Aktuálny stav prác na rekodifikácii súkromného práva
v Slovenskej republike a jeho vízie
The current state of recodification works
of Slovak private law and its perspectives
Doc. JUDr. Denisa Dulaková Jakúbeková, PhD.
Faculty of Law
Institute of Private Law
súkromné právo, rekodifikácia, rekodifikačná komisia, Občiansky zákonník, legislatívny zámer Občianskeho zákonníka
private law, recodification, recodification commission, Civil Code, legislative intent of the Civil Code
V Slovenskej republike je základným a všeobecným predpisom súkromného práva Občiansky zákonník z roku 1964 (zák. č. 40/1964 Zb.), ktorý, napriek mnohým novelizáciám, nereaguje na zmeny v spoločnosti v takej miere, aký by si tak významný kódex zaslúžil. Potreba prijať novú právnu úpravu sa ukázala ako nanajvýš aktuálna po zmenách, ktoré nastali v bývalej Československej republike po „novembri 1989“, keďže tento medzník významne zasiahol snáď do všetkých oblastí života vtedajšej spoločnosti. Volanie po komplexnej rekodifikácii súkromného práva je preto logickým úsilím odbornej teórie i praxe, ktoré sa však, napriek niekoľkým desaťročiam, nedočkalo reálneho výsledku. K otázke rekodifikácie súkromného práva sa vyjadruje aj nová Vláda Slovenskej republiky, ktorá sa k nej prihlásila vo svojom programovom vyhlásení na roky 2020 – 2024, to však urobili aj takmer všetky predchádzajúce vládne zoskupenia, zostavené v Slovenskej republike po jej vzniku. Skutočnosť, či sa naplní odhodlanie tej súčasnej, je preto otázna a budeme ju môcť pravdepodobne posúdiť až o 4 roky.
In the Slovak Republic, the basic and general regulation of private law is the Civil Code of 1964 (Act No. 40/1964 Coll.), which, despite many amendments, does not respond to changes in society to the extent that such an important code should. The need to adopt new legislation proved to be extremely topical after the changes that took place in the former Czechoslovak Republic after ‘November 1989’, as this milestone significantly affected perhaps all areas of life in society at the time. The call for a comprehensive recodification of private law is therefore a logical effort of professional theory and practice, which, however, despite several decades, has not achieved a real result. The new Government of the Slovak Republic, which subscribed to it in its program statement for 2020-2024, also comments on the issue of recodification of private law, but almost all previous government groups formed in the Slovak Republic after its establishment did so. Whether the determination of the current one will be fulfilled is therefore questionable and we will probably be able to assess it in up to 4 years.
„We dare to point out the need for the completion of the recodification of private law in the Slovak Republic to take place in the foreseeable future, because it cannot be overlooked that with increasing time and advances in science, current concepts of recodification may later seem outdated.“
The need to recodify private law, however, extends in terms of timeframe, beyond the existence of the Slovak Republic, since the first efforts to create a new modern civil code date back to the common Czechoslovak state, and even further, to the pre-November 1989 era, when Czechoslovakia witnessed a momentous change in the societal and political affairs.
Despite many attempts and specific activities within the Slovak Republic, and in contrast with the Czech Republic, as well as with Hungary, Romania, Estonia and Russia, this recodification process has to date not been completed. Slovak Republic thus remains one of the last countries to adopt a recodification of private law out of all the prior socialist states of Eastern Europe.
1. Current state of the Civil Code
Since 1964, private law in the Slovak Republic has been governed by the basic and general regulation of the Civil Code of 1964, i.e. Art. No. 40/1964 Cc and its later regulations (further only referred to as ‘Civil Code’).
Throughout its existence it has been amended more than 60 times, while it is worth noting that out of the total amount, only four amendments have been adopted prior to 1989 (before the so-called Velvet Revolution). The Amendment of the Civil Code, Art. No 509/1991 Cc is considered to be of specific importance, as it essentially changed, or amend, approximately 80% of the original text of the Civil Code. Despite its essential nature, the amendment did not manage to deal effectively with the ambiguity caused by the previous forty years of development of the so-called socialist private law. Latter amendments may have, in part, fixed these shortcomings, however, the amended changes lacked a set of unifying concept criteria. This was reflected in the applications of novelties and modern elements, which were introduced out of a current need to react to the external conditions rather than out of a need to make the law into an organic unit (this was especially apparent at the time of transposition of directives dedicated to customer protection).
