Review paper. Рубрика в журнале - Pravo - teorija i praksa
Suspect detention during the pre-investigation proceedings in Republic of Serbia
Статья научная
According to the Article 27, paragraph 1 of the Constitution of Republic of Serbia (2006), the right to liberty is guaranteed to all domestic and foreign persons, which is derived from the constitutional provision that the holder of this right is “everyone”. Everyone has the right to move freely, to settle in Republic of Serbia, to leave it, and to return to it. This freedom may be restricted by law if it is necessary to conduct a criminal proceedings, protect the public order and peace, prevent the spread of infectious diseases, or defense of Republic of Serbia (the Constitution of Republic of Serbia, 2006, the Article 39, paragraph 2). Deprivation of liberty is allowed only for legal reasons and in the procedure provided by law. Both minors and adults may be deprived of their liberty. A person who has not reached the age of 14 is considered a child, and he/she cannot be deprived of liberty in the pre-investigation procedure because, according to our legal regulations, children are not subject to criminal liability. The aim of this paper will be to explore the concept of deprivation of liberty by arresting and/or detaining a suspect in the pre-investigation procedure according to the criminal procedure legislation of Republic of Serbia, with examples from previous practice and a proposal for some legal improvements.
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Suspended sentence with custodial supervision in Serbia – what does custodial supervision involve?
Статья научная
Suspended sentence with custodial supervision represents an alternative sanction that the legislation of the Republic of Serbia has known for half a century, but its application is rare because it is ordered in a negligible number of cases. Ordering custodial supervision has its advantages and it can be effective in cases when it is not enough to just sentence a person conditionally nor would it be justified and effective to punish the individual more severely, but it is necessary to ensure some sort of help and support in order to correct the offender’s behavior and deter them from committing criminal acts in the future. In order to better understand this sanction and see how it works in practice, we have analyzed measures of custodial supervision which are most often prescribed in accordance with the committed crimes. The paper uses a statistical and comparative method and analyzes the available literature, as well as the judgments of those courts that in a certain observed period had the largest number of suspended sentences with custodial supervision.
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Suspension from work of civil servants in Republic of Srpska
Статья научная
In the paper the author describes the institute of suspension from work in Republic of Srpska, which is applied in the cases of criminal or disciplinary proceedings against a civil servant, with an aim to protect the interests of the service during the course of criminal or disciplinary proceedings against the officer. Primarily through a review of legislation of Republic of Srpska, as well as through legal solutions in other countries and through a review of a standpoint of legal theory, the author separately analyzes the types of suspension from work of civil servants, the duration of suspension, the salary compensation for the period of suspension, and legal remedies against the decision on suspension from work. The author's conclusion is that this is a necessary legal institute, but he suggests, as a cumulative condition for suspension from work, a reasonable expectation that the civil servant could be imposed with the most severe punishment in the disciplinary proceedings - the termination of the employment in a civil service. It is also suggested that, by the amendments of law, the Civil Service Board of Appeal is enabled to decide on the existence of the decision on suspension during the entire disciplinary or criminal proceedings.
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Svetska trgovinska organizacija - pravila i procedure za rešavanje sporova
Статья научная
Problematika položaja Svetske trgovinske organizacije, kao uostalom i drugih međunarodnih organizacija, trebalo bi da bude uslovljena pre svega formalno-pravnom sadržinom akata date organizacije, kao i odredbama i opštim načelima međunarodnog prava, kao i pitanjima faktičkog položaja organizacije u odnosu na postojeće druge relevantne organizacije i tela međunarodnog karaktera i njihove interakcije sa nacionalnim institucijama i nacionalnim pojedinačnim pravnim sistemima. Prilikom ovakvih razmatranja mora se poći od činjenica postojanja angloameričkog pravnog sistema regulisanja pravnih odnosa i kontinentalno evropskog ili klasičnog sistema zasnovanog na opštim načelima i tekovinama rimskog prava, koje oba sa sobom nose različite koncepcije induktivnog i deduktivnog pristupa pravnom zaključivanju, te otuda različitim koncepcijama regulacija i poštovanja odnosno sprovođenja prava u praksi. Anglosaksonsko, odnosno angloameričko pravo kao dominantno i uzorno u formiranju pojedinačnih akata međunarodnih organizacija pa i Svetske trgovinske organizacije, jeste precedentno, načelno, i ono u velikoj meri ostavlja regulaciju predmetnih faktičkih situacija subjektima situacija; i to tako da regulisanje situacija treba da je primereno praksi i shvatanjima strana u odnosu, ili u sporu, što u velikoj meri može stvoriti konfuziju i problematiku ukoliko se odnosi odvijaju između subjekata koji ne pripadaju angloameričkoj pravnoj tradiciji. Ovim, javljaju se kao relevantna i pitanja, mogućnosti lakog nametanja volje jačeg subjekta u odnosu sa slabijem, kao i pitanja problematike težnje ka najoptimalnijim rešenjima i postupcima, u cilju ekonomski najboljeg razrešenja datih situacija. U svetlu ovih pitanja jeste i iznošenje pravila i procedura radi rešavanja sporova članica Svetske trgovinske organizacije, propisanih delom Dogovora o osnivanju STO, aneksom 2 na predmetni dogovor.
