HISTORY
The Glasnik of the Bar Association of Vojvodina was founded as a professional journal on June 1st 1928 by the Bar Association in Novi Sad, currently the Bar Association of Vojvodina. It is one of the oldest legal journals not only in Serbia, but in the region of the former Yugoslavia, which has been continually published. Since 1981 it has been classified as a journal of legal theory and practice. In the first half of 1996 it established criteria that apply to the rank of scientific publications, while since 2004 it has had the status of a scientific journal, in accordance with the criteria set by the Ministry of Science of the Republic of Serbia. The journal publishes original scientific articles, discussions, legal essays, case studies from the history of law, book reviews, texts which relate to the legal practice and reports on the work of the Bar Association of Vojvodina. The Glasnik primarily publishes legal scholars, professors and assistant professors form faculties of law, together with lawyers and judges, as well as other legal experts, but also experts whose practice relates to law. The journal is published quarterly.
CURRENT ISSUEIssue 3/2020
Committing the most dangerous convicts to serve prison sentences
Author: Ivan D. Milić, Ph.D.
Faculty of Law, University in Novi Sad
ABSTRACT
There are more than thirty penal institutions in the Republic of Serbia in which persons deprived of liberty “reside” due to different reasons as prescribed by law. A convicted person is committed to serve a prison sentence after the final court judgement. This is the rule, however, there is an exception. The position of a convict while serving a prison sentence depends on the type of penal institution in which the convict serves the sentence. There are many circumstances prescribed by law that determine to which penal institutions a convict will be committed to. Since 2009, there have been special rules on serving prison sentences for a certain category of convicts in the Republic of Serbia. This is when the Law on the Enforcement of the Prison Sentence for Criminal Offenses of Organised Crime was enacted. The author focuses on the committal of the most dangerous convicts to serving prison sentences. In this regard, the author points out who the most dangerous convicts are, where they serve the prison sentence, and how the procedure of committing the convict to serve the sentence is organised.
Keywords: convict, referring, court, prison sentence, organised crime, Special Department.
CURRENT ISSUEIssue 3/2020
Personal data protection from the criminal law perspective
Authors:
Miloš B. Sekulić; Ph.D. student of the Faculty of Law, University of Novi Sad
Gordan Grujić; Ph.D. Student at the Faculty of Law for Commerce and Judiciary, University Business Academy in Novi Sad
ABSTRACT
The right to privacy is one of the fundamental human rights that serves to realize a man as a social being and protect the private spheres of their life. Even though this right can be looked at in different ways, due to the modern development of information and communication technologies, it is largely related to personal data and their availability to other persons. In that sense, the right to privacy is also protected via personal data protection. The basis for such protections in Serbian law has already been implemented in the Constitution of Serbia, and by adopting a new Personal Data Protection Law, the legislator has shown their determination to intensify and expand that protection. As it relates to criminal justice protection, a separate criminal offence of unauthorized collection of personal data is prescribed in Article 146 of the Criminal Code. The authors of this scientific paper will try to expose the threat to the right to privacy and personal data, and to give a clearer picture of how criminal justice protection of these values is realized in the Serbian law by presenting the elements of the aforementioned crime.
Keywords: the right to privacy, unauthorized collection of personal data, Criminal Code, Law on Personal Data
CURRENT ISSUEIssue 3/2020
The arbitration clause in general terms and conditions of business transactions: current trends in international trade versus consumer arbitration
Author: Slobodan Vukadinović, Ph.D.
Union University Faculty of Law in Belgrade and The Institute of Comparative Law, Belgrade
ABSTRACT
This paper shows the diverging tendencies in the understanding of the arbitration clause contained in the general terms conditions of business transactions (GT&CBT) in (international) commercial law and consumer protection law. The results show that inverse logic is currently used regarding the issue of bringing attention to the arbitration clause contained in a GT&CBT and the necessity for such an arbitration agreement to be contained in a separate and personally signed document. International commercial arbitration, encompassing both legal dogma and arbitration and court praxis, has shown a tendency towards a more liberal and flexible understanding of the written form in the past several decades, in terms of the validity of the arbitration clause contained in a GT&CBT referred to in an underlying substantive contract. By contrast, in consumer protection law, there is a tendency for the arbitration clause contained in a GT&CBT, which has not been brought to attention, to be considered a null and void provision. Namely, it is required for the arbitration clause to be contained in a separate document signed by both parties. This points to the conclusion that special attention should be paid to consumer disputes that are to be resolved by arbitration, while court and arbitration praxis in international commercial disputes lately records cases in which the court explicitly took the opposite position. Traders’ claims stating that they were not aware that the GT&CBT contained an arbitration clause and that no attention was drawn to it are considered unfounded by the courts. Namely, the application of both GT&CBTs and arbitration in international trade are, nowadays, considered ordinary.
