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РЕОСИГУРАЊЕ – СУШТИНА, ДОМАШАЈ И ЗНАЧАЈ

Author(s): Nataša Petrović Tomić / Language(s): Serbian Issue: 2/2015

Reinsurance – at least in Serbian law – represents one of the institutes of Insurance Law of whom a little is known. It should not be surprising as the contract of reinsurance traditionally is not regulated in civil codes or laws on contract of insurance. Questionable are all features of the contract of reinsurance: from the definition through the essentialia negotii to the principle of utmost good faith. That is why the paper is structured so that firstly gives definition of contract of reinsurance and explains position of reinsurance in the system of insurance. It is highlighted that the contract of reinsurance builds on the contract of insurance; which enables the further transfer of risk. It is business-to-business contract (B–2-B), concluded between insurance law experts; frequently of international character; mostly contract of adhesion, aleatory and synallagmatic contract, contract with subsequent execution, etc. The importance of reinsurance in the system of insurance is divided on three components: increase of capacity of insurance market, guarantee of acomplishment of obligations of insurer and regulatory effect on insurance. The author concludes that the contract of reinsurance is a specific business insurance contract, concluded by the insurance law experts and that represents community of interests of reinsurer and reinsured. The mentioned contract may perform its function only if the contracting parties act in a responsible manner, lege artis and respecting the principle of utmost good faith.

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ПОБИЈАЊЕ УГОВОРА О ЈЕМСТВУ У СТЕЧАЈНОМ ПОСТУПКУ

Author(s): Dragor Hiber / Language(s): Serbian Issue: 1/2015

Serbia’s courts jurisprudence has divergent attitudes with respect to the dilemma whether a surety contract represents a contract without consideration, which may be avoided once the guarantor is subject to bankruptcy procedure without any additional conditions, or an onerous contract. Whether a surety contract is an onerous one has anyhow been disputed in the legal theory. One school of thought considers this contract as non-onerous one, since vis-a-vis guarantor’s obligation no benefit to be expected from the other contractual party (i. e. creditor) exists. The other school of thought understands surety (almost always) as an onerous contract bearing in mind that the guarantor who enters into this contract does not have intentio liberalis. There are numerous and nuanced views based on analyses of the relation between a guarantor and a debtor focused on the argument that surety is a contract without consideration if intentio liberalis existed vis-a-vis main debtor rather than vis-a-vis creditor.

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КРИТИЧКИ ОСВРТ НА СРОДНОПРАВНУ ЗАШТИТУ ИЗДАВАЧА: ЗАШТИТА ПРИВРЕДНОГ ИЛИ КУЛТУРНОГ ПОДУХВАТА

Author(s): Dušan Pavlović / Language(s): Serbian Issue: 1/2015

In this paper the author discusses the legal policy reasons for the introduction of different forms of copyright and related rights’ protection of publishers, existing in Serbian and comparative law: right of first publisher of previously unpublished work, publisher’s right to a levy, right of publisher of critical and scientific publications, and right of online news publishers. It is argued in favor of a separate regulation of each of publisher’s rights and pointed out to their different subject, content and object of protection. Although related rights of publishers are generally prescribed with a view to ensuring the protection of a commercial undertaking, the author also identifies certain reasons of cultural policy which led the legislator to provide for the legal protection of publishers of works already in public domain. Only the need to recompense the person who made available to the public a work which would otherwise remained practically unknown could justify such intervention into the public domain. Finally, it is concluded that the protection of online news producers in case of the making available of the parts of their media coverage by news aggregators could be seen as an instrument of protection against unfair competition.

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ПРОВИЗИЈА ТРГОВИНСКОГ ЗАСТУПНИКА

Author(s): Mirjana Radović / Language(s): Serbian Issue: 1/2015

In this paper the author analyses the commercial agent’s commission as the most important type of remuneration for commercial agency. In the European Union the issue of commercial agent’s commission is regulated in the Directive 86/653/EEC on self-employed commercial agents, whereas the Serbian Law on Obligations has still not been harmonised with those rules. Such state of law would change if and when the new Serbian Civil Code is enacted, since its latest Draft contains numerous new solutions, which were inspired by the Directive. The first part of the paper is dedicated to defining the term „commission“ and its distinguishing from the wider term „remuneration“. Thereafter, the main types of commission are explained. The following part investigates whether the commission or its specific type constitutes essentialia or naturalia negotii of the contract on commercial agency. Finally, the last part of the paper deals with the amount and the extent of covering costs by the commission, in the absence of any agreement on that matter.

