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Материјално обезбјеђење радника за случај незапослености као елемент права на рад у уставном систему Босне и Херцеговине

Author(s): Radislav Lale / Language(s): Serbian Publication Year: 0

The subject of this paper is the right of the unemployed workers on material protection (security) in the constitutional system of Bosnia and Herzegovina. It is one of the inseparable elements of the right to work, based on the compulsory social insurance. The author explains the legal notion of the risk of unemployment as one of the most complex social risks which affects or can affect wide circle of persons. The conclusion of the paper is that future, possible revision of the Constitution of Bosnia and Herzegovina should bring the explicit definition of the right to work as a fundamental principle of the labor and social law, including the right to material protection in the case of unemployment.

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Маргиналије уз радни текст Грађанског законика Републике Србије

Author(s): Gordana Stanković / Language(s): Serbian Publication Year: 0

Legislative work on the preparation of the Civil Legal Code of the Re¬public of Serbia, which started in December 2006, brings into discussion a question whether the future codex should possibly include norms which belong to the domain of civil procedure. From the view of legal systematic, the answer to this question is simple since civil law and civil process law are two separate branches of law belonging to different parts and fields of the legal system. Regardless of clear division which exists from the view of systematics of legal order be¬tween the civil material and civil process law, it is possible for the norms regulating civil-legal relations to be found in the process law, as well as the process norms to be found in the law arranging certain field of the civil law for various legislative or legal-political reasons. In the work, the author critically analyzes normative solutions from the existing laws regulating the civil law material and in the future codification of civil law, and which for various reasons include process regulations or by its own regulations non-critically directly go into the field of process law and cause unwanted and unexpected implications in the process area and points to the use of inadequate terminology of the civil procedure in certain legal texts. The author considers that during the future codification of civil law on one hand efforts should be put into the editors correctly completing their task and while editing material-legal norms they should take care of process implications of certain material-legal solutions, avoid the unnecessary going into the sphere of civil procedure, correctly legal-technically edit the material legal norms and while doing this take care of use of correct legal- technical terms from the sphere of civil procedure. On the other hand, efforts should be made for all the process rules to be standardized and included into the basic law regulating a corresponding field of the civil court procedure and in this way make conditions for the future codification of civil process law.

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Najnovije izmene u parničnom zakonodavstvu Republike Makedonije u domenu posebnih parničnih postupaka prema Noveli Zakona o parničnom postupku iz 2015. godine

Author(s): Arsen Janevski,Milka Rakočević / Language(s): Serbian Publication Year: 0

Subject matter of this article is the novelties regarding the separate civil proceedings in the Macedonian civil procedure system that were introduced by the Law on Amendments of the Civil Procedure Act from 2015. The article is focused on the elaboration and analysis of the new legislation regarding the small claims procedure, procedure for issuing a payment order and procedure in commercial disputes. The authors give an overview and critical review of certain legal solutions provided by the amendments to the Civil Procedure Act from 2015. The article particularly sets interest to the most important and at the same time the most arguable amendments in relation to the separate civil proceedings such as the introduction of the mandatory mediation in procedure in commercial disputes, considerable increase of the ratione valoris element in small claims procedure, issuance of court payment order, procedure regarding the objection against a notarial payment order, etc.

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Aktuelnosti pitanja naknađivanja nematerijalne štete

Author(s): Branko Morait / Language(s): Serbian Publication Year: 0

Constitutional predispositions have caused legal development of the post Dayton Bosnia and Herzegovina. Modernization and harmonization of civil law have been developing rapidly but it has stopped suddenly, because of the reduction of support from international community. Internal harmonization is affirmed less than harmonization of domestic law to EU acquis. At the moment, the equalization of the court praxis in civil law matters shows up as necessary precondition for establishing rule of law.

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Наследноправнта положба на брачниот партнер во современите законодавства

Author(s): Dejan Mickovik,Angel Ristov / Language(s): Macedonian Publication Year: 0

In modern legislations legal heirs shall be determined on the basis of kinship, marriage and other key factors related to the deceased. Today, unlike in the past, the importance of the marriage has increased in the succession. The main reason for the improvement of the inheritance position of the spouse are the changes in the marriage, family and family relationships arising from the transformations in the modern societies. These changes have a significant impact on the improvement of the inheritance position of the spouse in inheritance law reforms.

