II/2017

Plenary session

"NASCITURUS PRO IAM NATO HABETUR QUOTIENS DE COMMODIS EIUS AGITUR". The Roman rule and its contemporary application (bulgarian language)

Abstract: The report presents  the rule "Nasciturus pro iam nato habetur quotiens of commodis eius agitur" as it exists in Roman legal texts in relation to the ancient Greco-Roman concept of personae, different from that which we conceive today. In this context, the capacity of human embryo to be subject of right comes from social, religious, medical, moral and especially legal recognition. We discuss some of the heritage aspects of this rule, as well as the issues of early human life, abortion, infanticide and murder of pregnant women, recognition of the newborn by the father, State, etc. Some decisions of the Roman jurisprudence are surprisingly topical and are part of many discussions on its bioethical and legal aspects.

Keywords: Nasciturus, human embryo, person, curator ventris, successio, pater familias.

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PROMOTING CULTURAL RELATIONS IN SERBIA: From Roman Archeological Heritage to Present Day European Process and Globalized Exchanges (italian language)

Abstract: The Italian Cultural Institute in Belgrade is an official institution of the Foreign Affairs Ministry of Italy. Its mission is to promote cultural relations between Italy and Serbia through a wide range of activities. The activities within the bilateral cultural cooperation include the organization of events fostering the development of joined research and cultural initiatives. Human and social sciences are an important part of the cooperation area. Due to many different factors, Italian culture has been referential for Serbian scholars and intellectuals for a long time. One of the strongest points of reference, perceived as an element of affinity, is the ancient Roman civilization. The common past gives us the opportunity to reflect on the long term influence of Roman institutions. Such long common roots can still be considered today as important elements underlying the process of construction and transformation of identities. Fostered by cultural exchanges, the historical dimension stemming from a dynamic analysis could help the development of a more inclusive debate about common legacies, distinctive social and institutional elements, and specific characteristics that define who we are.

Keywords: ancient Roman civilization, the Italian Cultural Institute, Roman Archeological Heritage, European Process.

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UNIVERSALITY AND AEQUITAS OF CLASSICAL ROMAN LAW (english language)

Abstract: In an endevour to research and identify the most important qualities of the protean system of Roman Law during its progressive development related to the history of Roman State and society, but, also, beyond their formal chronology, probably, starting with William Burdick's conceptions (expressed in his major work, The Principles of Roman Law and Their Relation to Modern Law, elaborated at the University of Kansas, USA, 1938), the most important idea is that the Roman law, grosso modo, is characterized by its unique universalism and profound spirit of equity. It is a non-tribalistic system, an organic and praetorian class of rights, jurisprudentially dedicated to find the equitable way in order to reach the best legal solutions in the private law litigations. Mutatis mutandis, this system tries to respond, avant la lettre, to the Vincent de Lérins three criteria separating truth and untruth (veritas & error): Quod ubique, quod semper, quod ab omnibus creditum est.

Кeywords: roman law, roman legal tradition;
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ABOUT LEGAL RECONSIDERATION OF CITIES AND AND THEREFORE OF EMPIRE: CITY ASSEMBLIES IN PROVINCES OF ROMAN EMPIRE (English language)

Abstract: In dealing with this topic, the author divides the paper into three parts. In the first part of the article, the author deals with issues from the emergence of cities (ad urbe condita) to the emergence of the empire. In this part, the author explores the following topics: a) From the expulsion of kings and Justinian's era, the Romans think and act democratically; b) Democracy is only possible in a small society/city; c) The problem caused by "growth" and Roman solution; d) A voluntary system (a technique of "democratic" participation) as a solution; e) Solution: Empire as "Confederation" of cities.

In the second part of the paper, the author draws attention to the development of local self-government units and the state's relations with these units. In this context, the author addresses the following questions: a) The nature of "government" and the great "force" of the imperial power; b) Two dimensions of the ("sovereign") power of citizens, inside and outside cities; c) Necessary reciprocity of these dimensions; d) Imperial growth of cities/municipalities.

In the third part of the paper, the author elaborates on the central topic of this paper dealing with the organization of city assemblies in the provinces of the Roman Empire.

Keywords: roman law, democracy, city;
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LEGAL ACHIEVEMENTS OF FAMOUS SERBIAN POET LAZA KOSTIC (italian language)

Abstract:Laza Kostic is not only a great Serbian poet, drama writer, translator, literary and theater critic, journalist, national tribune, politician, diplomat, philosopher and aesthete, but, as the most educated and dullest Serbian head of his time, he made a significant contribution to the legal field. Unfortunately, scientific community has not yet illuminated this specific area of ​​his work, and with this paper author wants to point out the most important achievements of Laza Kostic in the field of legal science. When he was only 25 he obtained degree of doctor of law, after writing and successfully defending his thesis in Latin at the Royal University of Pest in 1866. In his late years, he began translating one of the most important textbooks of Roman Law, written by famous German Romanist Heinrich Dernburg (1829-1907). This masterpiece in three volumes (Pandekten, 1884-87) represented the fundamental work of the modern European legal culture. Laza Kostic received the order for this venture from the local Croatian-Slavonian-Dalmatian government in Zagreb (Zemaljska vlada). The first volume of his translation was published in Zagreb in 1900, the second remained as the manuscript, and it is not known whether Kostic finally ended this job. The text available to us shows how inventively Kostić was trying to create a new legal terminology, grounded on the vernacular language, taking dominant ideas of the historical law school and the subsequent learning of the famous jurist Valtazar Bogišić.

