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1

ON THE RELATIONSHIP BETWEEN LAW AND ECONOMICS. A CIVILIST'S MARGIN NOTES ON ECONOMIC ANALYSIS OF LAW.

100%
Olechowski M.
Kwartalnik Prawa Prywatnego
|
2008
|
vol. 17
|
issue 3
601-629
EN
Law and Economics consists in analyzing law and legal phenomena by applying instruments proper to economic science. The growing importance of this method raises the question whether the study and application of private law can draw benefits from economics. In the context of Polish civil law, the article proposes to approach this question in two steps. First, it seeks to identify the principal areas in which economics and economic concepts may influence private law and/or supplement its traditional, dogmatic instruments (in law-making, in the interpretation of legal provisions, and in the application of the law by judges). Second, it attempts to identify the limitations which pose an obstacle to a more wide-spread use of economic methods among lawyers (education, limitations inherent to econometric methods and the structure of law itself). The analysis concludes that while economic concepts may and should be used in jurisprudence more widely, it is important for lawyers to maintain a broader perspective acknowledging that the legal system is build around a broader set of autonomous values which are not reducible to a cost-benefit analysis and to a merely utilitarian approach.
2

ON THE LONG WAY TOWARDS A EUROPEAN CIVIL CODE (PART II.) (Na dlhej ceste k Europskemu obcianskemu zakonniku. II. cast.)

80%
Janco M.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2009
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vol. 92
|
issue 2
139-158
EN
The second part of the article focuses on the methods of civil law unification in Europe including in particular a European Civil Code or other binding Community instruments, drafting common principles, spontaneous harmonization of private law and application of an optional instrument. Furthermore, this part of the article is concerned with economic and political arguments regarding a potential European Civil Code and it also deals with the importance of differences between legal systems and legal cultures with respect to the unification of law by means of a uniform civil code.
3

K FENOMÉNU KODIFIKÁCIE SÚKROMNÉHO PRÁVA

80%
Štefanko J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2017
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vol. 100
|
issue 1
16 – 37
EN
By scrutinizing the phenomenon of codification of private law the author enquires whether the process of codification as understood in the civil law legal family and a complex civil code itself still have a place in the contemporary legislation and in the private law practice. Codification is hereby perceived as the traditional vehicle of private law innovation in Europe. Thus common features of codification are analysed and the variation of the concept in common law systems is taken note of. Furthermore, it is evaluated what effect on the legal system and the society the codification bring about. On background of the analysis of concrete historical experience with codification, it is suggested that the codification legacy in continental Europe is still relevant, whereas certain features of the phenomenon have to be redefined in order to serve the purpose of innovating and stabilizing modern private law, which is to take account of the social and meta-legal context, in which it is applied. Therefore stronger preference of open concepts and principles seem to be required and higher demands on the expert legislative work as well as judicial analytical depth are postulated.
4

ZNEUŽITIE DOMÉNOVÝCH MIEN V NEKALEJ SÚŤAŽI

80%
Zlocha L.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2017
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vol. 100
|
issue 6
595 – 610
EN
The author describes the abuse of domain names from the point of view of the law against unfair competition. In individual chapters, the author gradually analyses the legal responsibility for unfair abuse of domains and defines passively legitimate subjects. The author also provides the individual reasons why domain name disputes arise. Finally, the author made a legal analysis of the general clause of unfair competition from the point of view of application specificities in the Internet environment and detailed the possibilities of application of special cases of unfair competition. When examining the issue in question, the author relied, above all, on the decision-making practice of the courts and the conclusions of the existing, albeit not too numerous, legal doctrine.
5

