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.

The Bar association of Vojvodina

CURRENT ISSUEIssue 4/2020

The state of exception at the legal boundaries. Re-evaluation of a critical concept

Authors:
Alpar Losoncz, Ph.D.
Corresponding member of the Serbian Academy of Sciences and Arts University of Novi Sad, Faculty of Technical Sciences
Mark Losoncz, Ph.D.
Institute for Philosophy and Social Theory in Belgrade

ABSTRACT
This article focuses on the notion of the state of exception, accounting for its legal and political meanings. In discussing Agamben’s analysis of the state of exception, the article provides an alternative genesis of the state of exception, with a special focus on the role of liberalism, nuclear war, and the sources of the state of exception that was instituted in the U.S.A. after the terrorist attacks on September 11. The article stresses that the state of exception should not be described as an “anomic state” that suspends the law, but that the relationships are much more complex, wherein the legal and non-legal “organically” intertwine. The article ends with an analysis of the neoliberal relationship to the state of exception.
Keywords: state of exception, illegality and anomie, Agamben, liberalism, nuclear war, neoliberalism

CURRENT ISSUEIssue 4/2020

Existing outside of the law. Kafka’s philosophy of law

Author: Dragan Prole, Ph.D.
University of Novi Sad, Faculty of Philosophy, Department of Philosophy

ABSTRACT
Variations of the idea that regardless of how bad things are in the world of man, man’s tendency to protect himself by creating illusionary presentations about it is worse, exist in many places in Kafka’s works. If the origin of the leading among the fatal illusions of the present is connected to the need for security, safe haven, protection – the same need that laid the foundation for the necessity to introduce laws and develop a legal system – then important pages of Kafka’s literature can be read in light of a type of negative anthropology. Its premises seem as if to testify to the betrayed human urge to protect every individual via courts and laws. The author pays special attention to the question of what it means to be outside of the law, stressing that the man from the country who remains before the law metaphorically represents Jewish refugees from Galicia who remained before the gates of Prague in 1914.
Keywords: Kafka, philosophy of law, security, existing outside of law

CURRENT ISSUEIssue 4/2020

The notion of the right of necessity (Notrecht) in Hegel’s philosophy

Author: Nevena Jevtić, Ph.D.
University of Novi Sad, Department of Philosophy Faculty of Philosophy

ABSTRACT
This article deals with researching the meaning and importance of the right of necessity (Notrecht) in Hegel’s philosophy of right. The first part of the paper introduces the basic motifs of Hegel’s abstract and legal category of possession, as well as the debate with Savigny – the fundamental historical and philosophical framework of this right. The second part of the paper provides an overview of Kant and Fichte’s understanding and definitions of the right of necessity within practical philosophy. A socio-political dimension will be underlined as a topic of analysis in the third part of the paper, as a key characteristic that differentiates Hegel’s notion of the right of necessity from those of his predecessors.
Keywords: Philosophy of Right, civil society, Hegel, Notrecht, necessity, possession

CURRENT ISSUEIssue 4/2020

Elements of the philosophy of human rights

Author: Mina R. Đikanović, Ph.D.
University of Novi Sad Faculty of Philosophy, Department of Philosophy

ABSTRACT
The paper investigates the possibility of establishing the philosophy of human rights as a distinct philosophical science. Contemporary thematizations of problems related to human rights are called philosophies, but they are not philosophical in their essence. Following Hegel’s understanding of the modern ethical order and Aristotle’s teaching on the four causes, an attempt is made to give a framework for exploring the possibility of establishing the philosophy of human rights as a particular philosophical science. The framework includes considerations of the definition of the subject matter and methods, as well as an attempt to practically apply Aristotle’s teaching on the four causes to the notion of human rights.
Keywords: philosophy of human rights, human rights, law, morality, science, Aristotel, Hegel, four causes

CURRENT ISSUEIssue 4/2020

The phenomenology of guilt. Some remarks on Jaspers’ and Hegel’s notion of guilt

Author: Tanja D. Todorović
Bar Association of Vojvodina

ABSTRACT
Jaspers inquires into the problem of guilt in closer relation with the idea of communication, which finds its metaphysical foundation in the unspecified idea of humanity. His distinction between the four types of guilt can find its foundation in metaphysical guilt. In his philosophical conception, Jaspers manages to adopt certain insights of Kant’s ethics; in this context we shall emphasize the connection between moral and metaphysical guilt. In the framework of Hegel’s critique of Kant we shall explicate how the four types of guilt that Jaspers distinguishes (moral, metaphysical, criminal, and political) can be reduced to moral and legal guilt.
Keywords: guilt, communication, metaphysics, morality, law

CURRENT ISSUEIssue 4/2020

A critique of the jusnaturalist notion of marriage. A view from Italian legal practice

Author: Aleksandra Prelevic Palladino
Ph.D. student at the Faculty of Law University of Belgrade

ABSTRACT
This paper attempts to answer the following research question: What is modern marriage? The author combines the critical analysis of the jusnaturalist view, more precisely the notion of marriage in the work of Robert George, with a conceptual analysis of marriage in the process of its transformation. In order to do this, the author examines the case of Italy, a society with a traditional, Catholic jusnaturalist conception of marriage, which enables testing the jusnaturalist view of marriage and pointing out what makes it dysfunctional in practice. Then, I examine how wellfounded the constituent components of the notion of “real marriage” are, both in the context of modern marriage and within George’s conception of marriage itself. The paper’s central argument is that marriage is a legal institution undergoing the process of redefining that involves an expansion of participants and a redistribution of the hitherto known functions of marriage. It is the author’s standpoint that there is a methodological possibility to functionally yet neutrally explain the nature of law, and so the institution of marriage. Thus the author arrives at the new function of modern marriage and brings a value-neutral definition of modern marriage based on the idea of a privileged emotional relationship.
Keywords: modern marriage, new function of marriage, privileged emotional relationship, jusnaturalism, the concept of marriage, the concept of marriage in Italy, real marriage, family and marriage, marriage as a value in itself, functional methodology, value neutrality

CURRENT ISSUEIssue 4/2020

The formulation of the idea of justice in the “Poem on Justice”

Author: Željko Kaluđerović, Ph.D.
Faculty of Philosophy, Novi Sad

ABSTRACT
As one of the most important principles of forming of social relations, Hesiod emphasizes the principle of justice. He places the idea of justice into the very core of life, because it is in this idea that he finds the root out of which a different world and a better one is to be born. Hesiod’s idea of justice is manifested as a need for strengthening the relation of equivalence when it is stable and adequate, and for its establishing in case it is disbalanced and inadequate. The presence of justice at all levels, from the highest metaphysical one, all the way to the relations within the practical sphere, shows that it can be considered as a mighty deity, as a cosmic principle, but also as a legitimate basis of comprehensive human action. In Hesiod’s writings it is finally suggested that there is a difference between the order of causality of irrational nature and the order of duties of morality, actually between bia on one hand and nomos and dike on the other. Believing that living beings can not disturb the order of bia, while humans can disturb the order of dike, Hesiod postulates the difference which will be crucial for the later philosophical consideration of the field of praxis.
Keywords: Hesiod, Work and Days, justice, poem on justice, action, bia, nomos

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Issue 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.

Issue 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

Issue 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.

Issue 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

Issue 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

Issue 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