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Social favours and other liberalities in Czech private law
Pražák, Petr ; Elischer, David (advisor) ; Dvořák, Jan (referee)
This thesis is focused on voluntary acts of generosity that do not give rise to any mutual obligation (liberalities), but which are, however, often very similar to it. This thesis first concentrates on the concept of liberalities in the existing literature and case law. The results from this search show that liberalities have not been given much attention so far and that even basic conceptual issues, such as relationship between liberalities and main institutes of private law (juridical acts, contracts, obligations), have not been properly resolved. According to some concepts, liberalities are acts of low pecuniary value and have no legal consequences (and hence no legal significance), while, according to other concepts, liberalities may have high pecuniary value and legal significance. According to some concepts, the expressed intention of the acting person and its perception by the addressee is decisive to distinguish liberalities from obligations (or juridical acts), while, according to other concepts, the objective circumstances in which the persons act are decisive. Last but not least, this thesis focuses on the precarious loan. For a long period of time, the precarious loan has been non-binding agreement. However, since the entry into force of the Act No. 89/2012 Coll., it is systematically...
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The concept and the principle of the Trust
Bulušek, Petr ; Elischer, David (referee) ; Thöndel, Alexandr (referee)
The thesis explains the legal regulation of the trust in the context of its historical aspects, as well as the current legal regulation, and can be a basis for possible solutions of questions and problems arising in connection with the establishment and functioning of the trust in ordinary relations and life situations. A considerable part of the thesis from the first to the third chapter represents a detailed description of the historical context of the trust due to the fact that it is precisely this context that is essential for the right interpretation and understanding of the trust. Thus, taking into account the fact that the trust is in the legal order of the independent Czech Republic a new institution and it has not been understood and accepted by the majority public at first. The historical context may also be important in the point of solving problems of the application when the current local jurisdiction is not yet available. The main part of the thesis consists of its fourth chapter which provides a detailed analysis of the legal regulation of the trust contained in the Civil Code No. 89/2012 Coll. The chapter focuses to highlight the positive contribution of the trust in the Czech legal and social environment as well to refute some of the company's apprehensions about possible abuses of...
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Testamentary succession
Brousilová, Gabriela ; Thöndel, Alexandr (advisor) ; Elischer, David (referee)
Resume This thesis deals with the topic of inheritance. With the effect of the new Civil Code from January 1, 2014, the inheritance law and the subject of the testament have become highly discussed matters. This is the result of a legal modification in the Civil Code. It has become more detailed, based on the legal regulation of the ABGB and inspired by the Civil codes of other European countries. After the introductory word, the thesis begins with general principles and principles spanning across the entire inheritance law. The next chapter presents the preconditions for inheritance under the effective Civil Code. For comparison purposes, the fourth chapter briefly describes other inheritance titles known by the Civil Code, namely the inheritance agreement and legal succession. The fifth chapter then mentions the basic functions and principles of the testament. The following chapter deals with the history of the testament and its gradual development over time, as it is one of the two oldest titles. Starting with Roman law, and continuing with Medieval adaptation, ABGB, the government bill from 1937, Civil Code No. 141/1950 Coll. and finally, Civil Code No. 40/1964 Coll. The core of the work is in the seventh chapter, which discusses in detail testament stated in the Civil Code No. 89/2012 Coll. In...
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Protective measures in Czech Civil Procedure Law
Kůsová, Eva ; Macková, Alena (advisor) ; Elischer, David (referee) ; Petrov, Jan (referee)
Protective measures in Czech Civil Procedure Law Abstract This dissertation deals with the protective measures constituting a special type of the Czech civil procedure besides the proceedings on law finding, enforcement and insolvency. The theory refers to this sort of procedure as a set of procedural institutes that have little in common, except for the same basis residing in interim securing of rights or in securing effective exercise of rights. The author deals with the protective legal instruments as perceived by the predominant doctrine, which corresponds to the essence of the matter and to the legal regulation, that is to say, pre-trial reconciliation (also called a Praetorian reconciliation), preliminary measures (injunctions), pre-trial evidence and subject of the evidence securing, judicial (and also executor) lien and disturbed possession action. She emphasizes the general regulation of preliminary measures, but the submitted analysis is in a significant extent applicable as well to the preliminary measures under the Act on Special Court Proceedings. The objective of the dissertation is to present a complex work on the protective measures in Czech civil procedure law, currently absent in the Czech legal literature. The author has divided the dissertation into two parts - general and special. The...
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Public prosecutor's office in civil proceeding
Pavlásková, Zdeňka ; Macková, Alena (advisor) ; Elischer, David (referee) ; Winterová, Alena (referee)
This dissertation is divided into a general part (chapters 1 through 6) and a specific part (chapter 7). The general part contains chapters devoted to the historical development of public prosecution and the office of the public prosecutor with an emphasis on developments in civil proceedings, primarily after 1989. Further attention is dedicated to a current expert discussion of the constitutional position of the office of the public prosecutor within the system of state power. Explanations are also given for the independence and impartiality of the office of the public prosecutor in a qualitative comparison with the independence and impartiality of the courts. The following part of the dissertation focuses on a description of the framework of the office of the public prosecutor, including the new institution of the Institute of the European Public Prosecutor. The subsequent chapter is concerned with the organisation and staffing of the non-criminal division of the public prosecutor's office on all levels. This is followed by a chapter devoted to the legal sources amending and relating to the non-criminal activity of the office of the public prosecutor. A substantial part of the general part of this dissertation consists of a description of the role of the office of the public prosecutor in civil...
