Статьи журнала - Pravo - teorija i praksa
Все статьи: 739
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 sovereignty in the philosophy of the 17th–18th centuries (T. Hobbes and S. Pufendorf)
Статья научная
This study presents a philosophical reflection on the question of sovereignty, viewed through a comparative analysis of two philosophers: Thomas Hobbes and Samuel Pufendorf. The field of inquiry lies between political philosophy and the philosophy of law. The literature review centers on prominent thinkers such as Machiavelli, Bodin, Spinoza, Locke, Montesquieu, Rousseau, Kant, and others, in order to provide a broader and deeper understanding of the questions surrounding sovereignty. The bibliographic research is oriented toward a comparative and analytical approach. A foundational understanding of Hobbes’s and Pufendorf’s philosophical positions is essential, as the comparative analysis aims to articulate their discourse on topics such as the idea of objective social unity and the ways in which national sovereignty is concretized. The comparison focuses on the form and substance of the social contract. At the core of the discussion is the relationship between popular (political) sovereignty and state sovereignty. The discourse highlights the nature of sovereign power and the issue of freedom, challenging the principle of representativeness. Positioned between the idea of indivisible force and the power to realize justice, sovereignty is situated within the conflicting contexts revealed through this comparison. The study further explores the political-legal system and the concept of the rule of law. Additionally, it addresses the complex relationship between internal and external sovereignty, wherein the essence of sovereignty is often compromised.
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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 right of divulgation as a form of the right to privacy
Статья научная
The author’s personal right of divulgation—the right to publish a work—is not universally recognized in all countries. Considering its potential significance for the author, it is necessary to examine the rationale behind its legal regulation. To that end, in the first part of the paper, the authors, applying legal dogmatic and sociological methods, analyze the right to privacy, its legal foundations, and its various forms. In the second part, using the legal dogmatic method, they examine the concept and scope of the right of divulgation and conduct a comparative legal analysis. By applying deductive and comparative methods, the authors further explore potential legal grounds for the recognition of the right of divulgation, particularly its relationship with the right to privacy. Based on this analysis, the authors conclude that the right of divulgation can be viewed as a form of the right to privacy, thereby highlighting the need for its broader international recognition in order to protect the author’s privacy interests.
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The role of administrative districts in the administrative system of Serbia
Статья научная
This paper analyzes the role of administrative districts and local units of state administration authorities, as well as the needs and possibilities for their reform. The non-central aspect of public administration itself constitutes a complex whole with multiple distinct elements, interrelations, and needs. In this context, the paper examines the possibilities and methods for “strengthening administrative districts” and “improving vertical and horizontal oversight in the execution of original and delegated tasks” at the non-central level, as defined by current planning documents. The core of this analysis is grounded in positive legal provisions, as well as strategic and planning documents in Serbia, accompanied by relevant comparative references. The main research dilemma concerns the limited possibilities for enhancing the performance of state administrative tasks through or within administrative districts. This limitation stems from the nature of the non-central aspect of public administration as a complex subsystem with two components: local self-government with its own original tasks (decentralized aspect), and local self-government with delegated tasks alongside local units of state administration authorities (more or less centralized aspect), which are interconnected through the administrative district.
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Статья научная
The seller’s liability for material defects in goods is an important institute in contract law. We witness the daily execution of legal transactions. Although the sale contract of sale is a named contract, it remains in the process of development, especially with the increasing prevalence of online sales. Due to frequent disputes between sellers and buyers, the questions of defining the seller’s liability – in what scope, in what manner, and within what deadlines – are of exceptional importance for legal practice, as well as for every individual. Therefore, the main subject of this paper is a detailed legal analysis of the seller’s liability for material defects in goods based on Article 479 of the Law on Obligations, 1978. The liabilities of the seller arising from the contractual relationship regarding defects in goods are examined critically, with a comparative analysis of this institute and solutions in other legal systems, particularly in countries of the region, i.e. neighboring countries.
