Serbian Law Research Articles

Srpska štampa u Habzburškoj monarhiji o kodifikaciji prava u Kneževini Srbiji

The paper sheds light on the articles of Serbian press from Habsburg Monarchy related to the codification of law in Serbia. The authors shall discuss the columns of Serbska novina (Magazin za knjižestvo, hudožestvo i modu), Serbske narodne novine, Srbski dnevnik, Svetovid, Srbobran and Napredak in relation with the long way paths to the introduction of civil, criminal and commercial code, as well as codes of civil and criminal procedure for the Principality of Serbia. The trueness of the news shall be subject to examination, and the necessary explanations on the unclear spots of the newspaper articles shall be provided.

Subjektivni domašaj arbitražnog sporazuma u srpskom pravu

This article deals with the personal scope of arbitration agreements in Serbian law and covers issues of terminology, applicable law, form of the arbitration agreement and determination of persons covered by the arbitration agreement. The judgments of the Supreme Court of Cassation in Prev 58/2016 and Prev 37/2018 are criticed. The article reaches two general conclusions. First, the departure from the UNCITRAL Model Law in Article 13 of the Serbian Law on Arbitration has led to unpredicted problems and an unacceptable interpretation of Article 13, according to which this provisions lays down a numerus clausus of the grounds on which an arbitration agreement can be held to be coveringnon-signatories. Second, Serbian courts have not shown that they are up to the task of establishing a favourable environment for the development of arbitration in Serbia.

DER VERWALTUNGSVERTRAG IM SERBISCHEN RECHT

The paper deals with the new legal institute of administrative contract in Serbian Administrative Law. It was introduced in 2016 in the Law on General Administrative Procedure (LGAP), establishing rules on its definition, modification and termination, objection due to non-performance and subsidiary application of law on obligations. The prevailing opinions from the Serbian legal theory are shown through the analysis of the relevant articles of the LGAP with regard to the administrative contract – its definition, modification and termination of administrative. It is to be underlined that the problematic issues concern the differing legal positions of the public body and the private entity as contracting parties, as well as the consequence of this – a disputed legal nature of the administrative contract. It is concluded that the administrative contract in Serbian Law has a particular legal regulation; that it cannot be equated to a pure administrative act, nor a civil contract. Its normative regime is characterized by an ambivalent legal nature, where two legally unequal wills come to an agreement on the establishment of a mutual commitment (obligation), but with effects for the public as well. Here, the public side of the contract has a stronger standing and can to a greater extent influence the content of the contract. Baring in mind the positive (flexibility, efficiency, direct fulfillment of contractual aims with less governmental compulsion) and the negative effects (possible corruption, “selling out” of sovereign rights, endangerment of the uniformity of the legal system) of this instrument, it can be anticipated that the fragmented character of the regulations of the LGAP on the administrative contract will induce judicial practice and legal theory to give answers that the legislator omitted to provide.

U ime javnosti - legitimacija zastupnika kolektivnih interesa i širih interesa javnosti u upravnim stvarima

Serbian Law on General Administrative Procedure (LGAP) opened a possibility for broadening the standing in administrative procedures and administrative disputes, by inclusion of subjects representing collective interests and interest of the wider public - primarily, citizen associations and similar organizations. However, by failing to regulate a series of concrete issues, the Law places the administration and the Administrative Court before a challenge, demanding from them an extensive interpretation of not only LGAP's provisions, but other legislation already recognizing such organizations as AIDS in realization of the public interest. The author analyzes relevant legislation, as well as available administrative and court caselaw in search of these answers. The lack of explicit legal provisions could be balanced by a creative approach in practice, especially by the Administrative Court. Having in mind comparative solutions, the question arises whether it is necessary to regulate this category of potential parties separately or to link it more explicitly to the already existing notion of an interested party. Instead, completely new notions have been introduced - collective interests and the wider interests of the public - which are not or not consistently defined in Serbian law. The current, not so voluminous case law, shows that the administrative bodies need a more direct indication of the rules, i.e. a more explicit definitions of these terms. However, despite the restrictive legal framework, administrative bodies should be open to understanding the specific circumstances, i.e. the motivation that an organization has when it seeks standing. In the normative sphere, one of the solutions could be to envisage the analogous application of LGAP's provisions on the interested party. Other solutions could be sought in explicitly mentioning them in the provisions on right to appeal. The current formulations of LGAP do not provide sufficient guidance to the administration and an extensive interpretation would be a great challenge for them. An active approach of the Administrative Court could show the way for the administration toward and effective application of these provisions of LGAP.

