Kosovo is in the process of civil law codification. Civil law relationships are currently regulated by special laws. After the end of the war in 1999, Kosovo’s jurisdiction became complex due to the simultaneous application of different laws: the UNMIK regulations, previous laws, and the legislation adopted by the Assembly of Kosovo from 2001 onwards. Consequently, these circumstances have had an impact and caused different interpretations and inconsistent application of the laws in the same cases, which among other issues points to the need for codification. The lack of clear and uniform law implementation in court cases related to the civil law matters is also considered an issue that can be resolved by the harmonisation of civil law through a civil code. In other words, the drafting of a civil code will clean up the legal system from different laws in place. It will harmonize and bring Kosovo’s legislation closer to the international standards and best practices in this area of law, which will lead to better law implementation. In this paper, questions related to the approach and model of the civil code will be discussed. Further discussion will focus on the main general principles outlined in the General Part of the Civil Code approved by the Government on 29 December 2021, which is being regulated in Kosovo for the first time. The analyses in this paper are based on a review of literature, Kosovo legislation and references to the European countries’ legislation which are used as models for some parts of the Kosovo Draft Civil Code. Finally, some conclusions are drawn regarding the questions raised concerning the model of the civil code and the general principles included in the code.
{"title":"Codification of Civil Law in Kosovo: An Analysis of the Main Principles of Book One – General Part of the Kosovo Draft Civil Code","authors":"Haxhi Gashi","doi":"10.3935/zpfz.72.5.03","DOIUrl":"https://doi.org/10.3935/zpfz.72.5.03","url":null,"abstract":"Kosovo is in the process of civil law codification. Civil law relationships are currently regulated by special laws. After the end of the war in 1999, Kosovo’s jurisdiction became complex due to the simultaneous application of different laws: the UNMIK regulations, previous laws, and the legislation adopted by the Assembly of Kosovo from 2001 onwards. Consequently, these circumstances have had an impact and caused different interpretations and inconsistent application of the laws in the same cases, which among other issues points to the need for codification. The lack of clear and uniform law implementation in court cases related to the civil law matters is also considered an issue that can be resolved by the harmonisation of civil law through a civil code. In other words, the drafting of a civil code will clean up the legal system from different laws in place. It will harmonize and bring Kosovo’s legislation closer to the international standards and best practices in this area of law, which will lead to better law implementation. In this paper, questions related to the approach and model of the civil code will be discussed. Further discussion will focus on the main general principles outlined in the General Part of the Civil Code approved by the Government on 29 December 2021, which is being regulated in Kosovo for the first time. The analyses in this paper are based on a review of literature, Kosovo legislation and references to the European countries’ legislation which are used as models for some parts of the Kosovo Draft Civil Code. Finally, some conclusions are drawn regarding the questions raised concerning the model of the civil code and the general principles included in the code.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44472211","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The medical content of the concept of fetal genetic or teratological harm, or of a disorder incompatible with postnatal life, which is a legal condition of the right of self-determination to terminate pregnancy granted until the 20th/24th week of pregnancy or without time limitation in Hungary, is changing as medical science and diagnostics evolve. Medical bodies, legislature, and judiciary – as well as families – need to reflect on this fundamental issue of society. The article draws lessons and makes recommendations based on the results obtained in the investigation of the practice of the Supreme Court (now: Kúria) and Regional High Courts of Appeal in cases decided between 2015 and 2021. The compensation for damage to parents was granted either to the full cost of raising the child born with an unrecognized genetic or teratological defect or, conversely, merely the additional costs causally related to the nature-based harm were awarded. This survey of the entire body of domestic case law reveals the scope of damages to be paid and the types of wrongful conduct in the diagnosis, information, screening, targeted testing, licensing, or determination of likelihood of disorder. Contrary to its national scope, the article sheds light on correlations useful for the international audience of wrongful birth cases regarding the presumed effect of high compensation amounts on the possible increase in the medical availability of abortion indications.
