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Absolutely Binding Rules (Ius cogens) as Criteria of Legality in International Law

Author(s): Milenko Kreća / Language(s): English Publication Year: 0

In this paper, the author analyzes the nature of the ius cogens rules in the international legal order. The international ius cogens reflects the authentic needs of the international community. It has emerged on a wave of profound metamorphoses which transformed the international community, in addition to antagonisms in the sphere of material interests and ideologies, into a single entity. The analyses focuses on both formal and characteristics of ius cogens, being objectiveness, peremptoriness, universality and dynamic nature as well as on the legal effects of corpus iuris cogentis. In that regard, the article provides for a detailed analysis of the relevant norms consisted in the Pact of League of Nations and the UN Charter, seen as acts of constitutional importance of organized international community and the relevant jurisprudence of the International Court of Justice. The author concludes that the concept of legality in international law in its strict sense could not be established until the moment when absolute and unavoidable limits of freedom of behavior of states were set by general international law.

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Fuller's Theory in Use - the Independent State of Croatia Legislation Analysis

Author(s): Miloš Zdravković / Language(s): English Publication Year: 0

Determining the morality of a legal order, in the end, is not an immediate subject of legal science, but of ethics. Therefore, it is possible to analyze the legality of the Ustasha order without questioning its moral assumptions, exclusively on the basis of generally accepted, strictly legal values, that is, from a purely legal point of view. Without resorting to the methods and results of other scientific disciplines such as historiography, sociology, ethics, psychology, political science, etc., but only on the basis of the concepts and values that the legal profession has been building since its existence, it is possible to determine quite precisely how a specific order corresponds to the legal concept. In this regard, a very useful and therefore very widely accepted concept was offered by the famous American legal theorist, Lon Fuller, and it will be used as the basis of the analysis. Fuller made a departure from basing the validity of law on its substantive compliance with morality, according to the formula lex iniusta non est lex. The impossibility of determining indisputable moral criteria for assessing the content of law, as well as the fact that such an assessment is performed externally, outside the framework of legal science, prompted Fuller to find the criteria of the moral correctness of law within himself. Fuller argues that the internal morality of law is embodied in eight conditions (generality of legal rules, prohibition of retro-activity, clarity, efficiency and non-contradiction of rules, etc.) that a normative order must fulfill in order to be recognized as a legal. The conducted analysis shows that the system of rules that was valid in the Independent State of Croatia does not meet any of the criteria of Fuller's theory, and its character of legality must be contested.

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(У)скраћивање права на помоћ и негу другог лица - ограничена ретроактивност решења

Author(s): Vuk Cucić / Language(s): Serbian Publication Year: 0

Those who, due to the nature and severity of their injury or illness, such as physical or sensory impairment, intellectual difficulties or changes in health, require the assistance and care of another person to meet their basic needs, are entitled to assistance and care of another person. This right is recognized in the Republic of Serbia as one of the rights derived from the pension and disability insurance (for insured persons and pension beneficiaries) or, in the event that a person cannot realize the said right on that legal basis, as a form of social protection. The regulations governing this right do not recognize it from the moment when the conditions for its realization have been met. Namely, the Law on Pension and Disability Insurance recognizes the right to financial compensation for the assistance and care of another person from the date of submission of the request for its recognition or, at the earliest, six months before that day. The Law on Social Protection is even stricter, and the right to an allowance for the assistance and care of another person and the right to an increased allowance for the assistance and care of another person are recognized from the date of submission of the application if the conditions for recognition of the right were met at the time of application submission. The author examines the possibility of eliminating the problem that arose by limiting the retroactivity of decisions recognizing these rights. De lege ferenda solutions are considered both at the level of special laws regulating these rights and at the level of the rules of general administrative procedure, through the appropriate amendment of the Law on General Administrative Procedure.

