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1

PRÁVNÍ ODPOVĚDNOST A JEJÍ SOUČASNÉ VÝVOJOVÉ TENDENCE S PŘIHLÉDNUTÍM KE ZVLÁŠTNOSTEM ČESKÉHO PRÁVA

100%
Pelikánová I.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2012
|
vol. 95
|
issue 6
549 – 566
EN
The article defines the term “liability” in the interbranch scope and then focuses on the issue of compensation for damage. It refers to development trends in this area of law. It deals with conditions that must be fulfilled for the rise of liability, their overlapping and with issues of indirect liability and scope of compensation for damage. Indirect liability comprises a large number of legally very different situations. From the commercial viewpoint, the liability of members of bodies of companies is very important. The new Civil Code, which significantly changes the existing situation, is analysed from this aspect. The new legislation among others lacks the general essence of this liability. The article deals also with the scope of compensation, especially for non-economic injury. The narrow definition of damage excludes the non-economic injury from its scope. This significantly complicates its whole legal regime, where compensation for non-economic injury is an exception from rule ether than a general rule. The new Civil Code does not distinguish compensation for damage “as such”. The article concludes that the new Civil Code brings some positive elements, but its provisions are very non-transparent, lacks a clear conceptual structure and will force the application practice to exacting interpretation.
2

PROTECTION OF GENERAL PERSONALITY RIGHTS IN THE CZECH REPUBLIC (Ochrana vseobecnych osobnostnich prav v Ceske republice)

100%
Matejka J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2008
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vol. 91
|
issue 2
119-131
EN
In his article the author deals with the protection of general personality rights in the Czech Republic that concerns exclusively the rights of natural persons. This protection results from so-called General Clause set out in the Civil Code and is continuously extended. It may be assumed that it is often implemented simultaneously with other ways of the protection of personality - by the provisions of both the private law (e.g. Labour Code) and the public law (e.g. Criminal Law, Offences Act, etc.). The author further analyses the scope and the content of the rights to the protection of personality that comprise human life and health, civic honour and human dignity, privacy, name, manifestations of personal character and other ideal possessions not explicitly specified by the Civil Code. The individual components of the protection of personality also find the support in other national laws and measures (e.g.personal freedom (of speech, movement etc.), right to education, right to information, right to a personal secret, etc.), but also in the international documents (e.g. Convention for the Protection of Human Rights and Fundamental Freedoms, Charter of Fundamental Rights and Freedoms, Universal Declaration of Human Rights of the United Nations General Assembly, etc.).
3

THE RELATIONSHIP OF THE COMMERCIAL CODE AND THE CIVIL CODE WITH ACCENT TO SELECTED INSTITUTES OF COMMERCIAL CONTRACT LAW (Vztah Obchodneho zakonnika a Obcianskeho zakonnika s akcentom na vybrane instituty obchodneho zavazkoveho prava)

100%
Oveckova O.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2008
|
vol. 91
|
issue 4
251-266
EN
The issues of the relationship of the Commercial Code and the Civil Code are cumulated particularly in the area of commercial contractual relations, where most of interpretation and application problems occur in connection with the question whether the Commercial Code or the Civil Code should be applied in a particular case. The relationship of the two Codes results from § 1 par. 2 of the Commercial Code and is based on the lex specialis derogat legi generali principle. As for the solution of the disputed issues of the combination of legal regulations and their application to commercial contractual relations of both Codes it is necessary to first assess whether in the particular case the legal relation has the commercial character, in the second part the authoress defines the commercial contractual relations. The third part deals with issues of contract types that are regulated in the Civil Code only and with their use in commercial contractual relations. It is an analysis of the provision of § 261 par. 6 of the Commercial Code, that requires that contracts that are not regulated as contract types in the Commercial Code, but are regulated as contract types in the Civil Code, should be governed by the relevant provisions on this contract type in the Civil Code and by the Commercial Code. It refers to the genesis of development of this normative text, its interpretation and application, including the analysis of judicial practice. In this part we can also find issues of legal statutes that are only regulated in the Civil Code, and their application in commercial contractual relations, with special focus on the institute of unjustified enrichment and the prescription of the right to the rendition of unjustified enrichment in commercial relations. It points out to problems of the application of both Codes to given institute, also in the decision-making of courts. In the conclusion of this part the authoress deals with innominate contracts in commercial relations.
4

