Analogia legis on the background of the methodological analysis of Czech Supreme Court Resolution, Ref. No. 222/2019
Abstract
Analogia legis is not a method applicable for all situations. It shall be applied only if a legal act does not explicitly regulate a certain issue and if the gap in legislation is not intended by the rational legislator.
Its usage might be preceded by a precise and in-depth methodological analysis. We assume that such an analysis should consist of four steps.
Nevertheless, these four steps are not always apparent from judicial decisions that take the application of the analogy into account. The example of such a decision is analyzed in this contribution.
This decision deals with the interpretation of Section 1664 of the Czech Civil Code that governs collation with respect to an inheritance share made by a court (without an order by the decedent). The Supreme Court concluded that the above-mentioned legal provision does not contain a complex and self-executing rule.
Thus, the Court had to use the analogy. However, its argumentation is quite poor and does not correspond to any yet published opinions on the analogy.
Our text targets to find arguments for the conclusion that Section 1664 shall be interpreted as self-applicable. It focuses on the issue mainly from the teleological point of view that in our opinion might have been underestimated by the Supreme Court.