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Errors of public authorities in performing the public administration duties: Evolution of approaches towards human rights in the court practice of the Republic of Lithuania 公共当局在履行公共行政职责方面的错误:立陶宛共和国法院实践中对待人权的方法的演变
Pub Date : 2021-01-01 DOI: 10.5937/spz65-34748
Sofia Khatsernova
The article points to the problem of a lack of adequate mechanism for correcting errors of state institutions in their performance of public administration functions. It analyses the legal regulation and case law on the above issue. The analysis of court cases identified in the paper shows that for a long time there was a tendency to place on the citizens the burden of correcting the mistakes made by state institutions. In this way, property rights on legally acquired property were restricted or invalidated. This problem was in the Lithuanian context broadly discussed by the international courts. The aim of the article is to present the scale of the problem and the evolution of legal regulation and case law aimed at remedying it.
文章指出了国家机构在履行公共行政职能时缺乏适当的纠正机制的问题。对上述问题的法律规定和判例法进行了分析。本文对法院案例的分析表明,长期以来,有一种倾向,即把纠正国家机构所犯错误的责任放在公民身上。通过这种方式,合法获得的财产的产权受到限制或无效。国际法院在立陶宛的情况下广泛讨论了这个问题。本文的目的是展示问题的规模以及旨在纠正这一问题的法律法规和判例法的演变。
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引用次数: 0
Intellectual property rights and digital transformation in Estonia: Aspects related to copyright and patent protection 爱沙尼亚的知识产权和数字化转型:与版权和专利保护有关的方面
Pub Date : 2021-01-01 DOI: 10.5937/spz65-34681
Uros Cemalovic
With almost all public services delivered online, functioning system of e-residency and established 'data embassies,' Estonia is also home to blooming creative community and numerous companies ranging from small start-ups to tech giants. Apart from being the result of a clear and long-lasting political orientation, this success is strongly correlated with Estonian legislation and, more narrowly, its regulatory framework on both information/ digital society and protection of intellectual property rights (IPR). After examining the most relevant features of Estonia's legislation related to digital economy and society (Chapter 2), this paper analyses the country's regulatory framework on copyright (Chapter 3) and patents (Chapter 4) in the light of digital transformation. The author argues that there is a direct correlation between, on the one hand, regulatory framework dedicated to IPR protection on both EU and national level and, on the other, development of digital technologies. The study of Estonian legislation and practice in the field of copyright and patent protection has shown that, in numerous aspects, the country is largely dependent on the good functioning of wider EU legal and institutional framework, while, in the near future, the technological advance would require more supranational regulatory mechanisms.
爱沙尼亚几乎所有的公共服务都在网上提供,电子居住系统运作良好,还建立了“数据大使馆”,这里也是蓬勃发展的创意社区和众多公司的所在地,从小型初创企业到科技巨头。除了明确而持久的政治取向,这一成功与爱沙尼亚的立法密切相关,更狭义地说,与爱沙尼亚在资讯/数位社会和知识产权保护方面的监管框架密切相关。在研究了爱沙尼亚与数字经济和社会相关的立法的最相关特征(第2章)之后,本文根据数字转型分析了该国对版权(第3章)和专利(第4章)的监管框架。作者认为,一方面,欧盟和国家层面致力于知识产权保护的监管框架与另一方面,数字技术的发展之间存在直接关联。对爱沙尼亚在版权和专利保护领域的立法和实践的研究表明,在许多方面,该国在很大程度上依赖于更广泛的欧盟法律和制度框架的良好运作,而在不久的将来,技术进步将需要更多的超国家监管机制。
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引用次数: 0
Application of the EU law in Latvian courts 欧盟法律在拉脱维亚法院的适用
Pub Date : 2021-01-01 DOI: 10.5937/spz65-34937
A. Buka, Edmunds Broks
This article outlines the main changes that the system of Latvian courts faced after Latvia's accession to the EU. In the legislative field Latvia has added in its procedural laws general provisions that incorporate EU law into Latvia's legal system, as well as the possibility of national courts to apply preliminary rulings procedure. During Latvia's EU membership, Latvian courts have adapted to their role in the application of the EU law, especially in the area of administrative law. Latvian courts have referred to the Court of Justice of the EU for preliminary rulings in over 100 cases, mostly from administrative courts. This corresponds with general tendencies in other new EU Member States. However, the fact that there are very few requests for preliminary rulings from courts that are not the courts of the last instance in Latvia, suggests that Latvian courts of first instances are somewhat unwilling to make use of the preliminary rulings procedure and do not see the benefits in its use.
