Page 270 - COFOLA 2023. Část 3 – Sborník příspěvků mladých právníků, doktorandů a právních vědců.

COFOLA 2023 – ČÁST 3

Keywords in original language
Výkon rozhodnutí; předběžná opatření; domácí násilí; styk s nezletilými.

Abstract
The paper deals with the enforcement of conflicting preliminary measures
in cases of domestic violence against a child: the first one imposes a ban on the
violent parent prohibiting him or her from meeting the child (preliminary mea-
sure on the protection against domestic violence pursuant to Section 405(1)(c)
of the Act on Special Court Proceedings), the second one regulates the vio-
lent parent’s right of access to the child (authorises the contact) and obliges
the other parent to prepare the child for the contact and to hand him over
to the authorised parent (preliminary measure issued by the family court under
the general provisions of Section 76(1)(e) of the Code of Civil Procedure).
The conflicting enforcement occurs if these decisions (enforceable from the
moment of issuance) are issued in close temporal sequence.
This is not an isolated case in judicial practice, but it does give rise to an absurd
situation. It is not possible not to meet and have contact with a minor at the
same time. If the abusive parent meets the child, the enforcement of the
decision issued pursuant to Section 405 of the Code of Civil Procedure will
be carried out against the abusive parent (imposition of a fine). At the same
time, the enforcement of the decision issued pursuant to Section 76 of the
Code of Civil Procedure will be carried out against the other parent (imposi-
tion of a fine, even the removal of the minor) if the abusive parent is denied
contact because the other parent does not hand over the minor to him.
The paper deals with the question whether the enforcement of conflict-
ing preliminary measures can be ordered and subsequently also carried out
or whether the procedural law includes tools against such an aimless enforce-
ment of obligations. Both enforcement proceedings are conducted while the
decisions are not yet final (at least at an initial stage) – thus while the parties’
appeals have not yet been decided. It is therefore examined whether the debt-
ors also have the means to defend themselves in the enforcement proceedings.

Keywords in original language
Enforcement of Decisions; Preliminary Measures; Domestic Violence;
Child Access.

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