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CIVIL LAW CODIFICATION PROCESS IN THE REPUBLIC OF NORTH MACEDONIA AND THE REPUBLIC OF ALBANIA
Full text linkCivil Law as a branch of the private law is very important because of the regulation of the relations between two natural or legal persons in the field of property law, family law or law on obligations. The Republic of North Macedonia had a different story on its codification of civil law since it was part of the Former Yugoslavia, and its initiative started in 2009 with the process of drafting the civil code. This process continues due to the change of the Macedonian Government in 2016, which prolonged the work on the civil law codification for a couple of years. Now more than ever, the Republic of North Macedonia is ready to adopt the new Civil Code, and the last chapter is expected to be completed by the end of 2023 or the beginning of 2024. On the other side, the codification process of civil law in the Republic of Albania was long, and it emanated since its pre-state formation with the customary law and establishment of institutes, continuing with the declaration of independence and formation of the Albanian state in November 28, 1912 and the first Civil Code of 1929, the second Civil Code in the period of socialism in 1981, and the third Civil Code in the period of transition in 1994 until today. All this legal process of codification has brought development in the fields of private law, one of them being family law.
Keywords: Civil Law, Family Law, Codification, Pre-State-Formation, Private Law
Introduction
Civil Law is the most significant branch in the part of the private law, known in Latin verb as Ius Civile. The first known codes include the Code of Hammurabi (1780 BC) and the Law of the Twelve Tables, known in the Latin verb as Lex Duodecim Tabularum or simply Duodecim Tabulae (The Twelve Tables). According to Ampovska and Ilioski (2013), the Law of the Twelve Tables forms the foundation of Roman law’s whole fabric. In continuation, the most significant codification of Roman law was Coprus Juris Civilis, a collection of fundamental works in jurisprudence, issued from 592 to 534 by order of Justinian I, the Eastern Roman emperor.
During the entire codification process, the Republic of North Macedonia and the Republic of Albania had undergone different paths. The Republic of North Macedonia was part of the Former Yugoslavia, and the process of the civil law codification of Yugoslavia was a partial codification of the property law, law on obligations and law on inheritance, which resulted in the enforcement of several federal laws important for the civil law. On the other side, Albania’s civil legislation history encapsulates two stages: the stage before the formation of the Albanian state with the customary law and the stage after the formation of the Albanian state promulgated with the declaration of independence on November 28, 1912.
The methodology used in this paper consisted of secondary data analysis using different legislations, studies and books conducted by legal scholars. The paper will thoroughly analyze the countries’ development in civil law in general and family law in particular. Regarding the Republic of North Macedonia, this paper will explain the entire process of civil law codification starting from the Yugoslavia period, the first step in drafting the civil code marked in 2009, until the preparations for the adoption of a new civil code. For the Republic of Albania, this paper will majorly focus on the most important stages, starting with the pre-state formation correlated with the customary law and its impact on the process of civil codification, the adoption of the first civil code in 1929 and its treatment of family law, the adoption of several laws on family law, the first family code and the adoption of the second civil code on the period of socialism in 1981 and in the end the period of transition, the third civil code of 1994 and the division with the family code. What is important to note is the legal tradition that both countries had and the foundations that this tradition had brought for a brighter future.
1. Civil Law Codification Process in the Republic of North Macedonia
The first codification in North Macedonia was made in 1992, and it involved only one area of civil law – family law. The Family Law was codified in three acts: Law of marriage, Law on the parent–children relationship and Law on custody.[1] In 1996, a new Law on Inheritance was adopted.[2] The provisions of this law were based on the Law on Inheritance in Yugoslavia. Macedonian Law on Obligations was adopted in 2001 and was based on the Federal Law on Obligations from 1978, but with changes and adjustments that correspondent to the new social and legal relations.[3] The property law was partially codified with the adoption of the Law on Property and other Real Rights.[4] This is a general and systematic law that leaves the opportunity for some relations to be regulated with lex specialis.
