On The Proposal To Repeal Decree No. 484/2000 Coll.

Original Language Title: ve věci návrhu na zrušení vyhlášky č. 484/2000 Sb.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=79895&nr=116~2F2013~20Sb.&ft=txt

116/2013 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court decided under ref. Nos. Pl. US 25/12 of 17 April 2013
Plenum composed of its Chairman Pavel Rychetsky and judges Stanislav Balik,
Vlasta Formánková, Vojen Güttler, Pavel Holländer, Vladimir crust
Dagmar Lastovecká, Musil (Judge-Rapporteur ), George Nykodým,
Miloslav Vyborny and Michaela Židlická of the group of senators, represented
Pavel Uhl, lawyer, headquartered Kořenského 15, 150 00 Praha 5
, filed under Article 87, paragraph. 1 point. b) of the Constitution
Czech Republic to repeal Decree of the Ministry of Justice dated 18 December 2000
no. 484/2000 Coll., stipulating a flat rate
amount of remuneration for representation by a lawyer or notary participant in deciding | || on costs in civil proceedings and amending the Decree of the Ministry of justice
no. 177/1996 Coll., on lawyers' fees and reimbursement
lawyers for providing legal services (lawyers fare), as amended
amended, as amended decrees, possibly by
petition to annul § 3 para. 1 and § 12 of Decree no. 484/2000 Coll., as amended
for participation 1. Ministry of justice, as | || party and the second Drdová Dory, represented by Paul Uhl,
lawyer, registered at Prague 5, Kořenského 15, intervening
management

Follows:

Ministry of Justice dated 18 th December 2000.
484/2000 Coll., Stipulating a flat rate of remuneration for
representation of a party by a lawyer or notary public when deciding on the reimbursement of costs
in civil court management and amending Decree
Ministry of justice no. 177/1996 Coll., on lawyers' fees and reimbursement
lawyers for providing legal services (lawyers fare) at
amended, as amended decrees repealing
day this Judgment in the Official Gazette.

Reason:

I.
Recap draft


First The Constitutional Court received a petition from a group of eleven senators (hereinafter
"petitioner") pursuant to Article 87 paragraph. 1 point. b)
Constitution of the Czech Republic (hereinafter "Constitution") and pursuant to § 64 para. 1 point. b) Law no.
182/1993 Coll., on the Constitutional Court to annul the decree of the Ministry of Justice
dated December 18, 2000 no. 484/2000 Coll., laying down
flat rate amount of remuneration for representing a party
lawyer or notary when deciding on costs in civil court
management and amending Decree of the Ministry of justice no. 177/1996
Coll. on lawyers' fees and compensation of lawyers for providing legal || | services (lawyers fare), as amended (hereinafter
"Decree no. 484/2000 Coll.," or "predicative Decree").

Second An alternative is proposed to abolish the verdict least § 3 para. 1 and §
12 of Decree no. 484/2000 Coll.

Third In the case, the present Constitutional Court as file. Nos. Pl. US 18/13, was
Resolution of 17. 4. 2013 lis pendens rejected
accessorial petition of the petitioner Dory Drdová, coupled with its constitutional
complaint dated 30 sp 1, 2013. Ref. III. US 420/13, seeking the
according to § 64 para. 1 point. e) in conjunction with § 74 of the Act
on the Constitutional Court, as amended (hereinafter the "Act on the Constitutional Court
") repealing the provisions in § 3 para. 1 and § 12 of Decree no. || | 484/2000 Coll. The complainant Dora Drdová has under § 35 paragraph
. 2 of Act no. 182/1993 Coll. in proceedings under file. Nos. Pl. US
25/12 intervener status.

II.


Petitioner's arguments
Fourth The petitioner seeks the annulment of the contested ordinance for the following reasons:

A) The contested decree allows the grant to pay the costs of legal representation
(verb) in such amount charged on the losing party to the dispute
unfairly and disproportionately with respect to the subject matter.
It is thus violated the principle of non sanctions without law.

B) predicative contested ordinance determining the flat rate amount of remuneration for
lawyer representing a party does not reflect a formal process
variant of the trial, ignores the fact that formally simplified management
represent actual reduction of the intensity of litigation;
degree of generalization and rewards beyond the acceptable level of injustice.
It violated the principle of proportionality.


C) predicative contested ordinance does not reflect the actual
professional and time-consuming litigation, and the rate of flat-rate tariffs and rewards
exceeds acceptable level of injustice with regard to possible variants
necessity of litigation. It violated the principle of proportionality.

D) The level of generalization creates a situation where the management of a particular dispute
(typically enforcing smaller claims) already competitive from the very reason
returns predicate, which is in the market environment caused by larger amounts
such proceedings without it would be a material reason in the light of subsidiary
judicial nature of the dispute. This effect then disproportionately affect
judiciary as a whole and creates a disproportionate impact on the addressees of legal norms
. Contested norm then failing to test their own rationality.

E) flat-rate fixed by decree is based on false assumptions
(conjecture and fiction), thereby denying well-behaved presumption in law.

F) predicative contested decree creates an accessory účastenskou
inequality in relation to other types of proceedings and types of legal assistance.
Contested norm this disproportion violates the general assumptions
implementation of the right to a fair trial.

G) predicative contested decree in the context of judicial practice is not in a
create an environment of legal certainty.

H) of the contested norm is roughly defies the principles of the rule of law and sound
setting the rules of litigation as they are generally perceived
in other countries with comparable legal cultures.

Fifth The petitioner states that predicative decree creates in lower bands
values ​​conflict situations in which it is granted reimbursement generally
manifestly disproportionate to the nature and content of the dispute. Yet it is generally
dominated by the principle of proportionality.

6th The petitioner points out that everyone has the right to demand that his case be heard by a court
, even if the dispute negligible value.
On the contrary, there is good reason to believe that everyone should be entitled to it,
if the plaintiff seeks to discuss the dispute marginal value to him in case of success
belonged to the reimbursement of actual costs of the leadership dispute
. The content of the right to a fair trial is not absolute settlement of all, what
exerting his leadership the party had to bear. In the latest
law for such consideration is not support, which implies among other things that the
many other cases there is absolutely no entitlement to reimbursement
case of success. As examples they can control criminal, administrative and
before the Constitutional Court.

7th According to the petitioner, in terms of the constitutional order as permitted
confession and denial costs, while if the law in the form of a statute or ordinance
assumes a normal situation, the judicial authority in
deviation from it with such procedure arguments deal.
It is therefore theoretically possible to posit the opposite situation, when the cost
confer principle, but in exceptional situations, when reasoning
admit. On this plane remains, for example, awarding costs
in the proceedings on the constitutional complaint led the Constitutional Court.

8th The legislature therefore has a relatively wide field of considerations for determining the general rules
assuming that he can be derogated stating the reasons.
The very possibility of a departure, however, it does not give the possibility to provide fully
any general rule. If the legislator establishes general rules
not these general rules to be contrary to the general principles of reasonableness and
principle of not imposing penalties without law.

9th According to the petitioner legislation can not make the costs
so advantageous that it was a matter of principle advantageous judge also objects
services whose failure to fulfill the terms of the general equity marginal.
Justice should have a subsidiary character and should come into consideration until
when other tools fail to address violations of rights (agreement
compromise arrangements, efforts to agree on payment in installments). If
contrary, in a certain segment of disputes justice deliberately used as a first tool
resolving the dispute, which is the case for the vast majority of small claims,
this suggests that the game enters inadmissible incentive mechanism
litigation - namely the inadequacy accorded
costs.

10th The specific amount of the cost according to the decree accorded
petitioner considers to be disproportionate in relation to all disputes and bagatelním

Also in relation to disputes in the band over 10.000, - CZK and it roughly to the amount
200.000, - CZK (also referred to as lower debt) because only the amount
200.000, - CZK above, the calculation of costs gets below 20% of principal and enforced
we can talk about his sense of reasonableness.

11th Predicate awarded by the petitioner would not under any circumstances be disproportionate
nature and value of the dispute. This means, among other things, that
awarded costs must not be grossly disproportionate to the desired value
dispute. The granting of disproportionately high costs is dominant
among others, as a penalty, which is a condition that is in a legal state
inadmissible. Prohibition punitive nature of the costs
clear by the petitioner of two independent legal reasons.

