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Tvorba a publikace judikatury

100%
Králík L.
Právník. Teoretický časopis pro otázky státu a práva (The Lawyer - Scientific Review for Problems of State and Law)
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2018
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vol. 157
|
issue 4
320-332
EN
The function of case law inevitably correlates with its practical application. It is vital to define the concept of applicable case law. The thorough process of case law application inherently involves from a more complex perspective the process of publication of case law. The subsequent legal issues, such as availability or accessibility of the texts of case law as well as the system of the editing of court decisions, shall be transparently raised and described. A transparent process in publishing court decisions would make a major contribution to the function of the case law used within the process of application of the practical law. It is necessary in practice to distinguish, in the process of legal argumentation, the original texts of judicial decisions and the edited texts or abstracts. Similarly, we need to distinguish the process of merely disclosing the texts of the decisions and the special process of selective editing within the publication system. A tendency to apply specially modified decisions and abstracts of judicial opinions in current legal argumentation looms robust. The phenomenon of abstracts, artificially created from court decisions, can be perceived as a quite practical. On the other hand, it is crucial to emphasize the considerable level of subjectivity in the mode of their creation. Automatic blanket disclosure of the texts of court decisions via public (electronic) access should be an elementary practice administered by public authorities. It would strengthen the confidence in the decision-making process of justice and the rule of law in general.
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Role soudů při dotváření správního práva

88%
Mates P.
Právník. Teoretický časopis pro otázky státu a práva (The Lawyer - Scientific Review for Problems of State and Law)
|
2018
|
vol. 157
|
issue 4
333-342
EN
The participation of courts in law making has undoubtedly been happening for many years already; in the Czech Republic, we started to talk about the issue relatively recently, it was first explicitly mentioned in the academic literature mostly reflecting the impact of German authors, at the beginning of this century. The starting point of this article is the fact, that courts participate in law making when the law is applied against the clear diction of the law, when courts find in the legal texts one of many possible loopholes. The fact is that courts can reveal relatively arbitrarily another ones, and furthermore, courts often participate in law making without pronouncing any loophole expressively, namely under a situation, where the text of the regulation is entirely clear and indisputable. As it can be seen from the examples mentioned above, the boundaries or limits of such activity of courts complete are shifted permanently and increasingly and when such activity is undertaken by the supreme judicial authority or by the Constitutional Court, there can be found no means for remedy. There is no doubt, that the above mentioned tendency has become reality, however, there is no doubt, that courts should abide rather by the principle of self-restraint, otherwise, one of the main principle of the legal state will be threatened permanently, and that is legal certainty.
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