Original scientific work. Рубрика в журнале - Pravo - teorija i praksa
Consolidated bankruptcy of related persons
Статья научная
Amendment to the Act on Bankruptcy from August 2014 has significantly worsened the procedural position of persons connected with the debtor through the limitation or exclusion of their rights. The introduction of the restrictive regime for related persons was explained by the need to eliminate the causes which enabled abuses and corruption. It is provided that the persons connected to the debtor are paid off in the newly established last - fourth order of payment and cannot be elected to the committee of creditors in order to prevent outvoting of other bankruptcy creditors by the related persons. An important novelty is that persons connected with the debtor (except those who are dealing with provisions and credit loans within their ordinary course of activities) represent a special class of creditors and do not vote on the reorganization plan which disables abuse by the related parties. Changing position of affiliated entities is also reflected in the exclusion of the appointment of a bankruptcy trustee or an independent expert who monitors implementation of the reorganization plan. It also facilitates the refutation of legal transactions concluded with related parties.
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Consumers' lending in the European Union
Статья научная
Modalities of consumers' protection at consumers' lending in the European Union Member States are provided with a special directive of the European Parliament and the Council (the Directive 2008/48/EZ on contracts of consumer credit). Although this area has been regulated in the European Union by the directives since 1987 (the Directive 87/102/EEC), because of an economic crisis, it was increasingly coming to the fore that a consumer, as a weaker agreement party, was not protected enough. The Directive 2008/48/EC on contracts of consumer credit is based on the principle of a maximal harmonization and it regulates a minimal legislative framework for each of the member states.
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Contract with hereditary effect: Contract on the assignment and division of the property for life
Статья научная
Contract on the assignment and division of property for the life is a contract between predecessor and his descendants, that products also law hereditary effects. Contract on the assignment and division is producing hereditary effect in the event that the assignment and division is agreed by all descendants children's who will be invited by law to inherit. The contract was made in the form that is stipulated by the Law on the inheritance. Contract on the assignment and division of the property for life, is characterized by and have the following effects: legal obligations and legal inherit effects . Predecessor contract may include all the property that exists at the time of assignment and division, but can also include only one part of the property. The subject of inheritance may be just what is not included by valid contract on the assignment and division. The contract must be made in writing, under the threat of nothingness. To revoke the contract is authorized by the person who has initiated the contract. The reasons may be the same as those for which a person can exclude from heritage, but also may be other circumstances.
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Статья научная
Achieving a sustainable development should be one of the top priorities for the whole society. However, achieving a sustainable development is a complex function of different economic, social, institutional, political and historical factors. By implementing the corporate social responsibility, companies contribute to a sustainable development of the entire social system. According to the fact that it is not entirely clear at the micro level what corporate social responsibility involves, and that most of the company-level social activities are voluntarily initiated, it is necessary the institutional bodies encourage socially desirable forms of corporate behavior and implement the legal framework to business obligations to elicit responsible business procedures. Though responsible corporate business is highly desirable, companies have to consider the fact that the corporate interests and corporate social responsibility will always be constrained by the profit-maximizing prerequisites and general economic circumstances.
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Criminal profilers – human lie detectors
Статья научная
For a long time, people have demonstrated a natural tendency to analyze and assess fellow humans as well as animals, objects, and similar entities, even in everyday scenarios. However, it is a little bit strange that criminal profiling became integrated into standard investigative practices within law enforcement not before the 1980s. Criminal profilers primarily fulfill their role by working on the resolution of intricate crimes where the identity of the perpetrator is unknown. On the other hand, they also have a suppressive impact, and to a lesser degree, a preventive influence, which is enhanced by considering the risk factors associated with the emergence of criminal behavior, as well as the study of criminal phenomenology. The techniques employed in criminal profiling aid in the timely identification of symptoms that indicate a combination of biological, social, and environmental factors, including learning and situational elements. As we navigate through the factors contributing to the development of criminal behavior, as well as the suppression and prevention of crime through the efforts of criminal profilers, we reach the significance of their role in detecting deception and the essentiality of human presence and intervention in diverse formal conversations, encompassing law enforcement, social work, and education. The aim of this paper is to systematically shed light on the factors contributing to the development of criminal behavior, to investigate the phenomenology of crime and to highlight the role of criminal profilers in the prevention and suppression of crime, as well as to analyze their role in the process of lie detection, while giving recommendations for the incorporation of profiling techniques into the body of knowledge and skills of teachers, pedagogues, psychologists, social workers, and others. The methods used in this study include a quantitative and qualitative analysis, using primary and secondary sources, as well as a comparative analysis.
