Binding? Preliminary?

Some issues are not subject to court proceedings themselves but their solution is rather a prerequisite for a court ruling on the merits. Such issues are referred to as preliminary questions and need to be considered first. For example, in possession proceedings the question of the validity of the contract can be assessed as preliminary question.

How the court deals with preliminary questions, is not reflected directly in the verdict of the judgment but in the justification of the judgment. Nevertheless, only the verdict of the judgment is binding under the Czech civil procedure law, not the justification. Therefore, a court which considers a preliminary question which has already been considered by another court earlier in the proceeding, it is not bound by its decision.

However, the principle of legal certainty and the right to judicial protection requires that a legal question will be decided similarly to legal cases with some aspects. The Czech Constitutional Court has ruled that this principle is essential as it leads to trust in law. This requirement is not met, if the court considers some preliminary question differently from the previous court.

Even though the justification of the judgment may not be binding for the court which considers the same preliminary question, it has to take into account such court’s decision.


Mgr. Ing. Lenka Charvátová