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Explanatory Reports as a Means to Understand the Legislator-court Dialogue

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MALANÍK, Michal. Explanatory Reports as a Means to Understand the Legislator-court Dialogue. In Argumentation 2017. Brno: Masaryk University, 2017. p. 70-85, 16 pp. ISBN 978-80-210-8839-9.
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Basic information
Original name Explanatory Reports as a Means to Understand the Legislator-court Dialogue
Authors MALANÍK, Michal (203 Czech Republic, guarantor, belonging to the institution).
Edition Brno, Argumentation 2017, p. 70-85, 16 pp. 2017.
Publisher Masaryk University
Other information
Original language English
Type of outcome Proceedings paper
Country of publisher Czech Republic
Confidentiality degree is not subject to a state or trade secret
Publication form printed version "print"
WWW URL
RIV identification code RIV/00216224:14220/17:00099981
Organization Právnická fakulta - Repository
ISBN 978-80-210-8839-9
UT WoS 000429766100005
Keywords in English Law as literature; legislative history; explanatory report; legislator – court dialogue; legal interpretation; legal argumentation; Czech legal cases; intentionalism.
Links GA17-14903S, research and development project. MUNI/B/1029/2016.
Changed by Changed by: RNDr. Daniel Jakubík, učo 139797. Changed: 10/9/2018 00:56.
Abstract
This paper focuses on the theoretical assumption that there exists a constant dialogue between the legislator and individual courts concerning the form and application of legal rules. The legislator adopts a rule with certain intention and with the more or less accurate prediction of its application. The courts however use various methods of interpretation of these rules and the historical one focusing mostly on the intention of the legislator is only one of them. The paper points out selected situations in the Czech law within the last few years, concerning the existence of the legislator-court dialogue and tries to delimit the character of arguments used in legislative history, or explanatory reports, to influence the court to see the rule and the area it governs in the way the legislator does and persuade it to see these views as decisive ones. Using the legislative history (or the explanatory reports) as a means to understand the dialogue may prove interesting from various points of view. The legislative history, or explanatory reports, is used amongst the first means to understand the intention of the legislator. However, this paper shows that in certain cases it is not only a kind of non-binding literature, but in certain cases it is more of a literary fiction that anything which should be even considered as normatively binding. Analysis of a draft of a rule and its explanatory report along with the study of theory of legal interpretation (and also legal argumentation and case law) can actually answer the question how successful the legislator is in his presumptions about the courts usage of the specific rules and moreover, whether there actually exist the legislator-court dialogue in the Czech legal environment in the first place.
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Argumentation_2017.pdf   File version 2. 3. 2018

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