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Poimanje ustavnih prava prema Ustavu Republike Slovenije i u nekim komparativnim pravnim sistemima

Author(s): Boštjan Tratar / Language(s): Serbian Issue: 3/2015

The constitutional rights were from the developmental point of view at the beginning perceived only as defensive rights, oriented against the state which protect the individual (i. e. particularly their property and freedom) from the encroachment from the state (this are the s. c. rights of negative status). However, the development of the state and society from the s. c. liberal to the welfare state (and the s. c. cooperative state) caused the development of new functions of constitutional rights. The constitutional rights have got due to growing role of the state on a social sphere and due to a growing impact of non-statal subjects and relations between private subjects the role of s. c. objective value order, that has to be introduced in all social relations, also in relations between private subjects (horizontal legal relations). We could also confirm for the Slovenian constitutional system that are the constitutional rights besides their defensive function treated as value measures (value guidances). The judicial practice, especially constitutional court practice have to transmit the legal principles and/or values into legal rules, that are defined in a degree, that could be realised. The perception, that is represented also in comparative legal systems (Germany, Switzerland), where the constitutional rights are perceived as value norms (which means the duty of the state to protect and to assure them in a whole legal system) has been put into force in a new Slovenian Constitution in the first sentence of the first paragraph of Article 5 of the Constitution. The objective content of the constitutional rights can be seen from the placement in the Constitution and the position just after the Preamble and after the first chapter, that determines fundamental characteristics of Slovenia as democratic republic and law and welfare state. The constitutional rights are also an element of the state constitution as well as of the (social, state) integration. The constitutional rights are the basis for every human activity, particularly the activity of the state. This further confirms that the constitutional rights are fundamental values of the constitutional regulation (value guidelines), therefore the state (that means the legislative, executive and judicial branch of power) has to respect or/and not only protect the constitutional rights, but also to assure and to promote them in horizontal legal relations.

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Правни положај супружника председника републике у појединим европским посткомунистичким земљама

Author(s): Aleksandra Višekruna,Miloš B. Stanić / Language(s): Serbian Issue: 2/2015

Position of president of the republic worldwide has been vastly discussed in domestic and foreign literature. However, the position of presidential spouse, as far as the authors know, hasn’t been under much scrutiny. That very fact has instigated the authors to research this matter and give incentive for further scientific research. The object of analysis are only certain European countries, because the intention was to analyse European countries that were the part of so-called ‘communist bloc’. This is logical choice, having in mind that our country was also part of that milieu. The paper consists of three parts – introduction that gives brief overview of the position of president in these countries, main part that contemplates concrete solutions and concluding remarks that intent to summarize findings of the research.

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Primena pravila o saobraćaju na mlade vozače u SAD, zemljama regiona i Srbiji

Author(s): Iva Tošić / Language(s): Serbian Issue: 2/2015

This article deals with the subject of traffic law regulations regarding young drivers, in Serbia as well as abroad. Although different traffic laws do contain norms referring to young drivers, they did not turned out to be satisfying. From that reason rises the need for certain corrections to be made. In the last few years, it has been intensively worked on the improvement of traffic safety, throughout new laws and orders, aggressive media campaigns and professional driving schools simulating realistic circumstances in traffic and preparing drivers to cope with different situations. Despite the fact that citizens’ awareness of this problem is growing, , the number of young people losing life in accidents still remains frightening. Moreover, that number constantly grows. On the other hand, we cannot turn a blind eye to the fact that in the moment of traffic accident, most drivers turn out to be influenced by drugs, alcohol etc. If we consider the significance of this problem, it is clear why so much attention has been dedicated to it and also why it is necessary to take certain steps in order to solve it in a quality way. In the text below, we will demonstrate few law solutions and do their comparison.

