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Introduction to the separate property regime in Polish law

Author(s): Piotr Kroczek / Language(s): English Issue: 1/2015

Introduction to the separate property regime in Polish law – The aim of the paper is to provide clear description of the separate property regime in Polish law. First preliminary issues were given about the characteristic of the Polish legal system and the important for the whole system of law in Poland. Next, the matrimonial property regimes are shortly described. The pivot of the paper is the 3rd part in which the separate property regime is described. The conclusion is that law does not regulate the regime in question in every detail, so for better understanding of the regime one must consult the judgments of the courts and opinions of the representatives of the legal doctrine.

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Генезис правового регулювання недоговірних зобов’язань, що виникають з односторонніх правомірних дій

Author(s): I. Ihnatenko / Language(s): Ukrainian Issue: 12/2017

The evolution of the legal regulation of obligations on unilateral lawful acts, starting with the Roman private law, which defined the notion of obligation, as well as the classification of obligations was carried out. The first obligations were divided into those arising from the contract and for the offense . Over time, commitments from unilateral covenants or some other facts that are not related to contracts or offenses are distinguished. The Romans expanded the glories of the Tories, which identified some unilateral acts. The French Civil Code of 1804, as quasi-treaty, regulated the conduct of alien cases without commission and unfounded enrichment. The German Civil Code regulated such obligations on unilateral lawful actions: a public promise of remuneration, a competition and the conduct of cases without a mandate. These codified normative acts have had a great influence on the legislation of pre-revolutionary Russia. The German Civil Code served as the basis for the Central Committee of the UkrSSR as an indirect link of the reception of Roman private law. The Central Committee of Ukraine introduced a classification of obligations on a contractual and non-contractual basis. The latter include, in particular, obligations of unilateral lawful actions, such as a public promise of remuneration, the commission of actions in the property interests of another person without its commission, the salvation of the health and life of an individual, the property of a natural or legal person, the acquisition, preservation of property without sufficient legal basis. There are tendencies in the settlement of obligations on unilateral lawful actions at the level of a separate institute sub-branch of obligatory law and the allocation of subspecies of such obligations within the species.

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Виконавчий напис нотаріуса: поняття та ознаки

Author(s): A. G Servetnik / Language(s): English,Russian,Ukrainian Issue: 12/2017

The article is devoted to the study of the nature of the notary warrant on the obligation of the debtor as a legal category. The main doctrinal approaches to the definition of the notary warrant on the obligation of the debtor are disclosed. The fundamental signs of the notary warrant on the obligation of the debtor are defined, namely: performance exclusively on indisputable requirements; is a version of the notarial deed, which fixes the result of the implementation of notarial proceedings; volitional nature of the performance; the properties of the executive document; simplified procedure for the performance in comparison with the judicial form of protection of the right. The latest feature, in particular, affects the features of the notarial proceedings of the notary warrant on the obligation of the debtor performance, such as: the absence of the need to call and the presence of the debtor himself during the performance of a notarial act; exclusively documentary nature of proceedings; execution of the notary warrant on the obligation of the debtor on the day of the claim of the applicant with a statement on the performance of the notary warrant on the obligation of the debtor; absence in most cases of the necessity to observe the precise rules of territorial jurisdiction; significantly smaller amount of the costs of the procedure comparing with the litigation.According to the results of the study, a new approach to the definition of the notion of "notary warrant on the obligation of the debtor " is proposed, which reflects the versatility of the designated legal category, namely as a notarial deed containing a notary order to recover money debt from a debtor or demanding property from him committed within a separate notarial performance, on the basis of confirmation of the indisputability of the claims of the creditor, which has the power of the executive document.

