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Implementation of the European Arrest Warrant 执行欧洲逮捕令
Pub Date : 2022-01-01 DOI: 10.5937/spz66-34190
Dragana Čvorović, Hrvoje Filipović
The paper analyses the European Arrest Warrant which is based on the principle of mutual recognition and the principle of effective cooperation, which represent the foundations of judicial cooperation in criminal legal matters. The authors analyse whether there are obstacles to mutual recognition of decisions and how effective cooperation is when it comes to the European Arrest Warrant. The paper includes the conducted research regarding appeals against the European Arrest Warrant addressed to the Supreme Court and the High Criminal Court of the Republic of Croatia. The aim is to use a random sample to determine which criminal offenses are most often the subject of the European Arrest Warrant, as well as the number of rejections or acceptance of appeals against the European Arrest Warrant. In particular, by using the case study method, cases were analysed in which the appeal was accepted, i.e., to determine the shortcomings of the first instance courts in making decisions. According to the available data, an analysis was performed on the number of issued and executed warrants for individual countries from 2014 to 2018, which shows the functionality of the implementation.
本文分析了以相互承认原则和有效合作原则为基础的欧洲逮捕令制度,它们代表了刑事司法合作的基础。作者分析了相互承认决定是否存在障碍,以及在欧洲逮捕令方面合作的有效性。该文件包括就向克罗地亚共和国最高法院和高级刑事法院提出的针对欧洲逮捕令的上诉所进行的研究。其目的是使用随机抽样来确定哪些刑事罪行最常是欧洲逮捕令的对象,以及拒绝或接受针对欧洲逮捕令的上诉的数量。特别是,通过使用个案研究方法,分析了上诉被接受的案件,即确定初审法院在作出决定方面的缺点。根据现有数据,对2014年至2018年各国签发和执行的权证数量进行了分析,显示了执行的功能。
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引用次数: 0
SLAPP: Abuse of the right to judicial protection with the aim of restricting freedom of expression SLAPP:滥用司法保护权以限制言论自由
Pub Date : 2022-01-01 DOI: 10.5937/spz66-35644
Ana Zdravković
SLAPP (Strategic Lawsuits Against Public Participation) is a phenomenon that has been present around the world for decades, threatening various human rights and freedoms and undermining the very meaning and the purpose of judicial protection of rights. Considering that conducted research indicated a high probability of their presence in the Republic of Serbia, the aim of the paper is to present and analyze the notion of SLAPP, as well as to deliberate over some potential solutions that can be implemented in order to prevent use of this legal tool. After presenting numerous SLAPP examples from comparative case-law and analyzing the SLAPP concept, the paper turns to the rights that are most endangered by the submission of these lawsuits and provides an overview of relevant jurisprudence of the European Court of Human Rights. Results of the research show not only that ratified international instruments require prevention of abuses embodied in SLAPP suits, but also that the real purpose of these lawsuits can be achieved by using other methods, that will be more complicated to suppress. Finally, given that the initiative to combat this legal anomaly has already been launched within the European Union, the paper concludes that the Republic of Serbia should use the momentum and start tackling this issue sooner rather than later.