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Статья научная
The rule of law is one of the oldest and most significant ideas in the history of legal and political thought. Contemporary legal scholars widely emphasize that this concept occupies a central place in clearly articulated views concerning the state, law, politics, and economics. As an ideal worth striving toward, the rule of law has been addressed by leading figures in law, economics, and political theory. The discourse on the principles of constitutionality and legality has consistently served as a cornerstone in affirming the importance of the rule of law in modern legal systems. This is particularly relevant given that these principles are essential to the existence of the legal state. In accordance with the focus of this paper, the authors analyze several key issues: how to determine the significance of the relationship between the principles of constitutionality and legality and the rule of law, how to conceptually present the essence of constitutionality, legality, the rule of law, and the legal state.
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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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The subculture of clothing between human rights and the threat of terrorism
Статья научная
Although at first glance clothing choices appear to be a matter of individual freedom—subject only to certain exceptions involving unwritten, or more rarely written, norms that typically carry no serious sanctions—there are situations in which this issue is raised to a much higher level. It is often linked to specific garments associated with Muslim women, such as the hijab, niqab, burqa, and others. In line with this, the paper highlights certain challenges related to human rights issues, but also to security concerns, which require a more in-depth and nuanced approach, especially considering numerous instances in which men dressed as women have carried out terrorist attacks or evaded law enforcement. In order to propose a suitable legal solution—a compromise that would respect individual rights while also addressing potential security risks—the paper employs several methodological approaches. A comparative method is used to examine the legal frameworks of different countries. Documentary analysis is applied to judgments of the European Court of Human Rights. Additionally, an analytical approach is used to examine relevant passages from the Qur’an that pertain to clothing and the obligation to cover certain parts of the body.
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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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Статья научная
The modern society is facing an increasingly dangerous and serious manifestation of criminal activity, that utilizes the most modern technical achievements, especially in the field of communications. That is why the modern states resort to employing new procedural forms of gathering evidence at the cost of a certain infringement on the right to privacy and other human rights. The Criminal Procedure Code establishes six special evidentiary procedures. The most complex issue in special evidentiary procedures is the question of when their usage is justified, in other words, the type of criminal activity to which they can be applied, and the conditions under which they can be used. In addition to the special evidentiary actions established in the Criminal Procedure Code, the security agencies are, within their competences, authorized to secretly collect data by applying preventive and security measures provided by special laws (lex specialis). Having that in mind, this paper will deal with the questions concerning the types and conditions of the usage of special evidentiary procedures, as well as the types and conditions of the application of preventive and security measures in Republic of Serbia.
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The use of a polygraph as the means of collecting evidence in the legislation of Republic of Serbia
Статья научная
A polygraph usage represents a complex set of procedures which include the preparing specially selected questions, measuring psycho-physiological responses to these questions and their complex interpretation aiming indirectly to detect false answers. The device itself cannot detect false answers. It is a tactical forensic tool that is used in pretrial proceedings as a means of elimination or as a guideline for detecting and collecting the other evidence which may serve as a basis of a court decision. In this paper, besides the most important facts about a polygraph, it has been taken a quick look on the questions of a legal resolution of the new Criminal Procedure Code from 2011 and the Police Act from 2005. Basic questions regarding the polygraph test are not fully regulated. The crucial thing is the protection of human rights and freedoms, particularly in terms of ones consent and free will during the interrogation in preliminary investigation proceedings.
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Статья научная
The subject of this paper is the analysis of strategic management, with a focus on the impact of innovation and information and communication (IC) resources on a company’s entrepreneurial strategy. The paper analyzes the management of strategic issues, with an emphasis on contingency planning and the establishment of an appropriate management system. The aim of the research is to define and measure the impact of innovation and information resources on the business performance of companies, with particular attention to small and medium-sized enterprises (SMEs) that face various challenges. The research identified a statistically significant positive relationship between the analyzed variables, concluding that innovation, IC equipment, and an entrepreneurial strategic approach are linked to the business performance of companies.
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