Serbian Law Research Articles

Tax Treatment of Crypto Assets Under Serbian Law – Status Quo and Future Challenges

Abstract The present paper provides a comprehensive analysis of the legal framework relevant for the taxation of transactions and activities involving crypto assets in Serbia. In the introductory part, the author provides a classification of crypto assets intended to serve as the methodological framework within which the taxation of various transactions and activities in the crypto domain will be analyzed, taking into account the principle of tax neutrality. The core of the paper elucidates the results of comparative legal research that the author had undertaken in order to identify diverging approaches jurisdictions around the world embraced regarding the taxation of generation, acquisition, holding and disposal of crypto assets. The choices made by the Serbian tax policy makers are juxtaposed to those applicable in comparative jurisdictions and, where appropriate, improvements are suggested. The author concludes by commending the recent trend in the application of Article 9, para. 1 of the Law on Tax Procedure and Tax Administration as a tool that could mitigate the need for recurrent and, ultimately, unsuccessful tailoring of the tax legislation to the novelties in the crypto domain.

Pretpostavke za povećanje osnovnog kapitala iz neto imovine (pretvaranjem neraspoređene dobiti ili rezervi u osnovni kapital) društva s ograničenom odgovornošću

The increase in the share capital from the funds of the limited liability company represents a nominal increase in the share capital, which is carried out by converting retained profit or dedicated reserves into share capital. The main economic purpose of increasing the basic capital from the company’s assets is to strengthen the company’s creditworthiness, which is achieved by fully or partially tying free accounting assets (retained profit or reserves) to the share capital. Before implementing this method of increasing the share capital, it is necessary to fulfil certain legal and accounting assumptions. The focus of the analysis in this paper refers to the fulfilment of the legal and accounting assumptions for converting retained profit and reserves into share capital and the limitations for implementing this way of increasing the share capital of a limited liability company. In addition to the above, we single out as particularly important considerations related to reserve assets, in relation to which there is a very modest regulation in the Serbian Law on Business Companies.

Protection of Workers’ Rights in Bankruptcy Proceeding in Serbian and Western Balkans Legislation

The protection of workers’ rights in bankruptcy proceedings is a matter of supreme importance in every country. Comparing national laws, one could conclude that the predominant solution is to grant workers the position of privileged creditors. In Serbia, workers are protected by means of two laws: the Labour Law, which is the lex generalis for this area, and the Bankruptcy Law, which has the role of lex specialis. In addition to protection during bankruptcy proceedings before commercial courts, workers can appeal to the state’s national guarantee institution, namely, the Solidarity Fund. Serbia is, therefore, among the countries which employ a mixed – protectionist system. By analysing the legal solutions related to these issues, the authors want to determine the correlation between national legal solutions and those at the European Union level, and to consider the problems in bringing these claims in legal practice. They have also reviewed the current legislation in some Western Balkans countries including Croatia as a member of the EU, and Bosnia and Herzegovina, which has candidate status akin to Serbia. The authors conclude that Serbian law has a modern, hybrid approach in securing the rights of workers in bankruptcy proceedings, but that there is room for improving regulations in this area. This could be achieved by, inter alia, increasing the volume of claims guaranteed to workers, restricting the reasons for initiating bankruptcy proceedings, making preliminary payments to workers in the initial stages of the proceedings, and keeping court records on the percentage of workers’ claims being realised in bankruptcy proceedings.

The Hybridization of the Regulatory Framework of Insurance Contract Law: Elements of a New Setting

This article aims to highlight the phenomenon of hybridization of insurance contract law, which started with its emancipation from contract law. The next phase included its internal stratification, stemming from obvious differences between commercial and consumer insurance, and various contractual positions of contracting parties in these different insurance contracts. Two features of insurance contracts regulation are addressed, based on Serbian law as it currently stands, as well as comparative legal analysis. The first feature is that the legislatively envisaged unified regime for insurance contracts is incomplete and inadequate for all manifestations of this contract. The second feature is that regulation of this matter must enable balancing of interests between insurers and insureds, especially consumers. The authors conclude that insurance regulation can only be conducive when simultaneously ensuring protection of the weaker party, protecting insurers from the negligent actions of the insured, while facilitating conduct of insurance business.