In comparison with other Western Balkan countries regarding civil law codification, Serbia adopted the first civil law code in 1844, and in the present moment, there is a new process of codification of civil law that is officially started; in Montenegro – the first civil law codification was in 1888 and there is partial codification today; in Bosnia and Herzegovina there is no uniformity or a general tendency towards harmonization; and in Albania two different Civil Codes were adopted in 1928 and 1981, and the existing civil code entered into force on 1 November 1994 and consists of five parts, following the German tradition: general part, ownership and property, inheritance, obligations and contracts.[5]
The idea for drafting a Civil Code of the Republic of North Macedonia was initially presented in 2009 in the Project for Drafting the Civil Code prepared by the Ministry of Justice. In 2011, a Commission for drafting the Civil Code was promulgated with the Decision of the Government of the Republic of North Macedonia. The Commission decided that the Code would be drafted according to the pandect system rather than the institutional system. The Commission also agreed that the content of the Macedonian Civil Code will consist of 4 parts: General part; Property law; Obligations and; Successions. It was decided that Family Law wouldn’t be a part of the Civil Code, although many national legal systems include family and domestic relations within this category, though the central focus of private law always concerns the economic and productive relations between ordinary people.
In 2014, the Commission prepared draft versions of Book 3 - Obligations and Book 4 – Successions within the Civil Code of the Republic of North Macedonia. Public debates and scientific conferences were organized with experts in civil law - professors, judges, attorneys and others to discuss the draft texts, the novelties and the whole process of civil law codification in general.
In general, the Commission decided that in the process of creation of the Macedonian Civil Code, the principles of equality of the parties and the autonomy of will should be especially taken into account, and the protection of those principles must be developed on a higher level than what is the case in the existing laws. Also, it was decided that the Civil Code must provide better legal and economic security for the parties that will eventually advance the stability of civil-law relations.
The novelties in Book 3 - Obligations can be considered as small in scope, however, the new systematics, incorporation of new contracts and the introduction of different legal arrangements for some agreements would satisfy the need of the parties for better regulation of the obligatory relations, acquisition of new rights and increase the protection of the rights in practice. The third book of the Civil Code, which refers to obligations, is divided into six parts. Part one: occurrence of obligations; part two: effects of obligations; part three: termination of obligations; part four: various types of obligations; part five: change of the creditor or the debtor; part six: separate contracts.[6]
As far as Book 4 – Successions is concerned, the Commission has prepared significant reforms in the inheritance legislation that refer to the introduction and detailed regulation of the inheritance contract, regulation of the legal right on inheritance of the posthumously conceived child, introduction of the possibility for the extramarital partners to appear as legal heirs, change of the legal nature of the right to a necessary part of the inheritance that will have an obligatory legal nature, introduction of the notary will, establishment of the register of wills, provision of the exclusive competence of the notaries in the field of inheritance agreements, etc.[7]
But, after the change of the Macedonian Government in 2016, for a couple of years, there was no information about the work of the Commission. In 2022, the Minister of Justice announced that the preparation of the Code continues. Of course, we must consider that the process of adopting a civil code in one country lasts for a longer period, sometimes more than a few decades. Since independence, North Macedonia has been very close to adopting a new Civil Code. Interestingly, it was decided that another part would be regulated in the Civil Code - the Family Law, which has significant meaning for the country, considering the outdated law. Four out of five chapters of the Civil Code are ready, the last chapter is expected to be completed by the end of 2023 or the beginning of 2024. The Code will ensure greater legal certainty and more straightforward exercise of citizens’ rights. We can conclude that The Civil Code will be composed of five parts: The general part of the Civil Law, the part on property relations, the part on obligatory relations, the fourth part will be dedicated to inheritance law relations and the fifth part on family law relations. With the drafting of the Civil Code, the Republic of North Macedonia will join the large number of European countries that have civil codes, such as Germany, France, Italy, Spain, the countries of Eastern Europe - Poland, the Czech Republic, Hungary, Romania, as well as the countries in our region - Greece and Albania for example. Within the framework of the Civil Code drafting project, the members of the Commission will take into account all modern civil codes, as well as the jurisprudence of the European Court of Human Rights, the most important international documents. After preparing the draft version of the Civil Code, a comprehensive public debate will be organized in which the scientific, professional and general public will participate who should give proposals for the adopted Civil Code to be of the highest quality.[8]
