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Poslední úprava: Mgr. Barbora Šicnerová (13.09.2023)
Answering all these questions, and thus explaining the concept of legal personhood and juristic persons, is the ambition of this course. Specifically, the aim of the course will be to shed light on the origin and development of the concept of juristic person, to provide an understanding of how juristic persons can be viewed theoretically and to provide a possible basis for the interpretation of the current legal regulation contained in the recodified Czech private law. The basic knowledge of the general part of the Civil Code, especially as regards the regulation of persons and juristic persons, is a prerequisite for understanding the material discussed. Although the course deals with theories of juristic persons, its aim is practical, which is why it is also classified as a skills-based compulsory elective course. After completing it, students will understand how it is possible to view the identical legal institution - the juritic person - from completely different legal-theoretical starting points. This will enable them to deepen both their ability to analyse and interpret legal norms and, in particular, their ability to analyse, formulate and present a legal argument and counter-argument. These skills will be developed both in the classroom and in the written seminar paper, which is a prerequisite for successful completion of this course. During of the course, students will themselves orally present how juristic persons can be viewed in relation to the interpretation given and, in relation to this, interpret both the provisions of the current law and the law that has regulated the status of juristic persons in the past. For these reasons, successful completion of the course is also conditional on regular attendance at the class. As part of the written seminar work, students will then analyse a scholarly text in English and thus develop their ability to understand such a text and to summarise in writing the arguments that support this or that author in relation to the explanation of juristic persons. |
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Poslední úprava: Mgr. Barbora Šicnerová (13.09.2023)
1. Kolokvium zahrnuje zpracování seminární práce z cizojazyčného zdroje. V případě, že seminární práce nebude splňovat stanovená obsahová a formální kritéria, bude umožněno ji – na základě poskytnutých připomínek a případné následné diskuse - upravit, doplnit či přepracovat a opětovně odevzdat. Opravné termíny nejsou vypisovány. 2. Podmínkou úspěšného absolvování kolokvia je rovněž pravidelná docházka. Jsou tolerovány pouze tři absence. Více jak tři absence budou mít za následek nemožnost absolvovat předmět. 3. Podmínkou účasti na kolokviu a úspěšného absolvování předmětu tak je: - pravidelná účast na výuce, - vypracování, případně přepracování seminární práce, 4. Při zpracování písemné seminární práce je možné používat veškeré předepsané právní předpisy i jiné materiály Při případné následné diskusi je možné používat veškeré předepsané právní předpisy, a materiály, které byly předmětem zpracování.
1. The colloquium includes the preparation of a seminar paper from a foreign language source. If the seminar paper does not meet the specified content and formal criteria, it will be allowed – based on the comments provided and any subsequent discussion – to be modified, supplemented or revised and resubmitted. There are no deadlines for corrections. 2. Regular attendance is also a condition for successful completion of the colloquium. Only three absences are tolerated. More than three absences will result in the inability to pass the course. 3. As a condition of attending the colloquium and successfully completing the course: - Regular attendance at class, - completion or revision of the seminar paper, 4. In the preparation of the written seminar paper, it is possible to use all the prescribed legal regulations and other materials In any subsequent discussion, it is possible to use all the prescribed legal regulations and materials that were the subject of the preparation. |
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Poslední úprava: Mgr. Barbora Šicnerová (13.09.2023)
Lecture 1: What does it mean to be a person under the law? The objective of this lecture is, among other things, to describe the genesis of the concept of “person” from its ancient roots, via the Middle Ages. As far as ancient history is concerned, one has to ask whether the “ancient persona” can be understood the same way as the “contemporary person”, i.e. whether this term comprises a natural person, as the opposite of a slave, and a juristic person, as an umbrella concept for bodies other than humans that have a legal personhood. In terms of the medieval period, a question begs regarding the legal personhood of the church, conceived as corpus mysticum, as well as how it was possible that certain processes taking place in the church at those times pertained, inter alia, to the property of individual components of the church, although this property was owned by one and the same church. However, this lecture will explain, in particular, why the current abstract concept of “person” has practically nothing in common with the ancient and medieval concepts, but rather only with the modern approach where the main role was played by the concept of a moral person. Lecture 2: The Moral Person A moral person – persona moralis – presented only in late 17th century by Samuel Pufendorf is the key that enables us to understand both the concept of “natural person” and the concept of “juristic person”. Indeed, the terms “moral” and “immoral” relate to whether or not the given person complied with the obligations associated with his/her status. The fact that the concept of moral person was later replaced by the concepts of “natural” and “juristic" persons is thus connected with the fact that an approach to persons based on their status had eventually been abandoned. Lecture 3: Fiction theory of juristic person The “theory of