PROPERTY RIGHT AND TENURE IN THE CZECHOSLOVAK CIVIL LAW IN THE YEARS 1950 -1983 (HISTORICAL LAW STUDY) (Vlastnicke pravo a drzba v ceskoslovenskom obcianskom prave v rokoch 1950 – 1983 (Historickopravna studia))

100%
Blaho P.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2008
|
vol. 91
|
issue 4
267-282
EN
The contribution is aimed to the genesis of the legislation on the property right and tenure in former Czechoslovakia after the year 1950 and contains their analysis from the view of three consecutive laws: Civil Code from the year 1950, Civil Code from the year 1964, and amendment of the Civil Code from the year 1982. The work on both civil codes were under strong ideological pressure, therefore the said classic institutes of civil law were subjected to restrictive changes. First in 1950 and then in 1964 the imposition of restrictions on the private ownership continued, and on the contrary so-called socialist ownership in its two forms - state and cooperative ownership - was strongly preferred. The personal ownership and the right of use close to the property right were introduced. The Civil Code from the year 1950 maintained the institute of tenure in the disputable form, while the Civil Code from the year 1964 did not regulate the tenure at all and excluded from the legislation the positive prescription as a way of acquisition of the property right. Only the amendment from the year 1982 returned the tenure and the positive prescription in the legislation. The author criticized the state, in which the institutes of property right and tenure found themselves in the years 1950-1983.
5

THE PROTECTION OF COPYRIGHT

100%
Sokalski M.
Myśl Ekonomiczna i Prawna
|
2005
|
issue 2(9)
81-109
EN
The subject of the paper is the analysis of non-property claims and property sanctions arising, when these properties are violated and protection of these properties after author's death. The essence of the problem in the former issue is expressed by the relation of article 78 part 1 of Copyright Bill and related laws and article 24 of the Civil Code. According to a predominant view, the application of these laws to the protection of the authors copyright shows an accumulative coincidence which allows them to be applied in an accumulative or alternative way. BasicalIy, among non-property ways we can mention a complaint about desisting or removing the results of infringement, which might take various forms. They don't require faulty action of the infringement perpetrator. This, however, is not the case with property sanctions (claims for satisfaction) which depend on the kind of infringement and the faulty action of the perpetrator. Non-property claims are associated with criteria of assessment of their occurrence. These include the objective and not subjective premises of their occurrence presented by most experts and legal rulings.
6

K FENOMÉNU KODIFIKÁCIE SÚKROMNÉHO PRÁVA

100%
Štefanko J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2017
|
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.
7

SMLOUVA KOMISIONÁŘSKÁ

100%
Marek 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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2013
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vol. 96
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issue 2
165 – 171
EN
This text is about Commision Agent’s Agreement in Code international trade, Commercial Code and new Civil Code. Under Commision Agent’s Agreement, the commision agent undertakes to arrage certain business matters for the principal in their own name but at the principal’s expense and the principal undertakes to pay them commision.
8

K USTANOVENIU NÁHRADNÉHO DEDIČA ALEBO O JEDNOM „ZANEDBANOM“ INŠTITÚTE

100%
Kleňová V.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2012
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vol. 95
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issue 3
263 – 279
EN
In this article author focuses on the problems of vulgar substitution, a legal institute based on institution of a substitute, which should be the heir in the instance, that person, who was instituted in the first place, will not become heir of the testator. The author states after defining legal substance of vulgar substitution and after its distinguishing from substitutio fideicommissaria, with which it is often interchanged, that vulgar substitution has a long tradition in the Slovak law and also at present it is widely used in practice, in spite of it has no support in the Civil Code since 1964. The author is also pointing out, that the absence of legal regulation of vulgar substitution, a legal institute, which follows from general principles of law of succession and also the whole civil law, is the loophole in the law, which, in the interest of legal security, needs to be filled up. Using Roman law science and comparison with Austrian ABGB, German BGB and Swiss ZGB, she is ruminating about optimal extent and content of legal regulation of vulgar substitution in the Civil Code.
9