2. Regulation of Family Law in the Republic of North Macedonia
Family legislation in the Republic of North Macedonia has not followed the development of relations between society and the family in the last few decades. Macedonia is one of the few countries in the world where you can be legally married and in an extramarital union simultaneously. The legal solutions do not offer an adequate framework for solving the problems that arise in practice, especially with the increasing number of divorces and extramarital unions in the last few decades. While in all European countries, the regulation of marital and family relations has been an absolute priority, in Macedonia, since 1992, apart from some cosmetic changes, there has been no reform of the family legislation. Family law has many legal gaps and ambiguities, which can be seen from the court processes and problems in the division of property in the marital and extramarital union, parental rights after divorce, child support, etc. The main question for many years was why the legislator forgot the reforms in the family law area. The dynamics of the development of relations in society and the family in the past three decades have not been followed by appropriate legal changes, and the reform in this area has completely failed. Many family law institutes do not respond to the challenges of the times in which we live. Legal solutions have become a narrow framework for solving problems. The institution of marriage, extramarital union, property-legal relations for property acquired in marriage or extramarital union, parental rights and the right of a child are just a few issues that inevitably need to undergo changes and be reformed. In recent years, there has been a dramatically increased number of divorces. The increasing number of extramarital unions and illegitimate children, as well as the appearance of more single-parent families and families in which at least one partner already has children from a previous marriage. The question is how the law is reformed and adapted to this. There are several global tendencies. Now, we have the liberalization of divorce, and the extramarital union is also being liberalized, which is largely approaching marriage in terms of its legal consequences. The position of illegitimate children is also improving. The basis of all reforms is that there is greater protection of the first and the interests of children. Today, the main part of family law is not marriage law but parental law. The focus is not on the couple but, above all, on the child’s interest. In all European legislation, most of the reforms in this sphere aim to better protect children’s rights and interests. In all other European countries, the regulation of marital and family relations has an absolute priority, but in Macedonia, unfortunately, since 1992, except for some amendments to the family law that are not essential changes, there is no reform in the family legislation. There is still a dominant concept of joint property, which is acquired during the marriage, but it is not well defined what constitutes separate and what is joint property. The marriage contract is also not legally regulated. Macedonia’s social and political system has changed, but the solutions in the sphere of property relations have remained the same as those in the previous system. The biggest and most serious shortcoming of Macedonian family law is the regulation of the rights and protection of the interests of children. The family legislation does not align with the UN Convention on the Rights of the Child. The family legislation is outdated and does not correspond at all with the Convention in several key segments. The family legislation is against the European Court of Human Rights jurisprudence.
If we do a brief analysis of the family law in Macedonia, we can notice that there are a large number of provisions with public powers of the institutions and there is nothing essential for the well-being of families. Namely, public powers should be covered by other laws, and the privacy of families should receive primacy in this law. There are no moral values for marriage and the family as an institution. Some articles were annulled by the Constitutional Court of North Macedonia and some were deleted or annulled by other laws. There are separate articles on domestic violence, around 70 articles on disputes and courts, and 50 articles about adoption, but no articles on the upbringing of children. There are also many articles on guardianship, material support, and property relations, but no single article about spiritual pleasures, psychological support and protection of children, post-divorce parenting, etc. There are no penal provisions except one article (94), and there are no bylaws on post-divorce parenting.[9] Same things are repeated several times with the same or slightly different wording, which can lead to confusion, and there is an overlap of powers where both court and the social center have the right to assign the child to custody.[10]
The fifth book of the Civil Code of North Macedonia related to family law must consider and appropriately regulate all of the abovementioned deficiencies in the existing family law legislation.
