Serbian Civil Code Research Articles

Kritički osvrt na tumačenje o subjektivnoj prirodi opšteg osnova ugovorne odgovornosti

Inspired by the different theoretical positions from which he was taught by the professors in the subjects of Obligation Law and Commercial Law, as a student of the third and fourth year of studies, the author critically analyzes the argumentation according to which contractual liability is a subjective one and tries to answer the question of whether that argumentation fully supports the conclusion of debtor’s fault as a general basis of contractual liability. In this context, the author analyzes not only the Obligation Relationships Act , but also individual solutions from the Draft of the Serbian Civil Code as well as the Draft Code on Obligations and Contracts of 1969 (in Serbian: Skica za zakonik o obligacijama i ugovorima). Also, the author analyzes provisions of the UN Convention on the International Sale of Goods in the context of the application of the aforementioned argumentation. After considering the positions present in the legal theory, the author concludes that the mentioned interpretation is inconsistent and based on unstable, unreliable and legally uncertain foundations.

Rimsko pravo u delima Pavla Šeroglića - prvi deo - recepcija grčkog prava u rimskom, teorija prava, stvarno i obligaciono pravo

The article sheds light on the regulations of Roman law appearing in the works of Pavle Šeroglić, the first reviewer of Serbian Civil Code (1844) (The Review of the Civil Code for the Serbian Principality, Promulgated on 25 March 1844 (Pregled Zakonika građanskog za Knjažestvo srbsko, 25. marta 1844. obnarodovanog, published in Bačka vila 4/1845, 114-187), Counterresponse to Response of Mister Miloš Svetić in the Third Linguistic Counterattack (Replika na odgovor gospodina Miloša Svetića u Utuku III. Jezikoslovnome, Novi Sad 1847) and Civil Law in Croatian-Slavonian and Serbian-Banat Military Border (Građansko parvo u c.k. Hrvatsko-slavonskoj i Srpsko-banatskoj Vojničkoj granici, Šeroglić's undated and unpublished commentary of Austrian General Civil Code, kept in the archival materials of Sremski Karlovci Grammar School in the Archives of Serbian Academy of Sciences and Arts in that town. The provisions of civil law cited by Šeroglić are sorted by similarity with necessary clarifications thereto. This paper, being the first of two sequels of the article related to Šeroglić's accounts on Roman law, shall shed light on the author's fragments on is Greek legal transplants in Rome, theory of law, property law and law of obligations, whereas the passages in relation with other branches of Roman law shall be scrutinized in the follow-up article.

Mihailo Konstantinović o radu na građanskom zakoniku u međuratnoj Jugoslaviji

The paper analyses the work on the codification of the civil code in interwar Yugoslavia and Mihailо Konstantinović’s opinion of that work, which lasted almost a decade and a half but did not lead to the adoption of the code. The paper describes the environment and circumstances in which the work on codification began, the main actors, their positions, the method of codification, and the outcome of that work – the creation of The Pre-Draft of the Civil Code for the Kingdom of Yugoslavia. Mihailo Konstantinović’s opinion on that work begins with the history of the creation of the Serbian Civil Code, and how it happened that the Austrian Civil Code was used as the basis, as opposed to the French Civil Code. Konstantinović’s arguments for why it was wrong to use the Austrian Civil Code, instead of the 1888 Montenegrin General Property Code are presented.

Osiguranje u Srpskom građanskom zakoniku iz 1844. godine - prilog istoriji pravnog regulisanja ugovora o osiguranju u Srbiji

Comparative legal and normative analysis of the Serbian Civil Code provisions from 1844 (hereinafter referred to as the SCC) on insurance contracts is the subject of this paper. Since it is a Serbian legal tradition from the period of restoration of the Serbian statehood and the struggle for fi nal liberation from the Ottoman Empire, the SCC could not reflect achievements of domestic legal theory and case law. Jovan Hadžić, the author of the Code, given his legal education and positive law in Vojvodina at the time, modelled the SCC on the Austrian Civil Code (hereinafter referred to as the ACC). Such an outcome was caused by the absence of previous regulations or business customs that applied to insurance contracts. Therefore, in this paper we compare legal provisions of both codes relevant to insurance contracts. The paper analyses the rules of certain aleatory contracts of the SCC, especially insurance, the regulation and subject matter of insurance contracts, the form and conclusion of insurance contracts. Obligations to protect and salvage property according to the SCC were analysed separately, having in mind that they could be applied accordingly in marine insurance.

