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Absolute Invalidity of Contracts

Author(s): Mimoza A. Aliu / Language(s): English Issue: 3/2018

Obligations created by the will of the subjects of the right, natural persons and legal persons,are based on a contract. These obligations are voluntary obligations. The initiative for the establishment of civil-legal relations, and in particular the contractual right based on dispositive provisions, requires us to be careful, primarily in the choice of the contracting party, the subject matter of the contract and other elements of the contract, since its creation up until the completion of the contract. Kosovo's legislation stipulates that in case of violation of legal-imperative norms, constitutional principles or social morals, the absolute nullity of the contracts is caused because the general interest in our legal order is violated. In cases where the interests of the parties are violated, as a result of the disclosure of the will of the party, the relative invalidity of the contract is caused.The invalidity of contracts is a very complex issue, so the purpose of this paper is to examine issues arising from the absolute invalidity of contracts, first of all under applicable law in Kosovo but also in the comparative law. Lack of care for the indispensable elements of the contract has consequences both in the individual interest but also in the general interest. If the content of the contract is inconsistent with constitutional, imperative and moral provisions, it cannot produce legal effects. Violation of the general interest entitles the public prosecutor, citizens or contracting parties to request the invalidity of such contract and the elimination of the consequences caused by the null contract.

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Guarding in the Countries of the Western Balkans as the Part of Family Law

Author(s): Majlinda Belegu / Language(s): English Issue: 3/2018

Guarding is one of the most important legal institutes of the family law. That is one of the forms of social protection of children without parental care and it differs from adoption. According to the legislation in the Western Balkan countries where there are differences and similarities, the subject to guarding are not only children whose parents have passed away but children whose parent are alive could be the subject of guarding, as well: children left and children whose parents are not able to execute parental care. The organized placement of children from a family to the other is done by both, by parents and by the state competent organ. Besides children, subject to guarding could be also persons that have no children, persons that overcome the age to gain the action capability and that this capacity have not gained based in different reasons. Finally persons that had the capability to act but that that capability was taken by a state organ could be subject of guarding. Law of the Balkans countries regulates guarding in property even in cases when the property has the owner and also in the cases when the owner is not known by institutions. During the analysis, we will see how the organ that decides on guarding taken the decision and of the legislative procedures regulate the process of putting a person under the guardianship.

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Execution of Sentence with an Order for Community Service Work Against Adult Persons in Region of Mitrovica in the Period 2012-2016

Author(s): Valon Brahimi / Language(s): English Issue: 3/2018

The sentence an order for community service work is one of the alternative punishments that is foreseen in the criminal law of the Republic of Kosovo. As such, this kind of alternative sentence by Kosovo courts in the Mitrovica region in recent years has been largely applied, mainly to persons who have committed minor offenses. This kind of alternative punishment manifests many positive sides and is considered highly progressive punishment variants. Through this punishment the responsibility of the convicted person is increased to a higher degree, his active participation in the execution of this punishment is ensured, and the compensation of the damage and the victim is largely ensured. In this paper I have endeavored to provide valuable data regarding the execution of order for community service work in the region of Mitrovica. Within this paper, besides the volume, dynamics of the order for community service work, we have also touched some personal characteristics of persons to whom this measure was applied. This research has been conducted in the region of Mitrovica (in the territory of the Basic Court of Mitrovica) and includes the period from 2012-2016. For the purpose of providing a more accurate results about this issue, the data of the Basic Court in Mitrovica and the data of the Probation Service of Kosovo - the regional unit in Mitrovica have been analyzed.

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The Criminal Offense of Aggravated theft under Albanian Customary Law

Author(s): Fatmire Krasniqi / Language(s): English Issue: 1/2019

Based on the particular characteristics of the criminal offense of aggravated theft, it is correctly established that the criminal offense in question falls within the framework of so-called classical criminality, and that such unlawful behavior in terms of social development has undoubtedly been following not only our society. While, although the criminal offense of aggravated theft as a notion but also as a content has undergone gradual transformation, however, its defense object has always been property value, respectfully the property. In this regard, given that the presence and the consequences deriving from committing the criminal offense of aggravated theft continue to be present even today,and often the existing situation is also regarded as a worrying situation, we will approach the treatment of the criminal offense in question only in the angle of passing of data on how the Albanian customary law specifically foresaw and regulated the criminal matter in question. The purpose of the analytical research will be focused on elaborating the notion of the criminal offense of aggravated theft as well as its perpetrators, in order to proceed further with the information regarding the punitive policy, always according to the customary Albanian law, followed through the rules of the Code of Lekë Dukagjini,the Code of Skanderbeg as well as the Code of Labëria. The research will be realized with special emphasis on the application of the historical-legal method.

