Suchergebnisse

The development of both conventional and written legal rules that were governing the roots of the administration, has run in parallel with the development of the country. The development of legal state was going parallel with the development of constitutional state. The legal state can not be imagined without pandering Administration under the law, but precisely because of it stems judicial control of management, which is necessary for the full realization of the principle of legality and the protection of rights and legal interests of citizens. Administrative action presents a means to protect the rights and interests of citizens, but on the other hand it is also an effective tool for ensuring the legality of administrative operations. Pandering administration under the law is linked to the French Revolution from 1789, in this respect, France is a country that is the first to introduce an administrative dispute. The development of an administrative dispute in France can be followed through the occurrence and development of the State Council, which was formed during Napoleon time in 1799. The legal institutionalization of the administration is not done in the same way everywhere, in that sense we distinguish two big legal systems, Anglo-Saxon and European-continental. In Anglo- Saxon law legal institutionalization of the administration included the procuring administration under the legal norms of general law, management control exercised by courts of general jurisdiction. In the European-continental law legal institutionalization of the administration departs from pandering Administration under the legal standards that belong to a specific branch of law administrative law. In the European- continental system there is a difference between private and public law, and an important part of the legal regime are special administrative courts. The development of an administrative dispute actually juridical control of administration in Serbia can be traced back to the second half of the 19th century. Although Serbia has created very early the State Council following the example of France, in a formal sense the administrative dispute in Serbia was fully introduced by the Constitution from 1869. At our place administrative activities are controlled by the courts, which are an integral part of the judiciary and acting under special rules, rules of administrative law. Depending on the positive law of certain countries, the subject of administrative dispute is defined broadly or narrowly. According to French positive law the subject of administrative dispute may be not only single authoritative legal acts of administration, but also the general acts of administration - implementing regulations issued by the administration, as well as administrative objections. According to French positive law the subject of administrative dispute is defined very broadly, unlike the German and Austrian positive law, where an administrative dispute can not be conducted against all acts of general administration. Regarding that in the comparative law we meet a number of different solutions, we believe that in our country we should choose the one that would be the best way to provide protection for the rights of citizens. We lead the administrative dispute in the first place about the legality of final administrative act against other individual legal acts because of the silence of administration, and it may be decided on the request for the return of items and damages. The results of scientific studies will confirm the importance of the need that the subject of the administrative procedure should be complied with the case of an administrative dispute. All acts adopted in the administrative procedure should have directly open the way so the control of legality can be accomplished in administrative proceedings in front of the competent administrative court. What is certainly a major challenge is a control of the legality of administrative contracts. Extended subject of administrative dispute will strengthen the position of the parties in the administrative procedure, in order to guarantee them the quality of court protection in front of the Administrative Court.

The modern state administration and its bodies and special organizations should act in the field of the rule of law. It is a term that originates from the Anglo-Saxon legal world, but it is also a category and a principle of the Constitution of Serbia from 2006. The paper points out the different understandings of the rule of law and briefly looks at the position of the administration or the phase in its historical course until its subsumption under the principle of legality. In Serbia, state administration bodies consist of ministries, administrative bodies within the ministry and special organizations. Administrative or special organizations are formed by the state in order to perform professional and related administrative tasks. In order to permanently and unhinderedly perform the professional work of these organizations, they can act authoritatively. Special organizations have numerous and diverse administrative powers. The paper points out both the similarities and differences of special organizations in relation to administrative bodies. A review of the activities and organizational structure of all special organizations (secretariats, institutes, directorates and one center) established by the Law on Ministries from 2020 was performed. It was also pointed out that all institutes: the Republic Institute of Statistics, the Republic Hydrometeorological Institute, the Republic Geodetic Institute and the Intellectual Property Institute are special organizations that provide services to interested parties. In one part of the final considerations, the author states that for special organizations (as part of the state administration) it could be concluded that they really operate in the field of rule of law as an order with positive properties as characterized by the Constitution, it is necessary to strictly respect the principles organization of state administration prescribed by the Law on State Administration: independence and legality; expertise, impartiality and political neutrality, effectiveness in exercising the rights of the parties, proportionality and respect for the parties; publicity of work. ; Published

The author distinguishes between the antiquity's and Middle Ages' teachings on natural law and justice as a virtue and the modern-age Hobbes' theory of the prerequisites of the legal system. Hobbes' theory identifies the prerequisites of the legal system and describes the institution of legal constraint which guarantees the rule of law. The author points to the central historical difference between these paradigms. Finally, the author traces the evolution of Hobbes' paradigm in Kant's philosophy of right. (SOI : PM: S. 276)