ISTORIJSKI RAZVOJ PRAVA GRAĐENjA

The author presents the historical genesis of the institute of construction law, with the purpose of presenting the reasons for its introduction in the first place, starting from Roman law to the first civil codifications that can be called modern. In this regard, this paper presents Roman long-term land leases first (emphyteusis and superficies). Superficies are considered the forerunner of modern construction law, because, among other similarities, it had almost the same purpose that is achieved today by construction law: to enable cheaper construction of buildings on someone else's land. Part of this paper is dedicated to the reasons for the revival of the institute of construction rights in the first civil codifications from the end of the 19th and the beginning of the 20th century (Austrian law, German law, French law). This part of the paper will also reflect the forms of this right (construction rights and superficiary rights) which occurred when the Roman law was accepted in the countries of the Germanic and Roman legal circles. In the same period in Serbian law, there was an institute of permanent right to use construction land in social or state ownership, which was in accordance with the, now abandoned, collectivist concept of property rights and which in some way satisfied the interests of individuals and society as a whole. Today, construction right is regulated by most of the legal systems in the region, but also by the countries of continental Europe. In Serbia, this legal institute has never been regulated in the form we find in comparative law, but its introduction was proposed by the preliminary draft of the Civil Code of Serbia, which, if accepted, will, in our opinion, be fully applied in domestic social relations.

O konverziji ugovora u srpskom pravu sa posebnim osvrtom na sudsku konverziju

O konverziji ugovora u srpskom pravu sa posebnim osvrtom na sudsku konverziju

Opšti osnov ugovorne odgovornosti u srpskom pravu

U ovom radu pisac razmatra pitanje da li je ugovorna odgovornost po Zakonu o obligacionim odnosima načelno subjektivna ili objektivna. Razlog ovog razmatranja je taj što su se u skorije vreme javila uverenja da je ona objektivna, nasuprot starijim shvatanjima da je ona subjektivna. Nakon kratkog razmatranja razloga na kojim se zasnivaju starija i novija shvatanja, pisac zaključuje da je ugovorna odgovornost u Srbiji zakonom uređena kao subjektivna, zasnivajući takvo shvatanje na istorijskom, sistematskom i gramatičkom tumačenju odredaba Zakona o obligacionim odnosima. To znači da smatra da je krivica štetnika opšti osnov na kojem se zasniva ugovorna odgovornost u Srbiji, ako u pojedinom slučaju posebnim pravilima nije predviđeno neko odstupanje (poseban osnov odgovornosti). Pisac se ne upušta u pitanje ekonomske i pravne politike o opravdanosti takvog zakonskog rešenja.

Stavljanje zaveštanja van snage u austrijskom i srpskom pravu

The proceeding for declaring a will (testament) ineffective on the basis of facts presuming incompliance with the previously expressed last will of the testator, which is prescribed in several contemporary legislations, is distinct from the revocation of a testament as a strictly personal act by which the testator explicitly or tacitly expresses or manifests animus revocandi. The subject matter of this paper is the analysis of legal solutions regulating cases when the last will can be revoked in Austrian law (in case of cessation of partnership or kinship relations after making a last will and exclusion of the only child from the will due to the testator's misconception) and in Serbian law (in case of a substantial change of circumstances which were the testator's decisive motive to make the bequest of certain content at the time of making the will). After examining the facts which are the basis for the presumption of incompliance with the testator's last will and considering other conditions as prerequisites for the application of this institute, as well as their comparison, the author concludes that the legislator's intervention into the freedom of testation could be justified only if it is crucial for exercising this freedom. In other cases, such an intervention bears the risk of imposing additional restrictions, including the interference into testamentary freedom.

