Академик проф. др Мирко Васиљевић: КОМПАНИЈСКО ПРАВО
Review of: Академик проф. др Мирко Васиљевић: КОМПАНИЈСКО ПРАВО (Правни факултет Универзитета у Београду, 2012, стр. 634)
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Review of: Академик проф. др Мирко Васиљевић: КОМПАНИЈСКО ПРАВО (Правни факултет Универзитета у Београду, 2012, стр. 634)
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The paper is examining the liability of hidden directors which act in a “shadow” in transnational corporation (TNC) as a functional tool of its effective legal control. Position of so called “shadow director” really could be found in parent TNC and its management vis-à-vis affiliated company within TNC and its top management. The author starts from a model of corporate governance and control system within a TNC from “centralization towards decentralization”, while opening up numerous topics, closely related to fiduciary duties of directors of affiliated member companies. Taking into account the fact that the centralization of management and governance in the TNC is sine qua non condition of their definition and appearance, first it has being analyzed the parent company which under the selected governance model is transforming into “shadow directors”. Considering the fact that the legal status of a TNC is defining theirs control structure and mechanisms, it has being especially stressed the treatment in accordance with the interest of the company as a whole, or in other words the treatment of all member affiliated companies within the TNC, in a harmony with a global business strategy and policy of the corporate group. In concluding remarks the authoress is arguing in favor of imposing a duty of nominated directors to “shadow directors”. The assumptions and the idea of good corporate governance should be achieved in full as well as the control of the TNC.
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This paper analyzes definition of organized crime in Germany. Considering the fact that this crime type is not specified in German Criminal Code, author first presents theoretical and practical approaches. On the other hand, in article 129. of Criminal Code of Germany criminal offence of forming criminal organisations is defined. According to this article, whosoever forms an organisation the aims or activities of which are directed at the commission of offences or whosoever participates in such an organisation as a member, recruits members or supporters for it or supports it, shall be liable to imprisonment not exceeding five years or a fine. Criminal organization is not specified. Instead, it is left to be interpreted by the courts. In order to respect principle of legal certainty, it is very important to determinate concept of criminal organization. In this paper author also presents criminological aspect of organized crime in Germany, considering that already mentioned theoretical and practical approaches are dependant upon it’s phenomenological and etiological characteristics. Comparison of different definitions leads to a several conclusions. First, practical approach, based on determination of organized crime in 1990., and theoretical definitions do not specify this concept in the same way. Also, the difference can be seen between these two approaches and empirical data. According to conducted researches, organized crime in Germany can not be compared with Italian or American organized crime. Consequently, proposed theoretical and practical definitions are not congruent with existing organized crime in Germany. Necessary elements of criminal organisation, specified by the courts, also show difference between legal and all other analysed definitions.
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This research focuses on the Christian understanding of the notion of matrimony and the Christian understanding of the purpose of marriage. The reason why the Christian perceptions of these categories were chosen for research is that both sides of debate are either missing the totality of the argumentation pertaining to the notion of matrimony – more often than not having misconceptions on the Christian approach to the issue, or they are trying to question the validity of the opposition’s arguments using false or incomplete interpretations of the Christian understanding of the purpose of marriage. Conclusions which were reached through discussion are as follows: The Christian approach to gender differences is not trying to achieve gender equality by way of negating the existence of the differences, the Christian concept is based on parity in worth of both sexes in its calling; corporeal union is seen as one of the three aspects of marital intercourse, next to love and friendship, which cannot be treated as purpose of union – otherwise marriage can no longer be considered to be arranged in a Christian manner; procreation is not and cannot be the purpose of marriage, it is cross-bearing which can be fulfilled through progeny and even not having children; same-sex partners cannot become a single body in the Christian sense since they are not of heavenly origin and cannot be associated with freedom
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Subject of analysis of the article is one of the most important questions in modern legislation so called extended confiscation of proceeds of crime, which does not derive from a criminal offense as subject of criminal proceedings. The author analyze the most important issues related to this problem as well as international legal standards that have been used as the basis for the regulation of this issue into national legislation. In national legislation that can be regulated or by special law or under the Criminal Code and the Code of Criminal Procedure. The second solution was adopted in the legislation of Montenegro. The Criminal Code prescribes the offenses which can be applied to extended confiscation and the time period for which investigating the status and origin of property.The Code of Criminal Procedure regulates the issue of temporary confiscation in order to ensure the execution of the decision on confiscation of assets illegally acquired and question of permanent confiscation of illegally gained property. Especially interesting is the question of burden of proof on the defendant to prove the legal origin of the disputed property, and the question of how it is consistent with the presumption of innocence.