The author claims that classical liberalism solely recognizes the individualist perspective of maximizing individual profit & totally bypasses the issue of solidarity. Only as the consequence of workers' movement & the Marxist critique of the freewheeling market did the welfare state emerge to make up for the lack of solidarity. The welfare state, however, is based on a combination of the opposing principles: freedom & social justice, the state of law & social responsibility, the right to an unfettered individual development & the limitations to individual freedom through welfare institutions. The contradictions & the crisis of the welfare state have resulted in a series of criticisms. Contrary to the liberal & social-democratic critique, the author bases his position on the precepts of a bourgeois society as an ambience of civic solidarity. Such an attitude takes the civic responsibility for granted not only regarding legal & political but also social prerequisites for practicing civic autonomy. Adapted from the source document.

The author claims that classical liberalism solely recognizes the individualist perspective of maximizing individual profit & totally bypasses the issue of solidarity. Only as the consequence of workers' movement & the Marxist critique of the freewheeling market did the welfare state emerge to make up for the lack of solidarity. The welfare state, however, is based on a combination of the opposing principles: freedom & social justice, the state of law & social responsibility, the right to an unfettered individual development & the limitations to individual freedom through welfare institutions. The contradictions & the crisis of the welfare state have resulted in a series of criticisms. Contrary to the liberal & social-democratic critique, the author bases his position on the precepts of a bourgeois society as an ambience of civic solidarity. Such an attitude takes the civic responsibility for granted not only regarding legal & political but also social prerequisites for practicing civic autonomy. Adapted from the source document.