Keywords: arbitration, arbitration clause, alternative dispute resolution, arbitration agreement, contract, general terms and conditions, prorogation of jurisdiction, consumer.
CURRENT ISSUEIssue 3/2020
Legal and historical overview of the protection of possession in Serbian law
Author: Biljana Gavrilović
Ph.D. student; Faculty of Law, University of Kragujevac
ABSTRACT
The subject of this analysis are the mechanisms of possession according to the Serbian Civil Code and the Code of Civil Procedure from 1929, during the period between 1844 and 1941. The development of the protection of possession during this period is mostly reflected in the fact that possession in the Principality of Serbia and the Kingdom of Serbia was protected, first of all, by means of criminal justice, while in the Kingdom of Yugoslavia, this role was played by civil law. Although possession and its protection in the Principality of Serbia and the Kingdom of Serbia were also regulated by civil-law norms, the people were still relying on the criminal justice system to get protection. Beside the many ambiguities in the Serbian Civil Code related to it, the protection of possession was not regulated separately from standard civil procedures in the Code of Civil Procedure from 1865. Thus, only when the Yugoslav Code of Civil Procedure went into effect did possession get proper, civil-law protection on the territory of Serbia.
Keywords: possession, Serbian Civil Code, protection of possession, civil procedure
CURRENT ISSUEIssue 3/2020
Representatives of companies
Author: Sima Knežević, Ph.D.
Bar Association of Vojvodina
ABSTRACT
This paper explores the mechanism of representation and its core purpose, compares the regulations on representation found in the Law of Contracts and Torts and the Companies Act, and references different legal solutions. Furthermore, it discusses the term “legal (statutory) representatives” used in the Companies Act and points out the confusion caused by the use of this term in relation to other laws, as when used elsewhere it has a different meaning. In the end, we analyse the regulations found in the Companies Act, as they relate to legal (statutory) representatives of companies, other representatives, ex officio representatives, and procurators.
Keywords: representation, legal representatives, companies, procuration
CURRENT ISSUEIssue 3/2020
Creating justice and law through the juxtaposition of the representations of Odysseus and the Suitors
Author: Željko Kaluđerović, Ph.D.
Faculty of Philosophy, Novi Sad
ABSTRACT
In the paper the author analyses Homer’s specific representation of justice, primarily from the perspective of his Odyssey. In this epic we can identify an additional dimension of justice, beside the characteristics of equivalence and correlativity and the principle “might makes right” which were mentioned in the previous essay, and that is its implied application in inter-polis relations. In addition, we should add the special position that belongs to Zeus, through whom the Hellenes should comprehend that justice is necessary for the resolution of their conflicts. As the highest representative of justice in general, Zeus punishes those whose acts are not in compliance with justice, which, in the end, tells the Achaeans that they should establish a community founded on justice – the polis.
Keywords: Homer, Odyssey, justice, law, inter-polis relations, Zeus, Hellenes, morality
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Issue 2/2020
Criminal law aspects of medical error and medical malpractice. The case of Serbia and Slovenia
Author: Dejan C. Rešetar
Bar Association of Vojvodina
ABSTRACT
Human health is seen by criminal law as an important protective object. Although the goal in everyday doctors’ practice is to improve the health and to cure the patient, sometimes there are cases of medical error. In this paper the author first discusses the definition of the term medical error, looks at the basic division and separates the concept of medical error from similar concepts such as unfortunate results and complications. A medical error will exist if a causal link is established between the doctor’s action and the serious impairment of the patient’s health, or a fatal outcome. In order to avoid medical errors, a doctor is obliged to explain to the patient the possible risks involved in the treatment, as well as the risks during surgery and postoperative care, as well as to obtain consent from the patient. The author further discuss the specific criminal offence – Medical malpractice and systematically analyses the criminal act, as found in the criminal law of the Republic of Serbia and the Republic of Slovenia. He underlines the similarity of the criminal sanctions proscribed by the laws of Serbia and Slovenia. Further, he concludes that the specific criminal act is delicta propria, because the number of persons who may be found in the role of perpetrator is very narrow and specific.
