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Selected Issues of Abuse of Law in Civil Procedure
Pšenička, Jan ; Dvořák, Bohumil (advisor) ; Holčapek, Tomáš (referee)
in English The thesis deals with the phenomenon of abuse of procedural rights in civil proceedings, which is very often observed in practice. There is a growing interest in the topic of abuse of rights in the Czech environment, especially in the examination of abuse of rights in substantive private law, but also in other sectors. The phenomenon is, of course, increasingly noticed by case law. The aim of this thesis is to assess to what extent the theoretical conclusions on abuse of law are applicable in civil proceedings and also what is the impact of abuse of law in other branches of law, especially in private substantive law and public law. In view of the absence of a comprehensive work focusing on the abuse of procedural law in the Czech literature, the theoretical part of the thesis also deals with German-language works on this topic. In addition to a general insight into this issue and the definition of what can be considered as abuse of rights, or where the boundary between the application and abuse of rights lies, attention is paid in particular to selected institutes and rights in civil proceedings that may be subject to abuse. However, it is not possible to determine a complete list of them; therefore, the thesis is devoted to the assessment of the abuse of selected institutes, which are...
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Treaty Shopping in International Investment Law
Pohanková, Martina ; Balaš, Vladimír (advisor) ; Šturma, Pavel (referee) ; Svaček, Ondřej (referee)
TREATY SHOPPING IN INTERNATIONAL INVESTMENT LAW ABSTRACT Treaty shopping is a term used to describe a change of the corporate structure of an investor with the aim of falling within the scope of a chosen investment treaty that would otherwise not be accessible to the investor in order to take advantage of its benefits. This thesis offers a comprehensive overview and analysis of treaty shopping in international investment law with the aim of clarifying what the limits of treaty shopping are and whether they are currently taken into account by investment tribunals. The thesis first examines several related theoretical issues. After introducing the notion of treaty shopping and outlining the negative impacts it may have (Chapter 1), the attention is turned to the question of how to approach the nationality of legal persons in international law and under investment treaties, since nationality is the key concept that enables treaty shopping (Chapter 2). Different corporate nationality criteria - incorporation, seat, control and effective activities - are introduced and described. The chapter also strives to illuminate how nationality is understood under the ICSID Convention. The subsequent analysis focuses on the denial of benefits clauses (Chapter 3) that are inserted into some treaties to prevent treaty...
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Abuse of law as a limit for tax planning
Kamínková, Petra ; Karfíková, Marie (advisor) ; Vybíral, Roman (referee)
in English Abuse of law as a limit for tax planning This thesis deals with the role of abuse of law concept in determining the limits of tax planning. The most significant topics addressed in this theses include the relationship between abuse of law and related concepts of circumvention of law and substance over form, acceptability of the subjective criterion of abuse, and the relationship between the abuse-of-law concept and teleological interpretation. I conclude that abuse of law is a convenient term to label certain teleological interpretations. Subjective criterion focusing on scope, artificiality or rationality of the transaction or taxpayer's intent should not by itself lead to the conclusion of abuse. Abuse of law and circumvention of law are, despite their linguistic differentiation, so related that they can be described as two sides of the same coin. Finally, the substance-over-form concept, understood in the Czech legal doctrine as a separate concept, fulfills the criteria of abuse, and can therefore be considered as its subpart.
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Abuse of the institution of bill of exchange and promissory note
Klimenta, Gabriel ; Patěk, Daniel (advisor) ; Zahradníčková, Marie (referee)
The purpose of the thesis is to provide a view into most significant modes of promissory note abusive conduct. This view consists of thorough analysis of sources, modes of operation, impacts and available prevention of issues related to promissory note and bill of exchange abuse. The domestic case law has been the primary source of the thesis. However, relevant literature and applicable laws have been reflected as well. The thesis is divided into four chapters. The first chapter deals with a brief historical introduction of the law of promissory notes and its deviations from private law concerning especially the ones related to promissory note abusive conduct. The current situation in the field of promissory notes in Czech Republic is also reviewed in this chapter. The second chapter is focused on the abstract nature of obligations arising from the promissory notes as from negotiable instruments. Furthermore, excessive claims based on security promissory note, separation of the security promissory note from secured receivable and abuse of the aval guarantee are introduced and examined. The third chapter provides a comprehensive view into incomplete instruments and agreements necessary to transfer them into negotiable instruments. The incomplete instrument abuse is also reviewed and distinguished...
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Duty of loyalty of the capital company members
Kaščáková, Dáša ; Černá, Stanislava (advisor) ; Pelikán, Robert (referee)
The topic of shareholder's duty of loyalty is an important aspect for the definition of most of the duties and obligations of the capital company members. Therefore, it is also very popular topic for the authors of professional literature, who tend to be interested in systematized distinction of the duties and obligations of the capital company members. Most authors, along with the jurisprudence, already admit considerable importance of principle of loyalty and consider it to be the rule of interpretation appropriate for its application to the other duties and obligations of company members. The principle of loyalty, having a regulatory function, may fill in particular gaps in the statutory regulation. As a derogatory rule it may avoid the application of other rules that would lead to unfair decisions. This work aims to demonstrate the possibility of application of the principle of loyalty in practice. The thesis is divided into two main parts, the first is meant to clarify the place of the duty of loyalty in Czech law. It describes how was the existence of the duty of loyalty inferred before its regulation in new Civil Code. Next chapters of the first part are devoted to current applicable regulation. The second part of the theses focuses on particular examples in order to demonstrate the...
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Legislating against Tax Avoidance
Kamínková, Petra ; Boháč, Radim (advisor) ; Kohajda, Michael (referee)
Kamínková, Petra: Legislating against Tax Avoidance Abstract Tax avoidance practices of multinational corporations have recently come under criticism by governments and general public. In my thesis, I analyze various methods states may use to fight such behavior, with special regard given to the Czech Republic. In the first chapter, I introduce basic principles of international taxation. Second chapter focuses on several commonly used methods of avoiding taxes, and the tools used by governments to fight particular types of undesirable transactions and set-ups (Targeted Anti-Avoidance Rules - TAARs). The analysis therein suggests that these tools may be successful to a degree, but may never cover all possible scenarios. Third chapter elaborates on judicial doctrines and General Anti-Avoidance Rules (GAARs). These tools attempt to address tax avoidance methods not anticipated by legislature. My contention is that while these concepts may be quite powerful, they may also gravely threaten legal certainty. Therefore, I conclude that they should be used sparingly. Final chapter presents a set of auxiliary tools that may improve the communication between tax payers and tax authorities, thus helping the states to gather information faster and more efficiently, allowing them to react to arising issues with minimal...
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