Československé a české soukromé právo od počátku devadesátých let 20. století a domácí právní dějiny

The first part of the study overviews the mutual relations between modem private law and the teaching of and research in national legal history within the territory of the Czech lands. Several examples illustrate the relationship. National legal history revealed its interest in private law as late as on the occasion of the approaching anniversary of 100 years of existence of the Austrian Civil Code. Legal historians concentrated on an examination of the process of its creation, an analysis of its theoretical and legal sources, and the discovery of the human and scientific profiles of its creators. Further development of the Austrian Civil Code (after 1811) was left with the representatives of private law themselves. Thus the sceptical conclusion is drawn that the history of law failed to provide a systemic, complex treatment of private law, neither in its modem stage nor in the preceding period, as no textbooks or even academic research papers were published. The research into teaching materials for and textbooks in the legal history of public and private law in Central Europe (1920–1939I1945–1949) showed, quite surprisingly, that they pay only small attention to modem private law and the history of Austrian law. The period between 1950 and 1951 seems to be quite significant in the development of modem private law: except for a few sections remaining in effect until 1965 the Austrian Civil Code ceased to be effective. The new so-called socialist civil code purposefully interrupted the continuity of law. Legal historians ceased to be interested in new private law; the preceding system of private law was not the object of academic and scientific research but remained only a subject of apologetic criticism and politically motivated judgements. No comparative research was pursued with respect to the Austrian Civil Code on the one band, and the new Czechoslovak Civil Codes adopted in 1950 and 1964 on the other; such research appeared to be a priori unnecessary and unwanted. The second part of the study attempts, from the perspective of legal history, to analyse recent conceptions of the preparatory legislative stages aimed at the creation of the fourth code of general civil law to apply within the Czech Republic, as well as legal documents and books published in relation to that event. The author concludes that participants in the legislative process and legal theoreticians: 1. in all their analyses, with respect to new conceptions, returned back to the second half of l 8th century (the period of Empress Marie Therese ), which is a fact that highly pleased legal historians, proving the legitimacy, sense and meaningfulness of legal history often denied by its critics; 2. utilize the experience and knowledge of specialists in civil law who are interested in legal history rather than that of legal historians themselves; works written by legal historians have been consulted only exceptionally; 3. confirm in their arguments and discussions that the period of time necessary for the preparation of the new code can hardly be estimated; however one may assume it will be Jong, and at least two generations of experts will be involved in the drafting; 4. examine the relationship between personal determination to draft the new code and have it passed on the one band, and the democratic procedures of its adoption on the other; 5. have, for the first and possibly the last time, a chance to prepare and enforce the adoption of a code or codes that are drafted by national experts building upon national tradition and authentic text in the mother tongue; 6. may contribute, by drafting and having the code(s) enacted, to the reliability of the Czech Republic and help to strengthen its somehow infirm position in international relations.