GODIŠNJAK FAKULTETA PRAVNIH NAUKA

Computer Fraud in the Law of Bosnia and Herzegovina and International Standards

Miodrag N. Simović — 2024-07-19

In the modern criminal legislation in general, and also in the positive law of Bosnia and Herzegovina, several different criminal offenses of fraud are prescribed. These criminal offenses are systematized in different groups of offenses according to different protective objects, but with more or less identical acts of execution with the intention/goal of obtaining benefits for oneself or for another person, i.e. with the intention/goal of causing harm to another person. These are: a) voting fraud (or election fraud), b) fraud in business operations (or insurance fraud), c) fraud, d) service fraud, and e) computer fraud. In the system, a set of several different forms of manifestation of criminal offenses of fraud, a criminal offense of computer fraud prescribed by three criminal laws (except the Criminal Code of Bosnia and Herzegovina) has specific character, nature and content. This incrimination is based on relevant international standards contained in the Council of Europe Convention on Cyber (computer) crime (Budapest, 2001). This paper presents the concept, characteristics, elements and content of the criminal offense of computer fraud in accordance with legal solutions with application in Bosnia and Herzegovina.

Forum non Convenience as a Basis for Determining of Jurisdiction

Vladimir Čolović — 2024-07-19

The institution of forum non conveniens as a base for determining jurisdiction in special situations is a doctrine of the Anglo-Saxon legal system. This doctrine allows the court to assess whether it is better to continue the proceedings or if it is more efficient to leave the jurisdiction for the given case to the court of another country. The court will make the said decision, only if it determines that it is “more appropriate” to conduct the proceedings before another court. This doctrine is not known in the continental legal system. However, given the fact that a legal relationship with a foreign element consists of several facts, the question can be raised as to whether it is more or less “connected” to the judiciary of a domestic or foreign country. The paper defines the concurrent jurisdiction of the courts, which is the basis for the application of the doctrine of forum non conveniens, and this institute is analyzed in relation to lis pendens, as well as the deviation clause. In the work, the authors pays attention to the application of the Brussels Convention on Jurisdiction and the Recognition and Enforcement of Court Decisions in Civil and Commercial Matters, as well as the Brussels and Brussels Ia Regulations, which replaced the aforementioned Convention and abolished the application of forum non conveniens in Great Britain until its exit from the EU. Finally, the authors analyzes the possibility of applying the doctrine of forum non conveniens in the continental legal system, and therefore its place in the legislative system of the Republic of Serbia.

Ugovor o prodaji buduće stvari sa posebnim osvrtom na prodaju nepokretnosti u izgradnji

Slobodan Stanišić — 2024-07-19

The paper discusses general issues related to the sale of future things with special reference to the sale of real estate under construction, the acquisition of property rights and the competitive relationship between the principle of trust in land registers and the principle of mortgage extensiveness.

L’histoire d’une ideée – la société civile européenne: avec la référnce particulière à la théorie de Jürgen Habermas

Jelena Ćeranić Perišić — 2024-07-19

L’idée de société civile puise son origine des démocraties de l’Antiquité. Le contenu de la notion était à plusieurs reprises altéré, à mesure que les époques historiques changeaient. Après la Seconde Guerre mondiale, l’Europe a réalisé l’importance de mobiliser les forces vives des nations pour s’engager dans les grands programmes de reconstruction et de réforme. Selon les idéologues de l’époque, la construction européenne ne pourrait se renforcer que si elle s’appuie sur un mouvement social fort, ancré dans les territoires et agissant au-delà des frontières. Pour illustrer l’évolution de l’idée de la société civile européenne, nous allons tout d’abord examiner les origines du concept de société civile, notamment à travers la philosophie de Jürgen Habermas. Dans un deuxième temps, nous allons évaluer l’enjeu de la société civile dans le processus de l’intégration européenne qui lui est conférée par le traité établissant une Constitution pour l’Europe bien qu’il ne soit jamais entré en vigueur. Même si le traité de Lisbonne a repris la plupart des solutions prévues par le traité établissant une Constitution pour l’Europe, les dispositions relatives à la société civile n’ont été accepté que par fragment.

