Václav Janeček

Can we think about legal norms in apolitical terms? The Venn diagram displayed on this year’s invitation to this conference suggests that law and politics do not fully overlap and some norms thus may be apolitical. In my paper, I will argue against this thesis. By canvassing an unproblematic example of a threefold conditional legal norm structure (hypothesis, disposition, sanction), I will show otherwise. Although the theory of threefold structure of a legal norm may at first glance appear politically neutral, I will defend a controversial position according to which even the structurallylogical reasoning about legal norms essentially is political. The apolitical legal norm thus is an illusion only

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.

Czech law of delictual liability can be now interpreted as rights-based (since 2014). Therefore, it is useful to make a clear distinction between primary and secondary duties, i.e. between conditions of liability and remedies. Thanks to this distinction it is easier to understand various functions of remedies under Czech private law and therefore also efficiently eliminate double recovery. Furthermore, it is argued in this article that this distinction helps us identifying specific statutory provisions that give rise to preventively-sanctional damages awards.

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.

This article outlines the fundamental consequences for the legal regime of public contracts which result from the substantial modifications of such contracts within the meaning of EU law. The authors conclude that an EU law-compliant understanding of the term “substantial modification to public contracts” may result, in some national legal systems, in the “privative novation” of the original contract, i.e. in its complete discharge and replacement with a new contract. However, this may be associated with a number of negative implications impairing the principle of legal certainty, thereby indirectly affecting the efficient functioning of the EU’s internal market. This conclusion appears to be contrary to the objectives pursued by the doctrine of indirect effect of EU law. The authors show some viable solutions to this problem, both from the position of contracting authorities and courts, and from the perspective of the member states in the forthcoming implementation of the new EU Public Procurement Directives.

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.

In this article I examine the concept of exemplary damages. Unlike many other studies this paper omits policy reasons and focuses primarily on the very concept of exemplary damages. My aim is thus not to argue for or against this remedy but rather to show whether or not it is a coherent and genuine legal category. Following relevant case law I will develop a conceptual definition of exemplary damages under English law of tort. This, I argue, is subject to three types of critical arguments – an argument from insufficiency, from positive exclusivity and from negative exclusivity – that highlight its incoherence. With respect to problematic aspects of the concept I compare exemplary damages under English law to germane Czech law which helps to show the relevance of ontology to law of damages. I suggest that from certain ontological perspective, we can reinterpret exemplary damages in a more coherent and acceptable manner. I conclude that such an understanding of exemplary damages makes them immune to the previous critique and also to the objection of ‘ordre public’ in private international law.

Recently we can see a significant shift in the understanding of private law damages in the Czech case law. Czech court have recently approved that the amount awarded for damages is not limited by the principle of compensation. In exceptional cases, where the preventive and punitive functions of damages prevail, the injured party may be awarded more than just her loss. However, this leads to some other problems. The aim of this artice is thus to explain these problems and to answer the question if and how they can be resolved.

Czech courts regularly deal with a question of so-called just satisfaction; particularly, when, on what basis, and how much should be awarded. Just satisfaction, as a form of damages, is primarily compensatory. However, there are some indications that it is perfectly legitimate for law of damages to pursue also another aims than compensation such as prevention or punishment. This view was recently upheld by the Czech Constitutional Court and the Highest Court of the Czech Republic. According to doctrinal approach, it is the domain of punitive or exemplary damages as a specific Anglo-American instrument that covers these two principles (prevention and punishment). Still, the Czech Civil courts consistently refuse to award exemplary damages albeit they do not provide us any sound argumentation. The author of this article suggests it is inaccurate and only partial understanding of exemplary damages that causes the current judicial refusal of them. While focusing on current English and Czech law, the author in his article describes exemplary damages in great detail with respect to their theoretical, conceptual and systematic position. Subsequently, he shows that the negative attitude of the Czech courts is not always appropriate. First, looking at relevant case law, the article characterises what the current English law on exemplary damages is, and it also critically compares this law with the Czech legal system. Here we can see come crucial similarities between the two. In the following part, the author characterizes exemplary damages in a broader context, which is necessary for adequate understanding, and he reveals some general aspect of exemplary damages alongside with its position in the system of damages. Besides, the author also looks at applicable European law and its current trends.