In The Matter Of The Application For Revocation Of § 175 Zpo

Original Language Title: ve věci návrhu na zrušení § 175 občanského soudního řádu

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=78469&nr=369~2F2012~20Sb.&ft=txt

369/2012 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled under SP. zn. PL. ÚS 16/12 on 16. October 2012 in

the plenary consisting of the President of the Court, Pavel Rychetského and Stanislav

Bumpkin, Vlasta Formánkové, Vojena Güttlera, Ivana Janů, Vladimir

The Crust, Dagmar Lastovecké, Jan Jiří Musil, Nykodýma, Miloslava

Excellent and Michaela Židlické on the proposal to apply to the repeal of paragraph 175 of Act No.

99/1963 Coll., the code of civil procedure, as amended, for the

the participation of the Chamber of Deputies and Senate of the Parliament of the Czech Republic as

the parties,



as follows:



I. the provisions of § 175 paragraph. 1 of Act No 99/1963 Coll., the code of civil procedure,

as amended, the words "within three days", and in the words of

"at the same time" cancels the day 30. April 2013.



II. In the remaining parts of the proposal to repeal section 175 of the Act No. 99/1963 Coll.,

Code of civil procedure, as amended, refuses.



Justification



(I).



Recap of the appellant's design



1. On time and properly filed constitutional complaint, the appellant claims that the

The Constitutional Court set aside the finding of the judgment of the High Court in Prague from 11 July.

November 2010 No. 5 Cmo 270/2010-112. Proceedings on constitutional complaints is

conducted under SP. zn. IV. TC 376/11. With a proposal for the abolition of the said

the judgment also sought cancellation of the § 175 of Act No 99/1963 Coll.,

Code of civil procedure, as amended, (hereinafter referred to as "o. s.

"), and in particular for the following reasons:



2. the regional court in Ústí nad Labem-branch in Liberec by judgment of

17 June 2010 No. 37 Cm/419/2009-84, set aside the Bills payment

Regional Court in Ostrava No. 32 Cm 76/2009-14 of 25 June. 2.2009.

The applicant filed an appeal against that judgment, the company GORASAN COMPANY

Limited, Theklas Lysioti 35, EAGLE STAR HOUSE, 6th floor, P. C. 3030,

Limassol, Cyprus, (in proceedings on constitutional complaints, the appellants Constitutional

the Court registered under SP. zn. IV. TC 376/11 the intervener, hereinafter referred to as

"the plaintiff"), appeals. On appeal to the High Court in Prague has changed

the judgment of the regional court in Ústí nad Labem-branch in Liberec so that

the Bills payment the regional court in Ostrava, no. 32 Cm

76/2009-14 of 25 June. 2.2009 maintain. In the opinion of

the appellant, the High Court in Prague ruled mainly in that judgment

contrary to the provisions of section 3 of Act No. 40/1964 Coll., the civil code, in the

as amended, contrary to the provisions of § 1, 2, 120 and 134

o. s. l., in breach of article. 11, art. paragraph 36. 1 and article. 37 para. 3 of the Charter

fundamental rights and freedoms ("the Charter"), and thus violated the right to

the appellants to a fair trial. The High Court in Prague in this

the case (but not in this case), the draw of the disputes referred to in

the appellant does not act impartially and shall be interpreted the law (especially § 120, and

134. round) intentionally malformed, completely contrary to the wording and the purpose of the

the law, contrary to the case-law of the Supreme Court and contrary to the generally

pojímanými principles of morality, justice, and contrary to accepted principles of morality.



3. Bill disputes according to the appellant, the judge in the Czech Republic only

some panels on the subject specialized and is governed by the

exclusively by the law no 191/1950 Coll., bills and cheques Act, as amended by

amended, (hereinafter referred to as "the Bills and cheques Act") and section 175 of the.

row and any other part of the civil code, the code of civil procedure, or

other laws including the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"),

Of the Charter and the Convention on the protection of human rights and fundamental freedoms for them

do not exist.



4. To illustrate the circumstances of the present case just then

the appellant in particular. States that around in 2002 to provide

FAST FINANCE, s. r. o., small loans to large numbers of clients.

The loans were repaid, according to the Treaty, so that a worker provider

loans went for every week's installment. In the course of the repayment period, however,

loan provider has stopped repayment and sent to clients

a letter stating that he decided to change the way the repayment so that clients

the money will be sent monthly by cheque. Even though the client is changing

the Treaty did not agree, the provider has stopped for the installment of the experience, and so

He brought the debtor in default. After some time, the lender filed for

order of payment for the payment of the amount due, including interest.

Because the borrowers (clients) mostly do not have any legal or

economic education, do not know how to defend itself, and finally everything paid for,

the majority, including the cost of execution. After the execution, when the executor

confirmed that the debt was paid, considered this matter for

of the hearing and most of the documents on this matter already didn't hide.

FAST FINANCE, s. r. o., waited several years (during which the

indosovala of plaintiff) and then was given a few thousand

of the actions. The vast majority of the defendants, he doesn't even know what's going on, and

is not able to adequately respond to the objections to write bills and only

he repaid the loan with accessories and that nothing was owed. The amount of about 10

EUR according to the appellant, the majority do not lend the rich and

educated people. If someone borrows an amount of $ 10,000, have at their

a lawyer nor sufficient knowledge of the law. After the delivery of a promissory note

order for payment has 3 days to get a lawyer, he has provided and

at the same time that paid him several thousand dollars as an advance. Even if it

some of the defendants to succeed, there will be another problem. Loans were

provided in 2002, claims are submitted in 2008-2009. After

so many years, the defendants no longer have a majority of the necessary documents or

don't remember exactly how the whole thing took place; a lawyer is not necessary

supporting documents for drawing up relevant objections-in addition to his mostly

This leaves one to two days. According to the appellant, the courts then issuing

judgments in which leave the Bills for payment in effect with

the fact that State the severity of exchange control and the rigidity of the law. If

already, the Court of first instance dealt with things and the Bills for payment

set aside, the plaintiff appealed, and the Supreme Court always judgment of the regional court

changed it so that the Bills payment leaves in force.



5. In this context, according to the appellant characterized the opinion of JUDr.

Zdeněk Kovaříka (judge of the High Court in Prague and leading expert on

law in the Czech Republic), for example. in the article to give evidence about the

the authenticity of the signature of the Bill of Exchange. Právní rozhledy, 2010, no. 8, p. 267-272, where

According to the appellant, in principle this author prefers the Security's holder

paper, namely the Bill of Exchange.



6. Furthermore, according to the appellant's need to recognize that the law,

how it presents the Bills and cheques Act, has been formulated in the second

mid-19th century. century and since then, underwent major changes. Reflects the

so the reality of the 19th century. century, when the Bills were used only in a relatively narrow

the categories of persons, mostly of them either directly or through

common acquaintances. Today the use of bills of exchange outside of business use

relations have spread to use mainly blankosměnek different

non-banking entities, often turning up to rogue, when are

blankosměnky used to obtain various unauthorized or fraudulent

profits and the courts their tense using the formalism of help to do so.



