|
Professor Faculty of Law University of Belgrade
RESALE PRICE MAINTENANCE: LEGAL VERSUS ECONOMIC APPROACHES
Summary
Resale Price Maintenance (RPM) refers to agreements between a seller and a buyer setting limits to the price at which the buyer may resell the products pershased. It is concerned as the “hardcore constrain” in vertical agreements. We analyse a special case of RPM, still under investigation by the Commission for Protecting Competition, in which a manufacturer set, as an enforceable obligation, a price floor bellow which retailers may not sell the product, but the other manufacturers on the relevant market did not have such agreements. In the Serbian legal system RPM terms are per se forbiden and deemed annuled. Retailers dealing with the involved manufactures might be taken responsible for breaking the law on protecting competition. We argue in favour of replacing this rule with the opposite rule of reason under which the competition authority should balance procompetitive and anticompetitive effects of RPM in each case before it passes any decision. There are no apriory theoretical arguments to declare which rule is superior, neither clear empirical evidences whether RPM are always harmful for consumers. In the said case RPM restricted to some extent intra-brend competition, but there are convincing evidences that inter-brend restrictions were not present. Consumers evidently benefited from such competition. Generally speaking, the rule of reason will put more economic analysis into legal cases of protecting competition in Serbia, which is mostly absent so far, and provide a better balance bitween draconic fines and probability of passing erroneous decisions. We estimated in this paper elasticity of demand based on a system of regression equations estimated under restriction on parameters, and worked with impulse functions from a VAR model in order to simulate dinamic processes of price competition. We addressed issues such as relevant market, supstitution of differentiated goods, own and cross-price elasticity of demand, intra-brend and inter-brend competition, concumers welfare, creation and breaking-up of a cartel. Finally, we compered Serbian and the EU legal system concerning RPM provisions. Key words: Resale price maintenance. – Per se rule. – Intra-brend and inter-brend competition. – Demand substitution. – Ttacit collusion.
Professor University of Belgrade Faculty of Law
THE FIRST SERBIAN CONSTITUTION OF SRETENJE (CANDLEMASS)∗ – 175 YEARS AFTER
Summary
The author points to a few strongly rooted stereotypes regarding the first Serbian Constitution of Sretenje adopted in 1835. He calls for their re-evaluation and offers new arguments as a starting point to encourage further research.105 There are scholars who raise the question whether the 1835 act was the first Serbian constitution. Some claim that there were previous historical documents, which were of constitutional character, while others contest the constitutional nature of the 1835 act, due to the lack of formal sovereignty of Serbia in that time. In the author’s view the Constitution of Sretenje had sufficient formal and substantial elements comparable to other contemporary European constitutions. The author is of opinion that the Constitution was not imposed to then Serbian prince Milosh as an aftermath of the rebellion of the influential leader, Mileta, in 1835. Prince Milosh sincerely wanted to provide a constitution for the country, and had ordered its drafting five years before the rebellion took place. The author offers evidence that prince Milosh vigorously tried to save the Constitution after the strong negative reactions to its adoption, which came from Russia, Turkey and Austria. The three powers considered the Constitution to be revolutionary, modern and dangerous for their countries, which was particularly the case of its Chapter XI, providing on civil rights and liberties. The Serbian prince was therefore pressed to suspend the Constitution unwillingly only six weeks after its adoption. The author tries to prove that prince Milosh was in favour of adopting the Constitution not only for his own personal advantage. He perceived it as an important instrument of creating national identity and independence. Two more stereotypes are re-examined. One concerns the scope of contribution of Dimitrije Davidović to the Constitutional drafting, for he is traditionally believed to be the author of the Constitutional text. The other is the cliché about the influences of the French constitutional documents upon the provisions of the first Serbian constitution. In conclusion the author disagrees with the prejudice that law was irrelevant factor in the process of creation of the national conscience among Serbs. On the contrary, rather strong legislative efforts of the mid 30s of the 19th century have brought about not only the first Serbian Constitution, but also the emergence of the first code. It was the Serbian Civil Code, adopted in 1844, which was among the first in Europe. He concludes that all stereotypes existing in respect of the Constitution of Sretenje must be thoroughly researched, which is particularly the case of the one concerning sources of foreign influences upon the Constitution. Key words: Constitutionality in Serbia. – Influence of European XIX century constitutions. – Prince Milosh. – Dimitrije Davidovic. – Legal transplants.