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Pravna pomoć u upravnim stvarima: stanje i perspektive

Author(s): Emir Mehmedović,Rijad Delić / Language(s): Serbian Publication Year: 0

The principle of legality authorizes every administrative body to carry out only those tasks and duties within its scopes of competence. But administrative bodies sometimes find themselves in a situation where they cannot directly and independently carry out certain procedural actions, and therefor they require assistance from other bodies. These assisting bodies can be either domestic or foreign. The term "legal assistance in administrative matters" refers to the provision of specific administrative actions from one administrative body to another. The provision of legal assistance within national frameworks is primarily regulated by national legislation and the relevant provisions of the administrative procedure laws. This form of legal assistance primarily includes help in gathering evidence and obtaining documents. While legal assistance within national frameworks is relatively clearly regulated, there are significant uncertainties regarding legal assistance involving foreign elements, i.e., legal assistance requested by a foreign administrative body. This type of legal assistance encompasses a much broader and more complex range of actions, from delivering documents abroad to obtaining records or documents in the possession of foreign authorities or persons outside the country to gathering evidence and recognizing and enforcing foreign administrative decisions. The institution of legal assistance in administrative matters is less developed compared too the institution of legal assistance in criminal, civil and commercial matters. However, given the process of globalization and intensified movement of citizens, the issue of providing legal assistance with a foreign element in administrative matters is becoming increasingly important and requires a more serious approach. These processes have significantly influenced the internationalization of legal relationships, including administrative-legal relationships. At the international level, the provision of legal assistance is regulated by the provisions of numerous universal and regional international organizations, as well as bilaterally. Currently, the highest level of regulation of legal assistance in administrative matters has been achieved at the European Union level. , However, this article focuses on the Council of Europe's instruments because they are immediately applicable, unlike other instruments that merely represent a future prospect. Within the Council of Europe, two conventions (the European Convention on the Service Abroad of Documents relating to Administrative Matters and the European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters) regulate some general aspects of legal assistance in administrative matters with a foreign element. Another significant convention is the Joint Convention of the Council of Europe and the Organisation for Economic Co-operation and Development (OECD) - the Convention on Mutual Administrative Assistance in Tax Matters, amended by the Protocol of 2010.

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Усмена расправа у управном спору у предметима јавних набавки - "празнина" или не?

Author(s): Sanja Golijanin / Language(s): Serbian Publication Year: 0

In the paper, the author analyzes legal protection in public procurement procedures in Bosnia and Herzegovina, with special reference to administrative judicial protection. In this regard, an attempt is made to look at the administrative dispute in public procurement cases from the point of view of (not) holding an oral hearing. The author concludes that the Court of Bosnia and Herzegovina does not hold oral hearings in cases related to public procurement, and tries to determine the reasons for such court action. The relevant legal solutions of individual countries in the region were also presented in order to indicate the possible direction of further improvement of legislation on legal protection in public procurement procedures in Bosnia and Herzegovina.

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Конституционализација права на одмор

Author(s): Radoje Brković,Borislav Galić,Rajko Raonić / Language(s): Serbian Publication Year: 0

With the dominant and accelerated development of labor law in the 21st century, employees’ rights and obligations also evolved. One of basic rights today, which is propagated and promoted by many constitutional systems and more detailed labor laws, is the right to rest during work and on the basis of work. The forerunner of the constitutionalization of this right, and its inclusion in constitutional systems around the world, is the Weimar Constitution from 1919, which was a turning point for the conceptualization of many constitutional systems and the inclusion of this right among them. With this right and its constitutionalization, the aim is to ensure a minimum of rights based on work - "dignified work", and to develop this right through legal texts in the most minimal scope, below which no employer can go. In this paper, the authors aim to examine today's fundamental legal framework, derived from the Constitution, the Labor Law and other secondary legal texts. They will define this framework from a theoretical and legal perspective, highlighting its significance and specifics. Therefore, of this paper will provide a theoretical and legal overview of the topic, highlighting its importance from the normative-legal perspective, taking into account the current situation, the definition provided by the "Lex fundamentalis" and the similarities and differences between these definitions in the country and region. The author believes that the importance of work reveals its goal, as evidenced by the fact that the labor law institute's right to rest represents one of the fundamental rights of employees. Despite this, there is a deeply underdeveloped awareness of its importance, which is why it is included in the Constitution of the Republic of Serbia.

