Proposal To Repeal Certain Provisions Of The Act. On Bankruptcy And Settlement

Original Language Title: návrh na zrušení některých ustanovení zák. o konkursu a vyrovnání

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=53831&nr=403~2F2002~20Sb.&ft=txt

403/2002 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 25 April. June 2002 in plenary on the proposal of the high

Court in Prague to repeal § 5 para. 1 and the second sentence of § 8 paragraph. 3 sentences

the second Act No. 328/1991 Coll., on bankruptcy and settlement, as amended by

amended,



as follows:



The provisions of § 5 para. 1 and the second sentence of § 8 paragraph. 3 the second sentence of the law No.

328/1991 Coll., on bankruptcy and settlement, as amended,

on 31 December 2007. March 2003 are deleted.



Justification



(I).



The Constitutional Court has received 23 July. November 2001 proposal for the High Court in

Prague to repeal the provisions of § 5 para. 1 and the second sentence of § 8 paragraph. 3 sentences

the second Act No. 328/1991 Coll., on bankruptcy and settlement, as amended by

amended, (hereinafter referred to as "the Act on bankruptcy and settlement").



The Senate 1 Ko of the High Court in Prague, composed of the President of the Senate.

Frantisek Kucera, and judges. George Ridley and JUDr. Jiří

Goldstein, on appeal the receiver. IN THE L.

against resolutions of the municipal court in Prague from 17 May. April 2001 No. 99 to

76/2000-28 in case of bankruptcy of the trading company B. E., with.

Ltd., (hereinafter referred to as the "debtor") held at the municipal court in Prague has come

According to the article. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") to

the conclusion that the provisions of § 5 para. 1 and the second sentence of § 8 paragraph. 3 the second sentence

the Act on bankruptcy and settlement are in breach of article. 9, 26 and 28 of the Charter

fundamental rights and freedoms ("the Charter"), pursuant to § 109 paragraph.

1 (b). (c)) code of civil procedure (hereinafter referred to as "o. s. l.")

and according to the article. 95 para. 2 of the Constitution and § 64 para. 4 of law No.

182/1993 Coll., on the Constitutional Court, has submitted the matter to the Constitutional Court. Along with the

the proposal to repeal the legal provisions was referred to the Constitutional Court

furnished a statement in municipal court in Prague, SP. zn. 99 to 76/2000.



From the submitted file and the design of the judge-rapporteur the Court was found

the following:



In its resolution of 6 September 2000. February 2001 No. 99 to 76/2000-11 municipal court

Prague said the assets of the bankrupt and the bankrupt administrator established JUDr. In the.

L. (hereinafter referred to as the "Administrator"). By order of that Court of 17 May. April 2001 No.

j. 99 to 76/2000-28 was approved in order to exclude from the estate manager

úpadcovu in spite of the claim and three telephone cards (statement I) and

declared bankrupt for lack of úpadcova of assets under section 44 para. 1

(a). (d)) of the Act on bankruptcy and settlement set aside (statement II). The Court further

approved by Bill cash expenditures in the amount of Czk 1193.60 administrator and its

a reward of $ 10,000, at the same time that these claims administrator

will not be met, because nature is not sufficient to cover the costs

Bankruptcy (operative part III.), and ordered the Manager to within thirty days announced

the Court concluded that the books and has compiled financial statements (statement IV).

In the preamble to its decision, the party of the operative part III. He stated that the claims

administrator to pay its cash expenses and remuneration, although they were

granted by the Court, could not be met, as it was not liquidated no

the assets of the bankrupt estate and vice versa was the only possession of the inventory

in bankruptcy. It was not possible to meet the claims administrator or

from backup to bankruptcy, because the costs of the case has not been made,

Since the appellant claimant Declaration of bankruptcy was from this

obligations pursuant to § 5 para. 1 of the Act on bankruptcy and settlement freed

as a creditor, claimant satisfaction úpadcův wage claim.



Against resolutions of the municipal court in Prague from 17 May. April 2001 No. 99 to

76/2000-28 handed to the Manager of the operative part III. the appeal, in which he pointed out

in particular, the fact that the resolution is not in the operative part of the

enforceable, because správcova does not and cannot claim to be anyone

paid, although the Manager has fulfilled all the obligations which it imposes

law and which have been applied by the courts. Therefore, he said, that the decision of the

It is in breach of article. 26 of the Charter, and suggested that the Court of appeal in the contested

the scope of the resolution of the Court of first instance has changed, and ruled that the expenditure and

the reward is bound to meet Czech Republic Manager.