{"title":"“Should I Have Been Carried From the Womb to the Grave?” The Judicial Practice of Pecuniary Damages for Birth With Genetic or Teratological Harm in Hungary and Its Possible Impact on Medical Practice","authors":"J. Benke","doi":"10.3935/zpfz.72.5.01","DOIUrl":"https://doi.org/10.3935/zpfz.72.5.01","url":null,"abstract":"The medical content of the concept of fetal genetic or teratological harm, or of a disorder incompatible with postnatal life, which is a legal condition of the right of self-determination to terminate pregnancy granted until the 20th/24th week of pregnancy or without time limitation in Hungary, is changing as medical science and diagnostics evolve. Medical bodies, legislature, and judiciary – as well as families – need to reflect on this fundamental issue of society. The article draws lessons and makes recommendations based on the results obtained in the investigation of the practice of the Supreme Court (now: Kúria) and Regional High Courts of Appeal in cases decided between 2015 and 2021. The compensation for damage to parents was granted either to the full cost of raising the child born with an unrecognized genetic or teratological defect or, conversely, merely the additional costs causally related to the nature-based harm were awarded. This survey of the entire body of domestic case law reveals the scope of damages to be paid and the types of wrongful conduct in the diagnosis, information, screening, targeted testing, licensing, or determination of likelihood of disorder. Contrary to its national scope, the article sheds light on correlations useful for the international audience of wrongful birth cases regarding the presumed effect of high compensation amounts on the possible increase in the medical availability of abortion indications.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43101026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines implementation of the peace settlement compromises translated into constitutional arrangements in Bosnia and Hercegovina, Kosovo and North Macedonia. The three countries struggle with their violent past, loss of interethnic trust and political fragmentation. Consequently, the implementation of peace settlement compromises that are translated into constitutional arrangements is hampered. Through analyses of constitutional jurisprudence in three countries this study provides further insights into the effectiveness and enforcement of the constitutional choices in practice. The article concludes that international supporters in the process of negotiation of peace settlements need to revisit the international assistance in constitution-making as a part of peacebuilding projects through the lens of constitutional review practices.
{"title":"Upholding Peace Settlements Through Constitutional Review in Bosnia and Herzegovina, Kosovo and North Macedonia","authors":"Remzije Istrefi","doi":"10.3935/zpfz.72.5.04","DOIUrl":"https://doi.org/10.3935/zpfz.72.5.04","url":null,"abstract":"This article examines implementation of the peace settlement compromises translated into constitutional arrangements in Bosnia and Hercegovina, Kosovo and North Macedonia. The three countries struggle with their violent past, loss of interethnic trust and political fragmentation. Consequently, the implementation of peace settlement compromises that are translated into constitutional arrangements is hampered. Through analyses of constitutional jurisprudence in three countries this study provides further insights into the effectiveness and enforcement of the constitutional choices in practice. The article concludes that international supporters in the process of negotiation of peace settlements need to revisit the international assistance in constitution-making as a part of peacebuilding projects through the lens of constitutional review practices.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46525197","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Currently, there is no special law for the protection of publicity rights in Kosovo, and a limited protection can be only afforded through different forms of intellectual property rights, i.e., trademark and copyright, as well as under the privacy protection and anti-defamation legislation, as well as property law regime. While the right to privacy and anti-defamation laws represent means to protect the human dignity, they are nevertheless not sufficient to justify an application of the right of privacy when the motives are to protect the commercial value of the persona. Hence the current paper aims at analysing the current regulation of publicity rights in Kosovo, as well as the scope of protection through a comparative analysis of the publicity rights legislation in different jurisdictions. The paper will also discuss the main policies and legal theories behind the right of publicity, explore different approaches expressed in the legal doctrine, and propose specific actions for Kosovo legislators in this regard.
{"title":"Publicity Rights as a Tool for Protection of Celebrities and Public Figures in Kosovo","authors":"Luljeta Plakolli-Kasumi, Qerkin Berisha","doi":"10.3935/zpfz.72.5.05","DOIUrl":"https://doi.org/10.3935/zpfz.72.5.05","url":null,"abstract":"Currently, there is no special law for the protection of publicity rights in Kosovo, and a limited protection can be only afforded through different forms of intellectual property rights, i.e., trademark and copyright, as well as under the privacy protection and anti-defamation legislation, as well as property law regime. While the right to privacy and anti-defamation laws represent means to protect the human dignity, they are nevertheless not sufficient to justify an application of the right of privacy when the motives are to protect the commercial value of the persona. Hence the current paper aims at analysing the current regulation of publicity rights in Kosovo, as well as the scope of protection through a comparative analysis of the publicity rights legislation in different jurisdictions. The paper will also discuss the main policies and legal theories behind the right of publicity, explore different approaches expressed in the legal doctrine, and propose specific actions for Kosovo legislators in this regard.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44140718","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper analyses the issue of recognition of canon marriage (matrimonium) that has been concluded in the Vatican City State and also the effects of decisions of church courts on marriage in the Republic of Croatia. Firstly, the authors elaborate the issue of the status of the state and legal order of the Vatican City State, including its regulation of marriage. After the initial findings the question of recognition of marriage concluded in the Vatican City State in the Republic of Croatia is analysed. The conclusion in this aspect is that such a marriage is recognised in Croatia and its registration in the personal status record should be facilitated. In the following chapters the authors first analyse all the potentially relevant church courts’ decisions that concern canon marriage in the Vatican City State. Thereafter, they elaborate whether such decisions may be recognized in Croatia given the fact that church, and not state, courts decide on the issue. Given the specificities of the Vatican City State that are evidenced in the fact that those decisions have direct effect, the authors conclude that such decisions are to be generally differentiated from church courts’ decisions. Finally, the paper deals with the application of Art. 13/4 of the Agreement on legal issues between the Holy See and the Republic of Croatia that regulates how church decisions on marriage are given effect in Croatia. However, without further legislative steps, the courts cannot apply the rule. So far, such steps have not been taken and the concerned parties can only gain civil effects of cessation of marriage through civil courts.
