Arhiv za pravne i drustvene nauke最新文献

{"title":"Open Constitutional questions in modern-day Montenegro: A contribution to the Constitutional Chronicle of 2022","authors":"Matija Stojanović","doi":"10.5937/adpn2302109s","DOIUrl":"https://doi.org/10.5937/adpn2302109s","url":null,"abstract":"This article presents a chronicle of the political events that were of constitutional significance during the year 2022 in Montenegro. During these two months, two governments were voted no-confidence; one president of the Assembly of Montenegro and two ministers were dismissed; two investitures were given, only one of which resulted in the formation of Government; two proposals for shortening the mandate of the Assembly were submitted, one by the Government, the other by the President of Montenegro. During this period, Montenegro was governed by governments which were voted out of confidence for over seven months, and the Constitutional Court of Montenegro was out of quorum for over three months. Many of these events were unprecedented, which is why they opened numerous consitutional debates.","PeriodicalId":211237,"journal":{"name":"Arhiv za pravne i drustvene nauke","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136007764","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}

{"title":"Binding effect of individual legal acts: The effect of a criminal court verdict in the legal system","authors":"Aleksandar Jakšić","doi":"10.5937/adpn2302009j","DOIUrl":"https://doi.org/10.5937/adpn2302009j","url":null,"abstract":"The unity of the legal order is the foundation of the rule of law. It also implies the internal harmony of decision-making, ie. the absence of contradictory court decisions in the unified legal system. In order to realize this ideal, it is necessary for the legal system to foresee that legally binding and final individual legal acts mutually bind state bodies. The unity of the legal system can be only achieved when the system provides that conviction judgment rendered by a criminal court bind civil court in the subsequent civil proceedings. Civil courts should be also bound by a decision rendered by a criminal court if the defendant is acquitted of the charge, in case criminal court has solved some preliminary question that is important for deciding in civil proceedings. Such a system exists in Austria and Serbia. In principle, a verdict rendered by a criminal court should produce effects erga omnes. On the other hand, in Germany and Anglo-Saxon legal systems, the principle of independence of criminal and civil justice applies. However, the difference between the previous and the latter system is not as significant as it seems at first glance, because the judgment of the criminal court in civil proceedings has a significant probative value. From the point of view of the Constitution of Serbia, as well as the European Convention on Human Rights and Fundamental Freedoms, the principles of independence of the courts in making decisions, the requirement that a court must only be bound by the Constitution and the law are not an obstacle for the legislator to determine that the final judgment of the criminal court binds the civil court. The principle of res judicata, which forms one of the foundations of the rule of law, is much broader in Anglo-Saxon than in Euro-continental law. This particularly applies to the application of the institute issue or collateral estoppel which derives from the Roman principle of venire contra factum proprium. The principle serves to prevent substantial injustice. The principle of the rule of law requires legal certainty and predictability which implies the absence of contradictory court decisions in a unified legal system. In order to avoid the possibility of making contradictory court decisions, it is necessary to reexamine the ambit of the res judicata principle and to extend the application of the principle of venire contra factum proprium and preclusion in order to achieve procedural fairness.","PeriodicalId":211237,"journal":{"name":"Arhiv za pravne i drustvene nauke","volume":"72 4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136007598","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}

{"title":"Judicial review: Contemporary approach","authors":"Snežana Radovanović","doi":"10.5937/adpn2302073r","DOIUrl":"https://doi.org/10.5937/adpn2302073r","url":null,"abstract":"Contemporary global society is highly polarizated. Minority societes seriously endangere civilised achievements, like principles of democratic society and goverments of law are. Such societies resort to force their decisions breaching, by this, fundamental human rights and civilised achivements, very often. In such circumstances, judicial review gains significance and actuality, as a way to avoid social conflicts and to protect the interests of majority, as well. The institution of judical review has its roots in parliamentary (political) control, but there are opinions that such a control of constitutionality and legality was under strong influence of political parties. The second way of such control, having its roots in political control as well, was highly developed through experience of State Council (administrative court) and Constitutional Council in France, competent for timely control and removal of any kind of illegality before the law has been passed, unlike later control. This is why this kind of control is widely spread all over the Europe and in other legal systems, as well. The third way of control of constitutionality and legality is through the competences of judicial power, by ordinary courts, like in USA, or by special courts (constitutional courts). This way of control is also widely spread due to authority and speciality of the court as an institution, and due to its objectivity, also. Above all, this way of control of constitutionality and legality is guaranteed by citizens ( public), who take part in active evaluation of such a control.","PeriodicalId":211237,"journal":{"name":"Arhiv za pravne i drustvene nauke","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136007614","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}

