Extraordinary Wills in Czech Law – Return to European Tradition

Over the past 25 years, (minority) shareholders in Czech companies have been continuously seeking remedies for various wrongdoings they perceived to be caused by the failure of the company’s directors to act with due care (and/or as a result of a breach of their statutory duty of loyalty) in order to utilize not only the already well-established derivative lawsuits but also to seek a remedy for the ‘reflective’ loss on their shareholdings which were incurred as a result of the (direct) damage caused to the company by the directors. In the previous era (ending in 2014), however, Czech courts repeatedly denied minority shareholders any right to pursue reflective loss claims. But the corporate world changed in the Czech Republic on 1 January 2014 when the new Czech Civil Code entered into force. The new Czech Civil Code has brought many legal transplants from all around the world as well as re-instituted concepts into Czech law from Czech history which nearly had been forgotten and until now remained largely untested, both in practice and in terms of underlying policy. One of the significant new features brought by the new Civil Code is no doubt the brand new regulation of reflective loss claims, which, despite significant policy considerations justifying the predominant non-reflective loss principle, marks the first time such a general principle has ever expressly appeared in Czech law. Not only has the Czech law—detaching from the non-reflective loss principle—become anomalous, the way reflective loss has been ‘transplanted’ into Czech law is, to a great extent, troublesome. This article tackles the most crucial shortcomings (both in practice and underlying policy) of the new regulation; namely, it addresses the actual content of reflective loss claims under Czech law, the statutory requirements for the shareholders’ right to claim a reflective loss, and the co-existence of the company’s ‘primary’ right to damages and the shareholders’ right to reflective loss compensation.

The article deals with the concept of the position of the debtor’s spouse in execution proceedings from the perspective of Czech law. The first part of the article provides an interpretation concerning the categorization of debts under the Czech Civil Code. This categorization significantly influences the scope of assets from which a debt can be satisfied, as well as the procedural rules governing debt enforcement in execution proceedings. The second part of the article focuses on the position of the debtor’s spouse in execution proceedings and analyzes their procedural rights. The final part of the article presents considerations and possible proposals for changes in the current legal understanding of the debtor’s spouse’s position in execution proceedings under Czech law. Keywords: execution, debtor’s spouse, Czech law, matrimonial property, exclusive debt

For more than two decades the family business enterprises of the first generation (generation of founders) are more and more dominant in the category of today’s Small and Medium-sized Enterprises in the Czech Republic. The necessary legal background defining the legal relationships and rights of all participating persons was, however, limited to general provisions in the Commercial Code that hasn’t solved many of the problems associated thereto. Only in 2012, the new Czech Civil Code, Act. No 89/2012 Sb., introduced the institute of a family enterprise as a completely new institute in Czech Civil law. The present paper aims to analyse the key rules of the existing legal regulation, focusing on significant aspects of the institute in the context of commercial law and family law, as well as to highlight the potential weaknesses in the regulation itself.

This chapter provides general information on the legal status of Free and Open Source Software Licenses (e.g. GNU General Public License, the MIT License) and other alternative licenses (e.g. Creative Commons) under Czech law. The issues are discussed under both contract law and copyright law following the recodification of Czech civil law through the adoption of the new Czech Civil Code. The discussed topics concerning contract law include, inter alia, the legal nature of F/OSS and alternative licenses (i.e. whether they are to be construed as contracts or unilateral instruments), formal requirements, standard terms and conditions, language issues, special rules of interpretation, disclaimers of warranty and liability and the termination of granted licenses. The issues of copyright law include, inter alia, the interpretation of broad and unspecific terms in license contracts, questions concerning unknown modes of use of a work at the time of the conclusion of the license agreement, revocation or rescission rights in copyright legislation, sub-licensing, statutory rights for equitable remuneration, participation in the distribution of revenues by collection societies, the right to modify the copyrighted work and moral rights, and remedies in the case of termination of the licensee’s right. Other issues, e.g. the competition law aspects of F/OSS licenses, are also discussed.

Human life unfolds in stages, in which the degree of dependence on the family gradually changes. Further, every human life has periods of vulnerability – being a minor child, a person with a disability, or an elderly person – which is expressed by the universal vulnerability thesis. In addition to this general thesis, the doctrine expresses the specific vulnerability thesis regarding refugees, both types of homelessness, and minorities. The law previously focused its attention on the protection of these vulnerable persons. However, this paternalistic paradigm is currently complemented by the demand to strengthen respect for the autonomy of the will of vulnerable persons. Therefore, the Czech Civil Code provides vulnerable persons with both the protection and the space for a dignified expression of their will. This extends beyond representation to include respect, assistance and support. This approach strengthens the material equality between people and the balance in private-law relations. Finally, the role of the family and family solidarity is gaining importance.