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Уставносудска контрола уставних промена

Author(s): Vladimir Đurić / Language(s): Serbian Issue: 1/2015

This paper deals with the constitutional review of constitutional amendments. The examination of comparative law regarding the constitutional review of amendments to the constitutions shows that such a review is no longer merely a theoretical hypothesis, but rather an existing practice in many constitutional systems. Some constitutions provide a posteriori formal constitutional review, while the others establish a priori substantive review. Moreover, comparative experiences show that the constitutional courts, in absence of constitutional provisions, interpreted their jurisdiction widely in order to allow such control. The horizontal spreading of constitutional review of constitutional amendments was followed in some states by its vertical substantive weakening, both in terms of ground, and in terms of the standard of such review.

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Pravni lekovi u Sjedinjenim Američkim Državama i Ujedinjenom Kraljevstvu Velike Britanije i Severne Irske-treći deo

Author(s): Monika Milošević / Language(s): Serbian Issue: 1/2014

In the third part of this monograph, the author firstly deals with the sources of civil procedural law, court system and the right of appeal in the legal system of the New York State, United States of America. The author then analyses the same questions in the legal system of the United Kingdom of Great Britain and Northern Ireland.

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Специфичности једног извора уставног права у Босни и Херцеговини

Author(s): Milan Blagojević / Language(s): Serbian Issue: 2/2013

In the science the sources of Constitutional law are usually divided into constitutions, the laws of parliaments, delegated laws, laws-decrees, decrees of executive power, parliamentarian rules of procedure, constitutional customs and constitutional conventions. If delegated laws, then laws decrees and constitutional conventions (which as a source of Constitutional law are typical to English constitutional-legal tradition) are excluded, the rest of sources of Constitutional law are known in constitutional-legal order of Bosnia and Herzegovina. But, what is specific for that order is a source of constitutional law known only in Bosnia and Herzegovina. It is agreement on transfer of additional competences on Bosnia and Herzegovina as a special source of constitutional law. It is not known in other countries in the world. This paper is devoted to this source of law and its specifities and essence are shown and explained here.

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Foundations In The General Property Code For Montenegro

Author(s): Snežana Miladinović / Language(s): English Issue: 3/2012

In the history of Montenegro foundations have a special place. In the history of law, norms which regulate the foundatins may, without exaggeration, be called pearls of inestimable value. What is said above is especially true for the regulations of the General Property Code for Montenegro, written by Valtazar Bogišić. Section XI of the fifth part of the General Property Code for Montenegro Valtazar Bogišić dedicated to foundatins. In only twelve articles Bogišić managed to sublimate all that is necessary for full, clear and unambiguous regulation of the foundations, starting with conceptual definitions, conditions and ways of establishing, through the rules of internal organization and working methods, to the conditions for a possible reorganization and termination of the foundation. Namely, Valtazar Bogišić has inscribed in the General Property Code the model which is based on the principle of autonomy of the will, voluntarism, durability, utility, social importance and publicity. In this article the author analyzed the provisions of the General Property Code, which regulates foundations. It was pointed out to their contents, but also the impact that carried out the foundation of the modern model.

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Nasledničko uverenje (Erbschein) u nemačkom pravu

Author(s): Dejan B. Đurđević / Language(s): Serbian Issue: 2/2012

In German law, the succession is determined either by law, or by disposition in contemplation of death. The heirs, or the residuary devisees of the deceased step into the shoes of the decedent at his death, by virtue of law. In other words, transmission of property at death occurs ex lege; it does not require a constructive decision of the probate court. The certificate of inheritance (Erbschein) is a document, issued by the probate court in Germany, at the successor’s request, as a proof of his right as beneficiary. This certificate states who became heir(s), and at which share, and is indispensable for the heir(s) to dispose of real estate, or bank assets. The author examines different types of certificates of inheritance, the proceedings before surrogate courts in which they are issued, presumption of accuracy of these certificates, and legal protection of the reliance in their accuracy in good faith. The author calls special attention to comparative differences between the German legal institute of certificate of inheritance, and the decisions rendered by the Serbian courts in probate proceedings.

