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Good things come to those who wait?Will delaying make…

Marina Timotić • sep 30, 2020

Good things come to those who wait?
Will delaying make it easier or more burdensome to codify civil law?

To meet the growing need for a codification of the country’s civil law, as far back as November 2006 the Serbian Government established the Commission to Draft the Civil Code (‘the Commission’).A major objective of codifying civil law, which Serbia has always been seeking to achieve, is to ensure the entire body of national law is aligned both mutually and with European regulations, as well as to permit a comprehensive and co-ordinated approach to rules that govern family matters and domestic relations.

The Commission’s first Chairman was Professor Dr Slobodan Perović (1932-2019), retired professor of civil law at the University of Belgrade Faculty of Law. Professor Perović, who has since sadly passed away, once noted in public that Serbia was one of the few countries in the European legal tradition that lacked a formal Civil Code ,retired professor of civil law at the University of Belgrade Faculty of Law. Professor Perović, who has since sadly passed away, once noted in public that Serbia was one of the few countries in the European legal tradition that lacked a formal Civil Code (‘CC’), even though it had been amongst the first nations to codify their civil law, as early as 1844. This piece of legislation, the Civil Code for the Kingdom of Serbia as it then was, had remained in force for more than a century.

To date, three initial drafts of the CC have been produced, in 2011, 2015, and, finally, 2019. In an effort to foster debate and improve quality, public consultations involved a review of 480 alternatives for particular provisions. The completion of the final draft of the CC was protracted over several years, in all likelihood completely unintentionally. Yet, in July 2019 the Serbian Government disbanded the Commission, which marked the end of the consultation period and the commencement of drafting of the final Civil Code Bill.

In the lengthy period since 2006, when the Commission was first created, many individual domestic relations laws have been amended, and there are also increasingly frequent calls to overhaul the Family Law. It seems, therefore, that lawmakers have lost sight of the intent to regulate the issues comprehensively, which had been the stated aim of the codification exercise.

The Commission’s final Chairman was Dr Miodrag Orlić, past professor at the University of Belgrade Faculty of Law, later judge of the Supreme Court of Cassation, and now head of the Association of Serbian Jurists. In early June 2020, Dr Orlić claimed the Civil Code Bill had been completed and presented to the Serbian Government, which was to introduce it into Parliament following the general election that took place later that June. At this time, there is no official information as to what stage the Civil Code Bill is in.

The codification of civil law in the CC would encompass sections on General Matters, Law of Contracts and Torts, Property Law, Family Law, and Inheritance Law. The sections below outline some of the key proposed changes and innovations envisaged for Serbian civil law.

General Matters

  • Right to death with dignity (euthanasia), the right of a natural person to consensual, voluntary, and dignified death, would be available only where the requisite humanitarian, psychological, social, and medical conditions have been met. For instance, euthanasia would be permitted only where a terminally ill patient wished to put an end intractable to suffering by dying whilst retaining their human dignity, and strict requirements would be enacted to remove any potential for abuse.

The proposed CC may also grant family members or legal representatives of a terminally ill person the right to consent to euthanasia if that person is unable to give their consent due to serious illness or if deeply comatose.

Euthanasia is currently unrecognised in Serbian law as a permitted means of ending life and is deemed a criminal offence of privileged homicide. The exercise of the right to euthanasia would be highly complex, so the ultimate outcome of this proposal is yet to be debated by the legal practitioner community, and experts’ opinions will be necessary.

Were euthanasia to be legalised, the requirements and procedure for exercising this right, and the manner in which the actual procedure is performed, would all be regulated in a special law.

If euthanasia is made legal, amendments will have to be made to the Criminal Code of the Republic of Serbia (Official Gazette of the Republic of Serbia, Nos. 85/2005, 88/2005 – Correction, 107/2005 – Correction, 72/2009, 111/2009, 121/2012, 104/2013, 108/2014, 94/2016, and 35/2019) to decriminalise this act. In addition, amendments will also be required to the Law on Patient Rights(Official Gazette of the Republic of Serbia, Nos. 45/2013 and 25/2019 – Other Law),Article 28 of which stipulates that ‘a patient shall be entitled to the greatest possible extent of relief of pain and suffering, in compliance with generally accepted standards and ethical principles, including pain management and palliative care’, but does not refer specifically to euthanasia.

2. Law of Contracts and Torts

  • Entitlement of businesses and other legal persons to indemnification for defamation. Such indemnification would not constitute damages for actual costs incurred, but would rather serve as general damages that compensate the claimant for non-monetary loss, a right currently granted only to natural persons.
  • Greater liability of organisers of sports matches and other events. Currently, organisers are only held liable for death or bodily harm caused to a natural person due to exceptional circumstances at an event, such as movement of crowds, general disorder, and the like. The final CC Bill envisages broadening this to make organisers liable for damage to property owing to such exceptional circumstances. Similarly, organisers would he held liable for damage to property of both natural and legal persons due to terrorist activity or public protests or events.

3. Property Law

  • The CC Bill introduces the principle of inviolability of property, the right of any natural or legal person to undisturbed use and quiet enjoyment of property.
  • Equality of ownership rights would be guaranteed in a special article, which would read:“Ownership rights shall be undifferentiated and shall have the same content and enjoy equal legal protection, regardless of whether the owner is a member of the public (natural person) or the Republic of Serbia, autonomous province, local authority, foundation, or any other legal person governed by public or private law.“;
  • Modern rules will be introduced on co-ownership, joint ownership, and commonhold.
  • A separate section has also been proposed to regulate the property rights of foreign nationals, who are currently subject to significant restrictions on their ability to acquire property in Serbia, especially real estate. (These rules may also include reciprocity requirements.)

