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1

K PODSTATE SPORU O ÚSTAVNÝ SÚD

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Matulník 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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2018
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vol. 101
|
issue 1
83 – 103
EN
The Constitutional Court is an independent judicial authority vested with the mandate to protect the constitution. It should be composed of thirteen judges. However, at the moment, the Constitutional Court consists of only ten judges, nine of which have already exceeded ten years of their twelve year term. Despite the fact, that parliament has already nominated eight candidates. The president has appointed only one of them. The president reasoned his respective decision with the existence of the constitutional guarantee of the right not to appoint a judge". The existence of such constitutional guarantee has been contested by both the candidates as well as by the third senate of the Constitutional Court. The essence of the claim is anchored in an interpretation of the president's power to appoint the judges and it could be expressed by the question of whether the president is unconditionally obliged to appoint half of the candidates nominated by parliament and if not, what are the limits of his discretion. In the light of this question we need to focus on the purport and assignment of this power and to distinguish its notarial, controlling (limited or extended) and correcting role.
2

SÚDNY PRIESKUM PARLAMENTNÝCH PRAVIDIEL

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Balog B.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2017
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vol. 100
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issue 6
547 – 557
EN
Judicial protection of constitutionality leads to interference in the legislative powers of Parliament and represents an important element of protection of democratic and legal state. Its specific subject may be a law that regulates the internal relations of the Parliament as an expression of autonomous and sovereign vision of how it wants to have these conditions arranged. Judicial protection of constitutionality in this case is striking a balance between respecting parliamentary autonomy and the principles of democratic and legal state.
3

(NE)ROZHODOVANIE O SÚLADE ÚSTAVNÉHO ZÁKONA S ÚSTAVOU

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Balog B.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2021
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vol. 104
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issue 2
99 – 115
EN
The article provides a point of view of the regulation stipulating from the 1th January 2021 that the Constitutional Court of the Slovak Republic does not decide on the conformity of a constitutional law with the constitution. This view is not from the position of the Constitutional Court of the Slovak Republic, as might be expected, but the article presents a view through the exercise of those powers of the National Council of the Slovak Republic that require a constitutional majority. The idea is to point out inflation, relativization and the fallacy of the constitutional majority. This exposes the core of the constitution to a threat against which there must be a protection in place in a democratic and legal state.
4

VŠEOBECNÉ USTANOVENIA O KONANÍ PRED ÚSTAVNÝM SÚDOM. KRITICKÉ POZNÁMKY K NOVÉMU ZÁKONU (II.)

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Mazák J., Jánošíková 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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2019
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vol. 102
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issue 2
97 – 113
EN
The authors analyse critically the General Provisions (GP) of the new act on the Constitutional Court which becomes legally binding from the 1th March 2019. The purpose of the GP shall be simplify and make more effective the whole procedure before the Constitutional Court. There are several reasons why this aim has not been achieved. The legislative process suffered from the severe flaws. Provisions concerning a proposal of initializing of proceedings and other submissions are unclear. The position of the parties and their representatives including participating parties is not very stable. The authors express some doubts on impartiality of judges in relation to their political past. They criticize the lack of consequences of a procedural decision by which the proposal of initializing is rejected only for the reason that in favour of it has voted less than seven judges. Finally, a supporting application of Civil Dispute Code is not enough for a proper functioning of the Constitutional Court.
5

INDIVIDUÁLNY VS. SPOLOČNÝ ZÁUJEM VERITEĽOV V REŠTRUKTURALIZAČNOM KONANÍ

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Patakyová M., Duračinská J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2018
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vol. 101
|
issue 5
455 – 474
EN
The basic prerequisite for the success of the restructuring is an approved restructuring plan, the acceptance and confirmation of which by court must meet the legal criteria. One of the criteria is the compliance of the restructuring plan with the common interest of the creditors, which is however not defined by law. However, the interests of individual creditors are different, while the shareholders as creditors are in a different position in the process of restructuring. The article is focused on criteria that are applied to a test of creditors’ common interest in respect of conflicts of interest between creditors, and a relationship between the test of creditors’ common interest and the test of the best interest of creditors. With regard to the process of approving the restructuring plan, we also focused on the nature of the creditor’s community and on the legitimacy of the way in which the restructuring plan is approved, whether the creditors with different interests are obliged to be loyal to each other in that community. The article analyses the legal nature of the restructuring plan at the same time. The article is based on the decisions of the Constitutional Court of the SR (hereinafter referred to as the “Constitutional Court”).
6

