Contesting of debtor’s legal acts, which is regulated by the Act on Obligatory Relations, is an institute by which creditors can, in order to collect their receivables, remove the consequences of certain valid disposable property of their insolvent debtors by collection of payment from some valuables which do not belong to a debtor’s property any more but to the property of the third parties who are debtor’s successors of such valuables. In view of such an institute the Croatian court practice is not always consistent. Therefore, the article analyses some different viewpoints presented in court decisions. In business practice contracts are often signed without the corresponding securities of the receivables. Besides, there are a number of liabilities which do not arise from the contract such as the liability of paying taxes. There is a question what a creditor can do if it has been determined that a debtor does not have any property from which a creditor can collect his/her receivables. One of the institutes to protect such a right is contesting of debtor’s legal acts.
Contesting of debtor’s legal acts, which is regulated by the Act on Obligatory Relations, is an institute by which creditors can, in order to collect their receivables, remove the consequences of certain valid disposable property of their insolvent debtors by collection of payment from some valuables which do not belong to a debtor’s property any more but to the property of the third parties who are debtor’s successors of such valuables. In view of such an institute the Croatian court practice is not always consistent. Therefore, the article analyses some different viewpoints presented in court decisions. In business practice contracts are often signed without the corresponding securities of the receivables. Besides, there are a number of liabilities which do not arise from the contract such as the liability of paying taxes. There is a question what a creditor can do if it has been determined that a debtor does not have any property from which a creditor can collect his/her receivables. One of the institutes to protect such a right is contesting of debtor’s legal acts.
The enforced tax collection represents a federal measure applied in all legal systems, which is in accordance with the essence of tax as a duty imposed one-sidedly by a public legal body without considering the wishes of those who have to pay for it. Such enforcement is based on the regulations in the field of taxation procedural law, taxation violation law and taxation criminal law. The facts according to which a tax liability and a tax amount are determined are income, receipts, assets, expenditure and alike. They can be measured and represent a part of a personal way of life of a tax payer. Such facts become known to a tax body usually in the tax return form submitted by a tax payer, rarely through the control conducted by the authorized tax body, as well as through participation of a tax payer in the taxation procedure. Without participation of a tax payer, i.e. through the control of the tax body only, the insight into such facts would be rather limited. Therefore, the participation of a tax payer in the taxation procedure is necessary but it cannot be expected without enforcement.
According to the latest amendments of the VAT Act and the new Rulebook on Value Added Tax, which both became effective on 1 January 2009, the Croatian VAT System has partially been complied with the acquis communautaire in view of taxation of a foreign company. However, there is an impression that the law-maker has failed to comply some provisions of the Croatia legislation to the legal rules of the EU acquis communautaire including some terms which have not been included in the Croatian VAT Act. Accordingly, a foreign company still remains discriminated in view of its business operations in the field of the Republic of Croatia, which should be changed until the Republic of Croatia joins the European Union.
U svrhu povećanja djelotvornosti pravnog sustava te povećanja učinkovitosti državnih institucija, smanjivanja administrativnih opterećenja za građane u postupcima koji se vode pred tijelima javne vlasti radi ostvarivanja određenih prava, boljeg pregleda nad imovinom pravnih i fizičkih osoba, kao i radi usklađenja hrvatskog zakonodavstva sa zakonodavstvom EU, od. 1. siječnja 2009. u RH se počeo primjenjivati Zakon o osobnom identifikacijskom broju (Nar. nov., br. 60/08.) te njegov provedbeni propis Pravilnik o osobnom identifikacijskom broju (1/09.).
Autor: Mr. sc. Mirjana MAHOVIĆ KOMLJENOVIĆ, dipl. oec.
An important part of amalgamation of subsidiaries with limited liability is the calculation of goowill, by which the expenses of the acquired share are reduced to the fair value on the date of the share acquisition. By the negative goodwill, which arises when the expenses for acquisition of shares are lower than the share in the fair value of net assets on the date of acquisition the earnings of share acquisition are taxed, or the expenses are recognized when the goodwill is calculated in the case when the expenses are higher than the share in the acquired net assets. However, on the date of amalgamation of a limited liability subsidiary the expenses of acquisition increased by the negative goodwill or reduced by the goodwill do not represent a fair value which should be replaced by the share in the net assets of the amalgamated subsidiary. Since business shares are not exposed to the market, the only way is to apply the method of share in the change of the net assets of the amalgamated subsidiary from the date of the acquisition of the share till the date of amalgamation. Due to the fact that the change of the net assets of a subsidiary can be the result of the profits or losses or revaluation of the long term assets, this should be considered upon amalgamation in order to avoid double taxation of profit, which is presented on the examples in this article.
