JUDr. Radka Jerie

In the Czech Republic, work is nearing completion on the revision of one of the most fundamental laws, namely the Civil Code.

The current Civil Code was adopted in 1964. Notwithstanding the amendments made in 1991 to align it with democratic principles, most of its wording remains rooted in the circumstances of the 1960s and the communist system under which Czechoslovakia was governed. The current body of civil law in the Czech Republic comprises a number of laws, such as the Family Act and the Commercial Code. After the fall of the communist regime there was an immediate need for substantial changes to the law, but due to the constraints of time and circumstances these were undertaken on a piecemeal and largely uncoordinated basis. As a result, it is generally agreed that the current Civil Code is not fit for purpose and requires a complete recodification. Work on the recodification project began at the beginning of the twenty-first century. There has been an extensive consultation period, which ended on 25 January this year.

According to the authors of the recodification, the ideological starting point was the governmental proposal of the Civil Code of Czechoslovakia dated 1937, which was not adopted due to the events following the Munich Agreement. The reason for that is that this governmental proposal tried to modernize the Civil Code of Austria (Allgemeines bürgerliches Gesetzbuch für die gesammten Deutschen Erbländer der Österreichischen Monarchie) dated 1811 in confrontation with newer European civil codexes, namely the German and Swiss. The new proposed Civil Code also reflects the modern legal regime of neighbouring countries including Germany, Switzerland, Austria, Italy and the Netherlands.

The authors of the recodification also wanted to break with the ideological world of socialist law.

The proposed new Civil Code includes almost 3000 Articles. It adopts a number of regulations which are currently included in different laws and proposes to repeal the laws concerned. Many modifications are proposed to the laws which are being adopted, in order to align them with present-day circumstances and requirements. Another objective of the recodification is to modify or specify rules in areas which are currently inadequately regulated by current private law.

Assuming that it is adopted by the Czech Parliament in its current form, the new Civil Code will also regulate areas connected with business relations, which have hitherto been dealt with separately, in the Commercial Code.

The main conceptual change in the proposal of the Civil Code in comparison with the current legal status quo is the unification of regulation of individual contractual types into one legal regulation. This will abolish the current unsubstantiated duality of the regulation of contractual civil law and commercial law, where there are some unnecessary overlaps. This affects not only the regulation of individual types of contracts such as purchase agreements and employment agreements, but also regulations of general law on obligations such as the regulation of default, liability or time bar, where there are differences between the civil law and commercial law.

The new Civil Code puts greater emphasis than its predecessor on the autonomy of the will of parties to contracts. In some cases it abolishes unnecessary formal requirements imposed by the current law, such as, for instance, a requirement for contracts to be in writing. The proposed new Civil Code also includes means to redress the imbalance of power between parties to contracts, for example by regulating consumer contract.

Assuming it is adopted in its present form the new Civil Code will revolutionise Czech private law, and it has already been vigorously debated, not only by lawyers but also by the general public. One feature which has come in for criticism is the use of language, as it brings back some legal terms which were last used in the first half of the twentieth century.

The Code itself is supplemented by two other laws, the Act on International Private Law, which regulates relations with a foreign element, and the Act on Business Corporations. As the draft legislation is now entering the formal legislative process, it could become effective around 2014.