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• Fragmentation and changes in Hungarian succession law

  81-103

  Tibor Kiss

  Views:

  219

  The right to inherit is recognized in the Fundamental Law, the detailed substantive legal rules are laid down in the Seventh Book of the Civil Code. In recent years, the legislator has formulated rules of substantive succession in other legislation beyond our private law code (the Civil Code). According to the Registered Partnership Act, the rules applicable to the spouse apply mutatis mutandis to the registered partner, which means that the registered partner is also a legal heir. The special rules for the acquisition of ownership of agricultural and forestry land by succession by will are laid down in the Land Traffic Act (Act CXXII of 2013). On 1 January 2023, a new law will enter into force (Act CXLIII of 2021), which will supplement the succession law provisions of the Civil Code in the case of joint legal intestate succession of undivided common ownership of agricultural land by several heirs. The designation of a public body to represent the State in succession matters is provided for in a separate ministerial decree. The present article analyzes how all these complex, fragmented regulations make it difficult to enforce the law and the extent to which it hinders the speedy execution of probate proceedings. The present article criticizes the fragmented regulation and proposes the integration of the rules of the separate laws into the Civil Code, as this could contribute to a more efficient application of the law.

• The comparison of the civil law liability for the actions of courts and the civil law liability of attorneys in view of the standard of attributability

  128-148.

  Zsolt Zsurzsa

  Views:

  123

  It is a basic requirement of society that those who are infringed upon in exercising their rights, may enforce the sanctions of the infringement in a judicial process. This process is mainly executed by state courts in most legal systems, which are supposed to settle legal disputes by interpreting the relevant laws, and by taking the relevant case law into consideration. However, this is a complex process that requires professional legal knowledge from the parties. Attorneys are meant to be those professionals, who help people seeking justice to obtain their respective compensation, and also with other problems requiring legal expertise. The attorneys shall also execute this ask to the best of their knowledge. In some cases, however, this legal enforcement process may fail, which may result in the person seeking legal advice or compensation to lose its opportunity to pursue its claim permanently.
  This case might happen as a result of the actions or omissions of courts, or that of attorneys. In these cases, it is logical that the liability of these two actors of justice for the parties’ damages may be decided upon by assessing the quality of work that has led to a person suffering material damages. It would be easy to assume that the standard for the reasonable conduct for both actors is very high. However, apparently the standard for the reasonable conduct of courts seems to be a lot lower than that of attorneys in the judicial practice. In practice, only in case of the most severe infringements of courts may the injured parties receive compensation for damages, while a lot less severe infringement – or even quite the same infringements – may result in the attribution of the attorney’s liability.
  I intend to analyze this difference in the civil liability of the two actors in the light of the legal background, legal practice and the different tasks of courts and attorneys as well as the reasons of this phenomenon, and form an opinion on whether it can be justified or this practice should be discouraged. To do so, I analyze the relevant Hungarian judicial practice and legal science, and cite some foreign examples as well.

• Legal relations in German partnership under the Civil Code

  Veronika Szikora

  Views:

  49

  Partnership under the civil code is a harsh institution in Hungarian legal system. Despite of this fact, most of the European countries apply this legal entity a lot as a background for other, more complicated corporate forms. In my essay I demonstrate those rules in German Civil Code (BGB), which show the importance and opportunities of these partnerships.

  If we would like to describe the essentials of partnerships under the Civil Code, the most important question is the legal relations from both inner and external point of view. Internal relations mean an obligation between the parties, who form this partnership. It is natural that we can find both rights and commitments between founders. This is a contract but BGB says that all parties have equal rights and commitments in the same partnership. As a general rule of the Code, it is permissive, not cogent. BGB has basic regulation for operating such a partnership, but can be useful if founders live with this permissive opportunity and shape special rules for their partnership, which fit to their aims, functions, different financial potential of the parties.

  There is a chance for founders to neglect building a whole structure and organization for their partnership, if they want to operate it as an inner partnership, without external relations, focusing only for the rights and omissions between the parties.

  From all contract that establishes a partnership under the Civil Code membership rights follow. These rights cannot be transferred. A distinction can be made between administrational, common business management and financial rights. Rights to common business management can consist of right to information, right to supervision or the most important right to vote. Financial rights gather typical rights such as right to dividend or liquidity proportion. These rights are social omissions from the viewpoint of the partnership itself, as these are for the interest of the parties.

  The most important omissions of the founders are financial contribution to establish the partnership. This regulation results from that partnership is to promote common aim of the founders, and to achieve this, all of them have to make available pecuniary or non-pecuniary assets. According to a special rule of BGB, over against the other corporate forms, members of the partnership have no omission to increase or complete their assets.

