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1

PRÁVNÍ SLUŠNOST (EKVITA) A SOUKROMÉ PRÁVO

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Eliáš K.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2017
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vol. 100
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issue 4
337 – 360
EN
The main part of the essay addresses the issue of application of equity in the decision-making practice of Czech and partially Slovak courts in civil matters. The author has interpreted the topic of the essay with references to the intellectual basis of perception of equity in ancient Greece and by Roman lawyers. The author comparatively suggests different paths followed by the legal practice in the search for justice in tried cases. The author notes the risks of a strict reading of the law and of judicial libertarianism. He points out that in the period of so-called communism argumentation by the principles of equity did not appear in the case-law and that a decent judge was able to find an equitable solution also in complicated cases. However, before 1948 in the common state of Czechs and Slovaks, the high courts worked with equity. Although the word “equity” is not a term used in written law of the Czech Republic and the Slovak Republic, the case-law in both countries had returned to equity and used it as a method of the search for justice. The author analyses the achieved results and shows how these trends were taken into consideration in the Czech Civil Code from 2012. The essay is accompanied by a number of references to examples of decision-making practice.
2

POJETÍ OBECNÝCH PARADIGMAT PRÁVA POHLEDEM EMILA SVOBODY

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Eliáš K.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2018
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vol. 101
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issue 6
535 – 553
EN
The paper is devoted to work and life of the important Czech expert in civil law Emil Svoboda; 140th anniversary of the birth will commemorate in October 2018. Emil Svoboda among others contributed to the foundation of the Faculty of Law of Comenius University in Bratislava, where he worked as one of the six founding professors in the first half of 1920s. Svoboda started his academic career before World War I at the Czech Technical University in and the Charles University in Prague. He refused traditional dogmatic that dominated legal science in Czech lands by a sociological, psychological and philosophical approach. His lawyer thinking was influenced more by Schopenhauer, Dostoevsky and Masaryk than by professors of law (with the exception of Emanuel Tilsch). Svoboda defended the idea that “a paramount measure of the sense and value of law is life and its need”. He believed that law should be evaluated in particular on the basis of ethical criteria. In the atmosphere of legal positivism of that period Svoboda was regarded as a solitaire, but his views did not sink.
3

PRVNÍ ZÁSADA SOUKROMÉHO PRÁVA (ZÁSADA AUTONOMIE VŮLE: RESPEKT KE ZPŮSOBILOSTI ČLOVĚKA TVOŘIT SI VLASTNÍ ŽIVOTNÍ POMĚRY)

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Eliáš K.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2019
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vol. 102
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issue 5
375 – 389
EN
Autonomy of will (private autonomy) is the first value of private law and the principle of private autonomy is its first principle, because private law would not exist without them. Many other principles adhered to by private law (respect of good morals, honesty, neminem laedere, prohibition of abuse of rights, pacta sunt servanda, etc.), would lose its function without autonomy of will. By the way, also private law concepts can be understood and interpreted on the basis of the principle of autonomy of will. “Autonomy is the ground of the dignity of the human and of every rational nature” (Kant). Private autonomy is derived from personal freedom. The article notices that this key term disappeared from Slovak and Czech law of the socialist era, because also civil law then perceived an individual as a component of a social “machine” building up communism. Freedom and hence private autonomy are now protected by constitutional safeguards that limit the public power. The author takes note of the contradictory phenomena of modern times and the contending trends of protection of freedom of an individual to mould his or her own private affairs independently and on his or her own responsibility according to his or her own will, but also its limitation under the slogan of public interests, security and public order.
4

SMLUVNÍ AUTONOMIE PŘI ORGANIZACI OBCHODNÍCH SPOLEČNOSTÍ

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Eliáš K.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2016
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vol. 99
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issue 3
171 – 185
EN
The author analyses among others the approach to the limits of autonomy in regulation of corporations in the Czech legal environment. He refers to two major factors that influence the mental tendencies to limit the freedom of the will in this respect. The first factor is the application of legal paradigms by non-democratic establishments during 50 years, where in particular so-called socialist law regarded the corporation regulation as mandatory. The second factor is a fascination by German stock law and the Satzungsstrenge doctrine, which the domestic practice, among others due to the permanent influence of the first factor on legal thinking, extended to cooperatives and limited liability companies. The new legislation, i.e. the Civil Code and the Corporation Law adopted in 2012, may motivate to abandonment of this “path dependence” in the practice of the Czech Republic. Time will show whether it actually happens. In this context the author highlights the role of legal science in the cultivation of legal thinking.
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