organisational remarks contents of the subject course of the subject obligatory literature: pp...

ORGANISATIONAL REMARKS

•contents of the subject

•course of the subject

•obligatory literature: pp presentation

single legal norms

http://obcanskyzakonik.justice.cz/images/pdf/Civil-Code.pdf

http://obcanskyzakonik.justice.cz/images/pdf/Business-Corporations-Act.pdf

• conditions to obtain a credit

• conditions to obtain a mark (grade)

http://obcanskyzakonik.justice.cz/images/pdf/Civil-Code.pdf

http://obcanskyzakonik.justice.cz/images/pdf/Business-Corporations-Act.pdf

CONDITIONS TO GET A CREDIT

subdivision and characteristics

• three parts: 1) description and analysis of the legal institute in the legal order of Czech Republic 2) comparison with a selected foreign legislation 3) professional experience (examples from jurisprudence)

• lenght: 20-30 min, 8-12 slides (summary for the lecturer, send in at least 2-3 days before the presentation of the essay on [email protected])

• laws: Act Nr. 89/2012, Civil Code Act Nr. 90/2012 Sb., Act on Business Corporations Act Nr. 99/1963 Sb., Civil Procedural Code

• form: power point, independent presentation

ESSAY THEMES I.

1. legal personality and capacity of natural persons

2. formation, dissolution and types of juridical persons

(legal entities)

3. concept of limitation of actions and lapse of claim

4. formation and dissolution of marriage

5. community property of spouses: its formation,

dissolution, content, settlement and distribution

6. ownership: original, derivative acquisition of pro-

perty, restraints, protection of rights in property

ESSAY THEMES II.7. ownership: land register (cadastre): purpose, kinds of records in the register, cadastral proceedings8. common property (joint tenancy): formation, dissolution, mutual settlement and distribution, co-owner ship of residential units9. possession and servitudes: formation, dissolution, content, prescription, kinds of servitudes, protection10. law of inheritance: legal succession, testamentary succession, probate proceedings11. liability for damage: components, kinds of compensation of damages, special liability for damage12. formation, change, securement and dissolutions of obligations

ESSAY THEMES III.13. lease contract: formation, dissolution, notice of termination of a lease14. judicial power in Czech Republic: system of courts

(judiciary), jurisdiction, subject-matter jurisdiction, local jurisdiction

15. civil proceedings: civil action, evidence in civil proceedings, regular, extraordinary remedial measures16. concept of enterprise, enterpreneur, corporate name (firm), registered capital, member´s stake in the ownership of a company17. personal and mixed corporations: unlimited liability company, limited partnership company18. stock corporations: limited liability company, stock corporation (public limited company)

ESSAY THEMES IV.

19.Sale contract: formation, content, dissolution20.Parenthood, adoption, alimony21.Lien: formation, content, dissolution22.Contract of donation: formation, content, dissolution23.Regulation of economic competition, unfair competition

CONCEPT OF LAW

• phenomenon of law

• legal system in the framework of other normative systems

• legal order vs. moral order

• legal order vs. rules of decent behaviour

• classification of law: subjective vs. objective law, material vs. procedural law, private vs. public law, national vs. international law, natural vs. positive law

CLASSIFICATION OF LAW I.

• subjective law = legal claim• objective law = written, valid and operating law• material law = law regulating legal relationships

in the single legal branches• procedural law= law regulating the course of procedure before courts or administrative authorities• national law = law operating on the state´s territory as well as on the extraterritorial places• international public law: law operating between states and some supranational organisations

CLASSIFICATION OF LAW II.

• private law = law operating between subjects of private law, equal relationship, disposition principle• public law = law operating between the state´s authorities and the subjects of private law, subordinate relationship, principle ex offo• positive law = written, valid, formally interpreted law• natural law = often unwritten law, referring to basic human values, rights, having roots in the christian view of man

CONCEPT OF PRIVATE LAW

• one of the branches of the legal system• roots in the Roman law• private law versus public law• directory (no obligatory force) versus mandatory (imperative) rules• rules based on the contractual autonomous will of the parties• subsidiary rules versus particular rules• legal regulation of the private law till 2013, new legal regulation from 2014

DIVISION OF PRIVATE LAW1. Civil substantive law

- legal framework up to 31.12.2013: Civil Code (Act Nr. 40/1964) + other particular laws: Commercial Code (Act. Nr. 513/1991 Sb.), Family Code (Act Nr. 94/1963 Sb.), Flats (appartments) Ownership Code (Act Nr. 72/1994 Sb.)

