Complete issue ready for download

• EDITORIAL BOARD 2022

Content

• Editorial board 2022.

THE RIGHT OF SHIPWRECK IN MEDIEVAL SERBIA The paper represents the first attempt to specifically and comprehensively explore the right of shipwreck (ius naufragii) in medieval Serbia. In the opening section, the wider comparative context is established through an overview of the presence of this legal custom in Europe and the Mediterranean during the ancient and medieval periods. This is followed by a discussion of the available information on its presence in Serbia, which spans the period from the early 14th to the mid-15th century and includes examples both of its exercise and of regulations by which it was abolished in regard to communities focused on maritime trade – Venice and Dubrovnik. The final section is dedicated to the examination of its status as a regal right of Serbian medieval rulers and the circumstances and mechanisms of its abolition regarding Venetian and Dubrovnik ships.

• Nebojša Porčić [ University of Belgrade Faculty Philosophy, Serbia ]

SOCIALIST BANKING: THE CONTINUOUS EVOLUTION OF THE BANKING SECTOR IN YUGOSLAVIA (1944/45–1991/92)The article explores the influence of the ideological and political frameworks and changes in the physiognomy of social, economic and internal political relations, as well as the foreign policy orientation, on the structure of the banking sector in socialist Yugoslavia, The attempt is to determine the appearance and the important features of the banking sector, the sequence of reforms that marked this field of economic life in the second half of the 20th century, as well as the effectiveness of the observed changes. The overview is provided of the characteristics of the different phases that the Yugoslav banking system, starting with the development of the socialist banking system, planned organization and rigid centralization, through various phases of decentralization, central plan weakening and introduction of market elements, to the shaping (and reshaping) of the self-management banking system and its repercussions on the country’s economic unity.

• Saša Ilić [ National Bank of Serbia, Serbia ]

HANS KELSEN’S PURE THEORY OF LAW AS CRITIQUE OF THE “AUTHORITARIAN” UNDERSTANDING OF LAW AND JURISPRUDENCEIn this paper, I analyse Hans Kelsen’s understanding of jurisprudence and law – by contrasting the normative-dogmatic understanding, which I will call “authoritarian”. By establishing the primacy of politics and rejecting the prescriptive function of jurisprudence, Hans Kelsen enabled a democratic concept of law (and of jurisprudence), and at the same time a critical and political approach. Kelsen defines the law from a dynamic perspective, which justifies the constant changeability of the law – and in this respect the primacy of democratic politics over dogmatic jurisprudence. The normative basis for Kelsen’s understanding of jurisprudence is his relativism, which is based on a moral position on the autonomy of the individual.

• Péter Techet [ Hans Kelsen Research Centre, Institute for Political Sciences and Philosophy of Law, Albert-Ludwig-University Freiburg (Germany) / Centre for Legal History Research, University of Zurich Faculty of Law, Switzerland ]

THE KLOBUCHAR BILL: IS SOMETHING ROTTEN IN THE US ANTITRUST LEGISLATIVE REFORM?An intense public debate is currently taking place in the US. The main subject of this debate is tech giants and the antitrust law reform. The fundamental dilemma is whether giant corporations, such as Apple, Google, Amazon, Microsoft, and Facebook, fit the traditional antitrust law or not. Senator Klobuchar proposed the new bill (the Competition and Antitrust Law Enforcement Reform Act) in 2021, and Congress is currently between a rock and a hard place. If Congress decides to support the New Brandeis movement and enact the bill, it could harm the tech giants and make the US start lagging behind China. If it decides otherwise, it could cause considerable dissatisfaction among US voters. This paper analyses the bill in detail and explores the possible outcomes. The conclusions suggest that enactment of the bill could have overwhelmingly adverse economic consequences for the competitiveness of US markets, innovation, and consequently for consumer welfare.

• Nikola Ilić [ University of Belgrade Faculty of Law, Serbia ]

The Right оf the Parent to Return to its Country of Origin in the Light of the Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on the Protection of Human RightsThis article examines the right of return to the country of origin of a parent who has been granted the rights of custody over a child in the country in which that parent and the child temporarily reside. A legal obstacle to realization of the right of return of the parent to its country of origin exists in the Hague Convention on the Civil Aspects of International Child Abduction which is often applied mechanically and works to prevent the parent from relocating with the child. Case law of the European Court of Human Rights and the Constitutional Court of Serbia provides guidelines for interpretation of the Hague Abduction Convention in quite frequent situations when a parent who is a primary caregiver acts as an abductor. The standard of the best interest of the child can overcome the tension between the right of parent to return and the Hague Abduction Convention.

• Maja Stanivuković [ University of Novi Sad Faculty of Law, Serbia ]
• Sanja Đajić [ University of Novi Sad Faculty of Law, Serbia ]

Anonymity in the Age of the InternetWhile in its early phases the Internet had been based on anonymous communication within virtual communities, the past two decades have brough about a reversal. The proliferation of digital networking platforms, on one hand, and loose internet privacy policies, on another, have been narrowing the space for anonymous use of the Internet. Based on these trends the paper deals with the transformation of the role of online anonymity in the socio-legal perspective. In the first part we demonstrate that anonymity accompanies the modernization of contemporary societies, but there are also various freedom and security challenges. In the second part of the paper, we analyze internet anonymity as a phenomenon, assessing both arguments in favor and against it. We are particularly interested in identification of the stakeholders who advocate overall deanonymization, as one of the crucial characteristics of public and private life in contemporary society.

