INTRODUCTION

OVERVIEW

The current regime of state liability for damage bears the imprint of its historical development in the Czech Republic.

Prior to 1951, the Austrian civil law regime, that is the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) of 1811, was applicable in the Czech countries. This codification, which entered into force at the beginning of the 18th century during the era of Enlightened Absolutism, did not attempt to regulate the state's liability for damage. The first socialist Civil Code of 1950 (Act no 140/1950 Coll) also did not contain any legal basis for state liability, as in accordance with contemporary development not only in the Czechoslovak Republic: even in the West, the time was not yet ripe for such a codification and for the introduction of state liability.

In fact, the opposite was true. In this period, the state enjoyed immunity from any kind of wrongs, especially if they resulted in damage. A second comprehensible and possibly also immediate reason for the lack of the concept was the regime which existed in the Czechoslovak Republic at that time. The state was an edifice of the communist party and, even if the party continued to claim that under its rule the state would wither away, it was nevertheless a highly appreciated tool of power at the disposal of the governing communist party. Because the party was considered infallible, it was impossible for the state to be liable for its failings.

Although we do not know the reasons, it was nevertheless at a relatively early time – in the second communist Civil Code of 1964 (Act no 40/1964 Coll) – that an indication of a regime regarding the liability of the state was evident. The provision of §426 of the Code, in its original wording, acknowledged state liability and promised the enactment of a special law. This law was finally passed in 1969 (Act no 58/1969 Coll) and was very progressive for its time. It followed the overall European trend and abolished the immunity of the state from liability.