Misdemeanor Law Research Articles

Szabálysértési "kontra" közigazgatási bírság

Aim: The legislator places the sanctioning of unlawful conduct in the various areas of law on the basis of principles of legal policy, expediency and effectiveness, but at its own discretion. The law on misdemeanours has traditionally covered conduct which is less dangerous to society and which does not rise to the level of a criminal offence. However, there are movements between the different areas of law. Some conduct is transferred from the area of misdemeanour law to administrative fines. It is not uncommon for certain offences to remain within the scope of the law on offences, while other offences in the same situation are transferred to administrative law. Can this phenomenon be linked to the system of sanctions in the two areas of law? What sanctions can be found in each area of law and how effective are they in sanctioning specific offences? The answers to these questions may provide a direction for the further development of the law of misdemeanours and may confirm the thesis already formulated in the literature that the gradually declining administrative protection function of the law of misdemeanours is being taken over by sectoral legislation and that the law of misdemeanours is increasingly becoming a shadow image of criminal law. Methodology: In order to answer the questions, the author compared and analysed the provisions of the Act on Administrative Offences and the Act on Sanctions for Administrative Offences, as well as the related literature. Findings: In order to understand this phenomenon, it is necessary to take into account the legal policy rationale and the questions of economy and efficiency. Value: The analysis has shown the similarities and differences between the various sanctions and has indicated which sanctions may be an adequate solution for specific behaviours. The findings of the study will be incorporated into the doctoral thesis on „The criminal power of public administration”.

(KAZNENO)PRAVNI POLOŽAJ DJETETA U SUKOBU SA ZAKONOM U REPUBLICI HRVATSKOJ: TEMELJNI OBRISI

The contemporary society has long recognized the child’s special position in the legal and judicial systems. Given that law is a reflection of societal understandings, such developments are the result of increased awareness of the need to adjust the law to the child at the normative and institutional levels, as well as the child’s unique protection within the legal (judicial) system. This is (must be) especially true in the repressive part of that system, i.e. criminal and misdemeanor law. The phrase “child in conflict with the law” appears in the more recent development of juvenile criminal law, so we will use it here as well. Therefore, in this paper, we provide an overview of the normative foundations and perspectives of the position of children in criminal and misdemeanor law, both at the supranational level (in terms of standards and impact on changes) and at the national level (in terms of the state and needs of Croatian society). The paper also discusses the position of the child as a victim of a criminal offense.

MALOLJETNIČKO PREKRŠAJNO PRAVO U BOSNI I HERCEGOVINI - RAZVOJ PREKRŠAJNOG PRAVA I ANALIZA PRAVNOG OKVIRA

Juvenile delinquency is a social phenomenon characterized by socially unacceptable behaviors of minors. In a narrower sense, it refers to unlawful behaviors of minors that are criminalized as offenses under the criminal legislation of a state, while in a broader sense, it includes not only criminal offenses but also other forms of behavioral disorders, i.e., so-called risky behaviors of minors (committing misdemeanors, violating moral norms, and other socially unacceptable behaviors). Juvenile misdemeanor law contains norms that establish the age threshold for juvenile misdemeanor liability, the system of misdemeanor sanctions for juveniles, and other measures that can be applied to juvenile offenders. This paper aims to present the development of misdemeanor law and the current legal framework of juvenile misdemeanor law in Bosnia and Herzegovina, which consists of regulations enacted at the state level, the entities of the Federation of Bosnia and Herzegovina and the Republic of Srpska, as well as the Brčko District of Bosnia and Herzegovina.

The legal protection insurance in the field of private life aims to provide coverage for legal costs that the insured is faced with in situations from their private life. By combining the coverage of the legal expenses according to different legal areas, it is attempted that the legal expenses insurance coverage meets the needs of the insured. It is particularly

Music entrepreneurship allows musicians independence and control over their careers, but also carries the risk of poor success or failure. Among other costs, it implies specific investments in musical instruments, studio equipment and non-musical auxiliary equipment that can be endangered by diverse damage or loss. Musicians may be exposed to claims due to their civil liability to third parties – class participants, guests, visitors and persons engaged in the organization and security of the concert, etc. Musicians can best achieve financial protection of their material interests through insurance. Therefore, this paper discusses several aspects of insurance of musicians, accepted concepts and content, insurance subjects, covered and excluded risks and damages under insurance conditions and business practices of the British insurance market.

