Підстави звільнення від цивільно-правової відповідальності авіаперевізника за порушення умов договору перевезення пасажира та багажу

Author(s): Hanna O. Urazova / Language(s): Ukrainian Issue: 136/2017

The essence of the concepts of «force majeure» and «emergency» has been clarified, revealed their contents; individual circumstances as grounds for acquittance from the carrier’s civil liability with the practice of the European Court of Justice are considered.In civil law single questions of the grounds carrier acquittance from civil liability for breach of contract are analyzed by national and foreign scientists as A. Vyhodyanskyy, A. Dombruhova, B. P. Eliseev, E. V. Passyek, G. V. Tsirat, P. S. Dempsey, H. Manuel and others. Some aspects are still controversial, particularly value the concepts of «force majeure» and «emergency» as grounds for acquittance from civil liability carrier, always the fault of the aircraft is the factor to release the air carrier from civil liability and so on.The purpose of this article is consideration the issue of air carrier grounds for acquittance of civil liability in case of breach of contract of carriage of passengers and baggage, namely the delay or cancellation highlighting with illumination of the practice of the European Court of Justice and national courts.Legislative grounds for acquittance from civil liability of the air carrier are determined by different concepts – the «emergency», «force majeure», and therefore there is a need to clarify their essence. Legal understanding of the concept of «emergency» is identical to the concept of «force majeure» because their essence is revealed with the help of the same characteristics, namely urgency and inevitability. Summarizing the views of scientists and legislative approach to determine the origins of force majeure and their list can be noted that these include such circumstances that caused the social, natural, technological, environmental and other phenomena. Emergency may also be caused by natural, social, technical, political and other phenomena too. Thus, the circumstances and the nature of their origin, content of analyzed concepts are identical. Technical problem can be considered urgency only when it, at first, is not typical of the normal exercise of an air carrier and, secondly, is beyond the actual control of the carrier due to its nature or origin. Technical problems which appear in connection with the maintenance of aircraft or through failure to carry out proper maintenance can not be by themselves qualify as «emergency».Firstly, the concept of «emergency» covered by the concept of «force majeure» because the urgency is one of the signs of the latter. Secondly, when the legislator uses the concept of «emergency», or does not use it, the conditions of release the air carrier from civil liability of are urgency and inevitability of the circumstances. This actually shows the identification of the concept of «emergency» and the concept of «force majeure». Thirdly, the contents of the analyzed concepts form the fact that usually has the same origin. Prevalence of technical challenges faced by carriers themselves is not the factor that indicates the presence or absence of «emergency».

Форми захисту цивільних прав сторін договору банківського вкладу (депозиту)

Author(s): Uriy Moiseienko / Language(s): Ukrainian Issue: 136/2017

The article is dedicated to analyze the forms of protection civil rights parties of the bank deposit contract considering the statistical data in regard to banks which allow violations of these rights and necessity to restore these rights by competent bodies. Fixing in civil legislation a number of opportunities to protect these rights with the existing economic crisis, especially in banking field, have practical importance that based on the efficiency of any form. Therewith, research the peculiarities of protection violated civil rights of the bank deposit contract in judicial, administrative and other forms. Attention is drawn on the peculiarities of some forms of protection. So, emphasizing the certain duration of judicial protection, alternatives opportunities of protection and restoration the violated rights of parties of the bank deposit contract is analyzed by the author. However, due to lack of effective mechanisms for protection the rights of parties of mentioned contract, the author proposed some ways for improving protection the violated rights of parties of the bank deposit contract.

Umowy cywilno-prawne

Author(s): Mateusz Tomczyk / Language(s): Polish Issue: VII/2015

The purpose of this thesis is to present the relationship between the employment and the contract. Scientific publications, which are available on the market, as well as acts, such as Labour Code and Civil Code were used in this thesis. The commission contracts occur more frequently than the contracts of employment, even though the employers are bound to in the margin of safety and hygiene at work. Although the fees are charged by SII (Social Insurance Institution), the freedom in the margin of entering into a contract, work schedule or remuneration are very attractive for the employers.

