Serbian Law Research Articles

Pravna (ne)sigurnost ugovora o lizingu nepokretnosti u savremenom srpskom pravu

The article focuses on legal insecurity under different forms of real estate lease contracts, present in contemporary Serbian law. Applying dogmatic and comparative legal methods, the authors explore the characteristics of domestic legal regime of real estate lease contracts, with special emphasis on possible application of rules of other nominate contracts to real estate lease contracts. In contemporary Serbian law only real estate financial leases are regulated, while other forms of real estate leases are not. Potential problems stemming from insufficient regulation are also evidenced in court decisions related to disputes originating from one of the innominate forms of real estate leases in Serbia. The analysis of these decisions points to issues causing legal insecurity under real estate lease contracts, which could be overcome through adequate amendments and supplements to the regulations. In this article, the authors propose specific solutions for regulating real estate lease contracts de lege ferenda, which the authors conclude are the best approach for overcoming the existing shortcomings.

Zakonopravilo Svetog Save (Svetosavski Nomokanon) i Zakonik Stefana Dušana (Dušanov Zakonik) kao izvori srpskog prava u srednjovekovnoj Srbiji

The paper deals with the sources of medieval Serbian law: Saint Sava Law (Nomocanon) from 1219 and Stefan Dušan's Code from 1349 and 1354. Little is known about the Nomocanon of Saint Sava although it was a legal act used 130 years before the first part of Dušan's Code. This legal source is rarely mentioned in the textbooks, hence the correctly applied phrase in theory is: "such a relation to Saint Sava Law is a manifestation of conscious denial and a lack of culture." Some authors add that this means "forgetting the rich legislative activity of one of the most important personalities of medieval Serbia." Dušan's Code, the Law of the Emperor Stefan Dušan, is the most important law (constitution) of medieval Serbia, which was made on the foundations of the Nomocanon. In some articles, Dušan's Code directly refers to the Nomocanon (Articles 6, 8, 11, 01, 109, and 196). The author of this article points to these two very important works of Serbian medieval law and advocates for the return to the roots, the reaffirmation and the comprehensive study of the Saint Sava Law. This almost forgotten rule of civil law in medieval Serbia was the foundation of Dušan's Code, from 1349 and 1354.

Akvilijev zakon u srpskovizantijskim kompilacijama

The author, studying the reception of Roman law in medieval Serbia, examines the case of famous lex Aquilia. First, Roman legal sources were analysed, then their transformation through Byzantine law and finally their reception in the Serbian medieval law. Lex Aquilia and its interpretation by Roman iurists is present in the medieval Serbian law in the very modest way. It is reduced down to only two or three fragments respectively, from the Justinian's Codex and the Digest title 9.2. Ad legem Aquiliam. The fragments are concerned with the cases of damage caused by killing pecora C.3.35.5 and by burning - urere: D.9.2.30.3 (Paulus libro 22 ad edictum), D.9.2.49.1 (Ulpianus libro nono disputationum). The above mentioned fragments first found their place in the Byzantine compilations (Ekloga, Proheiros Nomos, and the Syntagm of Matthew Blastares). Then they became part of the Serbo-Byzantine compilations: the Nomocanon of Saint Sava (ca. 1219), chapter 55 called City-statute (translation of Proheiros Nomos), the Syntagm of Matthew Blastares (14. century) translated into Serbo-Slavonic language (E-7). The abridged version of the Syntagm of Matthew Blastares (E-4) was made in medieval Serbia by reducing ecclesiastical law and preserving civil and criminal provisions. The compilation entitled Constantine Justinian's Law is based mainly on the Syntagm of Matthew Blastares. The way of reception shows decay and vulgarisation of the Justinianic tradition. For example, above mentioned texts were associated with criminal law and merged with the fragments from the Digest' book 47, title 9 (De incendio ruina naufragio rate nave expugnata), and the cases of incendium - D.47.9.9 Gaius libro quarto ad legem duodecim tabularum, D.47.9.11 Marcianus libro 14 institutionum. The fragments of Roman iurists were abridged by dropping out all teorethical issues. Only pure casuistry is preserved.