本文概述了拉脱维亚加入欧盟后,拉脱维亚法院系统所面临的主要变化。在立法领域,拉脱维亚在其程序法中增加了将欧盟法律纳入拉脱维亚法律制度的一般规定,并增加了国家法院适用初步裁决程序的可能性。在拉脱维亚成为欧盟成员国期间,拉脱维亚法院适应了其在欧盟法律适用方面的作用,特别是在行政法领域。拉脱维亚法院已向欧盟法院提交了100多个案件的初步裁决,其中大多数来自行政法院。这符合其他欧盟新成员国的一般趋势。然而,拉脱维亚非终审法院的法院很少要求作出初步裁决,这一事实表明,拉脱维亚的初审法院多少不愿意利用初步裁决程序,也没有看到使用初步裁决程序的好处。
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引用次数: 0
Administrative procedure Law and e-services in Latvia 拉脱维亚的行政诉讼法与电子服务
Pub Date : 2021-01-01 DOI: 10.5937/spz65-35010
Edvins Danovskis
The Article provides an insight in the scope of regulation of the Latvian Administrative Procedure Law and the use of e-services and other means of electronic communication in administrative procedure. The scope of regulation of the Latvian Administrative Procedure Law is mainly determined by the definition of an administrative act, which, in turn, is derived from the German administrative law. The adoption and application of the Administrative Procedure Law is generally regarded as very successful example of transformation of the legal system. For the past ten years the government has introduced various e-services and other electronic tools designed to facilitate electronization of administrative procedure. The article outlines basic legal regulation of these tools, as well as gives a short insight towards recent impact of the pandemic of COVID-19 on use of electronic communication between the government and private persons.
本文对《拉脱维亚行政诉讼法》的监管范围以及电子服务和其他电子通信手段在行政程序中的使用提供了深入的了解。拉脱维亚《行政诉讼法》的规制范围主要由行政行为的定义来确定,而行政行为的定义又来源于德国的行政法。《行政诉讼法》的通过和适用被普遍认为是我国法律制度转型的一个非常成功的例子。过去十年,政府推出多项电子服务和其他电子工具,以促进行政程序电子化。本文概述了这些工具的基本法律规定,并简要介绍了最近COVID-19大流行对政府与个人之间使用电子通信的影响。
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引用次数: 0
Legal regulation of OTC financial derivatives trading 金融衍生品场外交易的法律规制
Pub Date : 2021-01-01 DOI: 10.5937/spz65-30645
S. Vicic
Author explains legal regulation of OTC financial derivative trading on the leading financial markets (USA and EU) as well as shows uniform regulations developed in international legal environment, and separately explains legal framework of the said question in positive Serbian law. Author elaborates main current legal issues related to financial derivatives transactions on the OTC market to which domestic participants are exposed during the operations in Serbian territory but also in cross-border operations. Finally, the author provides concrete proposals for further improvement of disputable legal issues by amending the regulatory framework in line with comparative legal regulations and regulations developed by the international community. Purpose of this article is to bring the attention of legal experts in Serbia to certain inefficient solutions in currently applicable legal regulations related to financial derivatives on the OTC Market, as well as to serve to legal practice as guidance for practical solving the disputable legal issues in particular transactions which have become frequent also for domestic participants on the capital market.
作者解释了主要金融市场(美国和欧盟)对场外金融衍生品交易的法律监管,并展示了国际法律环境中制定的统一规定,并单独解释了塞尔维亚实在法中该问题的法律框架。作者阐述了国内参与者在塞尔维亚境内以及跨境业务中所面临的与OTC市场上金融衍生品交易相关的主要法律问题。最后,笔者根据比较法法规和国际社会制定的法规,对规制框架进行修改,为进一步完善争议性法律问题提出了具体建议。本文的目的是引起塞尔维亚法律专家对目前适用的与场外市场金融衍生品相关的法律法规中某些低效解决方案的关注,并为法律实践提供指导,以实际解决在特定交易中有争议的法律问题,这些交易对于国内资本市场参与者来说也变得频繁。
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引用次数: 0
Legal features of market risks management in investment companies 投资公司市场风险管理的法律特征
Pub Date : 2021-01-01 DOI: 10.5937/spz65-32237
R. Sovilj, Sanja Stojković-Zlatanović
The issue of market risks management in investment companies is being updated and gaining importance in recent years, due to frequent crises and shocks in the financial markets. The application of the normative and comparative method in work analyzes the exposure of investment companies business to market risks. The paper points out the importance of determining market risks, as well as the types of market risks to which investment companies are exposed, and the importance of introducing new solutions adopted in the European legislation. The application of the proposed solutions based on qualitative and quantitative measures should enable both investment companies surviving on the capital market and providing adequate legal protection to investors. Therefore, the paper emphasizes the need for identifying and early recognition of market risks in investment companies, proposing appropriate measures, assessments and models for managing market risks in the investment companies.