EX ANTE И EX POST КОНТРОЛА ЈАВНОГ ИНТЕРЕСА У СПОРАЗУМИМА О ЈАВНО-ПРИВАТНОМ ПАРТНЕРСТВУ

Author(s): Aleksandar Ćirić,Predrag Cvetković / Language(s): Serbian Issue: 74/2016

The paper analyzes the provisions of public-private partnership agreement (hereinafter: the “PPP”) in the context of control of the public interest in the process of preparing and implementing PPP projects. PPP agreements are a mechanism for defining rights and obligations of public and private partners in the process of realization of a particular PPP project. In spite of being defined as partnership, public and private interests largely remain competitive. However, in case it is not possible to achieve both interests at the same time, the public interest is deemed to have priority. The proper implementation of the supremacy of public interests over the private ones calls for an appropriate contractual definition of conditions and manner for such implementation. The methodology for exercising control of the public interest in PPP projects through agreements on public-private partnership has two aspects. The first aspect is to provide verifiable parameters of legal, economic and technological conditions, as well as the procedure for selecting the best bid for the realization of public-private partnership (ex ante methodological aspect); these conditions are the basis for future PPP agreement. Ex ante methodology has to provide instruments for control of the public interest through pre-established mechanisms aimed at verifying whether the private partner has fulfilled the agreement. If such verification is not possible or if it is considered unreasonable (either financially or otherwise), it may raise an issue whether the public-private partnership is an adequate modality for implementation of the project aimed at promoting the public interest; it further implies that the public partner should resort to other options (employing “internal” resources or taking a loan for financing the projects of public interests). The second aspect is that the PPP agreements are to provide for the proper implementation of the elements that ensure some flexibility in implementing the agreement as well as an effective control of such implementation (ex post methodological aspect). PPP agreements should provide a mechanism for adjusting their contents to changed circumstances, i.e. the social, legal and economic context which pervades the preparation, implementation and realization of the specific PPP project. Among other factors, this flexibility rests on mutual trust and cooperation of the contracting parties. Ultimately, in the context of control over exercising the public interest, the methodological approach of the PPP agreement essentially lies in preventing the public partner to succumb to the temptation of adopting the simplest available solution. Instead, it is necessary to clearly define the expectations which the public body as a title-holder of public interest has in regard of specific PPP projects, and to limit the responsibility of the public actor. The success of a PPP agreement in each particular case depends on the extent to which the agreement provides for adequate treatment of these presumptions.

ТЕХНОЛОШКЕ МЕРЕ У ФУНКЦИЈИ КОНТРОЛЕ КОРИШЋЕЊА АУТОРСКИХ ДЕЛА У ИНФОРМАТИЧКОМ ДРУШТВУ

Author(s): Vidoje Spasić / Language(s): Serbian Issue: 74/2016

Information technology has given rise to the problem of controlling the use of copyrighted works of authorship from their unauthorized use. In this context, one of the effective solutions is the application of technological protection measures, which are aimed at a more efficient application of the protection measures prescribed by the law. Technological protection measures imply the use of any technology, device or component which may be aimed at preventing or restricting an unauthorized use of a protected work of authorship, which has not been approved by the author or holder of some related right. Generally, all these measures may be classified into three basic groups: technological measures aimed at controlling access, technological measured aimed at controlling exploitation, and technological measures aimed at protecting the integrity of the work of authorship. Considering their technical characteristics and mode of application, they may be hardware-based measures, software-based measures, or a combination thereof. Modern technology has enabled the development of digital systems which entail a controlled use of copyrighted works and facilitate obtaining licences for their exploitation. They are commonly known as digital rights management (DRM). The DRM system should provide for a compromise between safeguarding the intellectual property rights of the copyright holder, the end user privacy, and system costs. The envisaged goals are achieved by employing various cryptographic measures. The process of developing technological protection measures is accompanied by concurrent attempts to circumvent the application of these measures. Thus, the effectiveness of these measures primarily depends on their legal protection, which has been recognized by a vast majority of legal systems, we now know the most modern legal system. However, the normative solutions are not uniform. The observed differences actually reflect problems in finding adequate forms of protection, which mostly stem from the fact that sanctions for evasion of technological measures call into question the ultimate purpose of copyright law in general. Yet, the regulation of technological protection measures must be approached with great caution. Envisaging relevant legal protection for these measures should contribute to providing a comprehensive and stable system of copyright protection. Moreover, it is essential to ascertain the necessary balance of interest of all relevant subjects involved in that process. Technological measures for controlling the use of copyrighted works of authorship should primarily protect the authors’ rights and interests; however, they certainly must encompass the legal and legitimate interests of the end-users as well as the general public, particularly considering the statutory limitations to authorship rights in favour of third parties.

