If the construction agreement contains the “turn key” provision or some similar provision according to the Act on Obligatory Relations the contractor is obliged to carry out independently all the works necessary for construction and use of the building. In such a case the contract price comprises the value of all unexpected and additional works including the effect of work deficit on the contract price. If the turn key contract has been signed by a number of contractors they mutually share the responsibility to the placer of order. The Croatian law is one of the rare legal systems – to the author’s knowledge- the only one which contains a legal definition of the turn key contracts. The term turn key contract is relatively new and has been internationally used since the 70s of the last century. This term was not defined in legal terms, so that its parts, characteristics and provisions were determined through legal practice.
In July this year the Assembly of the Croatian Auditors’ Chamber adopted the Rulebook on supervision and control of work quality of audit companies, independent auditors, partner audit offices and certified auditors. After many years of audit practice the supervision of audit services and professional auditor services as well as the services of an audit company has been introduced. According to the regulations so far there has been no possibility to file a complaint on auditor ‘s services, organisation of work or their operations pursuant to the regulations. According to the Rulebook the supervision of audit companies, independent auditors, partner audit offices and certified auditors is carried out by the Chamber. The goal of the supervision is to determine whether auditors perform their work in accordance with the Audit Act i.e. the provisions of the International Audit Act, other provisions and regulations enacted by the authorised bodies of the Chamber.
The Act on Land Registers was amended by the Act on Amendments of the Act on Land Registers which came into effect on 28 October 2007. According to this Act the preconditions for creation of the base of land register data and a new land register system has been created. The procedure of the adjustment of the register of plots and the cadastral books has been determined and the deadlines of deleting dated mortgage claims have been reduced. This Act, for instance, defines the joint IT system which will embrace cadastral and land register data into one data base. It also stipulates a new procedure of land registration – separate entries into electronic land register, which will contribute to a faster adjustments of land and cadastral registrations.
The author of this text analyses a rather interesting Decision of the Constitutional Court of the Republic of Croatia, which in a concrete case took a clear and definite attitude referring to credible explications. According to the above stated Decision the legislators who pass sub- Acts are not authorised to present credible explications of these. Accordingly, a credible explication in view of its characteristics produces legal impacts from the date when they came into effect, which means that they have a retroactive effect. According to the Art. 89. of the Constitution other regulations of the state bodies and the bodies who have a public authority cannot have a retroactive effect. The documents referring to urban planning have according to the Art. 12 of the Act on Urban Planning a power and legal nature of a sub-Act and therefore according to the Constitution cannot have a retroactive effect and are not allowed to be credibly explicated. Therefore, if such an attitude is consistently applied in the future, it will bear serious consequences, because a credible explication will be forbidden to anyone except to the Croatian Parliament and maybe the Government of the Republic of Croatia.
This article presents a decision made by the Constitutional Court of the Republic of Croatia from March 2007 referring to the legal suit which was sustained, whereby the decision of the Higher Commercial Court of the Republic of Croatia and the decision of the Commercial Court in Zagreb were cancelled. In this constitutional-law matter the person who brought constitutional suit (the stock holder) filed the above stated suit against a stock holding company which started against her interests legal proceedings in order to determine the invalidity of a certain legal business. The Constitutional Court determined that in the above stated case the courts had not followed the usual court practice without an appropriate explanation, which implies a self-imposed application of the substantive law, resulting in offence of the constitutional right of the complainant on the legal equality guaranteed by the Constitution.
The chapter on economic, social and cultural rights of the Constitution of the Republic of Croatia defines the right to healthy life and environmental protection. Accordingly, every person has the right on healthy life and everyone is obliged, within the scope of his/ her responsibilities and work, to pay a special attention to the protection of people’s health, nature and environment. On the other hand, the State provides conditions for healthy environment and the right of the citizens on the healthy environment. Generally, all the citizens, state, public and economic bodies and associations are obliged within their responsibilities and work to pay a special attention to the protection of people’s health, nature and environment. The International Covenant on Economic, Social and Cultural Rights (in the hierarchy of regulations it is above the law level) determines the right to enjoyment of the highest attainable standards of physical and mental health. Such a formulation should be an additional guideline to the legislator upon determination of the regulations referring to the right on healthy life including the obligation of the enforcement of the above stated provision of the Constitution of the Republic of Croatia.
On 1 August 2005 the Act on Representing in the Field of Industrial Property was passed. Among other things the Act stipulates the conditions of representing activities in the field of industrial property at the State Institute for Intellectual Property of the Republic of Croatia. In the text the author stresses some dubious provisions de lege lata and gives some propositions de lege ferenda especially referring to the possibility of representing foreign residents by lawyers. In his opinion, for instance, the person who has not passed a specific professional exam and who is not entered into the Registry of Representatives at the State Institute for Intellectual Property, including lawyers, should not be engaged in representing activities in the field of industrial property referring not only to foreign residents but also the Croatian citizens. Accordingly, each representative in the field of industrial property should be obliged to pass the exam for a patent or stamp representative. In the author’s opinion some provisions of the Act on Representing in the Field of Industrial Property should be cancelled or redefined.
Autori: Prof. dr. sc. Jozo ČIZMIĆ Bruna ŠIMUNDŽA, dipl. iur.
