Dreptatea împotriva legii sau despre economia politică a iertării

Author(s): Daniel Barbu / Language(s): Romanian Issue: 2/2001

L’étude porte sur quelques pratiques constitutionnelles de l’Ancien Régime roumain et notamment sur le rapport entre le droit administré comme equité et l’application du droit positif. La justice contre la loi serait le principe méme — du bon gouvernement des princes. Car le prince est loi animée et I’expression de sa volonté n’est pas soumise a des normes de droit, mais à une coutume consi- tutionnelle selon laquelle il n’est pas appelé à punir les coupables, mais à rétablir l’équilibre social mis en danger par les infractions. Le prince est moins tenu de distribuer la justice au nom d’une éthique abstraite, que de suivre une sorte de morale pratique commandée par les exigences de la justice commutative. Ce qui explique la rareté des lois de portée générale octroyées par les princes roumains avant le milieu du XVIII° siécle. La régle maitresse de la gouvernance serait le pardon: le pouvoir des princes roumains de I’Ancien Régime est avant tout un pouvoir pastoral.

СТЕЧАЈ У ФРАНЦУСКОМ ПРАВУ

Author(s): Ranko Vulić / Language(s): Serbian Issue: 38/2016

Bankruptcy in France has been regulated by the Commercial Code since 2005, with 1000 articles of the legal and by-law part of the Code. The same rules regulate the bankruptcy of private companies, registered artisans, registered farmers and members of liberal professions. Bankruptcy has 5 stages: 1. temporary mandate; 2. mediation; 3. reorganization of a liquid entity; 4. reorganization of an insolvent entity; 5. bankruptcy. It is obvious that the state is trying to save jobs and economic activity through the intervention of courts and other state authorities.

THE CONCEPT AND THE CONTENT OF THE INTERROGATION OF A SUSPECT IN CUSTODY IN CRIMINAL PROCEEDURE IN THE UNITED STATES

Author(s): Miodrag N. Simović,Vladimir M. Simović / Language(s): English Issue: 40/2018

The paper analyzes some relevant issues related to the actions of law enforcement officers in the USA after a person has been taken into custody or otherwise deprived of their liberty, which require that person to be warned of applicable constitutional rights. In the landmark decision Miranda v. Arizona (1966), the US Supreme Court set standards for the rights of law enforcement officers to follow when questioning a suspect in custody. Suspects subject to custodial interrogation must be warned that they have the right to remain silent; that the statements they make may be used as evidence against them; that they have the right to a lawyer; and that if they cannot procure a lawyer, one will be assigned to them before the trial, if they desire it. Under Miranda, if those warnings are not given, evidence obtained during interrogation cannot be used against suspects. Since the Miranda decision, state and federal courts have faced a number of questions regarding its application, including: when a suspect is considered to be in custody and thus entitled to Miranda warnings, and at what point is it considered to be the suspect waived his right to a lawyer during the interrogation. Some US Supreme Court decisions have attempted to answer these difficult questions.

SESKUALNO ZLOSTAVLJANJE I ISKORIŠTAVANJE DJECE (NOVINE U KRIVIČNOM ZAKONU REPUBLIKE SRPSKE)

Author(s): Ivanka Marković / Language(s): Serbian Issue: 40/2018

The Criminal Code of the Republic of Srpska made significant changes in the system of criminal protection of the sexual integrity of children. The age limit up to which it is absolutely forbidden to commit adultery or sexual acts equated with it with a child has been raised, new criminal offenses have been introduced that incriminate actions that were outside the zone of punishment until now, greater punishment measures are provided for certain forms of criminal offences, and certain changes were made in the general part of the Criminal Code, which also contribute to the enhanced protection of children's sexual integrity. In addition, all criminal acts that threaten or injure the sexual integrity of children are systematized in a special group of criminal acts in Chapter XV, i.e. Criminal acts of sexual abuse and exploitation of a child, which emphasizes the importance of the good that is being protected. The aforementioned changes are the subject of consideration in this paper, where the author also explains the reasons for their introduction into the criminal justice system.

ПРАКСА ЕВРОПСКОГ СУДА ЗА ЉУДСКА ПРАВА У ОДНОСУ НА ПРАВО ЕВРОПСКЕ УНИЈЕ

Author(s): Ljiljana Mijović / Language(s): Serbian Issue: 40/2018

The process of accession of the European Union to the European Convention on Fundamental Human Rights and Freedoms, as a contracting party, as well as a party to the proceedings before the European Court of Human Rights, is ongoing and depends on the ongoing negotiations. Regardless, for many years the European Court of Human Rights has been dealing with certain issues related to both the law of the European Union and the mutual relationship between the member states and the Union itself. At the beginning of this practice, the Commission for Human Rights dealt with it very cautiously, more from a theoretical than from a practical aspect, so that only with the institutionalization of the European Court of Human Rights would conditions be created for judicial decision-making in cases of great legal importance, arising from practice. This article addresses some of those questions.

