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Pravo i porezi

Pravo i porezi

Mjesec:

CONSTRUCTION CONTRACTS AND TEN-YEAR-RESPONSIBILITY

pip - 4.2008, str. 3
According to the main provisions of the construction contract
a contractor is responsible for all the flaws on the building
referring to the fulfillment of the legal obligations important
for the building, if such flaws appear in the period of ten years
after delivery and over-take of the building. The contractor is
responsible for the flaws of the construction land on which the
building was constructed which appeared in the period of ten
years after delivery and over-take of the building, except in the
case when in the study on geotechnical works or some other
corresponding documents is stated that the land is appropriate
for construction works and during the construction works there
did not appear any circumstances which would raise doubts in
justifiability of the above stated documents. The same rule applies
to the project leader, if the flaw on the building or land is
the result of some incorrectness in the project, as well as to the
supervisor if the flaw on the building or land is the result of
incorrect supervision. They bear responsibility not only to the
investor but to all other building users too. Such responsibility
cannot be excluded or limited by the contract.

CONSTITUTIONAL AND LEGAL PROTECTION IN TAXATION PROCEDURE

pip - 4.2008, str. 15
The procedures of taxation and collection of taxes are especially
important (for physical and legal persons) to the tax payers
as well as to the state. However, the determination of the tax
amount and the collection of taxes is performed according to the
regulations defined by the state – tax creditor only, so the rights
of the other party can be violated through e.g. the application of
the unconstitutional regulations or illegitimate acts of the tax
authorities. Therefore, in the constitutional and legal systems of
democratic societies all the citizens – tax payers have the right
to the appeal against specific legal decisions made in the firstinstance
procedures at the courts or other authorized bodies.
The Constitutional Court protects against the violations of the
human rights and basic freedom. In Croatia the constitutional
and legal means of protection are the claims and the request for
determination of the compliance of the acts to the Constitution
and other regulations to the Constitution and the law.

BURDEN OF PROOF OF TAX ENFORCEMENT

pip - 4.2008, str. 21
A tax burden is the amount of tax which a tax payer is
obliged to pay in order to fullfil the tax liabilities i.e. to settle the
tax debt. Usually, the tax payment supervison is performed by
tax authorities, whereby the tax payer is just a passive observer,
who reacts only in the cases of a complaint to the protocol, a
complaint to the decision or a legal suit. Otherwise, the burden
of proof of tax enforcement results in inconvenience due to impossibility
to prove some fact through evidence or some other
way determined by the law. In formal terms, the burden of proof
is a legal obligation of each party in the process of presenting
the evidence on their thesis (burden of evidence presentation)
, the consequence of which is the fact that the court will infer
that such facts do not exist if the process of evidence presentation
does not succeed (burden of convincing the court). In other
words, the burden of proof is one of the practical mechanisms
of resolving factual doubts in unclear situations.

PRINCIPLE OF TRUST IN LAND REGISTERS

pip - 4.2008, str. 29
The principle of trust in land registers is an important
principle in the system of the Croatian proprietary law. The
article deals with its effects and application in the practice of
the county courts and the Supreme Court of the Republic of
Croatia. The protection of trust in authenticity and completeness
of the land registers, regulated by the Property Law and
other proprietary laws, is not to be applied in favour of the
acquisitions until 1 January 2010, if they refer to the real
estate registered as a socially-owned property, which was
not erased before the above stated Law came into effect. The
author of the article points out that the consistent application
of the above stated legal regulations is very important in
the future, taking into consideration their nature. The author
thinks that the court practice should first of all start with
these principles of the consistent and meaningful explanation
and application of the law.

FINANCING OF PUBLIC UTILITIES

pip - 4.2008, str. 37
The financing instruments of public utilities include the
sales prices of their products and services, compensations
and contributions, compensations from the state budget,
loans, funds from domestic and foreign investors and other
sources. However, the compensations have a dominating
role in financing of public utilities. Whereas the system of
public revenues comprises taxes, the financial theory has
to date not included customs duties and contributions into
fiscal incomes. The experience so far has shown that there
is a large number of compensations and compensation types
which have not been determined by certain norms. If this is
considered as a specific form of the public revenue with its
autonomous characteristics and principles, then the financial
theory and practice have the task to finally define the notion
of compensations according to the determin ed norms.
The special status of such a revenue will theroretically and
in terms of law contribute to the better understanding and
consistency of the entire financial system.

COMMENT ON COURT DECISION REFERRING TO AMOUNT OF DAMAGES FOR MENTAL ANGUISH

pip - 4.2008, str. 43
The author of the text analyses a court decision referring
to the estimation of the rightful amount of the damages for
the mental anguish, which resulted in the reduced life activities.
He points out when the injured party has the right to the
indemnity for physical damages and explains the criteria of
estimating the amount of damages for the mental anguish
due to the reduced life activities. The article contains a review
of the court practice (according to the old Act on Obligatory
Relations) as well as the explanation of the above stated issue
according to the new Act on Obligatory Relations. In the
conclusion the author states his opinion well-argumented that
the court decision referring to the damages for mental anguish
sustained should take into consideration the amount of indemnity
for physical damages due to the reduced life activities,
which the injured person – the plaintiff had the right to
or could have the right to according to the regulations of the
disablement insurance.