Keywords: Laza Kostic, roman law, serbian law;
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Public law

ROMAN TRADITION AND THE NEW MODEL OF DEMOCRACY: RECURRING DEMOCRACY (italian language)
Abstract: The article is regarding the Roman model of democracy in Republican period. I made some paralels with the modern democratic tradition.
Keywords: democracy, roman law, Rome;
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EFFECTS OF IUS LATII ON THE ROMAN BETICA (english language)

Abstract:The paper analyses some effects of particular importance in the field of the municipalizatión of the Roman Betica, and provides a review of the general scope of the extension of the Latium Universiae Hispaniae. The, the author provides a detailed analysis of the social autonomy and the extensive municipalization taken by Flavia dynasty, especially in the Roman Betica.

Keywords: Ius Latii, Latium universiae Hispaniae, Betica romana, municipium, lex flavia;

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ROMAN LAW AS COMMON HERITAGE OF THE HUMANITY (italian language)

Abstract:Roman law, beginning from the time of the foundation of the Romanistic juridical system and up to this day, has a clear universal propensity. In the introductory constitutions of the Digest, Emperor Justinian emphasizes that the whole Corpus Juris Civilis represents a true temple of justice, and serves to build almost a city of law, which must be valid forever (in omne aevum). For Justinian it is indispensable to recognize the existence of a common law (ius commune) among all peoples, known or unknown, living in the ecumenical world, in a universalistic perspective, that the modern comparison between the States and the Legal Orders (that from the States derive) make laborious, if not nearly impossible, to grasp.

The recognition of the ius gentium from the III century B.C., thanks to the praetor peregrinus, moves exactly in this direction: he creates a sort of ‘supranational consuetudinary right' (Cardilli), with a clear internationalist propensity, which finds its foundation in the naturalis ratio, that roman jurists (see eg Gai. 1.1; or D.41,1,1,1) recognize at its basis. This foundation does not seem to be frustrated by the recognition, some decades later, of the ius naturaleas a self-contained category.

But this is a universality that does not have to be understood in a giusnaturalistic sense, but only in the sense of appreciating certain values, that Roman jurists recognize as eternal foundation of good relationships among people: the centrality of the human person; humanitas, fides bona, aequitas, voluntas, libertas, substantial equality; causality in contracts; favor debitoris; the fight against usury, etc.

From the combination of all the elements described above, it is already recognized in Rome that there is a common law (ius commune), which is as old as man, precisely because it is based on that naturalis ratio, that jurists recognize as its basis. The ‘iura populi Romani' should therefore be understood as ‘complexes' of  juridical norms of the Roman people, but elaborated and re-elaborated in a coherent system, in a ‘ius commune romanum', in which the various contributions fit into ‘harmony', upon the basis of the principles that guide them.

Undoubtedly, many events have contributed to obscuring the correct view of this event. On the one hand, the closure on itself of the Romanistic thought from the end of the 19th century led to a ‘crisis' of the study of Roman law. On the other hand, the events of the last two centuries, which have led to the conquest of the monopoly of the production of law by the State, have generated a split between the internal order (founded on State's sovereignty) and an international order that (failing to be efficient) dilutes itself in the cross-game of good or bad relationships between absolutely sovereign states.

In my opinion, however, it is impossible to cut the umbilical cord that still links modern law to the teaching of Roman jurists. Civil codes do not arise from the mind of the modern legislator, nor from the deference to a hypostatized ‘Grundnorm', abstractly placed. They are, on the contrary, embedded in the system in which they float, as floating islands in the sea: at the basis of them, as well as at the basis of any modern juridical Legal Order, it is easy to recognize the System of Roman law which, despite an inevitable need for a continuous revision, has clearly been the source of many principles of modern, national and international law.

This ‘natural Roman law' must be understood as a dynamic and non-static phenomenon: it is a law (ius) that, as jurist Pomponius (D.1,2,2,13) already taught, cannot exist (constare = exist) alone but needs a filter, consisting in daily critical re-processing of what is best for man, which only the jurists can do.

In other words, the system based on Roman law (precisely because it is a system that places man and what is best for him constantly in the center, and because it is based on a universally recognized system of values) is an ‘open System', which is not intended to be overcome, but which is constantly renewed and adapted to the multiform and changing reality to which it contingently applies.

It can be said that «the universality of Roman law, transmitted to us by the Codification of the VI A.D. by Justinian, ... is to be regarded as a genuine product of Rome and of the Roman people» (S. Riccobono), and must be safeguarded above all by jurists of our as well as of future generations, as a common heritage of humanity.

The Romanistic legal system is not imposed, but sought, transposed, and open to dialogue with other legal experiences, to which it offers its own principles. Its recovery, its valorisation as a true communicating vessel of values, institutes, principles and norms, is fundamental in order to «uncover any order, any law that does not place man at the center of his scale of values. To retrieve aequitas and humanitas against any barbarity; to build a law that is ever fairer and more humane, so that it can serve man in the depths of our high common legal tradition that shows us how the law can and should be placed at the service of humanity and humanism» (Labruna). These are the challenges the modern jurists must be able to pick up.