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Contract for Asset Handover and Allocation

Author(s): Mimoza A. Aliu / Language(s): English Issue: 1/2019

Entities of Law are free and possess legal instruments for asset allocation. The contract represents the most important instrument for asset allocation and handover. The asset holders may divide the property and pass it over to the heirs with the contract on the asset handover and allocation. Such a legal possibility is in accordance with the free initiative of law because it enables the transfer of property by agreement and with the consent of the holder’s successors. The Testament and the Law represent the legal basis for inheritance, an opportunity for the asset holders to hand over the property after their death through these instruments. The research object of this seminar paper is the contract on the allocation and handover of assets. The analysis of the topic starts from the general part of the contract law, continuing on the key topic of the analysis, always encountering absence of materials.The hereditary effect of this contract implies to have it also analyzed under the scope of the Kosovo Law on Heritage, that is, the part of the transactions between the living.

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Alimony AfterDivorce According To Kosovo’s Legislation

Author(s): Eneida Lajqi / Language(s): English Issue: 1/2019

There is a large number of scientific works that have dealt with alimony as a right or obligation in family law relations. But regarding the treatment of alimony based on Kosovo’s legislation, there aren’t many written articles dedicated to this issue. This paper analyzes alimony as an important element on the survival of many families after divorce. Through this paper conducted after the research made in the legislation of Kosovo and some other European countries, I will elaborate how alimony in Kosovo legislation is defined? Why it is vital for people to enjoy custody after divorce?Then I will discuss about the custody methods, child care, as well as the court proceedings in providing alimony. This paper aims to address the positive and negative aspects of alimony in Kosovo. The academic interest of this paper is on defining alimony according to Kosovo legislation by elaborating in details the way this legislation regulates the provision of alimony. Several methods, national and foreign legal analysis, research into various scientific articles have been used, and a scientific interpretation of the legal provisions regulating the issue of alimony has been made.

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Recent Additions to Kosovo’s Law of Mediation

Author(s): Fatime Dermaku / Language(s): English Issue: 1/2019

The purpose of this scientific paper is to introduce the new law on Kosovo's mediation and the changes from the previous law of Mediation. Mediation is an alternative dispute resolution between the parties, with the intermediation of a third person. The new Law on Mediation, which complies with the Directive 2008/52 / EC of the European Parliament and of the Council of 21 May 2008, on certain aspects of mediation in civil and commercial matters, as such envisages substantive changes. The novelties of this law consist of: mandatory mediation for certain disputes, the choice of the mediator by the parties themselves, the possibility of mediation, the duration of the mediation, from 90 days as it was previously with an extension of 30 days, i.e 120 days in total, as well as the establishment of Chamber of mediators, which will function based on its internal acts.The aproach used in the research includes a combination of legal analysis, observations and review from legal practice and theory. The conculsion of the study aims to explain the benefit of mediation as an alterantive dispute resolution, in achieving an acceptable agreement by the parties as well as the reduction of cases in the courts.

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The Right of the Defendant for Public Hearing and the Role of Media in this Publicity

Author(s): Mirvete Uka / Language(s): English Issue: 1/2019

Legal base of publicity of the trial (according to ECHR) is Kosovo Constitution. Opening of court session is aimed at guaranteeing the development of an unmanaged process, avoiding the possibility of misuse, getting people to know more about court rules and at the same time encouraging judges to respect these rules. But if an open public hearing is incompatible with trial justice then priority is given to the latter. Therefore, the court may restrict public participation and media coverage to the extent necessary to protect other legitimate interests, even without revocation of such rights in full, especially in the proceedings against juveniles but also in cases where they are witnesses in procedure. Restricting publicity can also be made if national security is in danger. But, courts have been criticized for lack of publicity. In media reports on functioning of judiciary it is stressed out that they encountered many problems in obtaining information. During the preparation of this article, I have used the legal, comparative, statistical and analytical methods.