SLAPP (Strategic lawsuit Against Public Participation,反对公众参与的战略诉讼)是几十年来在世界范围内存在的一种现象,它威胁着各种人权和自由,破坏了司法保护权利的意义和目的。考虑到所进行的研究表明它们在塞尔维亚共和国存在的可能性很大,本文的目的是提出和分析SLAPP的概念,并审议可以实施的一些潜在解决办法,以防止使用这一法律工具。本文从比较判例法中列举了大量SLAPP案例,并对SLAPP概念进行了分析,然后转向因这些诉讼的提交而最受威胁的权利,并概述了欧洲人权法院的相关判例。研究结果表明,已批准的国际文书不仅要求防止SLAPP诉讼所体现的滥用,而且这些诉讼的真正目的可以通过使用其他方法来实现,而这些方法将更加复杂。最后,鉴于已经在欧洲联盟内发起了打击这一法律异常现象的倡议,该文件的结论是,塞尔维亚共和国应利用这一势头,尽早开始处理这一问题。
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引用次数: 2
The Digital Markets acts: Between market regulation, competition rules and unfair trade practices rules 数字市场行为:在市场监管、竞争规则和不公平贸易行为规则之间
Pub Date : 2022-01-01 DOI: 10.5937/spz66-34993
Blažo Ondrej
In 2020 the European Commission presented its legislative package aimed to deal with new challenges for the internal market stemming from development on digital markets and alleged abuses and anticompetitive practices therein, including the Digital Markets Act (DMA). The aim of this paper is not to evaluate content of the DMA itself, but to evaluate the position of the DMA in the context of other market sector-oriented regulations , rules on unfair trade practices, competition rules as well as fitness of legal basis and observance of rule of law safeguards. As the DMA proposal departed from competition law legal basis enshrined in Art. 101 et seq. of the Treaty on the Functioning of the European Union, it paved the way for the possibility to impose sanction under both regimes. This possibility of double sanctions and necessity for check of proportionality in all actions of the Commission as well as in imposition of fines constitute one of the most relevant shortcomings from the "constitutional" point of view of position of the DMA in the EU legal framework. As it is argued in this paper, without more synchronization with competition regulatory regimes, the DMA proposal contains elements that can, at the end of the day, diminish its legal effectiveness via subsequent judicial battles.
2020年,欧盟委员会提出了一揽子立法方案,旨在应对数字市场发展以及其中涉嫌滥用和反竞争行为给内部市场带来的新挑战,其中包括《数字市场法案》(DMA)。本文的目的不是评估DMA本身的内容,而是评估DMA在其他面向市场部门的法规、不公平贸易行为规则、竞争规则以及法律基础的适用性和遵守法治保障措施的背景下的地位。由于DMA提案偏离了第101条及其后续条款所规定的竞争法法律基础。根据《欧洲联盟运作条约》,它为在这两种制度下实施制裁的可能性铺平了道路。这种双重制裁的可能性,以及在委员会的所有行动中检查比例的必要性,以及在罚款的实施中,构成了DMA在欧盟法律框架中立场的“宪法”观点中最相关的缺点之一。正如本文所论述的那样,如果没有与竞争监管制度更多的同步,DMA提案所包含的元素最终会通过随后的司法斗争削弱其法律效力。
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引用次数: 1
Covid-19 disease: Injury at work or an occupational disease? Covid-19:工伤还是职业病?
Pub Date : 2022-01-01 DOI: 10.5937/spz66-36145
M. Petrović
The COVID-19 disease pandemic has opened a number of legal issues, one of which is the need to define COVID-19 as a possible consequence of performing work. In that sense, the question arose whether it could be qualified as an injury at work or as an occupational disease. When it comes to the comparative law, this need to put COVID-19 in a professional context has already been answered in various ways, and the wandering in that process (due to the complexity of the issue) is probably best illustrated by the fact that in some systems it takes on the nature of a legal chameleon that is adjusting itself to a sector of work or to a period of exposure to the virus. In the Republic of Serbia, on the other hand, the controversy on this issue is still ongoing - which is also the reason why a review of comparative legal experiences is necessary. And while the qualification of COVID-19 as an injury at work is problematic due to the fact that it is hard to define an event that could be characterized as an accident at work that produced such a consequence, the qualification of COVID-19 as an occupational disease encounters other problems. Most of those problems in the Republic of Serbia, on the other hand, are systemic in nature and, therefore, require fixes of the existing legal gaps and systematic changes of the existing regulations by the Serbian lawmaker. Additionally, when it comes to COVID-19, the one question that arises is the question of causality - having in mind that in this day and age we are all in contact with the SARS-CoV-2 virus to a greater or to a lesser extent. In that sense, occupational medicine will be entrusted with the difficult task of determining the occupational origin of this disease - since it does not seem fair to recognize the status of an occupational disease to an employee if there are reasonable suspicions on the matter whether the infection took place during his performance of his work tasks.