ODREĐENI ASPEKTI PREKRŠAJNOPRAVNE ZAŠTITE POTROŠAČA

The paper deals with certain aspects of consumer protection under misdemeanour law in the Croatian law. In general, consumer protection in the Croatian law is achieved through different legal sources and several different consumer protection mechanisms. By analysing these regulations and methods of consumer protection, one tries to conclude on the adequacy of consumer protection through misdemeanour sanctions, bearing in mind the protected legal good and the purpose of sanctions. The paper is based on the fact that the general norms of misdemeanour law derive from the Misdemeanour Act and that the goal is to investigate the peculiarities deviating from the existing regulation. The research reveals some specificities and distinctive features of misdemeanour sanctions and misdemeanour proceedings aimed at protecting consumers. Firstly, the focus of protection is on the consumer, who is not uniformly defined in all regulations that foresee misdemeanours. Furthermore, the permissibility of protecting certain legal interests (life, health) by misdemeanour regulations that govern consumer protection is analysed. Additionally, attention is drawn to the shortcomings of the existing framework of misdemeanour sanctions, arising from the implementation of various directives and other European sources aimed at protecting consumers that aim to introduce effective, appropriate, proportional, and deterrent sanctions into national law. Further harmonisation of the sanction framework has been achieved through the recent transposition of Directive (EU) 2019/2161, which introduces new criteria for determining sanctions. It also emphasises the application of the non bis in idem principle, which is relevant to national law. Additionally, as a special feature of misdemeanour consumer protection, the principle of opportunity has been analysed in the study.

Opseg pokrića rizika iz osiguranja pravne zaštite na području privatnog života

The legal protection insurance in the field of private life aims to provide coverage for legal costs that the insured is faced with in situations from their private life. By combining the coverage of the legal expenses according to different legal areas, it is attempted that the legal expenses insurance coverage meets the needs of the insured. It is particularly suitable for providing the so-called family coverage of legal protection for the insured and his family members. After introduction, the paper deals with the forms of legal protection insurance in the field of private life and defines the insured and the co-insured persons in more detail. Also, the insurance risk coverage according to individual legal areas is presented (damage compensation, labour relations, criminal and misdemeanour law, family and inheritance law, property and obligation law regarding movables, traffic legal protection). At the end, the individual exclusions from legal protection insurance coverage in the field of private life are presented.

Efikasnost prekršajnopravne zaštite životne sredine u Beogradu od 2017. do 2022. godine

The authors aim to present the mechanism for the protection of the environment through misdemeanor law in Belgrade for the period from 2017 to 2022, analyzing its effectiveness in broad terms. The five-year period covered by this study is determined as a period in which certain trends can be recognized and followed, both in terms of the structure of prohibited behaviors directed against the environment and regarding the activities undertaken by competent administrative authorities and misdemeanor courts as a form of formal response. The study begins with the concept of the environment defined in the Environmental Protection Law. The study analyzes those misdemeanors whose commission changes and/or can change the states and conditions in the environment. The effectiveness of protection through misdemeanor law is analyzed in three aspects. First, the scope of the prescribed offenses is considered. On the other hand, the complete absence of prescribing certain actions directed against the environment as misdemeanors is observed. Further, the quality of the misdemeanor provisions themselves is considered, especially in terms of their sufficient specificity to ensure their straightforward application by administrative and judicial authorities. Finally, the outcomes of misdemeanor proceedings related to offenses against the environment are analyzed. Aiming to further dispel the myth of "environmental crimes" as victimless crimes, the authors cite and explain the effects of the most common misdemeanors on both the environment and human life and health.

O pojedinim prekršajnim odredbama iz Zakona o duvanu

Persons committing misdemeanors pursuant to the Tobacco Law are prosecuted pursuant to a misdemeanor notice. Should such person be found responsible in the ensuing procedure, the misdemeanor court may sentence him to the most severe fine foreseen in the Misdemeanor Law, as well as in the Tobacco Law. Apart from prescribing misdemeanors, the Tobacco Law also contains other provisions of importance for material and procedural misdemeanor law, as well as the enforcement of misdemeanor law. The subject of this paper are exactly these specific misdemeanor provisions from the Tobacco Law.