The High Court in Prague as the Court of Appeal reviewed the contested decision and the

its previous management, pursuant to section 212 of the row (the thing is with this

the Court conducted under SP. zn. 1 Ko 257/2001) and found that it must be

ensure relevance according to § 109 paragraph. 1 (b). (c)) of the row.



According to navrhovatelova opinion in the proceedings before the Constitutional Court in the

If there is no dispute about the fact that the administrator has under § 8 para. 3 first sentence

the Act on bankruptcy and settlement entitled to remuneration and compensation of the finished

expenditure, which from the perspective of the constitutional provisions of article is justified. 9, 26 and

28 of the Charter. The Rapporteur recalls in this context that the administrator

raised no objections to that part of the decision of the municipal court in

Prague, which is based on the aforementioned provisions of the Act on bankruptcy and settlement

and § 8a of Regulation No. 476/1991 Coll., which implements certain provisions of

the Act on bankruptcy and settlement, in wording of later regulations, which the Court

approved by Bill cash expenses and his Manager. Essential

for the assessment of the merits test appeal in an uncontested factual things,

When in the bankrupt estate are not any resources and advance on costs

the bankruptcy has not been made, then considers the issue of whether the administrators for

such a situation completely deny the supply, which would surely have received in

If the claim was satisfied.



The provisions of § 8 para. 3 the second sentence of the Act on bankruptcy and settlement

does not provide than exclusive circle of sources from which it is possible to legal requirements

meet the Manager, which can be based on opinion only accept navrhovatelova

in the case that at least in one of these resources are resources

that can be used to cover správcových claims. To do this, to avoid

violation of the fundamental rights under article. 9, 26 and 28 of the Charter, should be

According to the High Court in Prague, require from the obligation to pay

an advance on the costs of bankruptcy was not a priori exempt no one. The emergence of this

the situation allows the provisions of § 5 para. 1 second sentence of the law on bankruptcy and

settlement. In recognition of the necessary tools to remove the hardness

in this context, the applicant observes that the Court may not enforce

backup (or may not tender for its non-payment stopped) in those

cases in which the bankrupt estate are the means of

which can be used to cover the costs of the bankruptcy.



Legislation that exempts certain persons from the payment of advances and

meet legal and justified claims administrator or from the

funds the State of which the injured person authority steps into a function

appointed manager, then according to the belief of the High Court in Prague is in

contrary to the article. 9, 26 and 28 of the Charter. Therefore, in the case

the court reasonably pursuant to § 109 paragraph. 1 (b). c) o. s. l., § Act. 1 and §

66B para. 3 of the Act on bankruptcy and settlement and filed under art. 95 para. 2

The Constitution and § 64 para. 4 of law No. 182/1993 Coll., on the Constitutional Court

repeal of § 5 para. 1 and the second sentence of § 8 paragraph. 3 the second sentence of the law on

bankruptcy and settlement.



II.



According to § 42 para. 3 and section 69 of Act No. 182/1993 Coll., as amended

the rules, posted by the Constitutional Court of the proposal from the Chamber of Deputies

Parliament of the Czech Republic. In its statement of 7 April. January 2002

the President of the Chamber of Deputies, Prof. Ing. Václav Klaus, PhD., States that

the present proposal is directed against the provision, which was included in the Act on

bankruptcy and settlement inserted by Act No 105/2000 Coll., amending

the Act on bankruptcy and settlement, as amended, and some

other laws, on the basis of the proposal, which the Chamber of Deputies

present Member of JUDr. Eva Dundáčková (printing). Law

was approved by the Chamber of deputies at its 24. meeting on 4 December 2002. April 2000

the text of the amendments proposed by the Senate. The provisions, which the proposal for the

cancellation refers to the Chamber of Deputies, adopted at its 21. meeting of 28 June.

January 2000 on the basis of the amendments proposed by the House of printing

219/5. The contested provisions of § 8 para. 3 the second sentence has been designed

resolution No. 74 of the Constitution Committee, printing house 219/4 that

The House of Commons at second reading took as a basis the next

discussion of the draft law. The provisions of § 5 para. 1 the second sentence was

designed as a Deputy Ivan Pilipem in the course of discussing the draft law

in the second reading as amendment to the proposal constitutionally-legal

of the Committee. With this proposal, the Chamber of Deputies voted swiftly

102 for and 45 against the present 153 members. When discussing the draft

the Act has not been challenged in the Senate provision to make any changes.



The President of the Chamber of deputies also said in its statement that 28 June.