O VAŽNOSTI JEDNOG PISMA KNjAZA MILOŠA OBRENOVIĆA ZA SRPSKO PRAVO I KULTURU

Miloš Obrenović, a Serbian prince, wrote a letter to Lazar Teodorović and Dimitrije Davidović. Work began on the creation of the Serbian Civil Code (which was promulgated in 1844), and various intellectuals of that time were hired to work on the Code project. Prince Miloš, who at this moment is familiar with a part of the written proposal of the Code, expresses his great dissatisfaction with the language used in the drafting as well as the way of explaining certain legal institutes. In our paper, we deal with the content, or more precisely, the analysis of this letter, considering it extremely important for Serbian culture and law and for what we can call Serbian legal identity. The aforementioned letter is an important manifesto for Serbian linguistic and legal culture, which began to be built in the 19th century and contains basic nomotechnical rules (rules for writing regulations) that are still in use today

Preispitivanje pojma stvari u privatnom pravu

In a rapidly changing World, changes in the field of law are inevitable, both at the theoretical level and in the domain of legal regulation. This, first of all, refers to basic doctrinal notions and legal definitions, which represent the basis for the construction and development of legal institutes. In this context, a special place is occupied by the thing, as a starting category of property law that regulates relations related to the appropriation. In many legal systems, but also in legal doctrine, it is not entirely clear what and under what conditions can be appropriated. This is, on the one hand, a consequence of legal regulation lagging behind changes in society, and on the other, legal science lagging behind other scientific fields and technological development. Serbian civil law is specific in this regard. In legal theory, which has been developing since the beginning of the 20th century under the strong influence of German doctrine and the German Civil Code of 1896, the prevailing view is that things are only matter (a material part of the environment). There is no general conceptual definition in the current laws. That gap can be filled by applying the old rules from the Serbian Civil Code of 1844, which contains a definition that, due to its breadth, is much more suitable for the era in which we live, than the one that the doctrine took over from German law. According to the SCC, "the name of a thing is understood in the legal sense of everything that is not a human being, or is not a person, and serves the needs of a human being." Such determination is closer to the position of fundamental sciences and modern integrative scientific disciplines of the new generation, according to which everything in the human environment is consists of matter, energy and information. Certain changes in the understanding of things occurred under the pressure of time and practical needs. Instead of meeting the changes, legal regulation and legal science react belatedly and intervene to what has been a part of reality for a long time. The gap between the normative and the real is alleviated by the fact that the other two elements of the Universe (energy and information) are also included under the traditional general notion of things (based on the thesis that thing is exclusively matter). Paradoxically, in many countries this was done in the domain of criminal law or under its influence. However, even that change is not enough. It is necessary to make another step towards what is the new reality in the 21st century and accept the fact that energy and (physical, structural) information should not be subsumed under a general term, because they are already part of the thing, they are inside it (as its constituents). Instead, a more abstract and at the same time comprehensive concept should be built. Summa summarum, in the spirit of modern science and in the broadest property law sense, a thing is every component of an environment that can be physically and legally subject to appropriation. Such a notion is sufficiently abstract and broad enough that it can encompass elements that at the current level of development of science and technology are considered to be constituent of everything existing, as well as some new ones, to which the evolution of scientific thought will lead. It can also represent a framework for finding answers to some new legal challenges. For instance, for complex problems related to physical information and the information code of matter such as DNA, which is followed by questions from the domain of biomedical engineering, issues related to the digital shadow of living matter and its reproduction, and in that context, with the so-called bioinformational property. Special attention is required for what is directly related to the fourth industrial revolution, above all the Internet of Things (IoT). Under the influence of technical and technological progress, the boundaries between subjects and objects of law are shifting or even being erased. Some things (understood in a modern way, as a synthesis of matter, energy and information) have or gradually acquire some kind of legal subjectivity. These include humanoid robots, various forms of artificial intelligence, etc. Virtual reality (Cyber space) and its (intangible, digital) entities, such as avatars, digital fashion, digital immortality, etc., represent a special area with which the modern concept of things should be connected. The paper also discusses some important issues related to notions and definitions, with the reasons for their rethinking and methodological approaches to that issue, among which the new scientific encyclopedism and interdisciplinarity are particularly significant.