Održaj kao način sticanja prava svojine na nepokretnosti

The aim of the paper is to determine the exact field of application of the institute of acquisitive prescription, that is, to find the answer in which situations in practice it is possible to fulfill all the conditions required by the legislator and acquire the ownership by usucapio. The main question raised in the paper is whether there is an actual need for the existence of acquisitive prescription in contemporary Serbian law, bearing in mind that the data in the real estate cadastre has been duly kept. The institute of usucapio has also been analyzed from a perspective of application of the reliance principle on land registry. Certainly one of the most problematic question is the justification (and also the legal basis) of this institute having in mind the idea of the inviolability of ownership.

Heavy metal accumulation in vegetable species and health risk assessment in Serbia.

Continuous monitoring of heavy metal content in vegetables is of high priority for population nutrition control, as well as risk assessment for human health. The chemical composition of plants is a reliable indicator of their contamination by hazardous substances accumulated in the environment as a consequence of inadequately applied agro-technology. The main goal of this study was to examine the quality of vegetables that reach consumer markets as a function of growth location. Samples of 11 of the most common vegetable species used in the human diet were collected during a 4-year survey. Vegetables originated from local farm producers who cultivated them at different locations in Vojvodina Province, Serbia. Many vegetable samples contained disturbingly high levels of the investigated metals: cadmium, lead, nickel, and chromium. The plant species with the highest Cd accumulation was spinach, where Cd leaves exceeded the maximum permissible concentrations (MPCs) in more than half of the analyzed samples from different localities (54%). Pb concentrations in spinach were also higher than MPC values (according to Serbian law 3.0μg/g) in 46% of all analyzed samples. Results showed that Cr levels in all tested vegetable species were below MPC values recommended by the FAO/WHO organization. The largest chromium accumulator was spinach, with average values of 2.3μg/g, followed by beetroot and parsnips with an average concentration of 1.4μg/g. The highest average content of Ni in all analyzed vegetable species was also recorded in spinach leaves, with an average value of 2.2μg/g, followed by broccoli (1.7μg/g) and tomatoes (1.5μg/g).

Legal Status of Whistle-Blowers in the Republic of Serbia: from Fragmented Protection of Civil Servants to the Fullscale Protection Model

The role of a whistle-blower is most commonly taken on by an employee, whose duty of loyalty to the employer is in confl ict with disclosure of the employer’s wrongdoing. This requires a balance between the interests of the parties to the employment relationship, on the one hand, and the public interest, on the other hand. It was taken into account in Serbian law when defi ning the legal status of whistle-blowers, from the fragmented protection of civil servants to the adoption of the Law on Protection of Whistle-blowers (2014). After elaboration of the evolution of protection, authors identify and analyze essential elements of the whistle-blowing concept, as well as its basic functions in Serbian and foreign law. This is followed by critical re-evaluation of the key aspects of protection of whistle-blowers in the legislation and case law of the Republic of Serbia (the circle of protected persons, motives for disclosure of information, damaging actions, the burden of proof and the gradual approach in whistle-blowing). The conclusion is that Serbia has achieved a slow but steady progress in the legal protection of whistle-blowers, and that there is need for further improvement, since certain legal solutions may separate the guarantee of protection of whistle-blowers from the purpose for which it was established.

Obuka sudija i pravo EU - pogled na uporednopravnu i praksu Srbije

EU law is a pivotal issue in modern-day judicial education in Europe. It is particularly important to ensure that, prior to EU accession, the judges of the acceding country are adequately trained on the fundamentals of EU law and its relation with national law and the role of the national judge in the European judicial space. Once a country becomes an EU member state, it is necessary to continue with adequate training and support to proper implementation of EU acquis by national judges. There is no right or wrong way to incorporate EU law in judicial training, although some best practice examples have been identified in the practices of EU member states, both of those that have joined the EU relatively recently and of the “older” EU member states. The authors will investigate the practices related to judicial training on EU law in Serbia in the light of good comparative practices of judicial training institutions in Europe and formulate recommendations for Serbia in the context of EU accession.

