Pravni okvir milosrdnog davanja lijeka u Republici Hrvatskoj u okviru europskog pravnog konteksta

As digitalization progresses, the possibilities for monitoring and surveillance in the employment relationship also increase. With the entry into force of the GDPR at the latest, the discussions about an "Employee Data Protection Act" (Beschäftigtendatenschutzgesetz) reignited. The thesis examines - de lege lata - the interaction of European and national requirements in the introduction of electronic surveillance / monitoring equipment in companies. On this basis, current challenges and the corresponding solutions are shown. At the same time, the special role of the business parties (such as works council and personnel department) in the area of data protection is presented. Finally, the question of whether an employee data protection law - de lege ferenda - can provide more legal certainty is being investigated.

In Poland, for a long time we have been dealing with the phenomenon of the spread of non-employment forms of employment in the market economy, which primarily concerns civil law contracts and self-employment, which are increasingly displacing the classic employment relationship. The author analyzes the process of expansion of protective labor law into employment relations indicated here, presents its genesis, causes, evolution, scope and boundaries. Without questioning the legitimacy of the protection guaranteed by the legislator to persons engaged in gainful employment outside the employment relationship, the author critically assesses the legal status in this area. De lege lata, we observe the lack of a systemic and comprehensive approach of the Polish legislator to this issue. Changes in this area are often made ad hoc, without a coherent and thought-out concept, also under the influence of political factors. The author of the article believes that the widest scope of protection should be guaranteed only to employees who work for the employer under conditions of subordination. Around such a defined model of employment relationship, it is possible to build other non-employment forms of employment to which labor protection law should apply to a limited extent. De lege ferenda, the author postulates the introduction of comprehensive, coherent and systemic solutions providing for the extension of protective labor law to non-employment forms of employment. It is not enough for the legislator to refer mechanically to the proper application of labor law. In addition, the Polish legislator de lege ferenda should recognize the criterion of economic dependency as a premise determining the scope of protection of persons engaged in gainful employment outside the employment relationship and determining the limits of the expansion of labor law into non-employment forms of employment.

The subject of the article is a formal and dogmatic analysis of the right to mediation, which is part of the right of access to restorative justice. The aims of the article are determined by the structure of the content, with the limitation of considerations to the stage of executive proceedings in criminal cases. First, the aim is to analyze the legal structure of the right of access to restorative justice and mediation. Secondly, the answer to the question of whether, in the light of EU and international law, there is an obligation for state authorities to ensure that the right to mediation is exercised, together with an analysis of its content. Third, the formulation of de lege ferenda proposals related to the establishment of the right of access to restorative justice and mediation. Despite the position, formulated for years in the documents of the Council of Europe, that restorative justice and mediation should be a public service at every stage of criminal proceedings, it has not been established at the stage of executive proceedings. However, this does not result from a defective implementation of EU law, which does not impose an obligation to ensure the right of access to restorative justice and mediation services in areas where these services are not available, making EU Member States only guardians of the standards of services provided, and not guarantors of the possibility of implementing the right to use mediation. De lege ferenda establishing the right of access to restorative justice and mediation would include the power to submit a request for mediation and the obligation of state authorities to create conditions enabling its implementation but not guaranteeing mediation. The analysis of the right to access mediation, which has not been the subject of an explication in the doctrine so far, is to provide knowledge on the structure and potential directions of normative work, taking into account the regulations of EU law and documents of the Council of Europe related to the regulation of mediation proceedings at the stage of executive proceedings in criminal cases.

This national (Belgian) report was written for a panel on ‘Evidence and Provisional Measures in Complex Litigation and Class Actions’ for the 2012 Buenos Aires Conference organized by the International Association of Procedural Law and the Ibero-American Institute of Procedural Law.After a general – de lege lata and de lege ferenda – description of the current Belgian procedures for handling a series or group of related claims (chapter A), the report pays attention to the motion to certify or authorize a collective action (chapter B). Particular attention is paid to the standard or burden of proof that a plaintiff must meet and the evidentiary burden inquiry by the court. In this context a detailed overview is given of the five (Belgian) means of proof in civil law and the techniques of evidence the Belgian Judicial Code contains. Finally, the report describes the standard or burden of proof after certification or authorization of any collective action (chapter C), the standard of proof of fairness of any collective settlement (chapter D), and the provisional measures relevant to collective actions (chapter E).

