Suchergebnisse

This paper focuses on a new institute of construction law, i.e., construction under illegally issued construction permit, practical elimination of the consequences and assessment of compatibility between legal regulation established by this institute and the principle of power separation. The paper defines conditions for elimination of consequences at the expense of innocent party and reveals implementation problems related to elimination of consequences at the expense of the guilty party. The author established a mismatch between the existing legal regulation and the case–law and made suggestions on amendments to the law. The study aimed to see whether the obligation of court to take into account specific criteria in a judgement on the fate of a building was in line with the Constitution. Application of legal norms in the spirit of legal positivism and creative (thoughtful) interpretation of law were analysed for the purpose. Constitutional jurisprudence in legal regulations existing this area of law was also reviewed. Theoretical and practical analysis of case–law lead to a conclusion of potential breach of the principle of separation of powers. The study proves that there is only a thin line between creative (thoughtful) interpretation and legislation. Therefore the study is significant as an attempt to assess constitutional compliance of established legal regulation as well as ensure stable legal relations.

This paper focuses on a new institute of construction law, i.e., construction under illegally issued construction permit, practical elimination of the consequences and assessment of compatibility between legal regulation established by this institute and the principle of power separation. The paper defines conditions for elimination of consequences at the expense of innocent party and reveals implementation problems related to elimination of consequences at the expense of the guilty party. The author established a mismatch between the existing legal regulation and the case–law and made suggestions on amendments to the law. The study aimed to see whether the obligation of court to take into account specific criteria in a judgement on the fate of a building was in line with the Constitution. Application of legal norms in the spirit of legal positivism and creative (thoughtful) interpretation of law were analysed for the purpose. Constitutional jurisprudence in legal regulations existing this area of law was also reviewed. Theoretical and practical analysis of case–law lead to a conclusion of potential breach of the principle of separation of powers. The study proves that there is only a thin line between creative (thoughtful) interpretation and legislation. Therefore the study is significant as an attempt to assess constitutional compliance of established legal regulation as well as ensure stable legal relations.