Ubistvo iz milosrđa u savremenom krivičnom pravu

Violent acts against life and physical integrity of others certainly fall among the most dangerous forms and manifestations of violent crime. These are different forms of homicide, including a range of criminal offences of murder; given the importance, nature, characteristics, and consequences of these criminal offences, all contemporary criminal legislations prescribe severe punishment. The Criminal Code of the Republic of Serbia envisages three types of murder (Art. 113-115 CC): a) 'common' murder, punishable by a term of 5-15 years' imprisonment; b) "privileged" murder in a heat of passion (manslaughter) punishable by a term of up to 8 years' imprisonment; and c) aggravated ("qualified") murder punishable by a term of at least 10 years or 30-40 years' imprisonment. In addition, many contemporary criminal legislations in Europe recognize a criminal offence of mercy killing; in different legislations, it is designated as mercy killing or euthanasia (killing out of mercy or compassion) or assisted-suicide at the request of the patient/injured party. Mercy killing is also envisaged in the Serbian criminal legislation as a special "privileged" form of murder, committed out of mercy or compassion voluntarily or at the explicit request of a person suffering a serious medical condition, which is punishable by a term of imprisonment ranging from 6 months to 5 years (Art. 117). In this article, the author discusses the concept, content and special characteristics of this "privileged" form of murder in Serbian law and in European criminal legislations, from the perspective of legal theory and practice.

Rešavanje o prigovoru nenadležnosti zbog ugovorene arbitraže u sudskoj praksi

It is important to be considered in which way is allocated the jurisdiction between a domestic court and an arbitral tribunal and how to resolve the conflict of competence. Arbitral proceeding will only be allowed in case it is based on a valid and effective arbitration agreement. Nevertheless, judicial power to review arbitral jurisdiction has to be restricted. Excessive court's intervention in arbitration undermines both party autonomy and the efficiency of arbitration and can cause relinquishment of the right to arbitrate. Indeed, it is not uncommon that a court's jurisdiction is invoked by a claimant as a dilatory tactic, however, a party can be noncommittal about arbitration, simply observing an arbitration agreement as null and void, inoperative or incapable of being performed. If a party commences a court proceeding, the party insisting on the enforcement of the arbitration agreement can invoke the parties' agreement to arbitrate as a defense before the national court. If the respondent fails to file a plea before making submissions on the merits the domestic court's lack of jurisdiction is healed. In case that defendant provides arbitration agreement, there is a presumption that the arbitration is competent, unless it is evident that agreement is null and void, inoperative or incapable of being performed. The role of the domestic court in this proceeding has to be limited and restricted. In Serbia, the protective barriers between arbitration and national court systems are the New York Convention and Serbian Law on Arbitration. Domestic courts have frequently been in a position to rule on the objection of lack of jurisdiction, and this paper analyzes how the courts dealt with conflict of competence. Several following issues have been identified, issues that the commercial courts and the Serbian Supreme Court of Cassation had to address in order to decide on the validity of the arbitration agreement. Furthermore, due to the fact that one of the main goal in the arbitration field is the harmonization of the laws as well as the case law, the author provides some guidelines and conclusions so that the Serbian courts can more confidently respond to these challenges.

Prethodno poresko mišljenje - pledoaje za njegovo preoblikovanje u srpskom poreskom pravu

Prethodno poresko mišljenje - pledoaje za njegovo preoblikovanje u srpskom poreskom pravu

Postupanje javnog beležnika prilikom zaključenja ugovora koji za predmet ima sticanje stvarnog prava na nepokretnosti koja se nalazi u inostranstvu - nekoliko napomena iz ugla međunarodnog privatnog prava

This paper deals with certain issues of private international law that Serbian notaries public must resolve when performing notarial duties in the process of the conclusion of a contract whose subject matter is the acquisition of rights in REM in immovable property located abroad. The author first deals with the question of whether Serbian notaries public have international jurisdiction to perform notarial duties with regard to these contracts. After that and bearing in mind that the governing law for these contracts is, pursuant to Art. 21 of Serbian Private International Law Act (SPILA), the law of the foreign state in which the immovable property is located, the author tries to clarify whether the notary public applies the rules of this applicable foreign law on the form of the contract or must comply with lex fori (domestic) rules on the form (which are, from the point of view of Serbian notaries public, of procedural nature). Finally, the author explains how, from the point of view of private international law, the notary public should proceed when concluding the contracts on exchange of two immovables, one of which is located in Serbia and the other in a foreign country, given that in such case the conflict-of-law rule of Art. 21 SPILA refers to two applicable laws - Serbian (domestic) law and foreign law.

