Economic and Legal Consequences of Concluded Apparent Legal on National Interests in Montenegro07 gennaio 2018 -
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Contribution selected by Filodiritto among those published in the Journal “International Review – No.1-2/2017”
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Concluding contracts on long-term leases of state-owned properties, beaches and bathing grounds should bring about positive economic effects through the payment of lease fees and the construction of tourist complexes, which in turn should be reflected on the development of tourism, and therefore on a better quality of life of citizens. In order to have legal effect, a contract as a legal transaction must be concluded in accordance with positive legal regulations.
The respect for the institution of public order is the only condition limiting the fundamental principle of thelaw of obligations – the freedom of contract (autonomy of will). Through a detailed legal analysis, we want to draw attention to the examples of contracts on long-term leases that are unlawful. It is a particular type of apparent legal transactions (simulated contracts), because inconcluding contracts on long-term leases of state-ownedproperty, leasesare simulated in public, while the contracts actually contain elements of sales. It is particularly interesting that the lessor in the concluded contracts is a relevant state authority (a ministry), on whose behalf the contract is signed by an authorized representative who had also led the negotiations with foreign investors. The consequences of such contracts negatively influence the economic development, tourism industry, and therefore also the standard of living of citizens.
Our study refers to the analysis of the provisions of contracts which a competent national authority, in our case the Ministry of Sustainable Development and Tourism of Montenegro, concluded with foreign investors. These are long-term lease contracts of state-ownedproperty (beaches, bathing grounds, islands), which were concluded with the intention of valorizing these properties through foreign investments that contribute to the renewal of these resources, the construction of tourist complexes, and therefore the development of the tourism industry in Montenegro. The goals set in this way should be achieved if such valorization is arranged on the basis of legally concluded contracts. However, research has shown that in the contracts on long- term leases, unlawful provisions are implemented. If these provisions are repeated in each contract (as a fixed form), a logical legal question is put forward regarding what was meant to be achieved through the conclusion of such contracts. It is an illicit causa (cause), which represents a form of corruption.
If any of the essential terms of the contract are defined in a way that is contrary tothe established public order, the legal transaction is unlawful and the sanction of nullity must follow.
It is a thin line between the illegal andthe immoral legal affairs, especially in the cases where a single legal transaction offends the institution of public order. Where as in the case of illegal transactions, one element of a legal transaction is contrary to the explicit regulation of the law, in immoral legal transactions the contents of these legal transactions are contrary to moral attitudes, and thus they also represent offences against the institution of public order (Gams, 1972). Public order entails a set of principles on which the existence and duration of a legally organized community is based, and which are articulated through coercive legislation and moral imperativeswhich must be respected by all parties in their relations under the threat of sanction of nullity and from which they can not derogate (Perović, 2010).
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