TENDENCY TO CONCEPTUALISE EUROPEAN CONSUMER LAW

80%
Stefanicki R.
Kwartalnik Prawa Prywatnego
|
2008
|
vol. 17
|
issue 3
683-711
EN
This article relates developments in consumer law where there is still a tendency to conceptualise consumer law as private law. The existing EU consumer protection rules are fragmented basically: firstly, the current directives allow Member States to adopt more stringent rules in their national laws and many of them have made a higher level of consumer protection and secondly, many issues are regulated inconsistently between directives or have been left open. The EU proposes, in a Green Book on possible changes in contractual law directives, a total harmonization of consumer legislation. The need for national courts to ask rather detailed questions may increase with the recent trend to total harmonisation of EC consumer law. The EU legislator believes that the future horizontal instrument should apply to all consumer contracts. That will prevent regulatory fragmentation at European level and help to streamline European legislation. The article examines the merit of the test of the average consumer as a basis for judicial and regulatory action. Contract law attempts in various ways to regulate the information that contracting parties exchange. Increasing the transparency information available to consumers is de lege lata undoubtedly beneficial. Current practices however, be reflected by author in concrete legislative and proposed legislation. The Commission intends to create a European Contract Law, that would in the not so near future replace the national contract laws.
6

EŠTE RAZ KU KUMULÁCII BEŽNÝCH ÚROKOV A ÚROKOV Z OMEŠKANIA (A O SANKCIÁCH V SÚKROMNOM PRÁVE)

80%
Hlušák 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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2022
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vol. 105
|
issue 2
165 – 172
EN
In the article the author responds to the study of prof. O. Ovečková on ordinary interest and default interest, and disputes her conclusion that during default the creditor is entitled to both, ordinary as well as default interest. In the author’s view, the creditor is entitled only to the higher of the two, since both claims are, to a certain extent, aimed at satisfying the same interest of the creditor. In the article, the author further discusses the nature of sanctions in private law, in particular the question whether private law sanctions really fulfil a preventive, punitive and compensatory function. He points out the difference between the function or substance of sanctions and their effect. He concludes that, at present, sanctions in private law essentially fulfil only a compensatory function. However, it does not exclude the possibility that they may also have a preventive or punitive effect in individual cases.
7

HODNOTOVÁ ORIENTÁCIA NAVRHOVANÉHO SLOVENSKÉHO KÓDEXU SÚKROMNÉHO PRÁVA A ZÁSADA OCHRANY SLABŠIEHO SUBJEKTU

80%
Lazar J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2015
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vol. 98
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issue 3
205 – 219
EN
The article is based on the assumption that from the legal philosophical aspect modern private law has undoubtedly a significant social dimension, in particular due to the Europeisation. It is manifested in the increased need of protection of weaker party in the private-law relations. The indicated social function of private law is also the basis of the value orientation of the prepared Slovak Civil Code. Adequately to the substantive scope of the code, this function is projected virtually into all its parts. In this way the protection of weaker party, in indivisible unity with the principles of free autonomy of will and legal equality of individuals, become a regular principle of private law, including its code. This principle should lead to the achievement of the real equality of private-law entities, which remains the fundamental principle of this subsystem of law. Ultimately, the purpose of the widest possible application of the protection of weaker party in law is to strike a balance of the interests of all stakeholders and thus achieve an equitable result corresponding to the rules of equity and good morals.
8

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

80%
Eliáš K.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2019
|
vol. 102
|
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.
9

PRIESKUM ROZHODNUTÍ ORGÁNOV PRÁVNICKEJ OSOBY SÚKROMNÉHO PRÁVA V SPRÁVNOM SÚDNICTVE

80%
Csach K.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2022
|
vol. 105
|
issue 1
19 – 33
EN
The Slovak legal system allows for legal entities of private law and their bodies to decide as public administrative bodies. The question whether a decision sanctioning a member of a private law legal entity (civic associations, trade unions, hunting organizations, fishermen’s associations, sports organizations but also companies) is a private law or public law decision is still unresolved. The author describes the legislative development of the judicial review of decisions of private law legal entities. The author sums up the development of the case law of the panel deciding on judicial competence, which limited the competence of the administrative judiciary in the examination of such decisions. The author criticizes the possibility of exercising public power by private entities and explains why the criteria chosen by the recent decision of the panel on judicial competence (R 16/2021) are not appropriate to determine whether the decision of a body of a legal person against its members is an administrative body. It is argued that these criteria are deviating from the legislative text, according to which the decision of a legal person is a decision of public administration only in exceptional cases and under clearly defined conditions.
10

