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Variations and changes under FIDIC contractual conditions
Kalenský, Tomáš ; Klee, Lukáš (advisor) ; Horáček, Tomáš (referee)
The main aim of this thesis is to analyze variations and adjustments under FIDIC contractual conditions, especially in relation to the private law limits of the Czech legal order. The goal of this analysis is to answer the question whether variations as a special contractual institute are permissible and validly applicable in the framework of construction projects realized in the Czech Republic. The thesis is clearly divided into five main chapters, which are systematically structured from the general introduction to basic issues through the main analysis of variations and adjustments to specific examples of their use in practice. The first and the second chapters briefly present the FIDIC organization and its issued sample contractual conditions, with a brief discussion of most of the sample books. The contractual conditions are also set in the context of Czech law, where emphasis is placed on distinguishing the business terms from FIDIC contractual conditions. In this chapter, the examples of use of the individual sample books in the Czech Republic are also mentioned. In the third chapter, the institute of variations and adjustments according to individual sample books is analyzed in detail. With the exception of the general description of the variation process, the thesis is focused on a...
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Modification of a Public Contract
Chlupáč, Martin ; Horáček, Vít (advisor) ; Horáček, Tomáš (referee)
Modification of a Public Contract This thesis deals with the regulation of modifications made to public contracts during their term. Its aim is to critically analyse the legal regime for modifying public contracts in light of the law of the European Union (especially Directive 2014/24/EU on public procurement) and of the Czech Republic (The Public Procurement Act No. 134/2016 Coll.). The thesis consists of three chapters. The first chapter focuses on the development of the regulation on public contract modifications from the view of both the EU and Czech prospective, and emphasizes the importance of the so called Pressetext judgment issued by the Court of Justice of the European Union. The second chapter represents the most important part of the thesis, inasmuch as it critically analyses the applicable law. It is divided into two parts. The first one contains an analysis of substantial modifications to public contracts in light of the related case law. In the second part of this chapter, I try to pinpoint interpretation problems that are connected with the new provisions which define situations, in which the modification is to be regarded as non-substantial, and therefore does not trigger the need to commence a new public procurement procedure. The third chapter provides an outlook on how two other...
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Leniency Program in Czech, European and World Competition Law
Metelka, Jan ; Horáček, Vít (advisor) ; Horáček, Tomáš (referee)
This thesis aims to describe the evolution of the leniency program as the key tool to uncover national and International cartels. It begins with a general overview of competition law and the area of cartel Cooperation and focuses on leniency program. This program is for the sake of completeness described not just from the legal point of view but also using theory of games and prisoner's dilemma because both these phenomenon are surprisingly similar to the leniency program. For the first time there is the issue of a deterrence gap, being some kind of indicator of incentives for the cartel members to betray such cartel and uncover its existence to the authorities. Cartels are also described using tables so it is clear how much (uncovered) cartels are there each year, what is the average amount of imposed fines and how many percent of turnover of such companies usually makes the fine. Leniency programs of various states are described in detail, focusing on differences in their complexity and efficiency and some of them are described back to the past, with the Description of the evolution of such leniency program, making it more useful. Special Attention is paid to the Leniency program of the Czech Republic, but also other European jurisdictions are being described because although these states are also EU...
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A governing body acting beyond its powers
Koráb, Jan ; Horáček, Tomáš (advisor) ; Eichlerová, Kateřina (referee)
Name: A governing body acting beyond its powers Recodification of civil law has changed the way in which business corporations have been acting. Governing body members are currently representing trade corporations as its representatives. This shift, which is that governing body members became the representatives of business corporations opened the possibility of discussion about the nature of authorization of governing body to act on behalf of the trade corporation and about the possibility of acting beyond its powers. My thesis was called "A governing body acting beyond its powers". I used as a base for this work the wide authorization that governing body possesses in acting on behalf of the trade corporation and its possible limitations by law. Work has been divided into following main chapters. In the chapter dedicated to the basic terms I wrote about the definiton of governing body, the legal capacity of a legal person and character of governing body acting on behalf of the trade corporation, which is according to me sui generis. Another chapter was devoted to the possibility of acting beyond its powers. Inner division of this chapter is based whether the consequences of acting beyond its powers applies only inside or outside as well. The chapter about the proper form of acts on behalf of trade...
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The most frequent misconducts of contracting authorities in procurement process including case law
Tomková, Miroslava ; Horáček, Vít (advisor) ; Horáček, Tomáš (referee)
This thesis deals with the most frequent misconducts of contracting authorities in procurement process and also includes relating case law. However public procurement belongs to commercial law, its specific legislation makes it "sui generis". It means that public procurement in the Czech Republic is to a certain extent independent. Public procurement is also very emerging field of law. Since 1995, when the first comprehensive legislation came into force, contracting authorities had to become acquainted with 4 different legislations governing public procurement. It is already known, that in 2016 a new legislation governing public procurement will come into force. Familiarization with each legislation can be, especially for less technically proficient contracting authorities, severe and leading to misconducts in procurement process. The purpose of my thesis is to analyse the most frequent misconducts of contracting authorities in procurement process and introduce the procedure which should be govern by contracting authorities so they would proceed in accordance with the law. The reason for my research is to bring answers for complicated, but also elementary problems that contracting authorities have to deal with in procurement process. The thesis is composed of twelve chapters, each of dealing with...