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УТИЦАЈ САВЕСНОСТИ ПОВЕРИОЦА НА ПОСЛЕДИЦЕ НЕОСНОВАНИХ РАСКИДА УГОВОРА

Author(s): Katarina Dolović Bojić / Language(s): Serbian Issue: 1/2015

The purpose of this paper is to draw attention to the problems caused in practice by the so-called unfounded terminations (wrongful unilateral termination; termination without cause) and to emphasize the need to create an integral practice with respect to their sanctioning. Unfortunately, the doctrine does not offer sufficient solutions to above mentioned problem, and certain rare attempts to theoretically explain this phenomenon remain in the shadow of individual judicial/arbitration disputes. Still, it seems that no major attempts were made in order to solve the problem on a conceptual level. The author argues that unfounded termination should be qualified as a breach of contract and suggests that the consequences resulting from such a breach should be more precisely defined. Furthermore, the author seeks the answer to the question whether the creditor’s good faith affects the consequences of unfounded terminations, or, in other words, whether the creditor’s bad faith makes a necessary condition for the emergence of certain consequences. There is undoubtedly something wrong in the regime of unilateral termination of contract, especially because these terminations are often spoken of as „terminations at own risk“.

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УСЛОВ ЗА ДОЗВОЉЕНОСТ ТУЖБЕ ПРОТИВ ОСИГУРАВАЈУЋЕГ ДРУШТВА

Author(s): Miloš Radovanović / Language(s): Serbian Issue: 1/2015

Article 24 of the Law on Compulsory Insurance in Traffic conditions the right to file a lawsuit against the insurance company, in the manner prescribed by the Law on Civil Procedure before 2014 which stipulated the right to file a lawsuit against the state. Both laws stipulate that the previously extrajudicial addressing the potential defendant is a procedural prerequisite for the initiation of civil proceedings. The Law on Civil Procedure was changed in 2014. After the amendments to the law, the prior extrajudicial proposal is not a prerequisite for the permissibility of a lawsuit against the state. The author, starting from the similarity of the provisions of these two laws and the circumstances that the amendment to the above Article of the Law on Civil Procedure was justified, tries to prove that it is necessary to make a similar amendment to Article 24 of the Law on Compulsory Insurance in Traffic. The author also points out that the need for the compliance between the national law with the EU regulations is not the reason which opposes to the amendment of the Article of the Law on Compulsory Insurance in Traffic.

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РЕШАВАЊЕ ПОТРОШАЧКИХ СПОРОВА ПРЕД АРБИТРАЖОМ

Author(s): Nataša Petrović Tomić / Language(s): Serbian Issue: 2/2014

Efficient resolution of consumer disputes contributes to the strengthening of consumer protection. As the increasing of number of consumer contracts necessary increase consumer disputes, there is an interest in developing the Alternative Disputes Resolution. The paper is devoted to the question of arbitrability of consumer disputes. At the beginning of the paper author points out at the difference between European and American approach to the arbitration of consumer disputes. Having in mind the premise that classic (commercial) arbitration is not a priori suitable on consumer disputes author advocates introduction of specific consumer arbitration. The largest part of the paper deals with the characteristics of proposed consumer arbitration in order to prevent clause of arbitration to be void as unfair contract term. It is underlined the importance of free and informed consent of consumer on arbitration clause. At the conclusion, author cites approach of European Court of Justice according to which national courts have to look after unfair character of arbitration clause contained in consumer contract ex officio.

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О ДЕЈСТВИМА МОДИФИКАЦИЈЕ УГОВОРА ОДЛОЖНИМ УСЛОВОМ

Author(s): Snežana Dabić / Language(s): Serbian Issue: 2/2014

The suspensive condition is a typical accidentalia negotii, irrespective of the imprecise definition of the Serbian Law on Оbligation. It affects only the efficacy, not the formation of the contract. Its realization has a retroactive effect, unless otherwise provided by law, the nature of the contract or the will of the parties. The principle of retroactivity could have a significant impact on the legal position of the contracting parties, as well as the third parties, in case of any subsequent dispositions of the conditional rights in the period of uncertainty. Therefore, one of the main tasks is to determine the limits of such retroactivity.

