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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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Financial Law Instruments Combating Value-Added Tax Evasion in the Perspective of European Union
Sejkora, Tomáš ; Boháč, Radim (advisor) ; Kohajda, Michael (referee) ; Šramková, Dana (referee)
This dissertation broadly focuses on the problematics of the tax evasion in the field of the value-added tax from the perspective of the European Union law wherefore it does not contain parts devoted just to the national instruments combating tax evasion. The aim of the dissertation is the analysis of the terms which could be met due to the inconsistent terminology concerning tax evasion, then the aim is to provide classification of the tax evasion and to analyse individual measures combating tax evasion recognised by the European Union law. Therefore, the case law and opinion of the professional community are examined by the descriptive, analytical and comparative scientific method and later, founded conclusion are generalized by the synthetic method pointing out the pitfalls of their application in the Czech legal environment. The result of this dissertation shall be the coherent insight to the terminology connected with the tax evasion in the field of the value-added tax and the analysis of legal instruments combating tax evasion established by European Union law containing the evaluation of individual aspects of this issue. Pursuant to the acquired conclusions, the discrepancy of the transposed national legislation could be deduced and the assessment, if the legal measures established by...
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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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The abuse of right in Taxes
Hoppe, Gabriela ; Boháč, Radim (advisor) ; Kohajda, Michael (referee)
Abuse of law in taxes - abstract The author has decided to choose this particular topic as it concerns her occupations as tax advisor. The doctrine of abuse of law is actually becoming more frequent not only in the tax cases decided by the Court of Justice of the European Union, by the Czech Supreme Administrative Court and lower Czech courts but also often occurs in the regular tax proceeding conducted by all levels of the Czech tax administration. The aim of the author was to analyse the doctrine and try to develop a practical instrument for decision making of common Czech taxpayers. The thesis is decided in two parts and conclusion. In the first part, the doctrine of abuse of law and related concepts as tax avoidance, tax evasion, substance-over-form rule, sham transactions and tax optimization in the Czech law theory and legislation is analysed, in second chapter the author has looked more closely into cases decided by Czech courts. In the third chapter are analysed the most important cases concerning abuse of law decided by the Court of Justice of the European Union. In second part of the thesis are commented some practical measures to avoid harmful tax planning arrangements used as in the Czech republic as abroad, including the recently adopted BEPS Action Plan of OECD which refers to tax planning...
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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 Law in the European and Comparative Context
Fuksová, Lucie ; Kühn, Zdeněk (advisor) ; Beran, Karel (referee)
Abuse of Law in the European and Comparative Context This thesis aims at description and assessment of the principle of abuse of law in the Czech law. Characteristics and consequences of abuse of law are provided and put into context of legal systems and cultures different from the Czech one. Two major aspects of abuse of law are compared: its origin (i.e. emergence, legal basis in relation to character of given legal culture) and actual characteristics and ramifications of application of abuse of law. Where applicable, the consequences of the doctrine are provided separately for private and public law. In the Czech law, this sorting is more fine. This means that more branches of law are being characterized. European law, on the other hand, is not divided into any formal categories. The first part provides general theoretical basics. It deals with the way that legal principles work in the legal system and what is their role among other elements of law such as goals and values, and legal norms on the other hand. It provides description of the way that legal principles work during creation and application of law. The thesis also deals with consequences of application of the principle of abuse. The leading idea of this thesis states that "We must see the abuse of law to know it.". It is thus very...
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Instruments of protection against fraudulent insolvency petitions
Růžičková, Lucie ; Sedláček, Miroslav (advisor) ; Smolík, Petr (referee)
This thesis aims to provide a summary overview of instruments of Czech law preventing insolvency petitions of being misused by the creditors and to asses, whether the current legislation provides sufficient protection for borrowers against fraudulent insolvency petitions and on the contrary, whether it does not disproportionately restrict the rights of creditors eligible to enforce their claims towards the borrower in bankruptcy. After the first chapter which defines the basic terms and concepts of the insolvency law, which are used further in the thesis, follows a chapter defining the term "fraudulent insolvency petition" itself and the common motivations of the creditors thereto. The third chapter analyses the particular instruments of private law suitable to provide protection against fraudulent insolvency petitions. The main part of this thesis is contained in the first part of this chapter, which describes the particular instruments of the Insolvency Act providing for protection of borrowers against fraudulent insolvency petitions. The following part of this chapter describes other instruments of private law that might be alternatively used against the fraudulent insolvency petitions. The fourth chapter then describes the criminal law consequences of the fraudulent insolvency petitions. In the...
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Financial Law Instruments Combating Value-Added Tax Evasion in the Perspective of European Union
Sejkora, Tomáš ; Boháč, Radim (advisor) ; Kohajda, Michael (referee) ; Šramková, Dana (referee)
This dissertation broadly focuses on the problematics of the tax evasion in the field of the value-added tax from the perspective of the European Union law wherefore it does not contain parts devoted just to the national instruments combating tax evasion. The aim of the dissertation is the analysis of the terms which could be met due to the inconsistent terminology concerning tax evasion, then the aim is to provide classification of the tax evasion and to analyse individual measures combating tax evasion recognised by the European Union law. Therefore, the case law and opinion of the professional community are examined by the descriptive, analytical and comparative scientific method and later, founded conclusion are generalized by the synthetic method pointing out the pitfalls of their application in the Czech legal environment. The result of this dissertation shall be the coherent insight to the terminology connected with the tax evasion in the field of the value-added tax and the analysis of legal instruments combating tax evasion established by European Union law containing the evaluation of individual aspects of this issue. Pursuant to the acquired conclusions, the discrepancy of the transposed national legislation could be deduced and the assessment, if the legal measures established by...
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Abuse of law in Czech legislation and case law
Zachová, Veronika ; Kohajda, Michael (advisor) ; Kotáb, Petr (referee)
Resume in English Name of the thesis: Abuse of law in Czech legislature and judicature Abstract: The submitted thesis analyses the development and the way of using, the principle of prohibition of abuse of law, in the field of Czech tax law. The thesis is dedicated not only to the development but also to the subsequent use of this principle in the judicature and legislation. Emphasis is placed on the judicature, which has undergone considerable progress. The thesis chapter defines fundamental terms and provides the essential explanation of them. This is needed for the further interpretation of the concept of the prohibition of abuse of law. Furthermore, the thesis deals with the regulations in force, which might be connected to this principle. Next topic in the thesis is the probable effect of this principle with other legal ideologies or institutes, such as legal certainty, legitimate expectation, and others. The subject matter of the thesis is dedicated to the study of the principle in present day application with a reflection to the common appearance in the individual fields of tax law and to the specifics of them. Considering the membership of the Czech Republic in the European Union, an analysis of the principle is made on the scope of the regulation within this context. The principle is used as an...
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