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Nullity as a prerequisite of contract conversion 无效是合同转换的先决条件
Pub Date : 2021-01-01 DOI: 10.5937/gakv93-27908
Dražen Mijanović
Although it has been legally recognized since 1978, the conversion (lat. Conversio - conversion) of contracts is one of the institutes to which no deserved attention has been paid in domestic theory. In textbooks that cover the general part of civil law, and those used for teaching the law of obligations, this institute is, with certain exceptions, presented rather briefly - usually, beside the legal definition, we find only the field of application and examples of conversion. We were unable to find monographs on the subject of conversion. On the other hand, in foreign literature, mostly German and Italian, we find a large number of monographs on the topic of conversion. The subject of this paper is one part of the norm that prescribes the conversion of a contract, and that is the nullity of a contract, which is provided as a precondition for the application of the institute. The scope of application of conversion seems to be precisely and clearly defined, especially having in mind the text and the place of the norm within the Law Contracts and Torts, and in this paper we will see if that is actually the case. In the search for the answer, we also used the comparative legal method. The area of application of conversion was considered - and we did not limit ourselves only to null and void contracts, but we considered the possibility of its application to non-existent, null and void, voidable contracts, then to partially null and void contracts, but also to valid contracts. Within null and void contracts, special attention is paid to those illegal and immoral, and within non-existent ones - to a simulated contract.
尽管自1978年以来,同性婚姻就得到了法律的承认,但这种转变(迟)。契约的转换(转换)是国内理论界尚未引起重视的问题之一。在涵盖民法一般部分的教科书中,以及用于教授义务法的教科书中,除了某些例外,这一机构的介绍相当简短——通常,除了法律定义之外,我们只找到适用领域和转换的例子。我们找不到关于皈依的专著。另一方面,在以德语和意大利语为主的外国文学中,我们发现了大量关于转换主题的专著。本文的主题是规定合同转换的规范的一部分,即合同的无效,这是该制度适用的先决条件。转换的适用范围似乎是精确而明确的,特别是考虑到文本和规范在《合同与侵权行为法》中的地位,在本文中我们将看到情况是否确实如此。在寻找答案的过程中,我们也运用了比较法的方法。审议了转换的适用领域- -我们不仅限于无效合同,而且考虑了将其适用于不存在的、无效的、可撤销的合同的可能性,然后是部分无效的合同,以及有效的合同。在无效合同中,特别注意那些非法和不道德的合同,在不存在的合同中-模拟合同。
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引用次数: 0
The relationship between lis pendens and exclusive international jurisdiction based on a choice of court agreement in the law of the Hague Conference and Bosnia and Herzegovina 未决案件与海牙会议和波斯尼亚-黑塞哥维那法律中基于选择法院协定的专属国际管辖权之间的关系
Pub Date : 2021-01-01 DOI: 10.5937/gakv93-28341
A. Poljić
The subject of the paper refers to the analysis of the exercise of the will of the contracting parties regarding the jurisdiction of the court in the law of the Hague Conference and Bosnia and Herzegovina. The exercise of the will of the contracting parties may be limited by the institute of lis pendens, which makes it impossible to conduct two proceedings between the same parties simultaneously for the same claim based on the same facts, giving priority to the first one, regardless of agreed-upon international jurisdiction. By agreeing on the jurisdiction, the contracting parties decide which court will resolve their dispute, which is extremely important for them. Based on the analysis of the Hague Convention on Choice of Court Agreements, it is concluded that preference is given to proceedings before the chosen court, with certain exceptions when the agreement of the parties will not apply. The law of Bosnia and Herzegovina applies the rules of lis pendens which may prevent the application of the agreement of the parties.