January 2000, it was when the vote on the draft of the law on 21. a meeting of the

The Chamber of deputies present 152 members, of which for the Bill

It was 128 and 1 opposed. On 24. a meeting of the Chamber of Deputies on 4 October. April

2000, when voting on a Bill in the texts of amendments

proposed by the Senate according to the printing house 219/7 there were 181

Members, of which 98 voted for the law and was 81. With regard to the

above in the notes that the law in question in

the Senate approved the text of a transferred the necessary majority of members


the legislature, was signed by the respective constitutional actors, was

duly declared and that the legislature acted in the belief that the

the law is in accordance with the Constitution, the constitutional order and the rule of law.

The Chamber of deputies to decide on the Constitutional Court to examine the constitutionality of the

the contested provisions § 5 para. 1 and the second sentence of § 8 paragraph. 3 the second sentence

the Act on bankruptcy and settlement, and issued the decision.



According to § 42 para. 3 and section 69 of Act No. 182/1993 Coll., as amended

the rules, posted by the Constitutional Court of the present proposal and the Senate of the Czech

of the Republic. In its observations of 8 June. January 2002 its Chairman doc.

JUDr. Petr Pithart introduction notes that the present proposal is directed against

the provision, which was added to the Act on bankruptcy and settlement inserted

Law No. 105/2000 Coll. that amendment of the Act on bankruptcy and settlement

raised in the Chamber of Deputies on 28. on 21 January 2000. meeting,

and for the adoption of the draft to the vote in the ballot no 538 of 152

128 MPs and 1 opposed. The Senate Bill was

submitted on 7 December. February 2000, in accordance with the rules of procedure of the Chamber was

commanded by to discuss ústavněprávnímu Committee and the Committee for Economic Affairs,

Agriculture and transport. Constitutional Law Committee discussed the Bill of the day

February 23, 2000 and adopted a resolution to it no 159, in which he recommended

Return to the Senate a bill the House of representatives with amendments.

Also the Committee on economy, agriculture and transport in its meetings,

held on 23 December 2005. February 2000, came to the conclusion to recommend Senate return

the design of the Chamber of Deputies with amendments (resolution No. 247). In

the recap during the legislative process further in the comments

States that the Senate proposal of law discussed at their 16. a meeting of the

second term, held on 1 May. in March 2000, and its resolution

No 302 to back the House of representatives with amendments. For

return the Bill with amendments voted in voting no.

143 out of 53 senators present, 52 and 1 abstained from the vote. The Chamber

the Chamber of Deputies a Bill then discussed again on 4 April 2006. April 2000, at its

24. the meeting and in the text of the amendments adopted by the Senate to

approved by resolution No. 902, when they vote for him in the serial

number 32 from 181 members present voted in favor and 98 81 votes

against. In the comments, it is recalled that the amendments of the Senate

the relevant provisions touched only in passing, in the plane

terminology in § 5 para. 1 the word "workers" is replaced by

the word "employees".



Lodged an application for annulment to the provisions of § 5 para. 1 and the second sentence of section 8

paragraph. 3 the second sentence of the Act on bankruptcy and settlement, the President of the Senate

notes that the Senate did not find in the exemption from the payment of the deposit to the

the costs of bankruptcy in cases involving wage claims of employees

infringement of article 81(1). 9, 26 and 28 of the Charter when it shares the belief that the practice of completely

no doubt the need for increased protection for showed wage claims

employees (reflected in section 32 of the Act on bankruptcy and settlement). In

observations it is assumed that the question is whether, where the applicant is not

Unable to backup to pay, it would not be practical to transfer the obligation of

the law on persons required to file a petition for bankruptcy (section 3) so that it

pay from your, if the proposal for the Declaration of bankruptcy did not serve or

submitted out of time, or to transfer the costs associated with the activities of the administrator

bankruptcy on the body that established the administrator. In conclusion, the President of the

The Senate expresses the belief that the Senate is aware of the fact that

the contested provisions has occurred in the present case, the disproportion between interested

company on a rapid and fair during the bankruptcy proceedings, and

the administrator in bankruptcy law on the remuneration for the work you have done,

However, do not agree with the arguments of breach of article. 28 of the Charter, as an administrator

bankruptcy does not perform this activity as an employee.



III.



According to the provisions of § 44 para. 2 Act No. 182/1993 Coll., the Constitutional Court may

with the agreement of the participants to refrain from oral proceedings, if, from this

the negotiations expect further clarification of the matter. Due to the fact that the

that provision can be applied to the assessment of the case, the constitutional

the Court has requested from the parties to the proceedings, whether he agrees with the observations

abandonment of the oral proceedings. Administration of 28 June. May 2002 the President of the

the Senate 1 Ko of the High Court in Prague and the administrations of the same date also

the President of the Chamber of deputies of the Parliament of the Czech Republic of 29 January 2004.