Keywords: medical error in criminal law, medical accident, medical complication, causation, patient consent, medical malpractice
Issue 2/2020
Bioethical aspects of Criminal law regulation of necrophilia in the Republic of Croatia
Authors:
Tomislav Nedić, Ph.D.; Centre for Integrative Bioethics, J. J. Strossmayer University of Osijek
Luka Janeš, Mag.; University Centre for Integrative Bioethics, University of Zagreb
ABSTRACT
Necrophilia is one of the most taboo segments of the psychopathological, but also of the legal, categories, whereat issues of acts against the (deceased) human body and its desecration, but also the phenomena of life and death per se, are coming to the fore. This paper seeks to contribute to the evaluation of certain problematic legal and (bio)ethical segments related to necrophilia, primarily by using a case law method, a formal-logical legal method, as well as the method of linguistic interpretation of law, as argumentative aids for the analysis of the criminal law regulation of necrophilia. Also, a bioethical sensibility will be implemented in the aforementioned discourse – the intentional subject attribute of integrative bioethics49, for the purpose of orientation and emphasis of the responsibility towards a person’s life as the fundamental deontological paradigm of certain law procedures.
Keywords: necrophilia, the offense of violating the peace of the deceased person, desecration of the body, personality disorder, bioethical sensibility, Körper/Leib
Issue 2/2020
Legal dilemmas of maternal brain death. The case of Marlise Muñoz
Author: Jagoda V. Drljača
Institute of Social Sciences, Belgrade
ABSTRACT
The subject of this article is a case that occurred in Texas in 2013, which has caused great debate between medical and legal professionals, and has stirred public concern. Marlise Munoz, 14 weeks pregnant, suffered a massive pulmonary embolism which resulted in brain death. Marlise’s will had been that in the case of irreversible brain damage, doctors don’t somatically support her. Despite Marlise’s will, as announced by her husband Eric, and confirmed by her parents, doctors decided to keep her on artificial life support until delivery, or while the fetus is viable. The reason for this decision had been found in the Texas Advance Directives Act (TADA). The main problem with this regulation and interpretation thus set is the collision between the rights of the individual who has made a decision about their physical integrity and the right of the fetus to continue to develop. In this case, no account was taken of the brain anomalies and damages that the fetus would suffer, developing from week 14 inside a brain-dead mother on life-support. The aim of this research is to analyze advance directives, whether the regulations derogate a living will when the patient is a pregnant woman, and the justification for the derogation, with special reference to the controversial TADA. In the concluding considerations, I will analyze which legal and ethical dilemmas arise in these cases.
Keywords: brain death, advance directives, pregnant woman, dignified death, Texas Advance Directives Act (TADA)
Issue 2/2020
Expert medical assessment of compensation allotted for permanently increased needs
Authors:
Zoran Ivanov, Ph.D.; Association of Forensic Experts „Vojvodina”, Novi Sad
Veselin Govedarica, Ph.D.; Association of Court Experts in Occupational Health, Belgrade
ABSTRACT
Article 195 of the Law on Contracts and Torts regulates the redressing of damages in case of bodily injury or damage to health. One of the types of damage compensation is the annuities which can be awarded to the injured party, if their needs are permanently increased (as stated in (2) of the Article). A person is defined as having permanently increased needs if their health is damaged, or their activities of daily living are lessened, in such a way that they are no longer able to independently perform these activities, or can only perform them with increased labour. As a rule, such a person relies on another person in performing the activities of daily living. In the court process, when the injured party is seeking annuities in the name of custodial care due to permanently increased needs, alongside medical documentation, bills for services, transport and similar, are presented as evidence; while the time allotted for custodial care is determined according to the assessment of the medical expert. Without clear guidelines on how the assessment is done and the factors involved, the assessment of the expert instils distrust in the subjects of the proceedings. The aim of the paper is to provide a new, more reliable and more precise approach to the assessment of the time allotted for custodial care. The paper lists the reduced values of the effects of the injuries from highest to lowest, in order to determine the optimal time for custodial care. The basic activities which do not require assistance – the passive component, such as sleeping, resting in bed, sitting on sofa or lounge chair, are differentiated from activities where custodial care is necessary – the active component, such as performing physiological needs, bathing, cutting the hair and nails, dressing and undressing, and putting on footwear. Observing the active part of the activities of daily living in relation to the reduced values of the effects listed ascertains the optimal time required for custodial care.
