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About the necessity of a new criminal act: or notes on the criminal offense of agreement in restraint of competition in public procurement and concession procedures
99-121Views:408The criminal act included in Subsection 1 Section 420 of Act C of 2012 on the Criminal Code (hereinafter referred to as Criminal Code) is the only one in the entire Criminal Code where the disposition includes the public procurement procedure as an element of the criminal act. In spite of this, further punishable criminal acts may be associated with the public procurement procedure which are inevitably committed or completed in terms of the legal stadia of the crime, provided that any criminal relationship is established between the parties when public funds are allocated during the course of a tendering procedure.
The non-exhaustive examples of the – examined – conduct subject to proceedings show that the basis of an unfair public procurement procedure is the committing of any of the corruption criminal offenses, and then, after the public procurement procedure had been concluded, the felony of agreement in restraint of competition will constitute the criminal act without prejudice to the ne bis in idem principle, i.e. the criminal act specified in Subsection (1) Section 420 of the Criminal Code is not the definition of public procurement corruption. In order to verify this, I will outline what I personally understand as public procurement corruption.
The primary aim of the study is to support the argument that the delict referred to above is unable to fulfil the intention of the legislator, namely decreasing public procurement corruption. As a secondary focus, the reasons behind the necessity of a new criminal act are referred to.
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The Legal Status of the Inventor in the First Hungarian Patent Act
19-33Views:97The first Hungarian Act on Patents was adopted in 1895. The study examines the regulation of the inventor’s legal status in this act and the problems the legislature had to solve. In the first part of the study the inventor’s rights are described regarding the inventor’s personal and valuable rights and interests. By the beginning of the 20th century license became the most important valuable right and interest, although its regulation could not be found in any act. In fact, a decision of the Patent Court in 1928 declared the regulation of leasehold valid, which raised greater and greater difficulties in legal application from the second half of the 20th century. The second part of the study examines the inventor’s obligation of payment and functioning. The latter is one of the special features of the intellectual property system which is regulated by the Industrial Property Union.
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The Beneficium Novorum in the Light of the Hungarian Procedural Reform Movements of the 19th and 20th Centuries
28-44Views:120The study examines the historical development of the beneficium novorum in the 19th and 20th century. This legal institution means the right of the parties to make such submissions that had not been made in first instance proceedings. Act I of 1911 (the first Hungarian code of civil procedure) made it possible without any boundaries based on the appellatio of Roman law. Act 1930 of XXXIV, however, restricted the freedom of submission in time with the enforcement of the principle of contingent cumulation. The study has a practical approach since it examines the question through archive sources and high court decisions. It argues that the application of the principle of contingent cumulation in the appeal proceedings was a successful legislative move which led to their shortening.
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Looking for Solutions of the Hungarian Legislation of Public Procurement
24-46Views:109The Hungarian public procurement law will be renewed from 1th January 2012. Because of the new Act on Public Procurement (PPA) the development of the legislation of the last years should be reviewed. What kind of problems did the legislature have to solve? How could the specificities of an adequate public procurement act be defined? How does the judicature affect the legislature? This study tries to give answers from the point of view of the judicature. It examines the results of legislation, the experiences of practice, the earlier amendments and the most essential attributes of the new PPA.
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The Criminal Provisions of the DDoS Attacks in the United States, Eu- rope and Hungary
66-83Views:318The Internet offers an opportunity to launch y wide range of cyberattacks such as Distributed Denial of Service (DDoS) attack, which exploits the vulnerabilities of the system network without access. DDoS attacks continue to grow in intensity and complexity. Due to the Crime-as-a-Service business model and online criminal markets DDoS attacks have become accessible to anyone willing to pay for such services. It can be launched easily, although it may cause serious social and economic damage. The aim of this paper to present the criminal provisions of the DDoS attack in the United States, Europe and Hungary.