Oduzimanje vozila u prekršajnom pravu Republike Srpske

Confiscation of objects is a protective measure provided in misdemeanor law which may be applied to confiscate objects used in the commission of a misdemeanor, those intended for the commission of a misdemeanor, and those resulting from the commission of a misdemeanor. The imposition of this protective measure encroaches on the exercise of the property rights of the person who is the owner of the confiscated items, who may or may not be the person who owns the confiscated items. In this paper, the author analyzes this protective measure from the point of view of the property rights of the person who has been imposed this protective measure. In its practice, the European Court of Human Rights highlighted the criteria that must be taken into account when assessing whether property rights have been violated when imposing this protective measure. These criteria are also accepted and respected by the constitutional courts of the countries in the region. The object of confiscation can also be a vehicle, in case of a customs misdemeanor and a misdemeanor in the field of traffic violations. Pursuant to the new legal provisions on this matter, which are expected to enter into force in the near future, a vehicle may be confiscated from a person who has committed a traffic misdemeanor. The same measure may also be imposed on persons who are repeated traffic offenders, which actually gives this sanction the character of a punishment rather than a protective measure.

Krivičnopravna zaštita izbornog prava u Srbiji

Serbian law stipulates several types or levels of legal protection of electoral rights. Having raised it to the level of constitutional right, a high level of legal protection has been reached, and it is complementary to the importance of constitutional rights. The first and basic type of legal protection involves remedies during the election procedure, a legal procedure sui generis, to which the rules of administrative procedure are applied accordingly, i.e. subsidiarily. The second level of protection is judicial protection before administrative courts based on appeals by authorized entities participating in the election. The third type of legal protection is the penal protection which takes place in two ways - through criminal law and misdemeanour law protection of electoral rights. Commercial criminal protection of the election rights is not possible. The fourth and last level of protection is the constitutional judicial protection of electoral rights, which is stipulated by the Constitution and only in cases where no other type of legal protection is provided - as an ultima ratio. Crimes against electoral rights are stipulated in the basic criminal legislation, as they occupy the entire chapter in the Criminal Code and there are nine of them. Misdemeanours are stipulated in secondary criminal legislation - the Law on the Election of the Members of Parliament, where there are six of them. Based on the analysis of statistical data, the conclusion is that the criminal protection of electoral rights is not intensive, that it is sporadic and selective, which is reflected in the purpose - general and special prevention. Crimes against suffrage are prosecuted ex officio, so the procedural hibernation of the public prosecutor's office results in the impunity of the perpetrators and the contamination of social life. What would represent de lege ferenda is that, as part of possible changes to the law, a provision should be made that the Public Prosecutor's Office should act with specific urgency in cases to do with elections, because after the end of the elections, the effects of general and special prevention radically decrease.

WHAT HAS THE COVID-19 PANDEMIC TAUGHT US ABOUT THE (IN)EFFECTIVENESS OF LEGAL PROTECTION AGAINST DOMESTIC VIOLENCE?

Combating domestic violence requires an interdisciplinary approach to solving this serious social problem, with law, legal practice and science playing a very important role. Theoretically, it appears as physical, psychological, sexual and economic violence, while the victims are mostly weaker social groups - women, children and the elderly. Numerous international documents, as well as national regulations in the field of family, criminal and misdemeanor law, provide protection against domestic violence, but statistical indicators do not speak in favor of sufficient effectiveness in their application in practice. The COVID-19 pandemic has in a way further intensified the existing ones, but also created new challenges in the fight against domestic violence. Measures of social isolation, unavailability of competent institutions and general uncertainty are just some of the causes that have contributed to the increase in the number of cases of domestic violence, and the possibility of protecting victims of such treatment.

MISDEMEANOR PROCEDURE INSTRUMENTS OF THE STATE REACTION TO MISDEMEANORS IN THE REPUBLIC OF SERBIA

The author analyzes the instruments of state reaction to misdemeanors as types of illegal acts in the Republic of Serbia. After introductory considerations where the prevalence of misdemeanors as penal delicts and the importance of misdemeanor law were pointed out, the author analyzed the modalities of the state reaction to misdemeanors. In the continuation of the paper, some misdemeanor procedural instruments are dealt with in important terms. The author analyzed the normative activity of the state, which is reflected in prescribing legal norms that provide for misdemeanors as penal delicts, made notes on authorized prosecutors in misdemeanor procedure, pointed out the importance and types of misdemeanor procedure, and considered the system of misdemeanor sanctions and execution of decisions. The author concludes that an important condition for the efficiency of the state response to misdemeanors through misdemeanor procedural instruments is adequate legal regulation of substantive and procedural misdemeanor legislation, and that in this segment in the Republic of Serbia it is necessary to make serious corrections and changes.

