary work and the employer-user and introducing consequences in the form of removing the entity from the register of employment agencies in the case of outsourcing in fact being temporary employment.
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The study discusses the most important issues regarding the determination of the appropriate payer of social insurance contributions. The payer, as a co-contractor of social insurance, performs a number of important tasks related to both the collection of contributions and the implementation of the right to insurance benefits. For this reason, it is important that the entity acting as the payer is correctly identified. In case of doubts, the Social Insurance Institution carries out proceedings to determine the appropriate payer taking into account the factual findings.
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