The problems of dealing with crime victims are covered in the Process of europeisation. The activities of the Council of Europe and of authorities of the EU affect the victim’s position in criminal proceedings, the extent of their rights and the protection of their interests. Under the resolutions of the Council of Europe, agreements (conventions) are the only form of legally binding documents. In matters of EU law, directives and framework decisions are the only instruments applicable to regulating the rights and interests of crime victims. Europeisation is focused on two areas. The less problematic one seems to be the sphere of compensation of victims of violent crimes. Here it is necessary to keep in mind the European convention on the compensation of victims of violent crimes from the year 1983 and the Directive of EU Council relating to compensation to crime victims from the year 2004. The obligations are formulated definitely and specifically. The question of victim’s position in criminal proceedings is more problematic. The diversity of legal regulations in each particular state results in the problem of finding consensus regarding this topic. The legal instrument of harmonisation in this topic is the framework decision of EU Council on the standing of victims in criminal proceedings from the year 2001. The obligations are formulated less certainly and specifically, as they permit more exceptions. The Czech legal regulation is in harmony with obligations both the Council of Europe and EU law regarding the compensation of victims. On the contrary the transposition of the framework decision on victims’ standing isn’t without problems. In particular, there are differences between Czech law and the framework decision in numerous areas: 1) Czech law doesn’t require state authorities to provide victims as much information as set forth in the framework decision (art. 4); 2) Czech law restricts the victims’ rights more than in the framework decision, by limiting certain rights only to victims, who are in the position of witness (art. 8); 3) Czech law is silent on the issue of specific rights of foreign victims, whereas framework decision lays down guidelines for such rights (art. 11). The European institutions may check whether the Czech law adopts the regulation and obligations arising from the framework decision. The European Court of Justice has previously adjudicated situations regarding harmonisation of EU laws in other foreign countries (especially judgement on the merits Pupino and on the merits Dell’Orto). It is necessary to make our legislation in conformity with the framework decision.

For more than two decades the family business enterprises of the first generation (generation of founders) are more and more dominating in the category of today’s Small and Medium-sized Enterprises in the Czech Republic. The necessary legal background defining the legal relationships and rights of all participating persons was, however, limited to general provisions in the Commercial Code that hasn’t solved many of the problems associated thereto. Only in 2012 the new Czech Civil Code, Act. No 89/2012 Coll., introduced the institute of family enterprise as completely new term in the Czech Civil law. The present paper aims to analyse the key rules of this new legal regulation, focusing on significant aspects of the institute in the context of commercial law and family law, as well as to highlight the potential weaknesses in the regulation itself.

This paper aims to research the mandatory transfer of contractual obligations under the institute of the transfer of enterprise (or its part) under the Czech law. The transfer of business enterprises was reintroduced in the Czech law in more than 30 years ago, however to this day, the case law has not been united regarding the transfer of contractual rights and obligations. The author tries to conduct research by solving two case studies relating to the statutory guarantee of the transferor for the transferred debts. The first case study relates to the question, whether the transferor guarantees fulfilment of debts under specified framework agreements, provided the creditor has not consented to the transfer of the enterprise. In case of first study, the author succeeded to find solution under the current case law of the Czech Supreme Court. The aim of the second case study is to answer the question of “shared agreements” in case of the transfer of part of business enterprise, in particular whether there are any principles of determination which rights and obligations under shared agreement are subject of the transfer. According to the Czech Civil Code, the same principles as in case of the transfer of a whole enterprise should also be applied to the transfer of part of an enterprise, however there is no statutory nor doctrinal support on how to proceed in case of shared agreements. Although the current doctrine and case law provide no specific principles regarding which rights and obligations are transferred along with the part enterprise, the author provides an approach based on logical and teleological interpretation of the principles of enterprise transfer. The most preferred variant is to split the respective contractual rights and obligations, and if not possible, the rights and obligations should follow the legal fate of the part of enterprise to which they relate more closely.

On 1 January 2014, the regulation of trusts, inspired by the regulation of the Canadian province of Quebec, became part of Czech law. This article deals with two aspects of the regulation from the position of the trustee: the capacity to be a trustee and the dependence of the trustee´s duty of care based on their (non-)profession. In this respect, the Czech regulation is assessed in the context of foreign regulations. The Czech regulation of the capacity to be a trustee allows any natural person on one hand and only a restricted number of regulated legal persons on the other hand to act as a trustee is found to be justified. On the contrary, the lack of differentiation between a professional and non-professional trustee with regard to their duty of care in Czech law is considered unsatisfactory and worth improving.

