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Qualified Call for Statement pursuant to Section 114b of the Civil Procedure Code
Krejčí, Adam ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
Qualified Call for Statement pursuant to Section 114b of the Civil Procedure Code Abstract This thesis examines the institute of a qualified call for statement as a method of preparation of a hearing on the merits. An integral part of it is also the institute of a fiction of recognition of the claim, which occurs, inter alia, if the respondent fails to properly and in time comply with the qualified call for statement. If the aforementioned fiction is applied, the court shall decide on the matter without further delay by a judgment of recognition. The primary purpose of the qualified call for statement is to fulfil one of the fundamental principles of civil procedure, the principle of expeditious proceeding as one of the elements of the constitutionally guaranteed right to a fair trial. We refer to the qualified call for statement specifically with regard to the enhanced requirements which the respondent's response has to meet in order to properly comply with such a call. The characteristic feature of this institute is the strengthening of the principle of formal truth over material truth, since as a result of potential inactivity on the respondent's side, the proceeding is curtailed by the non-realisation of a wide range of procedural principles and the adversarial proceeding therefore ex lege and de facto...
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Relationship between Judgments for Recognition and Default Judgments
Šmahelová, Adéla ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
Relationship between Judgments for Recognition and Default Judgments Abstract The subject of this diploma thesis is the relationship between judgments for recognition and default judgments. In both cases, the judgements are special institutes typical for civil contentious proceedings, primarily aimed at speeding up the proceedings before the court. The statutory provisions seek to achieve this mainly by not requiring the court to establish the facts of the case when deciding by special judgments, as the decisions are based solely on plaintiff's factual allegations or defendant's act of disposition. Firstly, the starting point for determining the links between the two judgments is an analysis of the judgments as separate decisions. The current legal framework recognises three types of special judgments, namely a judgment for explicit recognition, a judgment for a legal fiction of recognition and a default judgment. In particular, a judgment for explicit recognition should be distinguished from a fictitious judgment for recognition and a default judgment. Whereas the first decision is based on a dispositive act made by the defendant freely expressing his will to recognise the claim, the other two judgments are based on defendant's default, either by failing to appear at the hearing or make a statement of...
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Judgment by Acknowledgement and Judgment by Default
Klein, Jakub ; Pohl, Tomáš (advisor) ; Macková, Alena (referee)
70 Abstract This diploma thesis is focused mainly on the judgment by acknowledgement and judgment by default which are institutes of the civil procedural law, which purpose is mainly to increase the efficiency of the legal proceedings. The aim of the thesis is to offer a complete overview of the current legal legislation and its practical usage. At the same time this thesis attempts to cope with problems, which the current legislation suffers with, and offers convenient conceptual solutions. This piece of work is divided into five chapters. The first chapter generally concerns the judgment by acknowledgement and clarifies the conditions in details that are essential to meet for its issuance. It concurrently distinguishes the judgment issued on the basis of actual acknowledgement by defendant and a judgment issued on the basis of legal fiction of acknowledgement of claim. The second chapter is dedicated to the institute of judgment by default. In the first subchapter the individual preconditions for the judgment by default issuing are being discussed in details, whether the formal or the material ones. This subchapter is divided according to these individual preconditions. The second subchapter deals closely with the defence of the defendant consisting in the proposal of cancellation of the judgment by...
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The Principle of Concentration in Civil Proceedings
Onderková, Kristýna ; Kubešová, Silvia (advisor) ; Frintová, Dita (referee)
The principle of concentration as one of the fundamental branch principles of civil proceedings consists in the obligation of the parties to perform certain procedural actions in specific stages of adversarial proceedings in order to speed up the proceedings and the decision of the court. Its purpose is to avoid delays in proceedings and provide effective judicial protection of subjective private rights of the parties. This principle plays an important role in Czech civil law. At the same time, some elements of the statutory concentration, which apply in the Czech legal system, are connected with certain problematic aspects. These particularly include rigidity of statutory concentration associated with the absence of the possibility of court's flexible actions and the anchor of fictitious judgment by acknowledgement as a consequence of the defendant's procedural passivity. The main goal set out by the author of this piece of work is to introduce individual elements of concentration in the Czech law, analyze their shortcomings, and propose some possible solutions through comparison with the Slovak adjustment mechanism of concentration. In the first part, the author analyzed the individual elements of concentration in the current applicable Czech legislation and put them in historical context. The author...
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Special types of judgments in civil procedure
Gulová, Andrea ; Sedláček, Miroslav (advisor) ; Frintová, Dita (referee)
Special types of judgments in civil procedure Abstract The goal of my rigorous work is to further examine the special types of judgments in civil procedure, that include judgment by default and judgment by acknowledgement, to evaluate the current legislation of these judgments and to consider possible legislation from a de lege ferenda point of view. The first part of the work shows the reader the basic features of both judgments and their differences from other judgments, as well as with both of these judgments on a generic level. The second part captures the historical development of a judgment by default and a judgment for acknowledgement from the oldest legislation to the current legislation. The main third part is devoted to the judgment by default. The first chapter and its subchapters analyze in detail the individual preconditions for issuing a judgment by default, which are the default of the defendant, service of the application, service of the summons, instruction on the consequences of default, absence of reasonable and timely apology, first hearing in the case, proposal of the plaintiff, admissibility, lack of conditions for a judgment for acknowledgement and judicial discretion. The second chapter then focuses on the excusable reasons of default and also touches on the relationship between an...
