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Institute of debt relief in the light of amendments of the Insolvency Act
Majerová, Kristýna ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
Institute of debt relief in the light of amendments of the Insolvency Act Abstract The rigorous thesis is aimed at a thorough analysis of the debt relief process from the perspective of a judicial assistant of an insolvency court judge, not only in theoretical but especially in practical terms. Individual chapters correspond to the systematisation of the Insolvency Act, while taking into account the shortcomings of the legislation that lead to interpretation or application difficulties in insolvency practice. A key role in this respect is played by case law, which further regulates and unifies some institutes, while contributing to the excessive formalism of judicial practice in other cases. The thesis is structured into seven chapters that provide a comprehensive view of the process of debt relief. The first one focuses on the basic principles, concepts and sources of legal regulation, including the so-called Lex Covid laws. Insolvency law is a very distinct branch that has undergone a really dynamic development in recent years. In this respect, a significant role was played primarily by the so-called debt relief amendment, which fundamentally redefined the conditions of debt relief in favour of debtors. The concept of chapters two to five corresponds to this. They take into account the continuous process...
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Execution by sale of real estate
Kovář, Ondřej ; Frintová, Dita (advisor) ; Smolík, Petr (referee)
Execution by sale of real estate The presented rigorous thesis titled "Execution by sale of real estate" aims to describe and analyze the current legislation concerning real estate as a subject to execution proceedings. The thesis should offer potential solutions for the described problematic parts of an execution, such as the issue of conflict between the execution procedure and the insolvency procedure. In terms of its content, the rigorous thesis consists of eight parts. The first chapter of the rigorous thesis focuses on the definition of the essential terms of enforcement proceedings, the substantial institutions, and legal provisions which are connected to the enforcement. Essential principles of the enforcement proceedings are described in the beginning: the principle of party disposition, the principle of officiality, the principle of proportionality and the principle of defense and protection of the debtor. Then, the thesis analyzes the position of the judicial officer in the legal system and focuses on the legal consequences concerning the commencement of execution proceedings. From the second to the seventh part, the rigorous thesis contains the main subject of the work - the process of execution sale of real estate, when the parts correspond to the relatively independent phases of the process of...
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Obligations of an attorney in his professional practice
Boukalová, Kateřina ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
Obligations of an attorney in his professional practice Abstract This thesis deals with the obligations of an attorney in his professional practice, which derive from legal and professional regulations. The goal is to comprehensively describe and interpret the individual obligations and thus create a comprehensive overview of them. At the same time, the work aims to critically evaluate the problematic aspects of the selected obligations and possibly propose a solution de lege ferenda. The methods of description and analysis are mainly used to achieve the set goals; other methods are interpretation and deduction. The work is divided into four chapters. In the first chapter of the thesis, basic concepts were defined, i.e., the concept of advocacy and the provision of legal services. The current legislation was also presented, and attention was also paid to the legal prerequisites for the practice of advocacy, the possible forms of the practice of advocacy and the independence of the advocate as a basic pillar of advocacy. Part of this chapter was also a description of some attorney's rights. The lawyer's right to remuneration was critically evaluated. The second and, at the same time, pivotal chapter focused on an attorney's individual obligations, which result from legal and professional regulations during...
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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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Class proceedings in Czech legislation
Vodička, Jakub ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
Class proceedings in Czech legislation Abstract The thesis deals with the class proceedings in the Czech legislation. Its aim is to contribute to the expert debate about the emerging class proceedings legislation within the Czech civil procedural law. For this reason, the thesis analyses the topic of the class proceedings, which the Czech expert public has treated mostly theoretically so far. The thesis focuses on the published bill on the class proceedings that was considered by the Czech Chamber of Deputies until 2021. Apart from a critical analysis of the legislative text, the thesis compares it with other relevant regulations and foreign approaches. The comparison provided is two-fold: firstly with the new European Directive on Representative Actions, secondly with the Austrian legal approach to class action. From a methodological viewpoint, the thesis mostly uses the analytical, comparative and synthetic methods. Within the analysis of different legislations, the author uses a positivist approach, while during the analysis of the suggested legislation the methodological approach is normative. In the introduction, the thesis examines the class action institute from a theoretical viewpoint. Subsequently, the current Czech class action legislation included in the Code of Civil Procedure is analysed along...
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Debtor-in-possession financing
Marek, Frank ; Smolík, Petr (advisor) ; Sedláček, Miroslav (referee)
1 Debtor-in-possession financing Abstract The topic of this thesis is debtor-in-possession financing. Debtor-in-possession financing, albeit not being a topic of a vast interest in the Czech insolvency theory, has rightful place in the insolvency law. By acquiring new financial proceedings, resources, energies or other benefit, debtor earns a chance to preserve or restore the operation of its business, while bringing a possibility of higher satisfaction of the creditors' claims mainly because new financial proceedings may help the debtor to generate new earnings that can be used to satisfy creditors' claims. The aim of the thesis was to evaluate contemporary legal framework of the debtor-in- possession financing, its doctrinal interpretations, court practice and recent topics that has occured in the global context. The thesis brings a de lege ferenda refelctions based on critical analysis of abovementioned sources. The thesis comprises of the introduction, eight chapters divided into subchapters and conclusion. The first chapters brings theoretical basis of the thesis by distinguishing the terms insolvency, loan and debtor-in-possession financing. The second chapter contains the description of the purpose of the insolvency law, its principles and in particular cases it explains the relation between such...