ЗАШТИТА ПРАВА НА ПРИВАТНОСТ КАО ДРУШТВЕНИ ИМПЕРАТИВ ДИГИТАЛНОГ ДОБА КОЛИКО СМО РАЊИВИ?

Author(s): Tijana Levakov Vermezović / Language(s): Serbian Issue: 74/2016

The paper examines various forms of jeopardizing the privacy of individuals in digital world, with specific focus on criminal protection provided by current international and national legal framework and the jurisprudence of European Court of Human Rights. The significance of conducting this scientific research is essential considering that we live in the era of electronic communications in which no one is anonymous. Development of information and communication technologies has brought, among its many advantages, various challenges in all spheres of modern life. Since the Internet has become the global forum, individuals have been increasingly target of countless insults, defamation and threats; moreover, numerous personal information or media get published without consent. The practice shows that effective suppression and control of illegal behavior on the Internet and punishing the perpetrators is at the rudimental level. In order to provide proper protection for the victims of criminal offenses committed against their privacy in the digital world, it is necessary to create new models and approaches to solving this problem.

Obrót nieruchomościami rolnymi w świetle ostatnich zmian wprowadzonych ustawą z dnia 14 kwietnia 2016 roku – zagadnienia wybrane

Author(s): Joanna Mikołajczyk / Language(s): Polish Issue: 77/2016

The article analyses some specific problems of the civil turnover of agricultural real estate in Polish legal system. The basic aim of my research is to give a relatively clear answer to the questiion asked about the significance of the civil turnover of agricultural real estate.

Актуальные проблемы формирования института частных исполнителей в Украине

Author(s): Svetlana Moroz,Andrey Gabrelyan / Language(s): Ukrainian Issue: 07/2016

In Ukraine, in the conditions of reforming society and change of powers of state bodies a new institution – the institution of private executors is being introduced. Due to the ambiguity of this innovation, the article identifies the shortcomings of its legal settlement and potential risks of its operation for business and citizens; formulates recommendations for their elimination.

CHARAKTER PRAWNY INSTYTUCJI PRZEDAWNIENIA PRAWA DO USTALENIA WYSOKOŚCI DŁUGU CELNEGO

Author(s): Adam Drozdek / Language(s): Polish Issue: 19/2016

In this article legal nature of the right to stipulate the amount of customs debt has been analysed. The institution of the limitation is known in all legal branches, both in public and private law ones. In specific legal branches, legal norms stipulate that a lapse of a particular period of time results in expiration, establishment or amendment of the content of the right. Usually, the purpose is to put in order legal relations for which a lapse of time has a significant meaning as an element establishing its form and essence. As a result of a lapse of the period of limitation, customs debtor’s legal situation is stabilised. He becomes confident that his contractual relationship in public law sphere shall not be changed. On the other hand, public administration authorities which have not undertaken relevant legal activities during the limitation period are devoid of the possibility to interfere in the rights and obligations of the tax payer. Thus, on both sides of no longer existing tax obligation, the status of confidence within mutual rights and obligations is established and the customs obligation is not converted into customs obligation

Art. 162 kodeksu postępowania cywilnego – zastosowanie, funkcje i znaczenie w procesie cywilnym

Author(s): Sławomir Marciniak / Language(s): Polish Issue: 2/2013

The paper aims to analyse article 162 of the Polish Civil Procedure Code. Pursuant to the article mentioned, parties are not only allowed but also obliged to notify the court of all procedural errors it has made. The purpose of this legal institution is to hasten and organize civil procedure. This paper illustrates the history of subject regulation. Subsequently,it focuses on the application and role of article 162 of the Polish Civil Procedure Code in current civil procedure. After analyzing those matters, the conclusion is presented that the regulation provided by article 162 is inappropriate to the correct shaping of current civil procedure. The instant removal of all procedural errors that the court makes is essential to appropriate procedure in many ways.

