182/2017 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court ruled under SP. zn. PL. ÚS 10/16 23 February 2005. may 2017 in
the plenary consisting of the President of the Court, Pavel Rychetského and judges Louis
David, Jaroslav Fenyka, Josef Fiala, John Philip, Tomas Too,
Jan Musil, Vladimir Sládečka, Catherine Šimáčkové, Vojtěch Šimíčka,
Milady Tomková, Jiří Zemánek Uhlir and David (Judge-Rapporteur)
the design of the regional court in Prague, for which it is Mgr. Šárka Hájková, on
repeal of section 17(2). 4 of law No. 256/2013 Coll., on the real estate register
(cadastral law), in the words of "... on whether this decision
binding for the person for whose benefit it is right in the land register yet
registered. ", with the participation of the Chamber of deputies of the Parliament of the United Kingdom and
Senate of the Parliament of the Czech Republic as the parties and the Government of the United
the Republic as a secondary party to the proceedings,
as follows:
The proposal to repeal section 17 para. 4 of law No. 256/2013 Coll. on the land
real estate (Land Registry Act), in the "... further, whether this is
decision binding even for the person for whose benefit the right is in the
yet to be written. "is rejected.
Justification
(I).
A recap of the content of the proposal and the course of the proceedings
1. Proposal of 7 November. March 2016 sent to the Constitutional Court of 16 December.
March 2016, which was accompanied by a submission of 13 October. may 2016
sent to the Constitutional Court of 27 June. June 2016, the applicant on
the basis of the article. 95 para. 2 of the Constitution of the Czech Republic (hereinafter the "Constitution") in
conjunction with § 64 para. 3 of Act No. 182/1993 Coll., on the Constitutional Court, in
as amended, (hereinafter referred to as the "law on the Constitutional Court") seeks
repeal of section 17(2). 4 of law No. 256/2013 Coll., on the real estate register
(cadastral law), in the "... Furthermore, whether that decision is binding
and for the person for whose benefit the right is not yet registered in the land registry. "
2. the applicant States that, in the framework of its activities has been made
action under section 244 et seq.. Act No. 99/1963 Coll., the code of civil procedure,
as amended, (hereinafter referred to as "the row"), which is registered at the
The regional court in Prague (hereinafter referred to as the "District Court"), SP. zn. 37 C
35/2014 and the subject of the proposal () for annulment of the refusal
the decision of the cadastral registry in case their design on deposit (in the draft
closer specified) and its replacement by a court decision on the authorisation
deposit of title to land, that the applicants ' statements
released in the restitution procedure on the basis of a court decision (in the draft
also, closer specified). The reason for the rejection of an application for authorisation
deposit made by the cadastral registry was that land issued by the applicants
pursuant to Act No. 229/1991 Coll., on the adjustment of the ownership of land and
other agricultural property as amended, (hereinafter referred to as
"the law of the land") extend its location to the land (in the preamble
the decision of the land also specific)
are owned by persons who were not parties to the court proceedings, in
which it was decided about the restitution claim of the appellants. According to the
the cadastral registry so condition is not met for a permit to deposit
property right provided for in § 17 paragraph 2. the second sentence of section 4
the land law, since the decision, which is the base for the deposit,
It is not mandatory for the person for whose benefit the right is in the
real estate has not yet been registered. The applicant takes the view that the land registry
the Office probably indirectly refers to Section 159a of the row, which, however, cannot be
apply to the present case, since the applicants have been issued land
According to the law of the land, which it defines as participants of the restitution procedure
only the taxable person and the person authorized. The owners of real estate who
acquired property right contrary to section 5 (3). 3 of Act No. 229/1991 Coll.
on the adjustment of the ownership of land and other agricultural property in
amended by Act No. 93/1992 Coll., of abetting in the restitution procedure
excluded.