- legal framework from 1.1.2014:new Civil Code (Act Nr. 89/2012 Sb.) + Commercial Corporation Code (Act Nr. 90/2012 Sb.) + International Public Code (Act. Nr. 91/2012)

2. Civil procedural law- Civil Procedure Code (Act Nr. 99/1963 Sb.)

SOURCES OF PRIVATE LAW

• Constitutional Laws (esp. Chart of Human Rights and Freedoms)

• International Laws(incl. European Law: regulations, directions)

• Laws - Civil Code (Act Nr. 89/2012)- Civil Procedural Code (Act Nr. 99/1963 Sb.)- Commercial Corporation Code (Act Nr. 90/2012 Sb.)

- International Private Law Code (Act Nr. 91/2012Sb.)

• Subordinate based on Law regulation• Judgements of the Constitutional Court• Legal Principles (see § 3 NCC)

CIVIL RELATIONSHIP AND ITS COMPONENTS

1. who: subject of civil relationship- natural persons- juridical persons

2. what: object of civil relationship- tangible things vs. intangible things - personal chatttels (movable things) vs. real chattels (real estates)

3. what about: contents of civil relationship- rights- duties

4. by virtue of what: legal facts- legal acts- legal events- illegal acts- illegal state

WHO: SUBJECT OF CIVIL RELATIONSHIP

• natural persons vs. juridical persons (legal entities)- definition of juridical person (§ 20 NOZ): organized entity with legal personality (by law or acknowledged by law)

- juridical persons according to the new Civil code: - corporations (§ 210, community of persons) - foundations (§ 303, property assigned for a certain purpose)- institutes (§ 402, assigned to run socially or economically valuable acitivities)- juridical persons according to other legislation (for examples municipalities, regions)

• legal personality of subjects of law (capacity to possess rights)

• legal capacity of subjects of law (capacity to acquire rights)

LEGAL PERSONALITY AND LEGAL CAPACITY OF JURIDICAL PERSONS (LEGAL ENTITIES)

• legal personality and legal capacity from establishment till the dissolution of the juridical person (legal entities)

• two phase formation as well as dissolution (private law phase, public law phase)

• foundation of legal persons, formationof legal persons by operation of law, by decision of court or administrative authority

• formation on basis of registration in public register• liquidation of the juridical person before its dissolution

• dissolution by expungement from the public register

LEGAL PERSONALITY OF NATURAL PERSONS

- concept of legal personality: capacity to have, possess rights and duties in the framework of the legal order (§ 15 NOZ)

- inalienable, innate rights recognizable by reason and feeling (§ 19)

- from birth to death (§ 23 an.)- legal presumption: the child is presumed to be born alive- also nasciturus, if it corresponds with the interests of the child

- proceedings to declare sb. missing (§ 66 an.)- proceedings to declare a missing person dead (§ 71 an.)- time-limits of three, five, seven years to declare sb. dead

LEGAL CAPACITY OF NATURAL PERSONS

• current legal regulation of legal capacity of natural persons

- in full extent by reaching majority, legal age (18 years)

- partially even before reaching majority

- in full extent before reaching majority only on basis of adjudgement of legal capacity (min. age: 16 years)

- legal capability to work (15 years)

- criminal capacity (15 years)

- only limitation, not deprivation of legal capacity

- only within the boundaries of mental disease

- max. for three years, afterwards repeated court decision

WHAT: OBJECT OF CIVIL RELATIONSHIP

• tangible versus intangible things• movable things (personal chatttels) vs. real estates (real

chattels)• what is not to be regarded as thing: natural persons, human

body and its components, animate creatures• what is allowed to be only in property of the state: mineral

resources, public law property• what is allowed to be personal property only in a restricted

manner: weapons, narcotic substances• concept of real estates: land (sites) + subterranean structures,

buildings are part of the site• specific things: electricity, flats, non-residential facilities,

enterprices• concept of appurtenance of things and component of things

BY VIRTUE OF WHAT: LEGAL FACTS

• legal actions: legal acts, legal decisions• legal acts:

- unilateral acts

- bilateral unilaterally binding acts

- bilateral bilaterally binding acts

- multilateral acts

• legal decisions: declaratory vs. constitutional decisions

• legal events: - birth, death

- passage of time

- limitation of action

• Illegal acts• Illegal states

LIABILITY FOR ILLEGAL ACTS

• types of legal liability- primary liability vs. secondary liability- absolute liability, without fault- personal liability based on fault- general liability vs. contractual liability- civil liability vs. crimininal liability- product liability vs. liability due to default

• types of illegal acts- torts (civil delicts)- administrative infraction- administrative delicts- disciplinary transgressions- criminal acts (minor offences, crimes)