Pravo na samoodređenje naroda jedno je od najspornijih pojmova u međunarodnome javnom pravu. Jednako tako, taj je pojam ne samo pravni već i filozofski, politološki, sociološki i povlači za sobom razna pitanja i reperkusije. Zbog toga se njegovoj analizi treba pristupiti detaljno, postupno i interdisciplinarno kako bi se sagledali razni važni aspekti toga pojma koji dovode do odgovora na pitanje je li samoodređenje naroda princip ili pravo i koga se tiče, je li to pravo jus cogens de facto i de iure ili je uvjetovano i ograničeno drugim pravilima suvremenoga međunarodnopravog poretka. Tu se prije svega misli na kogentnu zabranu narušavanja teritorijalnoga integriteta postojećih država te ugrožavanja međunarodnoga mira i stabilnosti proklamiranih još u Povelji Ujedinjenih naroda. To povlači za sobom razmatranje načela uti possidetis i njegovih korijena i obveznosti primjene, jednako kao i secesije kao najčešće posljedice afirmativnoga ostvarivanja prava na samoodređenje naroda. Također se na to nadovezuje i pitanje disolucije država, najčešće federalnih, za koju se treba proanalizirati ima li ona materijalne razlike s obzirom na secesiju koja također nije izrijekom ni dopuštena ni zabranjena. Autor sve te povezane pojave i pojmove interpretira kroz nama najbliže poznat slučaj, i dalje nedavnoga, raspada bivše Jugoslavije koja je bila moderni presedan za federalne države, a ima odjeka i u aktualnim zbivanjima poput onih u Ukrajini i Španjolskoj. Da bi se imao još potpuniji dojam o povezanosti prava, politike i raznih interesa, progovara se i o konstitutivnosti naroda, manjinama i njihovim pravima na osnovi raznih dokumenata i mišljenja teoretičara te i o državotvornosti i državnom priznanju za koje jednako tako nema konsenzusa o tome je li ono konstitutivni ili deklaratorni akt trećih država i međunarodne zajednice. Da bi se izbjegao najgori mogući scenarij, a to je onaj prihvaćanja pravnoga "statusa quo", treba kroz otvoreno raspravljanje i davanje prijedloga de lege ferenda precizirati pravnu problematiku kako se ne bi političkim i javnim diverzijama ili distrakcijama prikrivali interesi koji su ili suprotni duhu Ujedinjenih naroda ili su, s druge strane, legitimno suprotstavljeni jedni drugima. ; The right to self-determination of peoples is one of the most controversial concepts in public international law. Also, this concept is not only legal, but also philosophical, and also pertains to political science, sociology and entails various issues and repercussions. Therefore, its analysis should be approached in detail, gradually and with an interdisciplinary approach in order to comprehend the various important aspects of the concept that leads toward the answer to the following question - Is the self- determination of peoples a principle or a right and what else in involved here? Is this right jus cogens de facto and de jure or is it conditioned by the organic other rules of contemporary international order? This primarily refers to the cogent ban of breaching the territorial integrity of existing states and jeopardizing international peace and stability as proclaimed in the Charter of the United Nations. This entails a consideration of the principle of uti possidetis and its roots, as well as secession, the most common consequence of the affirmative exercising of the right to self-determination of peoples. Also on the continuation and dissolution of states, mostly federal, which is necessary for an analysis whether or not there are any material differences in relation to secession, which is also neither permitted nor prohibited. The author here will interpret our closest known case (one still recent) the breakup of the former Yugoslavia, which was a modern precedent for a federal state and has reverberation in current events like those in the Ukraine. In order to have a more complete impression of law, policy and various interests will also make mention of the constitutionality of peoples, minorities and their rights through a variety of documents and the opinions of scholars and also concepts concerning the nation and state recognition. There is no consensus whether it is a constitutive or declaratory act by third countries and the international community. In order to avoid a worst case scenario, the acceptance of the legal "status quo", it should be openly debated in order to avoid political and public diversions or distractions that hide interests which are either contrary to the spirit of the United Nations or, on the other hand, legitimately opposed to each other. ; Il diritto di autodeterminazione dei popoli è uno dei termini più discussi del diritto internazionale pubblico. Inoltre, questo termine non è soltanto giuridico, ma anche filosofico, politico, sociologico e lega a sé varie polemiche e ripercussioni. È per questo che l'approccio all'analisi del termine dev'essere dettagliato, graduale ed interdisciplinare affinché si possano osservare i vari aspetti del termine che portano alla risposta del quesito se l'autodeterminazione nazionale è un principio o un diritto e relativo a chi, se è un diritto jus cogens de facto e de iure o se è condizionato e limitato da altre norme del diritto internazionale contemporaneo. Qui si parla in primis del divieto cogente di lesione dell'integrità territoriale e della pace internazionale e della stabilità proclamati persino nella Dichiarazione delle Nazioni Unite. Il tutto suppone l'osservazione del principio uti possidetis, delle sue radici e dell'obbligo d'implementazione, come anche della secessione, conseguenza più frequente della realizzazione affermativa del diritto di autodeterminazione dei popoli. Inoltre, ciò è relativo al fenomeno della dissoluzione degli stati, soprattutto federali, per i quali è doveroso analizzare la presenza di distinzioni materiali riguardanti la secessione, la quale di per sé non è esplicitamente né opzionale né vietata. L'autore interpreta i relativi fenomeni e termini per mezzo del caso a noi più vicino e più familiare, la dissoluzione dell'ex Jugoslavia, la quale è stata un precedente moderno per gli stati federali, e che ha ripercussioni anche nei casi attuali dell'Ucraina e della Catalonia in Spagna. Con lo scopo di cristalizzare il legame fra il diritto, la politica e i vari interessi, si parla anche della costitutività dei popoli, delle minoranze e dei loro diritti in base ai molti documenti e alle opinioni degli analitici, ed infine della creazione e del riconoscimento di uno stato, per i quali nemmeno prevale un consenso se si tratta di un atto costituente o declaratorio da parte di terzi e della comunità internazionale. Al fine di evitare degli esiti catastrofici, ossia l'interiorizzazione dello "status quo" a livello giuridico, è opportuno discutere in maniera aperta per precisare la problematica legislativa ed evidenziare gli interessi contrari allo spirito delle Nazione Unite o semplicemente giustificatamente opposti.

In this text, the authors' starting point is that the modern conception of representation, decisively connected with the state as modern type of political order, not only represents a radical cut with regard to pre-modern forms of representation, but is also the result of evolution through which many key elements of the antique and medieval perception of representation were built into the modern perception. This is confirmed by two eminently modern theories of representation: the theory of Hobbes and the theory of Hegel. In both cases, the theories prove to be largely based on the antique and medieval legal-political heritage. With Hobbes, the basis consists primarily of the idea of legal representation, and with Hegel, of the idea of identity representation. Both ideas are gradually developed in civil law and canon law. This part of the text focuses on the part of history of representation which culminated in the perception of representation according to the model of legal representation. For this purpose, the authors first discuss the definition of representation in the Roman period and in early Christianity, and then they investigate how the antique heritage was reinterpreted in medieval civil law and canon law. Adapted from the source document.