12th As a general principle of law, which is not confined to criminal
law, namely the principle that there must be sanctions (punishment) without law;
of contractual relations, then sanctions can be backed agreement that
is not contrary to the law. The amount of the costs imposed by decree predicative
achieves de facto punitive, which is unacceptable. The decree, which is not
law, does not introduce a separate sanction regime that would
vastly outnumbered by the law imposed the civil penalty, which is
penalty interest on arrears. Law - Civil Procedure - does not imply that the predicative
decree could create a regime imposing sanctions.

13th As problematic by the petitioner should be considered and that
existing case law tends to the fact that the claim is eligible (


actio nata) any overdue receivables regardless of whether the plaintiff
entity tried to negotiate with the debtor or on any other dispute. According to § 2
Act no. 99/1963 Coll., Civil Procedure Code, as amended
amended (hereinafter the "CPC.") Courts are basically responsible for
dispute resolution, the dispute is meant feud that has a factual and factual
content and not the mere existence of the delay. However, the courts decide disputes
regardless of whether it fulfilled the requirement of subsidiarity and
not work not so often as a subject critical disputes, but as an entity serving
claims. This role for the courts themselves
formalization process procedures largely assumed, the terms
constitutional order not induce in predicative decision
action unnecessary, disproportionate and punitive consequences.

14th Given the above therefore petitioner considers a significant part
normative impact of decree unconstitutional because it creates general
disproportionate effect that burdens the subjects in a manner that does not match
purpose of civil procedure and makes it virtually
excessive penalty. That in itself is inconsistent with the principle of proportionality
, which is a general requirement of law, according to Article 1
Constitution banning sanctions without law, and is also contrary to the purpose
civil proceedings, as defined in § 2 of the CPC.

15th Since the adoption of the contested ordinance predicative, the appellant decided by
transformed the structure of matter and method of processing judicial
agenda. In case of disputes on financial performance, meanwhile, developed a simplified method
proposals (electronic payment order)
which allows automatic batch processing of many proposals that
system of automatic processing of claims inserted as variables in data sets
individual proposals after they are fitted with electronic
mark (or signature), submitted electronically courts.

16th At the level of execution of such a proposal judiciary prefers release
(electronic) payment order. If the release fails, it tries
court process usually reach a decision without a hearing, while
seeks judgment for recognition. Only if this is not possible, the court
usually orders a hearing at which it is possible to issue among other things.
Judgment by default. In order to effectively prevent the defendant must be qualified
defend, and that filing a counter, then an expression of the lawsuit where the claim
not recognize, then it has to give, it does not agree to waive
negotiations. Furthermore must argue with the assertion and argument of the plaintiff.
If it is not able to perform these process steps is issued against him
executory title, while the issue of which court did not decide the facts of the dispute and did not address
rule of law.

17th In many cases the defendant to pay the claim during the proceedings and the court

Thereafter terminate the proceedings, in which case the court also granted
applicants costs.

18th In connection with the increasing complexity of the legal and economic
relationships difficult traceability of all debts and declining
cooperation lenders with borrowers, it is normal that formally defined dispute
material outside the parameters of the dispute and are only farmed justice
souvenir service, which is actually charged
form of the costs.

19th In the event that there is a hearing, faces prohravší party rule
decision, which, according to the petitioner, "often suffers somewhat
simplified conception of justice" because in small claims court
danger of having to defend its position
in appeal or other review proceedings.

20th Viewed comprehensively adapted to justice, among others.
Thanks to the transformation of procedural law and the introduction of many new procedural tools to
recovery, while when compared with the time when it was adopted
predicative ordinance in its first version nowadays it is handled
vast majority of disputes without a hearing and in a manner that does not
real proof or solution of the legal dispute. If predicative
decree did not adjust to this reality and assesses the predicate identically
case edition (electronic) payment order as the case
when concerning a hearing and take evidence, such a situation is contrary
with the principle of proportionality and degree of generalization cost reaches
inadmissible simplification.

21st Said ways to end the proceedings by the petitioner
represent a completely different level of sophistication legal service and the fact that it ignores
predicative ordinance creates a uniformity that
creates de facto barriers to access to justice.
Attractiveness of uncontested claims, which is easy to enforce and collectively leads to the fact that
legal services geared precisely to these claims and disputes neglect, which had previously
seems really questionable. The market basically forcing
advocacy to transform the collection service without
positively evaluated the service entirely legal.

22nd The proportionality of remuneration in relation to the formal dispute
difficulty by the petitioner creates a degree of injustice that
is not rationally justifiable. The State basically favors such
consumer behavior law which allows them to use the state as
collection and enforcement agency. Ultimately, this then leads to decay
law and unacceptable reduction on debit relationship.

23rd In particular form violates predicative decree also
principle of proportionality, which is a requirement of democratic rule of law and the rule of law
within the meaning of Article 1 of the Constitution.

24th The petitioner points out that although the individual procedures differ
factual and legal complexity of the dispute, so these differences decree essentially
no different, as, for example, does not distinguish the number of tasks that must be performed
lawyer litigation, whether it the action or defense.
In essence, it is disadvantaged in finding a law that seeks
justice through dialogue and legal arguments and, conversely, is favored
such legal activity that is factually and legally inexpensive. In practice
are so litigious municipalities preferred disputes with the minimum number of operations and
simpler arguments, which, however, often ignore the need for legal
care disputes legally complicated, leading to a general underestimation
legal arguments and focus on filing formalities, which are indeed
important, but not crucial.

25th Under very tight expression that impact predicative decree
petitioner considers unifying opinion of the Supreme Court of
15th October 2008 sp. Ref. Cpjn 201/2008, under which "in determining the remuneration for
representation by a lawyer or notary is not the reason for the procedure according
provisions of special legislation on extra-contractual circumstances
that the lawyer did in the form of automated management tasks outputs
a filing that the dispute is led by a small amount, that this case is not legally
complicated or demanding that management was brief, it is a
similar claim or claims that may be applied once or action | || other type characteristics of things, but only specific (individual)

Circumstances of the case. "In this interpretation, the petitioner
this level of generalization that is the ordinance wholly owns and runs through
its normative logic, completely dismissed as inadmissible.

26th to be specific and most problematic form of abstraction from the formal demands
dispute petitioner considers § 12 of the contested
predicative decree conferring half predicate (compared
nalézacímu management) for managing the execution. This rule considers
completely absurd: if you can when it comes to inventors dispute have
doubt that the intensity of the dispute is not dependent on the height of the disputed amount and
if enforcement proceedings, that conclusion is completely sure.
in execution management into a unified design, which does not allow too creative
deposit, reflects the variables that are contained in trial title.
Law Enforcement difficulty filing the proposal is zero; such a procedure would be able to reduce
to fill preprinted forms.
the only question that beneficiaries must deal with is the choice of executor, which
petitioner does not seem like a legal issue, despite the fact that the choice
bailiff, who serves as de facto court, one of the parties
dispute appears to be on the border of constitutionality.

27th If formálněprocesní reduction leads to a reduction in disputes collection
relations and reduction of material according to the petitioner reduces legal assistance
a mere administration of the dispute without the emphasis on substantive way his leadership.
In this regard, the decree expressly contrary to the law, and that a civil
order, according to which you wish to grant costs required for efficient
enforcement or protection of rights (§ 142 paragraph. 1 of the Civil Procedure.).
In light of this statutory rule is not contested ordinance predicative succeed.
It disagrees their design any consideration of expediency
legal representation, which conversely law prescribes. The reason
illegality and builds on other grounds, which lie
contrary to the constitutional order and the law.

28th The petitioner believes that the generalization is not itself inconsistent with the constitutional order
(and the law). Conversely, if it is reasonably set, so it has the effect of rationalization
processes that regulate. Ideally
may lead to minimizing the costs of keeping simple disputes.

29th Predicative original motive adoption decree by the petitioner
fact that many proceedings unnecessarily dragged out
reasons unhelpful chaining operations, the number determined claim amounts
costs. Introducing a flat rate for the whole procedure was to remove this
pressure stretching. The result of this effort, however, the petitioner seems
controversial because of the anticipated targets essentially been achieved.
Eventually the purpose of accelerating proceedings
achieved through concentration control and other procedural tools and constant pressure on the judiciary and
her speed. The basic motive legislative adoption
application thus according to the petitioner have already dropped out.