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Право на доступ до досліджуваного лікування по завершенні клінічного випробування

Author(s): D. A. Lurye / Language(s): English,Russian,Ukrainian Issue: 140/2018

The article explores the modern condition of the legal regulation of post-trial access to investigational treatment. The author has determined main arguments concerning the necessity of foreseeing such a right and the problematic issues that arise in case of its implementation. On the one hand, a subject can legitimately expect that s/he will continue to have access to beneficial treatment after the end of trial, for example, if it alleviates the symptoms of a chronic illness, depriving a trial subject from the beneficial post-trial access would defeat the basic principle of medical ethics. At the same time, this provision may have a large financial burden on the sponsor of the trial; it is difficult to control the occurrence of serious adverse reactions; providing post-trial access only to the subjects of the trial and denying others create disparity among patients.The particular attention is paid to international standards and experience of foreign countries in this field. The legal and regulatory acts of Ukraine do not have any provisions on post-trial access to investigational treatment. The main international ethical guidelines, such as Declaration of Helsinki, CIOMS/WHO Guidelines, contain such a right, but they have different formulations and volumes that only intensify professional discussions. The most common norm is as follows: «a responsibility of sponsor to supply details of the plan for treatment or care of subjects once their participation in the trial has ended», which, in contradistinction to the Ukrainian legislation, is not connected with the causing damage to the subject. The author also has researched a unique case of Brazil, where the post-trial drug access program must make the medication available and free of charge to the subjects of the research in the cases of concluding the trial or after the patients’ participation in the study.On this base, the author offered to provide in the legislation of Ukraine requirements to inform in advance subjects about the presence or absence of post-trial access and to evaluate these provisions by ethics committees before and at the end of all trials in order to determine its real need in each individual case. The scope of the right on post-trial access to investigational treatment must be reasonably weighed in order to avoid, on the one hand, becoming an excessive stimulus for the subjects, and, on the other hand, not leading to a situation where on such regulation conducting of clinical trials in the country will no longer be appropriate.

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Утицај престанка уговора на стечено право својине прибавиоца и трећег лица у српском праву

Author(s): Katarina Dolović Bojić / Language(s): Serbian Issue: 1/2018

It is indisputable that the principle of causal tradition can be ap plied at the time of acquisition of ownership. Also, in case of delivery/ registration based on non-existent/invalid contract, it will be indisputable obligation of the acquirer to return the thing i.e. it will be followed by removal of the entered right in the register. The same will be in the case when the termination of the contract occurred after delivery/registration, but only if the acquirer did not transfer its ownership. However, if the legal ground – the contract has ceased to exist after registration and own ership transferred to a third party, the situation changes significantly. The scene has been entered by a person who has fulfilled the conditions and thus has become the owner. Termination of the contract as the basis for the acquisition of his predecessor, despite the principle of causal tradition, cannot affect the acquired rights of third parties. A widely accepted view of good faith of the third party as a criterion for determining the impact of contract termination to the acquired ownership is considered absolutely unacceptable.

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О СПОРАЗУМНОЈ ПОДЕЛИ НАСЛЕДСТВА У УПОРЕДНОМ ПРАВУ

Author(s): Ivana Evtimov / Language(s): Serbian Issue: 69/2015

Наследничка заједница настаје на основу закона, а поводом смрти физичког лица. Имајућиу виду да се ради о заједници наследника која настаје независно, па чак и противно њиховој вољи, она је у праву практично неодржива. У циљу престанка наследничке заједнице као принудне творевине, наследницима је дато право да, независно један од другог, захтевају поделу или изврше споразумну деобу наследства. Предмет рада је разматрање законских одредаба споразумне деобе наследства у упоредном праву. Споразумна деоба наследства је комплексно правно подручје. Говорећи о споразумној деоби наследства, размотрићемо све њене сегменте.

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Poslovne tajne: određenje i osnovi zaštite

Author(s): Katarina Jovičić / Language(s): Serbian Issue: 1/2018

Trade secrets have an increasing importance today and courts are more and more facing with claims for their protection. In those proceedings it is necessary to determinate whether the information for which protection is required is appropriate to be qualified as trade secret and whether the trade secret owner made reasonable efforts to ensure their secrecy. The first section of this article analyses those questions and pays special attention to the criteria for estimate of taken protection measures. The next section presents the system of legal protection of trade secret in EU law, which is regulated by the relevant Directive and which is binding on all Member States and on candidate countries to join the EU. In the conclusion recommendations are given on how to determine the boundary between trade secrets and knowledge and skills of employees.

