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The goal of this article is to analyse the impact of a legal regulation of the General Data Protection Regulation on employment relationships. The scope of this contribution is preferentially on a regulation reacting to modern technologies applied to the processing of personal data. The main object of this article is therefore a regulation of decision-making based on automated processing including profiling and its suitability to cope with specific problems, which are caused in employment relationships in practice by the automated decision-making. The result of the analysis is a conclusion that regulation of the automated decision-making and profiling stated by General Data Protection Regulation could, depending on resolving of an interpretation unclarities, notably strengthen the protection of rights and position of employees subjected to the automated personal data processing. On the other hand, new regulation imposes a challenge for employers to adapt the decision-making processes to difficult conditions, but also for developers of profiling algorithms to ensure a transparency of the automated decision-making.
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This paper focuses on analysis of specific activities – duties – of a court within the material conduction of proceedings according to the civil law procedure. These duties are explanatory duty, interrogatory duty and court´s duty to instruct that serve the court to reach truthful and full clarification of merits of a case. Particular impact is put on contents and limits of the court´s duty to instruct; these issues are further described in comparison with the German and Austrian decision-making practice.
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With regard to the recodification it appears the approaches leading towards identification of two separate prerequisites of liability, namely the wrongfulness and the fault. Relying on the definition of negligence assumptions, different opinions are heard about how the culpability should be understood. What the assessment standard (purely objective, differentiated objective, subjectivised or purely subjective) should be applied to it. Necessary to these considerations (and theoretical solutions) is also an analysis of wrongfulness in terms of its meaning and function in tortlaw system. The purpose of the paper is to approach the comparative context (Austria, Germany, France, Switzerland, Netherlands, Italy), and to analyse the wrongfulness in the new Czech private law with special regard to new wording of basic general clauses as well as the prevention dispositions. The purpose of the analysis is to show the usefulness of a thorough separation of wrongfulness and culpability and their different functions in delictual system. I believe that the fault should not merge with wrongfulness, i.e. it should not be significantly further objectified and should continue to perform the function of a particular subjective corrective in the development of civil liability based on fault.
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Divorce is a complicated and unpleasant life event for any involved married couples. The court proceedings are even more complicated and prolonged in the cases of divorce with a foreign element, because the judge must deal with the questions concerning jurisdiction and applicable law. It makes the situation for the spouses even harsher. The family law is often built on the tradition and history of every nation or region and thus the complex unification is not conceivable. On the other hand the party autonomy, traditionally inherent for the business law, is nowadays more visible also in the area of family law. The article examines the regulation of prorogation of the court jurisdictions for the proceedings focused on the personal and property rights of the spouses in international marriages, while the main attention is paid to the divorce and dissolution of the common property after the divorce.
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In April 2014, a new directive on private enforcement of damage claims from competition law infringements has been adopted. The directive attempts to improve the conditions for private actions in the field. Although there is a relatively rich case law in the public enforcement of competition law and damage claim cases pending in Czech courts, there are no final decisions yet. The article attempts to compare the new tools offered by the directive with existing tools available to plaintiffs for use in enforcement of their damage claims. The article also attempts to predict whether the new directive provides sufficient incentives to increase the number and success rate of damage claims from competition law infringements.
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The paper deals with the hypothetical settlement of marital property, new institute, arranged in § 732 of the Act no. 89/2012 Coll., The Civil Code, which according to the author deserves much more attention than it had previously dedicated. The aim of this paper is to answer the following questions - what is hypothetical settlement, when and under what conditions can be used, what are the procedural means of protection „against“ hypothetical settlement of marital property.
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The article deals with a judicial settlement proceedings in civil courts. It presented this type of proceedings as a useful form of alternative dispute resolution method (ADR method). Historical background is covered to show the development and different approaches to the judicial settlement. The paper also points at current problematic aspects of provisions dealing with judicial settlement proceedings, such as absence of limitation of time when instituting the proceedings. Since the EU direction about mediation in civil and commercial cases has been implemented, proceedings can also serve for executing the mediation agreement. The article raises the question whether judge should hold such a proceedings, although his primary task is to adjudicate the cases. Austrian legal system has similar provisions upon judicial settlement proceedings, thus the article contains comparison of these two systems of law. Austrian obligatory form of settlement could become an inspiration in Czech law.
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The aim of this contribution is to analyse the impact of civil liability of the providers of health and social services according to the Czech civil code (89/2012 Coll.). The focus lays on the unlawfulness - on the relationship between general prevention duty and duties stated by the special statutes; statute of social providers 108/2006 Coll. and statute of health care 372/2011 Coll. There are two special cases on which will be demonstrated the unlawfulness and breach of personal rights of individuals.
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The paper deals with the legislation of disinheritance in the Civil Code, especially the possibility of the testator to apply disinheritance to the descendants of disinherited heir. The current legislation allows the testator to apply disinheritance also to the descendants of disinherited heir, but yet distinguish whether disinherited heir survived the testator or not. At the same time formulation of the law only mentions exclusion of descendants of disinherited heir from their right to inheritance, but not from the right to legitimate portion. Different regulation applies to inheritance incompetence, which applies only to the incompetent heir and not to his descendants, even though it is a situation comparable with disinheritance.
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Testing is necessary to ensure the effective enforcement of the anti-discrimination laws. Discrimination in housing is rarely overt. Testing is often the only means available to show that a housing provider was motivated by discrimination. Testing can rebut claims that the housing was unavailable and can show that similarly situated applicants were treated differently or given false information because of their protected status. Testers who are treated differently suffer damage, and they should be awarded damages similar to those awarded bona fide complainants.