2. The progression of previous recodification works
The discussions about conceptual questions, functionality and effectivity of the Civil Code and its relation to separate legal regulations began even prior to the socio-political changes brought about by 1989, i.e. in a time when the Civil Code was restricted to a very narrow material scope, defined by the conditions and requirements of the current material and cultural needs of the citizens. Further aspects of material and personal relations were regulated by individual regulations – esp. the Economic Code (Art. No 109/1964 Cc), International Trade Code (Art. No 65/1965 Cc), the Labor Code (Art. No 65/1965 Cc) and the Family Code (Art. No 94/1963 Cc). The aforementioned laws, with the exception of the Family Code, were not explicitly linked to the Civil Code and as a result, a significant separation between the individual material and personal relationships, and well as an atomization of the whole private law system, ensued.
It was therefore logical that in the primary considerations of the recodification of private law, which were inevitable after the year 1989, the main aim of all involved experts focused on filling the legal void created by the abolition of the Economic Code and Labor Code, instead of on removing the conceptual shortcomings of private law as a whole, or on adoption of a brand new Civil Code (this particular solution was not popular due to the time strain the experts experienced in their work). As a result, the aforementioned so-called major amendment of the Civil Code (Art. No 509/1991 Cc) and a new Commercial Code (Art. No 513/1991 Cc) was adopted, which, on one hand, signified a positive and necessary step in transforming of private law to the needs of the new market economy, yet, from a long-term perspective, was not viewed as a conceptual solution.
In the subsequent years, academic discussions were held among legal theorists and practitioners alike. These had the advantages—in contrast with the years immediately following the year 1989-of experience that resulted from creating, implementing and applying of law within the framework of a market economy, which in turn resulted in a more developed degree of critical thinking.
The „real recodification” of the Civil Code in the Slovak Republic began in 1996, when a commission, led by Professor Karol Plank, was established to prepare the new Civil Code. This commission worked under extraordinary time pressure caused by the Ministry of Justice of the Slovak Republic itself-it expected a new draft of the Civil Code to be delivered by the commission in a paragraph version in the very same calendar year (!); the expected deadline being set for October. „It was an unrealistic expectation that put the Head of the Commission in an unenviable position. There was no time for a discussion or deeper analyses. After delivering the first draft in 1997, the members of the recodification committee never gathered again.” After his death, Prof. Plank was replaced as head of committee by Prof. Lazar. Under his leadership, the committee created a second draft of the Civil Code in 1998, but this version only amended or completed the previous draft. Despite the fact that this draft had not been subjected to a wider expert discussion either, it was approved by the Government of the Slovak Republic (in 1998). The expert public raised serious objections against the draft, which, combined with political and personal changes at the corresponding ministries, resulted in the draft not being picked up again, and it was withdrawn from the legislative process.
This effort, as well as those that followed, could be captured by the following quote: „Unfortunately […] the recodification of private law is influenced by politics to the extent that they not only affect the start and speed of work on the codex, but its evaluation as well.”
Legislative work began again in 1999 under the expert guidance of Professor Peter Vojčík yet the recodification efforts had to begin from scratch. Although this committee completed their role and the government of the Slovak Republic approved the legislative intent of the Civil Code it was presented with, in 2002, the political will to continue further works on a paragraph version of the codex with a deadline in 2005 had not been found again.
After the next election, legislative work ceased for a whole electoral period (no minister of justice at the time considered the recodification of private law their priority).
In November 2006 (again, shortly after a new parliamentary election) the newly appointed Minister of Justice of the Slovak Republic, Štefan Harabin, named the previous head of the recodification committee, Prof. Lazar, to lead the body again. Subsequently, in January 2007, a new recodification committee was established and was tasked—as expressed in the coalition plan of the then government for the time period 2006-2010—to develop a draft of the law on material private law (Civil Code) by the first quarter of 2010, with the ultimate goal being a recodification of private law in the Slovak Republic. The commission worked within work groups focused on particular sections of private law. This commission delivered, only a year and a half later, a document named ‘The Legislative Intent of Codification of Private Law’, which was then approved by the government in its amended form in January 2009. Despite the relatively intense efforts, the commission did not manage to develop a first discussion version in a paragraph form in the originally defined framework, i.e. until the end of calendar year 2009.
The year 2010 saw another general election, after which Lucia Žitňanská became the new Minister of Justice, and the matter of recodification of private law unfortunately entered a latent state.