Environmental protection in the draft civil code

Article 11 of the draft Serbian Civil Code establishes a precedent, i.e. the principle of environmental protection. It is manifested as an accessory popular civil duty erga omnes, a protected public good, and a means of civil rights? restriction. This paper investigates whether this new institution of civil law is necessary or at least opportune, purposeful and harmonized with positive law. The results of comparative and doctrinal insights indicate that the answers to these questions are affirmative. However, certain shortcomings of the proposed provision are found: the lack of a duty to restrain from environmental harm, the absence of the individual environmental right and the undefined impact on civil affairs and on the enjoyment of civil rights. Given the vague and blanket nature of the provision, these shortcomings can be remedied by broader interpretations and references to the rules of public and environmental law, ethics and intergenerational solidarity. This paper suggests another possibility, i.e. the intervention in the proposed text of the provision to complete the future civil law legislation and integrated environmental protection.

The Constitution of Sretenje (Candlemass) – 175 Years Later

The author points to some dilemmas and stereotypes regarding the Serbian Constitution of Sretenje, adopted in 1835, which have been rooted deeply in Serbian literature and consciousness. He calls for their re-evaluation and offers new arguments as a starting point to encourage further research. The author is of the opinion that the Constitution of Sretenje should be treated as the first Serbian constitution, that it was not imposed on the Serbian Prince Miloš in the aftermath of the so-called Mileta’s revolt, but that he sincerely wanted to provide a constitution for the country and had ordered its drafting long before; he also wanted to preserve the Constitution, and he most certainly did not revel in the negative reactions of the Great Powers, because of which he had to suspend the Constitution unwillingly only six weeks after its adoption. The author tries to prove that Prince Miloš was in favor of adopting the Constitution not only for his personal benefit, but rather perceived it as an important instrument for creating national identity and independence. Furthermore, the author reexamines the stereotype of Dimitije Davidović as the main creator of the Sretenje Constitution, as well as the clichés related to the French influences on its adoption. Finally, he disagrees with the prejudice that law was an irrelevant factor in the process of the creation of national consciousness among Serbs, and points out the strong legislative efforts of the mid 30s of the XIX century, which were led exactly by this consciousness, and have brought about not only the first Serbian Constitution, but also the emergence of the Serbian Civil Code in 1844. Based on the aforementioned facts, the author concludes that there is still a wide area of unexplored questions for the upcoming young researchers, especially concerning the impact of the foreign legal systems on the creation of the Constitution.

Pravo zaštite životne sredine u srbiji - između etike dobrih namera i etike odgovornosti

The paper focuses on formal and practical problems in the field of environmental protection, which occur as a consequence of omissions of the legislative and executive authorities in Serbia. The text analyzes the positive legislation and compliance of domestic legal regulations with international declarations and conventions ratified by our country (from the Stockholm Declaration and the Council of Europe Convention on Civil Liability for Damage Caused by Dangerous Activities to the Environment to the Rio Declaration), as well as with European Directives (EU Directive on Industrial Emissions) and Regulations (Regulation No. 525/2013 on monitoring and reporting of greenhouse gas emissions and reporting on other information relevant to climate change). The candidacy for equal membership in the European family of nations obliges the Serbian Parliament and the Government to make additional efforts in the direction of harmonizing our law with the European one. The paper takes a de lege ferenda approach, so the author explains the need to amend a number of laws, such as the Law on Environmental Impact Assessment, the Law on Strategic Environmental Assessment, the Law on Fees for the Use of Public Goods and the Law on Budget system, as well as the enactment of the Law on Climate Change and the Serbian Civil Code as soon as possible (in which dilemmas that hinder the subjects of law in using the environmental lawsuit as an instrument of environmental protection should be resolved). An unacceptable deviation from one of the fundamental principles established by the Rio Declaration was pointed out, which brings with it a number of structural problems and the inability of both the Green Fund institutions and a number of organizations that focus on ecology. The consequences of the discrepancy between the intentions proclaimed by the Constitution of Serbia and the National Strategy of Serbia for the accession of Serbia and Montenegro to the European Union from 2005 on the one hand and the absence of adequate legislative and executive activities in environmental protection, on the other hand, are obvious in the reports of the European Commission and the European Environment Office, as well as in the health risk and increased mortality of a large number of citizens of Serbia and other European countries, due to harmful emissions that cause pollution of air, water and soil in our country. In addition to the proposals for changes in the formal framework in the field of environmental protection, the paper points out the need to use those mechanisms of civil protection, such as environmental lawsuits (established by the Law on Obligations 1978), which is, by its nature, actio popularis and in that sense accessible to the widest range of subjects. The defense of the standards established by the Kyoto Protocol and the Basel Convention would, through the extensive use of this procedural instrument, be placed not only in the hands of representatives of the legislature and the executive, but also, the judiciary (conditionally, of course, because courts can decide only initiate a civil action, but not on its own initiative).