SÚKROMNOPRÁVNA AUTONÓMIA A JEJ LIMITY (INAUGURAČNÁ PREDNÁŠKA)

80%
Dulak A.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2018
|
vol. 101
|
issue 1
3 – 26
EN
Private autonomy has been always considered as a significant indicator of the personal freedoms of an individual. It is the fundament of private law; any interference with the freedoms of an individual triggers a debate about the character and duty of law - not only of private law. To many, consumer protection in private legal relationships features a significant interference of the freedom of contract. This article performs an analysis of some of the big changes within private law, and, based on their substance, the author attempts to redefine the concept of private autonomy in the conditions of our current society.
11

AUTONOMIE VŮLE – ZHODNOCENÍ STAVU

80%
Kodek G.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2019
|
vol. 102
|
issue 6
457 – 469
EN
Autonomy of the will is the essential concept of private law. Autonomy of the will means the possibility for each legal person to organise its legal relations according to its own free will. It is a part of the general principle of self-determination and it is specified mostly by norms of private law. Traditionally, autonomy of the will is most strongly exercised in the law of obligations. Nevertheless, autonomy of the will is never exercised without any restriction. Limitations on autonomy of the will result not only from the need to protect the others, but also from the protection of public interests. In any case, it is essentially undeniable in legal orders of free democratic states.
12

DETERMINACE SMLUVNÍHO VZTAHU NEZÁVISLÁ NA VŮLI STRAN

80%
Pelikánová I.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2023
|
vol. 106
|
issue 5
392 – 415
EN
The article is based on the assumption that the contracting parties usually do not have a precise idea of the content of the contractual relationship established by the contract. It is an attempt at outlining the elements that enter into this relationship without being a result of voluntary expressions of the contracting parties. The content of the contractual relationship is determined not only by mandatory and discretionary norms, but also by the interpretation of legal actions on one hand and the interpretation of legal norms on the other. If the parties do not understand both of them equally, it can result in the absence of consensus. The law allows for a judge to intervene under certain conditions and to determine the content of the obligation. To determine the content of the contractual relationship, it is necessary to distinguish between its state at the moment of conclusion of the contract and subsequent development. In this context the subject of this article is the importance of changes in external circumstances and the potential option for supplementation of the contract. In the conclusion, the author of the article pays attention to public law interventions into the content of the obligation. For example, in view of the limited scope of the article, the issue of the price of performance is chosen – first the question of its private law regulation in the Civil Code, then in public law statutes. It is obvious that the boundary between public law and private law regulation is not sharp. Public law obligations become part of the obligation and affect not only the relationship with the authority, but also the relationship with the other contracting party.
13

SOCIÁLNÍ NORMY SOUKROMÉHO PRÁVA A JEJICH MÍSTO VE STRUKTUŘE SOUKROMÉHO PRÁVA

70%
Hurdík J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2018
|
vol. 101
|
issue 5
431 – 454
EN
The subject-matter of the paper is particular set of questions, linked to the concept of social aiming of private law, and also the following question, which is the capacity of the private law to absorb legal regulation of the social model. The paper is focused mainly on the development and actual situation of the social models of the member countries of European Union and on the development, actual situation and future tendencies of European social model as regulatory system. Last but not least, the contribution is aimed also at the characterization of the principles and regulatory rules, used by the private law concept, esp. at their ability to support the implementation of the social model(s) into the legal regulation.
14

ZAPOČÍTANIE AKO SPÔSOB USPOKOJENIA VERITEĽA V SÚKROMNOM PRÁVE

70%
Ďurana M., Strapáč P.
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
381 – 396
EN
The article deals with the problem of offsetting substantive as well as procedural terms. At the outset, the authors devote legal historical excursion of and offsetting passed to the substantive conditions for set-off condition as a way of satisfying creditor in alternative manner. Subsequently, the authors focus on the current legislation of the offsetting and its conditions according to both procedural and substantive law. According to substantive law they deal with conditions of offsetting- compensation receivables in private law as one of the ways to satisfy the creditor as is specified in the §§ 580 to 581 of the Civil Code respectively the provisions of §§ 358-364 of the Commercial Code, specifying their content and analysis. Besides that they point out to the possible modification of these rules by specific legislation such as Act No 36/2005 Coll. Family Code or Act No. 7/2005 Coll. on Bankruptcy and Restructuring. According to procedural law, the article discusses the issue of raising the compensatory objection in civil proceedings, including raising the compensatory objections in eventum. It also deals with the question whether the compensatory objection can be raised also in the following proceedings after enforcement proceedings. In the context of the interpretation it refers to the decisions of the judicial authorities and mainly to the decisions of the Supreme Court on the given issue.
15