Keywords: Roman law, общо наследсвто , ius commune, ius gentium;

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ANALYSIS FROM THE PERSPECTIVE OF ROMAN PENAL LAW UPON THE CAUSES OF THE EXILE OF POET PUBLIUS OVIDIUS NASO (french language)

Abstract: The article comes as a result of the commemoration of the 2000 years since the death of Publius Ovidius Naso. Philologists and historians have given their opinion about  the causes of the poet's conviction since the 4th century on the Epitome de Caesaribus.

Many have attempted to unravel the hidden meanings of Ovid's autobiographical works Tristia and Epistulae ex Ponto and have expressed several opinions on the matter: either the poet was involved in a sexual scandal; he was part of a conspiracy in favor of a contender of the future emperor Tiberius or he had committed a sacrilege by assisting at a religious ritual at which he was not allowed to participate. In this article we propose a juridical approach to the "Ovid case". From this perspective after examining the Crimnal law rules existing in 8 BC Rome, the Criminal procedure`s norms of quaestiones and cognitio extra ordinem and the substantive norms comprised in Lex Iulia de adulteriis coërcendis and Lex Iulia maiestatis, we have reached the conclusion that the poet Ovid was judged by Augustus in extra ordinem procedure and condemned to relegatio in insulam (he was exiled to Tomis) for a crimen maiestatis.

Usually a conviction for a crimen maiestatis carried a capital punishment, the most lenient of which was being deportatio in insulam which implied the revocation of citizen rights and wealth confiscation. This is what would have happened if the poet had been tried in the quaestiones system.

In this extraordinary procedure, however, the punishment was at the discretion of the judge, meaning that the emperor or a person authorized by the emperor could grant mitigating or aggravating circumstances, according to the social condition of the condemned person. Ovid, a member of the equestrian order, was a honestior and benefited from the least severe punishment.

Keywords: Lex Iulia de adulteriis coërcendis, Lex Iulia maiestatis, adulterium, lenocinium, stuprum, relegatio in insulam.

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ROMAN MODEL AND ITS SPREAD IN JUSTINIAN'S AGE. THE VOICE OF THE COMPILATION (italian langugae)

Abstract: It is well known that the Compilation conceived by Justinian from 528 was designed to have a universal value. On the political level, the aim of the Illyrian emperor was to restore the Empire to the dimension of its greatest splendor. On the ideological level, the imperial power, endowed with divine foundation, was conceived to assume an ecumenical value, extending to all peoples. Coherently, the Compilations had to have an equally general scope, unifying all peoples under the values and concepts of ius romanum. This paper aims to find the traces of these beliefs within Justinian's legislation, highlighting the most significant expressions of an all-embracing conception of the values and law of Romanity that pervaded the imperial ideology.

Keywords: Roman law, Justinian, Late Roman Empire

 

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LIGHTS AND SHADOWS, STEPS AND LEAPS: MOVING UP IN ROMAN PUBLIC CAREERS IN LATE ANTIQUITY(CRIMINAL LAW ASPECTS) (italian langugae)

Abstract: In the period from 4th to 6th century AD, imperial constitutiones provided detailed description of steps in the development of civil and military career. In the period of the Republic, Romans seemed to be persuaded that, for the best management of the res publica, the magistrates should run for each of his offices in the order prescribed by the cursus honorum, and that one's powers and responsibilities would increase by reason of his administrative experiences and his personal qualities; thus, the principle of meritocracy was evidently built up. This idea came back under the deeply different bureaucracy of the Late Roman Empire. The metaphors that can be found in the juridical and literary sources of this period refer to the violation of the rules on the cursus honorum as belonging to the Dark World, comparing it to the "bright" careers, or showing such violation as a ‘leap' that is opposite to a correctly and properly timed order. This paper considers specifically how the Roman criminal law of Late Antiquity combated irregular career promotions, while examining attentively the crimen ambitus and the crimen sacrilegii.

Keywords: cursus honorum, Criminal law, Late antiquity, development of career;

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THE ROMAN ARMY AND SOME LEGAL PROVISIONS REGULATING ITS STATUS (english langugae)

Abstract: When the Roman army was purely national, there was no need for a special law on the military, which still did not have the professional character. Thus, after the reign of Augustus, the citizens could participate in the military campaings when needed, in times of difficulty or danger, by relying on the use of some institutions such as the testament in procinctu, for example. After creating permanent armies, which moved long distances and included foreigners, Rome had to regulate their legal status with rules that responded to the demands of the place and people in the militia. Thus, military law arose during the Empire, and was further developed and amended in the Post-classic period, and especially in Justinian's reign, in the Corpus Iuris Civilis, notwithstanding the extraordinary dispersion of its precepts and the casuistic approach in this collection. The abudant regulations governing the status of the military in Rome, includes questions such as the status of the legionnaires, granting citizens' rights and immunities, peculiarities in the law applicable to the military (ignorance and error of law, domicile, absence, representation), ius vitae necisque, and so on.

Keywords: Roman army, regulation of the legion, law.