Jedan višekriterijumski pristup izboru najbolje ponude u javnim nabavkama

Business forms such as the goods and services sales to state-owned enterprises, due to its secure billing, are extremely attractive for private businesses and as such are susceptible to possible misuse. When there is the possibility of corruption, regardless of whether it takes place, not only the protection of the procurers' rights must be discussed, but also the protection of all parties involved in public procurement processes. The aim of this paper is to give a possible multi-criteria methodology for selecting the optimal of the submitted bids within the public procurement tender. According to the Public Procurement Law in Serbia, the procurement contracting authority is required to define the criteria for the winning tender with valued weights. The contribution of this paper lies within the new methodology which enables procurator to use transparent, unique and, by Public Procurement Law, correct way of choosing the best one from bids submitted within public procurement tender.

Pojam i klasifikacija upravnih radnji - između teorije i zakonodavstva

This paper deals with the concept of administrative actions and their classification in the Serbian law. With the adoption of the new Law on General Administrative Procedure in 2016, administrative actions have been defined in this Law. Therefore, there is a need for analysis and theoretical determination of this important institute of administrative law, bearing in mind that the domestic theory of administrative law dealt with administrative actions only on the basis of special administrative legal texts. This paper tried to analyze and compare whether there are significant differences between the theoretical conceptions and the new definition of Law on General Administrative Procedure, of administrative actions. Based on the spotted differences, the author tried to determine the concept of administrative actions, which would be in accordance with the new definition, but which will not neglect the previous theoretical views of the actions of the administrative bodies. Also, comprehensive classification of administrative actions was carried out, pointing to examples of administrative actions.

Neki aspekti korporativnog upravljanja zadrugom

A cooperative community is a wiling formation consisting exclusively of cooperative members who are their founders realising their own interests based on cooperative principles. It represents an independent subject in law having its own mechanism of a will creation. That is the cooperative administration or corporate management (further: CM) through which the cooperative community's will implements itself in concrete legal affairs with cooperative members, but also with other third persons on the market. In the comparative law the corporate management is mostly structured, in addition to the assembly of cooperative members, in two-tier system organs: the board of directors and supervisory board. Additionally, in Serbian law there is a special individual body - director. The week points of our cooperative community law is, except of establishing the board of directors, having none-cooperative experts as members of the board of directors and supervisory board. In this way, a cooperative community, being recognized as a business company, is put in an unequal and unfavorable position on the market compared to the other non-cooperative business companies. The paper critically explains our legal rules regarding the corporate management in a cooperative community, proposing the improvements in the form of proposals de lege ferenda, which would create the conditions for a greater democracy and efficiency in decision-making and doing business in cooperative communities.

Krivičnopravni aspekt silovanja u pozitivnom pravu Republike Srbije

Considering that a rape is one of the most violent criminal acts of nowadays, the author wanted to dedicate deserved attention to it by consideration of actual incrimination, with particular review to controversial situations which are happening through the practice. Changes of rape incrimination through the history of Serbian law were observed. Actual legislation was perceived as well as distinction between basic and qualified forms of this criminal act was pointed out. Positive attitude is highlighted - about extension of a criminal act to other act equivalent to promise, as well as gender neutral incrimination and matrimonial incrimination were praised. Central part of this paper is dedicated to the need of harmonization of Serbian positive law with Istanbul Convention (which creates obligation that rape without compulsion - and without consent - should be also punished). The paper was concluded with suggestions about more precisely incrimination and more comprehensively action of prevention.

