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Contractual penalty and late payment interest under the Commercial Code
Hanušová, Monika ; Eichlerová, Kateřina (referee) ; Patěk, Daniel (advisor)
Závěr Smluvní pokuta i úrok z prodlení v praxi slouží jako velmi frekventované prostředky právního zajištění závazků, ačkoliv mají různý původ svého vzniku. Nárok na úrok z prodlení vzniká přímo ze zákona, naproti tomu smluvní pokutu si strany musí výslovně písemně ujednat. Úrok z prodlení je v našem právním řádu pojímán jako příslušenství pohledávky, kdežto smluvní pokuta je vedlejším ujednáním stran hlavního závazku a těší se tak větší samostatností. Tato práce nejdříve v prvních dvou kapitolách vymezila pojem smluvní pokuty a úroků z prodlení. Část třetí poté podrobně porovnala oba tyto právní instituty a analyzovala jejich dopady v mnoha oblastech práva, nejen obchodního, ať už se jedná o promlčení, o prodlení s úhradou smluvní pokuty a úroků z prodlení, o rozdílné důsledky jejich nepřiměřené výše, o vztah k náhradě škody a k zavinění, či o odlišný režim zajištění zástavním právem nebo o procesně právní aspekty týkající se věcné příslušnosti soudů nebo placení soudního poplatku. Závěrem lze shrnout, že přes všechny uvedené rozdíly oba tyto instituty patří k významným nástrojům zvýšení právní jistoty věřitele vůči dlužníkovi v obchodních i občanskoprávních vztazích a představují ve značné míře majetkové sankce postihující jednu a tutéž skutečnost - prodlení dlužníka se splněním peněžitého závazku,...
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The relationship between the lawyer and his client under the contract of mandate
Čech, František ; Horáček, Vít (referee) ; Patěk, Daniel (advisor)
Relationship between client and attorney-at-law according to mandate contract Resume This thesis examines the legal relationship between a client and an attorney-at-law who conclude a mandate contract. Its aim is to characterize the most important rights and obligations which arise in such a relationship in accordance with valid Czech legislation, judicial decisions and disciplinary practice of the Czech Bar Association. The thesis begins with a description of the special role of attorneys-at-law in the market of legal services among other professions that are involved in provision of these services. Then it focuses on the legal nature of a commercial mandate contract, its comparison with a civil mandate contract according to Czech law, and examines whether such differences in fact have any impact on the rights and obligations in the client and attorney-at-law relationship. After a short analysis of the possible legal causes of a creation of the legal relationship between a client and an attorney-at-law and I focus on the different rights and obligations which are the content of the relationship. I start with a description of the attorney's-at-law right for remuneration and the limits of this right, where I notice the different legal views towards a success fee. Then I explain the attorney's-at-law duty to...
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An agreement to enter into a contract under the Commercial Code
Korman, Pavel ; Horáček, Tomáš (referee) ; Patěk, Daniel (advisor)
AGREEMENT ON FUTURE AGREEMENT ACCORDING TO PROVISIONS OF CZECH COMMERCIAL CODE The aim of this thesis was to describe the current statutory provisions relating to an agreement on future agreement according to the Act. No. 513/1991 Coll., the Commercial Code of the Czech Republic, as amended, to distinguish its provisions in comparison with the provisions on agreement on future agreement according to Act no. 40/1964 Coll., the Civil Code, as amended, and to point to certain areas of legislation which are not sufficiently clear and to provide suggestions for dealing with them. The method used was description with the use of available specialist literature and case law (bearing in mind case law is not a source of law in the Czech Republic per se, and form only a supportive role), and in cases where legislation and case law could not provide a sufficient answer, author gave his own opinion on the given matter with his reasoning for it. The agreement on future agreement according to provisions of Czech Commercial Code must, in order to be valid, be made in writing, contain obligation of at least one party to conclude future agreement that must be described at least generally. The obligation to conclude future agreement expires, besides general ways of expiration, also by frustration, i.e. by such a change of...