The provisions of the new Convention on International Carriage of Goods Entirely or Completely by Sea (Rotterdam Rules) from 2009 are legally acceptable since they also comprise the traditional principles of the Hague (Visbyjsk) and Hamburg Rules. However, many states still stick to the Hague Rules, some states keep their national interests by the national law and the trust in the Hamburg Rules will additionally be weakened by the contemporary Rotterdam Rules. The valuable approach to the unification of the multi-module carriage with the attempt to organize a door-to-door transportation by the provisions which can cause uncertainties in the accepted limited networked responsibility can also represent an obstacle of reception by the states (due to the fact that it is a new regulation). It should be pointed out the the existing UN Convention on International Multi-module Carriage of Goods from 1980 was not successful, whereas the unimodule conventions in other transportation fields have been rather efficient and are continuously been modernized by amendmends. Some European states are not likely to sacrifice the existing convention on road and railway transportation.
Clerk and other labour relations within an international organization became a part of the law of international organizations after the Second World War. Until then the legal status of such relations was principally based on bilateral contracts between the states concerned. A substantial increase of the number of international organizations has certainly affected the development of rights of such organizations in terms of labour law at that time. The scope of work and authorities of an international organization as well as the issues of its international legal status including the legal position of its employees, especially those with a diplomatic status i.e. international clerks, are principally determined by the constitutional basic by-law of each organization. The issues such as benefits and imunity of the entire organization and its employees will depend not only on the provisions of the by-law of such an organization but also on their explanations. Therefore, the limits of authority of a specific international organization in view of its employees and organs as well as the relations with other states, especially in the state of its headquarters, will primarily be determined in such a way.
The legal standard of business judgement rule was introduced in the penultimate amendments of the Companies Act with the existing legal standard of care of a good businessman. The legal standard of care can be compared with the standard of duty of care in the American law. The introduction of the business judgement rule offers to the members of management board and supervisory board to free themselves from responsibility for business decisions, if they made such decisions based on the appropriate information and if they presumed they were acting for the company's benefit and if they did not act against the obligation on running company's business operations. Such legal determination gives the opportunity to the board members and other participants to refer to the reasonable judgement based on the circumstances and available information collected in the particular situation. Upon running a company's business they may have made a wrong decision but they reasonalby presumed that they were acting for the company's benefit.
Autori: Dr. sc. Hana HORAK, dipl. iur. Mr. spec. Kosjenka DUMANČIĆ, dipl. iur.
In the EU competition represents a subject of public enforcement , while at the same time private enforcement in the majority of EU Member States is insufficiently developed. Cases of breaches of competition law are usually conducted by national competition authorities, but the parties also have the possibility to intitate a proceeding before the national court. In that case, European Commission or national competition authorities can submit to the court expert opinions an analysis or other kind of expertise. However, in order to achieve fully efficient competion policy it is necessary not only to sanction infringers of competition rules, but also to enhance private enforcement for damages incured by breaching of Articles 81 and 82 of the EC Treaty or the corresponding national competition rules of the Member States. This Article will predominantly deal with the problems identified in practice causing so few litigations for damages deriving from competition cases in the EU. In that resepect, the Article will be focusing on the possible solutions presented by the European Commission in the document White Paper on Damages. The common solutions sought by the European Commission are trying to protect the victims of infringements of the competition rules by granting them adequate compensation and on the other hand, ensuring efficient implementation of competition.
Croatia will become a member of the European Union when the Directive 883/2004 on co-ordination of the social security system and the Directive 987/2009 on determination of the way of application of the Directive 883/2004 on co-ordination of the social security system are already been effective, whereas the application of the existing bilateral contracts on social insurance of the member countries will be cancelled. Both EU Directives will become effective on 1 May 2010. This will mean the end of many years of preparation of the new legal and procedural determination of the co-ordination of the social security system in the EU and the beginning of its application by the EU member countries. Therefore, it is essential to present the contents and characteristics of the Directive 883/2004 and stress the differences compared to the present bilateral contracts on social insurance
