Justiciální tvorba práva
Making Law Courts

Summary/Abstract: The authors of the article are trying to take their view on the question of the supplementation, let us say the creation of the law especially from the part of courts. This includes certain progress that had arisen in this area not even in the recent times. They describe in their paper the issue if the law, let us say ius scriptum, is or is not in the restrictive interpretation of the word the only source and instrument of the legal regulation. It is mainly about finding common points of concurrence in different types of decision-making processes in terms of functioning of courts inclusive the area of civil law and public law as well. The authors are aspiring to take up on ongoing expert´s discussion about the liability of court by the law especially what is concerned to the possible differences and various points of view with respect to difficult question of application of the law. The case law is created by decisions of court contrary and unlike to ius scriptum that is created by the legislative procedure by the legislative organ in terms of separation of powers on the grounds of democratic principles and legal state. With this judicial activity there can occur among others following situations. Binding force of the legal opinion of the higher court, practical binding force of a practise of the courts, further creation of constant case law, let us say unification, that has influence on application and interpretation of objective law which is explicitly expressed in normative acts, and binding force of the judicature in the judgments of the Constitutional Court of Czech Republic. Except the authoritative activity of the court when the court is solving particular legal situation, the judicial authority is by the application of the law also creating legitimate expectation of recipients of the particular legal regulation. Such judicial decisions are very important for foreseeability of similar legal disputes. Importance of the judge made law was expressed also in the judgements of the Constitutional Court of Czech Republic. The Constitutional Court said that the party in the suit shall not be surprised by the court´s decision when the legal case is analogous.

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