  Management of the partnership is not only a right but an obligation too. A special omission is that all members and founders have to be loyal to the partnership. Because of the strong partnership character of this corporate form, this means that members have to keep the interest and aim of the partnership in view. They all are responsible for achieving the aim of the partnership and nobody can sit as a beneficiary. Loyal members have to keep secrets in connection with operating the partnership and of course the sudden obligation to inform the others of all events and experiences, which are in tight connection with the partnership and the interests of the parties. If any of the members breach these obligations, rules of damages can be applied in BGB.

  Assets of the partnership are special, because no separated corporate assets form. Financial and non-pecuniary contribution becomes the assets of the community of members. It is undividable and common. But these common assets are strictly separated from the private assets of the parties. Rights for profit and deficit are equal, but this permissive rule allows different regulation in the contract. The only cogent sentence is the prohibition of societas leoniana, i.e. nobody can be precluded of profit and deficit.

  External relations mean the representation of the partnership. In this case the most important law is the contract itself. In case of disagreement between the parties, there is a helping rule of BGB: members can act as a body. If we take into consideration the rules of liability, we can say that because of the lack of legal capacity of the partnership, individual liability has its important role. Generally this liability is unlimited, but there is a chance to agree with the creditor to limit liability. But this limitation is only valid for that legal transaction.

  Rules for partnerships under the Civil Code in Germany are more detailed and nuanced than in Hungary. Partnership is the basic type of civil law partnerships, such as limited partnership or general partnership. We have to consider that building up a more coherent regulation for these partnerships can be useful to categorize atypical corporations.

• Judgement of Lipche

  István Szabó

  Views:

  26

  In Germany the new constitution published in 1919 established a brand new and democratically based state structure. Beside the traditional forum of administrative courts a new court system had been established in connection with public law jurisdiction. After Germany lost the first World War, general depression made a big impression on German state structure too. One of the most significant conflicts of this period had risen between the Empire and its biggest member state, Prussia. On 20th July 1932 president of the Empire suspended the Prussian autonomy and seized the power of directing the member state. The German Court of State had to verify this decision. Because of the fact that the court held its session in Lipche, this judgement is called as the famous judgement of Lipche. There are several really significant and dogmatically important factors in this decision, which help us understand the legal structure of that age in the German Empire.

  In this study I examine extraordinary power of the monarch in the Republic of Weimar and its special control by the courts. Constitution gave the right to the sovereign to obtain the regulations of the constitution by force in member states. There was a special right that entitled him using uncommon orders in case of attack against public order and public security. These rules ensured the unity of the Empire.

  The speciality of this judgement is that the Court qualified the order of the monarch unlawful because of the lack of the two circumstances mentioned above. To verify this decision court had to examine not only the nature of its procedure but the meaning of unity in the whole Empire, the aim of the constitution and these special rights of the monarch. The court focused on the examination of culpability in a member state. The conclusion is that intervention is legally based not only when a member state breaks the law with culpable behaviour but when breaking down of public order exists. In this special case the court split this practice and qualified the suspension of autonomy unlawful, but it found that other orders of the sovereign were acceptable. The result was that the autonomy was renovated but the Prussian government did not have the right in those cases, which were deprived by the monarch.

• Jurisdictional Constants and Doubtful Questions in Recent Hungarian Jurisdiction of Damages for Non-Pecuniary Loss

  Tamás Fézer

  Views:

  54

  Since 1992, date of Constitutional Court’s decision No. 34/1992, certain rules cannot be found in Hungarian Civil Code. There is only a part of a sentence that gives right to any injured person to claim damages in case of personal injuries. More than 10 years after the cassation we are able to look through the legal practice in connection with damages for non-pecuniary loss. The recent re-codifying process plans a brand new institution to substitute and follow damages for non pecuniary loss: pain award. To establish a decent regulation of pain award, jurisdiction of the last decade cannot be neglected. This essay aims to gather typical and crystallized methods of judgements in certain cases, which could be seen as essential and accepted unwritten rules of jurisdiction concerning this field of damages.

  One of the most difficult problems to solve is the question of amount. This field of damages for non-pecuniary loss is always problematic, because all of the cases are different. Although there are similarities between cases if we examine just damages themselves, but due to the difference of human personality it is almost impossible to give exact phrases and rules to help our judges. We can say that highest amounts are generated by assaults against physical integrity and life. Examination during a legal procedure concentrates on the stress caused by the injury, number of injured rights, age of the injured person and the durability of the harm. If the injured person contributed to the injury, it generates reduced amount of damages.