{"title":"Mechanisms of protection of national and entity interests in Bosnia and Herzegovina's parliamentarism","authors":"Marko Šukalo","doi":"10.5937/adpn2302091s","DOIUrl":"https://doi.org/10.5937/adpn2302091s","url":null,"abstract":"In the paper, the author analyzes the mechanisms for the protection of vital national and entity interests at the BiH level, in entities and cantons in the Federation of BiH, emphasizing the importance of these mechanisms as an essential element of Bosnian parliamentarism and the constitutional system as a whole. The normative analysis and the comparative method revealed differences in the procedures for the protection of vital national interests in the entities, on the one hand, and on the BiH level, on the other. The author presents the imperfections of these institutes, suggesting possible solutions, but at the same time emphasizing their essential value in the complex and segmented BiH. At the very end, the author concludes that the mechanism of protection of vital national interests in the BiH Parliament is relative, for which the Constitutional Court of BiH is responsible, and points out the importance of entity voting mechanisms, which expediently protects the rights of entities and constituent peoples.","PeriodicalId":211237,"journal":{"name":"Arhiv za pravne i drustvene nauke","volume":"363 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136007776","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}

{"title":"A look at the development of the treasury","authors":"Predrag Stojanović","doi":"10.5937/adpn2302061s","DOIUrl":"https://doi.org/10.5937/adpn2302061s","url":null,"abstract":"In this paper, the author aims at providing a comparative and historical view of the issue of the development of the treasury institute as one of the supporting pillars of the public finance system. To that end, a review of the genesis of this institution in the most significant comparative systems and the domestic legal area is presented. Treasury business does not mean exclusively executing orders from the Central Bank, but it is necessary to differentiate as many functions as the budget execution process requires. Traditional vaults had predominantly a cashiering and control function, so that, later on, the banking function, which implies the independence or great autonomy of the vault, would became significantly more visible. In contemporary conditions, we can see it as a parabanking institution.","PeriodicalId":211237,"journal":{"name":"Arhiv za pravne i drustvene nauke","volume":"91 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136007767","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}

{"title":"Contribution to discussions about existence of the constitutional law of the European Union","authors":"S. Zečević","doi":"10.5937/adpn2301009z","DOIUrl":"https://doi.org/10.5937/adpn2301009z","url":null,"abstract":"In relation to the topic, the formal absence of a legal text called the constitution of the European Union is noticeable. Simple logic dictates the conclusion that in absence of European constitution, there is no constitutional law of the European Union. However, the reality is much more complex than it seems. The United Kingdom, for example, does not have a written act called a constitution, but instead several constitutional contents whose sources are in laws, legal practice and so-called constitutional customs. Germany also formally does not have a constitution, but a Fundamental Law that pursue a constitutional role. The term is not apparently so important but the status of the text. The constitution is a set of norms that are supreme, stable and difficult to change. It accords competences to the state bodies and guarantee essential civil rights and freedoms. The relevant question in this case is the existence of constitution and constitutional law of the European Union, not in a formal, but in an essential sense. The European Union does not have the characteristics of a unitary, but could it be considering as a federal state? In political-legal theory, opinions appeared that such a thing is impossible for the following reasons. As an example of the emergence of a federal state, the history of the United States of America is cited. According to the constitution of 1878, the US received competences in foreign affairs, defense, monetary policy, as well as in the field of protection of fundamental rights and freedoms. The European Union rested on the process of federalization in the economic area. The treaties establishing the Community and the Union have merged the national markets of the member states into one. Originally the European Communities did not have powers in foreign affairs, defense, security and justice. Only in 1993, with the Maastricht Treaty, the newly created European Union get the possibility to take decisions in the aforementioned areas, but even then federal mechanisms were not applied. The rule was unanimous decisions of represents of member states government reassemble in the Council of EU. The state sovereignty was preserved. For the obvious lack of authority at the supranational level, the European Union cannot currently be considered as a classic federal state. However, it can be observed as a sort of federal community, which was originally intended to evolves into something more than that. In a historical sense, this situation in itself is not new. It also appeared in the 19th century with the so-called emerging federal states such as the United States of America, the Swiss Confederation, Germany, Canada or Australia. However, the European Union is a permanent political-legal structure that has certain attributes of a federal state. The notion of a federal community, allows to take into account the essential role of the member states in such system of integration. The federal community as a permanent entity, rests on t","PeriodicalId":211237,"journal":{"name":"Arhiv za pravne i drustvene nauke","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128724155","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}