By ratifying the Istanbul Convention, which requires Member states to incriminate stalking, an obligation has been created for the Republic of Serbia to amend its criminal legislation by imposing this criminal offense. Bearing in mind that Convention does not specify the essential features of stalking in detail, the experience of those countries that have already prescribed it, served as a model for the Criminal Code of Serbia. By recognizing the fact that stalking was not incriminated in comparative legislation in a unique way, the author proposes answers to some of the controversial issues regarding this incrimination. Namely, the author deals with the following issues concerning the criminal offense of stalking: 1) how we should appreciate the condition of repeating the acts of execution in relation to stalking; 2) the problem connected with the circle of acts of execution that should represent an act of stalking; 3) the issue regarding the fact whether the consequences for the existence of completed criminal offense should be required; 4) in the context of those legislations which require the consequence the issue is whether the consequence of a criminal offense should be judged subjectively on the basis of the victim’s experience or objectively on the basis of the standards of an average citizen; 5) the circle of people who can be considered as a passive subject (victim) of stalking; and 6) the type of subjective element of crime required for the existence of stalking. Recognizing the disadvantages of the de lege lata rule, above all, wide zone of punishability, as well as the absence of consequence in the most of the acts of execution, in the concluding considerations, taking into account the comparative law solutions, it is mentioned proposals for de lege ferenda amends of the existing legal solution, with the aim of improving its application in future court practice. In that context, it is concluded that the criminal offense of stalking should be prescribed as an intentional unauthorized persistent execution of actions, against the will of another person, over a long period of time, causing a state of his or her sense of distress and fear for his or her own safety or security of the close person. By adopting the proposed de lege ferenda solution, the legal certainty would be strengthened and, in practice, it would be much easier to prove the existence of this criminal offense since that at least two serious objections of the existing solution would be removed: the problem of the wide zone of punishability in the context of stalking and the absence of consequence in the most of the acts of execution as well.

The 1969-72 period bas shown an evolution in the belgian european policy. White instituional orthodoxy and federalist teleology had prevailed in the sixties, some pragmatism has been added since Prime minister Gaston Eyskens met President Pompidou in Paris in june 1972. Belgium accepts the launching of a cooperation among the national foreign policies outside the sphere of the EC institutions; regular summits of heads of government are also agreed on. Pragmatism doesn't weaken however the belgian concerns about orthodoxy. Belgian diplomacy is claiming a twofold orthodoxy. The "de lege fata" one insists on the compliance of the institutional practises with the legal provisions of the Treaties and on the extension of the scope of the EC policies by using the faculty provided by art. 235 EC. The constant refusal of the so called "compromis de Luxembourg" and the recurrent plea for the qualified majority voting, or the emphasis put on the powers of the Commission illustrate this kind of orthodoxy. The "de lege ferenda" orthodoxy consists of preventing institutional evolutions from closing the road to the long term federalist aims belgian diplomacy is still working towards for European integration. Hence some dilemmas between pragmatism on short term issues and some dogmatic rigidities which refer to the federalist finality. The discussion about twofold orthodoxy is grounded on a belgian positions' analysis on european affairs which covers the period from the end of the sixties to the belgian positions at the 1996 IGC. By the future perspective of a broader EU enlargement, Belgium will also face a new challenge: will its relative political weight be decreasing in the same time theUnion will extend? Which will be the price for accepting less Belgium in a larger Union ?

In the beginning of the paper the author defines the concept of “working conditions”, which in its narrowest sense means working hours, time for rest, the safety and protection of health at work, in a slightly wider sense it also includes wages and salaries, and in the broadest sense it covers all the terms regulated by labour law, i.e. the results of both the legislative process and contracts between employees and employers. Special attention in this area is devoted to the increased protection of certain categories of the labour farce (women, mothers, juveniles, disabled people). The general trend, drawn from the 19th century, is described in the paper as a gradual improvement of working conditions of employees. The author points out that the improvement is in the best interest of not only the employees, but also of the employers. This trend contributes to increased performance due to the positive effect of improved working conditions on both the physical capacity of people and their mentality, and their relationship to work and the work place. As far as developmental trends in the Czech Republic in this area are concerned, the author assumes that they feature the efforts to approximate Czech Labour Law to that of the European Union. She mentions the ways in which European rules regulate different aspects of working conditions (working hours, time for rest during the day, week and year, night shifts, employees’ health care, etc.) and she concludes that in many cases, in fact in the majority of cases, the European regulation is more generous towards employees and their rights, when compared to Czech legal rules. Naturally, the main direction of ideas follows the de lege ferenda – namely focusing on legal regulation that will be more in conformance with European law.

A model of genocidal destruction implies the manner in which genocide is carried out. Questions deriving from my fundamental point at issue are whether mass killings, cultural repressions, starvation, prevention of birth, politicide constitute genocide or whether genocide, in that sense, is limited to biological or physical destruction of a protected group? the post-war development of international law, especially as a result of the adoption of the Universal Declaration of Human Rights and Convention on Human Rights, and a number of conventions related to human rights, as well as jurisprudence of the two tribunals, signaled the existence of a wider concept of a customary-legal concept of genocide, that could intrinsically involve a prerogative of cultural destruction. The modern theoretical views have expressed such a tendency. From a "de lege ferenda" perspective, this could be interpreted and understood as a positive tendency, but at the same time it is questionable from the perspective of a legislative and formal-legal character of the Convention on the Prevention and Punishment of the Crime of Genocide. This paper elaborates material acts of genocide and their position within the concept of genocide considering the controversies of the models of genocidal destruction.