{"title":"Ženidba u Državi Vatikanskog Grada i crkvene odluke o ženidbi u pravnom poretku RH","authors":"Tena Hoško, Henrik-Rko Held","doi":"10.3935/zpfz.72.3.04","DOIUrl":"https://doi.org/10.3935/zpfz.72.3.04","url":null,"abstract":"This paper analyses the issue of recognition of canon marriage (matrimonium) that has been concluded in the Vatican City State and also the effects of decisions of church courts on marriage in the Republic of Croatia. Firstly, the authors elaborate the issue of the status of the state and legal order of the Vatican City State, including its regulation of marriage. After the initial findings the question of recognition of marriage concluded in the Vatican City State in the Republic of Croatia is analysed. The conclusion in this aspect is that such a marriage is recognised in Croatia and its registration in the personal status record should be facilitated. In the following chapters the authors first analyse all the potentially relevant church courts’ decisions that concern canon marriage in the Vatican City State. Thereafter, they elaborate whether such decisions may be recognized in Croatia given the fact that church, and not state, courts decide on the issue. Given the specificities of the Vatican City State that are evidenced in the fact that those decisions have direct effect, the authors conclude that such decisions are to be generally differentiated from church courts’ decisions. Finally, the paper deals with the application of Art. 13/4 of the Agreement on legal issues between the Holy See and the Republic of Croatia that regulates how church decisions on marriage are given effect in Croatia. However, without further legislative steps, the courts cannot apply the rule. So far, such steps have not been taken and the concerned parties can only gain civil effects of cessation of marriage through civil courts.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43619313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Sloppy education results in misdirected graduates. We need to see legal education as a matter of shaping in adepts something that can be called caliber of intellect. It is referring to the university formation of a way of thinking and of perceiving the world that distinguishes legal studies from any other intellectual or scientific preparation. The author argues that legal education in the main must ensure that graduates are historical lawyers. There are two occupational paths open to law graduates, that of practitioners and that of scholars. The vast majority choose to be practitioners. Law adopts not only a dogmatic or comparative legal perspective, but also a historical perspective of discourse and argumentation. The users of this argumentation — and, one might say, everyone who appreciates it — are, on the strength of this fact, historical lawyers. Law is in a constant process of historical development, therefore a historical lawyer is a realist lawyer. The historical lawyer, with his awareness of the inevitable successive changes in the law, has no illusions as to the immutability of specific regulations, and is consequently more able to estimate the spectrum of such changes and what future amendments might entail. He is aware of the mistakes of the past and can thus take care to avoid them in the future — and, hopefully, help others to avoid them, too.