7. in accordance with these general context is then according to the appellant

clear that the plaintiff proceed remitent and in concert, and the Bills of Exchange-indosaci

It also means a promissory note, where it is listed as a debtor, the appellant-

just to the plaintiff eluded a causal, possibly because objections,

to avoid paying taxes (so you may have transferred a promissory note on the Cyprus

the company).



8. The appellant considers that the courts should decide impartially and not

to protect the interests of owners of securities, especially in the case that it is

clearly the immoral, perhaps even intentionally fraudulent conduct of the plaintiff and

its legal predecessor. It illustrates how the plaintiff, even if

the appellants. Remitent never has no entitlement to the payment of contractual

the fine, or any other claim. Not even against the appellant to any

due the claim and was not therefore entitled to reinsurance blank promissory note

Supplement. Still, blank promissory note added and indosoval on the plaintiff. About this

the fact no one informed the appellant, it was not a bill of Exchange

submitted or at maturity, so had no idea of its existence. In

This situation then the plaintiff filed suit, and the Court issued a bill of exchange payment

the order. While the applicant had to prepare the action, as well as the whole procedure,

for several years, the appellant has three days ago that brought an action against

-Exchange order for payment; later examination of the objections the Court

not taken into account. Because the appellant did not sign blank promissory note in question,

She didn't know at all, what's going on, and within three days had to give everything against

-Exchange order for payment claims. This is undoubtedly violated

equality of the participants in the proceedings. Therefore, in its view, need to cancel

§ 175 of the round and the draw proceedings subject to General management, to the defendant

had the chance to properly defend the application of the Bill claim.



9. in addition to the argument over the principles of Exchange Management-as

was in their leading lines just outlined-the appellant


(the complainant) general courts still complains that it have been strained by the burden of

the burden in question the authenticity of the signature on the Bill of Exchange, and that písmoznalecký

testimonial from which relied on in proceedings was of poor quality (the complainant in

for example, it discusses in detail the constitutional complaint, whether an expert within his

examination of comparable signatures were typical for the complainant or

not).



10. For all the above reasons, therefore, the Constitutional Court, the appellant

proposes to issue a finding, that the judgment of the High Court in Prague from

on 11 July. November 2010 No. 5 Cmo 270/2010-112 is repealed, and also

proposed in the meaning of section 64 or section 74 of law No. 182/1993 Coll., on the constitutional

the Tribunal, as amended, (hereinafter referred to as the "law on the constitutional

the Court ") to take the award, which cancels the provisions of § 175 of the row.



II.



The course of the proceedings before the Constitutional Court and the findings made by it from the on-demand

-keeping of



11. By order of 2 July. 5.2012 no j. IV. TC 376/11-23 concluded (IV). the Senate

The Constitutional Court concluded that the application of § 175 paragraph. 1. in

the words "within three days", and in the words "within the same period" occurred,

that is the subject of a constitutional complaint, the appellant's proposal on

annulment of the contested provisions, or only parts of it, advanced to

the decision of the plenum of the Constitutional Court according to article. 87 para. 1 (b). a) of the Constitution.



12. The Constitutional Court requested the filing documentation and called on the parties to the

proceedings, to comment on the application for annulment of the contested provisions.



13. From the on-demand-keeping of the regional court in Ústí nad Labem-

the branch in Liberec registered under SP. zn. 37 Cm/419/2009 found that

Bill of exchange payment order No. 76/2009 32 Cm-14 of 25 June. 2.2009

order the District Court in Ostrava, the obligation to pay the applicant appellant

the parity of the coin in the amount of Czk 30 751 along with 6% annual interest rate

9. 4.2008, equal to the payment of a reward in the amount of $ 103 and on

the amount of costs in the amount of $ 16880.50.



14. Against the subject-of-exchange payment order filed

the appellant timely objections (objections alone, without the help of

the legal representative). Alleged that never did not come true, or did not sign

blank promissory note on the equal sum of Czk 30 751. The promissory note is referred to by

the appellant's fraud just because of a false signature. The appellant

did not deny the conclusion of a loan agreement with the company FAST FINANCE, s. r.

about, but without any of the signature presented by blankosměnky. In addition, the loan

still is paying off. In the framework of the opposition at the same time, the appellant requested that the management

in case it was due to her residence in the transferred locally

the competent court in Liberec.



15. By order of the Supreme Court No. 4 Nd 305/2009-34 dated June 18. 9.

2009 was ordered to present case for discussion and decision

The regional court in Ústí nad Labem-branch in Liberec.



16. The regional court in Ústí nad Labem-branch in Liberec decided his

by judgment of 17 December 2002. 6.2010 No. 37 Cm/419/2009-84, they canceled the

the Bills payment the regional court in Ostrava, no. 32 Cm

76/2009-14 of 25 June. 2.2009 (statement I). Furthermore, the applicant has undertaken to pay the

the appellant, within three days from the legal force of this judgment on the reimbursement of

the costs of the opposition proceedings the amount in the amount of $ 23445.80 for the attention of JUDr. (J).

B., lawyer (statement II). Finally, that the applicant is obliged to

to pay within three days of the present judgment, the legal force of the Czech Republic-

The regional court in Ústí nad Labem on the reimbursement of costs amount

the amount of 2 870 € (statement III).



17. the substance of the then Krajský soud v Ústí nad Labem-branch in Liberec

the extensive grounds, in particular, stated that according to the conclusions of the expert opinion

It is a questionable signature on the original Bill in question with great

likely the appellant's signature. Nevertheless, he found an objection

the appellants regarding the authenticity of the signature bills reasonable.

Písmoznaleckým examination of the Court be say also the categorical

conclusion building outside of any doubt as to whether the signature is under consideration or

It is not right, spontaneous signature of a person. Categorical conclusion yet

in the present case, the expert said so, according to the regional court and the

Yet, in its opinion, the Court found sufficient high-quality comparative

material.



18. therefore, the District Court concluded that there was no evidence in the proceeding, that

the signature on the Bill of Exchange, raised by the objection of iniquity signature bills

concern over the authenticity and veracity of the promissory note as a private Charter, was with

confidence right the appellant's signature. In this situation, the Court

He found the appellant's objection as an entirely reasonable and contested bills

payment due to this fact, using the provisions of § 175

paragraph. 4. in its entirety.



19. If the appellant according to the regional court in their objections

It refers to the fact that it has with the company FAST FINANCE, with.

r. o., an undisclosed contract on the loan without any

the signing of the blankosměnky submitted, then the Court such opposition claims

reviewed by vague and neprojednatelné, because of the objection

was not at all obvious, according to the regional court controversy with the submitted

Bill of Exchange. In this situation, when defendant denied the authenticity of the objections

signing the promissory note is submitted from the rest of the objections clearly, effectively

did not claim a specific feature of a bill of Exchange (either cash or locking) to

Any unspecified the loan agreement concluded with

FAST FINANCE, s. r. o., i.e. body distinct from the applicant, in addition

also, neither did not claim and nekonkretizovala contents of the causal relationship. As follows

Therefore, the regional court objection conceived assessed as completely open ended and

neprojednatelnou, if the arguments mentioned by the Court is not clear, what would

at all should be the subject of proceedings for such objection. For completeness, the regional

the Court in the grounds for its decision even said that, if the parties

the legal representative, the appellants were within the oral proceedings in the case

day 10. 12.2009 raised further objections, then a regional court to the

objections from seeing having regard to the provisions of § 175 paragraph. 4. s. l.,

Since that objections have been raised after the statutory three-day time limit

for filing an opposition.