30th In general, the appellant submits that, should the generalization
set so that the actors economically advantageous behavior which is
expedient in terms of efficiency of justice (including the material aspect
efficiency - thus maintaining and enhancing the equity) and
generalization can fulfill its purpose and in the long run reduce the overall
financial demands of litigation. It is, however, the adoption of the contested ordinance
happened because generalization contains elements that make up a higher percentage
costs for claims below. Such an element
inevitably leads to crumbling debt. Should the author of the decree intended to lighten
justice, he would have actors lawsuits motivate
merging of smaller claims that the band lower receivables
been no reward or purely operating (expense allowance), while
only merge and achieve a certain amount of disagreement should provide for an award of costs
.

31st The petitioner believes that there is scope for legislation that would
conformist in terms of both the law and constitutional terms
order. It refers to the foreign arrangements, which provide examples of successfully
set generalization. In general, therefore, the petitioner considers
regulation of similar phenomena through generalization admissible
while in the form in which it appears in the contested norm
as inadmissible on the above considerations divorced.


32nd Generalization, which creates a presumption allocated costs for
legal representation, regardless of the complexity of the dispute, led by
petitioner to the fact that they are in great served just suggestions
return debts that are small and whose submission involves minimum
costs. If this disproportion in the enforcement of long-acting, so
market environment that strives to gain these conditions
adapts and creates conditions for the emergence of such claims, especially
if the proceeds of such enforcement significantly disproportionate principal.

33rd On the market there are quite a lot of offers different services that
straddle the boundary between legal and illegal (lichevní) lending activities.
Their parameters are now set not with the side that has
be damaged, has been burdened by high interest rates, but on the contrary
are set so as to be burdened by the high number of minor penalties, which in terms
substantive law gives the impression of reasonableness and stands up to the eventual
assessment bodies involved in criminal proceedings in terms of usury. When
enforcement of these sanctions is partial, then each loaded separately
accorded costs. The usual phenomenon is also cutting debts, which
after they are divided, they are forwarded to the various entities, and
can therefore be recovered separately with the multiplication of the costs
management.

34th As particularly alarming petitioner considers enforcement practice surcharges
fare in public transport, which are set by law. Their top
amount is set by law, so that surcharge to cover the fare and
reasonable costs of recovery. In possibly judicial recovery then goes on
Although legally unidentifiable but economically effective duplication
enforcement of the same. Likewise, it seems questionable if receivables
enforced by public bodies (municipalities, districts, regions) that
for that purpose hire lawyers. The petitioner recalls that
contentiousness of this practice also pointed to the Constitutional Court eg. In its judgment. zn.
II. US 2396/09 dated 13 August 2012 (available on http://nalus.usoud.cz/,
well as other decisions cited therein). Many debts are sold
those creditors first at face value and then the other steps
and private law bodies at a higher value in order to recover
especially the expected costs.

35th The above-described phenomena in society are largely unregulated and
retrieved just set the terms and
pass away until these conditions are not different. Although it seems that the number of small claims
is limited in advance, this is not a market environment
is that they generate a virtually unlimited number.

36th One of the consequences is as follows set rules and overloading the system of civil justice
extremely high number of proposals consisting of
recovery of small claims, the only economic motive is now expected
entitlement to reimbursement of the costs.
Amount of these disputes, which are factual disputes in the material sense, but only
formal expression of accounting events (often with conflicting
substantive basis), then loads the judiciary so that it does not have powers to examine in detail the substantive
assumptions decisions issued
(payment orders). Although many orders would not pass tests
oral hearing and possible protiargumentace if it were a professional, however
phase rozkazního control stand. That in itself
individual cases may constitute a violation of the right to a fair trial
, insofar as the defendant does not exercise remedies
resources, but in terms of the function of the judiciary is a situation
undesirable if it becomes a general phenomenon.

37th The petitioner points out that an ordinary defendant must
spend much more cost possible defense against the procedure under Form
action than incurred by the plaintiff. With regard to routine processing
order sought is the probability of error is excluded.
The result is a situation where if Form actions are starting
position to achieve success in the dispute significantly different and this factual
inequality is also attributed to the inadequacy of the compensation costs that were
for the claimant actually smaller ( the decision of the Constitutional court.
brand. II. ÚS 2396/09).

38th The petitioner emphasizes that the increasing number of foreclosures represents

Czech Republic a serious social problem. In the case of recovered receivables
no exact data available, but can be based on some partial
data held by the Chamber of Executors of the Czech Republic: In the period since
2001 to 2008, ie. For 8 years, was ordered Total 1,933,650
executions; one in 2009 was ordered 760,923 foreclosures in 2010
was ordered 701,900 foreclosures in 2011 was ordered 936,219
execution. Those numbers did talk about the seizures, but those who had preceded
inventors of the procedure. Of these numbers, it is obvious that no matter how
no doubt that the applicants are almost always legally represented and
case, it would be necessary to provide the same legal assistance to defendants
such as the number of cases that would it was necessary to represent
individually, would not be enough lawyers in the Czech Republic (there was a
October 2012 in the Czech Republic 9526). The numbers itself
demonstrate the extent to which the actual provision of legal services in such quantity rather
virtual affairs, which, however, the cost
statements based real commitments and obligations. While it is impossible to
these numbers actually granted legal
individualized service (costs, however, are accorded), it is equally impossible to
those against whom the procedure is invoked, all defend.

39th Although the execution procedure appears to be separate from nalézacího and
it should be emphasized that the predicative loaded with half the costs
nalézacího proceedings (pursuant to § 12 of the contested ordinance predicative). Enforcement
management is also an indicator that the procedure is first conducted inventors. Those
number of executions ordered to be compared with the number of foreclosures that are
completed (stopped or recovered to); in 2009 it was 178,233
foreclosures, in 2010 there were 202,036 foreclosures in 2011 it was 287,984
execution. Compared with the number of executions ordered indicate that
ten years after the creation of a system of bailiffs managed to clear
maximum of 30% of executions. The system recovery, where the main screen
rationality and admissibility should be inventors proceedings, according to the petitioner's opinion
built a system error, which, thanks to the high
economic attractiveness of a particular type of procedure, not only burdens the system
nalézacího management but also threatens the subsequent imbalance in execution
proceedings that due to the ever increasing number of executions running
eventually collapsed and became for creditors and debtors
difficult to predict.

40th Besides the fact that such a way of setting the rules
burdened judiciary as a whole, both in terms nalézacího and enforcement process, it
should be noted also that the system of debt collection, which is extremely motivated
just costs as such, leads to far-reaching consequences
debt in the structure of the population.

41st A certain segment of the population is disproportionately burdened basically
cost debt whose legitimacy is questionable. As a result, this leads to
fact that a certain part of the population, which is rather poor, is burdened
permanent execution. Low-income sections of the population are therefore constantly maintained
income level nezabavitelného lows, thereby
systematically discouraged to make their own accord tried to
from its difficult economic situation to get, because any partial success when
getting a job or a salary increase is followed by only a higher
execution. The economic concept of "debt trap", which represents the expression
point at which the debt for an economic entity (family, individual)
already unsustainable, getting in this way new content only if there
contested ordinance, which Consequently disproportionately
set of procedural rules can leap to multiply the amount of debt in a way that makes it
one of the most important factors in overcoming the boundary point
debt trap.

42nd The petitioner therefore considers the contested ordinance as a norm which
completely misses its original purpose, and thus does not meet the requirement of rationality
standards in light of the purpose envisaged by the legislator.
Original purpose of the decree was to simplify court proceedings, the smooth administration of justice
and setting rules that will without complicated assessments more or less
fair. This purpose, the contested ordinance predicative completely out,
while now works as a tool that greatly motivates them to court

Procedure without previous attempts at reconciliation, which denies subsidiary function
justice, also raises significant burden on the judiciary, thereby weakening its ability
individualization of cases and identification of
substantive gaps in the phase rozkazního management, placing additional burdens | || significant inconsiderable segment of the population, and ultimately
produces a situation where the recovery of debts generally less predictable. Functions
which were expected from the decree, were filled with other instruments
(concentration control, etc.).