近年来,由于金融市场危机和冲击的频繁发生,投资公司的市场风险管理问题不断得到更新和重视。运用规范比较法在工作中分析了投资公司业务面临的市场风险。本文指出了确定市场风险的重要性,以及投资公司所面临的市场风险类型,以及引入欧洲立法中采用的新解决方案的重要性。采用基于定性和定量措施的拟议解决办法应使投资公司能够在资本市场上生存,并向投资者提供充分的法律保护。因此,本文强调了对投资公司市场风险进行识别和早期识别的必要性,提出了投资公司市场风险管理的相应措施、评估和模型。
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引用次数: 0
Non-territorial minority autonomy in Estonia 爱沙尼亚的非领土少数民族自治
Pub Date : 2021-01-01 DOI: 10.5937/spz65-35048
Vladimir Đurić
Non-territorial minority autonomy/self-governance is one of the models for the protection of national minorities. Non-territorial minority autonomy is guaranteed in Estonia by constitutional provisions and it is defined as one of the minority rights. In this sense, the paper analyzes the legal nature and the scope of such an autonomy in the legal order of Estonia.
非领土的少数民族自治/自治是保护少数民族的模式之一。爱沙尼亚的宪法规定保障非领土的少数民族自治,并将其定义为少数民族权利之一。在这个意义上,本文分析了爱沙尼亚法律秩序中这种自治的法律性质和范围。
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引用次数: 0
Natural resources in international treaties: From the sovereign rights of states to the common concern of humankind 国际条约中的自然资源:从国家主权到人类共同关心
Pub Date : 2021-01-01 DOI: 10.5937/spz65-32847
D. Todić
The paper points out the importance of natural resources and discusses their international legal protection. It analyses the UN deposited international agreements in the field of environment as well as the views of various authors. In specific, relations of the international agreements with the principle of permanent sovereignty of states over natural resources ("principle") and the concept of ,,common concern of humankind" (,,concept") is explored. The aim of the paper is to identify relevant international agreements, determine how they relate to ,,natural resources" and assess the content of norms related to the ,,principle" and ,,concept". The conclusion states that the ,,principle" and the ,,concept" are simultaneously defined in two international agreements (Convention on Biological Diversity and the UN Framework Convention on Climate Change), that the content and meaning of the ,,principle" was upgraded, as well as that there are elements of intertwining and lack of clarity when it comes to characterising relations between the ,,principle" and the ,,concept".
文章指出了自然资源的重要性,并讨论了自然资源的国际法律保护。本文分析了联合国在环境领域所签署的国际协定以及各作者的观点。具体而言,探讨了国际协定与国家对自然资源的永久主权原则(“原则”)和人类共同关心的概念(“概念”)的关系。本文的目的是确定有关的国际协定,确定它们如何与“自然资源”有关,并评估与“原则”和“概念”有关的规范的内容。结论指出,两个国际协议(《生物多样性公约》和《联合国气候变化框架公约》)同时定义了“原则”和“概念”,“原则”的内容和含义得到了升级,“原则”和“概念”之间的关系存在相互交织和不明确的因素。
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引用次数: 2
Criminal liability of legal entities in Latvia: General insight, peculiarities and topicalities 拉脱维亚法律实体的刑事责任:一般见解、特点和专题
Pub Date : 2021-01-01 DOI: 10.5937/spz65-34728
Kristīne Strada-Rozenberga, Jānis Rozenbergs
The path that the Latvian normative regulation in criminal law and the Latvian criminal law doctrine took to arrive at the possibility of turning against legal entities by criminal law measures was neither fast nor simple. The initial position was that regulation like this would be incompatible with the basic principles of Latvian criminal law since, historically, psychological understanding of guilt has been characteristic in the Latvian criminal law, guilt is identified with a person's mental attitude towards the criminal offence, and guilt also is one of the grounds for criminal liability. It was not clear how this understanding of guilt could be compatible with punishing such "legal fiction" as a legal person in the framework of criminal law. Ways, in which Latvia could adjust its legal regulation to various international normative documents that Latvia had acceded to, at the same time leaving the dominant basic institutions of the Latvian criminal law theory unaffected, were sought rather reluctantly. Discussions that lasted for years resulted in the inclusion into the Criminal Law coercive measures, existing outside the system of criminal penalties, applicable to legal persons, likewise, several criteria were defined as the grounds for applying these coercive measures to legal persons, the central of which was a criminal offence, committed by a natural person who was connected to the legal person, in the interests of the legal person or as the result of insufficient control by this legal person. Accordingly, criminal procedural regulation was created, which to a large extent equalled a legal person to an accused natural person in criminal proceedings. Although the criminal law and criminal law regulation, which provides for the possibility to apply criminal law coercive measures to legal persons in the framework of criminal proceedings has existed in Latvia for already 16 years, these criminal law instruments have started taking their place in the practice of applying law only in recent years, simultaneously also revealing deficiencies in the legal regulation, already now providing sufficient material for analysis to be used for improving these legal norms.
