In the paper the author analyses the procedure for interim measures and the suspension of the decision in Croatian and EU competition law. The subject of analysis are the substantive and procedural aspects of both legal remedies with references to relevant case law. The author reflects on evident doubts that occur with regard to the application of interim measures and the suspension of the decision in competition cases before the High Administrative Court of Republic of Croatia. The author also emphasizes potential problems that may occur in domestic legal practice due to underregulation of the pertinent legal institutes in relevant codes. The author also takes a look at the rules and procedures for interim measures and the suspension of the decision in EU law. The author concludes that those rules may serve as a possible legislative model for future amendments of existing Croatian laws.
{"title":"Privremene mjere i odgodni učinak tužbe u sporovima za zaštitu tržišnog natjecanja u hrvatskom pravu i europskom pravu","authors":"Dubravka Akšamović","doi":"10.3935/zpfz.72.12.03","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.03","url":null,"abstract":"In the paper the author analyses the procedure for interim measures and the suspension of the decision in Croatian and EU competition law. The subject of analysis are the substantive and procedural aspects of both legal remedies with references to relevant case law. The author reflects on evident doubts that occur with regard to the application of interim measures and the suspension of the decision in competition cases before the High Administrative Court of Republic of Croatia. The author also emphasizes potential problems that may occur in domestic legal practice due to underregulation of the pertinent legal institutes in relevant codes. The author also takes a look at the rules and procedures for interim measures and the suspension of the decision in EU law. The author concludes that those rules may serve as a possible legislative model for future amendments of existing Croatian laws.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45467337","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 elaborates on the effects of Art. 354 of the Civil Obligations Act on the reduction of contractual penalty. According to this provision, the court will, at the request of the debtor, reduce the contractual penalty amount if it finds that the amount is disproportionately high, given the value and significance of the object of the obligation. The paper takes the position on the inadequacy of the value and significance of the subject of the obligation as a criterion for assessing the proportionality of the contractual penalty amount. At the same time, as a more appropriate measure, the paper points to the damage, and to other circumstances that enable the court to decide on the fairness of a contractual penalty as well. The paper also notes that the court must not neglect the creditor's interests when deciding on the reduction of the contractual penalty, and that it should permit such a reduction only when a disproportionality of the contractual penalty is evident. The paper also elaborates on certain procedural issues related to the reduction of contractual penalty.
{"title":"Smanjenje ugovorne kazne prema čl. 354. Zakona o obveznim odnosima","authors":"Tomislav Jakšić","doi":"10.3935/zpfz.72.12.16","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.16","url":null,"abstract":"The paper elaborates on the effects of Art. 354 of the Civil Obligations Act on the reduction of contractual penalty. According to this provision, the court will, at the request of the debtor, reduce the contractual penalty amount if it finds that the amount is disproportionately high, given the value and significance of the object of the obligation. The paper takes the position on the inadequacy of the value and significance of the subject of the obligation as a criterion for assessing the proportionality of the contractual penalty amount. At the same time, as a more appropriate measure, the paper points to the damage, and to other circumstances that enable the court to decide on the fairness of a contractual penalty as well. The paper also notes that the court must not neglect the creditor's interests when deciding on the reduction of the contractual penalty, and that it should permit such a reduction only when a disproportionality of the contractual penalty is evident. The paper also elaborates on certain procedural issues related to the reduction of contractual penalty.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47845749","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 responsibility of international organizations attracted special attention in theory and practice of international law after the International Law Commission began its work on the topic in 2002. The Commission ended its work in 2011 by adopting the Draft Articles on the Responsibility of International Organization. In this contribution we give an overall review of the Draft articles with special a emphasis on the cases of multiple attribution and responsibility of states for internationally wrongful acts of international organizations. Analyzing the critical remarks raised in regard to the Draft, we concluded that they cannot diminish the successful outcome of the work of the Commission, which is, a coherent and consistent system of rules devoted to the responsibility of international organizations.
