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Ius cogens czy ius dispositivum? Kilka uwag o charakterze norm prawnych na starożytnym Bliskim Wschodzie

Author(s): Lena Fijałkowska / Language(s): Polish Issue: 1/2016

Celem artykułu jest analiza charakteru i zakresu zastosowania norm prawnych na starożytnym Bliskim Wschodzie. W pierwszej kolejności omówione zostały królewskie akty normatywne, a w szczególności tak zwane kodeksy prawne oraz edykty mišaru, następnie zaś – normy prawa zwyczajowego. Analiza ta prowadzi do wniosku, że choć swoboda umów na starożytnym Bliskim Wschodzie była znacznie szersza niż dzisiaj, ograniczały ją imperatywne normy prawa zwyczajowego. The paper concerns the nature and scope of applicability of law in the ancient Middle East. It first discusses royal normative acts, especially the so-called codes of law and mišaru edicts, and proceeds to an analysis of customary law to conclude that while laws allowed parties a much greater freedom in shaping their legal relationships in the ancient Middle East law than they do today, such freedom was limited by imperative standards of customary norms.

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Poznámky k proceduře rozhodování pléna Ústavního soudu

Author(s): Vojtěch Šimíček / Language(s): Czech Issue: 3/1997

The article discusses the procedural aspects of decision-making by the plenary session of the Constitutional Court of the Czech Republic. It highlights the division of cases between the plenary session and smaller panels, emphasizing the importance of the plenary session in deciding the most serious cases, such as the annulment of laws and constitutional complaints. The article also addresses the quorum requirements and the challenges in interpreting legal provisions related to decision-making. It critiques the current practice of the Constitutional Court, suggesting that the existing procedures may not cover all potential scenarios and proposing possible improvements. The author argues for a consistent approach to decision-making, whether the outcome is to annul or uphold a law, and stresses the need for a qualified majority in significant cases. The discussion includes examples of past decisions and differing opinions among judges, illustrating the complexities and potential inconsistencies in the Court's practice. The article concludes by suggesting that legislative changes might be necessary to ensure clearer and more effective decision-making processes.

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Politické strany v řízení před Nejvyšším soudem

Author(s): Eliška Wagnerová / Language(s): Czech Issue: 3/1997

The document discusses the involvement of political parties in proceedings before the Supreme Court of the Czech Republic. It outlines the types of cases where political parties may appear, including appeals against registration refusals, dissolution or suspension of activities, and review of election decisions. The document highlights the legal norms applicable to these proceedings, emphasizing the mixed nature of the relevant laws, which contain both substantive and procedural elements. It also addresses the procedural specifics of these cases, such as the non-contentious nature of certain proceedings and the investigative principle applied. The document critiques the current legal framework, suggesting that it may not adequately reflect the unique nature of these proceedings and calling for potential reforms to better accommodate the procedural rights of political parties.

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Přípravná služba justičních čekatelů

Author(s): Milan Pelikán / Language(s): Czech Issue: 2/1997

The paper discusses the preparatory service for judicial trainees in the Czech Republic, outlining the requirements and procedures for becoming a judge. It details the three-year training program that judicial trainees must undergo, including practical assignments under experienced judges and theoretical studies. The document also covers the conditions for employment, the duties and responsibilities of judicial trainees, and the final judicial examination required to qualify as a judge. Additionally, it mentions the legal framework governing the preparatory service and the ethical obligations of judicial trainees.

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Účinný důkaz v americkém trestním procesu

Author(s): Alexander Nett / Language(s): Czech Issue: 4/1996

The present contribution deals with the approach of the American judical practice towards the questions of the proof effectiveness. The author refers to the fact that the American "fruit of poisonous tree" doctrine on the basis of which the judicial practice built the so-called rule of exclusion underwent a very contradictory evolution from the time of its rise up to the present. The substance of the problem consists in finding the optimal model of the solution of the questions concerning the proof effectiveness in criminal proceedings. In spite of the objections to the doctrine of the rule of exclusion the opinions prevail that claim its restriction, not its substitution. The contemporary approaches to the solution of the questions connected with the proof effectiveness are based on the demand for the criminality control and for the preservation of the legality of the criminal law. It is important not to put these demands in the contradictory relation, but to seek the common presuppositions for their realisation in the criminal proceedings which can also become the starting point or the solution of the problems associated with the proof effectiveness.