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VIOLATION OF TOMBS: ROMAN-BYZANTINE LAW IN THE ZAKONOPRAVILO OF SAINT SAVA (english langugae)

Abstract: Zakonopravilo (Nomocanon) of Saint Sava, the Serbian medieval legal text of a great importance (1219), is the compilation of mainly Byzantine texts of dogmatic, canonical, legal, moral and  liturgical content. It is composed of altogether 64 chapters. The chapter 47 contains the provisions of Justinianic law, mainly from the Novels  and the Codex.  The provisons concerning violation of tombs have its source in the Justinian's Digest, book 47. title 12 (De sepulchro violato). The reception was not direct but through the so called Collectio tripartita, an anonimous collection og Greek summaries of fragments from the Corpus iuris civilis. The aim of the paper is to draw attention to ways of reception and its implications.

Keywords: Zakonopravilo of Saint Sava.- Roman-Byzantine law.- Collectio tripartita.-  Violation of tombs.- Justininan's Digest.

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ROMAN LAW AND MEDIEVAL SERBIA'S LAW ACCORDING TO STOJAN NOVAKOVIĆ (English language)

Abstract: About the fact that the entirety of the historic life of both the medieval and modern Serbia has passed in the classic home of Roman law, according to Stojan Novaković, not much care was taken in our literature of the time. The Roman law itself was being taught according to foreign authors' bibliography (for example, the textbook on the Digest by L. Aris Riter of Arnesberg and his organizers L. Pfaf and F. Hofman translated by Dragiša Mijušković, then a professor at the Belgrade Higher School). At that time, Stojan Jovanović brings attention to the direct influence of the Roman law on the law of medieval Serbia and its incorporation into Serbian sources of law. By giving a look at the influence of Justinian's Code on Serbian law and its modifications, accepted through Byzantine law, Novaković gives a short, but comprehensive image of the roots of the medieval Serbian state's law.

Keywords: Roman law, Medieaval Serbain law, STOJAN NOVAKOVIĆ, Justinian's Code;

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THE SEA AS A COMMON GOOD: UNIVERSALITY OF ITS USE (italian langugae)

Abstract: The Romans were convinced that the sea, just like the water they drank and the air they inhaled, belonged to the category of "res communes omnium", common property of the whole mankind. Thus, there was no order and no norm that could deny these common goods because they are based on ius naturale (intrinsic to the entire cosmos) and have autonomous legal significance (because they pertain to all human beings and their organizations); by their very nature, they are intended for everyone (citizens or non-citizens alike) and they do not exlusively belong to any single individual. On these grounds, principles and rules were developed to ensure the common access and use of the sea and coastline. Starting from these principles and rules, the paper aims to outline some issues pertaining to this problem, which further points to the need to ensure the protection of the Mediterranean Sea through institutions ensuring an easy and fast access of every person to this common natural asset, even beyond the framework of the national or European law.

Keywords: sea coast, res communes omnium, common property, protection through institutions;

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MONETARY SYSTEM OF THE ANCIENT ROME: IMPLICATIONS ON CONTEMPORARY MONETARY LAW (english langugae)

Abstract: The subject of analysis in this paper is to review the concept of the monetary system in ancient Rome in order to recognize its implications to the modern monetary law. In that context, in the first part of the paper it points to the characteristics of the original monetary system, the most significant rulers who were determining it by the strict laws which protect their monetary prerogatives (as a precursor of monetary sovereignty) and the first serious reform that took place during the economic crisis during the Second Punic War (218-201 AD). In the second part, it will point out to the emergence of the new economic trends, notably the impact of the law of value as the important determinants postulates of contemporary monetary law, the new macroeconomic trends, the impact of inflation on the disavowal of the monetary system and the new directions of economic reforms. The subject of particular analysis is the role of accounting in monetary policy and public expenditures because the financial control essentially determined the direction of monetary policy in a period of Roman Empire. By reviewing the causes of currency crises in the ancient Rome, the authors try to point out the similarity with some important factors of global economic and financial crisis, regarding the weaknesses of monetary legal rules in conflict with the economic reality, which confirms the importance of monetary stability as essential pure public good for the functioning of the state and the role of the legislator in establishing an optimal monetary regime.

Keywords: ancient Rome, the monetary system, the monetary law, the law of value, economic crisis.

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Ancient roots of tipical jurisprudence (english langugage)

Abstract: The peak of the development of the Roman jurisprudence was achieved in the 2nd and 3rd century which, since the time of Irnerius, has been called the Classical period of Roman jurisprudence. Treating the law casuistically classical Roman jurists avoided to develop a system based on notions and definitions. Different opinion was previously expressed by Cicero who emphasized dialectical nature of legal reasoning. Therefore it is not surprising that Cicero, when evaluating the work of Quintus Mucius Scaevola and Servius Sulpicius Rufus, gives priority to the latter because he mastered dialectic. Cicero's thought about the dialectical method of legal reasoning was influenced by Aristotle who was the founder of dialectical syllogism – a method of reasoning from commonly held opinions. Cicero noticed that in organizing, presenting, and analyzing legal material there was considerable room for improvement. He thought that the method of dialectical reasoning could help jurisprudence to argue reflectively, in a systematic and abstract way. Therefore Cicero's book of Topica could be understood as a proposal for a reform of legal thinking of his time.

Keywords: Cicero, legal reasoning, dialectic;

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IUS GENTIUM AND INTERNATIONAL LAW

Abstract: Although not identical, international law and the Roman notion of iusgentium are clearly connected.Of course, those notions are far from being identical, because the international law does not function in the same circumstances asiusgentium used to. The lawyers, especially the ones dealing with international law often take connection between iusgentium and international law for granted, without deeper understanding of its aspects.It is important to understand that the notion of iusgentium evolved since theRoman times and through Middle Ages and renaissance and the way it changed. In this paper, author will analyze the evolution of the notion of iusgentium and the influences of the lawyers to those changes.

