Статьи журнала - Pravo - teorija i praksa
Все статьи: 201
Статья научная
“Silence of the administration” represents the tool for the regular legal protection of the parties within the administrative procedure, whether the subject is the procedure being initiated by the parties who have a personal interest or due to the ex officio procedure. In both cases, either due to a long lasting procedure or to an untimely decision which is being rendered in relation to the terms envisaged by law from the side of the administration, significant damage is being endured. Moreover, in both cases, the inactivity of the administrative authorities has numerous aftereffects. The Real Estate Registry and Cable Duct Cadaster represent a Public Book which has data on immovable properties and rights regarding the very same necessary for rendering numerous other rights before the other state authorities and judiciary. Data referring to the Real Estate Registry and Cable Duct Cadaster represent the initial base while rendering the rights before the business banks and within the economic field, in general. Thus, cadaster data should be updated regularly, which presupposes both active and timely registration of documents in the Cadaster, whether based on the submitted documents for the purpose of the registration within the Cadaster, the very same documents to be adopted or a negative administrative act to be rendered. However, in practice, one can often encounter that this legal protection instrument of the parties cannot be applied, bearing in mind that non-acting in the administrative procedure which is being held before the Real Estate Registry and Cable Duct Cadaster has not always been caused by a non-compliance with the terms by the side of this administrative authority. Namely, the administrative procedure being held before the Real Estate Registry has its specific characteristics due to which this very Institute of the Administrative Law deserves a greater attention. The existence of the priority norm, i.e. the obligation of acting upon the requests of the order of their reception in the Real Estate Registry and Cable duct Cadaster, leads to the other point of view regarding the acting of the administrative authorities and decision rendering based either on the requests of the parties or based on ex officio within the terms envisaged by the Law.
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Статья научная
Benefits of a bank guarantee in relation to other legal means of security prescribed by the Law of Contract are in its legal diversity and applicable use in accordance with the specific interests of business entities and their business relationships. The complexity of transportation of goods by waterways, especially from the aspect of transportation of goods by international waterways, produces a number of situations that are both legally and economically problematic from the transporters` point of view. A bill of lading guarantee gives an assurance to the shipowner as the beneficiary of the guarantee that he will be paid the guaranteed monetary amount from the guarantee if the person who was obliged to compensate the damage - the recipient of the goods, does not fulfill his obligation. In this way, the shipper is fully secured from the occurrence of possible damage and costs. This paper deals with the issues of relevance to the bill of lading guarantee, the legal nature of such a type of guarantee as well as the important issues in the domain of the ways of determination of the guaranteed amount, the valid period of the guarantee, and the manner of issuing the warranty.
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A conclusion of contracts for the international sale of goods
Статья научная
The international exchange of goods is done through a contract on the international sale of goods. A conclusion of a contract on the international sale of goods is based primarily on the autonomy of the will of the parties, unless that autonomy of will is limited by the compulsory regulations of the states. All sources of law cited in the paper, such as international conventions, autonomous sources of law and even customs and business ethics, can be changed by the disposition of the will, because they are of a dispositive character. The contracting parties most often agree on the application of the United Nations Convention on Contracts for the International Sale of Goods, the so-called Vienna Conventions, except in cases where there are general conditions and standard contracts. The Vienna Convention, which is a compromise of continental, Roman and Anglo-Saxon law, is most often contracted. The offer and its acceptance are necessary for the conclusion of the contract, except for standard and formal contracts. The offer is a final act, and the acceptance of the offer is a statement of the agreement with the offer. The offer must have essential elements of the contract, but it can also have irrelevant elements. By concluding a contract with the application of INCOTERMS clauses, most irrelevant elements of the contract are regulated.
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A constitutional disposition of cultural male circumcision as a heritage right
Статья научная
South Africa’s constitutional framework entrenches a variety of legislative imperatives that protects culture as a right. Sections 30 and 31 of the Constitution, 1996 were specifically enshrined to resonate with the spirit and purport of the need to protect cultural rights. Some statutory enactments such as Children’s Act 38 of 2005 and Limpopo Initiation Schools Act 6 of 2016 are also highly respectful of cultural rights thereby enabling cultural families and communities to subject their children to practice any such cultural activities of their choice, but to the extent that it is practicable. It is argued that while South Africa’s post-1994 constitutional apparatus are fundamentally rights-based orientated and thus require the state and every legal and juristic persons to be bearers of such a responsibility of protecting human rights, the state is correspondingly obligated to protect cultural rights as a constitutional entitlement in order for citizens to enjoy heritage as a right, either as a group or individuals with cultural orientation. Constitutionally speaking, the state is prohibited from engaging in acts that unjustly interferes with free enjoyment of heritage as a right. The article adopted a traditional legal doctrinal methodological approach, which is best suited for interpreting legislative instruments to capture a variety of plausible meanings and implications to a real life legal situation.