Aspekty procesowe ugody sądowej zawartej w toku postępowania rozpoznawczego

Author(s): Diana Ilków / Language(s): Polish Issue: 2/2013

The study aims on the procedural aspect of a settlement reached before the court in the course of proceedings. Procedural rules indicate when and in what circumstances the court has to persuade the parties to reconcile and what should be the nature of that action. In addition, the procedural law complements the range of possible reciprocal concessions made by the parties. It also sets out further requirements that have to be followed by the body of a settlement reached before the court, especially by indicating the extent of judicial control. The rules of the civil procedure also determine the effect that a settlement reached before the court has on the course of further proceedings. Thus,the aim of the above is that the rules are focused on the implementation of the postulate expressed in Article 10 of the Civil Procedure Code.

W sprawie kodeksowej regulacji kapitałowych odsetek maksymalnych

Author(s): Małgorzata Balwicka-Szczyrba / Language(s): Polish Issue: XXXV/2016

The stipulation of an excessive capital interest, which is unjustified in a particular case is harmful for the entity benefiting from someone else’s capital. That is why legislative actions aimed to provide the protection against excessive interest are fully justified. The solution adopted in Poland is based on the determination of the maximum amount of interest by law. This is one of two basic ways commonly used to fight against usury but it has both many advantages as well as drawbacks. The provisions of art. 359 § 21–359 § 23 of the Civil Code undoubtedly ensure legal certainty as they define a clear and uniform mechanism of fighting with interest recognized by the legislature as excessive. However, the introduction of such uniformed mechanism of determining the maximum amount of interest ignores the objective assessment of whether and when the interest provided for a particular legal action is excessive. This assessment may be de-facto different depending on a particular case and its circumstances.Therefore, the provisions of art. 359 § 21–359 § 23 of the Civil Code concerning maximum amount of interest are not a solution which guarantees that interest agreed by parties is equitable in each particular case. Nevertheless, they are an effective tool used to fight with interest recognized by the legislature as excessive.

Prywatnoprawny tryb egzekwowania zakazów praktyk ograniczających konkurencję

Author(s): Anna Tworkowska,Karolina Zapolska / Language(s): Polish Issue: 35/2017

The division of law into public and private is one of the oldest ways of serving ordering system of law. The existence and operation of undistorted competition in the market has always been important for the state and constituted the basis for the intervention of public law. The result of activities affecting or threatening the mechanism of competition – and thus the public interest – is the application of sanction of a public nature. Article 1.1 of the Law of antitrust stresses that protecting the interests of businesses and consumers carried out on the basis of public interest. On the other hand, private entities granted an individual right to seek redress in respect of infringements of the rules of competition law. Such use of private-public law with the pedigree of rules of competition law – private enforcement of competition law – is the application of regulations on antitrust law for an individual investigation by private claims arising from infringements of competition law. The premise of this paper is the attempt to justify the applicability of public law for the purpose of civil claims.

Umowa o koncesję na roboty budowlane lub usługi jako forma prywatyzacji wykonywania zadań publicznych

Author(s): Dominik Styczyński / Language(s): Polish Issue: 35/2017

A public administration in accordance with the welfare state conception is obliged to perform more and more public task. A increase of public task is so rapid that public entities are not capable to undertake them in proper way. However, currently as a answer for this problems occur a conception of New Public Management, which depends on transferring performance of public task to private sector. As a example of mentioned conception can be indicated a concession contract for works or services. The contract concession for works or services is dated back from antiquities, but a prototype of current version derive mainly form medieval French law thereof. Furthermore institution of concession has been appeared recently in other western juris- dictions. In Poland legal base for concession provides an act on concession for works or services. Pursuant to this act concession contract is a cooperation between economic operator and pubic entity on the basis of which the public task are performed. What is significant economic operator is liable for most of task and risk associated with the public project, particularly he is liable for economic prosperity of project. Notwithstanding public party bear social responsibility for public task and oversee realization of concession contract. This mentioned model of cooperation between public and private sector is example as effective privatization of performance of public task. It should be noticed that Polish model of concession seems to be a functional privatization of performance of public task.