Keywords: custodial care, expert medical assessment, listed functional deficit, optimal time
Issue 2/2020
Expert medical assessment of compensation allotted for permanently increased needs
Authors:
Zoran Ivanov, Ph.D.; Association of Forensic Experts „Vojvodina”, Novi Sad
Veselin Govedarica, Ph.D.; Association of Court Experts in Occupational Health, Belgrade
ABSTRACT
Article 195 of the Law on Contracts and Torts regulates the redressing of damages in case of bodily injury or damage to health. One of the types of damage compensation is the annuities which can be awarded to the injured party, if their needs are permanently increased (as stated in (2) of the Article). A person is defined as having permanently increased needs if their health is damaged, or their activities of daily living are lessened, in such a way that they are no longer able to independently perform these activities, or can only perform them with increased labour. As a rule, such a person relies on another person in performing the activities of daily living. In the court process, when the injured party is seeking annuities in the name of custodial care due to permanently increased needs, alongside medical documentation, bills for services, transport and similar, are presented as evidence; while the time allotted for custodial care is determined according to the assessment of the medical expert. Without clear guidelines on how the assessment is done and the factors involved, the assessment of the expert instils distrust in the subjects of the proceedings. The aim of the paper is to provide a new, more reliable and more precise approach to the assessment of the time allotted for custodial care. The paper lists the reduced values of the effects of the injuries from highest to lowest, in order to determine the optimal time for custodial care. The basic activities which do not require assistance – the passive component, such as sleeping, resting in bed, sitting on sofa or lounge chair, are differentiated from activities where custodial care is necessary – the active component, such as performing physiological needs, bathing, cutting the hair and nails, dressing and undressing, and putting on footwear. Observing the active part of the activities of daily living in relation to the reduced values of the effects listed ascertains the optimal time required for custodial care.
Keywords: custodial care, expert medical assessment, listed functional deficit, optimal time
Issue 2/2020
Expert medical assessment of compensation allotted for permanently increased needs
Authors:
Zoran Ivanov, Ph.D.; Association of Forensic Experts „Vojvodina”, Novi Sad
Veselin Govedarica, Ph.D.; Association of Court Experts in Occupational Health, Belgrade
ABSTRACT
Article 195 of the Law on Contracts and Torts regulates the redressing of damages in case of bodily injury or damage to health. One of the types of damage compensation is the annuities which can be awarded to the injured party, if their needs are permanently increased (as stated in (2) of the Article). A person is defined as having permanently increased needs if their health is damaged, or their activities of daily living are lessened, in such a way that they are no longer able to independently perform these activities, or can only perform them with increased labour. As a rule, such a person relies on another person in performing the activities of daily living. In the court process, when the injured party is seeking annuities in the name of custodial care due to permanently increased needs, alongside medical documentation, bills for services, transport and similar, are presented as evidence; while the time allotted for custodial care is determined according to the assessment of the medical expert. Without clear guidelines on how the assessment is done and the factors involved, the assessment of the expert instils distrust in the subjects of the proceedings. The aim of the paper is to provide a new, more reliable and more precise approach to the assessment of the time allotted for custodial care. The paper lists the reduced values of the effects of the injuries from highest to lowest, in order to determine the optimal time for custodial care. The basic activities which do not require assistance – the passive component, such as sleeping, resting in bed, sitting on sofa or lounge chair, are differentiated from activities where custodial care is necessary – the active component, such as performing physiological needs, bathing, cutting the hair and nails, dressing and undressing, and putting on footwear. Observing the active part of the activities of daily living in relation to the reduced values of the effects listed ascertains the optimal time required for custodial care.
Keywords: custodial care, expert medical assessment, listed functional deficit, optimal time
Issue 2/2020
The right to refuse medical treatment and passive euthanasia
Author: Tijana Đurđević
Bar Association of Vojvodina
ABSTRACT
Having in mind the obligation of a physician, as stipulated in The Law on Patients’ Rights, to respect the will of the patient even when the will is directed toward the refusal of life-sustaining medical treatment, as well as the misdemeanor liability of a physician, prescribed by the same law, for treatment without informed consent, the paper considers how the patient’s right to refuse medical treatment affects the physician’s responsibility for the patient’s death in terms of the provisions of The Criminal Code. Also, the paper analyzes whether in certain situations the physician is even able to comply with the provisions of both of the mentioned regulations, or whether the harmonization of legal solutions is needed.
Keywords: refusing medical treatment, passive euthanasia, informed consent, medical law, criminal law
Issue 2/2020
An introduction to Medical law according to the Positive law of the Republic of Croatia, with sources and founding principles
Authors:
Atila Čokolić, Ph.D.; Croatian Bar Association
Dunja Čokolić Petrović, Dr.; Clinical Medical Center, Osijek, Department of Paediatrics