International Legal Obligations of the States and Problem of Their Implementation

Duško Glodić — 2024-07-19

The article explores the various possible sources of international obligations of the States and the grounds for the binding effect of international rules upon the States. It is demonstrated that the States, although being sovereign actors at the international plane, are not only becoming subject to the international rules when they express their consent, but they are bound by the rules to which their acquiescence is assumed. The latter type of rules are mostly developed within international customary law. The international legal obligations can have varying scope of the addressees and some of them override any other commitment, such as ius cogens, or may affect the whole of international community, such as erga omnes obligations. The practical relevance of the international obligations for ensuring a functioning international regime can be assessed from the perspective of compliance of the States with their commitments. It goes without saying that the international society is not an ideal place when it comes to the adherence to the rules, but the States usually adhere to the majority of their obligations. Unlike a limited number of special cases, the international institutions, both judicial and political, are not always offering the direct enforcement venues for ensuing the full compliance with the international obligations and preventing any unlawful conduct. Nonetheless, international law is widely perceived as a viable tool for regulating international relations and transactions at the international plane.

Der einfluss des entschädigungscharakters der personenversicherung auf die gesetzliche regelung der kumulation

Mirjana Glintić — 2024-07-19

Die Autorin analysiert den Entschädigungscharakter bestimmter Arten von Personenversicherungen, die den Zweck haben, den Schaden, den aus dem Versicherungsfall stammt, zu ersetzen. Dieses Merkmal bestimmter Personenversicherungen wird im Gesetz über Schuldverhältnisse der Republika Srpska nicht anerkannt, was die Kumulation des Anspruchs auf die Versicherungssumme und des Schadensersatzanspruchs bei allen Personenversicherungen ermöglicht, auch wenn deren Zweck der Schadensersatz ist. Positive rechtliche und rechtsvergleichende Analysen weisen auf die Notwendigkeit einer Änderung der bestehenden Gesetzgebung im Bereich Versicherungsrechts hin, da die bestehende Lösung nicht mit den Grundprinzipien des Zivilrechts im Einklang steht und zu einer rechtlich ungerechtfertigten Bereicherung führen kann. Abschließend weist die Autorin auf mögliche gesetzgeberische Eingriffsrichtungen hin, die eine Angleichung der rechtlichen Lösungen an die Rechtswirklichkeit gewährleisten würden.
Schlüsselwörter: Versicherungsvertrag, Personenversicherung, Kumulation, Summenversicherung, Schadenversicherung.

Piercing the Corporate Veil

Jovana Pušac — 2024-07-19

The subject of the research is the institute of commercial law, which is in the service of protecting the creditors of those companies whose members are liable up to the amount invested. We are talking about a kind of legal phenomenon called “piercing the corporate veil” or, as the legislator calls it, “abuse of legal entity” which, although it was legitimized three decades ago, is insufficiently processed in our legal theory, and only exceptionally applied in judicial practice, despite the fact that it is often the only means of protecting creditors against unscrupulous debtors. The decisive evidence in such disputes is financial forensic expertise. Aware that the scientific treatment of this institute will not automatically lead to its more frequent application, the author believes that it will still contribute to the raising of legal awareness, like Paracelsus’ saying: “The more knowledge is inherent in a thing, the greater the love” ... because power is in knowledge.

Computer Fraud

Dragan Jovašević — 2024-07-19

On the basis of adopted international documents of universal and regional character, the largest number of countries, including the Republic of Serbia, in their national legislation know more computer (computer) crimes that protect various digital databases. The perpetrators of these specific criminal offenses are prescribed criminal liability and punishability of natural and legal persons. In addition to specific computer crimes, in modern conditions, many old classic crimes (theft, fraud, forgery) gain a new dimension with a greater degree of severity and danger when committed using computers or computer systems. Since this is a crime where there is usually no temporal and spatial connection between the perpetrator and his act of execution and the caused consequences, ie the injured person, modern legislation also knows special evidentiary actions in the procedure of detecting and proving these crimes. This paper talks about the concept and characteristics of computer fraud as a form of computer crime in international and national criminal law.

