Статьи журнала - Pravo - teorija i praksa
Все статьи: 699
Kriza životne sredine kao problematika ljudskih prava i ekološke svesti
Статья научная
Ideja o zaštiti ljudskih prava prošla je dugi hod kroz istoriju - od antičkih vremena u svom inicijalnom obliku preko buržoaskog perioda u kojem je ideja u potpunosti razvijena, sve do dvadesetog veka u kojem je doživela svoju ekspanziju i internacionalizaciju. Svaka država mora preduzeti sve što je u njenoj moći da izgradi takav pravni poredak koji će omogućiti ostvarivanje i valjane mehanizme zaštite ljudskih prava. Interesantna tema savremenog društva je zdrava životna sredina i ekološka kriza, a u svetlu takve kontemplacije možemo na površinu izvući i pitanje odnosa države prema životnoj sredini i pravo pojedinca da živi u zdravom okruženju. Sa druge strane, društva se između sebe razlikuju s obzirom na razvijenost građanske svesti, edukovanosti i upoznatosti samih građana o tome da je životna sredina zaštićena i pravima koja iz takvog afirmativnog odnosa (građanskopravnog, ustavnopravnog i krivičnopravnog) prema životnoj sredini proizilaze. U radu su prikazani osnovni dokumenti kojima se garantuju ljudska prava, a među njima i pravo na zdravu životnu sredinu, osvrt na stanje u ovoj oblasti u našem ekonomsko-pravnom sistemu, te ekološka odgovornost društva prema životnoj sredini i ekonomske koordinate, kao i elementi koji jasno ukazuju da postoji ozbiljna kriza ekoloških prava i životne sredine uopšte.
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Law responsibility from corruption crimes
Статья научная
In accordance with the recommendation of the GRECO Group (a group of states against corruption) Ukraine has to immediately develop a detailed plan of actions aimed at realization of the national anti- corruption strategy. The plan of actions should as far as possible take into account a potential cooperation and assistance of the international community. At the same time, a number of phenomena is observed in Ukraine, that prevent realization of the global initiatives of the President of Ukraine Viktor Yushchenko aimed at curbing the level of corruption in the governmental organs. The main aspects aggravating the problem of corruption in Ukraine are as follows: insufficient maturity of the civil society democratic institutions that are underdeveloped and unable to control the activities of the representative and the executive power branches; the non-governmental organizations declaring their anti- corruption purposes (approximately 200 of them are active in Ukraine) have no real influence upon the situation; the country lacks political and social traditions of public exposure of corrupt officials; dissemination of corruption facts in mass media does not always have an adequate response of the public, the law enforcement organs, and, first of all, judicial authorities. The procedure of punishment for corruption offences, provided by the Law of Ukraine 'On the Struggle Against Corruption', has not become an efficient means of fighting this phenomenon and provides for only the administrative responsibility. By the opinion of domestic and international experts, this Law does not meet the international standards and contributes to the negative image of Ukraine as a state that does not have adequate legal mechanisms and political will to fight the corruption. It is suggested in the recommendations given on the basis of the results of monitoring carried out in 2007, that Ukraine should revise the system of the administrative responsibility for corruption in order to establish a clear practice of considering cases related to commitment of corruption infringements as criminal offences. The work performed in order to execute the Threshold Program of the 'Millennium Challenges' corporation intended to curb the level of corruption in Ukraine, undersigned by the governments of Ukraine and the USA in December, 2006, and the joint project of the Council of Europe and Ukraine, titled 'The Project of Countering Corruption in Ukraine' (the project of UPAC) is not fully efficient. Obligations of Ukraine by the aforementioned projects envisage a number of measures: strengthening of the civil society functions related to detecting and uncovering of corruption in governmental organs, reforming the legal procedures, improvement of applying the ethic and administrative standards and public control of the execution thereof, upgrading of the efficiency of applying the standards and procedures of countering corruption in the sphere of higher education.