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Divorce as a Way of Marriage Dissolution According to the Positive Right in Kosovo with a Comparative Overview on Albanian, French and German Legislation

Author(s): Mimoza A. Aliu / Language(s): English Issue: 2/2019

The principle of free initiative in civil relations in general, and in those statutory in particular, enables citizens’ freedom of choice in establishing statutory relations, which in this case is marriage. Having reached adulthood, all physical persons have the ability to find a person whom they want to marry, without any imposition. Marriage is an ongoing communion between a man and woman, where both have rights and where both have their obligations. Matters of marital harmony belong to the spouses, as some of the provisions belong to the dispositive nature, so the spouses decide how to fulfill the purpose of marriage. Other family matters are of imperative nature, for which spouses can not decide otherwise, except as required by imperative provisions. The subject of research is the dissolution of marriage through divorce, from a comparative point of view. The questions we are asking in this research paper are: the causes of divorce in Kosovo, the way of divorce in Kosovo, and based on comparative research, what will be the recommendations for supplementing the legislation in the sphere of marriage and the family?

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Imposing Diversity Measures To Juveniles

Author(s): Albulena Hajdari / Language(s): English Issue: 2/2019

Diversity measures as a kind of alternative measure are often imposed to juveniles, who have committed minor criminal offenses. These measures are envisaged by relevant international acts (Tokyo Rules and Beijing Rules) and the criminal legislation of a considerable number of contemporary states. Within this article, the meaning of the diversity measures, the characteristics and the purpose of the diversity measures will be addressed. Also, the procedure and authority for imposing diversity measures will be elaborated, including the importance of imposing these measures. Moreover, this paper will analyze the practical activity of the bodies authorized by the Juvenile Justice Code of Kosovo (JJCK), which aim to impose diversity measures. The imposition of these measures will be reflected through statistical data, during the period 2007 - 2016 in Kosovo. During the preparation of this paper, legal, comparative, analytical, research and statistical methods were used. In the end, conclusions and recommendations will be presented on this topic.

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The Meaning of Advantage to Creditors under Voluntary, Compulsory and Friendly Sequestration in South Africa

Author(s): Howard Chitimira,Thabang Terrance Mabina / Language(s): English Issue: 2/2019

The article discusses the advantage to creditors’ requirement in voluntary surrender, friendly and compulsory sequestration in South Africa. This is done to, inter alia, examine the meaning and application of the advantage to creditors’ requirement in sequestration proceedings in South Africa. It is also done to comparatively discuss the burden of proof and the court’s discretion in relation to the advantage to creditors’ requirement in voluntary surrender, friendly and compulsory sequestration proceedings. To this end, the article provides an overview analysis of the meaning and interpretation of the advantage to creditors’ requirement, the burden of proof and the possible differences in the application of this requirement in the relevant sequestration proceedings. Accordingly, the article provides a discussion of the possible challenges and the court’s discretion in the adjudication and application of the advantage to creditors’ requirement in all sequestration proceedings in South Africa.

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A Survey Study of the Remedial Justification of the Nigerian Prison System: The Need to Restructure and Overhaul the Legal Regime

Author(s): Onyebuchi Igwe,Hemen Philip Faga,Uchechukwu Uguru / Language(s): English Issue: 2/2019

The objective of this paper was to carry out a survey of remedial justification of the Nigerian prison system with a view to proffering solutions aimed at the restructure and overhaul of the legal regime. The paper utilised both qualitative and quantitative methods of investigation. Itadopted a case study and empirical review of corrective facilities available in Abakaliki, Enugu and Kuje Prisons all in Nigeria through a structured questionnaire administered to staff and inmates of these prisons for the purpose of ascertaining the adequacy of such facilities. The results showed a gross neglect of Nigerian prisons and a departure from the goal of rehabilitation and reformation of inmates. The paper however, found that the major challenges to restructuring Nigerian prisons flowed from the lacunae in the prisons law, unfaithfulness of the Nigerian government to promoting a viable criminal justice system through prisons reforms and public apathy. Our results in this paper will benefit researchers and policy makers, which is aimed at galvanizing opinions towards overhaul ofthe legal regime of the Nigerian prisons system.

