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Jurisdiction of the International Criminal Court over crimes committed on the territory of Afghanistan 国际刑事法院对在阿富汗境内所犯罪行的管辖权
Pub Date : 2023-01-01 DOI: 10.5937/gakv94-34230
Jelena Radmanović
The subject of this paper is the territorial and personal aspects of the jurisdiction of the International Criminal Court regarding crimes committed on the territory or in connection with the armed conflict on the territory of Afghanistan. In 2020, the International Criminal Court determined that the conditions had been met for initiating an investigation into crimes committed in Afghanistan, or in connection with the armed conflict in Afghanistan. The paper is based on the analysis of positive regulations in the field of public international law and international criminal law, as well as linking the relevant provisions with the circumstances under which crimes were committed on the territory of Afghanistan and drawing conclusions about the fulfillment of necessary conditions for initiating criminal proceedings before the International Criminal Court. The result of the analysis leads to the conclusion that the conditions have been met for initiating an investigation into crimes committed in Afghanistan or in connection with the armed conflict on the territory of Afghanistan. The initiation of an investigation is particularly important in the context of the withdrawal of US military forces and the Taliban's takeover of power in Afghanistan. Namely, there is a real possibility that the newly formed government in Afghanistan will not be willing to cooperate with the prosecution and provide the necessary evidence related to the crimes in question, which directly affects the importance of conducting proceedings before the International Criminal Court.
本文的主题是国际刑事法院对在领土上犯下的罪行或与阿富汗领土上的武装冲突有关的罪行的管辖权的领土和个人方面。2020年,国际刑事法院认定,启动对阿富汗境内或与阿富汗武装冲突有关的罪行进行调查的条件已经满足。该文件的基础是对国际公法和国际刑法领域的积极条例进行分析,并将有关规定与在阿富汗领土上犯下罪行的情况联系起来,并就在国际刑事法院提起刑事诉讼的必要条件的满足问题得出结论。分析的结果得出的结论是,对在阿富汗境内犯下的罪行或与阿富汗领土上的武装冲突有关的罪行展开调查的条件已经具备。在美军撤离和塔利班在阿富汗掌权的背景下,展开调查尤为重要。也就是说,阿富汗新成立的政府确实有可能不愿意与检察机关合作,不愿意提供与所涉罪行有关的必要证据,这直接影响到在国际刑事法院进行诉讼的重要性。
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引用次数: 0
Unexpected discriminatory and other provisions in the Criminal Procedure Code that violate human rights 《刑事诉讼法》中违反人权的意外歧视性条款和其他条款
Pub Date : 2023-01-01 DOI: 10.5937/gakv95-33462
Dimitrije Đukić
The Criminal Procedure Code is a procedural code whose primary function is to regulate the rules of conduct in criminal proceedings, i.e. to prescribe the rules of conduct of various subjects in criminal proceedings. In addition, the Criminal Procedure Code should contain such rules that will enable fast and efficient criminal proceedings, but at the same time guarantee basic human rights to all participants in the proceedings, especially the defendant as a subject against whom criminal proceedings are conducted. That is why it is always surprising when such a code contains provisions that violate basic human rights. In this paper, the provisions of the code that violate human rights will be analyzed. Most of the analyzed provisions concerned discriminatory treatment, while the other analyzed provisions violated the presumption of innocence, the right to a fair trial and the right to liberty and security.
《刑事诉讼法》是一部程序法典,其主要功能是规范刑事诉讼中的行为规则,即规定刑事诉讼中各主体的行为规则。此外,《刑事诉讼法》应载有这样的规则,使刑事诉讼能够迅速和有效地进行,但同时保障所有诉讼参与人的基本人权,特别是作为刑事诉讼对象的被告。这就是为什么当这样一项法典包含违反基本人权的条款时总是令人惊讶的原因。本文将对该法典中侵犯人权的条款进行分析。所分析的条款大多涉及歧视性待遇,而所分析的其他条款则违反了无罪推定、公平审判权和自由与安全权。
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引用次数: 0
Some legal dilemmas regarding the moratorium on employment in the public sector 公营部门暂停雇佣的一些法律困境
Pub Date : 2023-01-01 DOI: 10.5937/gakv95-37126
Danica Radovanović
In 2013, the National Assembly of the Republic of Serbia passed amendments to the Budget System Law prescribing the measure of the moratorium on employment in public services. The implementation of this measure was directed towards controlling (i.e. cutting) expenses and reducing the number of employees in the organizations financed from the government budget. Despite the analysis of the measure under scrutiny pointing out a lack of systematic, argumented and reliable reports and objective analyses of both positive and negative consequences of this decision, it appears that its application was associated with more negative consequences than positive ones whilst the largest and most significant effects were suffered by the sectors of healthcare, social protection and education. In addition, the negative consequences of the measure had a direct impact on women and young members of the workforce. The extension of this measure, in several iterations, has manifested itself through significant obstacles in the provision of services as well as a reduction in the quality of these services. Therefore, it is worthwhile to examine the content and the consequences of the application of the measure of the moratorium on public employment, certain legal dilemmas in relation to it, as well as whether the autonomy of public services has been restored following its repeal.
