The right of superficies and its comparison to Austrian law Abstract This thesis describes the right of superficies that was adopted into the Czech legal system by the Act Nr. 89/2012 Sb., Civil Code and compares it with the Austrian right of superficies adopted by Act Nr. 86/1912. The objective of the thesis is to describe the key attributes of the right of superficies according to Czech law and to compare it with the corresponding provisions of the Austrian law. The thesis also deals with provisions of the Czech right of superficies that may be unclear or problematic to interpret and offers the possible way in which these provisions could be interpreted by drawing upon the example of the Austrian right of superficies. The thesis also contains the evaluation of the Czech right of superficies and some ideas for improvement of some its provisions. The right of superficies is described according to Czech and Austrian law in each chapter separately to aid the comprehensibility of the thesis and each chapter also contains the comparison of the concrete attributes of the Czech and Austrian right of superficies, respectively. Analytic, synthetic and comparative methodologies are used in this thesis. The introduction contains a brief historic development of the right of superficies and of the principle superficies...

This Master Thesis deals primarily with the legal institute of the right of superficies. It also deals with some another legal institutes which can be used for a building construction on another's land. The Thesis' aim is primarily the analysis and evaluation of the effective legal regulation of the right of superficies and furthermore its comparison with historical regulations, with the Swiss regulation, as well as the comparison with another institutes which can be used for a building construction on another's land. The Thesis is divided into five chapters which are divided into subchapters. The first chapter defines the basical relevant terms which are important for understanding of the legal institute of the right of superficies. The second chapter is dedicated to the history of the right of superficies and introduces historical legal regulations of this legal institute. At first, the original Roman law institute of superficies is introduced, furthermore all the acts which governed the right of superficies in the history in the area of the Czech Republic are analysed, including the regulation of the proposed Czechoslovak Civil Code that never came into force. The attendance is dedicated also to the period when the right of superficies did not exist in the Czechoslovak or Czech legal order. The...

Au lendemain de la renaissance juridique du XIIe siècle, la redécouverte du régime romain de la superficie amorce une réflexion doctrinale sur ce mode de dissociation juridique du sol et de la construction. Les glossateurs suivis par les commentateurs et une partie de la doctrine moderne distinguent le pouvoir du superficiaire sur la construction et celui maître du sol sur l’intégralité du fonds en qualifiant le premier de domaine utile et le second de domaine direct. Le dominium du superficiaire rassemble ainsi l’ensemble de ses actions et prérogatives sur la chose dont la plupart sont concurrentes de celles du maître du sol. La remise en cause de la théorie du double domaine par les juristes humanistes ne conduit pas ces derniers à contester l’étendue du pouvoir du superficiaire. Le concept de droit de superficie connaît en revanche un véritable bouleversement lorsque Wolff affirme, à la fin de l’Époque moderne, que le droit de superficie est un droit de propriété exclusif et absolu. Une même conception du droit de superficie est défendue au XIXe siècle par les premiers commentateurs du Code civil pour offrir une qualification aux différentes pratiques de dissociation juridique du fonds hérités de la coutume d’Ancien Régime. / Following the juridical renaissance of the 12th century, the rediscovery of roman superficies rules initiates a doctrinal reflection about this form of legal dissociation between building and ground. Glossators, followed by commentators and a part of the modern doctrine, differentiate the superficiary’s power over the building and the ground owner’s power over the entire land by describing the first one as a beneficial ownership and the second one as a direct ownership. For these authors, the superficiary’s ownership contains his procedural and substantive rights. Some of them compete ground owner’s rights. By rejecting the concept of dual ownership, humanistic jurists don’t question the scope of the superficiary’s power. However, at the end of Modern Area, Wolff changes the concept of right of superficies by identifying it as an exclusive and absolute ownership. In the 19th century, an identical conception is found in the first commentators of the Napoleonic Code’s doctrine. Indeed, the concept of superficies is used by these jurists to characterize several practices of dissociation between building rights and ground rights which are initially based on Ancien Régime customs.

The topic of the diploma thesis is the legal principle superficies solo cedit and its return into the Czech law. The main aim of this thesis was to give a comprehensive view of this issue, especially how the return of the principle has changed land law relations. The first part of the thesis describe the division of the law to private law and public law. The first part is followed by the historical excursion which describes how the principle originated and how and whether it was part of the legal order in the past. The next chapters of the thesis are the main part of the work and describes the principle in todays law. Firstly the incorporation of the principle into the Civil Code is described and then individual paragraphs governing the principle follows. The definition of the basic terms as land, construction and temporary construction which are used by Civil Code but not described in it are the topic of next chapter. Next, relatively extensive chapter named line constructions describes exceptions to the principle. The basic definition of exceptions can be found in the Civil Code but more detailed regulation is contained in public acts, therefore private and public law is intertwined in this area. Easements to real estate, historical development of its legislation and today's legislation in this...