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1

„ČESKOSLOVENSKÁ CESTA“ V NUPTUAČNÍM ZASTOUPENÍ? ZMĚNY PRÁVNÍCH ÚPRAV A JEJICH KRITIKA

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Kober J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2014
|
vol. 97
|
issue 3
245 – 263
EN
The preceding paper (PO 2014, No. 2) presented the historical background of the idea of the legal limitation of the proxy on the ground of sex, as well as contrary opinions in the Czechoslovak legal doctrine until the late 1980s. This subsequent paper gives more detailed analysis of the remarkable legal changes during the 1990s and during the first decade of our century. The partisans of the limitation succeeded in creating of the first legal limitation of the proxy on the ground of sex in Europe as they got their agenda into the new Slovak Civil Registry Act (1994). The Czech partisans followed them in 2001, as they were able to influence the changes of the Family Act. Finally, the new Slovak Family Act adopted – in a rather questionably changed shape – the limitation of the proxy into its marriage law. The intensive language mutuality between both countries as well as many personal ties led to various interactions and similarities in strategies (wording, omissions of grounds in the obligatory report) as well as in the doctrine (especially commentaries). The paper criticises the limitation of the proxy on the grounds of sex: it argues that this limitation has no legal function at all. Its real purpose is legal symbolism: a kind of publicly made delimitation between festive, solemn and worthy on one hand and perverted, ridiculous, odd and unworthy on the other. This legal solution is quite unique in Europe; nowadays, new Czech Civil code is leaving the limitation of the proxy on the ground of sex while Slovak Family Act retains it.
2

OMEZENÍ NUPTUAČNÍHO ZASTOUPENÍ NA ZÁKLADĚ POHLAVÍ A RŮZNICE STARŠÍ ČESKOSLOVENSKÉ NAUKY

100%
Kober J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2014
|
vol. 97
|
issue 2
131 – 139
EN
The uncanny object for decades – legal opinions saying that the marriage proxy shall be of the same sex as his principal, seems to be one of the most neglected issues of Czech and Slovak family law. The idea that the proxy shall be of the same sex as his principal has no older tradition, especially not in Catholic Canon law, where marriages by proxy are enabled without any limitations on the ground of sex. With the two marginal exceptions, none of more than 25 occidental countries enabling the marriage by proxy knows any limitations of the proxy based on his sex. The paper analyses sources of this idea, which emerged in Czechoslovak legal doctrine during the early 1950s: this was influenced by the legal doctrine of the Nazi Germany (demand of limitation of the proxy on the ground of sex posed uncompromisingly by Deuchler) as well as by the older doubts expressed by the Austrian scholar Lenhoff, and of course, also by the international wave of homophobic panic between 1930s and 1950s. Although having any support in the positive law (Act on Family Law, 1949 nor Family Act, 1963) and despite of (mostly restrained) dissaproval of the majority of legal doctrine, the idea of limitation of the proxy on the ground of sex led its own life, being persistently proclaimed by its few partisans (Petrželka, Štěpina, Planková) and waiting for its political possibility to be adopted into the positive law.
3

OMEZENÍ NUPTUAČNÍHO ZASTOUPENÍ NA ZÁKLADĚ POHLAVÍ A RŮZNICE STARŠÍ ČESKOSLOVENSKÉ NAUKY II.

100%
Kober J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2014
|
vol. 97
|
issue 3
232 – 244
EN
The uncanny object for decades – legal opinions saying that the marriage proxy shall be of the same sex as his principal, seems to be one of the most neglected issues of Czech and Slovak family law. The idea that the proxy shall be of the same sex as his principal has no older tradition, especially not in Catholic Canon law, where marriages by proxy are enabled without any limitations on the ground of sex. With the two marginal exceptions, none of more than 25 occidental countries enabling the marriage by proxy knows any limitations of the proxy based on his sex. The paper analyses sources of this idea, which emerged in Czechoslovak legal doctrine during the early 1950s: this was influenced by the legal doctrine of the Nazi Germany (demand of limitation of the proxy on the ground of sex posed uncompromisingly by Deuchler) as well as by the older doubts expressed by the Austrian scholar Lenhoff, and of course, also by the international wave of homophobic panic between 1930s and 1950s. Although having any support in the positive law (Act on Family Law, 1949 nor Family Act, 1963) and despite of (mostly restrained) dissaproval of the majority of legal doctrine, the idea of limitation of the proxy on the ground of sex led its own life, being persistently proclaimed by its few partisans (Petrželka, Štěpina, Planková) and waiting for its political possibility to be adopted into the positive law.
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