PROVING ANTITRUST DAMAGES IN CIVIL PROCEEDINGS – The Compatibility of Serbian Law with Directive 2014/104 –

Private competition law enforcement has been a recent phenomenon in the European Union. In the past, the EU law and member states’ national laws lacked elements that contributed to the preponderance of private enforcement in the United States, such as treble and punitive damages, the procedural right of a damaged party to request discovery of evidence, collective actions, etc. The interest in private enforcement of competition law has gradually increased after Regulation 1/2003 authorised national courts to implement Articles 101 and 102 TFEU, the EU courts established private enforcement principles, and Directive 2014/104 (Antitrust Damages Directive - ADD) laid down rules to facilitate proving competition law violations and damage resulting from them. The US model evidently inspired the EU legislator. At the same time, ADD attempted to balance the private interests of injured parties and the public interest for effective public enforcement. Specific ADD provisions instigated a public debate concerning their reach and alleged confrontation with general legal principles. Even though member states have taken comprehensive measures to implement ADD, national courts need to search for an equilibrium between private and public interests. Therefore, the full effect of Directive 2014/104 is yet to be seen. Private enforcement of competition law in Serbia is still in its initiation phase. The Serbian Competition Protection Act 2009 proclaimed the right of damaged persons to bring actions for damages, even though this right has already existed under the general rules of civil law. The Competition Protection Act failed to stipulate material conditions and procedural rules that would facilitate private enforcement. The Serbian legislator has not yet taken steps to transpose ADD into national law. This paper first analyses the development and principal features of the US and EU private enforcement models. After that it focuses on the ADD provisions expediting evidence collection and damage assessment. The second part of the paper analyses Serbian tort and civil procedure rules relevant to bringing actions for antitrust damages and case law on antitrust damages. The author concludes with proposals for Serbian legislators to harmonise national law with ADD.

Illegal evidence in criminal proceedings: Collecting of evidence by authorized officials of internal affairs bodies

The subject of the research is a theoretical, normative and practical analysis of illegal evidence in Serbian law and judicial practice, with a special emphasis on the manner of behaviour of authorized officials of internal affairs bodies, which during the conducting of evidentiary actions can cause the illegality of the obtained evidence. The goal of the research is reflected in the scientific and practical contribution to the scientific and social community, since in addition to the presentation and analysis of prominent scientific and theoretical concepts represented in domestic and foreign literature, the paper contains a detailed presentation of the results of the analysis of domestic courts decisions, but also the decisions of the European Court of Human Rights (ECtHR) in terms of violation of the right to a fair trial (Art. 6 of European Convention on Human Rights). The analysis of the aforementioned court decisions is extremely important, bearing in mind that the institute of illegal evidence de facto represents court standards. Namely, through the analysis of ECtHR decisions, it was established that the court assesses the legality of evidence in light of the violation of the right to a fair trial, in terms of the method of obtaining evidence, causes the unfairness of the procedure (as a whole). By analysing the domestic court practise, it was established in which cases the police collected evidence in an illegal manner, that is, in which cases the evidence was collected in a legal manner.

Bringing hazardous materials into Serbia and illegal processing, disposal, and storage of hazardous materials – a criminal offence under article 266 of the Criminal code

This paper examines the legal and practical aspects of Article 266 of the Serbian Criminal Code, which criminalizes the import, as well as illegal processing, disposal, and storage of hazardous materials in Serbia. The study explores the conceptual underpinnings of the law, emphasizing its role in safeguarding public health and environmental safety. It scrutinizes the application of Article 266, highlighting notable cases and enforcement strategies employed by Serbian judicial authorities, as well as a study cases related to problems of hazardous waste. The paper also delves into the inherent challenges in the legislation`s implementation, including the identification and classification of dangerous substances, the evolving nature of hazardous materials, and jurisdictional issues. Moreover, the study critically analyzes the impact of international conventions and European Union standards on Serbian law, exploring how global trends influence domestic legal frameworks. The paper concludes by offering recommendations for enhancing the efficacy of Article 266, suggesting legislative reforms, raising public awareness, and improving inter-agency collaboration to effectively combat the illegal handling of hazardous materials in Serbia. U radu se analiziraju pravni i praktični aspekti člana 266.

A dispute about gender-sensitive language in Serbian law

A dispute about gender-sensitive language in Serbian law

Insolveny Set-off and Close-out Netting under Serbian Law

Insolveny Set-off and Close-out Netting under Serbian Law

On certain issues of testamentary inheritance in Serbian law: De lege ferenda (part II)

On certain issues of testamentary inheritance in Serbian law: De lege ferenda (part II)