Odmjeravanje kazne

Veljko Ikanović — 2024-07-19

U ovom radu se govori o opštim pravilima koja se primjenjuju u postupku izbora vrste i mjere kazne učiniocu krivičnog djela. S obzirom na izuzetno osjetljivu ulogu suda u odmjeravanju kazne, u radu se više govori o praktičnim aspektima odmjeravanja kazne koji se susreću u svakodnevnoj praksi sudova. Primarni cilj je da se ukaže kako sudovi trebaju da cijene određene olakšavajuće i otežavajuće okolnosti utvrđene u toku krivičnog postupka i od kakvog je to značaja u primjeni krivične represije kao instrumenta za suzbijanje kriminaliteta. Problematika se posmatra u okviru krivičnog zakonodavstva Republike Srpske, a izvor korišćenih podataka su odluke sudova u Republici Srpskoj.

Detection and Suppression of the Criminal Offense of Abuse in Relation to Public Procurement

Velimir Rakočević — 2024-07-19

The criminal offence of abuse in connection with public procurement belongs to the newer criminal offences against payment transactions and business operations with elements of corruption. According to positive regulations, the state is obliged to open a tender for its own needs and the needs of companies in its majority ownership for the purpose of procurement of goods, provision of services and implementation of public works above a certain monetary amount, which would guarantee transparency and legality. However, in practice, it has been shown that public procurement is in the zone of high risk of violating the law and good practices. A very complex public procurement procedure and an increasingly pronounced conflict of interest between public office holders and the business community, as well as other important factors, have caused a large number of abuses in this area. Recognizing the dangers of this criminal phenomenon, in December 2023, Montenegro criminalized abuse in connection with public procurement in the group of criminal offences against payment transactions and business operations. The Criminal Code foresees seven forms of this delict. Being of the first form includes the submission of an offer based on false data or an illegal agreement with other bidders or the undertaking of another illegal action by the perpetrator with the intention of influencing the decision of the public procurement authority. The second form includes the execution of all three forms of the criminal offence of abuse of official position by the perpetrator who violates the laws in this area, causing damage to public funds. If the perpetrator adjusts the terms of the public procurement to a certain entity or enters into a contract with a bidder whose offer is in contradiction with the terms of the tender documentation, he commits the third form of this tort. The fourth form includes types of abuse of official position by the perpetrator who gives, takes over or contracts jobs for his activity or the activity of a person in relation to which there is a conflict of interest. A more serious form of this delict exists if it was committed in connection with public procurement whose value exceeds the amount of one hundred thousand euros. A special form is prescribed if the act was committed to the detriment of the financial interests of the EU. The privileged form is prescribed in paragraph 7 of Article 272c and provides for the possibility of exemption from punishment for the perpetrator who voluntarily reveals that the offer is based on false data or on an illegal agreement with other bidders or the perpetrator has taken other actions with the intention of influencing the decision-making of the contracting authority before that the public procurement contract is concluded. The methodology for detecting this criminal offense is based on the investigative and operational practice of the police and the State Prosecutor’s Office in reconnaissance and investigation.

The Criminal Offense of Possession and Enabling the Enjoyment of Narcotic Drugs in the Criminal Law of Bosnia and Herzegovina - Criminal Procedure and Criminal (Substantive) Aspect

Sadmir Karović — 2024-07-19

In this paper, the authors focused on the concept, that is, the objective-subjective conception of the criminal offense of possession and enabling the enjoyment of narcotic drugs in the criminal law of Bosnia and Herzegovina, with a special emphasis on the detection and proof of this criminal offense. When considering the definition of the concept and abuse of narcotic drugs, the general social context was taken into account in order to properly understand the criminal law (substantive) and criminal procedural nature of this incrimination. In the criminal law (substantive) context, this criminal offense is specific for the reason that the legislator prescribed the actions of incitement and assistance, which are, by their nature, the actions of complicity, in this case, that is, in the case of this criminal offense - as independent actions. In addition, an analysis of the legal text and a brief comparative review is made. According to the above, the paper points out uneven or different legal solutions in the entity criminal laws and the law of Brčko District of Bosnia and Herzegovina.
In the discovery phase, the complexity of gathering the initial information that indicates the existence of grounds for suspicion as a substantive legal condition for initiating and conducting an investigation, was emphasized. With regard to the implementation of certain criminal procedural actions, an update of the collection of necessary evidence, as well as the burden of proving this criminal offense and guilt, has been given.