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Статья научная
The role of the lawyer is characterized by a focus on counseling, advocacy and conciliation. A lawyer advises a client on legal issues, considers the possibilities of resolving the dispute amicably and certainly advocates in a legal proceedings if this occurs. In order the previously mentioned activities between the client and lawyer to be achieved, it is necessary to establish a mutual connection. Talking about a lawyer`s capability of fulfilling the role of a counsel and client’s representative, he/she must be independent in his/her work, especially having professional independence in relation to courts, state bodies, but also in relation to his/her own interests. It is this independence that represents a significant foundation in gaining trust in the client-lawyer relationship. Achieving trust is not easy, although it is a priori expected. In order to gain trust and to be able to access an adequate representation in a legal proceedings, the lawyer’s obligation is to keep the lawyer’s secret and not to disclose confidential information. A lawyer’s secret can be considered from several aspects, from the moral, contractual, ethical... In this research, certain important theoretical frameworks will be considered, with the focus on presenting and reviewing the international, primarily European legislative regulation of the issue of legal secrecy. This paper will certainly include the aspect of domestic legislation too. In addition to the above, some important positions of the European Court of Human Rights will be pointed out. Before presenting the conclusions emerged from this research, a special attention will be paid to the circumstances when a lawyer can reveal a secret.
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Статья научная
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.
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Legal bases of the police participation in emergency situations
Статья научная
Police officers who belong to the General Police Directorate of Republic of Serbia, in addition to the numerous powers and tasks they perform, based on the Law on Police, have the obligation to participate in protection and rescue operations. Besides the aforementioned law, the police are recognized as a part of the protection and rescue forces by the Law on Risk Reduction and Emergency Management. The role of the police in emergency situations is very important, and the scope of work of the police officers is expanding over time and becoming more and more diverse, and thus more complex. The police engages in the execution of tasks aimed at the security protection of citizens’ property and lives, such as rescue and evacuation from endangered areas, providing first aid, delivery of food, medicine, etc.
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Legal conditions for the protection of three dimensional signs in trademark law
Статья научная
The need to define three-dimensional trademarks and determine the conditions for their registration has arisen as a consequence of increasingly rapid technological development. The changes in the market and the changes in behaviour of economic entities have resulted in the use of signs for marking goods that differ significantly from the traditional trademarks. The concept of protection of a three-dimensional shape is relatively new and it is necessary to clearly define the conditions for its protection as a trademark. What causes a problem is the fact that the mark, in this case, represents the product itself, which implies that such signs of this sort lack distinctiveness, and it is not clear what is protected by that mark. The analysis of the afore-mentioned cases from practice, presented by the author, aims to show the differences in opinions of the courts regarding the criteria by which it will be assessed whether the condition of distinctiveness is satisfied in a specific case or not. The main reason for the lack of reliable criteria is the hasty regulation of unconventional signs and the lack of the harmonized, clear rules both at the level of the European Union and at the global level. The author considers it necessary for the World Trade Organization or the World Intellectual Property Organization to offer guidelines within which an adequate protection of unconventional signs will be provided at the national level in order to eliminate the state of legal uncertainty that may arise when applying for protection of threedimensional signs.
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Legal nature of a lease agreement
Статья научная
A lease agreement is an appointed legal transaction arose from business and legal construction created with the aim of the efficient meeting the needs of participants in the transaction. The legal theory and practice set out the criteria for the division of leasing contracts, so this legal transaction got its basic characteristic features. That is the way of a creation of basic forms of leasing agreements. According to its characteristics, a lease agreement has a mixed legal nature. Depending on the type of a contract, it may have the characteristics of a contract of sale, tenancy agreement, loan agreement, etc. In certain types of leasing, some characteristics of one of the listed traditional contracts dominate in a weaker or stronger intensity. This paper deals with a theoretical analysis of the relationship of the leasing contract with the contract law agreements. A special emphasis is placed on the operating and financial leasing as two basic types of leasing contracts varying by their nature.
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Legal nature of higher education institutions bylaws and their place in the hierarchy of law
Статья научная
The goals of higher education are achieved through the activities of higher education institutions, which are, in accordance with their guaranteed autonomy, performed on a basis of their bylaws and general policies. The law determines which subjects have a public authority, which subjects are competent to adopt the relevant acts as well as the general range of issues regulated by these acts. The Constitution of Republic of Serbia guarantees that everyone has the right to higher education and, in that regard, the Law on Higher Education of Republic of Serbia regulates the system of higher education, conditions, and methods of performing higher education activities including the basics of its financing and other issues. Management bodies and professional bodies of higher education institutions are specialized in adopting one type of legal acts. In this way, it is enabled these acts, according to their nature or subject matter, to be adopted appropriately. Therefore, higher education institutions, pursuant to the Law on Higher Education, regulate the area of their activities by adopting statutes, regulations, rules of procedure, and other bylaws. The aim of this paper is to point out the legal nature of higher education institutions bylaws as well as their place in the hierarchy of the legal system, and, thus, in the higher education system of Republic of Serbia.