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ПРОМЕНА ПОВЕРИОЦА ИЛИ НОВАЦИЈА И ЗАСТАРЕЛОСТ

Author(s): Dragor Hiber / Language(s): Serbian Issue: 2/2013

Application of general and seemingly well-established institutes of civil law is bound to provoke a controversy at some point in time. This is often so when the old institutes are to be applied to relationships which have been regulated by subsequently enacted special legislation. Lack of coordination and harmonization between the general and the special rules might result in departure from the generally accepted principle and bring about controversial practice, eroding legal certainty. One of such cases arose after Serbia (i.e. FR Yugoslavia) reached agreements with so-called Paris and London creditors’ clubs and took over debts of the domestic banks, the very debts it has guaranteed for. Pursuant to the general rules of the contract law this brought about subrogation of the State into the claims of the foreign banks vis-a-vis the banks. Pursuant to the legislation enacted subsequently and dealing specifically with this matter, the amount of the assumed debts was converted into shares of the State in the banks it has shielded from their creditors. Furthermore, given that the banks have ended in bankruptcy, the State has attempted to establish a direct legal link to the end users of the credits that the banks drew from the foreign creditors.

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ПОНАВЉАЊЕ ПАРНИЧНОГ ПОСТУПКА ЗБОГ ОДЛУКЕ УСТАВНОГ СУДА

Author(s): Nikola Bodiroga / Language(s): Serbian Issue: 2/2013

The main focus of this paper is on the repeated trial due to the decision of the Constitutional Court. This new ground for repeated trial has been introduced through 2009 Amendments to the Civil Procedure Code and is still present within the 2011 Serbian Civil Procedure Code. The trial completed by a final court decision may be repeated upon request of a party in a situation where Constitutional Court finds that there has been a violation or denial of constitutional rights and liberties in civil procedure, provided that this could have resulted in a different decision by a lower instance court. After quashing the decision of the competent civil court, Constitutional Court orders the case to be re-opened. On the other hand, Article 426 of Civil Procedure Code provides that trial can be repeated only upon request of the party. The Constitutional Court insists on its legal standing being followed in the repeated trial, which has already led to conflicting interpretations before the High Court in Belgrade. The author focuses its analysis on inspection of these pertinent problems from the standpoint of essential principles of civil procedure.

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ПРОЦЕНА ШТЕТЕ ПО АКВИЛИЈАНСКОЈ ТУЖБИ У СЛУЧАЈУ УНИШТЕЊА ПРЕДМЕТА ОБЛИГАЦИОНОГ ОДНОСА

Author(s): Samir Aličić / Language(s): Serbian Issue: 1/2013

Cases in which the circumstance that a destroyed or damaged object was the subject of contractual relationship that influences the assessment of damages by Aquilian lawsuit (actio legis Aquiliae; actio damni iniuriae) in classical Roman encompass the following situations: destruction of object promised under contractual penalty, destruction of object of noxal liability and destruction of less valuable prestation in alternative obligation. The common feature for all the stated cases is that the owner suffers damage that surpasses the value of the destroyed object because instead of the delivery of an irreplaceable object, as he will have to execute a financially more difficult prestation from obligation. The damage is therefore assessed to the value of the more difficult prestation. Due to the implementation of the Aquilia law rule that the damage is assessed according to the highest value that the object had during the year, or thirty days prior to destruction, the damage is assessed to the amount of the more valuable object even if it is ruined too, and if the obligation will thus be terminated.

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D.12.4.16 – КУПОПРОДАЈА ИЛИ НЕОСНОВАНО ОБОГАЋЕЊЕ?

Author(s): Miloš Vukotić / Language(s): Serbian Issue: 2/2012

In the XII book of the Digest stands a text in which Celsus denies the existence of sale when one party gives money in order to receive a slave. However, that situation, i.e. a monetary exchange, in usual circumstances always constitutes a contract of sale, rendering it necessary to pose the question – why did Celsus make a decision which is, at face value, contrary to the general principles of the Roman law of obligations? Examining the answers that have already been given in the literature, the author discusses several possible solutions and points out their respective key dilemmas. The explanation that the contract was concluded under a fully potestative condition stands out as the simplest, while the theses of an exchange with payment and of a special structure of the transaction which excluded the contractual action stand out as especially inventive. The author takes a critical stance towards the principle of vacuam possessionem tradere and tries to show its limited practical scope.

