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The conflict of laws rules in the Czech Republic are enshrined exclusively in statute law and in international conventions which are binding upon the Czech Republic and which are part of Czech legislation.
They are not derived from case law under Czech legislation.
Complete list of multilateral international conventions in force, unifying rules on conflicts of substantive laws and direct rules in the field of private international law. Conventions in the field of international procedural law are not included:
The bilateral treaties most frequently applied by courts are as follows:
In Czech law, there are ‘indicative conflict of laws rules’, which parties may agree not to apply and instead replace their connecting factors by their own agreement, and ‘mandatory conflict of laws rules’, which are applied irrespective of the will of the parties. The selection of the law by parties is unrestricted, i.e. they can select any law in force as the applicable law for assessments of the legal relationship between them. This indicative legislation is applied primarily to contractual relations under commercial, civil and labour law. The existence of mandatory rules guarantees the parties a higher degree of legal certainty in relations where there is a higher degree of state interest in their clear regulation, e.g. in the field of rights in rem, inheritance and family law, and in the conflict of laws regulation of legal capacity.
The conflict of laws rules under Czech law are therefore applied by the judge in cases of indicative conflict of laws rules if the parties legitimately select Czech law as the applicable law; if they do not select applicable law, in cases of mandatory conflict of laws rules Czech law must be applied by the judge ex officio in all cases.
For the general application of renvoi, the Act on private and procedural international law provides that renvoi may be accepted if it is consistent with the reasonable and fair structure of the relevant relationship.
Generally, renvoi is mainly accepted in relation to legal matters concerning personal status and family and inheritance law, but is rarely used in contractual relations.
The acceptance of renvoi within the meaning of the Act on private and procedural international law means that only the substantive provisions of the law to which renvoi is oriented may be applied. This therefore precludes secondary renvoi provided by the conflict of laws rules of the jurisdiction to which the referral is made.
The Act on private and procedural international law generally stipulates, by means of a connecting factor, the place or position of an item at the time circumstances occurred establishing the emergence or extinction of the law in relation to the item (lex rei sitae). If an item is in carriage, the applicable law is the law of the place from where the item was dispatched (lex loci expeditionis). If an item is carried, over stages, by different modes of carriage, the first place where the whole of the carriage process began is decisive.
The calculation of the limitation period is governed by the law of the place where the item is situated at the start of the limitation period.
The handling of mobile conflicts concerning persons is recapitulated in chapters 3.5, 3.6 and 3.7 below.
If contracting parties do not choose the applicable law for relations between them, the act on private and procedural international law provides that the legal relations of parties are governed by the law whose application is consistent with the reasonable arrangement of the relationship. As a rule this is:
A legal provision of another state is not applied in the Czech Republic if the effects of such application would contravene the principles of the social and public order of the Czech Republic and its legislation, and such principles must be insisted on without reservation. This is an exceptional measure which can be applied only in extreme and specific cases.
The fundamental principles of social and public order in the Czech Republic are those whose preservation is aimed at satisfying the basic interests of the state and society and the principles of the rule of law. However, protection under the public policy exception by no means applies to all mandatory provisions of Czech national law.
Legal regulations whose content could result in the application of the public policy exception on a national scale are, in particular, the Constitution of the Czech Republic (Constitutional Act No 1/1993), including the Charter of Fundamental Rights and Freedoms (promulgated under number 2/1993).
These are provisions of national law that cannot be derogated from contractually or by any other means and which cannot be replaced or superseded by foreign law in the limits of the subject they regulate.
In Czech law, mandatory legal provisions are not specified, although examples would include, in administrative and financial law, Act No 143/2001 on the protection of competition, Act No 219/1995, the Foreign Exchange Act, Act No 634/1992 on consumer protection, in criminal law, Act No 140/1961, the Criminal Code, in labour law, necessarily applicable rules, such as provisions on the maximum permissible weekly hours of work, the prohibition of certain work by women, and overtime and night work by young people, contained in Act No 65/1995, the Labour Code.