Pravni i institucionalni okviri zaštite dobrovoljnih penzijskih fondova u Republici Srbiji

This paper represents a synthesis of both theoretical and practical research studies in the field of voluntary pension funds in Republic of Serbia. The authors have selected two significant segments in the scope of these funds contributing to their unobstructed functioning. These refer to the legal and institutional frameworks for the protection of pension funds. Our country is among the last to have introduced the possibility of voluntary pension insurance. This was done by passing an independent Law on Voluntary Pension Funds and Pension Plans. The National Bank of Serbia passed a large number of bylaws regulating their business conduct in our country in more detail. The legal protection frameworks for these funds span across the other branches of law (criminal law, misdemeanor law, and other). In this way, the normative domain of voluntary pension funds functioning has been rounded off. Institutional frameworks for the protection of voluntary pension funds are entrusted to the National Bank of Serbia, which supervises their functioning. This institution can also conduct the supervision over legal entities connected with the subject of the supervision by property, management or business relations, thus enabling a complete insight into their business conduct.

Specifičnosti prekršajnog gonjenja prema Zakonu o poreskom postupku i poreskoj administraciji

After a misdemeanor and its perpetrator are discovered, the prosecution of the misdemeanor is initiated. Pursuant to the Misdemeanor Law either a request for initiation of a misdemeanor procedure is submitted against the defendant, or a misdemeanor warrant is issued. Without an "initiation act", a misdemeanor procedure cannot be pursued. In the current Law on Tax Procedure and Tax Administration there are certain specifics concerning the procedure for pursuing defendants of tax misdemeanors. The author focuses on examining the characteristics of this procedure.

Legal protection of the human genome against the influence of genetically modified products

This article contains information on genetically modified organisms, their risks, and adverse effects, including on the human genome. An analysis of existing legislation in the field of genetically modified organisms is performed. As a result of the study, it was found that existing legislation does not provide effective protection of the human genome. The existing regulations in the Republic of Moldova in the field of genetically modified organisms correspond to international acts, but at the same time are inefficient and insufficient. There is a need to amend existing legislation, including by supplementing criminal and misdemeanor law with new regulations to ensure effective protection of that area. In drafting this paper, the international, regional, and national regulatory framework governing the field of the human genome, as well as that of genetically modified organisms, as well as a vast doctrinal framework in the field of genetically modified organisms were studied and used. The following methods were used: logic, analysis, and synthesis, systemic, empirical. At the end of the article, some proposals of the ferenda law were submitted, meant to cover the existing gaps in the legislation.

CHALLENGES OF APPLICATION AND INTERPRETATION OF REGULATIONS IN THE PRACTICE OF MISDEMEANOR COURTS

The author analyzes the always current issue of application and interpretation of regulations in the practice of misdemeanor courts. The scope and complexity of the matter in which misdemeanor courts act is pointed out, but also the fact that shortcomings in the regulation of regulations represent a major problem in court practice. The subject of the author's interest are the basic principles of application of law as the basic activity of misdemeanor courts, which is why the structure of the legal norm and the distinction between factual and legal issues are considered. Then, the notion of court interpretation of regulations was analyzed and attention was drawn to the dangers of applying the analogy in substantive misdemeanor law. The author considered the issues of court interpretation of regulations which provide for the objective responsibility of a natural person and different interpretations of regulations as the cause of uneven court practice. Numerous court decisions listed in the paper served as a basis to point out the importance of court interpretation of legal institutes for misdemeanor liability. Through the theoretical aspect and rich case law, the author analyzed some controversial issues and offered solutions to the problem, concluding that judges of misdemeanor courts in their daily work have great challenges related to the application and interpretation of regulations.

PREKRŠAJNO PRAVO U SLUŽBI SUZBIJANJA ZLOUPORABE DROGA U REPUBLICI HRVATSKOJ: POSJEDOVANJE DROGE BEZ NAMJERE STAVLJANJA U PROMET

When it comes to drug abuse suppression, the choice of a state reaction is conditioned by different circumstances, but the aspiration for efficiency is the primary motiv. The means of banning imply legal mechanisms and sanctions, and in the Republic of Croatia these mechanisms belong criminal and misdemeanor law. The subject of this paper focuses on the misdemeanor law in the view of the significant alterations presented in the Republic of Croatia a few years ago: drug posession without distribution intention has been left out of criminal law mechanism and left to misdemeanour law. However, the chosen solution also contains several open questions. We give answers to these questions in this paper, striving to approach them holistically. We present the legislative positions, taking into account the prior knowledge and the etiology of the accepted solution, representing the drug abuse in the society, and by conducting research of relevant judgments, we disclose the attitudes of the judiciary by examining the purposefulness of the adopted solution.