  Method of compensation is really simple for the first time. Hungarian legal system knows two different types for the method of damages: in kind or in money. Former one is inapplicable for non-pecuniary losses. If we compensate in money, there are two solutions: injured person can get the whole sum immediately or we can choose allowance as well. The adaptation of allowance is rather small in Hungary, in spite of the advantages this legal institution could offer. It does not mean res iudicata, so it is flexible and offers opportunity to adjust to changed circumstances in the future: both duration and amount of allowance could be changed.

  It is an interesting question whether personal circumstances of the misdoer could be examined when calculating the amount of allowance. The answer is not unambiguous. Civil law focuses on compensation for the injured party, not the punishment of the misdoer. In spite of this essential lemma, it is necessary to take into account the solvency of the defendant, if we want the plaintiff to get the adjudged amount really.

  Youth is not the only reason of allowance, sometimes old age could be a well-based legal ground for application of this method of compensation as well. It is really important to examine the personal circumstances of the injured party to choose between these two methods: which one serves the aim of compensation, moderation of lost joy of life the most.

  Civil Code precludes the possibility to apply both methods together for the same plaintiff. In my opinion the solution of German Civil Code (BGB) should be considered. BGB allows both methods together. It means that possibilities could be wider and fit better to the actual case and its circumstances.

   Although obligation of damages has two parties traditionally, in a legal procedure of damages for non-pecuniary loss this bipolar situation can be proven false. On the part of the misdoer it is an interesting question what kind of damages can be blamed the state. In Hungary we can meet rules order the responsibility of the state in the field of medical damages or damages for unlawful arrest and illegal imprisonment. Amounts of damages are the highest in these situations.

  On the part of the injured person an often argued problem the position of secondary victims’ claims. These claims are always problematic, because personality rights belong closely to the person himself and there is no possibility to inherit them. Hungarian Civil Code admits compensation for relatives only in case of injuring reputation of a dead person. There are several decisions in which courts admit these claims on the ground of their sui generis base. It is a decent solution, but because of the uneven jurisdiction it needs codifying.

  We can say that there are a lot of jurisdictional constants in Hungary in connection with damages for non-pecuniary loss. These are easy to collect and most of them are able to be codified in a strictly non-taxative style. But this examination showed that doubtful questions can also be found in Hungary especially the application of allowance, claims of secondary victims. To arrange these problems, starting point should be jurisdiction itself.

• Prevailing regulation of the termination of parental control under the Civil Code

  12-18

  Tímea Csizmadiáné Pethő

  Views:

  171

  Being a judge practicing on the area of the law of crimes I rarely come across with the need to apply civil law. Nevertheless, a handful legal concepts may be applied also by criminal courts. One of these concepts is the termination of parental control. Before turning to relevant case analysis in my study, I focus on the principle of the "child's best interest" which is referred to under article 3 of the New York Convention on the rights of children and which has a general fundamental applicability in respect of all provisions of the Convention. This principle must apply not only in civil, but also in criminal proceedings and generally in all types of proceedings irrespective of the area of law such proceedings fall under. Special emphasis is attributed to the legal consequences of terminating parental control and to the distinction of cases where the termination of parental control by the court is mandatory and where such a decision is made in the discretion of the court. I pay separate attention to cases where the court has convicted the parent of a crime committed wilfully against the convicted person's own child and in which cases the convicted person is sentenced to prisonment and as a result of these the criminal court has competence to order the termination of parental control. I address also some issues relating to matters of proof and evidence in connection with crimes of domestic violence. Finally, I explain the nature of a child-focused jurisdiction through the presentation of the Hungarian system which ensures to respect and to give effect to the rights of children to the maximum extent possible. The ability of providing special treatment for children in court proceedings is of the utmost importance.

• Assessing of company shares in marital property sharing lawsuits

  László Csirmaz

  Views:

  115

  New types of assets has appeared in property lawsuits in the past 25 years, such as company shares (one of the most important kind of valuable rights). This fact made forensic experts - who deal with evaluation of these assets - to obtain additional comprehensive knowledge.  The Kuria quoted that "the expert opinion is an underlying proof for the court judgment, an objective and precise means of proof, which usually affects directly the decisions of the court," and I think the date of the completion of the trial can be affected significantly.

  The author of the study and writing of the addition was designed to court pointed out weaknesses in the analyzed case by case decisions perceived peer involvement draws the attention of the interested public on the company's assessment of literature on the importance of knowledge. To that aim the light of the experience gained from the analysis of the case law, above all, the study seeks to publish the company's fundamental valuation basic concepts summarize the literature on the same value in generally accepted and applied definitions and outline the applicable assessment methods. It is certain that the regulation of property relations in the new Code requires the renewal of judicial regulation of professional activity as well.

