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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 General Theory of the State and the Relativity of the Force of Law – Comment on the Theory of Georg Jellinek
53-72Views:152This paper makes an in-depth examination of the theory established by Georg Jellinek who – extending the perspective of the jurisprudence of state law based on legal methods – was concerned with issues of public law within the frames of general theory of the state. The author will demonstrate the claim that the special concepts of Jellinek’s general and descriptive theory – like the „presupposition of factual validity” or the idea of the „state’s self-obligation to law” – are the results of Jellinek’s idea that there were no alternatives to the institutional system of the constitutional monarchy.
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The Role of the Local Goverments in the Changed System of Environmental Public Administration
79-93Views:181This study investigates the transformation of environmental protection as a specialized administrative duty in Hungary, with special attention on the (changing) roles of local self-governments in this area. Following the outline of the general correlations within the topic, the study inspects several individual administrative fields, with attention given to the relationship with environmental protection policies. Our plan is to extend this analysis in the future, in hopes of covering additional specialised administrative areas as well. Our firm opinion is that the solutions provided by the sectorial approach inherent in our administrative system proved to be ineffective insolving today’s global issues. To ensure an effective environmental protection strategy, the organizations of public administration must be involved with larger roles assigned to them. Although the methods of regulation in this area are diverse, the most widespread approach proves to be the direct administrative intervention, even nowadays.
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Smart Contracts, Blockchain Technology and the Formulation of a Proposal for Their Application in Public Administration
56-73Views:167The study focuses on smart contracts, emphasizing the opportunities provided by blockchain technology. The main research method used is an examination of relevant domestic and foreign sources on the topic, such as studies and legislation. In addition, we formulate a proposal on how smart contracts and blockchain technology could be applied in public administration, focusing on the real estate registration procedure.
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The Responsibility of the State in the Prevention and Management of Environmental Damage with Regard to Spatial Planning
156-174Views:242The study aims to examine the constitutional responsibility of the State for environmental damage from a specific new perspective; it analyses its constitutional framework with regard to recent regulatory tools on spatial planning of the contaminated areas. To this end it briefly outlines the history of the remediation of areas falling within the State’s responsibility, its different regulatory and institutional models to date and the extent to which the newly introduced legal instrument in the act on formation and protection and of the built environment of brownfield action areas reflects this quarter-century process.
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Collection of Annotated Bibliographies (2011. Nr. 2)
137-190Views:160An annotated bibliography of recent Hungarian legal science books is published regularly (twice a year) in our journal. The annotation is a short, factual description of the usefulness of the book, which, in addition to bibliographic information, defines the genre and briefly outlines the subject matter and the results presented. The authors of the annotations are members of the Faculty of Law of the University of Debrecen (lecturers, PhD students or gradual students). The current issue presents the second part of the book descriptions of books published in 2011.
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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 Ecclesiastical Percentage(s)
62-79Views:95Church financing is a multiple system. One of its elements, introduced in 1997, consists of taxpayers’ offer which is a determined part of their personal income tax. The study examines the regulation of tax management from the perspective of taxpayers and beneficiaries. This method of financing has an important budgetary consequence, i.e. the budget completes the sum of the allocation of personal income tax for Churches to a specified extent. The study examines several contradictions with respect to the application of this financing method.
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Rule of Law – Active State: Reconstructing the Conception of the Rule of Law in Zoltán Magyary’s Theory
9-26Views:167Zoltán Magyary was an internationally recognised Hungarian professor of law who carried out research in modern theories of administration and state theories. Defending the values of the rule of law and taking action against the anomalies of legal formalism were among his major scientific goals. According to him, one of the most important functions of a legal system is the protection of human rights, therefore he accepted the view that courts must have the authority to review administrative decisions. At the same time, he stated that the effective and productive functioning of administrative institutions and the executive power is a priority in a legal system. Due to the fact that he did not provide a complete analysis of the correlation between the rule of law and the effective functioning of administrative institutions, he opened the possibility for posterity to give various and different interpretations of the issue.
