Проф. др Жељко Мирјанић: ПИСАЊЕ И ДОНОШЕЊЕ ЗАКОНА
Review of: Проф. др Жељко Мирјанић: ПИСАЊЕ И ДОНОШЕЊЕ ЗАКОНА, Правни факултет Универзитета у Бањој Луци, 2014
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Review of: Проф. др Жељко Мирјанић: ПИСАЊЕ И ДОНОШЕЊЕ ЗАКОНА, Правни факултет Универзитета у Бањој Луци, 2014
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Review of: Доц. Др Татјана Јевремовић Петровић: ГРУПЕ ПРИВРЕДНИХ ДРУШТАВА (Правни факултет Универзитета у Београду, 2014, стр. 522)
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When deciding on the applicability of the right to a fair trial from Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms to appeals arising from criminal proceedings, the Constitutional Court of BiH starts from the concept of the existence of new civil rights and obligations. Only if the executive procedure leads to the existence of new civil rights and obligations, appeals are admissible. Otherwise, the appeals are rejected because they are ratione materiae incompatible with the Constitution of Bosnia and Herzegovina and the Convention. The author believes that this kind of behavior is wrong and stems from a misinterpretation of the practice of the European Commission for Human Rights and the European Court of Human Rights. If the rules of enforcement procedure allow the executor to use legal means to prevent and suspend enforcement, then new and different legal issues arise than those that arose in civil proceedings when a civil judgment was passed. Accordingly, the appeals arising from the appellant's allegations that the executive court violated their human rights with its decisions regarding the legal means it used to prevent and suspend execution are admissible and compatible with the Constitution of BiH and the Convention.
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In French law, there are four types of bankruptcies of natural persons: Bankruptcy of independent entrepreneurs (artisans, farmers and members of liberal professions). This type of bankruptcy is governed by the same rules as the bankruptcy of commercial companies, the French Commercial Code. Another type of bankruptcy is the bankruptcy of responsible persons in the bankruptcy proceedings of a liquidated company and an independent entrepreneur as a criminal sanction prescribed by the provisions of the French Commercial Code. The third type is personal bankruptcy as a professional sanction imposed during or after bankruptcy proceedings against an independent entrepreneur, or a responsible person (de facto or de iure) in a legal entity, due to negligent business or punishable actions (fraudulent use of funds that cause harm to others, payments despite insolvency, fictitious accounting, etc.) or due to the mere fact that the company does not pay its debts. This type of bankruptcy is also regulated by the provisions of the French Commercial Code. The fourth form is civil bankruptcy (consumer bankruptcy), i.e. natural person who does not belong to the mentioned categories. It is regulated by the provisions of the French Consumer Code.
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With the creation of the European Union, European legislation is also created, whose normative activity regulates all legal branches for the sake of more effective functioning of the legal system. Thanks to the monopoly of industrial property rights, which were regulated by supranational regulations even before the creation of the European Union, a high degree of exclusivity in international business relations has been preserved.
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In this paper, the authors analyze the legal aspects of a loan agreement with a currency clause in Swiss francs. The authors start from defining the loan agreement, clarifying the currency clause and the variable interest rate, and based on the studied court practice in Serbia, Montenegro, Bosnia and Herzegovina, with a comparative review, they communicate the positions of the courts and the issues they dealt with. They often come across conflicting opinions and positions of the courts and see their initial disagreements, and wonder if there is a single solution (judicial, legislative, etc.) and which would be the most optimal. The authors set a framework for solving the problems related to these loans in the form of suitable legal institutes for application to this case. There is still no final solution and it is difficult to give a reliable forecast of the further development of judicial practice, especially in countries where there are no positions of the highest judicial instances. Based on the literature and judicial practice, the authors give and propose concluding opinions regarding the issues in question that have appeared as disputed in connection with this issue.
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In Romanistics, the impossibility of representing the interests of other persons (alteri stipulari nemo potest) is cited as one of the axioms of Roman private law. Were the legal affairs of alineo nomine agere really unsustainable according to civil law, or were there indirect ways of representing the interests of other persons? The mandate as an institute of ius gentium is an example of indirect representation in Roman law, but in addition to the mandate there are other institutes, both of civil and praetorian law, which have the effects of representation. Services are not rare in Roman law and should be interpreted in accordance with the authentic Roman context, in order to see their true essence.