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The article deals with the adoption of children by civil partners from the perspective of the right to equal treatment. Adoption of children by civil partners can be divided into three categories; namely individual or joint adoption of a foreign child and the adoption of the child of second partner (second-parent adoption). Attention is paid to all these situations. The article also pays attention to the recent Constitutional Court judgment which derogated Sec. 13 para. 2 of the Act on registered partnerships that banned civil partners to adopt a child. The issue of adoption does not affect only the Czech Republic therefore the reader will be briefly acquainted with European context.
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The author in article deals with the minimum standards of reasoning of administrative decisions in the Central European context, ie. in the light of the legislation of the Czech Republic, Germany, Austria and Poland with regard to the documents of the Council of Europe and the case law of the ECHR. Reasoning guarantees legality in public administration and is important part of the system of protection of public individual rights, and this paper analyzes common shared minimal demands on reasoning using a study of the literature, analysis and partial comparison of legal systems in selected countries, including the case law of the administrative courts. In Central Europe, the unifying element of the minimum requirements for reasoning (with slight variations) is the duty administrative authority to bring essential (substantial) reasons why the administrative authority take the decision in conjunction with the evaluation procedure documents and evidence. This issue is the main part of the article. The author also deals with the possibilities of issuing decisions without reasoning. These exceptions are analyzed mainly on the issues of the compliance with principle of proper reasoning as one of the general principles of law.
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Increased migration flows reopen the debates related to the system of processing and reviewing applications for international protection on EU level, as well as on the national level. The debate on national level is influenced also by the need to implement the obligation to provide full and ex nunc examination of both facts and points of law, including the international protection needs. This development leads to the questions related to the functionality of current system of determining authorities in asylum matters and the system of review of decisions on international protection, more particularly to the question which authority should decide on and review the applications in asylum matters. The article focuses on the possible amendments with respect to determining authorities and with respect to system of judicial review in asylum matters that currently does not fully comply with revised Procedures Directive.
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The paper deals with the institute of guardian for contact that is regulated in the German Civil Code. It informs about the concrete regulation in the German law; when the guardian for contact is named, what are his tasks, who can become the guardian for contact in Germany. Consequently to the interpretation of German legal regulation the paper speculates about a possible take-over of this institute to the Czech legal regulation. On one hand it deals with the possible application under actual legal regulation, on the other hand it deals with other necessary related questions that have to be cleared, eventually regulated by law. Especially it concerns problems of delegation of the guardian for contact – who, and under which conditions, can be named for guardian for contact, what are the qualifications for the person of guardian for contact, what rights and duties would be related to the discharge of the function of guardian for contact and how the question of remuneration would be solved.
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Review - DERLATKA, Joanna: Wyłączenie sędziego w postępowaniu cywilnym. Warszawa: Wolters Kluwer SA, 2016, 493 s. ISBN 978-83-264-9271-6
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The Act on Public Contracts represents primarily a specific area of contractual procedure; however it also includes e.g. guidelines related to change in liability in public contract. In which way will be the selected provisions of the new Civil Code projected during the procedure of awarding the public contracts? Will be possible, in the case of public contracts, to consider exercising a pre-contractual liability and seek damages if the public contracting entity sets aside an award procedure? Will the conclusion change if he public contracting entity breaks the Act on Public Contracts? And is it possible, in the case of public contracts, to consider exercising limits for standard form contracts? If it is, will the court has jurisdiction to change the contract significantly?
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The contribution deals with compensation of immaterial damages on health and changes related to the new Civil Code and ABGB. Compensation of immaterial damages on health belongs to the one of the most significant and controversial changes related to recodification of Czech civil law because former decree No. 440/2001 Coll was cancelled and now it depends only on judge’s discretion. The focus lays on new methodology made by the Supreme Court of the Czech Republic. The contribution also aims to focus on analysis of decisions of Austrian and Czech courts.
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What is the willfullness of the lawmaker and what are its consequences? The ambition of my contribution is not to come up with one complex answer to that question, but rather to outline the ways through which we can reach some satisfactory answers. This paper is based on the judicature of the Constitutional Court, because it draws a certain picture of the willfullness of the lawmaker on one hand, but adheres only to a two-level value evaluation of specific cases on the other: are they / are they not found to be the result of willfullness of the lawmaker. To maintain a solid evidence base case of the judicature, but at the same time not to being hampered by its bipolarity, I choose the following procedure. First, I define willfullness of the lawmaker. Then I try to generalize the cases in which the Constitutional Court finds the willfullness of the lawmaker. Only then am I developing my reasoning about how the willfullness of the lawmaker manifested in the act of law, and what possible consequences may this willfullness implicate for it.
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The recent public debate on the Czech version of the new Creative Commons 4.0 public license has seen a discussion, mainly led by Telec and Husovec that has shaken the very foundations of public licenses. In their discussion, both jurists have raised serious questions, concerning the nature of a public license – whether it is a contract, or simply an expression of consent. Their main arguments were concerned with the right to share the licensed works, the need to bind other licensors to the original license terms, liability issues and mainly tax issues. I have attempted to briefly introduce the public licenses and both views of the issue. Then, I have addressed each of the four main topics separately. For each topic, I have introduced the basic underlying concept, its legal reasoning and importance in the public licenses environment then described both of the views, contractual and consensual. With this background, I have tried to find the best solution to the given issue, also testing it for further possible weak points. Both of the views were compared and the better fitting solution was indicated. The outcome of the article is, that I have found solutions for all the described issues within the contractual framework, which proved to fit the public licensing scheme better. However, I have also proved that the consensual framework is feasible in some cases, while identifying its weak points.
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