• Dalibor Petrović [ University of Belgrade Faculty of Transport and Traffic Engineering, Serbia ]
• Dejan Pavlović [ University of Belgrade Faculty of Transport and Traffic Engineering, Serbia ]

Analysis of the Implementation of the Law on Prevention of Domestic ViolenceIn this paper we examine data related to the implementation of the Law on Prevention of Domestic Violence, between 2018 and 2020, provided by the Ministry of Interior of the Republic of Serbia, the Public Prosecutor’s Office, and the courts. The positive effects of the implementation of the Law on Prevention of Domestic Violence should be preventive – reducing incidents, reducing the number of crimes, raising awareness regarding the reporting of violence, better cooperation between state authorities in prevention and suppression of domestic violence, more consistent implementation of provisions of other laws directed at fighting domestic violence. It has been noted that the competent state authorities implement legal provisions unequally, which causes the victims of domestic violence not to have the same possibilities in exercising their right to protection. A key cause of this issue has been varying practices by competent authorities in fighting domestic violence.

• Dragana Kolarić [ University of Criminal Investigation and Police Studies, Serbia; Constitutional Court of the Republic of Serbia, Serbia ]
• Saša Marković [ University of Criminal Investigation and Police Studies, Serbia ]

THE POSSIBILITY OF REGULATORY FUNCTION OF JUDICIAL POWERThe article presents two theses. The first is that previous court judgments can be „sources“ of general rules and standards that will constraint the courts, as decision-makers, even if they are not formally established as legally binding. The second is that it should be so for several reasons – the most important being predictability and equality. In this part of the article the concepts of separation of powers, types of state functions, and judicial power are explained. The reasons why the judicial power can perform the law-making function in a legal system in which it is not formally established are presented. As an illustration of how the system in which courts perform a law-making function works, the application of the doctrine of stare decisis in the USA is described. Finally, several decisions of the Constitutional Court of Serbia that indicate similar practice in Serbian legal system are analyzed.

• Goran Dajović [ University of Belgrade Faculty of Law, Serbia ]

FROM INHERITABILITY TO NON-INHERITABILITY OF THE LEGAL DUTY OF SPOUSAL SUPPORTIn accordance with the family regulations of the Republic of Serbia, the legal duty of support, among other things, ends with the death of the provider. Unlike the Serbian legislator, the legislators in some modern European legal systems have envisaged the inheritability of the legal duty of support, among others, for a divorced spouse. These essentially different approaches to regulating the issue of inheritability of the legal duty to support a divorced spouse, are the subject of the author’s attention. In addition to trying to draw a conclusion regarding which of the mentioned approaches to the legal regulation of the issue of heritability of the legal support duty fulfills entirely or largely the function of post-marital solidarity, the author considers the possibility of redesigning and amending the family and inheritance regulations of the Republic of Serbia.

• Ivana Đokić [ Attorney at Law, Niš, Serbia ]

ON THE ORIGIN OF MANDATORY BLESSING FOR THE ELECTION OF PROFESSORS AT FACULTIES OF THEOLOGY – NATIONAL AND COMPARATIVE PERSPECTIVE Protection of nascent university autonomy, recognition of professor status and validity of acquired diplomas – all provided by the Church throughout history – were crucial for the development of universities during their early existence, at the time when they acquired their present reputation and influence. Denominational theology, based on the authority of higher education in modern society, has the capacity to exert dominant influence on the identity, doctrine and perception of a certain denomination, requiring the safeguarding of the church’s right to maintain such influence within the confines of its self-determination. Appointments of theology professors is an indispensable instrument for ensuring such a right. The right of self-determination of the church represents the framework within which university autonomy in the domain of denominational theological study may be exerted. Absence of the right of the church to influence appointment of theology professors would amount to the negation of its right to religious self-determination.

• Dušan RAKITIĆ [ University of Belgrade Faculty of Law, Serbia ]

Gilbert, Richard J. 2020. Innovation Matters: Competition Policy for the High-Technology Economy. Cambridge, Mass. and London: The MIT Press, 324.

• Boris Begović [ University of Belgrade Faculty of Law, Serbia ]

Mišćenić, Emilia, Silvija Petrić. 2020. Nepoštenost valutne klauzule u CHF i HRK/CHF kreditima (Unfairness of Currency Clause in CHF and HRK/CHF Loans). Zagreb: Narodne novine, 388.

• Mateja Đurović [ Centre for Technology, Ethics, Law and Society (TELOS), The Dickson Poon School of Law, King’s College London, London, United Kingdom ]

Spaić, Bojan. 2020. Priroda i determinante sudijskog tumačenja prava. Beograd: Pravni fakultet Univerziteta u Beogradu, 190.

• Mila Đorđević [ University of Belgrade Faculty of Law, Serbia ]

Dragoljub Kavran (1933–2021)

• Dobrosav Milovanović [ University of Belgrade Faculty of Law, Serbia ]

Marko Petrak (1972–2022)

• Andreja Katančević [ University of Belgrade Faculty of Law, Serbia ]