Pravni zapisi

THE COMMONS AND ANTICOMMONS IN THE REFORM OF PROPERTY LAW: AN ILLUSTRATION THROUGH THE NEW BELGIAN CIVIL CODE

Vincent Sagaert — 2024-12-12

A property law reform is, in all periods, a most foundational exercise. It determines and translates the (developments in the) relationship of humans with natural resources. This article deals with property law reform in the early 21st century, as it seeks a balance between exclusion and inclusion, the commons and the anticommons, and pursues the protection of sustainability. Apart from other comparative observations, this article takes the new Belgian Civil Code, and especially the property law book, as an example in order to illustrate these developments.

JUDICIAL SELF-GOVERNANCE IN SERBIA: CHALLENGES TO AND RESULTS OF A QUANTITATIVE APPROACH

Ana Knežević Bojović — 2024-12-11

Serbia has been continuously changing its judicial regulation landscape since 2000, in an effort to assert judicial independence and judicial self-governance, under strong EU external conditionality. The authors utilize the Judicial Self-Governance Index developed by Šipulová et al. as the main methodological tool aimed to determine whether the achieved level of judicial self-governance in Serbia is consistent with the demands of external conditionality. The research shows that judges control over 50% of relevant competencies, with a gradual increase in judicial self-governance in Serbia during the 2003–2023 period. This is consistent with the external conditionality demands and with the de iure implementation of the judicial council model. The research also points to some limitations of the applied methodology and highlights the need for a comprehensive examination of de facto judicial self-governance, while giving due regard to all integral parts of the complex rule of law principle.

LEGAL CONSEQUENCES OF SPECIAL TAX REGIMES FOR INDIVIDUAL ENTREPRENEURS IN POST-TRANSITION ECONOMIES

Vladimir Tiutiuriukov — 2024-12-11

This paper provides a comparative legal analysis of the practice of four post-transition economies (Czechia, Kazakhstan, Russia, and Serbia) with special tax regimes for individual entrepreneurs from 1990s till now. We analyze the eligibility criteria and main elements of each special tax regime – whether based on lumpsum tax, on taxation of imputed income, or on taxation of actual income – on a country-by-country basis, for both existing and abolished regimes. The legal implications are also explored. In the conclusion, the paper compares and contrasts their features to identify the advantages (such as consistency of tax system, decrease in compliance burden, automatic adjustment for inflation) and deficiencies (taxpayer uncertainty, susceptibility to abuse of law and tax avoidance).

THE ROLE OF DILEMMAS IN LAW

Sara Azevedo — 2024-12-11

It is widely recognized that the application of legal norms can lead to normative conflicts. Alongside the notion of normative conflict, the concept of legal di- lemma has gained prominence, although its use in legal discourse raises several questions. First, the concept of legal dilemma is a reproduction, mutatis mutandis, of the concept of dilemma developed in moral philosophy. Second, some legal scholars focus exclusively on constitutional dilemmas (i.e., legal dilemmas involving constitutional norms), seemingly assuming that this is a phenomenon limited to the application of constitutional norms. This paper examines how the concept of dilemma is defined in moral philosophy and discusses whether and to what extent the proposals developed in that field can be imported into the legal world. The aim of this paper is to clarify what is usually meant by legal and constitutional dilemmas, and to identify the advantages and inconveniences of using these concepts in legal discourse.

MEDIATION IN SHAREHOLDER DIVORCE DISPUTES IN CLOSELY HELD COMPANIES IN SERBIA

Ljubica Tomic — 2024-12-11

The author analyzes disputes regarding shares in closely held companies, when couples are going through divorce. The Serbian legal framework does not provide regulations specifically for the addressed matter and the court practice is inadequate. This type of dispute is accompanied by risks to the existence of companies and the families, if not resolved in a timely manner. Mediation is generally applicable, whereby each particular case requires the assessment of mediation applicability criteria, such as gender and other sources of imbalance between the spouses. Mediation shows advantages in terms of time, confidentiality, the possibility of simultaneous resolution of multiple disputes, high voluntary fulfilment rate, and the possible improvement of relations between the parties. The inclusion of mediation clauses in shareholder agreements and in marital agreements is recommended.

THE GEM HIDDEN BEHIND PREDICTABILITY: DISCUSSING EFFICIENCY IN AND OF INVESTMENT ARBITRATION

Nataša Rajković — 2024-12-11

The paper discusses the status quo regarding efficiency in investment arbitration and suggests how predictability of the arbitral outcome can improve both efficiency in and of investment arbitration. First, the paper will address the cost and duration of investment arbitration. Second, it will look at the provisions of the 2022 ICSID Arbitration and Mediation Rules, as well as UNCITRAL Working Group III Draft Provisions, aimed at increasing efficiency in investment arbitration. Third, it will present efficiency in and of investment arbitration, on the one hand, and predictability, on the other, as intertwined issues. Fourth, it will use the intra-EU jurisdictional objections ratione personae and voluntatis as examples of how the unpredictability of arbitral outcomes reduces the efficiency in and of investment arbitration. Fifth, it will present some of the solutions that could improve efficiency in and of investment arbitration.

REFLECTIONS ABOUT THE SAMENESS OF HUMAN RIGHTS ONLINE AND OFFLINE

Vesna Crnić-Grotić — 2024-12-11

The article explores whether and how the concept of the sameness of human rights online and offline can be justified. The comparative method analyzes changes in the meaning and scope of four human rights when transposed from the nondigital to the digital domain: the right to education, nondiscrimination, freedom of expression, and privacy (emphasizing the right to be forgotten). These rights are examined through shifts in meaning, related state duties, and the role of private actors. The theoretical framework is the non-coherence theory of digital human rights, which asserts that online and offline human rights align only at a general level. As the scope and meaning of rights become more specific, they diverge, though the abstract concept of sameness remains. This generic feature of human rights supports the argument that they are domain-independent.

SRPSKI GRAĐANSKI ZAKONIK TOKOM ISTORIJE

Dragoljub Popović — 2024-12-11

Srpski građanski zakonik (SGZ) iz 1844, sačinjen po ugledu na austrijski Opšti građanski zakonik (ABGB), predstavljao je recepciju austrijskog privatnog prava. Tokom primene SGZ došlo je do prihvatanja različitih kulturnih uticaja i spontane recepcije francuske pravne doktrine u Srbiji. U zajedničkoj jugoslovenskoj državi SGZ je bio kohezioni činilac, zato što je u najvećem delu zemlje u primeni bio ABGB, koji je bio izvornik SGZ. Socijalistička revolucija je abrogirala čitav korpus starog prava. Sudovi su ipak primenjivali odredbe SGZ, ako nisu bile u suprotnosti s tekovinama revolucije. Sudska praksa na osnovu SGZ nije zauzela mnogo mesta ni u pravnoj nauci, ni u univerzitetskoj nastavi. SGZ je u istoriji našeg prava igrao važnu ulogu zato što je, usvojivši romanističku osnovu austrijskog prava, učinio Srbiju zemljom evropskog kontinentalnog prava. Bio je značajan i za stvaranje terminologije srpskog privatnog prava, a neke odredbe SGZ, uprkos proteku vremena, još uvek su aktuelne.