• The polluter pays principle in the Hungarian civil law, with special regard to the liability for hazardous operations

  89-106

  Edit Sztancs

  Views:

  84

  The polluter pays principle is one of the basic principles of international environmental law
  mentioned directly firstly only in 1972, however the principle were declared in 1929 in the
  well-known Trail Smelter Case. The polluter pays is an economical principle, and in the
  meaning of this principle the costs of pollution shall be shared between industrial companies
  and consumers. Taking into consideration that after applying this principle price of products
  will be higher than before, industrial companies shall reduce their pollution in the interest of
  their (and their products’) competitiveness. Seeing the development of the principle in EU
  level, the polluter pays were mentioned first time in the first „programme of action of the
  European Communities on the environment” adopted in 1973. However it is questionable
  what polluter, pollution, obligation of polluter and costs of pollution mean exactly, and for
  this reason this principle cannot be applied automatically.
  In this study I try to examine how the polluter pays principle works in the Hungarian national
  law, especially in the Hungarian Civil Code. For this reason I examine the applicability of
  Article 345 of the Hungarian Civil Code („Damages Originating from Hazardous
  Operations”), with special regard to the case-law of the Hungarian civil courts. I also try to
  introduce the possibilities and obligations of the public prosecutor in environmental issues.

• Domestic violence in a literary work (Zsigmond Móricz, It is nice and good at the end of the world)

  66-76

  Ágnes Pápai-Tarr

  Views:

  500

  In my study I am going to present a rather complicated issue, namely a few problems of domestic violence based on a less-known short story by the Hungarian writer Zsigmond Móricz. I chose this story because it is still relevant today, it could even be set in 2017, as it basically depicts domestic violence in its complexity. This story by Móricz proves that the phenomenon of domestic violence is not at all new, given that in the beginning or the middle of the 20^th century we can see the same complex social problem which present-day criminal law has to face. Hungarian society 50 or 100 years ago was not exempt from domestic violence either. We may also claim that the factors enhancing domestic violence were even stronger than today. The story aligns several dimensions of domestic violence, as it shows examples of both child and wife abuse. I am going to analyse the crimes depicted by Móricz according to the criminal laws effective today, and I just tangentially touch upon the judgment of the offences in the age of writing. This way, first I analyse the questions of child abuse, focusing on the right of punishment, which is still relevant in today’s criminal system as a cause for miscarriage. Then I present a detailed analysis of the bearing of case of partner abuse in the framework of violence in relationships, which exists in Hungarian criminal law since 2013.

• The temporal scope of the new Criminal Code in context of provisions of the General Part

  63-72

  Zsófia Antal

  Views:

  41

  Act of 2012 on the Criminal Code came into force on the 1st of July 2013 after a long codification period.  A new Criminal Code always leads to problems in application of law, therefore, it is quite actual to make an examination on new provisions. Some classic provisions of the General Part remained the same, although the penalty system and some other regulations have been renewed. The temporal scope of the new code will possibly be in focus for years.

  The aim of this research is to take an examination on the case law and judicial decisions of Hungarian courts related to temporal scope of the new Criminal Code that is a significant part of this paper. The new Hungarian Criminal Code has been required to be prepared more severe than the former code. The other aim of this research is to revise the new provisions of the General Part resulting in statements about whether these new rules are more severe or more lenient than the Act IV of 1978.For this purpose a close legal interpretation shall be taken into account.

• Academic freedom in the jurisprudence of the Hungarian Constitutional Court

  Petra Lea Láncos

  Views:

  44

  The change of political regime in Hungary has also brought about a democratic commitment to the constitutional guarantee of human rights and fundamental freedoms. Among other freedoms, academic freedom was redefined in positive constitutional law, and the stage for judicial interpretation was set. The Hungarian Constitutional Court has been in operation and delivering rulings for almost two decades now, also shaping the contents und guarantees of the fundamental right inherent in academic freedom. In the Court’s case law, academic freedom has been reflected upon chiefly in two aspects: first, from the viewpoint of the freedom of scientific research and the access to historic archives, bearing a great potential for the post-communist society in facing its burdensome history and dealing with past grievances and, second, as the guarantee of the autonomy of institutions of higher education, gaining relevance in the last few years in the light of the reformed Act on Higher Education. However, academic freedom has remained a neglected field of study of constitutional law scholars, and a detailed elaboration of this fundamental freedom has yet to be undertaken.The present article offers a brief insight into the jurisprudence of the Hungarian Constitutional Court related to the concept and scope of academic freedom. As an illustration, the recent case law related to the autonomy of institutions of higher education is introduced, with an attempt to sketch the judicially set guarantees and limits of this fundamental freedom.