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ПРИЗНАЊЕ НОТАРСКОГ ЗАПИСА

Author(s): Dejan B. Đurđević / Language(s): Serbian Issue: 1/2012

In the course of performing a notarial act (Notariatsakt), notary public should inform a party of the contents of the document he has drawn up for them, so that the party may approve of the document and sign it. This phase of the notarial proceedings, which includes presentation of the document to the party, her acceptance and signing thereof, may be described as the acknowledgment (Rekognition) of the notarial writing by the party before the notary public. Regrettably, the new Serbian Law on Notary Public (2011) does not regulate the aforesaid acknowledgment comprehensively, as it lacks specific provisions relating to the manner in which the party could get acquainted with the contents of the document prepared by the notary, and in which she may approve of it. The author recognizes this deficit as a legal gap or lacuna, sees it as an impediment to the preventive function of the notaries public, and considers the ways of filling it. On the basis of Article 76 of the Law on Notary Public, and the mutatis mutandis application of the existing rules of non-contentious proceedings, the author concludes that the stage of acknowledgement of the document prepared by the notary public occurs at a single time and place (unitas actus), in a manner that the notary reads the content of the deed to the party from the original document, the party affirms that her will was truthfully presented, and puts her signature to the notarial act.

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ПРОМЕЊЕНЕ ОКОЛНОСТИ У СРПСКОМ УГОВОРНОМ ПРАВУ И ИЗВОРИМА УНИФОРМНОГ УГОВОРНОГ ПРАВА

Author(s): Jelena Perović / Language(s): Serbian Issue: 1/2012

This paper offers a comparative analysis of the main rules concerning change of circumstances (hardship), which are adopted in the Serbian Law on Obligations and in the sources of uniform contract law. The analysis calls for the examination, both from the perspective of the domestic law and of the uniform rules, of the requirements of the hardship exemption such as „excessively onerous“ performance of the obligation, „fundamental alteration of equilibrium of the contract“ and „frustration of the purpose“, unforeseeability and unavoidability of the impediment and the time of its occurrence, as well as of the legal effects of hardship – renegotiations, termination and adaptation of the contract. The analysis brings the author to the conclusion that divergences between the relevant solutions of the domestic and uniform contract law exist, and that some of the rules of the domestic law may cause problems in practice. In the perspective of these problems, the author suggests the adoption of the hardship rules proposed in the draft Civil Code of Serbia.

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ОГРАНИЧЕЊА ОДГОВОРНОСТИ ЗА ШТЕТУ У СРПСКОМ ПРАВУ

Author(s): Marija Karanikić Mirić / Language(s): Serbian Issue: 1/2012

Modern European tort law systems are marked by multiplication of the heads of damages, increase in the possibilities for the injured parties to pass on the damage they incurred, raise in the amount of the awarded damages, and an increasing claim-consciousness of possible plaintiffs. These systems have developed different mechanisms of keeping liability in torts within reasonable limits. They provide tools for fine corrections of the effects of the principle of full compensation, the purpose of such tools being to ensure fair balance of the interests of injured party and tortfeasor. This means that, when all circumstances of the case are taken into consideration, the tortfeasor’s burden of liability should be reduced in the event that the principle of full compensation fails to produce fair and reasonable results in the case at hand. The purpose of these instruments is not to rectify social or economic differences, but to make certain that, taking all circumstances into account, liability is not unjustifiably burdensome for the tortfeasor. What is justified with respect to the limits of liability for damage is one of the most tasking questions of tort law.