3. the applicant considers that there is a contradiction between the section 17 para. 4 parts of the second sentence
Land Registry Act and § 5 para. 3 of Act No. 229/1991 Coll., on the adjustment of
the ownership of land and other agricultural property as amended by
Act No. 93/1992 Coll., as first the provisions excludes the fulfillment
Central to the provisions of the law of the land. In the land register is not
You can write the title to real property issued by the authorized persons
them by decision of the land Office or the Court. Such a situation occurs in the
cases where the debtor has transferred in violation of § 5 para. 3 of Act No.
229/1991 Coll., on the adjustment of the ownership of land and other agricultural
assets, as amended by Act No. 93/1992 Coll., of the property to a third party,
which may in practice mean that the restitution claims of authorized persons
become a fiction. In addition, the persons concerned should have been placed at a disadvantage in relation to other
restituentů groups, whose claims have been processed before the effective date
the land law, and before the effective date of the amended § 8 para. 1
Act No. 265/1992 Coll. on ownership and other real rights to
real estate law, as amended, (the amendment was made
Act No. 349/2011 Coll., effective since 1. January 2012). The applicant concludes,
There is a conflict of both of the above mentioned standards and resolve this
conflict goes beyond the competence of the regional court in Prague and, therefore, requires
cancellation in the header of that section to section 17 para. 4 land registry law.
II.
The texts of the relevant legislation
4. the provisions of section 17 para. 4 the land law: "in the case of decisions
the Court examines the cadastral agency compliance with the conditions referred to in paragraph 2 only
(a). and further, that), and this decision is binding even for the person in whose
the benefit is not yet registered in the land register law. "
5. the provisions of § 5 para. 3 of Act No. 229/1991 Coll., on the adjustment of ownership
relationship to the land and other agricultural property as amended by Act No. 93/1992
Coll.: "Required the person is liable to the estate until their release
the person entitled to dispose of the due diligence, from the effective date
This Act cannot do these things, their components and accessories, convert
into the possession of another. Such acts are invalid. The right to
damages, which required the person causes the legitimate violation of these
obligations, the provisions of section 28 shall remain unaffected. "
III.
Recapitulation of the observations of the parties and the intervener control
6. According to § 42 para. 4 and § 69 para. 1 of the law on the Constitutional Court posted by
The Constitutional Court for annulment of the contested provisions of the
House of Commons of the Parliament of the Czech Republic and Senate of the Parliament of the Czech Republic
(hereinafter referred to as "Chamber of Deputies" and "Senate") as parties to the proceedings and
the Government of the Czech Republic (hereinafter referred to as "the Government") and the Ombudsman,
that they are entitled to enter into the proceedings as interveners.
The Constitutional Court further on the basis of § 48 para. 2 Act No. 182/1993 Coll.
The Constitutional Court, requested the observations of the Czech Office of land measurements and
land registry.
7. The Chamber of Deputies, in its statement of 18 April. may 2016
limited only to the description of the course of the legislative process which led to the
adoption of the law, whose provisions it is proposed to repeal. In the framework of the
observations then pointed out that section 17 para. 4 land registry Act was
supplemented on the basis of the proposal of constitutional legal Committee that the draft law
discussed on 9 April. may 2013. Finally, it pointed out that section 17 para. 4
the land law currently has only one sentence, so the proposal
The regional court in Prague, which was available, requesting the cancellation of the
the second sentence is unclear (n.b. this ambiguity has been corrected in the Tween
the proposal of 13 December 2005. may, where the appellant did specify exactly
the text of the legislation, whose cancellation requests).