• The changes of the legal regime of tobacco advertisements in the laws of Hungary

  László Pribula

  Views:

  54

  Since the change of the regime the economic role of advertisements has changed significantly. Advertising forms a considerable part of economic activities, the cost of which constitute a growing portion of the expenses of a given enterprise. The mass-appearance of advertisements has altered the relationship between consumers and advertisers, it has restructured consumption habits and the importance of advertising in media.

  The most significant modification of the Hungarian Advertising Act occurred by (Act I of 2001), which was in large passed with the consent of the advertising profession. The modification introduced the concept of deceptive advertisements, apparent comparative advertisements and special offers. Comparative advertisements were also regulated in a satisfactory way. However, several legal institutions were introduced as well, which should have been included in competition law. In the last two decades actions against unlawful advertisements were largely based on competition law, which restricts advertising activities violating fair competition in general. Advertising Decree and later the Advertising Act regulated the restriction of advertisements of certain goods and services, or defined the restrictions on certain advertising activities. Due to the modification, the role of Competition Act became less significant, since Advertising Act also contains most prohibitions on advertising activities that were defined in the Competition Act. In addition, in the case of violation of regulations on deceptive and comparative advertisements, Advertising Act denoted the Bureau of Competition and the court as chief acting powers, whereas the violation of rules on apparent comparative advertisements falls in the scope of the Consumer Protection Authority.

  What is more, the (Act I of 2001) “smuggled” the entire prohibition of tobacco advertisements into the Advertising Act, which totally contradicted with the opinion of advertising profession. Thus Hungary, similarly to France, joined the strictest practice in this question. It is also disputable whether such restrictions promote the fight against smoking, and it was certainly disadvantageous that legislation decided in the question without involving the profession, for which there had been no precedents so far.

• Civil law dogmatic deficiencies and legislative hiatuses in a private law legislation: Short case study

  49-66

  Tibor Kiss

  Views:

  81

  Based on the Government Decree 383/2023 (VIII.14.) on the ministerial approval of lease contracts of companies directly or indirectly majority-owned by the state, the article presents a case study showing that the legislation suffers from numerous "legal errors" that violate the provisions of the Legislation Act and is not in line with the fundamental doctrinal principles of civil law. The case study describes in detail the provisions of Act CXXX of 2010 on Legislation that the Government Decree does not comply with and shows how imprecise wording leads to problems of interpretation. The paper points out the private law terminus technicus which the legislator did not apply correctly (the party of the lease contract, consideration, invalidity - ineffectiveness) and the author proposes to correct the errors and to clarify certain normative provisions.

• The Legal Aspects of the Hungarian Health Sectoral Wage Rise Through the Eyes of a Practising Labour Lawyer

  Mariann Bácsi

  Views:

  106

  My essay analyses the rules of the wage-rise in the Hungarian health service system performed in two stages in 2012 and 2013. The difficulties of applying the rules and the continuous changes in the law are presented from a practical viewpoint.

  The personal and material scope of the raise in the health sector was the same circle: higher education institutions and religious institutions performing public mission that provide for in- and out-patient care. The wage-rise affected the employees having service relations with the above mentioned institutes in civil servant and commissionaire positions.

  In 2012 altogether86.000 persons benefitted from the raise (67.978 of them were directly involved in the healthcare), and 95.000 persons in 2013. The Act LXXXIV of 2003 distinguishes three groups of employees regarding the continuous and retroactive (ex post facto) raise of wages: doctors, graduates, pharmacists and health workers. In the case of these groups no uniformed wage scale exists, so different rules must be applied.

  The retroactive wager is in the case of the doctors depended on their salary, and the continuous rise was realized by a new wage scale. Other graduates and pharmacists gained a fixed rise. The retro active rise of the health workers was also fixed, the continuous wage rise was realized through a new wage scale and it depended whether their legal relation with the employer was established before or after the 1st of the July 2012.

  The complicated and frequently inaccurate regulation was corrected by the legislator, when a uniformed wage scale was directed to each group of employees in the September of 2013. A new sectoral wage scale was applied for the doctors and the health workers, and for other graduates and pharmacists the old public wage scale must be applied.

  Contrary to the uniformed regulation, there still remained legal institutions where the day/night duty, readiness, shift bonus, overtime must be specified according to the legislations in force on the 30th of June, 2012.

  Summing up, the legislator finally prevented the emigration of the highly qualified specialists by the execution of the wage rise in the last two years.

