Статьи журнала - Pravo - teorija i praksa
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The legal position of secured creditors in financial restructuring and bankruptcy
Статья научная
The legal position of secured creditors in financial restructuring and bankruptcy is a necessary and essential topic in legal and economic reality for both legal theoreticians and practitioners, particularly nowadays when a wave of global recession has caused difficulties in business and payment. Banks as the largest secured creditors are mostly affected with these difficulties in business. The author of this paper pointed out the modalities of treatment and payment in a proceeding of financial restructuring for secured creditors as well as the most important segments and solutions of protection of secured creditors represented in both the local bankruptcy law and business and court practice.
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Статья научная
In contemporary conditions of an operation of business entities, the importance and significance of bankruptcy and the bankruptcy procedure are indisputable. The establishment of debtor-creditor relations in business operations of legal entities and individuals may lead to the risk of the debtor in a certain business not being able to meet the obligation he/ she has assumed. The roots of bankruptcy as a commercial law institution can be traced as far back as Roman law. The bankruptcy issues in Serbia are governed by the Bankruptcy Law of 2009. According to the importance and essence of the topic of the paper, the subject of the paper analysis refers to the concept and characteristics of bankruptcy as an important commercial law institution. It also includes the aims of bankruptcy and the criteria for its classification, as well as the question of the fundamental assumptions for the implementation of bankruptcy law rules, and the options available to bankruptcy debtors in situations when the causes of bankruptcy are met. The paper focuses in particular on a legal treatment of the initiation and implementation of bankruptcy against legal entities in Republic of Serbia.
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The military testament in Roman, French and Serbian law
Статья научная
The military testament represents a special form of wills composed in emergency cases. Wills are made by servicemen mostly in situations when they are not enabled to make a regular testamentary disposition of their property. Taking into consideration the fact that this institute emerged in Roman law, the first part of the paper is dedicated to Roman testamentum in procinctu. Subsequently, the second and third parts are designed by the author in such a manner to present the military testament from the point of view of positive law, with a specific reference to the French and Serbian law. The primary goal of the paper itself is to provide the local expert public a more thorough introduction to the causes of a development and features of the given form of a testament. The second goal is related to the fact that the military testament is, in the Draft Civil Code of Republic of Serbia, regulated in the same manner as it is done in the Inheritance Act. Therefore, by indicating the shortcomings found in an already established solution, some suggestions and directions are going to be made for the purpose of their removal or correction in the latest Serbian Civil Codification.
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The minors as victims in a criminal proceedings for criminal offenses against sexual freedom
Статья научная
It is undeniable that the minors represent a particularly sensitive group of the modern society. Criminal acts have a particularly hard impact on the minors, especially children. For this reason, the domestic legislator almost always incriminates an act committed against a minor and/or a child as the most serious or heaviest form of a criminal act. However, in addition to prescribing special, more serious forms of criminal offenses when they are directed against a minor, and in addition to punishing such offenses much more severely, the domestic legislator also intervenes from another angle, guided by the best interest of a child as an absolute imperative, so he prescribes special rules under which the minors can participate in a criminal proceedings for criminal acts directed against them. This paper, starting from the general rules on the position of the injured party, provides an overview of the special rules referring to the minors as the injured parties.
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The normative regulation of the air protection in legislation of Republic of Serbia
Статья научная
Clean environment is a basis of people’s health, but of their daily lives too. Air, water and environment are increasingly polluted under the influence of various threatening factors, which requires a legislative support. Through the provisions of the Law on Environmental Protection (2004), the air protection has in principle been provided, while the specific solutions have been given by the Law on Air Protection (2009), as a lex specialis, which regulates in detail the management of air quality and determining measures, the methods of organizing and controlling the implementation of protection and improvement of air quality as natural values of a general interest enjoying a special protection. In addition to the aforementioned laws, air protection is also regulated by by-laws, namely by various decrees and regulations. The subject of this paper is the analysis of normative solutions for air protection (ambient) according to the legislation of Republic of Serbia and the impact of the important factors on air pollution.
