Abstrakt
The article explores the horizontal effect of fundamental rights on the basis of a structural analysis of the value system and systemic or anti-systemic elements in law. In this way it touches on the dichotomy between private and public law, as illustrated by the cases of permissibility of bank charges which were determined quite differently in the Czech and German legal systems.
If we accept that legal principles and values hold a central position in current law, and if we extrapolate Jestaedt's thesis of a constitution 'behind' a (written) constitution to a more general idea of law as a set of unwritten regulatory standards which underlie written law, the implied conflict between contractual autonomy and fundamental rights should be understood more widely: not only as a conflict of positive provisions in the constitution and private law statutes, but also as a conflict of fundamental principles and values in both legal branches.