Suchergebnisse

Skrbništvo kao institut obiteljskog prava je desetljećima bilo važno, ali ipak neriješeno pitanje. Posljednja reforma obiteljskog prava iz 2014. i 2015. godine donijela je određene promjene koje su objašnjene i zagovarane kao novi doprinos poboljšanju pravnog položaja odraslih osoba s invaliditetom s jedne, te doprinos pravnoj sigurnosti te vladavini prava s druge strane. Obiteljski zakon propisuje da se osoba ne može potpuno lišiti poslovne sposobnosti, već samo djelomice. Možemo se samo zapitati kako se ova odredba može primijeniti, primjerice, u slučajevima kad je ta osoba u komi? Mudar zakonodavac dopušta da suci budu daleko više od samih izvršitelja njegovih namjera. Međutim, čini se da bi mudar sudac pri donošenju odluke o tom pitanju u određenim slučajevima djelovao contra legem, ako bi pokušao dosljedno i sveobuhvatno zaštititi osobu s invaliditetom, što ne može biti prihvatljivo. Stoga je cilj ovog rada dodatno osvijetliti novousvojene odredbe Obiteljskog zakona u odnosu na lišenje poslovne sposobnosti, s općom pretpostavkom da se takva zakonodavna intervencija ne može smatrati ni razmjernom niti učinkovitom. ; Guardianship as a family-law institute has been an important, yet unsolved issue for decades now. The latest family law reform of 2014 and 2015 brought certain changes, which have been explained and advocated for as a new contribution to the improvement of the legal position of adults with disabilities on one hand as well as the legal certainty and the rule of law on the other. The Croatian Family Act proclaims that a person cannot be deprived of legal capacity completely, but only partially. One can only wonder - how can this provision be implemented in cases of a coma for instance? A wise legislator allows judges to be far more than the pure executors of a person with disabilites´ intentions. However, it seems that a wise judge when deciding upon this issue would in certain cases be acting contra legem if attempting to coherently protect the person with disabilities, which cannot be acceptable. Therefore, it is the aim of this paper to shed additional light on the newly adopted provisions of the Family Act as regards the deprivation of legal capacity, with the general premise that such a legislative intervention is neither proportional nor efficient.

Haberle claims constitutional law is a comparative experiential science closely linked with political science with which it shares the research subject. The constitutional state has been going through a permanent process of changes; the central question is who is the prime mover of constitutional changes: constitutional/legal institutions, constitutional/legal science, & political science or public opinion & political culture of citizens? By analyzing the recent history of the changes of the German constitutions he suggests that all these factors contribute to constitutional changes. Nevertheless, as an expert for law & political science, who considers himself as belonging to the wider European scientific community, Haberle thinks that the decisive influences in constitutional changes stem from legal & political sciences & concludes: Sine qua (scientia) mortalium vita non regitur liberaliter (Without science, mortals do not command their life freely). 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.

In this article, the author suggests that in recent years climate change is gravely affecting the stability of the international order. The reason is not only the recklessness of the industrial sector as a source polluter, but also the lack of political will in drafting a global blueprint for creating a unique international climate regime. Even though the effects of climate change are getting worse each year, the selfish interests of states, the realpolitik in foreign policy and anarchy dominate international relations, thus representing an obstacle to creating an international climate regime. The author examines ways to overcome these obstacles to international institutionalization of climate issues by introducing three IR theory perspectives: realist, rationalist and idealist. The synthesis of these three perspectives is that the international climate regime should be decentralized; its legal acts should be drafted from inter-state agreements on specific issues, while its principles should be incorporated to the already existing international legal acts. Adapted from the source document.