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Is the New Regulation Justified? Applicability of the New Rules of Self-defense in Case-law
129-147Views:257In the history of the regulation of self-defense, Act C of 2012 has resulted in the most substantial change. The greatest innovation in the act is the introduction of the situational self-defense, which creates an irrebuttable presumption that the unlawful attacks carried out under certain circumstances shall be considered as attacks against life. The new regulation has been criticized a lot, mostly because there are fears that the new rules of law will be misused. Through the case-law of the Supreme Court relating to self-defense in the last ten years, this study intends to reveal whether it was justified to include the situational self-defense in the new law or whether the concerns in connection with situational self-defense can be considered legitimate.
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The Effect of the Jurisprudence of the ECHR on the Hungarian Criminal Procedure Act
128-150Views:274The case law of the European Court of Human Rights and the European Convention on Human rights set the minimum level for the protection of fundamental rights that has to be guaranteed by all contracting parties, although national laws can establish higher standards. Point II of the general explanations of Bill No. T/13972 on the new Act on Criminal Procedure states that “meeting the requirements of the Fundamental Law of Hungary and the obligations of international law and EU law obviously mean a safeguarding minimum.” In Hungary the case law of the ECHR is reflected more and more both in the judgements of Hungarian courts and in the guidelines of higher courts but the difficulties of establishing interpretations in harmony with ECHR case law are common. The paper analyses the judgments of the ECHR in Hungarian cases between 2013 and 2016 related to pretrial detention, effective defence and the circumstances of restraint.
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A Cutting-Edge” Criminal Procedure? : Some Reflections on the Modernization of Hungarian Criminal Procedure Law
11-36.Views:263The study analyses the new Hungarian Criminal Procedure Act that entered into force in the summer of 2018. One aspect of the analysis is whether certain institutions of the law fulfil the constitutional requirements of criminal procedure. The other aspect is a sociological one. The past decades have brought many new developments in the field of society, economy and technology. The study, therefore, also revolves around the question of whether the new Criminal Procedure Act provides an adequate response to these challenges. The main finding of the study is that the legislation made the first steps in the right direction, however it did not introduce all the changes that would be necessary for a fair and modern criminal procedure. Besides, the act reflects predominantly the interests of the authorities while the rights and interests of other participants of the criminal procedure are not taken into consideration with the same weight
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The New Hungarian Act on Irrigation in the Light of a Landscape-Orientated and Land-Use-Based Water Management
42-66Views:380The present article relates to water governance, and within that a specific Hungarian problem, namely, the cumulative water-related damage occurring in the Great Plain (floods, droughts and inland water) and the ambiguous situation of environmental services. Due to the complexity of the problem, the solution itself can only be systematic and can therefore only be solved in the context of integrated and adaptive water management. In Hungarian, this water management is defined as landscape-oriented water management by a research group connected to the Hungarian Academy of Sciences. The possible implementation of landscape-oriented water management has recently emerged in connection with the development of agricultural irrigation. The novelty of this study is the assessment of the new Hungarian Act concerning the irrigation taking into account the different aspects of hydrology, pedology and jurisprudence.
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Agricultural irrigation in Hungary, with special regards to the water resources levy and agricultural water supply fee
46-61Views:165The price of the agricultural irrigation is determined by the water resources levy and agricultural water supply fee, which are regulated under Article 15/A. (1) and Article 15/F. (1) of the Act LVII of 1995 on Water Management. A kind of dualism concerning the price of the irrigation can be observed in Hungary. On the one hand, the necessity to irrigate has to be reflected in the price due to the negative impacts of drought on crop production, although irrigation scores low on the hierarchy of water uses. On the other hand, the price must also express the value of water as an irreplaceable natural resource with limited renewable capacity. Based on the analysis of the said provisions, it can be concluded that though allowing derogations from paying for the agricultural irrigation can be justified in many cases, concerns can be raised regarding their uniform application without involving discretion regardless, among others factors, of the differences in the economic situation of the farmers.