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Tajm-šering i nepoštena poslovna praksa
Статья научная
Od usvajanja Direktive EU 94/47 o zaštiti kupaca u pogledu pojedinih aspekata ugovora koji se odnose na kupovinu prava na vremenski podeljeno korišćenje nepokretnosti, taj oblik korišćenja je pretrpeo promene, a na tržištu su se pojavili i novi proizvodi za odmor slični tajm-šeringu. U praksi se pokazalo da Direktiva EU 94/47 nije sprečila pojavu ugovora sličnih tajm-šeringu, kojima se nastojalo da se zaobiđu odredbe Direktive. Nesavesni trgovci su na taj način izbegavali odgovornost po osnovu Direktive, znajući da ugovori slični tajm-šeringu ne potpadaju pod njen domašaj. Stoga je bilo potrebno usvojiti propise kojima bi se sprečila nepoštena poslovna praksa i ujedno zaštitila prava potrošača. To je učinjeno usvajanjem Direktiva EU 2005/29, 2006/114 i 2008/122. Predmet ovog rada biće prikaz nepoštene poslovne prakse u vezi sa tajm-šeringom, kao i pravna analiza rešenja sadržanih u svakoj od pomenutih direktiva EU.
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Terorizam kao oblik specijalnog rata
Статья научная
Terorizam je poslednjih decenija prerastao iz akutnog u hronični problem sa kojim se susreće čitava međunarodna zajednica. Naoko sporadični i neujednačeni pokušaji zastrašivanja građana i njihovih legitimnih političkih predstavnika, 'preko noći' postaju oruđe za vođenje posebnog, odnosno specijalnog rata. Sledstveno tome, terorizam je neophodno posmatrati kao globalni fenomen i pretnju koja, usled svog kontinuiranog delovanja, poprima sva obeležja gerilskog načina ratovanja. Bogatstvo formi u kojima se ispoljavaju teroristički akti i veliki broj terorističkih organizacija doprinose otežanom načinu vođenja borbe za njihovo suzbijanje ili bar dovođenje na 'podnošljivu' meru. U tom smislu, neophodno je usmeriti buduće aktivnosti u pravcu sveopšteg pružanja otpora svim vidovima terorizma, što veliki broj država, na čelu sa međunarodnom zajednicom zaista i čini. Uočljivo je prisustvo velikog broja definicija terorizma i terorističkih organizacija u zavisnosti od aspekta iz kojih se ova planetarna pojava i globalno zlo posmatra. Neophodno je ukazati na korišćenje različitih kriterijuma, počev od bezbednosnih, politikoloških, krivičnopravnih, kriminoloških, socioloških i sl., kojima se tretira i pojmovno određuje fenomen terorizma. Uvažavajući specifičnosti različitog tretiranja terorizma, autor ovoga rada je odlučio da, koristeći se dostupnim izvorima, ukaže na sve negativne efekte koje ova planetarna pojava čini ljudskom društvu, kroz vođenje ili oblik specijalnog rata.