8. in its observations on the draft Senate first summarize its contents and
also pointed out the lack of clarity regarding the remedies (appeal to
for an explanation see above) and then he devoted himself to discuss the legal outline
the draft land law in the bodies of the Chamber. In this context,
said that while the guarantee Committee has recommended the Senate approve the Bill
in the text of a transferred the Chamber of Deputies, the Committee for territorial development,
public administration and the environment and Constitutional Committee recommended the
The Senate to return the Bill to the Chamber of Deputies with 10 MH
proposals. Subsequently, at the hearing of the Senate the day 3. July 2013 has been adopted
the draft text of a transferred in the Chamber of Deputies, and instead was
The Senate adopted the 10 amendments, and with it, the law was returned
The Chamber of Deputies. As far as its own section 17(2). 4 land
the law, the subject of discussion was not. The Senate concluded that progressed in the
the adoption of the land law, within the limits of the Constitution laid down the competence and
constitutionally prescribed way.
9. the Government of the United States in its observations of 17 September. may also
pointed out the incongruity of the remedies. Further points out the absence of a definition of
the unconstitutionality of the contested provisions. With regard to the mentioned referred to the
the existing case law on the question of the suspension of the scope of application
[e.g. the decision of the Constitutional Court in case SP. zn. PL. ÚS 16/94 of the day
21.7. 1994 (with 14/2 SbNU 227), SP. zn. PL. ÚS 8/95 of 13 July. 12. the 1995
(N 83/4 SbNU 279; 29/1996), SP. zn. PL. ÚS 5/01 of 16 May. 10.2001
(N 149/24 SbNU 79; 410/2001 Sb.) or SP. zn. PL. ÚS 7/03 of 18 May. 8.
2004 (N 113/34 SbNU 165; 512/2004)]. It also pointed to the existence of
the burden of claims, which, in its opinion the applicant delivered, and
Therefore, such a proposal is to be considered as ineligible on merits
discussion (cf. section 34, paragraph 1, of Act No. 182/1993 Coll., on the constitutional
of the Court). Further notes that the applicant fully resigned his
the obligation to find the interpretation of the contested provisions. In this
the context of the Constitutional Court has repeatedly judikuje, he is not given the reason for the
the cancellation provisions of the Act, if the possible constitutional interpretation [to the fact
for example. find SP. zn. PL. ÚS 48/95 of 26 March. 3.1996 (N 21/5 SbNU 171;
121/1996 Coll.), finding SP. zn. PL. ÚS 20/05 of 28 June. 2.2006 (N 47/40
SbNU 389; 252/2006 Coll.), finding SP. zn. PL. ÚS 36/01 of 25 June. 6.2002
(N 80/26 SbNU 317; 403/2002 Sb.) or resolution SP. zn. PL. ÚS 23/08 from
on 14 June 2005. 8.2008, SP. zn. PL. ÚS 34/11 of 3 June. 4.2012 or SP. zn. PL.
TC 30/09 on 2 December. 4.2013 (in nepublikována, available at SbNU
http://nalus.usoud.cz)]. The Government expresses the belief that, in the present
the case is just the kind of constitutional interpretation available and cited
the collision is using edits to jump as enshrined in the civil
code. In this context, expresses the view that the legal act, on the
to write the title to the land in
favour of third parties, which subsequently were not parties to the proceedings in which
It was decided on the restitution claim of the appellants in the present proceedings
at the regional court in Prague, would be null and void
under section 588 Act No. 89/2012 Coll., the civil code. For the case is
in the section of the civil code 986 included treatment, according to which it is possible to
the applicants (restituentům) to claim their right of ownership in respect of persons
registered in the land registry, and also for a period pending a decision on
appropriate action to leave mark in the real estate note
controversial. The Government of the United States has concluded with the observations by
the contested legislation will not be prejudiced or the right to judicial protection
According to the article. 36 of the Charter of fundamental rights and freedoms ("the Charter"), or
the right to protection of property within the meaning of article 87(1). 11 of the Charter.
10. The Ombudsman said that within the meaning of § 69 para. 3 of the law on
The Constitutional Court does not enter into the proceedings the intervener.
11. the Constitutional Court pursuant to § 48 para. 2 Act No. 182/1993 Coll.
