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Legal and theoretical analysis of the limitation of legal capacity by court
Lukáč, Roman ; Beran, Karel (advisor) ; Kühn, Zdeněk (referee)
1 Summary The thesis is focused on a specific area of the private law and concerns with questions of legal capacity of natural persons, specifically with the legal conception of acquiring and restricting legal capacity. The main attention is dedicated to task of civil courts in cases of reduction capacity. The first chapter deals with the basic legal terms crucial for this issue - person, legal personality and legal capacity and their mutual relations. On the grounds of interpretation of article 5 of the Charter of Fundamental Rights and Freedoms, we can say, that in our legal order everyone is a person in legal meaning of the word. It means that everyone has a legal personality as an attribute of person and cannot be deprived of it. Legal personality means to be capable of having legal rights and duties and it is a prerequisite to legal capacity, which determines the ability of person to amend (enter into, transfer, etc.) her rights and duties. The thesis shows that on the constitutional level the legal personality and the capacity are two sides of the same coin, while for the private law the separation of these two attributes is typical. The reason for it is based on fact, that while the legal personality arises purely from the nature of a person, the capacity depends on a physical maturity. This is also...
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The economic analysis of law in case-law
Hubková, Pavlína ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
OF THE DIPLOMA THESIS The Economic Analysis of Law in Case-Law Pavlína Hubková According Richard Posner, "economics is a powerful tool for analyzing a vast range of legal questions but most lawyers have difficulty connecting economic principles to concrete legal problems." This diploma thesis focuses on the clash between law and economics and on those difficulties lawyers may have when applying economic analysis of law. It tries to identify borders between two fields of study and problems or obstacles which are faced by judges. In concrete, the thesis deals with the economic analysis of law in the domain of competition law. The thesis is divided into a theoretical part and an empirical part. The theoretical part includes four chapters. The first chapter characterizes the economic analysis of law in general, it provides with a short history of this approach to law, opinions of its proponents as well as critics and a summary of utility of economics in law. The second chapter then refers specifically to the role of economic analysis in judicial decision-making. Competition law as an "explicitly economic field" is presented in the third chapter. The core of the thesis is to be found in the next chapter which focuses on the problems and obstacles which judges have to face and potentially overcome when...
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Formalism in Law
Brezina, Peter ; Kühn, Zdeněk (advisor) ; Maršálek, Pavel (referee) ; Škop, Martin (referee)
The theme of this thesis is "formalism in law" as a concept that permeates an essential part of modern legal thinking. This work shows that it is usually perceived as a critical concept, but without a clear and steady meaning. In recent times, however, the discussion involving this concept changed so that it now includes individuals positively acknowledging themselves as formalists. An overview of this debate (only marginally concerning the Czech environment yet, however) forms the bulk of the thesis. The second essential part of it is a separate rethinking of the place of formalism in law, in all its aspects - in interpretation and application of law, in the creation of law, even in legal education and legal scholarship. This thesis consists of three unequal parts, the first of which is further divided into three sections. The first part deals with the formalism as a topic of discussion in legal philosophy during the entire 20th century, and the intention is to present this debate to Czech readers. Its first section is devoted to a topic typically linked to criticism of formalism in law in Western legal scholarship, as it presents the American legal realism of the interwar period. It shows it as a strong and visible culmination of earlier critical efforts visible on both sides of the Atlantic...
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New approaches to legal reasoning as used in case-law
Peterka, Bohumil ; Kühn, Zdeněk (advisor) ; Wintr, Jan (referee)
New Approaches to Legal Reasoning as Used in Case-Law - Summary The phenomenon of legal interpretation and argumentation theory has become increasingly popular in the Czech Republic. The thesis first aims to summarize theories (or methodologies) of three Anglo-Saxon scholars, Neil MacCormick, Ronald Dworkin and William N. Eskridge. In the thesis, three respective theoretic chapters are dedicated to theories of legal interpretation as presented by each of them. After exploring philosophic backgrounds of the theories briefly, main focus was put on sets of different interpretation methods and interpretive arguments these scholars find most relevant. Subsequently, I tried to analyse the arguments and to examine role different legal arguments play in the process of interpretation as described in works of the three scholars. Each theory is eventually explicated on a convenient law case mentioned in one of its author's books. The second aim of the thesis is to apply the theories as summarised in the theoretical part on Czech law cases to find out whether the theories are successfully applicable considering differences of Czech (continental) legal system and common-law-based legal orders as well as whether such application might prove helpful to a Czech law interpret. For that reason several important Czech "hard"...
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Methodology of legal interpretation in the case law of the Constitutional Court of the CR
Kadlec, Ondřej ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
1 This paper consists of two different parts. The first part is theoretical and descriptive and its three chapters are organized deductively. The second part analyses a methodology of interpretation of the Constitutional court of the Czech Republic. The first chapter concerns with important legal concepts such as law certainty, predictability of courts' decisions, justice and equality. It concludes that a methodology of interpretation plays a crucial role in all of these concepts. Next chapter examines such terms as application of law, interpretation of law, law argumentation and methodology of interpretation. The last chapter of the descriptive part presents two judicial strategies to interpretation. Judges in the first strategy use only internal law arguments (mainly text of the statutes) as opposite to the second strategy where judges do not rely on the text at all, but interpret the law with external law arguments (such as intent, unexpressed law principle, economical argument etc.). This chapter also briefly describes the most common methods of legal interpretation for every judicial strategy. Eventually this part tries to provide modern strategy which combines methods used by both strategies and is based on rational, full and open explanation of court decisions. Afterwards the paper shifts the focus...
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Further education of lawyers in specialist professions
Čech, Jaroslav ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
Further education of lawyers in specialist professions Education isn't finished when we obtain a diploma at high school or university but continues and follows us all, and our professional life. I chose this diploma thesis topic in time when I was working with education specialists on an online learning platform first as a tester and later as part of the team. That platform was developed for needs of further education of teachers. I realized I have not heard much about education of lawyers and tried to examine that topic more. I have first looked at the educational process of Czech lawyers particularly into professions of attorneys, notaries and judges. First analysis was aimed at the primary learning program for young lawyers - trainees. I wanted to see the methods of every profession separately to have a good idea of the concepts in use. After that I have examined the continuing education of lawyers who already passed their bar exams (or other relevant exam). After getting an image of the professional learning programs I started to explore foreign approaches to this topic. Choice for attorneys comparison was Germany and Netherlands and for judges France and Netherlands. In the thesis I was comparing primarily introductory courses for attorneys and judges as all institutions responsible for...
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Linguistic and literary qualities of case briefs
Tranová, Hong Chi ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
The aim of this thesis is to improve the formal aspects of the Czech case briefs. The formal aspect represents the language, syntax and overall style of writing of case briefs written by lawyers. In the Czech Republic, the legal aspect is neglected. There is no professional literature dealing with this issue. The consequence of such an approach are then very confusing, stylistically poor-quality texts. Since I could not use any legal books when writing my thesis, I had to draw inspiration from other disciplines (linguistic, journalism, psychology and creative writing). I had to then apply this knowledge to the specific environment of legal writing in my thesis, namely on the case briefs. Fortunately, this legal issue is well mapped in the USA, so I also draw my inspiration from the American professional literature dealing with this issue. The thesis is divided into four chapters. In the first chapter, I focused on what do the typical Czech case briefs look like, what are their formal shortcomings and how to correct them. In the second chapter, I tried to figure out the factors that influence the style of the Czech case briefs. The third chapter is inspired by the American briefs. Of course not everything can be applied to the Czech environment. The reason for that is the difference in the legal...
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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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