LIABILITY OF THE TREASURY FOR ISSUING OR NON-ISSUING A DECISION OR A RULING

100%
Krol A.
Myśl Ekonomiczna i Prawna
|
2006
|
issue 4(15)
25-39
EN
The paper is devoted to the liability of the Treasury for issuing or non-issuing a decision or a ruling. The amendment of the Civil Code which was implemented on September 1, 2004 led to the regulation of these issues in art.417 § 2 and 3 of the Civil Code. The paper contains a historical background of the institution and describes the functions and premises of the above-mentioned liability. In his paper the author includes examples which allow him to present some legal regulations, the reasoning of the civil law doctrine and the rulings of the Supreme Court in this respect.
10

VZŤAH OBČIANSKHO A OBCHODNÉHO PRÁVA Z ASPEKTU PRÁVNEJ ÚPRAVY OCHRANY SPOTREBITEĽA

100%
Ovečková O.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2017
|
vol. 100
|
issue 1
67 – 81
EN
The article analyses this issue from the perspective of the liability relations. The division itself of legal regulation in the area of liability relations between two codes (Civil Code and Commercial Code) generates many problems. In the last years these relations were most significantly influenced by legal regulation of the consumer protection, which substantially intervened into the Commercial Code and redefined its scope. The article points out to multiple issues of fundamental importance, which are reflected in the following areas: the relation between the Civil Code and the Commercial Code; modification of selection of the Commercial Code by agreement of the parties; acceptability of the fiction that provisions of the Civil Code are always more favourable for the consumer. In the period of high fragmentation and variability of legal provisions it underlines the need to pay attention to the quality of their content and the method of their integration into the system of law, including the area of consumer law. All this considerably influences the interpretation and application of legal norms and their observance.
11

THE TERM OF 'BUSINESS ACTIVITY' AND 'PROFESSIONAL ACTIVITY' AS STATED IN THE ARTICLE 431 OF THE CIVIL CODE

100%
Grykiel J.
Studia Prawnicze
|
2005
|
issue 4(166)
31-48
EN
The aim of this paper is to define the terms of 'business activity (commercial activity)' and 'professional activity' as stated in Article 43' of the Civil Code. Both terms are crucial in defining the concept of entrepreneur in the view of the Civil Code. The definition of neither of the terms can be found in the legal act. Thus, the author is attempting to define the scope of their meaning, taking into consideration the purpose for which they were introduced. In author's own opinion, the hitherto prevailing practice of interpreting the meaning of the analysed terms on the basis of legal acts of the public law is inappropriate. He also presents his critical approach to the existing doctrine and jurisdiction, especially this of the Supreme Court. Concurring with the opinion that both 'business activity' and 'professional activity' have autonomous meanings in the view of the Civil Code, the author proposes his own definition of the above mentioned terms. In doing so, he considers the following factors: (i) performing a 'business activity' or 'professional activity' belongs to the sphere of facts independent of fulfilling any formal conditions, (ii) basis for forming definitions of the above mentioned terms should be verifiable in a way that is at least objective, (iii) when defining the terms of 'business activity' and 'professional activity' one should consider the necessity of legal protection of the contracting party that deals with either type of the transactor party. According to the proposition presented in this paper, 'a business activity' should be interpreted as 'participation in the market in such a way that one is convinced that one has to do with an independent company whose aim is to make profit from its commercial activity'. On the other hand, by 'professional activity' the author understands 'performing a profession which has the characteristics of a non-business (non-commercial) activity that has to be done in person and requires certain qualifications from the service provider'.
12

