Publicado en línea: 15 oct 2019
Páginas: 285 - 298
DOI: https://doi.org/10.2478/danb-2019-0015
Palabras clave
© 2019 Leopold Skoruša et al., published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
Czech law went in connection with the adoption of the Civil Code (Act No. 89/2012 Coll., hereinafter called “OZ”) through a number of changes that affect the functioning not only of the private but also of the public sphere. The service laws, respectively the Professional Soldiers Act (No. 221/1999 Coll.) and the Service Relationship of Members of the Security Forces Act (No. 361/2003 Coll.), belong among public law regulations, but they also have a strong link to the private law regulations, besides the Civil Code, especially to the Labour Code (No. 262/2006 Coll., hereinafter called “ZP”). This interconnection is based on the principle of unity and irreconcilability of the legal order, and on the understanding the relationship between private and public law as a “general” and “special” relationship, as it is more recently emphasized in the literature and in the jurisprudence of the supreme courts. Cf. Pichrt; Kopecký; Morávek (2016); Skoruša; Horák; Vičar; Zbořil (2017).
The concept of liability has been changed in private law (“liability to damages” is used instead of a “sanction for the breach of duty”; contractual and non-contractual damages are separated) and the legal term “damage” relates only to the damage to property and damages for non-proprietary loss are more emphasized. Cf. Eliáš et al. (2012), 1021–1054; Melzer; Tégl et al. (2018).
Originally, the regulation of reimbursement for bodily harm was similar in private and public law, but after modernizing the private law, the protection of persons in a service relationship (resp. professional soldiers and members of the security forces) and those closely related to them.
This issue is rarely discussed in professional circles, but in literature it also remains rather on the edge of the authors’ interest. As the authors of this article, inter alia, study various topics of labour and service law in their professional practice, they have focused their attention on the research of liability for injury in labour and service relations and related issues.
The following text provides a comparative analysis of the current labour and service regulations and suggests some changes, especially in the field of service law. Due to the limited scope of the text, the authors do not deal with the institute of compensation for (after) the death of a soldier, a member of the security forces or an employee.
The Professional Soldiers Act No. 221/1999 Coll., (hereinafter called “VojZ”) represents the legal framework for the application of damages for bodily harm of members of the armed forces.
Liability for damage includes both the liability of the subject that caused the damage unlawfully and based on fault (liability based on fault) and the subject that caused the damage by permissible but dangerous conduct. Here we talk about liability for
The assumptions of the general liability of the state for damage caused to a soldier are:
breach of legal duties, damage caused to a soldier in the course of, or in connection with a service performance and the causal link between the breach of legal duties and the occurrence of damage. To claim compensation, all these assumptions must be performed at the same time; if any of these are missing, the claim shall not arise. The state is obliged to compensate the soldier not only for the damage caused by the breach of his duty but also for the damage caused to him by another entity (another soldier or another person).
In order to preserve the principle of compensation for actual damage sustained as a result of an accident at work or an occupational disease and resulting reduction of the service average salary earned prior to the damage, the soldier will be compensated for loss of earnings up to the level of the average service salary before the occurrence of the loss in the amount of the difference between the average service salary and the service salary for inability to perform a duty or full sickness benefits.
A soldier will also be compensated for further inability to perform a duty due to a service accident or occupational disease. The amount of the compensation will be based on the average service salary of the soldier before the occurrence of the additional damage, it means before the further recognition of the inability to perform the required duties.
The compensation is a separate partial claim arising in different time frames and cannot be divided into several parts unless new facts arise. However, the soldier may claim the portion of his claim, and then its remainder. The claims for compensation are not subject to the statute limitations. However, the claims for the individual performance resulting from them are subject to the statute of limitations.
To determine the average service salary of a soldier, the relevant legislation of the ZP on average earnings shall be applied, the calculation does not consider the extra charge for service abroad and the salary for the unfulfilled regular vacation (see § 68r VojZ). The amount is limited to the maximum amount that can be paid to a soldier. This amount is equal to a maximum of twenty times the minimum wage (267,000 CZK in 2019).