Professor University of Belgrade Faculty of Law
THE PRINCIPLE OF LEGALITY IN CRIMINAL LAW
Summary
The principle of legality in criminal law is one of the main characteristic of a democratic and liberal legal system. Historically, it was created in the time of political and legal liberalization. It is embedded not only in criminal codes of the European states, but also in their constitutions. The author offers a thorough historical, comparative and doctrinaire analysis of the content, scope, implications and social and legal relevance of the principle of legality in criminal law. His scrutiny extends to several legal systems, including that of Serbia, other European countries, the United States, and even Israel and Japan. In addition, the author examines the concept of the direct application of international criminal law in national courts. The direct implementation of the international law provisions, especially those of international criminal law, is possible in Serbia under restrictive conditions. Although it is prescribed in Article 16 of the Constitution of Republic of Serbia, that the general accepted rules of international law are part of legal order of Republic of Serbia and are implement directly, there are some preconditions prescribed. Namely, the ratified international contracts have to be in accordance with the Serbian Constitution, and that provision applies for general accepted rules of international law by analogy. Also, in accordance with the Article145 of Constitution of Serbia, court decisions have to be based upon the Constitution, national laws, ratified international contract or other provisions adopted in accordance with the law. Consequently, rules of international law are not an immediate source for the court decision. International law can be directly implemented under two cumulative conditions: that they exist in the ratified international contracts, and that they are fully in accordance with the Constitution of Serbia. In a number of issues the paper is a critical response to the article Principle of Legality – Normative and Cultural Evolution published in the previous volumes of this journal. Key words: Principle of Legality. – Criminal Law. – International Criminal Law. – Legal Certainty. – The Rule of Law.
Professor University of Maribor Faculty of Law
THE ROLE OF CIVIL-LAW NOTARIES IN SLOVENIAN LAW
Summary
The author offers a comprehensive overview of the role of Civillaw notary, or Latin notary, in the Republic of Slovenia. The Civil-law notary is a legal adviser and a person of public confi dence; a lawyer of private civil law, who is vested as public offi cer with the authentication power of the State, to draft, take, and record legal instruments for private parties and provide legal advice. The author examines the main two types of documents prepared by the notaries: certifi cates of facts and notarial deeds. In addition to being able to provide legal advice and prepare instruments with legal effect, the Latin notary may keep the archives and deposits of money and documents for the purposes of handing them to a third party, and represent a client in civil and administrative proceedings pertaining to the instruments he had prepared. Although it was introduced before fi fteen years only, the author concludes that the Civil-law notary appears as a very useful institution in Slovenian legal system, and announces its further growth, particularly in inheritance law. Key words: Notary chamber. – Notarial deed. – Enforcement title. – Law of inheritance. – Non-contentious civil proceedings.
Professor Faculty of Law University of Belgrade
INSOLVENCY PROCEEDINGS AS AN INSTRUMENT OF CONFISCATION
Summary
The author points to two types of insolvency proceedings under Serbian law whereby the State appropriates assets of the debtor; the first one being the insolvency due to an insufficient value of assets; and the second, the insolvency of a debtor who has been insolvent for an extended period of time. The Constitution of the Republic of Serbia (2006) prohibits the State from depriving citizens of their property. Seizing some one’s assets as a forfeit by the public treasury may be allowed on two conditions, that must be fulfilled cumulatively: that there is public interest involved which justifies confiscation, and that the deprived receives just compensation. The author holds that the existing rules on insolvency proceedings run contrary to the Constitution, and give leeway to the State to confiscate assets of the insolvent debtors on unconstitutional grounds. Key words: Insolvency. – Nationalisation. – Unconstitutionality.
Associate Professor University of Belgrade Faculty of Law
PATRIMONIUM PRINCIPIS
Summary
In the studies devoted to the changes the introduction of principate brought to the roman law and the roman comprehension of state, discussion of the legal nature of the princeps’ treasury (fiscus) and its property (patrimonium) has a significant place. The author reviews results achieved in the literature so far, and concludes that the problem can not be solved from the standpoint of the classical Roman law, because the very position of princeps was hard enough to synchronize with the traditional Roman understanding of the state. Moreover, this position was legally upgraded by the principes themselves, often with the violation of traditional boundaries of public and private spheres. Internal organization of the imperial domains has additionally contributed to this, being systematically constructed as an autonomous legal space isolated from the classical principles of law. Key words: Fiscus. – Patrimonium principis. – Princeps. – Procurator. – Principate.
Assistant Professor University of Split Faculty of Law
LEGAL POSTITION OF WOMEN IN THE MEDIEVAL CITY OF PAG
Summary
The subject matter of this article are certain aspects of legal position of women under the Statute of the medieval city of Pag, especially their status, family matters including marital relations, property, and the rules of criminal and procedural law which particularly apply to women. The author compares the Statute of Pag with the statutes of other Dalmatian medieval cities (e.g. Zadar and Šibenik). The fact that the compared sources of law have common origin, i.e. that they derive from the old and unsaved Statute of Zadar, provides a good starting point for historical and legal analysis. Also, the analysis takes into account preserved individual contracts and other legal documents, as well as the notary sources. The author holds a position that tendency of the city authorities to prevent foreigners from acquiring property, and to avoid division of the family property by dowry, caused the inferior position of women in the communal legal systems. Thorough analysis of the Statute of Pag reveals clear influence of the Statute of neighboring City of Zadar, and of the Croatian-Hungarian law. The author indicates existence of legal transplants and borrowings in the medieval statutes in Dalmatia. Key words: Legal position of woman. – Statute of Pag. – XV century Croatia. – Dalmatian Statutory Law.
