ISSUE 3 ( PRÁVNY OBZOR 2016; 99 (3) )
Právo a spotrebiteľ
Z vedeckého života
Recenzie a anotácie
Law and consumer
From Scientific Life
Book Reviews and Annotations
ELIÁŠ, K.: Smluvní autonomie při organizaci obchodních společností.
Právny obzor, 99, 2016, č. 3, s. 171 – 185.
Contractual autonomy in corporations regulation. The author analyses among others the approach to the limits of autonomy in corporations regulation in the Czech legal environment. He refers to two major factors that influence the mental tendencies to limit the freedom of the will in this respect. The first factor is the application of legal paradigms by non-democratic establishments during 50 years, where in particular so-called socialist law regarded the corporations regulation as mandatory. The second factor is a fascination by German stock law and the Satzungsstrenge doctrine, which the domestic practice, among others due to the permanent influence of the first factor on legal thinking, extended to cooperatives and limited liability companies. The new legislation, i.e. the Civil Code and the Corporation Law adopted in 2012, may motivate to abandonment of this “path dependence” in the practice of the Czech Republic. Time will show whether it actually happens. In this context the author highlights the role of legal science in the cultivation of legal thinking.
Key words: autonomy of the will, corporation law, statutory strictness (Satzungsstrenge)
GAHÉR, F. – ŠTEVČEK, M.: Logická (ne)konzistentnosť normatívneho systému a jej metodologické korekcie.
Právny obzor, 99, 2016, č. 3, s. 186 – 203.
Logical (in)consistency of a normative system and its methodical corrections. The article is a part of a discussion about the meaning of logic in the area of law. The authors treating in a polemic way some common ideas and connotation of the term „legal logic“ – according to them there is a difference between a logic in a formal meaning, dealing with the structure of the nature language and methodology. In a situations, where formal logic seems to be insufficient to provide a solution of problems with the interpretation and/or application, correct methodology is only able to solve such problem. The authors of the outlined purposes briefly explicate core concepts, such as the normative system (as a set of relatively closed binding rules as defined segment of social relations), paying particular attention to the law system, further interpretative rules and methods (with interpretation, in general, is explaining the connection between the facts (actions) or the interpretation or clarification of the meaning of a particular text), logical consistency and inconsistency (a condition where the set of rules may or may not also draw the assertion and also a negation of this assertion). Inconsistency of normative texts can be either a logical inconsistency or methodological inconsistency. In addressing challenging legal matters, it is necessary to pass from the logic to the methodology, which, of course, logic and logical semantics remains necessary armature of reasoning.
Key words: logical inconsistency, formal logic, methodology, interpretation, gap in the regulation
ŠTEVČEK, M.: Jeden problém a pokus o jeho riešenie (čo by na časť úpravy neodkladných opatrení v CSP povedal Malý princ).
Právny obzor, 99, 2016, č. 3, s. 195 – 203.
A problem and an attempt to solve it (What the Little Prince would think of the urgent action regulation in the Civil Contentious Procedure (CCP). The article deals with the specific problems stemming from (apparently) logical inconsistency of legislation regularisation of the elimination of the defects in case of applications for urgent measures. At the first glance, without further interpretation, it seems so called logical inconsistency of normative text of Civil Contentious Code´s provisions norming either general conditions of any submission addressed to the court and either especially in case of submission of the application for the urgent measure. Author after the raise of the problem exploring of the possibility of the interpretative removing of the glance logically contradictory legal regimes of Articles 128, § 129 and § 327 of the Civil Contentious Code. Interpretive meta principle (also derogatory principle) lex specialis derogat legi generali matures to postulate of different legal regimes of applications for urgent measures in the main proceedings, and those who are not administering proceedings. Conclusion and author´s advised wording of so called operative, concretely applicable norm underlines rational interpretation of legal text, in conformity with the parole contained in literary works, e.g. Exupery´s Little Prince, and in in literature of fact by plenty of authors in law branch and also in general methodology of the science.
Key words: Civil Contentious Code, urgent
ZLOCHA, Ľ.: Právna regulácia reklamy šírenej prostredníctvom elektronickej pošty.
Právny obzor, 99, 2016, č. 3, s. 204 – 218.
Legal regulation of advertising disseminated via e-mail. Advertising is a phenomenon of modern society, without which we cannot imagine functioning and prosperous economy. Internet advertising is nowadays regarded as an independent marketing tool. Increasingly, however we can still observe sending of unsolicited advertising messages that present a product or service or encourage the recipient in that direction to do more. In this article the author analyses legal regulation of advertising disseminated via e-mail. Dissemination of advertising via e-mail is regulated not only by public or private national law, but is also regulated and harmonised by EU law. Whereas the dissemination of advertisements via electronic mail is an advertising action, legal regulation also applies to the use of electronic mail as an advertising tool. Doctrinal understanding of spam as unsolicited messages of any content is broader than the definition contained in the framework of EU legislation, which is limited to unsolicited advertising messages disseminated by e-mail. What remains questionable is the issue of the effectiveness of anti-spam rules because the possibility of using anti-spam law standards is considerably restricted taking into account existing limits of national jurisdictions.
Key words: advertisement, advertising, e-mail, spam, opt-in, opt-out, unfair competition, EU law, personal information
BALOG, B.: Legislatíva o legislatíve.
Právny obzor, 99, 2016, č. 3, s. 219 – 233.
Legislation on Legislation. The state of legal system in Slovakia is subject of long-term criticism, not only by lawyers, but also generally by public, by the addressees of the law. They feel that laws are created in a process that is distant and inaccessible for them. Role of the State is to strengthen citizens‘ confidence in law, open the legislative process and make it transparent. In 2015, two Laws were adopted relating to the preparation and drafting of Laws and parliamentary discussion about proposed Laws. The present Paper deals with the Amendment to the Rules of Procedure of the Parliament in 2015. It takes note of the changes relating to the publication of the proposed Laws and Amendments. The Paper understands it as a deepening of the Principles of Sovereignty of the People in the activity of the Parliament. The second area is the Analysis of Rule prohibiting Amendments that bear no connection with the proposed Law, which the Paper assesses as a major benefit of the Amendment to the Rules of Procedure of Parliament in 2015.
Key words: Legislation, Parliament, legislative process, Amendments, publication of the Laws and Amendments
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