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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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New attempts in EU law for the improvement of the consular protection of EU citizens in third countries
9-23Views:123The right of EU citizens to consular protection in third countries, where their Member State is not represented, is one of the most significant rights attached to the European citizenship. With the existing legal basis laid down in the Treaty on European Union and the Treaty on the Functioning of the European Union, the right to consular protection of EU citizens has all the conceivable chances to be established uniformly by union actions and under the supervision of the European Court of Justice. The aim of the Council Directive (EU) 2015/637 is to lay down the cooperation and coordination measures necessary to further facilitate consular protection to unrepresented citizens of the European Union. Nevertheless the directive does not affect consular relations between Member States and third countries. The present paper focuses on the actions had been taken in this field from the treaty establishing the European Economic Community until the achievements of the Treaty of Lisbon and the aforementioned Council Directive.
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On the Nature of Political Corruption
87-97Views:101This article summerize the essay of Samuel Issacharoff (Harvard Law Review , 124. 1/2010. (November), 119-142.)
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International and Regional Fight Against Climate Change and its Economic Impacts
84-98Views:177The climate change represents one of the greatest challenges nowadays. The United Nations Framework Convention on Climate Change and the Kyoto Protocol tried to attend the problem in international level. However the Kyoto Protocol’s first commitment period will be finished in 2012 and a new international framework needs to have been negotiated and ratified that can deliver the stringent emission reductions. When it will be contracted, the European Union defends against the climate change with regional instruments, like EU Emissions Trading System (ETS). The ETS tries to manage the problem by financial method.
The Copenhagen Accord declared that scientific view: the increase in global temperature should be below 2 degrees Celsius. The question is now, what the world and the EU should do for this goal. What is the expected global and EU emission in 2020? The EU has two kind of mitigation pledges: the 20% or 30% reduction. How EU achieves expectations and what kind of tools could help about this? The European Commission made several documents about this problem and the ways of mitigations.
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Protection of Marriage and Family in Central Europe
7-31Views:225It is no exaggeration to say that family plays a prominent role in our daily lives. This study therefore examines the constitutional and family law foundations of family protection in seven Central European countries. The study describes, among other things, the nature of family law legislation, the conceptual approach to family and marriage, the legal protection and solution of extramarital partnerships, such as de facto partnerships and registered partnerships, and the status of children in the countries studied.
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Judicial Review in Emergency Situations: the Relevant Case Law of the European Court of Human Rights
200-218Views:127Emergencies are mostly sudden, and in most cases states need special measures to deal with them. For this reason liberal democracies have standing constitutional or special legal powers to derogate human rights for the sake of order. Those democracies that do not have such powers, use impromptu ones. It is possible for authoritarian governments to abuse emergency powers in order to stay in power, to derogate human rights and to silence the opposition. Therefore it is essential for a liberal democracy to have strict limits for the duration, circumstance and scope of emergency powers. There are human rights regimes (for example: the European Convention on Human Rights) which have to respect the member states’ duty and responsibility in such cases. This article tries to examine this special case law of the European Court of Human Rights. The question is whether a European Human Rights regime is capable of becoming the guardian of human rights in cases of national emergencies, or the sovereignty of states also means that there is very narrow margin to prove legality above security?
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Work of Costantino Mortati in the Field of Public Law
23-41Views:94The aim of my article is to present an overview of certain stages of Costantino Mortati’s scientific work (Constitutional Court’s judge and professor of law) on the basis of Italian bibliography. His most popular work, entitled “the Constitution in material sense” (1940) conforms to problems and methodology of Italian constitutional law, while it reflects to contemporary schools of European jurisprudence and changes of institutions and theories of modern state. Behind Mortati’s theories about the State and the Constitution, the Italian liberal state regarded as heritage of risor- gimento, and the symptoms of its crises, birth and fall of the totalitarian state and the fundamental public law-aspects of the democratic and republic state can be found.