Under Czech legislation, it is the obligation of the determining authority, usually a court, to ascertain the content of foreign law. The Act on private and procedural international law provides that the court must take all action required for the proof of foreign law. It also provides that if a court is unfamiliar with the content of foreign law, it may seek information from the Ministry of Justice in this respect. The Ministry also provides courts with statements in cases where doubts arise in discussions of private-law relations with an international element.
As with all other areas of legal relations, the basic source of Czech legislation is the act on private and procedural international law.
The source of law for legal relations stemming from bills and cheques is the Bills and Cheques Act, i.e. Act No 191/1950, as amended ('Bills and Cheques Act').
The Act on private and procedural international law contains conflict provisions for the mutual property relations of parties in contractual relations, including the regulation of renvoi (see 2.2 above), covering the establishment, amendment, safeguarding and consequences of breaches of contractual liabilities, the limitation of contractual relations and the setting-off of claims. It also regulates labour-law relations, in particular establishing the circumstances related to the establishment and duration of an employment contract.
The Bills and Cheques Act contains special provisions on bill and cheque declarations.
In particular, a connecting factor is an identical expression of will by parties regarding which law is to govern their legal relationship, i.e. choice of law (lex electa, lex voluntatis).
If the parties to mutual property relations do not select a law, the applicable law is the law whose application is consistent with the reasonable arrangement of the relationship, in specific contractual relations:
As a rule, other contracts are governed by the law of the state in which both parties have their registered office or residence; if they do not have their registered office or residence in the same state, and if the contract is concluded in the presence of the parties, the applicable law is that of the place where the contract is concluded (lex loci conclusionis contractus).
If a contract is concluded remotely between parties who are not present, the applicable law is that of the registered office or residence of the recipient of the proposal to conclude the contract.
In labour law, the corresponding factor indicating the law applicable to relations under an employment contract is generally the place where the work is performed (lex loci laboris), although the parties may agree on another arrangement.
The Bills and Cheques Act provides that, essentially, the applicable law is that of the state in which the bill declaration is made or that of the state where the cheque is payable.
The act on private and procedural law and international treaties which are binding on the Czech Republic, especially the Convention on the Law Applicable to Traffic Accidents.
The act on private and procedural international law contains only brief provisions on compensation for damage incurred other than by breach of obligations under contracts and other acts in law; this act also contains rules concerning negotiorum gestio, unjust enrichment, fulfilment on behalf of another, the use of an item to the benefit of another, and the sacrifice of an item or outlay of expense in a joint emergency.
For claims for the compensation of damage other than damage caused by a breach of an obligation, the applicable law is that of the place where the damage occurred (lex loci damni infecti) or the place where circumstances occurred establishing the claim to compensation (lex loci delicti commissi). For claims for the compensation of damage in the scope of family law relations, the applicable law is that by which the given legal relationship is governed (the lex causae of the relationship).
For a negotiorum gestio legal relationship, the connecting factor of the place where the agent without a mandate acted is generally applicable. In cases of unjust enrichment, the applicable law is generally the law governing the legal circumstances establishing the amplification of assets. If anyone makes a consideration on behalf of another, the general rule is that this person's claims stemming from this conduct are governed by the law regulating the obligations of the person for whom the consideration was made (the lex causae of the obligation fulfilled on behalf of another person). Similarly, in cases of the use of an item to the benefit of another person without the intention of intervening in another person's affairs (i.e. not cases of negotiorum gestio), analogously the law of the place where this use took place (lex loci damni infecti) is applied, and in cases of the sacrifice of an item and the outlay of expense in a joint emergency the connecting factor is the place where this action occurred.
The act on private and procedural international law, the Bills and Cheques Act, and Act No 513/1991, the Commercial Code, as amended ('Commercial Code').
The conditions of legal capacity, capacity to execute acts in law, and capacity to be a party to proceedings are regulated by the act on private and procedural international law. This law also regulates the personal status of foreigners and the termination of legal capacity when a person is declared dead.
Section 22 of the Commercial Code governs the legal capacity of foreign legal persons.
The Bills and Cheques Act lays down the principles for assessments of a person's capacity to be bound by a bill or cheque.
