CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
ABSTRACT: The Criminal Procedure Code is a procedural code whose primary function is to regulate the rules of conduct in criminal proceedings, i.e. to prescribe the rules of conduct of various subjects in criminal proceedings. In addition, the Criminal Procedure Code should contain such rules that will enable fast and efficient criminal proceedings, but at the same time guarantee basic human rights to all participants in the proceedings, especially the defendant as a subject against whom criminal proceedings are conducted. That is why it is always surprising when such a code contains provisions that violate basic human rights. In this paper, the provisions of the code that violate human rights will be analyzed. Most of the analyzed provisions concerned discriminatory treatment, while the other analyzed provisions violated the presumption of innocence, the right to a fair trial and the right to liberty and security.
Keywords: CPC, human rights, European Court of Human Rights, discrimination, right to a fair trial, presumption of innocence, right to liberty and security
You can submit your text to
You can submit your text to
Issue 1/2023
The principle of mortgage extensiveness with regard to buildings and separate parts of immovable property under construction
Authors:
Radenko Jotanović, Ph.D.
Bosiljka Čubrilović Stamenić
Faculty of Law, University of Banja Luka
ABSTRACT : In accordance with the principle of legal unity of immovable property, immovable property consists of parcels of land and everything permanently connected to it, whether on the surface or underground. The reform of the system of real property law in the Republic of Srpska established the legal unity of immovable property between land, building, and separate parts of immovable property, making the owners of separate parts of immovable property (co)owners of the entire immovable property (land and building). Immovable property, which is identified with land, is the object of property rights and the object of a mortgage. In accordance with the principle of extensiveness, a mortgage exists with respect to immovable property as a whole, which means that a mortgage constituted on a land also covers the building as well as the separate part of the immovable property (apartment, business space, garage, etc.). Acquisition of property rights and acquisition of a mortgage on immovable property as a whole is possible on the basis of the principle of reliance, which takes precedence over the principle of Nemo plus iuris ad alium transferre potest quam ipse habet. When it comes to buildings and separate parts of immovable property under construction, the application of the principle of mortgage extensiveness or the principle of reliance depends on the moment the property rights or a mortgage are acquired. The principle of mortgage extensiveness takes precedence if the owner of the land managed to register the mortgage before the sale of the building or separate part under construction, and vice versa, the principle of reliance takes precedence if a conscientious buyer of an apartment in a building under construction managed to register ownership before the mortgage was constituted on the land.
Keywords : immovable property, legal unity of immovable property, principle of reliance, mortgage, mortgage extensiveness, condominium, building and separate part of immovable property under construction
Issue 1/2023
The relationship between domestic and international law in accordance with the Constitution of Montenegro
Author:
Miloš Rajović
Faculty of Law, University of Belgrade
ABSTRACT : The relationship between domestic (state) law, or more precisely domestic laws, and international law is one of the most complex and dynamic issues, both in foro interno and in foro externo, resulting in different and numerous theoretical and practical solutions. Beginning with basic theoretical starting points (monism and dualism), through comparative constitutional practice, this paper seeks to provide a detailed analysis of the provisions of the Constitution of Montenegro from 2007 concerning the relationship between domestic and international law, especially Article 9. Opting for a monistic approach with a relative primacy of international law, the Montenegrin Constitution prescribes that international treaties and generally accepted rules of international law are an integral part of the internal order. The analysis of the Constitution in the manner of de lege lata pointed out some basic errors and shortcomings of the positive legal solution of the relationship between domestic and international law found in Article 9, and resulted in a proposed correction in the manner of de lege ferenda, with the aim of reducing the potential international legal responsibility of Montenegro.
Keywords : Internal law; International law; Monism, Constitution of Montenegro; Article 9 of the Constitution.
Issue 1/2023
Some legal dilemmas regarding the moratorium on employment in the public sector
Author:
Danica Radovanović
Faculty of Law, University of Belgrade
ABSTRACT : In 2013, the National Assembly of the Republic of Serbia passed amendments to the Budget System Law prescribing the measure of the moratorium on employment in public services. The implementation of this measure was directed towards controlling (i.e. cutting) expenses and reducing the number of employees in the organizations financed from the government budget. Despite the analysis of the measure under scrutiny pointing out a lack of systematic, argumented and reliable reports and objective analyses of both positive and negative consequences of this decision, it appears that its application was associated with more negative consequences than positive ones whilst the largest and most significant effects were suffered by the sectors of healthcare, social protection and education. In addition, the negative consequences of the measure had a direct impact on women and young members of the workforce. The extension of this measure, in several iterations, has manifested itself through significant obstacles in the provision of services as well as a reduction in the quality of these services. Therefore, it is worthwhile to examine the content and the consequences of the application of the measure of the moratorium on public employment, certain legal dilemmas in relation to it, as well as whether the autonomy of public services has been restored following its repeal.
Keywords : moratorium on public employment, public services, healthcare, education.
Issue 1/2023
Domestic violence between felony and misdemeanour law of the Republic of Srpska
Author:
Ljubana Sladić
Faculty of Law, University of East Sarajevo
ABSTRACT : Since May 2020, a new legal solution which treats domestic violence exclusively as a felony has been in force as part of the legislature of the Republic of Srpska. In this article, the author argues against the exclusive treatment of domestic violence as a felony by pointing out that it should also be treated as a misdemeanour but with a clear dividing line. This article presents the results of research conducted to establish the attitudes of judicial bodies concerning the felonization of domestic violence and also present the statistical data from the Basic Court in Bijeljina in connection with this crime. By interpreting the results of the survey, it was concluded that the participants were familiar with the new legal solution regarding the felonization of domestic violence and the consequences that such solutions produce in practice. The majority of them are of the view that the solution that treats domestic violence exclusively as a felony is not beneficial nor is it beneficial for the court to issue urgent/protective measures in misdemeanour procedures. Instead, the court should issue such measures in felony procedures. Also, the participants agree that there has been no increase in the number of prison sentences nor a more stringent penal policy with regard to the perpetrators of domestic violence, and they agree that these individuals typically receive suspended sentences, which is supported by the abovementioned statistical data.