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Review of: ПРОФ. ДР РАДЕНКО ЈОТАНОВИЋ: ,,ПРАВО НА ФИЗИЧКИ ИНТЕГРИТЕТ КАО ОСНОВА ДРУГИХ ПРАВА ЛИЧНОСТИ“ (Правни факултет Универзитета у Бањој Луци, Бања Лука, 2016, стр. 432)
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Review of: ДОЦ. ДР ДАРКО РАДИЋ: ,,ИМОВИНСКИ ОДНОСИ У БРАКУ“ (Правни факултет Универзитета у Бањој Луци, Бања Лука, 2016, стр. 496)
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Review of: Доц. др Зоран Васиљевић: ,,ПРАВА И ОБАВЕЗЕ ИЗ УГОВОРА О КРЕДИТУ“ (Правни факултет Универзитета у Бањој Луци, Графопапир, 2015, стр. 271)
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The relevance of the research is determined by the novelty of the topic, taking into account the Law of Ukraine "On Administrative Procedure". The purpose of the study is to characterize the category "guaranteeing effective legal remedies" in the national administrative legal doctrine, taking into account the European standards for the protection of the rights, freedoms and interests of the individual, and to determine the directions of research into the problems of challenging administrative acts in public administration. The research uses many methods, including general scientific and special legal ones: comparative legal, systemic structural, analysis, synthesis, and others, which makes it possible to systematically and consistently approach the solution of scientific problems, to investigate different positions of scientists, the provisions of legal acts and formulate appropriate conclusions. An analysis of the essence of the principle of guaranteeing effective legal remedies was carried out. Two components of the principle are distinguished: 1) the right of a person to appeal the decision, actions or inaction of an administrative body; 2) the duty of an administrative body to inform a person about the method, procedure and terms of filing a complaint against an administrative act that negatively affects his rights, freedom or legitimate interest. This opens the way for in-depth scientific understanding of this topic. In the process of analysis, a number of problematic moments related to the incorrect use of the provisions of this principle were revealed. It is emphasized that the implementation of the principle will affect: a) a change in the format of interaction between individuals and administrative bodies in the direction of raising the standards of such communication; b) reducing the burden on administrative courts, etc.On the basis of the conducted research, conclusions were formulated and recommendations were made, namely, that the principle of guaranteeing effective means of legal protection: 1) is based on EU standards, taking into account national specificities; 2) is an additional mechanism for the protection of persons; 3) is implemented mainly at the level of the institute of administrative appeal, which has certain advantages compared to judicial appeal. Therefore, in the context of the transformation of national legislation, there is a need to conduct additional research on the specifics of the implementation of this principle, taking into account the realities of today.
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The relevance of the topic is due to two factors, on the one hand, the new stage of legal regulation of relations between private individuals and administrative bodies, which is connected with the entry into force of the Law of Ukraine "On Administrative Procedure", and on the other hand, the growing importance of planning acts and the need for their proper regulation. Both general scientific and special methods of scientific knowledge were used in the research. The purpose of the article is to substantiate the essence, characteristics, signs and requirements of planning acts, as well as proposals for their regulatory regulation. It is noted that it is important to distinguish planning acts based on what/whom the relevant act is aimed at. Part of the acts of planning and planning activities are aimed at internal organizational issues of the body itself or at the system of public administration. Another part of the acts of planning and planning activities is aimed at private individuals, creating legal consequences in the form of the emergence, change or termination of their rights and the creation of obligations. It is substantiated that the given classification has both theoretical and practical significance. The theoretical significance lies in the fact that the separation of planning acts from those aimed at determining the rights of private individuals from those that do not have an external direction will allow to fill the category of administrative law with content, such as "tools of public administration". Instead, the practical side of such a demarcation can contribute to the improvement of regulatory regulation. We are talking about the regulation of both the procedure for the adoption and implementation of acts, and the procedure for their appeal, because the question arises as to the possibility or impossibility of regulating such acts by administrative-procedural legislation, as well as the regulation of the procedural procedure for appealing such acts according to the provisions of the Code of Administrative Justice of Ukraine. On the basis of the conducted research, conclusions regarding administrative-procedural legislation were formulated and proposals were made, in particular, that the procedure for adopting a planning act should be closer to the adoption of an administrative act and be regulated by the Law "On Administrative Procedure". When adopting them, all principles of administrative procedure must be observed, although specifics must be determined by special legislation. Regarding the wording of plans, it is appropriate to call general planning decisions "plan", but when it comes to the second type, then use the term "act" - plan act, planning act.
