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The legal nature of a trust (legal and comparative analysis)
Urban, Ondřej ; Beran, Karel (advisor) ; Ondřejek, Pavel (referee)
59 ENGLISH ABSTRACT The purpose of this thesis is an interpretation of English trust law, including historical context and comparative application of the acquired knowledge on the Czech legal institute of "svěřenský fond". A critical assessment of the legal regulations governing "svěřenský fond" is followed by theoretical consideration of its legal nature. The work, except the introduction and conclusion, is divided into four main chapters, with the first chapter dealing with the historical roots of the trust. The reader will become familiar with the Roman fideicomissum, the English legal institute called "use" and its influence on the emergence of the law of equity. She will also learn how use turned into trust and what the economic reasons for such a change were. The second part defines the English trust, describes it and clarifies the three main conditions for its creation under applicable law - the three certainties. Further, it will explain who the settlor, trustee and beneficiary are, along with their rights and obligations. It also focuses on the three main types of trusts. Express trusts, created by an act of the settlor and the resulting and constructive trusts, which are created by decision of the courts. The third chapter concerns itself with the "svěřenský fond", as stipulated by the Czech Civil...
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Human Rights, European Union and the Constitutional Discourse
Dočekalová, Tereza ; Scheu, Harald Christian (advisor) ; Ondřejek, Pavel (referee)
Human rights, European Union and Constitutional Discourse Abstract This thesis deals with human rights within the case law of the ECJ. Purpose of this thesis is to denominate and analyze situations of application of human rights in ECJ's case law, especially from the point of view of critique of rights. For such purpose the thesis is divided into six main sections. First section delimits the foundation of (i) liberal theory of human rights, which gives foundations to the contemporary mainstream human rights discourse and (ii) basic notions of ciritique of rights. The first chapter thus create conditions for understanding of arguments developed in the following sections of this thesis. The second sections briefly describes evolution of case law of the ECJ in the field of human rights protection, particularly landmark decisions of the ECJ, in which it afforded protection to human rights as general principles of the Community law. The third section follows the second section and tries to analyze the human rights case law of the ECJ from the point of view of their recognition as general principles of the Community law. This thesis reflects the self-evident nature of human rights within the Community law and argues that despite the self evident presuppositions of human rights the has been quite selective when...
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Teleological interpretation and the case law of Czech courts
Koželuha, Patrik ; Wintr, Jan (advisor) ; Ondřejek, Pavel (referee)
Univerzita Karlova v Praze Právnická fakulta Patrik Koželuha Abstract: Teleological interpretation and the case law of Czech courts The purpose of my thesis is to analyze teleological interpretation from both the theoretical and the practical point of view. Since the use of teleological interpretation by Czech courts has increased in the last two decades, the reason for my research is to present recent legal discussions related to the teleological interpretation. The thesis also examines the arguments which support or criticise such method of interpretation and compares them to contemporary judicial decisions. The thesis is composed of two main chapters; each of them explores the teleological interpretation from a different perspective. The first part is a theoretical part which summarizes acquired knowledge of legal theory concerning teleological interpretation. The second part deals with detailed analysis of selected judicial decisions. The aim of the thesis is to provide a reader with a comparison between theoretical and practical approach to the teleological interpretation. The opening subchapters of the theoretical part explicate what the statutory interpretation is. It also attempts to outline the limits of interpretation. Subsequently, the study presents and characterises the main methods of...
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Freedom of artistic work and freedom of expression within the context of the European protection of human rights
Sýkorová, Eliška ; Scheu, Harald Christian (advisor) ; Ondřejek, Pavel (referee)
The purpose of the thesis is to analyze the concept of the freedom of artistic creation and expression in the European Union law, in particular its recognition in primary law, above all in the Charter of Fundamental Rights of the European Union (Charter), and in the case law of the Court of Justice of the European Union (CJEU). Considering that interpretation of human rights and fundamental freedoms in the EU law is greatly based on constitutional traditions of EU member states and on the approach to these rights established within the Council of Europe, this thesis also deals with the conception of the freedom of artistic expression in constitutions of EU member states and in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), as interpreted by the European Court of Human Rights (ECtHR). While relevant case law of the CJEU is only fragmentary, it refers systematically to the extensive case law of the ECtHR, which provides comprehensive theory of the freedom of artistic expression in Europe and provides for studying the evolution of the conception in time. The core method of research used in this thesis is the analysis of different sources of primary and secondary EU law, national law and case law; the thesis refers namely to the case law of the CJEU and...
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A theoretical conception of liability for harm caused by the birth of a man
Smetánková, Barbora ; Beran, Karel (advisor) ; Ondřejek, Pavel (referee)
in the English language Title: A theoretical conception of liability for harm caused by the birth of a man In many legal orders a new types of legal actions have appeared (in relation to the development of new methods of diagnosing congenital diseases). In these types of legal actions the claimant seeks damages for the negligence of the doctor in performing these tests. These claims are referred to as "wrongful birth", "wrongful conception", and "wrongful abortion". The "wrongful life" claim is most commonly used in a situation where while performing prenatal screening the doctor does not diagnose the existing congenital disease and therefore fails to give the parents an essential piece of information, which might have made the parents decide to abort the fetus. The claimant in this case is the child itself, who substantiates the claim by arguing it should have never been born. The "wrongful birth" claim arises from the same situation, but the claimants are the parents of the child. They claim damages for the emotional pain and increased expences related to giving birth and raising a disabled child. In the case of the "wrongful conception" claim, the most common reason for using this action is a negligently performed sterilization procedure. The "wrongful abortion" claim can be used in a situation...