The compensation is also awarded to a soldier who does not serve because he has been recognized as incapacitated for service but for reasons other than personal injury or occupational disease. Sick leave is calculated from the salary after the accident at work or after the detection of the occupational disease, in accordance with sickness insurance law. The principle of the claim for compensation for loss of service salary is terminated at the age of 65, it is interrupted if a soldier has become disabled in the first or second degree as a result of an accident at work or an occupational disease under particularly dangerous conditions in the performance of service abroad. In that case, compensation for the loss of salary is awarded without regard to the age limit.
The compensation for pain and suffering and the compensation for diminished social function are lump – sum grants, the amount of which is regulated by decree No. 346/2015 Coll., on the procedure for determining the amount of compensation for pain and suffering and for diminished social function of soldiers. The regulation prescribes the amount of
The limitation of self-realization and social function connected with the performance of the job (in the sense of the profession) is compensated in connection with the influence of personal injuries on the performance of the service and in the framework of compensation for diminished social function without any direct connection with the amount of income, because the compensation is taken into account without considering the reduction of earnings.
The compensation for meaningful cost of treatment may consist, for example, in the reimbursement of the costs of the purchase of medical equipment not paid (or partially reimbursed) by the Military Health Insurance Company, in the reimbursement of the cost of dietary meals, in the reimbursement of the costs associated with rehabilitation treatment or visits of a soldier affected by a service accident hospitalized in a health care facility or also in the reimbursement of costs incurred in connection with outpatient care provided by specialist doctors.
Linking the amounts of one-off extraordinary compensation to the minimum wage ensures the necessary valorisation of this claim in the context of changes in wage developments and rising costs of living needs. In order to avoid double coverage in a similar case, a one-off extraordinary compensation is provided only once, at a rate which is more advantageous for the soldier.
Act No. 361/2003 Coll., on the Service Relationship of Members of the Security Forces (hereinafter called “ZSP”) is the legal framework for the application of compensation for personal injuries to members of the security forces. The Act represents a relatively comprehensive regulation of service relations for the
The legal regulation of liability for damage in the ZSP is regulated similarly to the ZP Government Order No. 290/1995 Coll., establishing a list of occupational diseases, as amended.
The following remarks may be made to provide compensation for injury or occupational disease. A member who has suffered a “The injury suffered by the plaintiff during activities related to physical rehabilitation activities carried out within the framework of a curative stay provided by the order of the director of human resources management is a service accident and the plaintiff thus has pursuant to Section 101 of Act No. 361/2003 Coll. the right to compensation for the pain and aggravation of social exercise and the reimbursement of the cost of treatment.” According to the judgment of the Regional Court in Ostrava, branch office in Olomouc dated 27 January 2016, ref. 65 Ad 6/2014–48.
In addition, the injured party is entitled “In Act No. 361/2003 Coll., on the Service Relationship of Members of Security Forces, there is no provision that would prevent the service body from initiating proceedings for damages for professional injury (occupational disease) ex officio. If a service official starts such proceedings ex officio, he is bound by defining the subject-matter of the proceedings at the time of the commencement of the proceedings.” According to the judgment of the Regional Court in Ostrava of 30 May 2018, Ref. 22 Ad 17 / 2017–33.
Another one-off claim is a one-off compensation awarded to a member dismissed from the staff member’s due to long-term loss of medical capability. The basic amount is 230,000 CZK, while the provisions of § 105, para. 2 of the ZSP contains the so-called valorisation clause.
The reimbursement of the meaningful costs associated with the treatment is enshrined in the provisions of § 101, § 106 and § 107 of the ZSP. There are no more limitations defined by ZSP, according to labour law jurisprudence, these are mainly the additional costs to the medicines not paid by health insurance company, medical equipment, rehabilitation, etc. Judgment of the Court of Justice No. 21 Cdo 424/2003. “This reimbursement may also consist in reimbursement of the costs of purchase of medicines and medical equipment not paid (or partly reimbursed) by the relevant health insurance company, reimbursement of dietary meals, reimbursement of costs associated with rehabilitation treatment or visits of an employee affected by an occupational accident hospitalized in medical facilities or reimbursement of costs incurred in connection with outpatient care. . . ”
Damages, resp. non-proprietary damage to the health of a member of the forces shall be decided by the relevant service official according to the ZSP.
