Methodological attitudes to the analogia legis in the context of legal regulation of collation with respect to an inheritance share
Abstract
Analogia legis shall be applied only if a juridical 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.
Nevertheless, such an analysis is not always apparent from judicial decisions that take the application of the analogy into account. An example of such a decision is analyzed in the second part of this paper.
The analyzed 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. This paper criticizes the argumentation of the Court, its authors find the argumentation quite poor and lay down the hypothesis that it does not correspond to any yet published opinions on the analogy.
The main target of the paper is to find arguments for the conclusion that Section 1664 shall be construed as self-applicable. It focuses on this issue mainly from the teleological point of view, which - in the eyes of authors - might have been underestimated by the Supreme Court.