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КО ПЛАТИ ДУКАТ ДА У БРАК УЂЕ, НУДИ ДВА ДА ИЗ БРАКА ИЗАЂЕ

Author(s): Nenad Tešić / Language(s): Serbian Issue: 1/2012

Family Law of 2005 has reintroduced to the Serbian legal system the rule that existed in the Serbian Civil Code (1844) which enables spouses, prospective spouses and extramarital partners to agree on their actual and future property relations according to their needs. The author points out to two possible approaches to the issue of validity of marital (nuptial) agreement. According to the first (older) conception, a marital agreement is void by its sole nature. It is against public policy and good usages since it allegedly leads to commercialization of marriage, it encourages the divorce and destroys the equity of spouses (general nullity). According to the second (lawful) standpoint, a marital agreement is not void (per se). Its potential nullity should be judged on case by case basis. Consequently, the contractual distribution of marital property is generally permitted by the Law, but this does not preclude the court from finding that the contract at hand is null and void (nullity in concreto).

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НЕПОСТОЈЕЋИ УГОВОР

Author(s): Katarina Dolović Bojić / Language(s): Serbian Issue: 2/2011

Non-existing contracts are discussed in the field of contract conclusion. The reason for this is simple – they are not contracts, because they lack at least one of the elements necessary for the contract to be concluded: meeting of minds, capacity to contract, subject, cause or possibly the form. They can be said to represent a de facto situation in law. The reasons for their being excluded from the group of legally invalid contracts are of practical, rather than theoretical nature. On the other hand, the non-existing contracts also need to be viewed separately from the situation when there is no contract, and when there is no doubt that the parties have not reached an agreement. In both cases the reasons can be found on the domain of consequences.

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ВРЕМЕНСКИ ОКВИР У ЗАКОНУ О ПАРНИЧНОМ ПОСТУПКУ РЕПУБЛИКЕ СРБИЈЕ ИЗ 2011. ГОДИНЕ

Author(s): Čedomir Gligorić / Language(s): Serbian Issue: 2/2011

An important novelty in the recent Civil Procedure Act of 2011 deals with introducing „time framework“ set down to terminate civil cases within a reasonable time limit, and to break away from enduring trials. It was among the weakest points of the previous practice. The author analyzes effects of the former Civil Procedure Act of 2004 on clearance rate and its effects to the number of pending cases. Although in a period before 2010 clereance rate has shown a positive trend, a huge backlog of unsolved cases from previous years appears as a big burden for civil courts efficiency. This is why the new idea of „time framework“ was introduced by establishing innovative technical solutions (including single judge trial, audio and video taping of the hearing, more efficient way to obtain expert witness opinion, etc.), including an early consent of all actors of the case (judge and the two parties) about the expected duration of the trial. The author tries to point to positive aspects, along with some deficiencies of the new Act in that respect, and offers some suggestions for improvement.

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ИНЈУРИЈА КАО ДЕЛИКТ

Author(s): Ognjen Vujović / Language(s): Serbian Issue: 2/2011

Iniuria has been a sign of illegality from early times. Therefore, it signified pre-crimen. During the process of secular iniuria separation from pre-crimen, obligation law is appeared and occurred as a tort iniuria as well. In the time of passage of XII Tables there can be neither defamation tort nor defamation. How can they exist unless the word has been secularized yet? A key role in the process of offence of iniuria decomposition was played by the need for legal-linguistic standardization of striking physical injuries through special legal formula (membrum ruptum and os fractum). This standardization has got the tendency, by typical cases and through special formula, to provide a gradual special protection to special values, and form separate assaults. However, that process has never been completed yet.

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НАГРАДНИ ПОКЛОН

Author(s): Marko Đurđević / Language(s): Serbian Issue: 1/2011

Gift-as-a-reward is a type of gift offered as a prize or an award to another, which is not made to compensate for services rendered, but to show gratitude for these services. It is based on the donor’s intention to make a voluntary transfer of property to the donee, without full valuable consideration. A prize or an award for the inestimable (priceless) services shall always qualify as a gift. On the other hand, a prize or an award for services rendered shall qualify as a gift, if these services do have market value, but the donee cannot claim remuneration for them in law, and cannot bring the case to court. A prize or an award may qualify as a gift irrespective of its value. The rules of Serbian Law on Obligations with respect to action to set aside gratuitous disposal of property do not apply, if a gift-as-a-reward is proportionate to the financial status of the donor, since such gift does not infringe upon the interests of the creditors. Conversely, a gift-as-a-reward which is not proportionate to the financial status of the donor may be set aside, in accordance with general rules, as it is a gratuitous disposition which runs contrary to the interests of the donor’s creditors.

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