The Judicial Development of Law Beyond Statutory Limits in the Draft of the Civil Code
The draft of the Czech Civil Code tries to describe, in some way, the rules for determining the law, and thereby render the process objective. By so doing, it apparently differs from the existing concept and seeks guidance from foreign legal regulations. My primary goal is to point out such sources of inspiration and to perform a basic comparison of the approaches adopted by different European countries. At the same time, I want to focus in the introduction on the broad context of the Europeanization of private law. The core of my research focuses on the rule involved in Section 10 (2) of the draft of the Czech Civil Code, which represents the legalization of the judicial development of law and provils guidelines on how judges should proceed when filling the “gaps” in legislation, if the legal regulation does not provide any clues (development of law beyond statutory limits) and, at the same time, it is obvious that the law-makers keep silent intentionally (i.e. a qualified silence or an intentional gap in the legislation).
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