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The article deals with various aspects of multiple-office holding. Although the phenomenon is especially influential in connection with legislators, the text offers a critical synthesis of recent findings on multiple-office holding on any level of political decision-making, thus providing a general framework for scholarly discussion and further research. The paper first provides a definition of the concept of multiple-office holding, which has been heretofore lacking in the Czech context. Causes of multiple-office holding are then delineated and divided into the three categories of historical reverberations, systemic elements and individual incentives. Both the positive and negative impacts on a political system are discussed as well. Next, three approaches (direct, indirect, and autoregulatory) of dealing with the practice of multiple-office holding, which are employed by particular political systems, are distinguished. Then, the role of a multiple-office holding in the Czech political system is depicted. The final part of the paper discusses a specific controversy linked to the phenomenon and criticises the lack of proper debates and scientific analyses on the practice.
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Issue of reducing the public debt becomes more important regarding to developments in the word. Particular states subsequently try to incorporate restrictive regulations into their legal order to reclaim dangerous claims of recent years, when public debt has grown without control and executive power has got sort of used to manage deficit budget. Poland, which has had similar restrictive measures in its legal order for 15 years, could serve for Czech lawmakers as an Inspiration for searching a solution in the Czech Republic. First part of this article deals with Polish constitutional law and definition of the term of public funds. Main part is focused on reducing public debt on constitutional and legal level in Poland together with related issues.
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The following paper answers the question when and whether a domestic issuer of a financial instrument should disclose an information about a cyberattack against his system. The paper analyses a notification duty about insider information. The reasoning concludes that if certain requirements for the quality of insider information are met, the issuer has an obligation to inform the relevant public without delay about ongoing or completed cyberbattack.
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Nárok na prevod domény sa nateraz nedočkal rehabilitácie. Pre pripomenutie, NSČR odmietol v rozhodnutí globtour.cz (sp. zn. 23 Cdo 3407/2010) nárok na prevod domény ako formu výkonu odstraňovacieho nároku. European Information Society Institute (EISi) podalo v konaní pred USČR odborné podanie priateľa súdu, v ktorom argumentovalo, že prevod síce nie je formou výkonu odstraňovacieho nároku, ako správne tvrdí NSČR , ale je osobitným nárokom, ktorý možno analogicky kreovať.
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In the article author focuses on the progress of the imperative mandate in the First Czechoslovak Republic and tries to involve reasons that made it possible. In this context he mostly investigates influence of the previous Austrian legal regulations, activity of the Revolutionary National Assembly and the Election Court. He also analyses effect that principles of proportional representation and list of electors have on this institute.Author holds an opinion that it was not only statutes which established the imperative mandate but very important was also the way by which these statutes were practised. First of all, the roles of Election Court was indispensable, but postures of many politicians, lawyers and journalists to this thing had an immense influence too. The great deal of public was supporting this positive opinion as well. One of the most significant points were unfortunate matters arising from the facts that a construction of the First Czechoslovak Republic's Constitution stood closer to respectable ideals than to real life and that neighbouring countries, which were not democratic states, considerably enhanced dependence of members of parliaments on political parties.On the base of his reflections author persuades that imperative mandate was not solid, well-considered and desirable part of constitutional bases of the First Czechoslovak Republic and then situation which made it possible was very distinct from nowadays. For these reasons author also refuses argumentation of some present-day politicians who base their arguments about democratic character of imperative mandate on references to the First Czechoslovak Republic.
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The European arrest warrant caused constitutional problems in several member states of the EU because it confronts supranational integration with the traditional concept of state sovereignty in a special way. This essay shows how the Czech Constitutional Court solved this problem and managed to find a reliable balance between open statehood and the protection of the national constitutional identity. The Czech way of a “careful harmonization” is compared to the solutions of other EU member states and analyzed for its significance in the fields of the tension between the transfer of sovereignty and the preservation of sovereignty as well as of the future concept of nationality in Europe. In the end, the author states that Brno has brought the questions mentioned to a solution that is both appropriate at the present stage and fit for future challenges.