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Criminology characteristics of crimes against the person
Статья научная
Crimes against life and limb are crimes that constitute a violation of the physical and mental integrity of a person, and are classified as crimes of violence. These criminal acts have been subjected to penalty ever since the first written regulations or codes appeared with the aim to preserve and protect life and body as the most important human and social values. Having in mind the consequences of committing crimes against life and limb, it is clear that the primary task of every state is to work towards their suppression. The precondition for the realization of this task is reflected in the exploration of their criminological characteristics in order to create effective prevention measures through the understanding of the causes of this phenomenon and a comprehensive approach.
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Статья научная
The study deals with the importance of harmonization processes related to the succession rules in the European Union. During the examination of the harmonization processes, a particular attention has been paid to migration, which nowadays has a deep impact on inheritance cases. In this regard the study demonstrates how the judicial cooperation is being realized in the European Union when it comes to succession-related issues. Among these, the study examines the current norms of the Serbian Act on private international law, which, from some aspects, has an obsolete system considering the conflict of laws rules in matters of succession with an international element. Namely, these rules are not harmonized with those of the European Succession Regulation, which means that the Serbian IPL system does not currently follow the European trends in legislation. Furthermore, it does not take into consideration certain current phenomena, especially the international migration and globalization. At the same time, Serbia is working hard to achieve a certain level of legal harmonization with the EU legislation. One proof of the harmonization attempts is the draft of the new PIL act of Serbia. The new concept of the conflict of laws rules and the new systemic approach of connecting factors is nearly completely identical with that of European legislative trends, especially regarding the scope of succession. If the draft act comes into force, it will mean, beyond any doubt, a giant leap for the country towards the European Union.
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Current problems of trademark exhaustion in foreign court practice
Статья научная
The author analyzes the principle of trademark exhaustion in the European Union. The institution of trademark exhaustion is a form of legal limitation of the subjective right of the trademark owner. EU member states have a national trademark protection system. On the other hand, a supranational trademark protection system was established in the EU, through which, among other things, there was introduced a system of regional trademark exhaustion. In the paper, the Institute of trademark exhaustion will be analyzed through the latest practice of the EU Court of Justice. Namely, when the owner of the trademark or a third party, with his consent, puts the goods marked with the trademark on the market in the European Economic Area, the exhaustion of the trademark occurs. This means that the owner of the trademark cannot prevent the further circulation of these goods. However, it often happens that the goods are purchased in one country, where the goods were first sold by the trademark owner, and then being sold in another country. According to the significant differences in the prices of medical and pharmaceutical products in different EU countries, there is a significant market for the so-called parallel import of such goods. Recent case law of the Court of Justice of the European Union has clarified how the provisions relating to the packaging and repackaging of medicinal products should be interpreted and applied in the context of parallel trade in pharmaceutical products within the EU.
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Cyber security of a critical infrastructure
Статья научная
A critical infrastructure consists of basic assets and facilities whose functioning has a significant impact on the society and economy of a country, as well as on its security. The life and work of the citizens of a country are largely dependent on a smooth operation of various energy, telecommunication, water and sewage facilities, as well as the network of hospitals and health institutions, transportation, etc. The safe functioning of these systems is a prerequisite for the existence and development of a social community in an area. Therefore, it is necessary to undertake all necessary activities to preserve a critical infrastructure both in reality and cyberspace. With the development of the Internet, there has been a transformation of people’s work and life in the broadest sense, in such a way that it has become an indispensable part of everyday life of each of us. Together with the largest global network increasingly used as well as the various services people necessarily being relied on in the new reality the world encountered during the COVID-10 pandemic, there has been created a vast space attracting the malicious users. They act by using the known mechanisms of functioning communication networks and other information technologies, finding the system vulnerabilities and exploit them. In this paper, we will analyze the cyber security of a critical infrastructure, cyber attacks on a critical infrastructure and the measures needed to be taken to mitigate the consequences of cyber attacks.