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Legal position of the European Central Bank in contemporary social discourse
Статья научная
This paper analyzes the legal position of the European Central Bank (ECB) within the context of contemporary social conditions, focusing on the ECB’s tendency to expand its competencies and the judicial evaluation of the current monetary legislation in the practice of the European Court of Justice (ECJ). In this sense, the paper analytically examines the concept and characteristics of monetary disputes, while exploring the ECB’s contribution to democratic monetary governance through respect for the rule of law. The author pays special attention to the ECB’s role in protecting human rights, specifically considering the trend towards a so-called “humane approach” to monetary management, which has significant consequences for the preservation of monetary stability as a public good. Using the dogmatic, comparative, and axiological methods, the author aims to highlight the main dilemmas in this area from the perspective of de lege lata and possibly offer certain guidelines for de lege ferenda.
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Статья научная
When bankruptcy proceedings are initiated by an employer, that often leads to uncertainty and problems for its employees. One of the biggest problems in this kind of situation is the protection of employees’ claims arising from the employment relationship. Employees have the right to the payment of their claims arising from the employment relationship, such as unpaid wages, transportation allowances, meal allowances, holiday bonuses and the alike. However, in the case of the employer’s bankruptcy, these claims are at risk, and there is a possibility that employees may not be able to fully collect them, which compromises the fundamental principles of labor legislation. For this reason, the state intervenes to protect monetary claims arising from employment. The primary mechanism involves granting privileged creditor status with priority claims, along with mechanisms to protect these claims through a special guarantee institution. If there was no such intervention by the state, the realization of those rights would be difficult. However, even with state intervention, the realization of these rights is not guaranteed. In this regard, this paper will examine models for protecting employees’ claims in the event of bankruptcy, while identifying practical problems in this field.
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Legal regulation of the European works in European Union and Republic of Serbia
Статья научная
Rapid development of technology has brought a need to digitalize copyright works. This way knowledge, stored in these works, can be shared with every internet user. Problem is, that for many of these works it is not possible to find right owner and so, important knowledge remains hidden from the eyes of society. The need to regulate digitization in cases where the consent of the right holder is missing (including orphan works where the holder is inaccessible) has also been recognized in the European Union, first through a project called Europeana. The main objective of this project is to disseminate knowledge by creating digital libraries that would contain all the copyrighted works that users can access from anywhere and without any time limit. This problem is partially resolved in European Union in 2012 when the Directive 2012/28/EU on certain permitted uses of orphan works was introduced. This directive gives instructions for all members of the EU to recognize and limit the use of orphan works in their countries accordingly to the rules given in the Directive. The Republic of Serbia, as an EU membership candidate, needs to harmonize its legislation system with rules provided in EU law and include the definition of orphan works and usage of orphan works into its copyright rules.
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Статья научная
Banks are the most visible financial intermediaries in the field of economy. Their importance derives from the place and role in both economic and financial systems of each national economy. In the financial sector of Serbia, banks are the most important financial institutions, accounting for about 90% of total financial sector assets. The topic of the research refers to the letter of credit as a service banking business and it is extremely current topic, scientifically and socially justified, being important for domestic and foreign trade payments. The letter of credit is a complex banking business. Its complexity is reflected, among other things, in the number and types of legal relationships formed between the participants. Having in mind all previously mentioned facts, the paper analyzes the issues of the concept and classification of banking business as well as the legal aspect and legal relations formed in the letter of credit. The research part of the paper deals with the role and importance of banks in the financial sector of Serbia.
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Legal status of compliance officers – open issues
Статья научная
Legislators only sporadically regulate the compliance function within companies, primarily in the financial sector. The primary task of compliance officers (CO) is to ensure that the overall business operations comply with legal norms. When discussing the potential liability of compliance officers, it is necessary to analyze their legal position within the corporation. The liability of compliance officers should primarily be considered as the employee’s responsibility towards the employer. From the perspective of corporate law, the theoretical background should focus on whether compliance officers have a distinct legal status within the company. The authors aim to contribute to the discussion on potential changes in corporate governance, where corporate officers such as compliance officers gain more influence, and to raise awareness of the precarious position of compliance officers under current solutions of both the Anglo-American and Continental European models.
