Pravo i privreda最新文献

{"title":"Javni poredak i nužni deo","authors":"Aleksandar B. Jakšić, Dejan Đurđević","doi":"10.55836/pip_24101a","DOIUrl":"https://doi.org/10.55836/pip_24101a","url":null,"abstract":"Testamentary freedom is one of the basic pillars of inheritance law in any legal system. In Eurocontinental law, it is limited, inter alia, by the right of the heir to a statutory portion (forced heirship). On the other hand, Anglo-Saxon law does not recognize the forced heirship. In Europe, there is a tendency to narrow the circle of mandatory heirs. Testamentary freedom is guaranteed in modern Constitutions, while, on the other hand, it is disputed whether the right to inheritance, guaranteed by the Constitutions, also includes the right of heirs to a mandatory portion. In German law, which is based on the decision of the Federal Constitutional Court from 2005 the right to a forced heirship is considered as a part of public order, even as a part of international public order. On the contrary, in France and Hungary, in situations of crossborder inheritance, the right to a forced heirship does not belong to the domain of international public order. Considering the language and aim of Articles 58, 59 and 66 of the Constitution of the Republic of Serbia, it is difficult to argue that the heir’s right to a mandatory share is covered by the constitutional guarantees enshrined in Articles 59 and 66. On the contrary, Article 58, which guarantees peaceful enjoyment of property rights, and Article 23 (2), guarantee freedom of testamentary disposition. The same is the case with the European Convention on Human Rights, which guarantees freedom of testamentary disposition, but not the right to inherit. A foreign law that does not recognize the right to a forced heirship is not contrary to domestic public order. It is possible that the foreign law contains some kind of functional equivalent that aims to financially secure the mandatory heirs which is the case in Anglo-Saxon legal systems. The application of the lex fori fori allong with the application of the lex successionis is contrary to the principle of fairness in Private International Law. Also, it results in dépécage which is undesirable in PIL and runs counter to the principle of the unity of inheritance property. The application of foreign law governing the inheritance in the Serbian PIL could be limited only in exceptional cases. For example, when the foreign applicable law does not recognize any functional equivalent to a mandatory portion or when the foreign applicable law does not recognize the decedent’s minor children any claim to the inheritance property, so that they remain deprived of means necessary for life and, therefore, fall under the burden of state social assistance. Also, for the application of the part of lex fori, it would be necessary that the case of crossborder inheritance is closely related to domestic legal order. For example, that the mandatory heirs are citizens of Serbia with domicile in Serbia.","PeriodicalId":306662,"journal":{"name":"Pravo i privreda","volume":" 30","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140217026","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":"Korporativno upravljanje privrednim društvima u vlasništvu države","authors":"Jelena Lepetić","doi":"10.55836/pip_24103a","DOIUrl":"https://doi.org/10.55836/pip_24103a","url":null,"abstract":"This paper analyses the rules on corporate governance which are provided for by the Law on Management of State-Owned Companies. At the beginning, the complexity of regulating this issue is indicated as well as the existence of soft law instruments at the international level which influenced the Serbian legislator. Then, the specifics of the new legal regime regarding state-owned company’s bodies are presented in the central part of the paper. First, special rules which refer to the state representatives in the general meeting of shareholders are presented, followed by those which refer to supervisory board members and finally those which refer to the directors. Bearing in mind that the provisions of the Law on Public Enterprises remain relevant for certain companies, the solutions regarding corporate governance provided by that Law are presented as well. At the end of the paper, it is assessed that the legal regime has certainly been approved but certain shortcomings are noted as well.","PeriodicalId":306662,"journal":{"name":"Pravo i privreda","volume":" 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140212330","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":"Zaštita državine kroz samopomoć - granice dopuštenosti","authors":"Darko Stevanović","doi":"10.55836/pip_24104a","DOIUrl":"https://doi.org/10.55836/pip_24104a","url":null,"abstract":"Possession, as a factual authority or a condition, draws attention through the necessity of its protection. Despite the fact that the possession is not a right by itself, there is a right to protect possession. The core of the paper consists of an analysis of the existing (domestic) judicial practice and the inconsistency in assessing the fulfilment of conditions for the permissibility of self-help. In the same section, contemporary problems in the application of this legal institute would be presented through an analysis of cases of overstepping the boundaries of self-help and transition into the sphere of self-authority. Special attention will be paid to the question which has arisen in the recent past in Serbia – whether self-help can be exercised preventively and what are its limits? It is emphasized that