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The Board of Directors in a joint-stock company and the position of its members
Vojtková, Vendula ; Černá, Stanislava (advisor) ; Patěk, Daniel (referee)
147 Abstract Board of directors and the position of its members A joint-stock company belongs among the most important legal forms of business organizations, which, on the one hand, results from their frequency, and, on the other hand, from their share amounts in the entrepreneurial entities' incomes. The body, which acts on behalf of a joint-stock company outwards, which is responsible for the business organization management as well as for a lot of other rights and obligations, and which substantially influences the company operation and fulfillment of its shareholders' basic interests, is, according to the Czech legal regulations, a Board of Directors. In this Thesis I am trying to document, in maximum extent, a role of the Board of Directors as a joint-stock company's statutory body, to describe its rights, obligations and decisive influence on the company management and administration. Considering the importance of the Board's role as well as a historically respected separation of the company ownership from its management and administration, I have focused, in more detail, on issues described in the Anglo- American legal area as a so-called agency problem. Within the basic obligations I have, therefore, mainly dealt with the duty of loyalty, ban on competition, ban on internal trade, and duty of care....
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Rights and duties of members of a limited liability company
Humplik, Jan ; Černá, Stanislava (referee) ; Patěk, Daniel (advisor)
61 RIGHTS AND DUTIES OF MEMBERS OF A LIMITED LIABILITY COMPANY The limited liability company is the most popular form of business organizations. The popularity can be found especially in the simplicity of its foundation and in the following not too formalized management of the company (main advantages when compared with the joint stock company). The regulation of rights and duties of members in the Commercial Code is only a partial regulation in the relation towards the regulation of the whole limited liability company. Nevertheless, this regulation, and this is absolutely logical, merges with the regulation of other institutions for the most part and without the knowledge of the other parts it may not be comprehended in the correct way. And so the particular right or duty will usually tell us nothing about the particular position of the member in the company. That is why it is necessary to comprehend all rights and duties in mutual relations. In my work I concentrated on the analysis of the position of the member of a limited liability company which is mostly created by particular rights and duties. Obviously, I focused more on the most basic rights (the right to share the profit, the right to participate in managing the company) and the most basic duties (the duty to pay off the contribution to the...
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Czech and European law of corporate groups
Pudlačová, Šárka ; Patěk, Daniel (referee) ; Černá, Stanislava (advisor)
Czech and European law of groups Résumé: We are in a time of dynamic evolution. It comes to integration and globalisation. Groups of companies are usual economic phenomenon. Groups of companies are to be seen as a legitimate way of doing business. They bring the positive aspects, for example economize costs. But they bring the negative aspects too. They may present specific risk for shareholders and creditors in various ways. It is necessity to have a good regulation of groups for legal protection third subjects. My dissertation work is about groups of companies and their regulation in Czech and European rule of law. Our rule of law is influenced by European rule of law. I describe regulation of this problem in other rules of law at first. I selected French and German regulations of this problem because these regulations are more or less a model for the others. A foundation of German regulation is on wide protection of shareholders, creditors and incorporate companies after a formation of group. German regulation differentiates real groups from contractual groups and consequences which are connecting with them. French system of regulation groups is standing on Rozemblum conception. It is the conception which results from a judgement of a court. In this case a mother company can give daughter company...
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Termination of the participation of a member in a limited liability company
Kučírek, Luboš ; Štenglová, Ivanka (referee) ; Patěk, Daniel (advisor)
54 Resumé The topic of thesis is "Termination of participation in the partnership of a limited liability company." The reason why I chose this topic is my interest in the commercial companies especially limited liability company. A limited liability company is one of the newest forms of commercial companies. In spite of this fact is one of the most used companies, not only in the Czech Republic. A limited liability company ranks among the corporate enterprises, although includes personal elements. This theme is very closely linked with the practice of commercial companies. If there is participation in the partnership of a limited liability company, then there must be the basis of the termination of the participation in the relationship. The aim of the thesis is the particular termination of participation in the partnership of a limited liability company. It isn't limited to enumerate the various types of termination of participation in the partnership, but the interpretation is complemented by views of jurisprudence and legal theory. Particular reasons for termination of participation in the partnership are logically classified according to whether the disappearance of the participation of the partnership and company continues or occurs also in the winding up of companies. Chapter two focuses on the...