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K otázce ústavní ochrany společnosti a státu de lege lata a de lege ferenda

Author(s): Jan Filip / Language(s): Czech Issue: 4/1996

The article discusses the constitutional protection of society and the state in the Czech Republic, emphasizing the importance of the state's existence and functioning for individuals and society. It outlines the normative projection of the Czech Republic as a free, sovereign, and democratic state, based on respect for human rights and principles of civil society. The article examines the legal framework for protecting this normative state, including responses to deviations from the norm such as states of emergency, war, and other extraordinary situations. It highlights the absence of explicit provisions for extraordinary states in the current constitutional order and the need for legal instruments to ensure the state's normal functioning. Historical events like the disintegration of the Habsburg monarchy, the destruction of the state in 1938-1939, and changes in the political system in 1948 and 1989 are referenced. The article also discusses the role of constitutional law in defining rules of conduct during threats to the state's existence and democratic system. It calls for a systematic legal framework to address extraordinary situations and protect the state's fundamental conditions.

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Notářství dnes

Author(s): Alice Sedláková / Language(s): Czech Issue: 3/1996

The document discusses the role and functions of notaries in the Czech Republic, established under the Notarial Code No. 358/92. It highlights the transition from state notaries to private practice, emphasizing the importance of notarial acts in legal transactions, such as drafting public documents, verifying significant facts, and safekeeping documents and money. Notaries also act as court commissioners in inheritance proceedings. The document addresses the challenges and evolving practices in notarial work, including the definition and verification of public documents, the use of modern technology in document creation, and the legal implications of such advancements. It underscores the need for continuous professional discourse and adaptation to legislative changes to ensure the quality and reliability of notarial services.

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Postupy Evropské komise při ukládání pokut v případech porušení pravidel ochrany soutěže

Author(s): Tomáš Fiala / Language(s): Czech Issue: 2/1996

The Commission has power under Articles 15 and 16 of Regulation 17/62 to fine firms which have been guilty of offences under Articles 85 or 86 of the EEC Treaty. An individual firm may be fined as much as 1.000.000 ECU or 10% of its turnover in all products, worldwide, in the preceding year, whichever is the greate. In recent years the Commission has been imposing much heavier fines for obvious infringements of the competition rules such as dividing up the common market and price fixing. Many factors influence the Commission when deciding how large a fine to impose. These include the length and gravity of the infringement, the behaviour of the parties, the product market, profits they derive from the unlawful behaviour. Various issues may be relevant in mitigation, including the willingness with wich the parties agreed with the Commission to terminate the behaviour to which it objected. Under Article 172 of the EEC Treaty, the ECJ has unlimited jurisdiction to hear appeals against fining decisions. Payment of fines may be enforced in member States in the same way as domestic judgments. It is submitted that the Commission's fining policy needs to become more transparent. Senior Commission official suggested that the Commission should take inspiration from the U.S. experience and issue sentencing guidelines containing a transparent set of minimum tariffs for fines.

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Několik informací a poznámek k instituci ombudsmana pro místní správu ve Velké Británii

Author(s): Soňa Skulová / Language(s): Czech Issue: 2/1996

The institution of ombudsman is stili only being discussed and respectively proposed in the Czech Republic. The object of the paper is to offer certain amount of information and experience of application of one kind of the ombudsman institution - the Local Government Ombudsmen (LGO) in Great Britain and and in greater detail in England, which is represented by the Commission for Local Administration set up by Part III of the Local Government Act 1974, consisting of the Parliamentary Ombudsman and three Local Goverment Ombudsmen. The Commission's main objective, which is set out in each annual report, is the investigation of complaints of injustice arising from maladministration with a wiev to securing, where appropriate, both satisfactory redress for the complaint and better administration. The LGO are in a position to consider complaints against almost all types of local authorities, dealing with significant areas of local administration (the vast majority of investigations involve local councils). The LGO has, in general, the power to investigate, recommend correctvive action, and issue report. lf an LGO reports a finding that injustice has been caused to the complainant in consequence of maladministration, the local authority has a duty to consider the report and notify the ombudsman of the action taken, or what action is proposed to be taken. Not all authorities, however, are prepared to accept the LGO's decision. lf an authority does not satisfactory respond to a further report, the ambudsman may require the authority to publish a statement in a local newspaper, specifying the recommended action they have not taken, and, if they wish, their reasons for not complying with the LGO's reccommendation. The paper tries to fomulate in conclusion that the institute of local ombudsman is an organic part of the system of democratic and effective public administration and the state under the Rule of Law and that time-tested experience in this field should not be neglected.