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Odluke protiv kojih se može izjaviti žalba u pravnom sistemu SAD

Author(s): Monika Milošević / Language(s): Serbian Issue: 2/2012

In the U.S. an appeal is a plea for relief from a judgment or decision. A review is the process by which the appeal is conducted. An appealable decision is one that can receive immediate appellate review. Appealable issues are commonly limited to final judgments. The federal "final judgement rule," gives jurisdiction of appeals of final decisions by district courts to the courts of appeals in most cases. There are exceptions to the final judgment rule. The author deals with the appealable issues in the US federal court system.

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Повезаност каузе слободе завештања и поклона

Author(s): Vanja Petrović / Language(s): Serbian Issue: 1/2012

The question of the cause is one of the most complicated in legal theory. The essential thread that connects a will and a contract of gift benefaction their properties. Benefaction is the main cause of the cause of testamentary freedom and gift. Because at this point a word about two benefaction legal work and with them the motives are an integral part of the cause, public policy has enhanced the protective function, primarily because of the potential impact on the cause of unlawful motive. Cause sought to explain the causes and consequences of giving without pay. Property is an essential base of the causes of these two legal work, since the person who has nothing in his possession cannot be anything to anyone or leave through a will or gift, according to the ancient rule that the other person does not we can transfer more rights than they themselves have.

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Comparative Analysis of Land Registries

Author(s): Aleksandra Čavoški / Language(s): English Issue: 1/2010

The paper focuses on the main differences between the common law systems and continental systems (in particular the Serbian system) in respect of the conveyance of titles and other interests and land registries. Common law systems recognise the conveyance of title by the delivery of deeds or any other instruments, unlike the Serbian system which requires the registration of title in the land registry. The structure and effects of land registries are different between the two systems, whereby the Serbian system provides better protection of future purchaser and of current holders of titles and other interests. Despite those differences there are significant efforts to introduce the internet access to land registries into both systems.

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Evropska zajednica naroda u idejama Adolfa Hitlera i nacionalsocijalističkoj praksi

Author(s): Nenad Ž. Petrović / Language(s): Serbian Issue: 2/2009

In Hitler’s Mein Kampf, in the public appearances of this politician and even more so in his intimate discussions in the circle of the closest friends we can find the traces of an idea about the creation of a unique economically and organically linked European space, which would be under domination of the German Third Reich and based on the ideological concept of the race that would surpass the divisions among the nations. The Arian white nations of the common Indo-European origins would be making up that community of people, which was seen by Hitler as a way to overcome the at that time existing fragmentation of the continent. After the Tripartite Pact was signed on 27 September 1940 in Berlin, it seemed as if the vague ideas have came to the point of their realization: according to the pact Germany was supposed to get control over the greatest part of Europe, Italy over the Mediterranean and Japan over the Far East. Although the Great Britain was on the opposite side in the war, it was supposed to retain control over its colonial territories while the United States, which at that time had not yet entered the war but had been firmly supporting the Great Britain, were left with the possibility to preserve its domination over the American continent. However, even in the periods when it seemed that his war military undertakings are evolving in the direction he was streaming at, Hitler had never commenced realization of such an demanding pan.

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Imprisoned by the past: History and identity of ethnic groups in Bosnia and Herzegovina

Author(s): Jelena Vukoičić / Language(s): English Issue: 12/2016

In this article the author analyses the role of history in the creation and affirmation of national identities of ethnic groups in Bosnia and Herzegovina. National identities of the local collectivities have been created and shaped under the influence of the turbulent history of this country that, for the most part, consisted of wars, uprisings, occupations and frequent political crisis. It should be emphasized that the main problem of Bosnian-Herzegovinian society is actually reflected in its rich and complex history - For a very long period Bosnian and Herzegovinian nations have been living in a world of parallel truths that actually represent a collection of their personal and collective experiences in different historical periods. Conflicting historical roles and perceptions of these roles are also major obstacles to the stability and preservation of Bosnia and Herzegovina. 'Multiethnic' society based on completely different historical and contemporary truths does not have many chances for a long-term stability, given that a kind of a common, widely accepted history is necessary for the establishment of a functioning community in post-conflict environment.

