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MORAVČÍKOVÁ
MORAVČÍKOVÁ, A.:
Position and nature of case-law in the new procedural law
Právny obzor, 99, 2016, č. 4, s. 259
– 273.
Abstract. The author reflects on the position of case-law in the
legal system of the Slovak Republic and on its nature and searches for answers
to the question what decisions should be regarded as binding case-law also in
the context of the new civil-law codification. The case-law is related to the
term “judicial law-making” and always results from interpretation of legal norm
based on certain facts, when the norm does not give unambiguous answer to an
issue put before a judge, whose creativity in the continental system of law is
strictly limited by the law and interpretation rules. She refers to certain
deformations in use and excessive use of the term “case-law” in legal
argumentation. She concludes that this term bears an element of designation of
the judicial decision in general, but in the context of its correct use in
argumentation decisive for achievement of the purpose of unification of a
certain legal opinion on the case in question we can talk about a binding
character of case-law only when referring to decisions of the supreme judicial
authorities. The author works with several key judgments of the supreme and
constitutional courts, makes references to decisions of lower courts, which
address the term “case-law” and its binding character, defines the terms
“cassation and judicial binding force” of higher instance judgments and points
out to the problematic taking over of the terms of the common law system into
the continental law system. In connection with use of legal sentences extracted
from published judgments of the supreme court she expresses the concern about
their unsuitable application similar to the application of generally binding
legal norms and points out to so-called “casuist positivism”. A large part of
the work is devoted to the analysis of law regulating the method of adoption of
case-law by the Supreme Court of SR, the new regulation on civil proceedings in
the area of formulated binding force of case-law and the introduced obligation
to respect decisions of the supreme judicial authorities by lower courts, as
well as the obligation to provide sufficient and convincing reasons for any
justified deviation from them. Finally she expresses her belief that the basis
of legal certainty is transparent, comprehensible and correct adjustment of
legislation taking into account social and economic needs of the country, i.e.
stable norms that are respected also in the light of caselaw created on their
basis without need of their continuous completion and improvement.
Key words: case-law – established
court practice – judicial law-making – precedent
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ISSN 2729-9228
(online)
ISSN 0032-6984
(print)
THEORETICAL REVIEW FOR ISSUES OF STATE AND LAW.
Právny obzor is peer-reviewed journal and is indexed in SCOPUS and HeinOnline database (INDEX TO FOREIGN LEGAL PERIODICALS).
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