Prethodno priopćenje
The criterion of specialty as a means of resovling antinomies between the general principles of law (the City Cemetery case)
Luka Burazin
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
After having briefly presented the relevant facts and judicial reasonings, the author of the paper highlights two major theoretical dilemmas arising from a recent case (the so-called City Cemetery case) that was settled before the Croatian courts: the problem of gaps in the law and the problem of the so-called total-partial antinomy between two principles of law (the principle of nemo plus iuris and the principle of good faith). In an attempt to resolve the aforementioned dilemmas the author first presents the general stance on the problems of gaps in the law and antinomy in the law and the ways of dealing with them within the framework of the general theory of law. Furthermore, the author analyses the contents of the principles in question. Finally, on the basis of the solutions given in the writings on the general theory of law and the results of the analysis of the said principles, the author criticises the reasoning of the final judgment in the City Cemetery case and provides a different (theoretical) approach to the solving of these dilemmas. The author concludes that instead of resorting to the prevailing method of the weighing or balancing of principles, the criterion for solving the so-called total-partial antinomies between the general principles of law could be the classical juridical criterion of specialty.
Ključne riječi
gaps in the law; antinomies; general principles of law; criterion of specialty; weighing of general principles of law
Hrčak ID:
67125
URI
Datum izdavanja:
20.3.2011.
Posjeta: 3.779 *