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Legal regulation of liability insurance
Velich, Roman ; Elischer, David (referee)
Legal regulation of liability insurance Abstract This thesis aims to give a comprehensive and logically structured interpretation of the subject of the regulation of liability insurance in private law of the Czech legislation, placing special emphasis on its practical application in the context of the current judicial decision-making practice. Although being one of the most popular insurance products on the Czech insurance market, liability insurance is given relatively little attention in specialized literature with the exception of the specific area of motor vehicle liability insurance. Therefore, this thesis focuses in particular on the general regulation of liability insurance stipulated in Sec. 2861 - 2867 of the Czech Civil Code. In this thesis, liability insurance is considered to be primarily an obligation relationship, with the thesis structure adjusted accordingly: one by one, it discusses the establishment, subjects, object, subject-matter and finally the termination of the legal relation. The main part of the thesis looks at the subject-matter of the liability insurance legal relation with a detailed analysis of the basic rights and obligations of its parties. A separate part of the thesis specifically covers the entitlement of the insured to sue in terms of the procedural implementation: a...
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Damage caused by a defective product - Analysis of the European union regulation in the light of its Czech and French transposition
Mocek, Ondřej ; Elischer, David (advisor) ; Dvořák, Jan (referee)
This diploma thesis quite thoroughly deals with - at present a very topical - theme "liability for damage caused by a defective product"; thus, with an obligation to compensate for the damage caused by the defective product to its user (or third party), generally imposed on the person who is designated as the "producer" of the product, originally based on the Council Directive of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (85/374/EEC) (hereinafter 'Directive 85/374/EEC'). However, this work is not limited only to the (thorough) description of the currently valid and effective Czech implementing legislation. The thesis also compares the Czech legislation with the French implementing regulation, which is of a significantly higher legislative quality and much more faithful to its Union model. In fact, it was specifically France which shaped the final form of this responsibility regime, since it was the French transposition, and the French decision-making (judicial) practice, which was most often the subject of the Court of Justice's, as it ruled on the interpretation of the individual provisions and principles in the text of the previously mentioned directive contained. Nevertheless, France,...
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Pre-Emptiv Right in the Civil Code
Harapát, Jakub ; Elischer, David (advisor) ; Dvořák, Jan (referee)
Pre-Emptive Right in the Civil Code Abstract This thesis deals with the institute of pre-emptive right both in theoretical terms and in valid legislation. The main objective of this work is to describe the institute of pre-emptive right in such a way that it is possible to draw attention to the issues which arise in connection with this institute and to outline possible solutions where appropriate. However, in order to describe the practical aspects of the pre-emptive right, it is also necessary to describe the pre-emptive right in theoretical level. Following the objectives set, the work is divided into five chapters. The first chapter of the thesis deals with the theory of pre-emptive right where space is left to some theoretical constructions, with the theory defining five possible constructions in particular. The work also describes possible motives leading to the negotiation of the pre-emptive right, which can be divided into motives of the defence and motives leading to the acquisition. Furthermore, the elements of the pre-emptive right and its division are described. The second chapter serves as the theoretical basis for the next chapters. The second chapter deals with the origin of the concerned institute and its historical development in civil codes, and part of this chapter discusses other pre-...
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Causation in the European Context
Hrycejová, Markéta ; Elischer, David (advisor) ; Dvořák, Jan (referee)
Causation in the European Context Abstract The aim of this thesis is to provide an insight into the issue of causal link legislation in the European context. The author does not limit herself to an applicable Czech legislation, but also to the regulation pursuant to Principles of European Tort Law (PETL). An important part of this thesis is devoted to the relevant case law concerning causal link. The first part of this thesis contains an interpretation of the concept of causality in the context of non-legal sciences. Furthermore, the author generally deals with liability for damage and each of its presumptions. The second chapter analyses the legislation pursuant to the Civil Code, respectively the Code of Civil Procedure. It also includes a detailed analysis of the Czech courts' case law and recourse into the loss of chance doctrine. The third chapter deals with legislation under PETL, the fourth chapter provides an insight into the concept of causality in selected European countries (England, France and Germany). Finally, the author compares the legislative differences between the "European" and Czech regulation and she also deals with the issue of legislation de lege ferenda. The focus of this thesis is mainly the analysis of case law related to the causal link matter, since the relevant decision-making...
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Direct representation in civil law - general remarks
Kříž, Josef ; Elischer, David (advisor) ; Thöndel, Alexandr (referee)
1 DIRECT REPRESENTATION IN CIVIL LAW - GENERAL REMARKS Abstract The subject of this theses are general remarks to direct representation as a historical and fundamental institute of private (substantive) law. The thesis is therefore devoted to the interpretation of general provisions of the Civil Code concerning direct representation (contained in Sections 436 to 440). These fundamental issues include, in particular, the nature of the direct representation, as an institute, and the authority to represent, as the power of one person to act for another. Furthermore, the author of this work concerns the distinction between different types of direct representation, the distinction between legal relationship between agent and principal concerning representation and the other potential legal relationship that may exist between those two, and the requirement to prove authority to represent to a third party. An extensive part of the thesis is devoted to the scope of the agent's authority to represent the principal and the consequences of acting without a such authority. This part includes issues related to acting with a conflict of interests, the personal acting of the agent and requirement of collective action of several agents. The aim of this thesis is to interpret relevant legal provisions consistently and at...
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