Pravnoistorijski pogled na državinsku zaštitu u srpskom pravu

The subject of this analysis are the mechanisms of possession according to the Serbian Civil Code and the Code of Civil Procedure from 1929, during the period between 1844 and 1941. The development of the protection of possession during this period is mostly reflected in the fact that possession in the Principality of Serbia and the Kingdom of Serbia was protected, first of all, by means of criminal justice, while in the Kingdom of Yugoslavia, this role was played by civil law. Although possession and its protection in the Principality of Serbia and the Kingdom of Serbia were also regulated by civil-law norms, the people were still relying on the criminal justice system to get protection. Beside the many ambiguities in the Serbian Civil Code related to it, the protection of possession was not regulated separately from standard civil procedures in the Code of Civil Procedure from 1865. Thus, only when the Yugoslav Code of Civil Procedure went into effect did possession get proper, civil-law protection on the territory of Serbia.

Životinje kao predmet registrovane zaloge

The adoption of the law that has introduced non-possessory lien securing the movable property and rights (colloquially called Act on registered pledge), allowed the commitment of animals, through registration in the register of stocks in the Business Registers Agency. The topic has been chosen, both because of the practical reasons (more and more domestic animals are being registered as collaterals in the Register), and because there are no articles on this topic in our legal science. In the article the emphasis is placed on the regulation of the legal status of animals, especially in the Act on registered bets, the Law on Obligations and Preliminary Draft of Serbian Civil Code. Special attention was devoted to the Animal Welfare Act, because of the provisions of this legal regulation that follow a series of obligations for the sides in the contract of registered pledge, as well as certain restrictions with regard to the animal as an object of inventory. Although our legislature is obliged, in accordance with the obligation of harmonizing national legal regulations with EU regulations, to implement higher standards in the treatment of animals as beings who have feelings, it is only partially done in our law. Draft Civil Code retains an approach that had the Law of Obligations Act 1978, treating animals as classical chattel. Such an approach has been abandoned in all the most important civil codification. The paper presents the proposals relating to the improvement of the existing legislation in this area. Proposals for amending the Law on registered pledges are defined in relation to issues not resolved by this piece of legislation, such as the question of the legal status of unborn offspring. It points to the practices of the Agency for Business Registers that is not based on law, which involves entering the maximum amount of credit to pledge any security. Despite the Act did not define the registered pledge restrictions in the case of animal advocacy, the paper, by applying provisions of the Animal Welfare Act, indicates which species should be excluded from the circle of potential subjects of pledge security, but also indicates the species that have not been registered ever, without obvious practical reasons, or formal ban.

Forma obećanja poklona pokretne stvari

This paper will discuss the form of a gift when the subject of the agreement is the transfer of ownership of movables. More precisely, the subject matter of this paper is the form of a gift promise, i.e. gift agreement which is concluded without the simultaneous handover of the thing. As the gift agreement is not regulated by the applicable regulation, the rules of the pre-war law apply to it. However, when it comes to the form of the gift agreement, in the domestic law occur, since the Serbian Civil Code up until this day, different legislative solutions and proposals for its regulation. Therefore, it is not entirely quite easy to answer the question of what rules should apply to questions concerning the form of a gift promise when it comes to movables. Also, other issues regarding the form of the gift promise are being disputed in domestic theory. This paper presents legislative solutions and proposals for solutions regulating the form of a gift promise since the Serbian Civil Code up until this day, as well as solutions from comparative law that have served as a model for regulating it. In addition, various authors' perceptions of the form of the gift promise and the consequences of lack of the obligatory form are presented. Lastly, the paper proposes how the form of the gift promise should be regulated in order to eliminate existing ambiguities.