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Načelo In favorem laboratoris u sistemu radnih odnosa, sa posebnim osvrtom na radno zakonodavstvo u Bosni i Hercegovini

Author(s): Mehmed Hadžić / Language(s): Serbian Publication Year: 0

The principle in favorem laboratoris, i.e. the principle of convenience, is inextricably linked to the modern labour relations system in cases when rights at work or in connection with work are regulated in several legal sources. In the labour relations system, sources are applied in such a way that it starts from individual employment contracts, through autonomous general acts of the employer and collective agreements, to labor laws as lex generalis and other lex specialis laws that establish minimum standards of rights at work.This direction of application of sources of labor law is corrected in certain cases by applying the principle in favorem laboratoris. The fundamental purpose of this principle is to protect the worker as an economically weaker party in the employment relationship whenever possible. The principle in favorem laboratoris is applied at the regulation stage when one institute is regulated in multiple sources that have different legal force. The principle is also used by decision-makers in the process of implementation and protecting rights at work and in connection with work in those situations where the facts can be applied to a number of different sources of law. The principle in favorem laboratoris is generally used in the application of substantive law, but the question of the possibility of its use in the application of procedures for the exercise and protection of rights at work and in connection with work remains open.

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Судска заштита права из радног односа у Републици Српској

Author(s): Radislav Lale,Aleksandra Jelisić-Brčkalo / Language(s): Serbian Publication Year: 0

This work will conduct a systematic analysis of the positive legal regulation of judicial protection of rights arising from the employment relationship in the Republic of Srpska, which is one of the most significant forms of external protection of the rights of employees. Special attention will be paid to the principles by which the court resolves labor disputes. The issue of apparent independent work or hidden employment, which is evident in the Republic of Srpska, significantly burdens modern labor law. Domestic law does not regulate methods at all, i.e. techniques of legal presumption of the existence of an employment relationship, nor does it know the provisions confirming the principle of factual primacy, which results in "inadequate access by courts and judicial practice", as well as the absence of complete and adequate legal protection of persons who perform various forms of work in an apparent (disguised) employment relationship. As our labor legislation does not inherit a clear and complete definition of the employment relationship, the authors emphasize the need to provide a clear legal definition of this term through future amendments to the labor law regulation, along with the qualification of legal subordination or its most important aspects as a general essential element of the employment relationship. Legal confirmation of the principle of factual primacy can also contribute to the protection of workers who perform apparent independent work, which is why it is recommended to introduce a legal ban on performing work based on civil law contracts, if there are elements of an employment relationship in the relationship between the worker and the client. Furthermore, the authors believe that the establishment of special courts, specializing in labor disputes, would make a significant contribution to their faster and more efficient resolution.

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Унутрашњи сукоби радног законодавства у Босни и Херцеговини

Author(s): Živorad Rašević / Language(s): Serbian Publication Year: 0

One of specialties of the Bosnia and Herzegovina legal system is the validity of four labour laws, with different personal, material and territorial scopes, and disparate provisions that lead to internal conflicts of laws. This paper evaluates the severity of this issue and suggests a resolution through the application of conflict-of-laws methods. This involves the determining the applicable law and jurisdiction in inter-entity labor disputes, utilizing positive conflict-of-laws provisions and fostering a more innovative jurisprudence. The result of the research reveals that conflicts of labour laws are not only possible but also frequent, and that there is a large and neglected legal lacuna in conflict-of-laws in this matter. Furthermore, compelling arguments have been found to fill this lacuna with broader and analogous interpretations of the only positive source for resolution of inter-local conflicts of law, which only in Bosnia and Herzegovina survived the transition from the ex-federal state,, i.e. the Law on the Resolution of Conflicts of Law in Status, Family and Inheritance Relations. The analysis of positive legal provisions proved that endeavor is feasible. Finally, we have presented the legislative, judicial and theoretical reasons behind the development of conflict law in Bosnia and Herzegovina. This interdisciplinary legal branch is necessary for systematic regulation of the choice of applicable law in the circumstances of the atypical and complicated vertical division of power in the legal system of Bosnia and Herzegovina.