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The regulation of lobbying in the CR - recommendations based upon foreign experience
Kraus, Lukáš ; Wintr, Jan (advisor) ; Ondřejek, Pavel (referee)
Lobbying regulation in the Czech Republic - recommendations based on international experience Summary Lobbying is a natural part of contemporary globalized world, where political interests meet intensively with the economic and other private interests. In order to strengthen the principles, especially transparency and responsibility, some countries adopt lobbying regulation. The USA, Canada, Poland, Hungary, Lithuania and the EU institutions approach to lobbying in some aspects in the same way, in many other aspects they approach to it very differently. Different historical and socio-economical experience of these entities has, often substantial, influence on the differences of their regulation approach. The Czech Republic shares with many mentioned countries the experience of post- communist state, which does not have long democratic political culture and which has many problems with corruption in the public decision-making process. Lobbying regulation under Czech conditions is therefore necessary for raising transparency and responsibility of politicians. During the preparation of the future regulation, it is necessary to respect recmmendations of the international organizations and to thoroughly analyze experience of other states. The necessary parts of the future law should be especially: clear...
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The Ultra Vires Doctrine in the Legal System of the United Kingdom
Cejpová, Tereza ; Beran, Karel (advisor) ; Ondřejek, Pavel (referee)
The aim of this thesis is to provide an explanation and introduction of a specific legal doctrine; Ultra Vires. In addition, this paper will illustrate how the methodology was applied under the United Kingdom company law from the mid-19th century to 2009. Furthermore, this paper will offer a brief analysis of British law after the abolition of the Ultra Vires doctrine. Ultra Vires is a set of rules that limits the legal capacity of companies. As a result, the company's legal capacity was limited while the doctrine was applied. The scope and capacity of a company was defined by the objects clause contained in the memorandum of association. From this, it was deduced that an act done by the company outside its objects clause (an ultra vires act) was null and void. Considering that the legal capacity of companies in the Czech legal system is unlimited and that there are no research papers dedicated to companies with limited capacity in the Czech language, the aim of this thesis is to provide it. The thesis is divided into six chapters: Introduction; Introduction to the Doctrine of Ultra Vires; Formation of the Doctrine of Ultra Vires; Development of the Doctrine of Ultra Vires; Abolition of the Doctrine of Ultra Vires and a Conclusion. The Introduction is dedicated to the explanation of the legal...
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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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Legal theoretical and philosophical aspects of formal and material truth in judicial proceedings
Ondřejek, Pavel ; Gerloch, Aleš (advisor) ; Maršálek, Pavel (referee)
Ve své práci se pokusím nastínit některé aspekty problematiky zjišťování skutkového stavu, konkrétně problematiku různého pojetí formální a materiální pravdy. Téma je to podle mého názoru aktuální, neboť v současném rychle se měnícím právním řádu České republiky se snaha po urychleném návratu mezi vyspělé právní kultury mnohdy nesetkala se stejným úsilím po teoretickém zdůvodnění té či oné právní úpravy. V zásadě stejný závěr lze učinit podle mého názoru o procesu sbližování českého práva s právem Evropské Unie. Otázkami pojetí formální a materiální pravdy se ve své judikatuře zabýval několikrát i český Ústavní soud, přičemž ne všechny jeho závěry lze bez kritických připomínek přijmout. Jako příklad uvedu nález Ústavního soudu v kauze navrácení zámku Opočno, kde základem odůvodnění ÚS bylo tvrzení, že česká právní úprava občanského soudního řízení neopouští ani ve sporném řízení tzv. zásadu materiální pravdy, jejíž dodržování je předpokladem pro dosažení účelu soudního řízení, totiž zajistit spravedlivou ochranu práv a oprávněných zájmů účastníků řízení.4 Pojetí formální a materiální pravdy s sebou nese přirozeně řadu filosofických aspektů. Samotný pojem pravdy je předmětem zkoumání filosofie, konkrétně filosofické disciplíny ontologie. Problematikou poznatelnosti se zabývá teorií poznání, nazývaná též...
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Human Rights in Private Law
Ondřejek, Pavel ; Gerloch, Aleš (advisor) ; Maršálek, Pavel (referee)
121 Summary Shrnutí v anglickém jazyce The presented work challenges traditional view on human rights as rights guaranteed only against the state. In contemporary world, in which states delegate powers either on supranational structures or on private entities, it is hardly acceptable for the individual to remain unprotected against comparable interferences with his constitutional rights caused by private persons. The classical doctrines of human rights protection lead in this situation to the decrease of level of protection of individuals. Therefore certain models of application of human rights norms in private law are to be scrutinized. How public and private law intertwine in contemporary law was shown on the examples of private military contractors that accompany modern armies in wars as well as transnational corporations operating in the Third World and exploiting indigenous peoples there. Notwithstanding the aforementioned it is clear that it was primarily private law that determined various areas of the "constitutional" status of individuals before modern constitutions of states came into force. From various models of application of human rights norms in private law, the example of models of direct and indirect horizontal application as well as non-application of human rights norms was described and...
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