20. the plaintiff decided to appeal to the High Court in Prague, by its judgment of

on 11 July. 11.2010 No. 5 Cmo 270/2010-112 so that changed the prvostupňový

judgment, when the Bills for payment the regional court in Ostrava, j.

32 Cm/76/2009-14 of 25 June. 2.2009 maintain (statement I).

The statement (II) determined the appellant to pay the applicant for compensation

the costs of the proceedings before the courts of both degrees 17 380 CZK to three days of legal

the power of this judgment to the attention of the legal representative of the applicant. Statement III

Finally, the appellant undertook to pay the Czech Republic, the regional court

in Ústí nad Labem-branch in Liberec on pay the costs 2 870 Czk

within three days of the legal force of this judgment.



21. According to the High Court--at least how it is served from the grounds of his

decision-it is certainly possible to state categorically whether the signature on the

Bill of Exchange is or is not true. However, a categorical conclusions in terms of voicing

the authenticity of the signature of renowned experts, according to High Court

practically do not occur. A regional court in doing so obviously didn't come out of it

the above-mentioned report as a whole. Evaluation of the Court of first instance can be

in particular, the expert opinion shall be considered one

party for a consistent and an expert according to the regional court, logically and

convincingly justify your conclusion, but on the other hand, the District Court

expert opinion did not consider the evidence conclusive, though here it was just

a slight degree of improbability of the authenticity of the signature of the appellant.

The Court of appeal therefore does not share the Court of first instance that the defendant

the appellant raised objection to defend herself against the iniquities of the signature

obligations imposed on her a bill of exchange payment, because the signature on the

the promissory note is with high probability its signature. What, however,

as regards the other objections to the appellant, these have been based on the High Court

the regional court correctly assessed as uncertain, or delayed,

Therefore as a result neprojednatelné and conceptually ineligible to reverse

the obligation to fulfil the order for payment of the Bill.



22. the Senate of the Parliament of the Czech Republic, as a party to the proceedings in his

comments on the draft proposal of the complainant recounted in particular

(the appellants). Also noted that, although the proposal formally requests the cancellation

the entire section 175 o. s. l., from the content administration, according to the Senate of the Czech

States shows that a constitutionally questionable, in particular, should be a time limit of three days to

oppose-exchange order for payment. To do this, then in particular

The Senate of the Parliament of the United Kingdom pointed out that none of the amendments related

the law of the provision [No 519/1991 Coll. (effective from 1 January 2005. 1.

1992), Act No. 237/1995 Coll., Act No. 30/2000 Coll. and Act No. 7/2009

SB.] neaspirovala on the conceptual change regulation Bill (cheque)

order for payment. However, 18. 5. the present Government Of 2012

House of Commons of the Parliament of the Czech Republic a draft Act amending the

the civil procedure code and some other laws (the print number 686,

first reading of the draft law is included on the agenda of the fortieth session

The Chamber of deputies of the Parliament of the United Kingdom beginning with 5. 6.2012),


which is the word "three" in the sense of the current wording of § 175 paragraph. 1. s. l.

replaced by the number "8" with the fact that the period of three calendar days, it appears

too short-the borrowers cannot on the bills issued by the (check) payment

the order to adequately respond. At the same time the President of the Senate of the Czech

the Republic has expressed agreement with the abandonment of the oral proceedings within the meaning of §

44 para. 2 of the Act on the Constitutional Court.



23. The Chamber of deputies of the Parliament of the Czech Republic, as a party to the proceedings

in its observations on the draft merely zrekapitulovala the legislative process,

from which the amendment with regard to § 175 of the row emerged. In this condition

Therefore, you cannot, according to the Chamber of deputies of the Parliament of the United Kingdom than

to express the opinion that the legislature was convinced of conformity

novelizujících mentioned laws with the Constitution and laws of the United

of the Republic. The assessment of the constitutionality of § 175 of the row is so fully on the constitutional

the Court. In conclusion, the answer to the proposal, President of the Chamber of Deputies

Parliament of the Czech Republic expressed its consent with the for the Chamber of Deputies

abandonment of the oral proceedings within the meaning of § 44 para. 2 of the Act on the constitutional

the Court.



24. The appellant in its reply to the observations of the parties, in particular

It stated that section 175 of the row is applicable (except for a three-day period) for

"the classic bills of Exchange". The blankosměnek is the situation according to the appellant

different in that the defendants often do not know why it was supplemented by the Bill of Exchange

(if at all they know of its existence). If blankosměnek is not

According to the appellant only she's questionable three-day time limit, but also the concentration of

procedure laid down in paragraphs 1 and 4 of the statutory provisions under consideration;

the defendant does not know anything about Bill and in three days has put everything

against-Exchange order for payment claims. For this reason, the appellant

insists that the Constitutional Court annul the entire section 175 of the row at the end of your

a replica of the appellant agreed with the abandonment of the oral proceedings in the

the meaning of section 44 para. 2 of the Act on the Constitutional Court.



25. From the oral proceedings, the Constitutional Court in accordance with § 44 para. 2 of the law on

The Constitutional Court, as the Court concluded that, since it could not be

expect further clarification of the matter, and the parties with the abandonment of

the oral proceedings agree.



III.



Petit design and wording of the contested legislation



26. The appellant seeks the annulment of the proposal section 175 o. s. l., as

the text of the. The provisions of § 175 of the row is added:



"(1) if the plaintiff in the original of the Bill of Exchange or cheque whose authenticity

There is no reason to doubt, and other documents necessary for the application of the law, it shall issue

at his suggestion the Court bills for payment (cheques Act), in which the defendant

stores within three days to pay the required amount and the costs of the proceedings, or

in the same period, in which the opponent must give everything against

order for payment claims. The Bills (cheques Act) for payment must be

delivered to the hands of the defendant. If the application for a

order of payment accepted, the Court shall authorise negotiations.



(2) the provisions of § 174 para. 4 shall apply mutatis mutandis.



(3) if the defendant fails to file a timely objection or taking them back, the Bills

(cheque) payment order effects of the final judgment. Late filed

objection or objections, that do not contain the preamble, the Court rejects. Filed by

even if the Court rejects the objections, if is the one who the opposition

is not entitled to.



(4) where a defendant's objections, the Court will order their discussion

the negotiations; later raised objections, however, can no longer be taken into account. In

judgment of the Court will, whether the Bills (cheques Act) payment leaves

in effect, or whether it be deleted, and to what extent.



(5) where an objection by the defendant, the Court by order opposition

stops; the negotiations do not have to order.