Franchising as a Business Model and Impact on Market Competition

Aleksandar Bogojević — 2024-07-19

There are different business models of business entities. When starting your own business, it is necessary to have an elaborate business strategy in which business entities must count on what popularity their products or services will have. Successful business depends on a number of factors, the most important of which are the possibility of entering the market and the degree of competitiveness of business entities operating in that market. Regardless of the business strategy, business entities that operate independently take a greater risk of possible business failure. Business entities that are independently starting business, already at the beginning, are faced with problems of entering the market. The problems are mainly related to the existence of administrative barriers, high taxes, difficulties in financing, the strength of competition, and the time needed to develop a business and build its own market position. There is a business model that can reduce the risk of independent business, while being profitable and bring business success to an economic entity that opts for this type of business. It is about franchising as a business model that refers to running your own business under the name of a well-known brand. The paper will show and explain what franchising is, its emergence and development, the basic characteristics and types of franchising, the franchising agreement, the prohibited agreements and exemptions from the prohibition in competition law, and with that, franchising as a restrictive vertical agreement and the impact it has on market competition.

Legal Remedies of the Injured Party in the Criminal Proceedings of the Republic of Srpska

Radenko Janković — 2024-07-19

Until the reform of criminal prosecution laws in Bosnia and Herzegovina from 2003 from the decisions of the Public Prosecutor not to take or drop criminal prosecution, which he was dissatisfied with, the injured party could be protected by taking over the prosecution. The reform accepted the prosecutorial investigation. The concept of the injured party as a subsidiary prosecutor was abandoned and we received a complaint as a new legal remedy against the public prosecutor’s orders not to implement and suspend the investigation. Amendments to the Law on Criminal Proceedings of the Republic of Srpska from 2021, the position of the injured party in criminal proceedings has been significantly changed and improved. The institute of the injured party was restored as a prosecutor, although in a very limited variant. The complaint against the order of non-investigation and suspension of the investigation is regulated in more detail, and some new significantly different solutions have been accepted. Three-fold decision-making was accepted by introducing objections as an intermediate stage and a new legal remedy. An objective deadline for filing a complaint was also prescribed, and the decision-making was transferred to the Chief Prosecutor. The possibility of submitting a complaint has been expanded even when the prosecutor drops the confirmed indictment. The injured party received two new types of complaints that he can file due to the duration of the proceedings. Despite the best intentions of the legislator in regulating the new position of the injured party in criminal proceedings, serious failures were made. Consideration of this issue should contribute to a better understanding of the position of the injured party in the criminal proceedings of the Republic of Srpska and the legal means at his disposal, their more regular application, as well as new legal solutions that will better suit our conditions, practical needs and theoretical settings, which will eliminate the observed omissions

European Standards for Insurance Supervision With Reference to Their Implementation in the Republic of Serbia and Bosnia and Herzegovina

Iva Tošić — 2024-07-19

Corporate scandals that have affected the financial sector have significantly impacted the operations of insurance companies and the trust of insurance service consumers in these companies. At the European Union level, this problem has been recognized, leading to the adoption of the Solvency II Directive. This Directive aims to address challenges and issues faced by insurance companies through appropriate management and supervision of their operations. Supervision includes continuous monitoring to ensure that insurance and reinsurance companies are properly conducting their business and complying with supervisory provisions.
In this paper, the author attempts to analyze the supervisory provisions established with the adoption of the Solvency II Directive. In the second part of the paper, the author focuses on analyzing the existing supervisory models in the Republic of Serbia and Bosnia and Herzegovina, considering that both countries aspire to EU membership and will need to align their legislation with European provisions in the future. The author pays particular attention to the supervisory body, noting that in the Republic of Serbia, the insurance market is supervised by the National Bank of Serbia as the central bank, whereas in Bosnia and Herzegovina, a separate Agency for the Supervision of the insurance market has been established.

ВРЕМЕНСКО ВАЖЕЊЕ КРИВИЧНОГ ЗАКОНА

Dragan Jovašević — 2024-07-19

Nema