Czech law does not recognize the term 'domicile' and the related civil status. The connecting factor related to domicile is therefore insignificant for Czech law and is not the same as the Czech term trvalé bydliště [permanent place of residence].
The connecting factor for legal capacity and the capacity to execute acts in law is the nationality of the person concerned (lex patriae), for a foreigner executing an act in law on the territory of the Czech Republic, capacity under Czech law is sufficient (lex loci conclusionis contractus).
The applicable law for determining the legal capacity of a foreign legal person is the law of the state under which the legal person was incorporated (lex loci incorporationis).
With the odd exception laid down by law, in their personal and property relations foreigners have the same rights and obligations as Czech nationals; the same applies to foreign legal persons.
In the opinion of Czech legal theory, the issue of a person's right to a name can be classified under the personal status; the applicable law is therefore the law governing a person's legal capacity and capacity to execute acts in law (the lex causae of the personal status).
The capacity to assume obligations in relation to a bill or cheque in accordance with Article I, Section 91 and Article II, Section 69 is generally governed by the law of the state of which the person is a national (the lex patriae of the person assuming obligations under a bill or cheque).
The general legal basis for the application of the public policy exception is Article 10 of the Charter of Fundamental Rights and Freedoms, which stipulates the right of all persons to retain their human dignity, personal honour, good reputation and to the protection of their name. It also guarantees everyone's right to protection against the unlawful collection, publication or other abuse of personal data.
The act on private and procedural international law, the Convention on the Civil Aspects of International Child Abduction, the Convention on Protection of Children and Cooperation in respect of Intercountry Adoption and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children.
The Act on private and procedural international law contains conflict rules covering parent-child relationships, including the determination or denial of paternity, and legal relations in the upbringing of children and other obligations of parents and children, including the maintenance obligation (see 3.5 below), and regulates adoption, specifically the handling of the different nationality of the spouses and the adopted child or the different nationalities of the spouses themselves. These provisions also apply to legal relations arising from the guardianship of children or persons without legal capacity.
For parent-child relationships, the connecting factor for the determination or denial of paternity is generally the nationality of the child by birth (the lex patriae of the child). Parent-child relationships, including upbringing and the maintenance obligation, are governed by the law of the state of which the child is a national (the lex patriae of the child). In cases of adoption, the connecting factor is citizenship of the state of which the adopting person is a national (the lex patriae of the adopter). The child's consent to adoption is assessed in accordance with the law of the state of which the adopted child is a national (the lex patriae of the child).
For the conditions related to the establishment and cessation of the guardianship of children or persons without legal capacity, the applicable law is that of the state of which the minor is a national (the lex patriae of the minor). The obligation to accept and maintain guardianship is governed by the law of the state of which the guardian is a national (the lex patriae of the guardian). For legal relations between the guardian and the minor the applicable jurisdiction is that of the court or rules of guardianship (lex fori).
Mandatory legal provisions in this field include the relevant provisions of the Criminal Code (criminal offences against the family and young persons). Mainly at issue here is the abandonment of a child, failure to provide compulsory maintenance, battering a person entrusted to one's care, etc.
The Act on private and procedural international law.
The Act on private and procedural international law regulates issues related to the capacity of a person to enter into matrimony, conditions of entering into matrimony and conditions for the validity of marriage, the dissolution of marriage by divorce, a marriage annulment, and the mutual rights of a child's parents who are not married. The maintenance obligations of the parents and children are also regulated.
Czech law does not contain provisions regulating same-sex partnerships or judicial separation.
The capacity to enter into matrimony, including the conditions for the validity of marriage, is governed by the law of the state of which the person concerned is a national (the lex patriae of the betrothed), the form in which the marriage takes place is governed by the law of the place where the marriage is held (lex loci conclusionis contractus).
Divorce is essentially governed by the law of the state of which the couple are nationals at the time the proceedings commence (the lex patriae of the spouses).
The rights of the mother of a child not married to the child's father are governed by the law of the state of which the mother is a national at the time the child is born (the lex patriae of the mother at the birth of the child).
For maintenance obligations of parents towards their children the applicable law, with the odd exception (see 3.4 above), is the law of the state of which the child is a national (the lex patriae of the child); the parents' claims to maintenance vis-à-vis their children are governed by the law of the state of which the parent making the claim is a national (lex patriae).