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A historical – legal review of Hammurabi’s code
Статья научная
Hammurabi’s code shows the social relations of that time, although most of these relations were regulated by the Law of Contract. The Code covers a variety of legal matters: it regulates very complex property, family, obligatory and criminal-legal relations including the judiciary provisions. The Code expresses the class character of the society, because it primarily protects the interests of the ruling class and punishes the members of the ruling and subordinate classes differently for the same crimes. The Code was carved in a stone pillar and it was found by M. Morgan in 1901. This masterpiece of a human’s thought, almost four millennia old, was engraved in the stone of Babylon (Hammurabi) for the temple of Sippar (now the ruins of Abu Dhabi near Baghdad). An undamaged inscription of the Code is kept in the British Museum.
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A legal basis for operation of security services in Republic of Serbia
Статья научная
During the past twenty years there was executed a thorough reorganization of the whole security in Republic of Serbia. Many strategic documents and regulations have been adopted, which have, in a transparent way, organized the national security system. Security services, as parts of the system, play a very important role in preserving the vital values of the state and society as a whole. Their role in protection of national interests has been defined through the adoption of certain legal acts. This paper, apart from the historic perspective, analyses the legal acts of a special importance for the reform of the security-intelligence system in Republic of Serbia.
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A legal framework of the right to work for men and women
Статья научная
The right to work does not mean that any woman or man has the right to employment, but it refers to everyone’s opportunity to provide a living for him/herself by freely chosen and accepted work. For this reason, and by its nature, it is positioned between a programme principle, a constitutional legislative decree and subjective law based on the principles concerning the other minority and human rights. These principles reflect a legislative attitude towards the significance of the right to work and human and minority rights in general. Together with general principles, they make up a legal framework in which they are realized and protected.
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A legal status of women in prostituton in Serbia through the history
Статья научная
The approach to the legal regulation of prostitution chosen by the state directly reflects the legal position of women in prostitution. Different approaches in a legal regulation of prostitution had changed in shorter or longer periods of time until the end of the Second World War. After the Second World War, there was introduced the prohibitive approach undergone minor changes throughout the time, but remained unchanged from the perspective of a legal status of women in prostitution. THIS paper analyzes a legal position of women in prostitution in the period from the second half of the 19th century until today. The provisions of legal regulations through which the prostitution was regulated in the previously mentioned period in Serbia, will be analyzed by the normative method. The main goal of this research is to present the history of a legal status of women in prostitution in Serbia. THE results of the research show that, throughout the history, the most present reglementation and prohibitionist approaches have had a negative impact on the legal position of women in prostitution in Serbia. So, it is necessary an abolitionist approach to be introduced in order to improve their overall position.
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A police service dog as a means of coercion
Статья научная
The use of animals in the execution of complex tasks by police officers and military units does not represent any novelty in the operational and legal sense. But, this topic has not been considered enough in professional and scientific circles, for which there should be found some space, especially if we take into account certain “news” in the legislative sense occurred at the international level. The basic hypothesis of this paper refers to the consideration of the issue of the use of a police service dog. Within the previously mentioned discussion, the focus of the work is grouped into two parts, namely the first part relates to the legislative provision of the use of police service dogs in terms of training and use, while the second one refers to their tactical application when performing complex tasks. In particular, it is considered the issue of legislative news and initiatives appeared in the American legislative system. Bearing in mind the increasingly dominant attitude of the world population on the topic of animal protection, there is to be expected that a similar topic will soon be raised in our country too. In this research, in addition to analysis, deduction and comparative scientific methods, the specialization method was also used. At the end of this research, in the concluding remarks, there was presented a review of the most significant parts of the work as well as specific conclusions arising from this overall research. Of course, the authors’ personal views were also included.