This only changed after the next (early) election, after which Tomáš Borec, an attorney, became Minister of Justice. Recodification work found political support again, and a new recodification committee was established—in 2013 Prof. Lazar was replaced by the committee’s previous member, Anton Dulak, suggested for the position by Prof. Lazar. After a deal with the Minister of Justice and the then General Director of the Civil Law Section, Marek Števček, the committee was tasked with delivering the first working draft in a paragraph form until September 2015.
Under the heading of Prof. Dulak, the committee completed its duty and delivered the first unified working version of the new Civil Code under preparation on 16 September 2015. This was achieved particularly due to the dedicated determination of the committee’s members and other enthusiastic colleagues. The work the committee delivered consisted of 1756 paragraphs, while the members of the committee supported their work with numerous comment materials, both expert and scientific articles, suggestions received from applied practice, and reports from both domestic and international conferences—all meant to serve as argumentative contribution into the expected expert discussions.
To their surprise, the Ministry of Justice established an entirely new recodification committee by the end of 2015 (tasked with the ‘dynamization of the efforts to prepare the new Civil Code’), the new head of which became the General Director of the Civil Law Section, Marek Števček.
3. A brief comment on the overall concept of Draft Law of 2018 amending the Civil Code
In October 2018 the Minister of Justice of the Slovak Republic introduced their vision of a reform of Slovak private law. Despite the fact that changes in the field of civil law have been eagerly expected for a long period, the appearance of the ministry’s representatives relatively surprised the expert public greatly. Instead of rebuilding private law, a step meant, with its significance and essential character, to signify its recodification, the ministry (without a broader expert discussion and without changing the legislative purpose of a new Civil Code) announced a proposal of an amendment of the existing Civil Code, primarily focused on ‘reforming’ the law of obligation. This was labeled by its authors as the first stage of recodification of the Civil Code, and was published, along with a justificatory announcement, on their official websites.
As is stated above, the change in concept of the reform of civil law surprised the expert public, accepting the new objective with hesitation (shortly after the announcement of the change, a separate issue of the magazine Soukromé právo was created, which dealt exclusively with this topic). Without the need to look up the term in a specialized dictionary, recodification is generally understood as a ‘new codification’ of the corresponding legal sector. In the case of private law in a post-socialist country, this legal sector should not merely be revised, modified or subjected to the so-called horizontal reform. ‘At times, the difference between revision and recodification is emphasized. While a revision is based on the old legal regulation and its derivatives, a recodification is an implementation of a modern legal regulation with the aim to capture a current reality. Recodification means a reconstruction of a systematic, synthetic and syncretic approach to law; it is a reformation of the initial principles of codification (currently abolished or undervalued) for the purposes of a new order. A recodification, similarly to a codification, is expected to have its own central motive.’ 
The vision of the latest Recodification Committee thus seems to have lost the tracks set by the government in the Legislative Objective of the new Civil Code in 2009 (which, naturally, expected the whole of private law to be recodified en block), and instead presented a novel intention – to recodify private law per partes, beginning with the law of obligation, since, according to the Minister of Justice, who is a proponent of this concept: ‘The area of private legal obligations is least socially sensitive area, hence, we expect a consensus of the whole society in this matter.’ One of the supporting arguments was the claim that the recodification of private law ‘in parts’ has also taken place in some other states with a modern legal culture (particularly Switzerland), however, this needs to be addressed by counter-arguments – the number of such states is disproportionate to those who have succeeded in recodifying private law as a whole, and in the case of the Swiss Civil Code, which the authors pointed out as the only one, we note that its commitment part/book was accepted last, not first, as was the case of the present proposal. ‘[…] The obligatory relationship can only be realized appropriately after the value orientation of the entire basic code of private law and the principles on which this code is based are set in a qualitative and modern way, and at the same time – only after specific legal norms / provisions of the law are conceived, starting with absolute rights from which the rights of a relative binding nature derive, as these are the ones that ensure their economic realization.’
In April 2019 information was published that suggested the Ministry of Justice concluded the informal reflection process of the recodification of law of obligation. It was, however, close before the election, which meant the political parties involved began to focus on their electoral campaign rather than on the issues of reforming the Civil Code.
As stated in the beginning, since March 2020 Slovakia has had a new government, which, at least according to its declared program, plans to devote some focus to the reforming of private law. Using the text from this document (declared program), ‘The Government of the Slovak Republic is committing to creating a new Civil Code and law on commercial entities’, it seems the Ministry of Justice will likely focus on a complex reform of private law, i.e. to creating a code en block, instead of its partial changes. However, as is the case in politics, major legislative changes need to be carried out within the first two years of governing, the next two are dedicated to preparing for the new election and this is reflected in the political decisions made throughout that latter period. Hopefully, the claim from a previous Recodification Committee chair, Anton Dulak, on politics and political influence exerted on private law, cited above, could be applied during this political period (2020-2024) in a positive light.