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Úmluva o občanskoprávních aspektech mezinárodních únosů dětí

Author(s): Alena Prokopová / Language(s): Czech Issue: 2/1996

The article discusses the **Hague Convention on the Civil Aspects of International Child Abduction**, highlighting its significance and the need for its ratification by the Czech Republic. The Convention, adopted in 1980 and currently binding in 43 countries, aims to address the issue of international child abductions by providing legal mechanisms for the return of abducted children and ensuring cooperation between states. Despite being signed by Czechoslovakia in 1992, the Convention has not yet been ratified by the Czech Republic, leaving a gap in the legal framework for addressing such cases. The article emphasizes the importance of the Convention in protecting the best interests of the child and facilitating the legal return of abducted children to their rightful guardians. It also outlines the objectives of the Convention, including expediting legal proceedings, ensuring the child's safety, and promoting international cooperation. The author argues that ratifying the Convention would not only resolve the issue of child abductions but also strengthen the legal position of Czech citizens abroad.

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Novelizace českého trestního práva

Author(s): Věra Kalvodová,Jana Zezulová / Language(s): Czech Issue: 2/1996

This presentation deals with some of the most important changes in Czech criminal law during the last six years. The first part of the article contains the information concerning amendments of Penal Code, especially some questions of abolition of death penalty in 1990, introduction of life imprisonment, new conception of criminal responsibility in the case of the culpable insanity, alternative sanctions and criminal organizations. The second part deals with amendments of Code od Penal Procedure. In this presentation it is not possible to cover the entire changes, however, we would like to focus on the diversification of standard of proceeding which have already started to influence Czech criminal proceeding. Nowadays the strategy of diversion in considered a part of what is know as "the four D programme". These are diversion, decriminalization, deinstitutionalisation and due process. These are alternative proceeding available whereby their informal execution is more appropriate than the implementation of a classic criminal trial which results in a verdict of guilt and subsequent sentencing.

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Klinická část právnického studia ve Spojených státech

Author(s): Michael P. Seng / Language(s): Czech Issue: 2/1996

The document discusses the evolution of legal education in the United States, highlighting the transition from traditional methods to more practical approaches. Initially, law studies were dominated by the case method, developed at Harvard in the 19th century, where students read court decisions and were tested on them. Over time, the need for practical skills led to the establishment of legal clinics, where students could gain hands-on experience by representing real clients under supervision. These clinics became essential for preparing students for legal practice, especially in addressing social issues and providing legal aid to the underprivileged. Despite initial skepticism from courts and traditional law faculties, legal clinics proved their value by offering high-quality representation and practical training. The document also notes the financial challenges of running these clinics and the importance of integrating clinical work with classroom learning to enhance students' education.

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Zákon o soudní rehabilitaci č. 82/1968 Sb. jako výraz právní diskontinuity vývoje v 50. a 60. letech

Author(s): Jaromír Císař / Language(s): Czech Issue: 1/1996

The article discusses the Law on Judicial Rehabilitation No. 82/1968 Sb. in Czechoslovakia, which aimed to address injustices from the 1950s political trials. It highlights the Prague Spring as a pivotal moment for legal reforms, leading to the creation of the law. The law provided a framework for rehabilitating unjustly convicted individuals, emphasizing the need for a formal legal process. It also addressed the limitations of previous rehabilitation efforts and the political compromises involved. The article details the procedures and criteria for rehabilitation, including the establishment of special senates and the role of the Supreme Court. It also mentions the financial implications and the partial restitution of property. The law's impact was significant but limited by political and legal constraints of the time.