(6) the appeal only against the operative part on costs is

appeal. "



To just let it be taken referred to note:



27. how to design the complainant from the recap (appellants)

the existing course of the proceedings before the general courts, it is clear that the Centre of gravity

This decision is a bill of Exchange, or its modification process and

the substantive. However, in terms of both historical and

legislatively-technical exchange-adjustment in the legal order of the Czech

States in this respect is no exception-accompanied by a cheque, even though its

usage is currently much less common and somewhat narrower;

the check shall be used only as a means of payment. Despite being

referred to-and even considering the diction of a Chamber of the Constitutional Court

the statutory provisions under review-this decision affects the

(at least formally) also check. This is reflected in the overall concept of this

the decision, which is against the Bill and defines the erosion of her edit-

Furthermore, it would not be proper, having regard to the application practice

apply the conclusions of the Constitutional Court in this decision taken without further

even on the check-however the implications of the Constitutional Court's deliberations have reasonably impact

on the adjustment of the cheques law, although this will not always be a priori emphasized.

Legislature chosen legislatively-technical solution is a party

full separation of the two securities somewhat limiting.



Terms of locus standi of the appellant to file an application



28. as already mentioned above, the appellant filed an application for annulment

of the cited provision, together with the constitutional complaint pursuant to section 72 and

following the law on the Constitutional Court. Its locus standi is so

based on the provisions of § 64 para. 1 (b). (e)), or section 74 of the Act on the constitutional

the Court. In accordance with these provisions, therefore, the Constitutional Court had to first

to examine whether the conditions for the submission of such a proposal in the case of

the complainant (appellant) met. Appellant to the constitutional

nekonformitě the provisions of § 175 of the row in the constitutional appeal explicitly

States: "while the applicant had to prepare claims for several years, the defendant

[read the appellant-noted the Constitutional Court] has three days to

-Exchange payment order against objections, and later lodged in

the opposition of the Court shall be disregarded. Because the defendant in question blank promissory note

signed, not knowing at all what's going on, and within three days had to give

everything against-Exchange order for payment claims. This is undoubtedly

infringed equality of the participants in the proceedings. Therefore, it is in my opinion the need

to repeal section 175 CCP and the draw of the proceedings, to submit to the General management

the defendant had the chance to properly defend the application of the Bill claim ...

If someone borrows an amount [of about ten thousand dollars], probably does not have its

a lawyer nor sufficient knowledge of the law and after the delivery of a promissory note

order for payment has [three] days to [the advocate's got] and

at the same time, that [it] got a few [thousand dollars as an advance]. " In

constitutional complaints against the contested decision (this is of course on the constitutional

the complaint to the Constitutional Court under the registered SP. zn. IV. TC 376/11)

the relevant part of the grounds, inter alia, it says: "the Court of appeal therefore

does not share the Court of first instance that the defendant raised objection

the iniquities of the signature of the obligations imposed on her, she resisted the Bill of exchange payment

command. Otherwise as regards the other opposition claims, the Court of first

the degree of such claims properly assessed as uncertain, or

delayed, and as such, as a result, neprojednatelná, conceptually

the obligation to fulfil from unsuitable reverse promissory notes for payment. "

The High Court thus follows on from the judgment of the regional court in Ústí nad Labem-

the branch in Liberec, when this in its decision. said: "If the

the defendant further in their objections, referred to the fact that it has

with FAST FINANCE, s. r. o., an undisclosed contract on

the loan without any sign presented by blankosměnky, then the Court

such opposition claims as vague and neprojednatelné, when

from that objection is not at all obvious controversy with Bill of Exchange. For

situations in which the defendant denied the authenticity of the signature on the objections on the

submitted by Bill of Exchange, is from the rest of the objections clearly, in fact, do not claim

a specific feature of a bill of Exchange (either cash or locking) to any closer

NES the loan agreement concluded with FAST FINANCE,

s. r. o., therefore the body in addition, distinct from the applicant, and the other is not

do not claim and does not specify the contents of the causal relationship. Follow these steps to complete

Therefore, the objection the Court as completely open ended and neprojednatelnou, when

of objection it is not clear what would be the subject of proceedings for such

opposition. " Speak to in this context, both the courts of the defendant's objections-

the appellant's reference to objections to the appellant (then

still legally nezastoupená) sent to District Court, responding on

the lessons contained in the note of the regional court in the order for payment procedure

Ostrava, Czech Republic from 25 October. 2.2009 No. 32 Cm 76/2009-14. The appellant in them

in particular, said: "the defendant never has not even signed on 18 July 2005. 12.

2001 in Lower Hermitage blank promissory note on equal the sum of Czk 30 751, whose

very bad copy was sent to the defendant as an annex to the Bill

order for payment. Referred to the Court is passed blank Bill scam

because it is a blank [o] shifts [k] in the overall, spoofed, and not only from the


the reasons for the false signature, which certainly deny the ... Defendant does not dispute

that it has with the company FAST FINANCE, s. r. o., Hradební 9/768,

Prague 1, a loan agreement, but without any sign of the above

submitted by blankosměnky. In annex I of the Court a copy of the postal

the vouchers, which prove that the loan in question I'm paying. "



29. According to settled case-law and literature (cf. Wagner, for all

E. et al. The law on the Constitutional Court commented. Prague: ASPI 2007, with.

367 et seq., and the Prince, constitutional complaint. 3. vyd. Prague: Linde,

2005, s. 230 et seq. with the links referred to in the judikatorními)

appellant may propose to cancel only a prescription

(each of its provisions), the application of the occurrence of the event

that is the subject of a constitutional complaint, i.e.. on the basis of which it was issued

constitutional complaints against the contested decision of the public authority. This

the condition is, in the opinion of the Constitutional Court as to

It follows the quote just made, as well as the nature of the proceedings before the General

the courts, of which the constitutional complaint, the contested decision, the

the provisions of the law was applied in the matter and according to the beliefs of the constitutional

the Court is its application capable to affect the right to a fair

the process-how it happened in the case of the appellants-and for the reasons

to which the appellant itself in the constitutional appeal points out explicitly and

that will be detailed below.



30. Beyond just that then the Constitutional Court in this connection

refers to its own case-law [cf. appropriately e.g. find

The Constitutional Court, SP. zn. II. TC 3168/09 of 5 November. 8.2010 (N 158/58 SbNU

345)], according to which justice must be always present in the process of establishing

is interpreted and applied the law. This is true even though the notions of

of justice are only a man like psychofyzickému,

historical and social phenomenon and only a person with regard to the

the complexity of your consciousness and historical continuity it can construct,

question or also gradually implement. It does not change or

the fact that ideas of justice were widely abused for the largest

crimes. Indeed, if in the historical and social development of humans

the idea of identifying justice prevailed with destruction, the whole human

the company would have long since disintegrated. It can therefore be concluded that, while certainly not

simply define what is fair and what is not, a starting point

Perhaps, after all, lies in the progressive analysis of konfrontované with the already

referred to the historical and social consciousness. Vladimír Čermák when

such considerations here parafrázovaných [cf. Cermak, in Question.

democracy. 4) values, standards and institutions. 1. vyd. Olomouc:

The publishing house Olomouc, 1998, pp. 156-157 (248)], for example,

that "[from] and evident date justice [is] meant to generally be considered

the principle of neminem leader... ".



