PRINCIPLE OF EQUALITY – NOTION AND APPLICATION IN SERBIAN LAW

Abstract

The principle of equality (of parties) means that all subjects in a legal relationship are put in an equal position, i.e. equal legal position. It is a principle describing a relationship between two wills, which may be the one of coordination or subordination. Despite the fact that in theory the equality of parties is viewed through the lens of equality of two wills, this principle is also applied in the areas where the relationship between parties is defined as the one of subordination. The principle of equality is studied in private and public law alike, but is considered to be a differential principle of civil law by the national legal science. One should differentiate between the principle of equality, studied as a constitutional principle and most often representing “some variety of [an] antidiscrimination principle,” and the equality of parties in the capacity of parties to a legal transaction. At the constitutional level, legal equality involves the equality of citizens, i.e. natural persons, protected by the provisions of non-discrimination, both direct and indirect. On the other hand, parties to a legal transaction or civil law subjects are equal when entering into a civil law relationship, but also during the exercise of their contractual rights and obligations. The idea behind the principle of equality is to ensure equal treatment in unequal social circumstances. This paper focuses on the analysis of the notion of legal equality in Serbian law. It is the author’s objective to show in which areas of law and in which form the principle of equality features, giving the most interesting examples of individual situations where equality is discussed.