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Правни режим заснивања радног односа у институцијама Босне и Херцеговине

Author(s): Jelena Lale,Aida Hadžiahmetović / Language(s): Serbian Publication Year: 0

The establishment of an employment relationship has a multifaceted role and significance. Through the establishment of an employment relationship, society ensures the quantity and quality of socially necessary work-employers provide the workforce, while workers provide themselves and their family members with material and social security. Therefore, appropriate legal formalization of the establishment of an employment relationship is necessary, i.e., the establishment of a legal framework. This work will conduct of systematic analysis of the legal framework of the establishment of an employment relationship in the institutions of Bosnia and Herzegovina, one of the most significant labor law institutions, bearing in mind that this institution represents the first and most direct elaboration of the labor law. In relevant sections of this article, attention will be devoted to the process and key phases of establishing an employment relationship for civil servants and other employees, with a special focus on protecting participant in the recruitment process and their right to effective legal remedies. This research work will also address the possibility of extending the employment relationship for civil servants who, in accordance with current legal regulations, have fulfilled the conditions for receiving old-age pension benefits, considering that such cases arise in the institutions of Bosnia and Herzegovina. This practice raises several unresolved questions, especially given that the appropriate legal norms typically stipulate the termination of the employment relationship upon meeting the eligibility criteria for old-age pensions. To address this issue, the authors will provide de lege ferenda suggestions for better and more comprehensive regulatory solutions.

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No-Poach Agreements: Between the Restriction of the Right to Work and Anti-Competitive Violations

Author(s): Lucaciu George-Doru / Language(s): English Publication Year: 0

No-pouch agreements represent agreements between companies not to contact, recruit or offer work to the employees of a competing company ( those who work/worked at one of the companies involved). On the one hand, these agreements reduce the competitiveness of the workforce, as employees remain trapped for a long period of time without the possibility of freely choosing another job. This also leads to an infringement of the fundamental right to work, which is regulated and protected at both EU and national level by the provisions of the 2003 Constitution of Romania, republished. On the other hand, these agreements infringe anti-competitive rules, affecting the right of employers to recruit employees that work in similar fields/sectors of activity.Recently, an increased number of investigations organized by different authorities in several Member States are designed to discover and sanction no-pouch and wage-fixing agreements (e.g. in Lithuania, Poland, Hungary, Portugal).In Romania, the Competition Council investigates several companies that operate in the market of production of motor vehicles and/or other related activities (e.g. vehicle components and systems, testing, projecting). If these companies are proven to have violated anti-competitive rules, they risk fines up to 10%of their total turnover. This could be a major risk for them to face financial difficulties and potentially insolvency proceedings. However, the prohibition of non-poach agreements contributes to both increasing competitiveness among employees and improving the competitive business environment.

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Уговор о поклону - раскид и опозив - правна правила и Преднацрт грађанског законика из 2015

Author(s): Ilija Babić / Language(s): Serbian Publication Year: 0

The gift agreement is not fully regulated under positive law. Legal rules included in civil codes which was previously in force apply to relationships arising from this agreement, such as revocation and termination. The gift agreement can be unilaterally terminated by agreement or in cases determined by law before its execution. Most often, it is terminated and revoked after execution, having retroactive effect. One cannot revoke or terminate ordinary, infrequent gifts (of small value), prizes, or gifts made for general useful purposes.The gift agreement can be revoked and terminated in case of the donnee's ingratitude (ungratefulness) and the donor's impoverishment (and when the gift has been handed over to the donee), and these are the two issues the paper deals with.If an agreement with an order, i.e. subjected to a condition or qualification (donatio sub modo) is concluded, and the donee does not fulfill that condition even within a subsequent reasonable period, the donor can terminate the contract and demand that the donee return what he received, except when a third party has acquired the right to demand the execution of the order. Then, a valid gift agreement shall be terminated and revoked. Should the contract become invalid due to nullity, the person with a legal interest in it will file a lawsuit to annul it.The author suggests amending and supplementing some concepts in the preliminary draft of the Serbian Civil Code with the necessary provisions.