when assessing the justification of self-help, all the circumstances of the case should be taken into account, where, in addition to the manner and intensity, the circumstances under which the person resorted to self-help should be determined. In the conclusion of the paper, the idea of self-help as an extra-judicial means of protection is justified by the very practical reasons of reducing the workload of the courts and the tendency to reduce the number of possession proceedings and subsequent problems in the implementation of court decisions.","PeriodicalId":306662,"journal":{"name":"Pravo i privreda","volume":" 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140217654","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":"Obavezno osiguranje vlasnika motornih vozila od odgovornosti između slobode ugovaranja i prinudne kartelizacije","authors":"Dijana Marković-Bajalović","doi":"10.55836/pip_24102a","DOIUrl":"https://doi.org/10.55836/pip_24102a","url":null,"abstract":"The European Union enacted directives on motor vehicle liability insurance to accomplish the goals of free movement of persons and equal protection of third parties against damages caused by using motor vehicles. Serbia has been harmonising its legislation with the EU insurance acquis for several decades. Regarding motor vehicle liability insurance, market liberalisation has been prevented by the Law on Compulsory Insurance in Transport – LCIT 2009. LCIT authorised the Association of Insurers of Serbia to determine minimal premium prices with the consent of the National Bank of Serbia – NBS and stipulated mandatory Bonus-Malus System – BMS. Effectively, the NBS laid down minimal premium prices applicable within the BMS grades and conditions for the application of bonuses and maluses. The author analyses EU legislation and the case law of the Court of Justice related to fixing insurance premiums, mandatory BMS and competition law issues in the motor vehicle liability insurance market. The BMS in several EU member states has been compared with the BMS in Serbia. Competition in the motor vehicle liability insurance market in Serbia has been prevented as a consequence of the fixed premium prices and mandatory BMS. The author has also analysed the negative effects of the current legal framework on the motor vehicle liability insurance market structure, pointing out the static market concentration level and the substantial share of motor vehicle liability insurance premiums in the total insurers’ income. It is essential to amend LCIT without delay to liberalise the Serbian motor vehicle liability insurance market.","PeriodicalId":306662,"journal":{"name":"Pravo i privreda","volume":" 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140212681","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":"Princip srazmernosti premije težini rizika na primeru osiguranja od odgovornosti vlasnika motornih vozila – podzakonska aktivnost Narodne banke Srbije","authors":"Nataša Petrović Tomić","doi":"10.55836/pip_23302a","DOIUrl":"https://doi.org/10.55836/pip_23302a","url":null,"abstract":"Principle of the proportionality of the premium to the weight of the risk is one of the fundamental rules of insurance law. Having in mind the importance of the motor liability insurance for the national market of insurance as well as its compulsory character, supervisory body prescribes the sequence of steps which should be taken in order to change premium tariffs. Procedural order aims to make it easier for the supervisory body to convince itself of the justification of the tariff change. If it emerges from the submitted documentation that the insurance company is faced with an increase in the price of auto parts due to inflation, it is logical to increase tariffs. Author concludes that detailed standardization of the procedure for changing the premium tariff contributes to sustainable supervision in insurance and the protection of consumers of insurance services, which is an indispensable part of well-founded strategy of ESG.","PeriodicalId":306662,"journal":{"name":"Pravo i privreda","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135966064","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":"Third-Party Patent Litigation Financing in the United States: Do You Know Who is Sitting in Your Courtroom?","authors":"Nikola Dragić","doi":"10.55836/pip_23311a","DOIUrl":"https://doi.org/10.55836/pip_23311a","url":null,"abstract":"The goal of this paper is to present the current landscape of third-party litigation financing in the United States—namely, patent disputes, as well as a brief insight into the litigation funding business. In the last ten years, patent litigation brought by patent trolls has increased, creating a significant problem. First, this paper explains the basic rules of federal civil procedure that relate to deciding which court will hear a patent case. Next, this paper discusses the Nimitz case before the United States District Court for the District of Delaware, which gained publicity due to the non-disclosure of certain facts by Nimitz’s counsel to the court. Finally, the author recognizes problems raised after the Nimitz case in connection to third-party litigation financing.","PeriodicalId":306662,"journal":{"name":"Pravo i privreda","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135967341","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":"Zaštita konkurencije na tržištu digitalnih usluga","authors":"Andrej Mićović","doi":"10.55836/pip_23309a","DOIUrl":"https://doi.org/10.55836/pip_23309a","url":null,"abstract":"The article