Full text of the paper:
Proceedings of the Faculty of Law, Novi Sad
2024, vol. LVIII, no. 4, p. 973-1004
working language: Serbian
Review paper
347.91/.95
doi:10.5937/zrpfns58-53606
Author:
Olivera Jokić
University of Novi Sad
Faculty of Law in Novi Sad
o.jokic@pf.uns.ac.rs
ORCID ID: 0000-0002-0532-7833
Summary:
The procedure for resolving a disputed legal issue is a procedure that is initiated ex officio during the duration of the specific first-instance procedure. In that procedure, the highest judicial instance should respond to the legal question of the first-instance court that refers to the request for the interpretation of the law or to fill legal gaps and thus prevent uneven judicial practice. Considering that the supreme instance should declare a certain legal issue even before the first-instance judgment, an additional condition for the admissibility of such a declaration is foreseen – that specific legal issue should be raised in a larger number of cases. However, the practice of the highest instance is uneven, which is why the paper tries to determine that legal standard. The central part of the work is the subject of the procedure itself – a contested, or “unsettled” legal issue – as well as its characteristics. Different positions are taken on these issues in the doctrine, while the practice of the supreme instance is divergent. The theses examined in the paper are: 1) the contested legal issue is not a prior issue, and 2) it can be of both substantive and procedural nature.
Keywords:
procedure for resolving a disputed legal issue, preliminary issue, previous issue, disputed legal issue, harmonization of judicial practice.