May 2002 the President of the Senate of the Parliament of the Czech Republic expressed with

the draft of the Constitutional Court consent.



Pursuant to section 56 of Act No. 182/1993 Coll., constitutional court announces

always publicly, even in cases where, on the basis of § 44 para. 2 of this

the law refrain from an oral hearing. The Constitutional Court has established the public

the announcement of the award in this case to 16. July 2002.



IV.



The Constitutional Court first examined under § 68 para. 2 of law No.

182/1993 Coll., as amended, the law No 105/2000

Coll., amending Act No. 328/1991 Coll., on bankruptcy and settlement in

as amended, and some other laws, adopted and issued in

the limits of the Constitution laid down the competence and constitutionally prescribed way.



From the submitted Council publications and reports, as well as těsnopiseckých

representation of a party to the proceedings, it was found that the meeting, to which the law

voted, he participated in a sufficient number of members or senators.

After the Senate returned the Bill to the Chamber of Deputies, the law

approved as amended by the Senate adopted amendments. The law has been

in doing so, received the necessary number of votes (January 28, 2000 at 21.

the meeting voted for the adoption of the proposal in the vote no 538 of 152

128 MPs and 1 member was against, on 1 May 2004. March 2000 for

return the Bill with amendments voted in voting no.

143 out of 53 senators present, 52 senators and 1 Senator voting

and on 4 April 2006. April 2000 at its 24. a meeting of the Chamber of Deputies a proposal

of the Act, as amended by the amendments adopted by the Senate

approved by resolution No. 902, when they vote for him in the serial

number 32 from 181 members present voted in favor and 98 81 votes

against). The law was signed by the respective constitutional actors and

was under no 105/2000 Coll. properly declared in the amount of 32 of the laws that

was circulated on 25 April. April 2000, and according to the article. VIII effective date

May 1, 2000.



In the.



The diction of the contested statutory provisions is as follows:



The provisions of § 5 para. 1 second sentence of the Act on bankruptcy and settlement: "If

the claim of the applicant stems from the wage, the petitioner is from

payment of the advance shall be exempted except for the employees referred to in section 67b. ".



The provisions of § 8 para. 3 the second sentence of the same law: "the claims administrator

meet out of bankruptcy, and if this is not enough, from backup to

the costs of bankruptcy petitioner. "composite.



Vi.



Sense and the purpose of the Bankruptcy Act and the compensation provided for in § 1 of law No.

328/1991 Coll., as amended, is the arrangement of property

the ratios of a debtor who is bankrupt. The debtor is bankrupt, has more

creditors and if not able to for a long period to meet its debts.

A natural person who is a businessman, a legal person is bankrupt and the

If it is předlužena. Bankruptcy proceedings therefore represents

special procedure connected with certain public intervention in order to

the arrangement of the matrimonial property regimes of all actors concerned, the debtor's

the decline.



Obligatory, conceptual part of bankruptcy proceedings is the establishment of the administrator

in bankruptcy (section 8 of the Act on bankruptcy and settlement). According to the same

opinion of the case law and the doctrine of the administrator in bankruptcy is not a participant

bankruptcy proceedings; as a special body has a separate process

position as against the debtor and to the bankruptcy creditors, and cannot be

be considered representative of the bankruptcy creditors or any representative of the bankrupt (see

opinion of the Supreme Court Cpjn 19/98, published in court

decisions and opinions, no. 7/1998; K. Elias, Audition. No lawyer.

2/1995, p. 123; F. Zoulík, the Act on bankruptcy and settlement. Comment. 3.

vyd., Prague, 1998, pp. 63-70; J. Zelenka, j. M, Act on

bankruptcy and related regulations. Comment. Prague 2002, page.

159).



The doctrine of sorts of the receiver between the special public-law

authorities, and its task is to ensure that the bankruptcy of (see.

K. Elias, Audition. Lawyer No. 2/1995, p. 123; H. Hafiz, R.

Tomanek, some basic questions of the Act on bankruptcy and settlement. The right and the

business no. 10/1994, pp. 27 et seq.; Fr. Štajgr, bankruptcy law.

Prague, 1947, page 71).



The definition of doktrinárním the Constitutional Court identifies, on the basis of

aspects defining the concept of a public body. These are public

purpose and authority of the tenure. Public purpose institution administrator

bankruptcy should be seen in the acceptance of limited public

intervention in the solution of property relations, which have fallen into a crisis situation.


