Abstract
The chapter brings a general overview of legislation on private law in the Czech Republic, notably with respect to the Civil Code, Business Corporations Act, Labour Code, and Private International Law Act. Attention is paid not only to the legal history of codification and decodification of private law in the Czech Republic up to the present, but also, and in particular, to the recent radical reforms and complete re-codification of private law, notably to the new Civil Code, effective as from 1 January 2014. The general overview of legislation governing private law starts with the description of legal sources, including European Union law and international treaties, and continues with the introduction into the rather dynamic history of civil codes and other sources of private law in the Czech Republic. The authors tried to focus on the starting points and main features of the completely new recodified legislation, the major axis of which is a human being and his or her interests, predominantly individual in the private law sphere.
This essay was drafted with the support of the Research Programme of Charles University in Prague “Prvouk 05”.
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Notes
- 1.
Knapp, V. Velké právní systémy (Great Legal Systems), Prague: C.H. Beck 1996, p. 118. Sometimes the Austrian and Swiss families of law are conceived to be part of the German legal family; see, for example, Koch, H., Magnus, U., Winkler von Mohrenfels, P. Internationales Privatrecht und Rechtsvergleichung, Munich: C.H. Beck 1989, p. 196.
- 2.
For details see, in English, Pauknerová, M. Codification of Czech Private Law in the Middle and on the Outskirts of Europe, Liber Amicorum Valentinas Mikelenas, Justitia, Vilnius 2008 (2009), p. 239.
- 3.
See Art. 67(1) of the Treaty on the Functioning of the European Union.
- 4.
Compare the decision of the Constitutional Court of the Czech Republic, published under No. 78/2001 Sb.: “Even though the legal system of the Czech Republic is based on the dualism of public and private law, this division of laws into two large areas, proceeding from classical Roman law, cannot be treated as a dogma, but as taking account of modern tendencies of development in laws and also the laws of the European Communities. Private and public law are not separated by “the Great Wall of China” in the present. The elements of private and public law are blending more often and in a narrower way; they combine together mutually and intensively.”
- 5.
This concept is not used in legislation; it is used only in theory and sometimes in the reasoning of decisions of the Constitutional Court of the Czech Republic. The purpose of this concept is to underline the difference between constitutional acts and acts with a lower level of legal force.
- 6.
E.g. the rights of a performer to his or her artistic performance, the right of a producer of an audiovisual fixation, to his or her fixation, etc.
- 7.
Art. No. 10 of the Constitution of the Czech Republic.
- 8.
Parts Three through Five were repealed; this situation existed till the end of 2013.
- 9.
This is one of the most important changes between the Civil Code 1964 and the Civil Code 2012. The former defined only corporeal things, but the latter adopted the conception of incorporeal things well known in the Civil Code 1811.
- 10.
10 There are crucial differences in Czech law between the institution of co-ownership and community property of spouses. Firstly, community property can arise only between spouses. Secondly, the co-owner (co-ownership) is an owner of an abstract (“ideal”) share of the thing; however, each spouse (community property) is an owner of the whole thing (there is no share whether abstract or real), but s/he is restricted in his/her ownership by the same right of the other spouse.
- 11.
It should be mentioned that it is necessary to distinguish the concept of the “formation of obligations” from the concept of the “formation of a contract”. The latter means an offer and its acceptance, which together give rise to a contract; but this is only one of several ways to form or create an obligation.
- 12.
The decision was published under No. 116/2008 Sb.
- 13.
The number of the new Civil Code is not a coincidence. It should remind us of the year 1989, when the totalitarian regime collapsed. The number symbolizes the breakup with socialistic laws.
- 14.
This includes Bohemia, Moravia and Czech Silesia. In the Middle Ages, these areas were more or less extensive in comparison to the borders of the modern age Czechoslovakia.
- 15.
On 28 October 1918.
- 16.
The newly born state was composed of the historical regions of Bohemia, Moravia, Czech Silesia, Slovakia and the eastern part of Carpathian Ruthenia. This is the reason why that state was really multinational: apart from Czechs and Slovaks, there were other nations as well, namely Germans (the western part of the new state), Hungarians (the southern part of Slovakia), Ruthenians (the eastern part of the new state), Jews and Poles (Czech Silesia).
- 17.
This happened by so called “Reception Act” (No. 11/1918 Sb.); the resumption had, of course, some exceptions.
- 18.
In that part of Czechoslovakia, the main sources of private law were legal customs (which were written down in Tripartitum opus iuris consuetudinarii inlycti Regni Hungariae partiumque adnexarium by a land judge, Štefan Verböci, in 1514). In addition, there were also some acts regulating particular private law issues.
- 19.
Ian Adams, Political Ideology Today. Manchester: Manchester University Press, 1993, p. 201.
- 20.
To be more precise – how to regulate the area of law, which was called private law before WWII.
- 21.
Family law was even taken out of the Civil Code adopted in 1950. What is significant for totalitarian ideologies is that they focus first on the most private area of life inside family.