VYVRÁTITEĽNÁ DOMNIENKA DOBREJ POVESTI PRÁVNICKEJ OSOBY

70%
Zlocha Ľ.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2017
|
vol. 100
|
issue 4
361 – 371
EN
In the contribution, the author discusses the attribute of the good reputation of legal entities and analyses the good reputation itself, the way of its acquisition, duration and extinction. The main intention of the author was to point out that the status of a good reputation of a legal entity is heavily influenced by the factual act of the legal entity after its creation, and therefore the reputation of a legal person may be influenced positively or negatively. Not every legal entity can therefore successfully seek protection of good reputation through court proceedings. In the event that the defendant successfully demonstrates the lack of good reputation of a legal person or some facts which seriously undermines good reputation, it may result in a failure in litigation due to the absence of a substantive presumption of the legal basis of claim, namely the existence of plaintiffs´ good reputation.
16

MAJETKOVÁ NEROVNOSŤ A SOCIÁLNA FUNKCIA SÚKROMNÉHO PRÁVA (AKTUÁLNA ÚVAHA)

70%
Lazar J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2016
|
vol. 99
|
issue 4
287 – 309
EN
In the last three decades the leading world economies witnessed a fundamental change in the wealth structure of society, consisting in unprecedented growth of wealth inequality. This serious social phenomenon has far-reaching negative implications and consequences for economic, social, political, ethical and legal relations in society. The process of „Great Divergence“ comes into conflict with several principles of social doctrine of European private law and hence those of private law legislation of the EU member states. It concerns among others the implementation of principles such as principle of equality, non-discrimination, solidarity and in particular principle of social justice in distribution of wealth and material values. This reflection outlines the wider social context and utmost importance of the issue and names its individual aspects or correlations and resulting problems, which, also from the perspective of the sciences on the state and law, and especially civil law, require scientific analysis and new solutions in this actual context. It is rather an outline of assumptions and possibilities which, once confirmed in the economic and political areas, could create a verified basis for the search for new positive solutions in the area of protection of a weaker entity through the institutes of private law, concerning not only obligation law as before, but also the right in rem, not excluding more modern and suitable regulation of the property right.
17

VZNIK A MIESTO VECNÉHO PRÁVA V SÚKROMNOPRÁVNOM PORIADKU (I. ČASŤ)

41%
Lazar J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2015
|
vol. 98
|
issue 5
435 – 454
EN
In the first part of article, the author briefly explains the circumstances of origin of the law of property in the continental system of law on the background of the evolution of Roman private law. He refers to the role of glossators and commentators (so-called post-glossators) who during the historical development (13th to 15th centuries) tried to adapt Roman law to the new social and economic conditions by explaining the sources of Roman law. In these historical context a distinction between the law of obligation and the law of property started to be drawn, which clearly manifested itself during the reception of Roman law in continental European states. The category of the law of property, created by the legal science on the historical basis of Roman law during the long period of its reception, thus naturally found its legislative expression in private law of most states belonging to the continental system of law. The following part contains a comparison between the basic aspects of law of property provisions in a representative group of large civil codes adopted in the 19th and 20th centuries, particularly in French Code Civil, Austrian ABGB, German BGB, Swiss ZGB, Italian C.c.i. and Dutch BW. The comparison permitted to highlight, beside of several differences, general characteristics and principles, which are common to all these codes. The following principles of the law of property were highlighted: definiteness and absoluteness, prior tempore potior iure, numerus clausus and publicity of the law of property. These principles reflect the indispensability, cooperating function and stabilising character of the subsystem of the law of property in the private law codes in a market economy.
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