The method of its establishment is given by a decision of a State body (Court). His

permissions, which are enshrined in a number of the provisions of the Bankruptcy Act

compensation (§ 14, § 17 to 20, § 24, § 26 to 29), due to its

heteronomní nature (when the administrator cannot be considered as representative of the

bankruptcy creditors or any representative of the bankrupt) then represent the performance

powers (unlike the heteronomní nature of the public acts

private-legal acts-autonomous nature).



By the natural or legal person entered in the list of administrators,

established by the Court (section 8 of the Act on bankruptcy and settlement). The administrator has not yet

entitled to remuneration and the reimbursement of cash expenses (§ 8 paragraph 3 thereof,

of the Act). These amounts are then included in the costs of the bankruptcy. According to § 8

paragraph. 3 of the Act on bankruptcy and settlement claims administrator to satisfy the

in bankruptcy, and if this is not enough, from backup to the cost

bankruptcy of a compound by the applicant.



Navrhovatelovy of the General obligation to pay an advance on the costs of bankruptcy

the law establishes an exception, according to which, where it is clear navrhovatelova

the claim of the wage claims, it is the appellant from payment of the deposit

released with the exception of executives, the debtor and the people close to them

(§ 5 para. 1 of the Act on bankruptcy and settlement). Meaning and purpose of this

exceptions to this fact highlights the observations the Senate, was

the need for increased protection of wage claims of employees (which was reflected

also in section 32 of the Act on bankruptcy and settlement). The Constitutional Court is shared in this

the context of the belief of the legislature, according to which the exemption from the payment of

the advance on costs of bankruptcy and in such cases, the purpose of which was the

measures monitored by the legislature, is not in conflict with the constitutional order, from

view navrhovatelovy argument then, in particular, with the provisions of article. 9, 26

and 28 of the Charter.



Referred to the legal structure allows you to arise a situation when in bankruptcy

control is not liquidated any assets of the bankrupt estate and advance on the

the costs of bankruptcy has not been lodged, for the appellant claimant

Declaration of bankruptcy was from this obligation according to § 5 para. 1 of the law on

bankruptcy exempt as a creditor petitioning úpadcův

meet the wage claim. In these circumstances, the provisions of § 8 para. 3

the second sentence of the law nezakotvuje the next alternative source from which you can

to satisfy the claims administrator.



In this context, it should be pointed out also the development of legal provisions, bankruptcy and

the settlement, which in the amendment of Act No. 328/1991 Coll. made by law No.

94/1996 Coll. left the search policy in bankruptcy proceedings when the

the discovery of assets of the bankrupt prior to the Declaration of bankruptcy. According to the explanatory memorandum

messages to the amendment to the newly inserted paragraph 12a "the Court will not be in the future

be required prior to the Declaration of bankruptcy, the check for a range of assets, but

rejects the draft only when clearly the lack of the necessary assets ". The purpose of the

This amendment was not only achieve speed up bankruptcy proceedings, but

delete-replace function, in particular the administrator in bankruptcy court.



The question first, no longer to be answered in the case is whether the performance of the functions

the receiver constitutionally falls within a framework that is defined by the article.

9. 2 of the Charter, or article. 4 (4). 3 of the Convention for the protection of human rights and

fundamental freedoms (hereinafter referred to as "the Convention").



The reasons are not met by the article. 9. 2 of the Charter, referred to in paragraph 1

the same provision of the Charter must not be subjected to forced labour or

services. Similarly, according to the article. 4 (4). 2 the Convention shall not be from anyone

required to perform forced or compulsory labour, the "compulsory

or State requires mandatory work ", according to the article. 4 (4). 3 of the Convention not exactly

defined circuits of works and services.



To interpret the relevant provisions, and that, in the case of which the subject was

the question of the determination of the remuneration and the reimbursement of cash expenses a lawyer appointed

pursuant to section 39 criminal procedure (hereinafter referred to as "tr."), the Constitutional Court expressed the

in the opinion of SP. zn. PL. ÚS-Wed 1/96, collection of findings and resolutions

The Constitutional Court (hereinafter referred to as "the decision"), Volume 9, p. 471, and

subs. The Court held that article. 40 para. 3 of the Charter is a special

the constitutional guarantee of the right to defence, article. 9. 2 (a). (d)) of the Charter

establishes the constitutional mechanism for its security. According to him, it is not

of forced labour or service in the event of conduct imposed by law for the

protection of the rights of others. In the case of necessary defence is therefore not

forced labor, because the reasons necessary to the defence, as well as how the provisions of the

defense lawyer when you meet them they are fixed by law (paragraph 36 et seq. of the tr.

l.), and for the protection of the rights of defence (article 40, paragraph 3, of the Charter).