拉脱维亚刑法的规范性条例和拉脱维亚刑法理论所采取的途径,以达到通过刑法措施对付法人实体的可能性,既不迅速也不简单。最初的立场是,这样的规定将不符合拉脱维亚刑法的基本原则,因为从历史上看,拉脱维亚刑法的特点是对犯罪的心理理解,犯罪是指一个人对刑事犯罪的心理态度,犯罪也是刑事责任的理由之一。不清楚这种对罪行的理解如何能够与在刑法框架内惩罚作为法人的“法律虚构”相一致。人们极不情愿地寻求办法,使拉脱维亚能够根据拉脱维亚已加入的各种国际规范性文件调整其法律规章,同时不受拉脱维亚刑法理论的主要基本机构的影响。经过多年的讨论,结果在《刑法》中列入了适用于法人的、存在于刑事处罚制度之外的强制措施,同样,确定了若干标准,作为对法人适用这些强制措施的理由,其核心是与法人有联系的自然人所犯的刑事罪行。为了该法人的利益,或者由于该法人控制不足。因此,制定了刑事诉讼规则,在很大程度上将刑事诉讼中的法人等同于被控自然人。虽然规定可能在刑事诉讼框架内对法人适用刑法强制措施的刑法和刑法条例在拉脱维亚已经存在了16年,但这些刑法文书只是在最近几年才开始在适用法律的实践中占据一席之地,同时也暴露出法律条例的不足之处。现在已经提供了足够的分析材料,用于改进这些法律规范。
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引用次数: 0
Employment of migrant workers: Assumptions, requirements and limitations 移徙工人的就业:假设、要求和限制
Pub Date : 2020-08-24 DOI: 10.5937/spz64-25648
Ljubinka Kovačević
Although the need to provide decent working conditions is at the heart of the labour law rules on protection of migrant workers, a significant challenge for modern countries remains to create such conditions for their decent employment. The article discusses assumptions (legally entering a country), requirements for employment of foreigners (stay visa and work permit), as well as the employment limitations (quotas for employment of foreigners, limiting the catalogue of jobs that can be entrusted to foreigners, etc.). Regulation of these issues is closely related to the needs and the state of the domestic labour market (general and/or in specific professions), as well as the goals of migration, demographic, economic and employment policies. The author concludes that by establishing certain assumptions and special requirements for establishing employment relationships with foreigners, a number of diferent migrant positions are established for migrant workers, some of which are extremely precarious. Implementation of the relevant legal regulations should therefore be accompanied by (legal and extralegal) measures aimed at efectively protecting the dignity of migrant workers and preventing their labour exploitation. Among much else, this can be facilitated by establishing authorizations for employment of foreigners, as a special condition to be fulfilled by the employer, which can only be issued to the employers who respect labour and immigration regulations. Although this prevents employers who violate the rights of migrant workers from hiring new workers, there are no instruments in place to protect vulnerable categories of persons from labour exploitation in the period until the application for renewal of the employment authorisation or the application for a new employment authorisation is submitted. This is especially true as the dependence of migrant workers on the employer often discourages migrants from initiating the proceedings for protection of rights.
尽管提供体面工作条件的必要性是关于保护移徙工人的劳动法规则的核心,但现代国家面临的一个重大挑战仍然是为他们的体面就业创造这种条件。文章讨论了假设(合法入境)、外国人就业要求(居留签证和工作许可)、,以及就业限制(外国人就业配额、限制可委托给外国人的工作目录等)。对这些问题的监管与国内劳动力市场(一般和/或特定职业)的需求和状况以及移民、人口、经济和就业政策的目标密切相关。作者的结论是,通过建立与外国人建立就业关系的某些假设和特殊要求,为移民工人建立了一些不同的移民职位,其中一些职位极不稳定。因此,在执行相关法律法规的同时,应采取(法律和法外)措施,有效保护移徙工人的尊严,防止对他们的劳动剥削。除其他外,这可以通过设立雇用外国人的授权来促进,这是雇主必须满足的一个特殊条件,只能向尊重劳工和移民法规的雇主颁发。尽管这阻止了侵犯移民工人权利的雇主雇佣新工人,但在提交就业许可续期申请或新就业许可申请之前,没有任何文书可以保护弱势群体免受劳动剥削。这一点尤其正确,因为移徙工人对雇主的依赖往往阻碍移徙者提起保护权利的诉讼。
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引用次数: 2
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Strani pravni zivot
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