fiction” is based on the assumption that only a human being can have a will of his/her own and, therefore, only a human being can be a person in the true sense of the word. This also explains why a juristic person – which cannot have a will of its own – is a mere fiction and thus its name: theory of fiction. The theory of fiction can be considered the oldest theory of juristic persons. Its best known and most important protagonist was undoubtedly F. C. Savigny (1779–1861). Savigny published in 1840 his renowned work System of the Modern Roman Law (Volume Two). There, Savigny not only laid the fundaments of the theory of legal fiction but also developed the modern perception of a juristic person as a concept that has remained in use to the present time. However, the theory of fiction, as presented by Savigny, represents only one train of thought within “theories of will”. The aim of this lecture will be how did its most prominent representative, Friedrich Carl von Savigny, understand the "theory of fiction"? Lecture 4: A person as a bearer of „Volitional power“ Savigny’s successors gradually set the concept of juristic person aside; they perceived it as the bearer of a certain right and rather focused their attention on that very right, which they considered a “volitional power” – “Willensmacht”. Further representatives of the theory of will include Puchta, Brinz, Hölder, Binder, Thon, Windscheid and Zittelmann. All these authors considered “volitional power” to be the determining quality of a person as a legal entity. However, each of them understood this power differently. The primary decisive criterion was the specific will of an individual entity (Savigny, Puchta, Brinz, Hölder, Binder); the second step was the formulation of an imperative theory according to which it was no longer the will of a given entity but rather that of legal order that was decisive (Thon); and the last step was a synthesis between the individual theory of volitional power and will of the legal order, where this individual will of an entity could only be manifested within the scope permitted by the legal order (Windscheid). Lecture 5: Organic theory of juristic person The theory of fiction is usually considered an irreconcilable antipole of the organic theory (i.e. a theory of real unitary personhood – die reale Verbandsperson), pioneered notably by Otto von Gierke (1841-1921). However, these theories are, in fact, far from irreconcilable. Both of them follow from a common basis – a subjective right regarded as volitional power. The organic theory differs from the theory of fiction primarily in that it ascribes volitional power not only to human beings as isolated individuals, but also to groups of people – comunity. Another legal myth that surrounds the organic theory is the idea that this theory thrives in primitive analogies between a “society” and a biological organism, where individual bodies of society are likened to bodies of a biological organism. Although it has to be admitted that the organic theory uses certain metaphorical, figurative comparisons, its main message lies elsewhere. Indeed, the sense of the organic theory was to answer the question of what criterion should be used to distinguish a society, which is the bearer of legal personhood, from a mere “joint and several community”, (Gesamthandsgemeinschaft) which lacks legal personhood. This is why the organic theory also distinguishes between social law, which regulates social organisms, and individual law, whose purpose is to regulate relationships among persons as isolated entities. The criterion for differentiating to whom a certain right should apply was the distinction between the unitary will (Gesamtwille) of a community and the common will of a joint and several community (Gesamthandsgemeinschaft). Lecture 6: Theory of interest and the concept of “person” in Anglo-American law Theory of interest and combined theories The theory of fiction and the organic theory suffered from a common weakness, related to a situation where a body not endowed with a will or, as a matter of fact, even a human being lacking a will was considered a person in the legal sense. Ihering tried to eliminate this weakness through his theory that the characteristic to which legal personhood had to be linked was not a right regarded as volitional power, but rather a right conceived as a legally protected interest. Nonetheless, Ihering’s starting point did not, yet again, differ diametrically from that used by his predecessors. For him, too, the starting point was a human being, who was the only one that could be considered a destinatary of the law. A shift in this concept, where a destinatary of the law need not be solely a human being, was made only by his successors. For example, Becker tried to combine the theory of interest with the theory of purpose-driven property. In his concept, a destinatary of the law thus need not be solely a human being, but also such “purpose-driven assets”. Another step in this direction taken made by Schwarz, for whom the bearer of an interest was no longer substantial; what was substantial was merely the purpose that was being followed. The result was a common structure for both natural and juristic persons as their property did not in fact belong to these persons, but rather to the purpose they were pursuing. Taken to the extreme, it follows from the above that a human being is nothing more than a mere administrator of his/her rights. The concept of “person” in Anglo-American law The Anglo-American legal system does not comprise any general legal definition of a “person”, which is one of the reasons why the terminology used in the system of common law is not uniform. Another difference lies in the philosophical foundations of this concept. If, in the system of civil law, a person is understood (based on Kant’s teachings) as an abstract bearer of rights and obligations, such a concept is only one of the possible starting points in terms of the Anglo-American system. This is documented by the way Margaret Jane Radin tackles the concept of