Václav Janeček

This chapter outlines some of the key developments regarding publication and communication of legal rules and standards (i.e. legal information) to show that dissemination of legal information is reliant on how we design the entire model of its publication. In doing so, it analyses paradigmatic models of publication as they appeared in the prehistorical, historical, and hyperhistorical stages of human evolution. These models demonstrate how legal information was delivered to its intended addressees, i.e. to those who were expected to obey the published laws. It also demonstrates that the progress regarding these publication models was driven by efficiency and sustainability considerations. The currently prevailing model of publication is, however, inefficient and unsustainable due to an unnecessary multiplication of intermediaries facilitating communication of legal information. This problem is even more apparent in the context of increasing digitalisation of legal information and emerging information and communication technologies (ICTs). The chapter argues that, in this light, it is appropriate to consider revising the entire publication model and not only some aspects of it. An addressee-centric publication model is outlined as a potential solution to the problem. The proposed model requires active delivery of a relevant subset of digitalised legal information to its intended addressee in a similar way as targeted online advertising. Unlike the existing research that promotes personalisation of law (personalised legal information), this chapter advocates personalisation of the publication model.

This chapter advances two claims regarding vicarious liability. First, that every legal system must be capable of theoretically devising the idea of vicarious liability (as opposed to direct liability and responsibility). Second, that juristic persons and other artificial legal entities may be liable only vicariously for wrongs committed by other persons, who ultimately must be human beings. To cast new light on the concept of vicarious liability, this chapter analyses the changing relationship of the terms liability (in Czech: “ručení”) and responsibility (in Czech: “odpovědnost”) in the historical development of Czech law from the beginning of the 19th century until mid-20th century. This development was marked not only by radical changes in the posited law and by the problematic connections of the Czech legal terminology with the German one (especially with the terms Haftung and Verantwortung), but especially by the normative theory of law, internationally known especially thanks to Hans Kelsen’s writings. A peculiarity of the Czech tradition in the normative theory of law (analysed in this chapter primarily through the pioneering work of František Weyr, whose publications are mostly unknown in English-speaking countries) is that it has arrived at the concept of vicarious liability by analysing the abstract nature of legal duties, i.e. regardless of any positive legal system. This happened already in the 1930s, although the Czech normative theory of law did not take into account any developments in the common law systems with which the concept of “vicarious liability” is typically associated. This chapter presents and develops the “normativist” theory of vicarious liability to arrive at the two main claims set out above.

The new Czech Civil code (CC) traditionally does not define causation and leaves this task to the judiciary and legal theory. Despite this statutory “silence”, the changes that stand behind the CC may lead to a conception of causation that is very different from that which has been used in the Czech Republic until recently. The aim of this article is to develop this new theory of causation which is based on an analysis of two crucial reformative features of the CC. In particular, the author seeks to answer how our conception of causation might be influenced by the declared (1) departure from materialism and (2) inclination to the idealistic western tradition. He examines the extra-contractual fault-based liability regime (§ 2910 CC) by a historical, doctrinal and comparative method and shows that the causation under current Czech law can be understood as a two phased ideal test of factual and legal causation (i.e. a relation between a breach of a duty and damage). However, the factual causation test is only a negative one. A positive legal causation (adequacy/scope of liability) is then implied by the statute. According to the CC, the causal link can be presumed where the damage was foreseeable by a rational average human, or by a person of average abilities. Each of these two presumptions plays a crucial role when assessing different causation (relating to primary or consequential damage). This theory may then substantially strengthen the procedural position of the claimant.

According to the prevailing view the conditions of fault-based liability of a natural person are basically the same as those of a legal entity (juristic person/corporation). In this article the author, however, arrives at a contrary conclusion. By looking at the theoretical underpinnings of the current statutory civil law he concludes that the Civil Code gives rise to an, in principle, unequal liability for fault. The scope of liability differs between the two types of person (natural and juristic) because, according to the Civil Code, any juristic person cannot have its own will nor intellect. Despite this fact, the fictional legal entity can still be negligent, which then substantially affects the scope of its liability.

According to the recent prevailing case law and academic literature the fact that the Act on Public Contracts (the APC) is special (lex specialis) to the Civil Code (the CC) implies that any transaction that is contrary to the APC cannot be subjected to general provisions on invalidity under the CC. In practice, many offences thus cannot be effectively sanctioned. The authors therefore ask whether such an approach is legitimate. Based on detailed reasoning and interpretation of the European and Czech law they revise the prevailing view and show that, on the contrary, the general provisions of the CC on invalidity of legal transactions shall be applied in some cases (e.g. when granting a power contrary to the APC). The common feature is that the Office for the Protection of Competition cannot impose the prohibition to perform the contract in these cases. The authors claim that the sanction of invalidity under the APC should be interpreted restrictively.

Recodification of private law in the Czech Republic resulted in fundamental changes regarding legal acts as well as responsibility (liability) of juristic persons. Indeed, when the Civil Code entered into effect in 2014, the concept of a juristic person entirely changed, as follows both from the explanatory memorandum and from the actual wording of the Civil Code, i.e. especially Section 151(1) of the Civil Code, according to which “[the law] provides, or the [founding] juridical act determines, the manner and scope in which members of a [juristic] person make decisions for and replace the will of the [juristic] person”. If the governing body of a juristic person replaces (through its own will) the will of the juristic person, then it can be inferred from the legislature’s intention expressed in the explanatory memorandum, as well as from the linguistic and systematic interpretation of Section 151 of the Civil Code that a juristic person, in fact, lacks its own will. This however, has a fundamental impact on the construction of legal acts performed by the juristic person and also of its potential unlawful conduct and liability. This is also closely related to the issue of the capacity of a juristic person to be liable for wrongs. Indeed, it follows from Section 24 of the Civil Code that a human being is liable for his/her conduct provided that he or she is capable of assessing and controlling his/her conduct. It can be inferred from the above that liability, in the true sense of the word, can only be borne by a human being – natural person – since only a human being has his/her own reason and will. This construct can then cause doubts regarding the capacity of a juristic person to be liable for a wrong (ex delicto) and its position as a subject of liability under private law. For this very reason, the present monograph aims to answer the question of how juristic persons can perform legal acts (i.e. engage in legal conduct) and in what way they can potentially become legally liable (not only for their conduct) under the Czech laws. This is reflected in its structure and arrangement of the individual chapters.

The aim of this paper is to survey the methods of distinguishing between private and public law in a comparative perspective. Many scholars tried to answer the question of what amounts to private law and public law, almost as if the domains of public and private law were hermetically separated from each other. They tried to define the divide. At the same time, most scholars conclude that there is no single compelling distinction between private and public law. This paper tries to push these discussions further by trying to unravel a single method by which the moving target of the divide could be identified. To date, there has been no systemic exploration of the methods of distinguishing private from public law in English literature, although the distinction now has several important implications when it comes to legal remedies for public and private wrongs. By analysing cases and the literature, the paper unveils the existing English methods of distinguishing between private and public law, and suggests how we may advance them in the light of some continental methods and theories (mainly German).