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Nad koncepcí dovolání v civilních věcech

100%
Dvořák B.
Právník. Teoretický časopis pro otázky státu a práva (The Lawyer - Scientific Review for Problems of State and Law)
|
2018
|
vol. 157
|
issue 4
343-353
EN
The article deals with the conception of review appeal in civil matters. In particular, it points out that the current Czech legislation treats the review appeal as an extraordinary appeal. Reasons for this approach are subject to criticism. Firstly, the author argues that dealing the review appeal as an extraordinary appeal may be more expensive and less effective. Secondly, the author doubts that the recommendations of the Council of Europe require such a conception of the review appeal. Finally, the criticized conception of review appeal can no longer be justified by the division of competences in the federal state. The author concludes that an incorrect legal assessment of the case is not appropriate as a reason for extraordinary appeal. In compliance with the ECHR case-law, the reasons for breaking the res iudicata should consist only in the fundamental defects of a final and binding decision. However, an incorrect legal assessment of the case by the lower court does not constitute such a serious defect. The review appeal should therefore be designed as an ordinary appeal (as an ordinary third instance).
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