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Correspondents' Reports

JURIST's Yugoslavia Correspondents are: Dr. Obrad Stanojevic, professor of Roman Law, Comparative Law, and Rhetoric at the Faculty of Law, University of Belgrade, and previously Visiting Professor at the Loyola University New Orleans School of Law, and Milan Parivodic, LL.M. (Lond.), M.Sci., Attorney-at-Law and assistant lecturer in Civil Law at the Faculty of Law, University of Belgrade.
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[Belgrade; Special to JURIST] This is the first in a series of JURIST columns on aspects of the the Civil Law of Yugoslavia. This particular column will provide general background information on Yugoslav civil law: its landmark codifications, its basic structure and the division of legislative competencies. In subsequent columns we will focus on specific fields, such as the law of obligations, property law, company law, foreign trade and investment laws, and other areas of interest to the international legal and business communities.

Introduction

Yugoslav Civil law is based on legislation (not case law), and belongs to the Germanic family of the Continental legal system. Historically, strong influences came from the General Civil Code of Austria, the German pandekten division, and the Swiss Civil Code. These influences were not direct; rather they came through three domestic landmark codifications. French, German, and Austrian jurisprudence made an impact on Yugoslav civil law through the university careers and practice of Serbian foreign-educated lawyers. In the field of business law, influences of international legal instruments (conventions, model laws, UCP-s and terms) and Common law (English and US laws) are now appearing to gain momentum as well.

Three landmark codifications

The first important codification came as early as 1844, when the Serbian Civil Code was adopted. It remained effective in the Kingdom of Serbia and the respective part of Kingdom of Yugoslavia until 1946. Actually it represented a locally customized (by incorporating some Serbian legal customs) and abbreviated version of the General Civil Code of Austria.

An original General Property Law for Montenegro, effective in Montenegro and the respective part of the Kingdom of Yugoslavia from 1888-1946, was brilliantly drafted by one of the leading Serbian intellectuals of the time - Professor Valtazar Bogi喨. Its then very modern legal apparatus applied, the sociologically analyzed local customs incorporated, and its lapidary drafting style of great literary value, still present a source of inspiration. While drafting this Code, Bogi喨 consulted inter alia the works of law reform committees which drafted the BGB, Japanese and Russian civil codes. It remains a curiosity, that among other novelties, the Montenegrin Code was a pioneer in incorporating the institute of abuse of rights into a legislative instrument (in 1888).

The third important codification is the presently effective federal Law on Obligational Relations, enacted in 1978. In effect, save for some amendments, it was drafted by Mihailo Konstantinovi, a charismatic professor of civil law at the Belgrade Faculty of Laws and a leading Serbian lawyer in the field. His inspiration came primarily from the Swiss Code of Obligations whose drafting style Professor Konstantinovic praised to be the right compromise between the minutely written BGB and the elegant eloquence of the Napoleonic Code. It is noteworthy that the Law on Obligational Relations is one of the few relicts which survived the brutal breakup of Socialist Yugoslavia and normally, with respective amendments, remained effective in states created on its territory.

The structure of civil law

Yugoslav civil law adopts as its structural basis the German pandekten division in positive law, jurisprudence and legal education: (i) General part of civil law, (ii) Property law, (iii) Law of obligations, (iv) Law of succession (inheritance), and (v) Family law. This traditional structure is broadened by the following branches of law: (vi) Law of habitation, (vii) Rights of personality, (viii) Intellectual property, (ix) Business (Commercial) law, (x) Conflict of laws (International private law) and (xi) procedural laws - to form the wider notion of modern civil law. A controversy remains whether labor law belongs to the corpus of civil law, due to its strong public law emphasis.

Business or Commercial law is an over-arching term denoting: (i) the Law of commercial contracts, (ii) Company law, (iii) Insolvency, (iv) Law of securities, (v) Industrial property and Competition law, (v) and special industry laws (e.g. banking, insurance and other financial regulation). The law of commercial contracts (general commercial contract law and commercial contracts) is regulated in the Law on Obligational Relations (1978), together with the general law of contract and classical contracts.

The civil procedure laws regulate the contentious, non-contentious and execution procedures.

The division of legislative competence

The legal system of Yugoslavia is founded on the Federal Constitution of the Federal Republic of Yugoslavia (1992) and the subordinate Constitutions of the two Republics, Serbia (1991) and Montenegro (1992).

The Constitutions, apart from regulating the organization and competencies of supreme bodies of the state, provide basic provisions and guarantees for various individual and collective rights, including civil law rights (such as rights to property, family law rights, inheritance, intellectual property, freedom of entrepreneurship, independence and equal standing of economic entities, right to fair trial, right of appeal, human rights, et alia).

The Federal Constitution adopts a solution similar to that of the 1974 Constitution of Yugoslavia. Namely, it provides that the legislative competence of the Federal State covers obligational relations, basic property legal relations, and civil procedure laws. Protection of the single Yugoslav market (internal trade and competition law), the legal status of companies and other economic operators (company and insolvency laws), monetary, banking, foreign trade, customs regulations, foreign credit relations, legal status of foreign nationals, and basics of the tax system, are in competence of the Federal State as well. It is evident that the extensive body of business law, economic law, international business law, and foreign investment law are in federal competence.

The residual competencies belong to the constituent Republics, which are nominally states as well. The Republics predominantly regulate taxes. It noteworthy that most of the important legal affairs of physical persons (parentage, marriage, inheritance, and real property, labor relations in part) remain in competence of the Republics. As obligational relations are in federal competence; as only a small part of property law is covered by federal legislation; as the law of succession and family law are in competence of the Republics - there is no constitutional possibility for enacting an integral civil code neither at the federal nor at republican level. Strong professional criticisms have been expressed against such fragmentation of civil law not based on legal arguments.

Dr Obrad Stanojevic
Milan Parivodic, LL.M.
JURIST Yugoslavia Correspondents

Faculty of Law
University of Belgrade

July 11, 2000

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