Keywords: ius gentium, international law, Roman law, Middle ages;

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TORTURE ON SLAVES AS A UNIVERSAL TRAJECTORY OF ROMAN AND GREEK LAW (english language)

 Abstract:  In addition to the many positive achievements of Roman law, there are some who are negative. They must not be forgotten precisely because they testify to the universality of Roman law. One of them is torture on slaves. Slavery officially became illegal at the beginning of the 21st century, but trafficking in human beings is still used today for forced labor. The aim of this paper is to demonstrate, through the similarities of Roman and Greek Law facts of slavery, how much the same elements can be seen in the modern-day understanding of slavery. This will be done on the basis of classic sources: "The Digest" and the speeches of famous Athenian logographers Demosthenes, Lysias and Antiphon.

Keywords: slavery, torture, basanos, trafficking;

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SYSTEM OF PENALTIES IN ROMAN LAW (english language)

Abstract: The heritage of Roman law is most evident in the field of civil law. However, the legacy of Roman law also constitutes Roman criminal substantive and criminal procedural law. It seems that this segment of Roman law is unjustly ignored in scientific research. The subject of this paper is a system of penalties in Roman law, as part of Roman criminal law. Author emphasized that the system of penalties was changed in different epochs of the Roman state. Also, there is a noticeable slightly presence of corporal punishment, which corresponded perfectly to the pragmatic spirit of the Romans. The paper aims to point out the significance of the penalty system in Roman law for the functioning of the Roman state, as well as the necessity of its further study.

Keywords: roman law, criminal law, penal system;

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Ultro tributа locare - Censors`contracts with societates publicanorum during Roman Republic (english language)

Abstract: During the Roman Republic, Roman magistrates acted as censors, who entered into contractual activity with private entities of the societates publicanorum, which ultimately produced credits for the civitas Romana. The consequence was that the payments which supplied the cash flows of the government were determined through the activity of the censors as Roman magistrates. The strategy of the Roman fiscal policy may be synthesized by the fragment of Liv.39.44.7: "… et vectigaliasummispretiis, ultrotributainfimislocaverunt". Based on this fact, we may conclude that these ultro tributa were the subject matter of a contract, where the locator was the Roman State through its censors and the conductor were the societates publicanorum, which exercised their duties towards the SPQR. The aim of this article is to outline the significance of the societates publicanorum in the period of the Roman Republic as a remedy for the decentralization of public finances. Also, the Roman Republic practices of public building and services accomplished on contractual basis by private subjects with the money of the State are widely accepted nowadays within the modern institute of public-private partnership.

Keywords: Roman Republic, societates publicanorum, public-private partnership, public contracts, ultro-tributa, censors, public building;

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FALSE TESTIMONY - DETERMINATION IN MODERN SERBIAN LAW AND ITS BASIS IN ROMAN LAW (english language)

Abstract: In order for the state to implement ius puniendi it is necessary to properly and on the basis of the law determine all the required facts to which the legal norms contained in the Criminal Code will be applied. Although in theory there is a large number of conceptual determinations of evidence, one thing is certain – when determining the decisive facts in the criminal procedure the importance of evidence as a means of determining facts is undisputed. Primarily will be emphasized an invaluable role of the witness as a person who possesses certain knowledge of the importance of both establishment of the facts and in that manner for the implementation of the original state's right to punishment. In this paper will be made a review of the development of criminal offense of giving false testimony in Roman law, as well as the impact of its former definition on the determination of this criminal act by the Serbian legislator.

Keywords: Roman law, ius puniendi, false testimony, Serbian Criminal Code, witness;

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Private law

GENERAL AVERAGE – AN ANCIENT INSTITUTION OF MARITIME LAW (english langugage)

Abstract: It is through general average that maritime law has adopted the classical legal postulate that nobody should make a profit from damage to the property of another without compensating for it. The legal institution of general average is as old as the skills of navigation or only a little younger. This maritime custom developed spontaneously and independently in different parts oft he world at a time when distance forbade any contact between them or reciprocal influence. It derives from ancient Greek law and afterwards is developed in Roman, Bizant and Venetian law. It could be found in statutes of some littoral town on the Atlantic, Baltic and Mediterranean coasts and un the first collections of recognised maritime customs. In the period oft he 17th to the 19th century, national legislation int he field of maritime law varied significantly in larger European states (France, Germany, Holland, England) and the need for unification became urgent. The first attempt of  unification was made by British Social Sciences Association at a conference of shippers in Glasgow in 1860. This was followed by discussions in York 1864 and in Antwerp in 1877, and eventually, with support of underwriters, the so-called York – Antwerp Rules were born. Since 1879 they have been applied on the basis of agreement between shipper and charterer. By occasional amendments mentioned Rules have already lasted 130 years.