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Lične službenosti

Author(s): Duško Medić / Language(s): Serbian Publication Year: 0

Law on the Essential Property Relations of the former socialist Yugoslavia did not standardize personal usufructs, but the possibility of their existence was predicted. This was a consequence of the opinion that the individual usufruct does not represent a basic property-legal relation. Proprietary Law of the Republika Srpska regulates them in detail and in modern way, which is important, since the change of property relations and economical market conditions allow the application of those usufructs effectual in practice. That way their re(affirmation) in our legal system as individual usufructs and primarily their fruitfulness can have a multiple function and wide social importance. Private property has acquired a justified place in our society again, and for that reason we can see further enlargement of the aforementioned usufructs. Individual usufruct has a very wide range of appliance. Practical application of the aforesaid usufructs facilitates their implementation and accomplishment of the important goals in private law (especially in family and hereditary relations) and in certain cases in the pubic law.

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Institut nužnog nasljedstva : Federacija Bosne i Hercegovine, versus Republika Srpska

Author(s): Boris Krešić / Language(s): Serbian Publication Year: 0

Adoption of the “new” Inheritance Acts in Bosnia and Herzegovina led to different solutions regarding the institution of necessary parts of inheritance. Inheritance Act in the Republic of Srpska does not define registered partner as successor, while the Federation of Bosnia and Herzegovina Act on Inheritance defined a child from partial adoption as a relative necessary successor. Both laws in a uniform manner determine the size of the necessary parts of inheritance in a way that a necessary part of the absolute necessary successors is one half of what they would inherit by the law, while a necessary part of the relative necessary heirs is one third of what would be inherited by the law. Institution of exclusion from the necessary inherited share, in terms of specifying the conditions for exclusion is not the same in both acts. The legislator in RS does not recognize the perpetration of a crime against the integrity of Bosnia and Herzegovina or humanity and values protected by international law as conditions for the exclusion. Furthermore, the lack of work and honest life, as conditions for exclusion must be met cumulatively. The difference that exists in terms of exclusion is that, according to FBH Act, the indication of the basis for the exclusion is considered a condition of validity of the exclusion in the Federation. Deprivation of necessary parts of inheritance is also mostly identically regulated in both laws. The difference exists in terms of conditions to be met by an adult person on whose behalf a deprivation is executed. Both laws continue to govern deprivation analogously, according to provisions of the law relating to the exclusion from the necessary parts of inheritance which can lead to inadequate solutions in practice. A particular problem in the Act of the Federation of Bosnia and Herzegovina reflects the institutions of deprivation or exclusion through a marriage contract. The adoption of new laws on inheritance is not contributing to better inheritance and legal position of necessary heirs, but rather opened new questions and set new differences between entity laws.

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Judicial Activism: A Catalyst to Facilitate Sustainable Abstraction of Groundwater Resources of Bangladesh?

Author(s): Mohammad Sohidul Islam / Language(s): English Publication Year: 0

Unsustainable groundwater abstraction is now an acknowledged problem in Bangladesh. Current water laws, policies, and institutions are widely recognized to have failed in addressing this problem effectively and efficiently. Moreover, the relevant laws and policies are themselves defective and deficient in controlling the free-style extraction of this precious resource, and compliance is very weak. The institutions responsible for enforcing the legal regulation of groundwater abstraction are also weak, fragmented and patchy. Against this backdrop, this paper investigates whether judicial activism could be one of the avenues to promote the sustainable abstraction of groundwater resources of Bangladesh. The Supreme Court of Bangladesh could be a catalyst in facilitating, though not ensuring, the sustainable abstraction of groundwater resources, not least it could declare laws as well as promote compliance and enforcement by applying its unique judicial activism tool. The Court has made a laudable contribution to the protection of the environment. Despite the intrinsic connectivity of water (both surface and ground) with environment, Court’s activism in relation to this resource is very poor and limited, and this is more true in relation to the protection of groundwater resources. In fact, till date the Court has not explicitly dealt with the groundwater depletion issue, and as such judicial activism has not found its way to tackle this menace.

