CURRENT ISSUEIssue 3/2023
Safeguarding Individual and Collective Employee Rights in the Event of a Transfer of Undertakings
Author:
Tijana R. Kovačević
University of Belgrade
ABSTRACT: This paper meticulously analyzes the mechanisms for safeguarding the individual and collective rights of employees in the event of a transfer to a new employer. In this context, the protection of employees is facilitated through the rules governing the automatic transfer of employment contracts from the “old” to the “new” employer while maintaining identical working conditions. Consequently, the status of employees remains unaffected irrespective of any alterations in the activities undertaken by the new employer and decisions concerning the company transfer. In this sense, the assurance of job security serves as a counterbalance to the managerial authority of the employer and the freedom of entrepreneurship. The essence of the principle of employment security is encapsulated in the prohibition of initiating dismissals by the employer in the event of structural changes. Accordingly, the successor employer assumes the rights and obligations of the predecessor while preserving the legal status, thereby safeguarding the employees impacted by the transfer. Furthermore, legal continuity remains unbroken, even in terms of rights and obligations emanating from collective labor agreements, which continue to produce legal effects even under the successor employer.
Keywords: transfer of undertakings, transfer of company, employment contract
CURRENT ISSUEIssue 3/2023
Working Outside the Employer’s Premises. Legal Regime and Organizational Challenges During and After the Pandemic of the Infectious Disease Covid-19
Author:
Andrijana Ristić
University of Belgrade
ABSTRACT: The outbreak of the epidemic of the infectious disease Covid-19 has resulted in greater relevance for working outside an employer’s premises all around the world. As, until then, this way of organizing work was not so frequent, due to the cautious attitude of employers and employees towards it, the regulation of this issue was not given adequate attention at the domestic and international levels. In this paper, the author will try to answer the question of whether the attitudes of employees and employers towards this manner of organizing work have changed after the emergence of extraordinary epidemiological circumstances and whether, as a result, it will become more frequent in the future. In addition, the author will try to determine whether work outside the employer’s premises is adequately regulated in the Republic of Serbia, as well as whether and which issues need to be more comprehensively regulated in light of its increased importance. To obtain answers to the abovementioned questions, the author conducted a survey with employees who, due to the introduction of the state of emergency in the Republic of Serbia, began to work outside the employer’s premises. The stated results will be evaluated in light of the results of surveys conducted at the level of the European Union, while the regulations regarding this way of organizing work will be considered via an analysis of laws and by-laws that regulate this issue in the Republic of Serbia.
Keywords: work outside the employer’s premises, infectious disease Covid-19, workplace, work from home, remote work
CURRENT ISSUEIssue 3/2023
The Relationship Between Disciplinary and Dismissal Procedures in the Labor Law of the Republic of Serbia
Author:
Milica Midžović
University of Pristina
ABSTRACT: In the labor law of the Republic of Serbia, in the general employment regime, the institute of disciplinary liability is regulated within the institute of termination of employment, i.e., legal provisions on termination of employment contracts due to violation of work obligations and non-compliance with work discipline. However, the process of establishing employees’ liability for severe breaches of work obligations and failure to adhere to work discipline during the employment contract termination notice period may not constitute an adequate solution. Firstly, this is due to the relevant regulations not addressing, even at a fundamental level, the specifics of the disciplinary procedure. Instead, they establish liability for work obligation breaches and failure to comply with work discipline within the termination procedure, where disciplinary actions are also determined and applied. Given that the mechanisms that limit the abuse of the employer’s disciplinary powers are significantly weakened, the author points out the necessity of re-examining the concept of disciplinary liability and disciplinary procedure. Although disciplinary and dismissal procedures have certain similarities, they are two distinct labor law institutes with different objectives. By applying the normative and comparative legal methods, and analyzing the results obtained through empirical research and case law, the author will present the observed problems related to the current regulation of these institutes and propose potential solutions de lege ferenda.
Keywords: breach of work obligation, non-compliance with work discipline, disciplinary liability, disciplinary procedure, dismissal procedure
CURRENT ISSUEIssue 3/2023
The Importance of the Principle of Equal Treatment of Men and Women in European Union Law
Author:
Jovana Rajić Ćalić
Institute of Comparative Law in Belgrade
ABSTRACT: The issue of equal treatment of men and women represents an inexhaustible topic for research. Since the problem of gender-based discrimination is closely related to the establishment of equal treatment, the investigation of this topic should begin at the supranational level, as is the system of law in the European Union. The origin and development of the principle of equal treatment within the community of European states was gradual, leaving room for further refinements. However, the normative framework that was set was not accompanied by practical changes in providing equal opportunities for women in employment and at work, hence scholars continue to deal with the phenomenon of the gender pay gap, job segregation, the glass ceiling, and the problem of reconciling family and professional life, as a consequence of the unequal position of men and women in society. This paper examines the origin and development of the principle of equal treatment within the European Union, with the initial hypothesis that even the current normative framework is not capable of preventing the consequences of gender-based discrimination that exist in practice.