{"title":"Odgovornost međunarodnih organizacija, s posebnim osvrtom na višestruku pripisivost te odgovornost država za čine međunarodnih organizacija","authors":"Maja Seršić","doi":"10.3935/zpfz.72.12.11","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.11","url":null,"abstract":"The responsibility of international organizations attracted special attention in theory and practice of international law after the International Law Commission began its work on the topic in 2002. The Commission ended its work in 2011 by adopting the Draft Articles on the Responsibility of International Organization. In this contribution we give an overall review of the Draft articles with special a emphasis on the cases of multiple attribution and responsibility of states for internationally wrongful acts of international organizations. Analyzing the critical remarks raised in regard to the Draft, we concluded that they cannot diminish the successful outcome of the work of the Commission, which is, a coherent and consistent system of rules devoted to the responsibility of international organizations.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48222652","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 systematically elaborates on the liability of supervisory board members. Although the supervisory board members do not manage the business of the company, their role is important because they make sure that the company’s business is conducted in a way that is acceptable to all stakeholders of the company. At the same time, their responsibility is based on the same principle as the responsibility of the members of the management board who manage the company's business activities. Such responsibility stems from their fundamental obligation to undertake all their activities in the company’s interest. Foremost, the paper analyses the standard of care required from the supervisory board members in performance of their duties, with special reference to the role of supervisory board members in the parent company and in the supervisory boards of subsidiaries in the concern. Subsequently, the paper analyses the effects of business judgment rule application which protects the free entrepreneurial judgment of the supervisory board members. This is followed by analysis of issues relating to the conflict of interest of the supervisory board members and the breach of the trade secret. Afterwards, the paper deals more elaborately with the request for compensation of damages to the supervisory board members. More precisely, the paper analyses issues relating to the question against which supervisory board member can such request be made, conditions for establishing their liability for damages and enforcement of such request. Paper also analyses issues pertaining to the company’s waiver of that request as well as the possibility of concluding a settlement between the company and the supervisory board member. Ultimately, the responsibility for the exploitation of influence in the company is elaborated upon.
{"title":"Odgovornost članova nadzornog odbora za štetu počinjenu dioničkom društvu","authors":"Jakša Barbić","doi":"10.3935/zpfz.72.12.01","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.01","url":null,"abstract":"The paper systematically elaborates on the liability of supervisory board members. Although the supervisory board members do not manage the business of the company, their role is important because they make sure that the company’s business is conducted in a way that is acceptable to all stakeholders of the company. At the same time, their responsibility is based on the same principle as the responsibility of the members of the management board who manage the company's business activities. Such responsibility stems from their fundamental obligation to undertake all their activities in the company’s interest. Foremost, the paper analyses the standard of care required from the supervisory board members in performance of their duties, with special reference to the role of supervisory board members in the parent company and in the supervisory boards of subsidiaries in the concern. Subsequently, the paper analyses the effects of business judgment rule application which protects the free entrepreneurial judgment of the supervisory board members. This is followed by analysis of issues relating to the conflict of interest of the supervisory board members and the breach of the trade secret. Afterwards, the paper deals more elaborately with the request for compensation of damages to the supervisory board members. More precisely, the paper analyses issues relating to the question against which supervisory board member can such request be made, conditions for establishing their liability for damages and enforcement of such request. Paper also analyses issues pertaining to the company’s waiver of that request as well as the possibility of concluding a settlement between the company and the supervisory board member. Ultimately, the responsibility for the exploitation of influence in the company is elaborated upon.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43836378","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}
Sources of law in commercial contracts are of importance because rights and obligations of contractual parties are derived from such sources. Sources of law are regularly considered to be legal acts, customs and case law. However, due to their flexibility and the freedom of contract, autonomous commercial law stands out as a source of law in commercial contracts. Such autonomous commercial law, in addition to the will of the parties, includes customs, codified customs, practice established between the parties, the general terms of contract and various commercial clauses and terms. This paper compares and analyses in detail the individual sources of law in commercial contracts. Such sources are also systematized and divided into those that are applied because they were contracted by the parties, and those that are applied even though the parties did not agree on their application. Ultimately, the paper elaborates especially on the court and arbitration practice as well as legal science as sources of law.
