Nezmary v právním řádu: K neaplikaci podzákonných právních předpisů
Legal Debris in the Legal Order: On Setting Aside of Sub-statutory Legislation

Summary/Abstract: The article focuses on Article 95(1), the sentence after the semicolon, of the Constitution, which contains the power of a judge to set aside a Sub-statutory legislation if he concludes that it is unlawful. It therefore deals with the review of Sub-statutory legislation by the courts, the result of which, however, is ‘mere’ setting aside, i.e. non-application of such Sub-statutory legislation with inter partes consequences. The discussion of legal doctrine in this area is weak and focuses mostly only on considerations of the power to set aside by administrative authorities. However, the article grasps the institute in a more comprehensive manner, as a result of which a number of legally dogmatic questions relating to the issue are addressed. The subject of research is the relationship between legal certainty and setting aside, the role of setting aside as a means of protecting subjective rights against Sub-statutory legislation, the definition of subjects with the power of setting aside with emphasis on courts and the definition of the legal acts themselves that may be subject to setting aside. Within this framework, relevant case law is critically reflected upon, as well as forthcoming legislative changes.

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