) KOROMHÁZ, P., Aktuálny stav rekodifikácie súkromného práva s prihliadnutím na oblasť ochrany osobnosti, IN: SUCHOŽA, J., HUSÁR, J., HUČKOVÁ, R. (eds.): Právo, obchod, ekonomika IX. Košice: Univerzita P. J. Šafárika v Košiciach, 2019, s. 28 a nasl., available at: https://unibook.upjs.sk/sk/pravnicka-fakulta/1268-pravo-obchod-ekonomika-ix.
) Another of these countries that have yet to recodify their civil law is Poland.
) See f. e. IN: Lazar, J. a kol., Občianske právo hmotné. 1. zväzok. Bratislava : Iura Edition, 2010, str. 96, as well as the approved Legislative Intent of the Civil Code, see at: https://www.justice.gov.sk/Stranky/Nase-sluzby/Nase-projekty/Obciansky-zakonnik/Obciansky-zakonnik.aspx.
) Consumer contract, which was incorporated into the Civil Code via amendment no. 150/2004 Cc, found its place in the 1st (general) part of the Civil Code, in § 52f Cc, rather than in the general part on contractual law, to find out more see: Dulaková Jakúbeková, D. K novele Občianskeho zákonníka o spotrebiteľských zmluvách, In: Justičná revue. – Roč. 56, č. 8-9 (2004), s. 907-913, as well as: Dulaková Jakúbeková, D., Spotrebiteľská zmluva nanovo a inak, In: Justičná revue. – Roč. 60, č. 6-7 (2008), s. 936-946.
) Which explicitly contained a reference to the Civil Code, see § 104: „The provisions of the Civil Code are to be used in instances when the law does not explicitly state differently.“.
) VOJČÍK, P., INFORMÁCIA O PRIEBEHU A STAVE REKODIFIKAČNÝCH PRÁC NA NOVOM OBČIANSKOM ZÁKONNÍKU, IN: http://wwwold.justice.sk/kop/inf-rek.htm (18.12.2020).
) However, to say that the draft had not been discussed at all would be false, the V. Luby’s Laeyer Days, which took part in September 1998 at the law faculty of Comenius University in Bratislava, were dedicated to it, as one example—„On the draft of the new Slovak Civil Code“, see: http://iuridica.truni.sk/lubyho-pravnicke-dni-0 (18.12.2020). Yet the conference took place only after the draft had been approved by the government of the Slovak Republic.
) See the conference report: DIES LUBY IURISPRUDENTIAE, Nr. 5, Právnická fakulta UK, Bratislava 1999.
) Parliamentary elections took place on 25 and 26 September 1998 .
) DULAK, A., Dôvody a zámery rekodifikácie súkromného práva v podmienkach SR, Rekodifikácia súkromného práva v SR – ako ďalej?, Report from the international conference, vydavateľ: Vysoká škola Visegrádu s.r.o., ISBN: 978-80-89267-44-6, 2009, str. 5.
) Resolution of the Governemtn of the Slovak Republic No 827 of 7 August 2002.
) Parliamentary election took place in the Slovak Republic on 20 and 21 September .
) Parliamentary election took place in the Slovak Republic on 17 June 2006.
) Parliamentary election took part on 10 June 2010 .
) Early parliamentary election took place on 10 March 2012.
) Prof. Lazar lost his position as head of the recodification committee, but remained its „expert sponsor“ within the Ministry of Justice.
) The delivered draft consisted of the following 6 parts: 1. part: General, 2. part: Family Law, 3. part: Rights in rem, 4. part: Inheritance law, 5. part: Contractual law, 6. part: Concurrent, close and repeal privisions – the first five in paragraph form. The last, sixth, part was to be edited into a paragraph version in sequence and with regards to the results of the interinstitutional reflection and the approved version of the draft. See the delivered draft IN: najpravo.sk, 02.11.2015, Paragrafové znenie prvej pracovnej verzie návrhu nového Občianskeho zákonníka, https://www.najpravo.sk/clanky/paragrafove-znenie-prvej-pracovnej-verzie-navrhu-noveho-obcianskeho-zakonnika.html (18.12.2020).
