• 07/05/2022
• By wizewebsite
• 624 Views

The new Civil Code has a strong ally - the Constitutional Court<

Professor Karel Eliáš, who is one of the main authors of the new Civil Code, says in an interview: “In our countries, the law of half a century was not on the side of the people, but of political power. This persists in social consciousness. That doesn't change the assurance that we are the rule of law. After all, Jakeš had already said that, and who believed it? Some politicians believe that changing the law will change human thinking. This is a world of illusions! Awareness of the law lags behind laws about a generation, especially in private law. "

LIDOVÉ NOVINY: You have said publicly several times that you are closely monitoring the application of the new Civil Code by the courts. What does it look like 3.5 years after its effectiveness?

ELIÁŠ: It's a lot different here than in Quebec. There, the Supreme Court allegedly overlooked the local Civil Code of 1991 for a few years and judged according to the old one. Our judges began to point out the ideas of the valid Civil Code even before its effectiveness. And I like how most people work with him, especially district judges.

The decision of one Prague court on inheritance is nice. He judged the will where the testator wrote that everything in her apartment should be inherited by her aged friend. The State Representation Office in property matters argued that the money in the testator's account should be given to the state because they are not in the apartment, but in the bank. The court rejected it. He said that the will could not be interpreted without respect to the testator's will, because then the result would become stagnant. The entire estate of the testator passed to the heiress.

LIDOVÉ NOVINY: In general, do you feel that the judges can handle it?

ELIÁŠ: The best law will not help the stupid judge. The smart always manage. And the vast majority of them are here. That is why I respect the judiciary.

LIDOVÉ NOVINY: How much did the Supreme Court live with the new code?

ELIÁŠ: It's similar to the lower instances. Some judges are educated and innovative, others do not deviate from their tracks. Also in the Supreme Court, some senates are excellent and try to understand and accept the soul of the code. I appreciate, for example, Jiří Spáčil, who often fought against the Code during its preparation. Today he works with him and the case law of his substantive senate is very reasonable.

He recently dealt with the case of settlement of joint property of spouses (SJM). It included a house that burned down after the divorce without the fault of the former spouses. The Senate considered how to appreciate the SJM - on the day of its demise, when the house was still standing, or without taking its value into account? In other words, should one of the former spouses have an incinerator valued as built-up land? The Senate referred to the code rule that the interpretation and application of the law must not lead to cruelty or recklessness, and valued the property at the time of the decision.

Well, then there are the judges who have a problem with the code. The decision of the Senate of Dr. Drápal (Meanwhile, Ljubomír Drápal moved from the Supreme Court to the position of President of the Regional Court in Prague - ed. Note), in which the refugee creditor refused to give due weight to the mortgagee, and discussed the the risk posed by someone else's actions.

After all, some legal principles referred to in the transitional provisions of the Civil Code will not disrupt the golden fund of jurisprudence built up for decades ...

LIDOVÉ NOVINY: Was one of the main goals of the code to overcome some of the gains of the Supreme Court's long-standing decision-making practice?

ELIAS: The main goal was to establish a continental standard. A lot worked out, something remained here and there. For example, the transcendence of the principle of equality of living standards of the child and parents to the assessment of maintenance. For example, if a parent who has not taken care of a one-year-old toddler earns some 300,000, he or she will be obliged to pay maintenance of around 40,000. Such a small child cannot consume. The rest is at his expense at best, but then it is a premature inheritance, not alimony.

Something rolled out at the last minute. The age-old rule that only the Attorney General can submit such a proposal after missing the deadline for denying paternity has remained in the government's draft code. While discussing the legal framework in the Constitutional Law Committee of the Chamber of Deputies, I paused that it was strange.

What is it for a prosecutor to be so intimate about whether or not someone is the father of a particular child? It was a tradition, but this practice was established by the Stalinist Family Law Act of 1949! In the end, the deputies decided that it was better to entrust the court with jurisdiction. Therefore, if a man denies paternity after the deadline, it is up to the court to consider whether there is a compelling reason to waive the delay.

The case law naturally followed the applicable laws. The new code often broke up mainly with them. But judges sometimes followed a strict reading of the law, although they were to honor the principle of "milder in doubt." That, too, wanted to move. On the other hand, the good conclusions of the Supreme Court have sometimes been transposed into the Code.

LIDOVÉ NOVINY: Did the courts agree with one of the main novelties that contracts should primarily be considered valid and that cases of absolute invalidity were kept to a minimum? This was to mean that the courts would no longer annul contracts whose validity the parties did not object to and that they were only sued for a clause.

ELIÁŠ: The Civil Code has a strong ally in this regard. It is the Constitutional Court. In the long run, it opposes the over-declaration of invalidity of contracts. And it penetrates the practice of ordinary courts. For example, the Senate of Kateřina Hornochová ruled nicely in the Supreme Court.