4. Family Law

  • Surrogacy agreements, contracts entered into between a woman (the birth mother) who will bear a child, and a married or unmarried couple, the intended parents of the child, will require the intended parents to be medically unable to conceive, either naturally or through reproductive assistance. This arrangement may also allow the surrogate to be a close relation of the intended mother.

Surrogacy agreements will also have to be certified by the court, which would also have access to all relevant medical records.

An additional condition for surrogacy will be for one of the intended parents to be the future child’s biological parent. Surrogacy will also be accessible to single women and men who wish to have a child on condition they pass a psychological and physical assessment that shows they are able to appropriately meet the child’s parenting needs.

Surrogacy agreements will govern the parties’ mutual rights and obligations. For instance, the birth mother will be required to surrender the child to the intended parents after she has given birth, whereas the intended parents would be required to take custody of the child regardless of his or her gender or any personal characteristics. The court is to adjudicate cases where a birth mother refuses to surrender custody, or where the intended parents refuse to assume it. These agreements may also envisage the parents indemnifying the birth mother for any reasonable costs of pregnancy and giving birth, such as food, medical care, and lost income. Also included may be a reasonable fee for the birth mother that would range from 8,000 to 15,000 euros. The intended parents will be required to tell the child about his or her manner of conception and parentage as soon as possible, and at the latest before the child starts elementary school.

Abortion will be allowed at the request of the intended parents, where medical evidence indicates the child will be born with a significant physical or mental deficit, or at the request of the birth mother, where the pregnancy is determined to pose a significant risk to her life or health.

The Biomedically Assisted Reproduction Law does not envisage surrogacy, and as such will have to be amended if the CC Bill is enacted as proposed.

  • Corporal punishment of children is to be prohibited, along with their subjection to demeaning acts and punishments that offend the human dignity of the child by parents, guardians, foster parents, and other persons taking care of children.

The objective of this prohibition is to prevent the use of physical coercion in bringing up a child. A child occasionally subjected to physical pain or discomfort in response to undesirable behaviour will be able to report this to the nearest Centre for Social Work, or can, alternatively, inform their school, which will then be required to notify social services. Where corporal punishment is deemed to be infrequent and is not considered abusive, the social services will initially admonish the parents. If the parents fail to heed this admonition, they will be referred to a family counselling centre or a dedicated family mediation institution.

In serious cases of corporal punishment, where a parent continuously inflicts physical punishment on a child that may be deemed child abuse, the child may be removed from the family. The current law also allows social services to take a child away from a family, but this applies only in cases where parents seriously neglect, abuse, or inadequately discharge their parental responsibility.

  • Same-sex partnerships are not explicitly mentioned in the final CC Bill, but are however referred to in a number of provisions, including the section on the property law concept of ‘personal servitude’ of a person’s right to habitation, or dwelling, in a home owned by another person:

‘The needs of a holder of the right of habitation shall be adjudicated both with regard to the time that such right arose and taking into account any other needs that may have reasonably been expected to come into effect at the time that such rights arose (such entry into formal or common-law marriage or same-sex partnership, birth or adoption of children, creation of a legal obligation in favour or against the holder of the right of habitation, and the like).’

In all likelihood, formal marriage between same-sex partners is not explicitly referred to in the CC Bill as it is currently not permitted by the Serbian Constitution, whose Article 62 stipulates that ‘[m]arriage shall be entered into based on the free consent of a man and a woman before a public authority’. To avoid violating the Constitution, a special law may be enacted to govern the registration of a same-sex union or partnership.

  • The CC Bill envisages financial incentives for childbearing that are to be paid in monthly instalments in amounts that are sustainable from the perspective of public financial management.
  • ‘Incomplete’ adoption is to be allowed, in contrast to current law, which permits only ‘complete’ adoption, which fully transfers the filiation of the adoptive child (and his or her descendants) to the adoptive parent (and his or her family). By contrast, ‘incomplete’ adoption would establish only a limited relationship and the mutual legal rights and obligations of parent and child between the adoptive child and the adoptive parent and their descendants.
  • The CC Bill envisages the creation of a Child Maintenance Fund to ensure continuity of maintenance payments in situations where a parent avoids paying for three consecutive or six non-consecutive months. This arrangement, which already exists in many European countries, would see maintenance payments made from a special fund, whilst the delinquent mothers and fathers would face sanctions.

5. Inheritance

  • Will contracts are also envisaged as a third form of succession, in addition to partible inheritance in the event of intestacy and testamentary succession.

These contracts would allow a testator to bequeath all or a portion of their estate to the other party (the ‘promisee’). However, the range of possible promisees will be limited only to matrimonial spouses so as to prevent the many inheritance disputes that usually emerge. A will contract may also be used to bequeath property to the children of only one of the matrimonial spouses, the shared children of both, their adopted children, or their other descendants.

The proposed innovations that have to date been made public have caused a great deal of controversy and debate, which comes as no surprise given the sensitivity of this topic, which inherently involves the most sensitive personal matters. This sensitivity, along with local traditions and cultural mores, may have been a key reason why it has taken so long to produce a final draft of the Civil Code, together with the extent of the body of law that needed to be codified. Moreover, the legislator’s caution may have also been prompted by concerns over possible abuses of the proposed rights, as euthanasia could be abused for homicidal reasons, surrogacy may be exploited for gain, and so on.

In conclusion, if the proposed amendments are enacted, strict and clear conditions for the exercise of these rights must be put into place to minimise the risk of abuse whilst allowing the public to benefit from these rights in their interests and in accordance with their needs and wishes. Doing so would achieve the primary aim of the codification: the enhancement of national law and its modernisation and additional alignment with European regulations.

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