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This article is about the limits of the right to free speech. The first section provides a brief introduction to this topic, primarily in the context of the First Amendment to the U.S. Constitution. The second section describes the case of Chaplinsky v. New Hampshire, which was fundamental to the topic of this paper because the United States Supreme Court created the so-called “fighting words” doctrine based on it. In the next two sections, two court cases are presented that perfectly demonstrate the limits of the right to free speech in the United States: Snyder v. Phelps and Village of Skokie v. National Socialist Party of America. The fifth part shows the right to freedom of speech in the context of Polish civil, criminal, and constitutional law, as well as acts of international law binding on Poland. The last part is a short summary.
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The material presents the main aspects of the activities of criminal courts, in relation to the technological process of computerization, highlighting several areas of analysis, depending on the objectives achieved by the information technology applied in these activities. Thus, issues related to administrative and organizational matters are analysed, as well as those concerning the citation and communication of procedural acts, where the conclusions regarding the use of digitization are positive. However, issues directly related to the resolution of the case – evidence management, conclusions and debates - have been identified, including both positive aspects and aspects that may prejudice the fair process if digital techniques are fully relied upon. As for the possibility of the computer determining the outcome of the process exclusively, the conclusion reached is unequivocally negative.
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The state has the obligation to respect the right to life of its citizens, a right that also implies the right to provide quality medical care. In compliance with the principle of the sanctity of life, a doctor must exercise his skills to save lives and act only in the best interest of the patient. The European Court of Human Rights established in its jurisprudence that the refusal or inadequate provision of medical care in public, private hospitals or other medical service providers requires liability. The positive obligations under art. 2 of the Convention require states to provide regulations that oblige hospitals in the public or private sector to adopt appropriate measures to protect the lives of their patients and to establish an effective independent judicial system in order to identify causes and situations harmful to patients and to hold people accountable responsible.
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Ruling from ancient times on the protection but also on the chaining of human freedoms, The Roman law – often positioned upstream of the asperities and the saraband of social inequalities – has left its legal impressions on culture and, by implication, on human legislation and standard of living. Or it is precisely this multi-secular matrix projected on the cultures built on the conceptual pitches of Latinity that brings us to a double question, namely: to what extent and in what form the Romanic ideological-legal elements are found in the philosophy of thought and living of post-modern societies, including their standard of living and whether the right itself can be made responsible for our modern culture in general, including the quality of legislation and standard of living nowadays. In order to be able to respond to such a challenge, but also to identify solutions, we will try to capture the essential features of a long and complex evolutionary process of transposing Romance influences from the logical structure of the legal norm to social realities and vice versa and, on the other hand, we will combine the traits thus obtained with the results provided at the beginning of this millennium by sociological research of comparative cultures.
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The research paper focuses on the analysis of the legal situation of digital goods left in the virtual space by a deceased user of online services. As part of the above research, it was first necessary to try to define the concept of digital goods and make them legally qualified, as well as to consider the material and non-material value of these goods. Therefore, it was also necessary to indicate the most commonly used methods of dealing with the fate of digital goods left after the death of their original user, as well as considerations in the field of private international law in the aspect of the law applicable to contract and the law applicable to succession. The author also focuses on the legal solutions currently in force in the selected countries in the world, which then became the basis for the formulation of de lege ferenda postulates.
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The patents regime in healthcare sector and its tussle with right to public health is a long controversial saga. The crux of matter which is debated focuses upon providing patent rights that reduces the accessibility of cost-effective healthcare services, particularly in developing country. The counter point to this has remained that providing patent allows nurturing of research and development in the healthcare sector, which promotes the healthcare industry to take initiatives to tackle various health related problems and provide better treatment. According to the rival opinions presented in the aforesaid, the centre of the issue is health, therefore it is necessary to discuss the corresponding rights of citizens and duties of the government to make healthcare industry favourable.
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Women constitute half of the population in Kosovo, thus representing half of the voters in elections. Given the high importance of women’s representation in local governance, Kosovo has approved relevant legislation to guarantee gender equality at this level. The purpose of this study is to critically analyse Kosovo’s legislation on women’s political participation rights in the country’s municipalities. The analysis of Kosovo legislation on gender equality, international standards, and statistical data on women’s representation in local governance in Kosovo proves that women are underrepresented in municipal-level politics, with an average of 14.5% during the last twenty-three years, much lower than the gender quota in Kosovo and the world average of 36%. This is due to the non-sharmonisation of the electoral quota with the gender quota (50%), the non-implementation of Kosovo Law on Gender Equality, traditions, prejudice against women, and the reluctance of women to assume governing positions.
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Women constitute half of the population in Kosovo, thus representing half of the voters in elections. Given the high importance of women’s representation in local governance, Kosovo has approved relevant legislation to guarantee gender equality at this level. The purpose of this study is to critically analyse Kosovo’s legislation on women’s political participation rights in the country’s municipalities. The analysis of Kosovo legislation on gender equality, international standards, and statistical data on women’s representation in local governance in Kosovo proves that women are underrepresented in municipal-level politics, with an average of 14.5% during the last twenty-three years, much lower than the gender quota in Kosovo and the world average of 36%. This is due to the non-sharmonisation of the electoral quota with the gender quota (50%), the non-implementation of Kosovo Law on Gender Equality, traditions, prejudice against women, and the reluctance of women to assume governing positions.