analyzes the rules contained in the EU Regulation 2022/1925, which seek to provide business users and end users with core platform services and ensure appropriate regulatory safeguards against unfair practices of service providers, who have the status of gatekeepers. When core services are provided by gatekeepers, as persons who exercise significant market influence, the risk of distortion of market competition increases significantly. That is why the Regulation defines a series of measures with the aim of achieving, first of all, ex ante effects on the possibility of unlimited market competition and fairness in the digital sector. With the aim of preventive protection of the digital service marketplace, the Regulation prescribes what the providers of core platform services must not do, or what they are obliged to do and the powers of the Commission in terms of market research. After the conducted research, the Commission can issue an implementing act ordering gatekeeper to stop non-compliant behavior within a reasonable period of time, as well as impose sanctions in the form of fines and periodic penalty payments.","PeriodicalId":306662,"journal":{"name":"Pravo i privreda","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135966063","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":"Akti državnih organa kao viša sila u ugovorima o međunarodnoj prodaji nafte i gasa","authors":"Maša Mišković","doi":"10.55836/pip_23306a","DOIUrl":"https://doi.org/10.55836/pip_23306a","url":null,"abstract":"This paper examines the effect of public authorities’ acts on performance of obligations in contracts for the international sale of oil and gas. The question arises as to whether such acts represent force majeure that the contracting parties can invoke in order to exempt themselves from the performance of contractual obligations and from contractual liability. This question is analysed through arbitral awards and court decisions in disputes that have arisen on this issue since 1970s. The issue has become particularly relevant since April 2022, when the Decree on the transition to payment for natural gas in rubles had been adopted. Particular attention has been drawn to the fact that the first arbitral award has already been issued, in which abovementioned Decree, as an act of a public authority (president of the state), is qualified as force majeure. The answer to the question of whether the acts of public authorities represent force majeure in contracts for the international sale of oil and gas is not unequivocal, as it depends on the circumstances of each specific case.","PeriodicalId":306662,"journal":{"name":"Pravo i privreda","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135967339","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":"Pravna (ne)osnovanost naknade za održavanje bankarskog tekućeg računa","authors":"Svetislav Janković","doi":"10.55836/pip_23304a","DOIUrl":"https://doi.org/10.55836/pip_23304a","url":null,"abstract":"In the article, the author considers the justifiability of banks’ right to charge the client with the basic costs and fees regarding the banking current account. Although it seems fair that the bank has the right to a maintenance fee and provision, after reviewing the legal nature of bank current account, the author concludes converse. It is particularly present in the case of M-Banking where the client completely autonomously creates and performs the payment order. This is because the client does it on its own mobile phone or PC with his own actions and not the bank’s servants’ actions. Therefore, it seems fair to deprive the bank of this right in favor of its client, or if one wants to be more equitable, to entitle the bank with the aforementioned rights, but at the same time to entitle the client with a right to interest on his positive balance.","PeriodicalId":306662,"journal":{"name":"Pravo i privreda","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135966066","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":"Načelo nezavisnosti i prevara u poslovima dokumentarnog akreditiva i samostalne bankarske garancije","authors":"Marija Spasić","doi":"10.55836/pip_23310a","DOIUrl":"https://doi.org/10.55836/pip_23310a","url":null,"abstract":"This paper analyzes the independence principle and the impact of fraud on the obligation to pay letter of credit or guarantee amount in documentary letter of credit and independent bank guarantee. The independence principle implies that participants in legal relations base their rights and obligations only on facts of the relations in which they find themselves in. The most important exception to independence principle is fraudulent claim for collection. First of all, rules of the ICC and UNCITRAL were discussed. It is necessary to start from rules of these organizations because they adopted the most important autonomous sources of law for these transactions. Then, rules of American and German law are analyzed with the aim of determining the necessary standard of fraud in these legal systems, since this issue is not regulated in detail in Serbian law. Therefore, it is necessary to consider comparative solutions. In the last part, fraud is discussed from Serbian law point of view. In Serbian law, the most important mechanism for protection against fraud are court interim measures which prohibit payment of the letter of credit, i.e. the guarantee amount.","PeriodicalId":306662,"journal":{"name":"Pravo i privreda","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135966415","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}