There are prima facie reasons why political parties should be recognized as public law persons of the Croatian legal system: Political parties play a leading role in the creation & implementation of the state's will. Continental European legal systems distinguish between public & private law: the Croatian Constitution prescribes that political parties are associations with the features typical of public law persons. What requires analysis is the nature & consequences of the public law personality of political parties. Aristotle's theory of justice is still a useful starting point for distinguishing between public & private law, & between public & private law persons. The theory demonstrates that both the political community & the economic market presuppose standards of conduct that regulate interaction of their members. The standards include two essential types of legal acts, namely, statutes, which are fundamental acts of public law, & contracts, which are fundamental acts of private law. The dichotomy of legal acts implies virtually all the criteria that Roman & Continental lawyers have found important for distinguishing public & private law (source, bindingness, hierarchy, interest, subjects, etc). The division of a legal system into private & public law can be positivized in several ways. However, a liberal, democratic, & social legal system ought to meet the following principles, which guarantee the public law status of political parties: explicit recognition of the public law personality; justiciability; constitutionality; transparency; democracy; solidarity. The principles are followed by the Draft Bill on Political Parties, which was prepared by the Croatian Law Center in May 2002 & was adopted, with some changes, by the Committee on Constitution, Rules of Order, & Political System of the Croatian Parliament in July 2002. 90 References. Adapted from the source document.

U radu se prikazuju neke od temeljnih koncepcija lokalne samouprave koje su se iskristalizirale u literaturi. Prikazuju se koncepcija političke i upravne decentralizacije, marksistička koncepcija komune te pristupi razvijeni u okviru nekih meðunarodnih asocijacija, prvenstveno koncept razvoja zajednice i načelo supsidijarnosti. U nastavku se analizira sadržaj prava na lokalnu samoupravu i njegova zaštita u pravnom sustavu Republike Hrvatske. Poseban naglasak stavljen je na uređenje raspuštanja lokalnih predstavničkih tijela. Nadalje, u radu se kritički analizira uređenje sustava lokalne samouprave u Republici Hrvatskoj. Pri tome se razlikuju dvije faze. Prva, koja je velikom dijelom počivala na koncepciji upravne decentralizacije, dominirala je uređenjem lokalne samouprave u prvih deset godina samostalnosti. Političkim, ustavnim i zakonskim promjenama u razdoblju 2000.–2001., formalno je započela druga faza uređenja lokalne samouprave u Republici Hrvatskoj utemeljena na koncepciji političke decentralizacije. ; The article presents some of the fundamental concepts of local self-government which have crystallized in literature. The concepts of political and administrative decentralisation, the Marxist concept of the commune and the approaches developed within the framework of some international associations, primarily the concept of the development of the community and the principle of subsidiarity are presented. The content of the right to local self-government and its protection in the legal system of the Republic of Croatia, regulation of local self-government and particularly regulation of the dissolution of local representative bodies are analysed. There are two phases of the regulation of local self-government. The first one, mostly based on the concept of administrative decentralisation, dominated the local self-government regulation for the first ten years of its independence. In that phase, the local government did not sufficiently develop its democratic potential, which was the consequence of a number of factors. Among others, the legal framework which regarded local units as instruments of central government, high level of centralisation, undeveloped democratic environment, inadequate territorial division, etc. By political, constitutional and legal changes in the period of 2000/1, the second phase of the local self-government regulation in Croatia formally started. The basic approach to local self-government is dominated by the concept of political decentralisation. Although legal solutions provide for the development of local potentials, there remains the question of the direction of further development of local self-government in the Republic of Croatia. The experience so far has shown that there is still not enough attention paid to the development of local institutions. There are still numerous problems, while there is not enough political will to lead systematically an active decentralisation policy. The policy of enlarging and strengthening of local units is not clear enough. In the end, it is pointed out that along with the basic provisions which regulate local self-government, it is also necessary to use other mechanisms in order to build a modern system of local self-government prepared for European integration.

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 analyzes the relationship among legal nationhood, social nationhood, & democracy in democratic constitutional states. After identifying the definitions of democratic constitutional state, he concludes that it is an efficient structure within which one can investigate the relationship among democracy, legal, & social nationhood. He suggests that these three principles have their normative roots in human freedom, ie, in the freedom of participating in political negotiation, in the freedom from coercion & unjust rule, in the freedom from exigency, & in the free participation in the "we" of the modern industrial, technological & information society. Finally, the author analyzes the tension between the legal & social nationhood which may be fruitful only if democracy contributes to the accomplishment of major social changes that maximize human freedom. Adapted from the source document.