O ORGANIZÁCII, RIADENÍ A ROZHODOVANÍ ÚSTAVNÉHO SÚDU SR. KRITICKÉ POZNÁMKY K NOVÉMU ZÁKONU I.

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Mazák J., Jánošíková 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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2019
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vol. 102
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issue 1
44 – 55
EN
The authors analyse critically the second and third part of the new act on the Constitutional Court which becomes legally binding from the 1 March 2019. Their contribution starts with the consideration on the lack of respect towards the EU law despite the fact that the Constitutional Court is a court who is obliged to submit preliminary ruling questions. There are several specific problems with the interpretation and application of the new act. The most relevant are the decision making by a single judge and the unification of different legal opinions of chambers of three judges of the Constitutional Court. The rest of the interpretative difficulties concern the removal of President and Vice-President of the Constitutional Court.
7

KONANIA O OCHRANE ÚSTAVNOSTI PRED ÚSTAVNÝM SÚDOM SLOVENSKEJ REPUBLIKY. KRITICKÉ POZNÁMKY K NOVÉMU ZÁKONU (III.)

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Mazák J., Jánošíková M.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2019
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vol. 102
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issue 3
183 – 203
EN
The authors analyse critically the selected proceedings before the Constitutional Court on conformity of legal rules, on constitutional complaints and on interpretation of a constitution and constitutional acts. They conclude that the legislator has adopted the new act on the Constitutional Court without taking into account the results of the case law and legal jurisprudence which have been achieved on the basis of former act on the Constitutional Court. Such an approach of the legislator leads to a couple of erroneous provisions which should be amended or annulled.
8

O ROZHODOVANÍ POLITICKÝCH OTÁZOK ÚSTAVNÝM SÚDOM

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Čapkovičová P.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2016
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vol. 99
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issue 5
421 – 430
EN
This article deals with constitutional courts when an object of judicial review is a political question. It presents arguments, for and against judicial review in such cases, which are divided into three sections – the competency issue, the legitimacy issue and the issue of arbitrariness. In the first section, there is a dispute whether deciding political questions breaches separation of powers, or rather fulfils the principle of checks and balances. In the second section is raised a question about legitimacy – does judicial review break the majority rule, or can we refer to citizens acceptance of constitutional standards. In the third section, the author think about vagueness of constitutional text and its consequences for judicial review – are judges’ considerations really arbitrary, or they are bound by a line of previous decisions and by necessity to find legal, not political answers. The author points to the fact case, which at first looks like a political question, may have potential to affect constitutional values and principles. Due to this fact, the author tries to outline a border between „political“ and „legal“ consideration, while she uses examples from existing decisions of constitutional court. The article is aimed to show that constitutional courts, in some point of view, ought to decide also political questions and for that reason is necessary to create clear rules and procedures.
9

SYSTÉM OCHRANY HOSPODÁRSKEJ SÚŤAŽE PODĽA ČLÁNKU 55 ODS. 2 ÚSTAVY SLOVENSKEJ REPUBLIKY

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Lapšanský L.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2017
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vol. 100
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issue 6
576 – 594
EN
The Section 55 paragraph 2 of the Constitution of the Slovak Republic stipulates a positive obligation of the State to protect competition. This obligation is imposed on all public authorities, i.e. both the legislator and the bodies applying legal regulations. The public authorities are obliged to provide free access to the market and equality of the rules of conduct of the competitors on the market. When assessing the fulfilment of the legislator´s obligation to ensure equality of the rules of conduct of competitors on the market, the Constitutional Court of the Slovak Republic has developed an interesting case-law on admissibility of the criteria for distinguishing among competitors. Activities without economic substance are fully excluded from the scope of application of Section 55 paragraph 2 of the Constitution. For some activities with economic substance the obligation to protect competition is limited or excluded by other public interest.
10