该文件的主题涉及对缔约方在海牙会议和波斯尼亚-黑塞哥维那的法律中对法院管辖权行使意愿的分析。缔约各方的意志的行使可能受到未决诉讼制度的限制,这就不可能在同一当事方之间就基于同一事实的同一索赔同时进行两项诉讼,而不管商定的国际管辖权如何,优先考虑第一个诉讼。通过商定管辖权,缔约双方决定由哪个法院来解决他们的争端,这对他们来说是极其重要的。根据对《海牙选择法院协议公约》的分析,得出的结论是,优先在选定的法院进行诉讼,但在当事方的协议不适用的情况下有某些例外。波斯尼亚-黑塞哥维那的法律适用可能妨碍双方协定适用的未决法律规则。
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引用次数: 0
(Il)Legal evidence in criminal procedures in the case law of the Supreme Court of Cassation in 2019 and 2020 (二)2019年和2020年最高法院判例法刑事诉讼中的法律证据
Pub Date : 2021-01-01 DOI: 10.5937/gakv93-30914
M. Pisarić
The Criminal Procedure Code stipulates that court decisions may not be based on evidence which is, directly or indirectly, by itself or in the manner of obtaining it, contrary to the Constitution, this Code, other laws or the generally accepted rules of international law and ratified international treaties, except in proceedings conducted for the purpose of obtaining such evidence. Illegal evidence cannot be used in criminal proceedings and is therefore separated from the case file. If the judgment is based on illegal evidence, it can be challenged by the appeal against the judgment, but also by the request for the protection of legality. The subject of the paper is the analysis of the recent case law of the Supreme Court of Cassation (in the period from January 1, 2019 to December 31, 2020) regarding the requests for the protection of legality stated in connection with illegal evidence.
《刑事诉讼法》规定,除非为获取证据而进行的诉讼程序,否则法院不得直接或间接地以证据本身或其获取方式违反宪法、本法、其他法律或普遍接受的国际法规则和批准的国际条约的证据为依据作出判决。非法证据不能在刑事诉讼中使用,因此与案件档案分开。如果判决是基于非法证据,可以通过对判决的上诉来质疑,也可以通过请求合法性保护来质疑。本文的主题是分析最近最高法院的判例法(2019年1月1日至2020年12月31日期间)关于与非法证据有关的合法性保护请求。
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引用次数: 0
Expanding the scope of claims falling under the one-year Statute of limitations 扩大一年诉讼时效范围
Pub Date : 2021-01-01 DOI: 10.5937/gakv93-32715
Dejan Pilipović
This paper analyses the possibility of an analogous application of Art. 378 of the Law of Contract and Torts (LCT) to other similar (identical) claims. The aim of the research is to try to answer the central question of whether it is necessary to update the provisions of the LCT regarding the one-year Statute of limitations in accordance with modern trends in terms of the scope of claims that should become Statute-barred within this period. In order to answer this question, scientific research methods, that is, techniques are used, such as the dogmatic-normative, historical-legal, and comparative-legal one, content analysis and a questionnaire. This apparatus is used within the study of legislation, case law and legal literature, as well as in empirical research. Knowing the scope of claims that become Statute-barred in a year is not only important for theoretical analysis, but is also of practical importance for court actions , as well as for consumers.
本文分析了《合同与侵权行为法》(LCT)第378条类似适用于其他类似(相同)索赔的可能性。这项研究的目的是试图回答一个核心问题,即是否有必要根据在这一期间应成为规约禁止的索赔范围方面的现代趋势,更新《法》关于一年诉讼时效的规定。为了回答这个问题,运用了教条式规范法、历史法和比较法等科学研究方法,即技术,内容分析和问卷调查。该仪器用于立法、判例法和法律文献的研究,以及实证研究。了解在一年内被法律禁止的索赔范围不仅对理论分析很重要,而且对法庭诉讼和消费者也具有实际意义。
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引用次数: 1
The violation of the trademark right caused by signing a retail sales agreement over the internet 通过网络签订零售协议造成的商标权侵犯
Pub Date : 2021-01-01 DOI: 10.5937/gakv93-28477
Nikola Milosavljević
The global development of electronic commerce is currently leading to extensive intellectual property rights violations. In this paper, the author has analyzed the definition of the internet retail contract and the place where it is concluded, as the possible area where the trademark infringement happens. Furthermore, there is an overview of electronic sales trademark infringements, as well as the solutions attempted. In the end, the author presents his opinion on methods that should be used in order to protect trademarks in electronic commerce, taking into account the interests of all market participants.