The Criminal Code contains relevant mandatory legal provisions, e.g. prohibiting bigamy.
The Act on private and procedural international law.
This legal regulation regulates matrimonial property regimes, including any contractual arrangements.
Personal and property matrimonial relations are essentially governed by the law of the state of which the husband and wife are nationals (the lex patriae of the spouses), except in cases where they have different nationalities, in which case Czech law is the applicable law.
Where matrimonial property regimes are regulated by a contract, these relations are governed by the law applicable to the matrimonial property regimes at the time this contract was concluded (the lex causae of the law applicable at the time the contract on matrimonial property relations was concluded).
The Act on private and procedural international law; the Convention concerning the International Administration of the Estates of Deceased Persons is also relevant.
The legislation regulates the determination of law applicable to inheritance proceedings and the capacity to make or cancel a will, including the effects of defects in the will and the manifestation thereof in the making or cancelling of the will, and the form of the will.
For legal relations in inheritance proceedings, the applicable law is generally the law of the state of which the deceased person was a national at the time of death (the lex patriae of the deceased). The capacity to make or cancel a will, including defects in this act in law, and the determination of other possible methods of procurement in case of death are governed by the lex patriae of the deceased at the time this manifestation of his will was made. The same law applies to the form of the will or the cancellation thereof; however, it is enough for the form or cancellation of the will to comply with the law of the state where the will is made.
The act on private and procedural international law.
This legal regulation enshrines, in particular, the conflict of laws regulation of rights to property and movable assets, including items in carriage, and the regulation of entries in public books relevant for rights to property and the acquisition of a title by limitation or long-term use.
It is also regulates the determination of the moment as of which authorisation to dispose of an item transfers to the acquirer, as of which he has the right to the fruits and benefits of the transferred item, and when the risk of damage to the item passes to him, as well as the moment as of which the right to compensation for damage incurred in connection with the transferred item transfers to the acquirer together with the reservation of the ownership title to the transferred item.
The connecting factor for real property and movable property is the place where the property is situated (lex rei sitae), with movable property the place where the property is situated at the time of the circumstances establishing or discontinuing the title. If an item is in carriage, the establishment and cessation of titles to the item are assessed based on the law of the place from where the item was dispatched (lex loci expeditionis).
Acquisition of a title by limitation is governed by the law of the place where the item was situated at the start of the limitation period; the person acquiring the title by limitation may seek the application of the law of the state on whose territory the limitation took place if, in the time the item has been situated in this state, all the conditions of limitation have been met in accordance with the law of that state.
For the purposes of the transfer of the right to use an item and enjoy the fruits and benefits thereof, and for the purposes of the transfer of the risk of damage to an item and the right to compensation, and the transfer of the reservation of the ownership title, the law applicable between the parties to this relationship is the law governing their contractual relationship (the lex causae of the contractual relationship).
Article 11 of the Charter of Fundamental Rights and Freedoms is relevant here; it provides for the protection of ownership titles with reference to the fact that ownership is a binding factor and must not be used to the detriment of the rights of others or in violation of general interests protected by law. The exercise of ownership rights must not injure human health, nature or the environment above the level laid down by law.
The Charter of Fundamental Rights and Freedoms also stipulates that requisition or forced curtailment of ownership rights is possible only in the public interest, on the basis of the law and subject to compensation.
The act on private and procedural international law.
The regulation of this field is restricted to special provisions on the insolvency of entities who, under separate legislation (provisions contained primarily in Act No 124/2002 on payment relations), are participants in a payment system included in the list of payment systems maintained by the Czech National Bank or the clearing system under separate legal regulations (especially Act No 591/1992 on securities).
If bankruptcy proceedings are declared in respect of the assets of a person described above or if payments are suspended or limited as a result of another measure of a public authority in relation to that person's assets, the rights and obligations of this person are governed by the same law as the payment system contract, or by the law which is applicable to participants in the clearing system (the lex causae of the payment system). The choice of any other law is precluded in all cases.
Last update: 07-01-2009