PREDMET STICANjA SVOJINE OKUPACIJOM U SRPSKOM I RIMSKOM PRAVU

By occupation, as the original mode of acquiring property, the individual acquires the ability to introduce things with attributes in legal transactions, we can say with the minimum conditions and without any formality. In certain historical periods, the occupation was much more economically significant than today, which is somewhat due to the existence of a much greater volume of natural resources and a lesser influence of the state through legal regulations regarding their exploitation. Among rules that regulate the ways of acquiring property, the occupation still exists, but may be seen greater strictness in defining and determining the conditions that must be met for one person one person to acquire property occupation. This strictness is present in determining things that can be acquired by occupation. Accordingly, the subject of the author's work are norms that regulate the acquisition of property by occupation in Serbian law and Roman law.

Harmonizacija pravila o elektronskoj trgovini i pravo Srbije

The paper analyses the problem of harmonisation of rules in the field of electronic commerce, as well as its most important legal basis at the international and regional level related to electronic commerce in general, namely the Model Law on Electronic Commerce and the relevant European Union Directives. The analysis includes important determinants of this process, their focus, as well as the results at the national level, with their critical evaluation. The second part of the paper discusses the current state of the valid legislation in Serbia in this field, both at the conceptual level and in details per selected issues, all in comparison with the above-mentioned legal sources. Its relationship and impact on the existing, traditional contract law system is considered. Harmonisation of the rules on electronic commerce has been in progress in very specific conditions, characterised by the almost non-existent special national laws in this field, which led to a parallel creating of the rules at the international and national level. In this process, the crucial role at the global level was played by the Model Law on Electronic Commerce. Despite the wider acceptance and reception of its rules, it has not resulted with global uniformity in this matter, because the EU and the countries that are in the process of accession to that integration remained beyond the sphere of its influence. Considering its pioneering role, the Serbian Law on Electronic Commerce represents a satisfactory step forward in creating a sustainable legal infrastructure for these matters, although, naturally, it does not provide solutions to all the issues and problems in this field. In terms of content, it is conceptually based on the EU law, with similar normative solutions to individual issues. In this sense, the approach and rules of the Model Law have had the secondary significance. The compliance with its rules exists only to the extent that it exists in the EU law and this refers primarily to the issue of legal recognition of electronic contracts.

Pranje novca u međunarodnom i krivičnom pravu Srbije

Pranje novca u međunarodnom i krivičnom pravu Srbije

Začeci srpskog socijalnog prava u zakonopravilu Svetoga Save

Začeci srpskog socijalnog prava u zakonopravilu Svetoga Save

Prikaz podataka o kategorijama ukupnih (geoloških) rezervi urana u Srbiji u klasama mineralnih resursa iz aktuelne zakonske regulative

Geological data on the results of the research and on the 'determined masses of reserves', i.e. the total (geological) reserves of nuclear mineral resources, uranium and thorium in Serbia, were obtained by research carried out in accordance with the legal regulations of SFR Yugoslavia and of SR Serbia. In this paper, the mentioned data are considered in the light of the newly adopted concepts, mineral resources and reserves from the Law on Mining and Geological Exploration of the Republic of Serbia (Official Gazette of RS No. 101/15). By the moratorium on the construction of nuclear power plants in the SFR Yugoslavia in 1989 and the Law on the Prohibition of the Construction of Nuclear Power Plants in the Federal Republic of Yugoslavia (1995), half-century geological exploration of nuclear mineral raw materials started in 1948/1949 was interrupted. With this interruption, the many uranium occurrences and uranium deposits remained unexplored and unrated, and the separate categories of reserves B + C1 + C2 + D1 + D2 were not balanced, which reflects the low level of their research. Data on the total uranium reserves of categories B + C1 + C2 + D1 + D2 in Serbia, in the amount of 19 651 680 t or 13 537 779 t [14], are (with appropriate correction) shown via the 'established' conversion map (as a Bridging Document) in the classes of superiors , indicated and measured mineral resources (in situ) from the current Serbian law. The position of the author of the paper is to present the existing data on the total (geological) uranium reserves in the newly introduced terms from the current law and as such approximate to the interested users.