- 22.
Just a few examples for demonstration: the term “natural person” was replaced by the term “citizen”, the term “legal entity” by the term “socialist organisation” and even the part of the Civil Code entitled “Particular types of contracts” was replaced with the term “Services”. The last change is not only a change of terminology but a change of the whole concept. A citizen did not enter into a contract with a socialist organisation but was only provided with its services in order to satisfy his/her material needs.
- 23.
Eliáš, K. –Zuklínová, M. Principy a východiska pro nový kodex soukromého práva (Principles and Background of a New Code of Private Law, in Czech). Praha: Linde Praha, a. s., 2001, pp. 91–94.
- 24.
It is often said that Czechoslovakia was “split” into two new states. As was demonstrated above, this is a simplification and not precise, because both the Czech and the Slovak Republics existed as states inside the Czechoslovak federation; it was only the federal state that ceased to exist on 31 December 1992. This being so, the Czech and the Slovak Republics commenced their existence as sovereign states on 1 January 1993.
- 25.
For details with respect to the Hague Conventions see Pauknerová, M. Conflict of laws conventions and their reception – Czech Republic, in Jorge Sánchez Cordero (ed.), The Impact of Uniform Law in National Law. Limits and Possibilities, Instítuto de investigaciones jurídicas, México 2010, pp. 299–304.
- 26.
See Čepelka, Č. and Šturma, P. Mezinárodní právo veřejné (Public International Law, in Czech), (Prague: C.H. Beck, 2008), p. 199 with further references.
- 27.
For details see Pauknerová, M. International Conventions and Community Law: Harmony and Conflicts, in Nuovi strumenti del diritto internazionale privato. New instruments of private international law – Liber Fausto Pocar – Giuffrè Editore, Milano 2009, p. 793.
- 28.
For details see M. Pauknerová, Private International Law in the Czech Republic, International Encyclopaedia of Laws, 2nd ed., Kluwer Law International 2011.
- 29.
See in particular F. Korkisch, Das neue internationale Privatrecht der Tschechoslowakei, RabelsZ (1952): pp. 410–450, with further references.
- 30.
See in particular, Kučera, Z. Mezinárodní právo soukromé (Private international law, in Czech), 7 ed., Doplněk and Aleš Čeněk, Brno Plzeň 2009; see also Pauknerová, Private International Law, Czech Republic, p. 23 et seq., with further references.
- 31.
In comparison with the Hungarian and Polish civil codes, the Czech Code of 1964 seemed to be the most orthodox in the way it applied the principles of the new socialist law. The Polish and Hungarian civil codes, in the sphere of the law of obligations, were much more tolerant vis-à-vis private ownership and small business activities.
- 32.
One of the earliest changes made in the very beginning of the whole legal transformation process was abolishing such differentiation among the several forms of ownership. The Czech Constitution proclaimed the unity of property law, restored equality among different owners and introduced the principle of equal protection of property law, no matter who the owner is.
- 33.
“Person” was replaced with “participant or citizen”; “proper morals” were replaced by “the rules of socialist common life”; “obligation” by “service“, “legal entity” by “organisation”, etc.
- 34.
See the Constitutional Court’s Decision No. Pl. ÚS 83/06 of 12 March 2008 which touched directly, and in a significant manner, on the very conception of the new Labour Code.
- 35.
An exception is Sec. 3 of the new Act which stipulates that the Civil Code rules on associations are applicable to Business Corporations.
- 36.
The Dutch model seems more sophisticated in this context, as it tries to incorporate European consumer protection directives continuously and rigorously into the Dutch Civil Code in such a way that it does not concentrate all issues in one place but always amends relevant articles and paragraphs.
- 37.
In particular: Act No. 634/1992 Sb., the Consumer Protection Act; Act No. 59/1998 Sb., the Product Liability Act; Act No. 321/2001 Sb., the Consumer Credit Act; Act No. 145/2010 Sb., the General Safety Product Act.
- 38.
It is interesting, that there was an intensive international cooperation between Czechoslovakia and Poland during the preparatory works. As an outcome, laws with quite identical wording were adopted in both countries. See Józef Piątowski St. (red.), System prawa rodzinnego i opiekuńczego (The System of Family and Guardianship Law). Część 1. Wrocław: Zakład Narodowy im. Ossolińskich – Wydawnictwo, 1985, p. 8.
- 39.
In a broad sense of this word, as every kind of substitute for family care.
- 40.
Tutorship is understood here as an institution substituting for family care, where a tutor is put in the place of parents, as a person taking care for a child (but the tutor is not obliged to provide the care personally) and primarily to act as a legal representative of the child (instead of his or her parents). For details see Section 78 and subs. of the Family Act 1949.
- 41.
However, this was not surprising if we bear in mind that the Civil Code 1811 ought to be repealed in the next few months and the new Civil Code 1950 was not yet adopted by the time the Family Act 1949 was published.