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Legitimate Expectations Versus Public Interests in Hungarian Context

Author(s): Zoltán Szente / Language(s): English Issue: 87 (1)/2015

The protection of legitimate expectations as a general principle of the legal system is not known in Hungary. However, some other constitutional propositions play a similar role like the protection of “acquired rights” and “legal certainty”. Although during the 1990s, the Constitutional Court developed a sophisticated concept of the rules of law, after 2010, when a conservative government coalition gained a two-thirds majority, the whole constitutional system was transformed. Since then, the level of the protection of individual rights, including the legitimate expectations, on behalf of the elusive concept of public interest, has declined. The institutional system of constitutional justice has proved to be weak to resist these trends. The study describes how the protection of legitimate expectations was developed and elucidates the very recent tendencies. The final conclusion of the author is that the Hungarian case can be a deterrent example showing what not to do.

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УТИЦАЈ СИСТЕМА ВЛАСТИ НА НАЧЕЛО ПАРТИЦИПАЦИЈЕ У САВРЕМЕНИМ ФЕДЕРАЦИЈАМА

Author(s): Marko Stanković / Language(s): Serbian Issue: 2/2016

One of the biggest challenges that every framer of the constitution faces with is selection of appropriate forms of state – form of rule, political system, state structure and system of government. At the same time, compatibility of these various forms shown in practice is very important, because the efficiency of the particular constitutional system largely depends on that compatibility. This paper analyzes the relationship between federal states with various systems of government, namely, the ways in which complex, federal state structure “fits” with different systems – presidential, parliamentary, assembly and mixed. Special attention is paid to the relationship of the system of government with the principle of participation of federal units, in other words, how system of government can ensure representation of federal units within federal political authorities (legislative and executive). In this regard, paper also analysis the influence of electoral and party system to the principle of participation. In the end, there is an attempt to find the answer to the question which system of government is most compatible with the federal state.

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ШЕСТА ДРЖАВНА РЕФОРМА У БЕЛГИЈИ: НОВИ, АЛИ НЕ И ПОСЛЕДЊИ СТАДИЈУМ ДЕВОЛУЦИЈЕ

Author(s): Marko Stanković / Language(s): Serbian Issue: 2/2014

Belgian Constitution of 1831 is one of the oldest constitutions in the world which is still in force. It is well known for having remained in force despite the change of organization of state – from unitary to federal. Starting from the 1970s, six state reforms were conducted in Belgium, and the monarchy was transformed from centralized unitary state into a decentralized federation. Pressures for further devolution are getting stronger, and some of the members of the Flemish community have clearly expressed their desire for independence from the Kingdom of Belgium and the establishment of their own state. This paper in its first part analyzes five previously conducted reforms of Belgian constitutional system. The second part deals with changes agreed in so-called Butterfly agreement and implemented in sixth state reform. In the end, author is trying to anticipate possible epilogues of state crisis, which takes almost a decade.

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ПОЛИТИКА ЉУДСКИХ ПРАВА У ОДНОСУ НА ВЛАДАВИНУ ПРАВА

Author(s): Ian Brownlie / Language(s): Serbian Issue: 4/2009

In this paper, the author argues that in the context of international relations as they stand today in relation to the proliferation of human rights instruments and the erosion of the reserved domain of domestic jurisdiction, human rights are used as a tool for hegemonial intervention and promotion of unequal relations between states, instead of further implementation of the international rule of law. The author identifies the background elements which are conducive to the abuses and inequalities in the application of the law: the political atmosphere and orthodoxy, non-effective and non-objective fact finding which leads to the manipulation of key facts, the proliferation of forms of international criminal jurisdiction, and strong political opportunism controlling the human rights milleu. The author further presents some examples where double standards in relation to human rights and humanitarian law were present, such as the cases of Darfur, the Balkans, or the conflict between Ethiopia and Eritrea. Therefore, the only way for a genuine promotion of human rights is through their further implementation and adherence to the international rule of law.

