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1

PREČO ZOTRVAŤ PRI ROZHODNUTOM? (KRITIKA DICHOTOMICKÉHO MYSLENIA)

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Káčer M.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2013
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vol. 96
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issue 2
137 – 148
EN
Although modern theory of law insists that civil-law courts are not obliged to follow their previous judgements (A), it does not imply automatically that these judgements may be entirely ignored (nonA). Absence of general obligation does not mean total practical irrelevance. Influence of caselaw on the Continent is classified by different set of expressions: although case-law is not „binding“, it can still be „significant“; it does not have formal „normative“ force, but it has substantive „argumentative“ force, it cannot „oblige“, but it can „persuade“… Even if the case-law is not binding, it does not mean that there are no practical reasons why to apply it. And at the same time: even if the case-law is regularly followed, it does not come from its „bindingness“ but from its „significance“. Initial dichotomy „binding/not binding“ (A/nonA) has switched to dichotomy „binding/significant“ (A/B). Although there is change in the meaning of one of the alternatives (nonA became B), it is not accompanied with the change of logical relation which was between the alternatives in their initial state (excluding disjunction). Main aim of the present paper is to show that modern doctrinal reflection of practical effects of the case-law in common-law and civil-law countries is distorting. The main argument in favour of this proposition consists in description, analysis and critique of the way in which genus-species dichotomical definitions are usually advanced. The author of the paper is inclined to believe that accurate description of practical effects of the case-law can be achieved by the complex factor analysis and not by dichotomical classifications.
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Personality Rights in the Russian Federation

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Žitkevitš N.
Opolskie Studia Administracyjno-Prawne
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2013
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vol. XI
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issue 3
95-115
EN
The Russian law regulates protection of personality rights on the constitutional level, as well as that of acts of a lower rank. The Russian Civil Code does not contain a definition of personality rights, but only enumerates them, with the provision that case law treats the list of protected rights contained in the regulations as a closed one. On the other hand, the doctrine defines them as non-material, non-property rights, connected with the human being and protected by law. Contemporarily, there are distinguished two groups of personality rights protecting the physical existence of the human being (health, life, bodily inviolability) and related to its functioning in society (honour, dignity, privacy, freedom of movement). In a lawsuit of protection of personality rights the claimant must prove, in the case of defamation, not only the fact of their violation, but also the falseness of the charges. In other cases, the genuineness of the charge does not play a role. The protection includes property-related means (compensation and satisfaction) and non-property ones (correction of untrue information, publication of a statement with the appropriate content and form.
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Personality Rights in Lithuania

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Mikša K., Vaigė L.
Opolskie Studia Administracyjno-Prawne
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2013
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vol. XI
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issue 3
51-69
EN
The Lithuanian law statutizes the protection of personality rights of physical persons, primarily, on the constitutional level. The protection secured by the regulations of the civil law is of a slightly lesser importance and serves as a means of protection of constitutional values. On the other hand, personality rights of legal persons are not protected constitutionally. The doctrine defines the personality rights as non-property rights connected with the human being, which corresponds to the codified definition of the non-property rights and ones devoid of economic value. As regards the Lithuanian law, the catalogue of personality rights is open, although it is hard to point to what guiding principles should courts be directed by while granting the protection to unnamed personality rights. Personality rights are inalienable and non-hereditary, although after the physical person’s death, their personality rights can be executed by their spouses and children. This entitlement concerns violations which took place after the death of the given physical person. In the case of the personality rights which have been violated, the disadvantaged party is entitled to claims of default, removal of effects of the violation, satisfaction and compensation.
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Personality Rights in Central and Eastern Europe. A domestic report – Ukraine

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Macokina W.
Opolskie Studia Administracyjno-Prawne
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2013
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vol. XI
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issue 3
137-156
EN
The Ukrainian doctrine distinguishes two categories of personality rights: non-property ones in the pure form and non-property ones related to non-property laws. The rights are protected primarily by regulations of private law, though – more and more frequently – one can come across the view that ‘constitutionalization’ of them is growing steadily. The fundamental regulations concerning protection of personality rights are contained in Art. 269 and the following ones of the Ukrainian Civil Code. The regulations point to the basic features of personality rights; they also determine, in a truncated manner, their content as the right of an individual to self-determination in their private life. There exist also specific regulations which allow protecting personality rights of the special character, like – for instance – rights of intellectual property. The law and practice of protection of personality rights in Ukraine are at the early stage of development, which manifests itself, among others, in a small number of decisions in this particular legal sphere. This is caused, at least partially, by the low level of trust on the part of citizens to the judicature, which results in a very small number of civil cases submitted to Ukrainian courts.
5