{"title":"The Historical Lawyer and the Goals of Legal Education","authors":"Franciszek Longchamps de Bérier","doi":"10.3935/zpfz.72.3.01","DOIUrl":"https://doi.org/10.3935/zpfz.72.3.01","url":null,"abstract":"Sloppy education results in misdirected graduates. We need to see legal education as a matter of shaping in adepts something that can be called caliber of intellect. It is referring to the university formation of a way of thinking and of perceiving the world that distinguishes legal studies from any other intellectual or scientific preparation. The author argues that legal education in the main must ensure that graduates are historical lawyers. There are two occupational paths open to law graduates, that of practitioners and that of scholars. The vast majority choose to be practitioners. Law adopts not only a dogmatic or comparative legal perspective, but also a historical perspective of discourse and argumentation. The users of this argumentation — and, one might say, everyone who appreciates it — are, on the strength of this fact, historical lawyers. Law is in a constant process of historical development, therefore a historical lawyer is a realist lawyer. The historical lawyer, with his awareness of the inevitable successive changes in the law, has no illusions as to the immutability of specific regulations, and is consequently more able to estimate the spectrum of such changes and what future amendments might entail. He is aware of the mistakes of the past and can thus take care to avoid them in the future — and, hopefully, help others to avoid them, too.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49099238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
U ponedjeljak 17. siječnja 2022. godine, na tmuran i sumoran zimski dan, svega nekoliko mjeseci prije pedesetog rođendana, Marko Petrak napustio je ovaj svijet. Ovaj iznenadan i iznimno šokantan događaj snažno i bolno pogodio je mnoge – njegovu obitelj te zaista nebrojene prijatelje i kolege u cijeloj Hrvatskoj, od Zagreba do Konavala, ali i u cijeloj Europi i svijetu. U takvim trenucima riječi, zaista, kao ni tekstovi, ne mogu ni približno dočarati bol i težinu tog događaja za sve koji su ga poznavali i s njime živjeli ili surađivali. U korespondenciji koja je uslijedila neposredno nakon nemilog događaja s nekim njemu bliskim kolegama u inozemstvu mogu se istaknuti samo neki, možda teže prevodivi, izričaji koji su se koristili – am Boden zerstört ili perdita di equilibrio. No smrt je uvijek takva, a posebno kad nastupi, kako bi rekao otac Marka Petraka, veliki hrvatski pjesnik i akademik Nikica Petrak, koji nas je također nažalost napustio 2016. godine, “potpuno besmislena smrt iza ugla”. Naravno, kad umru veliki ljudi, velikani, kakav je nedvojbeno bio Marko Petrak, onda su bol i praznina na mnogim razinama utoliko veći. No Marko Petrak bio je mnogo više od velikog čovjeka. Naime, on je bio dobar čovjek. A dobri ljudi iza sebe ostavljaju dobra djela.
{"title":"In memoriam Marko Petrak (1972. – 2022.)","authors":"Henrik-Riko Held","doi":"10.3935/zpfz.72.3.07","DOIUrl":"https://doi.org/10.3935/zpfz.72.3.07","url":null,"abstract":"U ponedjeljak 17. siječnja 2022. godine, na tmuran i sumoran zimski dan, svega nekoliko mjeseci prije pedesetog rođendana, Marko Petrak napustio je ovaj svijet. Ovaj iznenadan i iznimno šokantan događaj snažno i bolno pogodio je mnoge – njegovu obitelj te zaista nebrojene prijatelje i kolege u cijeloj Hrvatskoj, od Zagreba do Konavala, ali i u cijeloj Europi i svijetu. U takvim trenucima riječi, zaista, kao ni tekstovi, ne mogu ni približno dočarati bol i težinu tog događaja za sve koji su ga poznavali i s njime živjeli ili surađivali. U korespondenciji koja je uslijedila neposredno nakon nemilog događaja s nekim njemu bliskim kolegama u inozemstvu mogu se istaknuti samo neki, možda teže prevodivi, izričaji koji su se koristili – am Boden zerstört ili perdita di equilibrio. No smrt je uvijek takva, a posebno kad nastupi, kako bi rekao otac Marka Petraka, veliki hrvatski pjesnik i akademik Nikica Petrak, koji nas je također nažalost napustio 2016. godine, “potpuno besmislena smrt iza ugla”. Naravno, kad umru veliki ljudi, velikani, kakav je nedvojbeno bio Marko Petrak, onda su bol i praznina na mnogim razinama utoliko veći. No Marko Petrak bio je mnogo više od velikog čovjeka. Naime, on je bio dobar čovjek. A dobri ljudi iza sebe ostavljaju dobra djela.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45954521","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the paper the author analyzed the citizenship norms in the Croatian-Slavonian area in the Kingdom of Serbs, Croats and Slovenes in the period from the formation of the state in 1918 to the first Citizenship Law of the Kingdom of Serbs, Croats and Slovenes, which entered into force on 1 November 1928. Based on practical examples the author analyzed the relevance of various groups of norms in citizenship cases. In doing so, the author analyzed the concept of Croatian-Slavonian citizenship law in the new state, further application of abolished norms in administrative practice and application of Serbian citizenship law and other norms in the Croatian-Slavonian area. Based on the analyzed sources the author pointed out the competition of various norms and concluded that the normative complexity significantly complicated the process of standardization of citizenship law in the Croatian-Slavonian area. In addition, the author argues for a reformulation of the current understanding of the citizenship setting, which presupposes initial validity of citizenship norms enacted before 1 December of 1918 and their gradual change with new citizenship norms enacted over the following ten years. Instead, the author argues that this was only dominant practice, which was in a number of cases faced with other normativities that represented competitive solutions.
