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The obligation to instruct of the civil court
Tříska, Jiří ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
The obligation to instruct of the civil court Abstract This thesis deals with the topic of court's obligation to instruct from both theoretical and practical points of view. The theoretical part examines constitutional grounds of the obligation, as well as related civil law institutes. In the following chapters of the thesis, the author deals with the analysis of applicable legislation, it's contextualisation within relevant civil law history and its regulation within the Code of Civil Procedure. Author focuses mainly on contentious civil proceedings (adversary litigation), which represents the most complex and detailed legislation. The author makes use of specialised literature, university textbooks, legal commentaries, and specialised journals. To a considerable extent, the author deals also with the jurisprudence (case-law), especially that of the Supreme Court and the Constitutional Court. Less extensive part of the text is dedicated to the obligation to instruct during appeal procedure, non-contentious proceedings, and enforcement proceedings. The thesis also includes comparison with foreign legislation both continuously within the text, and in the final chapter of the thesis. Finally, the author also deals with considerations de lege ferenda. Key words: the obligation to instruct, civil court, the...
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Default Judgement - Status and Perspectives
Danihlík, Tomáš ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
Default Judgement - Status and Perspectives Abstract This thesis deals with the topic of default judgment and the status and perspectives of its legal regulation. A default judgment is a special type of judgment that allows the court, under certain conditions, to decide a case without taking evidence on the basis that the allegations made by the plaintiff are undisputed. This makes it an instrument which allows proceedings to be expedited. The default judgment is a classic procedural law institution with a long tradition dating back to the ancient Romans. The tradition of contumacious proceedings in Czech law was disrupted by the adoption of the Code of Civil Procedure in 1950 and the default judgment returned to Czech law only after the establishment of the independent Czech Republic, but it was built on a different basis than the rules in force in the Czech Republic until the adoption of the 1950 Code. As a result, the Czech legal system treats default judgement in a narrower way than the Austrian system, which is the source of some of the problems with which the current system of default judgments has to contend. However, the legislator did not choose to extend the possibility of issuing default judgments to situations where the defendant fails to make a statement of defence or to appear at a preparatory...
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Discharge of imprisoned persons
Silná, Silvie ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
Discharge of imprisoned persons Abstract The diploma thesis deals with the discharge of an imprisoned debtor. One of the aims of the thesis is to analyse the phenomenon of indebtedness of Czech prisoners on the basis of available data, to describe its causes and possible solutions in general. The main goal of the thesis is to acquaint the reader with the process of debtor's discharge with emphasis on the specifics and deviations that the debtor's imprisonment situation brings into his discharge. Discharge in this thesis is perceived as a tool to solve the problem of indebtedness of Czech prisoners. Within the framework of achieving the main goal, it is examined which legislative changes made the institute of discharge more available for imprisoned debtors and at the same time what obstacles, which objectively complicate or threaten the successful process of imprisoned debtors' discharge still remain. To achieve the set goals, methods of analysis and description of legal regulations, court decisions and other relevant documents are combined, supplemented by practical examples of selected insolvency proceedings and the author's work experience in the given area. The work is divided into two parts. The first part deals with the indebtedness of Czech prisoners. It analyses the available data on this phenomenon,...
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Litigations in the Czech civil lawsuits - possibilities and bounds of their implementation
Úlehlová, Simona ; Smolík, Petr (advisor) ; Vyskočilová, Silvia (referee)
Title: Litigations in the Czech Civil Lawsuits, Possibilities and Bounds of their Implementation The submitted thesis deals with the problematics of litigations in the adversary civil legal proceedings. It processes the topic from the conceptual point of view since while this is not an institute that would be completely new for the Czech adjustment of the civil legal proceedings, it was not a part of it for more than 70 years. As of now it should be used according to the substantive intent of the Code of Civil Procedure. In the beginning of the thesis, the legal basis of the researched institute is presented from several levels which in summary offers a complex overview of litigations and possibilities of their implementation into the Czech civil legal proceedings. The second part of the thesis defines those possible applications of litigations using comparative method. The chapter compares the concept of compulsory representation by the lawyer especially from the historical and international point of view. At the end the chapter also offers the Czech industry comparison meaning definition of the management where the Czech legislation anchors the compulsory representation by an advocate. The two following chapters deal with both positive and negative affects which would the implementation of...
