Když zákon mlčel: § 7 OZO pohledem právní vědy a Nejvyššího soudu Československé republiky v první polovině 20. století
When the Law was silent: Section 7 of the OZO from the Perspective of Legal Science and the Supreme Court of the Czechoslovak Republic in the First Half of the 20th Century

Summary/Abstract: The paper deals with legal science focused on Section 7 of the OZO in the first half of the 20th century, with the subsequent focus on the case law of the Supreme Court of the Czechoslovak Republic. The provision of Section 7 regulated (and still regulates in the ABGB) the filling of loopholes in the law, i.e., situations where a legal case cannot be decided by subsumption under legal norms. According to Section 7, in such cases, provisions based on analogy are primarily applied. If it is not possible to decide a legal case even on the basis of analogy, the judge is to decide arbitrarily according to natural principles of law. Contemporary legal science did not agree on a theoretical legal level what the concept of natural principles of law means, nor on a conceptual level on whether the provision is necessary and in what form. In contrast, the Supreme Court was relatively certain about the reference to natural law, as well as the concept of the provision, in which it saw an opportunity for more “equitable” decision-making. The case law itself is thus not very copious, but the individual decisions are all the more interesting. The article outlines the genesis of the provision and its interpretation in the first half of the 20th century (except for the period of the Second Republic and the Protectorate) and then focuses on court decisions that exceeded (?) the intention of the legislator, with the Supreme Court applying Section 7 as an equitable general rule rather than as a concept to fill a loophole in the law.

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