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Professor University of Belgrade Faculty of Law Dr. Gordana Ilić-Popov Professor University of Belgrade Faculty of Law EU LAW ON DIRECT TAXES AND THIRD COUNTRIES: THE EXTERNAL DIMENSION OF THE FREE MOVEMENT OF CAPITAL
Summary
It is only the free movement of capital, as stipulated by TFEU, which also has an external dimension. Тhe unilateral character of the measure from Art. 63 TFEU may explain why the scope of this external dimension is limited. Freedom of establishment, which is very close to the free movement of capital but which does not go beyond the Internal Market, via the ECJ’s „principal aspect“ approach has become a valve for diminishing the pressure which would have been created by unilateral, but wide application of the free movement of capital in relations between 2the EU and third countries. This may especially be noticed in the domain of direct investments. The authors also analyse the indirect impact of fundamental freedoms in relations with third states in the following contexts: (1) freedom to provide services, which concerns the providers as well as the recipients, the latter not being confined to the nationals of the EU Member States; (2) dilemma whether a EU Member State is entitled to conclude an agreement with a third country which is granting the nationals of that Member State certain rights that are not given to the nationals of other Member States; (3) protection of income sourced in third countries; (4) denial of the MFN treatment to a third contry’s national/resident, who would invoke the non-discrimination clause from a tax treaty between two EU Member States.
Key words: Free movement of capital. – „Principal aspect“ approach. – Freedom of establishment. – Direct investments. – Nondiscrimination.
Full Professor University of Belgrade Faculty of Law Dr. Marko Trajković Assistant Professor University of Niš Faculty of Law CAN A VIRTUAL CHARACTER BE A SUBJECT OF LAW?
Summary
Law cannot exist without subjects. They have always existed as conditio sine qua non of law. Firstly, natural persons became subjects of law, and thereafter also their creations – legal (moral) persons. Information and technological developments could not have bypassed contemporary law. As a result, more often and considerably more is being thought about a new, third type of the subjects of law – virtual characters (avatars). This is being done for the purpose of advancing and organising business communication, which is increasingly being translated from the traditional actual world into the new virtual computer world. This change requires the re-examination of traditional beliefs and theories concerned with what a subject of law is at all. It also requires at this moment to at least make an attempt to determine the legal nature of virtual characters. When it has to do with the explanation of their essence, it seems that at this moment fiction theory is more acceptible than reality theory, which may sometime prevail, as it had happened with the subjectivity of the legal person at some point in time in the 17th century. In additon to purely practical reasons, the appearance of virtual characters displays in a completely different light some of the incessant questions to which a valid answer has not yet been given, nor, it seems, will ever be: What is reality? What is the world at all? What is man (especially a telematic virtual man)? What is the place of man in reality and in the world? For how long can the world and man, as its constituent part, go on developing? Does virtual reality free or capture human will? Apparently, the essence is not in the conclusiveness of such answers, but rather in their usefulness.
Key words: Subject of law. – Natural person. – Legal person. – Virtual character. – Avatar.
Professor University of Novi Sad Faculty of Law COMPULSORY PURCHASE (EXPROPRIATION) – BETWEEN PRIVATE AND PUBLIC
Summary
Compulsory purchase (eminent domain, expropriation) is a form of deprivation or restriction of ownership of real estate that occurs to the public interest. The need for expropriation occurs when the transfer of property can not come to agreement with the owner. Expropriation occurs in almost all countries under different names, but it is characteristic for all legal systems that there is always the same or similar purpose for which the property is taken. It is the construction of some objects that are of public interest. Serbian legal theory has not yet attained proper attention to dual legal nature of this institution, and attitudes of particular authors on that issue are usually strongly marked by academic discipline they belong to. Public (administrative) or private (civil) law legal nature of expropriation can be determined only on the basis of prevailing features, rather than according tо their exclusiveness. This paper tends to show that, according to the regulations of the Republic of Serbia, similarly as in other legal systems analysed in the article, expropriation is a mixed legal institution with much more public than private legal elements.