2013年,塞尔维亚共和国国民议会通过了《预算制度法》修正案,规定了暂停公共服务部门就业的措施。执行这项措施的目的是控制(即削减)开支和减少由政府预算资助的各组织的雇员人数。尽管对审查中的措施进行的分析指出,缺乏系统的、经过论证的和可靠的报告,以及对这一决定的积极和消极后果的客观分析,但似乎该决定的实施带来的消极后果多于积极后果,而保健、社会保护和教育部门受到的影响最大、最显著。此外,这一措施的消极后果对妇女和青年劳动力产生了直接影响。在几次重复中,这项措施的扩大表现为在提供服务方面存在重大障碍以及这些服务的质量下降。因此,有必要审查暂停公共就业措施的实施的内容和后果、与之有关的某些法律困境以及在其废除后是否恢复了公共服务的自主权。
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引用次数: 0
Ctio familiae erciscundae in the Gortyn law Code and the Law of the Twelve Tables 《戈廷法典》和《十二表法》规定了家庭行为
Pub Date : 2023-01-01 DOI: 10.5937/gakv95-41438
Milica Ristić
In this paper, the author examines the relationship between Greek and Roman legal traditions through the analysis of actio familiae erciscundae - a Roman legal action seeking the partition of inheritance (division of family property), which can be found both in the Gortyn Law Code and the Law of the Twelve Tables. Several scientific research methods were used in the paper, with the comparative legal research method being the most represented one, due to the nature of the subject at hand. Using comparative legal research, the author will try to answer the question of whether the actio familiae erciscundae legal action can be marked as a kind of legal transplant and whether it is possible to come to some more general conclusions about the degree of legal transplantation between the two great ancient legal systems from this relationship. To provide the most comprehensive answer to this question, the historical method (historical approach to legal research) was also used in the paper to better understand the socio-political context of the given time, along with the linguistic method to correctly interpret the true sense and meaning of the actio familiae erciscundae action. Although, at first glance, the existence of this particular legal action in these two large ancient legal systems indicates certain similarities, a deeper analysis of the nature of family union and property in Roman and Greek society reveals some key differences presented in the paper, based on which the author concludes that the degree of Greek influence on Roman law is somewhat overrated and overemphasized
在本文中,作者通过分析在《戈廷法典》和《十二表法》中都能找到的一种寻求分割遗产(家庭财产的分割)的罗马法律诉讼——家庭行为(action familiae erciscundae)——来考察希腊和罗马法律传统之间的关系。本文采用了几种科学的研究方法,由于研究课题的性质,比较法学研究方法是最具代表性的一种。笔者将运用比较法学研究的方法,试图回答是否可以将家庭行为作为一种法律移植来标记的问题,以及是否有可能从这种关系中得出关于两大古代法系之间的法律移植程度的一些更笼统的结论。为了对这个问题提供最全面的答案,本文还使用了历史方法(法律研究的历史方法)来更好地理解给定时间的社会政治背景,同时使用语言学方法来正确解释“家庭行动”的真正意义和含义。虽然乍一看,这一特殊法律行为在这两大古代法律体系中的存在有一定的相似性,但对罗马和希腊社会中家庭联盟和财产性质的深入分析揭示了本文所呈现的一些关键差异,基于此,作者得出结论,希腊对罗马法的影响程度有些被高估和过分强调
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引用次数: 0
Consent to contract 合同同意
Pub Date : 2023-01-01 DOI: 10.5937/gakv95-41494
Ivana Radomirović
The topic of this paper is the consent of a third party to the conclusion of a contract. The current lack of interest of legal science in the institution of third-party consent to contract is a consequence of its scattered normative regulation. Considering third-party consent is required often, in numerous and diverse cases, it is sporadically regulated in parts of regulations governing these contracts. Given the large number of cases where third-party consent to contract is required, this institution is sporadically regulated in parts of regulations governing individual contracts for which consent is required. Therefore, this paper examines contracts for which it is necessary to obtain third-party consent and which most often appear in legal transactions, such as contracts involving persons with limited business capacity, as well as consent required for the conclusion of sublease and sublicense contracts. This paper also includes an analysis of the current regulation of consent in the legislation of the Republic of Serbia, as well as an analysis of issues related to the form, legal nature, and consequences of the absence of third-party consent. The paper also presents a comparative legal analysis of solutions contained in the legislation of Germany, France, and Switzerland.