43rd All these malfunctions and dysfunctions are according to the petitioner
very serious, and completely contrary to the original purpose of the Decree. Therefore, it should be
predicative decree abolished as a whole.
Petitioner refers not only to the disproportionate rate band bagatelnosti, but also to the fact that
rozkazní management and other methods of dispute settlement of the case are burdened
same rate as other disputes. The degree of simplification and generalization is
passes through the entire decree and reaches such an extent, that is according to the petitioner
needs to cancel the whole if it is to remove the cause of the unlawful
state.

44th It is true that the law allows for the possibility of derogation from the application of predicative
decree (§ 150 of the Civil Procedure Code.). Possibility of departing
is then given also the very fact that the court did not decree
strictly speaking, bound. The very principle of the possibility of derogation
petitioner considers to be correct, however, this applies only if needed
derogation refers indeed a minority phenomenon.

45th If there is a rule that dominated proceedings in trivial
generic form-enforcement actions, as set out above, the standard cost
According to the petitioner grossly beyond the usual statistical fact.
Court generalization can meaningfully be used only if it is assured that
in most cases correspond to reality. If they had, on the contrary
majority justify departing from the ordinance and should keep her
only in exceptional cases and in such cases lacks
unreasonable determination of expected state of affairs of any meaning.

46th Courts at this deflecting action in their most resign themselves
applied without consideration decree whose application is not necessary to separately
justified. Assumption or presumption that they are right down in
contrary to the usual facts, not the logic of things
fulfill its function, because such a procedure is, inter alia, technically unsustainable.

47th According to the petitioner can not therefore argue that the court may
individual case to deviate from the ordinance. It is formally speaking
possible, but it is not reasonable to require the courts to depart from
flat rate in most cases. It is not possible in practice, among other things
because the vast majority of things ending in phase rozkazního management, where
court does not express a counterparty or another substrate on which
his account had been. The specific form of fair
cost model can be de lege ferenda many forms.
It should also reflect the method of settlement (payment order, judgment for recognition
a default judgment and common etc.).

48th According to the petitioner then completely illogical that in case management, which
catalog meanings of management does not take no significant
position, this procedure stimulated reward successful litigants who
significantly exceeds the actual cost of litigation. The petitioner
vainly searching for factual or legal reasons that would justify the conclusion that
recovery of small claims in terms of awareness of law,
sustain the functionality of law and to ensure a fair trial
important than, say, in defense of the accused criminal proceedings, defense against šikanózním
procedure administrative authority or protection against violation of constitutionally guaranteed rights
in the proceedings on the constitutional complaint. Conversely, the petitioner has
that this accessory inequality distorts the perception of rights and priorities
justice. Besides inequality in terms of the petitioners need
pointed out that in terms of impact, it is the rather poorer people
who bear the consequences.

49th The petitioner points out that in some cases the courts
some prosecutors at all costs confer and deviates from the decree
and that its procedure properly justifying the reasons for taking such action
fro on the part of the plaintiff and the nature of the dispute. This procedure General

Passed the test of constitutionality, as seen from the resolutions issued under ref.
Brand. IV. US 2777/11 dated 27. 12. 2011. The procedure, however, definitely not vote
all courts, although the cases concerned,
appear before all courts. Significantly in predicative agenda also intervened award rendered under
sp. . I. ÚS 3923/11 dated 29. 3. 2012 was the impact
predicative decree extensively modified for the purpose called.
form-settlement in the Gaza bagatelnosti. The Constitutional Court essentially created
cost ceiling for a particular type of litigation, and it limited the principal dispute.
Even this principle is not accepted judicial practice wholeheartedly.

50th Currently, as some courts in certain proceedings confer
cost at all, and these decisions will stand the test of constitutionality. Other courts
a (very minority) governed by that finding, while others are governed by decree
unchanged. There is a fourth decision model, and it
subsidiary by lawyers plan within the meaning of § 151 paragraph. 2 o.
S. r. In addition, it is of course possible to combine all methods and
apply different criteria for assessing borderline cases.
Common feature of evaluating judicial decision-making is then
disunity and fragmentation.

51st The purpose of the ordinance, which legitimizes the generalization should be just
predictability. If the ordinance is so variously modified
judicial practice that created a completely different decision outcomes in cases
otherwise comparable, testifies to the normative disability decree.
Judicial power is not with it as a whole, its practice derogate from the decree, which would
possible (and perhaps constitutionally conforming), but it thrives only in certain parts of
, inconsistent and diversely, which creates a the other side of the field
legal uncertainty.

52nd The petitioner expresses its conviction that the contested predicative
ordinance is in conflict with the law is constitutional, it violates
all the principles of proportionality, rational arrangement of relationships and does not
purpose for which they were taken. Furthermore, the petitioner does not even behind
technically not materially possible to the jurisprudence consolidating
way to deciding the costs that would be uniform, generalizations,
predictable and fair at the same time to take into account all
circumstances which would have taken into account. Judicial power by their nature can not create a legal vacuum
complex normative systems and replace function
legislator.

53rd The petitioner recommends annul the contested ordinance predicative
the date of publication in the Collection of Laws. Although the petitioner is aware
fact that in general it is more appropriate to leave some legislators
deadline for drafting new standards, and in this case it is not necessary
because after the annulment of the contested ordinance takes effect predicative || | automatically advocate tariffs due subsidiary application of § 151 paragraph.
2 of the CPC. Although it has similar shortcomings, but is in many ways less problematic
norm, among other things because it takes into account the number of operations and
hence the complexity of the procedure and the fact that the forms
or petty disputes or simple predicate smaller loads.

III.
Statement of the Ministry of Justice


54th The Ministry of Justice (the "Ministry") in its statement
Constitutional Court received on February 25, 2013 stated that
Decree no. 484/2000 Coll. modifies flat rate remuneration for
representation of a party by a lawyer or notary in the civil proceedings
for deciding on the reimbursement of costs under § 151 of the CPC.
Before there was the adoption of Decree no. 484/2000 Coll .,
was the basis for the calculation of the costs of legal representation in court proceedings
Ministry of justice no. 177/1996 Coll., on remuneration
and compensation of advocates for the provision of legal services
( "law fare '), which was the amount of attorney's remuneration dependent on a number of legal acts
services, which conducted the proceedings. The adoption of Decree No.
. 484/2000 Coll. In addition to experience, with the reward system, dependent on the number of legal acts
services, was the reason for delays in court proceedings (the
more transactions, the higher the reward).

55th Ministry admits that the flat-rate compensation established by Decree No.
. 484/2000 Coll., Really does not reflect the actual expertise and time demands
litigation. This is especially the case proceedings

Trivial amounts (especially when they are implemented on the basis of the so-called.
Actions of form). Likewise, in the case of difficult
prolonged disputes, when it held several meetings and carried out extensive evidence
not the complexity of the case, placing greater demands on the lawyer,
reflected in the amount of remuneration determined in accordance with Decree no. 484 / 2000 Sb.
However, the Code of Civil Procedure in such situations remembers that provides
court justified by the circumstances of the case, the option to proceed with
determining compensation costs of legal representation by lawyers
tariff in accordance with § 151, paragraph . 2část first sentence after the semicolon Civil Procedure..
Himself Constitutional Court found this procedure is correct in its judgment. . I. ÚS
3923/11, in which it also stated that the cost declared in the management of the amount
moving band bagatelnosti should not exceed the amount recovered
principal. The ministry can not be the appellant alleged violation of the principle of proportionality
seen in unconstitutionality, respectively.
lawlessness Decree no. 484/2000 Coll., but that the courts often mechanically
admit to pay the costs of legal representation in accordance with Decree no. 484/2000 Coll
. and take into account the specifics of the particular case.

56th On the other hand, can not be overlooked by the ministry that if the court of
under the current law given the choice of whether to decide on
Costs will proceed in accordance with Decree no. 484/2000 Coll., Or
accordance with § 151 paragraph. 2 of the CPC. portions of the first sentence after the semicolon
according to lawyers tariff, or whether to use any of the correctives
listed in § 142 paragraph. 1 or § 150 of the CPC. this leads to
that courts in similar cases decided differently. It is always necessary to insist on the requirement
proper justification of the decision taken by the facts.