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Cyberbullying legislation: the role of cyberbullying law
Статья научная
Faced with the increasing number of cases of cyberbullying and its consequences, states are trying to find the best way of its sanctioning. The latest tragic event, in which a young man from Republika Srpska committed suicide because he was mocked on one of the social networks, has triggered a public debate on whether cyberbullying is adequately sanctioned in our country. Based on the way individual countries sanction cyberbullying, we can divide them into two groups. The first group includes those countries that sanction cyberbullying through the application of one of the existing criminal offenses (insult, defamation, persecution, unauthorised filming, hate speech). The second one refers to those countries where cyberbullying has been treated as a special criminal offense. The aim of this paper is to make suggestions for possible changes, based on an analysis of the existing legislation on cyberbullying in our country as well as in some European countries, in order to protect the victims of cyberbullying more effectively. In the paper, the authors have used a normative-legal method for the analysis of legal regulations including a comparative method for a comparative presentation of a legal regulation of cyberbullying in other countries. On the grounds of the analysis conducted, there is a conclusion that a legal protection against digital violence in our country does not provide adequate remedies for the victims of cyberbullying.
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Democratization of property relations
Статья научная
The process of democratization of property relations has affected, first of all, the European area, and then the other parts of the world. Having been established with a clear economic and social content, without the ideological burden, the employees shareholding and participation have the conditions to expand, strengthen their power and become one of the important factors in the structure of the modern society. In our area, the process of the transformation of social ownership began with the employees shareholding. Company employees were given the right to buy internal shares under privileged conditions. That was the main form of transformation. There was trust in the company to initiate, organize and manage the process of transformation in its own interest. The funds obtained through the issuance of shares, selling a part of the company or the whole company, according to the express provisions of the law, belong to the company or its complex form. Later, already during 90s, ideological properties were unjustifiably attributed to the employees shareholding and participation, which led to their complete exclusion from the economic and legal system. By subsequent regulations, privatization was almost exclusively reduced to selling, thus excluding all other possible different forms of privatization. This approach lost the sight of the basic economic objectives of privatization: there was no acquiring of new capital or new investment cycle; there were neither new business entities capable of receiving and fertilizing the capital emerged, nor the privatization represented an incentive for dynamic development of economy and employment. Economic enterprises were extinguished, and unemployment increased. And now, in a much less favorable economic and social climate, it is reasonable to raise the issue of whether there are still conditions to engage the inner forces that would take upon themselves the responsibility for getting out of the crisis, by introducing the employees shareholding and privatization. A prerequisite for this is certainly the creation of a legal framework for the establishment and development of the employees shareholding and participation. This would simultaneously bring us closer to the legal system of the European Union and its member states, in which the employees shareholding and participation are widely established and legally regulated institutions.
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Dečiji rad, zloupotreba i negacija dečijih prava
Статья научная
Rad koji obavljaju deca od ranog uzrasta, i u vrlo teškim i nehumanim uslovima nije nova pojava. Kada dete radi pod izuzetno teškim i nehumanim uslovima, kada su naknade za rad male ili ih uopšte nema, kada se rad odvija opšte rečeno u nezdravim uslovima (na opasnim mašinama ili sa hemikalijama), onda se smatra da postoji iskorišćavanje dečijeg rada. Međutim, kada dete pomaže svojim roditeljima u obavljanju kućnih poslova, zarađuje za džeparac u slobodno vreme, učestvuje u porodičnom biznisu, tada ne možemo govoriti o postojanju iskorišćavanja dečijeg rada. Nije svako dete koje radi podjednako žrtva iskorišćavanja u radu. Priroda ovog fenomena zavisi od nekoliko faktora, među kojima možemo izdvojiti uzrast deteta, zdravstveno stanje deteta, ekonomske prilike u državi, stepen razvoja tehnologije i najvažnije - stepen humanog razvoja. Postoji više organizacija u svetu koje se bave pitanjima dečijeg rada. Ovom prilikom pomenućemo dve: Globalni marš protiv dečijeg rada i Međunarodna organizacija rada - MOR. MOR je tokom vremena svog postojanja konstantno nastojao da ustanovi standarde minimalnog uzrasta za zapošljavanje kao početni kriterijum za definisanje i regulisanje problema u vezi dečijeg rada. Počevši od te Konvencije pa nadalje, ustanovljavao se minimalni uzrast za zapošljavanje. Konvencija o pravima deteta je značajan dokumenat koji je sublimirao sva ljudska prava koja se priznaju nekoj posebnoj grupi. Srbija i Crna Gora su ratifikovale Konvenciju o pravima deteta. Imajući u vidu realno stanje stvari u odnosu na proklamovane ciljeve, može se zaključiti da nam predstoje kontinuirane aktivnosti i borba za uspostavljanjem civilizacijskih standarda u cilju poštovanja ljudskih prava, naročito prava dece.