• Family businesses and shareholders' agreements - possible links

  99-124

  Zoltán József Fazakas

  Views:

  75

  The concept of a family company is not defined in current law. In the case of companies in which members of a family have a decisive influence, it allows only a formal approach. However, in addition to the formal approach, the substance of the company, the specific nature of family interests and values, justify an examination of the company from other points of view, which allow not only the long-term commercial economic activity but also the specific nature of family relationships to be examined on the basis of company law. It is therefore of the utmost importance that family companies should reflect family relationships, the need to operate intergenerationally and protect the family nature of the company, and ensure the family's long-term prosperity. The combination of the formal and substantive elements makes it possible to conclude that family companies are special legal entities in which a particular family community has a decisive influence, has and represents specific interests and values, among which the protection of family assets, the aim of intergenerational operation and the safeguarding of the long-term well-being of family members are to be highlighted. The Civil Code provides for multiple means of achieving these interests, in addition to the classic instruments of company law, including the possibility of shareholders’ agreement.

• Interpretation anomalies in the Vienna Sale Convention damages practice

  14-26.

  Sándor Boros

  Views:

  230

  The essay is about the interpretion anomalies in connection with damages law practice of The United Nations Convention on Contracts for the International Sale of Goods (CISG). This seems to be an essential problem regarding to that the Convention’s breach of contract-system is highly relevant, whereas it must provide a mechanism, which serves international trade between countries with huge legal, economic and social disparaties. At the heart of the system we find damages, which provides an efficient and rapid solution to cure the dysfunctions which can occur with respect to cross-border commercial relationships.

  The provisions of the Convention are of a universal nature, thus they require uniform interpretation and application by the courts of the Contracting States, therefore Article 7, which deals with interpretation of rules and the filling of legal gaps, is indispensable for the successful application of the Convention and the achievement of its objectives. In this essay by analyzing the relevant case law, I was primarily seeking the answer to whether the judges of different countries validate the universiality of the Convention with respect to damages law. In order to answear the question I have analyzed the Convention’s damages practice in relation to interpretation principles set out in Article 7. Within this I have systematically reviewed the practice of Article 74 of the Convention, analyzing a total of 144 cases from 2006 to 2016.

  The revision shows that nine decisions were made during the period under review, where the court has applied national doctrine of liability, law, or practice in connection with the interpretation of Article 74. This method obviously does not promote the realization of uniformity. An internationally uniform sales law will only be realized if it is uniformly applied. For the purpose of the interpretation of the Convention, it follows that requirement the Convention’s provisions must be understood and applied autonomously, separated from their possible national roots. The legal problems discovered in this essay tries to highlight on those issues, which require more attention from the courts, thus confirming the universal character of the Convention.

• The Modification of Public Procurement Contracts

  57-62

  Izabel Ágnes Tarkó

  Views:

  54

  In the recent study we examine the Public Procurement Law as a clear framework for possibilities to amend procurement contracts after completion of the tender procedure in Hungary.

  Under the amendments, further modification of procurement contracts is permitted if the modifications are non-substantial; or substantial, but in exceptional circumstances could apply regardless of whether the modifications are substantial or not.

  Substantial modifications are modifications that would have made a difference to bidding or participation or selection of tenderers, or where the economic balance – risks and their compensatory measures – are changed in the favour of the supplier, or including work not provided for by the initial contract, replacing the supplier.

  Substantial modifications are permitted only if the tender documentation has clearly provided for the possibility and if the conditions on which the modifications plus the extent and nature of possible modifications are acceptable, or if the modifications are made within a specific negotiating procedure, or if the supplier is replaced due to restructuring or transfer of enterprises by law.

  So far the contracting authorities are very limited in the scope of modifications. This meant the Act CXLIII of 2015 on Public Procurement provides quite strict conditions to bind economically more successful contracts. Additionally we examine the new EU Directive on public procurement and Case Pressetext (C-454/06) of the European Court provides the guidelines which even substantial modifications of contracts are permitted without carrying out a new tender procedure.

• Act on Business Advertising Activity and the protection of inherent rights under Hungarian civil law

  Tibor Kiss

  Views:

  92

  There is a significant inconsistency within the domain of enforcement of inherent rights in the Hungarian regulation. The protection of the inherent rights is based on the section 75 of Act IV of 1959 (hereinafter: „Civil Code”), which provides that inherent rights shall be observed by everyone and inherent rights are protected by law.

  The lack of consistency can be led back to the difference between the provisions of the Civil Code and Act LVIII of 1997 on Business Advertising Activity. Under Section 85 of the Civil Code inherent rights may only be enforced in person.