O dozvoljenosti ugovaranja troškova obrade kredita u pravu Srbije

Ever since the outbreak of the world economic crisis the banks have been burdened by a negative public image, which is a trend existing in Serbia as well. One of the consequences of such reputation are numerous lawsuits against the banks, including the ones requesting that the clause on loan processing fee be declared null and void, accompanied by the request for a refund of the amount paid with interest. Comparatively, in Germany, since 2014, a position has been taken by the Federal Court (Bundesgerichtshof, BGH) that contracting the payment of the loan processing fee by means of general terms and conditions of banks is null and void. This position of German courts resonated outside Germany as well, but nevertheless, the courts in some other countries, such as Austria, took the position that such contracting is allowed. In Serbia, after the transition commenced in the early 2000s, the case law was unified in the position that such contracting is allowed and valid until March 2017, when the Higher Court in Sombor passed a decision that such contracting is invalid, invoking Article 1065 of the Law on Contracts and Torts (ZOO), after which the case law started to meander. The reasons put forward in the domestic case law do not suffice for the successful defense of the position that contracting the clause on loan processing fee is null and void. Additional analysis of applicability of the reasoning of German courts within the framework of the Serbian law also demonstrates that the conclusion of such contracting being invalid is out of place, irrespective of whether the other contracting party is a consumer or not, and irrespective of whether the clause is a part of general terms and conditions or is individually agreed. Lastly, the author highlights the legal and economic consequences should the Supreme Court of Cessation take a different position regarding this issue, concluding that, apart from the favorable consequences for one party to the dispute and adverse consequences for the other, there would be severe negative consequences for the common interest, both from the legal and economic point of view.

Garancija i neke kontroverze u vezi sa uređenjem garancije u aktuelnom srpskom pravu

Garancija i neke kontroverze u vezi sa uređenjem garancije u aktuelnom srpskom pravu

Preobražaj klasičnog koncepta kolektivnog ostvarivanja autorskog i srodnih prava u kontekstu tehnološkog napretka i zakonodavstva EU

Legal systems have been regulating collective management of copyrights for more than hundred and fifty years, throughout that period the concept of the collective management evolved to answer to meet the challenges faced by modern society. The end of the last century witnessed transition from analogue to digital technology, a process that essentially shattered the very premises on which the classical concept of the collective management of copyrights was based. This technological development pushed for re-examination of the existing concept of the collective management of copyright and related rights. Over the past decade, the European Union has embarked on a reform of cross-border collective management of copyright and related rights in order to meet the needs of the EU market and find appropriate solutions to set up a new legal framework. EU tendencies are aimed at securing competition between organizations for the collective management of copyright and related rights, issuing of pan-European licenses for the use of Internet security, and the establishment of the free cross-border provision of services for the enforcement of collective rights within the EU. The EU legislation affirms a concept in which it is necessary to reduce the gap between the national systems of the EU members in the field of copyright and related rights and to facilitate provision of a more open online access to author's work within the territory of the EU. The above mentioned legislative activities, that have intensified lately, will certainly have an impact on Serbian laws due to the harmonization of the legislation of the Republic of Serbia with that of the European Union.

Promoting the rule of law in Serbia. What is hindering the reforms in the justice sector?

EU rule of law assistance relies on supplying institutional ties as well as economic and technical support to candidate states, complemented by a demand to comply with certain political conditions. But, the establishment of the rule of law is a complex and often long-term process that includes both different facilitating and inhibiting conditions. Since 2006 Serbian government has adopted the National Judicial Reform Strategy aiming to establish a legal system based on legal security and respect for the rule of law. Nevertheless, its judiciary sector still reveals serious difficulties, especially in what concerns the independence and efficiency of judiciary.Looking at Serbian efforts to reform the rule of law and promote an independent judiciary, we analyse how the EU has been influencing these reforms and try to identify the weaknesses and strengths of EU rule of law assistance. Finally, we aim to contribute to know why judicial reforms, introduced by legislation, are not resulting in a truly judicial independence in Serbia, and what are the main obstacles to its effective implementation.