{"title":"Hijerarhija izvora prava trgovačkih ugovora u hrvatskom pravu","authors":"Zvonimir Slakoper","doi":"10.3935/zpfz.72.12.12","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.12","url":null,"abstract":"Sources of law in commercial contracts are of importance because rights and obligations of contractual parties are derived from such sources. Sources of law are regularly considered to be legal acts, customs and case law. However, due to their flexibility and the freedom of contract, autonomous commercial law stands out as a source of law in commercial contracts. Such autonomous commercial law, in addition to the will of the parties, includes customs, codified customs, practice established between the parties, the general terms of contract and various commercial clauses and terms. This paper compares and analyses in detail the individual sources of law in commercial contracts. Such sources are also systematized and divided into those that are applied because they were contracted by the parties, and those that are applied even though the parties did not agree on their application. Ultimately, the paper elaborates especially on the court and arbitration practice as well as legal science as sources of law.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41759059","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}
Of all commercial companies in business practice, a vast majority are established as limited liability companies. Shares in such company are often a part of the entity’s assets, and when it comes to economic entities, it often even represents a part of their strategic asset substrate. The paper elaborates on the transfer of shares. Existing legal rules are analysed, and special attention is given to the issue of the form of the transfer agreement and the role that the notary public has in the transfer of shares. The paper also analyses the newly proposed solution relating to the transfer of shares by the Draft proposal of the Act on Amendments to the Companies Act, which was released for public debate on the 20th October 2021. Following such analysis, the paper draws attention to the inconsistencies and shortcomings of the proposed solution, as well as to the negative consequences that it might cause in practice.
{"title":"Prijenos poslovnog udjela – što jest, a što ne bi trebao biti","authors":"Hrvoje Markovinović","doi":"10.3935/zpfz.72.12.06","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.06","url":null,"abstract":"Of all commercial companies in business practice, a vast majority are established as limited liability companies. Shares in such company are often a part of the entity’s assets, and when it comes to economic entities, it often even represents a part of their strategic asset substrate. The paper elaborates on the transfer of shares. Existing legal rules are analysed, and special attention is given to the issue of the form of the transfer agreement and the role that the notary public has in the transfer of shares. The paper also analyses the newly proposed solution relating to the transfer of shares by the Draft proposal of the Act on Amendments to the Companies Act, which was released for public debate on the 20th October 2021. Following such analysis, the paper draws attention to the inconsistencies and shortcomings of the proposed solution, as well as to the negative consequences that it might cause in practice.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43698681","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}
Rules relating to equitable price to be offered in takeover bid represent corner stone of takeover regulation. They aim to achieve an adequate protection of the minority shareholders and sustain effectiveness of capital market, particularly regarding its allocative function. Relevant criteria and their application depend on whether the offeror and/or persons acting in concert with him acquired target company’s voting shares in the period preceding the obligation to publish takeover bid, period from publishing of the bid until its closure for acceptance or period following closure of the takeover bid. As Croatian law departs from solutions adopted in member states that otherwise serve as legislative role models, as well as from certain solutions provided by European instruments, paper proposes teleological interpretation of Art. 16 of Croatian Law on taking over of joint stock companies. By considering the goals of the equitable price rule and internal interconnection with other regulations pertaining to takeover process, special emphasis is given to the precise determination of the moment when the offeror acquires voting shares. Such an approach aims to minimize existing legislative inconsistencies, which often relate to either faulty drafting or legislative intentions aiming to provide an autonomous solution that serves presumed particularities of Croatian capital market.
{"title":"Cijena u ponudi za preuzimanje","authors":"NIna Tepeš","doi":"10.3935/zpfz.72.12.13","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.13","url":null,"abstract":"Rules relating to equitable price to be offered in takeover bid represent corner stone of takeover regulation. They aim to achieve an adequate protection of the minority shareholders and sustain effectiveness of capital market, particularly regarding its allocative function. Relevant criteria and their application depend on whether the offeror and/or persons acting in concert with him acquired target company’s voting shares in the period preceding the obligation to publish takeover bid, period from publishing of the bid until its closure for acceptance or period following closure of the takeover bid. As Croatian law departs from solutions adopted in member states that otherwise serve as legislative role models, as well as from certain solutions provided by European instruments, paper proposes teleological interpretation of Art. 16 of Croatian Law on taking over of joint stock companies. By considering the goals of the equitable price rule and internal interconnection with other regulations pertaining to takeover process, special emphasis is given to the precise determination of the moment when the offeror acquires voting shares. Such an approach aims to minimize existing legislative inconsistencies, which often relate to either faulty drafting or legislative intentions aiming to provide an autonomous solution that serves presumed particularities of Croatian capital market.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43757706","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 analyses the proposed new legal form of a company – limited liability enterprise – which is the result of the work of UNCITRAL Working Group I (micro, small and medium-sized enterprises). Following the recommendations of the UN General Assembly, UNCITRAL commenced its activities at the meeting of the Working Group held in 2014. Over the course of several sessions until 2021, the Working Group adopted two major instruments: Legislative Guide on Key Principles of Business Registry and Legislative Guide on Limited Liability Enterprises. The latter document attempts to encourage states to introduce into their national legislations a new, hybrid legal form of a legal entity primarily intended to pursue commercial activities. This new legal entity would primarily be suitable for developing countries in which a large number of enterprises operate in the informal sector of the economy, i.e. they are not registered. This poses a risk for both enterprises and states when they perform their business activities. The aim is, therefore, to create incentives for their transfer from the informal to the formal economy.