Key words: Public interest.– Property.– Property deprivation.– Legal nature of expropriation.
Associate Professor University of Belgrade Faculty of Law Dr. Marko Đurđević Assistant Professor University of Belgrade Faculty of Law RULES ON GIFT IN SERBIAN MEDIEVAL LAW
Summary
The Roman-Byzantine law was one of the pillars of the medieval Serbian state. Together with the Christian faith, it served as the basis for the first Serbian legal collection, known as Zakonopravilo – Nomocanon. Compiled by the Serbian Archbishop Sava (later known as St. Sava), this collection of legislative texts left an indelible mark on Serbian legal culture for a quite long period of time, more precisely from the Middle Ages until the occurrence of the first written laws in the first half of the nineteenth century. It included certain provisions related to gift or donation. These provisions were based on the Roman-Byzantine legal concepts and ideas. The most important principles of the Roman-Byzantine gift, as established in Prohiron and received in Zakonopravilo, were: voluntariness of the gratuitous disposition (animus donandi), its irrevocability in principle, and revocability as an exception. The main features of the Roman-Byzantine gift were only slightly altered in their Serbian version. These minor alterations occurred by reason of specificities of the setting in which the received rules on the gratuitous disposition applied. The authors point particularly to a specific type of donation, that is a gift-in-reciprocation, which includes negligible consideration of the recipient of the gift. This counter-performance of the donee must be insignificant in comparison to the value of the donor’s gratuitous disposition. The rules of Serbian medieval law on gift, as received from the Roman-Byzantine sources, shared the fate of Zakonopravilo. They were mainly accepted in the latter medieval Serbian legislations, and stayed in force for several centuries, until the enactment of the first Serbian civil codification in 1844.
Key words: Roman-Byzantine Law. – Serbian Medieval Law. – Gift. – Saint Sava’s Nomocanon. – Prohiron. – Tsar Dušan’s Legislation. – Gift-in-reciprocation.
Assistant Professor University of Belgrade Faculty of Law A NEW INSIGHT ON THE CODE OF HAMMURABI (II)
Summary
This paper offers the first complete translation of the Code of Hammurabi into Serbian, including about thirty reconstructed damaged norms of the original stella text (66–99), mainly following Martha Roth’s edition. It also contains the author’s comprehensive comments to the provisions of the Code, and his reflections on the most important inovations introduced by this Babylonian legal scripture. The author tries to perceive and analyze the complex nature of the Code from a new angle. The author calls attention to the unique blending of customs and law in the Code, as two substantially different sources of law. He stresses out the specific nature of the Code, which lies somewhere between the code in the full meaning of the word and a collection of judgements, as well as the substantial changes that were brought by the Code in the field of „social policy“ of the time. All of this may clearly show how much the contemporary legal culture owes to the Summerian-Acadian legal tradition, represented by this Code at its best and to the fullest extent possible.
Key words: Code of Hammurabi (Serbian translation). – Sources of law. – Law and Custom. – Babylon. – Summerian-Acadian legal tradition.
Assistant Professor University of Belgrade Faculty of Law ON SUBJECTIVE ELEMENTS OF UNLAWFULLNESS IN CRIMINAL LAW
Summary
The article deals with the problem of so-called unknowing justification and the question whether an actor must have knowledge of the presence of justificatory circumstances, so his crime could be justified. Suppose that A shoots at B with intent to murder him, and turns out later that, unknown to A, B was about to shoot him dead. Although A killed a man, he unknowingly repelled an attack on his life. According to objective theory, lawful acts should be encouraged and justified regardless of the actor’s mental state. On the other hand, subjectivists suggest two possible answers. The weaker version of subjective theory requires merely the awareness of justificatory position, while the stronger variant denies justification if the actor wasn’t motivated by justifying circumstances. The author gives arguments on these viewpoints, supporting the idea that justification requires only knowledge of the justificatory circumstances. The consequence is that the unknowing actor isn’t liable for the completed offence, but may be liable for impossible attempt.
Key words: Subjective elements of unlawfulness. – The knowledge of justificatory circumstances. – Bad motivation. – Impossible attempt.
