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Does the change of the substantive provisions of the democratic, law-abinding State is impermissible?
Preuss, Ondřej ; Gerloch, Aleš (advisor) ; Pavlíček, Václav (referee) ; Bröstl, Alexander (referee)
Thesis "Does the change of the substantive requisites of the democratic, law-abiding State is really impermissible or unimaginable?" aims to answer the question if it is not really acceptable to change or modify the substantive requisites of the democratic, law-abiding State or their understanding. The main outcome of the work should be practical reflection of these issues. Paper is divided into seven parts. The first part defines the democratic, law-abiding (rule of law) State, Second part deals with the threats to the democratic, law-abiding (rule of law) State - these are the people (populous), elite and international community. Next part deals with the opposite - the system of protection. Fourth part presents comparison of approaches to the question of constitutional amendments and its limitations on examples of several states. Parts five and six are based on the approach of the Czech Constitutional Court to the change or modification of the substantive provisions of the democratic, law- abiding State and their understanding, from both, national and international perspective. The last section is based on past previous sections and tries to answer a title question in a practical and abstract ways; therefore this part is the highlight of the work.
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Legal systems of the contemporary world focusing on confrontation of Continental and Anglo-American legal system
Lukešová, Václava ; Gerloch, Aleš (advisor) ; Tryzna, Jan (referee)
134 Summary The aim of this rigorous work is to provide a basic summary of three of the world's legal systems and some ethnic laws, which have an important influence on the legal order of many states. Further, I have focused on the comparison of the two main legal systems, Continental and Anglo-American. In order to describe characteristic features of legal systems or ethnic laws, I have used, as the most important distinguishing criterion aspect of sources of law, which have a very significant value regarding the origin, character, creation of laws and approach to them. Comparative law, as a specialization in legal science, using as a main method of research, the comparative method plays an important role in this process. For this reason, I've devoted to it an independent Chapter in this work. In the third as far as the eighth Chapter, which are the kernel of the whole rigorous work, I've outlined basic characteristic, geographical differentiation, historical development and legal sources of all three world legal systems and chosen ethnic laws. The work is finished by a conclusion summarizing all findings of the previous Chapters. ¨ Key words: comparative jurisprudence, legal system, sources of law
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Constitutional limits of the statutory regulation of the provision of health care
Soukup, Ondřej ; Gerloch, Aleš (advisor) ; Suchánek, Radovan (referee)
and key words ! Thesis: Constitutional limits of statutory regulation of the provision of health care ! Abstract ! The main goal of this thesis is to characterize and analyse the legal regulation concerning the provision and payment of health care under Czech law. This analysis is based mainly on the Charter of Fundamental Rights and Basic Freedoms as the foundation for the constitutional perspective. The thesis therefore begins with the constitutional limits of the provision and payment of health care. The right to health care is provided by Article 31 of the Charter of Fundamental Rights and Basic Freedoms, which is the basis for its constitutional provision. As the Charter is a complex document, Article 31 must therefore not be seen as isolated, which is why other Articles are taken under consideration. This provides a complex view of the right to health care in the Czech constitution. The thesis then focuses on the characterization of statutes and executive regulations, which provide the basic right to health care. This part of the thesis is focused mainly on the Public Health Insurance Act, as the most important statue in this area and also on executive regulations based on the Act, which imminently regulate the right to health care. Both of these parts of the thesis serve as a precise...
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Connoisseurship
Křístek, Lukáš ; Gerloch, Aleš (advisor) ; Musil, Jan (referee)
Connoisseurship I conceived my rigorous work as a summary of theoretical information about the connoisseurship in the Czech Republic. I began with the historical development of the connoisseurship in the Czech Republic and found out that the Ministry wants to repeat certain historical errors. I assume that there will be experts among the future readers of this work and, therefore, I also analyze the system of law and the role of experts in procedural law to facilitate understanding of the expert's position in the legal system. Then, I continue with the theoretical concepts of the expert activities, which occurred in the doctrine during the period from the Inquisition processes to the present, including examples of judicial decisions that favor different theoretical concepts. Due to the fact that an expert opinion is considered as evidence, I also deal with evidence from the legal and logical point of view, from which I deduce strategies at the expert opinion's assignment. A substantial part of my work is focused on an expert in person, including his rights, duties, responsibilities and protection. I focus on the expert's appointment and dismissal or another way of termination of expert activities as results from Act No. 444/2011 Coll. I highlight the differences between the expert and other persons...
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European Federations and European Union
Uhlova, Diana ; Gerloch, Aleš (advisor) ; Večeřa, Miloš (referee) ; Hofmannová, Helena (referee)
This submitted dissertation thesis provides a constitutional comparative analysis of the European Union and the European federations, primarily the Federal Republic of Germany, Swiss Confederation, Republic of Austria and also basic features of the United States of America. I will attempt to determine whether EU is already a federation, or how much closer it has shifted to a federative type political arrangement. In this dissertation thesis I will try to methodically analyze, which characteristics of a federal state the European Union already meets and if we can put the EU under the category of federations, confederations or international organizations. To achieve better understanding of the context of this dissertation thesis, a comparative analysis of the European Federations is studied from historical, sociological and political science perspective. However the main emphasis here is focused on the analysis of the constitutional and legal arrangements. The first part of this thesis starts from the scrutiny of the origin and development of the theory of federalism in historical perspective, followed by determining the concept of federalism and federation in constitutional terms. Subsequently provided here are definitions of various types of federations and the reasons for their creation and...