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Proving qualification requirements in public tenders
Křížová, Iveta ; Horáček, Vít (advisor) ; Horáček, Tomáš (referee)
"Proving qualification requirements in public tenders" This rigorous thesis deals with the regulation of public procurement law with an emphasis on skills. In the Czech Republic is newly effective law No. 134/2016 Coll., about public procurement which was accepted in the context of the new European procurement directives. The law on public procurement, respectively provision relating to proof of qualification, is based on the Directive of the European Parliament and Council Directive 2014/24/EU on public procurement, which repeals a previous procurement Directive 2014/18/EC. The new European procurement directives follows the trend of full computerization of public procurement, when this has obviously affected or soon will affect proof of qualification in public procurement. This rigorous thesis was taken into account previous legislation, when it was confronted with the new legislation.The authority during the procurement have to take into account current decision-making practise of supervisory authorities. It would seem that this duty is repealing now, because the decision-making practise of the law on public recruitment is still very poor. The opposite is true and I try to point out in this rigorous thesis. The authority could use existing decision-making practise adequately in many situations relating...
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A legal person as a member of an elective body of a limited company
Borkovcová, Petra ; Zahradníčková, Marie (referee) ; Horáček, Tomáš (referee)
130 A legal person as a member of an elective body of a limited company Abstract This thesis deals with one of the significant novelties in Czech company law adopted in connection with the recodification of private law, namely the general option to appoint a legal person as a member of a statutory, supervisory or another elective body of a limited company, i.e. limited liability company or joint stock company. The thesis presents the topic in a broader context and it is aimed to provide the reader with a basic idea of what the benefits and the risks are, which this concept brings into Czech law, and how usable it is in practice. For this purpose, an overview is given of how foreign legal orders regulate the membership of legal persons in elective bodies of limited companies, the extent to which this concept is widespread (not only in Europe) and what the existing, both positive and negative, experience is. Particular attention is paid to the legislation in Great Britain, because in this country, the issue of membership of legal persons in elective bodies of limited companies is currently being subject to breakthrough (albeit not yet effective) legislative changes consisting in a general ban on appointment of a legal person as a member of an elective body of a limited company. The thesis is divided into four...
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Protection against irregular practises of contracting authority
Ducháček, Tomáš ; Horáček, Tomáš (advisor) ; Liška, Petr (referee)
This thesis deals with the protection against irregular practises of the contracting authority in awarding public contracts. I analyzed part of the Government Procurement Act on Review Procedures, including some of the regulatory impacts. The introductory part of the thesis is followed by a chapter explaining the basic concepts of the issue. In the chapter three, I deal mainly with the institute of objections and blocking deadlines that prevent the contracting authority from entering into a contract. Next chapter is dedicated to the proceedings before the Office for the Protection of Competition, from the submission of the petition, through the deposit institution or the newly established obligation to pay the claim fee, the specific differences in the proceedings before the Office against the standard administrative procedure are highlighted, up to the possible ways and reasons of the termination of the administrative procedure. Appeals against the Office's decision, including possible appeals to the administrative court, are the subject of chapter five. In the end, I summarize the lessons learned, I respond to the questions asked in the introduction and I come up with considerations about legislation. Personally, I consider the analyzed legislation to be quite good. I consider the strengthen role...
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Entering into a public contract
Kuchař, Roman ; Horáček, Tomáš (advisor) ; Elek, Štefan (referee)
Awarding a public contract pursuant to Act No 134/2016 Coll., on public procurement, is aimed at creating a specific obligatory relationship between a contracting authority and a selected contractor, essentially on the basis of a previous tender procedure, unless the law specifies otherwise in the given case. The tender procedure is a special arrangement for the pre-contracting and contracting process, which takes place in a binding, legally defined procedure differing from an ordinary private-law contract, even though it is also a private-law procedure according to the predominant doctrinal and case law opinion. The topic of this diploma thesis is an analysis of the specifics of the contract process leading to the conclusion of a public contract, in order to draw attention to its similarities and also to the differences when compared to general private-law contracting. The thesis is divided into three parts, the first of which, primarily deals with the Act No 134/2016 Coll., on public procurement, its classification in systemic law, its relation to the EU public procurement regulation, the nature of tender procedure (specifically open procedure) and the public contract. The key charter is then dedicated to the award of a public contract, followed by the last section on changes to already concluded...
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The process of contracting and change of public procurement contract
Kubeš, Jiří ; Eichlerová, Kateřina (advisor) ; Horáček, Tomáš (referee)
79 Abstract The method of entering into a contract in public tenders according to Act. No. 134/2016 Coll. is a civil contractual process with a high degree of formalization and legal regulation. This makes it different from the general contractual process in civil law. The first chapter of this thesis is devoted to the analysis of public tenders in terms of setting up the legal framework. It goes into a conclusion that contractual process in public tender is part of the civil law with the subsidiary use of civil law rules, especially the Civil Code. The second chapter deals with a contractual process in a public tender itself. The process is divided into two phases - a precontractual phase and contractual phase. The precontractual phase includes procedures of the public tender that determine the clarification of content of the contract and the range of contractors. The contractual phase contains mainly the actual entering into a contract with successful tenderer. The chapter describes the specificity of the contractual process in a public tender since the announcement of the tender up to the actual entering into a contract. These specificities are introduced in relation to the open procedure being used in upper-tier mode. At the end of the chapter, there is a comparison with other types of proceedings and...
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