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Comparative analysis of the role of judges in international judicial bodies
Mikoláš, Alexander ; Kühn, Zdeněk (advisor) ; Wintr, Jan (referee)
Comparative analysis of the role of judges in international judicial bodies Abstract The proximate topic of this thesis are two of the most prominent international judicial bodies: The Court of Justice of the European Union, in the narrow sense of the term, and the Dispute Settlement Body of the WTO. The actual interest of the work however lies not in the history, normative underpinnings or operation of these institution per se, but rather in the general insights on judicial partiality, bias and relevant preventive mechanisms which can be gleaned from these two concrete examples. The thesis does initially provide a brief overview of the actual workings of both systems, in order to establish a factual background on which to base its subsequent theoretical analysis. The second segment of the work then predominantly focuses on two phenomena - the distribution of representation in the relevant bodies of the judicial institutions from the perspective of individual member entities of both organizations, and the related issue of partiality of judges and other judicial or quasi-judicial figures in these systems; in particular their propensity towards championing national interest of their home countries, in lieu of a disinterested due performance of their duties. The analysis initially examines the factual state of...
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The Concept of Autonomy : (conditions of modern subjectivity and historicity of the concept of law)
Janoščík, Václav ; Kühn, Zdeněk (advisor) ; Maršálek, Pavel (referee)
of the diploma thesis Janoščík Václav The Concept of Autonomy (Conditions of modern subjectivity, of the concept of law and of historicity) Submitted thesis aims at articulation of the concept of autonomy in its complexity. At first it pursues specific contexts of the notion to arrive at its structure. At first we try to explore prospective of analytical philosophy of law to situate the concept of autonomy to the heart of the idea of law. This efforts unfolds itself by an unorthodox interpretation of natural right theory of Herbert Hart's early work. Second chapter discusses the framework of the philosophy of history, that are based on the idea of an autonomous subject. Seemingly paradoxical linkage of Heidegger's fundamental ontology and Kosík's dialectics of the particular articulates the historical function of the autonomy. Next chapter connects Kosík with Cornelius Castoriadis in the perspective of social theories. Also in their normative core we can identify our notion of autonomy. Fourth chapter follows the theory of disenchantment of the world of Marcel Gauchet. We reformulate it as a realization of the ideal of autonomous subject in order to contextualize the concept historically. Last topic of the first part is the framework of the intellectual history. Here we situate Dieter Henrich and...
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The Case Law Publication
Králík, Lukáš ; Kühn, Zdeněk (advisor) ; Maršálek, Pavel (referee) ; Masopust, Zdeněk (referee)
The phenomenon of the case law and publication of the case law reports has been present in our legal culture at least since the 13th century, as well as in some other European countries. Court decisions in writing occurred through several types of documents and sources. We can trace the case law documents in the public royal records ("the plates"), the law books and the first constitutional codifications of law. There is even particular group of the law collections which we can actually name as the original case law reports. The case law reports were designed even before this period of time. Unfortunately, no such original law reports survived up to the present day. We can strongly state the sustainable tradition of typical case law collections in the Czech legal culture since the medieval times. The very first case law reports in modern sense of meaning came in late 1850`s. But the periodicals case law reports in the Czech language eventually appeared with the year of 1918 when the Czech state was restored. Creating the case law reports and its headnotes falls within the process of court decisions publication. The courts, which constitute the top of the judicial pyramid, operate with their special individual instruments on their case law publication. The official law reports have been established...
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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 Applications by a Court from the Legally-Sociological Perspective
Kučerová, Pavla ; Kühn, Zdeněk (advisor) ; Maršálek, Pavel (referee) ; Šejvl, Michal (referee)
JUDr. Pavla Kučerová Aplikace práva soudem z právně-sociologické perspektivy Résumé The thesis - The Applications by a Court from the Legally- Sociological Perspective -deals partly with an individual who applies law within the frame of justice, partly with justice as such. An individual who lives and works within such a complicated organisation as modern justice appears to be, is influenced by the organization, and so his work is influenced - thereby the application of law itself. Various judicial systems as they have been developed over the years, aim at the same targets in the rough. However, they choose different means for target achievement. The position of judges in meritocratic and career justice is also different. The differences can be seen in the way judge candidates are chosen, in what way judges are appointed and in the posibility to remove judges from their office. Two different systems have been analysed in detail - the US federal judicial system as an example of meritocratic justice and the Czech judicial system as a typical example of career justice. Regarding the USA, there is a mention of judicial elections that do not refer to the federal judicial system and seem to be a domain only in several US states. The elections are considered to be such a unique way of judge appointment so that is...