The validity of a will is conditioned by the existence of the testamentary capacity at the time of its creation, existence of certain qualities regarding the testator's will, as well as the the requirement that the will of the testator must be expressed in the form and under the conditions provided by law. The aticle primarily focuses on certain substantive legal assumptions of the validity of will, as well as on formal legal assumptions of its validity, specifically, on the testamentary capacity and forms of will, and the prescribed form requirements regarding existing forms of will, i.e. the conditions under which they can be made. By analyzing the current statutory provisions that are dedicated to the mentioned issues, from the point of view of the ruling doctrinal positions, as well as legal solutions accepted in other countries, certain deficiencies are identified in their legislation as well as in the application of these solutions in legal practice. In the paper, the authors propose the necessary changes and supplements in order to obtain a higher quality, as well as a more comprehensive way of regulating the analyzed institutes in the domain of the testamentary inheritance.

Gender equality laws have existed in public administration in Germany since 1998. These laws specify the constitutional requirement of gender equality on the basis of article 3(2) of the German Constitution. Considering the background of present discussions in Germany concerning inclusion and diversity in public administration, this article analyses possibilities to address intersectional discrimination, including racial discrimination and discrimination based on different socio-economic backgrounds. Therefore, the following critical analysis focuses on possible intersectional approaches in German gender equality laws. The article presents the primary existing constitutional provisions and simple legal rulings, while also taking a ‘de lege ferenda’ perspective. To this end, the article suggests concrete wording for new legislation and for the amendment of existing laws.

For the valid creation of a will as a legal transaction mortis causa, a necessary condition is to be expressed in one of the legally recognized forms. The requirement of form dates back to Roman law, where formal prerequisites were given different functions. The article tries to determine whether and in what way the formal requirements of certain will types can be adapted to the development of information technologies, while examining the positive legal regulations. Analyzing the existing legislative activity focused on wills drawn up in electronic form and the current opinions in the doctrine, the authors try to assess whether will, in whose composition some type of electronic medium was used, could produce legal effects according to the current rules of Serbian law, as well as to propose de lege ferenda solutions on the legislative level in that direction.

The paper is dealing with the notion and types of full jurisdiction - in French and then in Serbian legislation as well as in judicial practice. The author advocates for the extension of mentioned kind of administrative jurisdiction de lege ferenda. To be able to make proposed changes, it is necessary to meet the following conditions, as constitutive assumptions, establishment of the funded system of administrative courts, i.e., a two-tier system of administrative justice, and the rule of public hearing before the administrative court in accordance with international and domestic principle of the right to fair trial. The paper starts with the definition of full jurisdiction meaning that administrative court has the power to resolve validly the controversial legal issue, regardless of whether it was preceded by a legal procedure or not as well as regardless of whether the legal relationship is resolved by merits or only ends for procedural reasons.

Research background: Bankruptcy shouldn´t be considered only as negative phenomena although its impact is for companies in most cases more than devastating. This change of point of view is invoked by the needs of contemporary socio-economic evolution. If society wants to reach sustainable development, the bankruptcy should be perceived as an immanent part of normal cyclical economic development. Moreover, if the view of bankruptcy is changed in a positive way, it can be a stimulus for innovations, investment and global welfare. But it is not possible without an increase in the effectiveness of national and international bankruptcy law.Purpose of the article: The goal of this study is to analyse the position of a creditor in the case of a debtor´s bankruptcy on the basis of comparative law in the Slovak Republic de lege ferenda. It is because we assume that continuous attention should be given to the issue of the creditor?s position with regard to a debtor´s bankruptcy to achieve sustainable economic development.Methods: The potential consideration de lege ferenda should be based not only on performed legal analysis, but also on performed economic analysis. So, selected countries have been evaluated according to specific economic and legal indicators. We used the interdisciplinary approach based on selection analysis and legal comparative analysis applied to international comparison of the status of creditor and the effectiveness of bankruptcy law from his point of view.Findings & Value added: The applied approach has led us to the detection of the most important insolvency laws, specifically the insolvency laws of the United States and Austria. These legislations were further applied in the context of consideration de lege ferenda over the position of a creditor in the case of a debtor´s bankruptcy in the Slovak Republic.

The paper offers a de lege lata and de lege ferenda analysis of State immunity from civil jurisdiction in cases related to environmental transboundary damage, including climate change litigations. De lege lata, the analysis focuses on the customary exceptions to State immunity, namely the restrictive doctrine and the forum tort exception. De lege ferenda, the contribution firstly discusses the recent domestic case law lifting jurisdictional immunity for acts jure imperii which amount to serious violations of human rights and/or humanitarian law. Secondly, it seeks to open the discussion on a possible reform of the forum tort exception on the model of the European discipline of private international law in matters of tort, in order to ensure better protection of the individual right to an effective remedy.

The article's purpose is to present partial research results devoted to the issue of criminal liability for counterfeit money or its surrogate and crimes related to such imitation. Partial results refer to the issue of the limits of the statutory threat of criminal punishment in various European countries. The analysis presented made it possible to distinguish the models preferred by the legislator for determining the criminal sanction for the indicated crimes. Moreover, those variants of sanctions (taking into account the lower and upper limits of the threat) that are most often used in legislative practice were indicated. The considerations led to the formulation of de lege ferenda postulates in terms of modification of the Polish Criminal Law. The research uses theoretical and dogmatic methods of analyzing the legal text of criminal statutes and the comparative law method.