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Protection of personality in scope of legal philosophy and applicable law
Němec, Ronald ; Gerloch, Aleš (advisor) ; Harvánek, Jaromír (referee) ; Beran, Karel (referee)
PROTECTION OF PERSONALITY IN SCOPE OF LEGAL PHILOSOPHY AND APPLICABLE LAW 1. Summary We can see law from two main perspectives. Law is either complex of written regulations, which are prepared by human beings based on some interests or it is a complex of rules, which altough are written, but its nature are originating from higher normative system. First is a present perspective. Current law science is prefering valid law as complex of regulations published in statute book. What is not banned by law, is allowed. Though this law philosophy is leading to instability in society. Every year legislator is making hundreds of amendements and create new laws to cover new circumstances which appear in the society. Despite legislator effort is society further unsatisfied with legal state. Society claims that law is enforceable for those who are able to hire big law firms, which can find neccesary grey areas. Immanuel Kant among the first draw a problem between legality and legitimacy. But it is not only matter of legislator whether he acts legitimately or legally, but as well as of receiver of law norm. Is every legal act of the recepient of the legal order of the Czech Republic legal as legitimate? Legal yes, if in conformity with legal order. But is it even legitimate? And is it moral? For juspositivism is...
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The change of the substantive attributes of the democratic, law-abiding State in the case law of the Czech Constitutional Court
Preuss, Ondřej ; Gerloch, Aleš (advisor) ; Gronský, Ján (referee) ; Bartoň, Michal (referee)
Paper: The change of the substantive attributes of the democratic, law-abiding State in the case law of the Czech Constitutional Court Author: Ondřej Preuss Abstract: The paper "The change of the substantive attributes of the democratic, law-abiding State in the case law of the Czech Constitutional Court" aims to present the approach of the Czech Constitutional Court to the change or modication of the substantive requisites of the democratic, law-abiding State and their understanding. The papaer is concluded that the examined approach of the Czech Constitutional Court is obviously possible, however pro futuro it would seem more appropriate to proceed cautiously and with considerable self-restraint. Otherwise the values protected by the Constitutional Court could be in stake because of the activist approach of the Constitutional Court itself.
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The Principle of Proportionality and Its Application in the Field of Human Rights Norms
Ondřejek, Pavel ; Gerloch, Aleš (advisor) ; Holländer, Pavol (referee) ; Bröstl, Alexander (referee)
1 Abstract (in English langugage) In the presented dissertation thesis I tried to argue that if we want to apply the principle of proportionality correctly in case of a collision of fundamental rights or in case of a collision between a fundamental right and a countervailing interest, it is not sufficient only to refer to this principle within the argumentation. On the contrary, it is necessary to recognize a structure of this principle and to apply its components. In order to recognize the structure and components of the proportionality principle, it is necessary to understand the role and effects of human rights in legal orders. I assume that theoretical backgrounds of this principle contribute to the better understanding of the objective tension between the individual's autonomy and general will of the society. Another important aspect in the correct application of this principle is the institutional balance between the legislature and the judiciary and overcoming of the "counter-majoritarian problem". In the contemporary, not only Czech, but also foreign practice we may observe lots of examples in which courts do not pay appropriate attention to the proportionality principle. When solving hard cases, sometimes they made only a reference to this principle without further elaboration. From the...
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The principle of primacy of EU law in the theory and practice of the courts of the European Union Member States
Ondřejková, Jana ; Gerloch, Aleš (advisor) ; Kühn, Zdeněk (referee) ; Masopust, Zdeněk (referee)
The submitted dissertation thesis analyses the principle of primacy of EU law from the basic point of view of legal theory. It points out different approaches to the primacy principle and examines the arguments on which these approaches are based. The fist part of the thesis deals with the examination of the primacy principle related to its legal basis, using the sources most frequently listed in the literature: the founding treaties, the case law of the Court of Justice, legal theory (Kelsen's basic norm, Hart's rule of recognition and the legal sociology approaches), and international and national law. I have focused on the historical documents (Treaty Establishing the European Coal and Steel Community, Treaty Establishing the European Economic Community), the concepts based on them (doctrine of the conferred powers and the principle of subsidiarity), and the non-ratified Treaty Establishing a Constitution for Europe and legally non-binding Declaration No. 17 attached to the Lisbon Treaty. I have applied a critical approach to the argumentation of the Court of Justice in the decisions establishing the principle of primacy: Van Gend en Loos, Costa, Internationale Handelsgesellschaft, Simmenthal. Taking into account the existing objections against the arguments used by the Court of Justice, I have...
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The importance of linguistic interpretation of law
Čížkovská, Anna Marie ; Gerloch, Aleš (advisor) ; Tryzna, Jan (referee)
This thesis describes linguistic interpretation in the context of interpretation of law, that is defined either as discipline of law, either as social discipline. In linguistic interpretation plays basic role linguistic interpretation. In the chapter that follows the chapter with description of the linguistic interpretation and its specifics in interpretation of law, the author puts linguistic interpretation among the other methods of interpretation. Although she admits the opinion of The Constitutional Court of the Czech Republic, that linguistic interpretation is only the first approach to the text, she looks for argumentation that disproves this opinion. She finds one of possible arguments, when she relativizes enumeration of linguistics disciplines, because of pragmatics. Pragmatics as a linguistic discipline is not in this enumeration. The author says, that the reason is, that pragmatics would change meaning and understanding of the linguistic interpretation, bescause of presence of context as a common factor in pragmatics and in the teleological interpretation. The fourth chapter describes legal language as an object of the linguistic interpretation and also as an instrument of lawmakers. Author finds a reason for necessity of the linguistic interpretation in the fact, that lawmakers don't...
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