person. Her approach is based on the concept of personal property, which – on the basis of an intuitively perceived consensus – constitutes the personhood of a human being, and must therefore also be a reason why a human being should be considered a person. However, according to her opponent, Stephen Schnably, there is, in fact, no such fairly established consensus. Indeed, deep contradictions and conflicts can always be found under the surface of such a seemingly existing consensus. According to Schnably, these conflicts must be put under the spotlight in any considerations regarding property and personhood. It can thus be stated in both these cases that a human being will a priori serve as the starting point for considerations related to legal personhood; while in Radin’s concept, human beings share certain values, Schnably believes that humans question certain values and are resistant to them. Lecture 7: Juristic persons from the point of view of the Pure theory of law The theoretical approach adopted by the Pure theory of law to a juristic person signified a complete change in the paradigm compared to the previous theories of juristic persons. A person as a legal concept was no longer derived from a human being, whether as an individual or as a group of persons, but rather only from the position occupied by a “person” in the applicable (positive) law, i.e. in the normative world. Therefore, not a human being, but rather an abstract “bearer” of rights was considered a person in the legal sense. But unlike the traditional doctrine, normativism also understands a right as a legal norm. This, however, is not a general, but rather a specific, individual norm, and simultaneously a derived norm. This concept also implies the normative concept of a person. The latter is considered a mere point, ideal and never material fact. Kelsen also refers to this point as a “personification of a set of norms”, which regulates human behaviour. The legal order can thus link legal personhood to any piece of the outer world, and even to the idea of something that does not exist in the outer world. The relationship between this abstract point and the object of obligations is then referred to as “imputability”. Therefore, in the legal sense, a person is also considered a “point of imputation” from the normative perspective. Nonetheless, a person conceived as a mere point of imputation also has its weaknesses. Primarily, this term is so broad that it can encompass just about anything. Both the state and a governmental agency, as well as an individual, can be a point of imputation in this sense. In my opinion, the biggest progress in the effort to specify these outlines from the viewpoint of pure theory of law was achieved by the relatively unknown Czech normativist josef Slezák. He attempted to analyse a “person” in legal terms from the perspective of prerequisites laid down by the legal order for a point of imputation to be able to create a valid legal norm (i.e. rule). Based on that analysis, he referred to this point as a “ norm-making unit”. Lecture 8: Person as a “point of imputation” Being a person in law must mean being a “certain point” to which rights and obligations are imputed (attributed). However, this “point of imputation” is merely imaginary because without the law directing obligations and rights towards it, this point would not exist at all in isolation. On the other hand, if the legal order does direct certain obligations and rights towards a certain point, then this point exists (is valid) only together with the obligations and rights that are directed towards it. What a person makes a person, i.e. a point of imputation, is therefore this imputability as such. From this point of view, imputability can be equated to legal personhood. If being a person means having rights and obligations, this means nothing else than imputability of the right to request that someone else perform an obligation (i.e. being the entitled party) or the need to perform an obligation (i.e. being the obliged entity). This also explains the opinion of the normative legal theory according to which a person is a set of obligations and rights, or a “personified set of legal norms”. If we understand a person as a personified set of legal norms, this means that we perceive that person from a “static point of view”, from where we can see at a specific point in time that rights and obligations are imputed to a certain person, but we cannot determine what the reason was for the creation of these rights and obligations. In response to the question of where these obligations and rights actually originate, the legal order has be perceived from a dynamic point of view. In the case of a person, this means that we do not conceive that person only as a point of imputation but also as an entity causing the creation of legal obligations (and thus norms).
Lecture 9: Legal capacity of a (juristic) person Legal capacity means the capacity to engage in one’s own legal conduct. For any person – and thus also a juristic person – to be able to legally act, such a person must be endowed with reason and will. What constitutes reason and will can be determined empirically only for a natural person. The same is not possible for a juristic person. In the case of a juristic person, reason and will can only be considered theoretically, i.e. on the basis of an analogy with a human being. Assuming, in line with the organic theory, that a juristic person is the analogue of an individual, we need to find an analogue for human reason that is collective, rather than individual, and also an analogue for human will that is collective, rather than individual. When a human being as a “body” expresses the will of a juristic person, he/she should in fact not use “his/her own reason”, but rather should only serve as a medium whereby reason of the juristic person is manifested. This also means that a human acting as a body should forget his/her own ego, which should be replaced by the alter ego of the juristic person. The consideration that a human being uses “one