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Reorganization and the modes of insolvency solutions
Mazzolini, Norbert ; Smolík, Petr (advisor) ; Zoulík, František (referee)
Act 182/2006 Coll., the Insolvency Act, brought many changes to the field of law of insolvency. Before all, it is the new conception of the system of unified administration, where the decisions are taken about the status of liquidation procedure, so that the most efficient method of resolving of such insolvency may be found followingly, and also new ways of insolvency resolving, namely reorganization and debt clearing. Preparation of the Act, similarly to many neighbour countries, was strongly affected by the aim at forming a set of conditions motivating debtors to try and resolve their difficult financial situation and avoid reluctance in case of economic crises by presenting legal tools enabling to keep the business running. That was supposed to bring an improvement of the situation of both the debtors and their creditors, who all play their set roles within the insolvency proceedings. The key factors were hence speed, efficiency, and the wish to balance the effects of liquidation and sanation form of insolvency resolution. This Master's degree dissertation is focused on the sanation form of insolvency procedings. The Act defines this form as a reorganization; a method replacing the quite rarely used institute of debtor-creditor clearing, and directly aims at balancing the long-observed disbalance between...
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The constitutional complaint and civil proceedings
Toman, Jaroslav ; Smolík, Petr (advisor) ; Winterová, Alena (referee)
Závěr Oblast lidských práv se neustále vyvíjí a s ní se vyvíjejí i mechanizmy, které by měly zajistit jejich dodržování. Lidská práva hrají ve společnostech vyspělých zemí tak významnou úlohu, že jejich prosazování je někdy dovedeno ad absurdum. Příkladem toho mohou být některé kauzy ve Spojených státech, o kterých se čas od času dovídáme z tisku. Pozor je třeba si dát i na zneužívání lidských práv k jiným, než právem aprobovaným účelům. Největšími problémy, se kterými se v právní praxi setkáváme, jsou případy střetu dvou či více lidských práv či svobod, kdy nelze najít jiné řešení, než že se omezí jedno subjektivní právo, aby byl učiněn volný průchod jinému. V takovém případě je na zvážení příslušného orgánu, kterému ze dvou kolidujících práv dá v daném případě přednost. Že se nejedná o úlohu nikterak snadnou, dokládají i některé případy řešené Ústavním soudem, které jsem se snažil blíže rozebrat v této práci. Institut ústavní stížnosti považuji v demokratickém právním státě za nezbytný doplňující prostředek ochrany práv dotčených orgánem veřejné moci. V posledních dvaceti letech byly učiněny radikální změny v právním řádu, soudnictví, politickém zřízení, hospodářském systému i v dalších oblastech společenského života a je velice těžké rychle se v "novém prostředí" orientovat. Soudní moc není jedinou...
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The Rights and Duties of natural Persons during Proceedings on Discharge of the Debt
Šůsová, Táňa ; Frintová, Dita (referee) ; Smolík, Petr (referee)
The rights and duties of natural persons during proceedings on discharge of the debt Abstract The main aim of the thesis is to describe the institute discharge of the debt that is defined in the Act No. 182/2006 Coll., on Bankruptcy and its solution (Insolvency Act). The thesis analyses the discharge of the debt from the perspective of the debtor, natural person. The thesis presents a status of the debtor, his rights and duties during insolvency, respectively presents the discharge debtor of his debt. The purpose of the thesis is to describe valid legal regulation, the description of the court decisions in the use of the Insolvency Act, the expert's opinions and the problems with the imperfection of the Insolvency Act, in the part of the discharge of the debt. In the first part, the thesis characterizes the history of the insolvency act and discharge of the debt in the Czech countries since 18th century. Next chapter defined some terms for the thesis important. Specifically, there is defined the term of the debtor. With regard to the discharge of the debt as one of debt-eliminating modes of solving bankruptcy of the non-businessmen's person, the thesis analyzes the term of non-businessmen's person in one of the subchapter. There are defined next terms, guarantor, co-debtor, the term of husband or wife of...
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The writ of execution and the authorization of a licensed executor
Matušincová, Eva ; Winterová, Alena (advisor) ; Smolík, Petr (referee)
The following diploma thesis is called "The writ of execution and authorization of a licensed executor". I have chosen this theme because this execution and execution procedure is a dynamically developing part of the civil law and has been changed substantially in recent years. I deal mainly with the legislation in regards to the petition for an execution order, an execution order as well as a termination of authorization of an licensed executor to carry out the execution. The aim of the thesis is to acquaint the reader with current legislation, compare current legislation with previous legislation and identify ambiguities and issues encountered in practice. The thesis is divided into five chapters. The first one is a preface and the last a conclusion. The second chapter deals with the petition for an execution order, especially requirements, defects and their remedies. Further, I pay attention to execution title and its particular types. In the end I outline the possibility of the proposed limitations on the territorial scope of an licensed executor de lege ferenda. The third chapter deals with the execution procedure and authorization of a licensed executor. I describe how the court can decide on the petition for the execution order. Separately I deal with an execution decision, its delivering,...
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