|
ELIÁŠ, K.: Equity and Private Law.
Právny obzor, 100, 2017, č. 4,
s. 337 – 390.
Abstract. The main part of the essay addresses the issue of application of
equity in the decision-making practice of Czech and partially Slovak courts in
civil matters. The author has interpreted the topic of the essay with references
to the intellectual basis of perception of equity in ancient Greece and by Roman
lawyers. The author comparatively suggests different paths followed by the legal
practice in the search for justice in tried cases, the author notes the risks of
a strict reading of the law and of judicial libertarianism. He points out that
in the period of so-called communism argumentation by the principles of equity
did not appear in the case-law and that a decent judge was able to find an
equitable solution also in complicated cases. However, before 1948 in the common
state of Czechs and Slovaks, the high courts worked with equity. Although the
word “equity” is not a term used in written law of the Czech Republic and the
Slovak Republic, the case-law in both countries had returned to equity and used
it as a method of the search for justice. The author analyses the achieved
results and shows how these trends were taken into consideration in the Czech
Civil Code from 2012. The essay is accompanied by a number of references to
examples of decision-making practice.
Key words: equity,
justice, civil law, continental system, common law, the Civil Code, caselaw
|
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).
|