Faszyzm a prawo. Głos w dyskusji

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Sondel J.
Studia nad Faszyzmem i Zbrodniami Hitlerowskimi
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2011
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vol. 33
355–379
EN
Adolf Hitler, who after the unsuccessful Munich Putsch of 1923 had changed his tactics and gained power by legal means after being appointed the Chancellor of the Reich on the 30th of January 1933 by the President Paul von Hindenburg, began the implementation of his party’s program but at the start of his rule he attempted to maintain a pretense of legalism. However, over time, he progressively attached less importance to this guise which was made possible by the declaration — by the President’s decree for the protection of the nation and state (February 28, 1933) — of the state of emergency which in fact was never formally revoked. The above-mentioned decree was for Hitler an extraordinarily useful instrument in his pursuit for incapacitation of state’s legal institutions and for seizure of dictatorial power. It was also observable in the realm of law in which there happened a Draconian aggravation of criminal penalties, a rejection of the most fundamental rule of legalism concerning the inadmissibility of the retroactivity of legal rules, a creation of Popular Tribunals and special courts, an extermination — in the majesty of law — of Jewish population and of feeble-minded persons, etc. In the sphere of civil law the interest of the state was considered to possess an absolute priority over individual rights which ultimately led to the disappearance of the boundaries between public and private law. The Italian Fascism was comparatively less harsh in its policies. Though it also accepted the employment of terror against political opponents as a way of governing, it never applied this method on as large a scale as it was done in the Third Reich. Benito Mussolini, the leader of the Fascist Italy, openly expressed his disapproval of Nazi’s undertakings towards Polish state in 1939; he also vigorously attempted to secure a release of the Jagiellonian University professors arrested and imprisoned on the 6th of November 1939 during Sonderaktion Krakau. At the same time, the Italian Fascists extolled the achievements of the ancient Rome — also in the field of law — which was a complete and utter anathema to Nazis who opposed Roman law on the most fundamental level. The fight against this law was considered by the latter to be one of their essential political principles, as evidenced by the 19th point of the NSDAP program adopted on the 24th of February 1920. This position of German ideologues also found its reflections in literature, particularly in a short story written by Louis Aragon and titled Roman law has ceased to exist and in poetic works of Mieczysław Jastrun, which anyway provide an excellent commentary on the abovementioned doctrinal propositions of the Nazi party.
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Personality Rights in Central and Eastern Europe. A domestic report: Bulgaria

100%
Hanev D.
Opolskie Studia Administracyjno-Prawne
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2013
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vol. XI
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issue 3
9-24
EN
A particular feature of the Bulgarian system of civil law is the fact that it has not been codified and therefore consists of acts which regulate individual laws, i.e., contract law, property law, family law, law of succession, commercial law and labour legislation. The Bulgarian law lacks the definition of personality rights, and it is only the doctrine and case-law that can settle the question. It is accepted that personality rights are personal rights, non-alienable, intuitu personae, protected within the class of torts by indemnities and possessive actions. It is commonly thought that personality rights result from the essence of human nature and that their protection exceeds the civil law, involving also other branches of law. The Bulgarian doctrine divides personality rights into static (protecting indefeasible rights, such as bodily inviolability) and dynamic (protecting rights that can be executed by the subject of these laws, like freedom of choosing the place of abode). These rights are treated, basically, as non-property ones and as closely related to a physical person, and therefore, as a result, they expire after the physical person’s death. The copyright is an exception to the rule.
7

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.
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Personality Rights in Poland