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The paper deals with the analysis of the valid legal status in the field of legal acts performed in electronic form. In addition to the current legislation in the Slovak Republic, we will find a comparison with the regulation of electronic signatures and trade in the EU, as well as a few remarks on the amendment of the UNCITRAL model laws for this area. The author tries to define and analyze the key problems of the current legislation and draw attention to the non-compliance of some provisions of the Slovak Act on Electronic Signatures with the requirements of the Directive. Although the modification of an electronic signature is the basis for the possibility of the creation of valid legal acts in electronic form, the question of the moment of such legal act appears from the point of view of time, as well as the recognition of data message as equivalent to a document in the traditional sense.
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The draft European Constitutional Treaty establishes the legal personality of the Union as a whole, including the area of the current II. and III. pillars. At the same time, it explicitly enshrines the precedence of European law over national law. The area of cooperation in criminal matters within the area of freedom, security and justice belongs, according to the regulation of Article 13 (2) of the European Constitutional Treaty, to the so-called shared competences. Criminal law and the right to punish are derived from sovereignty over a certain territory. The power to punish applies to the prosecution and trial of crimes committed in the territory of a sovereign, ie within its borders. Such a sovereign is traditionally the state.
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The right to asylum as a special right of a refugee cannot be explained exclusively from constitutional legal positions, although its external source is the Charter of Fundamental Rights and Freedoms, which is an integral part of the constitutional order of the Czech Republic. The doctrine of constitutional law cannot trace or conceive the threads of legal context if it does not know in detail the customary and contractual rules of international law. The individual right to asylum reflects the dynamic and inevitable coexistence of two legal systems. The right to asylum can thus be interpreted and applied only in a practical symbiosis of two relatively separate legal orders: national and international law. The present contribution is therefore based on a two-focal approach, so that the individual's right to asylum can be structurally analyzed.
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The establishing of the bicameral parliament was one of the most important compromises in the process of constitution's creation in 1920. The social democrats were strong critics of idea and reality of bicameralism; on the contrary, the agrarians and national democrats wanted strong second chamber to balancing the chamber of deputies.According to its constitutional status was the senate stronger than contemporary Czech Senate. But integral elections both chambers at the same time and identity of electoral systems were reasons of congruence of the Czechoslovak bicameralism: partisan composition of both chambers 1920-1938 was nearly the same. In additon, the political parties were very disciplined. Not only the senate, but also the chamber of deputies acted as rubber stamps of political leaders's decisions.
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The article deals with the topical worldwide problem of the cybersquatting of the domaine names regarding to the names of the cities. The article is based on the contemporary Czech law especially on the Civil Code and on the legal protection of the names of the cities by this Code. This protection has an absolut le gal nature erga omnes with some legal consequencies on the only secondary position of the domaine names of the cities.
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The development of modern technologies is inextricably linked to new means of privacy rights invasions. In recent years, many people have personally experienced one of them, the phenomenon of revenge porn (or more generally non-consensual pornography). Their intimate and/or sexual photographs or video records, which were either shared without their permission, or even taken without their knowledge, were distributed on the Internet. Since 2017, the threat has become even greater, due to the development of deepfake technology allowing to artificially create such recordings. Although it poses risks in different areas as well, it has so far predominantly spread in the area of illicitly created sexual re- cordings. In the future, almost anyone can find a pornographic video starring himself on the Internet, without him ever making one. Such eventuality naturally constitutes a significant interference with the right to privacy. This article addresses issues regarding the development of pornographic deepfakes and related legal aspects.
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Ve dnech 13. a 14. listopadu se v německém Hagenu konala mezinárodní konference, věnovaná výše uvedenému tématu, kterou pořádal - jako již jedenáctou v pořadí - Institut pro německé a evropské právo politických stran (Institut für Deutsches und Europäisches Parteienrecht). Samotnému jednání předcházelo společné zasedání kuratoria a vědecké rady tohoto institutu, kde předsedou kuratoria byl zvolen prof. D. Tsatsos a předsedou vědecké rady prof. K. Hesse.
