Pravo i porezi 2/2012

U ovom se radu prikazuje pravni institut sudskog raskida ugovora o radu iz Zakona o radu. Osim općeg opisa ovog pravnog instituta, iznose se i promišljanja u vezi s nekim otvorenim pitanjima. Tu je, prije svega, riječ o pitanju trenutka prestanka ugovora o radu, osobito u vezi sa zasnivanjem novog radnog odnosa radnika s trećim (novim) poslodavcem u situaciji kada je u sporu s prethodnim poslodavcem, a traži da sud svojom odlukom raskine ugovor o radu. Također se obrađuju i pitanja vezana za naknadu štete odnosno plaće, ovisno o trenutku prestanka ugovora o radu.

The author of the article comments on the particular court decision and provides the answer to the question whether the decision on appointing the commandant of the public fire department can represent a justifiable reason for the extraordinary termination of the contract on employment.

The work of foreign residents was regulated by the old Act on Foreign Residents, which was applied from the beginning of 2008. During its application it was determined that it was necessary to comply the Act with the European acquis communautaire and to correct some contextual and normative flaws. Accordingly, the provisions regarding the work of foreign residents were changed, in order to improve and speed up the procedure of obtaining the work and residence permits. The new Act introduced a new term for the residence permit and the work permit within the annual quota and over the annual quota, which also represent a temporary work and residence permit. The work and residence permit replaced two permits (the work permit and the business permit) in the old Act. The residence permit is issued by the police administration, i.e. the police station according to the unique administrative document (decision). The Act also determines the categories of the foreign residents regarding the defined period until which they are allowed to work in the Republic of Croatia according to the work permit and the categories of the foreign residents who can work in the Republic of Croatia according to the approved status without the residence and work permit.

In view of the termination of the contract on employment in case of the contracted trial period there are two opposite points of view in the Croatian legislation. According to the first point of view in case of the termination of the contract on employment during the trial period it is not necessary to explain the reasons of the termination, except in the specific cases of discrimination, neither to follow the obligatory procedure of the regular termination of the contract on employment. According to the other (opposite) point of view the contract on employment in case of the trial period should be terminated in the way determined for the regular termination of the contract on employment, including the concrete reasons for the termination of such a contract. The article presents the arguments for both points of view.

The article deals with the importance of the institute of contesting the legal acts of the debtor in order to protect the creditor. After the introductory overview of the relevant legal sources from the law of comparison and the Croatian law regarding the institute of contesting the legal acts of the debtor, the article presents the legal nature of the above stated institute, which is important for understanding of its legal effects. The following parts will present the general and specific presumptions of contesting the legal acts of the debtor outside the bankruptcy procedure, including the legal consequences (effects) of the contesting and the specifics of the determination of the above stated institute in the Croatian legal system in view of the passive good legal standing.

A share holding company whose organs are structured according to the dualistic system operates through its organs: management board, supervisory board and general assembly. The general assembly is one of the organs of a share holding company through which the members of such a company (share holders) exercise their membership rights and express their will. This organs represents a functional and organizational unity, the existence and competence of which is determined by the Companies’ Act. If it is not determined differently by the Act, the general assembly is the company’s organ in which the share holders exercise their rights and express their will based on the membership in the company. Due to the fact that each share holder may be present at the meeting of the general assembly and principally participate in decision-making, the general assembly is regarded as a democratic organ of a share holding company. Due to its importance, the author of the article analyzes some essential issues regarding this organ.

The author of the article analyzes the issue of obtaining the right to vote at the general assembly of the share holding company according to the latest amendments to the Companies’ Act from 2009, which introduced the substantial novelties and possibilities. Thus, the Croatian companies’ law was in many points complied with the secondary resources of the European companies’ law i.e. the Directives of the European Union. The essential novelty refers to the possibility of a share holder to exercise the right to vote by the electronic communication in the case when he/she in person or his/her representative cannot be present at the general assembly. According to the previous Companies’ Act only the members of the management board and the supervisory board (if determined by the Statute) were allowed to participate at the general assembly using the sound or picture technologies, including the transmission of the work of the general assembly using the sound or picture technologies.

The Croatian Financial Services Supervisory Agency initiated in 2011 the preparation of the annual reports on corporate management. The aim is to collect all the corporate data on the annual level for all the companies whose shares are listed on the public stock market and to present the level of the corporate management of the organization of the domestic capital market, in order to compare it with those in the region and the Eurozone. In order to obtain a realistic picture, which presents the development of the corporate culture, the comparable data were shown for the share holding companies, whose shares were listed on the Zagreb Stock Exchange on 31 December 2009 and 2010. The report contains the statistical data and the necessary explanations on the market capitalization, the distribution of capital, the organs of share holding companies (management board, supervisory board, general assembly), the system of internal and external control and audit and the level of the transparent reporting of the share issuers.

In the first part of this article the author explained the term and the legal nature of terminal compensation to the commercial agent, the formal prerequisites for obtaining the right to such a compensation and compared this institute with the similar institutes in some European countries. In this part of the article the author explains the prerequisites for the special compensation in terms of property law, the determination of the compensation amount, the reasons for exclusion of the right to the special compensation and the right to compensation of damages suffered by the commercial agent due to the termination of the business relation with the client.

According to the Act on the Procedure of Expropriation of Property Acquired by the Criminal Act and Offence, which became effective on 1 January 2011, the possibility of the expropriation of illegally acquired property has been substantially extended. The Act includes the possibility of expropriation of the property in the situation when the criminal proceedings cannot be realized due to the determination of the criminal act without pronouncing a certain person guilty and the court sentence. Before and during the criminal proceedings the property should be secured in order to have the possibility of its expropriation or distraint. The above stated Act protects the rights of the injured party and the third parties. Besides the training of the judges and the state attorneys the Agency for Management of Government Property plays an important role in handling the expropriated property.

In this paper, the authors regard the European sectoral social dialogue as a social phenomenon which is increasingly expressing itself as one of the pillars of the European social model and as a foundation of good governance of the European Union. Social dialogue is a gain which is present in all of the member states of the European Union. Joint actions of social partners find their stronghold in the political framework at the level of the European Union, which recognizes, supports, promotes, and upholds social dialogue as a key element for better understanding, trust building, agreement reaching, and development of concrete results, which will have practical significance for the company and the workers, including mutual standings, good practice, guidelines and rulebooks, action frameworks, and negotiated agreements. Accordingly, the European social dialogue leads to solutions which have a practical significance for the workers and companies and in that way remarkably contributes to the management of the entire European Union.