Assistant Professor University of Novi Sad Faculty of Law INFLUENCE OF INTERNATIONAL LEGAL STANDARDS ON FORMATION OF PRELIMINARY STADIUM OF CRIMINAL PROCEEDINGS
Summary
A thorough re-organization of the preliminary stage of criminal proceedings is announced as one of the most important changes in the future reform of Serbian system of criminal procedure. On this point, the essential novelty would consist of abolition of the investigating judges, and giving more investigative powers to the public prosecutors. This paper deals with international standards and requirements, directly or indirectly related to preliminary criminal proceedings. The author pays special attention to standards and requirements of the European Convention on Human Rights, the case law of the European Court of Human Rights and the Acquis Communautaire, particularly when it comes to legal status of the victim and the accused in the pre-trial and investigation stages. The author juxtaposes two models of criminal justice systems – the liberal model and the human rights model.
Key words: Reform of Criminal Procedure. – Investigation. – Accused. – Victim. – International Standards.
Assistant Professor University of Belgrade Faculty of Law IUS COMMUNE EUROPAEUM – A NEW NAME FOR THE OLD SOLUTION
Summary
The author emphasizes contribution of the Roman law to the development of the medieval ius commune, and suggests that the liaison between the two may serve as a model for unification of the European Private Law (ius commune Europaeum). The efforts to harmonize the European Private Law in the past two decades were marked by the centralist approach, and the means of the attempted harmonization were EU directives, binding international agreements, and decisions of the European Court of Justice and the European Court of Human Rights. On the contrary, the medieval ius commune successfully acted as a general legal framework for the entire Europe. However, the medieval ius commune was not a legal system in the strictest sense, but a common concept that included exchange of the ideas, experiences, arguments and legal institutes, based on the Roman Law as a shared source. In this respect, the author points out the importance of Justinian’s codification and its interpretations, especially by the glossators and commentators. Furthermore, the author analyzes the role of the law school of Bologna through the prism of the so-called Italian way of thinking (mos docendi italicus), embodied primarily in the system interpretation of original and glossed texts called „brocard“. The school of Bologna was characterized by free movement of professors and students from all over Europe, which encouraged the wide-spread influence of the Roman law.
Key words: EU law. – Ius commune. – Roman law. – Glossators. – Bologna.
Assistant Professor Faculty for Legal and Business Studies, Novi Sad A RECENT DEBATE ON HUMAN DIGNITY AND THE PROBLEM OF TRAGIC AND ABSURD IN LAW
Summary
The author of the leading interpretation of the guarantee of human dignity in German constitution of the second half of the twentieth century was German lawyer Gunter Durig. At the core of his analysis of the concept of dignity, placed on the top of the Bonn constitution, was the equalization of dignity with the essence of human rights alongside with his statement that dignity understood as their „untouchable“ (unantastbar) substance should be ultimately and infinitely protected. The new millennium brought a more radical turn from this influential legal understanding of human dignity. Although not isolated in his venture of critique of Durigs analysis, Matthias Herdegens new interpretation of the first article was even more distinct for its clear abandon of the basic ideas of his predecessor as well as for the fact that it actually replaced the Durigs paradigmatic commentary. The author of this article analyses Herdegens interpretation of the concept of human dignity and compares it to the preceding but also rival Durigs understanding. The comparison of Durigs and Herdegens standpoint is further illuminated and put in a wider context by taking into consideration two cases largely debated in Germany whose interpretation showed to be dependant on the understanding of the ideas of „untouchableness“ and human dignity (Luftsichercheitsgesetz-case and Rettungsfolter-case). As result of examination of the complex nature of these cases and the legalphilosophical and ethical presuppositions and consequences of the two rival theories of „untouchableness“ and human dignity, it is concluded that notwithstanding their different success in responding to the particular problems, this alternative necessarily leaves law condemned to some degree of tragedy and absurdity.