电子商务的全球发展导致了广泛的知识产权侵权行为。本文分析了网络零售合同的定义以及网络零售合同的订立地作为商标侵权可能发生的地区。其次,对电子销售商标的侵权行为进行了概述,并提出了解决办法。最后,笔者在考虑所有市场参与者的利益的基础上,提出了在电子商务中商标保护应采用的方法。
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引用次数: 0
The development of protections for the right to marry guaranteed by Article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 发展《欧洲保护人权和基本自由公约》第12条所保障的对结婚权利的保护
Pub Date : 2021-01-01 DOI: 10.5937/gakv93-29472
J. Vojvodić
Starting from the 21st century, the European Court of Human Rights has changed the approach regarding the interpretation of the right to marry protected under Article 12 of the European Convention on Human Rights. The new liberal attitude towards the content of this right has opened up opportunities for new categories of persons to enter into marriage and start a family. The question arises whether the European Court of Human Rights will continue with this trend of interpretation and what consequences that could cause for the international understanding of marriage and family.
从21世纪开始,欧洲人权法院改变了对《欧洲人权公约》第12条所保护的结婚权的解释方法。对这一权利内容的新的自由主义态度为新类别的人结婚和组建家庭开辟了机会。现在的问题是,欧洲人权法院是否会继续这种解释的趋势,以及这会对国际上对婚姻和家庭的理解造成什么后果。
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引用次数: 0
The rule of law in international law and its application in practice 国际法中的法治及其在实践中的应用
Pub Date : 2021-01-01 DOI: 10.5937/gakv93-29488
Stefan Dugajlić
The subject of this article is to point out that the rule of law, often characterized as a national concept, crosses the national borders of sovereign states, and that the field of the rule of law has a direct impact on international law, relations between states, individuals and states, and between individuals. The increasing and more frequent interaction of the above subjects in international relations has led to the need to constitute certain rules - regulations, more precisely international law, and to ensure its enforcement, and to protect the subjects from possible violations of it. The rule of law becomes even more represented at the international level, with the establishment and later with the activities of international organizations such as: the United Nations, Council of Europe, European Union. By acceding to those organisations, by actively participating in instituting regulations and applying them, directly or through ratification, states renounce the acts of their sovereignty in a certain manner, accepting and enforcing those regulations, thus giving them a higher place in the hierarchy of regulations than national law. This article describes the path of the rule of law from the Grand Charter of Freedoms (Magna Carta Libertatum), as a national concept, to the present, where the rule of law has a strong and indispensable influence in creation, enforcement and protection of international regulations.
本文的主题是指出,法治往往被定性为一种国家概念,它跨越了主权国家的国界,法治领域对国际法、国家之间、个人与国家之间以及个人与个人之间的关系有着直接的影响。由于上述各主体在国际关系中日益频繁地相互作用,因此有必要制定某些规则-条例,更确切地说是国际法,并确保其执行,并保护各主体不受可能的违反。随着联合国、欧洲理事会、欧洲联盟等国际组织的建立和后来的活动,法治在国际一级的代表性更加突出。通过加入这些组织,通过积极参与制定法规并直接或通过批准实施这些法规,各国以某种方式放弃其主权行为,接受并执行这些法规,从而使这些法规在法规等级中处于比国内法更高的地位。本文描述了法治的道路,从《自由大宪章》(Magna Carta Libertatum)作为一个国家概念,到现在,法治在制定、执行和保护国际规则方面具有强大而不可或缺的影响。
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引用次数: 0
Analysing the legal aspect of freedom of expression within the framework of political discourse: The current situation in legislature and judicial practice in the Republic of Serbia 分析政治话语框架内言论自由的法律方面:塞尔维亚共和国立法和司法实践的现状
Pub Date : 2021-01-01 DOI: 10.5937/gakv93-29552
A. Stevanovic
In this paper, the author considers the importance of the right to freedom of expression with specific reference to political speech, which is undoubtedly an important precondition for the establishment of democratic institutions. Free political speech encourages a well-informed and politically sophisticated citizenry to take part in political life. Thus, political speech has a privileged position in terms of legal protection. However, in some cases, the limits of freedom of expression can come into questions, as well as the scope of political speech. It is a well-established stance that politicians need to tolerate a greater degree of criticism due to their positions. Nevertheless, they also need to be protected when it comes to the endangerment of their personal rights, beyond justified political discussion.