LIMITATION OF ACTION vs. LAPSE OF CLAIM

• concept of limitation of actions and its effect on the right and claim pleading the limitations

• concept of lapse of claim and its effect on the right and claim pleading the limitations

• basic limitation periods:- common limitation period of 3 years

- the possibility to negotiote shorter or longer limitation period, minimum 1 year, maximum 15 years, not negotiable in disadvantage of the weaker contractual part

• special limitation periods:- right of compensation for damages and unjust enrichment 10 years- in case of intentionally caused damage or enrichment 15 years- in case of judicially adjudicated rights and rights recognized in written form 10 years- rights from preliminary contracts 1 year

POSSESSION + LIEN

• concept of possession: - factual state protected by means of law- possession of things (corporalis possessio) + will to own the thing (animus possidendi)- lawful possession (in good faith) vs. unlawful possession (in bad faith)- posssession of things vs. possession of rights- possession is presumed to be lawful, in good faith and genuine- action for the protection of possession against dispossession

• prescription: - concept of prescription- prescriptive period in movable things and real estates (3 years vs. 10 years)

• lien (detention):- concept of lien (only in case of movable things)- unlawful detention (violent or deceitful lien)- realisation of a detained thing (in public auction, often in bazaar)

CONCEPT OF RIGHTS IN PROPERTY

• concept of rights in a thing (absolutele rights, towards all persons)

• kinds of rights in a thing (rights in property; rights in a thing of another: easements, servitudes, mortgage law)

• concept of right in property (unlimited legal dominion over a thing – dominium, elasticity of

ownership)

• powers of the owner:

- power to hold, possess a thing (ius possidendi)- power to dispose of a thing (ius disponendi)- power to use a thing (ius utendi)- power to enjoy, use the fruits of a thing (ius fruendi)- power to alienate a thing (ius alienandi)- power to destroy a thing (ius destruendi)

ACQUISITION OF OWNERSHIP OF PROPERTY

• kinds of acquisition of property of : - original acquisition of title: passage of ownership- derivative acquisition of title: assignment, transfer of ownership- two phases transfer of property: legal title, legal mode of acquiring a title

• original acquisition of title of ownership: - prescription (prescriptive periods)- making, producing of a thing - accesion, accretion (natural fruits, civil fruits)- by law (for example in case of restitutions)- by legal succession (according to groups of heirs)- by judicial decison (expropriation, compulsary transfer)- appropriation (movable derelict)

• derivative acquisition of title of ownership:- testamentary succession- contract of sale (sales contract)- contract of donation- contract of barter

PROTECTION AND LIMITATION OFRIGHT IN PROPERTY

• protection of right in property:- protection by self-help- protection by preliminary ruling, measures- judicial protection: - action for the recovery of unlawful seized property- action for eviction from a flat, garage- action to repel a claim- action to determine the title to property

• limitation of right in property:- prohibition of misappropriation- crime of misuse of property- legal servitutes (right to access the own property)- limitations by administrative decisions- prohibition of immissions (for ex. prohibition to commit nuisance to neighbours by noisiness)

COMMON PROPERTY - JOINT TENANCY

- concept of common property, joint tenancy- ways of acquisition of common property, joint tenancy

- share in common property, co-owner´s share- majority vote in the relation between joint tenants- possibility of a judicial settlement of litigation between joint tenants - pre-emptive right of joint tenants (in a lapse period of six month)

- termination and settlement of common property- fair partition of common property- compulsory transfer of property for compensation- realization and distribution of proceeds from property

FORMATION OF MARRIAGE

- wedding on basis of a free and affirmative declaration of will of man and woman

- publicly and solemnely in attendance of two witnesses

- civil marriage: in front of an administrative authority

- religious marriage: in front of an ecclesiastical authority

- other forms of wedding: in front of a commander of a vessel, airplane, an ambassador

- legal consequences of a marriage: if marriage was contracted as civil marriage, has following religious ceremony no legal consequence; in case marriage was contracted as religious marriage, is a following civil wedding prohibited

- diriment impediments (obstacles to contraction of marriage): minority age (exceptionally at the age of 16 in case of adjudgement), limitation of legal capacity, already existing marriage or registered partnership, close family relationship

- nullification of marriage: if contracted despite of existence of diriment impediments

COMMUNITY PROPERTY OF SPOUSES

- formation of community property of spouses

- subject of community property of spouses: property and obligations

- exceptions of community property of spouses:

- things serving to the personal need of one spouse- things acquired by donations- things acquired by succession- things acquired as compensation for other than proprietary harm- things acquired for things in personal property

- contractual modifications of community property of spouses

- dissolution of community property of spouses

- settlement of community property of spouses- on basis of agreement between former spouses- by decision of court- by claim of legal presumption (of agreed settlement)

