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The Role of Legal Professions in Bypassing the Law: The Example of Fiducia cum Creditore (CROSBI ID 43382)

Prilog u knjizi | izvorni znanstveni rad

Karlović, Tomislav The Role of Legal Professions in Bypassing the Law: The Example of Fiducia cum Creditore // The Landscape of the Legal Professions in Europe and the USA: Continuity and Change / Van Rhee, Remco ; Uzelac, Alan (ur.). Cambridge : Antwerpen : Portland: Intersentia, 2011. str. 269-277

Podaci o odgovornosti

Karlović, Tomislav

engleski

The Role of Legal Professions in Bypassing the Law: The Example of Fiducia cum Creditore

Second life of fiducia cum creditore observed through the role of legal professions which participated in its historical development and today are active in its implementation reveals a complex dynamics interwoven with controversy and competition. The interaction of different players on the general field of law is here especially interesting as it differs from the traditional division of powers and currents within the pyramid of legal order. Sources of this development vary dependently upon the specific temporal conditions and national legal environment fiducia was introduced into. After an overview of the Roman fiducia cum creditore, in the focus of this paper are the introduction of Sicherungsübereignung in German law during the second half of 19th Century and fiducia, or judicial and notarized security by the transfer of ownership, as set up in the Croatian Enforcement Act from 1996. The primary cause for the introduction of Sicherungsübereignung in Germany arose from the lack of insight and understanding on the side of legislator regarding the rising need for credit and unsuitable security that debtors couldn’t afford. The practice tried to circumvent given obstacles, while the judiciary was uncertain which stance to take towards the rising practice. From the initial negative attitude, it changed its position only under the influence of reverses in academia which through theoretical systematization found place for the recognition of this institute. Nevertheless, it still mainly remains an institute of practice and is not regulated within the proper Acts. In Croatia, a different set of circumstances influenced the introduction of fiduciary security. The main reason that can be singled out would be general insecurity with debt recovery enforcement. Complicated and slow procedure in regard to regular security devices coupled with inefficacy on the side of enforcement organs discouraged any significant investments by banking and business sector. This deficiency in judicial system was compensated with the introduction of fiducia as scholars duly recognized existing problems and implemented first logical solution in new Enforcement Act. Characterized by regular extra-judicial enforcement, which makes it constantly attractive, it still remains a vivid example of legal professions’ interaction as is also visible from some frictions in its later application in practice, primarily on the line academia-judiciary, and the possible misuse of legal gaps by practitioners.

Roman law, Fiducia cum creditore, Sicherungsubereignung, fiduciary security

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Podaci o prilogu

269-277.

objavljeno

Podaci o knjizi

The Landscape of the Legal Professions in Europe and the USA: Continuity and Change

Van Rhee, Remco ; Uzelac, Alan

Cambridge : Antwerpen : Portland: Intersentia

2011.

978-1-78068-014-9

Povezanost rada

Pravo