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Reflections from the Viewpoint of Legal History on the Muslims in Hungary
11-23Views:100The Islamic religion, on the basis of Act No. XVII promulgated in 1917 in the Kingdom of Hungary, was given the status of a „recognized” religion i.e. religious community (in Hungarian: „elismert felekezet”, in Latin „licita religio”). By virtue of this act the Islamic religion received the same legal status as the Baptist church in 1905. It has to be pointed out that according to the census taken in 1910 in the Kingdom of Hungary, including Croatia-Slovenia which enjoyed a large degree of autonomy, there were only as many as 757 citizens belonging to the Islamic religious community. In this study we examine the legal status of the Muslim Community in Hungary until the end of World War I. As a main conclusion it can be stated that the law of Muslims (ius personarum) had never became a part of the legal system of Hungary, and that Islamic law never confronted the ius patrium.
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Some Issues in Treating the Changes of Circumstances under English Law
25-44Views:195All legal systems have their own solution for the treatment of the essential change of circumstance subsequent to the conclusion of the contract. Some of them allow for the judicial amendment of the contract, if the conditions of the clausula rebus sic stantibus are fulfilled. There are other states, where the possibility to modify the contract by judicial act in case of an essential change of circumstances subsequent to the contract conclusion has only recently been recognised by the national legislation. In the following, it is to be reviewed how and by what means and models English law treats those changes of circumstances which occur after the conclusion of the contract and significantly reshape the contractual relationships.
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Trends, Directions, Legislative Efforts: the Abolition of the Civil Servant Status
179-195Views:121One of the most spectacular changes to the Hungarian employment system in recent years is that many former civil servants (‘közalkalmazott’) have lost their status and come under the scope of the Labour Code or have been subject to newly created status laws. As the Act on Civil Servants (‘Kjt.’) applies now only a few groups of civil servants, having been emptied out by successive reforms, it is not surprising that the future existence of the Act and of the autonomous status of civil servants is being called into question. But what factors have led to the gradual, and in recent years accelerating, decline of the Kjt.? Is the 'disappearance' of civil servants the result of internal processes that rationally follow from the development of the law, or is it the result of independent economic and political considerations? What was the original role of the Kjt. in the system of employment relationships and how can its ‘emptying’ be understood in an international and historical context? The study argues that this process is not an inevitable consequence of legal doctrinal developments, but rather the result of legislative efforts to abolish the uniform legal status of human service providers. Hungarian legislation is no exception to the neoliberal and neo-Weberian trends, while the comparative advantages previously enjoyed by civil servants are eroding and the regulation is becoming highly fragmented.
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The Transfer of Contract on the Basis of Statutory Provisions: Novation or Succession?
7-27Views:191In 2016, the Act CLXXVII of 2013 on the Transitional and Authorizing Provisions related to the Entry into Force of Act No. V of 2013 on the Civil Code (’Ptké.’) was amended, with questions of interpretation arising regarding the transfer of contract on the basis of statutory provisions. Therefore, after a short period of rest, the transfer of contract, the novation, and their relationship again became the focus of the attention of both legal scholars and practitioners. After a short introduction of the legal provisions on the transfer of contract, the amendment of 2016 and its reasons are reviewed. Then, both the controversies that emerged in the judicial practice and the answers given by the Hungarian Constitutional Court and the Curia are examined thoroughly.
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Integration of the Hungarian Water Utility Supplier from a Legal Aspect
144-162Views:100The present article focuses on the integration of water utility supplier operated public water utility supplies in Hungary. According to the new Hungarian law (namely Act CCIX of 2011 on water utility supplies), the integration is merely one element of the instruments of the decision-makers to achieve their goals. According to the preamble of the act, the goals are the followings: to establish the basic rights and obligations of water utility supply, to protect national water utility property, to provide sustainable development in water utility sectors, to fulfil the objectives of the protection of drinking water resources and to ensure the conditions of water utility supply serving the extensive promotion of consumer protection, furthermore to ensure the implementation of these objectives by detached and transparent regulations. Expectedly, the procedure will be finished only by 2016, however, the number of water utility suppliers having existed before the adoption of the new law (i. e. circa 400 suppliers) has been reduced to approximately one-tenth by begin of 2014.
