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GENERÁLNE KLAUZULY V PROCESE APLIKÁCIE PRÁVA

100%

Zavadová D.

Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)

2015

vol. 98

issue 4

338 – 353

General clauses can be characterized as general provisions using uncertain and flexible language to regulate fundamental elements of some legal concepts. These are usually connected with a demonstrative list of the most often existing situations. A legal theory identifies several problems dealt with general clauses within the process of interpretation and following application of law. Pursuant to the same approach to application of general clauses by judicial or public bodies within the process of law application, the author divides chosen general clauses to three possible groups. The first group is represented by the general clause of unjust enrichment which bodies of law application constantly apply only as a principle. The general clauses of unfair commercial practices or unfair contract terms and the general clause of liability arising out of damage are applied independently in that cases which are not covered by special provisions. Relations between general and special provisions of this group can be explained by the rule lex specialis derogat legi generali. The last focuses on the general clauses which have an ambiguous application postition, e.g. the general clause of unfair competition or general clause of abuse the dominant position. These general clauses not only establish fundamental elements of some legal concepts but also its applying are necessary prerequisite for defining such actions as unfair or abusing by its special provisions. The above mentioned general clauses are problematic issues in the process of law application because there are doubts about the relations between general and special provisions. To eliminate these problems it is necessary to interpret them by all possible and convenient methods.

Niejednostajność prawa

86%

Staśkiewicz W.

Studia Socjologiczne

2013

issue 1(208)

41-75

The article deals with the issues of non-uniformity of law, as the opposite of uniformity of law, which is today regarded by lawyers as an equivalent to unification and codification of law. Lack of clarity, stability and certainty of law, as well as the objectification of law by the state, resulting in inflation of law or defects of legislative techniques, are not the only causes of non-uniformity of law. Therefore, the problem is perceived in a wider sense – as a state of imbalance between social norms of which legal order consists. The article examines in detail current social determinants of the lack of uniformity of law in Poland.

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1 Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)

1 Studia Socjologiczne

1 Staśkiewicz W.

1 Zavadová D.

1 2015

1 2013

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GENERÁLNE KLAUZULY V PROCESE APLIKÁCIE PRÁVA

Niejednostajność prawa