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Статья научная
Deciding to write, for the first time in this country, an article on dichotomy of non-credible police evidence in the previous proceedings and prosecution powerlessness, we had no presentiment how much care it would cause us. During the writing we had the issues regarding the contextualization and terminological determinants. As it turned out, recognizing, separating and using the method of correlation between the lack of evidence in police investigations and prosecution capacity/incapacity was an unexpectedly big challenge and an overly complex theoretical demand for a paper of this scale. However, we are neither the first nor the only ones to face this issue. Every attempt to make a theoretical contribution to understanding this term in both the legal and criminological theory has faced a number of issues difficult to be solved. On the other hand, it does not mean at all that attempts at scientific pondering and exploration of this important criminological and legal scientific problem, as well as attempts at defining the scientific causality of those aforementioned attempts, are theoretically meaningless or impossible. The fact that such a feat is difficult, that these institutions are illusive or multidimensional, shows how the theoretical knowledge used to interpret them has certain weaknesses, i.e. that during scientific research we are faced with many limitations and unknowns in our criminalistics and legal theory. By solving theoretical problems associated with the lack of evidence and its impact on prosecution powerlessness, we could open the way for understanding the other, similar or related phenomena and processes in law and criminalistics. Therefore, it is the primary purpose of this paper to explore the ranges of prosecution capacity/incapacity through the lack of evidence in police investigations regarding bribe-taking and money laundering. We do not believe we can offer a significant scientific and theoretical contribution if our research remains isolated, without arousing other scientific discussions on this topic. Our attention is directed towards the search for a different and somewhat innovative approach which could eventually lead to some new insights into our criminal and legal thought on the evidence and its impact on prosecution capacity or incapacity.
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Digital assets – a legal approach to the regulation of the new property law institute
Статья научная
Development of a digital technology has transformed the way in which an individual, a social group or community, i.e. a state, interacts in their domains of interest. The application of a digital technology, especially ICT, has caused the need to review whether the existing legislative solutions correspond to such news, or whether it is necessary to change or supplement the legal system of the state with new regulations. One of such issues refers to the creation of new types of assets identified as digital assets or the assets based on the creation of a digital technology. The subject of the research paper is the analysis of the institute of digital property with a special reference to the legislative domain of the way of issuing digital property. In his work, the author affirmed the issue of the importance of the legislative challenge in the standardization of relevant social phenomena and relations in the age of the intensive development and application of a digital technology. The aim of the work was achieved in the domain of the conducted normative analysis of the relevant provisions of the Digital Property Act in the part referring to the legislative approach to standardizing the concept of the digital property institute, as well as the particular issues from the domain of issuing digital property.
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Domestic violence – the position of the child in violence suffered by the parent as a victim
Статья научная
Domestic violence, regardless of how it is manifested, represents a phenomenon which has recently attracted more and more significant doctrinal and media attention and it is a very complex problem. There are numerous questions about domestic violence to which this paper tried to provide answers. However, it is important to point out that domestic violence is not the only type of violence to which a child can be exposed, or to which he/she can be connected in an indirect or direct way. Bearing in mind that one form of violence predominantly causes and entails the other forms of violence to which a child can be exposed, and even find him/herself in the capacity of being a bully, the authors of the paper considered it important to briefly mention the other forms of violence in which the center of attention can be the child, such as digital violence and violence in schools. The focus of the paper has certainly concerned the position of the child in situations where violence against one of the parents (mostly against the mother) by the other parent (mostly the father) occurs. The conclusion is that the direct or indirect child’s presence and/or his/her knowledge of the violence suffered by the mother is actually an extremely negative pattern of behavior being adopted by the majority of children during their development.