The Article 29. of the Constitution of the Republic of Croatia stipulates the right on access to the court, which implies that everybody has the right that the court based on justice makes impartial and rightful decision on his/her rights and obligations, doubts or accusations for a criminal act within a reasonable period. The Art. 18 of the Constitution guarantees the right on complaint referring to specific legal documents enacted in the proceedings at the court of the first instance or other authorised body. There is no constitutional guarantee for refutation of decisions made by the court of second instance. Therefore, the legislator should decide whether to enable to the parties to refute these decisions too. The legal provisions which exclude or limit the possibility of legality control or the control of decisions made by the court of the third instance could therefore not be considered as unconstitutional. The criteria for permission of audit are stipulated in the Art. 382 of the Law of Civil Procedure. This regulation limits to a certain extent the right on presentation of the audit as an extraordinary legal remedy. According to the decision of the Constitutional Court of the Republic of Croatia no. U-I/1569 from 20 December 2006 the provisions of the Art. 382, Par. 1., It. 1. and 2., Par. 2. and Par. 3. and the Art. 497. of the Law on Civil Procedure become invalid as at 15 July 2008. The explanation of the above stated decision implies that the Constitutional Court has concluded that by such audit the Supreme Court of the Republic of Croatia, as the court of the highest instance, cannot realise its constitutional authority in assurance of the unique application of the law and equality of the citizens. Therefore, the Constitutional Court cancelled the parts of the Art 382. and the Art. 497. of the Law on Civil Procedure in order
The new Act on Obligatory Relations, which was passed at the beginning of the last year, specifically states a lending contract that is drawn up if one person – a lender – gives to another person a specific object for use free of charge, and the other person – a borrower – commits himself/herself to give it back after use. The object of lending are non-disposable things. A disposable thing can be the object of lending if it’s return is stipulated in the contract. The borrower has the right to use the object of lending in the way determined by the contract. Should such a way not be determined by the contract the borrower has the right to use it according to the characteristics and purpose of the object of landing. The borrower bears regular maintenance costs of the borrowed object (if it is an animal this includes feeding costs too), whereby extraordinary costs are compensated to the borrower according to the management regulations without an order. The claims of the lender (for compensation of the damages due to change or deterioration of the object of lending) and those of the borrower (for compensation of costs or compensation of damages due to flaws) become dated six months after the date of return of objects.
The Stock Exchange Act stipulates an offence called the illicit stock trading. Accordingly, the person who is illicitly engaged in mediation of trade or sales of stocks shall be fined with up to 200 daily incomes or punished by imprisonment up to one year. The offender who has made a considerable financial benefit shall be fined with up to 200 daily incomes or punished by imprisonment up to three years. The offender who organises a network of mediators to commit the above stated offence shall be fined with up to 350 daily incomes or punished by imprisonment up to five years. The supervisory and regulation body who, among other bodies, takes legal proceedings against the persons for whom there is a reasonable doubt that they have committed the above stated offence is the Croatian Agency for Supervision of Financial Services.
The limits of insurer’s liability to the third parties in the case of insurance against car accidents can be viewed in two ways: 1. the amount of the insurance as a limited liability of the insurer to the third party; 2. payment of damages caused by unknown or uninsured motor vehicles on the account of the Guarantee Fund. Due to the specifics of such a type of insurance, where it is not possible to know in advance what the amount of the claim for compensation of damages for a particular car accident is going to be, there is a possibility for the insurance amount not to be sufficient for payment of compensation of damages according to all the claims referring to the particular traffic accident. Therefore, there is a direct influence on the possibility of compensation of damages to the victims of the traffic accident. On the other hand, the claims for compensation of damages to the unlimited amounts would certainly not be in the insurer’s interest. Therefore, the legislator stipulates a minimum insurance amount of the car accident liability in order to guarantee the traffic accident victims a certain security in exercising their rights to the compensation of damages. The insurers can agree on a higher insurance amount, which may not be lower than the one according to the regulations.
In accordance with the Labour Act the work between 10.00 p.m. and 6.00 a.m.next day (between 10.00 p.m. and 5.00 a.m.next day in agriculture) is considered to be a night shift work, unless by this act or some other regulation, a collective agreement or the agreement made between the employer and the workers’ council has been determined differently. If the work is organised in shifts, they have to be alternated so that a worker has constant night shifts for a week to the most. The night shift of minors is strictly forbidden, except in the case when such work is necessary due to force majeur. The Labour Act also stipulates that a worker has the right on a higher salary for the night shift work, which is determined and calculated according to the autonomous regulations of the employer. In case the night shift work has been underpaid or not paid at all, and the employer does not fulfil the obligation to pay for it, the worker has the right to take legal actions in order to claim the payment of the night shift work.
The Regulation no. 2073/2004 made by the EU Council on 16 November 2004 referring to the administrative cooperation in the field of excise duties strengthens the cooperation of tax administrations regarding excise duties. The Regulation enables direct contacts between the administrations engaged in collection of excise duties of EU countries, resulting in a faster swapping of information and a clearer obligatory cooperation of the EU members. Besides the swapping of information on request it is planned to include electronic and constant swapping of information. Therefore, the Regulation stipulates the conditions of the mutual cooperation of the administrative bodies dealing with the application of the regulations on excise duties and the Commission in the EU countries. The Regulation determines the rules and procedures to be applied by the authorised bodies of the EU countries including the mutual cooperation in providing data (electronically), which can help them in adjustment of their regular determination of excise duties.
Ništavost ugovora o poreznom savjetovanju s društvom koje čine njemački porezni savjetnik i EU-stranac (Grk) bez kvalifikacijskog ispita sukladno propisima