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The European Union market from the aspect of the competition and basic values of Roman law
Статья научная
The rich treasury of Roman law requires a continuous scientific research. The values of Roman law in the process of globalization are achieving the notable results in the creation of a new ius commune. Today, the logistical aspect of the European legal systems takes place in the domain of Roman law, and some of its values are recognizable in the course of economic life on the market within the encounter of the national and European Union Law. The methodological and institutionalized framework of the competition law is used to achieve positive effects in the single market, paving the way for the even distribution of social wealth. The market cannot neutralize the behavior of business entities using the competition to achieve extra profits. So, detecting and placing all possible forms of embezzlement used by business entities under the legal framework is a difficult task dealt with by competition policy entities, largely using the legal institutes of Roman law.
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The European model of the integrated border management
Статья научная
The enlargement of the European Union has called for a reevaluation of the way the external borders to be protected as a necessary consequence of the free movement of people in the European Union. It also appears to be a result of a fundamental component of the area of freedom, security and justice. The abolition of the internal border checks and a different approach to external borders followed by emerging forms of cross-border crime with a cross-border dimension, illegal migration, trafficking in human beings and terrorist threats constantly being on the rise, have requested a different approach. The lack of economic perspective, poverty, environmental disasters and wars have forced people to look for a better life elsewehere, which has led to the most important global phenomenon of the 21st century- migration. Migration issues have made us think about the important matters faced by developed countries independantly, and as such they are currently at the top of the European Union’s political agenda. To respond effectively to emerging challenges and threats, the European Union has expedited the development of the integrated border management as a generally acceptable border management model, as well as a key factor in improving migration management. The paper is based on the information gathered from the open sources of the European Union institutions, as well as from personal experiences gained throughout the course of border management reform in Republic of Serbia.
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The calculation of earnings and wages compensation as executive documents
Статья научная
Recent amendments to the Labour Act put a significant issue in front of the scientific and professional public: whether employees, by amending of Article 121, received an important institute of protection of individual rights or whether, in practice, we are talking about a difficult to operate Institute of rights protection. Will the provision providing the fact that the calculation of earnings and wages compensation represents an executive document allow the employee to quickly and easily exercise his/her right to remuneration which he/she had not been paid by the employer and thereby reduce the number of labor disputes, or, will it be 'drowned' in a continuous interpretations of stakeholders and become stultified. Generally speaking, neither of parties are fully satisfied with the adopted solutions which amended the Labour Act. By giving certain dilemmas and attitudes being presented in this study, I want to contribute only to a clearer and more precise formulation of the individual labor law institute, and thereby, in the near futurity, to the facilitation of the implementation of laws needed to be clear and available to all employers and employees.
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The comparative analysis of design right and copyright
Статья научная
A large variety of market relations are regulated by intellectual property rights, which represent legitimate monopolies correcting certain inefficiencies of a profit distribution on the market. In the following paper, the author examines the relations between design right and copyright using the comparative method. Firstly the author will analyze both resemblances and differences between these two intellectual property rights. The resemblance in protection object in particular makes available the cumulation of protected rights, in other words, the possibility of protecting industrial design by copyright, which will also be analyzed in the paper. Such work aims to comprehend the hybrid nature of design right as a right usually bypassed in a legal theory, and which is, in the author’s opinion, especially interesting.
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Статья научная
Based on the premises that public administration should serve as an open, digitally developed and work-transparent public service, the aim of the paper is to analyze the notion and purpose of an administrative contract as a part of new Law on General Administrative Procedures. Simultaneously developed with the Public Administration Reform as its corner stone, several aspects of the law have been analyzed, just for the purpose of comparing novelties. Having in mind that such a contract represents a novelty here, but not in the European administrative space, it is our goal to determine and conclude whether this agreement provides an essence of citizens’ social and economic demands. The concept of establishing this kind of a ‘symbiotic’ contract finds its purpose in being differentia specifica from any other contracts, thus having government on one side. It still stands as an open issue how such a kind of an agreement will be fully executed, monitored and regulated.
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The control of the state security services from the middle of 1966 untill the beginning of 1975
Статья научная
The Brioni plenum took place in mid 1966. It was carefully planned and prepared beforehand. The decisions made there will have a crucial importance and far-reaching consequences for the fate of Yugoslavia at the time. This event sped up the process of the decentralization of the power of the state. Furthermore, it brought a completely new organization based on this new concept, as well as a new role and jurisdiction of the newly formed State Security Service. Based on the Law on Federal councils, the Federal Council for the Protection of the Constitutional Order was established from July 1966 until the beginning of 1975. Based on original and so far unpublished sources, this paper attempts to show and explain how these governing bodies and organs functioned. The main task of these governing bodies and organs was to follow, control, guide and coordinate the activities of the extremely complex security intelligence system of SFRY.