The Constitutional Court also has taken the Czech Office of land measurements and observations
land registry. In its observations the first dedicated to the reflection that
led the legislature to insert section 17(2). 4 in the land law. Then
Describes a situation that in the event of collision law on soil and land
the act occurs. In this context, expresses the view that the source of the problem
may be the exclusion of the person who is registered as the owner in the land registry
real estate, from participation in the proceedings, which fundamentally affects her. In this
the case offers a conflict with the article. 38 para. 2 the first sentence of the Charter. Person,
the property transferred allegedly in violation of § 5 para. 3
Act No. 229/1991 Coll., on the adjustment of the ownership of land and other
agricultural property as amended by Act No. 93/1992 Coll., does not have the ability to
the stuff at all to express it, even if the original administrative or later
the Court decision significantly affects. Court proceedings will take place, therefore,
without the participation of persons registered in the cadastre, with the consequence that the result
for it is not with respect to Section 159a para. 1. row binding. Against such
a person cannot follow the land registry office, that its not yet registered
rights on the basis of a final judgment from the land registry and deleted the
enrolled someone else in her place. This view is of the highest
Court eg. in the judgment of 20 November 2003. may 2014, SP. zn. 28 333/2014 of Cdo
which mj. given that "the decision of the authority to land or release
real estate person supposedly entitled to restitution (or decision
the Court is the replacement, issued in proceedings under part five of the row whose
the participants are the applicant and those who were parties to the proceedings before the administrative
authority; § paragraph 250a. 1. s. l.) cannot have an impact on the existence of
title of the person who was not a participant in the restitution procedure ".
This is protected and respected the rights of a person who could not be with
regard to § 9 para. 8 of the law on the soil of a participant in the administrative, respectively.
the court proceedings.
12. Czech Office zeměměřický and land registry, however, notes that the thing has
According to his opinion, constitutionally Conformal solutions, which lies in the fact that
the authorized person shall concurrently with restitution claim lawsuit to determine the
against the third party registered in the land register as the owner, in which it will propose to the
the Court determined that the owner is required, the person within the meaning of the law of the land,
Since the conversion of the obliged entities to a third person is invalid. For this
a third person has the ability to defend their rights in court. If the Court
meet the declaratory action, and at the same time as the proceedings in the restitution
things will not prevent the contested part of section 17 para. 4 land registry law
permission of the ownership rights for the beneficiaries. In the case that
should the person concerned has not yet submitted any declaratory, not prevent her
it filed the now on the basis of § 985 of the civil code. At the same time should
ask the land registry office for the registration of controversial notes in accordance with § 24 para. 1
the first sentence of the land law. Czech Office and land registry zeměměřický
also notes that the contested part of the provisions is to prevent the cancellation rights
all persons who, in breach of article 88(3). 38 para. 2 of the Charter were not associated to the
proceedings in which a decision on their rights (e.g. in a situation where
is that question assessed the validity of the Treaty). Finally, points out
the fact that before the effective date of the existing edits the resulting situation
address the implementation of the so-called. duplicate entries, which was the State side.
13. the Constitutional Court received, without asking, it's also the paper law
the appellants ' representative (authorised persons), in which pléduje for cancellation
the relevant part of section 17 para. 4 land registry law. Argues that legitimate
people are hard hit by the impact of the provision and
discriminated against in the exercise of their restitution claims. Also
recalls that the restitution procedure is conducted for more than 25 years and
It is not yet completed.
14. the observations of the parties and the intervener the Constitutional Court
to the applicant and to any replica, the claimant, however, this
option within the prescribed period.
IV.
The abandonment of an oral hearing
15. The Constitutional Court found that the oral proceedings could not bring significant
offset to clarify things than what follows from the written acts of the participants
control. Having regard to section 44 of the Act on the Constitutional Court is not to be
to inquire about the parties on their stance on this issue, therefore, was
possible to decide the matter without holding an oral hearing.
In the.