NEODKLADNÉ OPATRENIA V SÚDNEJ OCHRANE PROTI NEKALEJ SÚŤAŽI

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Vozár 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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2024
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vol. 107
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issue 1
3 – 23
EN
In this article, the author discusses the issue of interim measures and their applicability against unfair competition. The author points out the legal conditions for the issuance of an interim measure, the specifics of evidence in these cases and the limits of the Constitutional Court’s review of interim measures. He used the relevant case law and literature. Particular attention is paid to interim measures in trade secret cases.
11

ČO NÁS TALIANI MÔŽU NAUČIŤ O REFERENDE?

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Plško T.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2024
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vol. 107
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issue 5
518– 545
EN
The paper examines the Italian model of the so-called abrogative referendum on the total or partial repeal of laws or other normative acts with the force of law, initiated by 500 000 voters or five regional councils. Particular attention is paid to the extensive case law of the Constitutional Court in the context of the mandatory preventive examination of the admissibility of a referendum initiative.
12

NEGATIVE PREREQUISITE OF SUPERFLUITY OF ADJUDGMENT IN PROCEEDING BEFORE THE CONSTITUTIONAL TRIBUNAL (Ujemna przeslanka zbednosci orzekania w postepowaniu przed Trybunalem Konstytucyjnym)

100%
Krolikowski J.
Studia Prawnicze
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2008
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issue 4(178)
59-88
EN
Polish legislator has determined a number of conditions of admissibility of initiating of constitutional review proceeding. In proceeding before the Constitutional Tribunal there are several prerequisites for court proceeding and one substantial prerequisite. Non-fulfilment of any of the positive prerequisites or appearance of even of one of negative prerequisite causes inadmissibility of proceeding. In every case it is necessary to point out a specific prerequisite of proceeding causing its inadmissibility. Superfluity of proceeding constitutes one of negative prerequisite for court proceeding which causes discontinuance. Research of jurisprudence of the Constitutional Tribunal shows several different reasons causing superfluity of adjugment. Mainspring of superfluity is re-challenging of a provision which has already been reviewed by prior decision. If the Constitutional Tribunal find challenged regulation unconstitutional, re-adjugment of this regulation is superfluous because the main goal of constitutional review (i.e. removal of inconsistency of legal system) has already been achieved. In turn, if the Tribunal find challenged regulation constitutional and the petitioner does not indicate new argumentation, re-adjugment of this regulation is pointless due to lack of new ground for review. To sum up, if the proceeding does not serve restitution of constitutionality, it cannot be conducted due to superfluity. That situation takes place when the main goal of constitutional review has already been achieved.
13

ZÁKLADNÉ PRÁVO PODNIKAŤ, ÚSTAVNÝ PRINCÍP OCHRANY HOSPODÁRSKEJ SÚŤAŽE A VOĽNOSŤ VSTUPU NA TRH

100%
Lapšanský L.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2025
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vol. 108
|
issue 6
528 – 542
EN
Although the fundamental right to conduct business under Article 35(1) of the Constitution and the fundamental constitutional principle of protection of competition under Article 55(2) of the Constitution pursue their own purposes, the Constitutional Court has stated that free market entry is a common tool for achieving these purposes. The institution of free market entry thus becomes a catalogue of institutions enshrined in laws governing business activity, which, due to their key importance for the entry and retention of entrepreneurs in the market, acquire constitutional relevance.
14