Key words: Human dignity. – German constitution. – Matth
Dušan Rakitić, LLM (Harvard, University of Belgrade) Assistant Lecturer University of Belgrade Faculty of Law ANALYSIS OF PRINCIPAL ELEMENTS OF THE GENERAL RESTITUTION STATUTE OF SERBIA FROM THE PERSPECTIVE OF THE EUROPEAN COURT OF HUMAN RIGHTS CASE-LAW
Summary
The European Court of Human Rights (ECtHR) has established a practice whereby states are afforded a wide margin of appreciation in the area of restitution, since this process concerns property rights and transpires along wide-ranging socio-economic changes. A general statute on restitution, providing for primacy of restitution in kind over compensation, was adopted in Serbia in September 2011. Given the substantial number of statutes providing for partial in-kind restitution that were enacted in the past two decades, as well as given the fact that at least three laws that have remained in force have expressly promised enactment of such a law, the ECtHR would have deemed citizens of Serbia as already possessing a legitimate expectation of in-kind restitution, which made the adopted solution inevitable. Another issue is the interplay between the presently valid law on restitution of church and religious property, of 2006, and the new statute, for the two differ in terms of the mechanism for determining amount of compensation owed to respective beneficiaries in cases when restitution in kind is not possible. Analysis of ECtHR case-law suggests that a state may differentiate between various categories of beneficiaries in respect of terms of restitution provided that the aim of differentiation is legitimate and that the differentiation constitutes adequate means for achievement of such aim. A question arose whether the statute providing for in-kind restitution in all cases in which it is possible, and affording compensation in an amount smaller than full market value in all cases in which in-kind restitution is objectively impossible, will survive scrutiny of the ECtHR. Аnalysis of several exemplary judgments hints at probability that such a provision will be upheld, since the persons condemned to below-market value compensation would succeed neither in proving that they were afforded a legitimate expectation to receive full marketvalue of their properties by such a legislative act, nor that they possessed appropriate right protected by the Convention at the time of enactment of the subject statute.
Key words: Restitution. – In-kind restitution. – Denationalization. – Margin of appreciation. – European Court of Human Rights.
Miloš Stanković, LLM Assistant Lecturer University of Belgrade Faculty of Law PARENTAL RIGHT AND DUTY TO CONTROL UPBRINGING AND EDUCATION OF THEIR CHILDREN
Summary
The parental right and duty to control upbringing and education of their children is mandatory in its nature. However, the role of the state bodies in implementing these rights should be limited, due to the specificities of parent-child relationship, and the prevailing free will doctrine of the contemporary Family Law. The state should act preventively, more then reactively, which would also be in line with the Convention on the Rights of the Child. Despite the fact that parents in Serbia have statutory duty to guide their children to „the adoption of emotional, ethical and national values and identity of their own family and the society“, failure of a parent to fulfill this duty is never sanctioned by depriving them of their parental rights. The author claims that the Serbian Family Code provisions on parental right (and duty) to control upbringing and education of their children are in collision with some other rules of national law, such as those relating to the prohibition of domestic violence, adoption, marriage and legal capacity (capacite juridique), which makes the enforcement of the abovementioned parental right (and duty) more difficult. The author suggests that the Serbian legislator should look up to certain comparative experiences in reconciling the conflicting interests in this field.
Key words: Parental right. – Preventive role of the State. – Internal collision of the norms.
Katarina Dolović, LLM Teaching Assistant University of Belgrade Faculty of Law NON-EXISTING CONTRACTS
Summary
Non-existing contracts are discussed in the field of contract conclusion. The reason for this is simple – they are not contracts, because they lack at least one of the elements necessary for the contract to be concluded: meeting of minds, capacity to contract, subject, cause or possibly the form. They can be said to represent a de facto situation in law. The reasons for their being excluded from the group of legally invalid contracts are of practical, rather than theoretical nature. On the other hand, the non-existing contracts also need to be viewed separately from the situation when there is no contract, and when there is no doubt that the parties have not reached an agreement. In both cases the reasons can be found on the domain of consequences.
Key words: Conclusion of contract. – Meeting of minds. – Capacity to contract. – Subject. – Cause. – Form. – Legally invalid contracts.
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