100%
Kubiak-Cyrul A.
Opolskie Studia Administracyjno-Prawne
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2013
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vol. XI
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issue 3
71-94
EN
Personality rights are protected in the Polish law by the regulations of Art. Art. 23-24 of the Civil Code. Moreover, the issue is regulated on the constitutional level as well, and also in the Penal Code, and still – partially – in the regulations of the public law. The notion of personality rights was defined by the legislator who left the task to be dealt with by the doctrine and case law. It is accepted that personality rights are of the legal unconditional rights character, and their catalogue is open. The protection covers both personality rights of physical persons and legal ones, although – in the case of the latter – there exist doubts whether the scope of protection should be identical with that granted to the former. Basically, personality rights expire alongside with the death of the entitled person, although in the case of copyright they can be executed after the creator’s death by indicated persons. The civil legal protection of personality rights includes the legal claim to have the fact of violation established, satisfaction (eventually payment of a fixed sum made over to a social cause) and compensation, as well as the claim to have the effects of violations removed, including submission of a statement with the suitable content or in the appropriate form.
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Instytucja prawa odkupu w polskim kodeksie zobowiązań z 1933 roku

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Bogucki S.
Z Dziejów Prawa
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2012
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vol. 5(13)
177-209
EN
The legal regulations of the Polish code of obligations from 1933 were to a large extent the effect of reaching some earlier legal solutions, in the case of the institution of the purchase law, among other the regulations included in the Napoleon’s Code and a project of a French-Italian code of obligations from 1927. The institution of the law of purchase regulated in the code of obligations also had a significant influence on its shaping in later legal regulations created in Poland after the World War II. The main aim of the author was to pay attention to the institution of the law of purchase in the Polish code of obligations from 1933 as a direct predecessor of this institution which, regulated in a similar way in the Polish civil code from 1964 is currently used in the civil-law circuit. The law of purchase in the civil code from 1964 is thus to a large extent the reflection of this institution from the code of obligations. It derives from the above that the regulations concerning the law of purchase in the code of obligations were of a high factual and technical-legislative quality, if constituted to some extent the basis of solutions accepted in the civil code. In the case of the interpretation of solutions ac- cepted in the code of obligations and those accepted in the civil code similar interpretative prob- lems have still appeared, and similar different opinions were formulated to which the literature created in the period when the code of obligations was biding could be used successively. One may assume that the very work can be not only a food for thought for a lawyer-his- torian, but also a contemporary lawyer-theoretician and lawyer-practitioner. As the author was trying to present, the very institution is connected with many general and specific issues playing a fundamental role for the law of obligations.
10

CONSEQENCES OF NONCOMPLIANCE WITH FORMAL REQUIREMENTS PRESCRIBED BY PARTIES' AGREEMENT (Skutki niedochowania formy czynnosci prawnej zastrzezonej wola stron)

100%
Grochowski M.
Kwartalnik Prawa Prywatnego
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2010
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vol. 19
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issue 2
333-347
EN
The present paper examines one of the classical concepts of civil law: the agreement upon the form of statements of will (pactum de forma). According to the article 76 of the Polish Civil Code, parties to an agreement may stipulate that they will take legal actions (exactly: make statements of will) in a particular form (e.g. in writing or in notary form). Polish civil law also provides a general rule that an act which fails to comply with such a formal requirement 'produces no effect'. This expression, crucial for the proper understanding of the whole regulation, is, however, not explicit enough and leads to severe controversies. According to certain authors, such a contract is only ineffective, whereas according to others, it is null and void. The present article aims to find a solution to this problem by applying the theory of conventional acts. In the light of this theory, statements of will and other legal acts have to be done in compliance with the conventional rules imposed by legal provisions, similarly to other conventional acts, which should follow conventional rules of different nature (like some acts of social behaviour, e.g. the way people greet each other). If these requirements are not observed, the whole act cannot be recognized as an act of the particular type. Consequently, the form prescribed by the parties for their future agreements should also be considered a conventional rule which is a condition for validity of the entire contract. Such agreement is null and void, but not nonexistent, since the concept of 'nonexistent legal act' (negotium non existens), seems to be too vague and uncertain to be used to describe defectiveness of civil contracts.
11

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

100%
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.
12
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Personality Rights in Central and Eastern Europe. A domestic report – the Slovak Republic