Pravo a ugovornu kaznu u slučaju raskida ugovora zbog neispunjenja

Author(s): Nenad Grujičić / Language(s): Serbian Issue: 2/2016

The author begins the article by presenting diverse court practices in the Republic of Serbia with regard to the right to collect stipulated penalty agreed in case of non-performance, after the contract had been terminated for non-performance. At the same time, the author concludes that these different practices, exercised not only by different courts, but also within a single court, are very dangerous from the standpoint of legal safety. Then the author also presents the stances of the jurisprudence on this matter, from which he concludes that, despite the apparent lack of concord, not a single author who deals with this particular subject questions the possibility of collecting stipulated penalty after the contract termination. By analyzing the stances of the jurisprudence and the courts, the author also concludes that the root cause of the difference in attitudes, shown both by courts and the science is the wrong or incompletely set initial premise. Namely, the author claims that the courts and authors that deny the right to collect stipulated penalty after the termination of the contract base their stance on the misplaced initial premise that in case of the contract termination, contracting parties are absolved of all the obligations. On the other hand, courts and authors who argue the opposite, though starting from a correctly set initial premise that in case of contract termination there are certain rights and liabilities which 'survive' the termination of the contract, fail to invoke a specific legal concept from the contract law which allows that. Identifying this concept as a partial contract termination for non-performance, which is largely unknown to jurists in the Republic of Serbia, the author presents indisputably that certain rights and liabilities can remain in effect even after the contract is terminated for non-performance. Based on thus set initial premise, the author goes on to analyze the right to the penalty charge agreed in the case of non-performance as a subjective right, relative in its nature, and compares it to other subjective rights the creditor acquires by the fact that the debtor failed to fulfill his contractual duty. After analyzing the function of the stipulated penalty as a concept, the author concludes that, if the right to the stipulated penalty (agreed for cases of non-performance) did not exist after the contract termination, the function that the stipulated penalty as a concept is supposed to perform in the legal system would not be realized. Going further and analyzing concrete and hypothetical cases, the author deduces that not only can stipulated penalty (in case of non-performance) be collected after the contract is terminated, but also that the contract termination is condicio sine qua non of the right to collect the stipulated penalty agreed in case of non-performance. The author points out that the termination, however, does not imply the termination of the contract in its entirety, but only of the liability which was ensured by the stipulated penalty. In his concluding remarks, the author expresses the opinion that, if court practice becomes uniform when it comes to recognizing the right to collect stipulated penalty after the contract termination, stipulated penalty for non-performance will eventually disappear from our legal system, whereas many market participants, unaware of the circumstances regarding the ineffectiveness of this legal concept, will suffer significant material losses. As an alternative solution, the author suggests that, following the model of certain international sources of law, our legislature should explicitly specify that after contract termination for non-performance the creditor reserves the right to collect the stipulated penalty if it was agreed in case of non-performance.

Toma Živanović i Mihailo Konstantinović: dopuna

Author(s): Ivan Janković / Language(s): Serbian Issue: 2/2016

Compensation for suffered physical pains

Author(s): Nataša Mrvić-Petrović,Zdravko Petrović / Language(s): English Issue: 4/2016

The authors analyzed the foreign legislation and the legislation of the Republic of Serbia relating to compensation for physical pain. They recognize that the old civil codes from 19.century (in French or German Civil Codes e.g.) does not define the concept of damage, nor immaterial, while in modern codes accurately are determine which forms of non-pecuniary losses be legally justified. And the legal systems of the former socialist countries recognize the right to pecuniary compensation for non-material damage in case of serious violations of personal rights, for example Russia and Poland. In the law of obligations Serbia (as well as Slovenian, Croatian, Macedonia, Montenegro, Bosnia and Herzegovina) suffered physical pain is stipulated as a legally recognized form of non-material damage. Pecuniary compensation is determined on the duration and intensity of pain and other circumstances related to an event when the damage occurred, medical treatment and recovery and of the personality characteristic of the injured person.