Struktura i ratio legis retencije u savremenom građanskom pravu

The subject of this work is critical analysis of key segments of the civil law institute of retention, i.e., the right to retain the debtor's property - primarily in positive Serbian law, but also in European regulations with the longest tradition of civil codes. Through the application of various scientific methods, particularly axiological and comparative law, the author analyzes and evaluates the following segments of Ius retentionis: definition, content and effect, forms, conditions for establishment, protection, and termination, with demarcation from related institutes. Commenting on various positive legislative solutions, the author also reflects on: the solutions of two previously drafted drafts that embody potential proposals for future Serbian civil law; as well as the model-rule DCFR, which constitutes part of the "soft" law of the EU, with which the domestic solution is useful to harmonize in the future, with the aim of determining the direction of further development of this institute. By providing explanation of some doctrinal and disputed retention issues (such as: permitted object, scope, legal nature), the author provides an authentic picture of this useful, but controversial institute. The author concludes that retention can be described as unfinished real right sui generis, an atypical legal real guarantee authentically exercised by self-protection technique, whose ratio legis is threefold: social, material and procedural justification. All of this finally outlines the direction of its further affirmation, i.e., the strengthening of retention in all segments of the institute, regarding: effect, content, expansion of the object, simplified conditions for establishment, as well as an increasing number of modalities.

Judicial Reform in Serbia in Light of “the Venetian Concept” of the Rule of Law

This paper analyses the influence of the standards of the Venice Commission in the area of the rule of law in the course of Serbian judicial reforms. The author first “sketches” the constitutional “path” of the idea of judicial independence and the rule of law in Serbia. He derives an “extract” from the “jurisprudence” of the Venice Commission in the area of the rule of law, which refers to the standards of an independent judiciary summarised in a document called the Rule of Law Checklist. The normative framework, which has been set by the constitutional amendments from 2022 and judicial laws from 2023, is a positive step on the way to building a national rule of law that will be compatible with international standards. In the coming period, Serbia will face numerous external and internal challenges. The Commission points to the relatively weak material position of judges, the lack of interest of young lawyers in applying for judicial positions, the large gap between retiring judges and young people. The Commission particularly emphasises the importance of building a legal culture. The author considers that segment essential for the success of the process that has begun. The author underlines that the international standards of the rule of law must not have absolute supremacy vis-à-vis the real needs of their adaptation to the national political, legal and social environment of the country in question. It is necessary to strive for a dynamic balance that will, in the long term, provide the conditions for the rule of law of national content that confirms the generally accepted civilisational values and achievements of the international legal community. Every step in that process must be carefully thought out and undertaken

Corporate Governance in Serbian Family-Owned Companies: Idle Opportunities

This paper aims to contribute to legal research on family-owned companies, focusing on Serbian law. This company type is the focus of Part Two of the Serbian Corporate Governance Code, which contains various specific corporate governance mechanisms, such as succession plans, family general meetings, family councils, and family protocols and recommendations aiming to achieve responsibility, transparency, continuity, efficiency, and fair treatment of all shareholders. The paper presents existing possibilities and explores whether a specific Serbian corporate governance regime dedicated to family-owned companies can be accommodated into a general company law regime. This paper aims to further promote the use of specific mechanisms designed for family-owned companies, paying particular attention to the importance of drafting family protocols. These protocols can regulate not only typical corporate governance issues but are also suitable to include the family-owned company’s vision and mission as a sustainable, balanced, and long-term viable business organization.

Usklađivanje nacionalnih pravila o odgovornosti proizvođača s potrebama digitalnog doba i zelene tranzicije

After a long discussion among professionals, academics, and competent authorities, at the end of September 2022, the European Commission published the Proposal for a directive on liability for defective products. Should the proposed legislative act be adopted by the European Parliament and the Council, the Serbian Consumer Protection Act of 2021 would also have to be amended in line with the new EU rules. Serbian law currently encompasses two legal regimes for non-contractual liability for damage caused by defective products: the older and more general regime prescribed by the Law on Obligations, and the newer regime established by consumer protection rules. The aim of this paper is to present both regimes of product liability currently in force in our country and to examine the reasons for their modification. The substantial reasons pertain to the obsolescence of existing rules, while the formal reasons for the change involve the ongoing alignment of our consumer protection law with EU law, which the Republic of Serbia has accepted as its legal obligation.

Ćutanje je zlato – analiza izreke kroz pravila trgovinskog prava

The authors are analysing the idea of silence as acceptance when concluding contracts, as the exception of a basic rule which exists in almost every legal system – autonomy of contractual will. They are taking a critical approach when analysing Serbian Law on contracts and torts, as well as giving comparative legal solutions and discussing how they can be implemented in Serbian legal system. If silence as acceptance is allowed as an exception of the rule, it should be interpreted narrowly and with main interests behind this approach in mind. They recognise attempt of this legal approach as incentivised by the law aiming to protect interests of contractors on the one hand, as well as society’s interests (frequency of transactions and legal certainty) on the other. Having that in mind, they explore different legal solutions, the way they correspond with this idea and give suggestions on how this legal problem should be approached.