  There are two exceptions to the above rule laid down in the Civil Code:

  • The legal representative of an incompetent person, or the relative or conservator of a missing person whose whereabouts are unknown shall be entitled to proceed in the protection of that person's inherent rights.
  • In the case of impairment to the memory of a deceased person, the relative and/or the person having been named as the heir apparent in the will of the deceased shall be entitled to file a court action. If conduct causing defamation to a deceased person (former legal person) infringes upon the public interest, the public prosecutor shall also be entitled to enforce this inherent right.

  The Act on Business Advertising Activity provides for several general advertising prohibitions and restrictions. Under Section 4 of this act advertising may not be published if it infringes personal rights, respect for the deceased or rights related to the protection of personal data. Under Section 16 of this act advertising control proceedings may be initiated upon request or ex officio. Based on the regulation of the Act on Business Advertising Activity advertising control proceedings may be requested by any person whose rights or rightful interests, or legal status is injured by violation of any provisions relating to commercial advertising activity. If the aggrieved consumer cannot be identified, or if enforcement of the claims is inappropriate considering the number of consumers injured, administrative agencies or non-governmental organizations providing for consumer interests shall also be entitled to initiate proceedings.

  When the regulations of the Civil Code on enforcement of inherent rights are compared with that of the Act on Business Advertising Activity, it can be established that provisions of the latter act are not in compliance with the provisions of the Civil Code. On the basis of the decision No. 1270/B/1997 of the Hungarian Constitutional Court, the inconsistency is not significant, the different regulatory of the mentioned acts is not unconstitutional. I take the view that in order to achieve consistent regulation the Act on Business Advertising Activity should be modified by prohibiting the advertising control proceedings initiated ex officio in relation to the advertisings which infringe personal rights.

• Patient’s right to self-determination and its interpretation in case law

  145-172

  Judit Zákány

  Views:

  93

  The aim of the study is to examine the patient's right to self-determination and the present issues of legal interpretation. The right to self-determination – along with the right to information – is one of the most important patient’s right. It ensures that the patient can be a well-informed person, who is not just a vulnerable subject suffering from lack of information. If this right prevails properly, the patient is able to make decisions based on his own interests and values during his medical treatment.

  The focus is on the narrower interpretation of the right to self-determination, namely the consent to interventions, as well as its limits and the exercise of the right by deputy decision-makers. In addition to the legal content and interpretation of the right, we consider it important to cite examples of recent case law from the last few years and to present the most significant findings. The examination of the right of self-determination is current and necessary, since the legal disputed related to this are still present nowadays, and the case law is constantly evolving in this area.

• The role of interest in civil processes

  42-46

  Tibor Kiss

  Views:

  256

  The study reviews the enforcement of various interest-related claims in civil litigation and their special litigation rules, emphasizing that there are few specific norms in the Code of Civil Procedure from a procedural point of view compared to the enforcement of pecuniary claims. The study compares the interest provisions of the Act III. of 1952 and the Act CXXX of 2016, and seeks to provide adequate answers to enforcement issues arising from regulatory gaps. The article states that the law generally sets out some specific procedural provisions for contributions to be enforced together with the principal claim, which are also subject to interest as a contribution to the principal claim. The number of purely interest-specific provisions in our current law is negligible. The analysis covers the following specific legal provisions concerning interest: the amount in dispute, appeal against the interest provisions of the judgment at first instance, the admissibility at second instance of an increase of the claim for payment of interest, the admissibility of an application for review only of the provisions of a final judgment concerning interest. The study evaluates trends in court practice through analysis of ad hoc court decisions. The author states that uniform and coherent case law is in the best interests of the claimants based on clear legal provisions.

• Limits of advertisements concerning the length and size of them

  László Pribula

  Views:

  130

  Advertising forms are considerable parts of economic activities, the costs of which constitute a growing portion of the expenses of a given enterprise. The mass-appearance of advertisements has altered the relationship between consumers and advertisers, it has restructured consumption habits and the importance of the advertising media. Advertising law defines the restrictions that have to be observed during business and advertising activities. The regulation of advertising is characterized by an approach focusing on content. However, in some cases the legislator also considered it important to determine the form of advertising besides its content. In the case of most advertising media there are only few regulations on form. The Media Act (Act I of 1996) dedicates a whole chapter to restrictions on advertising. The most important part of the Media Act is the regulation of the way commercials can be shown. The regulation of maximum advertising time, the type of programmes which are suitable for advertising and the period of time that can pass between commercials is given priority. 