本文的主题是第三人对合同订立的同意。目前法学界对第三方合同同意制度缺乏兴趣是其规范性规定分散的结果。考虑到通常需要第三方的同意,在许多不同的情况下,在管理这些合同的部分法规中偶有规定。鉴于合同需要第三方同意的情况很多,该机构在管理需要征得同意的个别合同的部分条例中偶尔受到管制。因此,本文考察的是需要获得第三方同意的合同,以及在法律交易中最常出现的合同,例如涉及限制营业能力人的合同,以及订立转租和转许可合同所需的同意。本文还分析了塞尔维亚共和国立法中关于同意的现行规定,并分析了与缺乏第三方同意的形式、法律性质和后果相关的问题。本文还对德国、法国和瑞士立法中包含的解决方案进行了比较法律分析。
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引用次数: 0
Advanced techniques in the analysis of traffic accidents 交通事故分析的先进技术
Pub Date : 2023-01-01 DOI: 10.5937/gakv95-37777
Ištvan Bodolo
Modern vehicles in road traffic are equipped with mutually integrated electronic devices used for managing systems. A chip in the airbag module identifies collisions and, at the same time, memorizes key parameters prepared for the analysis of traffic accidents. After the transfer of data, it is possible to make an undoubted temporal-spatial analysis and give answers to all those questions which the previous practice had no answers for and instead relied on the principle of in dubio pro reo. The paper describes the current cognitive methods, presents modern digital forensics devices, its history, organization of digital forensics systems, highlights the formal and factual dilemmas of this novelty, describes the technique and method of data access as well as different perspectives. A list of questions that have not been answered by previous practice is provided, as well as several examples from practice, demonstrating the advantages that digital forensics achieves in relation to the traditional way of working. Applying the results of digital forensics will undoubtedly have a substantial effect on eradicating false accusations, erroneous verdicts, and unnecessary lawsuits. It will completely change the work of traffic-technical experts by eradicating all known weaknesses, reduce the number of lawsuits, and largely shorten the existing ones, which will affect the economy of proceedings in this area.
道路交通中的现代车辆配备了相互集成的电子设备,用于管理系统。安全气囊模块中的芯片可以识别碰撞,同时记忆交通事故分析所需的关键参数。在数据转移之后,可以对所有以前的实践无法回答的问题进行毫无疑问的时空分析,而依赖于可疑的原则。本文介绍了当前的认知方法,介绍了现代数字取证设备,它的历史,数字取证系统的组织,突出了这一新奇事物的形式和事实困境,描述了数据访问的技术和方法以及不同的观点。本文列出了以前的实践未能回答的问题列表,以及实践中的几个例子,展示了数字取证相对于传统工作方式的优势。应用数字取证的结果无疑将对消除虚假指控、错误判决和不必要的诉讼产生重大影响。它将彻底改变交通技术专家的工作,消除所有已知的弱点,减少诉讼数量,并在很大程度上缩短现有的诉讼,这将影响该领域诉讼的经济性。
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引用次数: 0
The principle of mortgage extensiveness with regard to buildings and separate parts of immovable property under construction 对建筑物和在建不动产的单独部分实行广泛抵押原则
Pub Date : 2023-01-01 DOI: 10.5937/gakv95-40642
R. Jotanović, Bosiljka Čubrilović-Stamenić
In accordance with the principle of legal unity of immovable property, immovable property consists of parcels of land and everything permanently connected to it, whether on the surface or underground. The reform of the system of real property law in the Republic of Srpska established the legal unity of immovable property between land, building, and separate parts of immovable property, making the owners of separate parts of immovable property (co)owners of the entire immovable property (land and building). Immovable property, which is identified with land, is the object of property rights and the object of a mortgage. In accordance with the principle of extensiveness, a mortgage exists with respect to immovable property as a whole, which means that a mortgage constituted on a land also covers the building as well as the separate part of the immovable property (apartment, business space, garage, etc.). Acquisition of property rights and acquisition of a mortgage on immovable property as a whole is possible on the basis of the principle of reliance, which takes precedence over the principle of Nemo plus iuris ad alium transferre potest quam ipse habet. When it comes to buildings and separate parts of immovable property under construction, the application of the principle of mortgage extensiveness or the principle of reliance depends on the moment the property rights or a mortgage are acquired. The principle of mortgage extensiveness takes precedence if the owner of the land managed to register the mortgage before the sale of the building or separate part under construction, and vice versa, the principle of reliance takes precedence if a conscientious buyer of an apartment in a building under construction managed to register ownership before the mortgage was constituted on the land.