ДВОРКИН И ОРИГИНАЛИЗАМ У ИНТЕРПРЕТАЦИЈИ УСТАВА

Author(s): Igor Milinković / Language(s): Serbian Issue: 40/2018

Ronald Dworkin is one of the most influential legal theorists and philosophers, whose thought marked the second half of the 20th and the beginning of the 21st century. One of the topics that Dworkin dealt with intensively during his career was the problem of interpreting the constitution. After the importance of the constitution, as a fundamental legal act, and the special responsibility of the interpreter of the constitutional provisions arising from such importance, Dworkin's teaching on the interpretation of the constitution will be subjected to analysis. Although Dworkin was known as one of the most prominent critics of originalism (as a special model of constitutional interpretation), his criticism of Scalia's version of originalist teaching will lead certain authors to include him among the representatives of originalism. After the paper presents the genesis of Dworkin's views on the interpretation of the constitution, the differences between his views and originalism will be pointed out.

PRACTICAL ASPECTS OF APPLYING DIFFERENT LEGAL TRADITIONS IN INTERNATIONAL ARBITRATIONS

Author(s): Dragan Zelić,Nenad Baroš / Language(s): English Issue: 40/2018

In legal science, there is no single and comprehensive definition of arbitration. Most of the positive regulations that regulate it, both in the world and in our country (Law on Arbitration), leave out the question of its determination. Nevertheless, in science and legal practice, arbitration is most often defined through the presentation of the arbitration dispute, its elements, course and legal consequences, as well as by stating the differences between arbitration and the court process, i.e. arbitration and other alternative ways to resolve disputes (Alternative Dispute Resolution). . It is established that arbitration is an alternative to judicial dispute resolution, that it is formed by consensus, that is, the agreement of the will of the parties involved in it, that it is of a private nature, and that its decisions are legally binding and final. The paper tried to administratively explain the differences, i.e. different ways of acting in the case when the participants in international arbitrations come from different legal systems, especially the differences between the two most important and most represented prana systems in the world, the European, continental legal system and the Anglo-Saxon law (common law).

BENEFITS LIMITATIONS OF INTERNATIONAL ARBITRATION IN INTELLECTUAL PROPERTY LAW DISPUTES

Author(s): Njegoslav Jović / Language(s): English Issue: 40/2018

In the paper, the author analyzes the advantages and disadvantages of international arbitration in disputes involving intellectual property rights. Disputes in the field of intellectual property rights have special characteristics. In the case of a dispute with an international element, problems arise with the jurisdiction of state courts due to the principle of territoriality of intellectual property rights. The right holder must initiate court proceedings in all states individually, which leads to protracted proceedings, increased costs and uneven court practice. For these reasons, the author analyzes alternative dispute resolution through arbitration in order to determine whether this method of dispute resolution is more acceptable to the parties than state courts. The author pays particular attention to the WIPO Center for Arbitration and Mediation as a permanent arbitration institution whose primary activity is the resolution of disputes in the field of intellectual property rights.

ПРОФ. ДР РАТКО КОВАЧЕВИЋ: ,,ПСИХИЈАТРИЈСКА ВЈЕШТАЧЕЊА У СУДСКОМ ПОСТУПКУ“

Author(s): Miodrag N. Simović,Vladimir M. Simović / Language(s): Serbian Issue: 40/2018

Review of: Проф. др Ратко Ковачевић, ПСИХИЈАТРИЈСКА ВЈЕШТАЧЕЊА У СУДСКОМ ПОСТУПКУ, Институт за криминолошка и социолошка истраживања у Београду и Завод за форензичку психијатрију у Сокоцу, Београд, 2017, стр. 432)

ПРОФ. ДР ГОРДАНА СТАНКОВИЋ, ПРОФ. ДР РАНКА РАЧИЋ: ,,ПАРНИЧНО ПРОЦЕСНО ПРАВО“

Author(s): Stojana Petrović / Language(s): Serbian Issue: 40/2018

Review of: ПРОФ. ДР ГОРДАНА СТАНКОВИЋ, ПРОФ. ДР РАНКА РАЧИЋ: ,,ПАРНИЧНО ПРОЦЕСНО ПРАВО“ (Универзитет у Бањој Луци, Правни факултет, 2017)

