Littérature scientifique sur le sujet « Declaratory / constitutive system »

In terms of history, it couldn’t be denied that the three type of lawsuit(coercive-, declaratory-, constitutive remedy) were recognized as independent needs in the development process of Civil Procedure, and current practice is also based on the independence between types. However, the theory that a declaratory remedy is a basic form of all lawsuits is theoretically valid to some extent in that all three types of the above lawsuit confirm the existence of rights and that the effect of the judgment has res judicata. Although modern and general confirmation litigation was established in Germany in the 19th century, its origins go back to Roman law, and it is a system that has developed in line with the needs of the times. In addition, it is necessary to take into account that in modern society, a declaratory remedy can play more diverse functions and roles in the conflict between various values and interests and the relief of the parties' rights. As such, if a declaratory remedy is a product of historical development, there is a need to develop and transform it to suit the needs of modern society. In seeking to expand the scope of relief for the parties' rights and at the same time rationalize the procedure, it is necessary to actively consider that a declaratory remedy is the basic or prototype of all lawsuit. Accordingly, in cases where it is more appropriate to resolve disputes, the responsibility and role of implementation shall be divided and supplemented or replaced. In designing more effective remedies in modern litigation, it is considered desirable to actively utilize the confirmation action as the basic or first step procedure.

Recognition is an instrument of the public international law founded in the classical international law. Still, it preserves its main characteristics formed in the period when states dominated as the only legal persons in international community. Nevertheless, the instrument of recognition is today as vibrant as ever. As long as it does not have a uniform legal definition and means of application, it leaves room to be applied to very specific cases. In this paper, the instrument of recognition is elaborated from two aspects - theoretical and practical. First (theoretical) part of the paper presents main characteristics of the notion of recognition, as presented in main international law theories - declaratory and constitutive theory. Other part of the paper is focused on the recognition in the case of Kosovo. Within this part, main constitutive elements of state are elaborated, with special attention to Kosovo as self-proclaimed state. Conclusion is that Kosovo does not fulfill main constitutive elements of state. It is not an independent and sovereign state. It is in the status of internationalized entity, with four international missions on the field with competencies in the major fields of state authority - police, judiciary system, prosecution system, army, human rights, etc. Main normative framework for the status of Kosovo is still the UN Resolution 1244. It is also the legal ground for international missions, confirming non-independent status of Kosovo. States that recognized Kosovo despite this deficiency promote the constitutive theory of recognition, while states not recognizing Kosovo promote declaratory theory. Brussels Agreement, signed by representatives of Serbia and Kosovo under the auspices of the EU, has also been elaborated through the notion of recognition - (1) whether it represents recognition; (2) from the perspective of consequences it provokes in relations between Belgrade and Pristina. Official position of Serbian Government is clear - Serbia does not recognize Kosovo as an independent and sovereign state. On the other hand, subject matter of Brussels Agreement creates new means of improvement for Kosovo authorities in the north part of Kosovo. Thus, Serbian position regarding the recognition is twofold - it does not recognize Kosovo in foro externo, and it completes its competences in foro domestico. What has been underlined through the paper and confirmed in the conclusion is that there is not a recognition which has the power to create a state and there is not a non-recognition which has the power to annul a state.

This article discusses the relations between land registration systems and underlying discourses of property from a comparative perspective. It is based on the example of French law which, characteristically, uses a declaratory land recordation system, i.e., registration is informative in nature, it affects the rules of evidence but it does not convey property nor does it affect complete strangers in any way. It is found that such a system implies that people will need to prove their ownership of land, and therefore presupposes rules of evidence which are based on possession or title to possess, since land registration is not used for that purpose. The historical reason for this choice was inherited from the French Revolution. It rests on the idea that property is held from no one, least of all from the State. Most countries in the world have opted for a land registration system which is constitutive of title, meaning that the State guarantees the registered owner’s title to land. This system was originally inherited from the remnants of the feudal system in which land was held through a tenure, i.e., from someone else. This conception of ownership also traditionally implies a greater tolerance – in legal discourse – for legislative or State interference in the ownership of land which is merely granted by public authority. It may therefore be said that the more efficient the title, the less absolute ownership seems to be, at least in the collective imagination of lawyers as to what property entails.