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Legal Culture of the State of Israel
Vitouš, Daniel ; Kühn, Zdeněk (advisor) ; Maršálek, Pavel (referee)
Legal Culture of the State of Israel Keywords: Israel, legal culture The present legal system of the State of Israel is unique because of its mixing of different legal sources. The legal environment is characterized by interfacing of principles arising out of common law and continental law as well as religious law. The object of this thesis is to analyze how these different legal sources are mixing in modern Israeli legal system. The main question to be answered by this analysis is whether the Israeli legal system can be qualified as the member of one from basic legal cultures of the world (i.e. common law or continental law). Eventually whether the combination of legal aspects is specific so much it is necessary to speak about absolutely unique legal culture category. The thesis analyzes the legal system of Israel in basic branches of law. It is focused on constitutional questions, the way how the state power is established and how is enforced in day-to- day experience. There is parliamentary democracy with principles similar to many European countries but there are some distinctions as well. Peculiar for Israeli political system is strong influence of religious political parties. The very specific for Israel is the construction of Basic laws replacing standard constitution. The great part of the...
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Intercultural foundations of law on the example of a comparison of ownership
Kolín, Ondřej ; Kühn, Zdeněk (advisor) ; Wintr, Jan (referee)
Ondřej Kolín Resumé: The name of this thesis could be translated as "Comparison of ownership as an example of Intercultural basis of law. " As you can see it is quite a long name and it needs clarification. During reading Leopold Pospíšil's book Antropology of law I was very surprised of how effective and sophisticated Kapauku Papuan's law of land ownership is. In my first work, that was created as a thesis at Faculty of humanities, Charles University, I compared their system of law with system of law in Czech Republic. What really interested me back then was total clarity of their land law - it has fourteen categories of land and each of them contains not only description of the land itself (i.e. jungle, field, road etc.) but also whole legal regulation concerning the land. It is truly fascinating characteristic and I was wondering whether our law, Czech law, has something similar to that. I have been difficult to compare two totally different systems of law but in the end of the day it turned out that Czech law has indeed some land categories that works similarly. It is a forest in the first place, ponds and rivers, and roads where the function is a bit compromised however. After this discovery I was wondering about the law itself. My question was:"Are there some other similarities between our law and...
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Obstacles to effectiveness of law
Baňouch, Hynek ; Gerloch, Aleš (advisor) ; Kühn, Zdeněk (referee) ; Večeřa, Miloš (referee)
217 SUMMARY H. BAŇOUCH: PŘEKÁŽKY EFEKTIVNOSTI PRÁVA. DISERTACE. PRF UK V PRAZE Summary The dissertation thesis Obstacles to effectiveness of law points out to the phenomena, processes and approaches which diminish social effectiveness of law. Effectiveness of law is presented in its legal theoretical as well as economical and sociological form. The author does not give priority to any model of effectiveness, but rather examines advantages and weak points of each model while concurrently keeping a considerable distance from economic ideologization of law. Effectiveness studies, however, should always pursue real effect of law and, plainly speaking, they strive to trace the difference between law in books and law in action. As follows from the analysis of abstract effectiveness, effectiveness of law should be seen as a whole, because focus on partial results can diminish the overall effectiveness. Cost effectiveness is not able to produce a satisfactory outcome because it leaves aside a whole group of goals which cannot be expressed by direct financial income. The reflections are made upon processes which take place in society in transition, i. e. a society which has been undergoing a profound change. The transformation of a European state in the XX and XXI century must be realized by means of law; however,...
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Reasoning in the judgements of European courts
Vilímková, Veronika ; Tomášek, Michal (advisor) ; Kühn, Zdeněk (referee)
This thesis concerns the topic of legal reasoning in the judgements of European courts. The first part of the paper presents the analysis of the theoretical aspects of legal reasoning, specifically the legal obligation for this practice, as well as an examination of the origins and arguments for the existence of this obligation. Furthermore, the way that the legal reasonings are embedded in the law of the Czech Republic, and in EU legislation, is discussed and examined in detail. The final part of the paper consists of a comparison of legal reasonings of the Czech courts and the European Court of Justice. The relevant aspects of the legal reasoning are explained with regard to the practice of two European courts: European Court of Justice and Supreme Administrative Court of the Czech Republic, respectively.
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Theory of Decision Making in Public Law and Private Law Corporations
Broulík, Jan ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
2 Jan Broulík - Theory of Decision Making in Public Law and Private Law Corporations Abstract The thesis analyses Czech legal regulations concerning decision making in bodies of corporations. For the purposes of this analysis it employs mainly the apparatus of the economic analysis of law. Its basic concepts are also outlined. The author focuses on two kinds of legal entities which are public universities and joint stock companies. The ethical-legal connections and the significance of corporate governance in the decision making domain are presented. The analysis of the legal norms shows how reasons of the economic analysis of law correspond with provisions regulating body elections, body competence allocation and the body decision making procedure. The criterion for evaluating the quality of legal norms is effectiveness, meaning an increase of social wealth. The main detected imperfections are a missing provision allowing a long distance voting for joint stock companies' general meetings, a missing tool for the cases where a shareholder breaches his loyalty duty which leads to not passing of a general meeting decision and the mandatory nature of the duty of care. Judicial decisions important for joint stock companies' decision making are presented. These decisions concern with the decision making of a sole...
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