57th The Ministry mentions that recently made a number of measures aimed at eliminating
cases when the court granted the amount of reimbursement
management several times the amount required by the principal. These measures include
amendment to § 3 para. 1 of Decree no. 484/2000 Coll., Which occurred
Decree no. 64/2012 Coll., Reducing the rate of remuneration, especially in the case of petty
amounts. The Ministry is reportedly revised the rates of remuneration so as to reflect
proportion to the amount of the claim itself, as well as costs incurred
individual participants.

'58. The Ministry reminds the other newly established institutions, for example. Called.
Pre-action challenges in § 142a of the CPC. (Amendment implemented by Act no. 396/2012 Coll
.), As a condition for the award of costs having
intended to provide borrowers last chance to pay the outstanding amount
thus avoiding its judicial recovery and therefore the reimbursement
costs. The amendment also envisages automatic connection executions
which are guided by the same executor against the same debtor in favor of the same
authorized. Teaming will also be held with more execution
executors or execution in favor of more creditors; This will amount to
the debtor's court if the amount individually owed
exceeding EUR 10.000, - CZK.

59th The Ministry states that it is also very Decree no. 484/2000 Coll.
Order to reflect the demands of the court proceedings. By its terms, §
18 paragraph. 1, the court fee rates reduced by 50% if the lawyer or notary
management has made only one act of legal service. If done
any act of legal services, the reward is not for him. By contrast, under § 18 par. 2
court may pay rate increased by 100%, represented If a lawyer or notary
participant in an extremely difficult or factually complicated things
(unless the rate specified percentage of the subject management).

60th Ministry rejects the petitioner's claim that the amount of stored procedure costs
accorded under Decree no. 484/2000 Coll.
achieves virtually punitive. Is not it all about punitive tool, but to protect those who
its right nedomohli out of court and had to incur considerable costs
to exercise its right of action. Non-replacement of the costs would
could therefore be used mainly as a punitive tool to creditors.

61st The Ministry states that flat-rate costs is not in the context of European legal culture
unusual. Conversely, you can follow the trend to use
generalization, even within the European Union. For example, it can point to
Directive of the European Parliament and the Council no. 2011/7 / EU of 16 February

2011 on combating late payment in commercial transactions, which
trying to generalize the cost of recovery, since it stipulates that
creditor is entitled to receive from the borrower at least a fixed amount of 40 euros
, which represents pay their own costs for the creditor's
enforcement.

62nd If Decree no. 484/2000 Coll. was canceled, as the petitioner
required, he would say again restored condition, what there was before 2001
again there would be stretching the legal proceedings as a result of the implementation
unnecessary provision of legal services lawyers, for example. Repeated administration
expression of the same or very similar content.

63rd According to the ministry, the courts should make use of corrective
anchored in § 142 paragraph. 1 of the CPC. And consisting in granting compensation
only those costs which are necessary for the effective application
or obstructing justice. Another provision, giving the court the option to deny
pay the costs of legal representation in the required amount, even after the abolition
Decree no. 484/2000 Coll. remained the provisions of § 150 of the CPC., according to which a court may not
rarely pay the costs wholly or partly admit
if there are reasons worthy of special consideration.

64th Ministry admits that the arguments possibility of applying correctives
expressed in § 142 paragraph. 1 and § 150 of the CPC. Not all rosy.
Interpretation of the significance of the phrase "the effectiveness of the enforcement or protection
rights" and "reasons worthy of special consideration" is in fact dependent on the discretion of the court
. It is therefore very likely that the practice of judges in this area
differed.

65th Especially at the stage of enforcement proceedings will then be feared failure in
granting refunds. Although a bailiff in enforcement proceedings
partially granting the status of a court of first instance, its real
position is not independent. Bailiff for enforcement of EEO
selects authorized, respectively. usually his attorney.
Enforcement official proceedings thus assigns attorneys authorized whom
his income by using Decree no. 484/2000 Coll.
turn down judicial executor in order to pay expenses. This, therefore
dependence allocation of cases to bailiffs on the choice of legal
authorized representatives, could thus lead to the fact that the bailiffs
confessed replacement of the entire required amount of costs even for apparently irrational acts
such as access to the file, unless the fact
no relevant reason for challenges and proposals that procedural rules foresee etc.
.

66th In connection with a decision on costs in matters
enforcement or execution is necessary according to the Ministry
also point to the fact that the provisions of § 12 para. 1 of Decree no. 484/2000 Coll.
Provides that in such cases the rate of remuneration, in the case of cash recovered
amount is 50% of the rate of remuneration specified under § 3 para. 1 of Decree no.
484/2000 Coll., At least 500, - CZK. If the decree is canceled, it can be said
expect a sharp rise in costs in matters of enforcement and execution.

67th Finally, the Ministry states that during the fixed rate set
amount of compensation costs of legal representation in accordance with Decree no. 484/2000 Coll.
Each participant can legal proceedings with a high degree of accuracy in advance
estimate how much funding would be in case of failure in court proceedings
had to the other side to pay the costs. In contrast, when applying
lawyers tariff, thus depending upon the amount of reimbursement
legal representation at the number of acts of legal services, they would have such
estimate at the beginning of court proceedings do not, because
forward is never clear, how much will be in a case a hearing or how
submissions on the merits counterparty will do. Even the decision on costs
management should be predictable, which speaks more to maintain
Decree no. 484/2000 Coll.

68th The Ministry notes that the repeal of Decree no. 484/2000 Coll.
Does not meet the objectives pursued by the appellant. Although there is a
increasing the predictability of judicial decisions in the sense that, according
what legislation the courts will grant reimbursement of costs, because the game will only
decision pursuant to Decree no. 177/1997 Coll., On Remuneration || | and compensation of advocates for the provision of legal services (lawyers

Tariff), as amended, the current correction
decisions of the Constitutional Court, however, no longer predictable reward itself because
abolition of ceilings rewards and ambiguity number of acts management can mean
same legal uncertainty. You can apparently also be noted that if the same
no positive legislation of Civil Procedure, there
contrary to increase rewards in that stage of the proceedings, where the legislature has already enacted
only half the rate.

69th In evaluating the proposal in terms of the necessity of the ministry concluded that even
decision on costs in the past
in certain cases, particularly of form claims for petty sums excessive,
Ministry of Justice responded to that and in the past has made | || certain steps to remedy the situation within the existing statutory provisions
. Amendment to the Civil Procedure Code, by Act no. 396/2012 Coll
., Introduced a pre-action challenges the limits costs while
enforcement predicative amendment to the decree, the Decree of the Ministry of Justice
no. 64/2012 Coll. have been reduced
absolute amount of the costs in monetary disputes, the new legislation brought
detailed breakdown of rates of remuneration at an absolute reduction
specific amounts and thus the opportunity for sensitive decisions
particularly in trivial disputes.

70th As for the evaluation of the proposal in terms of proportionality, ie evaluation
aspect of the injury suffered in relation to the purpose
we can agree with the petitioner that excessive reimbursement should not pose
sanction mechanism for the defendant. Although the defendant may be caused disproportionate harm linked to excessive
raising costs, but this is his right
need to balance on the balance pan and weighed against the rights of the plaintiff to
legal protection and the ability to enforce their claims for qualified
defendants. The fact that a defendant in default in the payment of its debt
can not be charged to the applicant, who want to enforce their rights.
The current legislation is supposedly balanced and fills the thesis that negative consequences
not exceed the positive, because reflects both the creditor's right to
repair costs incurred by this, so
adequately protect borrowers before disproportionately by increasing compensation costs
actions undertaken attorney counterparty.

71st The Ministry concludes that determine the amount of compensation for the costs of legal representation
under Decree no. 484/2000 Coll. It has both its positives and negatives
; They said the ordinance is neither unconstitutional nor illegal.

IV.