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The subject of consideration is the right of the creditor to demand a flat-rate compensation for recovery costs from the debtor, established in the Act on Prevention of Excessive Delays in Commercial Transactions. Since its introduction into the Polish legal order, this right has given rise to significant interpretative doubts, particularly concerning the prerequisites for rendering the compensation immediately due and payable, the debtor’s ability to defend against this claim, and the issue of including the compensation in the costs of the lawsuit or in the value of the subject matter of the dispute in court proceedings. These doubts, in the author’s opinion, are largely due to the shortcomings of the legal regulation of compensation, which does not include in its scope many important issues, as well as its highly autonomous nature, which in turn prevents the analogous application of solutions concerning other legal institutions.
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The aim of the article is to present the issues related to the processing of sensitive data, including biometric data, in thecourse of scientific research and for the purpose of achieving the objectives of such research. This study indicates the purposesof scientific research, the legal grounds, standards of conduct, premises legalizing data processing and the rights of persons in thescope of processing their data. It is important to reconcile the protection of personal data with research challenges, especiallyrelated to the possibilities of using innovative technologies in order to effectively detect and fight various forms of crime.Thepublication discusses European regulations: Regulation 2016/679 of the European Parliament and of the Council of the EuropeanUnion of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movementof such data, and repealing Directive 95/46/WE and national provisions contained in the Act of 10 May 2018 on the protectionof personal data (Journal of Laws of 2019, item 1781). During the literature review a number of studies relating to the protectionof personal data was identified. The authors, in particular in monographs, analyse the issue of personal data protection in thecontext of data protection in the Polish criminal trial, in civil or educational cases. This publication focuses on one of theaspectsnot often discussed in scientific studies, which is the protection of personal data obtained for the purposes of scientific research.The publication aims to introduce the standards in force in the field of personal data protection in the context of empirical research.The issue is so complex that it requires in-depth discussion, especially since many researchers, taking up the challenge and effortof scientific research, have to face the problem of personal data protection, both for researchers and participants in the researchprocess. In view of this conclusion, it is reasonable to present in this publication the fundamental principles of conducting researchwhen it is necessary to obtain personal data in the course of research. The article discusses legal regulations and good practicesthat may constitute a specific compendium of knowledge for everyone who participates in research projects
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It has long been doubted whether the Romans knew the notion that we call recidivism in modern terminology, for which the Latin language lacks a nomen. However, the sources attest cases of aggravation of the punishment for those who repeat the same offence after a previous sentence or a coercive sanction. It is difficult therefore to deny the existence of the ‘thing’ that in the Roman legal system is closely related to the forms of procedure. It will be the jurists, especially in the Severan age, to identify the structural elements of the figure and the ratio for the harsher punitive treatment of the recidivist. The tendency in the Late Imperial age to consider that of recidivist a real subjective condition opens the way to the subsequent developments of modern criminal legal science.
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The article discusses the praecepta iuris, which are identified often as a principles of Roman law, and the concept of justice. They are presented in the most general theoretical plan, interpreted to the main institutes of Roman tort and criminal law.
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Criminal response to usury in Rome is found to be inextricably linked to the continuous infringements of interest-restraining regulations, together with the most varied juridical instruments that are in effect in civil life, depending on the socio-economic circumstances of each era. From the Republic on, the work of the curule councilmen imposing fines and the possibility (towards the end of the III century B.C.) of bringing a private action in quadruplum is noticeable. Later on, the little effectiveness of the councilmen's interventions was replaced with the per quaestiones procedure, which was put into effect during the first years of the Empire and which was also applied to the annona-related frauds. However, the fight against usurious loans during the Principate moves primarily toward civil life. People had to wait till the Dominate entered the scene to watch the criminal repression of illicit interests once again. Despicable considerations of the usurious crime are stressed, from Diocletian on, as well as the re-establishment of the quadruplum crime on the part of Theodosius. Finally, Justinian will embrace the Diocletian legislation, although he seems to emphasize the civil consequences of the usurae illicitae.
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The present research is devoted to tortious interference with contracts, laid down in art. 21, para. 2 of the Bulgarian Law of Obligations and Contracts. The author attempts to assess critically whether this particular tort is applicable in case of a breach of an anti-assignment clause. More specifically, the present research argues whether it is possible for the debtor to bring an action vis-à-vis the assignee (or any other third person) who knowingly induces the creditor to transfer their receivable at variance with the obligation to refrain from assigning the receivable. The comparative overview reveals that, while nominally possible, this action is not the most adequate means of legal protection that can be attributed to the consumer in case of a breach of an anti-assignment clause.
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