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Actual Challenges of Delimitation of Continental Shelf on the Example of the Arctic
67-83Views:158The concept of continental shelf as an inherent right to coastal State has a history of almost a hundred year but its legal status has several gaps which need to be resolved in the forseeable future. Delimitation of continental shelf between States with adjacent or opposite coasts has been a problematic issue since the elaboration of the legal concept of continental shelf but the present essay aims to highlight some other problems emerging since the first application of Article 76 of UNCLOS. These legal problems are related to the procedure of establishing of the outer limits of continental shelf beyond 200 nautical miles. The essay examines these legal problems and demonstrates the challenge caused to the Arctic continental shelf as an example.
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Deepfake: a Blessing or a Curse? Legal Regulatory Aspects
157-178Views:211A deepfake is a video, audio or other content (e.g. image) that is completely or partially fabricated or created by manipulating existing, real content. Just as fake news calls into question the authenticity of real news, deepfake also calls into question the authenticity of real content. At the same time, deepfake has many advantages in addition to its often mentioned dangers. Following a historical overview of deepfake, the study describes these benefits and dangers, and then discusses possible legal responses after presenting tools for detecting deepfake.
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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 Client and Authority Proceedings in the Digital Era
74-101Views:134The study examines the digital transformation of Hungarian administrative procedure and the advance of automation. Based on statistical data, the study highlights that in connection with digital public administration procedures, the importance of customer-focused services appears as the standard of digital public administration. Digitalization is dominated by electronic contact options, online information and submission of electronic requests, rather than complete automation of administrative procedures. The study focuses on digital authority procedures from the point of view of how this manifests itself primarily for the client: how to satisfy the need for information, how to contact the authorities and how to initiate the procedure. In addition to the legal bases, this part primarily focuses on the possibilities. After that, the consequences of digital solutions (automation) for making substantive decisions from the customer's point of view are discussed; this part of the study therefore concentrates more on the normative side of the processes and finally analyzes this. As a result, it states that automatic decision-making is mainly used in case of registrative acts based on official records and decisions embodied in decision-type documents, but there are already examples of the automation of the decision-making mechanism in connection with the production of facts. Although more complex automation is just spreading its wings, in connection with the rapid technical development and innovations of recent years, the legal system must keep up with digitalization and not give in to it.
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Issues of Public Social Responsibility in Great Britain and Hungary
122-136Views:330Social responsibility has undergone significant development in recent years. The concept has spread into every aspect of life: personal life, the economic sphere and finally the public sector. It is proven that currently many states are struggling with various problems in the public sector. We believe that public social responsibility is one of the guidelines that is able to help, for example, in the realization of a comprehensive public administration reform. This paper examines public social responsibility in Great Britain and Hungary. Even though we have the example of the United Kingdom to follow, their way of practicing PSR may not be suitable for the rest of the European countries because of the fundamental differences in our legal systems and mindsets.
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The Constitutional Obstacles before the Promulgation of the Rome Statute
45-59Views:322July 17, 1998, can be considered as one of the most important milestones of the international judicial structure: it is the day when the Rome Statute of the International Criminal Court was adopted by 120 states out of 148. Article 86 of Statute explicitly states that „States Parties shall […] cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” As in the case of every international treaty, the principle of pacta sunt servanda enshrined in Article 26 of the 1969 Vienna Convention on the Law of the Treaties states applies, which explicitly states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” As has been pointed out by the Permanent Court of International Justice, contracting states must make all the necessary internal measures which are required to fulfil its international obligations rising from a binding treaty. One could ask, why is this quite obvious argument important in the case of Hungary? Well, Hungary has ratified the Statute but still has not implemented it in its internal legislation. This can be considered as a serious constitutional omission, since if the Court would require the cooperation of Hungary – e.g. in the case of an arrest warrant – and it would not be able to fulfil it because of the lack of the internal legal norms, it would be considered as international legal responsibility of Hungary. In this article, I try to explore the reasons behind this omission and outline the possible solutions.