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The relationship between an attorney and his client under the contract of mandate
Dočekal, Petr ; Patěk, Daniel (advisor) ; Horáček, Vít (referee)
67 The relation between the attorney-at-law and his client based on the mandate contract In my dissertation I have described the relation between the attorney-at-law and his client based on the mandate contract and the legal regulations, what refers about it. This relation is established generally by signature of the contract of rendition of legal aid, but sometimes the relation between attorney-at-law and client comes into being by the decision of court or by institution of Czech bar association. At the beginning of my dissertation I explicated the notions as attorney-at-law, client, mandate contract and then in the most important chapter the content of this relation. It means discretions and duties, what have the subjects of this relation. All of these discretions and duties are defined in the Advocacy Act, in the Commercial Code and in professional regulations of the Czech bar association for example Ethics Code, Disciplinary Code or Layer's fee. I mentioned about the duty of the attorney-at-law to defend and promote of the interests of client, duty to give notice to the client, duty to behave conform the client's suggestions, duty to reticence, duty to have the adequate documentation, duty to insure against the responsibility for damage, discretion of the fee - contract fee or noncontractual fee and so...
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Unfair competition and false advertisement
Jakubíčková, Věra ; Patěk, Daniel (advisor) ; Zahradníčková, Marie (referee)
Nekalá soutěž a klamavá reklama IV Resumé Unfair competition and misleading advertising My thesis deals with the law against unfair competition with an emphasis on misleading advertising. The first chapter of the thesis is concerned with the development of the law against unfair competition. Originally, the law against unfair competition was incorporated into the Law No. 111/1927. This law contained civil, administrative and criminal provisions and therefore the whole law against unfair competition was very transparent in contrast to present legal regulation. Not only was the pre-war law transparent, but also very skillfully written and applied, so it is a great source of inspiration even for contemporary lawmakers and judges. The second chapter deals with the subjects participating in unfair competition, i.e. competitors, consumers, legal entities entitled to protect the rights of competitors or consumers, etc. The third chapter outlines the crucial term "general clause" of unfair competition, which is nowadays contained in sec. 44 par. 1 of the Commercial Code (Law No. 513/1991 with subsequent amendments - hereinafter only CC). One of the special factual constellations of unfair competition - misleading advertising - is discussed in the next chapter. As misleading advertising can be classified only such...
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Abuse of majority or minority votes in a capital company
Novotná, Jana ; Patěk, Daniel (referee) ; Černá, Stanislava (advisor)
Title: The Abuse of the Majority and the Minority of Voting Rights in the Corporation. Prague 2008. Diploma thesis. Charles University in Prague. Faculty of Law. Department of Commercial Law. Supervisor Prof. JUDr. Stanislava Černa, CSc. The duty of loyalty principle applied to all members of a business company is the subject of my thesis. Legal rules regulating this principle are included especially in the Act No. 513/1991 Coll., The Commercial Code as amended as a part of laws regulating business companies. However it is also based on general principles of Act No. 40/1964 Coll., The Civil Code as amended. This principle is applicable to all business companies. However in case of personal corporations, i.e. unlimited liability companies and limited partnership companies, the principle is not violated to a significant extent thanks to close relations between the company itself and the company members. The most significant violation of this principle is apparent in corporations, especially in joint stock companies, because the nature of such companies allows existence of minor shares. The rules included in Sec. 56a of the Commercial Code apply to all companies. According to this regulation, it is forbidden to abuse majority and minority of votes in the company. Clause 2 prohibits any activities aimed to...
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