The provisions of article. 9. 2 of the Charter is an instrument of protection for the entire series

by its nature very different values (such as the protection of national

Defense, removal of the consequences of natural disasters, accidents, protection of life,

health or property). You can imagine the situation referred to in article. 9. 2

Of the Charter, in which to provide any refunds did not occur (for example,

in removing the consequences of natural disasters). The criterion which should be

the legislature in setting compensation for negotiations under article. 9. 2

Instrument control, therefore it is not the principle of equivalence, but the principle

of proportionality. From the point of view of the constitutional is decisive, if any

a discrepancy between the scope of works and services and replacement for touching the article. 9. 2

(a). (d)) of the Charter of the intensity of the principle of proportionality, i.e., distorting.

in a way that links the disproportionate workload to the level granted

remuneration and reimbursement of cash expenses. The Constitutional Court in this connection

referred also to analogous legal opinion when I say the European Court

for human rights in the case Van der Mussele v. Belgium (1983). On the basis of

the nature of the case, the Constitutional Court ruled out the impact of the provisions of article. 28 of the Charter to

the assessment of the case.



In the opinion of the Constitutional Court the legal opinion expressed in the opinion of the sp.

Zn. PL. ÚS-Wed 1/96 on the constitutionality of § 5 para. 1 and the second sentence of section 8

paragraph. 3 the second sentence of the law on bankruptcy and settlements does not apply. The performance of the

the function of the receiver on the basis of the establishment of the Court from the perspective

the constitutional framework of work or service imposed by law for the protection of the rights

referred to in article 22(4). 9. 2 (a). (d) of the Charter cannot be accommodated).



Pursuant to section 8 (2). 1 of the Act on bankruptcy and settlement Manager is

in principle, selections from the list of administrators, who leads the court competent for the proceedings

and the list of administrators can be written to a physical person or a public

a company only if the registration agreement. Person

included in the list of its establishment by the administrator may reject only if they are

important reasons for it. Exceptionally, the Court may set up by an administrator and the person to

the list of administrators, if unregistered with the establishment agrees. Referred to

the mechanism is provided either implicit, previously the general acceptance

Performance Manager functionality, or consent to specific for a given case. Therefore,

the performance does not meet the conditions of the absence of consent as character performance

work or services within the meaning of article 87(1). 9. 2 of the Charter, or article. 4 (4). 3

Of the Convention.



The performance of the functions of the receiver is not included in the employment

the relationship, and thus its content, as well as the purpose and sense of him showing up at all

the provisions of article. 26 of the Charter. There is no further business, or the provision of other

economic activity, and therefore cannot be classified as pertaining to the point of view of the constitutional

under the framework, as defined by article. 26 of the Charter.



If it has been accepted as a starting point the proposition, according to which the administrator

the estate included among the special public authorities, then from the

the view of the constitutional is a key question for the matter of constitutional technique

remuneration and reimbursement of the costs associated with the exercise of public functions.



These kautely are determined by the normative content, resulting from the constitutional

the principle of equality (article 1 and article 3, paragraph 1, of the Charter). In understanding

the constitutional principle of equality, the Constitutional Court [and in particular in the

findings in cases conducted under the SP. zn. PL. ÚS 16/93 (collection

the decision, volume 1, finding no. 25; promulgated under no. 131/1994 Coll.), sp.

Zn. PL. ÚS 36/93 (collection, volume 1, decision finding no. 24; announced

under Act No. 132/1994 Coll.), SP. zn. PL. ÚS 5/95 (ECR, volume 4,

find no. 74; competition no 6/1996 Coll.), SP. zn. PL. ÚS 9/95 (collection

the decision, volume 5, finding no 16; promulgated under no. 107/1996 Coll.)] with

understanding of the constitutional principle of equality, as expressed in the Constitutional Court

In the case of the CSFR SP. zn. PL. ÚS 22/92 (collection of resolutions and of the findings of the constitutional

the Court of the CSFR, page 42): "it is for the State in the interest of the security of their

features decided that a certain group will provide fewer benefits than others. Or here

However, you must not proceed arbitrarily ... If the law specifies the benefit of one

groups and at the same time lays down the obligations of the other, may be disproportionate, so

the State only with reference to public value. ". The Constitutional Court dismissed

the absolute understanding of the principle of equality, and noted: "equality

citizens should not be understood as an abstract category, but as equality

the relative, as they have in mind all the modern Constitution "(PL. ÚS 36/93).