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Статья научная
Autorski tekst sadrži prikaz monografije Aleksandra Matkovića Occultism, Crime and Law, Novi Sad Humanitarian Centre and Faculty of European Legal and Political Studies, Novi Sad, 2021 (549 pages)
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Статья научная
Deliberate unaccountability (insanity) is an institute known in legal theory as Actiones liberae in causa. Its significance lies it is an exception to the general rules for determining accountability and guilt. The exception is to regulate the guilt of persons who arbitrarily bring themselves into a state of temporary mental disorder and commit a crime in such a state. The central theme of the paper is the definition and legal regulation of actiones liberae in causa in Serbian criminal law, its demarcation from non-accounting and substantially reduced accounting as well as its application in practice.
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Статья научная
The paper summarizes the problem of persons having an active or passive legitimation in a court proceedings when the damage has been caused to the third person by two or more motor vehicles. Today, there are countless examples of traffic accidents involving two or more motorized vehicles. In such traffic accidents, both intangible and material damage has been caused to the third persons, so the following question arises: which persons are entitled to the compensation for non-pecuniary and pecuniary damage and from whom they have the right to seek such damages. The injured parties most often file a complaint against the insurance organization and responsible person. During the course of the trial, the Prosecutor often submits the submissions altering the lawsuit in a subjective or objective ways. In this paper, we pointed out the different attitudes of the court practice regarding the objective and subjective alteration of the lawsuit. Also, we answered the question: whether the respondent insurance organization and responsible person are unique rivals or whether they are ordinary rivals. In the paper, we proposed the amendment of Article 201 of the Law of Contract and Article 201 of the Civil Procedure Law. In this way, we would avoid issuing different judgments on the same issue
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Статья научная
The authors consider the strategic directions of the development of higher education in Republic of Serbia, especially in the light of legislative news regulating dual education at higher education institutions. In this context, they have paid a special attention to the analysis of legal acts and by-laws important for the development of the professional identity of engineers educated under the dual model of education. They have also perceived the number and structure of accredited study programs at higher education institutions in our country, which represent significant indicators of the direction of the development of the domestic economy mapped through the interest of employers for the engineers educated according to the dual model. So, we can conclude that there is an obvious influence of the fourth industrial revolution and the information age on all aspects of the society. Starting from all those changes that are happening and will happen, the Government of Republic of Serbia adopted the Education Strategy for the period from 2021 to 2030, in which there are given the vision, goals, and principles of education in the future. Talking about the dual model of higher education, the most important act is the Law on the Dual Model of Studies in Higher Education being in the focus of the authors in this research.
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Agencification of public administration in the transition process
Статья научная
The democratization of the countries in Central and Eastern Europe (CEE) has also included the reform of inefficient public administration. At the same time, these reforms have been accompanied by the aspiration for a membership in the European Union. The administration has been transformed according to a number of principles that make up the framework of the European administrative area. Along with these processes, there were established public agencies, a body taken over from the developed countries, and created during the reform of the New Public Management. The countries in transition have gone through an extensive and rapid process of agency. Due to a high level of autonomy after the formation of agencies, i.e., after certain tasks have been transferred to their competence, it is difficult to effectively control their work. The public interest is threatened by the non –transparency of these bodies. Their existence also affects the basic principles of the European administrative space and turns the reform against itself. It is certain that the mass establishment of a new body in the system of public administration brings uncertainty in terms of effects. It has turned out that foreign experts, without knowledge of the administrative tradition of the socialist countries, as well as domestic politicians who wanted accelerated reform, also contributed to that.
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Amended legislation of payment service in Republic of Serbia
Статья научная
This paper examines the payment service regulation in Republic of Serbia. The aim of the paper is to underline the importance of the implemented legislative reform and the innovations which allow the domestic business entities and payment service users to keep abreast with current economic developments under more favourable conditions and higher protection. The author defines the relevant notions and presents the innovations related to the payment service legislation in order to prove the fact that it is fully harmonized with the EU directives. In the paper there are also given certain recommendations which might help improve the implementation of the new regulations, primarily in the field of payment service customers protection. The transparency principle, which is the fundamental principle of these amendments, makes it possible to further develop this law in practice (e.g. the transparency of fees customers are charged for payment accounts). We expect more dynamic development of payment service in the future, which includes informing customers in a better manner and protecting them more efficiently.
