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The new Civil Procedure Code – from order for Payment Perspective
94-113Views:126The study aims to assess the basis of the features of the new Civil Procedure Code, it is a general background of the non-litigious procedures. The research seeks to answer two questions: whether the new Civil Procedure Code satisfies the requirements of the non-litigation requirements; and whether it leads to a change in the regulation of non-litigation procedures. The study whittled down the scope of the investigation to the order for payment procedure. Based on the primary research, the sections of the draft of the new Civil Procedure Code, which are referred to by the order for payment procedure, are two ways to present: content unchanged, and content changed. The study examines the impact of the latter, and draws conclusions based on the changes in content on the relationship of the order for payment procedure and the new Civil Procedure Code.
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Reflections on the validity of exculpatory clauses in light of Section 6:152 of the Hungarian Civil Code
9-24Views:206Section 6:152 of the Hungarian Civil Code (HCC) is an objective cap on the freedom of contract, it is an unconditional (absolute) and minimum protection to which all exculpatory clauses are subject. In this essay, this rule is examined in a wide and complex context. These exculpatory clauses are closely connected to the consent of an injured person or their assumption of risk, or their waiver (especially waiving claims for damages) as unilateral juridical acts. The relationship between this statute and other grounds of invalidity shall also be examined, especially the connection to the invalidity rule of unfair standard contract terms.
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Trends, Directions, Legislative Efforts: the Abolition of the Civil Servant Status
179-195Views:161One 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 classification of contracts and the franchise contract apropos the Codification Committee’s Proposal on the new Hungarian Civil Code
68-79Views:148The introductory part of the study presents the standing points related to the delimitation of typical and atypical contracts. The first part gives an overview of the debates on the integration of atypical contracts (e.g. leasing, factoring, franchise, etc.) into the Hungarian Civil Code with special regard to the fact that the proposal on the new Civil Code contains regulations on franchise contracts. The second part examines the rules on franchise contracts of the proposal which was elaborated by the Codification Committee and published in February 2012.
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The Enforcement of Children’ s Rights in the Family Law Book of the new Civil Code
39-59Views:433In Hungary, the new Civil Code came into force on 15th March 2014.Tthe fourth book of which (the Family Law Book) contains the rules of family law. These rules of family law have changed in some areas compared to what they were previously. For example, developments have occurred in the field of children’s rights. In the current study the author examines the enforcement of children’s rights guaranteed by the Family Law Book. As a main conclusion of this indepth analysis, the author states that the new Civil Code ensures greater protection and better enforcement of children’s rights. Namely, the Family Law Book determines the children’s rights in more detail, particularly the right to freedom of opinion, the right to maintaining relationship, and the right to support. In addition, new paradigm changes can be noticed in the Family Law Book which are in connection with the change of parent-and-child relations and the greater consideration of children’s rights and interests.
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Comparison of Enforcement Systems for the Violation of Fundamental Rights of Detainees Stemming from the Condition of Detention in Penitentiaries and the Right to a Fair and Public Hearing within a Reasonable Time
90-110Views:148The violation of fundamental rights of detainees stemming from the conditions of detention in penitentiaries and the right to a fair and public hearing within a reasonable time raise complex concerns, because in such cases the applicants have to submit a procedure under the Hungarian Prison Act or a lawsuit concerning the violation of certain rights relating to personality under the Hungarian Code of Civil Procedure or the Civil Code. The legal protection is uncertain, because the rules relating to prison conditions meet with rules of civil procedure and civil code rules. Court decisions do not help to find the way out of this incoherency. The questions mentioned in the present article raise serious dogmatic debates, casting doubt on the efficiency of the remedies.
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The Future Civil Procedure From a Bird’s-eye View
115-127Views:160The future Civil Procedure has been under recodification for three years now and the experts have made considerable effort to create a 21st century code. Now the draft of the Code was published by the Minister of Justice for social debate, and later on a Bill was introduced. This article offers several humble recommendations de lege ferenda, where the text of the code needs amendment and no interpretation may result in the desirable outcome. Several earlier remarks of the author have been accepted and are now reflected in the Bill, and these points shall be identified and evaluated.
