Yearbook of the Law Department

Editorial

Editorial Board — 2021-12-29

A Critical Analysis of the Case-Law of the Bulgarian Constitutional Court Concerning Legislative Retroactivity

Ekaterina Mateeva — 2021-12-30

This study focuses on the concept of retroactive application of the new law within the meaning of established case-law of the Bulgarian Constitutional Court (the Court). It is emphasized upon the circumstance that the Bulgarian Constitution does not contain a general prohibition on attributing a retroactive effect of the law, in the absence of an explicit legislative guidance to the contrary (e. g. sec. 5, para 3 of the Constitution). The Court finds that the principle stating that laws should have prospective effect should be derived from the rule of law as a constitutional principle (art. 4, para 1 of the Constitution). The present study examines the cases in which the Court finds that the prohibition of the retroactive effect of the law is applicable in cases of retroactivity ‘stricto sensu’, where the trust in the stability of the legal system, legal certainty and acquired substantive rights are violated. According to the recent Court’s case-law the retroactive effect of the law is incompatible with the rule of law under specific conditions. The Court has adopted the view that according to the principle of protection of legitimate expectations, related to legal certainty, legislative changes that are sudden, unexpected and disproportionate to constitutional standards must not be allowed.

Roman and Modern Emphyteusis

Malina Novkirishka-Stoyanova — 2021-12-30

The study examines a specific form of concession or lease of land associated with obligations to cultivate and ameliorate. It is divided into two parts – for the Roman and for the modern emphyteusis. In Part I they present the theories of the origin of emphyteusis in Roman law, as well as the characteristics of emphyteutic law (ius emphyteuticarium), which appears to be very specific (sui generis, iustertium) and different from the traditionally defined ius in rem and ius in personam. It is the result of the development of the Roman legal concept of public property and its management since the archaic period, it has its design in the so-called duplex dominium during the time of the Republic and the Empire and passed into medieval law in the system of divided ownership (dominium divisum). The concept of emphyteusis as a legal form of dominium utile and directly related to the feudal regime was one of the reasons for its denial in the age of Revolutions, but its dogmatic and functional usefulness necessitated its preservation in a number of civil codifications and agrarian laws even today.

The Unified Patent System – Expectation and Prospects for a United Europe

Veselina Maneva — 2021-12-30

The present study brings to the reader’s attention an extremely important fact for the European patent system – the beginning of the work of the Unified Patent Court. On January 19, 2022, the Protocol for the Preliminary Implementation of the Agreement on the Unified Patent Court entered into force, and it is expected to start functioning by the end of 2022 and the beginning of the following year. The article examines in historical order the creation and development of the European patent system, as well as the adopted legal acts outlining the new patent system of the European Union. The structure, competence and way of functioning of the Unified Patent Court have been clarified. Emphasis is placed on the advantages resulting from the introduction of the unified patent system, and above all on the role of the Unified Patent Court in unifying judicial practice in various patent disputes. The aim is to establish greater legal certainty in protecting the rights of patent holders. The opportunities and some of the problems that arise for Bulgarian enterprises since the introduction of the new patent system are indicated.

The Parliamentary Rules of Procedure of the Sixth Grand National Assembly

Ekaterina Mihaylova — 2021-12-30

Under consideration in the article are the debates and the adopted provisions in the Rules of Procedure of the VIth Grand National Assembly. A special emphasis is placed on the typical and characteristic features of the Rules of Procedure as well as on the particularities that it reveals, as being adopted for a parliament that is bound to adopt entirely new Constitution. There are some provisions in the Rules of Procedure that are relevant both to the constituent power and to the constituted power. Under analysis are the adopted provisions that are contrary to the provisions in force at the time of the 1879 Tarnovo Constitution, as well as the rule of law principles.

Legal Protection of Vulnerable Persons

Deyana Marcheva — 2021-12-30

In this article I discuss the issue how the law should define the vulnerable persons and whether the approach should be categorial or contextual. I argue that it is impossible in advance to make a list of all categories of vulnerable persons or groups in all possible legal contexts and for this reason the theory of vulnerable subject should not be ignored. The principles of rule of law, equality and human rights protection require for considering the specific situation of vulnerable persons in all administrative and court procedures so that they will benefit from more extensive and reinforced procedural protection of their rights. Such a procedural standard needs to be applied everywhere whether or not the legal framework provides for special statute of the persons from vulnerable groups, as in the Asylum and Refugees Act.

Case-law of the Court of Justice of the European Union with regard to the European Citizen’s Initiative

Katerina Yocheva — 2021-12-30

Under consideration in the present article is the case-law of the Court of Justice of the European Union (General court and Court of Justice) in the period 2012–2022 with regard to the European Citizen’s Initiative (ECI). On the first hand under consideration is the relevant case-law of the General court regarding cases about ECI, and on the second hand there is consideration of the respective Court of Justice’s case-law with regard to judgments of the General court that have been appealed before that higher jurisdiction.