Duplicates petitioner

72nd The statement of the Ministry, the petitioners expressed in its memo,
Constitutional Court received on 11 March 2013, stating:

73rd The Ministry in its statement stresses that the courts should in each case
individualize their decisions, while
refers to the legal ways to do so. The petitioner adds that
so in most cases it happens because the amount
discussed and routinely handled cases this is not possible, regardless
that the individualization would be necessary in simple disputes complement
proving to cost issues, the parties to make submissions on this issue and
prove ratios on both sides of the dispute, which would
significantly exceeded the original sense of banal dispute. Defective set
generalization is possible according to the petitioner to remove, but not the way to overcome
many individual decisions, which creates a different standard.

74th Claimant seems questionable if the ministry
whose task is to ensure a meaningful and fair generalization, given as a defensive
reason for its preservation (if challenged her
rationality, justice and logic), the fact that these
shortcomings do not matter, because the treatment may be derogated. Such a position would in essence
led to the general conclusion that there were no illegal decrees
because the court from them can always deviate, because it is not bound by the decree.
Arguments ministry remains in the plane subject to discuss how
the courts can alternatively proceed; it would be useful, according
opinion of the petitioner, to incorporate into the text of the contested ordinance
prescriptive rules on how to proceed, if it happens in practice.

75th Regarding recent changes in the ordinance that ministry

States as a step in mitigating the negative impacts and taking into account their
minimalist nature of the petitioner is deemed extremely
insufficient. From the graphs, which are part of the design merits, it
apparently seen enough.

76th If, petitioner states, something problematic at present
decree, it's just that differentiate typology disputes.
Ministry basically defends the model spectrum on many different situations
reacts well. Courts may individualize their
policy decisions, but just need a different tariff rates for different types
management acts or cases.

77th As regards other support measures, which should eliminate the consequences caused
normative impact of decree to which
Ministry dismissed and the appellant points out that the pre-action
challenge is insufficient, particularly in view of the fact
that its introduction has nothing to do with the basic constitutional problem
consisting in gross disproportion between the costs incurred and the granted.
Pre-trial challenge may slightly reduce the number of people that will be affected by the wrong
regulation, but it did not change the nature of the concern.
Small reduction in the number of people who are affected by unconstitutional laws, regulations, according
petitioner is not removed in any case
unconstitutionality of this regulation. Moreover, it should be noted that the period of pre-action challenges appear to be
short. Assume that the pre-action challenge will contribute to reducing the negative consequences
contested ordinance, the petitioner appears to be pure speculation
.

78th Also merging executions petitioner seem insufficient
because they can easily circumvent progressing creditor, debtor causally and
identical assets in different entities, which is then enforced by
separately, as is already common practice, which prevents mergers
to the proposal. Both support mechanisms (pre-action challenge, merging executions)
addition, they have a very imperfect nature
elimination of the consequences of an unjust system. Such solutions can delay the problem but not eliminate
.

79th The possibility of reducing the rate of remuneration in accordance with § 18 of the contested ordinance, the Ministry
mentioned as a normative corrective
to account for the complexity or simplicity of the dispute, according to the petitioner practice
completely neglected, among others. Also because it is conceived as an exception to the rule
and not the rule itself.

80th The petitioner states that it does not waive such as generalization, but
militates against its concrete form. The petitioner points out even suitable
ways generalization abroad.

81st The petitioner reiterates that its proposal Although
petitorně directed against the current wording of the decree, but conceptually seeking, through
against generalization as such. Draft certainly not expected after
abolition decree in the long term without continued state regulation but
assumes that the ministry adopted a new ordinance that will
reflect the requirements of the Constitutional Court. The subject of proceedings before the Constitutional Court is not
and design, can not even be talk about ideal form
legislation. It is always the task of the legislator. The procedure is merely examined whether
current legislation does not go beyond the boundaries of the parent law.
If the Constitutional Court a norm, so the lack of standards must normally
legislator supplement, the reasons for the cancellation are his inspiration and then
guide or


Derogandi memento that he puts constraints further rulemaking considerations. Whether
Ministry issued after the dissolution decree through a complete transformation, partial changes
or in cooperation with the legislator and the pooled tariff decree, or whether
referring to the tariff that decree for trial
zastropuje is it was only his thing.

82nd The petitioner emphasizes that the actual cancellation of the decree and will not
can be filled with the aim of eliminating the unconstitutional situation. This also applies
eventual return to pure administration lawyers tariff that should
no impact on execution proceedings that the current tariff burden
equally or even more than the current ordinance. Applications lawyers tariff
may appear only as a temporary emergency measure. Acquaint If the Constitutional Court
decree unconstitutional or unlawful, it will be necessary to actively
create a new system and it will be the task of the Ministry.

83rd The petitioner understands its way, the legislator sadness over the fact that it

Created by legislation are not fully meeting its purpose and objective, including the possibility
exceptions that are neglected practice. If a standard does not work, even
it has the formal prerequisites, it is necessary, in the logic of its
effect of sociological, functional look legality of the impact of this regulation and those
reasonably respond. The petitioner insists on the proposal.

V.

Expression Ombudsman

84th Ombudsman to the Constitutional Court that his
right to intervene pursuant to § 69 par. 3 of the Constitutional Court
does not use, but serves statements within the meaning of § 48 para. 2 of the Constitutional
court.

85th The Ombudsman states that in the light of the knowledge gained in the course of their activities
repeatedly criticized the practice of some lawyers and bailiffs
, consisting in the unauthorized granting
claiming a legitimate cost of enforcement proceedings in the form of compensation under the provisions | || § 12 paragraph. 2 predicative decree, even though the lawyer has taken no steps
in the actual implementation or stop the execution, but only took the case
and filed a motion for an execution. The arguments put forward by the petitioner
predicative to repeal the decree, the Ombudsman identifies
.

VI.

Waiving hearing

86th According to § 44 of the Law on the Constitutional Court, the Constitutional Court ordered a hearing,
possible if such a hearing is expected to clarify the matter. Oral hearing ordered
always, if provided for in this Act or, if the Constitutional Court
evidence. In the case under the Constitutional Court should consider that the hearing can not be
expected to clarify the matter, therefore, an oral hearing was waived.

VII.

Locus standi of the appellant

87th The Constitutional Court finds that the applicant meets the requirements of § 64 paragraph
. 2 point. b) the Constitutional Court Act and may file a motion to cancel
another law or its individual provisions
under Article. 87 paragraph. 1 point. b) of the Constitution.

VIII.

Constitutionality of the legislative process

88th According to § 68 para. 2 of Act no. 182/1993 Coll. ,, On the Constitutional Court, as amended
Act no. 48/2002 Coll., The Constitutional Court considers in deciding
contents of the Act or any other legislation in terms of
their compliance with constitutional laws, and in the case of other legislation, also with the laws and
determines whether they were passed and issued within the bounds set by
competence and in a constitutionally prescribed manner. The Constitutional Court notes that
contested legislation was constitutionally prescribed manner and
issued in accordance with the Constitution and promulgated in accordance with law no. 309/1999 Coll., On
Collection of Laws and Collection of International Treaties.

89th The provisions of article 79 par. 3 of the Constitution provides that the Department may
on the basis and within the law issue regulations if they are to
authorized by statute. The contested Decree no. 484/2000 Coll.
was issued by the Ministry of Justice on the basis of statutory authorization contained in
§ 374a point. c) Act no. 99/1963 Coll., Civil Procedure Code, as amended
.

90th The contested regulation was published on 29 December 2000 in the amount of no.
140/2000 Collection of Laws and on January 1, 2001 came into effect.
This decree was amended by Decree no. 49/2001 Coll., Decree no. 110/2004
Coll., Decree no. 617/2004 Coll., Decree no. 277/2006 Coll. and Decree No.
. 64/2012 Coll.

IX.

Rating Constitutional Court

91st The Constitutional Court concluded that the contested decree no. 484/2000 Coll.
Is inconsistent with the Constitution and the law.

92nd According to the explanatory memorandum to the Act no. 30/2000 Coll., Amending Act No.
. 99/1963 Coll., Civil Procedure Code, as amended, and
some other laws, should be the purpose of the Decree no. 484/2000 Coll.
Simplify the calculation of remuneration for representation in civil proceedings and
eliminate the delays caused by the parties with intent
achieve higher pay for legal representation due to more
provision of legal services provided. In reality, however, this predicative
decree has caused serious negative consequences, which infringes the fundamental rights
and causing dysfunction of the justice system.