) DULAKOVÁ, D., Všetko o rekodifikácii Občianskeho zákonníka (naozaj?), zo dňa: 01.12.2015, IN: http://www.lexforum.sk/565 (18.12.2020).
) Ministry of Justice of the Slovak Republic, Zoznam členov Komisie pre rekodifikáciu súkromného práva, IN: https://www.justice.gov.sk/Stranky/Nase-sluzby/Nase-projekty/Obciansky-zakonnik/Zoznam-clenov.aspx (18.12.2020).
) See f. e. najpravo.sk, 11.11.2015, Minister spravodlivosti menoval nových členov komisie pre prípravu Občianskeho zákonníka, https://www.najpravo.sk/clanky/minister-spravodlivosti-menoval-novych-clenov-komisie-pre-pripravu-obcianskeho-zakonnika.html (18.12.2020).
) Available at: https://www.justice.gov.sk/Dokumenty/OZ/Legislativny%20zamer%20OZ.pdf (18.12.2020).
) Ministry of Justice of the Slovak Republic, 15.10.2018, Predkladaný Návrh zákona a Dôvodová správa k navrhovanej novele Občianskeho zákonníka, available at: http://www.justice.gov.sk/Stranky/Ministerstvo/Aktuality-obcianskeho-zakonnika.aspx (18.12.2020).
) See Súkromné právo 6/2018, Wolters Kluwer, ISSN: 1339-8652 .
) McAULEY, M.: Proposal for Theory and a Method of Recodification, 49 Loy. L. Rev. 2003, s. 262, k tomu pozri aj: Dulak, A., Kodifikácia, dekodifikácia, rekodifikácia a ďalšie cesty súkromného práva, IN: DIES LUBY IURISPRUDENTIAE, Nr. 14; report from the international conference XIV. Lubyho právnické dni; Smolenice, 19. – 20. september 2019.
) ‘Although the submitted Legislative Intent may, due to the timing, and bearing in mind the subsequent change in the staffing of the Recodification Commission, seem out of date, the published minutes of the meeting of the Bureau of the Commission for the Recodification of Private Law of 03.12.2015 showed that the Legislative Intent was „evaluated by the Commission Presidency in many parts as conceptually very well-designed; those present agreed that the approved LZ OZ is capable of being the basis for further work of the Commission and thus there is no need to draw up a new legislative intention, with the parts from which the Commission deviates in its work must be explained in detail in the explanatory memorandum.” It thus appears that the Legislative Intent adopted in 2009 still seems relevant [...]’ IN: KOROMHÁZ, P.: Aktuálny stav rekodifikácie súkromného práva s prihliadnutím na oblasť ochrany osobnosti, IN: SUCHOŽA, J., HUSÁR, J., HUČKOVÁ, R. (eds.): Právo, obchod, ekonomika IX. Košice: Univerzita P. J. Šafárika v Košiciach, 2019, s. 28 a nasl., available at: https://unibook.upjs.sk/sk/pravnicka-fakulta/1268-pravo-obchod-ekonomika-ix (18.12.2020).
) See f. e. najpravo.sk, 23.10.2018, Vieme, prečo sa nebude prijímať nový Občiansky zákonník, IN: https://www.najpravo.sk/clanky/vieme-preco-sa-nebude-prijimat-novy-obciansky-zakonnik.html (18.12.2020).
) DULAKOVÁ, D., K celkovému konceptu návrhu novely občianskeho zákonníka a k vybraným otázkam právnej úpravy nájmu, Súkromné právo : recenzovaný časopis zameraný na otázky aplikačnej praxe. – Bratislava (Slovensko) : Wolters Kluwer. – ISSN 1339-8652. – ISSN (online) 2453-6504. – Roč. 4, č. 6 (2018), s. 254-259.
) Ministry of Justice of the Slovak Republic, 30.04.2019, Rezort spravodlivosti uzavrel neformálne pripomienkovanie k rekodifikácii záväzkového práva, IN: http://www.justice.gov.sk/Stranky/aktualitadetail.aspx?announcementID=2522 (18.12.2020).
) ‘Unfortunately, […] the recodification of private law is under the influence of politics to the extent that not only does politics affect the beginning and speed of the project, but also its evaluation.’ IN: Dulak, A., Dôvody a zámery rekodifikácie súkromného práva v podmienkach SR, Rekodifikácia súkromného práva v SR – ako ďalej?, Zborník z medzinárodnej vedeckej konferencie, vydavateľ: Vysoká škola Visegrádu s.r.o., ISBN: 978-80-89267-44-6, 2009, p. 5.