31. the Mentioned starting points are, in the opinion of the Constitutional Court must

even in the evaluation of the appellant's own locus standi. How

It can be seen from the above recapitulation, specifically namítaný contradiction

the contested provisions with the principle of legal equality of participants in

part of her argument based on, in particular, from the three-day time limit referred to

(see also below). Indeed, this conclusion follows also from the replica

the appellant made to the observations of the parties to the proceedings, though formally here

suspended over the principle of concentration expressed in paragraphs 1 and 4

the contested provisions, in particular in connection with blankosměnkami;

However, this is in a way that forces the principle of Exchange (cheques)

the debtor include everything of opposition argues Rails again

a preview of that period-cf. diction to the appellant: "[While]

common bills [směneční borrowers know] promissory note which it is ...,

blankosměnky the situation is different. According to the [law, promissory notes and cheques]

should remitent or his legal successor of a duly submit the Bill when you

the due date for payment, but the practice is such that the owner of the promissory note shall

right of claim and the courts equal to this practice permits that action

the owner of the Bills of Exchange presented the Bill applied to paying the way of Bill of Exchange

of the action. The defendant, however, this procedure gets into an unequal position.

[The defendants often do not know] reason, equal to the sum of replenishment or maturity

bills of Exchange. And during the [three] days [to] submit objections, in which it must provide all

what opposition [argue], [as] a later examination of the

the opposition cannot be taken into account. " The said time limit, the appellant is challenging and

still, the objections in a timely manner, at least formally apply, and even managed to

so, that one of these objections was based on reviews of the Court in proceedings relating to

leaving the Bill for payment in effect projednatelná

(the signature of the appellant on the claim of iniquity the Bill of Exchange).

Thus the Constitutional Court weighed whether the appellant and in this situation may

unconstitutionality of section 175 of the row should be inferred from this its subcomponents.

He came to the opinion that it should be inferred. The opposite conclusion would be

not for your precise formalism sustainable. Meant by that

the appellant would have been required in the process, even if the

the requirements of § 175 of the attempted s. r. as the defendant failed to comply with

to live up to, and, subsequently, by, for example, without further argued the brevity of the laid down

the time limits. Such an approach would, of course, by the Constitutional Court not only nothing

did not specify with absurdností vicious circle Title XXII Joseph Heller's, when

also, strictly speaking, such a situation could be a constitutional complaint

evaluated as inadmissible pursuant to section 75 of the Act on the Constitutional Court,

Moreover, if it was not considered to be "fiction dispute", respectively.

"collusive case"-cf. to do this, Philip, J. Selected chapters to study

constitutional law. vyd. 2., add. Brno: Masaryk University, 2001.

391-392 (s. 458). Finally, such an approach would in effect mean

limitations control standards; in terms of being present

case [i.e. not under the control of constitutionality under the abstract

the provisions of § 64 para. 1 (b). a) and b) of the Act on the Constitutional Court], so

unconstitutionality in question period could consider, in addition to the competent Chamber

The Constitutional Court in connection with the decisions on the constitutional complaint

only the Court, if, for example, would issue a bill of exchange for payment, and

Instead, it acted in accordance with art. 95 para. 2 of the Constitution. Such

restrict the ability to initiate constitutional review by the Constitutional Court, however, standards

According to the Constitutional Court finds no support either in the Act on the Constitutional Court, or in the

the constitutional order of the Czech Republic and in particular from the perspective of the seen

the appellants would have been seen as Vladimir can be Čermákem mentioned

evident contradiction with justice. If, therefore, approached the Constitutional Court

This restrictive interpretation, the generally accepted moved away

spravedlnostním ideas and find myself on the cusp of life would be stolen

Ivory tower.



In the.



The constitutional conformity of the legislative process



32. the Constitutional Court also in accordance with § 68 para. 2 of the Act on the constitutional

the Court examined whether the Act (each of its provisions), for which

the appellant argues that the unconstitutionality of the provisions was adopted and issued

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

The contested provision was part of the original text anymore of the civil

Code of civil procedure of 1963. Assessment of the legislative process in relation to

the original version of the law would mean to assess compliance with the already

invalid constitutional provisions in force at the time of the adoption of the law. Building on

from section 66 paragraph 1. 2 of the Act on the Constitutional Court, according to which is inadmissible

the proposal, if the constitutional law with which it is according to the proposal under review

prescription in violation, easily before delivery of the draft of the Constitutional Court

validity, so the Constitutional Court States that in the case of legislation

issued before the entry into force of the Constitution on 1 May 2004. January 1993, shall be entitled to

review only their content compatibility with the current constitutional

policy, but not the constitutionality of the procedure of their creation and observance of the

regulatory competence [cf. to reasonably award of the Constitutional Court of the

27 June 2002. October 1999, SP. zn. PL. ÚS 10/99 (N 150/16 115 SbNU; 290/1999

SB.)]. For this reason, the Constitutional Court assessed the mentioned procedure only

in relation to amendments changing the original provisions, i.e. the law No.

237/1995 Coll., to Act No. 30/2000 Coll. and Act No. 7/2009, Coll. of

the relevant Council publications and data on the progress of the vote found that

an amendment changing the contested section 175 o. s. l. were received while observing the quorums,

laid down in article 4(1). paragraph 39. 1 and 2 of the Constitution, the duly signed by the competent

constitutional factors and promulgated in the collection of laws; were therefore released

The Constitution, in the prescribed manner and within the limits of the Constitution laid down the competence.



Vi.



Custom design assessment



33. The Constitutional Court dealt with the hardened nature of the contested provision,

the principle of equality of the participants within the meaning of article 3(1). 37 para. 3 of the Charter, which is

as such, part of the right to a fair trial. He came out of that

the principle of equality of the parties is enshrined in article. paragraph 96. 1 of the Constitution and

as a subjective right is declared in article. 37 para. 3 of the Charter.

Is one of the basic principles governing judicial proceedings must


be put on hold. In so doing, reflects the fact that the interested parties (the parties)

You must stand before a court in a flat position, without one or the other

the party however an advantage. The law must therefore ensure that all parties to the dispute

the same opportunities to exercise their rights; all participants must give

the ability to realistically and effectively act in court proceedings, in particular the

to comment on the claim by the opposing party, as well as to make proposals and evidence

so on (see, mutatis mutandis, the finding of the Constitutional Court of 16 December. 6.2011

SP. zn. III. TC 3379/10, available at http://nalus.usoud.cz). Through

continuous implementation process permission from all participants

Indeed, the management realizes their individual right to equal status in the

the framework of legal proceedings. If you are the legal conditions laid down by the standard

realization of procedural privileges of any of the participants nedůvodně

truncated, it violates the fundamental right to a fair účastníkovo

process.



34. In these terms, however, the Constitutional Court took into account that the first

If in the consideration of constitutional interpretation of the contested provisions, has

This takes precedence over its abolition [cf., for example, to find the full

The Constitutional Court of 29 June. 9.2010, SP. zn. PL. ÚS 16/08 (N 203/58 SbNU

801; 310/2010 Sb.)]. This procedure, based on the principle of minimizing the

interference with the activities of other public authorities, the Constitutional Court took in

consideration in the present case. The appellant with its proposal in

pursuant to section 74 of the Act on the Constitutional Court requested the cancellation "§ 175 CCP [and

subordinate] Bill [him] control ... General management, that the defendant had

the ability to properly defend the application of the Bill of the claim ". The protection of the

constitutionality-precisely because it is existenciálně associated among other things with that

minimizing intervention-but treated well in an actual interference (if it is not

constitutional interpretation possible) whether the decision of the public authorities,

or legal regulation (its individual provisions) restrictively [cf.

to do this, for example, the finding of the Constitutional Court, mutatis mutandis, of 9 December 1999. 2.2011 sp.