COVID-19疾病大流行引发了许多法律问题,其中之一是需要将COVID-19定义为执行工作的可能后果。从这个意义上说,产生了一个问题,即它是否可以限定为工伤或职业病。就比较法而言,将COVID-19置于专业背景下的需求已经以各种方式得到了回应,在这一过程中(由于问题的复杂性)的徘徊可能最好地说明了这样一个事实,即在某些系统中,它具有法律变色龙的性质,正在调整自己以适应工作部门或病毒暴露期。另一方面,在塞尔维亚共和国,关于这个问题的争论仍在继续- -这也是为什么有必要审查比较法律经验的原因。虽然将COVID-19定性为工伤是有问题的,因为很难定义一个可以被定性为产生这种后果的工伤事故的事件,但将COVID-19定性为职业病还会遇到其他问题。另一方面,塞尔维亚共和国的这些问题大多是系统性质的,因此需要塞尔维亚立法者修补现有的法律漏洞和系统地改变现有的条例。此外,当涉及到COVID-19时,出现的一个问题是因果关系问题——要记住,在这个时代,我们都或多或少地接触过SARS-CoV-2病毒。从这个意义上说,职业医学将承担确定这种疾病的职业起源这一艰巨任务,因为如果对雇员是否在执行工作任务期间感染有合理怀疑,那么承认其职业病状况似乎是不公平的。
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引用次数: 0
Motor Insurers' Bureau: Guarantee fund in the United Kingdom 汽车保险局:英国的担保基金
Pub Date : 2022-01-01 DOI: 10.5937/spz66-34574
M. Radovanović
Redress, in cases when the damage has been caused by uninsured or unidentified vehicle, in the United Kingdom is organized on specific manner. Task of providing compensation in such cases is entrusted to the organization Motor Insurers' Bureau (MIB). This task has been entrusted by agreements concluded between the state and MIB. Regardless of this specificity, MIB is a guarantee fund, an institute which exists in other European states. British courts expressed their stance on legal nature of MIB. Case-law of the United Kingdom earlier had considered that MIB was an institute of private law. Due to the influence of the Court of Justice of the European Union, a different stance has prevailed. Courts of Great Britain accepted arguments of the European judicial institution. Now they consider that MIB is a subject of the public law - emanation of the state. This standpoint has been implemented in the United Kingdom's law and will not be abandoned after the Brexit. The British example shows how the dilemma on the legal nature of a guarantee fund can be resolved in the country that is not a member of the European Union.
如果损害是由未投保或身份不明的车辆造成的,在联合王国,赔偿是按特定方式组织的。在这种情况下提供赔偿的任务委托给汽车保险局(MIB)组织。这项任务是由国家和MIB之间签订的协议委托的。抛开这种特殊性不谈,MIB是一个担保基金,一个存在于其他欧洲国家的机构。英国法院对MIB的法律性质表明了立场。联合王国的判例法较早时曾认为MIB是一个私法研究所。由于欧洲联盟法院的影响,一种不同的立场占了上风。英国法院接受了欧洲司法机构的论点。现在他们认为MIB是国家公法实施的一个主体。这一立场已经在英国法律中得到贯彻,不会在脱欧后被抛弃。英国的例子表明,在一个非欧盟成员国的国家,如何解决关于担保基金法律性质的困境。
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引用次数: 0
Basic aspects of drag along and tag along rights 尾随权和尾随权的基本方面
Pub Date : 2022-01-01 DOI: 10.5937/spz66-35036
Amina Kajević
The paper analyses the rights of members of closed companies originating from common law - drag along and tag along rights. Since they represent effective instrument of prevention of second agency problem of corporate governance, relating to the conflict of interest between majority and minority shareholder, as well as for resolving conflicts between members that may occur in case of the sale of a company's share, these rights were introduced in civil law countries as well. In recent years, drag along and tag along rights have become more significant in domestic practice, since they are often contracted between members of domestic companies. For this reason, it is important to understand the purpose of these rights and the interests that are protected by them. Therefore, the aim of this paper is to explain the concept and purpose of drag along and tag along rights.
