The article is based on the analysis of the recent legal practice regarding assignment. There has been a number of dilemmas regarding the transfer of the subordinate rights which are accessory to the receivables, the assignment of the receivables upon the solidary creditorship, when one of the solidary creditors assigns to the third person the receivables for securities. The authors of the article point to such issues and some practical flaws upon the application of the assignment, including some positive normative solutions which have proved as inappropriate and represent to the great extent an obstacle and limitation for the fast and efficient disposal of receivables, Besides the Act on Obligatory Relations as the main regulation regarding the assignment, the proper understanding of the term assignment and its effects and problems requires the application of the corresponding provisions of the Act on Property and Other Substantive Rights, the Act on Land Registers and the Distraint Act. Keywords: assignment, assignment for insurance, notification, solidarity of creditors, syndicated loan, lien on receivables, Act on Obligatory Relations, Act on Land Registers.
Autori: Doc. dr. sc. Ivan MILOTIĆ Vjekoslav IVANČIĆ , mag. iur.
The way of determining the rates of the legal and contractual default interests between enterprises and those between enterprises and the persons of the public law has been changed by the Act on the Amendments to the Act on Financial Operations and Pre-Bankruptcy Settlement, which became effective on 30 June 2013. The author of the article explains the new way of determination of default interests and states the reasons for their changes, explaining some issues which have arisen due to the parallel amendments to two Acts which regulate this topic (the Act on Obligatory Relations and the Act on Financial Operations and Pre-Bankruptcy Settlement).
The new VAT Act has introduced the obligation of the transfer of tax liabilities from the provider of the service to the recipient of the service. Accordingly, the determination of the VAT liabilities has substantially been changed. According to the previous regulations the VAT payer was always the provider of the service. According to the new VAT Act the VAT obligation for the provision of certain services is transferred from the service provider to the service recipient.
In the Republic of Croatia the legal status of foreign citizens in acquiring the real estate is regulated by the general and special rules of property law and by the international agreements. Foreign citizens should meet the specific prerequisites which depend on the legal basis of the acquisition (reciprocity is required for acquisition of the real estate on the basis of inheritance, and reciprocity and the approval by the Minister of Justice are required for acquisition of the real estate on other legal basis). On certain real estates the possibility for the foreign citizens to acquire the ownership is excluded (real estate in excluded areas, agricultural land, forests and forest land, protected natural areas). The citizens and legal persons from the European Union can acquire the real estate as well as the Croatian citizens without the fulfilment of additional requirements. However, neither the citizens nor the legal persons from the European Union can acquire forests and forest land, protected natural areas and agricultural land. In view of the agricultural land, there is the regulation which prohibits to the EU citizens and EU legal persons to buy them up to 7 years after the accession of the Republic of Croatia to the EU.
The author of the article points to the important current issues regarding the compliance of the new Act on Mediation with the Directive 2008/52/EC of the European Parliament and Council comprising certain aspects of mediation in civil and commercial cases. In Croatia’s comparative law there are the so-called court and out-of-court models of mediation. The characteristic of the first model is the close connection with the court which runs such a procedure as well as the close connection with the litigation process. On the other hand, the mediation out-of-court is carried out separately from court procedures. The possibility of mediation at the court in the Croatian law is determined by the Act on Litigation Process, whereas the model of the mediation out-of-court is determined by the Act on Mediation.
Lex commissioria is mostly connected to lien law, i.e. the right of the lien creditor to collect the receivables from the value of the lien. The authors of the article point to the need to re-define the prohibition of the legis commissoriae in the Croatian legislation, especially in the case of financial securities, due to the fact that a number of legal systems have already abandoned it.
Autori: Doc. dr. sc. Gabrijela MIHELČIĆ , dipl. iur. Doc. dr. sc. Hano ERNST
The author of the article analyzes the legal provisions which, due to the specific public procurement procedures, have introduced a special system of administrative sanctions as the consequence of the breach of the contract on public procurement made by one of the contract parties. The article also determines the violations on which the sanctions in terms of civil law are to be applied, arising from the general regulation. The legal theory has so far not paid much attention to this issue. Accordingly, this article highlights the problems regarding the responsibility for the violation of the obligations stated in the contract on public procurement, i.e. it stresses the dilemmas which arise in the administrative business practice, in order to provide some replies regarding its practical application, which should contribute to the easier realization of the legal protection of the parties in the contract on public procurement.