Zn. IV. TC 1521/10 (N 15/60 SbNU 153) or finding of the Constitutional Court of the

8.10. 1996, SP. zn. PL. ÚS 5/96 (N 98/6 SbNU 203; 286/1996 Coll.)]. Therefore,

the Constitutional Court had to consider whether it is the cited provisions of the civil

Code of civil procedure which makes it impossible for en bloc-that is, whether, and if so,

so why-of-Exchange debtor to defend their rights. When these considerations

While he could not disregard the special nature of the Bills of Exchange and promissory notes of the proceedings,

that as much as possible (at least in the current legislation) takes into account the

the properties of the promissory note as security-its orbital nature; her

easy transferability constitutes one of its most typical (and

also search) properties (cf., for example, in all

Smith, from the evidence of authenticity to the signing of the Bill. Právní rozhledy,

2010, no. 8, p. 267-272). This property, together with its liquidity

After all, it was at the very birth of the Bills of Exchange [cf. Smith, of this Bill of Exchange.

and check in the Czech Republic. 6. přeprac. and extension. vyd. Prague: C. H. Beck,

2011.1 et seq.. (642)]; Therefore, it would be-without the requirement to submit

a more detailed historical analysis-according to the Constitutional Court a reasonable

make the Bills a completely general civil proceedings, since it would of

This paper has become a kind of "IOU". Indeed, neither

the appellant his constitutional argument in this direction too

deeper stick things out (and even within their replicas to the observations of the parties

control). On the contrary, the constitutional complaint may be in this context, in accordance with the constitutional

of the Court to interpret the so (indeed, i mentioned the findings of the

-keeping of the regional court in Ústí nad Labem-branches in

Liberec, SP. zn. 37 Cm/419/2009-cf. top-so), that

the fact that ultimately caused the violation of the basic

the appellant's rights to a fair trial (and the involved),

the three-day time limit is vzpomenutá by the appellant within the meaning of § 175 paragraph. 1.

with the row specified by the legislature to the opposition. From above rekapitulovaných

part of the reasoning of judicial decisions in this connection according to

The Constitutional Court, it is apparent that the appellant in their objections, she

the absence of a reply within the causal claims defense. Regional Court

However, this objection to-the Court held that "[while the defendant]

objections referred to the fact that it has with the company FAST

Finance, s. r. o., an undisclosed contract on the loan without

any sign the blankosměnky, [However, submitted such opposition

claims court] as vague and neprojednatelné, when out of the said

the opposition is not at all obvious controversy with Bill of Exchange. " With this

evaluation-that is, that it is the objection of delayed and vague-in your

constitutional complaints against the contested decision fully identified and the High Court:

"The Court of appeal therefore does not share the Court of first instance that the defendant

raised objection to the iniquities of the signature requirement, imposed on her mind

Bill of exchange payment. Otherwise, [but] as far as the rest of the opposition

claims, Court of first instance correctly considered such claims as

indeterminate, or delayed, and as such as a result

neprojednatelná, conceptually unsuitable reverse obligation to fulfil the

promissory notes for payment. " Just the facts described while

touted question-and the rapporteur to do it in a constitutional complaint even in replica

explicitly points out (cf. her claim that she didn't know what's going on, and

during the three days she had to give everything against-Exchange order for payment

replies)-whether in a situation where a bill of Exchange is no longer working merely as just a

the Institute used by professionals, but is also used in circumstances

in particular, the Bill of Exchange when the debtor is a natural person, that the Bill

the relationship has not entered with the intention of commercial or professional

activities, the time limit is three days.



35. The Constitutional Court is the issue of time limits and their linkages with

constitutional guarantees examined repeatedly, even in the context of proceedings for annulment

laws and other legal acts; Let there be in this context

recalled that the task of the Constitutional Court in this type of proceeding is to assess the

the constitutionality of the contested legislation or their designated parts,

Alternatively, it is possible to assess whether the contested regulations to interpret and

applied constitutionally Conformal manner.



36. Thus, as shown in the previous parts of this reasoning is

The task of the Constitutional Court to assess whether a three-day period gives-Exchange

the debtor, whatever its position in a particular Exchange relation

any, the real possibility that it can-especially with regard to the specifics of the

Exchange Management-hover qualified objection, i.e.,. order within the meaning of §

175. r. stated everything opposition argues. When you search

the answers to this question should be according to the opinion of the Constitutional Court in the first place

come out of the meaning and purpose of existence of the Law Institute of the period. To do this,

the Constitutional Court has stated that "[it] is to reduce

entropy (uncertainty) in the application of the rights or powers, time

limitations the State of uncertainty in legal relations (which plays, in particular,

an important role in terms of the taking of evidence in cases of disputes), speeding up

the decision-making process in order to achieve the intended objectives of the real. These

the reasons have led to the introduction of time limits already thousands of years ago "[cf. find

The Constitutional Court of 17 May. 12.1997, SP. zn. PL. ÚS 33/97 (N 163/9 SbNU

399; 30/1998 Coll.)]. The scope of the constitutional review of the statutory provisions

zakotvujících time limits then the Constitutional Court had defined in finding SP. zn. Pl. ÚS

46/2000 of 6 September 2000. 6.2001 (N 84/22 SbNU 205; 279/2001 Coll.), which stated,

that under the control of constitutionality "may only interfere with the unconstitutional provisions,

or their parts, but it is not his job to reparovat consequences

occurred by the petitioner has failed to assert his right within a specified period.

Interference-limits violates the principle of the rule of law, as it significantly interferes with the

the principle of legal guarantees, which is one of the basic requirements

the current democratic legal systems. The time limit cannot of itself

be [by the Constitutional Court], unconstitutional. You may, however, appear as follows, with the

in the specific circumstances. " The unconstitutionality of the period can be

found only in the dialogue with the specific circumstances under consideration things

[cf. the finding of the Constitutional Court of 13 July. 12.2005, SP. zn. PL. ÚS 6/05 (N

226/39 SbNU 389; 531/2005 Coll.)]. These circumstances, in accordance with the constitutional

of the Court are:



1. The inadequacy of the (disproporcionalita) the time limits in relation to the time it

the limited scope for constitutionally guaranteed rights (right),

as defined by time constraints of a subjective right.

The Constitutional Court here refers to the find SP. zn. PL. ÚS 5/03 of 9 June. 7.

2003 (N 109/30 SbNU 499; 211/2003 Coll.) a cancellation provision of section 3 and 6 of the Act

No 291/2002 Coll., on the transition to some other things, rights and obligations

The United States on the regions and municipalities, civil associations working in the field of

physical education and sport and related changes and amendments to the law No.