93rd The contested Decree no. 484/2000 Coll., As opposed to lawyers tariff
(Decree no. 177/1996 Coll., As amended), which amount

Pay and the amount of legal fees based on the number of legal acts
services provided in the case, has introduced the determination of the costs of legal representation
based on the principle of flat-rate tariffs above rewards
representation in the proceedings. Predicative decree establishes a flat rate above
rewards, which does not distinguish the complexity of the case, time-consuming,
number of acts performed legal services, as well as the way
court proceedings ended (electronic payment order, judgment | || recognition, judgment by default). Thus, generalization ignores the factual and
time-consuming dispute or effectiveness of law enforcement or prevention
claim.

94th Contested decree motivates the participants of civil relations -
creditors to litigation in cases where the subject of dispute
is a matter of negligible value. This is done with the prospect of earning, as plaintiff
expects the amount of the costs awarded by the court
Decree no. 484/2000 Coll., The amount awarded in damages
costs will be higher than actual costs incurred and this difference will
winning side to bring business profit. Imputed costs are so high
that are inherently advantageous to the judge as well as deliverables
negligible value.

95th The number of such litigation files, motivated by the prospect of easy profits is
enormously in recent years high, constitute a significant proportion of the civil courts
agenda. This leads to excessive capacitive loading
judicial system and the growth of spending from the state budget spent on running
justice. Dealing with this kind of agenda can easily cause delays in
proceedings in other cases, the subject is much more important
affairs. According to Article 90 of the Constitution of the Czech Republic "
courts are first and foremost in the legally prescribed manner, the
protection of rights." Litigation of this type, which is designed primarily
not as invoking the protection of the rights, but as a business and
business of producing a profit, he finds himself on the brink
Institute of abuse of rights. Prohibition of abuse of rights is recognized as one of
the basic principles of law and stems from the constitutionally enshrined concept
law (cf. Preamble to the Constitution).

96th Additionally, it can be stated that such a functioning, relatively autonomous
system recovery raises socially undesirable consequences -
leads to impoverishment considerable part of the population. Statistically significant part
population with low incomes unable to pay the court costs imposed
dispute and subsequent execution, coupled with the additional costs, he finds himself in
serious existential problems.

97th Costs of legal representation, calculated on the basis of predicative
decree disproportionately burden the unsuccessful party management
especially in situations where the value of the dispute is in the lower range, particularly in the Gaza
bagatelnosti. The awarding of costs is manifestly disproportionate
nature and content of the dispute.
Enforce the civil liabilities in such cases, while in terms of general justice
marginal issues to the forefront of the lender gets interest on
to benefit from the leadership of the dispute itself.

98th The described phenomenon occurs especially in these types of civil litigation
:

* Proceedings in which the first-instance court against the judgment of the appeal is admissible
(called management. Trivial disputes)
*
Disputes initiated so. Form-action (individual claims in principle
differ particulars of the defendants and the claimed amount)

* Receivables from contracts where one of the parties was consumer

* Contractual relationship in which the consumer is de facto excluded from the possibility
arrange a civil contract with another content (typically go
particular contract of carriage and delivery of heat or energy
consumer credit, current account on providing information services
for the provision of electronic communications services for insurance contracts by
regulatory fee under Act no. 48/1997 Coll., on public health
insurance and amending and supplementing some related laws, amended
amended; see in this Constitutional court decision.. I. ÚS 3923/11
.

99th in real social settings, a new kind of entrepreneurial activity
resting trading mainly with bagatelními

Receivables. Receivables are assigned and bought up
specialized firms that deal with the collection of receivables, receivables with
trades. The right to a cash settlement enforced by other than the original creditor;
Plaintiff, yet expects the amount of the costs will be
court awarded just under Decree no. 484/2000 Coll.

100th Gain such a business is not only due to differences in prices
own trading debts but is multiplied by standard rate
set the reimbursement of legal proceedings, lying mainly in
inadequate remuneration for the lawyer representing the successful plaintiff.
The awarded costs in these cases significantly exceeded the actual costs incurred
necessary to the efficient enforcement or protection of rights.
Created a peculiar system of debt collection, deliberately producing
disproportionately high cost of legal proceedings. This system harms or destroys
unsuccessful borrowers and vice versa
provides significant benefit to persons who are involved in the implementation and enforcement of mainly
trivial claims and enforcement of related costs.

One hundred and first Particularly undesirable situation occurs in public services,
financed from public budgets (health, public transport, education, etc.
.). Receivables are enforced by public bodies (State
municipalities, districts and regions), which for this purpose are often also
hire lawyers. The consequences of failure are then for borrowers
far more burdensome than when the claim enforced directly by the state or municipality
through its employees because of rising costs
attorney attorneys' fees.

102nd Generalization determining lawyers' fees ignores the factual intensity
dispute, the number of operations conducted in the matter, time and effectiveness
law enforcement or defense of a claim. Contested decree disregarded nor
way to the end of things. We can also mention such an undesirable option where
lump sum awarded by the rate of remuneration is contrary unreasonably low because
specific nature of the dispute required a high number of standard
intensive tasks.

103rd Awarded costs will regularly come into gross disproportion to the defendant
value of the dispute. This way, the sanctioning
unsuccessful party management, while the amount of costs imposed is inconsistent with the principle of proportionality
sanctions. This leads


De facto to impose sanctions without law. Predicative ordinance gets into
inconsistent with Article 4. 1 of the Charter of Fundamental Rights and Freedoms (hereinafter
"Charter"), which provides that duties may be imposed only on the basis of law and
in its limits and only while respecting the fundamental rights and freedoms
. Awarded costs should not be disproportionate to the nature and value
dispute.

104th The Constitutional Court is aware that the current legal situation allows the courts
deviate from predicative decree. The judge has the option to deny compensation
costs or to award only reasonable costs (§ 142 paragraph. 1 o.
S. R.). The judge may also concrete things in account of the reasons
worthy of special consideration under § 150 of the CPC. Also jurisprudence, including
Constitutional Court jurisprudence, provides a relatively wide field of possibilities for
decisions. Past experience shows, however, that the application of these legal options
by the courts is inconsistent and unpredictable.
This is also weakening the principle of predictability
judicial decisions and weakening of the principle of legal certainty.

105th Predicative decree is contrary to the law - the Civil Procedure Code, according to which
accorded costs required for effective application or
defending rights (§ 142 paragraph. 1 of the Civil Procedure.).

106th Since departing from the ordinances must be a court decision
justified, increased labor and formal demands
judicial decisions, thereby overloading the courts and lengthening
court proceedings. We need to carefully justify departing from the decree
also discourages judges to make use of these alternative procedures.

107th The existing Constitutional Court case law indicates that the contested
ordinance does not provide adequate legislation in this area and
confirms the necessity to adopt new legislation, which takes into account the decision of the Constitutional Court
.

X.
Obiter dictum



108th Without wishing to anticipate the Constitutional Court any future legal
editing, we expect that this will better reflect the particularities of each
cases. The criteria for determining the amount of compensation should be included in the decree itself
. Determining the amount of remuneration should reflect the principle of proportionality
should also be reasonable in relation to the amount recovered
amount. This is all the more important when it comes to disputes in the Gaza
bagatelnosti in which a judgment against the first-instance court is not acceptable
appeal the decision therefore is not subject to review instančnímu.

109s. The Constitutional Court wishes to recall some principles that
formulated in prior case law, and which should also take into account
future legislation.

110th In its judgment. . I. ÚS 3923/11, the Constitutional Court addressed the issue
compensation costs and lawyer's fees for the so-called.
of form actions in Gaza bagatelnosti. The Constitutional Court stated that courts and in proceedings
monetary compensation to 10.000, - CZK must deciding on reimbursement
proceedings follow the principle of success in the case (§ 142 paragraph. 1 of the Civil Procedure.).
If the applicant was fully successful dispute usually has the right to compensation
costs. This does not mean that the court decides on their compensation
"mechanically": Rather, it must consider whether there exist other critical
circumstances having a substantial effect on the granting or withholding of compensation
reasonable costs and what the possible ways
exploits its determination (see § 151, paragraph. 2 of the sentence before the semicolon the CPC.
and from the exemption referred to in part after the semicolon). In that judgment the Constitutional Court
further stated that selects if the general courts when deciding on the reimbursement of costs
exceptional procedure for which they have legal support, in which
still based on the principle of success in the case, and use
statutory exemptions also justifies, then they can not for the protection of constitutional order
guaranteed rights and freedoms reproach.