The content of the principle of equality has moved into the realm of constitutional law by

the concept of differentiation of subjects and aspects of rights. The first aspect

sees therefore in exclusion of arbitrariness. Second, it is apparent from the legal point of view

the opinion expressed in the report in the case conducted under the SP. zn. PL. ÚS 4/95


(A collection of decisions, volume 3, finding no. 29; declared under no. 169/1995

SB.): "Inequality in social relations, in order to touch base

human rights must reach the intensity, to challenge, at least in

a specific direction, already the very essence of equality. This is usually done when the

If it is in breach of the equality and violations of other fundamental rights,

for example. the right to own property under art. 11 of the Charter, one of the

political rights according to art. 17 et seq. Of the Charter, etc. " (PL. ÚS

5/95). The second aspect in assessing the unconstitutionality of legal

the regulation establishing the inequality is therefore concerned that, based

one of the fundamental rights and freedoms. In other words, the constitutional

the Court in its case-law interprets the constitutional principle of equality within the meaning of

incidental and neakcesorické equality.



Given the diversity of purposes for the public functions of the constitutional order

do not directly kautely on sources of remuneration and payment of expenses

associated with their performance, as well as kautely for the structure

and above (e.g., pursuant to section 108 of the notary procedure in conjunction with § 11 to 14

Decree No. 196/2001 Coll. on remuneration and compensation of notaries and administrators

heritage, as amended, as a notary of the Court of

the Commissioner applies to the one who asks to perform a notarial act; the State is the

exceptionally, in the case of death). However, from the constitutional principle of

neakcesorické equality, which contains an exclusion of arbitrariness on the part of

the legislature in the case sensitivity of subjects and rights, as well as for the area of remuneration and

the costs associated with the exercise of public functions follows maximum

of proportionality.



If the purpose of the constitutionally legal provisions allowing compliant bankrupt and in

When in bankruptcy proceedings is not liquidated any assets of the

bankruptcy and advance on the costs of bankruptcy has not been made because

the appellant claimant Declaration of bankruptcy was from this obligation

freed, must then be considered a violation of the constitutional principle of

neakcesorické equality status, which is created in the legislation

the reimbursement of cash expenses and remuneration of the administrators. Compared to cases in

which has been in bankruptcy proceedings for the liquidation of assets, respectively.

payment of the advance on costs of bankruptcy, and from which administrators have been paid

cash outlays and reward, the claims administrator (reimbursement of cash expenses and

rewards) in cases of an insolvent debtor and appellant's exemption from

the obligation to pay an advance on the costs of bankruptcy are not met,

because nature is not sufficient to cover the costs of the bankruptcy. As follows

created by inequality in pay and reimbursement for costs associated with the performance of

public function is both extreme inequalities (since for one group

Administrators of non-payment of remuneration and compensation admits cash expenses) and, secondly,

inequalities, which lack any purpose and a sense of purpose and the meaning of (

the founding of the inequality and rights bodies at this point should be distinguished

causes causing such inequality). Only as obiter dictum may be

at this point, noted that, similarly, as is the case in comparable cases

(section 23 of Act No. 85/1996 Coll., on the legal profession), in these cases, the

adequate remuneration rewards and cash expenditures by the State Manager.



Because of these reasons, the provisions of § 5 para. 1 and the second sentence of section 8

paragraph. 3 the second sentence of the Act on bankruptcy and settlement find themselves in conflict with the

article. 1 and article. 3 (2). 1 of the Charter and article. 26 of the International Covenant on

Civil and political rights (hereinafter referred to as "the Covenant"), but it is not their

diction, but the gap in the law that you create. It is therefore unconstitutional

the omission of the legislature, which has the effect of constitutional neakceptovatelnou

inequality (the doktrinárnímu of the concept of the omission of the legislature see in.

Prince, the omission of the legislature as a violation of fundamental rights. Ten years

The Charter of fundamental rights and freedoms in the legal order of the Czech Republic and

Of the Slovak Republic. Eds. b. Tislav Dančák, v. Prince, Brno, 2001, pp. 144-

159).



In the case of a space with a non-genuine, the content of which is

the incompleteness of the written law (his absence) in comparison with an explicit modification

similar cases, IE. incompleteness from the perspective of the principle of equality of

the perspective of the General legal principles. Illustrations of how to resolve such

spacing is a find in case SP. zn. PL. ÚS 48/95 (ECR, volume

5, finding no 21; promulgated under no. 121/1996), in which a space created

inequalities, the Constitutional Court law arbitrary fill using the constitutionally

Conformal interpretation of the applicable statutory adjustments (the argument and minori ad

maius), with a proposal for its abolition, because his diction did not contradict

constitutional order, dismissed.