For more than two decades the family business enterprises of the first generation (generation of founders) are more and more dominating in the category of today’s small and medium–sized enterprises in the Czech Republic. The necessary legal background defining the legal relationships and rights of all participating persons was, however, limited to general provisions in the Commercial Code that has not solved many of the problems associated thereto. Only in 2012 the new Czech Civil Code, Act. No 89/2012 Coll., introduced the institute of family enterprise as completely new term in the Czech Civil law. The presented paper aims to analyse the key rules of this new legal regulation, focusing on significant aspects of the institute in the context of commercial law and family law, as well as, to highlight the potential weaknesses and gaps existing in the regulation.

The Czech legislator did not address the exceptionality of the ownership (patrimony) law which Quebec Civil Code (CCQ) authorises (a property without owner) for particular purpose as patrimony right by appropriation in the fiducie (trust) regulation when it was adopted into the Czech legal system (§ 1448 of the Czech Civil Code – CCC). However, the Czech law lacks a transposing provision in the sense of Article 2(2) or Article 915 CCQ (‘property belongs to persons or to the state or, in certain cases, is appropriated to a purpose’) justifying deviations from the concept of a uniform ownership right. In accordance with the concept of ownership in Czech law expressed in the mandatory provision of Article 1011 CCC, this right must belong to a certain person. The solution of the “Czech problem” therefore consists in the personification of the trust, which as a legal person has the status of a fiduciary owner of the trust property. This model does not affect the substance of the ownership of the appropriated (trust) property. The Czech trust may dispose of it only in accordance with its purpose, which is expressed in its by-laws. The flexibility of the trust remains fully preserved in this model. During its lifetime, it is possible to change the persons in the position of trustee or beneficiary or to change the purpose of the trust. The implementation of our model can be done by interpreting the applicable legislation (teleological reduction). However, a change in the wording of section 1448 CCC would better contribute to legal certainty.

In 2014, a fundamental reform of private law took place in the Czech Republic. It was a revolution in private law. The reform of Czech private law was also to some extent contributed to by the pressure of the neighbouring more advanced legal systems in which the Czech legislator sought inspiration, especially the ABGB and its basic principles. Czech private law has been influenced since at least 1811 by the ABGB; this regulation affected Czech private law even in the first half of the twentieth century. This paper aims to answer the question how the ius-naturale conception of ABGB affected the Czech Civil Code of 2012 (the reform of private law in 2012) in the field of compensation for non-pecuniary damage, and to what extent and in which institutes this influence manifested itself. The area of compensation for non-pecuniary damage was deliberately chosen – this area is related to the protection of human personality. Personality rights then reflect the theory of natural law, which was suppressed in Czech private law during the second half of the twentieth century.

The text is dedicated to the analysis of the legal regulation of military wills in the new Civil Code (Law No. 89/2012 Coll.). It places it in a historical legal context. However, priority attention is paid to a detailed analysis of the current legal regulation and potential issues that this regulation brings. It also briefly mentions other options for last dispositions that a soldier could use. The legal regulation of military wills in the Civil Code can be characterized as very well conceived, reflecting the reality of foreign missions. The fact that it takes the form of a public document is also significant if the relevant requirements are met. However, the question is how the application practice of the courts will approach the adjustment.

The recent economic crisis has increased the demand for atypical, flexible work patterns. Czech lawmakers have thus been under a continuous pressure by employers to adopt more liberal labour laws. Any increase of flexibility in labour relations, however, increases the risk of worsening the conditions of employees and deepening of precarity in labour relations. The article focuses on the current legal regulation of flexible forms of work under Czech law, and attempts to evaluate to which extent these patterns represent a welcomed option for both employers and employees, and to which extent they trigger the risk of precarious work. The author describes legal instruments such as agreements on performance of work outside employment relationship, fixed-term employment, part-time employment, employment through temporary work agency and remote working. Particular attention is paid to illegal work issues and related proceedings against employers. In summary, the author concludes that the increase of flexibility in labour relations has had positive consequences in many aspects, but also debates potential issues and challenges arising of the legal regulation for workers.

The law against unfair competition is traditionally understood in countries of the Alpine legal system as extraordinary and unconventional. Unlike other legal disciplines, it does not rely on black-letter law; it is less formal and less legislatively elaborative in detail. Thus, progress and development in this area is not a matter for the legislator but for broad practically-driven doctrinal work connected to contemporary case law. When the Internet brought new opportunities in the development of business ventures, Czech law against unfair competition did not react with legislative changes but by the further development of standard interpretational patterns. In this article, we will briefly describe the grounds as well as recent related developments in the Czech law against unfair competition connected to unfair business practices on the Internet.