Keywords: general average, roman law, maritime law;

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GAIUS' SYSTEM OF THREE PARTITION AND MODERN LAW (english langugage)

Abstract: Roman jurists were pragmatic  and, as such, they resolved actual cases.  Thus created solutions were then applied in similar  situations, which was the path for  the creation of legal rules. Amongs Roman jurists, Gaius, who lived in the second century, was the most distinguished and first to notice that legal system  represents a harmonius whole. Therefore, he is considered to be a creator of the first legal system. In his institutes (Institutiones) he concludes that the entire law refers eiher to persons,  things or court actions (Omne ius quod utimur vel ad personas pertinet, vel ad res, vel ad actiones). This conclusion made him famous, not only among his contemporaries, but in all times. It was, indeed, a brave move to rise above  generally accepted ways of thinking and making conclusions. How significant this  conclusion was  can be seen in the fact that this partition  was accepted and served as the basis of  the first Bourgeoisie codification - Napoleon's civil code (Code Civile), as well as of Austrial civil code. By means of these two first Bourgeoisie civil codes, Gaius' three-partition system  became  the basis for civil codifications in many other European countries, as well as of those in Northe and South America. Namely, Gaius three-partition system  was by means of the reception of these civil codes introduced and accepted  in many  other civil codes.

Keywords: Gaius, three partition, Bourgeoisie codification;

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THE WOMEN'S PROPERTY REGIME IN THE MEDIEVAL TOWNS ON THE ZETA COAST (english language)

Abstract: The married women's property regime in the medieval towns of Kotor, Budva and Skadar, reconstructed on the basis of the statute and everyday notarial practice, shows that this regulation was based on the principle of full separate property of  spouses during marriage and without hereditary rights of the surviving spouse on the legacy of the deceased spouse. A wife's property consisted of dowry and other goods which were usually acquired on the basis of inheritance and gifts. Assets other than dowry were her property and she could dispose of them completely independently and freely. She could dispose of her dowry only with significant restrictions prescribed by statute in relation to donatio mortis causa and inter vivos. For the duration of marriage, a husband was considered usufructuary of her dowry and managed it.. Upon dissolution of marriage a husband was obliged to return the dowry to his wife. In order to secure payment of the dowry, a wife had a priority mortgage claim on her husband's assets. Despite the precise statutory rules, our analysis of the notarial documents from the archives of Kotor has shown that there were deviations from the prescribed regime in practice. As numerous documents show, various litigations were conducted as regards husbands' abuses in the disposal of their wives' dowry.

 A comparative analysis of the legal regime of the assets of urban women on the Zeta coast and in other medieval towns on the east Adriatic coast has shown that, apart from minor differences, that regime was basically the same with the regime that was in force in medieval Dubrovnik. Both regimes belonged to a special group of the oldest legal regimes in the medieval coastal towns based on separation of property assets of spouses modelled strongly after the pattern of Justinian Code and Byzantine law. The oldest rules were different from statutory solutions in the towns of the Istria and Kvarner regions where there was a universal community of goods between husband and wife in marriage. The difference also existed in relation to the statutory solutions of the central towns of the Dalmatian region in which legal regime was a combination – a full community property of spouses and, to a certain extent, a shared property regime on the wife's goods.

Some not insignificant deviations from a set of almost identical rules of Dubrovnik law resulted from local specifities of the socio-economic and political life of the Zeta coastal towns. Due to these specifities other significant influences were present in the final formulation of statutory rules concerning a wife's property in these statutes. Either directly or indirectly, in various and multiple cultural layers, these influences were continually coming to the coastal towns from the interior of the Balkans or from overseas. The direct influences of the Slav law came from the very hinterland of the above-mentioned towns, from Serbia, to whose supreme patronage they belonged. This is also how these statutes were indirectly influenced by complex Byzantine codifications, which found their adequate legal expression in some individual solutions as regards the women's property rights in Kotor and Skadar. The similarities in some of the provisions of the women's property regime in the statutes of Budva, Kotor and Skadar with the rules in this area in the towns along the Adriatic coast are influenced by the identical influences brought to these centers by notaries from Italian universities. Roman law modified by glossators found a fertile ground for application in more and more developed and trade-oriented towns, thus forming their statutory law in the same conditions and in the same way.

 

Keywords: the legal regime of the assets of women, the statute of Kotor, Skadar statute, the statute of Budva, XIV century, a married woman, statutory law in the eastern adriatic cities.
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WIDOW ENJOYMENT IN ROMAN LAW AND IN STATUTES OF EAST COAST OF JADRAN (english langugage)

Abstract: The first part of the paper gives an overview of the position of women in different stages of the development of Roman law, considering their rights related to inheritance. Based on the overview, it can be concluded that the position wives and widows had considering property rights was poor in Roman law. The reason for this lies in the fact that, almost through the whole Roman history, a woman is considered a foreigner in the family. On the other hand, the possibility of remarrying, after the death of her husband, posed a constant danger, as this could bring into question the fate of the family property.

Second part of article analyses medieval sources related to belongings and status of widow. There is significant difference between solutions in statutes of eastern coast of The Adriatic Sea. The Venice law determines the status of widow as very weak. She has no right upon her husband's assets, or more precise – family property. It affects solutions in some statutes at northern part of The Adriatic Sea. Unlike this, in some parts of Istria, the statutes of widow is very good, and she has right upon assets acquired during the matrimony, and even part of belongings of husband as she had been member of his family. This solution is inaugurated by modern law in 20th century.