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Одступања од начела универзалности у наслеђивању у савременом српском праву

Author(s): Nataša Stojanović / Language(s): Serbian Publication Year: 0

The principle of universality in succession as one of the foundations of the institute of succession in Serbian contemporary law implies that the rules of legal inheritance are general, identical and equal for the testator and all heirs, irrespective of: sex, marital or extra-marital status, order of birth, age, religious belief, occupation, property opportunities, etc. This principle also suggests that the same rules apply to everything that constitutes the estate, regardless of the type, purpose, origin, and quality of goods. The Serbian legislator deviates from this supreme principle in the Law on Inheritance, which prescribes special inheritance rules for situations such as the inheritability of the right to request a reduction of a portion of a spouse’s inheritance portion as an heir of the second legal inheritance order; the inheritability of the rights and obligations referred to in a concluded lifelong personal care agreement, following the death of caregiver. By means of different types of legal analysis – legal dogmatic, normative, comparative, and historical – we will try to establish what the real range of the principle of universality in succession is, keeping in mind its limits as set out in other legal texts like the : Law on Business Companies, Law on Cooperatives, and Law on Decorations of the Republic of Serbia.

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The Principle of Autonomy of the Will and the Marriage Contract

Author(s): Bogdana Stjepanović / Language(s): English Publication Year: 0

Autonomy of the will is a key principle in the contractual arrangement of property relations between spouses. One of the most complex, but also the most important questions that arise with regard to the conclusion of a marriage contract, and in connection with the autonomy of the will of the contracting parties, is the problem of the "dilemma of choice". The „dilemma of choice" consists in the conflict between promoting, on the one hand, women's autonomy and freedom of choice, and on the other hand, protecting women from harmful consequences that would result from the use of autonomy of will in conditions of inequality, i.e. power imbalance.Competent authorities usually assume that the autonomy of the will exists, and it appears as a presumption. This attitude is particularly harmful in terms of the marriage contract, because it can result in economic consequences not only for the "weaker" contracting party, but also for the children and society as a whole. For this reason, it is necessary to review the principle of autonomy of will and adapt it to the peculiarities of the personal relationship of the contracting parties.In this paper, we will examine the application of the principle of autonomy of will to the spouses in the marriage contract, posing a potentially bold yet feasible question and attempt to provide an answer. Namely, is it possible to talk about the autonomy of the will with regard to the spouses who conclude the marriage contract, i.e. one of its manifestos, freedom of contract in the true sense of the word, and can the question of the existence of autonomy of will in this case be viewed in the same way as in regard to the conclusion of legal transactions between persons who are not bound by any previous relationship, or does the validity of a marriage contract need to introduce a new criterion that would enable a fairer outcome?

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Obrazovanje djeteta i roditeljska autonomija - neriješena pitanja

Author(s): Dino Kovačević / Language(s): Serbian Publication Year: 0

There are two opposite tendencies in contemporary family law. On the one hand, public authorities interfere with the exercise of parental responsibility, primarily through social welfare services and the court system. On the other hand, there are demands for family autonomy, expressed as the need of family members to free themselves from formal control over their family life. This paper intends to explore the borderline between family decisions on child education and when the best interests of the child regarding education are considered by the public authorities.

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Примена норми у случају правне празнине у међународном приватном праву

Author(s): Vladimir Čolović / Language(s): Serbian Publication Year: 0

In Private International Law, legal gaps represent a special problem that can lead to situations where it is impossible to resolve a case with a foreign element, i.e., it is impossible to determine the jurisdiction of a court or other authority. Three category of regulations fall under the preview of private international law: international ones, further subdivided into multilateral and bilateral, and internal. The latter category includes predominantly the legal acts itself. If there is no regulation that addresses a specific case, a legal gap will emerge. The Republic of Serbia's Act on Resolving Conflict of Laws with the Regulations of Other Countries includes a clause that addresses legal gaps by applying the Act's provisions and principles, the home country's legal order's principles, and finally, the principles of private international law. In the paper, the author pays attention to the way this matter is regulated in the above mentioned legal act, but also to the problem of the legal gap in the qualification of the collision rule and in the deviation clause. Additionally, the author examines specific solutions found in comparative law. The author concludes that it is crucial to approach the problem of filling the legal gap in private international law with utmost care, considering the impact such solutions can have on other countries.