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The employment of the minors in the context of exercising the child’s right to work
Статья научная
Exercising the child’s right to work requires a good legislative framework for labour relations and a set of conditions prescribed to ensure that the minors work in a way that does not harm their safety, health, physical, mental and moral development and does not interfere with their education. The aim of this paper is to consider both the international and national standards regulating the children’s work and challenges in their application in practice. It also points out the necessary actions aimed at improving the position of the minors in the labour law environment. A special attention is paid to the issues related to the prohibition of discrimination against children in the field of work, the consent for employment including the regulation of the minimum age for employment and protection at work. The paper focuses in particular on the issue of the implementation of labour legislation in practice of Republic of Serbia, especially in the context of the efficiency of control mechanisms and the results of inspections conducted in 2019 by the Labour Inspectorate of the Ministry of Labour, Employment, Veteran and Social Affairs, which revealed a series of violations of the child’s right to work. In this paper, in order to grasp an insight into this issue, there have been used the historical comparative-legal and theoretical-analytical methods. The research findings indicate that the national labour legislation regulating the minors` work is harmonised with the international standards to a significant extent, but there is a room for their improvement. It is also necessary to improve the mechanisms of inspection and the efficiency of the application of legislative provisions in practice.
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The etiology of juvenile delinquency
Статья научная
In contemporary societies characterized by advanced information technology and widespread accessibility to various resources, social and psychological factors leading to adverse personal and societal consequences significantly influence minors, providing fertile ground for the emergence of juvenile delinquency. Juvenile delinquency is a serious problem for all contemporary societies, encompassing different forms of deviant behaviors among minors, including criminal acts that trigger legal proceedings and sanctions. Since there are a lot of theories and studies which focus on the distinctions between delinquency and criminality, this paper does not deal with that in greater detail. Instead, it focuses on elucidating juvenile delinquency as a foundational concept for understanding diverse forms of deviant behavior from criminal, psychological, and sociological perspectives. The paper identifies causes of juvenile behavior and early indicators for identifying young offenders. The primary research objective is to explore delinquency prevention strategies tailored to offenders. The examples illustrate the most frequent criminal acts perpetrated by reported, accused, and convicted minors, categorized by gender, age, and type of criminal sanction.
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The exogenous characteristics of traffic delinquents
Статья научная
The exogenous characteristics of traffic participants, such as: alcoholism, fatigue and psychoactive substances, have a significant impact on a safe behaviour in traffic, especially the motor vehicle drivers. In that sense, they represent the factors that can directly influence the unsafe behaviour in traffic. The influence of the exogenous characteristics on a safe behaviour of traffic participants has been analysed on the basis of the statements in documents as well as the results of numerous empirical studies. For the purposes of this paper, there have been selected and analysed the statistical data on the influential factors of traffic accidents for the period from 2010 to 2019 in Republic of Serbia. After reviewing the statistical data, both a qualitative and quantitative content analyses were performed. In addition to the statistical method, there were also used the content analysis methods, empirical method, descriptive method, comparative methods, as well as deduction and induction methods, in order to analyse the trend and presence of these influential factors of traffic accidents in Republic of Serbia. The statistical data being processed in this paper, originated from the database of the Traffic Safety Agency of Republic of Serbia. The results of the research show the extent to which the exogenous characteristics affect a safe behaviour of traffic participants, as well as the severity of the consequences of traffic accidents. Observed individually, the listed characteristics have a different intensity of influence on a safe behaviour in traffic. In this regard, from the external characteristics of traffic delinquents, the most common is the drunk driving as an influential factor, which especially affects the severity of traffic accidents in Republic of Serbia.
