Publication details
Soukromé právo mezi doporučením a příkazem nebo zákazem
| Title in English | Private Law between a Recommendation and a Command or a Ban |
|---|---|
| Authors | |
| Year of publication | 2017 |
| Type | Article in Periodical |
| Magazine / Source | Obchodní právo |
| MU Faculty or unit | |
| Citation | |
| web | Repozitář MU |
| Field | Law sciences |
| Keywords | mandatory rules and non-mandatory provisions; differentiating standards and tests; judge-made and judge-completed law |
| Attached files | |
| Description | Recodification of Czech private law has brought back to life the age-old dispute about peremptory and non-mandatory rules and about the possibilities and criteria how to recognize them. It concerns both theoretical level and the way in which this dichotomy will be mirrored in the legal regulation. It is a fundamental question with a substantial impact on the real extent of autonomy of will of the parties involved and of their freedom to make decisions. The problem of identification and distinction of these two kinds of legal norms has not disappeared due to the fact that the Civil Code defined the mandatory rules indirectly and in a general way. It rather has only shifted into the field of doctrinal and judicial interpretation of uncertain terms. The contribution deals with some theoretical and practical consequences of the general delineation of the character of private law norms. Solving of arising problems is being proposed. Principal starting point and value pillar is the approach "in dubio pro libertate" (if there is a doubt, freedom prevails). |