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Comparative law making: a
case study in Slovak company law.
Doc. JUDr. Kristián Csach,
PhD., LL.M., Faculty of Law of the Trnava University in Trnava
Právny obzor, 100, 2017,
special issue, pp. 78-92.
Published online: 15.1.2018
Abstract. The
comparative method or comparative reasoning is commonly used in a legal doctrine,
less frequently in the practice by the bodies applying the law at the
application of national law. It is natural for the legislator to look beyond the
borders of national law and to draw inspiration from foreign law in its
law-making. But the fact that national law finds inspiration in foreign law, may
bring deviations in the range of interpretation and argumentation instruments
against purely national law. The article on the basis of examples from the
recent amendments to company law tries to answer the question whether foreign
law (source of inspiration) should be used at interpretation and application of
national law differently when used as a source and declared by the legislator in
the explanatory report, as compared to the case when it is used only as a
standard comparative argument. The author assumes that when the legislator
declares the source of inspiration, he probably wishes adopted legislation not
only to sound as a model, but also to work as its model. It allows to use as
supportive argument not only the text, but also the foreign doctrine or case-law
that was known at the date of adoption of the national text. These arguments
should be part of standard (national) methods of interpretation of law.
Keywords: company law,
comparative arguments, law-making methodology
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ISSN 2729-9228
(online)
ISSN 0032-6984
(print)
THEORETICAL REVIEW FOR ISSUES OF STATE AND LAW.
Právny obzor is peer-reviewed journal and is indexed in SCOPUS and HeinOnline database (INDEX TO FOREIGN LEGAL PERIODICALS).
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OPEN ACCESS