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The first degree murder in a cruel manner
Статья научная
The first degree murder belongs to the group of the heaviest criminal offences punishable by the heaviest penalties. Basically, the first degree murders have all the characteristics which are common to every murder, i.e. the unlawful deprivation of another person’s life. But, the murder accompanied by a certain qualifying circumstance makes it heavier and socially more dangerous than an ordinary murder. In this paper, we will look back and explain in more detail the first degree murder in a cruel manner, which is a complex criminal offence, where, on the one hand, cruelty means taking the victimʼs life in such a way that it causes the excessive pain and suffering, while, on the other hand, it is necessary that a perpetrator also shows a special emotional relationship towards the pain and suffering (in the form of feeling pleasure, enjoying them, the absence of pity, etc.). We will analyze the hypothesis of the criminal offence of the first degree murder committed in a cruel manner to be planned and a person for the attempt of such an offence to be punished. We will draw a parallel between the criminal act of murder and the first degree murder including the fact whether this offence was committed in a conscientious or unsconscientious way. We will also consider the issue of the organized crime and how often this type of an offence is committed in criminal groups. The aim of the research is to meet the meaning and qualifying circumstances being specific for this offence as well as to see how this offence is qualified in practice. It also covers the issue of its sanctions and how the court evaluates certain findings and opinions in the proceedings including the aggravating circumstances relevant for determining the amount of the punishment.
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The forms of domestic violence
Статья научная
Domestic violence is not a phenomenon of the modern age, but rather a new interest of the state to recognize it, provide a protection for victims of domestic violence and to fight against it. In Republic of Serbia, domestic violence was incriminated only just in 2002 by amendments to then valid Criminal Code, while our legislator introduced the family law protection as well as the institute of domestic violence in 2005 by the Family Law. Domestic violence refers to a behavior by which one family member threatens the physical and psychological integrity or serenity of another family member. It most often comes out in the form of physical, psychological, sexual and economic violence. The aforementioned forms of domestic violence will be the subject of analysis of this paper. In addition, a special attention will be paid to victims who are most often exposed to domestic violence - women, children, the elderly and men.
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The forms of economic crime in a bankruptcy proceedings
Статья научная
In modern conditions of business conduct of economic entities, the importance of bankruptcy and a bankruptcy proceedings is unambiguously emphasized. The conditions preceding to bankruptcy as an institute of economic law are a consequence of the economic and financial position of a certain economic entity. At the very beginning, the paper gives a brief overview of the conceptual definition of bankruptcy and its goals. The primary focus of the paper rests on the forms of economic crime in a bankruptcy proceedings, which in part includes a brief overview of the concept and characteristics of economic crime as an extremely complex and important form of modern crime. Having in mind the main subject of the paper, the valid criminal legislation of Republic of Serbia envisages two criminal offenses against the economy which can be committed in connection with and/or relating to bankruptcy. These are causing bankruptcy (from Article 232) and causing false bankruptcy (from Article 232a).
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Статья научная
This paper discusses the international documentary credentials and its role in the international trade. The appearance of the international trade and the increasing distance of the principal (a buyer or importer) and the creditor’s beneficiary (a seller or exporter) leads to the need to protect both of them as well as the other parties in business. In comparison with other legal institutes in banking business, the most frequent use has the international documentary credentials because, beside being a payment instrument, it has the role of securing claims too. Legal relations in letters of credit are regulated by the Law of Contract.
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The influence of artificial intelligence on the right of freedom of expression
Статья научная
The right to freedom of thought and expression represents one of the fundamental principles of a democratic and civilized society. The Internet has become the most important communication medium through which the individuals exercise their right to seek, receive and impart information and ideas of any kind, regardless of any frontiers. Various technologies have been used to enable an online communication, while today artificial intelligence systems are deployed in every corner of the Internet, providing information dissemination and communication. The application of the artificial intelligence systems is based on generating, collecting, and processing a large quantity of personal data with the aim of profiling users and predicting their future behaviour. This can have serious consequences for the right to freedom of expression. Through the content personalization on online platforms, particularly on social networks and search engines, the artificial intelligence systems choose the content that users can see and the order in which they see it, leaving them in the so-called ‘filter bubbles’. Artificial intelligence systems also moderate the content, removing the one which does not comply with the rules of the online platforms, and, temporarily or permanently, blocking the users who violate the community rules, raising thus the issues of legality, legitimacy and proportionality of the decisions made by artificial intelligence.
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