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První zásada soukromého práva (Zásada
autonomie vůle: respekt ke způsobilosti člověka tvořit si vlastní životní poměry)
The first principle of
private law (Principle of autonomy of will: respect of the ability of a man to
create his or her own circumstances)
Prof. Dr. JUDr. Karel Eliáš,
Faculty of Law of the Trnava University in Trnava
Právny obzor, Volume 102, 2019,
No. 5,
pp. 375 – 389.
Published online: 31.8.2021
Abstract. Autonomy of
will (private autonomy) is the first value of private law and the principle of
private autonomy is its first principle, because private law would not exist
without them. Many other principles adhered to by private law (respect of good
morals, honesty, neminem laedere, prohibition of abuse of rights, pacta sunt
servanda, etc.), would lose its function without autonomy of will. By the way,
also private law concepts can be understood and interpreted on the basis of the
principle of autonomy of will. “Autonomy is the ground of the dignity of the
human and of every rational nature” (Kant). Private autonomy is derived from
personal freedom. The article notices that this key term disappeared from Slovak
and Czech law of the socialist era, because also civil law then perceived an
individual as a component of a social “machine” building up communism. Freedom,
and hence private autonomy, are now protected by constitutional safeguards that
limit the public power. The author takes note of the contradictory phenomena of
modern times and the contending trends of protection of freedom of an individual
to mold his or her own private affairs independently and on his or her own
responsibility according to his or her own will, but also its limitation under
the slogan of public interests, security and public order.
Key words:
freedom, civil law, autonomy of will, private autonomy, freedom to contract,
principle of proportionality, progressivist humanism
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ISSN 2729-9228
(online)
ISSN 0032-6984
(print)
TEORETICKÝ
ČASOPIS PRE OTÁZKY ŠTÁTU A PRÁVA.
Právny obzor je
recenzovaný časopis a je indexovaný v databázach SCOPUS a HeinOnline
(INDEX TO FOREIGN LEGAL PERIODICALS)
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