根据不动产的法律统一性原则,不动产由土地和与之永久相连的地面或地下的一切组成。斯普斯卡共和国不动产法律制度的改革确立了土地、建筑物和不动产分割部分之间不动产的法律统一性,使不动产分割部分的所有者(共同所有者)成为整个不动产(土地和建筑物)的所有者。不动产与土地同属一体,是物权客体和抵押客体。根据广泛性原则,抵押权是对不动产作为一个整体存在的,即在土地上构成的抵押权,不仅包括该不动产的单独部分(公寓、商业空间、车库等),也包括该建筑物。物权的取得和不动产抵押权的取得,可以基于信赖原则,这一原则优先于物权与物权的转移原则。对于建筑物和在建不动产的单独部分,是否适用抵押权延伸性原则或信赖性原则,取决于抵押权取得的时间。如果土地所有人在出售建筑物或正在建设的单独部分之前成功地登记了抵押,则优先考虑抵押的广广性原则;反之,如果正在建设的建筑物中的公寓的良心购买者在土地上建立抵押之前成功地登记了所有权,则优先考虑信赖原则。
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引用次数: 0
Domestic violence between felony and misdemeanour law of the Republic of Srpska 斯普斯卡共和国家庭暴力重罪与轻罪之间的法律
Pub Date : 2023-01-01 DOI: 10.5937/gakv95-31801
Ljubana Sladić
Since May 2020, a new legal solution which treats domestic violence exclusively as a felony has been in force as part of the legislature of the Republic of Srpska. In this article, the author argues against the exclusive treatment of domestic violence as a felony by pointing out that it should also be treated as a misdemeanour but with a clear dividing line. This article presents the results of research conducted to establish the attitudes of judicial bodies concerning the felonization of domestic violence and also present the statistical data from the Basic Court in Bijeljina in connection with this crime. By interpreting the results of the survey, it was concluded that the participants were familiar with the new legal solution regarding the felonization of domestic violence and the consequences that such solutions produce in practice. The majority of them are of the view that the solution that treats domestic violence exclusively as a felony is not beneficial nor is it beneficial for the court to issue urgent/protective measures in misdemeanour procedures. Instead, the court should issue such measures in felony procedures. Also, the participants agree that there has been no increase in the number of prison sentences nor a more stringent penal policy with regard to the perpetrators of domestic violence, and they agree that these individuals typically receive suspended sentences, which is supported by the abovementioned statistical data.