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Dominirajuće teme i dileme na području poreskog prava Evropske Unije, III
Статья научная
Sprovedena analiza pokazala je da načela poreskog prava EU imaju za cilj podupiranje neprestanog razvoja unutrašnjeg tržišta EU. Taj se cilj postiže uklanjanjem poreskih prepreka za slobodno kretanje ljudi dobara, kapitala i usluga. Osnovno je sredstvo za postizanje navedenih ciljeva harmonizacija nacionalnog poreskog zakonodavstva država članica. Osnovni pravni instrument kojim se na evropskom nivou propisuje poreska politika jesu direktive. Doneto je nekoliko direktiva, kako na području posrednih tako i na području neposrednih poreza. Ali, rezultati u uspostavljanju jedinstvenog tržišta bez poreskih prepreka i zahtevi EU u pogledu harmonizacije nacionalnog poreskog zakonodavstva nisu još uvek potpuno ostvareni. Osnovni uzrok je što EU još uvek nema zajedničku fiskalnu a posebno ni zajedničku poresku politiku. Bez zajedničke fiskalne, odnosno poreske politike, nema ni uspešne harmonizacije oporezivanja na nivou EU, a ni evropskih integracija. Dok ne bude formulisana i prihvaćena zajednička (ne i jedinstvena) fiskalna odnosno poreska politika EU i dalje će postojati teza o ugroženosti razvoja država članica i ljubomornom čuvanju poreskih resursa što će voditi dezintegraciji evropskog prostora.
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EU producers at the mercy of Chinese competitors?
Статья научная
Like any other WTO member the EU is entitled to use antidumping measures to protect its market from certain imports in the case of unfair competition. As far as China is concerned, the EU has extensively been using the 'analogue country' method for calculation of anti-dumping margin, as a method applicable for non-market economies, which enabled it to protect domestic producers from low Chinese prices. However, on 16th December 2016 this country will be granted a full market economy status within the WTO, as enshrined in Article 15 (d) of the China's Accession Protocol. This effectively means that the EU will not be able to charge such a high anti-dumping duty to Chinese products and shield domestic industry from a fierce competition. This article argues that the EU treatment of Chinese exporters was based on trade protectionism, and that, due to the forced change in December 2016, the internal market will face danger after China is granted a full market economy status.
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Eksproprijacija kao način prestanka ili ograničenja stvarnih prava
Статья научная
U ovom radu ćemo se osvrnuti na pravnu regulaciju eksproprijacije u Bosni i Hercegovini, sa naročitim osvrtom na međunarodne akte regulisanja prava svojine. Međutim, imovina, odnosno pravo vlasništva su u Bosni i Hercegovini imali veoma burnu sudbinu koju karakteriše nizak nivo sigurnosti, česta nasilna izuzimanja, te stoga pravo vlasništva na našim prostorima često nije uživalo zaštitu koja se tradicionalno propisuje. Tako su u praksi, zabeleženi brojni slučajevi neopravdanog izuzimanja ili ograničavanja prava vlasništva, između ostalog i putem eksproprijacije. Novi propisi su još uvek u određenoj meri baštine rešenja i stanovišta ranijeg pravnog sistema, ali su ipak na tragu jednog drugačijeg koncepta kojim se pravo vlasništva tretira na jedan adekvatiniji način. U ovom delu se može konstatovati da predmetni propisi prate rešenja nacrta Zakona o stvarnim pravima, koji propisuje jedinstvo, jednovrsnost i jednakost, odnosno jednaku zaštitu prava vlasništva i drugih stvarnih prava, bez obzira ko je titular istih.
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Elektronski način plaćanja - EFT
Статья научная
Elektronsko poslovanje i njegov sastavni deo elektronska trgovina su novije pojave u savremenom poslovanju, tačnije u trgovini, pravu, poslovnim odnosima između pojedinaca (fizičkih lica), zatim pojedinaca i privrednih organizacija, a najviše između banaka kao i banaka i njihovih klijenata. Pojave kao što su: elektronski potpisi, elektronska razmena podataka, elektronski način plaćanja, kućno bankarstvo, virtuelne prodavnice i kupovina putem Interneta kao i zaključivanje ugovora i najrazličitijih vrsta poslova putem Interneta i druge pojave, doprinele su brzini, kvalitetu i kvantitetu učinjenih poslovnih transakcija, a sve to sa manjim utroškom sredstava. Kao i svaki drugi vid poslovnog odnosa, i ovaj ima svoje nedostatke koji se ogledaju u tome što je nov i pravno nije u potpunosti regulisan, sa brojnim prazninama naročito u nacionalnim zakonodavstvima: sigurnost samih poslovnih transakcija može biti ugrožena na različite načine obzirom da je u pitanju zaključivanje poslova putem WWW-a. Zakon je urađen u skladu sa savremenim načelima u oblasti e-poslovanja i e-trgovine obzirom da treba da udovolji zahtevima i potrebama prakse, prvenstveno poslovnih ljudi, kojima je u interesu da imaju pravnu osnovu na koju mogu da se oslone.
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