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Hungarian Legislation on Unfair Commercial Practices – Critical Comments
54-67Views:125Directive 2005/29/EC concerning unfair commercial practices (hereafter: UCPD) has a maximum harmonization character. The aim of this paper is to review and criticize the rules of the Hungarian implementing act. The starting point is the ban stemming from the maximum harmonization: Member States during the implementation must not create or apply stricter or milder rules than those of the UCPD. However, the Hungarian act has many problematic parts in connection with both the rules and the definitions. Besides scrutinizing these questionable points the paper also uncovers the possible practical consequences.
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The New Zealand concept of the legal personality of water and its applicability in Hungarian legal order, especially in connection with lake Balaton
9-23Views:141The present article concentrates on two aspects of the legal personality of water. First, it deals with the national legislation of New Zealand, especially the „Te Awa Tupua (Whanganui River Claims Settlement) Act 2017”, in which the legislator granted legal personality to the Whanganui River. Second, the article focuses on a Hungarian initiative concerning the establishment of a legal personality for the biggest Hungarian lake, i.e. Lake Balaton. Is it a real alternative to renew the legal protection of the environment in the Hungarian law? The article tries to launch a theoretical and practical dispute on the topic.
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Reconstruction or Abolition of University Autonomy: Tendencies and Proposals During the System-Level Crisis of Higher Education
170-180Views:115The Fourth Amendment to the Fundamental Law of Hungary, together with the subsequent passing of, and the successive amendments made to, the National Higher Education Act have not only restructured the management of higher education institutions but have also introduced legal institutions (Chancellor, Consistorium), which intervene both directly, in terms of fiscal policy, and indirectly, in terms of educational and research policies, in their overall operation and – as these are essentially government appointed persons/bodies, the institutions themselves being left out of the process – their autonomy as well. While this radical reorganization is not without precedent, the possible reasons behind its implementation have not yet been revealed. This study aims to understand these reasons by analyzing and disputing the one and only monograph addressing the question published before these changes had taken place, and attempts to discuss its predictions from the present viewpoint.
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The EU Energy Efficiency Directive (EED) from an Environmental Law Perspective
63-87Views:243This paper will focus on the 2012/27/EU Energy Efficiency Directive (EED). Since the EED is a rather new legal act, its assessment from an environmental law perspective has been neglected in academic literature. Therefore, the next question automatically arises: does the new directive take steps to improve the EU regulations concerning energy efficiency? The EED undoubtedly took a step forward by providing legally binding frameworks for the reduction of energy consumption (instead of the previous political and non-binding energy efficiency goals) and has done this in an absolute way, which is the most important requirement from an ecological point of view. Beyond the special targets of the EED, there are several specific requirements that may play a significant role in the realisation of the EED’s targets. Among these, for instance the following is highlighted in this paper: establishing energy efficiency obligation schemes or adopting alternative policy measures; the 3% commitment of renovation regarding central government buildings; the obligation of energy audits regarding enterprises that are not small or medium-sized, etc. This paper concludes that, despite a few provisions of the directive meeting the ecological requirements, in reality, the regulation misses theoretical ground.
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The Importance of the Wage Guarantee Fund in the Framework of Labour Law Protection
177-192Views:181Act LXVI of 1994 on the Wage Guarantee Fund and the guarantee system regulated by it, is especially topical nowadays, as more and more employers in Hungary have become insolvent in connection with the crisis caused by the coronavirus epidemic. In many cases, the employers subject to the procedure are not able to meet their wage obligations to their employees, so the state must guarantee the values that can be expressed in exact monetary terms – the work performed and its financial compensation – and at the same time the social security of employees. In the present study, we examine the applicability of the Wage Guarantee Fund, which serves to cover the wages to be paid by insolvent employers, from the perspective of the social security and the enforcement of employees’ claims.