The basic labour law regulation, which regulates inter alia the course of employment, is Act No. 262/2006 Coll., of the Labour Code. Unlike the above-mentioned issues, this is a private law relationship. The employer is obliged to create favourable working conditions (§ 248 of the ZP) and to prevent non-material damage, which is typically personal injury. It is clear that all workplaces cannot be safe, but the employers are required to minimize the risks.
The corresponding duty of the employees is to ensure that there is no damage to property, non-proprietary damage or unjust enrichment (§ 249 of the ZP). Private law traditionally regulates the issue of prevention, as it is in the Civil Code, where the general preventive clause is regulated in § 2900. It again implies the rule of everyone’s duty to act so as to avoid unjustified damage.
Work injuries and occupational diseases are considered to be bodily injuries for which the employers are held liable. The existing ZP has taken the definition of an injury from the judgments – as the damage to health or the death of an employee that occurred in spite of his or her will due to short-term, sudden and violent external influence during fulfilling the work tasks arising in the course of employment or in the direct connection with it (§ 271k of the ZP). If the injury did not occur during the fulfilment of the work tasks arising in the course of employment or in direct connection with the performance of the employee’s duties arising in the course of employment, the injury will also be considered as a work injury. An example may be an assault on an out of duty municipal police officer by someone against whom the police officer had interfered with in the past. Occupational diseases are listed in a special legal regulation, the government order No. 290/1995 Coll. Work injuries and their compensations are governed by § 269–275 of the ZP. Apparently, there are only 7 sections, in fact, there are 29 of them, because § 271 and § 271u
The common provisions define concepts of
The reimbursement of the loss of earnings is a typical, very frequent compensation in the event of temporary incapacity from work of an employee. However, some work injuries may not necessitate incapacity from work.
If an employee is no longer able to earn such earnings as before the accident, he is compensated for the loss of earnings after the termination of incapacity for work. It may happen that the employee becomes disabled in grades 1 or 2 or is no longer able to do the same job for the whole working time or does not keep up with the pace of work. In this case, he is earning less money and thus suffers damage. The compensation is provided in the amount of the difference between the average earnings before the accident and the earnings after the termination of incapacity for work. If an employee is granted a disability pension, it is taken as part of income.
To improve health after an accident at work, an employee may incur costs such as dietary supplements, rehabilitation, or journey to a doctor. The damage to clothing or other personal belongings is considered to be material damage. In both cases, the compensation for meaningful expense will be awarded.
The civil service, as another service relationship, is governed by Act No. 234/2014 Coll., on Civil Service, as amended. The Civil Service Act does not regulate the issue of the damage liability of a service authority, security of a civil servant in the event of an injury at work or occupational disease. The Section 124 of the Civil Service Act refers to the Labour Code ( Act No. 234/2014 Coll., on Civil Service, as amended. Available at:
The reference to the relevant provision of the Labour Code is absolutely appropriate and undoubtedly ensures the civil servant the same legal rights as any employee working under an employment relationship or an employee on the basis of other individual labour relations in the event of an injury at work or an occupational disease. The liability of the service authority in the event of an injury at work or an occupational disease is thus perceived as responsibility for the result. As well as definition of liberation reasons and the entire system of individual types of compensation, the conditions for entitlement to them and the extent of their provision, including compensation for survivors apply in the same way as under the Labour Code. Closer Pavlátová (2018).
The service authority shall be liable for any damage suffered by a civil servant when performing duties or in direct connection with breach of legal obligations or acts against good morals. The service authority, in which the civil servant was in the service at the time of the injury, is liable for the damage caused by the accident. The service authority is liable for the damage caused to the civil servant by occupational disease, in particular where the civil servant was in service before finding occupational disease under conditions the occupational disease occurs. The service authority is obliged to compensate for damage, even if it has complied with all legal and other obligations to ensure safety and health at work. This is the responsibility for the result (objective liability). However, the Labour Code regulates cases when a service authority is fully or partially relieved of its liability (Section 270 et seq.).