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Un nou caz de TVA pierdut de Romania la Curtea de Justitie a Uniunii Europene - C-532/22 Westside Unicat

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Un nou caz de TVA pierdut de Romania la Curtea de Justitie a Uniunii Europene - C-532/22 Westside Unicat

Author(s): Cristian Velcu,Teodora Rusu / Language(s): Romanian Issue: 6/2023

With this negative decision, the ANAF score in VAT cases resolved by the Court of Justice of the European Union is of only approximately 10% won cases (although the percentage of wins in cases resolved by Romanian courts is of 60-70% and the percentage of wins as a result of resolving appeals by the Ministry of Finance is of approximately 90%). In case C-532/22 Westside Unicat, although the subject is of limited applicability (the VAT treatment applicable to video chat services), the approach of the tax authorities is relevant. Although it is legal for ANAF to have an unitary approach in the application of fiscal treatment for similar factual situations, the assumed opinion was erroneous from the beginning. All the legal and factual arguments had indicated a different VAT treatment (including the fact that the Ministry of Finance had consulted the EU VAT Committee on this subject and the answer received was unequivocal). The court decision is mandatory for all the open litigations on this topic in Romania.

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Katharina Stengel: Die Überlebenden vor Gericht. Auschwitz-Häftlinge als Zeugen in NS-Prozessen (1950–1976)

Author(s): Jasmin Söhner / Language(s): German Issue: 2/2024

Review of Katharina Stengel: Die Überlebenden vor Gericht. Auschwitz-Häftlinge als Zeugen in NS-Prozessen (1950–1976). (Schriften des Dubnow-Instituts, Bd. 34.) Vandenhoeck & Ruprecht. Göttingen 2022. 548 S. ISBN 978-3-525-31741-9. (€ 70,–.)

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ОТНОВО ОТНОСНО РАЗПРОСТИРАНЕТО НА ИПОТЕКАТА ВЪРХУ ПРИРАЩЕНИЯ: ОПИТ ВЪРХУ ТЪЛКУВАТЕЛНИТЕ МЕТОДИ В ПРАВОТО

Author(s): Andrey Georgiev / Language(s): Bulgarian Issue: 1/2024

The article examines the development of the jurisprudence of the Bulgarian Supreme Court of Cassation on the issue whether a mortgage (lien) registered on a landplot can extend its effect to buildings built in the same plot after the registration of the mortgage deed. The gradual development of the interpretation of potentially conflicting provisions - art. 170 and 175 of the 1950 Obligations and Contracts Act - has been traced to clarify why the final conclusion that the mortgage lien extends to all buildings constructed in the landplot, for which the mortgage is registered, after the latter's registration. The author presents the thesis that this approach is an evolutionary development of the rules of use of interpretive methods in Bulgarian law, introducing the interpretation in accordance with basic legal principles as the main and preferred interpretive method. A breif comparison with developments in Roman law is also provided.

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KOLEKTIVNA ILI INDIVIDUALNA KRIVICA I ŠTA NAKON ZLOČINA?

Author(s): Bernard Harbaš / Language(s): Bosnian Issue: 4/2024

The paper deals with Hannah Arendt's attitude towards the concepts of collective and individual guilt with a special emphasis on her understanding of the discontinuation of criminal practice. The basic theoretical premise of Arendt's philosophy consists in the critique of work based on necessity and unfreedom. In contrast to work and production as non-free activities, she emphasizes action as a form of free activity that consists of communication between different but equal individuals. For Arendt, work and production are inherent in totalitarian political systems by their very nature. The basis of the totalitarian regime is automated and bureaucratic action, which is best demonstrated in the unquestioning execution of orders and respect for hierarchy. It identifies totalitarian projects with the evolutionary laws of nature, according to which the means is violence whereas the goal is survival of the fittest. Arendt attributes this type of relationship, characterized by the "absence of thought", to every criminal enterprise, such as mass murders, camps. This inability to criticize can be attributed to the individual or individuals, but not to the collective. For Arendt, the term collective guilt is a skillful concealment of individual responsibility and guilt.