The method in use cannot be decided by things. The content of the provisions,

whose absence in the Act on bankruptcy and settlement constitutes an unjustified

inequality, is to establish a body which would pay, or source, of the

which would have to pay for the rewards and cash expenditures in the case of administrator

an insolvent debtor and appellant's bankruptcy exemption from the payment of

the advance on the costs of the bankruptcy. The standard, which would be the content of such

the provisions of the law, but about the interpretation of bankruptcy

cannot be inferred.



On the basis of all of the above reasons, the Constitutional Court came to the conclusion that

the provisions of § 5 para. 1 and the second sentence of § 8 paragraph. 3 the second sentence of the law on

bankruptcy and settlement are in breach of article. 1 and article. 3 (2). 1 of the Charter and with

article. 26 of the Covenant, wherefore the plenary Constitutional Court decided about their cancellation.

The Constitutional Court in accordance with § 70 para. 1 Act No. 182/1993 Coll. effectiveness

derogačního award postponed to 31. March 2003 to lawmakers

made it possible to present the unconstitutionality of delete.



VII.



From the constitutional maxims according to art. 9. 2 of the Constitution do not generate consequences only

for the ústavodárce, but also to the Constitutional Court. In the inadmissibility of amendments

the essential formalities democratic State also contains

instruction to the Constitutional Court, according to which any amendment of the Constitution cannot be

interpret in the sense that the result was a restriction already

formal procedural level of protection of fundamental rights and freedoms.



From this background to be considered changes that brought about the amendment to the

The Constitution, the Constitutional Act No. 395/2001 Coll., in the provisions of

article. 1 (1). 2, article. 10, art. paragraph 39. 4, art. 49, article. 87 para. 1 (b). and)

and (b)) and article. 95 of the Constitution. The constitutional entrenchment of the General inkorporační standards, and

by overcoming the dualistic conception of the relation of international law and justice

national, cannot be interpreted in the sense of removing the reference

in terms of the international conventions ratified and proclaimed human

rights and fundamental freedoms for the assessment of national law

The Constitutional Court, with derogačními consequences.



Therefore, the scope of the concept of constitutional order cannot be interpreted only in the light of

the provisions of article. paragraph 112. 1 of the Constitution, but also due to the provisions of article. 1

paragraph. 2 of the Constitution and its framework, include the famous and ratified

the international treaty on human rights and fundamental freedoms.



Indirectly for this conclusion is supported by the provisions of article. 95 para. 2 of the Constitution, when the

otherwise, it should be interpreted in the sense that, in the event of a conflict

law with constitutional law, judge of the General Court is not qualified case

assess and shall submit to the Constitutional Court, in the event of a conflict

law and treaties on human rights, which is the same constitutional

nature and quality, according to the article. 10 Constitution obliged to follow

the international treaty. No such decision was taken

any of the judicial instances, in the legal system or of judicial

precedent in quality and binding source of law should never take

possibly factual derogačních consequences. For two, its constitutional

the nature of the identical situation would the Constitution created nothing

unjustified procedural inequality, which, on the basis of the argument

reductionis ad absurdum could not be attributed to the constitutional legislators paid position purpose

the constitutional amendment.



Referred to the interpretation of the provisions of article. 1 (1). 2, article. 10, art. 87 para. 1

(a). a) and b), art. 95 and article. paragraph 112. the Constitution is the fact that

even after the adoption of Constitutional Act No. 395/2001 Coll., the legislature has not changed

the provisions of § 109 paragraph. 1 (b). (c)) of the row and section 224 paragraph. 5 tr row.,

General courts which impose the obligation to stay proceedings and refer the matter

to assess the Constitutional Court not only in case of violation of the law or its

individual provisions with constitutional law, but even if their

contrary to the international treaty, which takes precedence over the law.



For these reasons the article should be. 95 para. 2 of the Constitution to interpret in that

meaning that it is the duty of the General Court to the Constitutional Court to

the assessment also thing, in which he concludes that the law to be in the

the solution used is contrary to the ratified and promulgated

International Treaty on human rights and fundamental freedoms.



Guided by outlining considerations the Constitutional Court in the case in question did not limit the

the appellant contested the assessment of the constitutionality of the provisions of the law on

bankruptcy only on an examination of their compliance with the constitutional

the laws, but also with ratified and promulgated international treaties

on human rights and fundamental freedoms.



The President of the Constitutional Court:



in the z.. Haboob in r.



Vice Chairman