Max Planck Society

Max Planck Institute for Comparative and International Private Law

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Online version Handwörterbuch des Europäischen Privatrechts


The South East Europe Unit

The South East Europe Unit of the Max Planck Institute for Comparative and International Private Law explores the legal systems of Eastern Europe, in particular the Slavic-speaking countries and the former Yugoslav successor states to. It observes, and participates in, legal debates through its network of legal scholars from that region and throughout the EU. The Unit is part of Harmonius, an independent association of young lawyers working towards the harmonization of the law of South East Europe with EU law and the general principles of international law. For many years, the Unit has also supported various legislative projects, and is a longstanding partner of GIZ. Moreover, the Unit represents the Institute Advisory Board of the South East European Law Schools Network - SEELS, which was founded in 2011.

 

The Unit currently is focusing its research on family law. In the past, property law and the protection of creditors in insolvency law were focal points of research. The focus of the Unit’s work for the German courts lies in private international law and family law.

 

The Unit is currently supervised by Bettina Mia Bujňáková. In the past, the Unit was led by Dr. Nataša Hadžimanović (2010-2016) and Dr. Christa Jessel-Holst (1976 to 2010).

Series of Events: South East Europe and Beyond: Let's Talk about Law!

The discussion series launched by former Unit head Dr. Nataša Hadžimanović in 2016, “South East Europe and Beyond: Let's Talk about Law!” is enjoying increased popularity. The appealing format of a brief presentation (maximum 15 minutes) followed by discussion provides an opportunity to examine and discuss interesting comparative law issues beyond the confines of one’s own research. Presentations and discussions are regularly held in English. You will find an overview of speakers and topics here in the sidebar on the right.

 

The events are open to the public; if you are interested please send an email to: bujnakova@mpipriv.de to be added to the invitation mailing list.

HARMONIUS

The independent association HARMONIUS connects young South East Europe legal scholars who are working towards the harmonization of the law of South East Europe with EU law and the general principles of international law. The Unit has been a member of HARMONIUS since its founding. HARMONIUS organizes schools of law, publishes an annual journal and awards prizes for outstanding research. Moreover the HARMONIUS website holds a collection of much otherwise hard-to-find legal source material and a variety of publications, considerably facilitating comparative legal research. HARMONIUS is supported by the IRZ.

The legal transformation process in South East Europe

The change of economic systems after the collapse of socialism in South Eastern Europe led to significant legal reform. Additionally, the acquis communautaire as well as the ratification of the ECHR have and will require further reforms.

 

Many such legal reforms have been carried out by means of a transfer of laws. However, in South East Europe this has never led to the implementation of whole statutes, with only individual legal instruments being adopted. Property law, for example, have seen the introduction of the registered pledge, the chattel mortgage and the mortgage.

 

The legislative reforms have not been without problems. The obstacles to a successful transfer of laws, or the acceptance of introduced laws extend beyond mere legal opinions, social ideas, or issues relating to the drafting of those laws. There are also real practical issues, such as the lack of a unified land registration system or the existence of old power structures that also stand in the way. The financial crisis added to these difficulties, leading the countries of South East Europe into a period of economic depression, resulting, inter alia, in problems for insolvency law: for example the lack of liquidity effectively prevented the insolvency process from operating, leading increasing levels of black market labour that left the beleaguered Treasury seeking to secure privileges under insolvency law to raise funds.

 

The necessary changes in the legal systems of South East Europe were primarily made in areas of importance to the economy. It is worth mentioning in this regard, however, that the Yugoslav Law of Obligations of 1978 is still a very successful codification that required only a few adjustments, and applies almost unchanged in almost all the former Yugoslav states; only Kosovo saw larger changes made with the purchase regulations have been replaced by the CISG standards despite not being designed for that purpose (see, in this respect, the UNMIK Regulation No. 2000/68).

 

The codifications of family and inheritance law have always been quite progressive and therefore required no fundamental changes: very early it its history, socialist Yugoslavia introduced undeniable principles such as equality between men and women and between legitimate and illegitimate children. Non-marital cohabitation has also long been legally recognized and regulated, in contrast with today’s often lacking regulation for same sex couples in family law.

 

The transformation thus still represents a major challenge and offers legal scholars and practitioners many important and interesting tasks. As an example, current new codification projects concerning private international law.

Byzantine law, Sharia law, ABGB and the Historical School in South East Europe

From a historical perspective, the Balkans as a whole has always been characterized by legal diversity. Byzantine law applied, although only in part and only for parts of the law, thanks to its early translation into Old Church Slavonic by the Orthodox Slavs in the 9th and 10th centuries. Slavonic customary law, largely an oral tradition, also applied - it too had a certain Byzantine influence. Society remained largely agrarian until the late 19th century, living in large family groups (zadruga) with collective ownership models.

 

Ottoman rule in the 14th century heralded the entry of Islamic law into parts of South East Europe. However, this was subject to personal status, i.e. it applied only to Muslims. As a consequence, for the rest of the population, Slavonic customary law became effectively mummified. The Muslim population in Bosnia and Herzegovina, Macedonia, Montenegro and Serbia was governed by Islamic law, particularly Islamic family, inheritance and foundation law until 1941.

 

Meanwhile, in the 19th and 20th centuries the Austrian Civil Code represented one of the most important sources of private law in large parts of northern-South East Europe, although Serbia and Montenegro first needed to construct a modern legal culture following their independence from the Ottoman Empire. This task was taken up by a small group of talented lawyers, who had been trained with state funding in Western Europe. The process was not confined to a simple incorporation of Western European law, instead being undertaken at a sometimes highly-technical and doctrinal level, without losing sight of the influence of local law.

 

A shining example of this is the legislation in Montenegro, where the modernization of private law was essentially the work of one man: Baltazar Bogišić. Trained in Munich, Paris, Vienna and Berlin, he created the General Property Code for the Principality of Montenegro between 1872 and 1888. His work was exceptional, not only in terms of the structure of the Code, with common legal issues appearing before the rare and abstract principles, but also because Bogišić relied heavily on customary law, which did not however regulate family law and inheritance law (thereby also influencing Japanese law).

 

Bogišić is rightly considered one of the most important representatives of the German Historical School. On of his important contemporaries was J.C. Bluntschli, who designed the remarkable Private Code for Zurich in the 1850s, although he died before his legislative project came to an end. The Austrian Civil Code, the General Property Code for the Principality of Montenegro and the Serbian Civil Code remained in effect until the 20th century, continuing to apply in part as “rules of law” from 1946 where not superseded by subsequent laws.