This doctoral thesis deals with the topic of care for the child's assets and liabilities and duty to maintain and support a child. Both of the mentioned instruments of law are connected as both in the end deal with the child’s assets.
The author is obligated to state that the part of this thesis which deals with duty to maintain and support a child is based on the author’s thesis called Maintenance obligation of ancestors and descendants written in 2018. The doctoral thesis itself is divided into two main parts, first part deals with the care for the child's assets and liabilities and the second with the duty to maintain and support a child.
In regards to care for the child's assets and liabilities it is important to state that this instrument is both a right and an obligation of a parent. It is a part of the parental responsibility which is also codified in the civil code. This is the reason this thesis partially deals with the parental responsibility and especially with the instruments the court has at its disposal. These can be used to interfere with the care for the child's assets and liabilities. When the court interferes in the parental responsibility it can choose which part of it (for example only the care for the child’s assets and liabilities) it will interfere with. There are three instruments which the court can use. First is suspension which deals with three possible scenarios. There are when a parent is still a minor and has not acquired full legal capacity or the parent is an adult but his fully legal capacity was limited by the court. In this case the court must suspend parent’s parental responsibility. The third possible scenario is when a parent is prevented from exercising his parental responsibility by an unforeseen circumstance (for example an illness) and it is within the child’s interest that the parent’s parental responsibility is suspended.
Second instrument which can interfere with the parental responsibility is a limitation of parental responsibility. It is when a parent does not exercise his parental responsibility properly and it is within the child’s interest that parent is limited in exercising his parental responsibility. Third instrument is a removal of the parental responsibility. The court is legally obligated to relieve the parent of his parental responsibility when he abuses it or seriously neglects it. The court must also consider relieving a parent of his parental responsibility if a parent has
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committed an intentional criminal offence against his child, or used his child who is not criminally liable for committing a criminal offence, or if the parent has committed a crime as an accomplice, instigator, aider and abettor or organizer of a criminal offence committed by his child.
As for the care for the child’s assets and liabilities the parent has the duty to administer them with due managerial care, which means to act responsibly, carefully and honestly. If parents breach their above mentioned duty and it results in damage to the child’s assets and liabilities the parents shall compensate the child. The parents in accordance with exercising the parental responsibility manage the child’s assets and liabilities together after mutual agreement. If parents cannot agree on a particular legal act in this matter, the court shall decide for them. In regards to the court decision, the parents can only administer the child’s assets and liabilities when it comes to routine matters or exceptional matters that are negligible value. In all other matters the parents must seek the court’s approval. The code civil also provides demonstrative examples in which the parents must seek the court’s approval before they can legally act. If the parents do not seek the court’s approval and act regardless, the legal act is disregarded and therefore void from the beginning.
The child’s assets and liabilities can also generate income. This income should be at first used to administer the child’s assets and liabilities like pay taxes, various fees and similar. The rest is called profit. Profit in author’s opinion should be primarily used to increase the value of the child’s assets as the primary goal of this law instrument is to hand over the assets and liabilities to the child when it either comes of age or by the decision of the court acquires full legal capacity.
The profit may also be used for child’s maintenance however it is author’s opinion that it should only be done in cases where parents themselves do not have enough funds that are required for the child’s maintenance. In rare cases the profit may also be used to maintain the needs of the parents and the child’s siblings if the conditions set by the law are met.
It is also important to mention a matter of insolvency. The right and duty to care for the child’s assets and liabilities is extinguished upon a declaration of bankruptcy. Interestingly enough, the code civil was changed regarding this
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matter, because before the change the right and duty of a parent was extinguished as soon as the parent found himself in insolvency. This was not correct as the whole reason for this instrument was to protect the child’s property when the parent is not capable of handling his own affairs. Bankruptcy means that the rest of the parent’s assets will be sold. There is no reason to extinguish the parent’s right and duty when he is capable of at least partially paying his creditors.
When the child acquires a full legal capacity the parents are obligated to hand the entirety of the child’s assets and liabilities over to him. With this they are also obligated to present him with an account of administration unless the child expressively wishes otherwise. Parents can also request a reimbursement of any costs in connection with the administration of the child’s assets and liabilities.
They can also request a reasonable remuneration if the administration was difficult and they conducted it correctly. It is the author’s opinion that all of the above should be presented to the child at the moment of handing over his assets and liabilities.
Last but not least it is also important to mention that the code civil implies along with the technical literature that the law instrument of guardian for the administration of the child's assets and liabilities should be used more frequently.
Basically the guardian mentioned above is responsible solely for the administration of the child’s assets and liabilities. If the guardian is appointed by the court, the parents temporarily lose their right and duty to administer the child’s assets and liabilities. It is also the author’s opinion that the requirements as far as the technical skills go, should be applied more strictly than when it comes to parents.
As for the duty to maintain and support a child, it is important to state that it is a mutual duty, which means that the child has it also. It is good to say that there are four kinds of the duty to maintain and support. Code civil does not provide a specific formula which can be used to determine the exact number which the obligator must provide the obligee. There are several determining factors, first being the justified needs of the obligee and his property situation, as well as his abilities, potential and property situation of the obligor are decisive. The courts must investigate the above very thoroughly. As for the child, it is also important to
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mention that his standard of living must be equal to that of a parent. In regards to this, the parent can also provide a portion of the support as savings for the future for the child. It is fair to say that the courts try to examine the whole matter mentioned above thoroughly. The existence of rich judicial precedents also helps a great deal. There also exists a chart of the Ministry of justice of Czech Republic, which serves as an example of how much of the obligator’s income should be used for the support of the child.
Last but not least if the parent does not fulfill his above mentioned duty to maintain and support his child, it can also be considered a crime. The Czech penal code contains a crime called Desertion. The author decided to put a short treatise of this instrument of the criminal law, because according to the police statistics there is a great number of these crimes being committed every year. It is also closely connected to the duty to maintain and support a child. The main purpose of this crime is not to send the offenders to prison but to make them fulfill his duty to maintain and support a child. Therefore the courts tend to choose alternative forms of punishment if possible.
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6. Prameny