Assessment of the locus standi to file an application
16. According to the article. 95 para. 2 of the Constitution, if the Court concluded that the law,
to be used in solving the case, is in contradiction with the constitutional order,
refer the matter to the Constitutional Court. This permission is also given in §
64 para. 3 of the law on the Constitutional Court, according to which the Court may by the constitutional
the Court proposal to repeal the law or its individual provisions.
Condition of the substance of the discussion of such a proposal is the fulfillment of the diction of the article.
95 para. 2 of the Constitution, in the sense that it must be about the law, which is to be
used when solving things, IE. Act or its provisions, which is
proposed to cancel, to be directly applied by the applicant when
the solution of a particular dispute.
17. the Constitutional Court found this condition, as the regional court
management, which is based on his proposal, under discussion by the fifth section of the.
row thing, about which the land registry office on the basis of § 17 para. 4 land
the law ruled that rejected the permit deposit of property rights in the
benefit claimants (restituentů).
Vi.
The constitutional conformity of the legislative process the adoption of the contested provisions
18. The Constitutional Court is in accordance with § 68 para. 2 Act No. 182/1993 Coll.
The Constitutional Court, as amended by Act No. 48/2002 Coll., in proceedings for review of
the standards shall assess whether the contested act (provisions of the)
was adopted and issued within the limits of the Constitution laid down the competence and constitutionally
in the prescribed manner.
19. given that the applicant did not defect to the legislative
the process exceeded the Constitution laid down the competence or the legislature, not with
regard to the principles of procedural economy to examine this question more closely and
It is sufficient, in addition to taking into account the observations submitted by the
the Chamber of Deputies and the Senate, formal verification during the legislative process of the
publicly available information sources on http://www.psp.cz.
20. From the observations of the parties, as well as from the Council of prints was
found that the Act 256/2013 Coll., on the real estate cadastre (land registry
law), was in the Chamber of Deputies discussed during the 6th legislature
as the house printing 778 (Government proposal) in the first reading on 15 December. February 2013
and was commanded by to discuss the agricultural Committee and constitutionally the legal
of the Committee. The agricultural Committee to discuss Bill on 9 April. April 2013 and in
its resolution (print 778/4) recommended the proposal be approved by the Chamber of Deputies
in the text of the adopted amendments. Constitutionally the legal Committee draft
the law discussed on 9 April. may 2013 and, in its resolution (print 778/6)
recommended by the Chamber of Deputies approve the proposal as amended by the amendments adopted, and
Add-ins. One of the changes was just the Tween section 17 of the law on land registry
a new paragraph 4, part of which is the subject of the application for revocation. Second reading
the draft law was held on 14 June 2004. may 2013 and amendments have been
treated as a printing 778/7. The third reading of the Bill took place on 17.
may 2013. The Bill was approved by the Chamber of Deputies, as amended by
adopted amendments, including additions to section 17 of the land
the law on the new paragraph 4.
21. The Senate returned the Bill to the Chamber of Deputies with the EP amendments,
proposals. None of them involved the contested provisions. The Chamber of Deputies
the vote on 8 June 1998. August 2013, adopted a law in the version approved by the Senate.
After signing the respective constitutional actors was promulgated 23. August
2013 in the statute book.
22. the Constitutional Court, the law and its subsequent amendments were adopted
constitutionally prescribed procedure, were signed by the respective constitutional
agents and duly promulgated.
VII.
Custom design assessment
23. the applicant seeks the annulment of the proposal under section 17(2). 4
the land law, since it sees a conflict with mandatory § 5 para.
3 of Act No. 229/1991 Coll., on the adjustment of the ownership of land and other
agricultural property as amended by Act No. 93/1992 Coll., as the contested
part of the provisions of the Land Registry Act excludes populate Central
provisions of the law of the land. In doing so, the claimant does not object in principle, or
the contradiction of the contested provisions with constitutional requirements, far more for his
resolve the land law provisions, colliding with the law on
soil.