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Establishment of the judicial council has been debated for decades in Czechia. However, we still miss a comprehensive understanding of the positions and arguments of key actors involved in judicial governance: judges, politicians and lawyers. This article fills this gap and maps the existing arguments in favour and against a judicial council. It poses three research questions: (1) Do elites support the establishment of a judicial council and how do they justify their position? (2) What form of judicial governance do they perceive as ideal? (3) What are their expectations from the judicial council? Judges, politicians and lawyers identify the same two core challenges of the current system: The ministry of justice lacks the vision and capacity to govern the courts, and thus it informally delegates majority of its competences on court presidents. Too strong court presidents in turn make the system fragmented and endanger internal independence of rank-and-file judges. Elites however disagree whether the establishment of a judicial council can solve these issues. Majority of judges support the judicial council and hope for the unification of judicial governance across the country. Some politicians are willing to accept a weak model of judicial council if the ministry of justice can still determine the contours of judicial governance. At the same time, politicians consider the current fragmented system of judicial governance as more resistant against the capture of the judiciary. Lawyers see judicial council as a risky model which might encapsulate the judiciary. The key solution of the current problems, according to lawyers, rests in the reform of legal education and enhancing the quality of the judicial decision-making. Unfortunately, the neither recent policy debates nor the pending bills on the Law on Courts and Judges have addressed the key challenges raised by our interviewees.
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This article deals with the issue of excessive contractual late payment interest. The author first takes into consideration the possible instruments the courts can use to reduce the excessive contractual late payment interest. These instruments are subsequently divided into two categories – those that aim at the content of the agreement and those aiming at the control of the proportionality of the amount of the claim. Further, the possibility of the use of the contemplated instruments for the excessive contractual late payment interest is analyzed. Using historical, partly foreign, but foremost functional comparation method, the text shows the similarities of the institutes of contractual penalty (concluded in a form corresponding with the contractual late payment interest) and contractual late payment interest. While the judge has the power to reduce disproportionately high contractual penalty according to § 2051 of the Civil Code, such instrument lacks with regards to the excessive contractual late payment interest. Hence, a conclusion about a value conflict is being further argued in detail. The conflict lies in a different treatment of contractual penalty in form corresponding with the late payment interest and the contractual late payment interest which can serve the same purpose. The value conflict is the basis for the conclusion about a legal gap which requires an analogous application of § 2051 of the Civil Code (or its teleological reduction). Last of all the text critically examines the latest practice of the Supreme Court related to the excessive contractual late payment interest.
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The article follows up on the monograph by H. Smekal, J. Benák et al. Extralegal Influences on the Decision-Making of the Czech Constitutional Court. Based on their findings, it discusses three questions significant for the legitimacy and authority of the Constitutional Court. The first one is the procedure of appointment of judges of the Constitutional Court and the role of the Senate. Here, the article presents a sceptical view of the possibility to implement certain suggestions for a change in the Senate’s approach. Secondly, the article poses the question, whether and to what extent should the Constitutional Court consider the impacts of its decision and whether it does so in practice. Thirdly, the article deals with the elaboration and adoption of plenary decisions and in connection with the recent criticism of this procedure from within the Court itself, the article makes suggestions for improvement.
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The review introduces the book to the reader, highlights limitations of its methodological approach based on interviews with Justices, and places the conclusions in a broader context. The authors have successfully managed to apply Dyevre’s model to the conditions of the Czech Constitutional Court and at the same time summarise everything that has been written about the decision-making processes of the Constitutional Court. This has set the stage for further research, which should take a different path than refining Dyevre’s model. The search for concrete examples of the influence of extra-legal influences or the correction of theoretical assumptions by quantitative methods is suggested.
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Empirical research on judicial decision-making faces many obstacles, especially in the Czech Republic. Therefore, publication of Extralegal Influences on the Decision-Making of the Czech Constitutional Court is an important step forward. The publication deserves credit for both its aim and its execution. However, future research should focus on a psychological perspective, e.g., by examining heuristics, cognitive closure, and cognitive styles. Such an endeavor is only possible if judges choose to participate. Thus, this paper also aims to introduce psychological research in judicial decision-making as a discipline that needs to be respectful towards participants and needs to develop a cooperative relationship with them.
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The article presents the reaction of the authors to other papers in this symposium. Paper deals with methodological issues and in dialogue with other papers develops mainly the topics of judicial appointment, collegiality and judges and media relations.
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