• Modifying the approach concerning the infliction of punishment - according to the contiguous changes of Act of Criminal Code

  96-110

  Csilla Hati

  Views:

  54

  The criminal code has had a number of essential revisions during the past years, which has received distinct viewpoints concerning the improvement of punishments from the judiciary in criminal cases. The reasons of modifications can be explained mainly by the different penalty politics coming into prominence, occasionally having respect for different social approaches. It is periodically distinct which activities are indictable offences, which of the punishments serve the prevention of committing an act of crime the best in the fight against criminality. It is interesting to study how these sweeping changes can appear and effect in the daily legal activities. How far can the changes lobby the judges and prosecutors? Which punishment is ideal in the case - suiting to the aim of punishment – in the interest of the protection of society? As a result, analyzing judgments and interviewing some professional jurists (as far as I can) the different requirementson infliction of punishments do not appear immediately in practice and do not appear in the similar way concerning the functions of judges and prosecutors. It is not machines that pass judgement in a case, which could modify the expectation concerning the result.

• Is the COVID-19 Really a Technical Question on the Part of the Attorney?

  5-19

  Judit Balogh

  Views:

  129

  Abstract: The COVID-19 pandemic has disrupted our daily lives in spring 2020. Many of the effects of the closures and home-working practices that accompanied the epidemic are still being felt in civil procedure today, whether positive or negative. On the positive side, the courts and authorities have recognised the potential of online communication, so that some of the proceedings can be moved online even in periods when there is no epidemic, saving time and energy. There are mixed views on the benefits of the fact that courts are ordering more only written preparation for the commencement of civil litigation proceedings than in the past. Lastly, it is negative that, to date, no satisfactory solution has been found for dealing with cases of absence due to sudden illness. This study examines the practice in the field of sickness absence: on the basis of an order of the Hungarian High Court (Curia) of February 2021, issued under the specific circumstances of a case of emergency, it seeks to shed light on the real content and role of the right to representation (and the substitution of the attorney) in civil proceedings.

• Product warranty – a new legal institution in the protection of the consumer interest

  2-7

  Zoltán Ambrus

  Views:

  48

  This study presents the product warranty, a new element of the Hungarian system of law. The author describes the main features of product warranty in comparison with warranty and product liability. The author states some comments on the regulation. In the end the importance of product warranty is presented by stating a case.

   

  Egy új jogi szabályozás megjelenésekor adott a lehetőség az elméleti és gyakorlati szakemberek számára, hogy a korábbi normaszöveghez történő hasonlítással tárják fel és elemezzék a változásokat. A Polgári Törvénykönyvről szóló 2013. évi V. törvény (Ptk.) nem vitásan érinti a civiljog teljes spektrumát, új elemekkel frissítve a már kialakult magánjogi intézményrendszert. Jelen írás a termékszavatosság szabályainak elemző bemutatására tesz kísérletet.

  A magyar jogi szabályozásban előzmények nélküli jogintézményről van szó, ezért a meghatározó jellemzők bemutatása más, a hibás teljesítéshez kapcsolódó jogintézményekhez történő hasonlítással történik meg. Ennek során a kiindulási alapot a hibás teljesítésből eredő igények „anyajogának” tekinthető kellékszavatosság jelenti, ezen túlmenően a hibás teljesítéssel okozott károk megtérítésére (a továbbiakban: kártérítés), valamint termékfelelősségre vonatkozó szabályok kapnak szerepet.

  A termékszavatosságra vonatkozó rendelkezések a Ptk.-nak a kötelmi jogi szabályokat tartalmazó hatodik könyvében, annak XXIV. fejezetében, a hibás teljesítésre vonatkozó rendelkezéseknél szerepelnek a kellékszavatosságra és kártérítésére vonatkozó szabályokkal együtt. A hibás teljesítésből eredő fogyasztói igények körében további igényérvényesítési lehetőséget teremtő termékfelelősségi szabályok ettől eltérően a szerződésen kívül okozott kárért való felelősséggel szabályai között, a LXXII. fejezetben kaptak helyet.

• The principles of property value and the appraised value in the system of the tax debt execution proceeding

  Péter Darai

  Views:

  199

  In my essay I’m trying to answer some questions in the topic of the appraisal of real property. During my work – in National Tax and Customs Administration of Hungary – I daily meet the problem that the process of appraisal is very complex activity because of many internal and external factors. It needs great attention because the appraised value influences the execution of movable and immovable property and determines the purchase price in compulsory auctions. With this in mind it effects on refundation of tax debt. It is important to note at the same time that the target of the execution is not the recovery of the debt at any cost; at least essential guaranteed procedures which protect the rights of the debtors. In the following lines I focus the operative legislation of the tax execution proceeding and I describe the concerning judicial precedent with particular attention te case law of the Supreme Court. The importance of the subject presented by some decisions of the Constitutional Court. In my opinion without exaggeration the theme is so interesting the recently changed legislation cannot be connected to it because in theory anyone can get into a life situation that execution proceeding so it is worth knowing some rules about it.