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The Legal Regime of the Right to Private Property in Romania

Author(s): Ciprian Raul Romițan / Language(s): English Publication Year: 0

In Romania, the right of the titleholder to possess, use and dispose of an asset in an exclusive, absolute and perpetual manner is guaranteed and protected equally by the law, regardless of the titleholder. In this regard, both the Constitution of Romania and the Civil Code and numerous legislative acts adopted after the December 1989 Revolution regulate private property. Also, given that the right to property is one of the fundamental human rights, in addition to the internal legal regulations, one must also take into account the international treaties and conventions ratified by Romania, such as the European Convention on Human Rights and Fundamental Freedoms and its additional Protocol no. 1 which states that “no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”. The study presents an analysis of how the Romanian law regulates one of the most important and ample real rights, namely the right to private property which is also a full right because the owner has full powers over his asset.

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Accounting Records as Evidence in Civil Litigation in the Republic of Bulgaria

Author(s): Atanas Ivanov / Language(s): English Publication Year: 0

Accounting record is a document, and the document is evidence which is necessary to prove real past facts. Considering the difference between the moment of adjudgement and the moment of realization of the facts relevant for the dispute, it is necessary to establish these facts through their sources – namely, through evidence. The document is taken as an item on which a statement of specific facts is materialized through written or electronic signs. Legal meaning gives reference of the document – it is not the document itself which is assessed, but whether the document can be used as evidence in a specific case. That is why, it does not make any difference whether the statement is legally relevant or not, and what does not make any difference with the legally relevant statement is its type.

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Legal Regime of the Right of Superficies in Romania

Author(s): Ciprian Raul Romițan / Language(s): English Publication Year: 0

In Romanian law, the right of superficies has not known a legal regulation before passing the Law no 287/2009 on Civil Code, this one being acknowledged only by way of doctrine and jurisprudence. The right of superficies consists in the right of ownership which a person has over the construction from the land belonging to another one. As one will notice from our study, in case of the right of superficies, two categories of rights overlap, as we the Romanian courts of law have also acknowledged, namely: on the one hand, the constructor’s right of ownership over the construction and his right of use over the land on which the construction is placed; on the other hand, the right of the owner of the land on which the construction is placed to claim from the constructor to use the land on which the construction is found, according to the destination to which it is forced to pay also, if so agreed, a proper compensation for the use of that land. Therefore, the right of superficies is a beneficial right of the right of ownership of the land owner on which the construction is built by detaching from the legal content thereof of the attributes of possession and use, which are afterwards awarded to the constructor.

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REFLECȚII CU PRIVIRE LA TRANSMISIUNEA SUCCESORALĂ ȘI CARACTERELE SALE JURIDICE

Author(s): Ilioara Genoiu,Bogdan Patrascu / Language(s): Romanian Publication Year: 0

The subject of our communication is, in essence, the succession transmission, an institution present in all successions works and which involves yet many aspects of novelty. We are trying to present, here, some of these aspects. The whole matter of inheritance right, although it is a classic segment of civil law, still has unpredictable reserves of "freshness”, which urge research, which offers new perspectives of approach.

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CÂTEVA ASPECTE PRIVIND ROLUL JURISPRUDENȚEI ÎN EXERCITAREA AUTORITĂȚII PĂRINTEȘTI ÎN CAZ DE DIVORȚ

Author(s): Mihaela-Gabriela Berindei / Language(s): Romanian Publication Year: 0

The role of jurisprudence in the exercise of parental authority in the event of divorce plays a particularly important role in the life of the minor child. Through this work, we have tried to highlight the child’s best interest, which must be taken into consideration in all decisions that concern him, regardless of whether they are taken by parents or authorities. The theme of the child’s home is at the centre of intense doctrinal discussion and creates non-unitary jurisprudential solutions. In the states where the alternate residence was set as a means of establishing the child’s home to each of the parents, the solutions given by the Supreme Court were and remain controversial.