DISSOLUTION OF MARRIAGE

• dissolution of marriage by divorce

- in case the spouses have common minor children, the marriage cannot be divorced until a court has settled the relationship between the spouses and their minor children

- divorce without agreement between spouses: with determination of causes of breakdown of marriage

- divorce with obstacles: even if a marriage is broken down it cannot be divorced, if it would be in contrast to the interests of the children or the interest of the spouse who did not cause the breakdown of the marriage and who would himself suffer a serious damage

- divorce based on agreement: both spouses agree on the divorce; the court does not examine the causes of the breakdown of their marriage; conditions: the marriage lasted at least one year and the family community of the spouses does not exist since at least six months; the spouses have signed a contract for distribution of their property as well as a contract concerning their rights of

housing, possibly also their rights of maintenance

LAW OF INHERITANCE, SUCCESSION

• general provisions:

- the right to inherit begins by the death of the deceased person, testator

- competence to make testamentary disposition: even a minor who has reached the age of 15 years, but only in form of an officicial document (notarial deed)

- inheritance may be acquired under an inheritance agreement, testament or by operation of law as well as by combination of the inheritance titles

- in case a testamentary heir does not acquire under an inheritance agreement or testament, his place will be taken by legal heirs acquiring heritage by operation of law

- heritage, which wasn´t acquired by any individual competent to inherit, passes down by legal succession to the state in the form of escheat

- the heir has the right to refuse the inheritance, but only within a period of 1 month, in case he lives abroad of 3 months after he was informed by the court about his right to refuse the inheritance; in case he refuses the inheritance, he is regarded as incompetent to inherit

- by expiration of the period when a refusal of inheritance is possible, the right to refuse the inheritance expires; in case an heir refuses the inheritance under conditions, reservations or partially, his refusal is invalid; a declaration of refusal of inheritance is irrevocable

- an heir who did not refuse the inheritance, has the right to renounce the right to inherit; or waive inheritance for the benefit of other heirs

UNWORTHINESS TO INHERIT AND DISINHERITANCE

• unworthiness to inherit

- unworth to inherit is a person who commited a wilful crime against the deceased person, testator or his relatives or a condemnable deed against the deceased person´s last will

- unlawful coercision to the writing of a will- falsification or destruction of testament

• unpretermitted, statutory heir

- children of the deceased person and their descendants- a statutory minor heir has to acquire at least ¾ of his heir´s share- a statutory adult heir has to acquire at least ¼ of his heir´s share

• disinheritance

- a testator has the the right to disinherit his statutory heir, if he - in contrast to good morals does not render him assistance in disease and old age - does not manifest him true interest, which he should manifest to him - was sentenced for an intentional crime to imprisonment for a term of at least one year - conducts permanently an unrestrained life

SUCCESSION ON BASIS OF AN INHERITANCE AGREEMENT TESTAMENTARY SUCCESSION

• succession on basis of an inheritance agreement: - a contract made between the testator and the heir (inheritor, successor)- in the form of an official document (notarial deed)- maximum ¾ of the decedent´s estate

• testamentary succession: - holographic will, testament- alographic will, testament (with testator´s own signature)- alographic will, testament (without testator´s own signature)- notarial will, testament- testament with certain concessions in respect to its format: oral testament, testament recorded by the community mayor, testament recorded by the commander of a ship, a plane- testament and heir´s shares

INTESTATE, LEGAL SUCCESSIONSETTLEMENT OF THE INHERITANCE

• intestate,legal succession: - 1. group of heirs: decedent´s children and husband; in equal shares; in case decedent´s children fail to acquire, the children´s children acquire

- 2. group of heirs: decedent´s husband, his parents; persons living together with the deceased person for min. one year before his death was maintained by the decedent or was caring for him; husband acquires at least a ½ of the decedent´s estate

- 3. group of heirs: decedent´s siblings; persons living together with the deceased person (as in the 2. group of heirs)

- 4. group of heirs: decedent´s grandparents

- 5. group of heirs: grandparents of decedent´s parents

- 6. group of heirs: children of decendent´s siblings children; children of grandparents

• settlement of the inheritance: inheritance agreement, confirmation of acquisition of inheritance by one heir; action to determine the true heir

GENERAL PROVISIONS OF PROCEEDINGS I.

• system of courts in Czech republic- District Courts (86)- Regional Courts (8)- High Courts (2)- Supreme Court (1)- Supreme Administrative Court (1)

• apart from the judiciary: Constitutional Court (1) (abstract, specific and preliminary control of constitutionality)

• jurisdiction of the courts: - civil litigations- labour litigations- administrative law litigations- criminal proceedings

• subject-matter jurisdiction

• territorial jurisdiction

GENERAL PROVISIONS OF PROCEEDINGS II.