Posledice otvaranja stečajnog postupka u srpskom procesnom pravu

Posledice otvaranja stečajnog postupka u srpskom procesnom pravu

Osnovne karakteristike univerzalne jurisdikcije u savremenom krivičnom pravu

Universal jurisdiction is resorted to when a territorial state or another state with jurisdictional priority based on the nationalities of perpetrator and victim will not or can not act in order to prevent international crimes stricto sensu (core crimes) or when there is no reaction of international judicial institutions in this respect. Having broad powers in terms of specific links to a prosecuting state and often in terms of perpetrator's presence in a prosecuting state, universal jurisdiction successfully fills these gaps, and takes part in the global effort of the international community to prevent the impunity of the perpetrators of core crimes. Using a comparative method (German, Spanish and Belgian legislation), we endeavored to point out the basic legal features of the matter, thus providing a basis for discussion in Serbian criminal law de lege lata and de lege ferenda. Major issues standing out in this context are universal jurisdiction in absentia, principle of subsidiarity and sham process. Even though universal jurisdiction, in its genuine form, appears only in core crimes, many important and recent issues in this field have been related to treaty-based crimes, as well as to ordinary crimes, and to certain extent they have also been touched upon in this paper.

Institut urbarara u srednjovekovnoj Srbiji

Urbarars are an institution of Saxon customary law, which was present in mediaeval mining laws of Bohemia and Serbia. The aim of this paper is to compare Serbian and Bohemian mediaeval solutions and to discover whether and to what degree urbarars were an original development within the Serbian mediaeval state. The results show that the two institutions are similar with regard to their judicial competence and the task of keeping registries of legal titles. The differences are more numerous. Bohemian urbarars were at the same time contractors for regal incomes, which leads to further differences. Serbian urbarars had smaller competences and, according to the sources, did not collect the urbor. Their jurisdiction was much narrower, confined to mining disputes of lower value. They survey the mining field and keep records about concessions and mining partnerships, which, in Bohemia, was the task of special notaries and not urbarars. The urbarars of Novo Brdo received compensation for their services in the form of fees for surveys and registration of legal titles, as well as fines for delicts, while Bohemian urbarars received a part of the collected regal income. Taking everything into account, it can be cautiously concluded that Bohemian solutions were closer to Saxon customs. On the one hand, Bohemian legal sources are at least a century older than the Serbian sources, on the other hand, Saxons in Serbia were few and were quickly assimilated, whereas Germans remained a significant community in Bohemia well into the XX century, which means that they could preserve their customs, as well as legal customs, more easily. This confirms the authenticity of a good part of norms of Serbian mining law, i.e. that from XIII to XV century it experienced a sui generis development in Serbia. It was then received in the Ottoman Empire and survived the state which created it by several centuries. The applied methods are linguistic, systemic and historical interpretation of the sources, as well as the comparative and historical method.

Osvrt na regulativu saobraznosti i garancije u mađarskom pravu - primer transpozicije Direktive 1999/44/EZ u opšta pravila ugovornog prava

In 2002 Hungary transposed the Directive 1999/44/EC on certain aspects of sale of consumer goods and associated guarantees, by amending the Civil code of 1959, rather than integrating the rules of the Directive into the then-effective Law on the Protection of Consumers of 1997. Such an approach reveals some advantages if compared to the Serbian law. Namely, in Serbia the former Law on the Protection of Consumers of 2010 introduced special rules pertaining to conformity and guarantees in consumer sales contracts. Consequently, the need arose to limit their scope of application from the general rules of the Law on Obligations of 1978 on the conformity and guarantees. By the transposition of the rules of Directive into the Hungarian Civil code a unique set of rules on conformity and guarantees has been created that has a general scope of application. While they are applicable to all contracts, the number of special rules applicable only to consumer sales contract is in fact relatively small. Furthermore, Hungarian law provides an example of coordinated functioning of commercial and obligatory guarantees. Commercial guarantee is, like conformity, regulated uniformly in the Civil code, applicable to both consumer and non-consumer contracts. Apart from commercial guarantees, there are several obligatory guarantees in Hungarian law introduced by decrees of the government, whereby their scope of application is clear. In contrast, the legal nature and scope of application of guarantee under the Law on Obligations in Serbia became vague after the adoption of the former Law on the Protection of Consumers of 2010, which introduced commercial guarantees in consumer sale contracts. This is also one of the negative implications of the transposition of Directive 1999/44/EC into the Law on the Protection of Consumers, instead of incorporating them into the rules of general contract law. The main legislative approach adopted in the former Hungarian Civil Code has not been changed in the new Code from 2013 either: conformity and guarantee remain regulated by the general rules of contract law. Obligatory guarantees introduced by decrees of the government also remain in force. A significant novelty in the new Code is the introduction of a direct liability of the produced or consumer goods, a legislative possibility offered by Directive 1999/44/EC.

