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Means of Execution as a Kind of Civil Law Sanction (from the Standpoint of the General Theory and Philosophy of Law)
Luka Burazin
Sažetak
In the attempt to determine one of the kinds of civil law sanction, the author presents two close theoretical concepts, built upon the criticism of the traditional concept of a civil law sanction as a duty of reparation which establish execution (Kelsen) or the means of execution (Dika) as a kind of civil law sanction. By analyzing them, particularly with regard to the examined case of causing damage, the author points out certain shortcomings of the criticized concept of civil law sanction as a duty of reparation and opens up the path to the possible acceptance of the presented concepts.
It is established in the article that causing damage by itself does not represent a civil wrong, but that civil wrong consists of non-reparation of the caused damage, i.e. the breach of the duty of reparation by its non-fulfillment. Consequently, as a kind of sanction of the mentioned civil wrong, forced replacement of the missing voluntary fulfillment of the duty by means of execution is established for the purpose of reparation of the caused damage.
The author concludes that by emphasizing the means of execution as a form of civil law sanction, a further step is made towards determining different kinds and extents of legal consequences of civil wrongs. Namely, in this way civil law, as in the case of criminal law, is equipped with special sanctions (individual means of execution), while execution takes on the meaning of a generic term encompassing various kinds of damage inflicted on wrongdoers.
Finally, it is established that the presented concept of the civil law sanction could relatively successfully be included in the Croatian theoretical legal system (general and positive legislation), which would have significant practical consequences (disburdening of Croatian courts, greater efficiency in execution of claims and others), since in this case the extent of the so-called judicial (jurisdictional) function in civil law matters would be limited by the procedural stage of determining execution (by individualization of civil law sanctions), while the stage of carrying out execution would remain outside its limits.
Ključne riječi
civil law sanction; reparation; execution; means of execution; general theory of law
Hrčak ID:
17490
URI
Datum izdavanja:
10.11.2007.
Posjeta: 2.622 *