157/2000 Coll., on the passing of some of the things, rights and obligations of the assets of the United

Republic, as amended by Act No. 10/2001 Coll., and Act No. 20/1966 Coll., on


care for the health of the people, as amended, was

a disproportionate restriction of ownership rights under art. 11 of the Charter, as

It prohibited by article. 4 (4). 4 of the Charter-in the present case, it was the

restrictions on the right of use of territorial self-governing units to which they obtained

immovable property. A court then considered constitutionally compliant in

rozhodovaném the context of such legislation, which would limit this

was based only in very necessary time range, but not the period

ten years of age.



2. the Arbitrariness of the legislator when determining time limits (its anchoring or

cancellation). Within the meaning of this perspective, the assessment of the constitutionality of the period

the Court in the matter proceeded to TechCrunch.com. PL. ÚS 2/02-the discovery of 9 June. 3.2004

(N 35/32 SbNU 331; 278/2004 Coll.), which described the cancellation of the unconstitutional

there cited the provisions of the civil code, whereby the legislator intervened

to the legitimate expectations of the exact heading of the subjects just one

the day before the expiry of the period within which an acquisition of property

rights.



3. the Constitutionally unacceptable inequality of two groups of subjects, which is

the result of the cancellation of certain legal conditions for the application of the law

the unconstitutionality, while cancellation for the operators

as a result of the expiry of the time limits already as a result of derogation without further option

the application of the rights does not open-cf. This additional removal of permanent

for the application of restitution claims and the associated adjustment of time limits:

find SP. zn. PL. ÚS 3/94 of 12 April. 7. the 1994 (N 38/1 SbNU 279; 165/1994

SB.)



37. building on these in the past spoken argument, which are even now

applicable, i.e. the Constitutional Court notes that the period in question as

such cannot be unconstitutional. It is for consideration whether the legislature and what

the deadline for the implementation of the law. It is not even disputed.

Or the period, however, cannot of itself be referred to the Constitutional Court

fundamentally the reason for its cancellation. Conclusion on its constitutionality can be (not)

take leda after evaluating other contextually operating circumstances.



38. In accordance with the considerations set out above, therefore, the Constitutional Court weighed whether

the three-day period mentioned is not excessive, if not based an unjustified

inequality of several groups of subjects and whether the legislature has not defined

arbitrarily. In the context of the constitutional law of the appellant's argument, already

You can concentrate to the claim that the Institute of Bill of Exchange and promissory notes of the proceedings is

in cases of consumer relationships (especially when there are economic

bodies providing people in difficult situation, financial resources)

used totally inappropriately (or abused); is used to ensure that

in particular, consumers (cf. the concept of "consumer" also later)

drawn into the structures and thus created could be those which originally

looking for help, economically "for" or "vytěžováni".



39. Bill of Exchange and Bill of exchange control to its predecessor in Roman

abstract contracts that provide benefit to the creditor

a strict law-stricti iuris. This procedural regime did not allow judges

take into account the secondary circumstances and examined the only formal correctness

the concluded contract. Therefore, this manual can be partial (General)

Kovařík, Zdeněk Kovaříka's finding of [Bill of Exchange and cheque in the United

Republic. 6. přeprac. vyd. Prague: c. h. Beck, 2011, p. 1 et seq.. (642

with.)], that the Charter attesting to the debt of the issuer have their origin in the

pradávnu, even if the author just cited historical psychoanalysis Bill

the issue itself is highlighted by in particular the Crusader war and trade them

the invoked, which according to him, stood at the birth of Bill-Charter characteristics

bills of Exchange are then levelled off among traders from 12. of the century. The specifics and

properties associated with them (Bill of exchange payables are direct, abstract,

unconditional, they show a great deal of formal rigor), Bill remained

Basically this day; Moreover, it corresponds to how the current substantive editing

the Bill of rights in the Czech Republic (i.e. bills and, in particular,

cheques Act), which directly stems from the unifikující Convention on the uniform law

the note, the so-called. Convention on the conflicts of laws and the Convention on bills of

fees (all three documents were signed June 7, 1930 in

Geneva), as well as modifying the process contained in the code of civil procedure, that is,

specifically, in his the provisions of § 175 of the row, that from the time of effectiveness of the

Code of civil procedure (that is, from 1. 4.1964), underwent deeper

changes, and even the parties in question period, which is still the three-day. In

explanatory note No. 1) to the law-of-Exchange and cheque [cf.

Assembly print # 528, the National Assembly of the Czechoslovak Republic,

1948-1954, the explanatory memorandum-i. General part] is in its

introductory passages reads: "... the Czechoslovak Republic is one of the

States which have signed the Convention. To the conventions also approached the Soviet Union,

who took over the Geneva law already in 1937, and the States of people's

democratic, such as. Poland and Romania. A bill of Exchange is still in

international economic relations used as resource credit,

the check as a means of payment. The adoption of the Geneva text makes it easy to

international economic relations, since it removes the possibility of conflict

arising from differences between national legislations.

Therefore, even if in our economy, to the construction of socialism

Bill of Exchange and check lost in the establishment of paying without cash your

an earlier meaning, it is necessary that bills and cheques Act come into contact with foreign countries was

adjusted in the same way as in most foreign countries. "



40. In the explanatory memorandum to the civil court procedure [cf. House print

No. 147, III. the term of the National Assembly of the Czechoslovak

Socialist Republic of Vietnam; 1960-1964, explanatory memorandum, a special section-

Part three (at first instance), the head of the fourth-order for payment)]

to-exchange payment order laconically notes: "due to the

It is still used for bills of Exchange and cheques, especially in business relations

with foreign countries, assumes the outline and the Institute of Exchange and cheques

a payment order even with the concentration principle applies here. "



41. it may be, in the opinion of the Constitutional Court-even taking into account the

only informational character parlamentárií [cf. to reasonably

the opinion of the Constitutional Court plenum SP. zn. PL. ÚS-Wed 1/96 of 21 October 2003. 5.

1996 (ST 1/9 SbNU 471)]-concluded that the law was

the Socialist legislature perceived as residue, which was

used almost exclusively in foreign trade [Ondřej Hruda

Notes-cf. Hruda. A three-day deadline to submit Bills

-opposition-an unusually hard. Commercial law revue, 2011, no 8,

s. 236 (234-238)-that the Bill was with us rather other guests]. Maybe that's why

the text of § 175 o. s. l. přidrželo three-day opposition period, you knew

for example, Austria and Hungary (cf. § 557, paragraph 1, of Act No. 113/1895 row.

on judicial procedures in civil law (civil procedure code established graziers

the Court), as amended by 31 December 1998. 12.1949. In addition, you can perhaps lead to account in that

the direction of the three-day period, that she had understood the country-socialist camp

Bill of exchange for obsolete-was also a manifestation of a certain antagonism

the then bipolar world. Therefore, if the legislature considered the objection

the period to be adequate, it seems--despite a marked ideological burden

-considered arbitrarily fixed; based on historical traditions and with the

its application was envisaged, in particular in the operation of power and

economic entities of the centrally planned economy.



42. However, while the směnečná went through the adjustment process particularly in the Western

economies of considerable development [cf. in detail for example.

comparative study on the mentioned above.], Czech Hrudy editing has not changed.

Especially useful is by comparison with Austria's Constitutional Court, and even

due to historical and cultural proximity. The above mentioned civil order

the Court (published in Austria in BGBl, also under the number 113/1895, in

short called "ZPO") was in 1979 with the adoption of the Austrian

Consumer Protection Act (Konsumentenschutzgesetz BGBl. No.

