Title
Ustavni sud i sporovi o sukobu nadležnosti
Creator
Pajić-Šavija, Sandra Đ. 1981-
Copyright date
2016
Object Links
Select license
Autorstvo-Nekomercijalno-Bez prerade 3.0 Srbija (CC BY-NC-ND 3.0)
License description
Dozvoljavate samo preuzimanje i distribuciju dela, ako/dok se pravilno naznačava ime autora, bez ikakvih promena dela i bez prava komercijalnog korišćenja dela. Ova licenca je najstroža CC licenca. Osnovni opis Licence: http://creativecommons.org/licenses/by-nc-nd/3.0/rs/deed.sr_LATN. Sadržaj ugovora u celini: http://creativecommons.org/licenses/by-nc-nd/3.0/rs/legalcode.sr-Latn
Language
Serbian
Cobiss-ID
Theses Type
Doktorska disertacija
description
Datum odbrane: 25.11.2016.
Other responsibilities
mentor
Pejić, Irena 1962-
član komisije
Vučić, Olivera 1953-
član komisije
Stojanović, Dragan 1954-
član komisije
Nastić, Maja 1978-
Academic Expertise
Društveno-humanističke nauke
University
Univerzitet u Nišu
Faculty
Pravni fakultet
Group
Katedra za pravno-istorijske nauke
Alternative title
Constitutional Court and disputes on conflict of jurisdiction
Publisher
[S. Đ. Pajić Šavija]
Format
268 listova
description
Biografija autora: list 265;
Bibliografija: listovi 238-259.
description
Constitutional law
Abstract (en)
This dissertation treats the competence of Constitutional courts in
settling the disputes of jurisdictional conflicts, both in theoretical and
historical as well as practical, sense. It is common knowledge that the
Constitutional court is the most efficient mechanism for protecting the
constitutionally determined separation of power. The role of the
Constitutional Court is especially significant with regard to the fact
that the separation of power does not exclude the possibility of
interweaving jurisdiction of different levels of state power. By settling
disputes of jurisdictional conflicts, the Constitutional Court gains
competence for the determination of clear boundaries of state power
organs in terms of their constitutional authorisation. Given the fact
that the jurisdictional conflict is mainly motivated by political agenda,
the Constitutional Court must settle an originally political dispute by
implementing the constitutional norms.
The jurisdictional conflicts are a common competence of
Constitutional courts. They are a direct representation of the
government, or the constitutionally determined separation of power. A
distinction between horizontal and vertical disputes can consequently
be made. Various factors cause these disputes, including the
following: state power, government, political parties system, level of
democratic development, the level of precision of constitutional norms
determining the boundaries of state power, etc.
The constitutional disputes of jurisdictional conflicts should, however,
be thought of in a broader sense as well. The Constitution commonly
views these disputes as a separate jurisdiction of Constitutional courts.
If the disputes of jurisdictional conflicts are regarded as a factual
violation of constitutionally proclaimed separation of power, then the
other constitutional disputes can be seen as an infringement of the
power separation principle as well. In that way the Constitutional
court indirectly settles a competence dispute while simultaneously
carrying out normative control, its basic duty. Assuming that the
separation of power is based on the idea of preventing the abuse of
state power by guaranteeing the fundamental rights and freedoms, one
can say that, while deciding on the protection of rights and freedoms
proclaimed by the Constitution, the Constitutional court indirectly
protects the power separation principle. The matter of jurisdictional
conflicts can decided upon by the court when the court is asked to give
an interpretation of the constitutional provisions.
If the fact that this jurisdiction is a necessary consequence of federal
division of the state is exempted, one can say that in the countries
without federal division the settling of competence disputes, also
represents a separate jurisdiction of Constitutional courts. The guiding
principle for all the countries was the fact that the abuse of power or
the realisation of its separation (or balance) can only be reached
through the operating system of an independent and unbiased
institution, as the Constitutional court itself is.
An analysis of various countries’ Constitutions and the practice of
Constitutional courts in settling competence disputes has shown that
Constitutional courts have made a significant contribution to the
realisation of power separation, especially in the transitional processes
of non-democratic regimes to democratic ones.
Naturally the real effects of the constitutional jurisprudence depend on
the political climate-the relationship between the political institutions
and the one these have with the Constitutional court, as well as their
willingness to abide by its decisions-and this is a fact one should not
neglect.
Authors Key words
Ustavni sud, podjela vlasti, sukob nadležnosti, horizontalni
sporovi o sukobu nadležnosti, vertikalni sporovi o sukob
nadležnosti
Authors Key words
Constitutional court, power separation, jurisdictional conflict,
horizontal disputes of jurisdictional conflict, vertical disputes of
jurisdictional conflict
Classification
342.565.2(497.11)(043.3)
Subject
342.3(497.11)(043.3)
Subject
S 148
Type
Tekst
Abstract (en)
This dissertation treats the competence of Constitutional courts in
settling the disputes of jurisdictional conflicts, both in theoretical and
historical as well as practical, sense. It is common knowledge that the
Constitutional court is the most efficient mechanism for protecting the
constitutionally determined separation of power. The role of the
Constitutional Court is especially significant with regard to the fact
that the separation of power does not exclude the possibility of
interweaving jurisdiction of different levels of state power. By settling
disputes of jurisdictional conflicts, the Constitutional Court gains
competence for the determination of clear boundaries of state power
organs in terms of their constitutional authorisation. Given the fact
that the jurisdictional conflict is mainly motivated by political agenda,
the Constitutional Court must settle an originally political dispute by
implementing the constitutional norms.
The jurisdictional conflicts are a common competence of
Constitutional courts. They are a direct representation of the
government, or the constitutionally determined separation of power. A
distinction between horizontal and vertical disputes can consequently
be made. Various factors cause these disputes, including the
following: state power, government, political parties system, level of
democratic development, the level of precision of constitutional norms
determining the boundaries of state power, etc.
The constitutional disputes of jurisdictional conflicts should, however,
be thought of in a broader sense as well. The Constitution commonly
views these disputes as a separate jurisdiction of Constitutional courts.
If the disputes of jurisdictional conflicts are regarded as a factual
violation of constitutionally proclaimed separation of power, then the
other constitutional disputes can be seen as an infringement of the
power separation principle as well. In that way the Constitutional
court indirectly settles a competence dispute while simultaneously
carrying out normative control, its basic duty. Assuming that the
separation of power is based on the idea of preventing the abuse of
state power by guaranteeing the fundamental rights and freedoms, one
can say that, while deciding on the protection of rights and freedoms
proclaimed by the Constitution, the Constitutional court indirectly
protects the power separation principle. The matter of jurisdictional
conflicts can decided upon by the court when the court is asked to give
an interpretation of the constitutional provisions.
If the fact that this jurisdiction is a necessary consequence of federal
division of the state is exempted, one can say that in the countries
without federal division the settling of competence disputes, also
represents a separate jurisdiction of Constitutional courts. The guiding
principle for all the countries was the fact that the abuse of power or
the realisation of its separation (or balance) can only be reached
through the operating system of an independent and unbiased
institution, as the Constitutional court itself is.
An analysis of various countries’ Constitutions and the practice of
Constitutional courts in settling competence disputes has shown that
Constitutional courts have made a significant contribution to the
realisation of power separation, especially in the transitional processes
of non-democratic regimes to democratic ones.
Naturally the real effects of the constitutional jurisprudence depend on
the political climate-the relationship between the political institutions
and the one these have with the Constitutional court, as well as their
willingness to abide by its decisions-and this is a fact one should not
neglect.
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