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The operator’s liability for copyright violations committed by users of its platform
Статья научная
The Court of Justice of the European Union has recently issued a judgment in the joined cases C-682/18 (YouTube) and C-683/18 (Cyando) relating to the operator’s liability for copyright infringements committed by users of its platform within the meaning of Art. 3, paragraph 1 of Directive 2001/29 on the information society. In the cited cases of the Court of Luxembourg, there are two specific platforms being concerned: the popular video-sharing platform (YouTube) and the file hosting and sharing platform (Uploaded). The judgment was passed almost a year after the public defender’s opinion had been published. In the meantime, exactly since June 7th 2021, a new liability regime for copyright infringement for certain internet platforms came into effect (Article 17 of Directive 2019/790 on copyright in the single digital market). Although the judgment was passed two weeks after Art. 17. Directive 2019/790 had entered into force, it was of great importance, especially considering the fact that on one hand, not all EU member states had implemented Art. 17 of Directive 2019/790, and on the other hand, the EU, through the Digital Services Act, was trying to modernize European regulations concerning the platforms regulation. In the paper, the author has, after referring to art. 17 of Directive 2019/790, analyzed the judgments in the combined cases of YouTube and Cyando, as well as the judgment of the Court of Justice of the EU regarding Poland’s claim for annulment of Art. 17 of Directive 2019/790. The analysis of the judgment has shown that the regulations on copyright should establish a balance between the rights holders protection on one side, and exercising the basic rights such as freedom of speech on the other side.
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The origin of the civil law codification in Europe
Статья научная
Codification represents the regulation of a certain field (branch) of law by a comprehensive law called the Code (the Civil Code, Criminal Code, etc.). The success of codification depends on two very important conditions: the first one refers to the existence of a dedicated authority, and the second one concerns its implementation in a great country. For the purpose of research, there will be selected the national legislations in order to demonstrate, through various legal systems, how civil codes regulating the field of civil law were originated. Within the scope of this paper, in more detail, we are going to analyze the selected national legislations of France, Austria, Germany, Switzerland and Italy.
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Статья научная
Police duties represent a part of the internal affairs performed by the Police, by applying the police authority, measures and actions. The new concept of combating crime is based on the preventive activities of the police and judiciary. In this sense, the police affairs can be approached from different aspects. The primary role of the police is in the criminal and misdemeanor procedure, but, as it can be concluded in the text of this paper, the administrative activities of the police in preventing, detecting, and solving criminal acts, misdemeanors, and other crimes are also very important. So, the paper deals with the issues that significantly helped the main topic of this research paper to be analyzed in the best possible way. This paper analyzes the issues related to the affairs of the Ministry of Internal Affairs, the organization and competence of the police, the principles of operation of the state administrative bodies, police affairs and criminal and misdemeanor procedure as well as administrative activities of the police in preventing, detecting and solving crimes and other offenses. The primary legal texts being consulted were the Law on Police and the Law on State Administration, in addition to consulting two important Rulebooks in this area - the Rulebook on police powers and the Rulebook on the manner of performing individual police duties.
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The position and authorizations of enforcement officers in the Belarusian legal system
Статья научная
Considering the fact that the profession of the enforcement officer has an increasingly efficient role both in securing and realizing creditors’ claims, which was significantly contributed by the introduction of the system of the enforcement officers as independent, non-state entities in a large number of legal systems (the so-called out of the court enforcement officers), the author analyzes the Belarusian model according to which the profession of the enforcement officer is still a part of the apparatus of the state power and its basic features. In some places, the author will make a comparison with the current position of enforcement officers in Republic of Serbia, and present a conclusion on the efficiency of both models.
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The powers of the guardianship authorities according to the enforcement and security law amendments
Статья научная
The Act on Enforcement and Security in the part of the enforcement in family disputes grants the signicificant powers to social work centers as guardianship authorities. First of all, these powers relate to the ability of the guardianship authority to initiate an executive procedure, participate in it,both as a party and as a third participant. By the most recent amendments to the Act on Enforcement and Security from 2016, which came into force on 1st January 2020, there was significantly changed the role of the guardianship authorities in the enforcement procedure, during taking away and giving over the child as the most important enforcement procedure in the area of family disputes. In the paper,the authors analyze the provisions that came into force on the basis of the amendments to the existing law.