100%
Horváthová A., Rampášek M.
Opolskie Studia Administracyjno-Prawne
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2013
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vol. XI
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issue 3
117-135
EN
The Slovakian law protects personality rights in the way it does both the constitutionally guaranteed rights of the human being and citizen and the non-material rights protected by regulations of the civil law. They are effective erga omnes, which means a general prohibition of violating them. The Slovak doctrine divides personality rights into ’general’, which are of the non-property character and are granted to everybody, and ‘specific’, which are granted only to some subjects and which are of the mixed – property-non-property nature. The latter include rights of intellectual property. In the Slovak law there is still present the controversy as regards monistic or pluralistic character of personality rights. The list of personality rights is basically open; neither are they inseparably linked to the human being. After the physical person’s death, the right of their execution passes onto persons indicated in the act. Responsibility for infringement of personality rights has the objective character and the aggrieved party can lay claims for relinquishment, removal of effects of infringement, damages and compensation.
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Personality Rights in Central and Eastern Europe. The Czech Republic

100%
Frinta O.
Opolskie Studia Administracyjno-Prawne
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2013
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vol. XI
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issue 3
25-49
EN
In the Czech doctrine, attention is paid to the particular – exceeding the civil code – regime of protecting personality rights. Consequently, the rights are protected not only by the relevant regulations of the civil or penal codes, but also have their regulations on the constitutional and international levels. The doctrine of civil law defines the personality rights as rights of a person, ones that decide about the individual character of the given person in the ethical, psychic and physical aspects. Accordingly, the protection of personality rights concerns, basically, physical persons, while legal persons can, on the power of special regulations, pursue registering the name and protection of their commercial reputation. Although it is true that courts cannot make law, yet by providing a creative interpretation of it, they can broaden the notion of personality rights and the scope of protection if it is appropriate in the given case. Personality rights are legal unconditional rights, and therefore there is the general prohibition of violating them. Despite the existence of a strong bond between personality rights and the person who is granted them, they do not expire along with the death of the holder of the rights. They can be executed post mortem by persons indicated in the act.
14

LEGAL SECURITIES OF LEASING AGREEMENTS IN THE LIGHT OF CIVIL LAW PROVISIONS

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Wysocka M.
Myśl Ekonomiczna i Prawna
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2006
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issue 1(12)
67-97
EN
The aim of the paper is to present and distinguish different kinds of legal securities used in leasing agreements in Poland. Basing on dogmatic research the author juxtaposes information on leasing agreement and explains a form of securities used in practice when concluding leasing agreements and potential threats which results from the failure to repay their liabilities by leaseholders.The considerations included in the paper concentrate on presenting a leasing agreement in the Polish civil law. The author also explains the aspects of legal security of leasing agreements in economic turnover , presents the origin and evolution of leasing agreements in the world and in Poland. In addition he describes leasing agreements as a modern agreement in economic and legal turnovers, legal securities used in concluding leasing agreements and present dissolutions of legal relationship of leasing. Explaining the origin of leasing both in the world and in Poland , the author presents advantages and disadvantages of different kinds of legal security used by leasing companies in concluding leasing agreements and ways of terminating them in accordance with legal provisions.
15

PRÁVNA ZODPOVEDNOSŤ ZA PORUŠENIE DOBRÝCH MRAVOV

75%
Švidroň J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2013
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vol. 96
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issue 1
3 – 23
EN
The author considers the relationship between law and morality on the basis of analysis of an actual legal case which has been resolved after nearly 13 years. From the criminal law plane, where this case began, its analysis passes to the civil and commercial legal issues in the concrete context of provisions of § 415 of the Civil Code,regarding the general obligation of every person to prevent damage, and § 424 of the Civil Code, regarding the liability for damage caused by an intentional breach of morality. The author raises the question whether, in regard to the relationship between law and morality, inflexible thinking in civil and commercial relations can be overcome.The detailed analysis of the case is also a critical challenge to all those who are concerned with thinking and behaving so that the Slovak Republic is regarded not only as a declared, but a genuinely legal, state.
16

Odpowiedzialność członków zarządu spółek kapitałowych za zobowiązania spółki w świetle art. 299 kodeksu spółek handlowych oraz art. 116 ordynacji podatkowej