在本文中,笔者特别提到了政治言论自由的重要性,这无疑是建立民主制度的重要前提。自由的政治言论鼓励见多识广、有政治头脑的公民参与政治生活。因此,政治言论在法律保护方面具有特权地位。然而,在某些情况下,言论自由的限制以及政治言论的范围可能会受到质疑。政界人士因为自己的立场,需要容忍更大程度的批评,这是一个既定的立场。然而,在正当的政治讨论之外,当他们的个人权利受到危害时,他们也需要得到保护。
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引用次数: 1
Legal inheritance mechanisms for the protection a decedent's family members in Czech law 捷克法律中保护被继承人家庭成员的法定继承机制
Pub Date : 2021-01-01 DOI: 10.5937/gakv93-28280
Ivan Đokić
The subject of the author's attention in this paper are certain regulations regarding legal inheritance in Czech law. We will try to give insight into inheritance mechanisms that are meant to protect the family members of a decedent, both through the prism of those regulations and that of Czech legal literature and the position of the highest court of the Czech Republic. We will pay special attention to the hereditary position of those subjects to which the decedent provided subsistence during his life and those persons who lived in a joint household with the decedent.
本文关注的主题是捷克法律中关于法定继承的某些规定。我们将通过这些条例和捷克法律文献的棱镜以及捷克共和国最高法院的立场,努力深入了解旨在保护死者家庭成员的继承机制。我们将特别关注那些在被继承人生前提供生活保障的对象和与被继承人共同生活的人的世袭地位。
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引用次数: 0
On the shortcomings of the plea agreement 辩诉协议的缺点
Pub Date : 2021-01-01 DOI: 10.5937/gakv93-29451
D. Milošević
The plea agreement is an institute of criminal procedure law that was introduced into the Criminal Procedure Code in 2011 as one of three agreements that can be concluded by the public prosecutor and the defendant. The author points out the shortcomings of the agreement in terms of the absence of a prescribed penalty as a condition for concluding an agreement, determining the sentence without presenting evidence, with an emphasis on extenuating and aggravating circumstances, and provides suggestions on how to prevent or eliminate problems that could occur in praxis by applying valid legal solutions. In order to obtain answers to some of the above questions, a research questionnaire was created on the basis of which the author collected data from a court and public prosecutor's office in order to prove the presented hypotheses. From the methodological aspect, in addition to documentary analysis, the comparative and historical method, prediction strategy and the medium-scale method were used for the purpose of the research.
认罪协议是2011年被引入刑事诉讼法的刑事诉讼法制度,是检察官和被告人之间可以签订的3种协议之一。作者指出了该协议的不足之处,包括没有将规定的刑罚作为达成协议的条件,在没有提出证据的情况下确定刑罚,强调减轻和加重情节,并就如何通过适用有效的法律解决办法来预防或消除在实践中可能出现的问题提出了建议。为了获得上述一些问题的答案,在此基础上创建了一份研究问卷,作者从法院和检察官办公室收集数据,以证明所提出的假设。在研究方法上,除了文献分析外,还采用了比较历史法、预测策略和中尺度法。
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引用次数: 0
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Glasnik Advokatske komore Vojvodine
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