Associate Professor University of Belgrade Faculty of Law
JUVENILE JUSTICE IN ENGLAND AND WALES – BETWEEN THE „ETHOS OF CARE AND PROTECTION“ AND THE „ETHOS OF RESPONSIBILITY AND PUNISHMENT“
Summary
This article evolves around the lines of the most important normative solutions and policy of preventing and combating juvenile delinquency in England and Wales. The legal system of England and Wales has created some of the most important innovations in the treatment of juvenile delinquents, such as the establishment of the reforming and industrial schools, special courts for juveniles, probational and social services specialized for the work with the juvenile delinquents, alternative measures and sanctions, and a new concept of victim compensation, as well as the versatile teams oriented towards the work with juvenile delinquents. Simultaneously, the same legal system shows signs of a constant repressive approach, particularly apparent in the field of application of institutional sanctions. This is why some academics hold that there is a striking affinity towards prison institutions in England and Wales, making it one of the most repressive systems of juvenile justice in Europe. Key words: Juvenile Criminal Law. – Welfare model. – Justice model. – Neocorrectionalism. – Institutional Sentencing Measures.
Associate Professor University of Banja Luka Faculty of Law
BOSNIA AND HERZEGOVINA AS A STATE UNION SUI GENERIS – A TEMPORARY SOLUTION OR A MODEL FOR THE FUTURE
Summary
The author calls attention to the growing need of reaching a common understanding of legal nature of Bosnia and Herzegovina, and on the appropriate forms of state polity and governance. The author believes in possibility of such a shared understanding, along with the full internal consensus and respect for the European legal tradition. It should be built on the grounds of respect for the basic principles of international and domestic law, and it should lead to definition and establishment of a complex state of Bosnia and Herzegovina – a confederation or federation sui generis, which, by all means, should not represent an obstacle to the European integration processes. A constitutional order based on the Dayton Peace Agreement should be preserved, in accordance with the principle of pacta sunt servanda. Key words: Cantons. – District. – Constitutional changes. – Dayton Peace Agreement. – Integration process. – National interest.
Assistant Professor University of Belgrade Faculty of Law
SUBSTITUTION OF DEBTOR
Summary
Substitution of a party to the obligation – either a debtor or a creditor – means that another person steps into the position of such party, but in a way that the obligation does not change its identity. In Serbian law, in legal relations inter vivos, the creditor may be changed by means of (1) transfer of a contract as a whole; (2) assignment of a claim (cession); and (3) personal subrogation (payment with subrogation), which may be either statutory or based on a contract. The change of the debtor may happen within a wider scheme of (1) transfer of a contract as a whole; and as (2) substitution of a debtor, based on a contract. A contract for substitution of the debtor which is concluded by the creditor and a third party represents an external substitution (la reprise de dette externe). On the other side, if such legal consequence derives from a contract concluded by the debtor and a third party, it should be called an internal substitution (la reprise de dette interne). Substitution of the debtor which completely terminates the obligation of an initial debtor and gives rise to the obligation of the third party, represents a translative (or perfect, or privative) substitution. Conversely, substitution which means that a third party steps into the debt beside the initial debtor, should be recognized as a cumulative substitution. Serbian law of obligations contains special provisions relating to the internal translative substitution, as well as the provisions on external cumulative substitution of a debtor. There are no special statutory rules on cumulative substitution of a debtor on the basis of contract between the very debtor and the third party. However, this type of agreement may be concluded in accordance with the general principle of freedom of contract. The rules on stipulation for the benefit of a third party should apply here, mutatis mutandis. In addition, Serbian law does not contain any statutory provisions relating to translative external substitution of debtor. Still, the creditor and the third party may conclude such a contract freely, though its legal effects would be conditional upon the acceptance of the debtor, as under Serbian law the debtor may not be released from obligations without his consent. Key words: Internal and external substitution of debtor. – Translative (privative) and cumulative substitution of debtor.
Assistant Lecturer University of Belgrade Faculty of Law
FROM BONA FIDES TO THE PRINCIPLE OF GOOD FAITH
Summary
The concept of good faith (bona fides) was of Roman origin. Initially, it was associated with the general expectation that everyone behaves honestly and fairly in dealings with others. It also meant a personal belief that what one does is just and lawful. The author explores Roman beginnings of the bona fides principle and traces its influences on the contemporary Law of Contracts and, especially, on the modern contract of sale. Furthermore, the author probes the relevance bona fides in different European legal systems and the European Union, and within the European Private Law paradigm. Key words: Bona fides. – Contract of sale. – Mediaeval law. – Good faith. – European Private Law.
Assistant Lecturer University of Belgrade Faculty of Law
INIURIA ALTERI FACTA OF THE PRECLASSICAL ROMAN LAW
Summary
This is an attempt to offer a new reading of a short sentence of the Twelve Tables, and to solve the puzzle of the legal protection of honor in preclassical Roman law. Relying on various opinions expressed in the literature, here are given a new answers to the two questions. Firstly, what the Twelve Tables included under the iniuria alteri facta. Secondly, how did the delict spread to the notion of iniuria of whom the classical lawyers wrote. Author tries to challenge the generally accepted view that iniuria alteri facta originally was light bodily injury which later included insults, proving that the legal evolution went in reverse. Key words: Iniuria. – Twelve Tables. – Membrum ruptum. – Os fractum. – Praetorial edict. – Insult.
|