Keywords: equal treatment, gender equality, European Union law, prohibition of discrimination
CURRENT ISSUEIssue 3/2023
Substantive Criminal Law of the Medicrime Convention and the Criminal Legislature of Bosnia and Herzegovina. The Ratio of Harmony and Disharmony
Author:
Filip Novaković
The Institution of Human Rights Ombudsman of Bosnia and Herzegovina
ABSTRACT: The trade in counterfeit medical products is a growing global crime industry (especially in the domain of organized crime), which represents a big threat to natural persons, i.e., patients, but also to healthcare systems. The circulation and sale of counterfeit medical products takes place through unregulated channels (on the side of the road, in a marketplace, online, or even in bars, nightclubs or bakeries). The Convention of the Council of Europe on counterfeit medical products and other illegal acts that include threats to public health represents the first international agreement of that kind, that is, an international instrument that establishes a legal framework for the fight against this criminal black market. It criminalizes certain actions, prescribes certain provisions related to the criminal justice procedure, protects the rights of victims and improves national and international cooperation in criminal justice matters.
Keywords: counterfeit medical products, transnational crime, prohibition against discrimination, the responsibilities of legal persons, Council of Europe
CURRENT ISSUEIssue 3/2023
Administrative, Institutional and Political Budget Control. Theoretical Aspects with a Short Overview of some Positive Law Solutions of the Republic of Serbia
Author:
Stefan Milić
Faculty of Law, University of Niš
ABSTRACT: The modern state plays a significant role in securing public resources in order to provide them to all of its citizens. The state needs to secure a certain amount of income to perform this function. The institution that best exemplifies that manner in which the state acquires and directs its income is the budget. Given that a budget sets forth the financial plans for a specific period in detail, the process of creating and controlling a budget is very significant. An efficient mechanism of controlling the creation and implementation of the budget needs to exist in order to ensure that the acquired state income is managed to the benefit of the citizens. Budget control can be performed by administrative bodies, independent bodies and the parliament, as the body that adopts the budget and the final financial statement. Thus, the subject of this paper is administrative, institutional and political budget control. Throughout the paper, the author will also provide a brief overview of some positive law solutions from the Republic of Serbia. Administrative control is based on the hierarchical principle, institutional control is performed by auditing institutions, while political control is conducted by the parliament, as the highest representative body.
Keywords: budget, budget control, administrative budget control, state audit institution
CURRENT ISSUEIssue 3/2023
Criteria for Assessing the Best Interests of the Child in Proceedings for the Protection of Children’s Rights
Author:
Ljubica Mihajlović
Basic Court in Niš, Faculty of Law in Niš
ABSTRACT: The principle of the best interests of the child is one of the four fundamental guiding principles underlying the system for the protection of children’s rights under the auspices of the United Nations and the Convention on the Rights of the Child (CRC). It constitutes a general principle, a flexible concept/term to which legal practitioners attribute specific meaning in each unique case. The Family Law of the Republic of Serbia and the Convention on the Rights of the Child both lack a definition of this principle, leaving ample room for assessing the child’s best interests in concreto, i.e., in the scope of a specific case. In this regard, legal practitioners find valuable guidance in General Comment No. 14 (2013) by the Committee on the Rights of the Child, which clarifies the concept of the child’s best interests. This document establishes objective criteria as guiding principles all decision-makers should adhere to in in matters concerning children. In addition to examining the prevalent perspectives within legal theory and regulations concerning criteria for assessing a child’s best interests, this paper will also explore predominant viewpoints found in the judicial practice within the legal system of the Republic of Serbia in this domain.
Keywords: the principle of the best interests of the child, objective criteria, legal proceeding
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Issue 2/2023
The Development of the Understanding of Equal Consideration Through the Rules of Just Price From Antiquity to the Beginning of the 20th Century
Author:
Darija Martinov , Ph.D.
Singidunum University, Novi Sad
ABSTRACT: The origin and subsequent development of the principle of equal consideration in contract law are closely related to the rules on just price. This paper traces the evolution of the just price concept from antiquity, including the principles of Roman law, medieval interpretations, and its application in canon law, to the first codifications in the 19th and 20th centuries. We will demonstrate how the understanding of just price has changed, under what conditions it should be applied, whether it should be legislatively regulated and to what extent, and how this legal institution illustrates and safeguards the principle of equal consideration in contract law. Furthermore, we will consider the entanglement of this institution with the institution of laesio enormis, whose evolution has significantly influenced the formation of the just price concept as we know it today.