It was a case where the building authority approved the extension of the house. This was to be done by the contractor according to the work contract. But the building permit was for one apartment unit and the contract was for two. The court dealt with the extent to which the conflict between the building permit contract and its validity. In February 2015, he decided that the contract was not invalid and pointed out the different mechanisms of construction and contract law.

Although a similar decision has been made in Germany, for example, since the 1960s, a similar conclusion would have been hard to imagine in our country five years ago. After all, in January 2014, at the training of lawyers in Brno, the judges of the Supreme Court voted for invalidity. Arguments in favor of validity certainly led to a reassessment of the view. I appreciate that.

LIDOVÉ NOVINY: The application of one of the principles of the Code, namely the independence of the application of private law to the application of public law, is also evident in this case. How do the courts deal with this?

ELIÁŠ: There are already over 30 judgments. A reasonable approach is evident from them. Reference may be made to the recent opinion of the Board of the Supreme Court on the restriction of autonomy in relation to the right to vote. Administrative courts often comment on this principle. Alien law, for example, negatively assesses marriages of convenience in connection with applications for permanent residence in our territory.

Unsuccessful applicants tried to argue the purpose of marriage under the Civil Code. This includes, among other things, mutual support and assistance. The Supreme Administrative Court has repeatedly emphasized that this is nice, but that the law of aliens takes precedence. For example, if the two do not live together and are unable to communicate in any language, it is a marriage of convenience.

LIDOVÉ NOVINY: Can it be said that even the concepts and innovations that have been the subject of theoretical and practical discussions in the end do not pose such problems in application practice?

ELIÁŠ: Every new adjustment will provoke discussion. Nobody will deny me the code, even though I didn't write it all down and I don't agree with it. The year before, it is said that Supreme Court Judge Pavlína Brzobohatá described housing co-ownership as the least successful chapter in the Code.

It is also because in some games there were many voices, everyone wanted to enforce and influence something. That marked the result. Since then, however, case law has evolved and stabilized. The Senate, where Dr. Brzobohatá works, judges with an understanding of the new regulation. For example, in December 2015, he elegantly resolved the conflict between the unit transfer agreement and the pre-emption right.

LIDOVÉ NOVINY: What about your comment? Two years ago, you said in an interview with LN that you already have a finished comment on paragraph one, which has 80 pages.

ELIÁŠ: And then I went to paragraph two ... (laughs) But it got stuck. Most of the possible co-authors are already in some teams, and they are tired of writing comments. In addition, comments are more or less consumer goods. The pillars of legal science are monographs. I gather materials and do studies on what I have been postponing for many years, on the book on the basics of private law.

LIDOVÉ NOVINY: How do you like the commentary literature that has been published on the Code so far?

ELIÁŠ: One can understand children's illnesses of the first editions. Less so, the authors of some passages tend to shake their own ego, run out of criticism of the regulation or settle personal accounts with the drafters of the code. However, the internship is mainly interested in how to interpret and apply the valid regulation. In addition, large author teams will not avoid conflicts of interpretation if the editor-in-chief is not consistent.

However, there were also quality outputs, such as volumes on rights in rem under Spáčil's leadership or the bond law of Milan Hulmák's team in a commentary produced by CH Beck or Šešin's law of inheritance at Wolters Kluwer. The authors are simply educated with an honest effort to respect the new regulation, even those dependent on the old code, unwilling to enter the new world. This can also be seen in the Prague textbook of civil law.

And there is also a group of clever, well-educated lawyers who have been fixed on foreign law after internships abroad so much that they ignore it here. For example, when German or Polish law rejects a collective matter as one subject, they want to reject it here as well, even if we have the opposite in our code.

LIDOVÉ NOVINY: Isn't it weird that someone didn't come to terms with the changes that were effective for 3.5 years?

ELIAS: That's normal. In the Netherlands or Russia, the new codification was also accompanied by fuss. And not just there. He also accompanied the preparation of the old General Civil Code of 1811. And in the Lawyer of the 1970s, I read the complaints that a new civil justice code is being prepared, and what the problems will be, and yet after a hundred years, the Josephine Code of Practice is good for everyone, judges are used to, and it works great. But if the building is rotten, what about it?

LIDOVÉ NOVINY: The Code has been repeatedly criticized for being unnecessarily extensive, saying that some institutes are redundant or outdated. How much does it show in practice?

ELIÁŠ: Judge Emeritus of the Constitutional Court Jiří Nykodým responded to the first criticism with an example from Forman Amadeus. There aren't many notes. There are simply as many as there should be. It can be proved that most civil codes are similarly voluminous. Of course, there are institutes that have thousands of years of existence behind them. Therefore, they are not obsolete yet.

Some consider archaisms to be that which has not been used here for half a century. For example, our law from 1950 also knew the law of construction or references. References are regulated throughout Europe, today except Slovakia. I recently heard on TV that they are not used. I doubt it was discovered by stalking the drawers for the contents of private wills. I have other partial knowledge from practice.