{"title":"Djelatnost UNCITRAL-a na novom pravnom obliku trgovačkog društva (kao odgovor na anakronost prava društava)","authors":"Siniša Petrović","doi":"10.3935/zpfz.72.12.10","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.10","url":null,"abstract":"The paper analyses the proposed new legal form of a company – limited liability enterprise – which is the result of the work of UNCITRAL Working Group I (micro, small and medium-sized enterprises). Following the recommendations of the UN General Assembly, UNCITRAL commenced its activities at the meeting of the Working Group held in 2014. Over the course of several sessions until 2021, the Working Group adopted two major instruments: Legislative Guide on Key Principles of Business Registry and Legislative Guide on Limited Liability Enterprises. The latter document attempts to encourage states to introduce into their national legislations a new, hybrid legal form of a legal entity primarily intended to pursue commercial activities. This new legal entity would primarily be suitable for developing countries in which a large number of enterprises operate in the informal sector of the economy, i.e. they are not registered. This poses a risk for both enterprises and states when they perform their business activities. The aim is, therefore, to create incentives for their transfer from the informal to the formal economy.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48621019","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 elaborates the possibility of extending the arbitration clause to entities which are not formal parties to the arbitration agreement (Non-Signatories) through the piercing of the corporate veil. Piercing of the corporate veil is a company law concept through which separate legal existence of a company is being disregarded (pierced) in order for the creditors to be able to expand their claims against the company to assets or other rights of the company's shareholders. Basic substantive company law standards for piercing the corporate veil are explained. A stance is taken that under Croatian law, in line with comparative legal literature and views of renowned scholars, it would be allowed to expand an arbitration clause to a Non-Signatory shareholder of the company if certain conditions are met. It is pointed out that the piercing of the corporate veil in corporate law, as well as a method of extension of the arbitration clause, is an exception to the general rule and thus imposes a high standard of proof and places the burden of proof on the party invoking its application. Piercing of the corporate veil is compared to some other typical cases of extending arbitration clauses to Non-Signatories. The most common cases and reasons for piercing are illustrated. In conclusion, practitioners are advised on how to draw up arbitration clauses to avoid the need to expand its application altogether through this method, and are being cautioned against the circumstances which need to be taken into account if the extension of the arbitration clause through the piercing of the corporate veil is considered.
{"title":"Širenje učinaka arbitražne klauzule na treće putem proboja pravne osobnosti","authors":"Petar Ceronja","doi":"10.3935/zpfz.72.12.22","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.22","url":null,"abstract":"The paper elaborates the possibility of extending the arbitration clause to entities which are not formal parties to the arbitration agreement (Non-Signatories) through the piercing of the corporate veil. Piercing of the corporate veil is a company law concept through which separate legal existence of a company is being disregarded (pierced) in order for the creditors to be able to expand their claims against the company to assets or other rights of the company's shareholders. Basic substantive company law standards for piercing the corporate veil are explained. A stance is taken that under Croatian law, in line with comparative legal literature and views of renowned scholars, it would be allowed to expand an arbitration clause to a Non-Signatory shareholder of the company if certain conditions are met. It is pointed out that the piercing of the corporate veil in corporate law, as well as a method of extension of the arbitration clause, is an exception to the general rule and thus imposes a high standard of proof and places the burden of proof on the party invoking its application. Piercing of the corporate veil is compared to some other typical cases of extending arbitration clauses to Non-Signatories. The most common cases and reasons for piercing are illustrated. In conclusion, practitioners are advised on how to draw up arbitration clauses to avoid the need to expand its application altogether through this method, and are being cautioned against the circumstances which need to be taken into account if the extension of the arbitration clause through the piercing of the corporate veil is considered.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49230065","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}