自2020年5月以来,作为斯普斯卡共和国立法机构的一部分,一项新的法律解决方案已经生效,该解决方案将家庭暴力完全视为重罪。在本文中,作者反对将家庭暴力作为重罪单独处理,指出家庭暴力也应该作为轻罪处理,但要有明确的界限。本文介绍了为确定司法机构对家庭暴力罪化的态度而进行的研究结果,并介绍了比耶利纳基本法院关于这一罪行的统计数据。通过对调查结果的解释,得出的结论是,与会者熟悉关于将家庭暴力定为重罪的新的法律解决办法以及这种解决办法在实践中产生的后果。他们中的大多数人都认为,将家庭暴力完全视为重罪的解决方案是无益的,也不利于法院在轻罪程序中发布紧急/保护措施。相反,法院应该在重罪程序中发布此类措施。此外,与会者同意,对家庭暴力施暴者的监禁数量没有增加,也没有更严厉的刑事政策,他们同意这些人通常被判缓刑,这一点得到上述统计数据的支持。
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引用次数: 0
The relationship between domestic and international law in accordance with the Constitution of Montenegro 根据黑山宪法,国内法和国际法之间的关系
Pub Date : 2023-01-01 DOI: 10.5937/gakv94-35591
Miloš Rajović
The relationship between domestic (state) law, or more precisely domestic laws, and international law is one of the most complex and dynamic issues, both in foro interno and in foro externo, resulting in different and numerous theoretical and practical solutions. Beginning with basic theoretical starting points (monism and dualism), through comparative constitutional practice, this paper seeks to provide a detailed analysis of the provisions of the Constitution of Montenegro from 2007 concerning the relationship between domestic and international law, especially Article 9. Opting for a monistic approach with a relative primacy of international law, the Montenegrin Constitution prescribes that international treaties and generally accepted rules of international law are an integral part of the internal order. The analysis of the Constitution in the manner of de lege lata pointed out some basic errors and shortcomings of the positive legal solution of the relationship between domestic and international law found in Article 9, and resulted in a proposed correction in the manner of de lege ferenda, with the aim of reducing the potential international legal responsibility of Montenegro.
国内法,或者更确切地说,国内法与国际法的关系是最复杂和最具活力的问题之一,无论是在内部还是在外部,都产生了不同的和众多的理论和实践解决方案。本文从基本理论起点(一元论和二元论)出发,通过比较宪法实践,试图对2007年黑山宪法中有关国内法与国际法关系的规定,特别是第9条进行详细分析。黑山宪法选择了一种以国际法为相对首要地位的一元论方法,规定国际条约和普遍接受的国际法规则是国内秩序的组成部分。以现行法律的方式对《宪法》进行的分析指出了第9条对国内法与国际法之间关系的积极法律解决的一些基本错误和缺点,并提出了以全民法律的方式进行修正的建议,目的是减少黑山的潜在国际法律责任。
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引用次数: 0
The request for the protection of legality: Theoretical and practical aspects 合法性保护的要求:理论与实践两个方面
Pub Date : 2023-01-01 DOI: 10.5937/gakv94-34742
J. Stanković
In this article, the author has examined an extraordinary legal remedy which is the last defence of legality, the request for the protection of legality in the positive criminal procedure legislation of the Republic of Serbia. The principle of legality is one of the foundational principles of the legal system, which also helps to achieve the basic purpose of criminal procedure, i.e., that no innocent person is convicted and that perpetrators are sentenced under the conditions prescribed by criminal law based on a legal and fairly conducted procedure (Article 1, paragraph 1 of the Criminal Procedure Code of the Republic of Serbia). In this manner, the request for the protection of legality, as an extraordinary legal remedy, gains in importance. The subject of the article is an analysis of the theoretical conceptions and positive law solutions in the criminal procedure legislation of the Republic of Serbia, as well as the application of the request for the protection of legality in practice, bearing in mind that the request for the protection of legality has undergone the most significant changes, some of which have raised contentious issues, and in such a situation judicial practice deserves special attention because it will play a key role.
在本文中,作者审查了作为合法性最后辩护的一种特别法律补救办法,即塞尔维亚共和国积极刑事诉讼立法中保护合法性的要求。合法性原则是法律制度的基本原则之一,它也有助于实现刑事诉讼程序的基本目的,即不使无辜者被定罪,并根据合法和公正进行的程序根据刑法规定的条件对犯罪者判刑(塞尔维亚共和国《刑事诉讼法》第1条第1款)。这样,作为一种特别的法律补救措施,保护合法性的要求就变得更加重要了。本文的主题是分析塞尔维亚共和国刑事诉讼立法中的理论概念和实在法解决办法,以及保护合法性请求在实践中的适用情况,同时考虑到保护合法性请求经历了最重大的变化,其中一些变化引起了有争议的问题,在这种情况下,司法实践将发挥关键作用,值得特别关注。
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引用次数: 0
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Glasnik Advokatske komore Vojvodine
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