FARM - PROBLEMS OF A LEGAL CONCEPT

100%
Kokoszka D.
Kwartalnik Prawa Prywatnego
|
2008
|
vol. 17
|
issue 4
985-1042
EN
This article discusses crucial issues relating to the legal concept of a farm. An attempt to provide adequate explanation of the meaning of this notion must, however, be preluded by answers to five primal questions: (1) What is a farm as an object of law (particularly property law)? (2) What kinds of elements form integral parts of a farm? (3) What kind of relationships can be identified between the elements of a farm (i.e. why different elements may be considered as a unity)? (4) At which moment a farm comes into existence and when it ceases? (5) Is the notion of a farm conceptually and logically coherent with other legal terms? Solution to the problem is of vital importance in practice: it should settle rules of how to transfer a farm. Thus, several theories are presented and developed in order to conclude ultimately that the main arguments for 'positive' theories appear to prove unpersuasive. Besides, the legal regulation of a farm is so residual that it could give sufficient grounds for all the 'positive' theories or for none of them. Therefore, until necessary amendments are made, the legal concept of a farm should be considered as a convenient mental abbreviation rather than a specific object of law.
13

NĚKTERÉ OTÁZKY PRÁVNÍ ÚPRAVY SPOLEČNÝCH ČÁSTÍ NEMOVITOSTI V BYTOVÉM SPOLUVLASTNICTVÍ PODLE OBČANSKÉHO ZÁKONÍKU V ČESKÉ REPUBLICE

100%
Dvořák T.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2022
|
vol. 105
|
issue 5
420 – 436
EN
This article deals with some issues of legal regulation of common parts of divided real estate. Due to the extensiveness and complexity of this matter, attention is focused only on some issues of their regulation, namely on the concept of common parts, co-ownership of common parts, the definition of individual common parts (including the division into mandatory and optional common parts) and the right of joint and exclusive use some common parts.
14

Tönnies i spoleczenstwo cywilne: Zródla nowoczesnej koncepcji spoleczenstwa

100%
Zaleski P.
|
2011
|
vol. 7
|
issue 2
72-83
EN
While reading a Polish translation of Community and Society of Ferdinand Tönnies one may conclude that it is associationism that constitutes the main attribute of modern society. It is so because translator decided to write about association instead of society in a place of a word Gesellschaft. However, closer lecture makes one come to the conclusion that in his book Tönnies referred not only to the society but to a special kind of society - a civil society, that was also described as an economic society. According to Tönnies it is not associationism but economic activity that is a main attribute of the modern society.
15

ZAPOČÍTANIE AKO SPÔSOB USPOKOJENIA VERITEĽA V SÚKROMNOM PRÁVE

88%
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.
16

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

88%
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.
17

ZÁLOŽNÉ PRÁVO NA PODNIK AKO ŠPECIFICKÝ PREDMET ZÁLOŽNÉHO PRÁVA V PRÁVNOM PORIADKU SR

88%
Zlocha Ľ.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2014
|
vol. 97
|
issue 2
140 – 153
EN
The aim and purpose of this contribution is to inform the reader about the specificities the parties to legal relations must deal with when establishing, creating and exercising the lien on the enterprise. The Slovak legislation is sufficiently flexible and provides a wide field for contractual autonomy of the parties with respect to the means of the exercise of the lien. While in the laws of developed countries this institute has a long tradition, under the Slovak law the lien on the enterprise can be established from 1 January 2003, when the amending act to the Civil Code entered into force and significantly affected the whole legal regulation of the lien in Slovak private law. The amending act is based on the Model Law on Secured Transactions developed by the European Bank for Reconstruction and Development.
18

ZMLUVY O POSKYTNUTÍ FINANČNEJ SLUŽBY – 2. ČASŤ: VYBRANÉ FINANČNOPRÁVNE ASPEKTY NIEKTORÝCH BANKOVÝCH ZMLÚV A ZMLÚV O INVESTIČNEJ SLUŽBE, MOŽNOSŤ ZAVEDENIA ZÁPORNÉHO ÚROKU NA BANKOVOM VKLADE (OBLIGATÓRNOSŤ VÝNOSU PRE KLIENTA FINANČNEJ INŠTITÚCIE)