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LOCUINȚA COPILULUI VERSUS RELAȚII PERSONALE EXTINSE

Author(s): Cristiana Mihaela Crăciunescu / Language(s): Romanian Publication Year: 0

The general principle of the Romanian legislation is that both parents have the right to equally exercise parental authority. A separation often generates conflicts regarding the means by which each parent can exercise their rights and fulfill their obligations towards the child. The fruit of discord lies in establishing the child’s dwelling, which decisively influences the child’s relationship with both of the parents. The parent whose home had not been established as the child’s dwelling can efficiently involve in the latter’s life through extended childcare, established in the form of a personal relationships schedule. The conditions under which this personal relationship schedule can be agreed by parents or established by the court are being decided considering, above all, the best interest of the child.

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DREPTUL LA DEMNITATE. O PERSPECTIVĂ JURISPRUDENŢIALĂ

Author(s): Izabela Bratiloveanu / Language(s): Romanian Publication Year: 0

As a novelty for a Romanian Civil Code, as stated in the Explanatory Memorandum, "A special title (Title V, Book I) is devoted to the protection of personal non-property rights by specific legal means", or the personality rights occupy a central place within the category of personal non-property rights of the natural persons. With the drafting of art. 58 Civil Code, the Romanian legislator expressly nominates the right to dignity and includes it in the list of personality rights, through art. 72 par. (2) Civil Code clarifying the content of this right by referring to the honor and the reputation of the person. Any prejudice brought to the right to dignity makes the victim feel moral (psychic) suffering and expose her to the risk of exclusion from the social, professional and family sphere. Our study presents an examination of the jurisprudence of the Romanian courts in order to outline trends and guidelines in the matter of the right to dignity.

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DREPTUL LA VIAŢĂ PRIVATĂ. CONTURAREA UNOR NOŢIUNI CA URMARE A JURISPRUDENŢEI C.E.D.O. ŞI C.J.U.E.

Author(s): Adrian-Milutin Truichici,Luiza Neagu / Language(s): Romanian Publication Year: 0

The concepts of "private life" and "subject of public interest" are syntagms frequently encountered in the case law of C.E.D.O. and C.J.U.E., with European courts offering practically a loosening, an implementation of these notions. Subsequently, these important decisions in the field of non-patrimonial rights protection constituted starting points for the Romanian legislator. In the Old Romanian Civil Code, non-patrimonial rights were not regulated, although in the case law of C.E.D.O. and C.J.U.E. they were present and of great interest. To meet the needs of a dynamic society, the Romanian legislature brought a novelty element in the New Civil Code, which entered into force on 1 October 2011, regulating for the first time the rights of personality. Article 58 of the New Civil Code explicitly enshrines, for the first time in Romanian law, the rights of personality. This novelty is the clear proof that jurisprudence directly influences the right. Thus, the present law represents, in particular cases, the example of the rights of personality, a creation of the judge, later legalized.

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MANIFESTĂRI JURISPRUDENŢIALE ACTUALE ÎN APLICAREA PRINCIPIULUI AUTONOMIEI DE VOINŢĂ

Author(s): Andreea Mariana Sima / Language(s): Romanian Publication Year: 0

The legislative instability facing the current Romanian law system has led to a series of continuing challenges in the application of the rule of law, so that jurisprudence created around new legal institutions has gained new valences, especially for law practitioners who feel obliged to pave the way and procedure of applying new legal provisions.Against this background, jurisprudence, a secondary source of law that has entered into obscurity, has regained its vitality and redefined a means of guiding the legal visions in the current legislative cobweb.Reaffirmation of case law as a source of law does not occur at random, but it is also supported by a technological factor that has facilitated access to information, nowadays access to decisions made by national and international courts being much easier and, consequently, the spreading of the way in which legal texts are applied or interpreted.In addition, as the Romanian state has been in a long transition period, through the prerogative of interpreting legal norms, judicial practice has succeeded in making possible the symbiosis between the new social realities and some unchanged legal provisions.

