ISSUE 2 ( PRÁVNY OBZOR 2016; 99 (2) )
Právo a spotrebiteľ
Z vedeckého života
Law and consumer
From Scientific Life
Book Reviews and Annotations
KALESNÁ, K.: Generálne klauzuly v súťažnom práve.
Právny obzor, 99, 2016, č. 2, s. 79 – 88
General clauses in competition law. Article is a contribution to the discussion concerning general clauses in the legal regulation and the law application process. Starting from general clauses theoretical definition it drives attention to general clauses in competition law, focusing interest on abuse of a dominant position legal regulation in Act on Protection of Competition especially after its last amendment in 2014 was adopted. In context of legal regulation based on general clause and demonstrative list of the most often existing practices of abuse it explores reasons why essential facilities doctrine was deleted from the legal regulation. The Slovak legislator defends this step with the argument that there is special legal regulation of essential facilities neither in the EU competition law (Art. 102 TFEU) nor in the legal regulation of other member states. Essential facilities are represented as a special institute developed in the case law and not requiring specific legal regulation in the Act on Protection of Competition. The article argues that using the EU competition law as a model for national regulation does not mean the necessity to copy this regulation precisely and compares the Slovak act with the Czech regulation where essential facilities doctrine is comprised in the legislative text.
Key words: general clause, special provisions, demonstrative list, competition, abuse of a dominant position, essential facilities
SLEZÁKOVÁ, A.: Pravidlá vo vzťahu ku klientom pri realizácii finančného sprostredkovania a finančného poradenstva v sektore kapitálového trhu.
Právny obzor, 99, 2016, č. 2, s. 89 – 106
The rules in relation to clients within the realisation of financial intermediation and financial advisory in the capital market sector. Financial indermediation and financial advisory is undoubtedly influenced by many legislative determinants. The article reflects one of these, represented by a set of rules governing the obligations in relation to clients when performing financial intermediation and financial advisory. The valid legislation allows to carry out financial intermediation and financial advisory in the sectors of insurance or reinsurance, capital market, receiving of deposits, granting credits or consumer credits, supplementary pension saving system and old- age pension saving system. The article focuses on the sector of capital market, where a financial agent and a financial advisor is authorized to perform only in a restricted range of activities. We focus on selected provisions that we believe are essential for financial intermediation and financial in this sector.
Key words: financial intermediation, financial advisory, client
HODÁS, M.: In-house výnimka v novom zákone o verejnom obstarávaní.
Právny obzor, 99, 2016, č. 2, s. 107 – 115.
In-house exception in the new bill on public procurement. In the case when a contracting authority uses its own resources, it is exempt from using the public procurement procedures. In this regard, we refer to the so-called ‘in-house exemptions’ or ‘internal procurement’. The fundamental conditions for the application of in-house exemptions are based on three criteria, i.e. i) a control criterion, ii) a business activity criterion, and iii) a private capital criterion. That is to say, the contracting authority exercises over the person to whom the contract has been directly awarded (in-house entity) a control which is similar to that which it exercises over its own departments, more than 80 % of the activities of the controlled in-house entity are carried out in the performance of tasks entrusted to it by the controlling contracting authority or by other legal persons controlled by that contracting authority and there is no direct private capital participation in the controlled in-house entity. In these circumstances, the inhouse exemption can also be applied to the cases of the cooperation amongst contracting authorities. However, the participating contracting authorities have to perform on the open market less than 20 % of the activities concerned by the cooperation. It is submitted that, the contracting authorities now hold in their hands a tool for the effective fulfilment of their needs by using own resources. However, these exemptions must be interpreted restrictively and therefore it will be interesting to see how the practice deals with the ‘in-house’ issues.
Key words: exemptions from public procurement procedures, in-house, Teckal, own sources, horizontal cooperation, criterion control, criterion activity, criterion private capital, share of activity on the open market
SREBALOVÁ, M.: K postaveniu svedka v správnom konaní (Je možné v priestupkovom konaní použiť ako dôkazný prostriedok svedeckú výpoveď policajta, ktorý objasňoval priestupok?).
Právny obzor, 99, 2016, č. 2, s. 116 – 137.
The status of witness in administrative proceedings (The possibility to use the testimony of a policeman, who clarifies the offense in the procedure on misdemeanor, as an evidence?) The article is focused on a witness in administrative proceedings and in generally it deals with the basic principles of the activities of public authorities and in particular the principles and rules of the activities of public administration authorities, carried out by misdemeanor procedure. The theoretical part is based on the characteristics of the rule of law, the principles and rules of the right to good administration and right to a fair trial as well. On this basis, at the very first place, the article is focused on some procedural provisions related to the proceeding on misdemeanors, especially on the documents for a decision, evidences and procedural standing of witnesses. The legislature which encompasses such an administrative offences is represented by the Misdemeanors Act No. 372/1990 Coll. (Act on Misdemeanors) and by Act No. 71/1967 on Administrative Proceedings. The aim of the article is to provide the theoretical analysis of the part of decision-making activities of administrative authorities as well as case law which, in the default of evidence, prefer instead of the rule in dubio pro reo, the use of non objective evidences. The author pronounced opposition to the conclusions and approaches that are expressed in a large part of administrative decisions and the court decisions, in applying the principle of material truth and the free evaluation of evidence, and points the negative trend in breach of the principle of legality. The reasoning described in the article is also based on the analysis of sub-issues such as non-precise use of terms of law, bias of administration employees, evaluation of evidence and so on. The focus of argumentation to the detriment of using the testimony of a policeman, who clarifies offense, is a crosscutting principle of legality.
Key words: principles of the functioning of public authorities, administrative proceeding, procedural status of witnesses, basis for a decision, evidences
TURČAN, M.: Pseudoprávo.
Právny obzor, 99, 2016, č. 2, s. 138 – 144.
Pseudolaw. In this paper the author deals with issue of unusual approaches to law, mainly with theory of movement called „Freemen on the land“, which the author tries to describe thru prism of Canadian decision in divorce mater Meads vs. Meads. The author describes particular theses, which should according to „freemen’s“ concept release man from clasp of statutory law and he also deals with jurisprudential substantiations of those theses, which are usually offered to justify them. Author’s effort is to communicate this „pseudolegal argument“ in understandable form and to autonomously analyze it.
Keywords: legal theory, social contract, freedom, argument
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