Processes of Modernisation of Private Law Compared, and the CFR’s Influence

Author:Luboš Tichý
Position:Professor, Charles University in Prague

1. Introduction - 2. Civil law modernisation - comparison of approaches - 2.1. The state of the national system of private law - 2.1.1. Assessment criteria - 2.1.2. Legislation - 2.1.3. Jurisprudence and the judiciary - 2.2. Timing of the changes - 2.3. Models for changes and their implementation - 2.3.1. Models (templates) - 2.3.2. Implementation of the changes - 2.4. Comparison - 3.... (see full summary)


Luboš Tichý

Professor, Charles University in Prague

Processes of Modernisation of Private Law Compared, and the CFR's Influence

1. Introduction

The purpose of this article is to explain what constitutes the approach of the Czech legislator in recodifying Czech private law, and to justify my position that this is the optimal way forward. I will reach this aim through having completed a relatively extensive and broad-ranging analysis.

Having established a starting point, in the second part of the paper I point out the various possibilities of the method and address, in particular, its place in view of the background of private law in the 'new' member states of the EU, which have a recent history similar to that of the Czech Republic behind them - i.e., the influence of the Soviet model. In this part of the paper, I will attempt to show how differences, and frequently also rational influences, played their part in the further development of the private law system.

Following this, in the third section, I evaluate the significance of the Draft Common Frame of Reference (DCFR) and other national or supranational codification or similar projects. Furthermore, I continue the discussion concentrating on the Czech Republic and provide an analysis of the decisive factors related primarily to the content and method of legislation in the country's new civil code. Finally, I offer justification for the adoption of the DCFR as a model in many areas of private law for the re-codification thereof.

2. Civil law modernisation - comparison of approaches

Not only on the European level but also in the national rules of law, an enormous quantity of activity has been carried out in recent years. It is unsurprising perhaps that the most important changes in Europe over the last 10 years have been made, above all, in some new EU member countries - namely, Poland1 , Hungary2 , Slovenia3 , Estonia4 , Latvia5 , Lithuania6 , Slovakia7 , and the Czech Republic8. However, the individual countries chose different approaches. The only common feature in this process is represented by the effort for modernisation. Its extent and the method of its realisation, in particular, in the individual countries differ significantly. On the basis of knowledge of the individual approaches applied, we can carry out a specific classification procedure that should prove interesting for the audience. We will classify these approaches or efforts according to several criteria:

1) the state of the current national private law system,

2) the timing, and

3) the model for the changes and the method of their realisation.

2.1. The state of the national system of private law
2.1.1. Assessment criteria

The first aspect we assess and analyse here is a phenomenon that can be assessed or, as the case may be, evaluated from a number of standpoints. Our evaluation criteria consist in the extent of adequacy of the private law in the countries being compared with respect to the satisfaction of market - or, as the case may be, market economy - needs. In other words, we assess the private law's capability to function under new political but first of all economic circumstances in the climate following the fundamental changes of the late 1980s and/or at the beginning of the 1990s. The criterion applied here is to a substantial extent similar to another criterion - one involving the difference of the relevant private law, particularly in its codified form, from what follows the traditional understanding in this area (i.e., its difference from the concept under Roman law)9. Thus we will first evaluate the state of the legislation itself, subsequently turning to the area of private law theory and of the judicature.

2.1.2. Legislation

From the above point of view, we can develop the following classification:

a) The private law as a part of another rule of law. This category includes the Baltic countries (Estonia, Lithuania and Latvia)10 , which, after their separation from the Soviet Union at the beginning of the 1990s, found themselves to have been placed in a situation of 'total' inheritance of a foreign rule of law - that is, even in the area of civil or, as the case may be, private law, to have been left with the Soviet regulation. This 'inheritance' alone, regardless of the non-functionality or perhaps even inadequacy of the Soviet civil law legislation (in the strict sense, the legislation of the Russian Federation)11 , was the reason for making a swift change of the system of law. However, each of these systems followed a significantly different path. While Estonia12 tried to adopt certain principles of the Western European legislation as its own (the Principles of European Contract Law, or PECL, in particular) and adjusted the codification, in the sense of the system, to that of pre-war times (in the law of obligations, the property law codex, etc.), Latvia13 took over earlier legislation - i.e., the civil code of 1937. Lithuania14 (civil code of 2000) chose a relatively distinctive way in its combination of some Western European elements with its own legal categories.

b) Relatively capable legislation. At least three 'Eastern Bloc' countries have retained a relative autonomy, though each of them has done so for a different reason, as well as the quality of capability of their civil law systems. In contrast to the Czech Republic15 , Poland16 used in its codification work, as preparation for its civil code of 1964, both strictly scientific methods and the main European sources (German, French, and Austrian) and was affected relatively little by the Soviet example17.

Through its still valid civil code of 1959, Hungary18 substantially assumed the Hungarian equity from the times of the Austro-Hungarian Empire. The Hungarian civil code was, however, significantly updated - to a level completely unprecedented at the time. Undoubtedly, it was affected by the Swiss model as well. The Hungarian civil code is brief, systematically modern, and in its abstractness capable of substantial flexibility. Slovenia19 followed the Yugoslavian way, which, by contrast, was a very modern one20. As all the other Yugoslavian countries, it did not know a civil code in the current understanding of the concept; however, similarly to the Baltic countries, Yugoslavia21 codified the law of obligation, family law, and substantive law, as well as the law of persons, each in a special legal regulation. Despite its lack of modern legal discourse in this area, Yugoslavia displayed a very modern understanding of the law of obligations, in particular - both in a purely technical sense, assuming the international business contract as a starting point, and with respect to the protection of the weaker party22.

In all of these countries, the existing private law legislation was very capable of functioning under the changed economic circumstances.

c) A peculiarly created system. As the reader will be aware, in addition to the GDR's civil code of 197523 , it was the Czechoslovak civil code of 196424 that, from the legal concept point of view, was the most distinct attempt to deviate from the concept of civil law found in Roman law. Similarly, it is relatively well known that, from the system point of view, in particular, its concepts manifested themselves in a number of ways. It distinguished rather faithfully - i.e., in accordance with the economic situation - among the various economic law relations and adjusted the handling of civil law issues in response to the economic-political situation in the most faithful way of any Eastern European country25. The obligations were replaced with services, in other than an economic sense; the legal personality was changed and adjusted; and the obligation-related issues were adjusted to the quota economy. From this standpoint, a certain part of the civil code showed an absolute focus on protection of the weaker party. The superficies solo cedit principle was abandoned as a key traditional institution of property law.

d) Other systems of law. Other systems include the civil law of Romania and that of Bulgaria26. Neither of these systems is original, with Romania still retaining some aspects of the French Code Civil.

2.1.3. Jurisprudence and the judiciary

The condition of legislation is, to a great extent, reflected in the level of civil-law-related jurisprudence.

a) Jurisprudence includes Poland, Hungary, and Slovenia27. In all of these states, civil-law jurisprudence (legal theory) enjoys a relatively autonomous position - it does not immediately fall victim to the Communist ideology and, in fact, aids in developing (as paradoxical as this may seem) private law jurisprudence. All of these states maintained more or less intensive contacts with, and thus reflected, the free jurisprudence of the West. However, there were some authors who succumbed to the ideology or certain related illusions, and one therefore can observe a substantial difference from our understanding of civil law. These illusory concepts are seen in, among other actions, the Hungarian Sarkozy's28 attempt to create a socialist joint-stock company and Letowska's29 approach to competition or consumer protection.

The condition of the jurisprudence of other Eastern Bloc member states witnessed a steep fall, succumbing to...

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