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

100%
Lazar 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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2015
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vol. 98
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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.
2

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

100%
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
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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.
3

VZNIK A MIESTO VECNÉHO PRÁVA V SÚKROMOPRÁVNOM PORIADKU (II. ČASŤ)

100%
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 6
545 – 559
EN
Among others the interpretations in the second part deal with the law of property in the transforming states of Central and East Europe. It is typical that all these states, which belonged to the sphere of socialist law until 1989, adopted legislative measures toward restoration of the regular category of the law of property already in the first phase of the fundamental social changes, which meant a transformation of the political, economic and legal system of society. The restoration became a fundamental part of the return to the private law code and a prerequisite of the introduction of market economy. In this wider socio-political context, the author provides interpretations of the private law reform in these states, including general description of the new regulation of the law of property. The reform itself was implemented or is under implementation in the individual national legislations through new codification of private law or through special laws regulating the basic areas of private law. The first group comprises states, which already adopted new civil codes: Russia, Ukraine, Lithuania, Estonia, Romania and Czech Republic. Poland and Slovakia, where intensive work on new private law code is being carried out as a part of the completitions of the legislative process, can also be include in the first group. The second group comprises in particular state of the former Yugoslavia: Croatia, Slovenia, Serbia and Bosnia and Herzegovina. Finally, for comparison purposes, the article briefly addresses the law of property in the second large system of law, which is partially applied in the European legal area – Anglo-American law.
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