Introduction > The Law After 1. 1. 2014

The Law After 1. 1. 2014

Dear readers and fellow colleagues, The new Civil Code, Companies Act and numerous accompanying regulations have been in effect for half a year now. I would like to relieve and share with you my frustration at what we are faced with every day.
 
In general, politically speaking, the fact that the Civil Code has been enacted is positive. We can, of course, discuss the insufficient length of the vacatio legis period, which now has resulted in the need to make relevant amendments. Unfortunately, the adoption of the laws was determined by political, rather than expert, pressures. This can be substantiated by exclamations made at that time, such as “Lawyers are lazy to learn a new text” (Justice Minister Dr Benešová) or “The text has been subjected to a high-quality review by experts” (Justice Minister Dr Pospíšil). We lawyers know that these words do not match the reality. Nevertheless, from the perspective of future legal development of the Czech society, both the Civil Code and the Companies Act advocate the standards of EU law by permitting and combining an unprecedented range of various concepts. This general quality must be appreciated, and what should be particularly emphasised is that it puts a definitive end to the dominance of socialist law. We can be happy that we finally have an opportunity to offer our clients adequate legal solutions in many situations, either (in particular) in the event of death or in other, purely notarial matters. All in all, the texts of the laws are not perfect in some details but the intention was good and the effort should be appreciated.

However, as for the application of the new legislation in daily legal (as well as notarial) practice, we may not look on the Civil Code or the Companies Act quite so favourably. Notaries are of the opinion that the texts were not, and for time reasons, could not be subjected to critical scrutiny by lawyers from practice. The legislation has deficiencies that prevent a non-conflicting and convincing application of the law and the phrasing of individual provisions has become a topic of discussions among professionals, often with a distorted purpose. We are unhappy with the quality of the legislative work. The legal community is keenly awaiting the promised first, technical amendment to the Civil Code that is to remove the most serious flaws. It is funny to hear the authors vigorously defending the existing texts and referring to future times when everything will be crystal clear and interpreting opinions of the courts will be available for practice.   

The speed at which the laws were adopted was sacrificed to quality. This was a political deal. However, there is no reason why we should accept a poor quality text as a necessary evil at the very beginning and not try to improve the situation forced upon us. This all can be best summed up as a failure.

During the preparations, it was said that the texts would be based on natural law, therefore more comprehensible to people and easier for day-to-day application. The opposite is true. It is surely not a fault of the authors that the only sentence from the Civil Code that has received the most of the media’s attention was “The animal is not a thing.” To me, the lucidity is best evidenced by the fact that I could set up a call centre in my notarial office that would answer questions raised by attorneys, bank lawyers, businessmen and other individuals (often representatives of housing cooperatives or unit owner associations). And what they all demand is the answer to questions arising between the lines of the new regulations. Or, in a worse case, they are unable to understand the text of the law at all.    

I was expressing my concerns over the quality of the newly adopted laws at a time when the authors kept trying to persuade us that the legislation was perfect and that we would have to wait many years for the decision-making practice of independent courts to establish – that is, wait for judgments that would clarify the controversial provisions.

Recently the political climate around the Civil Code and the Companies Act has changed, and a first amendment to both regulations is being prepared. I am glad that the texts have been criticised since the very beginning by Dr Čech as well as Dr Marvanová. Lately a very strong disapproval has been expressed by Prof Pelikánová (Právní rádce No. 7/2014, also at www.justice.cz) and Dr Drápal (www.justice.cz). Opinions for discussion were presented by Dr Havel (Právní rádce No. 8/2014), along with occasional but matter-of-fact presentations by Dr Robert Pelikán in the media (such as DVTV online TV) and many other experts (such as Dr Baxa and Dr Lichovník) in specialist publications.  

At this point, I remember a meeting with my I.N.C. colleagues in Sofia, Bulgaria, in November 2013. I told them my doubts regarding the quality of the new laws and expressed my concerns about the uncertainty that lied ahead of us. A slight smile appeared on their faces when they learned that the new civil law regulation was not the result of a social consensus and wide public debate but of political pressures from right-wing parties. I was told that such a fundamental legal code cannot be adopted by force – for one thing, it is unworthy, and for another, it can be expected to destabilise the legal order of the country. To me, their words seem to be visionary now.

Let me add my last comment from the perspective of a practicing notary regarding the statement of the Institute of State and Law with the Czech Academy of Sciences of 3 September 2014. Thirty theorists have offered their expertise to the service of the state in order to jointly identify and analyse problem areas of the Civil Code. This initiative has been welcomed by the Justice Minister as a positive sign. However, I can only agree with the opinion of the theorists from a theoretical point of view and must strongly object from the practical view. Removing system errors as fast as possible is, in my opinion, not impetuous – instead, it is necessary unless we want to paralyse the few legal certainties of our state for many years. I must also express my disappointment at the presentation of the Civil Code ideas by some theorists, such as Messrs Korbel, Melzer, Tégl, and Bednář. To sum up: the shortcomings of the Civil Code bring back memories of the time when legislation was formulated in respect of investment funds, photovoltaic business, tunnelling of anything and coupon privatisation, and in particular – in particular – of those names… Will these words be visionary as those spoken by my colleagues in November 2013?

Considering the above, I trust that the amendment will help to improve the situation surrounding the Civil Code and the Companies Act and will give meaning to our work.

JUDr. Martin Krčma
September 2014