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Legal treatment and practical experience in air quality monitoring for the City of Novi Sad
Статья научная
Air quality is a very important parameter both for one human and for all living beings on earth. Adequate protection and improvement of the environment and air is the area of a great importance on which Republic of Serbia has to work continuously. Tracking (or monitoring) the state and quality of the environment includes a series of actions aimed at obtaining the reliable data on the condition of the environmental pollution. By the Regulation of establishing the List of air quality categories according to zones and agglomerations on the territory of Republic of Serbia for the year 2018, it was determined that air quality in the agglomeration “Novi Sad” is in the first category, which means that the air is clean or slightly polluted (pollutant substances did not cross the limit values). Bearing in mind the importance of the topic, at the very beginning of this article, the problem of air pollution is more closely defined with reference to the legal treatment of protection and the improvement of the environment in general and air as a separate category. This article is primarily focused on the analysis of practical experiences regarding air quality monitoring for the City of Novi Sad.
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Legalizacija marihuane - naučne, pravne i etičke dileme
Статья научная
Uprkos činjenici da ima svoju primenu kako u industriji tako i u medicini, upravo zbog svog psihoaktivnog svojstva kanabis je u većini svetskih zemalja na listi zabranjenih supstanci, te je shodno tome njegovo uzgajanje i korišćenje zakonski kažnjivo. Prema podacima navedenim u Svetskom izvještaju o drogama za 2016. godinu, izrađenom od strane Kancelarije UN za drogu i kriminal, kanabis predstavlja vodeću ilegalnu supstancu na svetu što se tiče gajenja, proizvodnje, preprodaje i broja korisnika. Imajući u vidu različite stavove po pitanju upotrebe, dejstva, i uopšte legaliteta i legitimiteta korišćenja kanabisa, kao i to da su reakcije na marihuanu individualne, u radu su analizirane naučne, pravne i etičke dileme u ovoj oblasti. Ne dajući primat ni stavu za, ni stavu protiv legalizacije marihuane, nedvosmisleno treba podržati stav da zabrana nečeg (u ovom slučaju marihuane), što je ilegalno već dugo vremena široko u upotrebi, povlači za sobom niz loših efekata, koji bi se verovatno uspešno preventirali kontrolisanom legalizovanom upotrebom, odnosno konzumacijom.
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Legislative regime of the control function of the National Bank of Serbia over commercial banks
Статья научная
The existence of a central bank in one country is of a great importance, because the central bank controls the functioning of the financial market and its participants (banks, insurance companies, financial leasing companies, payment institutions, voluntary pension fund management companies and exchange offices), striving to comply with the law on the National Bank of Serbia in achieving the goals that are clearly and precisely defined. It achieves its goals by performing the intended functions. One of the functions performed by the NBS is reflected in the control of banks, which is the topic of this paper. The control function of the NBS is defined by both the Law on the National Bank of Serbia and the Law on Banks. The NBS performs the function of controlling banks in the process of establishing a bank, but also in the course of its operations. The process of establishing a bank, as the most important financial institution, is far more complex. The complexity of this procedure is reflected in the fact that the legislator has forseen the procedure of obtaining preliminary approval and then obtaining a work permit. After holding the founding assembly of the bank and obtaining the obligatory consent, the bank can be registered. The control function is also represented in the fact that the bank has the obligation to submit regular and extraordinary reports to the National Bank. In this way, the NBS protects the financial market of Republic of Serbia from instability and crises that can cause illiquid, uncertain and illegal operations of banks.
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Lessons we can learn about human rights after the COVID-19 virus pandemic in the Republic of Serbia
Статья научная
The spread and danger of the Covid-19 virus in 2020 demonstrated how unprepared states were for such threats. Each state took measures it believed to be adequate at the time to protect its population. In the Republic of Serbia, numerous measures were implemented after a state of emergency was declared in March, to prevent the spread of the virus. Many of these measures led to derogations of various human rights. However, even in extreme situations like a state of emergency, derogating human rights should meet the requirements of necessity, and proportionality. This paper examines the state of certain human rights, namely the right to information and freedom of peaceful assembly during the state of emergency in the Republic of Serbia. The analysis aims to determine whether there was a derogation of these rights or rather their gross violation. In this way, the paper seeks to provide specific lessons about human rights that every citizen can draw after the Covid-19 virus pandemic in the Republic of Serbia.