75%
Kaźmierczyk A.
Zeszyty Naukowe Uniwersytetu Ekonomicznego w Krakowie
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2012
|
issue 894
95-110
EN
The article presents the problem of responsibility of board members of companies for the obligations of the company both in terms of civil liabilities as well as of public law. The presentation of these issues requires that several issues be studied. First, the subject of discussion was to examine the conditions of the liability of directors of companies contained in Article 299 of the Commercial Companies Code and Article 116 of the Tax Code. The different treatment that board members of limited companies and joint stock companies receive is highlighted, as are the different interpretations of identical conditions on the grounds of both laws. Secondly, the issue discussed in the paper also required a presentation of the issue of limitation periods in civil law and public obligations, which are not uniformly shaped.
17

PRÁVNÍ SLUŠNOST (EKVITA) A SOUKROMÉ PRÁVO

75%
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.
18

PRINCÍPY A PRINCÍPMI CHRÁNENÉ HODNOTY OBČIANSKEHO PRÁVA V 21. STOROČÍ – NÁČRT FORMALIZOVANEJ METODOLÓGIE

75%
Števček M.
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 5
369 – 377
EN
The article outlines the problematics of methodology of principles of civil law at the time that is by modern philosophy traced as a hypermodern age. The hypermodern age is characterized by an unprecedented boom of technology, and also by an inclination to rational individualism and liberalism. It undoubtedly has an impact on the principles of private law and procedural law. They are seen as orders to methodological optimize production, but also the application and interpretation of civil norms. The author sees the principles as the most basic level of normative axiomatic system. As axioms, they are then transferable to a formalized lambda calculus of first order of predicate logic without identity, what is submitted on several principles in the article. As a basic hermeneutical meta-principle is, pursuant the author, considered rational legislator form which are deducible other principles of creation, but also the application and interpretation of civil law of 21st century.
19

INŠTITÚT PREDBEŽNEJ OCHRANY POSKYTOVANEJ OBCOU A ANALÝZA JEHO VYUŽÍVANIA V KOŠICKOM KRAJI

75%
Fraňo J. D.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2022
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vol. 105
|
issue 2
141 – 164
EN
According to the Slovak legal system, it has been possible since 1964 in small variations to demand the protection of the factual (peaceful) situation in the village. The municipality provides protection under the substantive law of civil law, but the procedural procedure is governed by the provisions of administrative law. Perhaps that is why it raises such concerns among municipalities and its application is still low, and the institute has the ambition to relieve the courts in some cases of the provisional protection provided if intervention is prohibited or, above all, if peace is restored. At present, the biggest challenges are the correct wording of statements of decision, based on well-formulated proposals, as well as the procedural procedures themselves, which are often incorrectly applied as a remnant of socialism, as commissions used by municipalities to deal with have been part of national committees in the past. However, at present, they are not bodies of the municipality, but of the municipal council, ie they do not have decision-making power. These procedures are used mainly in resolving neighbourhood disputes, as the most common disputes resolved in the municipality. With a detailed description and critical considerations, the author tries to point out the legal administrative procedures and point out the nuances of the application and implementation of the institute and at the same time present relevant, original, unpublished research focused on the use of the institute of preliminary protection in resolving neighbourhood disputes in the Košice region and its analysis.
20

ZODPOVEDNOSŤ ZAMESTNANCA V PRACOVNOM PRÁVE SLOVENSKEJ REPUBLIKY A PRÍPRAVA NOVÉHO OBČIANSKEHO ZÁKONNÍKA

75%
Barancová H.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2022
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vol. 105
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issue 4
271 – 284
EN
The concept of liability within the scope of labour law has its own characteristics compared to liability from the points of view of civil and commercial laws. The current concept of liability within the scope of labour law has proven its efficiency for decades and has not caused any interpretation or application problems. In connection with the upcoming recodification of the Civil Code, there is discussed the amendment of the Section 420 par. 2 of the Civil Code in such a way as to impose the employee's direct liability for the actions performed towards the injured party resulting in full compensation for damages, or in joint liability of the employee (helper) and the employer. There are also discussed drafts, according to which the employee would pay the injured party all the damage according to the Civil Code, and if the amount exceeds four times the employee's average earnings, they can claim such an amount from the employer.
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