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Ineffectiveness of legal acts within the insolvency proceedings
Chrenovský, Bohdan ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
The topic of this thesis is ineffectiveness of legal acts within the insolvency proceedings. This legal concept forms an integral part of modern insolvency law, since it can be considered an essential and the most frequently used instrument, on the grounds of which the insolvency trustee is able to challenge the insolvent debtor's fraudulent acts that are detrimental to their creditors, who are exercising their rights within the insolvency proceedings. Otherwise stated, this legal concept is crucial for the purposes of protection of the debtor's creditors within the insolvency proceedings. The aim of this thesis is to provide a comprehensive analysis of the effective legal framework of ineffectiveness of legal acts within the insolvency proceedings, as well as of current doctrinal opinions, specialised publications and relevant decision-making practice of courts. The thesis is not limited to a mere adoption of the aforementioned sources, as at many parts of the thesis these are being disputed, criticised or confronted with the author's own conclusions. Where appropriate, the thesis identifies shortcomings of the effective legal framework and presents the author's de lege ferenda considerations related to such. The thesis is comprised of introduction, eight chapters that are systematically...
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The preliminary ruling
Chudoba, Stanislav ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
The preliminary ruling The subjects of thesis research are preliminary rulings considering the Czech civil proceedings and preliminary rulings submitted to the Court of Justice of the European Union. The thesis is designed to analyze legal changes made to the preliminary rulings with emphasis on the case-law. The introductory historical part of this thesis describes the then Roman law institute called praeiudicium, in which the beginnings of the development of the current form of the preliminary rulings can be observed. Later on, the attention of the thesis is shifted towards preliminary rulings in the legal order of the Czech Republic. After the opening determination of the term, the following chapters begin to focus on the nuances of the terminology of this procedural institute, position of the preliminary ruling in the judgment or explaining the differences between material and procedural preliminary rulings. The main chapter is centered around the boundness of the court by existing decisions regarding the specific question. This part is followed up by the explanatory breakdown of the law in force. The next chapters of the thesis discuss the assessment of the preliminary rulings that have not been ruled yet. The chapters also examine facultative and obligatory suspension of the proceeding...
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Mediation
Grobelná, Kristýna ; Smolík, Petr (advisor) ; Sedláček, Miroslav (referee)
This thesis is about mediation as an alternative dispute resolution and at the same time as an alternative to court proceedings. The aim is to acquaint the reader with mediation as a method, its comparison with other alternative methods and at the same time to compare it with court proceedings, the possibilities of its use, the subjects of mediation and prosec of mediation. The author also compares some differences in the Czech and Slovak regulations. The second chapter focuses on explaining the concept of mediation, its goals and mediation styles. The third chapter is about alternative methods of dispute resolution, namely arbitration, mini-process, negotiation, conciliation and subsequently combined methods such as mediation- arbitration and arbitration-mediation. These methods are described only very briefly and the chapter focuses mainly on their differences from mediation. The fourth chapter focuses on the relationship between mediation and court proceedings. The aim is to compare the suitability of using the methods in different cases and to compare the individual advantages and disadvantages in terms of different factors. The fifth chapter deals with mediation in practice and its legal basis. It discusses the individual sectors in which mediation can be used and any differences and specifics...
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Promissory note in civil proceedings
Prokop, Rudolf ; Smolík, Petr (advisor) ; Sedláček, Miroslav (referee)
Promissory note in civil proceedings Abstract A bill of exchange (or a promissory note) is a commercial paper, in which its drawer and eventually other persons engage to pay a sum certain in money to order of its holder. Nowadays a bill of exchange is mostly used to secure other obligations and to strengthen a position of a creditor, and therefore it is very popular. One of the main reasons of its popularity is a simple and quick enforceability at a court in civil proceedings. The purpose of this thesis is to comprehensively characterize proceedings to honour a bill of exchange, i. e. elaborately describe all phases of civil proceedings from its commencement to the entry of judgement with an emphasis on particularities of bill of exchange. The thesis is composed of five chapters. Chapter One contains brief historical overview of bill of exchange substantive and procedural law in the Czech Republic. Chapter Two focuses on general characteristics and s definition of bill of exchange, specifies most common purposes for drawing a bill of exchange, examines essential elements of a bill of exchange and deals with differences between a bill of exchange and a promissory note. A blank bill, a transfer of bill of exchange and bill of exchange guarantors are also mentioned in the last part of this chapter. Chapter...
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