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УСТАВНО СУДСТВО НА ПРЕСЕКУ ПРАВА И ПОЛИТИКЕ

Author(s): Olivera Vučić,Dragan Stojanović / Language(s): Serbian Issue: 2/2009

The matter of relationship between the traditional branches of government – executive, judicial and legislative – on one side, and the constitutional court on the other, never loses its relevance. Interaction between the legislator and the constitutional court remains the focal point of this relationship. In the vast majority of modern states, constitutional courts represent the most powerful instrument of institutionalization of the constitutional protection function. However, the question of scope of the constitutional judiciary power is unresolved, both in theory and in practice. Namely, there is an ongoing discussion on the rapport between the constitutional court and the idea of the separation of powers, and between the constitutional court and politics. The question of the connection between constitutional courts and politics becomes more relevant as the jurisdiction of constitutional courts extends, and as the range of the acts falling under constitutional judicial review broadens. One of the functions of constitutional judiciary is to exercise legal control over politics. Decisive factor of the activities of constitutional court is constitution, as a legal act of the highest level, with strong political attributes and undisputable political importance. Furthermore, in the hart of these activities are constitutional legal questions, which include certain political elements.

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O НАУЧНОСТИ НЕКОЛИКО САВРЕМЕНИХ МУЛТИДИСЦИПЛИНАРНИХ ПРАВНИХ ТЕОРИЈА

Author(s): Dragan Mitrović / Language(s): Serbian Issue: 1/2009

legal theories suffer from the same methodological and epistemological flaws, involving a number of arbitrarily chosen basic elements, premises or benefits. These flows give rise to further problems, such as relativization of values and untruthfulness in Popper’s terms of truthfulness as regularity, amorality, and tendency to overstate the claims. On the one hand, there may be some political benefit from the attempts to propose, announce as the final, or justify some socially doubtful projects. On the other hand, multidisciplinary legal theories either ignore or overstate the existing ethical problems, depending on status, clarity and reliability of their methodology and terminology. In addition, these theories tend to relativize different ethical issues, if these issues do not match with their previously set goals. The author concludes that the multidisciplinary legal theories are two-faced like Janus. Nevertheless, they have gained a strong impetus at the turn of the 20th century. One of the two faces reveal the damage inflicted on science and society by the well paid „academic scribblers“ and „hired publicists“ – as Charles Right Mills used to refer to them. The other face shows that not all the proponents of these theories have chosen to earn their living this way, but are truthfully dedicated to participating in the legal and social experiment which is currently underway.

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AFTER THE ICJ’S ADVISORY OPINION ON KOSOVO: THE FUTURE OF SELF-DETERMINATION CONFLICTS

Author(s): Miodrag Jovanović / Language(s): English Issue: 3/2012

Despite the expectation that the ICJ’s Advisory Opinion on Kosovo will profoundly contribute to the clarification of international law on self-determination, the Court, nevertheless, confined itself to a rather narrow reading of the submitted question. Yet, I will argue that some of its findings are of general nature. Such are the following conclusions: 1. that “general international law contains no applicable prohibition of declarations of independence”, except in cases where they are in connection with a violation of general international legal norms of jus cogens; 2. that “the scope of the principle of territorial integrity is confined to the sphere of relations between States” and, hence, does not concern non-state actors, including secessionist groups; and 3. that “persons who acted together in their capacity as representatives of the people” of some territory under the UN interim regime of governance are not bound to act within the framework of powers and responsibilities established to govern the conduct of provisional institutions. I will argue, furthermore, that these findings might have disastrous consequences for the future of self-determination conflicts. First, by being excluded from the duty to respect the jus cogens norm of territorial integrity, secessionist groups, as non-state actors, might be inclined to use all possible means, including the violent ones, to seize as much power as possible over delineated piece of territory of the recognized state.

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