Public Attorney's office between judiciary and public administration

Abstract

The aim of the research was the positioning of the institution of the Public Attorney within the Serbian legal system. De lege lata, the focus was on examining the compliance of the institution's functions with the challenges of the European Convention on Human Rights, the Serbian Constitution and the new Civil Procedure Code. Based on the criticism of positive law, the author builds the legal policy stance regarding this institution de lege lata. The author primarily uses the dogmatic method, and where necessary, other legal science methods: comparative, historical, sociological and philosophical. The study resulted in knowledge with regard to the position of the institution, which is closer to the executive than to the judiciary, the incompatibilities of its functions and deficits, primarily in terms of concretization of the constitutional principle of the rule of law and direct implementation of the constitutionally guaranteed human rights. Property rights and interests of the state cannot be reduced to private law. Furthermore, if an agent of the state is a public institution, putting it in a role of a private person makes the litigation unfair. The agent of the state is supposed to be a much more reliable partner of the court in exercising the rule of law, human rights and the quest for truth. Ultimately, the pro et contra stances expressed in this study certainly depends on understanding the basic social values and their hierarchy. Perhaps the problem can be expressed, in terms of a legally-axiological approach, as a question of valuation. Which social values should be given priority: the common good or the justice and truth? The author opts for the latter, believing we should be more concerned about the legal and moral collapse of the state, than its economic demise.