Mixed government, which is commonly regarded as a distinctly medieval form of government, is relevant also to contemporary constitutional states. It is the best form of government, since the aristocratic element is a continuous source of virtue, especially of justice, & a check not only on the executive, as the monarchical element which is the seat of political power, & the legislature, as the democratic element which expresses the will of the majority, but also groups & institutions that have the might & will to impose themselves as oligarchies. Mixed government is also the form of government that is practiced by most developed contemporary constitutional states: US, UK, France, Switzerland, Germany, etc. European nobility is the original aristocratic institution, by virtue of the fact that it was a system for the transfer of both virtue & general conditions of life. Three institutions that emerged in the late Middle Ages assumed structures & functions of the nobility. The first is the clergy. When, as a result of the differentiation of feudal society ethical & intellectual virtues of the nobility could no longer maintain general conditions of life, the clergy, by virtue of their abstract knowledge that ranged from philosophy & theology to law & medicine, became a class of new experts in generalities & thereby a new aristocracy. The second modern aristocratic institution is the judiciary, which has a structure & function similar to earlier aristocracies. The task of judges is to establish the highest virtue of constitutionalism. It is justice by law, which regulates general conditions of life in the state & society. What qualifies judges for the task is expertise in the new generality. The expertise includes not only education & experience in law but also impeccable private life & demonstrated professional ethics. The third modern aristocratic institution is the profession, whose most important instance is the legal profession. It shares its structure & function partly with the judiciary & partly with other professions. It seems that modern professions are degenerating. In the key area of data processing, due to rapid changes of technology, professions as systems of the transfer of virtue do not even seem to be possible. Professional aristocracies are replaced increasingly by oligarchies of capitalists & technocrats. Adapted from the source document.

The author looks at a book with the promising title Law and Revolution, particularly, promising to those prone to think about law strategically. Starting from the main points of the book & of some interpretations of legal history that qualify these points, the author then demonstrates how negligible appear to be the possibilities of strategic action in the renewal & development of Croatian law. Adapted from the source document.

Commenting on the article by R. Badinter (1996, this issue), the author contends that experts in international law are not broad-minded regarding the establishment of a state. Most legal experts take for granted the statements of the international judiciary on the existence of certain rules of general international law & consider them validated & indisputable. This fiction has been given support by states, since they uphold only those legal statements that suit their interests. The author analyses the Opinions of the Arbitration Committee on the process of the disintegration & the Criteria for the dissolution of the former Yugoslavia as well as the criteria for the creation of the new states. He considers this precedent as central for international judiciary law. Adapted from the source document.

The author looks into the notion of the rule of law from the functional/logical, & not historical standpoint: he starts from the hypothesis that there is the functional logic of managing social behavior & social developments by means of legal norms. This logic, with some preconditions, creates certain institutions. The recognition of members of a society as free & equal is the fundamental assumption. It means that government agencies have the right of independent action but are at the same time also disempowered. This requires the quality of laws to be evaluated on the basis of rationality & normativity. The second part of the text lists the institutional conditions for the rule of law: division of power, legal restrictions of all government institutions & independent judiciary. A guarantee of basic right must be included in these functional elements. The author thinks that our future is to be marked by social pluralization, the need for security & the concurrent processes of globalization, & individualization. These processes are surely going to affect the institutions of the state of law. 43 References. Adapted from the source document.

What are the doctrinal implications of international responses to the demise of the Socialist Federal Republic of Yugoslavia (SFRY)? Faced with harshly conflicting internal visions of Yugoslav self-determination, the international order - taking direction from the Badinter Commission - reacted in an essentially ad hoc manner against the most manifestly virulent of the competing ethno-nationalisms. In ascribing international legal status to a particular set of constitutionally-established internal boundaries, the Badinter Commission gave a rationale that masked rather than highlighted its departure from existing doctrine, seeking thereby to minimize any implications for the future of sovereignty and s elf-determination. Any effort to invoke the Badinter Commission judgments as evidence of a broader doctrinal transformation, attributing international legal personality to constitutionally-delineated sub-national units more generally, neglects the peculiar context of those judgments and threatens to lend undue support to externally-promoted secessionist projects. Adapted from the source document.

In the introductory part of the essay, the author looks into the connection between the establishment and attributes of the so-called state of law and the legal system of continental Europe. This is followed by his summary of the origins of the idea of the state of law and its historical setting. In the middle part of the essay the author offers a list of values, value principles and the premises of the so-called state of law with the corresponding conclusions about a marked, multi-level/multiple restricted meaning and scope of the (mosdy) dogmatic, formal/legal principles of the so-called state of law. The author concludes the essay with a rough appraisal of the condition of the so-called state of art in the Republic of Croatia. (SOI : PM: S. 157)