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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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Circumvention of the law, real contents of legal acts and the abuse of law in relation to tax planning
Horák, Milan ; Boháč, Radim (advisor) ; Kohajda, Michael (referee)
The purpose of my thesis is to analyze and characterize circumvention of the law, real content of legal acts and abuse of law in relation to tax planning. To combat tax abuse tax administrator has these three instruments available which in turn set limits of tax planning. The thesis is composed of four chapters. Chapter One differentiates between tax planning, tax abuse and tax evasion as different methods of lowering tax liability. Chapter Two consists of four subchapters, first three containing analysis and characteristic of circumvention of the law, real contents of legal acts and abuse of law. Each of these subchapters builds upon general definition which is then refined by case law of the Supreme Administrative Court and concludes with typical cases. The fourth subchapter deals with "tax evasion by other means" which some authors consider a similar instrument. The third chapter summarizes the current legislative state of these instruments and offers some thoughts de lege ferenda. The fourth chapter contains deeper analysis of the most important case law relating to individual instruments. Chapter Four should serve the reader as a reference while reading Chapter Two. Thesis illustrates the most typical cases of each individual instrument and concludes that the abuse of law doctrine is the most...
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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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Abuse of the law in tax law
Plevová, Magdaléna ; Boháč, Radim (advisor) ; Karfíková, Marie (referee)
- 1 - Abstract The purpose of my thesis is to characterize and analyze the doctrine of abuse of rights in relation to the tax law. The second objective of this thesis is to make a conclusion if the current legal regulation of this doctrine is sufficient in the Czech legal system. The thesis is devided into six chapters in accordance with the topics. The first chapter proposes notions of "tax" and "tax law" and then describes interpretation of tax law. The second chapter deals with issue, what kind of right is abused. Following chapter is important because it differentiates among the notions of real content of legal acts, circumvention of the law, and tax optimization in relation to abuse of law. The crucial part of this thesis is chapter four called "Abuse of Law" which concerns the detailed introduction to the abuse of law doctrine. This chapter contains five subchapters, when the second one deals with the general principle of prohibition of abuse of rights of European law and following subchapters compare Czech and French legal regulation of the abuse of tax law. The last subchapter describes procedure of Czech tax administrator to combat abuses of tax law. The fifth chapter contains deeper analysis of cases of abuse of tax law. There are analysed two cases of the European Court of Justice and some cases...
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Abuse of Public Law in Judicial Decisions
Vinčálková, Lucie ; Kühn, Zdeněk (advisor) ; Beran, Karel (referee)
Abuse of Public Law in Judicial Decisions This thesis discusses the relevance and meaning of the principle of "abuse of law" in Czech public law, and consists of six chapters. A brief opening chapter sets out the aim of the thesis, namely to provide a theoretical analysis of the concept of abuse of law, using conclusions that are established in Czech jurisprudence. The second chapter deals with the substantial rulings of the Czech Supreme Court viewing the abuse of law concept in terms of civil law, because the abuse of law principle came to light firstly in Czech civil law. The prospective enactment of the abuse of law principle in the Czech Civil Code Bill is also mentioned. The third chapter is crucial to this thesis, and reflects the approach of the Czech Supreme Administrative Court (the SAC) to the doctrine of abuse of law. The first Czech ruling in which the concept of the abuse of tax law occurred was Divers, no. 1 Afs 107/2004 - 48. In Divers, the SAC construed a very in-depth argument supporting the applicability of the abuse of law principle to the field of taxation (which is part of public law). Then the process during which the SAC developed the abuse of law concept in its rulings, including the first application of the Halifax two-stage abuse test is described. The parallel concepts...
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Obstructions connected to the right to information
Tuláček, Michal ; Korbel, František (advisor) ; Millerová, Ivana (referee)
The master thesis's topic are obstructions connected with the execution of the right to information, both by obligated entities as well as by information requestors. The right to information is a political right anchored in the Charter of Fundamental Rights and Freedoms and also in the international contracts stipulating human rights. Its definition is relatively wide, but not unlimited, because next to it from constitutional order flow other rights, freedoms or legitimate national interests, with which the right to information can be in conflict. In particular, it is concerning the law on protecting privacy or the national interest for protecting secret information, whose disclosure could endanger the national safety. The right to information can collide with other rights, freedoms or interests, therefore can be rightfully restricted and it is possible not to provide the requested information. However, such a restriction has to be anchored in the law and must be proportional and essential to the protection of rights and freedom of others, national safety, public safety, protection of public health and morals.in a democratic society. In reality, the right to information is restricted also for reasons unforeseen by the law. The right to information is nonetheless incorrectly executed even in cases of some...
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The actual content of legal acts in the tax law
Lívová, Jana ; Pelák, Jiří (advisor) ; Lišková, Vladimíra (referee)
This thesis deals with the real content of legal acts and its evaluation, identification and demonstration by the tax administrator. The aim is to determine which legal institutes are used in the tax administrator's control. Also if it uses the institute of the real content of legal acts and if it uses the correct way according to analysis of Czech law. The first part sets out the legal act, the second part sets out the interpretation of legal acts. The forms of the minimalization of the tax liability is set out in the third part, the greatest emphasis is on tax avoidance and tax evasion. The last part analyzes the most important law cases where the tax administrator argued one of the institutes simulated legal act, dissimulated legal act, evasion of the law, law abuse or tax avoidance by another method.
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Prohibition of Abuse of Law in the European Law
Hron, Lukáš ; Grmelová, Nicole (advisor) ; Filipinská, Lucie (referee)
The thesis represents an introduction into the concept of abuse of law principle as it is applied within the European Law. As an introduction it features a short history of the abuse of law as of private law principle and its theoretical aspects. Further it provides the reader with exposures of the doctrine in the Czech law and draws attention to the problems which the Czech courts face applying the doctrine, especially with its distinction from other similar legal institutions. The core of the work is constituted by an analysis of relevant decisions of the Court of Justice of the European Union, which follows the development of the doctrine from the early 70's until present. The thesis analyses the doctrine of abuse of law as it was developed in the European judicature. Finally the author introduces practical consequences of the doctrine on the tax law and deals with the question how the courts of highest instance of the Czech Republic cope with the doctrine and criticizes their approach.
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