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Termination of Obligation Relationships According to the Will of the Parties, Under the Law on Obligation Relationships of Kosovo

Author(s): Mimoza A. Aliu / Language(s): English Issue: 3/2019

The establishment of relationship of obligations is the commitment of free and legal will in their fulfilment. In this way voluntary and law-based relations are realized voluntarily, ensuring that the obligations and the economic relations are developed and strengthened, and on the other hand, judicial proceedings are eliminated. The fact that for a long period of time, civil legal relations in Kosovo due to their unification with the code have resulted in disputes of different nature with which the judicial, arbitral and notary systems are faced. However, the issuance of the Law on Obligation Relationships is one of the great achievements in favour of especially relations of obligations, as well as of civil ones in general. In this paper, the purpose is the legal analysis of the voluntary termination of the relationships of obligations according to the Law on Obligation Relationships in Kosovo.

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Contract for Donation in the Roman Law and its Development in the Positive Law in Kosovo

Author(s): Ardian Dauti / Language(s): English Issue: 3/2019

Contract for donation is one of the oldest as well as the most important contracts in the positive law in Kosovo, for the fact that through a gift deed a person (the donor) carries or is obliged to convey the other contractor (the donee) the right to ownership of a particular object or any other property right. This contract dates back to the Roman law where the foundations of the legal rules regarding the notion of the contract for donation, the subjects that enter into that contract - the donor and the recipient, the types of this contract, which even nowadays are recognized by the contemporary law - both the positive law in Kosovo as well as the comparative one. Contract for donation is a contract on the permanent and free assignment of any thing or right. The aim of entering into this contract will be for one contracting party to gain material (property) benefits free of charge to the expense of the other contracting party. Through the gift, the recipient gains the right of ownership over a given item. The objective of charity (animus donandi) shall be the key element to this type of contract, thus being the ground of this contract. Contract for donation is regulated in the positive law of Kosovo through the Law on Obligation Relationships, which was adopted by the Assembly of Kosovo in 2012. The purpose of this paper is to present the development of the contract for donation in Roman law and by focusing on its detailed reflection on the positive law in Kosovo. This contract is extensively applied in practice in Kosovo.

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Covert and Technical Surveillance Measures and Investigation

Author(s): Fejzullah Hasani / Language(s): English Issue: 3/2019

The use of contemporary technological achievements in combating and preventing criminality, especially when it comes to discovering it and ensuring evidence, is considered imperative in contemporary conditions. In this process the undertaking of certain actions, with the necessary use of means and technological methods, there may be a conflict with the fundamental human rights and freedoms. In the public opinion, this is often interpreted as belonging to nondemocratic societies and states when there is an abuse of authorizations with the aim of placing control over their citizens. In this case, the fact that every criminal offense represents a violation of human rights and fundamental freedom is neglected, whereas contemporary crime, and especially the organized crime, infringe upon not only the basis of the society but also all rights and freedoms.Therefore, there should be no presumption as to whether prosecution bodies should use technological achievements in combating crime. The overall view of the European Court is that the state has a “positive obligation” to prevent and investigate criminal offenses and to criminally prosecute the offenders. The measures undertaken with the purpose of detecting and preventing such offenses and which interfere with the private life of the person are usually acceptable, provided they are provided by law and in conformity with the constitution and international standards which allow the limitation of freedoms and of human rights in indispensable cases.

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Where do the Limits of the Discretionary Power of the President of Romania in Regard to the Withdrawal of Decorations end?