The author looks into the role & the position of judges in Croatia following the democratic changes of 1990 & Croatia's recognition as an independent state of 1991. Three events affected the status & the role of judges: (1) political independence (the formation of a nation-state), (2) state of emergency (war & semiwar), & (3) the changes in the political & the legal system. The author claims that the standard legal/positivist methods, justified in well-ordered & stable societies, are not entirely suitable for transitional societies. Besides the normative models he also provides a brief review of the practice, which deviates from the ideal. The author refers to the major events within the two periods: the wartime years (1991-1995) & the peacetime years (1996-1999). The author talks about the current social & institutional position of the courts & the judges, & points to certain potential sources of troubles for the future reformers. Adapted from the source document.

In this article, the author suggests that in recent years climate change is gravely affecting the stability of the international order. The reason is not only the recklessness of the industrial sector as a source polluter, but also the lack of political will in drafting a global blueprint for creating a unique international climate regime. Even though the effects of climate change are getting worse each year, the selfish interests of states, the realpolitik in foreign policy and anarchy dominate international relations, thus representing an obstacle to creating an international climate regime. The author examines ways to overcome these obstacles to international institutionalization of climate issues by introducing three IR theory perspectives: realist, rationalist and idealist. The synthesis of these three perspectives is that the international climate regime should be decentralized; its legal acts should be drafted from inter-state agreements on specific issues, while its principles should be incorporated to the already existing international legal acts. Adapted from the source document.

A democratic state's constitution ought to guarantee basic personal, political, economic, social, cultural, & ecological rights & freedoms of individuals & citizens & shape an efficient system of legal & juridical protection of all the guaranteed human rights. The Republic of Croatia, since its Constitution of 22 December 1990, has undoubtedly been a democratic constitutional state. The Croatian Constitution is an example of the adoption of the constitutional option in the establishment of the constitutional regime. After seven years of its application, it is clear that there is something controversial in its content regarding the fundamental rights & freedoms of individuals & citizens as well as in their legal protection at the constitutional/legal level. Also contentious are the constitutional provisions regarding the structure of the government & local self-rule & administration. There have been many misunderstandings & dangerous constitutional/legal & constitutional/political illusions regarding this matter, particularly concerning the Croatian semi-presidential system & parliamentarism. This analysis shows that semi-presidential system, as a specific variant of parliamentary government, is extremely adaptable to all possible changes in both the party & the broader political setting. Adapted from the source document.

The author analyzes recent Habermas' writings on the process of European integration & the new international political order. Having for a long time ignored the issues of foreign policy, in his recent works & speeches Habermas has increasingly turned to these topics. The supranational level is becoming important both due to the more severe limitations to state sovereignty in the process of globalization, & because of the development of new mechanisms of international cooperation & the new regional economic-political integrations. In his theory of democracy at the national level, he emphasizes its deliberative character & shows public communication as the central sphere of mediation between the informal (private) opinions & the institutions of the formation of political will. However, today it is necessary to go beyond the boundaries of the nation-state & establish the parallel mechanisms of political deliberation & decision-making at the international level. The most important step in that direction are regional integrations (in Europe, naturally, it is the European Union). The regional integrations must supplement the UN institutions to compensate for the loss of the ability to govern at the national level & to create a counterbalance to global capitalism. In this context it is important to get the answers to a certain crisis of the EU identity. The European Union today is often seen as a mechanism of bureaucratic management & restrictive regulation, instead of as a guarantor of good life. Habermas thinks that Europe should focus on the guarantees of fundamental rights & values such as the right to education, social justice, autonomy & participation. For that purpose, the European Union should develop into a federal state. To the Euro-skeptical objection that Europe lacks a state-building nation i.e a unified nation as the foundation of political community, Habermas responds that the European civil sodety, European public & the common political culture -- if, indeed, they can be built -- are sufficient for Europe's political unity. The process of designing & adopting the European Constitution has strengthened all three components. The Constitution also helps to explain the objectives of the European integration (boundaries of EU's expansion, interrelationship among levels of goverment) & to enhance legitimacy by creating a fundamental legal act, its the design of which European citizens are involved. For Habermas, the crisis of European unity caused by the disunity of the member-countries' governments over the American war in Iraq is an opportunity. The mobilization of the European civil society against that war (as demonstrated by the pan-European peace demonstrations of 15 February 2003) & the creation of the model of the procedurally well-ordered international politics & cooperation which boosts economic development & social security serve as the counterbalance to the American unilateralism & the aspiration for domination. Habermas supports the model of "multispeed Europe" & thinks that it will not cause a rift in the EU, but can as a matter of fact dynamize the process of European integration. The author concludes that Habermas' political views of the European integration & international politics contain a remarkable dose of utopism. However, the attempt to see beyond the limitations of the existing political reality is a must if these limitations are to be overcome. 12 References. Adapted from the source document.