本文分析了源自普通法的封闭式公司成员的权利——跟风权和跟风权。由于这些权利是防止公司治理中涉及大股东与小股东利益冲突的第二代理问题的有效工具,也是解决公司出售股份时可能发生的成员之间冲突的有效工具,因此大陆法系国家也引入了这些权利。近年来,由于这些权利通常是在国内公司的成员之间签订的,因此在国内实践中,“拖着走”和“跟着走”权利变得更加重要。因此,了解这些权利的目的和受其保护的利益是很重要的。因此,本文的目的是解释连带权和连带权的概念和目的。
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引用次数: 0
The evolution of the idea of national human rights institutions: From the first drawing to the Geneva guidelines (1946-1978) 国家人权机构理念的演变:从第一份草案到日内瓦准则(1946-1978)
Pub Date : 2022-01-01 DOI: 10.5937/spz66-36226
Luka Glušac
The concept of national human rights institutions (NHRIs) as known today originated under the auspices of the United Nations. Although national human rights institutions in the contemporary context have been the subject of a growing body of literature, the evolutionary path of the very idea of their creation has remained largely unexplored. The aim of this paper is to fill this literature gap by analysing key United Nations documents from the end of World War II to the adoption of the 1978 Geneva Guidelines. The paper reveals how the very concept of national human rights institutions had evolved over time, how it had been understood, which functions had been tied to these institutions, and which organizational forms had been taken as models. The paper explores the changes in the attitudes of UN Member States in relation to a given issue and provides a better understanding of the context in which this idea developed. In this regard, the paper also offers new insights into how the process of negotiating the core UN human rights conventions has influenced the evolution of the idea of creating national human rights institutions, a factor that has been rarely considered.
今天所知的国家人权机构的概念起源于联合国的主持下。虽然当代国家人权机构已成为越来越多文献的主题,但其创立理念的演变过程在很大程度上仍未得到探索。本文的目的是通过分析从第二次世界大战结束到1978年日内瓦准则通过的主要联合国文件来填补这一文献空白。该文件揭示了国家人权机构的概念是如何随着时间的推移而演变的,它是如何被理解的,哪些职能与这些机构联系在一起,哪些组织形式被视为模式。本文探讨了联合国会员国在某一特定问题上态度的变化,并提供了对这一想法形成的背景的更好理解。在这方面,本文还对联合国核心人权公约的谈判过程如何影响建立国家人权机构的想法的演变提供了新的见解,这是一个很少被考虑的因素。
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引用次数: 0
Constitutional position of the President of the Republic of Srpska in the light of comparative law 塞族共和国总统根据比较法的宪法立场
Pub Date : 2021-08-06 DOI: 10.5937/spz65-31015
Darko Golić
Although the Constitution of the Republic of Srpska was created in extremely complex circumstances, exposed to multiple, often violent changes, the underlined constitutional concept of the organization of power and the position of the President of the Republic remained unchanged. Thanks to that fact, the Constitution of the Republic of Srpska confirmed its vitality, and enabled the stable functioning of the state government. Although the semi-presidential system (of power) implies certain elements common to all variants, there are numerous specifics of its different manifestations. In this regard, one can observe the position of the President of the Republic of Srpska, who, in addition to immediate legitimacy, has vast and independent powers, which make him the true head of the executive branch. In light of these characteristics of the position of the President of the Republic, one can speak of a stronger semi-presidential form of government. Having in mind determinism of existing solutions, the similarity with comparative models, and bearing in mind certain specifics, the author is of the opinion that established solution should not be changed.
