In relation to the recodification of the Czech civil law we have prepared for you a series of articles focusing on providing you with a better knowledge in the framework of the new legislation.
The content of each of these articles shall be a summary of the fundamental and most important changes arising out of the major acts of the recodification that are effective as of 1 January 2014 and which are:
New Civil Code (Act No. 89/2012 Coll., the “NCC”)
Business Corporation Act (Act No. 90/2012 Coll., the “BCA”)
International Private Law Act (Act No. 91/2012 Coll., the “IPLA”)
The content of this article will be the summary of the fundamental changes introduced by the NCC. The following articles will then address specific legal areas and questions effected by the recodification.
The NCC comprises of 3080 Sections and is divided into 5 specific areas:
- General Provisions (§ 1 – 654)
- Family Law (§ 655 – 975)
- Absolute Proprietary Laws (§ 976 – 1720)
- Relative Proprietary Laws (§ 1721 – 3014)
- Joint, Transitional and Closing Provisions (§ 3015 – 3081)
The NCC replaces 238 existing statutory acts (or parts thereof), including the existing Commercial Code and the Family Act. The NCC is built on the disposition principle – where the law does not provide expressly otherwise, the parties may agree differently from the statutory provisions, subject to not breaching of good morals, public order, or individual rights, including privacy rights.
The statutory ban is formulated explicitly by the NCC by using the words “it is prohibited” or by explicit specification of consequence of the breach of the mandatory provision of law by the reference to the invalidity or discount of the defective provisions agreed between the parties. Examples of mandatory provisions of the NCC:
- Whole of part three of NCC – Absolute Proprietary Laws (Section 978 NCC),
- Consumer protection (Section 1812 (2) NCC),
- Lease of apartments and lease of residential buildings (Section 2235(1) NCC, Section 2239 NCC),
- and other such as Section 630(2), Section 1753, Section 1801 NCC et.seq.
NCC aims at keeping uniformity in its terminology, exact differentiation and introduces changes of some of the existing legal terms and definitions such as new legal definition of the term “thing”. The NCC sees the definition of “thing” in higher sense – as thing the NCC defines everything which is not individual and serves the purposes of human kind. Next to material things, it will be also possible to owe or have other rights in-rem to non-material assets or rights of feasible nature (rights, which can be enforced repeatedly). In the case of real estate assets, the principle Superficies solo cedit (the surface yields to the ground) will be applicable (save for underground constructions with individual purpose of utilization or engineering network). As real estate assets will be newly defined in principle land, rights in-rem to the land and rights defined by the statutory provisions. The impact of the new legislation on existing buildings and constructions is governed by the transitional provisions of the NCC (§ 3054 et seq.).
The NCC places the free will of the individual and its actions in the middle of the attention – the legal acts of an individual should be considered as valid rather than invalid. NCC emphasizes the form. Absolute invalidity of any legal acts will be applied only in case of obvious breach of good morals and obvious breach of statutory laws and public order and when there is an initial impossibility of performance. In other case, legal acts may be considered as relatively invalid, with a chance to obtain a remedy and also the need to actually challenge the validity.
By: Jiri Spousta