Dva veka građanskog prava u obnovljenoj Srbiji 1804-2004

Abstract

Ever since the renewal of the Serbian national sovereignty in the first decade of the 19th century until today there have been several attempts to completely regulate the field of the civil law through the unique codification, which would, by the virtue of its normative solutions, comply with the tradition, existing social environment and realistic evolutional possibilities. At the beginning there was a plan to partially take over the French Civil Code but this idea was abandoned due to the different level of social development. The conclusion was that the provisions that were drafted for one of the most progressive European states could not be applied in the culturally undeveloped and poor Serbia and that a unique codification should be made, which would be suitable for the Serbian society of that time. Following that idea, they began to work on the codification in the mid thirties of the 19th century. However, the Civil Code of the Principality of Serbia, which was adopted in 1844, was not unique. It basically represented a short and partially revised version of the Austrian Civil Code. In addition to that, some of its provisions were against the tradition of the Serbian people and against the requirements of the existing legal practice. Therefore, there was a proposal to start drafting the new codification. A Commission was established at the beginning of the 20th century, which carried out the work on the new codification until the First World War. This project was abandoned after the war. However, soon after the unification and establishment of the Kingdom of Serbs, Croats and Slovenians, they started working on the harmonization of the legislation. The draft for the Civil Code of the Kingdom of Yugoslavia was finished in 1934. This legal project was never officially adopted either. After the Second World War the new socialist system was introduced. The legal continuance with the legal system of the former Kingdom of Yugoslavia has been broken and the civil legislation from before the war ceased to apply. In order to avoid the entire legal vacuum the courts were allowed to apply the "old legal provisions" that were in compliance with the new political system. That solution introduced legal uncertainty. Therefore the preparatory work on the new civil code was intensified in the mid fifties of the 20th century. The authorities of that time decided to apply the method of partial codification. The idea was to adopt a systematic law for each branch of the civil law and to later join all the provisions in one legal act. The work on codification came to an end at the beginning of the seventies. But the normative competences were then divided between the federal state and the member states. Since there was no more constitutional base for adoption of the single civil code, they continued with a partial codification. The federation adopted laws that belonged to its competence. On the other hand the member states have never adopted the laws in the field of property law and law on contracts and torts. That is a reason why there are number of legal vacuums in this field, which are very often filled up by application of some old legal provisions that are constituent part of the laws of the Kingdom of Yugoslavia. Today, there are no constitutional obstacles to entirely regulate the substance of the civil law, but there is no clear idea and strategy on how to develop this branch of the legal system. Two hundred years after the First Serbian Uprising, Serbia is again at the beginning.