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Pojam upotrebe motornog vozila u slovenačkoj sudskoj praksi

Author(s): Miloš Radovanović / Language(s): Serbian Issue: 1/2018

Domestic regulations, same as the Slovenian law and European Union directives, prescribe that damage occurred due to use of motor vehicle, should be covered by compulsory motor liability insurance. However, regulations do not define the notion of use of motor vehicle. It is a legal standard and its meaning is determined by court practice. The judgement of the Court of Justice of the European Union in the case Vnuk vs Triglav, made immediate effect on the legal approach of the Slovenian courts. After this judgement, the Slovenian courts have accepted broader meaning of the concept of use of motor vehicle. Now the courts by the mentioned concept consider use of motor vehicle which is in accordance with the normal function of the vehicle. Damages, which would not have been covered by motor liability insurance under the old court approach in Slovenia, are now covered by insurance in accordance with actual court practice. Current Slovenian practice, besides being harmonized with European Court’s practice, also seems to be rightful from the point of view of the injured party. By accepting the interpretation of the concept of the use of vehicle given by Court of Justice of the European Union, Serbian courts would contribute to the harmonization of domestic law with the law of the European Union. Recent Slovenian court practice could be example for Serbian courts. Following this example would be in the interest of European integration process, as well as in the interest of the injured parties.

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Korporativno upravljanje u Japanu – sistemi odbora i nezavisnost članova uz osvrt na funkciju nadzornog odbora u srpskim kompanijama

Author(s): Dunja Dubajić / Language(s): Serbian Issue: 1/2018

The corporate governance in Japan was mostly characterized by the main-bank system, board members that are internally promoted executivesand employee-focused management.That is why Japan has been behind other developed countries in appointing independent directors, partly due to its exclusionist corporate culture.After a quite period of detailed reforms today’s corporate governance in Japan neither converges uniformly with the American-type model, nor it’s simply adjusted with two-tire system of the German model of corporate governance. Rather, a hybrid-type system is becoming dominant as a choice for Japanese company law, so it is endorced as a type of the best practice in corporate governance. It is certain that the reforms sought to achieve a more efficient system of internal control of the company’s business, which gave its expression in a complex mixed system with an emphasis on increasing the number of outside members.Relatively recent company law reforms in Serbia have made it possible to choose between one-tire and two-tire system, so domestic companies are opening up the question of a choice that is more acceptable for our business environment. Solutions that Japanese company law appliedcan be an excellent example of persistent efforts for using past experiences, correcting mistakes and bringing successes to the future.

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Wykluczenie członka ze spółdzielni w orzecznictwie sądowym

Author(s): Tomasz Dąbrowski / Language(s): Polish Issue: 20 (4)/2017

The paper entitled Excluding the member from co-operative membership in judicial practice, consists of the following parts: introduction; reasons for excluding the member from co-operative membership; proceedings to exclude the member from cooperative membership; appealing against the resolution on excluding the member from co-operative membership and a summary. In the introduction the author writes about the essence of being a co-operative member and the issues determining acceptance of a person as a co-operative member. In the next part the author analyses the structure of Article 24 § 2 of the Co-operatives Law referring to the situation resulting in the exclusion

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CODIFICATION OF THE CIVIL LAW IN THE REPUBLIC OF MACEDONIA

Author(s): Rodna Živkovska,Tina Pržeska / Language(s): Serbian Issue: 68/2014

This paper analyses the process of codification in Europe in 19th century and its influence on the codification of civil law in post-socialistic countries. In light of the analysis of the codification process in post-socialistic countries, the paper puts the accent on the ongoing process of codification of the civil law in Republic of Macedonia. The idea for codification of Macedonian civil law was introduced for the first time in a project prepared by the Ministry of Justice in 2009. However, the first official activities in regard of the codification started in 2011 when a Commission for drafting the Civil Code of Republic of Macedonia was instated by decision of the Government of the Republic of Macedonia. During 2012 the Commission held a meeting where the main point of discussion was the systematization and content of the Civil Code. It was concluded that the pandect system should be accepted regarding the draft of the code. After the meetings separate working groups started with the preparation (the draft) of three parts of the code - property, obligations and succession. At the moment the process of drafting the property law is still ongoing.