PROTECTION OF RIGHTS OF ASSOCIATION MEMBERS

pip - 4.2008, str. 48
The article deals with the issue of protection of rights of
an association member referring to the illegitimate decision
on exclusion of a member from the association. In view of the
constitutional position of the Supreme Court of the Republic
of Croatia, which among other things ensures the unique application
of the law, the Administrative Court of the Republic
of Croatia would not have the right to take away the authorization,
which was previously possible before the accepted opinion
of the Supreme Court. The Administrative Court should act
in the case when the excluded association member applies to
them with the request to protect him/her against the final specific
document on exclusion from the association (according
to the Association Act). In this case it should be taken into
consideration that such a way of legal protection is different
from the administrative lawsuit, which is filed against the final
administrative document and which is not the decision made
by the association authorities.

TOURIST LANDS AND THEIR LEGAL POSITION

pip - 4.2008, str. 51
Tourist land refers to the real estate used by the companies
engaged in tourist activities, the ownership status of
which has not been solved, i.e. it is not clear whether they
have been included into transition, who their owners are
and what legal form they are going to have. The author of
the article tries to differentiate the situations in which the
companies (successors of former enterprises) do not have
any rights on the real estate from the situations in which the
companies have the right which is not recognised. The article
also deals with the procedures to be made referring to the
tourist lands:
  • firstly, it should be determined whether the enterprise(now the company) had the right to use the real estate.
  • if the company obtained the right to use the real estate
    and if in the time of transition it had the right to use the
    real estate, it should be determined whether the value
    of this real estate was estimated in the Estimate Study.
    If such a fact does not exist in the Estimate Study it is
    determined by the expert evaluation.
  • if the company did not have the right to use the real estate,
    it neither has the right to ownership nor the right to
    its acquiring.
  • if the company had the right to use the real estate but
    did not estimate the value of the real estate in the Estimate
    Study, the Art. 47. of the Privatization Act is to be
    used with all its vaguanesses and doubts
  • if the value of the real estate has been determined in the
    Estimate Study (and there is no audit of the Study which
    would exclude this value), the company is the owner of
    the real estate.
  • ORGANIZATION OF STATE ADMINISTRATION IN REPUBLIC OF CROATIA

    pip - 4.2008, str. 58
    In functional terms the administration is a part of the state
    activities engaged in the direct application of the law and other
    regulations comprising primarily passing of specific administrative
    by-laws, carrying out some professional work and material
    and technical activities. From the organizational point of
    view the administration is a group of state and public bodies,
    who, within their public authority, pass specific administrative
    by-laws aimed at direct application of the law and other
    regulations, carry out professional work and perform material
    and technical activities.
    In Croatia the activities of the state administration comprise
    the direct application of the law, defining the regulations for
    its application, administrative supervision and other administrative
    and professional work. The Croatian administrative
    system includes four bodies of the state administration such
    as Ministries (17 at the moment), the Central Administrative
    Office, the State Administrative Organisation and the State Administration
    Office in the counties.

    SOCIAL CAPITAL, HUMAN RESOURCES AND CORPORATE COMMUNICATION AS COMPANY KEY VALUES

    pip - 4.2008, str. 65
    The ability of a certain company to achieve its goals, to
    carry out the tasks and to contribute to its environment
    depends on its social capital and human resources. Unlike
    the resources available in personal and business networks
    (social capital), human resources comprise the knowledge,
    skills and experience of individuals and the whole teams
    working on their common projects. The author of the article
    points out that companies are rather rational entities which
    have to develop certain resources (capital) and the networks
    of internal and external communication in order to exist, develop
    and be competitive.

    EU ACTIVITIES REFERRING TO COMPLIANCE OF TAXATION OF OLD-AGE PENSION INSURANCE

    pip - 4.2008, str. 70
    The taxation obstacles in old-age pension insurance (oldage
    care) can most efficiently be solved through the real application
    of the general freedoms guaranteed by the Contract
    on Establishment of the European Union. They comprise the
    freedom of free capital movement, the freedom of free movement
    of workforce and the freedom of service provision. According
    to the provisions of the above stated Contract the
    member countries are obliged to avoid tax discriminations of
    old-age pension insurance through the engagement of old-age
    pension insurance funds in other member countries, which
    has been confirmed by the corresponding decisions of the
    European Court. In view of the provisions of the above stated
    Contract (and their further applications in the decisions of
    the European Court) it can be concluded that the national
    regulations, which without any justifiable reason make tax
    limitations of the insurance (old-age pension insurance and
    life insurance), are not in accordance with the European law.
    Therefore, the European Commission has been trying to clear
    up the existing provisions of the above stated Contract referring
    to this issue.

    "Gospodarska kaznena djela iz područja vrijednosnih papira i trgovačkih društava" mr. sc. Zorislava KALEBA

    pip - 4.2008, str. 79
    Nedavno je u izdanju nakladničke kuće "Zgombić & Partneri" objavljena knjiga mr. sc. Zorislava Kaleba, suca Kaznenog odjela Općinskog suda u Zagrebu, pod nazivom: "Gospodarska kaznena djela iz područja vrijednosnih papira i trgovačkih društava" s podnaslovom "Gospodarski kriminal u vezi trgovačkih društava i vrijednosnih papira, njegovo otkrivanje i suzbijanje". Recenzenti knjige su bili mr. sc. Gordana Mršić, savjetnica u Hrvatskoj gospodarskoj komori i mr. sc. Ivica Pezo, sudac i novi predsjednik Općinskog građanskog suda u Zagrebu. Riječ je o vrlo aktualnoj temi s obzirom na to da je u knjigu uvršten i obrađen novi Zakon o hrvatskoj agenciji za nadzor financijskih ulaganja koji je stupio na snagu 1. siječnja 2006.
    Pretplatnik
    Zakon o trgovačkim društvima  (1)