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Správní žaloby nejvyššího státního zástupce – ohlédnutí po více než dvaceti letech

Author(s): Břetislav Martínek / Language(s): Czech Issue: 3/2024

The paper deals with the application practice of the Prosecutor General in the area of his special standing under Section 66(2) of the Administrative Procedure Code and related case law of administrative courts. The analysis presents an overall view of individual cases and their comprehensive summary. Among other things, it subsequently shows that, with the exception of the area of construction and environmental law, there are significant differences in both the number and the areas of actions brought to protect the public interest from year to year. The results of the research show that the vast majority of these actions are aimed at quashing potentially illegal decisions in the areas of traffic offences, nostrification of foreign titles and photovoltaic plant licensing – very narrow areas of administrative law in which the Prosecutor General has intervened to overturn illegal decisions issued in a large number of similar cases. The assessment of the merits of these actions has undergone a significant development over the period of the existence of this provision of the Administrative Procedure Code, caused not by a change in the statutory regulation, but by the case law of the administrative courts and subsequently the Constitutional Court. The author of the article criticizes these conclusions. However, the forthcoming amendment to the Administrative Procedure Code envisages a variant of the amendment to the said provision, which would probably overcome the referred non-conceptual effects of this case law and would allow the courts to review the active legal standing of the Prosecutor General more widely.

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The Disappearance of a Natural Person Who Is a Sole Proprietor (Self-Employed): Considerations under the Polish and Slovak Law

Author(s): Alexandra Löwy,Karin Rakova,Paweł Lewandowski / Language(s): English Issue: 1/2024

The disappearance of a natural person, especially when he or she is also a sole proprietor of a business, causes legal problems. Such situations are not directly regulated by legal acts, i.e., the legislators do not refer to the impact and consequences of the disappearance on the performed business activity. Meanwhile, the fact that a sole proprietor goes missing may have a negative impact on his or her situation, including the content of the obligations binding on him or her. This paper discusses how the relatives, in particular the spouse of the missing person, may behave in such circumstances. The considerations carried out concern Polish law and Slovak law, as there is no specific regulation of the declaration of missing person who is a sole proprietor introduced on the model of foreign regulations, the article places emphasis on the comparison of both selected regulations. The conclusion indicated that until the missing person is recognised as dead, family members or other relatives do not have any competence to take any action on behalf of the missing sole proprietorship circumstances, other entities may operate, i.e., attorney-in-fact, proxy, according to Polish law custodian established pursuant to Art. 184 of the Family Code, the custodian established pursuant to Art. 144 of the Code of Contentious Civil Procedure, or prosecutor. Similarly, under the Slovak law, until the missing person is declared dead, a guardian, or a representative appointed by the court pursuant to Section 68 of the Civil Procedure Code, acts for such person.

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Electronic Monitoring Is Not the Only Problem Here: The Challenges of House Arrest Application Practice in the Czech Republic

Author(s): Ivo Polanský / Language(s): English Issue: 1/2024

Over the past 25 years, few alternative sanctions have received as much attention as electronically monitored house arrest. In the view of relatively dynamic development of electronic surveillance technologies and related ethical and legal issues at stake, this interest continues to this day. In the Czech Republic, electronically monitored house arrest was introduced in 2010. Somewhat oddly, the electronic surveillance system had not been implemented at the time. Yet, legislators and sanctions policy makers placed high hopes in this form of punishment. In particular, it was expected to significantly help combat the relentless hypertrophy of the prison population. But the expectations of sanction policy makers were not met due to the reluctance of the courts to impose house arrest. This had remained unchanged over the years, and opinions had begun to emerge that the state's failure to introduce electronic monitoring was primarily to blame. In 2019, electronic monitoring was eventually implemented, but the number of sentences imposed still did not increase. If the legislature's sanctions policy is not translated into practice, its aims cannot be achieved. For this to happen, it is essential that house arrest becomes more prevalent in the structure of sentences imposed. Increased application rates will not happen spontaneously; certain steps need to be taken to address the reasons for the current state of affairs and to mitigate factors that negatively affect application practice. For this purpose, such causes and negative factors must first be identified. This paper therefore examines the importance of electronic monitoring in terms of the application practice of house arrest in the Czech Republic, and the main reasons for not imposing house arrest. Building on these findings, it offers suggestions that would contribute to more frequent imposition of house arrest in appropriate cases.

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