88%
Čunderlík Ľ., Čunderlík Čerbová V.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2020
|
vol. 103
|
issue 6
472 – 487
EN
In the second part of the paper, we paid attention to selected financial law aspects of the regulation of some banking agreements that are linked to a bank account (current account agreement, deposit account agreement). The private law regime of the current account agreement is essential for the public law framework of the payment account in the Payment Services Act, which presents a basis for related financial market law institutes of basic banking product and standard payment account. In the paper, we further analysed the legal possibilities of introducing a negative interest rate on bank deposits in the Slovak legal order under the general regime of the Civil Code and particularly in the context of regime of bank contracts linked to a bank account. The authors do not consider negative interest to be possible under the current legal situation, although they do not absolutely exclude it. The paper also focuses at investment contract agreements, which include elements of asset management (contract on safe custody, contract on depositing financial instruments, contract on portfolio management). In addition, lists the possibilities of tradability of financial instruments on the capital market. The authors point out the related risks in the existing regulation of the registration of financial instruments/securities with a securities trader, in terms of anonymization of their ownership, and at the same time in trading outside the regulated market.
19

O NOVOM MAĎARSKOM OBČIANSKOM ZÁKONNÍKU

88%
Vékás L.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2013
|
vol. 96
|
issue 4
313 – 325
EN
The article presents basic characteristics of the new Hungarian Civil Code adopted by the parliament on 11th February 2013, which will take effect from 15th March 2014 and supersede the first Civil Code from the year 1959. The new private law code is characterised by a monistic conception which integrates the whole law of obligations, covering both commercial and non-commercial obligations, regulation of companies and cooperatives, as well as family law. From the conceptual and system viewpoints the Hungarian Code is inspired by some foreign examples at national level, in particular by the Swiss ZGB, with which it shares the systematic arrangement of content (none of the codes has a general part). In terms of content the new Hungarian code is the continuation of existing legislation and case law and, in its innovated form, takes from it all items which have proved to be successful in the application practice. The new code also achieves the required degree of internationalisation and Europeanization. The authors of the code have drawn on the international and European legislation as well as on academic model proposals which won recognition from global experts. It can be stated that the new Hungarian Civil Code represents a modern national code of private law with European dimensions.
20

PASÍVNA LEGITIMÁCIA PRI ZÁSAHOCH DO CTI, DÔSTOJNOSTI A DOBREJ POVESTI VÝROKMI OSÔB POUŽITÝCH PRI INFORMOVANÍ O VÝKONE VEREJNEJ MOCI (2. ČASŤ)

88%
Kerecman P.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2021
|
vol. 104
|
issue 4
291 – 305
EN
Honour, dignity or good name can be also damaged by statements of constitutional actors, spokespersons of the state authorities, or by the content of their press releases that are issued to the media in the process of informing about the exercise of public power. The media that spread such information are not responsible for their veracity and therefore it is necessary to reliably determine the entity liable for such damage. The Czech judicial practice offers solutions that are different from those offered by the Slovak judicial practice. It concludes that informing about the exercise of public power is part of the exercise of public power and that provision of information about the exercise of public power to the media should be regarded as an official procedure that is incorrect if provided information proves to be false. This leads to the conclusion that the state, rather than its authority, is liable for damage to the honour, dignity or good name. Liability should be assessed according to a special norm regulating liability of the state for damage caused in the exercise of public power. Liability of the used person will be assessed according to the provisions on the protection of personality in the Civil Code only in case of an excess (abuse?). These conclusions of the Czech judicial practice are convincing and can inspire also the Slovak judicial practice, provided that similar legal provisions are applied. Unambiguous solution of passive objective legitimacy in these cases is the prerequisite of an effective protection of the fundamental right to preservation of human dignity, personal honour and good name.
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