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Recognition and waiver of a procedured claim
Brůha, Tomáš ; Dvořák, Bohumil (advisor) ; Holčapek, Tomáš (referee)
Recognition and waiver of a procedural claim Abstract The thesis deals with the institutes of recognition and waiver of a procedural claim, which are a specific way of ending of court proceedings based on a dispositional act of concerned procedural party. The purpose of the institutes of recognition and waiver of a procedural claim is, in particular, to speed up the proceedings and save costs to both the state and the parties, in a situation where there is no longer a factual dispute between the parties and yet the parties have an interest in authoritative acknowledgment of such situation, unlike, for example, the institute of withdrawal of the action, which does not constitute an obstacle of rei iudicatae. The first chapter contains a general theoretical background of the thesis, definitions of basic terms and differentiation from similar institutes such as the mentioned withdrawal of the lawsuit or a court settlement. The first chapter also compares the differences between material recognition and waiver and their consequences. The following second chapter then contains a historical review of the regulation of the recognition and waiver of procedural claims institutes on our territory. The review begins with the Civilian Procedure Code from 1895, then deals with the Civic Procedure Code from 1950 and the...
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Judgment by acknowledgment on the basis of fiction
Krechlerová, Karolína ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
Judgment by acknowledgment on the basis of fiction Abstract This diploma thesis deals with the judgment by acknowledgment. It is an institute of civil procedural law. The judgment by acknowledgment can be issued on the basis of the express content of the defendant or applicatioan of the legal fiction of the acknowledgment. This paper deals with both types of judgment of acknowledgment but the main part is devoted to the fiction of acknowledgment. The thesis is divided into six chapters. Chapter One describes the history of the judgment by acknowledgment on Czech territory. Chapter Two deals with the issuance of a qualified call for expression and the requirements that are put on the expression of the defendant. Chapter Three analyzes legal conditions for issuing a judgment of acknowledgment based on both the express content of the defendant and the fiction of acknowledgement. In this chapter are also described the remedies that can be applied against it. Chapter Four is dedicated to the judgment of the Constitutional Court, which ruled on the constitutionality of the qualified call and the judgment of acknowledgment based on fiction. The majority of judges were in favor of preserving the contested provisions. In the justification and also in the statements of dissenting judges were confronted the...
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Preparation of Dispute Proceedings
Maux, Tomáš ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
The topic of this thesis is the Preparation of Dispute Proceedings. I am convinced, that particularly this part of proceedings is truly important, because everything else depends on it. If the proceedings is not perfectly prepared, subsequent proceedings is endangered with a risk of delay. Although, the preparation of the proceedings is fully in the hands of the judge, it must be taken seriously by all parties involved. After all, the proceedings may end at this stage, based on passivity of the parties, e.g. by judgment of acknowledgment. The ultimate instrument in preparation of proceedings is qualified summon, which I have paid the most attention to in terms of number of pages. However, all instruments entrusted to judge are mentioned in this thesis and evaluated in terms of their effectiveness. The thesis is divided into four chapters, introduction and conclusion not included. The first chapter focus on the key words definition and defining starting points of the work. Each of the following chapter is then devoted to one stage of the preparation of proceedings.
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Judgement by acknowledgement
Markovský, Karel ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
Judgement by acknowledgement Abstract The topic of this diploma thesis is judgement by acknowledgement, a decision on the merits commonly used in practice, which is supposed to speed up the trial and make it more efficient. The thesis deals with both the judgement by acknowledgement issued under the express consent of the defendant and the so-called fiction of acknowledgement of the claim by the defendant, on the basis of which the judgment by acknowledgement can also be issued. The aim of this thesis is not only to provide comprehensive explanation of the process that precedes the issuance of the judgement by acknowledgement, but also to describe the importance of this judgement, its historic development on the Czech territory and to compare its national legislation with the Slovak one. This paper also highlights some problematic aspects of this judgement and offers possible solutions. The thesis is divided into six chapters. Chapter One deals with the historical development of the judgement by acknowledgement on the Czech territory. In particular, it focuses on establishing a judgement for recognition in to the Czech legal system on the edge of the 19th and 20th century and its reintroduction into the civil process in 1993 - 2009, when the judgement by acknowledgement acquired a form that remained to this...
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Judgment by Acknowledgement and Judgment by Default
Klein, Jakub ; Pohl, Tomáš (advisor) ; Macková, Alena (referee)
70 Abstract This diploma thesis is focused mainly on the judgment by acknowledgement and judgment by default which are institutes of the civil procedural law, which purpose is mainly to increase the efficiency of the legal proceedings. The aim of the thesis is to offer a complete overview of the current legal legislation and its practical usage. At the same time this thesis attempts to cope with problems, which the current legislation suffers with, and offers convenient conceptual solutions. This piece of work is divided into five chapters. The first chapter generally concerns the judgment by acknowledgement and clarifies the conditions in details that are essential to meet for its issuance. It concurrently distinguishes the judgment issued on the basis of actual acknowledgement by defendant and a judgment issued on the basis of legal fiction of acknowledgement of claim. The second chapter is dedicated to the institute of judgment by default. In the first subchapter the individual preconditions for the judgment by default issuing are being discussed in details, whether the formal or the material ones. This subchapter is divided according to these individual preconditions. The second subchapter deals closely with the defence of the defendant consisting in the proposal of cancellation of the judgment by...
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