On the Issue of Bulgarian Public Holidays

Petya Nedeleva — 2021-12-30

The festive calendar is a reflection of the understandings, values and history of a people and country, a sign to the next generations about the difficulties and victories of the past, an example of what they should value, what they should not forget and what they should learn from. Until the establishment of the Third Bulgarian State, the holiday calendar of the Bulgarian society consisted primarily of religious and traditional holidays, which were preserved as a main component of the holiday calendar even after the Liberation. To them are added holidays related to the monarchical institution, as well as important historical events for the Bulgarian people. Generally, public holidays are the designated important dates and non-working days in our annual national calendar, and the national holiday should be the most important day among them. Such an occasion is undoubtedly the adoption of the first democratic Bulgarian Constitution on April 16, 1879, which should not just be a day in Bulgarian history, but a national holiday of the Bulgarian state. If we respect the Bulgarian institutions, statehood and independence, we must give due importance and respect to this date.

The Pending and Relative Ineffectiveness in Three Interpretive Decisions of the Supreme Cassation Court

Silvia Tsoneva — 2021-12-30

The article examines pending and relative ineffectiveness of contracts in the case of Art. 76 of the Inheritance Act, Art. 26 of the Family Code and Art. 42 of the Obligations and Contracts Act as treated in interpretative decisions No. 1 of 19.5.2004, No. 5 of 29.12.2014 and No. 5 of 12.12.2016 of the Supreme Cassation Court. The concept and types of ineffectiveness are analyzed, as well as the specific issues of the situations discussed. It is concluded that Art. 76 IA provides for a resolutive condition combined with relative ineffectiveness, Art. 24, para. 4 and Art. 26 FC – contestability, which is different from relative ineffectiveness, and Art. 42 of the Obligations and Contracts Act – pending ineffectiveness, but in the absence of confirmation the possibility the contract to become effective is finally lost, and any interested person can invoke it.

Whether the Bankruptcy Receiver is a Procedural Substitute?

Todor Kolarov — 2021-12-30

The article discourses whether the bankruptcy receiver is a procedural substitute. Upon discussing different scholarly opinions, the supported opinion is that the receiver does not have the characteristics of a procedural substitute of the creditors or the debtor.

The Actual Benefit Gaining and Presumptive Impoverishment of the Impoverished Person in the Hypothesis of Usage of Another’s Property in the Meaning of Article 59 of the Obligations and Contracts Act

Ivaylo Malinov — 2021-12-30

The present article examines the problems arising in one of the specific hypotheses of the general claim for unjust enrichment within the meaning of Art. 59 of the Obligations and Contracts Act. In the predominant part of the practice, the courts do not examine in detail the question of whether the impoverished plaintiffs had the intention at all and whether they would objectively receive the property benefits appropriated by the unauthorized person using the foreign item. In this way the practice literally creates an “objective” unjustified enrichment in the presence of usage of someone else‘s property without legal grounds and an established right of ownership of the plaintiff. Further developing this scenario leads to a situation in which the court does not examine whether the plaintiff actually suffered impoverishment, despite the explicit requirement of the norm of Art. 59, para. 1 of the Obligations and Contracts Act for the presence of such as part of the elements of the factual composition of the norm. The indicated tendency of the judicial practice will be the examined subject of analysis in the following article.

Some Questions Regarding the Grounds and Procedure for Declaring the Invalidity of a Collective Employment Agreement

Maria Chochova — 2021-12-30

The exhibition addresses some issues regarding the procedure for declaring a collective agreement invalid. A comparison has been made between the claims for invalidity and those that can be filed in cases of non-performance of a collective labour agreement. Relevant case-law is analyzed.

EU Accession to the ECHR – an Equation with Many Unknowns

Tchetin Kazak — 2021-12-30

This article aims to present the status of the accession project eight years after the CJEU‘s opinion: the long way it has come, what has been done since then, the possible obstacles that remain, starting with the long procedure of ratification of the accession agreement, including by countries outside the European Union. The vicissitudes that this project has gone through, as well as the challenges that continue to face it, turn its realization into an equation with many unknowns, for which solutions are still being sought and will be sought.

Editorial Board — 2021-12-29

List of Abbreviations

Editorial Board — 2021-12-29

Yearbook of the Law Department

Editorial

A Critical Analysis of the Case-Law of the Bulgarian Constitutional Court Concerning Legislative Retroactivity

Roman and Modern Emphyteusis

The Unified Patent System – Expectation and Prospects for a United Europe

The Parliamentary Rules of Procedure of the Sixth Grand National Assembly

Legal Protection of Vulnerable Persons

Case-law of the Court of Justice of the European Union with regard to the European Citizen’s Initiative

On the Issue of Bulgarian Public Holidays

The Pending and Relative Ineffectiveness in Three Interpretive Decisions of the Supreme Cassation Court

Whether the Bankruptcy Receiver is a Procedural Substitute?

The Actual Benefit Gaining and Presumptive Impoverishment of the Impoverished Person in the Hypothesis of Usage of Another’s Property in the Meaning of Article 59 of the Obligations and Contracts Act

Some Questions Regarding the Grounds and Procedure for Declaring the Invalidity of a Collective Employment Agreement

EU Accession to the ECHR – an Equation with Many Unknowns

Contents

List of Abbreviations