Publication details
Soudcovské dotváření procesního práva
| Title in English | The judicial co-creating the procedural law |
|---|---|
| Authors | |
| Year of publication | 2015 |
| Type | Article in Periodical |
| Magazine / Source | MUNI Law Working Paper Series No. 2015.04 |
| MU Faculty or unit | |
| Citation | |
| Web | http://workingpapers.law.muni.cz/dokumenty/32411 |
| Field | Law sciences |
| Keywords | Judicial co-creating law; Procedural Law; Admissibility; Legitimacy; Gaps in the Procedural Law |
| Description | The submitted text is a chapter of an upcoming book which focuses on judicial co-creating the procedural law. The procedural law belongs to public law and this fact naturally influences judicial creation of law. In the first place, the author focuses on issue of the admissibility of judicial co-creating the procedural law. The author accepts views of jurisprudence and conclusions of the case law that admit the judicial co-creating the procedural law. The legitimacy of this procedure is seen in ensuring of right to a fair trial and other fundamental principles and values of the civil procedure which represent purpose of a modern procedural law. Then the author deals with the process of judicial co-creating the procedural law. The importance of gaps in the law and their classification is emphasized. The gaps in the procedural law can be filled through an analogy or through a teleological reduction. Thereafter the author shows some particular cases in which the judiciary co-created or should co-create the procedural law, e. g. a standard of proof of a mental disorder, a duty to instruct of a procedural concentration or an issue of substitute housing. The author tries to draw attention to the downsides that are connected with judicial co-creating the procedural law including especially the lack of theoretical background. |
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