K otázkám úpravy mezinárodního práva soukromého

This study attempts to present ideas and suggestions concerning the regulation of private international law, its systematic composition and arrangement and the regulation of some questions. It accepts that the contemporaneous regulation now in force of this field of law is satisfactory, on principle, but it cannot be excluded that in the case of a new codification of both the civil and the commercial law the regulation of private international law can be reconsidered. For such an eventuality the study can be a contribution to the respective discussions and deliberations. The study argues for the regulation of private international law in a sole separate Act, i.e., it recommends not to leave the model of such a regulation in the Act of 1963, now in force. It recommends also to insert in one sole Act the conflict rules and the rules of the law of international procedure. The study refuses the idea of the regulation of private international law as part of a Civil code which would lead to the separation of the regulation of conflict rules from the rules of international civil procedure which in such a case would form part of the Code of civil procedure. The special extraordinary close connection between the conflict rules and the rules of international civil procedure is stressed. Not only the theoretical grounds mentioned in the study but also the practical needs of the judges are emphasized in favour of the treatment of private international law and the law of international procedure in one Act. Contrary to the system of the Act of 1963, now in force, another system of the Act is recommended. In the general part of the Act the general rules of the law of international procedure shall precede the general rules of the law of conflict of laws. In the part of the Act containing the rules for particular categories of private-law relations the rules concerning the jurisdiction of Czech tribunals shall precede the conflict rules for the respective category of relations. These conflict rules can be, when a special regulation is needed, followed by the provisions concerning the recognition and enforcement of foreign decisions in the respective category of cases. The regulation of some questions till now not regulated in the Act of 1963, now in force, is proposed. The study recommends the formulations concerning the application of the so-called mandatory rules (lois dʼapplication immédiate), both of the Czech and foreign rules of this nature, the solution of the problem of classification, a new formulation of the solution of renvoi and transmission, the solution of preliminary questions, of the evasion of laws. In the part containing rules for particular categories of private-law relations, in some cases the reconsideration of some connecting factors is mentioned, e.g., for the establishment and extinction of rights in rem concerning the movables transferred on the base of a contract, for the reservation of proprietary rights, in some cases of relations of family law. The differentiation of the connecting factors in particular categories of compensation for damage is also recommended. It is also recommended to insert the regulation of the bankruptcy cases with international element and a special part dealing with the arbitration procedure in international relations and the recognition and enforcement of foreign arbitral awards. The potential new regulation shall be a complete codification concentrating in one Act all conflict rules, rules regulating the rights of aliens in the private-law relations and the rules of the law of international procedure.