3. Reasons for Civil Law Codification in the Republic of North Macedonia
The significance of the civil law codification is indisputable and comprehensive. The legal rules integrated into the civil codes construct a framework that ensures respect for personal dignity. At the same time, these rules articulate principles and values regarding fairness and justice in social and economic relations with others. Combining these elements, a Civil Code describes a web of standards comprising an economic and social constitution for society. This framework enables individuals to interact, create reciprocal bonds, form associations, mix, and be inclusive. A Civil Code also initiates a process that leads to popular acceptance of this economic and social model. Every assertion of rights and obligations arising under the private law rules of the code implies an acceptance of its standards of justice and fairness.[11]
There will be many benefits for Macedonian society if a Civil Code is adopted.
An essential benefit is the imperative to harmonize Macedonian regulations and legal practice with European acquis communautaire, on the one hand, and the case law of the European Court of Human Rights, on the other hand, which, by its legal force, dominantly directs the Macedonian legal order. The Civil Code would help a lot in reforming the legal system of North Macedonia after its accession to the European Union.
Thus, the ultimate and essential goal of the Civil Code is to reinforce the concept of the rule of law, which is a constant shortcoming and constant remark by the European Commission on the Republic of North Macedonia[12] and the Western Balkan countries in general. Another element that needs to be taken into account is the effort within the European Union itself for a greater degree of harmonization of civil law, especially contract law and tort law. Despite numerous discussions and disagreements over whether the future of European civil law should be the foundation of European continental law, especially French or German law or Anglo-Saxon law, there are certain areas in which there are established common solutions in European secondary law, especially through European Union directives. About one hundred legal instruments of the European Union refer to civil law. When it comes to international civil law, it achieves its whole meaning through the direct legislative activity of international organizations, which is the richest activity of the European Union. The adopted standards apply directly to all Member States.
The existence of civil law codification does not deny the possibility that certain social relations and legal institutes are regulated by special laws, which, however, cannot conflict with the code, which is the lex generalis. On the other hand, a large number of regulations in one legal system opens not only the problem of their transparency but also applicability because the rules that are enacted rapidly, especially in transitional societies, are often in a collision, and when there is a conflict within the national legal system, there is regularly a problem with the legal standards of the European Court.
According to eminent lawyers, the advantages of civil law codification significantly overcome possible shortcomings, and advantages are concentrated elaboration of constitutional principles of civil law, greater accessibility and easier visibility of solutions when they are in one place than when they are scattered in different laws; removal of existing ambiguities, gaps and contradictions and preventing their occurrence, and the need for compliance; formation of general legal norms valid for all or a number of parts, sparing from repeating the same norms wherever they are relevant; better visibility of the principle which permeate a number of parts, as well as a better overview of where and in which parts there are deviations from the principles required; creating a general framework and points of reference for the specific legislation.
Also, in this important area, for a better quality of citizens’ lives and more successful functioning of their associations, it is necessary to harmonize legal solutions with ratified international conventions and international standards for the legislation in force not to be partial, incomplete and inconsistent. Therefore, the Civil code would provide all legal subjects, both citizens and legal entities, in one complete, mutually harmonized legal act, to have a corpus of all civil subjective rights, which will facilitate their application and significantly expand preventive action of civil law institutes, which are of special importance for the everyday life of citizens and legal entities.
4.History of Civil Code in the Republic of Albania
4.1. Customary Law as the Foundation for the Establishment of the Civil Code
The legal culture of the Republic of Albania in Civil Law has extended way back its 111 years as a founding state. This process touched both phases of the country, which were the phase before the creation of the state and the phase of the establishment of the Albanian state with the Declaration of Independence on November 28, 1912 as the first constitutional act of the country. The roots of today’s civil code extend to the time of the customary law, which, according to Luarasi (2007), is an unwritten law transmitted from generation to generation through oral tradition and has served to regulate legal relations over the centuries in the country. The significance of this important source is that Customary Law, as Luarasi (2007) was mentioning, was not created by any single person nor by any legislative body, but in the contrary, just like songs, dances, legendary epics, myths, and material culture, it has been created by the people itself over the centuries and it reflects their philo
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