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The relevance of the research topic is due to the need to analyse the experience of regulatory definition of administrative procedures in foreign countries. It characterizes models of systematizing procedural legislation in certain developed countries worldwide and in Ukraine. Emphasis is placed on Ukraine adopting a model of systematizing administrative procedural legislation that involves the adoption of a general act on administrative procedure with the preservation of the priority of special legislation. This approach aligns with the recommendations of the institutions of the Council of Europe and the European Union, particularly Recommendation CM/Rec(2007)7 of the Committee of Ministers of the Council of Europe of June 20, 2007, to member states on good administration, and the European Parliament Resolution of January 15, 2013, with recommendations from the Commission on Administrative Procedure Law in the European Union. The latter document envisages that the general act on administrative procedure should contain a universal set of principles and outline a procedure applicable as de minimis provisions when there is no lex specialis. The purpose of the article is to reveal the peculiarities of legal regulation of administrative procedures under the laws of foreign countries. It is argued that updated legislation should include referral norms that clearly address the legal practitioner (other subjects endowed with administrative-procedural legal status) to a specific procedure defined by sectoral legislation. This is particularly relevant to cases handled by administrative authorities on their own initiative. The study uses the comparative legal method to establish the common and distinctive features of legal regulation of administrative and procedural legislation of foreign countries. The author examines the peculiarities of legal regulation of administrative procedures in certain European countries. It is noted that the implementation of legislation on administrative procedure in Ukraine should be carried out using the existing experience of countries where the relevant changes have already been implemented. It is emphasized that in the future, attention should be focused on the formation of a homogeneous national law enforcement practice, which is determined by a unified approach to the interpretation of procedural law. Based on the study, the author formulates the following conclusions and makes recommendations: at the initial stage, it is worthwhile to establish communication between representatives (officials) of administrative bodies and judges of administrative courts with a view to taking a number of measures to ensure effective implementation of domestic administrative procedure legislation; to ensure data exchange within the administration and to identify practical problems which may arise in the process of harmonization of the entire array of legal acts around the basic Law of Ukraine "On Administrative Procedure".
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The article is devoted to the problem consideration of determining the content and characteristics of discretionary powers in the context of the administrative procedure legal regulation, which is caused by the adoption and necessity of introducing the provisions of the Law of Ukraine «On Administrative Procedure» into the practices of the subjects of authority. The actuality of the topic is determined by the necessity to qualify administrative bodies' powers as discretionary and implement the relevant principles of administrative procedure. The article aims to analyze the normative constructions of administrative proceedings available in Ukraine's legislation, which allow for the possibility of exercising discretionary or similar powers to develop a position regarding the limits and features of the practical application of norms of the Law of Ukraine «On Administrative Procedure». Achieving the outlined objective became possible through complex scientific knowledge methods, in particular dialectical and systemic approaches, formal-legal and comparative methods, and methods of analysis and synthesis. It is noted that the vast majority of normatively defined principles of administrative procedure are designed for the implementation of discretionary powers by administrative bodies. It was emphasized that an integral component of discretionary powers, in addition to the availability of legally defined options for decisions that an administrative body can adopt in the presence of specific grounds, is the availability of the administrative body's right to act at its discretion. Based on the conducted research on the content of the administrative bodies' powers in specific types of administrative proceedings, the conclusions were formulated that in administrative proceedings of a registration and permitting nature, the relevant administrative bodies do not have discretionary powers. It is noted that an example of full-fledged discretionary powers is the powers of administrative bodies in tort proceedings. This is due to the fact that sanctions for the commission of relevant offenses have a relatively defined nature. In such cases, the administrative body, at its discretion, selects the type and amount of sanctions, taking into account the circumstances of the case. Unlimited discretion is inherent in the authority of collegial bodies, particularly local self-government bodies, which is determined by the decision-making method by voting of the collegial body members.
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The topicality of the topic is due to the study of various forms and procedures of pre-trial settlement of administrative-legal disputes as alternatives to the judicial procedure for consideration of this category of disputes, which requires a much larger public resource. The purpose of the study is to carry out a scientific analysis of the legal nature of pre-trial procedures for resolving public-law disputes, their types, as well as substantiating proposals for their improvement. The tasks of the research are to carry out a theoretical-legal analysis of the concept and content of "administrative procedures", to define the concept of "procedures for pre-trial settlement of administrative-legal disputes", to clarify its content and types. Achieving the outlined goal and fulfilling the set tasks became possible thanks to the use of a complex of methods of scientific knowledge, in particular the dialectical method, the use of which made it possible to comprehensively reveal the nature of "administrative procedure" as a form of pre-trial settlement of an administrative-legal dispute, as well as to trace the genesis of this phenomenon; the formal legal method was used to establish the content of legal norms and analyze the practice of their application by courts. As a result of the study, it was established that the procedure for pre-trial settlement of administrative-legal disputes should be understood as a legally defined sequence of actions of a subject of authority or another authorized person aimed at taking measures to resolve an administrative-legal dispute out of court. The following alternative procedural forms of pre-trial and out-of-court settlement of administrative-legal disputes are singled out: 1) administrative procedure for consideration of complaints against decisions, actions or inaction of subjects of authority, in accordance with the Law of Ukraine "On Appeals of Citizens"; 2) the procedure for appealing an administrative act of a subject of authority, in accordance with the Law of Ukraine "On Administrative Procedure"; 3) mediation – an out-of-court procedure for the settlement of a public-law conflict (dispute), which is carried out with the help (mediation) of a mediator; 4) reaching a tax compromise when resolving tax disputes, in accordance with the Tax Code of Ukraine; 5) the procedure for administrative appeal of decisions in cases of administrative offenses, in accordance with the procedure specified by the Code of Ukraine on Administrative Offenses and the Customs Code of Ukraine. It has been proven that the most complete content of this procedure is defined in the Law of Ukraine "On Administrative Procedure", which gives reasons to distinguish the following stages of it: initiation of administrative proceedings (complaint and decision, action or inaction of the subject of authority) and filing of such a complaint directly to the entity authorized to consider it or through the Centers for the provision of administrative services; accepting, registering a complaint and opening proceedings for its consideration; investigation of the circumstances of the case and collection of evidence; consideration and resolution of the case; making a decision in a case in the form of an administrative act; bringing the administrative act to the attention of the applicant; ensuring the implementation of the adopted act. Proposals to improve the norms of the Law of Ukraine "On Mediation", which regulate the procedure for out-of-court settlement of public-law disputes by defining and meaningfully filling the stages of such a procedure, are substantiated.