24. As a preliminary point it must be the claimant somewhat, although it suggests
repeal of the law, but completely pulls back the constitutional
argument, so in addition to the already mentioned by a mismatch between the cadastral
the law and the law on soil proposal does not contain essentially no claim of
which could be traced back to the possible unconstitutionality of the challenged section 17
paragraph. 4 land registry law. It is not entirely clear, the conflict with the
which specific constitutional kautelami the appellant sees. From a design
also it does not in any way trying to find a solution given constitutionally Conformal
issue.
25. The claimant is, however, possible to give the economy in that direction to solve
of the problem is not quite simple. On the one hand this is because
certainly cannot be disputed consequences of breach of the obligation required of the person
to dispose of real estate property with due diligence and the violation of the prohibition
the transfer of ownership of these things under the sanctions, the absolute
invalidity of legal proceedings (cf. § 5, paragraph 3, of Act No. 229/1991 Coll.
on the adjustment of the ownership of land and other agricultural property in
amended by Act No. 93/1992 Coll.). On the other hand, however, is the transmission system
title of the obliged entities to in violation of § 5 para. 3 of the law
No. 229/1991 Coll., on the adjustment of the ownership of land and other
agricultural property as amended by Act No. 93/1992 Coll., registered
the owners, which is based on the acquisition, whether repairs
or having; proprietary rights of purchasers was also entered into the
the land register on the basis of supporting documents or documents with which it is associated
protection of good faith of the parties. It is therefore necessary to find a solution that both of these
in opposing acting principles of vibrations.
26. The Constitutional Court in its case law has repeatedly interpreted the [cf. the finding of
28 June 1999. January 2004, SP. zn. PL. ÚS 41/02 (N 10/32 SbNU 61; 98/2004),
the discovery of 29 April. September 2010, SP. zn. PL. ÚS 16/08 (N 203/58 SbNU 801;
310/2010 Coll.), the discovery of 16 June. October 2007, SP. zn. PL. ÚS 78/06 (N
162/47 SbNU 145; 307/2007 Coll.), the discovery of 15 July. January 2013, SP. zn. PL.
TC 15/12 (N 13/68 SbNU 191; 82/2013), the discovery of 12 October. July
2010 SP. zn. IV. TC 3102/08 (N 142/58 SbNU 183) or the discovery of 28 June.
January 2014, SP. zn. PL. ÚS 49/10 (N 10/72 SbNU 111; 44/2014)], the
If the possibility of constitutionally consistent interpretation of the contested
provisions, this has priority over the square of the contested provisions. From
many conceivable interpretations of the law, it is therefore necessary in any case to use
only such an interpretation that respects the constitutional principles (if such a
the interpretation of the possible), and to repeal provisions of the Act for unconstitutionality
proceed only if the provision in question cannot be used without
was the constitutionality of the violated the principle of minimizing the interference (the powers of the
other public authorities). The conclusions, however, can be applied not only to the
on the interpretation of a particular provision is constitutionally, but in the wider
the context can be used to search the entire issue constitutionally compliant solution. The constitutional
the Court, therefore, assess, whether the contested legislation, lay out the constitutionally
Conformal manner so as to meet the requirements of a guaranteed
By the Charter. He came to the conclusion that there is no need to access the Cancel
the contested provisions, since it can be found constitutionally Conformal solutions
the above issues.
27. the provisions of section 17 para. Land Registry Act was originally 4
the Government's proposal. It was included in the draft on the basis of
the amendment of constitutional legal Committee of the Chamber of Deputies
Parliament of the Czech Republic. While the intent was to restrict the range of
review of the judicial decision of the cadastral authority as opposed to a review of other
documents to the minimum possible level. According to § 17 para. 4 land
law, namely the land registry office is examining only whether a judicial decision
complies with the conditions of the Charter for the registration in the land register [see § 17 paragraph 2
(a). and the Land Registry Act)], and whether that decision is binding for
the person for whose benefit the right is not yet registered in the cadastre. The contested
the portion of section 17 para. 4 land registry Act was adopted with a view to
prevent deletion of the rights of all persons who did not participate in the proceedings from which the
the decision, which came out, however, has consequences in the legal position of these
stakeholders. This edit is so obvious, since it is
in this way, to avoid someone was deprived of his property without
could any act against it. From this point of view the contested
the provisions of the law constitutionally guaranteed fills enshrined in article. 38 para. 2
Of the Charter.