111th The Constitutional Court in that judgment pointed out that he had to accept the unification of jurisprudence
general courts in the form of judgment, as in the so-called.
Trivial matters of pages of statements regarding costs
there is another body that could then binding way to do so.
In this procedure, which is initiated by the 'forms' action, claim is being asserted
to the consumer, while he was out of contract or other legal
reasons, but the consumer is effectively excluded from the possibility to arrange
filling conditions with other content, then with the need to comply
principle of proportionality between the amount recovered and the amount of compensation
cost is fair that the amount of remuneration for representation
plaintiff attorney was designed so that it does not usually exceed one times | || enforced principal.

112th Similarly, in its judgment. . I. ÚS 988/12 dated 25 July 2012
Constitutional Court stated that the rule according to which the process can be successful party
award compensation only reasonable costs
covers any costs, therefore, and the costs of the lawyer representing
(the remuneration for representation, lump sum cash expenses
compensation for value added tax). The Constitutional Court stated that for
costs reasonably incurred within the meaning of § 142 paragraph. 1 of the CPC.
Be considered only those costs which had essentially procedural side
spend in order to properly defend its violated or threatened
subjective law in court. Costs associated with the representation by a lawyer this definition
rule will match. This rule, however, can not be attributed
absolute, unconditional nature; can also occur a situation in which
costs associated with representation by a lawyer will not be considered
necessary for the proper enforcement or protection of rights in court. That is the case goes
especially in cases of abuse of the right to representation by an attorney.

113th In its judgment. . I. ÚS 2929/07 dated 9 October 2008 (N 167/51 SbNU 65)
Constitutional Court said that if the state is to defend their legal interests
equipped with relevant departments financially and personally || | secured from the state budget, there is no reason to exercise their rights and
obligations in this area transferred to a private entity, which was
that hypothetical lawyer. As is apparent from the grounds of a constitutional complaint
contested judgment, the court based its finding on costs

Justified only by reference to § 224 paragraph. 1 and § 142 paragraph. 1 of the CPC.
Question whether it really is a need for cost effective application
or protection of rights, the general court addressed.
Burdening their decision to defect, having constitutional dimension, involving the breach
Article 36 para. 1 of the Charter.

114 respectively. In its judgment. Ref. IV. US 2513/09 dated February 2, 2010 (N 17/56 SbNU 169)
Constitutional Court referred to the Constitutional Court decision. . I. ÚS 2929/07 and
stated that it is widely known that the central authorities have established
to exercise legislative agendas relevant legal (legislative)
departments, employing a sufficient number of skilled workers
are able to ensure protection of the interests of the Czech Republic before the courts. According
view of the Constitutional Court expressed in the cited judgment, was therefore
reason that under the circumstances, the defendant was represented, albeit only
in the appeal, lawyer. If that happened, not in this situation
to the complainant fair to ask to reimburse the defendant
management costs thus incurred, as these costs could not be considered "
costs necessary to the efficient enforcement or protection of rights" in
meaning of § 142 paragraph. 1 of the CPC. According to the Constitutional Court did not take the general court in its decision
above mentioned issues into account their verdict on damage
costs justified only by reference to § 224 paragraph. 1 and § 142 paragraph. 1
the CPC. the question of whether this is indeed a cost needed to efficiently
enforcement or protection of rights, the general court never addressed. In fact, this
Constitutional Court found a flaw having constitutional dimension,
consisting in violation of Article 36 para. 1 of the Charter.

115th The findings sp. Ref. IV. US 3243/09 dated 2 March 2010 (N 38/56 SbNU
449) and sp. Ref. III. US 1180/10 dated 14 September 2010 (N 194/58 SbNU 715)
Constitutional Court stated that where it is to serve their interests become
equipped with relevant departments, financially and personally secured from the state
budget, there is no reason to exercise their rights and
obligations in this area transferred to a private entity, which was
attorney, and if they still do, then there is no reason to recognize him as follows
costs incurred as efficiently incurred . If the appeals court ruled
on costs only with reference to the principle of success, while
question whether the cost of the party - state to a lawyer
been effectively spent, have dealt with, he committed a violation of the right to || | fair trial.

116th In its judgment. Ref. II. US 2396/09 Constitutional Court concluded that in
statutory towns and boroughs may be presumed existence
sufficient material and personnel and security equipment to
to be able to competently defend their decisions, rights and interests,
without having to use legal aid lawyers. If the relevant management
proved otherwise, costs are not represented by a lawyer cargo
efficiently incurred.

117th This should not be categorically stated that the representation of the state
lawyer is always ineffective and that the reimbursement of legal representation
state can not ever admit. In exceptional circumstances, the lawyer representing the State
purposeful nature of the application or obstruction of justice. In
resolution file. Ref. III. US 2428/10 dated 31 March 2011, the Constitutional Court
recalled that in each specific case where the state in a
Management Department acts as the appropriate organizational unit and
as one of the central authorities, must, according to
particular circumstances of this case to consider whether the relevant government department is able to
in a dispute (especially if it acts as a defendant)
effectively prevent the help of their lawyers, or whether the specific dispute,
in which the effective defense and a successful outcome to the dispute
organizational component of the state - and ultimately also for the Czech Republic - the need to
Czech Republic was represented by lawyers. When
widely advocated tendency to the overall effectiveness and efficiency of operations
government can not be staffing capacity internal employees
oversized to cover every conceivable legal areas
which stand in the position of the parties in litigation emerges .
State can not be denied the right to be represented in court by a lawyer with regard to the specific issue
subject of the proceedings; on the costs so incurred

Can not simply be seen as a cost ineffective, but in each individual case
it is necessary to consider whether or not the costs
necessary, necessary for the effective application of rights or interference.

118th Crucial to solving the problems of the costs has
Constitutional Court decision. . I. ÚS 988/12, comprising two legal sentences:

"I. The rule, according to which side can be successful procedure to award compensation only
reasonable costs covers any costs
management, hence the costs associated with representation by a lawyer (to pay for representation
, lump-sum reimbursement of cash expenses and reimbursement for tax
value added).

II. the costs reasonably incurred within the meaning of § 142 paragraph. 1 of the CPC.
be considered only those costs which had process page
necessarily incur in order to properly defend its violated or threatened subjective
law in court. costs associated with the representation by a lawyer this definition
rule will match. this rule, however, can not be attributed
absolute, unconditional nature and may also occur a situation in which
costs associated with representation by a lawyer will not be considered
necessary for the proper enforcement or protection of rights in court. That is the case goes
especially in cases of abuse of the right to representation by an attorney. "

119th From the foregoing, that the current situation was forced
assume the role of unification of general courts
Constitutional Court, which with their decisions trying to fill gaps in situations
by Decree no. 484/2000 Coll ., remembers. This role, however, the Constitutional Court
fundamentally at issue. For adequate solutions should be considered
new legislation replacing the existing ordinance predicative.

XI.
Facit


120th In light of the foregoing, the Constitutional Court came to the conclusion that
contested ordinance is not in conflict with § 142 paragraph. 1 of the CPC., Which provides
as a criterion for awarding costs
effectiveness of their expenses, but also with Article 4. 1 of the Charter, which
provides that obligations can be imposed only by law and in
its limits and only while respecting the fundamental rights and freedoms.

121st Although the aforementioned complaints illegality and unconstitutionality of the
relate mainly to the provisions of § 3 para. 1 and § 12 of the contested
decree, the Constitutional Court came to the conclusion that it is necessary to annul the decree
whole, because various provisions the entire ordinance
are mutually interconnected.

122nd Summarizing the above, the Constitutional Court found a discrepancy
contested ordinance not only the law but also with the Czech constitutional order, and therefore
contested decree under § 70 para. 1 of the Constitutional Court
canceled, and that the date of publication this finding in the Official Gazette.

Chairman of the Constitutional Court:

JUDr. Own hand

Dissenting opinion according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, was delivered to the plenary decision
Judge Vladimir Kurka.