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The paper attempts a critical analysis of the new norms of the Law of Ukraine "On Administrative Procedure", dedicated to the types of participants in administrative proceedings. The relevance of the study is due to the provision of a deeper understanding by the authorized subjects of law enforcement, which will be presented for the first time in a numeral administrative proceeding. At the same time, the article is aimed not only at a deepening of the understanding of new legal categories that have were included to participants in administrative proceedings by national legislator. Also, the expediency of their inclusion to participants is analyzed as well as possible of options for future improvement of the relevant norms of the Law of Ukraine "On Administrative Procedure" are proposed. For this, the comparative legal method is widely used in the analysis, which allows to investigate the origins and prerequisites for the selection of certain types of participants based on European administrative standards and the achievements of foreign legal doctrine, enshrined in the relevant legislative administrative procedure acts. As a result of the conducted analysis, it is recommended to change the concepts applied in the Ukrainian Law in the part of the entities that participate in the general administrative procedure almost completely. At the same time, it is recommended to do this not hastily, but only after the future professional commitment and the initial experience of its enforcement gained in the first period after the entry into force of the Law of Ukraine "On Administrative Procedure".
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The issue of administrative silence is a significant challenge not only for the countries undergoing structural legal reforms, but also in established democracies with stable rule of law systems. Administrative inaction or delayed activity pose serious problems for the citizens, impact their individual rights, but also questions the overall effectiveness of public administration. In general, two models of addressing this case of maladministration are adopted: the negative (where silence means tacit rejection) and positive (where silence means approval). However, in practice of many countries, the solutions are mixed and much more complex. The effective way of dealing with administrative silence seems to be a matter of practice of public administration bodies, good cooperation with administrative courts, and respectful approach to individual rights of the citizens. Ukraine is currently undergoing a major reform of administrative procedure. The newly adopted and currently implemented Law on Administrative Procedure (LAP) provides a comprehensive approach to regulation of administrative proceedings and addresses many challenges relating to the operation of public administration. It is important to test the new solutions and observe how they function in practice, as well as to identify potential weaknesses and possibilities for improvement. Administrative silence, as a substantial challenge to the proper functioning of public administration, needs to be effectively addressed by the legal norms and practice, possibly with the inspiration of the good practices from the other European countries.
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The relevance of the proposed study is due to the parallel significant update of medical legislation and the entry into force of the Law of Ukraine "On Administrative Procedure". The purpose of the proposed research is to assess the quality of legal regulation of certain administrative proceedings in the field of public health, which has undergone significant changes in the last months of 2023. The results of the study, on the one hand, will help to identify shortcomings and legal conflicts that have formed, and on the other hand, to develop and suggest ways to overcome some of them. The research methodology consists of the following methods of scientific cognition: dialectical, theoretical-prognostic, comparative-legal, system-structural, formal-logical, analysis, legal modeling, and others. In the course of the work, the importance of proper legal regulation and effective public administration in the field of public health is emphasized. The place of administrative bodies in the system has been establishedsubjects of relations in the field of public health. A classification of measures used by specialized administrative bodies in their activities has been proposed. The significance of administrative proceedings and administrative acts used in the process of public administration of public health is disclosed and the most significant among them are highlighted: control and supervision, on the application of termination measures, registration. The essence of each of these proceedings has been investigated and the shortcomings of their regulation have been identified, due to the inconsistency of the norms of the Laws of Ukraine "On the Public Health System" and "On the Administrative Procedure". Significant shortcomings in the legal regulation of administrative proceedings on the application of temporary measures to stop violations of the requirements of sanitary legislation are noted and possible problems in its application are indicated. Attention is also focused on the shortcomings of the terminology used in the Law "On the Public Health System". The results of the study can contribute to the improvement of legislation in the field of public health, as well as to improve the quality of formation law enforcement practice of administrative bodies that are subjects of the public health system.
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