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Статья научная
The task of the criminal procedure defined in terms of clarifying and resolving the main case of a criminal proceedings – criminal matter (causa criminalis) is achieved by the application of legally standardized basic procedural principles. The possibility given to the parties in a criminal proceedings to actively participate in it represents one of the basic features of the accusatory system of criminal proceedings. The principle of contradiction refers to the right of any procedural party to declare itself to the procedural actions of the opposing party before the competent court bases its decision on these procedural actions. The principle of contradiction is one of the general elements of the right to a fair trial. Therefore, the right of contradiction (contradicere) opposing the allegations of the other party is, together with the principle of immediacy, in a direct function of achieving the principle of a fair trial in our legal system. It is present during the whole criminal proceedings, but it mostly becomes prominent to expressing the evidence at the main trial. The Code of Criminal Procedure of Republic of Serbia has explicitly not envisaged the principle of contradiction. However, in addition of being involved in the main trial, as the main phase of the criminal proceedings, this principle extends through the entire criminal procedure, both the first instance and the second instance. Although not explicitly proclaimed in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the principle of contradiction has developed in the practice of the European Court of Human Rights as a general element of the right to a fair trial.
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The principles of the corporate governance in banks and legislation of Republic of Serbia
Статья научная
Complex relations, a frequent separation of ownership, management, and control functions in banks, as well as turbulent and changeable market conditions make responsible, fair, and transparent corporate governance mechanisms extremely important for these financial institutions. “The culture” of the corporate governance is incorporated into the banking sector of Republic of Serbia and it is based on the national legislation and international governance standards. The aim of the research is to analyze the level of the implementation of international principles of corporate governance in the Serbian banking sector and to assess the adequacy and strength of the national legal and regulatory framework to enable and support such an act. The descriptive method, an analysis and synthesis technique, as well as the analysis of the content of laws, reports, and available national and foreign literature in the field of corporate governance, were used for the preparation of this paper. The result of the research implies the confirmed assumption that the legal and regulatory framework of corporate governance in the banking sector of Republic of Serbia makes the implementation of the international principles of corporate governance possible and sufficiently supports it.
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The problem of synthesizing financial statements in reorganization during the bankruptcy process
Статья научная
The subject of the paper is solving the problems arising from the use of highly synthesized financial statements. The paper presents a model by which highly synthesized financial data can be used for the needs of reorganization in bankruptcy management. Financial and accounting data are frequently synthesized, i.e. organized in such a way that they largely hide the details of the business. The act of synthesis is needed in order a general picture of a company’s business to be created. Financial statements such as balance sheets and income statements represent typical examples. In the paper, there are used several research methods to formulate the models for the efficient use of highly synthesized financial statements. The basic method used in the research was the case study method, then the modelling method, and, as an auxiliary method, there was used the documentation analysis method. The case study analyzed the main indicators being important for the bankruptcy. We analyzed six companies which were in the process of reorganization in bankruptcy, and the analysis identified common characteristics served as the starting points for the next method. The next method used was the modelling method. This method was a logical continuation of the previous method by which a new model was formulated. As a tool in modelling, there were used the block diagrams, which graphically showed all important elements and relations. The auxiliary method used was the documentation analysis method. It is a historical method and an integral part of the previous two methods. The aim of the paper is to increase the efficiency of the use of highly synthesized financial statements in bankruptcy management.
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The protection of juveniles in a criminal proceedings
Статья научная
In recent years a significant attention has been paid to the protection of juveniles in the context of a criminal procedure. It cannot be denied that the participation of juveniles in these proceedings could be the cause of secondary victimization and trauma. In addition, the specific position of the child established by the UN Convention on the Rights of the Child requires the minors to be allowed to actively participate in a criminal proceedings and to be adequately informed about various aspects and consequences of the procedure. The paper first gives a brief overview of the relevant international documents on the rights of juveniles in a criminal procedure, followed by the analysis of the domestic normative framework in the same field. A formal dogmatic approach has been applied. Afterwards, the author summarizes the state of the rights of minors in a criminal procedure in practice in Serbia. The aim of this paper is to point out the possible improvements of the position of juveniles in a criminal proceedings in Serbia.
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The protection of possession in the Roman law
Статья научная
We first encountered the possession as a legal institute in the Roman law. The aim of this paper is to expose the Roman law concept of the statehood and all the issues related to that institute with special emphasis put on its protection. Generally viewed, the possession is seen as a genuinely recognized factual authority over things. However, for centuries, this legal institute has tried to provide answers and solutions to controversial issues either derived from or related to this institute. The possession, as a legal institute, cannot be said to be simple. There are a number of reasons that justify its research because the whole range of legal actions is tied to the state. The first association with the possession is that it is a factual authority on things. However, such an authority is completely independent from the right to things, which gives the state a specificity of a particular weight. It is a common opinion among lawyers that there are three issues regarding the possession worth considering: the concept, the legal nature and the reasons for the possession (possessory) protection. The aim of this paper is to expose the legal protection of the possession and the ways in which it was done in the ancient Rome.