{"title":"Criminal offense of HIV infection transmission","authors":"Jelena D. Stanisavljević","doi":"10.5937/adpn2301081s","DOIUrl":"https://doi.org/10.5937/adpn2301081s","url":null,"abstract":"Given that AIDS is an incurable, deadly disease that can be prevented by simple preventive measures, the intention of the Serbian legislature to make the transmission of HIV infection a criminal offense is justified. However, infection with HIV represents a specific disease, which makes the criminal act of transmitting infection with HIV specific too. For the crime to be prescribed adequately, it is first necessary to understand the nature of the disease, the ways of its transmission, and also the psychology of the infected person, that is, the potential perpetrator. The current legal text shows that the legislator has not fully coped with this challenge. In the current legal text that prescribes the criminal offense of transmitting infection with HIV, there are certain shortcomings that we must point out. First of all, the legislator failed to foresee the possibility of punishing persons who knowingly transmit HIV infection to others, even though they are not infected themselves, but this form of offense was foreseen only for HIV-positive persons. Then, the legislator foresees the occurrence of the qualifying circumstance only for the act from paragraph 3 of Art. 250, and not for the offense from paragraph 2 of the same article, although death occurs in all cases when HIV infection reaches the terminal stage. Also, the position that prescribes the negligent form of the act is vaguely formulated and leads to confusion in which situations the act can have a negligent form. The way in which the criminal offense is currently prescribed makes it almost impossible to prove the connection between the action and the consequence, and therefore difficult to prove the guilt of the perpetrator, as evidenced by the fact that in 15 years there have been only two convictions for this crime. The (un) achieved results speak in favour of the fact that it is not enough to just prescribe a criminal offense, but that the problem of criminalizing HIV transmission must be approached in a different and systematic way.","PeriodicalId":211237,"journal":{"name":"Arhiv za pravne i drustvene nauke","volume":"485 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122177016","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}

{"title":"The influence of Serbia's historical constitutions on its modern constitutional identity: 30 years since the return of the liberal-democratic constitutionality","authors":"V. Petrov, M. Đorđević","doi":"10.5937/adpn2301097p","DOIUrl":"https://doi.org/10.5937/adpn2301097p","url":null,"abstract":"In this paper, the basic features of Serbian historical constitutions are analyzed, with the special reference to the Constitution of 1990, since it sets a milestone and a starting point for the return of the liberal-democratic constitutionality in Serbia. In the literature dealing with the concept of constitutional identity, it has been established that one of the main sources of constitutional identity is national constitutional history. In our opinion, four of the “old” (historical) Serbian constitutions could be perceived as relevant factors for the establishing of the constitutional identity of modern Serbia – the constitutions of 1835, 1869, 1888 and 1990. After explaining key features of these constitutions (especially the Constitution of Serbia of 1990), we will try to offer a new periodization of Serbian constitutional history – according to the criterion of relevance to the definition of contemporary constitutional identity.","PeriodicalId":211237,"journal":{"name":"Arhiv za pravne i drustvene nauke","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130874914","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}

{"title":"Umesto parlamentarne hronike","authors":"Vladan Petrov","doi":"10.5937/adpn2301117p","DOIUrl":"https://doi.org/10.5937/adpn2301117p","url":null,"abstract":"","PeriodicalId":211237,"journal":{"name":"Arhiv za pravne i drustvene nauke","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125029149","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}

{"title":"The Fundamental Agreement between Montenegro and the Serbian Orthodox Church: A challenge and/or transformation of the understanding of the principle of secularity in Montenegro?","authors":"Vasilije V. Marković","doi":"10.5937/adpn2301029m","DOIUrl":"https://doi.org/10.5937/adpn2301029m","url":null,"abstract":"The author analyzes the interaction between the signed Fundamental Agreement between Montenegro and the Serbian Orthodox Church and the principle of secularity proclaimed in the Montenegrin Constitution. After a brief outlook on comparative European solutions, the author stands for the position that Montenegro belongs to systems in which there is (still) a strict type of separation, as opposed to the increasingly present and preferable model of cooperative separation. Starting from the socio-political circumstances that immediately preceded the moment of signing, the author puts forward a thesis according to which, although the amended Law on Freedom of Religion already indicates something like that, the Fundamental Agreement can be the turning point in the evolution of the understanding of the relationship between the state and the church in Montenegro, as a relationship that should be based on mutual cooperation and non-excludability. This thesis attempts to be proven both through the presentation of views on the legal nature of the Fundamental Agreement, as a general act, but not a classic by-law, and the place it has or should have in the hierarchy of legal acts due to its aforementioned sui generis nature, as well as through the analysis of the content of the Fundamental Agreement, i.e. parts of the Preamble and provisions on guaranteeing the public powers of the SPC in the first place. Finally, the desired evolution of the constitutional relationship between the state and the church in Montenegro is seen through the prism of a partial reshaping of the constitutional identity, in which the Constitutional Court of Montenegro can also play a significant role, if accepts to decide on the submitted initiative for the judical review of the Fundamental Agreement.","PeriodicalId":211237,"journal":{"name":"Arhiv za pravne i drustvene nauke","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116348520","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}