,,ПРОМЕНА ДУЖНИКА“ ИЗ ПЕРА ПРОФЕСОРИЦЕ МАРИЈЕ КАРИНИКИЋ МИРИЋ

Author(s): Dejan Pilipović / Language(s): Serbian Issue: 40/2018

Review of: Марија Караникић Мирић, ,,Промена дужника“, Београд, 2017)

Sprawozdanie z IV Konkursu z Prawa Finansowego zorganizowanego przez Zespół Badawczy Prawa Finansowego oraz Koło Naukowe Prawa Finansowego FiskUS, Szczecin, 16 stycznia 2023 roku

Author(s): Dominika Trzeszczoń / Language(s): Polish Issue: 18/2023

Necesitatea și oportunitatea emiterii actelor administrative. Semnificație

Author(s): Dana Apostol Tofan / Language(s): Romanian Issue: 04/2023

This article presents some considerations concerning the legality-opportunity correlation over time, namely: in the post-war period and in the post-communist period. The analysis of the general theory of the administrative act raised this issue in the past. The traditional dispute between the two Schools of public law, one from Bucharest and the other from Cluj, ended with the definition of excess of power in the Administrative Litigation Law no. 554/2004. This problem presents a practical importance because it is reflected in the control exercised by the administrative litigation court over the administrative acts issued with excess of power. The Administrative Code refers to the administrative acts of the Government, of the ministers, of the heads of the central bodies of the public administration and of the elected local authorities as acts whose necessity and opportunity depend on the issuing authority. These legal provisions once again call into question the scope of the control of the administrative litigation court regarding the right of appreciation of the public authorities issuing the contested administrative acts.

Stopień realizacji zasady odpowiedniego vacatio legis w polskiej praktyce parlamentarnej w latach 2011–2021 – wybrane problemy

Author(s): Małgorzata Stefaniuk / Language(s): Polish Issue: 41 (5)/2022

The study is to assess the degree of implementation of the principle of adequate vacatio legis in the Polish parliamentary practice in the period of 2011–2021. The issue discussed is very important and up-to-date, especially from the point of view of the basic functions to be performed by the legal institution of vacatio legis. The above-mentioned issue is particularly important in the case of laws, which differently from the existing regulations, shape the legal situations of many entities and in the light of the assertion of the importance of the principle of adequate vacatio legis for human rights. The aim of the study required analysing the normative situation regarding applicable options for the entry of legislation into force, and thus its vacatio legis, the case law of the Polish Constitutional Tribunal, the positions of legal scholars in the field, as well as the content of the provisions on entry into force included in the acts adopted in the 7th and 8th terms of office of the Sejm of the Republic of Poland and several months of the 9th term. To the extent necessary to illustrate the statements put forward, the course of the legislative process itself has also been analysed, including parliamentary speeches and debates in parliamentary committees. The statistical data that had been collected, allowed the author to identify the most frequently used options of entry into force and thus to determine the periods of their vacatio legis. The above provided material to conclude that the degree of implementation of the principle of adequate vacatio legis in the Polish parliamentary practice during the period in question can hardly be considered sufficient, not only when there is no adjustment period at all or when the entry into force takes place on the day following the date of publication, but also when the law addressees are allowed a little more time (even more than the minimum period of 14 days). While there are some positive signs that the need for rational law-making is perceived, these are not strong enough to overcome the weaknesses of the parliamentary procedure, which make the degree of implementation of the principle of adequate vacatio legis not optimal. These include: insufficiently convincing and too vague justifications for the proposed dates of entry into force for draft laws; insufficient attention to the views of other entities with more knowledge of what periods are needed for the laws to enter into force; adopting too optimistic periods for the entry into force of laws with a calendar date, the late announcement of which results in a shortening of the assumed period of vacatio legis or even a retroactive effect; abuse of the possibility to make changes to the provisions of the act during the adjustment period and use the dates of vacatio legis for the accomplishment of ad hoc political objectives. The sensitivity to the need to perform the basic functions of the vacatio legis, which include learning about the new law and enabling adaptation to the new legal regulations, has also become weaker and weaker.

Międzynarodowa Konferencja Naukowa im. Profesora Stanisława Czepity „O pojmowaniu prawa i prawoznawstwa”, Szczecin, 24–25 listopada 2022 r. i 27 stycznia 2023 r.

Author(s): Jędrzej Henryk Gryko / Language(s): Polish Issue: 44 (3)/2023

RADNA I SOCIJALNA PRAVA U USTAVU FNRJ 1946. I USTAV NR HRVATSKE 1947.

Author(s): Marinko Učur,Željko Bartulović / Language(s): Serbian Issue: 3 (1)/2023

In this paper, the authors deal with the constitutional provisions of the Vidovdanski (1921) and Octroyed constitution (1931) in the field of labor and social rights. The analysis of those regulations in the Constitution of the FNRJ from 1946 follows. After reviewing the work of the Croatian Constituent Assembly, a comparison is made with similar regulations in the Constitution of the People’s Republic of Croatia from 1947.