1. Civil proceedings- Act Nr. 99/1963 Sb., Civil Procedure Code; disposition principle

- subject-matter jurisidiction- general rule: District Courts

- special jurisdiction: Regional Courts (some matters of intellectual property, commercial disputes between statutory organs and members of commercial corporations etc.)

- territorial jurisdiction- general rule: the court of the site of the permanent residence of the defendant

the court of the site of the principle office of a corporation

- special jurisdiction: matrimonial matters, real estates matters etc.

- action and its elements: participants in proceedings, contents of the action, demand of relief

- course of the hearing: opening of the trial, course of evidence, concentration, final decision, judgement of the court

- evidence: testimony, documentary evidence, expertises, site examination etc.

- types of judicial decisions: resolution of court, judgement of court, judgement by default, judgement of recognition, compulsory payment order

- regular and exrraordinary remedial measures

- regular remedial measures: appeal against judgement and resolution (15 days) protest against judicial order (15 days)

- extraordinary remedial measures: appellate review (in two months),reopening of the case (in case of new evidence)

GENERAL PROVISIONS OF PROCEEDINGS III.

2. Administrative proceedings- Act Nr. 500/2004 Sb., Administrative Proceedure Code- administrative proceedings- administrative act and its judicial review

3. Judicial Administrative Proceedings- Act Nr. 150/2002 Sb., Judicial Administrative Procedure Code- judicial review of adminitrative acts- administrative action in front of Regional Courts (2 months)- cassation complaint in front of Supreme Admininstrative Court (14 days)

4. Criminal Proceedings- Act Nr. 141/1961 Sb., Criminal proceedings- proceedings by virtue of office- subject-matter jurisidiction

- general rule: District Courts - special jurisdiction: Regional Courts (crimes with severity of sentence of five and more years)

- territorial jurisdiction- general rule: the court of the locus criminis (site of the crime)

- regular and exrraordinary remedial mesearus- regular remedial measures: appeal against judgement (8 days)

protest against judicial order (8 days) complaint against resolution (3 days)

- extraordinary remedial measures: appellate review (2 months)complaint against a breach of lawreopening of the case

GENERAL PROVISIONS OF THE COMMERCIAL CODE I.

• kinds of commercial corporations: - personal corporations: unlimited liability company, limited partnership company- stock corporations: limited liability company, joint stock company (public limited company)

- unlimited partnership: all members as authorized representatives- limited partnership: general partners as authorized representatives- limited liability company: corporate agents as authorized representatives- joint stock company: board of directors as authorized representative

• firm, business, enterprice, corporate name

- enterpreneurship, undertaking: continual activity performed personally by an enterpreneur on his own behalf and risk in order to achieve profit

- enterprice: complex of material and immaterial things serving the businessman to undertake

- enterpreneur: a person registered in a public register undertaking on legal basis

- corporate name: name under which a corporation is registered in the Commercial register

GENERAL PROVISIONS OF THE COMMERCIAL CODE II.

• registered capital, membership contribution to the capital, member´s stake in a commercial corporation: - registered capital: sum of cash and non-cash membership contributions to the capital of a commercial corporation

- formation, establishment in two phases: foundation + registration in the commercial register- dissolution in two phases: liquidation or transformation + expungement from the public register

- membership contribution to the capital: sum of cash and non-cash contributions invested by a person interested to become a member of a commercial corporation in order to achieve a member´s stake in it

- member´s stake in a corporation: immaterial (for example the right to vote during an annual general meeting of the members of the corporation) and material rights (for example the right to have a dividend income from the corporation) linked to the membership of a member of a commercial corporation

COMMERCIAL CORPORATIONS• unlimited partnership

- supreme organ and authorized representative at the same time: all members- extent of liability: unlimited personal liability

• limited partnership- supreme organ: all general partners and limited partners- authorized representative: all general partners- extent of liability: general partners full personal, unlimited liability, limited partners limited liability up to the amount of their unpaid contribution

• limited liability company- supreme organ: general meeting (of all members)- authorized representative: corporate agents (executives)- extent of liability: all members up to the amount of their unpaid contribution- minimum amount of contribution: 1,-Kč

• joint stock company- supreme organ: general meeting (of all shareholders)- authorized representative: board of directors- controlling organ: supervisory board- registered capital: 2.000.000,-Kč or 80.000 EUR- extent of liability: only up to the amount of the value of the share

organisational remarks contents of the subject course of the subject obligatory literature: pp...

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