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Autonomy of will in private law
Schubertová, Zuzana ; Dvořák, Jan (advisor) ; Elischer, David (referee)
68 Abstract The principle of autonomy of will is a fundamental principle of private law. It is impossible to imagine the functioning of private law without it. The principle is primarily based on the principles of equality and freedom, the key principles on which the foundations of a democratic legal system and free society are built. The aim of my thesis is to define the autonomy of will, compare the principle of autonomy of will with other fundamental doctrines and principles from which it arises and/or principles which are closely related to. I believe that most of the legal relationships based on private law are founded on the principle of autonomy of will, therefore, I decided to describe some of these institutes in more detail in my dissertation as well. The thesis is divided into a general part and a specific part. In the general part I deal predominantly with the inclusion of the principle of autonomy of will into the principles of private law. This part also contains some theoretical concepts and is closely linked to constitutional law, the Bill of Fundamental Rights and Freedoms and the principles on which the Civil Code is built. I further deal with the interpretation of certain terms, then the principle of autonomy of will itself and how it is perceived by several authors. In addition to that, I...
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The impact of altered realtions upon the duration of an obligation
Raffaiová, Markéta ; Dvořák, Jan (advisor) ; Elischer, David (referee)
1. Summary The Influence of a Change of Circumstances on the Existence of an Obligation The purpose of my thesis is to present a brief outline of the problems concerning the impact of the change of circumstances on the existence of an obligation. The leading principle looking into this issue is the rebus sic stantibus principle. This principle can be considered as the opposite of the contemporary major contract rule worshipped by most of the European states and thus legal systems, the pacta sunt servanda principle. This principle, meaning the necessity of putting emphasis on the performance, is at present the fundamental principle of contract law of the Czech republic too. However, day-to-day life creates situations, in which the strict compliance with this principle can be in conradiction with justice and the contractor's expectations of the fairness of the law. The rebus sic stantibus principle is presently applied usually only to rare specific cases, the question, whether it should be allowed to terminate the contract under a essential change of the circumstances to all contracts in general, is an object of long-term discussions among many legal experts and legislators. This thesis is composed of five chapters, each of them dealing with different aspects of the essentialy changed circumstances (also...
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Community property of spouses and its settlement
Muzikář, Martin ; Dvořák, Jan (advisor) ; Elischer, David (referee)
This thesis is primarily based on analysis of practice of the courts and papers, which afford the deeper insight into the relatively short legislation. Certainly could be adopted more particular legislation of the settlement of community property of spouses, decisions on such matters but may not look like as a "juristic machine", which is limited by the particular provisions of law. A key role is played by the legal conclusion of an experienced lawyer who, after analysis of the situation, adjudge in the spirit of the flexible provisions of the law. During the work on this thesis, I therefore had to deal with the different views on the problem and with the obsolete ideas. The work responds to a relatively large number of interpretative differences with the declaration of my own opinion on the problem supported by the relevant arguments. Today we face a very anxious fact that the number of marriages since 1989 is sharply decreasing. This issue is further analyzed in the first chapter where I pointed to some stimuli, which could weaken this trend. It could be very beneficial to realize a sociological research on the factors that cause this adverse trend. In the future it will be interesting to see how these numbers will be affected by the new legislation (i. e. law No. 89/2012 Coll., Civil Code). I...
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Unjust Enrichment under English and Czech Law
Škvareková, Gabriela ; Elischer, David (advisor) ; Dvořák, Jan (referee)
1 ABSTRACT UNJUST ENRICHMENT UNDER ENGLISH AND CZECH LAW The topic of presented thesis is "Unjust Enrichment under English and Czech Law". It aims to provide a comprehensive analysis and comparison of legal rules governing unjust enrichment in English and Czech law. The thesis is systematically divided into four principal chapters which are further subdivided. The first chapter presents an introduction to unjust enrichment. It provides a brief historical overview and a description of legal nature of unjust enrichment. It also aims to bring a basic comparison of the common law system and the civil law system to which English law and Czech law belong. Unjust enrichment on the European level is analysed in the second chapter. Two chosen soft law instruments of the European private law are presented here, namely Draft Common Frame of Reference and Principles of European Law of Unjust Enrichment, which set forth non-binding rules for the functioning of unjust enrichment. The third chapter is focused on the English law of unjust enrichment. It primarily brings the analysis of the requirements of unjust enrichment under English law. These requirements, which are based on the case law of the English courts, are as follows: (1) benefit, (2) at the claimant's expense, (3) unjust factor, and (4) lack of defence....
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Acquisition of property from unlawful possessor
Hradil, Aleš ; Dvořák, Jan (advisor) ; Elischer, David (referee)
ACQUISITION OF PROPERTY FROM UNLAWFUL POSSESSOR In my diploma thesis I deal with the issue of the acquisition of property from unlawful possessor as an exception to the traditional civil law principle nemo plus iuris ad alium transferre potest quam ipse habet (also called as nemo dat rule), the principle, which lays down that no one can transfer more rights than he has himself. The topic is extremely actual since as of 1st of January 2014 the Act No. 89/2012 Coll., The Civil Code, which - in comparison to the previous legislation - provides diametric changes in the understanding and in the legislation of the property acquisition from unlawful possessor, became effective. Until the adoption of the new Civil Code, the legislation in this area was inadequate and due to dichotomy between Civil and Commercial Code it was also fragmented. The thesis is composed of an introduction, five main chapters (which are further divided into sub-chapters) and a conclusion. Each chapter deals with different aspects of acquisition of property from unlawful possessor. In the first introductory part I give my thesis some theoretical fundamentals and define basic terminology used in this paper: property, good faith. I'm also trying to analyze nemo plus iuris principle and conflict of protection of property rights with the...