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EU Case Law Guidelines on Registering Three-Dimensional (Shape) EUTM in the Light of the Trademark Reform
128-142Views:72The case-law developed by the European Court of Justice aims to ensure consistency and legal certainty in the registration of EU three-dimensional trademarks. It interacts closely with the legislative amendments introduced by the trademark reform, which aim to make the registration procedure for EU trademarks more flexible and transparent, thanks to the European Court of Justice's work in interpreting and developing the law. The problem of the definition and registration procedure of three-dimensional marks is an important issue in EU trademark case law, as this category of marks is the most popular of the non-traditional marks for which the trademark reform provides a legal framework, but also overlaps with other forms of intellectual property protection.
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The Practice of the African Commission on Human and Peoples’ Rights concerning the Rights of the Indigenous Peoples, with special regard to the Ogoni Case
127-143Views:165The aim of the current article is to analyse the protection of indigenous peoples’ rights offered by the African human rights mechanism by introducing its institutional framework and jurisprudence. The author has the opinion that the African mechanism has followed in the footsteps of the Inter-American system and has interpreted the already existing substantial norms in an evolutive manner; thus achieving tremendous results in the acknowledgement and protection of indigenous rights. They did so with such success that now the “master” – namely the Inter-American Commission on Human rights – is quoting the student. It follows from the above mentioned lines that – according to the firm opinion of the author – the African mechanism worth the attention both present time, both in the future, due to the simple fact that new trends regarding indigenous rights may arise from the practice of the African Commission.
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A mozaik színes üvegkockái: Recenzió Józsa Zoltán „Közigazgatás a 21. század elején” című kötetéről
107-112Views:200Sokszor ismételt – jóllehet kevésszer átgondolt, s inkább politikai felhanggal, mintsem szakmai megfontolás nyomán hangoztatott – közhely, hogy adott ország gazdaságának teljesítőképességét, versenyképességét döntő módon meghatározza, más hasonlóan fontos tényezők mellett, a közigazgatásának színvonala. A jó állam, jó kormányzás, jól működő gazdaság – legalább is a formál logika szerint – egymást feltételező fogalmak, jóllehet inkább normatív tartalmat sugallnak, mintsem tényszerűen bizonyított összefüggések láncolatát.
Van-e egyáltalán tértől és időtől (kontextustól) független ismérve a jó államnak, s a jó kormányzásnak? Ha van, mennyire univerzális ez a modell, s mennyiben szolgálhat útmutatásként az egyes – merőben eltérő adottságokkal és sajátosságokkal bíró – országok számára? Úgy véljük, az univerzális ideáltípus kergetése helyett meg kell elégednünk a realitással – s ez sem kevés.
Az egyes országok történeti múltja, alkotmányos berendezkedése, intézmény- és szervezetrendszere alkotja azt a vizsgálati terepet, melynek elemzése, ha nem is végleges, de viszonylagos érvényességű válaszokat adhat a kormányzás, a közigazgatás, a gazdaság és más társadalmi alrendszerek kapcsolatára.
Mi jellemzi tehát a 21. század közigazgatását? Milyen új célok, értékek, módszerek állnak az európai országok közigazgatásának működése középpontjában? A nemzeti sajátosságokon túl kirajzolódnak-e azok a tendenciák, melyek az eltérő jegyek mellett közös kihívást jelentenek az egyes országok számára? Van-e olyan elméleti vagy gyakorlati hozadék, amely a hazai közigazgatás szellemi hátterét erősíti, vagy gyakorlati működését javíthatja?
Hosszan sorolhatók még az összehasonlító vizsgálatok szükségességét és indokoltságát alátámasztó érvek, melyek megerősítik a komparatisztika alkalmazásának rohamosan terjedő népszerűségét, szinte divattá válását. A szellemi profit nyilvánvaló, válasz adható a magát valamire is tartó tudomány alapkérdésére: mennyiben szolgálja a közigazgatás a társadalmi, gazdasági, kulturális jólét előmozdítását, a közérdek, a közjó érvényesülését, az egyének boldogulását?
A Józsa Zoltán új kötetébe foglalt tanulmányok e kérdésekre keresik a választ, nemzetközi és hazai példák elemzése, feldolgozása révén.