Neredovna ostava u rimskom i srpskom pravu

The irregular deposit, a contentious concept in Roman law, is believed to have its origins in the eastern provinces of the Roman Empire, sparking debates among scholars about its existence in classical law. This contractual arrangement enables the depositor to utilize the deposited funds, which they own, with an obligation to repay the same nominal amount along with associated interest upon the depositor’s request. According to research, the author contends that this institution did exist in classical law. However, the irregular deposit was absent in Serbian medieval law. The Civil Code for the Principality of Serbia, influenced by the Austrian model, did not treat the irregular deposit as a separate contract. Present Serbian law addresses it in Article 722 of the Law on Contracts and Torts. The author also highlights potential shortcomings of this institution in the Draft Civil Code of the Republic of Serbia from 2015. The paper uses linguistic, historical, and systematic interpretation of passages: Paul. Sent. 2.12.9, D.12.1.9.9, D.12.1.10, D.16.3.24, D.16.3.25.1, D.16.3.26.1, D.16.3.28, D.16.3.27, D.16.3.29.1, D.16.3.1.34, D.19.2.31. and historical method.

Fidic Force Majeure Clause from the Viewpoint of Serbian Law

The purpose of this paper is to present force majeure as stipulated in FIDIC forms, which are nowadays frequently in use when negotiating the conclusion of construction contracts concerning major projects. An important remark is that these forms have been greatly influenced by common law systems where operation of force majeure is dependent on the contractual definition and wording of the clause. On the other hand, the Serbian Law on Obligations contains its own understanding of force majeure-related concept, which might be amended in accordance with the principle of party autonomy. The paper further aims to elaborate on this interplay between these FIDIC forms and Serbian law. The conclusion is that the FIDIC force majeure clause represents an important contribution to the domestic regime, which does not expressly address scenarios with temporary impediments, which is necessary for successful completion of construction works.

Načelo nezavisnosti i prevara u poslovima dokumentarnog akreditiva i samostalne bankarske garancije

This paper analyzes the independence principle and the impact of fraud on the obligation to pay letter of credit or guarantee amount in documentary letter of credit and independent bank guarantee. The independence principle implies that participants in legal relations base their rights and obligations only on facts of the relations in which they find themselves in. The most important exception to independence principle is fraudulent claim for collection. First of all, rules of the ICC and UNCITRAL were discussed. It is necessary to start from rules of these organizations because they adopted the most important autonomous sources of law for these transactions. Then, rules of American and German law are analyzed with the aim of determining the necessary standard of fraud in these legal systems, since this issue is not regulated in detail in Serbian law. Therefore, it is necessary to consider comparative solutions. In the last part, fraud is discussed from Serbian law point of view. In Serbian law, the most important mechanism for protection against fraud are court interim measures which prohibit payment of the letter of credit, i.e. the guarantee amount.

Pravo člana društva na naknadu refleksne štete: Uporedno-pravna i pozitivno-pravna analiza

The subject of the analysis is shareholder’s right to compensation for reflexive loss that occurs in its property due to the deterioration of the action taken against the company. While most rights adopt the so-called principle of prohibition of compensation for reflexive loss, this right is recognized in investment arbitration disputes. The paper aimed to determine the position of Serbian law concerning the observed conflict of rights. In Serbian law, the shareholders may have the right to claim compensation for reflexive loss if such a claim follows the principle of integral compensation for damages. In this respect, Serbian law is more favorable to the approach of tribunals in investment arbitrations than national laws. The approach of Serbian law should be maintained, taking into account all criticisms of the course that recognizes this right of shareholders to achieve the functions of tort and company law ultimately.

FIDUCIJARNI PRENOS SVOJINE U SAVREMENOM HRVATSKOM I SRPSKOM PRAVU

The fiduciary transfer of property is a controversial institute of real law, dating back to Roman law, which has been revived and reshaped by modern practice. The institute, as a kind of conditional, content-limited property, has had its significant place in the Law on Property and Other Real Rights in Croatia for 25 years, as an atypical real guarantee that is functionally most similar to the right of lien. The subject of the paper is a comparative and axiological anal- ysis of this institute in positive Croatian law and its status in Serbian law, whose positive regu- lations do not regulate this institute, but whose introduction is proposed by one of the two le- gal drafts. Considering the situation in Serbian judicial practice, which has been vacillating for a long time regarding the issue of the permissibility of this institute, and in doctrine - which generally recognizes it, the author’s position is that this institute should be standardized in Serbian law de lege ferenda, for legal certainty, whereby the Croatian regulation represents a potential model. Hence, it is important to critically assess certain segments of this solution, starting with the question of origin, expediency, content, effect and legal nature. The final goal of the paper is to evaluate the adequacy of the compared solutions, as well as formulate proposals for regulating fiduciary property de lege ferenda, as part of the planned reform of the Serbian civil law, as well as of the harmonization of national solutions at regional level.