Keywords : domestic violence, felony, misdemeanour, family member, protective measures, emergency measures
Issue 1/2023
Similarities and differences in the issuance of securities and digital assets – The issue of legal responsibility of the issuer
Author:
Ranko P. Sovilj
Institute of Social Sciences, Belgrade
ABSTRACT : The evolution of the financial market has given rise to new instruments of trade – digital assets. Considering the diversity and inhomogeneity of digital assets, the author analysed the legal position of digital tokens compared to that of securities, including their resembling features. Therefore, in the first part of the paper, the author analyses the issuance of digital assets. The central part of the paper is dedicated to a critical review and analysis of the issuer’s legal responsibility for a faulty or deficient prospectus, that is, a white paper, with particular reference to the network of (passively) responsible individuals. Hence, this research aims to highlight the similarities and differences accompanying the issuance of securities and digital assets (tokens). Finally, using the normative and comparative method, the author concludes that despite the many advantages of legalizing the issuance and secondary trading of digital assets, the issuance of digital tokens is accompanied by risks and certain inequalities compared to the issuance of securities.
Keywords : issuer’s responsibility, securities, issuance of securities, prospectus, digital assets, digital tokens, initial coin offering, white paper
Issue 1/2023
Jurisdiction of the International Criminal Court over crimes committed on the territory of Afghanistan
Author:
Jelena S. Radmanović
Faculty of Law, University of Novi Sad
ABSTRACT : The subject of this paper is the territorial and personal aspects of the jurisdiction of the International Criminal Court regarding crimes committed on the territory or in connection with the armed conflict on the territory of Afghanistan. In 2020, the International Criminal Court determined that the conditions had been met for initiating an investigation into crimes committed in Afghanistan, or in connection with the armed conflict in Afghanistan. The paper is based on the analysis of positive regulations in the field of public international law and international criminal law, as well as linking the relevant provisions with the circumstances under which crimes were committed on the territory of Afghanistan and drawing conclusions about the fulfillment of necessary conditions for initiating criminal proceedings before the International Criminal Court. The result of the analysis leads to the conclusion that the conditions have been met for initiating an investigation into crimes committed in Afghanistan or in connection with the armed conflict on the territory of Afghanistan. The initiation of an investigation is particularly important in the context of the withdrawal of US military forces and the Taliban’s takeover of power in Afghanistan. Namely, there is a real possibility that the newly formed government in Afghanistan will not be willing to cooperate with the prosecution and provide the necessary evidence related to the crimes in question, which directly affects the importance of conducting proceedings before the International Criminal Court.
Keywords : International Criminal Court, Afghanistan, jurisdiction, territorial jurisdiction, personal jurisdiction
Issue 1/2023
The request for the protection of legality. Theoretical and practical aspects
Author:
Jelena Stanković
Faculty of Law, University of Novi Sad
ABSTRACT : In this article, the author has examined an extraordinary legal remedy which is the last defence of legality, the request for the protection of legality in the positive criminal procedure legislation of the Republic of Serbia. The principle of legality is one of the foundational principles of the legal system, which also helps to achieve the basic purpose of criminal procedure, i.e., that no innocent person is convicted and that perpetrators are sentenced under the conditions prescribed by criminal law based on a legal and fairly conducted procedure (Article 1, paragraph 1 of the Criminal Procedure Code of the Republic of Serbia). In this manner, the request for the protection of legality, as an extraordinary legal remedy, gains in importance. The subject of the article is an analysis of the theoretical conceptions and positive law solutions in the criminal procedure legislation of the Republic of Serbia, as well as the application of the request for the protection of legality in practice, bearing in mind that the request for the protection of legality has undergone the most significant changes, some of which have raised contentious issues, and in such a situation judicial practice deserves special attention because it will play a key role.
Keywords : criminal procedure, legal remedy, extraordinary legal remedy, request for the protection of legality
Issue 1/2023
The National Assembly of the Republic of Serbia and the German Bundestag. A comparative legal analysis
Author:
Aleksandra Toroman
Ph.D Student at the Faculty of Law, University of Novi Sad
ABSTRACT : The Bundestag, as the legislative body of the Federal Republic of Germany, represents its most important institution. The National Assembly in the Republic of Serbia also has significant influence and plays a crucial role. As legislative bodies represent the people, and the people are the bearers of a state’s sovereignty which they do not exercise directly but through the operations and activities of the parliament, legislative bodies in certain states represent the highest authority. In this regard, the purpose of the legal research and analysis in this paper is to provide a parallel presentation of the activities of the legislative bodies and their influence in their respective states. Furthermore, each institution has its own unique characteristics that distinguish it from others. Therefore, the aim of this paper is to highlight the particularities and similarities of both legislative bodies.
Keywords : Bundestag, parliament, National Assembly, Republic of Serbia, Federal Republic of Germany, jurisdiction
Issue 1/2023
Advanced techniques in the analysis of traffic accidents
Author:
Ištvan Bodolo
Faculty of Economics and Engineering Management Associate Professor