JUDIKATURA ÚSTAVNÍHO SOUDU ČR K DOBRÝM MRAVŮM

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Šámal P.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2025
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vol. 108
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issue 5
409 – 434
EN
After explaining general approaches to good morals in legal theory and jurisprudence of the Supreme Court the journal article deals with the case law of the Constitutional Court when assessing an objection to the limitation period made in violation of good morals, assessing rent with regards to good morals, as well as other cases of applying the corrective of good morals in private law. The Constitutional Court particularly emphasizes that good morals can and should assist ordinary courts in finding a constitutionally compliant solution to a specific case under consideration. The corrective of good morals is a kind of open „gate“ through which constitutional values and principles can be „let into sub-constitutional law“ in situations where the interpretation of the law leads to unjust or otherwise problematic and disproportionate consequences from a constitutional point of view. In conclusion, the problem is solved that this case law, created mainly on the basis of Section 3, Paragraph 1 of the Civil Code of 1964, must be transformed into the new provisions of Sections 6 and 8 of the new Civil Code, also in the light of Section 2 Paragraphs 1, 3 of the new Civil Code, according to which the interpretation and application of a legal regulation must not only be in accordance with the Charter of Fundamental Rights a Freedoms and constitutional order in general, with principles on which this Civil Code is based, as well as with constant regard to the values that are protected thereby, and must not be in conflict with good morals. The article attempts to find an answer to the question of how the existing jurisprudence will be applied, taking into account the principle of honesty in legal relations or the principle that „obvious abuse of law does not enjoy legal protection“ (Section 8 of the new Civil Code).
15

PŘÍSTUP ÚSTAVNÍHO SOUDU ČR K LISTINĚ ZÁKLADNÍCH PRÁV EU – RECENTNÍ VÝVOJ

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Svobodová 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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2025
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vol. 108
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issue 3
225 – 239
EN
This year marks 15 years since the Charter of Fundamental Rights of the EU became a legally binding part of EU primary law. The EU Charter is binding on both EU institutions and Member States when they are implementing EU law. In terms of compliance with the EU Charter at the national level, the Constitutional Courts play an important role in monitoring compliance with human rights instruments by public authorities within concrete or abstract review of constitutionality. This is also the case in the Czech Republic, where the Constitutional Court of the Czech Republic is called upon to protect constitutionality under Article 83 et seq. of the Czech Constitution. Within the abstract review of constitutionality, it decides on the repeal of laws or their individual provisions if they are contrary to the constitutional order (Article 87(1)(a) of the Czech Constitution) or on the repeal of other legal regulations or their individual provisions if they are contrary to the constitutional order or the law (Article 87(1)(b) of the Czech Constitution). Within the concrete review of constitutionality, the Constitutional Court decides on constitutional complaints against final decisions and other interference of the Constitution. The approach of the Constitutional Court of the Czech Republic as the highest judicial body protecting human rights to the EU Charter is therefore particularly significant. In the past, the Constitutional Court has defined the position of the EU Charter in the Czech legal order as part of the frame of reference for constitutional review, but not part of the constitutional order. The paper focuses on the question whether the Constitutional Court has maintained its position as formulated in its earlier decisions or whether there have been certain shifts in its case-law. Attention is also paid to the consistency of the application of the EU Charter by the Czech Constitutional Court.
16
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THE POSSIBILITY OF REVIEW BY THE CONSTITUTIONAL TRIBUNAL OF THE LEGISLATURE'S DISCRETION OVER IMPLEMENTATION OF PROGRAM NORMS (Mozliwosc kontrolowania przez Trybunal Konstytucyjny swobody ustawodawcy w zakresie realizacji norm programowych)