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The Interpretation of Tax Law in the Precedents of the United States of America
Views:221The proper interpretation of the legal provisions in the field of tax law has high importance because it determines the opportunities of the taxpayers. Taxpayers normally wish to pay as little tax as possible, in contrast, the tax authorities try to collect as much tax as, according to them, is still lawful. If a taxpayer makes an error in his legal interpretation, he has to face the legal consequences, that is why it is necessary to know the case law. In the English law and in the law of the United States, two fundamental approaches of the interpretation of tax law have emerged: according to the strict approach, the judicature has to scrutinize only the meaning of the words of the act and that is what determines the question of the tax burden. On the other hand, the other approach means that the purpose of the questionable transaction or the intention of the legislator shall be taken into consideration as well, but only in that case in which the application of the words would lead to an unreasonable result. This paper analyzes the relevant precedents of the United States, mentioning many examples and scrutinizes the theoretical bases and the application of the two approaches mentioned.
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Energy audit: EU-Law and its implementation in Germany
29-41Views:179The Energy Efficiency Directive (EED) No. 2012/27/EU establishes a set of binding measures to help the EU to reach its 20% energy efficiency target by 2020. Energy audits are an essential tool to achieve adequate energy savings (see art. 8. EED). The current study focuses on the EU legal requirement on Energy Audits and its implementation in Germany by the 2015 amended Act on Energy Services and other Energy Efficiency Measures (Gesetz über Energiedienstleistungen und andere Energieeffizienzmaßnahmen – EDL-G). The analysis is still relevant because of the infringement proceedings against Germany by the European Commission based on fragmentary transposition of the EED.
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Some Legal Challenges of Digital Inheritance with Special Regard to Privacy
84-98Views:261Digital inheritance, because of its complexity, cannot be considered uniformly. The elements of digital inheritance which can be considered as property are regulated by the law of succession. The personal elements of the digital inheritance are regulated by the right in memoriam and data protection laws. In the current Hungarian legal system the amendment of Act no. CXII of 2011 on the Right of Informational Self-Determination put the post-mortem privacy principle into regulatory form, in addition to the right to respect for the deceased which provides legal protection against violation of the memory of a deceased person.
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Collective Agreement’s Status in Law
Views:539The collective agreement is a Janus-faced legal phenomenon. From one side it has the nature of a contractual relationship where the parties have the right to determine the content of the contract, also including the choice itself, whether they establish it or not. On the other hand, the collective agreement acts as a legal norm as well. From this aspect its regulations are also obligatory for those persons who were not involved during the set-up process, or even for those who disagrees with some parts of the document. Therefore it is a crucial question in labour law as to how these contracts are handled by law. The Hungarian Labour Code came into force in 2012 contained an approach in which the legislator wanted to empower the legal status of collective agreement. To achieve this goal, in some parts the Act gives the parties the possibility to deviate from the law and to customize the norms in order to make it fit their current relationship. In this paper I examine the nature of the Collective Agreement and show its specialities in the Hungarian legal environment.
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Personal and Organizational Framework for the Activities of the Defence Counsel in Hungary
79-88Views:97In the Hungarian system of criminal procedure, several participants of the proceeding may provide activities aiming at the defence of the defendant (e.g. the prosecutor or even the defendant himself). My dissertation, however, shall focus on the activities of the defender based on delegation or recorded Power of Attorneys given, in consideration of the fact that almost without exception this personal group act as advocates in criminal procedures, furthermore, solely lawyers have the expertise necessary for the defence, and the “equality of arms” principle may only succeed completely through them.