- 42.
The husband and wife were considered equal in both their mutual relationship and in their common relationship towards their children. In other words, the ancient supremacy of father (patria potestas) was abolished.
- 43.
Act No. 234/1992 Sb. was adopted to demonstrate the rejection of a totalitarian attitude to family law; spouses became free to decide whether they wish to enter into marriage before the authority of the state or before the authority of a Church.
- 44.
A set of legal rules and duties of parents concerning the proper upbringing of a child, his or her legal representation and administration of the child’s property (Sec. 31 of Family Act 1963).
- 45.
Foster parents are obliged to take care of the child personally, but they are not legal representatives as tutors are.
- 46.
The mother is the woman, who gave birth to the child. Paternity is based on one of three legal presumptions.
- 47.
The institution of the tutor was explained above; the curator is established for a particular issue (e.g. for the representation of a child when dealing with rights or duties against his or her parents, for the administration of a child’s property instead of the parents, etc.).
- 48.
For example, the institution of the determination of paternity by the common consent of the mother and the man stating he is the father of the child is generally regulated by the Family Act 1963. The provisions of the Civil Code 1964 could be used in a case when one of the consenting parents was affected by a mental disorder at the moment of articulating his or her consent. This situation would rarely occur in practice, as the representative of a registering authority will refuse to record the consent when finding the parent in such a mental condition.
- 49.
As was mentioned above, this was not enacted in the Family Act 1963, but in the Civil Code 1964. In the Civil Code 2012 relevant provisions were moved from property rights into family law.
- 50.
The first draft of a new Civil Code existing for a very short time was introduced for discussion in 1992. The work on its articulated version ceased soon after the termination of the Czechoslovak Federation and the splitting of both republics into independent states. The second draft published in 1996 was based upon the conception of largely concentrated private law. With regard to governmental changes operating afterwards, there was no political will to support such a draft any longer.
- 51.
Prof. JUDr. Karel Eliáš, University of Western Bohemia in Pilsen, and Doc. JUDr. Michaela Zuklínová, Charles University in Prague.
- 52.
The so-called “First Czechoslovak Republic” was created in 1918 at the very end of the First World War after the disintegration of the former Austro-Hungarian Monarchy.
- 53.
The document, entitled the Principles of European Contract Law (PECL), was published by the Lando Commission established for contract law in 1995. The main aim of PECL has been to create the legal basis for any future European code of contract law; as such it served, to a certain extent, as an inspiration for the Draft Common Frame of Reference.
- 54.
The area of tort law is represented (in addition to non-contractual parts contained in the DCFR) by a more substantial document, namely the “Principles of European Tort Law” (PETL). These principles are valuable material in the field of tort “soft law” at two levels: first, they represent a typical picture of the European legal culture in tort law; second, the case-law of some European countries has determined that PETL serve as the reference basis for certain considerations in the reasoning of judgments. For more details on the role and significance of PETL for Czech tort law see Elischer, D.: Pojetí škody, resp. újmy v aktuálních dokumentech evropského deliktního “soft law” (Conception of loss/harm in the recent documents on European tort “soft law”), Právník, No. 4/2011, pp. 378–399.
- 55.
See Draft Common Frame of Reference (DCFR), prepared by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group) and edited by Christian von Bar, Eric Clive and Hans Schulte-Nölke: http://ec.europa.eu/justice/contract/files/european-private-law_en.pdf
- 56.
The Academy of European Private Lawyers (Gandolfi Group) was formed by a public act in Pavia in 1992 with the intention of preparing the draft of a “European Contract Code”. For more details see http://www.accademiagiusprivatistieuropei.it/
- 57.
For more details on the new institution of assignment of contract see Elischer, D: Cese smlouvy jako nový institut českého soukromého práva, několik úvah k obecné úpravě postoupení smlouvy (Assignment of contract as a new institution of Czech private law, several remarks on the general provisions related to assignment of contract). Aspi, Právní Fórum No 5/2007, pp. 162–172.
- 58.
See Elischer, D.: Koupě na zkoušku v mezinárodním srovnání: Návrat do civilního korpusu aneb východiska a možnosti českého zákonodárce de lege ferenda (Purchase on trial in international comparison: Comeback to the Civil Code or the resources and the potential of the Czech legislature de lege ferenda), Právní Fórum 6/2008, pp. 257–262.
- 59.
A succession contract as a bilateral legal act providing a possibility to establish a contractual relationship between the testator and any other person concerning the testator’s property is regulated in Sections 1582 et seq. of the Civil Code 2012.
- 60.
See Sec. 1542 et seq. of the Civil Code 2012.
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Elischer, D., Frinta, O., Pauknerová, M. (2013). Recodification of Private Law in the Czech Republic. In: Rivera, J. (eds) The Scope and Structure of Civil Codes. Ius Gentium: Comparative Perspectives on Law and Justice, vol 32. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7942-6_5
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