reason” when acting as a body of a juristic person and “different reason” when acting as a natural person has one inevitable result – every person who acts as a body of a juristic person must, in one way or another, suffer from legally approved schizophrenia – he/she must have a split personality. The existence of such schizophrenia is also a prerequisite for any possible considerations regarding “own reason and will of a juristic person”. However, the problem lies in the fact that although a certain human being acts as a body of a juristic person, this certainly does not mean that he/she would have to abandon his/her own interests and thus his/her ego. Indeed, reason and will of a juristic person must always originate from a natural person, i.e. a person other than the former. This is why reason and will of a juristic person are also always someone else’s reason and will, which can be considered own reason and will only of a specific natural person enjoying legal capacity. In this respect, the difference between a natural and juristic person lies in the fact that a natural person lacking legal capacity will usually acquire reason and will at some point and thus obtain legal capacity, while this will never be possible for a juristic person. The rule of attributing (or imputing) someone else’s reason and will has no exemptions in its case. From this point of view, a juristic person can also never enjoy legal capacity analogously to a natural person enjoying capacity. Indeed, it can never have the capacity to pursue its own legal acts, because it cannot have its own reason and will. Lecture 10: Legal liability of a juristic person Given that a juristic person cannot itself commit illegal conduct, the question ensues whether and if so, to what extent, a juristic person can be a “subject of responsibility”. Whatever the case, the capacity of a juristic person, just like the capacity of a natural person, to commit illegal conduct is irrelevant for its capacity to bear legal responsibility. What is relevant is whether the legislation vests such capacity in the person as part of its (or his) legal personhood, regardless of its “mental capacity” or “mental incapacity”. In actuality, a sovereign legislator is free to determine whether and to what extent a juristic person and the persons representing it shall bear responsibility. However, the fact alone that a juristic person is considered a subject of responsibility does not suffice for the juristic person to be capable of causing and fulfilling a duty arising from such responsibility. In this context, no-fault liability and liability based on fault (culpability) need to be distinguished. Where no-fault liability is concerned, it is irrelevant whether the damage in question was caused by the juristic person’s own conduct. In such a case, the damage is an illegal result, irrespective of whether it was caused by illegal conduct of a juristic person that we consider its own or someone else’s. Consequently, the reason and will of a juristic person are relevant in terms of no-fault liability (whether contractual or for a wrong) only for the fulfilment of a duty arising from such liability and not for the arising of such liability. By way of contrast, the situation is more complex where liability based on fault (culpability) is concerned. In such a case, positive law must define what conduct is deemed illegal conduct of a juristic person giving rise to its legal responsibility. Having regard to the above, such illegal conduct can never be perceived as the juristic person’s own illegal conduct because a juristic person necessarily acts through specific individuals, who are simultaneously natural persons. From this perspective, such conduct must represent “someone else’s illegal conduct”. This, however, in no way prevents law from establishing legal responsibility of a juristic person for such conduct, if considered desirable by the legislator.
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Poslední úprava: Mgr. Miroslav Sojka (25.05.2023)
Pro zapsání tohoto předmětu je vhodné, aby student měl absolvován předmět Občanské právo hmotné I. Výhodou pro absolvování tohoto předmětu je předchozí absolvování předmětů Obchodní právo I, II a III. |
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Poslední úprava: Mgr. Barbora Šicnerová (13.09.2023)
Základní literatura: BERAN, Karel. The Concept of Juristic Person. 1. vyd. Prague – Warsaw – Bratislava – Budapest: Wolters Kluwer, 2020, 259 s. ISBN 978-83-8107-952-5 . Ostatní literatura: BERAN, Karel, ČECH, P., DVOŘÁK, B., ELISCHER, D., HRÁDEK, J., JANEČEK, V., KÜHN, Z., ONDŘEJEK, P. Artificial Legal Entities: Essays on Legal Agency and Liability. Prague – Warsaw – Bratislava – Budapest: Wolters Kluwer, 2019. BERG, J. Of Elephants and Embryos. The Hastings Law Journal. 2007, No. 59. Bottomley, S.: The constitutional corporation: rethinking corporate governance, Aldershot, Hampshire, England; Burlington, VT: Ashgate, 2007. GIERKE, O. Das Wessen der Menschlichen Verbände. Berlin: Duncker & Humblot, 1902. HALLIS, F. Corporate Personality: A Study in Jurisprudence. Aalen: Scientia Verlag, 1978. IHERING, R. Geist des römischen Rechts auf der verschiedenen Stuffen seiner Entwicklung. Teil III. Leipzig: Breitkopf und Härtel, 1865. KELSEN, H. Pure Theory of Law. California (USA): University of California Press, 1967. KURKI, V. A theory of legal personhood. Oxford: Oxford University Press, 2019. Ripken, S. K.: Corporate Personhood, Cambridge University Press, 2018. SAVIGNY, F. C. System des heutigen Römischen Rechts (Volume II). Berlin: Veit, 1840. Právní předpisy: V průběhu výuky budou pravidelně využívány tyto předpisy: 1. zákon č. 89/2014 Sb., občanský zákoník, v platném znění, 2. případně též zákon č. 90/2012 Sb., o obchodních společnostech a družstvech (zákon o obchodních korporacích) The following regulations will be used during the course: 1. Act No. 89/2014 Coll., the Civil Code, as amended, 2. where applicable, Act No. 90/2012 Coll., on Commercial Companies and Cooperatives (Act on Commercial Corporations) |