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Preliminary ruling
Tokarský, Vít ; Winterová, Alena (advisor) ; Smolík, Petr (referee)
93 Abstract Preliminary injunction is one of the most important means of protecting the rights of the participants of civil proceedings. The proceedings on the preliminary injunction is easier and faster than the proceedings on the merits, which allows the courts to act without undue delays and to effectively secure either the legal relations of the parties or the risk of loss. The consequence of these facts, however, is a restriction on the application of certain principles of civil procedure, and therefore also of the rights of the parties, especially the defendant. The question is whether this restriction is not unreasonably high and thus whether the current legal regulations meet requirements that are placed on it. The aim of this thesis is to provide a critical look at the regulation of preliminary injunctions, especially on its possibilities and limits, regarding the doctrinal and judicial conclusions. The first part of this thesis deals with the regulation of preliminary injunctions in general. Preliminary injunctions are there defined in terms of their meaning and the purpose, then the author briefly describes the basic principles, the taxonomy and the history of the regulation. The second and the third part focus on the material and formal conditions of the preliminary injunction. In addition to...
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Preliminary ruling
Svobodová, Kristýna ; Winterová, Alena (advisor) ; Smolík, Petr (referee)
1 Resumé Preliminary Ruling In some situations, it is not possible to wait for the court judgement in the case itself. Then there is the need for providing the legal protection of these rights before the meritorious judgement, for otherwise there would be a risk that the judgement in the case itself would have no real consequence or it would be impossible to execute. For this reason the institute of precautionary measures was established. This institute is an extraordinary instrument of temporary law protection, which should be naturally followed by the proceeding in the case itself. However, a proceeding in case of precautionary measures is basically an independent proceeding, and its result does not prejudge the court judgement in the case itself. In order to fulfil the objective of a precautionary measure, its proceeding must follow certain specifications. These variations are the subject of this thesis, which tries to present various perspectives on these proceedings specifications. Those are mainly jurisdiction without hearing of the parties, different regulations in delivery, judgement reasoning, simple verification of some facts, and establishment of caution. This regulation of proceedings was many times the subject of analysis of compliance with the constitutional order, especially with the right to...
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The position of insolvency trustee and its equivalent under the laws of the Kingdom of Spain
Plívová, Kateřina ; Smolík, Petr (advisor) ; Winterová, Alena (referee)
The position of insolvency trustee and its equivalent under the laws of Kingdom of Spain The purpose of this thesis was to describe main features of Czech and Spanish legal regulation of insolvency trustee respectively insolvency administration and also to point out to some of the major differences between these two legal orders and pros and cons of concrete legal regulation. This thesis is divided into five chapters. Opening chapter reflects a concept of insolvency law and its understanding and basic characteristic in the Czech Republic and the Kingdom of Spain. Further it also describes inclusion of insolvency law into the legal system and its sources. The second chapter is dedicated to the matter of insolvency proceedings in the Kingdom of Spain. This chapter was included to this thesis for better understanding of this matter, due to the fact that it is not possible to describe the position of insolvency administration without knowledge of wider context and character of Spanish insolvency proceedings or at least it would be considerably difficult and it would exclude understanding of some of the institutes or procedures of insolvency administration. Succeeding this part there are two chapters each of which is dedicated to one of the legal orders. The third chapter deals with the Czech insolvency...
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Discharge of Debts as a form of Insolvency solution of a Debtor
Vašíčková, Veronika ; Smolík, Petr (advisor) ; Winterová, Alena (referee)
The rising availability of consumer loans causes an increase of debtors who aren't able to carry out all their monetary obligations. They get into financial problems which often end in several current executory proceedings. For debtors this situation is apparently hopeless and many of them try to solve it by using bridging loans. This leads to deepening of their personal financial crisis. The Insolvency Act No. 182/2006 Sb. which contains the regulation of the Discharge of Debts brings a solution for such debtors. Discharge of Debts as one of the ways of sanitation of debts in Czech law represents modern trends of European and American Insolvency law that joins the debtor back into the economic life. Discharge of Debts represents a possibility to solve the debtor's unbearable financial situation and to keep at least partially his living standards. For creditors it can be a way how to obtain at least part of their claims by the legal procedure. This text deals with actual Czech regulation of Discharge of Debts and compares it with foreign German regulation. In the first two chapters the basic terms and admissibility of Discharge of Debts are clarified and generally compared with Discharge of residual debts by the German law. Subsequently the author reports on single phases of insolvency proceedings...
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Civil disputes over invalidity of will and list of disinheritance
Čírtková, Monika ; Macková, Alena (advisor) ; Winterová, Alena (referee)
The theme of my thesis is Civil disputes over invalidity of will and list of disheritance. The most extensive part of my paper is devoted to testaments lawfulness proceedings. I narrated numerous practical cases of inheritance proceedings, which may be met by the notary. Not only cases which must be solved by the notary are pointed out, but also cases when the litigation has to be passed on the civil action. As a part of this chapter, I also listed some theoretical litigations and their solutions according to my very best knowledge. One of the chapters is devoted to the disinheritance deed. I focused on the necessities of this act as well as on the every reasons for the disinheritance. I listed out all four of these reasons and supported them with commentaries, explanations and practical examples. ---------------------------------- --- I see the main contribution of this paper in a fact that I familiarised myself with various civil proceedings regarding the validity of the testament and disinheritance deed. I learned how to deal with such cases.