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Статья научная
The article reviews the regulations of Republic of Serbia, domestic legal practice, as well as the opinions of jurisprudence on the exercise and protection of the preemptive rights of separate and pledge creditors in a bankruptcy proceedings. There has been clarified the legal nature of the preemptive right on the subject of the secured right or lien. There were also provided the details related to the significance of the right of a creditor to set off its secured claim with the purchase price, in the case of a creditor being the best bidder (credit bidding). The article aims to present the manner of exercise of preemptive rights in the case of the method of sales of encumbered property/assets by a direct agreement, as well as the legal instruments the secured creditors may use in the case of its violation. There have been analysed the rules of procedure per lawsuit for annulment of a sale due to the violation of the preemptive rights. The deadline for a lawsuit, the content of the lawsuit which protects the preemptive right as well as the damage compensation right were especially considered.
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The relationship between the private and public law
Статья научная
The analysis of the relationship between any two concepts, including the relationship between the public and private law, must certainly begin by defining them. The unique definition of the terms public law and private law has not been adopted in the modern legal theory. From the historical point of view, there is also no consensus on the meaning of these terms. The legal practice and a part of the legal theory even negate the need for such a division, pointing out that it is a delimitation of a purely academic nature. This paper will provide a brief historical analysis of the concepts of both the public and private law, as well as the theory of the criteria of their demarcation. Then, there will be present the interdependence of these two notions, according to many authors, considered to be the basic branches of law through several institutes where their scope is intertwined.
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The significance of Directive 2019/1151 in the digitalization of European Union company law
Статья научная
With the rapid development of information and communication technologies in the EU, the establishment of the digital single market through the EU’s strategy has allowed for fair market competition using the internet by both individuals (natural persons) and legal entities. However, regulatory disparities among EU member states have posed challenges for businesses engaged in cross-border activities within the EU’s single market. There are big differences among member states in terms of the availability of internet tools that enable entrepreneurs and companies to communicate with competent bodies regarding issues related to their business. Furthermore, e-government services differ among member states. Some member states offer comprehensive userfriendly services entirely online, while others struggle to provide digital solutions at crucial stages of a company’s life cycle. In certain EU member states, the establishment of a company or the submission of document and information amendments to the register are only allowed in person, or in person or electronically, while in some member states this can only be done electronically. Digitalization was supposed to simplify the procedures for establishing business entities and enable free business establishment at the EU level. The aim of this paper is to analyze the legislative framework at the EU level, which should facilitate business operations in the digitalworld and provide security to participants in the European single market, with a special focus on EU Directive 2019/1151.
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The status of international law sources in the constitutional order of Republic of Serbia
Статья научная
The status of the international law sources in the domestic legal order is determined by a complex relationship between both the international and domestic law, respectively by the relevant rules concerning the implementation of the international law. The Constitution of Republic of Serbia from 2006 regulates this question primarily in Articles 16, 18 and 194 which represent the subject matter of this paper. The main issue of the paper will also be approached from a comparative point of view by analyzing relevant constitutional provisions of certain countries. Certain views concerning the identified problems will be presented in the concluding remarks in order to contribute to the practice.
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Статья научная
In recent years, public health systems in high-income countries have been heavily exposed to pressures due to high drug prices. High drug prices are affected by market monopolies that pharmaceutical companies have thanks to patents, i.e. the exclusive rights granted to them for drugs. An additional factor affecting high drug prices is the extended forms of intellectual property protection, including the extension of the exclusivity period after the expiration of a patent for medical devices. The supplementary protection certificate as a form of a supplementary protection for pharmaceutical products in the European Union is regulated by the Regulation 469/2009. This form of protection is also known in the national patent regulations. Since the entry into force of the Regulation 469/2009, there has been debated the question of whether the supplementary protection certificate should be available for new therapeutic uses of previously approved active ingredients. In addition, the subject of interpretation was also the Article 3(a) of the Regulation 469/2009 requiring that the “product” (i.e. the active ingredient or combination of active ingredients) being the subject matter of the SPC application, should be “protected by the basic patent”. The author analyzes several important decisions of the EU Court of Justice, with an emphasis put on the recent verdicts in both the “Santen” and “Royality Pharma” cases. In the grounds of these cases, there have widely been discussed the issue concerning the encouragements given to pharmaceutical companies being involved into medical researches in order to stimulate their investment into innovation treatments.
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