Keywords: the principle of equal consideration, just price, the principle of fairness, contract law, the principle of equality of mutual benefit, laesio enormis, Aristotle, Roman law, medieval law, modern law
Issue 2/2023
Consent to Contract
Author:
Ivana Radomirović
University of Belgrade, Institute of Comparative Law
ABSTRACT: The topic of this paper is the consent of a third party to the conclusion of a contract. The current lack of interest of legal science in the institution of third-party consent to contract is a consequence of its scattered normative regulation. Considering third-party consent is required often, in numerous and diverse cases, it is sporadically regulated in parts of regulations governing these contracts. Given the large number of cases where third-party consent to contract is required, this institution is sporadically regulated in parts of regulations governing individual contracts for which consent is required. Therefore, this paper examines contracts for which it is necessary to obtain third-party consent and which most often appear in legal transactions, such as contracts involving persons with limited business capacity, as well as consent required for the conclusion of sublease and sublicense contracts. This paper also includes an analysis of the current regulation of consent in the legislation of the Republic of Serbia, as well as an analysis of issues related to the form, legal nature, and consequences of the absence of third-party consent. The paper also presents a comparative legal analysis of solutions contained in the legislation of Germany, France, and Switzerland.
Keywords: third-party consent to contract, contract validity, permit, approval
Issue 2/2023
Actio Familiae Erciscundae in the Gortyn Law Code and the Law of the Twelve Tables
Author:
Milica Ristić
Faculty of Law, University of Banja Luka
ABSTRACT:In this paper, the author examines the relationship between Greek and Roman legal traditions through the analysis of actio familiae erciscundae – a Roman legal action seeking the partition of inheritance (division of family property), which can be found both in the Gortyn Law Code and the Law of the Twelve Tables. Several scientific research methods were used in the paper, with the comparative legal research method being the most represented one, due to the nature of the subject at hand. Using comparative legal research, the author will try to answer the question of whether the actio familiae erciscundae legal action can be marked as a kind of legal transplant and whether it is possible to come to some more general conclusions about the degree of legal transplantation between the two great ancient legal systems from this relationship. To provide the most comprehensive answer to this question, the historical method (historical approach to legal research) was also used in the paper to better understand the socio-political context of the given time, along with the linguistic method to correctly interpret the true sense and meaning of the actio familiae erciscundae action. Although, at first glance, the existence of this particular legal action in these two large ancient legal systems indicates certain similarities, a deeper analysis of the nature of family union and property in Roman and Greek society reveals some key differences presented in the paper, based on which the author concludes that the degree of Greek influence on Roman law is somewhat overrated and overemphasized.
Keywords: аctio familiae erciscundae, legal action for division of family property, the Gortyn Law Code, the Law of the Twelve Tables, consortium
Issue 2/2023
The Relationship Between Condictio and Version in Rem in Modern Law
Author:
Aleksandra Stefanović
Faculty of Law, University of Belgrade
ABSTRACT: In this paper, the author analyses a lawsuit for unjust enrichment through the prism of two institutes: condictio and actio de in rem verso. The origin of these two notions is linked to Roman law, although their essence has been drastically changed in modern law. It is necessary to determine them in relation to other lawsuits in order to further clarify the boundaries of these institutes through negative definitions as a preliminary step in this presentation. It is necessary to determine their mutual similarities and differences, as well as different understandings of the institutes, depending on the point of view of the legal system in terms of regulating the lawsuit for unjust enrichment, in order to adequately compare them. Comparative law and dogmatic methods were used in the paper.
Keywords: condictio, actio de in rem verso, relationship, lawsuit, statute of limitations
Issue 2/2023
The Basic Principle of Sincere Cooperation in the Law of the European Union
Author:
Radmila Dragišić, Ma
Government of the Republika Srpska, Bosnia and Herzegovina
ABSTRACT: Although it is somewhat wider in scope by its character than the other basic principles that regulate the relationship between the law of the European Union and the domestic law of Member States, the principle of loyal or, according to the Lisbon solutions, “sincere” cooperation represents one of central definitive and developmental building elements on which the legal order of this European organization rests. Thus, the focus of this article is the notion and definition of this principle, its genesis, as well as the scope of its application in relation to directives as formal sources of EU law; the positions held by the Court of Justice of the European Union contributed the most to this analysis. The research utilized analytical and synthetical methods, with content analysis and historical-comparative analysis taking the centre stage. The article ends with concluding remarks, where the most interesting ones are those that contribute to the argument that the principle of sincere cooperation belongs to the category of tools via which national difference could be lessened in order to achieve the goals of the European organization and that the presupposition for this to happen is, among other factors, to remove the malformations that exist in the relationship between the principle of sincere cooperation and the directive as a source of secondary law of the European Union.