Komentar Austrijskog građanskog zakonika pavla šeroglića

The article presents the commentary on the Austrian Civil Code written by the first reviewer of Serbian Civil Code Pavle Šeroglić (1800-1857). As shown by the contents of some of its parts, the commentary was made between 1 June 1848 and 7 May 1850. In the process of writing the commentary, Šeroglić used both literature and legal acts. The book Šeroglić most frequently relied on was the work titled "Manual for Austrian General Civil Law" (Handbuch des österreichischen allgemeinen CivilRechtes, Wien 1846), written by the Vienna lawyer Joseph Ellinger. The legal acts used in the commentary included Austrian and foreign codes and legislative acts, as well as Austrian by-laws. The commentary contains explanatory texts on 734 out of 1502 articles of the Austrian Civil Code. Most of the explanatory texts were placed in the titles on lien law, loan contract and marriage contract. On the other hand, Šeroglić provides no commentary at all in titles dedicted to bailment contract, commodatum contract and accession as a mode of acquiring property. The majority of Serbian legal terms present in the commentary had already existed in Serbian legal language but some of the expressions used by Šeroglić were literally translated from German. There are also terms probably coined by Šeroglić himself. Šeroglić's commentary has several defects: wrong translations, terminological inconsistency, insufficiently differentiated terminology, and complicated writing style. Based on the sources that Šeroglić used in writing the commentary and the structure of its text, it may be concluded that the commentary was primarily intended for practice rather than theoretical consideration. Judging by the contents of the commentary, its author was well acquainted with social environment and the level of education of the intended readership, the inhabitants of the Military Frontier. However, Šeroglić did not excel at language skills, the proof of which are mistranslations and wrongly coined legal terms.

Nediskriminacija u prednacrtu Građanskog zakonika Srbije

Nediskriminacija u prednacrtu Građanskog zakonika Srbije

Mixture of legal identities: Case of the Dutch (1838) and the Serbian Civil Code (1844)

The paper aims to examine the differences and similarities between the Dutch Civil Code of 1838 and the Serbian Civil Code of 1844. Although the historical circumstances of the two countries, their legal culture and their legal systems at the time of codification were significantly different, the author points to some similarities between their private law codes. Based on that comparison he distinguishes a more general problem of early modern codifications in the 19th century, namely the issue of legal transfer's logic, causes and outcomes. Both in the cases of the Dutch and the Serbian codifications the predominant stereotype in literature are that they were more or less copies of the model codes (the French Code Civil of 1804 and the Austrian Civil Code of 1811, respectively). The author points out that only recently some diverse intonations started to appear on this matter, related to the two codifications. He stresses that in both cases legal borrowings were in many aspects inventive, innovative and influenced by a variety of other sources. The author based his conclusion on a comparative analysis of different legal identities present in the Dutch and Serbian codes. On that ground he revises the concept of mixed legal systems and suggests that mixture of legal identities should be more flexible, less demanding and open-ended notion.

PORODIČNI FIDEIKOMIS U RIMSKOM PRAVU I NEKIM EVROPSKIM KODIFIKACIJAMA

Originally, fideicommissum represented the wish of the testator related to, for example, the place of burial, or the wish related to concluding marriage, etc. Such wishes in those times were not legally binding, but rather created moral obligation for the persons to whom they were directed to execute them. It was a wish, or a request made by the testator to be fulfilled by the persons who inherited his estate. Later on, it was Augustus who instituted fideicommissum as legally binding by favouring it in particular cases related to property rights. Fideicommissum was very similar to one other institution which also originated from Roman law, the legate. However, this institution exclusively referred to property, which was not the case with fideicommissum. These distinctions were lost in Justinian's Code where they became synonyms. In postclassical law, another institution emerged, called family fideicommissum (fideicommissum familiae relictum), which made family property inalianable. Thus, this fideicommissum ordered that family property be inherited by the eldest son (primogenitura), or the youngest son (ultimogenetura). This institution was fully applied in the Middle Ages becoming the basis of the social order of those times. It was abolished by bourgeois revolution and was not accepted later on in modern legislations. Fideicommissum was the part of Austrian Civil Code, as well as Serbian Civil Code which originated from it.