Keywords:  widow, inheritance, roman law, Middle Ages, Statues, Northern Adriatic, Istria;
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ABUSE OF RIGHT AND ACTS OF EMULATION. DOGMATIC CREATION WITH ROMAN LAW ORIGIN (english language)

Abstract: The abuse of rights constitutes a limit to the exercise of rights, a limit that is imposed by reasons of moral nature, which are established by the positive juridical order to avoid harmful behaviour and ensure a pacific coexistence among the members without harming the individual's freedom. Being aware of the difficulty involved in this institution and the lack of a concensus among the lawyers about its juridical nature, the author elaborates on the concept of the abuse of rights, its origin and juridic significance, and discusses a series of criteria that may contribute to the task of its determination. In Roman law and in its evolution to the Medieval theory of the emulation acts we can find an historical precedent, which may be the key to building the modern concept and the theory of abuse of rights.

Keywords: abuse of rights, emulation.

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DIRECT RECEPTION OF ROMAN LAW IN SERBIAN CIVILCODE – CONSORTIUM ERCTO NON CITO AND ZADRUGA (english language)

Abstract: Although it is indisputable that Austrian Civil Code served to a great extent as a model for Serbian Civil Code (SCC), a deeper analysis of SCC shows, however, that Hadžić directly applied certain Roman legal concepts. Therefore, modern Roman jurists emphasize direct reception of Roman law. The author discusses similarities between consortium ercto non cito and zadruga, and possible influences of Roman legal tradition regarding consortium on formulating provisions on zadruga, as both were types of patriarchal joint families which can be found in many other societies on the certain level of development. Namely, consortium ercto non cito as well as zadruga was large community of property, work and living where family members lived and worked together in joint family household and held property in common. As in paragraphs 508 and 510 of SCC collective character of zadruga′s property is accentuated, the analogy between two archaic institutes is very suitable. Both members of consortium and zadruga, according to aforementioned provisions, were entitled to shares of  undivided property, whereby their shares were not determined, but were determinable. Beside resemblant legal nature, the author also asserts likeness of social and economic circumstances under which consortium and zadruga prevailed. They existed in times of poor economic production, house economy, weak communications, lack of state′s authority. With development of private property, individual freedom and money-and-goods based economy these types of families started to disintegrate, in Rome as well as in 19th century Serbia.

Keywords: Serbian Civil Code, Austrian Civil Code, Jovan Hadžić, zadruga, consortium ercto non cito, family property, actio familiae erciscundae, Law of the Twelve Tables.

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Roman divortium and its influence on the divorce in Macedonia (english language)

The Roman divortium is just one of the legal concepts that exhibited strong influence upon the divorce of marriage in historical context to this day (an exception being the Catholic Church's view at the Council of Trent that advocates the unresolvedness of marriage as a "sacred secret").

The monogamous marriage and the divorce of marriage that were standardized in Roman law are a legal inheritance that is also implemented in the Family Law of Macedonia.

The sources of the law in the Roman law and in the contemporary Macedonian law will be compared to establish similarities and differences.

Key-words: matrimonium iustum, divortium, patria potestas, manus, divorce, family
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Payment transaction in EU and Roman law (english language)

Abstract: This article examines the legal treatment of payment transactions in EU and Roman law. Payment transactions under EU law are arranged by Directive (EU) 2015/2366 (Payment Services Directive II) adopted in 2015. Payment transactions include placing, transferring or withdrawal of funds, irrespective of any underlying obligations between the payer and the payee. Depending on the involvement of cash two major group of transactions can be distinguished - cash and cashless transactions. Cashless transactions also form two subgroups - credit transfer and direct debit. According to PSD II credit transfer is a payment service for crediting a payee's payment account with a payment transaction or a series of payment transactions from a payer's payment account by the payment service provider which holds the payer's payment account, based on an instruction given by the payer. The direct debit differs from the credit transfer. Direct debit is a payment service for debiting a payer's payment account, where a payment transaction is initiated by the payee on the basis of the consent given by the payer to the payee, to the payee's payment service provider or to the payer's own payment service provider. Many forms of credit transfers can be found in Roman law as permutaio, diagraphe and syngraphae (or sungraphae). It seems that direct debit was not known as transaction in Roman times. A conclusion is reached that payment transactions are strongly depended on the economy and its development. Contemporary economy needs more payment transaction options and this may explain the development of  direct debit transactions.

Keywords: Directive (EU) 2015/2366, Payment Services Directive II, PSD II, payment transaction, cash, cashless transactions, credit transfer, direct debit, permutaio, diagraphe, syngraphae (or sungraphae).

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IMPLEMENTATION OF FIDUCIA IN CONTEMPORARY CROATIAN LAW

Abstract: The need to secure the claim also existed in the oldest roman law. This role had a institute of fiducia. In the late phase of the development of legal orders of the Continental - European legal circle, fiducia is largely abandoned. It was considered too hard for someone who would transfer his property to the creditor for insurance, and the same effect could be achieved by pledge.However, after the Second world war, in continental Europe, there is an increased demands for new loans. As a consequence, the institute of fiducia of roman law returns to the legal orders that left it long ago. In the croatian legal order, the institute of fiduciary insurance of claims was introduced for the first time by the Enforcement Act in 1996. and then by the Act of Ownership and other real rights and the Bankruptcy Act. The paper will attempt to present a picture of integrating fiducia into the croatian civil law and identify common points withthe fiducia of roman law. Some outstanding issues will also be emphasized; the problem of fiduciary insurance as for the debtor the most difficult form of real estate insurance, the issue ofenrollmentof fiduciary ownership in land books for real estates that are still unlisted, the problem of omitting the fiduciary's ability to afford full ownership of property in case of non-fulfillment of the claim.