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ГРАЂАНСКОПРАВНА ЗАШТИТА ПРАВА ЛИЧНОСТИ

Author(s): Ivana Simonović,Miroslav Lazić / Language(s): Serbian Issue: 68/2014

Personality rights have long been described as the youngest member of the civil law family of absolute subjective (individual) civil rights. By establishing these rights, an individual is guaranteed full and direct legal authority and control over one’s personal assets, which include the most important human values such as: life, integrity, dignity and privacy. The ultimate importance of these personal assets is supported by appropriate legal protection of personality rights, which have been guaranteed in numerous provisions of constitutional law, civil law, criminal law and administrative law. The legal protection of personality rights stems from the understanding that a human being cannot be reduced to a biological entity; being part of the community, man is also a social being. Taking into account constant interactions and mutual relations between members of the society, man should be guaranteed certain rights. It primarily implies the guaranteed right to inviolability of one’s personality, which is the basis for generating other personality rights. These rights are inherent, inalienable and absolute in terms of their effects; as such, they provide protection from the interference of the state and any third party. Focusing on the rules of civil law, the authors have explored the potentials and the scope of legal protection of personality rights provided by awarding a civil sanction. Although civil sanction is basically monetary sanction, it is deemed to be quite appropriate for the protection of personal (non-patrimonial) assets.

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ВАНБРАЧНИ ПАРТНЕР КАО ЗАКОНСКИ НАСЛЕДНИК У САВРЕМЕНИМ ПРАВИМА ЕВРОПЕ

Author(s): Jelena Đ. Vidić Trninić / Language(s): Serbian Issue: 68/2014

The author of this paper analyses the legal position of cohabitation partners with regard to succession as defined in contemporary European jurisdictions, focusing on the significant differences that may be observed concerning various aspects of their succession regulations. The author argues that although there is a whole range of different rules dealing with the succession of cohabitation partners, which certainly are an obstacle on the path to their alignment within EU, the mechanisms adopted in the studied jurisdictions do seem to go in the direction of unification of this area of private law, too. Nevertheless, given the particular character of this area of law and the relationships that it regulates, such unification shall – in author’s opinion – take longer time than it is required for some other areas of law. At the same time, it is the author’s belief that the factual cohabitation as it exists in domestic law, with its shortcomings herein presented, should not be recognised as a ground for legal succession, whilst, provided there is a revision of the concept of cohabitation in domestic law reflected in addition of the requirement of its registration, the domestic law should consider introducing the mutual legal succession between cohabitation partners.

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ПРОЦЕСНИ ПОЛОЖАЈ УМЕШАЧА У АНТИДИСКРИМИНАЦИОНИМ ПАРНИЦАМА

Author(s): Anđelija Tasić / Language(s): Serbian Issue: 68/2014

The institute of an intervener is one of many procedural institutes whose regulation is characterized by considerable disparity in the Serbian anti-discrimination legislation. Considering the fact that this subject matter is not regulated either in the Act on the Prohibition of Discrimination (2009) or in the Act on the Prevention of Discrimination against People with Disabilities (2006), the applicable law on this matter is embodied in the Civil Procedure Act as a subsi-diary source of law. In addition, the Gender Equality Act includes some subject-specific provisions on the right of third parties to participate in anti-discrimination lawsuits. Given the fact that this right of third parties is a European standard envisaged in EU documents, it is important to address a number of questions on the procedural position of an intervener. Who can be an intervener? Which of the claimants can he/she join and support? What kind of status may he/she have in the proceedings? What is the purpose of the intervener’s involvement in the proceeding? Finally, can the intervener support the defendant and is there leeway for applying the intervention effect of the final judgment? In this context, the author provides a detailed analysis of the procedural dilemmas underlying this subject matter and proposes a legal solution de lege ferenda which would be most appropriate for regulating the participation of interveners in anti-disctimination lawsuits.

