Bulletin advokacie - Česká advokátní komora

BA 11-12 inf.a zaj 127-136.qxd 27.11.2006 14:20 StrÆnka 136
contens/summary
Miloš Zbránek: Regarding the Carrier’s Lien pursuant to s. 628
of the Commercial Code
Application of the carrier’s lien in practice involves
many problems and from the point of view of the person
exercising the lien also numerous risks, because
for example a mere deviation from the correct formal
procedure produces a risk of possible damages and
even criminal prosecution. The author in his article
describes a concrete case when a carrier, who had
exercised a lien, became subject to criminal prosecution.
Vladimír Doležel: Several Comments to Use of Incoterms (with
emphasis on inland trade)
This article deals with the use of Incoterms, currently
widespread in international and inland trade. The
author argues against the current practice of use of
Incoterms clauses in inland trade, because in his opinion
the use of Incoterms is not desirable in inland
trade due to inefficiency and possible difficulties that
Incoterms may cause to contractual parties. In addition
to that the article in general mentions the most
often ills connected to use of Incoterms clauses in
practice.
Alice Bártková, Martin Laipold: Contractual Limitation of Damages
in Relations from Contract of Carriage according to Commercial
Code
The article deals with admissible forms and extent of
limitation of damages for a loss caused by a carrier
according to commercial law. In principle it assumes
admissibility of such limitation with exceptions set by
s. § 622 (4) of the Commercial Code. The authors in
their arguments specify particularly the reasons for
admissibility of such limitation resulting from interpretation
of s. 622 (4) of the Commercial Code in the
light of s. 629 and s. 624 of the Commercial Code and
reasons resulting from international legislation for
contracts of carriage.
Patrik Frk: Accordance (Discordance) with Purchase Contract
according to s. 616 of Civil Code
The article responds to introduction of the institute of
accordance (discordance) with purchase contract, implemented
into the Czech law by Act No. 136/2002
Coll., which amended Act No. 40/1964, Civil Code, as
amended, with effect from 1 January 2003. The introductory
part concentrates particularly on specification
of the legal definition of “accordance with purchase
contract”, than the text deals with an analysis
of the factual basis of discordance with purchase contract.
Because the purpose and aim of introduction of
the institute of accordance with purchase contract
consist in the protection of consumer, the final part
of the text described rights of a consumer in case
when discordance with purchase contract occurs.
Jan Tuláček: Copying of Literary Works Protected by Copyright
for Personal Needs
The author deals with one of the ways of free use of
a literary work, widely applied in practice. It consists
in reproduction on paper or similar media, i.e. copying.
The author applies the amended wording of the
Copyright Act introduced by Act No. 216/2006 Coll.
He concludes, that neither legal theory nor practice
define sufficiently the concept of “personal needs”
upon reproduction of such work and the newly introduced
concept “own internal needs of a legal person
or an entrepreneur – natural person”, which in practice
may result in a harm to copyrights. In this respect
the author offers a certain variant of interpretation of
the mentioned institutes and possible use of sanctions
for a breach of copyright.
Jan Roth: Legal Nature of Political Party Membership
In the introduction the author contemplates certain
issues related to registration of a political party and
its statutes, and the legal nature of a political party
membership, its creation and particular aspects and
ways of its termination. In the end the author mentions
the contentious issue of possibility or impossibility
of declaration of membership in a political party
to be absolutely null and void from its very beginning.
Renáta Zbranková: How to Cope with Possible “Cancellation” of
Possessory Right due to Withdrawal of Preceding Transferor
from Contract on Transfer of Real Property?
Within the scope of the current debate regarding conclusions
of the Position of the Civil Law Division and
Commercial Division of the Supreme Court of the
Czech Republic dated 19 April 2006, file no. Cpjn
201/2005 with respect to interpretation of the provision
of s. 48 (2) of the Civil Code, the author contemplates
the possibility given by s. 48 (2) of the Civil
Code, namely the possibility to agree an effect of
withdrawal from a contract on transfer of real property
in deviation from legislation (ex nunc instead of
ex tunc) and consequences of such agreement for
subsequent transfers of the given real property. The
agreement in the initial contract for transfer regarding
ex nunc consequences of the withdrawal should
in the author’s opinion protect the future transferee
of such real property in good faith from termination
of his/her possessory title due to withdrawal from the
initial transferor from the initial contract .
Andrea Jíšová: Motion of Attorney General to Deny Paternity in
Practice (for Discussion)
The author criticizes the practice of the Office of the
Attorney General regarding motions to deny paternity,
which often interprets the concept of „interest of
the child“ in a purely economic manner. She proposes
a legislative amendment
to passing of lapse
period in order to make
the period running from
the moment when the registered
father evidently acquires
a reason to doubt
his paternity. According to
the author it is necessary
to consider whether the
right to file a motion to de-
ny paternity should not be
awarded to the child, as
well.
Hana Sayehová: Re article by
Luboš Chalupa „Reduction of
Community Property of Spouses“
(discussion)
The article responds to
the opinion expressed by
JUDr. Luboš Chalupa in
the Bulletin of Czech Bar
Association, 7-8/2006,
that a reduction of community
property may be
applied also to a housing
co-operative membership
shares of spouses, i.e.
that by an agreement of
spouses a termination of
joint membership may be
agreed and individual cooperative
membership of
one of the spouses may
be established or that by
an agreement of spouses
an increase of community
property within the mean-
136
BULLETIN ADVOKACIE 11-12/2006
ing of s. 143a (1) of the Civil Code may establish their
joint housing co-operative membership. The author
denies the published opinion of JUDr. Chalupa and
tries to point out specific features of housing co-operatives.
Tomáš Chramosta: Compensation of Execution Costs upon Decease
of the Debtor in the light of Award of the Constitutional
Court II. ÚS 372/04
In his article the author disputes the award of the
Constitutional Court II. ÚS 372/04. The award unambiguously
inferred mandatory nature of s. 3 of Regulation
No. 330/2001 Coll., and in this respect also
the duty to oblige the creditor to pay execution costs
including a minimum fee of CZK without any regard
to procedural fault, i.e. in case of decease of a debtor
in course of execution. The article states arguments
against this award and proposes solutions to similar
cases.
Luděk Lisse: Several Comments to s. 3 of Act No. 85/1996
Coll., Act on Legal Profession, and to Certain Related Provisions
The article is a sort of introduction into the issue of
limits of legal profession in relation to the principle requiring
an attorney to be bound by the client‘s orders,
which constitutes one of the limits for a due performance
of the legal profession, and in relation to the
principle requiring an attorney to be bound by the law.
Excess of either limit then generates liability relationships
discussed in general. A possible criterion
for assessment of such excesses may consist in
measuring of the extent, in which the incorrect or intentional
legal opinion of an attorney obviously does
not correspond to the opinia iuris doctorum prevailing
at the relevant time, judgments of higher courts
and due diligence practice.
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