Another important rule for the service authority’s liability is stipulated in Section 177 (2) of the Civil Service Act, according to which legal and other safety and health protection related rules and provisions to protect health and safety of civil servants shall be understood to be the provisions of Article 349 (1) and (2) of the Labour Code. For the purposes of the Civil Service Act, a work injury according to Section 271k of the Labour Code shall be understood to be a service injury. An accident that a civil servant has suffered during the performance of his/her service duties is also treated as a service injury (e.g. an attack on a civil servant for the purpose of carrying out his/her duties but outside his/her working time). On the other hand, a service injury is not an accident that occurred on the way to and from work. Occupational diseases are diseases listed in a special legal regulation (currently Government Regulation No. 290/1995 Coll.) Closer Pichrt et al. (2015).
As mentioned above, the Labour Code rules apply to the compensation system, so this issue is discussed in more detail in the previous chapter.
Liability for personal injury to a person who has provided the public authority (public officials) with cooperation, is at the borderline of responsibility towards “own” (persons in service) and “someone else’s” (third parties). This is the responsibility for the result. Cf. Mates; Škoda; Vavera (2011); Klíma et al. (2013) and Kopecký (2014).
Applicable laws do not address this issue alone, but mostly refer to a different regulation (fourteen out of seventeen). It should done as follows:
according to the VojZ, to assist the armed forces (Section 43 (2) of Act No. 219/1999 Coll., on the Armed Forces of the Czech Republic, and Section 61 (2) of Act No. 222/1999 Coll., on Ensuring the Defense of the Czech Republic); according to the Labour Code in assisting fire brigade (Section 80 and 81 Act No. 133/1985 Coll., on Fire Protection; the Prison Service (Section 23 (2) of Act No. 555/1992 Coll., on the Prison Service and the Judicial Guard of the Czech Republic), nature, forestry, hunting and fishing guards (Section 81b para. 114/1992 Coll., on Nature and Landscape Protection, Section 39a (2) of Act No. 289/1995 Coll., Forest Act, Section 16 (1) of Act No. 449/2001 Coll., on Hunting, and Section 18 (6) of Act No. 99/2004 Coll., on Fisheries) In the case of guards, this responsibility was introduced by an amendment to certain acts relating to a public official (Act No. 238/1999 Coll.), with effect from 1 January 2000. according to the Civil Code, to assist the police (Section 24 (4) of Act No. 553/1991 Coll., on Municipal Police, and Section 95 (4) of Act No. 273/2008 Coll., the Police Act), GIBS (Section 55 Act No. 341/2011 Coll., on General Inspection of Security Forces) and Customs Administration (Section 51 (2) of Act No. 17/2012 Coll. on Customs Administration of the Czech Republic); in cases worthy of special consideration, one-off extraordinary compensation may also be provided; according to the Commercial Code (which is not explicitly stated, but it is derived by literature) when assisted the BIS (Section 17 of Act No. 154/1994 Coll., on the Security Information Service); 374/2011 Coll., on Emergency Medical Service) and the Service Office (Section 125 of Act No. 234/2014 Coll., on Civil Service).
The death of an employee, a soldier, or a security officer (hereinafter called “worker”) terminates most of the legal relationships, including employment and service relationship, but it is necessary to settle the rights and obligations resulting from them. Compared to the civil law (see § 1475 para. 2, § 1701 and 2009 OZ), the ZP and the Employment Act include some specifics which are designed to increase the protection of the worker, his/her family or heirs, their claims and the claims of the employer/state Closer Horák (2016); cf. Bělina; Drápal (2015); Vysokajová; Hůrka et al. (2015) and Tomek (2012).
The issue of the transfer of property rights after the death of a worker (except the state administration) is similar (the common inspiration source of all modifications is Act No. 65/1965 Coll. the Labour Code, hereinafter referred to as “ZP 1965”) in the employment, as well as in the service relationship. However, labour law and service law differ precisely in solving the transfer of non-proprietary damages.
The employee’s financial rights (existing before the termination of the employment or service) do not, in principle, terminate upon death: either they are gradually transferred to the qualified heir (first to a spouse, then to children or parents if those persons lived with a worker at the time of his death in a common household) or they become the subject-matter of inheritance (unless the close persons exist, or if the claims are more than three times the average monthly earnings of the worker).