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О ЦЕЛИСХОДНОСТИ УВОЂЕЊА ПРИГОВОРА НА ПРИЈАВУ ЖИГА У СРПСКО ЗАКОНОДАВСТВО

Author(s): Aleksandra Vasić / Language(s): Serbian Issue: 68/2014

This paper analyzes the quality of certain legal procedures applied in domestic trademark legislation in the light of harmonizing our legislation with those of the EU. Trademark Law in the Republic of Serbia (2009) does not rely on opposition proceedings as a phase in the process of trademark registration and a tool that would ensure that only those trademarks that fulfill the necessary conditions are granted legal protection. Intellectual Property Office examines the so-called relative grounds for trademark registration refusal but does so ex officio, thus preventing the holders of trademark rights from benefiting from a relatively inexpensive and effective opposition procedure regarding the registration of a second trademark which violates their previously established rights. In contrast to our trademark laws, EU Council Regulation 207/2009 on Community Trademarks of February 26, 2009 (CTMR -Community trademark regulation) enforces opposition proceedings as the most important phase in the process of trademark registration. European experience shows that opposition proceedings carry significant benefits for the process of trademark application. First of all, they allow the holders of previously established trademark rights to avoid long and costly court proceedings whose purpose is to dispute trademarks that violate the owner’s rights. Also, state agencies authorizing in trademark approval no longer need to monitor registered trademarks.

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Делимична наследна изјава

Author(s): Dejan B. Đurđević / Language(s): Serbian Issue: 4/2017

The author examines the scope of statutory prohibition of partial renunciation (or partial acceptance) of inheritance, and looks into possible legal consequences of delivering a partial disclaimer or waiver of one’s share. After a thorough analysis of the legal policies behind proscription of partial statements of inheritance, the author concludes that the existing prohibition concerns only the cases of renouncing a specific object, or a certain percentage of one’s share in inheritance. However, where one heir succeeds to more than one distinct and separate shares of a single inheritance, he may accept or renounce each one of them separately. This situation does not qualify as partial renunciation (or partial acceptance) and therefore, the existing statutory prohibition does not apply. The author also looks into a number of exceptions from statutory prohibition of partial statements of inheritance, and further examines possible legal effects of partial renunciation (or partial acceptance).

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Искључење и ограничење уговорне одговорности у српском праву

Author(s): Branka Jevđić / Language(s): Serbian Issue: 4/2017

Even though Serbian Civil Obligations Act, according to the general regulation, predicts that both of the sides can exclude the liability of debtor in case of breach of obligation, the possibility of definite exclusion of liability in our legislation does not exist. Mechanism meant to serve the stated obligation is not so defined that the debtors agreed liability can be cancelled in advance with the agreement of both sides, nor the damage caused by not following the obligation transfer definitely onto the creditor in spite of the fact that terms for its full transaction have been fulfilled. On the contrary, the agreement that our law calls The Law of Debtor Liability “Exclusion” is just being limited in the way that hampers material-legal and process-legal position of the creditor in the debtor`s liability determining lawsuit. In case of non-execution or delay, hampering is being achieved by assigning the enforcement proof to creditor to all three conditions – breach of existing obligations, caused damage and culpability of debtor – for debtors liability conceiving; in case of the shared enforcement proof according to legal rules, where the position of creditor is facilitated because the culpability of debtor is assumed automatically by proving the other two conditions. Nevertheless, in the case of agreement like this, it is not enough that the regular inobservance, which is usually sufficient for conceiving debtor’s liability, exists; but the proof of intention or ultimate inobservance is necessary. In case that the creditor confirms all the necessary conditions, the liability of the debtor will be conceived, regardless of the conditions about its exclusion that both sides agreed on. The difference between the agreement, that was presented in this paper, and the agreement based on Law of Limitation, is in the following – for the first agreement the Limitation is achieved by hampering of conditions for conceiving debtors liability in respect to legal rules, whereas with the latter one limits the amount for the damage recompense as a sanction for the liability of the debtor which has been determined by the general legal rules. Taken all of this into consideration, the author claims that the law has approached stated clauses unduly, legal-technically and terminologically as they were separate institutions, and according to Author`s opinion that the change of positive-legal resolution regarding the names of clauses that had been mentioned in this paper in the way that these would be also regarded as Clauses of Limited Liability in the future Civil Code of the Republic of Serbia.