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The Concept of Originality in Greece and the EU

Author(s): Irini A. Stamatoudi / Language(s): English Publication Year: 0

Greece is an EU member state. It has ratified all important international conventions on copyright and related rights, and it is part of the civil law tradition. The Copyright Act 2121/1993 provides a high level of protection for authors and related rights holders. The only basic requirement for a work to receive copyright protection is originality. The Greek standard of originality was for a work to be "statistically unique" meaning that no other author, under similar circumstances and with the same aim in mind, would reasonable reach the same creative outcome. Following the recent developments in CJEU case law, particularly the Infopaq case, EU member states are no longer able to apply their own criteria for originality, as the EU criterion now takes precedence. According to it, a work is original if it is its author's own intellectual creation, meaning that the author should have made free and creative choices and stamped the work with his personal touch.

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Međunarodni privatnopravni aspekti talaq-a u pravu Europske unije i Bosne i Hercegovine

Author(s): Anita Duraković,Jasmina Alihodžić / Language(s): Serbian Publication Year: 0

Talaq, an institute of Islamic law, as a method of private dissolution of marriage, has cussed some legal difficulties in the EU member states. From the standpoint of private international and procedural law. particularly problematic is the issue of admitting talaq in the states that do recognize such a method of dissolving a marriage. Given that neither the EU member state (with the exception of one part of Greece)nor Bosnia and Herzegovina admit talaq, the question of recognizing talaq uttered in another state inevitably arises. Furthermore, the application of foreign law that admits this method of dissolving a marriage in cross-border cases is also contentious. Two EU legal instruments currently govern the issue of marriage dissolution: Regulation 2019/1111 and Regulation Rome III. In the past, courts in EU member states grappled with this issue in the Sahyouni case. Unfortunately, the EU Court did not seize the opportunity to contribute to a consistent approach to this matter within the EU. Given that Bosnia and Herzegovina is a candidate for EU membership, it is crucial that it recognizes the legal solutions for talaq established by EU sources of law and case law, as presented in the paper's final section.

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Filling Legal Gaps in North Macedonian Private International Law

Author(s): Mirjana Ristovska / Language(s): English Publication Year: 0

Legal gaps present intriguing topics for legal theorists, including situations where the legislator has failed to prescribe regulations for specific legal relationships. These gaps can be categorized as axiological, normative, or technical in nature. Within the private international law, the potential for legal gaps arises when a particular legal relationship, legal institution, or legal issue cannot be subsumed under an existing legal category, as an integral part of a certain conflict norm. Consequently, these legal gaps pose a distinct challenge to judges, who are tasked with rectifying the gaps in individual cases. This paper will primarily conduct a normative analysis of the provisions governing the resolution of legal gaps in private international law within the Republic of Slovenia, the Republic of Croatia, the Republic of Montenegro, and the Republic of North Macedonia. The primary focus will be on the North Macedonian legislation and its application in the judiciary.The objectives of this paper are twofold: firstly, to provide a comparative examination оf the legal provisions found in the private international law acts of the aforementioned states, and secondly, to identify the methodologies prescribed by positive law for filling the legal gaps.

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Солидарна одговорност - "conditio sine qua non" постојања привредних субјеката и тржишне економије

Author(s): Damjan Danilović / Language(s): Serbian Publication Year: 0

In this paper, the author examines the concept of joint and several liability within the context of legal relationships that business entities frequently engage in. Some of them are mandatory in nature, while others are based on a voluntary basis. In this framework, joint and several liability towards creditors is considered from several aspects. The law of commercial companies encompasses instances of joint and several liability during status changes, the liability of individual company members, and the lifting of the corporate veil, among other aspects. From the point of view of business law, joint liability is established in various contracts. Ultimately, the establishment of joint and several liability relations in the case of securities enhances the standing of creditors. The author demonstrates that without this institution, the market economy, and consequently the economic entities, would not be able to function at all. In other scenarios, the absence of joint responsibility would cause the economic system to deteriorate to a primitive state, lacking the essential legal assurance.

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