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Position on insolvency administrator under insolvency law
Vacková, Kateřina ; Smolík, Petr (advisor) ; Winterová, Alena (referee)
The abstract Position on insolvency administrator under insolvency law This thesis describes the insolvency proceedings in view of the insolvency administrator. It deals not only with the position of the insolvency administrator in already running insolvency proceedings but also the prerequisites that must be met in order to become an insolvency administrator at all. It is processed with regard to the importance of the amendments to the act of the year 2013. Due to the financial crisis and growing indebtedness of population it is a very actual subject, which applies to almost all of us. The thesis is divided into six main chapters. The first is devoted to the person of the insolvency administrator with detailed terms and conditions for the emergence of the processed function relating in particular to integrity and tests and to the types of terminativ of their activities. The second chapter discusses the performance of the function with an emphasis to the appointment, amendment, withdrawal, exclusion and exemption from the function. The various types of insolvency administrators are discussed in chapter three. The largest chapter is the fourth one. This chapter discusses the General rights and obligationsc at first, which are common for all the types of resolving insolvency and it is followed by the second...
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Postavení zajištěných věřitelů
Škadra, Petr ; Smolík, Petr (advisor) ; Winterová, Alena (referee)
The theme of my graduation thesis is position of secured creditors. The purpose of my thesis is description of rights and duties of secured creditors. Emphasis is placed on creditors secured by the lien to real estate. The thesis is focused on realization of the lien and position of secured creditors in legal proceedings concerning realization of the lien. In first chapter thesis deals with concept of security and its purpose, in particular the lien. Description of distinction between security and reinforcement of the debt is included. It also deals with function of the lien - security function and realization function. Realization of the lien is achieved in legal proceeding by public auction, execution of decision by court or licensed executor. Thesis describe position of secured creditors in these legal proceedings and in the process of sale of the pledge. Thesis also examines execution of decision by court lien relating real estate and licensed executor lien relating real estate, its purpose and procedure of creation. Last chapter is focused on position of secured creditors in insolvency proceeding. Included is description of relation between execution proceeding and insolvency proceeding. This is followed by distinction between secured creditors according to substantive law and secured...
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Incidental disputes in enforcement proceedings
Doubravová, Barbora ; Winterová, Alena (advisor) ; Smolík, Petr (referee)
The thesis deals with current legal regulation of incidence contentions, which can occur in the enforcement proceedings. The thesis consists of 3 chapters. The introductory chapter of the thesis deals with the introduction of the basic terminology, historic background, attributes of civil procedure and differences betweenen forcement proceedings and exekutory proceedings. It is essential to bear in mind that for a very purpose of this thesis a term "enforcement proceedings" refers to the civil execution on the one hand, and the enforcement procedure on the other. Among others, folowing disputes have been tackled: disputes about enforcement, exclusive contentions and last, but not least Third-Party Debtor disputes. Disputes which emerge from both types of civil enforcement proceedings are currently not regulated in the Execution Law and must therefore be governed by the rule of Civil Procedure. Principal diferences among certain types of disputes consist in particular in the phase of proceedings in which each dispute shall be addressed. While disputes about enforcement shall be settled in the phase of enforcement proceedings, the others shall then be transfered back in to the phase of adversarial proceedings. Second chapter deals with disputes about enforcement and its characteristics. Third chapter...
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The minor in civil procedure
Sladká Hyklová, Jana ; Macková, Alena (advisor) ; Winterová, Alena (referee) ; Uhlíř, David (referee)
The Minor in the Civil Procedure JUDr. Jana Sladká Hyklová Abstract The thesis deals with the topic of the minor in civil procedure. This topic has not been yet properly compiled in Czech legal literature although the issues of participation of minors within civil proceedings are still actual and their importance is increasing. The basic legal source covering the chosen topic is Act No. 99/1963 Coll., Civil Procedure Code, which had to be amended more than 120 times. Procedural law in family law matters, which form substantial part of the content of this thesis topic, is firmly connected with substantive law. Substantive legislation is nowadays represented by Civil Code and Family Law, which are supposed to be replaced on 1 January 2014 with new code of civil law, Civil Code (Act No. 89/2012 Coll.). This is the reason why the thesis pays attention to the existing legislation as well as to novelties brought by the new code. Where needed, an analysis of new legislation in terms of proper procedural protection of the rights of minors is provided. New legislation of civil law brings the question of preparation of appropriate procedural code. On spring 2012 the draft of law of non contentious procedure which includes main principles and outline of this brand new procedural regulation was published. Where...
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Concentration in civil proceedings
Kubešová, Silvia ; Winterová, Alena (advisor) ; Zoulík, František (referee) ; Slavíček, Pavel (referee)
1 Abstract The dissertation focused its attention on the principle of the concentration and its application in civil proceedings. The principle of the concentration and its issues represented after the amendment of Civil Procedure Code No. 99/1963 realized by Act No. 30/2000 Sb. and the by Act No. 7/2009 Sb. are highly actual topic in the civil practice and in the theory of civil procedure. The dissertation attempts to explain the positives and the negatives of the principle of the concentration in civil proceedings, seeks and finds its adequate place in the civil procedural law in order to achieve an effective and quick protection of endangered or infringed subjective private rights. The theoretical basis of the dissertation consists of definition of the essence of the principle of the concentration, its object and mainly its purpose along in the system of the principles regulating civil proceedings at all. The modern civil proceedings should be based on the principle of the concentration in order to ensure the effective protection of endangered or infringed subjective private rights provided by the courts. The individual elements and phases of applying the principle of the concentration in civil proceedings should be appropriately chosen in civil proceedings. The individual elements of the principle of...
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