100%
Florczak-Wator M.
Przegląd Sejmowy
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2009
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issue 4(93)
111-127
EN
The authoress deals with admissibility and possibility of review by the Constitutional Tribunal of the legislature's discretion over defining social and economic goals and selecting the means for their achievement, as well as reconciling contradictions between different goals ensuing from the program norms of the constitution. On the level of the basic law, social and economic goals are formulated mostly as program norms. Public authorities, including parliament, are obliged to undertake actions aimed at their accomplishment. The power to define social and economic goals falls within the scope of regulatory discretion of the legislature. Statutory goals, however, cannot stand in contradiction to constitutional goals. A norm of a statute which defines - directly or indirectly - a social and economic goal, may be found unconstitutional if the achievement of a goal defined by it prevent (or considerably obstructs) the accomplishment of a goal defined by the program norm of the constitution. On the basis of empirical knowledge, the Constitutional Tribunal may also review usefulness of means selected by the legislature for the implementation of goals resulting from constitutional program norms. Unconstitutionality of these norms may be declared if it is evident that they do not lead to the achievement of goals defined by the program norm. In the selection of these means, the legislature is obliged to respect other constitutional norms, principles and values as well as formal aspects of a democratic state ruled by law. In the event that the selected means impose limitations on constitutional rights and freedoms, such means may be reviewed by the Constitutional Tribunal in a broader scope, i.e. from the point of view of the principle of usefulness, necessity and proportionality in stricto sensu. It is the legislature's responsibility to reconcile the contradiction between the goals defined by two program norms, and such contradiction occurs when the means for achievement of the goal defined by one of the norms obstruct or prevent from accomplishment of the goal defined by the second norm. The Constitutional Tribunal has the power to review the way in which the legislature exercises this responsibility.
17
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NEW PHENOMENA IN THE CONSTITUTIONALITY REVIEW OF LAWS (A CONTRIBUTION TO THE DISCUSSION ON THE LEGITIMACY OF CONSTITUTIONAL COURTS) (Nowe zjawiska w kontroli konstytucyjnosci ustaw (przyczynek do dyskusji nad legitymizacja sadownictwa konstytucyjnego

100%
Garlicki L.
Przegląd Sejmowy
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2009
|
issue 4(93)
93-109
EN
The debate on the legitimacy of constitutional courts takes place more than two centuries and the positions of the supporters and opponents of constitutional protection of the constitution are widely known. That debate, however, is held in the changing political and constitutional contexts. This article deals with the question whether the evolution taking place in constitutional judiciary in the recent quarter of a century allows us to identify new trends converting the above-mentioned contexts. From this point of view, three phenomena seem to deserve more attention: - fast expansion of constitutional judiciary in the so-called new democracies in our region has provided new arguments for the need of a powerful and independent constitutional court; - the appearance of a 'weak-form' of constitutionality review in some Anglo-Saxon systems proved that it was possible to create an intermediate model that offers compromise between the traditional solutions; - development of jurisprudence of extra-national European courts has resulted in the appearance of a new form of review of laws by national courts, and thereby contributed to the departure from traditional understanding of sovereignty of parliament and inviolability of laws.
18
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PROCEDURE FOR THE CONTROL OF HIERARCHICAL CONFORMITY OF LEGAL NORMS BY THE CONSTITUTIONAL TRIBUNAL (Postepowanie przed Trybunalem Konstytucyjnym w sprawie hierarchicznej kontroli norm)

100%
Tuleja P.
Przegląd Sejmowy
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2009
|
issue 5(94)
35-51
EN
The article deals with the procedure for the control of hierarchical conformity of legal norms by the Tribunal. The starting point is the analysis of the differences between the procedures, as a result of a specific type of the subject of control. Then, the basic principles of the procedure contained in the Constitutional Tribunal Act are discussed. The analysis of these principles provides a basis for the description of a preliminary consideration, a hearing before the Tribunal and the stage of rendering a judgment. The different procedural institutions are examined for their compatibility with the subject of the proceedings, i.e. the control of norms. In this respect, the author presents critical comments indicating incompatibility of the existing solutions with the duties to be currently performed by the Constitutional Tribunal and with 'de lege ferenda' propositions. Among the latter, the most important are: drawing up a new procedure for the selection of cases, particularly the selection of constitutional complaints, application of new instruments of hearing procedure in order to facilitate gathering of information by the Tribunal, diversification of the duties of the parties to the proceedings and the use of a written procedure instead of oral hearing.
19
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THE LEGISLATOR'S RESPONSE TO THE JUDGMENTS WITH DELAYING CLAUSE, ISSUED BY THE CONSTITUTIONAL COURT'S IN 2008-2009 (Reakcja prawodawcy na wyroki Trybunalu Konstytucyjnego z klauzula odraczajaca wydane w latach 2008-2009)