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Apparent joinder of criminal offenses in the Criminal law of Serbia
Статья научная
The right to a healthy environment is an absolute priority of the modern society. A specific economic instrument aimed at protecting the environment at a global level is the compensation for environmental pollution, based on a principle of environmental protection called “pollutant pays”. The essence of a civil liability for environmental damage is that potential pollutants should adjust their activities to the requirement of causing minimal changes in the environment and reducing the risk of damage to a minimum. In addition to the significance and characteristics of the “pollutant pays” principle, the paper presents the provisions of the Act on Environmental Protection. There is also included an analysis of the provisions of the Convention on civil liability for damage caused by environmental hazards, and the provisions of the Environmental Liability Directive related to the protection and elimination of environmental damage.
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Bankruptcy and the regulatory role of the Central Bank in the legislation of Republic of Serbia
Статья научная
THE success of achieving the goals of the state economic policy, maintaining the stability of the banking system and protecting the interests of all participants in the financial market are the basis of the central bank’s policy based on its regulatory and control functions. The aforementioned functions are apparently manifested in the issuance of a work license to a bank, then in the active control over any member of the bank group in which the bank is located, including an inspection of the ledger and other documentation of legal entities connected with the bank being controlled through their property, management and business relationships. There is also an adequate control of the bank on a consolidated basis, as well as the existence of both internal audits and external auditors, in addition to prescribing a range of corrective and enforceable measures against the bank. The existence of the lex specialis, which regulates the bankruptcy of banks including the continuous improvement of previously mentioned provisions, represents the necessity as well as the intent of the legislator precisely because of the macroeconomic stability of the domestic economy, which is the author’s research subject in this paper.
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Blockchain technology and money laundering
Статья научная
In this paper, we want to break down certain prejudices against new blockchain technologies and cryptocurrencies, especially the Bitcoin, as instruments having mostly negative connotations and representing an opportunity for various criminal activities, including the cases of money laundering where money has been acquired in unethical and illegal ways. According to that aim, there were applied the methods of genetic, structural and functional analysis, the method of correlative variations, as well as the analogous and normative method. A significant part of the paper is dedicated to an introduction to DLT – (Distributed Ledger Technologies), i.e. a distributed book of records technologies, on which the blockchain and its most important exponent – the Bitcoin – rests. Also, we had to touch upon the second most important contribution to this technology, namely the Ethereum blockchain, which expands the perspectives opened by the Bitcoin, and thus the possibilities for misuse of this technology, primarily due to its constitutive principle of anonymity. In the paper, we have shown the fact that despite inadequate legislation, both nationally and globally, the blockchain and cryptocurrencies have not significantly supported the paths of illegal money laundering, especially not related to serious crimes, in particular drug trafficking and terrorism. We mostly see the contribution of this paper in the typologization of possible money laundering procedures, especially by using the NFT (Non-Fungible Tokens), non-exchangeable tokens whose hype, in last two years, might be the result of a perceived opportunity for a new way of money laundering. We conclude that we should not be afraid of the Bitcoin, but it should be accepted as an integral part of a peaceful and prosperous futurity for it opens new perspectives for humanity burdened with bigger problems than money laundering, which had existed to the same degree even before the appearance of the Bitcoin.
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Certain aspects of the position and rights of children as victims of criminal offenses
Статья научная
Children, as well as minors in general, represent one of the most sensitive social groups, and consequently, criminal acts hit children particularly hard. For this reason, the domestic legislator, like the majority of other legislators, incriminates when the crime is committed against a child as a serious or heaviest form of a specific criminal offense, that is, as a special qualifying circumstance. However, in addition to the fact that, within the framework of criminal material legislation, it prescribes qualified forms of criminal acts when children are the victims, legislator, within the framework of juvenile criminal legislation and other special regulations, also prescribes other measures aimed at improving and protecting the position of the child in criminal proceedings. This is because the protection of children as victims of crime is not only a legal issue, but also a social and moral imperative, which must be taken seriously to ensure that all children receive the protection and support they need to grow and develop. In terms of what has been stated, this paper points to the regulation of the position of the child as a victim of a criminal offense, primarily at a national level, starting from general protection standards, to individual solutions in some of the specific forms of criminality where children often appear as victims – family and sexual violence.
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