Još jednom o kreditima indeksiranim u švajcarskim francima

The problem of loans indexed in Swiss francs has stimulated the debate regarding the legality of these loans and the legality of state intervention to protect debtors during the last decade. The problem is not new since the issue of changes in the value of monetary obligations has occupied a legal mind for many centuries. Th e theory of monetary nominalism has been generally used in comparative law to regulate monetary obligations, while the valorist theory has served as its corrective. It is necessary to answer under which conditions the nominalist theory should step back, and the valorist theory should be applied? In search for the answer, the author explains the development of the institute of changed circumstances (rebus sic stantibus), emphasizing the contemporary approach to allow for the accepting of the extraordinary changes of commercial factors and the subsequent frustration of the contract's commercial purpose as justifications for the breach of contract or its amendment by courts. Th e European countries have solved the problem of loans indexed in Swiss francs by adopting special laws on the conversion of the CHF debts and by annulling the CHF loans on the grounds of the failure of banks to inform their customers about risks related with the undertaking of debts indexed in foreign currency. Th e author analyses the Serbian Law on conversion of living property loans indexed in Swiss francs and the legal opinion of the Serbian Supreme Cassation Court on the nullity of the Swiss francs contract clause in the light of comparative law views on the issues of the changes in the value of monetary obligations and the duty to inform in pre-contractual stage.

GmbH i UG (Mini-GmbH) - rešenja zaštite poverilaca u nemačkom pravu

One of the most widespread forms of companies, not only in our, but also in other jurisdictions, are limited liability companies. This form gives clear advantages to its founders, but at the same time endangers the creditor's settlement. In this paper, the author lists and describes the ways of protecting the company's creditors in the German law, namely the creditors of GmbH and the newer UG (Mini-GmbH) with brief reviews of Serbian law and d.o.o. First of all, there is a possible liability of shareholders and directors of German companies in the very stage of establishment. Furthermore, payments to shareholders from the assets that are necessary to cover the share capital are prohibited. In addition to its legal minimum share capital of EUR 25.000, GmbH contains further institutes for adequate creditor protection, which makes it attractive not only to the founders, but also to its creditors. In 2008, with the Law on Modernization of the Rights of Limited Liability Companies and the Fight against Abuses (MoMiG), the German legal system introduced a new legal form of simplified GmbH (UG), which has the same nature with a few special characteristics. This is primarily the possibility of founding a company below the prescribed legal minimum of the share capital, namely 1 Euro. This legal form should be an alternative to the English "Limited", which was "flooding" the German market back then. This advantage brings certain restrictions, first of all in terms of capital maintenance rules. Due to the fact that d.o.o. has significant similarities with the general rules that apply to these legal forms of the German system, primarily due to similarities with UG in the form of a minimum share capital of 100 dinars, the characteristics and solutions of German law for the protection of creditors of this legal form will be analysed. At the end comes a brief review of the institute "piercing a corporate veil" in the German law system.

Sailing Upon Charted Seas: Notes on the Evolution of Serbian Law after the Ratification of the ECHR

Sailing Upon Charted Seas: Notes on the Evolution of Serbian Law after the Ratification of the ECHR

Prava pojedinaca i obaveze države u zaštiti kvaliteta vazduha

The paper analyses the status of international agreements in the field of air protection, aiming to interpret the discord between the adopted legal standards and their application. Having in mind the harmonisation process of Serbian law with the EU law, the author further analyzes the obligations of Member States arising from Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe, the developed practice of the CJEU which embodies elements determining the rights of individuals to initiate a procedure for protecting the right to a healthy environment if states do not adopt an air quality action plan, as well as the measures that domestic courts may prescribe to ensure the implementation of decisions establishing the obligation to implement measures for reduction of emissions above the limit values. The concluding sections analyse the degree of harmonisation of our positive law with the adopted standards and the environmental acquis. Having in mind a substantial number of cases related to air protection in the practice of the Serbian Protector of Citizens (Ombudsman), the analysis of the application of recommendations arising from these cases may suggest the degree of harmonisation of commitments and their application, and serve as an instrument for amending positive law.