100%
Esmund T.
Przegląd Sejmowy
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2011
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issue 1(102)
27-42
EN
Where the Tribunal decides that the normative act ceases to have effect after the day of the publication of the judicial decision confirming its non-conformity to the Constitution, ratified international agreement or statutes, it shall, in the judicial decision, determine the date the act shall cease to have effect (the so-called judgment with a delaying clause). The Constitutional Tribunal's judgments with a delaying clause impose on the legislator an obligation to immediately take appropriate steps to adjust the existing legal system to the constitutional standards determined by those judgments. The required modifications should be entered into force within the time limit specified in the operative part of the judgment. The author of the article provides a review of the legislative work in relation to the judgments with a delaying clause issued by the Constitutional Tribunal in the years 2008-2009. Apart from the detailed description of the results of the research, the article contains remarks and suggestions which - in the author's view - would improve the process of implementation of the judicial decisions. Legislative work concerning judicial decisions with a delaying clause is being undertaken immediately and there was no failure to respond as required by law. However, some irregularities have been noticed. Most of all, every second judgment with a delaying clause is executed after the date specified in the Tribunal's judgment. In extreme cases, the delay may exceed ten months. Despite the requirement for immediate restoration of constitutionality, in fact statutes executing judgments come into force close to the date of the specified delay. From time to time, sham actions take place resulting in the adoption of provisions similar to those already declared (in the judgment) to be unconstitutional. The system of monitoring of the progress of work on bills related to judgments with delaying clause requires improvement, and this task should be given priority at all stages of legislative process. One should also consider advisability of the adoption of legal provisions empowering the Tribunal to resolve doubts whether or not a given statute fully executes the judgment. The response of the lawmaking bodies to judgments with delaying clause sometimes does not correspond to expectations. Nevertheless, we should believe that it would have no considerable influence on the Tribunal concerning its future position about the rightness of the use of this instrument in relation to a particular case.
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LEGITIMACY OF CONSTITUTIONAL COURTS AND THE LEGISLATIVE POWER (Legitymizacja sadow konstytucyjnych wobec wladzy ustawodawczej)

100%
Gromski W.
Przegląd Sejmowy
|
2009
|
issue 4(93)
11-23
EN
The status of constitutional courts within the system of government, as well as the scope of their powers and activities have always been the subject of interest and discussion in the jurisprudence. Moreover, legitimacy of constitutional courts has become an issue of particular importance. As a consequence, a question arises as to whether there are some special reasons for us to intensify examination of the issue of constitutional courts' legitimacy. In the author's opinion, existence of such reasons can be demonstrated, and examination of them could result in some important observations concerning legitimacy of constitutional courts in their present form. The first reason for interest in legitimacy of constitutional courts is an increased questioning of its theoretical foundations. This crisis originates in the modernistic influence of the model of constitutional courts, linked to three categories of interrelated alterations, including: (1) changes in the approach to law interpretation; (2) changes in the approach to knowledge as a point of reference as concerns the review of constitutionality of law; (3) redefinition of the perception of political neutrality of judges. The next reason for interest in legitimacy of constitutional courts is growing judicial activism, especially politicization of the judges involved in decisions relating to governance, which are not unequivocally regulated by the existing legal provisions. These two above-mentioned circumstances have impact on the ways in which legitimacy of the constitutional courts is mostly ensured. The first one deprives this legitimacy of its theoretical basis. The second one points out an urgent need for democratic legitimacy of constitutional courts, perceptible in modern democratic transformations. Among the possible way to achieve it, is the concept of 'counter-democracy' which confers on the constitutional courts the role of an institution 'organizing citizens' mistrust'.
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