Pursuant to the ZP 1965 (§ 260 para. 1), only the claims for compensation for pain and suffering and diminished social function, previously perceived as purely personal (see also § 579 para. 2 OZ 1964 § 579 para. 2: “The right shall be terminated by the death of the creditor, if the performance was limited only to himself; the right to reparation money, as well as the right to damages for diminished social function.” § 335: “8. the death; The obligation shall be terminated by the debtor’s death, if the fulfilment is to be effected personally by the debtor or, by the death of the creditor, if the fulfilment was limited only to his or her person. The obligation to compensation for the reparation money and to compensation for the disfigurement shall not be terminated by the death of the entitled party if the claim has already been exercised by the entitled person.” Cf. a. o. comments to § 193, 196 and 260. In Součková et al. (2004) and Škárová (2009).
However, a similar regulation has not been adopted in the ZP, which brought interpretation problems. In principle, the situation can be solved in two different ways: either 1) subsidiary way – we use the OZ, or 2) autonomous way – without taking into account the OZ.
Ad 1) according to the “subsidiary” solution, the rights resulting from the effectiveness of the OZ 1964 (until December 31, 2013) were not transferred to the heirs, under the effectiveness of the current OZ (from January 1, 2014) were transferred only if they were recognized or applied to a public authority (compare § 1475 para. 2 and § 2009 para. 2 OZ) § 1475 para. 2: “A decedent’s estate of a decedent except for the rights and duties exclusively bound to him personally, unless they have been acknowledged or enforced as a debt before a public body.” A § 2009 para. 2: “A creditor’s right is extinguished upon his death if the performance was to be provided only to him personally.”
Ad 2) the above-mentioned rights (or claims under earlier terminology) do not cease to exist, but become the subject-matter of inheritance proceedings in the full amount (e.g. SC 21 Cdo 936/2010), which is justified by the purpose and specifics of the labour law (increased employee protection) Same as Comment to § 328. In Bělina; Drápal et al. (2015). Closer: Pichrt (2009).
The part of a newer literature also denies the exclusive personal nature of the right to pain and suffering damages and compensation for diminished social function, and it is assumed that the mentioned rights are transferred to the heir, even if they are not recognized or applied to a public authority (§ 1475 para. 2)
The types of damages are similar in both employment and service relationships (damages for loss of earnings, pain and suffering, diminished social function, meaningful cost of treatment, material damage). In addition, the member of security forces, the soldier and the survivors of the soldier may recover one-off (extraordinary) compensation.
Overview of damages for non-proprietary damage
| Regulation | Damages for pain and diminished social function | One-off indemnity | Mandatory to decide | Appeal authority | Body of judicial review | |
| Act No. 221/1999 Coll., on Professional Soldiers | 250 CZK/point | 6 times min. wages | 1st and 2nd degree of disability | Service authority (body) | Superior service authority (body) | Competent administrative court |
| 24 times min. wages | 3rd degree of disability | |||||
| Act No. 361/2003 Coll., on the Service Relationship of Members of Security Forces | 250 CZK/point | 230,000 CZK | Termination of service relationship due to injury | Service official | Director of security forces | Competent administrative court |
| Act No. 262/2006 Coll., the Labour Code | 250 CZK/point | It is not provided (only in case of survivors) | Employer | Does not exist | Competent civil court | |
| Act No. 234/2014 Coll., on Civil Service | 250 CZK/point | It is not provided (only in case of survivors) | Service official | Superior service authority | Competent administrative court | |
Private lawsuits are decided in civil justice (the Supreme Court is the last instance) and service litigation in administrative judiciary (Regional courts and the Supreme Administrative Court). In civil law, there is no statutory instrument for compensation for personal injuries, the determination of compensation should be individual, and the Supreme Court methodology Nejvyšší soud, 2014.
In the case of liability for damage, the protection of workers in the public sphere has traditionally been higher than in the private sphere. The regulation of damages in both private and service relationships was similar before the effectiveness (2014) of the Civil Code, but after the modernization of private law, the protection of persons and their relatives in service relationships becomes weaker.
The right to compensation for pain and diminished social function has traditionally been terminated by the death of a worker (there was no transfer to his/her heir), which persists in the service relationships until today. However, in current private law, such a right does not terminate (in civil law it is transferred to the heir if it has been recognized or at least claimed in court, and in labour law it is transferred without further action).
The different regimes in labour law and in-service law are unjustified in the case of damages. The following amendments to the existing legislation would be appropriate for