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The Legal Status of Women in the Balkans from the 19th Century to the Present
101-123Views:283One of the most important pieces of legislation in Serbian history was the Serbian Civil Code (SCC) of 1844, which remained in force for more than 100 years. It dates back to the time when the country was still part of the Ottoman Empire and survived the state law regimes of the Principality of Serbia, the Kingdom of Serbia, the Kingdom of Serbs-Croats and Slovenians and the Kingdom of Yugoslavia before being liquidated by socialist Yugoslavia in 1945. From the moment it was created, there had been serious criticism, such as that it was modelled on the Austrian civil code and thus did not correspond to Serbian legal-social relations, and so there was no indication that it would be a durable piece of legislation. In its 100-year history, most of the criticism concerned the discriminatory provisions on women. Mostly, the legal situation of married women was detrimental, as they had no capacity to act, and were represented by their husbands. Their proclaimed equality took place in 1946, but they actually received the same legal status as men in the late 20th century.
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The Beneficium Novorum in the Light of the Hungarian Procedural Reform Movements of the 19th and 20th Centuries
28-44Views:143The 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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Cumulation of Causes of Remedies for Non-performance and other Claims, with Special Regard to the Section 6:145. of Civil Code
60-78Views:207The Civil Code (Section 6:145.) excludes the possibility of parallel delictual claims of compensation for damages arising from breach of contract (non-cumul). This essay deals with the concept of concurrence of law and the concept of cumulation of causes of action and the relationship between contractual remedies and other sanctions grounded on a non-contractual basis. It examines the French doctrine of non-cumul, the proposal of DCRF and certain methods among the European legal systems. This essay analyzes briefly the two situations where the contractual and delictual bases could compete with each other and the application of the above mentioned provision may generate problems.
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The Transformation of Labour Law Litigation
162-176Views:279From the outset of labor litigation, both theoreticians and practitioners have been preoccupied with the question of what specific regulation this area of law – which has essentially additional elements of private law – requires in order to ensure fair treatment and proceedings for all participants. The aim of the present study is to show how labor litigation is evolving today, outlining the phenomena that have arisen due to the new labor and civil procedure codes.
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The Transfer of Contract on the Basis of Statutory Provisions: Novation or Succession?
7-27Views:227In 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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The role of lien holder in the judicial execution procedure
139-158Views:242Lien is substantially characterized by priority in satisfaction, which is in the spotlight of the execution of the lien. The lien’s function and force as a security interest is determined by the rules of execution. Under Act V of 2013 on the Civil Code, out-of-court execution has become the main rule, however, judicial execution and liquidation proceedings remained available to enforce the lien. Furthermore, in order to protect the purpose of the pledge to serve as a collateral and to provide priority in satisfaction, the lien may also be enforced where the pledge has been seized and offered for sale in the execution proceedings initiated by a person other than the lien holder. In this case, the lien holder may join in the execution proceedings even if his/ her claim against the lienee as debtor is not yet due. otherwise, upon auctioning the pledge, the lien holder’s lien would terminate. The purpose of this study is to identify and address the issues of this specific type of execution that arise during implementation as well as the incompleteness of the applicable laws and regulations.
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Legal interpretation issues regarding the status of the trade unions
79-95Views:681The unique purpose and role of trade unions is the protection of the employees’ social and economic interests. As compared to the previous concept, the applicable labour code introduced a conceptually new approach with respect to collective labour law, including the purpose of trade unions, reducing the trade unions’ rights to such a minimum level which shall be generally granted for a civil organization operating in the interest of a certain purpose. In my study, some legal interpretation questions –without the ambition to be exhaustive – that arise in practice come under analysis, which highlight in a crystal clear manner the question as to what sort of practical issues are raised and interpretation possibilities are opened by certain items of the Hungarian labour law regulation in connection with the legal status of the trade unions and the exercise of their rights.