Author(s): Ionela-Alina Zorzoana / Language(s): English Issue: 1/2020

In the context of debates that occurred in the public spaces in regard to the decision of the President of Romania to withdraw decorations awarded to public persons, this study intends top reform an analysis in regard to the limits of the discretionary power of the head of state in this case.Without involving the political component of this case, our research shall be limited to the applicable legal framework (insofar there is any), the attributions of the Chancellery of Orders, the conditions of awarding and withdrawing decorations, inclusively the necessity of motivating decrees as an essential condition for the validity of the administrative deed. The study concurrently also refers to a comparative analysis between similar situations of withdrawing decorations.

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Premises of Liability of a Person Who Assists in Causing Damage under Polish Civil Law

Author(s): Rafał Adamus / Language(s): English Issue: 1/2020

This study has been devoted to selected issues of assistance in causing damage and more specifically to the issue of the premises of liability for damages of a helper under Polish civil law. There is an important dispute in the Polish doctrine of law and in judicial practice as well, whether it is possible to accept liability for damages of the helper in the absence of his intentional fault. The work was prepared using a formal and dogmatic method. Under Polish tort law responsibility for aiding and abetting a damage requires the helper’s intentional fault. The paper could be useful for academics and researchers dealing with the comparative tort law. The study raises arguments for the thesis that the sine qua non premise of a helper’s civil responsibility is intentional fault. The study presents a critical analysis of the views of doctrine and case law.

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The Legal Concept of “State of Emergency”: A Comparison Between Romania and Other European Countries

Author(s): Crina Alina Desmet / Language(s): English Issue: 1/2020

We aim at identifying the characteristics of “state of emergency” in Romanian legislation, and how it compares in international context. There is important work done on the following related topics: the state of emergency in Romania, the state of emergency as an international concept, and comparisons on this matter between different countries. The legal concept of “state of emergency” in Romania is compared to that from other countries, namely France, Germany, Italy, and Hungary, as well as put into a wider international context. In order to make this comparison, we study several laws and the related literature review, and then create country-focused case studies. Romania has a balanced, rule-of-law approach concerning the state of emergency. The probability for abuse is lower than in other states. This paper contributes to the understanding of the concept of “state of emergency” in Romanian law, useful for both researchers, and policy makers This subject is of the highest relevance in the context of the 2020 state of emergency in Romania, but also because of the lack of a paper on this topic that puts Romania at the centre of the analysis.

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THE PROSPECT OF LEGAL EDUCATION: AN INDIA OVERVIEW

Author(s): Hari Hara Sudhan Ramaswamy / Language(s): English Issue: 39/2020

Education in India is losing its relevance. This seems much more applicable to the situation in the present day of legal education. This essay aims to focus on two aspects of legal education. Whilst, on one hand, it aims to provide details of the existing legal education system on the other, it aims to drive more attention to the various improvements and developments that are needed. The essay firstly shall describe the existing legal education system. It shall analyze and assess the curricula that are available for the various undergraduate law degrees available in India. It aims to provide an understanding of the perceived distinctions between the three-year law degree and the five-year law degree. As a second aspect, the essay aims to explore options to further the quality of legal education in India by considering examples of various law schools or colleges of law across the world that have consistently proven themselves as a cut-above not legal education and research in their global scale. Also, from the learnings of the gaps in the curricula of the law degrees as discussed previously, the essay shall provide suggestions on the various plausible collaborations with foreign law schools and universities for the benefit of the Indian law schools and colleges of law. As a third and final aspect, as a measure to curb fake or bogus law schools or colleges of law within India and to enhance the employability of law graduates in India at par with those across the globe, the essay aims to provide suggestions applicable for the present-day legal education scenario.

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Příkaz v řízení o přestupku

Author(s): Helena Prášková / Language(s): Czech Issue: 2/2020

This paper deals with the administrative order as one of the forms of a decision in the administrative offence proceedings. In the introduction, the reasons for introducing of summary proceedings and different types of a decision according to the valid legislation are mentioned. The next chapter is devoted to the development of the legislation, what concerns administrative order in administrative offence proceedings and criminal warrant. Specific conditions of issuing the order in administrative offence proceeding are discussed in detail. The article also lists the content elements of the order and deals with its delivery, in particular the admissibility of its alternative delivery. In conclusion, the legal consequences and effects of issuance of the order, of its delivery and of its coming into force are summarized.

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