Keywords: fiducia, roman law, pledge, insurance, real estate;

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THE RIGHTS OF THE CREDITOR IN THE CASE OF AN UNPAID DEBT AT FIDUCIA CUM CREDITORE (english language)
Abstract: The article is regarding the rights of the creditor in case of unpaid loan in fiducia in Roman classical law.
Keywords:  fiducia cum creditore contracta, Roman law, contract, loan;
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RELATIONS BETWEEN THE INSTITUTES OF ROMAN LAW AND CONTEMPORARY BUSINESS LAW WITH REFERENCE TO MACEDONIAN LEGISLATION (english language)

Abstract: The issue of how capital-intensive activity was financed in Rome has been studied and debated by a vast number of scholars of law, economy, history and even sociology. What can be ascertained is that the institutes of Roman law provide a firm basis for the development of contemporary business law. Institutes such as Societas (Publicanorum, Aregntarii), Consortium, Collegia, and even Peculium were just some of the examples of how business activity was essential to the Roman legal and societal system. The aim of this paper will be to analyze such institutes, and put them in context with contemporary business legislation, with a specific focus on the legislation in this field in the Republic of Macedonia. Looking through the examples of Roman law, the authors will provide guidelines for future trends in Macedonian business law legislation.

Keywords: Legal Institutes, Business Law, Societas, Consortium, Collegia; 

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ACTIONES ADIECTICIAE QUALITATIS: MASTER'S LIABILITY BASED ON PRAEPOSITIO AND IUSSUM (english language)

Abstract: Master is liablefor obligations arising from legal affairs concluded by slaves,personsalieniiuris and even free persons. Master's liability depends on the legal and family status of master and entrepreneur of legal affairs. Is entrepreneur personally liable to the third party and if he is,how and to what extent? What is the extent of master's liability?The main objective of this paper is to determine the extent of master's liability among three actions, actioexercitoria, actioinstitoria, actio quod iussuand possible effects of direct agency against the third party.The author will examine the existence of elements of direct agency based on relationship between parties (for example exercitor and magister navis, exercitor and the third party and magister navis and the third party.

Keywords: master, actioexercitoria, actioinstitoria, iussum, praepositio;

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ARBITRATION AND FORMULARY PROCEDURE: THE ORIGINS OF ROMAN CIVIL PROCEDURE (english language)

Abstract: Understanding Roman law is of great importance for every contemporary lawyer dealing with private law. Many of the modern private law institutes have their roots in Roman law. This is the reason why learning Roman law and Roman legal tradition is necessary. The substance and the true meaning of Roman law institutes could be understood only through examination of the different Roman civil procedures. This article focuses on the origins of Roman civil procedure and especially the relation of ancient arbitration and formulary procedure. The article also aims to present the Roman concept of legal protection and the Roman law tradition in the field of arbitration.

 

Keywords: roman civil procedure, arbitration, formulary procedure, roman legal tradition.

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FORMALISM IN LEGAL TRANSACTIONS IN ROMAN AND IN MODERN LAW – EXAMPLE OF REAL PROPERTY (english language)

Abstract: Subject of this paper are formal requirements for transfer of real rights, specially over immovables, through historical-copmarative legal analysis of rules of ancient Roman Law and modern legal rules. Author develops a thesis that social and economic reasons for formalisation of that type of legal transactions were much alike, if not the same, in the old Rome as are nowdays. Research is dealing with types of things for which a transfer of rights had been and is formalised, with emphasis on immovables, and also with concrete formal requirements and procedures for transfer of rihgts.

Keywords: transfer of real rights, immovables, formal requirements;

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THE INFLUENCE OF ROMAN LAW AND THE HISTORICAL DEVELOPMENT OF THE RIGHT OF OWNERSHIP IN THE BALKAN COUNTRIES, WITH SPECIFIC REFERENCE TO THE REPUBLIC OF MACEDONIA (English language)

Abstract: Roman history offers opportunities to monitor development and change of a society, change of law, and the right of ownership. Ownership represents a change in the relationship between people, where the interests of legal entities are intertwined. It is an old legal institution, which emerged with the emergence of law. Property rights of the Romans were gradually evolving, but it is characteristic that different types of property, namely movable and immovable items, did not have an equal developmental path.

The Romans were the first who had the legal institute of possession, for which they developed two concepts: dominium and proprietas. From the beginning of Rome until the Law of the Twelve Tablets, there was the process of transforming collective property into the family ownership, and then into private ownership. Yet, the concept of the right of ownership was not regulated in the Law of the Twelve Tablets, and it took many centuries to develop the ideas and unclear notions conceived therein, and ultimately create the right of ownership institute. However, we must emphasize the importance of this institute for the Romans, as it was the first time that private property was recognized, which excluded societal and family property.

In the legal system of the Republic of Macedonia, the right of ownership is regulated in several legal document: the Constitution of the Republic of Macedonia, the Act on Property and Other Real Property Rights (lex generalis), and other laws which regulate specific issues related to the right to property. Although it is not explicitly stated, it may be concluded from the text of the Constitution that private ownership is a dominant type of ownership in the Republic of Macedonia, but it also envisages public and state ownership.

Keywords: Roman civil law, historical development, ownership;

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