Using Luhmann's terminology, the author promotes the thesis that internal changes of constitutions are a nondemocratic constitutional/legal process & thus a political problem; ie, a constitution is exposed to political life, but also to an unmarked place within a constitutional system. This place is marked by constitutional judges who change constitutions on a case-by-case basis, either innovatively, precedently, or, of course, nondemocratically. Since democratic politics & constitutional law are different forms of activity, the question is which is the criterion for appraising the new things. How, then, to reject something as unlawful & nonpolitical? The author claims that this judgment can only be done by people with a refined moral sense. This requires the inclusion of those who create & interpret constitutions as the law of the polity so they ought to be selected very carefully. Thus, citizens are doubly burdened: (1) They have to understand constitutional changes to perceive their interest in them. (2) They have to appreciate the architects of constitutions to trust them. 15 References. Adapted from the source document.

Using Luhmann's terminology, the author promotes the thesis that internal changes of constitutions are a nondemocratic constitutional/legal process & thus a political problem; ie, a constitution is exposed to political life, but also to an unmarked place within a constitutional system. This place is marked by constitutional judges who change constitutions on a case-by-case basis, either innovatively, precedently, or, of course, nondemocratically. Since democratic politics & constitutional law are different forms of activity, the question is which is the criterion for appraising the new things. How, then, to reject something as unlawful & nonpolitical? The author claims that this judgment can only be done by people with a refined moral sense. This requires the inclusion of those who create & interpret constitutions as the law of the polity so they ought to be selected very carefully. Thus, citizens are doubly burdened: (1) They have to understand constitutional changes to perceive their interest in them. (2) They have to appreciate the architects of constitutions to trust them. 15 References. Adapted from the source document.

Svjedoci smo rasprava o ulozi države u gospodarstvu i o tome gospodari li država dobro svojim vlasništvom. To je osobito važno jer se država u ulozi vlasnika pojavljuje "u ime i za račun" građana. Stoga način upravljanja i raspolaganja imovinom države predstavlja važno političko pitanje, a javnost je po prirodi stvari zainteresirana za to da se imovina koristi racionalno, transparentno i za ostvarivanje javnih, a ne privatnih i partikularnih interesa. U ovom se radu povezuju ekonomska i pravna razmišljanja o tim pitanjima, što dosad nije bio slučaj u domaćoj literaturi. Analiziraju se ekonomski, politički i pravni razlozi aktualnog stanja. Analiza ekonomskih pokazatelja poslovanja državnih poduzeća i pravnog okvira njihovog upravljanja služi kao polazište za preporuke kako unaprijediti poslovanje državnih poduzeća kroz promjene u sustavu korporativnog upravljanja. Glavni alati promjene su profesionalizacija, depolitizacija i privatizacija državnih poduzeća. Rad sadrži preporuke za implementaciju novih institucionalnih rješenja. ; We have been witnessing discussions about the role of state in the economy and whether state-owned property is being managed well. This is of particular importance because the state plays the role of owner on behalf of its citizens. Therefore, the way state-owned assets are managed and used represents an important political issue, and it is in the public's interest for such assets to be used in a rational and transparent manner in order to achieve public interests, and not private or particular interests. This paper combines economic and legal perspectives on the matter, which has not yet been done in the Croatian literature. The economic, political and legal reasons for the current status are analyzed. Analysis of the economic performance indicators of state-owned companies and the legal corporate governance framework serves as a starting point for recommendations on how to improve the performance of state-owned companies through changes in the corporate governance system. The main tools in implementing changes are professionalization, depoliticization and privatization of state-owned companies. The paper provides recommendations for implementing new institutional solutions.