ERGA OMNES ОБАВЕЗЕ И КРИЗА СУВЕРЕНИТЕТА ДРЖАВА У МЕЂУНАРОДНОМ ПРАВУ

Author(s): Bojan Milisavljević / Language(s): Serbian Issue: 3 (1)/2023

The paper analyzes the existence of an increasing number of norms with erga omnes effect in international law that influence the narrowing of the sovereignty of states. The international community is moving in the direction of building a universal order, which affects the traditionally understood sovereignty of states. The author carefully analyzes the effect of norming and the constant striving to establish a regime through cogent norms, which can affect the sovereignty of smaller states to a greater extent. In this sense, the recent work of the International Law Commission is critically reviewed and concrete proposals de lege ferenda are given. In the paper, the author advocates for finding a fair solution and a balance between the justified need to establish a universal system of general norms and the interests of individual states, which is an immanent feature of international law and which is represented through the sovereignty of states.

ДИПЛОМАТИЈА ЕВРОПСКЕ УНИЈЕ

Author(s): Nikola Stanković / Language(s): Serbian Issue: 3 (1)/2023

The paper analyzes the diplomatic system of the European Union in the context of diplomatic activities directed primarily outside the external borders of the Union. Аuthor links the analysis to the period after the adoption of the Treaty of Lisbon, keeping the analysis from the previous period only on the Common Foreign and Security Policy of the Union, and for the reason that the treaty generated a normative space for the establishment of the European External Action Service and the High Representative as a formal the most important modern diplomatic actors of this organization. The author also analyzes the European Council as a collegial body whose competence is the formation of the Union’s foreign policy. The author also reviews the Council оf the European Union. Finally, the author analyzes the position of the Union in the context of multilateral diplomacy. Although the author believes that the Lisbon reforms are a big step in the right direction, they are just that. The foundation provided by this contractual framework must be further strengthened, both politically and normatively, but further steps must be taken towards establishing a clearer and more extensive functional autonomy of both the High Representative, the Service, and the Commission. This is the only way the EU will succeed in occupying the diplomatic position it has been striving for since the founding of the European Communities.

THE EFFECT OF AGRICULTURAL POLICIES ON AGRICULTURAL LAND OWNERSHIP

Author(s): Rodna Živkovska,Tina Pržeska,Tea Lalevska / Language(s): English Issue: 3 (2)/2023

Ever since the Law on Agricultural Land was enforced in 2007, the Macedonian legislator has aimed for a proactive legislative approach in aiding the development and modernization of agricultural production. To that effect, policies have been adopted directed towards the protection of agricultural land and inciting interest in agriculture in working-age people. The Law on Agricultural Land and other special laws and by-laws incorporated provisions intended to protect agricultural land, promote agricultural production, and facilitate access to funds for financing agricultural production in North Macedonia. All the efforts in developing agricultural production have affected agricultural land owners by influencing how they can or can’t exercise their right of ownership. The different ways that the adopted agricultural policies and legislative measures have affected ownership of agricultural land are the subject of research and analysis in this paper.

ПРАВНО УТЕМЕЉЕНА КОНСТРУКЦИЈА КРИВИЧНОГ ДЕЛА САМОВЛАШЋЕ НА ПРИМЕРУ ПОСТУПАЊА ОРГАНА ПОСЛОВОЂЕЊА НА УНИВЕРЗИТЕТУ

Author(s): Hadži Živorad M. Milenović / Language(s): Serbian Issue: 3 (2)/2023

The crime Self-government is prescribed in Art. 330 of the CC RS, according to which a criminal offense is committed by a person who independently acquires a right or a right that he believes belongs to him. A criminal act also exists in cases of obtaining rights for another. It is noticeable that the act of committing a criminal offense consists in self-acquiring rights. The object of self-acquiring rights can be a right that belongs to the perpetrator or that he considers to belong to him. The existence of a criminal offense requires the intent of the perpetrator to acquire his or an assumed right on his own. This means that the key thing in proving this criminal offense is the self-acquiring of the perpetrator’s rights and his awareness that he is self-appropriating his or an assumed right. According to the provisions of the Law on Higher Education of the RS (Article 64, Paragraph 1), the management bodies at the university are the rector of the university and the deans of the faculties. In performing these functions, they have various powers and rights that belong to them under the conditions provided by law. The paper discusses cases in which there are signs of the criminal offense of Self-government in the actions of the governing body. Based on the critical analysis, conclusions were drawn and implications were given that should contribute to a more efficient and legal work of the governing body at the university.