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LIPSA CARACTERULUI CERT AL CREANȚEI CUPRINSE ÎNTR-O CLAUZĂ PENALĂ DINTR-UN ACT AUTENTIFICAT DE NOTARUL PUBLIC

Author(s): Vlad-Victor Ochea / Language(s): Romanian Publication Year: 0

This study aims to demonstrate that the claim to an amount of money agreed upon via a penalty clause inserted in a document authenticated by a notary public lacks its certainty and that document is not enforceable. The analysis starts from the provisions of art. 638 par. (1) pt. 2, art. 639 par. (1), art. 632 par. (1) and art. 663 of the Romanian Civil Procedure Code and from those of art. 101 par. (1) of the Law on notary public and notary public activity no. 36/1995 and from the jurisprudence, which revealed this legal thesis. The certainty of the claim does not exist, because it was not previously settled via a ruling of the court of justice that the conditions of the contractual civil liability were fulfilled – the unjustified or wrongful non-performance of an obligation, notice of default and the damage. Only the fulfilment of these conditions gives way to the indemnification for damages, including by use of the penalty clause. The same applies to the earnest clause, when it serves as a penalty.

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APLICAREA DE CĂTRE INSTANȚELE JUDECĂTOREȘTI A MĂSURILOR DE RESTITUIRE ÎN NATURĂ ȘI A MĂSURILOR REPARATORII REFERITOR LA IMOBILELE PRELUATE ABUZIV DE LA ACADEMIA ROMÂNĂ

Author(s): Dumitru Dinu / Language(s): Romanian Publication Year: 0

By the Decision of the Council of Ministers no. 1486 of 08 November 1948, published in the Official Gazette no. 260 of 08 November 1948, the Romanian Academy was abusively dispossessed of 71 urban assets, lands and buildings, 30 rural, agricultural and forest assets, 31 assets not taken possession by the Academy of the People’s Republic of Romania, other important deeds and securities. The long and difficult process of recovery of some of these assets began, for the real property represented by lands on the basis of Law no. 18/1991, Law no. 169/1997, Law no. 1/2000, Law no. 247/2005 and, for the real property represented by lands and buildings, on the basis of Law no. 10/2001, amended by Law no. 165/2013, as well as on the basis of Law no. 752/2001, supplemented by Law no. 564/2004. The major difficulties faced by the Romanian Academy in recovering, at least partially, its real patrimony, were caused by the application by the courts of law of the provisions of Art. 31 para. 1 and of Art. 33 para. 2 of the Government Emergency Ordinance no. 80/2013, in visible antimony with the incidence of the special norm laid down in Art. 50 para. 1 of Law no. 10/2001, which norm derogates from the common law provisions in the matter of the duty stamp, as well as by the discretionary application of the provisions of Art. 1 paras. 1 and 2, Art. 4, Art. 5, Art. 6, Art. 7 para. 1, Art. 8 paras. 1 and 2 item a), Art. 32 of Law no. 65/2013 by the Local Land Fund Commissions.

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RĂSPUNDEREA CIVILĂ PENTRU DAUNE MORALE ÎN REGLEMENTAREA ACTUALULUI COD CIVIL

Author(s): Laura Manea / Language(s): Romanian Publication Year: 0

Legal institution with a leading role in affirming and maintaining social order, from the ancient society to this date, civil liability is a form of legal liability, consisting in a legal obligation under which a person is obliged to repair the damage caused to another person through the action or inaction or, in the cases provided by law, the damage of which a causal relation is established. Moral or non-patrimonial damages are the object of civil liability in tort field since Roman law, by the so-called "private offenses", continuing in the same regime also in the medieval law, a period of time when the offences were combined with sins, reparation of non-pecuniary damage along with patrimonial damage, in some cases, be subject to all civil tort liability. What differentiates in time the liability for moral damages, having its origin in the principle of law which is at the basis of the obligational relation, is the nature of the reparation, because if in Roman law the sanction consisted in the application of a fine (actio in injuriarum), in the present the pecuniary reparation seeks to cover the psychological and/or physical discomfort caused by the illicit deed.

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