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Trust under Common Law versus the institute of "Svěřenský fond" under the new Czech Civil Code
Horn, Kryštof ; Elischer, David (advisor) ; Dvořák, Jan (referee)
The purpose of this thesis is to describe the functioning of trust in the common law jurisdictions and its expansion to the civil law countries. It also focuses on the brand new Czech institute "Svěřenský fond" (trust fund) introduced by the new Czech Civil Code and aims to analyse its nature in regard to its trust context. The thesis is composed of three chapters, each of them dealing with different set of "trust" issues. Chapter One is descriptive. It deals with the history of fiduciary relationships in the Roman, medieval, Austro-Hungarian and Czechoslovak law as well as the current statutory provisions governing administration of property of others and trust funds in the Czech Republic. It also addresses a number of current ambiguities that have arisen from the recent re-codification. The Second chapter is comparative. Part One includes introductory remarks concerning comparative law issues. Part Two describes the nature and functions of trust in the common law jurisdictions and explains the trust taxonomy. Parts Three and Four provide an outline of several mixed jurisdictions as well as civil law jurisdictions and maps their approach to trusts. Chapter Three is analytical. First part examines the theoretical discrepancies in the civil law and common law notions of property along with other...
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Legal regulation of liability insurance
Velich, Roman ; Elischer, David (referee)
Legal regulation of liability insurance Abstract This thesis aims to give a comprehensive and logically structured interpretation of the subject of the regulation of liability insurance in private law of the Czech legislation, placing special emphasis on its practical application in the context of the current judicial decision-making practice. Although being one of the most popular insurance products on the Czech insurance market, liability insurance is given relatively little attention in specialized literature with the exception of the specific area of motor vehicle liability insurance. Therefore, this thesis focuses in particular on the general regulation of liability insurance stipulated in Sec. 2861 - 2867 of the Czech Civil Code. In this thesis, liability insurance is considered to be primarily an obligation relationship, with the thesis structure adjusted accordingly: one by one, it discusses the establishment, subjects, object, subject-matter and finally the termination of the legal relation. The main part of the thesis looks at the subject-matter of the liability insurance legal relation with a detailed analysis of the basic rights and obligations of its parties. A separate part of the thesis specifically covers the entitlement of the insured to sue in terms of the procedural implementation: a...
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Models of Post-Divorce Child Care in the Czech Republic and in Italy
Argalášová, Marta ; Elischer, David (advisor) ; Frinta, Ondřej (referee)
Models of Post-Divorce Child Care in the Czech Republic and in Italy Abstract The topic of the thesis is a comparative approach to the institute of post-divorce childcare in the Czech Republic and in Italy. Decision-making about family arrangements after the divorce and separation of parents is related to a choice of the right model of post-divorce childcare, which the law of different countries offers. This decision implicates, in itself, also a decision on the right of access and maintenance, therefore a decision on childcare. The introductory part of this thesis is dedicated to a historical excursus on the development of family law in both countries, which enables the reader to understand current legislation and its background. A substantial part of the thesis is dedicated to the institute of divorce itself, since it is considered the starting-point for the decision about post-divorce childcare. The differences between the concept of divorce in the Czech Republic and in Italy are crucial for the following post-separation childcare decision-making. The so-called two-phase divorce in Italy makes a great difference in the decision-making about post-divorce childcare in both countries. The main part of the thesis offers a comparison of post-divorce childcare and the introduction of single models of...
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Donation - comparative study
Hejduková, Martina ; Elischer, David (advisor) ; Dvořák, Jan (referee)
Donation is not only a transfer of property, but it is a proof of certain relationship between the donor and the donee, which results from the liberality and altruism of the donor. Therefore it is understandable that majority of donations take place in the frame of family relations, they appear almost every day and they present a highly used contractual type in all legal orders. The legal regulation of donation has been significantly extended by the new civil code (Act no. 89/2012 coll. civil code) compared to the previous regulation and therefore is more compact and detailed, it has been also extended of another reason for revocation of donation, namely for impoverishment of the donor, furthermore the donatio mortis causa, which has been forbidden by the previous civil code has returned to the current regulation. In spite of enactment of new regulation some questions remain unsolved or new questions arise which will have to be answered by the currently non-existent specialized literature and judicial decisions. The aim of the submitted diploma thesis was to evaluate, whether the current legal regulation of donation contract can stand in comparison with the other European regulations, contained it civil codes with long-standing tradition whether it exceeds them in some directions, which deficiencies...
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Maintenance duty between parents and children and ancestors and descendants
Ventová, Denisa ; Elischer, David (advisor) ; Dvořák, Jan (referee)
1 Maintenance duty between parents and children and ancestors and descendants Resumé The topic of my thesis is the maintenance obligation between parents and children and ancestors and descendants. After the introduction, I addressed the history of maintenance obligation in family law focused on the legal regulation of maintenance obligation. Act No. 265/1949 on Family Law changed the institute of the power of a father to the institute of the power of parents. Father and mother had and have until now the same rights and the same obligations in the upbringing and nutrition of children. First, the law established maintenance obligation for mothers. The said Act did not make difference between a child born to the marriage and a child born outside of marriage. This Act was progressive. The Family Act No. 94/1963 Call. related to the economic change which had an influence on the vast changes of our legal order. The said Act has been amended for several times. Since January1,2014, maintenance obligation has been regulated by the Civil Code, Act No. 89/2012 Coll. into which the family law is incorporated. The Civil Code is a general code of private law which is, in terms of content, not continuous with the previous Civil Code, No. 40/1964, however this does not apply to family law. The Civil Code takes over the...
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