尽管《塞族共和国宪法》是在极其复杂的情况下制定的,面临着多次往往是暴力的变化,但强调的权力组织和共和国总统职位的宪法概念仍然没有改变。由于这一事实,《塞族共和国宪法》确认了它的生命力,并使国家政府得以稳定运作。尽管(权力的)半总统制隐含着所有变体共同的某些元素,但其不同表现形式有许多细节。在这方面,可以观察到塞族共和国总统的立场,他除了具有直接合法性外,还拥有巨大和独立的权力,这使他成为行政部门的真正负责人。鉴于共和国总统职位的这些特点,可以说是一种更强有力的半总统制政府。考虑到现有解决方案的决定论,与比较模型的相似性,并考虑到某些细节,作者认为不应改变既定的解决方案。
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引用次数: 0
(Un)justified application of labour law rules of dismissal protection on self-employed persons 对自营职业者适用劳动法解雇保护规则的正当性
Pub Date : 2021-08-06 DOI: 10.5937/spz65-31865
Katarina Vidanović
In this paper the rights of employees and self-employed persons and the distinction between them are analysed, with the special focus on dismissal protection. Using the comparative and normative method, the author analyses these legal questions in legal systems in Spain, Austria, the United Kingdom of Great Britain and Nothern Ireland, and the United States of America, including the existence of the mid-category of semi-dependent self-employed persons in the first three abovementioned jurisdictions and practical consequences of their existence. Dismissal protection of self-employed persons represents a legal question that is not sufficiently researched in comparison to the dismissal protection of employees. The hypothesis of the author in this paper has been based on the opinion that self-employed persons who work for others are justifiably deprived of dismissal protection, unlike semi-dependent self-employed persons who are unjustifiably deprived of it, especially because the second mentioned category does not experience entrepreneurial risks and chances. Also, the question of dismissal protection of self-employed persons is very relevant when we consider the amount of misuse of this occurrence and cost savings which employers often have when employing them. In the end, de lege ferenda solutions and their implications for other legal systems are proposed by the author of the paper.
本文分析了雇员和个体经营者的权利及其区别,重点分析了解雇保护。作者采用比较和规范的方法,分析了西班牙、奥地利、大不列颠及北爱尔兰联合王国和美利坚合众国的法律制度中的这些法律问题,包括上述前三个司法管辖区中半独立的自营职业者的存在及其存在的实际后果。与雇员的解雇保护相比,个体经营者的解雇保护是一个研究不够充分的法律问题。本文作者的假设是基于这样一种观点,即为他人工作的个体经营者被合理地剥夺了解雇保护,而半依赖的个体经营者被不合理地剥夺了解雇保护,特别是因为第二种类型的个体经营者没有经历创业风险和机会。此外,当我们考虑到这种情况的滥用数量和雇主在雇用他们时经常节省的成本时,对自雇人士的解雇保护问题是非常相关的。最后,本文的作者提出了法律上的解决方案及其对其他法律制度的影响。
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引用次数: 0
Erratum: Kontrola stranih direktnih investicija u pravu EU u uslovima krize izazvane pandemijom (2021, Vol. 65, no. 3, pp. 361-374) 错误:疫情危机条件下欧盟法律对外国直接投资的控制(2021,第65卷,第3期,第361-374页)
Pub Date : 2021-01-01 DOI: 10.5937/spz2104715u
U. Uredništvo
This erratum concerns a correction in the article KONTROLA STRANIH DIREKTNIH INVESTICIJA U PRAVU EU U USLOVIMA KRIZE IZAZVANE PANDEMIJOM published in Strani pravni život, Vol 65, no. 3, 2021, pp. 361-374 (doi: 10.5937/spz65-33936). On page 361 in the course of editorial process a footnote was omitted. The missing footnote should state the following: ** Rad predstavlja rezultat projekta Pravnog fakulteta Univerziteta u Beogradu "Epidemija. Pravo. Društvo" za 2021. godinu. The corrected version of the article was published on the website of the journal: http://www.stranipravnizivot.rs/index.php/SPZ/article/view/837/802. The error lies solely on the editorial board, and the author bears no responsibility. We would like to apologise for any inconvenience caused.
该勘误表涉及对发表在Strani pravniživot,第65卷,2021年第3期,第361-374页(doi:10.5937/spz65-33936)的文章KONTROLA STRANIH DIREKTNIH INVESTICIJA U PRAVU EU U USLOVIMA KRIZE IZAZVANE PANDEMIJOM的更正。在编辑过程中,第361页省略了脚注。缺失的脚注应说明以下内容:**Rad predstavlja rezultat projekta Pravnog fakulteta Univerziteta u Beogradu“Epidemija.Pravo.Društvo”za 2021。godinu。这篇文章的更正版本发表在该杂志的网站上:http://www.stranipravnizivot.rs/index.php/SPZ/article/view/837/802.错误完全在于编辑委员会,作者不承担任何责任。对于由此给您带来的不便,我们深表歉意。
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引用次数: 0
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