Not every decision of the appellate court varying the first instance judgement which comes as an unpleasant surprise to either party necessarily constitutes what is known as a surprise judgment (German: Überraschungsurteil). On the contrary, a surprise judgment should only be a rare, undesired exception. A varying judgment may be considered a surprised judgment only if the appellate court changed the legal classification of the case from that in the original case into one that a diligent party could not reasonably have foreseen. Also, a surprise judgment would also refer to cases in which the appellate court based its ruling on facts and evidence on which the parties had not been given a reasonable opportunity to comment. Surprise judgments are prohibited as they are in conflict with the postulates of fair trial. According to the case of law of the European Court of Human Rights, each party must be given a reasonable opportunity to comment on all relevant aspects of the case, not only in respect of evidence, but also in respect of the legal issues, i.e. an opportunity to participate effectively in the proceedings. It is to be emphasised that this also refers to legal arguments raised ex officio by the court. The principle iura novit curia cannot be an excuse for not allowing the parties to participate in a debate concerning the legal issues. However, this is not to say that the court should necessarily declare its legal positions to the parties. This duty exists only as an exception; for instance, in order to inform the parties of its intention to deviate from the case law or legal positions announced expressly or implicitly, or in legally intricate cases or cases involving issues with no relevant case law. The point is that the legal reasoning of the court must be reasonably foreseeable in view of the arguments which had been raised during the course of the proceedings by the opposing parties or by the court itself. Certainly, a party to civil proceedings is expected to display due diligence him/herself in that regard. If the legal classification of the case could not have been foreseen by the party as a diligent party, it constitutes a surprise judgment. If legal arguments which had been pursued by the court could not be regarded as substantially different from the observations submitted by the parties during the course of the proceedings, there is no breach of the adversarial principle. These postulates of fair trial refer to all courts, not only appellate ones, but the prohibition of surprise judgments bears special significance in the context of varying judgments of appellate courts considering their immediate effect of rendering the matter res iudicata. The Supreme Court should by all means allow a second appeal against a varying judgment of an appellate court which constitutes a surprise judgment, and if it should fail to provide a remedy to the surprised party, a remedy should invariably be provided by the Constitutional Court or the Euro
{"title":"Preinačujuća presuda i presuda iznenađenja","authors":"Marko Bratković","doi":"10.3935/zpfz.72.12.20","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.20","url":null,"abstract":"Not every decision of the appellate court varying the first instance judgement which comes as an unpleasant surprise to either party necessarily constitutes what is known as a surprise judgment (German: Überraschungsurteil). On the contrary, a surprise judgment should only be a rare, undesired exception. A varying judgment may be considered a surprised judgment only if the appellate court changed the legal classification of the case from that in the original case into one that a diligent party could not reasonably have foreseen. Also, a surprise judgment would also refer to cases in which the appellate court based its ruling on facts and evidence on which the parties had not been given a reasonable opportunity to comment. Surprise judgments are prohibited as they are in conflict with the postulates of fair trial. According to the case of law of the European Court of Human Rights, each party must be given a reasonable opportunity to comment on all relevant aspects of the case, not only in respect of evidence, but also in respect of the legal issues, i.e. an opportunity to participate effectively in the proceedings. It is to be emphasised that this also refers to legal arguments raised ex officio by the court. The principle iura novit curia cannot be an excuse for not allowing the parties to participate in a debate concerning the legal issues. However, this is not to say that the court should necessarily declare its legal positions to the parties. This duty exists only as an exception; for instance, in order to inform the parties of its intention to deviate from the case law or legal positions announced expressly or implicitly, or in legally intricate cases or cases involving issues with no relevant case law. The point is that the legal reasoning of the court must be reasonably foreseeable in view of the arguments which had been raised during the course of the proceedings by the opposing parties or by the court itself. Certainly, a party to civil proceedings is expected to display due diligence him/herself in that regard. If the legal classification of the case could not have been foreseen by the party as a diligent party, it constitutes a surprise judgment. If legal arguments which had been pursued by the court could not be regarded as substantially different from the observations submitted by the parties during the course of the proceedings, there is no breach of the adversarial principle. These postulates of fair trial refer to all courts, not only appellate ones, but the prohibition of surprise judgments bears special significance in the context of varying judgments of appellate courts considering their immediate effect of rendering the matter res iudicata. The Supreme Court should by all means allow a second appeal against a varying judgment of an appellate court which constitutes a surprise judgment, and if it should fail to provide a remedy to the surprised party, a remedy should invariably be provided by the Constitutional Court or the Euro","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44234498","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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