28. In the case which was the basis for an application for revocation under section 17(2).
4 land registry law, there is no doubt that the parties to the proceedings before the
the regional court (that is, the applicant in the proceedings before the regional court, respectively.
the plaintiffs in the authorisation procedure for deposit before the land Office)
the legal decision of the land Office of the contraction of the owners in the restitution
issued by the real estate. The acquisition of ownership of things by decision of the authority
a public authority (or by a public authority) is one of the law
set (and traditional) reasons of the acquisition of property rights. As follows
the acquisition of ownership of the edited section 132 paragraph. 1 of the law No. 40/1964 Coll.
the civil code, as amended by Act No. 509/1991 Coll., and identically to
It also modifies the currently effective § 1114 of the civil code. The acquisition of the
ownership of the stuff is effective, if it is not provided for in the decision
otherwise, the legal decision (cf. section 132 (2) of the "old" of the civil
code and section 1114 "new" of the Civil Code). In the present case is
However, the obvious, that the parties to these proceedings are in a difficult situation,
When on one side first and then the administrative body a court decision
determine their right of ownership, on the other hand the status of the registration in the land register
This fact does not correspond to real estate, or on the basis of the interpretation of the
carried out by the cadastral authority it in accordance with the facts or give
You cannot. Authorised persons so seemingly have only formal
the property, since they are legally recognized as the owners of the
immovable property, but these cannot currently dispose of as
they are not (and cannot be) or as owners in the land registry
written. The rapporteur believes that this conflict can be resolved only by
cancellation of part of section 17 para. 4 land registry law.
29. In the opinion of the Constitutional Court, however, there is a constitutionally compliant solution
of that conflict, though it may be for the participants of the restitution procedure
a fairly lengthy and nekomfortní. You need to start from the fact that if the
deposit of title to real estate, which were
released in the restitution procedure of persons for the benefit of persons who
However, the parties to this proceeding, restitution shall be deemed that the
the conversion to these persons should be considered as null and void the legal
negotiations within the meaning of § 588 of the civil code, as it has been violated
mandatory provisions of § 5 para. 3 of Act No. 229/1991 Coll., on the adjustment of
the ownership of land and other agricultural property as amended by
Act No. 93/1992 Coll., whose content is a. the prohibition on disposal of assets
restitucemi concerned. The Constitutional Court has repeatedly held, [cf.
for example. find of the day 11. December 1997, SP. zn. IV. TC 195/97 (N 161/9
SbNU 389)], that due to the meaning of the law of the land, which is the Atonement
at least some of the property-related injustices, it is necessary to restitution claims
be regarded as primary, and claims even at the cost of undermining the already carried out
property-related offsets. Any other interpretation would amount to § 5 para. 3
This Act, worthless.
30. In the present case, therefore, offers the procedure suggested in the
their observations, the participants in the proceeding, or the intervener.