{"title":"Uređenje državljanstva i multinormativnost na hrvatsko-slavonskom području u Kraljevini Srba, Hrvata i Slovenaca (1918. – 1928.)","authors":"Ivan Kosnica","doi":"10.3935/zpfz.72.3.05","DOIUrl":"https://doi.org/10.3935/zpfz.72.3.05","url":null,"abstract":"In the paper the author analyzed the citizenship norms in the Croatian-Slavonian area in the Kingdom of Serbs, Croats and Slovenes in the period from the formation of the state in 1918 to the first Citizenship Law of the Kingdom of Serbs, Croats and Slovenes, which entered into force on 1 November 1928. Based on practical examples the author analyzed the relevance of various groups of norms in citizenship cases. In doing so, the author analyzed the concept of Croatian-Slavonian citizenship law in the new state, further application of abolished norms in administrative practice and application of Serbian citizenship law and other norms in the Croatian-Slavonian area. Based on the analyzed sources the author pointed out the competition of various norms and concluded that the normative complexity significantly complicated the process of standardization of citizenship law in the Croatian-Slavonian area. In addition, the author argues for a reformulation of the current understanding of the citizenship setting, which presupposes initial validity of citizenship norms enacted before 1 December of 1918 and their gradual change with new citizenship norms enacted over the following ten years. Instead, the author argues that this was only dominant practice, which was in a number of cases faced with other normativities that represented competitive solutions.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47459049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The division of a company is a material status alteration which is marked by partial universal succession. Particular rights, obligations and legal relations of a company being divided are transferred to newly formed companies or to existing recipient companies by force of law. The principle of creditors’ protection of the company being divided is applied in this procedure. This means that they must not be disadvantaged in the settlement of their claims against the companies involved in the division. In divisions by acquisition, the interests of the creditors of the recipient company must be also protected. In cross-border divisions, the creditors meet with a risk of bringing proceedings for the settlement of their claims against the newly formed company (principal debtor) in a different Member State. In order to protect the creditors’ interests, the regulations provide for institutional protective means that ensure the liquidity and solvency of companies after the division, and individual protective means that serve to secure or settle their claims against companies involved in a division.
{"title":"Zaštita vjerovnika pri domaćim i prekograničnim podjelama društava kapitala","authors":"Dionis Jurić","doi":"10.3935/zpfz.72.3.03","DOIUrl":"https://doi.org/10.3935/zpfz.72.3.03","url":null,"abstract":"The division of a company is a material status alteration which is marked by partial universal succession. Particular rights, obligations and legal relations of a company being divided are transferred to newly formed companies or to existing recipient companies by force of law. The principle of creditors’ protection of the company being divided is applied in this procedure. This means that they must not be disadvantaged in the settlement of their claims against the companies involved in the division. In divisions by acquisition, the interests of the creditors of the recipient company must be also protected. In cross-border divisions, the creditors meet with a risk of bringing proceedings for the settlement of their claims against the newly formed company (principal debtor) in a different Member State. In order to protect the creditors’ interests, the regulations provide for institutional protective means that ensure the liquidity and solvency of companies after the division, and individual protective means that serve to secure or settle their claims against companies involved in a division.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45716868","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper analyzes the problems that conventions may encounter as an instrument of harmonization of international trade law. These problems are correlated with the possibility of different interpretations of the text by the courts of different states, or with different ways of filling legal gaps that exist in their text. They are particularly significant in a situation where there is no supreme interpreter of the text, and may lead to a failure of the harmonization project altogether. The UN Convention on the International Sale of Goods is one of the most successful instruments of harmonization. Because of that, we will try to understand how its rules on interpreting (of the text) and filling legal gaps (in the text) have led to its acceptance by both developed and developing countries, civil and common law traditions, as well as the countries of the former socialist bloc, and what can be learned from this when drafting new instruments of harmonization.
{"title":"Specifičan način tumačenja i popunjavanja pravnih praznina u funkciji uspjeha Konvencije UN-a o međunarodnoj prodaji robe","authors":"Kenad Osmanović","doi":"10.3935/zpfz.72.3.06","DOIUrl":"https://doi.org/10.3935/zpfz.72.3.06","url":null,"abstract":"The paper analyzes the problems that conventions may encounter as an instrument of harmonization of international trade law. These problems are correlated with the possibility of different interpretations of the text by the courts of different states, or with different ways of filling legal gaps that exist in their text. They are particularly significant in a situation where there is no supreme interpreter of the text, and may lead to a failure of the harmonization project altogether. The UN Convention on the International Sale of Goods is one of the most successful instruments of harmonization. Because of that, we will try to understand how its rules on interpreting (of the text) and filling legal gaps (in the text) have led to its acceptance by both developed and developing countries, civil and common law traditions, as well as the countries of the former socialist bloc, and what can be learned from this when drafting new instruments of harmonization.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41985231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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