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Статья научная
The seller’s responsibilities for particular contractual defects, as a distinct, separate and very complex institute, are regulated by the Law of Contract. The authorized subject of the Law of Contract is free to decide on entering the contractual obligation. The goal of the subjects, in the context of concluding a contractual relationship, is its realization. However, in addition to the stated common interest of the contracting parties, in practice, there is very often a situation when one of the contracting parties does not perform the contract in full, or performs it, but the subject of the contractual relationship is not consistent with the contract. The sales contract, together with its modalities, are regulated by the Law of Contract legal provisions regulating the institute of seller’s liability in the context of defects in the contractual relationship within the sample and model sales contract are not precisely and clearly regulated. The necessity and obligation to define the institute of seller’s responsibility for defects of items from the contractual relationship within the sample and model sales contract, is reflected in a precise and linguistically clear definition of seller’s liability for eviction and material defects. The proposed solutions in the paper could be a great contribution to legal science, but legal practice too.
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Liberalizacija trgovine sa Turskom i njen uticaj na tekstilnu industriju Srbije
Статья научная
Liberalizacija robnih i novčanih tokova kao globalni fenomen, kao i aktivno učešće Republike Srbije u procesima ekonomske integracije zemalja zapadnog Balkana u Evropsku uniju potpisivanjem i realizacijom Sporazuma o stabilizaciji i pridruživanju a ranije i CEFTA sporazuma, kao i obaveze koje iz njih proističu, nužno stavljaju pitanje konkurentnosti industrije Srbije u celini, a i pojedinačnih industrijskih grana, na visoko mesto prioriteta interesovanja kako kreatora ekonomske politike, tako i naučne i stručne javnosti. S tim u vezi, preovlađujuće negativni efekti dominantnog koncepta tržišnog liberalizma po industriju Srbije u uslovima nedovoljno razvijene tržišne strukture, nedograđenosti ključnih segmenata privrednog sistema1 i najveće ranjivosti industrije u period tranzicije, nameću potrebu preispitivanja tog koncepta i u skladu sa jasno definisanom strategijom razvoja, formulisanje adekvatne industrijske politike, sa ciljem vrlo ozbiljnog prestruktuiranja posrnulih industrija i obezbeđivanja neophodnog nivoa međunarodne konkurentnosti.2 Razmatranje u ovom kontekstu perspektiva konkurentnosti tekstilne industrije Srbije polazi od stava da bi industrijska politika u zemljama u razvoju, kao što je naša, morala podržavati razvoj onih industrijskih grana koje na najbolji način (najproduktivnije), u datom trenutku, koriste faktore kojim zemlja raspolaže.3 Relativno konkurentni troškovi radne snage, izvozna orijentacija i kontinuitet prisustva na tržištu EU, blizina dominantnog tržišta, mogućnost brze implementacije tehničko-tehnoloških inovacija i izgrađena svest u poslovnim krugovima da su kvalitet proizvoda, njegovo tržišno oblikovanje, rokovi isporuke..4 i drugi faktori necenovne prirode sve dominantniji faktori konkurentnosti, kvalifikuje tekstilnu industriju kao industrijsku granu sa potencijalom da pod određenim uslovima dostigne nivo međunarodne konkurentnosti, posebno na tržištima EU i Rusije. Ovo tim više što će privredni rast Srbije u narednom periodu u velikoj meri biti ograničen narastajućim problemom nezaposlenosti, kao i realno lošim prognozama na kratak i srednji rok po pitanju mogućnosti dinamičnog privlačenja inostrane akumulacije u dovoljnom obimu za brz razvoj propulzivnih industrijskih grana, kao posledice dubine globalne krize. Liberalizacija trgovinskih odnosa sa Turskom, sa svoje strane, dodatno aktualizuje pitanje konkurentnsoti tekstilne industrije Srbije iz razloga što je tekstilna industrija Turske jedna od najmoćnijih u svetu, a na tržištu EU zajedno sa Kinom neosporni lider. Sledstveno tome, otvaraju se brojna pitanja od čijeg rešavanja od strane kreatora ekonomske politike, poslovnih krugova i njihovih udruženja, zavisi ukupan saldo između mogućih koristi i potencijalno štetnih posledica ne samo po našu tekstilnu industriju.
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