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Norme conflictuale în materia acțiunii colective

Author(s): Dumitru Dobrev / Language(s): Romanian Issue: 1/2018

L'étude passe en revue les solutions offertes par les règles et la jurisprudence de la Cour européenne de justice, à suivre dans le cas d'actions collectives avec un élément d'extranéité

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Гарантії прав людини та громадянина при забезпеченні інформаційної безпеки

Author(s): Serhii Yesimov,Rostislav Sopilnyk,Myroslav Koval,Ruslan Skrynkovskyy / Language(s): Ukrainian Issue: 05/2018

With the development of information and communication technologies, issues of providing information security are becoming more and more aggravated. These are crimes related to the use of electronic computers, systems and computer networks and telecommunication networks, the propaganda of separatism and extremism, etc.While providing information security in the digital environment, the role of technical and legal human rights guarantees, due to technical means of protection, is increasing. Relying on the developers of technical means of protection determines the difference between the aforesaid concepts and the traditional approach to ensuring the protection of human and citizen rights, in which responsibilities are put on information intermediaries, owners of confidential information.Technical guarantees of human rights are a necessary component of ensuring information security, but the effectiveness of the application is provided in conjunction with the legal guarantees of human rights, as evidenced by the tendency to recognize the principles of inviolability of privacy on the basis of design decisions in the law of the European Union as legal acts.Providing information security is a legitimate goal of establishing constraints of human rights, since it can be correlated with the norms of international law. The establishment of constraints of human rights is permissible in order to attain other objectives–ensuring state security, public order, health, rights and freedoms of the person in the information sphere. The legitimacy of this goal is determined by its compliance with the objectives envisaged by international agreements ratified in an established order.The article examines the impact of the use of technical means in the field of providing information security in the aspect of following the fundamental human and civil rights in Ukraine, taking into account the legislation of the European Union and the decision of the European Court of Justice. The comparative and legal analysis of various factors influencing the restriction of information rights of people in the digital environment is carried out. Legal guarantees from the point of view of the concept of privacy and security due to design decisions, taking into account the role and characteristics of technical primus are revealed.

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Про відшкодування моральної шкоди за вчинені адміністративні правопорушення в Україні

Author(s): Oleksii Ivanovich Ostapenko,Leontii Chystokletov,Ruslan Skrynkovskyy,Oleksandra Khytra,Leonid Ostapenko / Language(s): Ukrainian Issue: 06/2018

The article considers the issues of moral responsibility of a person guilty of committing an administrative offense in Ukraine. It offers argumentative author’s vision of the possibility and need to consolidate a number of administrative-legal norms with the aim of legal regulation of moral responsibility, both property and non-property. It analyzes the historical aspect of compensation for non-pecuniary damage, as well as defines the conventions of the International Labor Organization, which provide for compensation for damage suffered by the victim. Attention is drawn to the fact that the current administrative law does not provide for the issue of indemnity for non-pecuniary damage for administrative offenses committed. It is noted about the relationship of morality and law and the moral responsibility is separated from the legal one. The concepts of “harm”, “social danger” are disclosed. Moral and non-personal liability are distinguished. The content of moral damage, fixed in the legislation of foreign countries is analyzed.On the basis of the current administrative legislation of Ukraine, circumstances have been clarified that exclude administrative liability, indicating no liability, including for moral damage. The norms of the criminal-procedural legislation of Ukraine, which provide for indemnity (compensation) for damage to the victim at any stage of criminal proceedings are analyzed. Judicial practice is used in this regard. The provisions on conciliation of the parties, on the basis of which the victim has the opportunity to make a decision to refuse to indemnify non-pecuniary damage both before the beginning of the jurisdictional proceedings and during its execution at one or another procedural stage, are considered. The grounds for liability for the moral damage, fixed in the Civil Code of Ukraine are determined. Conclusions are made on the compensation of the moral damage to the victim of property and non-property content, which is one of the conditions for the updating of the administrative legislation of Ukraine. The author’s definition of the concept of indemnity for moral harm is proposed.

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