Lex fori concursus as the basic rule in the international bankruptcy

Author(s): Vladimir Čolović / Language(s): English Issue: 4/2016

The rule lex fori concursus determines the law of place of the initiation of the bankruptcy proceeding as a law to be applied in these proceedings, i.e., that is the law of head office or branch of bankruptcy debtor or of the place where we can find debtor’s assets. Lex fori concursus is used as a basic rule of international bankruptcy, with which explains the conduct of the main and more secondary bankruptcy proceedings against the same debtor, as well as the interdependence of these proceedings. However, the Regulation 848/2015 on insolvency proceedings provides for the possibility of avoiding initiation of secondary bankruptcy proceedings. Then, creditors, charge their claims in the special proceedings which are not secondary bankruptcy proceeding. The trustee from the main bakruptcy proceeding decides about that. Also, the Regulation 848/2015 on insolvency proceedings provides for the possibility of initiation of bankruptcy proceeding against the member or members of affiliated companies. The paper explains the status and application of the rule lex fori concursus in these cases. Attention is paid to the application of this rule in the Model Law on Cross-Border Insolvency (UNCITRAL).

The use of a mark identical of similar to well known trademark with and without ‟due cause”

Author(s): Ksenija Vlašković / Language(s): English Issue: 4/2016

Protection of trade mark is available for any sign which is capable of distinguishing the goods and services of one enterprise from others. These signs include, inter alia, words, personal names, letters and numerals, figurative signs, colors and color combinations, three dimensional shapes, including the shape of goods or their packaging. They are essential in market economies, fostering market transparency, permitting their owners to create a direct link with consumers, allowing consumers to identify and memorize the products and services they prefer, thus contributing to a system of fair and undistorted competition. However, with the growth of globalization, e-commerce consumers and advertising, reputation and distinctiveness of trade marks are particularly vulnerable to attack by those who wish to take advantage of them, for profits and enhance their financial gain (using a sign, identical or similar, to an earlier trade mark). The damage and exploitation of distinctiveness as well as the damage and the exploitation of the reputation of the well-known trademark can be discussed only in the event when there are no specific ‟due causes” coming from the side of a potential infringer. This means that the lack of ‟due cause” is the requirement for the protection of well-known trademarks. In this paper, we analyzed the BGH and the ECJ judgments whose subject was to determine the existence of ‟due causes”. Since this reason can be based on the regulations of trademark rights, but also on the basis of more general rules of legal order, such as constitutional provisions protecting freedom of thought, freedom of artistic creativity, as well as the communitarian regulations on freedom of transport and services in the single market, establishing a valid reason is based on all the circumstances of specific cases, which is why judicial decisions often come to opposite conclusion. ‟Due cause” limits the scope of protection of well known trademark. In terms of peacock sting, the limit should be reduced to the suitable measure, mainly in the sense that new competitors, with the use of additional features, must be distinguished from the already well known trademark.

Zaštita potrošača od krivotvorenih i piratskih proizvoda

Author(s): Denis Perinčić / Language(s): Serbian Issue: 2/2017

Counterfeit and pirated products are incurred with unauthorized use of intellectual property rights.Traders who sell those products do that in order to get extra profit, as a rule, by misleading consumers who buy those products believing that they are genuine. Selling of such goods is prohibited by the rules on the protection of intellectual property rights, competition rules and rules on consumer protection. In this article author points out to the most important sources of international law in mentioned areas, which have been implemented in the legal system of the Republic of Serbia. It is indicated that the aforementioned three different fields of law overlap when the focus is on consumer protection. In conclusion, author analyzes effectiveness of the implementation of intellectual property protection, competition law and consumer protection by the competent authorities and at the same time indicates to the weaknesses in their work and gives suggestions for overcoming them.