But practice also needs time. In particular, business is sometimes cautious, for example in banking, and wants to analyze some news, touch on it, consider its pros and cons, and wait for the right opportunity. In the 19th century, real burdens were cursed as a relic of feudalism. Over time, their usefulness in a market economy has become apparent. What harms private law the most is inquisitorial fanaticism - in creation, short stories, interpretation and application.

LIDOVÉ NOVINY: Can it be understood that many provisions are not widely used, but may be useful in some situations?

ELIAS: But that's always been the case! Take, for example, an agency without an order. In the 60 years of the old code, there are five judgments of the Supreme Court, all after 2003. Fortunately, no dude has appeared before, shouting that it has not been used for decades and that we will repeal it.

The Civil Code is like a buffet. Everyone can choose what they like. And as long as something isn't in use, it's at least a throw away from college. (laughs) I heard Professor Jan Dvořák from the Faculty of Prague know that students often do not know the basics, but almost everyone knows how it is with a swarm of bees flying into a foreign hive.

LIDOVÉ NOVINY: The Code lasted a virgin for three years and a short time. You criticized the first amendment as unnecessary ...

ELIAS: More like harmful.

LIDOVÉ NOVINY: Why do you think? For example, you have criticized the fact that it is now explicitly stipulated that interest on arrears is paid in the event of late payment of maintenance. Can you explain that?

ELIÁŠ: The Civil Code immediately states in paragraph 11 that the general provisions of the law of obligations, including those on default interest, shall apply mutatis mutandis to non-contractual private rights and obligations. So also nutritious. Unfortunately, the Supreme Court overlooked this in the autumn of 2016 and stuck to the old case law. But when the legislature reacted to this at a single institution by explicitly granting the right to interest, it logically follows that it was excluded in other cases.

LIDOVÉ NOVINY: The amendment was adopted shortly after this Supreme Court opinion. What was Parliament supposed to do about it?

ELIÁŠ: The legislator should not act like a hasty young man. It is not good to solve every strange decision with a hasty amendment. Decision-making practice has sufficient self-cleaning mechanisms.

LIDOVÉ NOVINY: You are involved in the advisory team of the presidential candidate Michal Horáček. This is the first time you have been involved in politics. Why do you support him?

ELIÁŠ: When Horáček's team turned to me, I was surprised. I solved it for over two weeks, I talked to people who know Michal Horáček well, and he found out something else. And then he decided to support him. When I embark on something, then definitely with commitment. I didn't take it for bragging, I've had enough. (Laughter). I think he would be a decent president.

LIDOVÉ NOVINY: Michal Horáček is building a campaign on the idea of ​​changing the atmosphere coming from the Castle. How close is it to you?

ELIÁŠ: You know, I don't like conflict situations. I was born in Taurus, I keep my distance, I like peace, I suffocate various mischief, and I turn to insanity once every five years when it comes to something fundamental. And so I appreciate that Horáček did not choose a personal and intense campaign against the other candidates. He is educated, has a kinderstube, learns quickly. I like that he presents his vision and that he takes it with his heart and tries to honestly defy his campaign. He goes around the republic and talks to people. Sometimes two come, other times two hundred. I wonder how it will turn out.

LIDOVÉ NOVINY: Michal Horáček recently organized a debate where, in addition to Jiří Přibán and František Korbel, you also performed. In conclusion, Horáček said that it would come to him from conversations with citizens that people in the Czech Republic do not have a sense of life in a state governed by the rule of law. What could it be that the law fails to convince people that he is on their side?

ELIAS: In our countries, the law of half a century was not on the side of the people, but of political power. This persists in social consciousness. That doesn't change the assurance that we are the rule of law. After all, Jakeš had already said that, and who believed it? Some politicians believe that changing the law will change human thinking. This is a world of illusions! Awareness of the law lags behind laws about a generation, especially in private law.

People do not organize their daily private lives according to the law, but according to how they are brought up, what they have learned and how they have become accustomed. Who would read in the Civil Code when they go to buy a coat at a store or get a haircut at a barber? In addition, the company is affected by more than a thousand great findings of the Constitutional Court by a public statement by one of the state's top officials that he will not comply with what was imposed on him by the verdict issued on behalf of the republic. And that there were a few!

And the media and academics have their ups and downs. One hundred extraordinary judgments are taken for granted and will go unanswered. One fails and is followed by a whirlwind of criticism from all sides. That is why I try to popularize some good and perhaps inconspicuous decisions.

LIDOVÉ NOVINY: There has been a lot of talk lately about the demise of the state and the apocalypse of law. Are such strong words appropriate?

ELIÁŠ: I don't think so. We live in a different world than our ancestors. Law does not only arise in the national parliament, there are more foci of its creation. Lawmakers often disagree. I think that justice is the main stabilizing element of the rule of law, the mainstay of the rule of law, which is shattered by waves of amendments. Courts have worked the same way for hundreds of years, looking for the right solution to individual human stories. I believe in the sincerity of such an effort, even if something goes wrong here and there. The rule of law is, in short, a value for which we must constantly work hard.