The author of the article analyzes the issue of declaration of the parties in the administrative dispute, including the relation of the declaration of the party with other valid procedural institutes and the regulation of this field within the Act on Administrative Disputes. The article stresses the division of the implications determined by the provision of the Act, according to which the court is obliged to enable to the parties to make a declaration on the facts and evidence on which the verdict is to be based. The declaration of the party in the administrative dispute is not just analyzed as the declaration according to the Act, but also in general regarding the declaration of the party as stating his/her citations in the dispute
The Act on the Amendments to the Act on Health Protection regulates the work of the bodies of health care institutions during the recovery procedure. The Amendments comprise the management and the recovery councils of the particular institution, the manager of the recovery procedure and the professional council of the institution. The authorities of the ethical commission have also been changed, including those of the commission for drugs and quality control of the institution.
The author of the article analyzes a specific situation regarding the withdrawal of the decision on the termination of employment. The termination of the contract on employment cannot be withdrawn without the consent of the party who has received such a termination of the contract on employment, i.e. after it has become effective 15 days after its delivery, when the worker has the right to claim from the employer for his violated rights. In the case when the notice period has expired or the decision on the termination of employment has been delivered to the employee, the employment status does not exist any more. Accordingly, it is not possible for the employee to state his/her consent on the withdrawal of the termination of employment due to the fact that the employment status does not exist any more. However, it is possible to sign a new contract on employment if both parties agree to it.
Minors may be employed according to the signed contract on employment pursuant to the corresponding legal conditions. They may also perform certain activities without being employed according to the corresponding legal conditions. They may be hired by the mediators for employment of minors – students, under the conditions that they have the status of the full time student (pupil), according to the temporary work contract and according to the contract on author’s fee, as volunteers, etc. The author of the article presents various possibilities of hiring minors out of the employment status.
The author of the article points to the irregularities observed in the practice upon drawing up the proposal for the distraint procedure and the determination of the distraint procedure, although the rules on the contents of the proposal for the distraint procedure and the determination of the distraint procedure have clearly been defined. The insufficiently prepared proposals for the distraint procedure based on the valid distraint documents cause a number of problems in practice. All the participants in the distraint procedure should pay more attention to the drawing up of the proposal of the distraint procedure. In such a way, all the participants in the distraint procedure and later in the litigation procedure, after the distrainee makes an appeal, would not have difficulties due to the flaws in the proposal for the distraint procedure or the decision on the distraint procedure.
The article analyzes the current conditions required for the election of the judges of the Constitutional Court of the Republic of Croatia. It is suggested that the forthcoming changes of the Constitution of the Republic of Croatia and the Constitutional Act should comprise the more precise criteria for the elections of the judges of the Constitutional Court, such as at least 25 years of service in legal business and the minimum age of 50. The candidates should primarily be the judges of the Supreme Court of the Republic of Croatia, the judges from the other courts of the Republic of Croatia and the full-time university professors who have accomplished some extraordinary results in their work in court practice and have contributed to the legal science. The post of the judge of the Constitutional Court of the Republic of Croatia should be the top of the legal career and the last job in the career, after which the judge would get retired with honours and not the profession in the middle of the legal career. This issue is rather important due to the election of seven judges of the Constitutional Court of the Republic of Croatia, which is due at the end of 2015.
U prošlome broju našega časopisa objavljen je prvi dio članka Temeljna prava i opća načela kao interpretativni diskurs prava EU. Shodno tome, u ovome se broju nastavlja s obradom ove bitne tematike tako da se razmatra odnos Europske konvencije o ljudskim pravima kao akta Vijeća Europe i Povelje o temeljnim ljudskim pravima kao akta Europske unije te pristupanje Europske unije Europskoj konvenciji. 4