First summit meeting of the African Union, which took place in July 2002 in Durban, constituted a climax of the transformation process of the Organisation of African Unity. The Constitutive Act of the African Union, which accelerates the institutional change of the African continental organisation, entered into force. The African Union relinquishes to a certain extent the principles, which the OAU leant upon, it abandons all the strict adherence to the principle of non-interference in the internal affairs. Approval of the Protocol on establishment of the Peace and Security council raised hopes for successful conflict resolution in Africa even though the experience of the OAU showed rather limited (although not completely negligible) role that the Pan-African organisation could play in the area of conflict resolution. The author applies theories of integration on the Pan-African integration processes in order to find an explanation to it. But although many integration processes in Africa comport on the surface with the so-called neofunctionalist theory, and although the term "functionalist" was used to describe the integration spilling over from the sphere of an economic co-operation, the integration processes do not follow the course predicted by a prominent protagonist of the neo-functionalist school of Ernest Haas. Supranational bureaucracies did not become the leading forces behind the integration processes, and interest groups / political parties did not shift their activities and expectations to the supranational structures. The integration in Africa remained firmly in the hands of the national governments. While searching for the answer to the question of whether it is possible to explain the integration processes by the ideological conviction of African statesmen, the author highlighted the role, which the Pan-Africanism played in the emancipation of the continent. He also stressed the fact that Pan-African rhetoric is always present in the speeches of the African politicians. But after having cited the cases in which the declaratory allegiance to Pan-Africanism did not preclude anti-integration measures from being taken, he had to conclude that the Pan-African ideology is so vague that it does not commit African statesmen to any particular steps in the area of integration. The author applied the transactionalist paradigm on the integration processes in Africa but he had to conclude that the level of interdependence on the African continent is quite low. He found that although it is possible to identify regions bound by intensive economic and migration flows, the integration groupings were created even among states without any meaningful bonds.The author arrived to the conclusion that external environment had major impact on the integration in the postcolonial Africa. The determination to eradicate colonialism and apartheid from the continent united the African states in the past, and the danger of the marginalisation of the continent in the global system makes the calls for further integration more urgent nowadays. Integration processes were supported by the donor organisations as well. The concept, which assumed crucial role of the regional hegemonic powers in the integration processes, was found valid only to a rather limited extent. The fact that the establishment of the African Union took part without the goals set in the past being met could lead to a conclusion that it was a symbolic gesture only, which will not have any major impact on the situation on the continent. This conclusion would be supported by many cases of decisions and resolutions concerning the African integration, which were approved and not implemented.

In this paper, the author focuses on the effect of enforceability, in particular in relation to Austrian law. However, insights into German and European law are also provided. Enforceability is an effect of a judgment which is basically only granted to performance judgments. Declaratory and constitutive decisions (with the exception of the decision on costs) are not enforceable as such. As a result, the order for performance contained in the judgment can be enforced by state coercive measures. Enforceability occurs upon termination of the performance period. Enforceability is neither a consequence of, nor necessarily coincides with, res judicata. The introduction of the Brussels Ia Regulation has fundamentally changed the system of enforcement of foreign decisions. Decisions given in the EU Member State and enforceable in that State are now enforceable in another Member States without the need for a declaration of enforceability.