Keywords: European Union law, domestic law of Member States, basic legal principles, the basic legal principle of sincere cooperation, case law of the Court of Justice of the European Union
Issue 2/2023
The Position of the Defense Counsel in Extradition Proceedings in the Republic of Serbia
Author:
Mirsen Alibašić
Faculty of Law, University of Belgrade
ABSTRACT: Extradition or delivery of a person who is accused or convicted is a legal process that enables the conduct of criminal proceedings and the execution of criminal sanctions against them in another country. Given that the process of extraditing the accused or convicted is regulated by law, the question of the position of the defense counsel in this process arises. By applying the normative method in this paper, through the analysis of statutory provisions and provisions of international treaties, the position of the defense counsel in extradition proceedings in the Republic of Serbia has been systematically presented, that is, their rights, duties, and powers at every stage of these proceedings with a critical overview of certain legal solutions. Furthermore, international standards related to the role and activities of the Committee against Torture and the European Court of Human Rights regarding the regulation and implementation of extradition proceedings and the position of the defense counsel in these proceedings are presented.
Keywords: defense counsel, lawyer, extradition, surrender, handover, criminal proceedings
Issue 2/2023
A Look at the Litigation in COVID-19 Medical Cases. Foreign Case Law
Author:
Hajrija Mujović, Ph.D.
Faculty of Law, University of Belgrade
ABSTRACT: This article provides a look at court cases with a medical background that emerged as a consequence of the COVID-19 pandemic. The majority of cases were started or finished as civil lawsuits. The cases are unique and they testify of disputes founded on different bases and forms of damages. They come from foreign case law, primarily from the US and European countries. The cases are different from one another and they usually concern access to healthcare, preventive measures, testing, emergency, and other conditions related to the work of specialist services, etc. The crisis that has arisen certainly cannot change the existing legal standards and other rules related to the responsibility of healthcare institutions and their employees. The crisis does not have that power, but it does bring certain specificities stemming from diverse situations. This is evidenced by the examples from the most recent case law. In order to ensure whether physicians and other medical staff have committed an error, the court must take into account the concrete working conditions of each of them in the context of the pandemic. Healthcare professionals are facing unusual risks related to the tasks they are being assigned. The existing legal regime of responsibility in healthcare provides some answers, but it is not certain that all the situations that have arisen from the healthcare crisis can be analyzed in the same way, especially due to the crisis situation and the dangers in which medical staff had to act.
Keywords: public health crisis, Covid-19 litigation, medical damages, court decisions, foreign case law
Issue 2/2023
Analysis of the Degree of Legal Independence of the Croatian National Bank and the National Bank of the Republic of North Macedonia
Author:
Mirjana Mlađenović
National Bank of Serbia
ABSTRACT: The stability of each country’s monetary system depends on the quality of operations of its central bank, as one of the most important institutions. Due to their great importance, central banks hold a special place in scientific analysis. For a central bank to successfully achieve its objectives, it has to operate independently of the executive and legislative powers. Through content analysis and the comparative method, this paper analyzes and compares different parameters and indices measuring the independence of the central banks of the Republic of Croatia and the Republic of North Macedonia. Considering that the independence of a central bank is inextricably linked with its credibility, this paper conducts research that answers the question – what is the level of legal independence of the Croatian National Bank and the National Bank of the Republic of North Macedonia? It can be said that, in the last decade, both the legal and actual independence of these central banks has reached its peak, but a certain degree of political dependence is still noticeable. There are certain differences in terms of political influence from country to country, but in any case, the syndrome of political dependence in former Yugoslav countries when compared to developed countries is extremely recognizable. The Republic of Croatia, as a member of the European Union, had to harmonize its laws on this issue, so it can be said that there are certain differences compared to other countries in this region. Central banks in countries that once belonged to the same communist bloc, and which today have different statuses in relation to the European Union, are excellent examples for analyzing the degree of operational independence in relation to state power. The status of the central bank in a certain national and economic system depends on the legislation of that country, i.e., the constitutional norms and laws governing the central bank.
Keywords: Croatian National Bank, National Bank of the Republic of North Macedonia, independence of central banks, legislative power, executive power, Cukierman Index
Issue 2/2023
Unexpected Discriminatory and Other Provisions in the Criminal Procedure Code That Violate Human Rights
Author:
Dimitrije Đukić
Bar Association of Vojvodina Ph.D. student at the Faculty of Law, University of Novi Sad