Nalog u naslednopravnom zakonodavstvu Srbije i ostalih zemalja Evrope

When it comes to free acquisition, it is generally accepted that a person who gives a certain benefit to someone, can burden that same benefit with some kind of duty, within the limits set by the law. However, the previously said does not indicate that the purpose of the burden is to set the counteraction to free acquisition, nor it is related to the restriction of freedom of acquisition, but to allowed modifications. One of the aforementioned modifications is a precatory provision, which, in addition to conditions and deadlines, has found its place in the Inheritance law. Its legal effect is reflected in the constitution of the burden to a person designated by the deceased person. The authors examine: the concept and the effects of the precatory provision in terms of its fulfillment, as well as the consequences that occur when the precatory provision is not fulfilled; who can be a subject when it comes to the precatory provision, if there are any legaly binding corelations between them, what kind of consequences the aforementioned brings with it; as well as where lies boundary of precatory provision in relation to similar institutes. Special attention has been paid to the national legislation, with the overview of the current provisions of the former republics of SFRY, Russia, Bulgaria, Austria and Germany, for the purpose of examining the extent to which the domestic legislation of the precatory provisions is similar, that is, how much it deviates from above- mentioned European legislations. Having in mind that the drafting of Serbian Civil Code is in progress, authors use the opportunity to point out certain shortcomings of the legal solutions of the precatory provisions and also to emphasize possible direction in which these provisions could be de lege ferenda composed.

Pojam i predmet prava plodouživanja Prednacrtu Građanskog zakonika Republike Srbije

Usufruct is the right of using and taking the fruits of something belonging to another. It was understood to be given for the life of the receiver the usufructuary, unless of shorter period was expressed, and then it was to be restored to the owner in the good condition as when it was given except for ordinary wear and tear In this paper, the author points some legal solutions pertaining to the institute of usufruct as envisaged in the Draft Civil Code, and in the Draft Code on Property and other Rights. This institute in the Republic of Serbia positive Law has not been comprehensively regulated yet, but in the most of cases we still apply the legal provisions contained in the Serbian Civil Code of 1884. For the first time in modern legal history in Serbia, usufruct is completely regulated in the Draft Civil Code, in about 42 articles and in the 43 articles in the Draft Code on Property and another Rights. In addition, the author s focus is on the object of usufruct. Providing that both Drafts will be adopted, the Serbian legislation will obtain a modern institute of usufruct.

Life and work of Pavle Seroglic (1800-1857): Part one: Draft biography of the first reviewer of Serbian Civil Code

Life and work of Pavle Seroglic (1800-1857): Part one: Draft biography of the first reviewer of Serbian Civil Code

Maternity Contract based on the birth for someone else / Materinstvo na osnovu ugovora o rađanju za drugog

The Draft of the Serbian Civil Code provides for a new contract for the birth for another person, on the basis of which the parental relationship is established. This contract obligates the surrogate mother to carry and give birth to a child and deliver it to the married couple or companions (the intended parents), after impregnation by seeding cells of one or both of the intended parents. The intended parents are required to take the child and establish the parental relationship with the child.The contract can be signed by a woman who lives with a surrogate mother (particularly justified by the reasons and determined on by the court in a contentious procedure - Article 63 of the preliminary draft), when it is necessary to use the seeding cells of the intended mother.The contract on the birth for another person is not in the interest of the child. In the countries where it has been adopted, it represents a means of exploitation of the poorest women and it is unnatural. In the Draft, the contract is regulated mainly according to the general legal standards, whereas the autonomy of the parties involved regulates the rights and obligations (such as the waiver of surrogate mother to the status of mother, the moment of acquisition of parental rights of the intended parents, the handover of the child, reimbursement of reasonable costs, etc).