Conformément à l’engagement pris par le parti conservateur , la victoire du Leave à l’occasion du référendum sur l’appartenance du Royaume-Uni à l’Union européenne a entraîné la mise en œuvre de la procédure prévue à l’article 50 du Traité sur l’Union européenne. Le retrait du Royaume-Uni de l’Union européenne a surtout posé la question de la relation future entre les deux entités. La prééminence dont la libre circulation des personnes a fait l’objet lors de la campagne référendaire a invité Londres à envisager les différents scenarii à l’aune des possibilités offertes en matière de maîtrise des mouvements en provenance des États membres. Elles se ramenaient à une alternative : aménager la libre circulation des personnes en faisant usage des marges de manœuvre que le statut de pays tiers devait permettre de dégager, ou, au contraire, la démanteler. Le premier terme s’accommodait mal de la recherche de souveraineté telle qu’elle a été exprimée lors de la campagne référendaire. À travers la mise en œuvre du second, le gouvernement britannique entendait faire montre de sa capacité à tirer les conséquences du retrait dans le calendrier contraint de la sortie et à normaliser la relation avec l’Union européenne en alignant le traitement des citoyens de l’Union européenne et des membres de leur famille sur le droit commun des étrangers. En l’absence de droits acquis, cette entreprise nécessitait qu’un régime transitoire soit mis en place qui permette aux personnes qui ont exercé leur droit à la libre circulation et dont la situation était en cours de pouvoir continuer à en bénéficier.Au Royaume-Uni, l’alignement sur le droit commun n’a pas été opéré sans que ne soient apportées certaines adaptations. Il a d’abord donné lieu à une libéralisation du système d’immigration qui visait principalement à prémunir le marché de l’emploi dynamique et flexible contre l’apparition de carences qui pourraient le déstabiliser. Mais l’augmentation de l’immigration en provenance de pays tiers à l’Union européenne qui en est résultée a eu pour conséquence de soumettre l’entrée et le séjour des citoyens de l’Union européenne et des membres de leur famille à des conditions qui sont progressivement devenues plus restrictives encore. La logique de réciprocité dans laquelle s’inscrit cet alignement a abouti à un double phénomène : la régression des droits et la redistribution des perspectives de mobilité croisée entre, d’une part, l’Union européenne et ses États membres et, d’autre part, le Royaume-Uni. Malgré l’ambition poursuivie, l’alignement est toutefois demeuré incomplet. Le pragmatisme a en effet commandé de laisser subsister un traitement qui demeure à certains égards préférentiel. Il témoigne d’une volonté de préserver une relation essentiellement commerciale désormais et il connaît une exception notable avec l’Irlande, le Royaume-Uni n’ayant eu de cesse de réaffirmer son attachement à la Zone de voyage commune
In accordance with the commitment made by the conservative party, the Leave victory in the referendum on the United Kingdom's membership of the European Union triggered the procedure set out in Article 50 of the Treaty on European Union. Above all, the United Kingdom's withdrawal from the European Union raised the question of the future relationship between the two entities. The prominence given to free movement of people during the referendum campaign prompted London to consider the various scenarios in the light of the possibilities offered in terms of controlling movements from Member States. They came down to an alternative: either to adapt free movement of people or to dismantle it. The first option did not fit well with the quest for sovereignty expressed during the campaign. Through the implementation of the second, the British government intended to demonstrate its ability to draw the consequences of withdrawal within the constrained timetable of the exit and to normalise relations with the European Union by bringing the treatment of EU citizens and their family members into line with the ordinary law on foreign nationals. In the absence of acquired rights, this undertaking required a transitional regime to be put in place to enable people who had exercised their right to free movement and whose situation was ongoing to continue to benefit from it.In the United Kingdom, alignment with ordinary law was not achieved without adaptations. It first led to a liberalisation of the immigration system, the main aim of which was to protect the dynamic and flexible labour market from deficiencies that could destabilise it. However, the consecutive increase in immigration from non-EU countries resulted in further restrictions of the conditions that the entry and residence of EU citizens and their family members has been subject to. The logic of reciprocity behind this alignment has led to a twofold phenomenon : loss of rights and redistribution of prospects for cross-mobility between, on the one hand, the European Union and its Member States and, on the other, the United Kingdom. Despite the ambition pursued, alignment has nevertheless remained incomplete. Pragmatism called for a preferential treatment in certain respects, which reflects a desire to preserve an essentially commercial relationship. The case of Ireland, where the United Kingdom has consistently reaffirmed its attachment to the Common Travel Area, is a noteworthy exception