SPECIAL IRREGULARTY IN TAX LEGISLATION

Devlet kamu hizmetlerinin finansmanı için vatandaşlardan cebri icra yoluyla vergi toplamaktadır. Devletin mali egemenliğinin bir görünümü niteliğinde olan vergilendirme yetkisiyle toplanan vergilerin zamanında ve gerçek tutarlarında ödenmesi kamu yararının sağlanması için oldukça önemlidir. Vergilendirme sürecinin birey ve devlet arasında sağlıklı seyredebilmesi için vergi hukuku alanında esasa ve şekle ilişkin kurallar getirilmiştir. Bilindiği gibi usule ilişkin kurallar esastan önce gelmektedir zira, esasın doğru uygulanabilmesi için usule ilişkin kuralların yerinde uygulanması gerekmektedir. Dolayısıyla vergilendirmenin sağlıklı yapılabilmesi için Vergi Usul Kanunu’nda düzenlenen usul kurallarına uyulmaması halinde bir usulsüzlük söz konusu olacaktır. Kabahat olarak kabul edilmesi sebebiyle özel usulsüzlük fiilleri VUK’nun yanı sıra 5326 sayılı Kabahatler Kanunu’nda uygulama alanı bulmaktadır. Vergi usul hukukunda özel usulsüzlük fiilleri vergi kabahati olarak nitelendirilmiştir çünkü özel usulsüzlük fiilleri sonucunda uygulanacak yaptırımlar idari para cezası niteliğindedir. Bu çalışmada, usulsüzlük kavramından hareketle usulsüzlük fiillerinin suç ve kabahat ayrımı üzerinde durulmuş ve usulsüzlük çeşitlerinden olan özel usulsüzlük fiillerinin kavramsal mahiyeti ve bu fiillere ilişkin yaptırımlar tek tek ele alınarak mevcut yasal düzenlemeler ortaya konulmuştur.

Pozycja pokrzywdzonego na tle przepisów materialnego prawa wykroczeń

The aim of this work is to establish to what extent discrepancies of substantive misdemeanour law (relating to criminal law), which stem from simplification of responsibility rules, impact the position of victim. There are no general rules and principles relating to formation of the position of victim in either criminal law or misdemeanour law. Only by analysing particular regulations of the both respective codes allows one to reconstruct the status of victim and confronting it on the plain of the two responsibility regimes in question. The said confrontation reveals far-reaching differences within the scope of victim’s position in substantive regulations of misdemeanour law, some of which weaken the victim’s position, while other – strengthen it. Although those differences vary to their weight, yet it seems that regulations restricting the presence of the figure of victim are more significant – they genuinely decrease the competence of a person to whom the harm was made. Amongst the said regulations, first and foremost, have to be counted those that relate to possibility of ruling compensatory penal measures, as well as regulations defining the periods of limitation (aside from other discussed regulations). The assumed dual model of responsibility within this scope, in some cases, compromises the principle of equality before the law enshrined in Article 32 paragraph 1 of the Constitution of the Republic of Poland.

Main Problems of the Codification Works on Substantive Misdemeanor Law in People’s Poland

The result of the codification works that were carried out in the years 1960-1971 on substantive misdemeanour law in Poland was a Code on Misdemeanours of 1971. The measures created in this Code were strongly influenced by the idea of misdemeanours polarization and stratification of responsibilities. According to this idea, severe repression was supposed to be limited to the most serious misdemeanours. Towards other offenders progressive leniency was provided, with non-criminal means replacing them. Under influence of political factors the character of general part of Code on Misdemeanours was determined by provisions which were introduced aimed at severe treatment of serious offenders. Also the specific part was shaped in the repressive spirit. The conditions to realise the assumptions accepted by codifiers of the substantive misdemeanour law were created only after the fall of communist system in Poland, when in 1990 the adjudicating boards were cut off from the influence of Ministry of Internal Affairs and placed in the structures of the Ministry of Justice.