Real estate register as a public list is built on the principle of
the publicity material, based on which protection is granted to the person,
that legal proceedings were held in trust in the facts confirmed
information from the public register [to closer such as finding of the Constitutional Court of the
on 1 May 2004. August 2006, SP. zn. II. TC 349/03 (N 148/42 SbNU 199) or find
of 11 December 1997. May 2011 SP. zn. II. TC 165/11 (N 88/61 SbNU 359)]. If
However, the situation, as now designed things when there is a mismatch
between the enlisted and the actual legal situation, knows the legislation resources
to remedy the situation. These funds are regulated in § 985 and 986 of the code of
code. The principle of the protection of the person to whom the actual legal status of testify
(contradictory with the status of registered in the public list), thus getting into
the collision with the material principle of publicity, according to which the person
which had implemented a legal act with confidence in the facts confirmed
information from the public record must be in material law
provided protection. In this context, it is possible to repeatedly point out
top judgment of the Constitutional Court SP. zn. II. TC 165/11, in which the
told that having regard to the fact that the principle of the protection of good faith new
the transferee acts against the principle of the protection of ownership of the original
the owner, it is necessary to find the practical concordance between the two contrasting
operating principles so as to keep the maximum out of each, and
If this is not possible, that result was consistent with the general idea
Justice.
31. Under section 985 of the civil code, if the status is not registered in the
the public list in accordance with the actual situation, the person
the property right of prejudice, seek the deletion of this non-compliance,
as well as writing that such right is exercised (note its controversial
write). The provisions of § civil code 986 then modifies the specific
case, where a person claims that it is in their rights without prejudice to the registration
in a public list, which was carried out in favor of another,
on the one hand without a legal reason. To claim under § § 985, respectively.
986 of the civil code is then bound to that provided for in § 24
the land law, which can require that the person who
public list of leads, enrolled in the cadastre of the controversial comment, and if
If the status is not registered in the land registry in accordance with the actual situation and
the removal of the non-compliance is seeking the person whose right is without prejudice to,
If he proves that the right is exercised by a court or if someone
claims that it is in its law without prejudice to the entry made in the land register without
the rule of reason in favor of another. If there were doubts as to the
the accuracy of the registration is deleted by an affirmative statement of a person not yet in
the land registered and the person seeking for registration [section 66 of Decree No. 357/2013.
Coll. on the real estate cadastre (land registry Ordinance)], writes the cadastral
the Office note controversial writing, which acts against the registration carried out
on the basis of the contested legal action and the subsequent registration
also on the basis of the notification of the Court, filed the lawsuit or on the basis of
supported by the applicant's proposal, if the plaintiff filed suit for a declaration that the
legal act, on the basis of the right to be registered in the land register, is
invalid, apparent or canceled.
32. If that legislation applying to it, from which emerged
the current proposal by the regional court in Prague, there is a procedure in which
the question of land ownership issued by the authorized person (i.e. apply.
the applicant or applicants in proceedings before cadastral authority) for
the competent ordinary court action to determine the ownership, which
as a result, may lead to the desired state, hence the deletion of the right of ownership
not yet registered people, having acquired the right of ownership in violation of § 5 para.
3 of Act No. 229/1991 Coll., on the adjustment of the ownership of land and other
agricultural property as amended by Act No. 93/1992 Coll., in favour of the rights of
their authorized persons.
33. it is clear from the foregoing that the contested application itself under section 17
paragraph. 4 land law allowed for the authorised person of the negative
no constitutional consequences. Their ownership rights are not deprived,
merely extending to them the path to achieve optimum legal status.
In contrast, if there would be by the Constitutional Court for annulment of the contested
the provisions would be put at risk the rights of those persons who have not been associated
proceedings, from which sprang the decision which is the basis for entry in the
the real estate register. From this point of view has a section 17 para. 4 land
a wider reach than Act § 5 para. 3 of Act No. 229/1991 Coll., on the adjustment of
the ownership of land and other agricultural property as amended by
Act No. 93/1992 Coll.
34. Based on the above reasons, the Constitutional Court came to the conclusion that
they are not grounds for annulment of the contested section 17(2). 4 land
the law in words "... Furthermore, whether that decision is binding for
the person for whose benefit the right is in the yet to be written. "
the proposal pursuant to section 70 para. 2 Act No. 182/1993 Coll., on the Constitutional Court,
It has refused.
The President of the Constitutional Court:
JUDr. Rychetský in r.
