Nad vývojem i současným stavem rekodifikace českého soukromého práva

The article is subdivided into two parts. While the first part reflects the so far development in the recodification of the Czech private law and its trends, the second part of the paper analyses in general terms certain parts of the Civil Code as arranged according to sections and presented for discussion. At the beginning, the authors state that after the year 1989 with respect to the initiated fundamental social changes, especially in the light of the transition to market economy, the situation in legislation was far from satisfactory. Therefore, after the first urgent legislative initiatives (fundamental amendment of the Civil Code, adoption of the Commercial Code) a pressing need for a systematic re-codification of private law arose. Each civil law codification represents an important landmark not only in the development of the civil law itself, but it is a landmark in the legal system as a whole. This applies both to jurisdictions where the new codification through the new enriching elements consummates the prior consolidated and stabilized development and to such jurisdictions - as is the case of this post-communist country – where the recodification represents an opportunity to heal the vacuum in civil law and the deformations and weak points of the civil law regulation before the year 1989 (see especially considerable disintegration of individual parts of civil law provided for in a number of codices, among which, however, no necessary links have been established). The article concludes that in spite of numerous de-codification phenomena, characteristic of modern society, the codification of private law is the basis of unified and integral system and does not represent a hangover of the old times. For all these reasons it was perfectly justified to proceed to the re-codification of civil law in this country. The codification, however, has to meet certain fundamental prerequisites in order to exercise its function in modern society. First, in its fundamental concept expressed most generally in the code the re-codification must reflect – through its philosophical idea determining the purpose of private law together with its universally recognized unifying civil law principles, either explicit or not, as well as through the regulation of the fundamental civil law concepts effected to a reasonably general degree and on a professional level – not only the current situation and needs but also the civil law relations to be expected in the third millennium. This fundamental approach expressed in the most generally conceived code must also allow for continuous and flexible responses to new phenomena arising from the current accelerating speed of social, economic, and technological changes. To meet these purposes, the conception has to be such so as to enable the creation and functioning of special legal norms, especially acts, which as complements to generally conceived code shall represent integral parts of a unified and integral system of civil law and the court decision which within the framework of continental written law play a role indispensable in the process of formation of the contents of civil law norms. The present paper argues that the submitted codification introduced by the most generally conceived code as universal basis, which in a subsidiary manner is applicable to all other branches of civil law, is capable of meeting the expectations of the modern society to have a unified, integral, complete, yet open, harmonized and transparent system of private law. It is the Civil Code that should assume the position of such generally conceived code (codex) also because it has always played such role and has had a traditional position in continental law. In the following passages, the article focuses on the mutual relationship between the Civil Code on one hand and the Commercial and Labour Codes on the other. In conformity with the intended subject-matter of the law as subsequently adopted, the article comes to a conclusion that it is theoretically justified and systematic to designate the special commercial regulation currently in preparation as a law. This special business regulation in a form of law shall in its coherence (it will involve the provisions regulating fundamental business law concepts, companies, co-operatives, etc.) is going to represent a secondary general basis to be applicable for other business law norms in a subsidiary manner. On the other hand, the article is critical of the fact, that the approved intended subject-matter of the Civil Code counts on the existence of Labour Code which fact is incoherent from the theoretical as well as systematic point of view. It is true that the subsidiary affect of the general part of the Civil Code (as a basic private law code) on employment relations is admitted (subsidiary principle), the leading principle, however, is that the Labour Code itself determines which provisions of the Civil Code may apply to employment relationship (the principal of delegation). In its second part, the article analyses – mostly in general terms – the submitted general part as subdivided into sections and the authors show some of the fundamental strong points of this part (the approach to private law in its completeness, natural link with the constitutional and international bases of private law, the emphasis placed on the non-mandatory character of the private law regulation), and they also draw the attention to some of the weak points (especially the system of delimitation of the regulation of general rights of persons in the Civil Code and in the special legislation, the proposed regulation of juridical persons, the proposed conception of things). The article also deals with the legal terminology, the formulations and the legal language as a whole which is used in the general part as subdivided into sections. In this respect, the paper recommends a rather reserved approach with respect to the principal of continuity. Terminology, terminological phrases and concepts once adopted both in practice and theory and used over a long period of time, and then changed, may bring about the risk of destabilization of legal practice and cause legal uncertainty. In the conclusion, the authors explain why the adoption of the new Civil Code as a universal basis of private law, should not be unreasonably hasty with regard to its key role in civil law, legal system and the life of society at large, no matter how urgent such re-codification appears to be in this country, its legal system and society. The commenced and continuing legislative work should not result in immature civil law re-codification which would in its system, contents and terminology represent anything else than modern, relatively stable, well designed and solid framework for private law relations rightly expected by the public.