140/1979, hereinafter referred to as the "law against wrongful dismissal") was amended so that the period was

extended to fourteen days (referred to in the context of the adjustment of the ZPO remained

to this day preserved-see. the current status of section 555 of the ZPO, in the version of 1. 8.

2010). That the extension was done in the context of the

wider by adjusting the use of bills of Exchange in consumer relations-in addition to

rektadoložky requires the Austrian law on consumer protection, in order to

the Bills, the creditor agrees with the entrepreneur within the meaning of law against wrongful dismissal-cf. § 11

This Act [in this context should be noted that, for example, the law

No 145/2010 Coll., on consumer credit and amending certain acts,

-What is consumer protection in connection with bills of Exchange (cf. his

§ 18)-enough with the practice of real proclamations, that: "If you Repaid

consumer consumer credit by means of a bill of Exchange or cheque or

If available, provides its repayment, the creditor must act so that the

retained all rights of the consumer, resulting from the Treaty, in

that is a consumer loan "; to do this, so be it for completeness


noted that, on 22 November. 8. the Government of the United States discussed the 2012 draft

the law, which would be mj. should change to edit the use of bills of Exchange and cheques in

under Act No. 145/2010 Sb.].



43. the path, after which the Austrian legislator has issued, fully konvenuje

the procedure in other European States. J. K.n. [K.n., J. Function

bills of Exchange and its use in consumer loans. Business law, 2002,

No. 2, p. 24 (20-27)], for example, points out that neither the German legislature

the banking syndicate in connection with the reflection of the consumer in

relations to directly affecting the Exchange Act and has chosen to regulate

bills of Exchange used by the consumer and the businessman an indirect path-mj.

the consumer credit Act. If just the measures referred to in

the legal order of the Constitutional Court of Austria or Germany compares with editing in the

The Czech Republic, then just on the basis of the above, it must come to an

the conclusion that this is insufficient. Imbalance between směnečnými lenders

and směnečnými borrowers according to the Constitutional Court by the opposition

the time limit within the meaning of § 175 o. s. l., associated with great severity the interpretation

the Bill of Exchange and cheque [cf. for example, this minor notes

Radim Cottages concerning in particular the narrowness of approach of the

borrowers to causal objections; demonstrating the merits test the opposition of conscious

hearing of the debtor's creditors on damage etc. -Cottage, R. Abuse

the locking of the promissory note. Law-journal for legal theory and practice, 2011, no.

4, s. 19-34]. Speaking above the previous case law citations

The Constitutional Court, the three-day opposition time limit within the meaning of § 175 of the row.

unconstitutional in dialogue with other elements of the legislation. Not only does směnečná

substantive editing is highly formalised [therefore requires considerable

professionalism, already fairly be expected in humans without legal

education when many practising lawyers is not custom-cf.

K.n., j. promissory note Functionality and its use in consumer loans.

Business law, 2002, no. 2, pp. 22-23 (20-27)], but it is accompanied by a

enforcing payment of management, which is specific in itself, even in comparison with the

other rozkazními proceedings. The application of objections namely mj.

It does not mean the cancellation of issued promissory notes for payment, respectively.

consideration of the claim, as if this was not [cf..

to do this in the details, from August. the taking of evidence of authenticity of signature

bills of Exchange. Právní rozhledy, 2010, no. 8, p. 270 (267-272)]. In conjunction with the

unconditional concentration according to the principle of the Constitutional Court

induced situations where consumers in a position of particular

borrowers are subject to the law of the aprobovanému pressure, which not only is not

reasonable, but ultimately does not produce the intended purpose-that is,

the rate of exchange control. The bills submitted by the debtor had objected,

facing right (or assessing) the debtor shall not be granted in the intended

the relevance and effect of exchange control is still extended. Positive

legislation, in the opinion of the Constitutional Court shall contribute to the induction of

a State where the ability to raise objections within the meaning of § 175 of the row leads real

as a result, in many cases just to "hold" the whole procedure,

without a meaningful remedy was defense. If you would

challenge deadline extended, mutatis mutandis, as the three-day opposition period

associated with very strict procedural control is also in the wider European

context (not only in comparison with Austria) unique, from the perspective of

the Bill would change the lender, due to the speed with which they are

General courts review the debtor's objections (whether any

character), she couldn't have any, let alone a negative, effect. In contrast, the Bills

the debtor should the actual space on specific bills-and your relationship

role in it-to respond adequately.



44. A reasonable extension of the period for opposition, moreover, by the Constitutional Court

completely konvenuje and above, in accordance with the principles of the Constitution

the interpretation of the provisions under consideration before the abolition of the law, respectively.

the principle of minimizing interference into the activity of the Constitutional Court of the other

of the public authorities. He went to the Constitutional Court when assessing the

the constitutionality of the repeal of any other part of the provisions of § 175 o. s. l.,

or set aside if all involved in the adjustment would

NONPROPORTIONAL consequences party functioning of the entire Exchange mechanism.

Due to the already mentioned several times the formality and specificity

Exchange control has the Constitutional Court also considered that the establishment of at least

partial process-Exchange equilibrium between the lender and borrower would

It was not possible to permanently and unequivocally reach or

with the help of constitutionally consistent interpretation or for supporting the use of generic

the provisions of the code of civil procedure relating to the modification of time limits [cf.

for example, this strictly inlaid Institute remission missed

period under section 58 of the row, which is applicable in the case in question

the opposition time limits-see, by analogy, of the application of the click beetle. rights in the

connection with bills of Exchange and cheques in court proceedings. Advocacy bulletin

2000, no. 10, p. 17 (11-21)]. It is then the job of the legislature, not the

The Constitutional Court, to the Institute of bills of Exchange and promissory notes of the proceedings edited by

in a manner appropriate to the needs of the present day. The illustrated above is

According to the Constitutional Court, obvious that the determination of the opposition period longer

It is merely the means by which it is able only to relations

partial equilibrium, and definitely a change in the form of the extension of the opposition

time limits should not be seen as sufficient and definitive solution. To the right

a decision to appeal to the legislature party reflection of development the use of bills of Exchange

Let it be noted, that even the current substantive and procedural edit

(compare, for example, just the code of civil procedure or referred to law

consumer credit and on amendments to certain laws, and even in the light of

above, the proposed amendment) rather pozapomněla on Aristotle's

learning about dechallenge (from LAT. causa) questing after finding purpose "of everything"

[cf. Aristotle. Metaphysics. 2. vyd. Prague: Petr Rezek,

2003, 579 s.]. In the concept of law of the case, which has become (albeit

often implicitly) one of the basic ideas of modern civil

codification and that may be part of the Bill in its way-here is

The Constitutional Court referring to the so-called. "false akcesoritu" and "mocked-up

subsidiarity ", when the claim embodied in the locking of the promissory note (indeed,

the phrase itself retaining the promissory note, in a sense, it acts as a

oxymoron) exists, regardless of the existence of a secured claim and she

akcesorita (subsidiarity) lies only in the fact that the courts shall recognize the

borrowers against the application of precautionary-based its defense bill

the essence of the akcesoritě and subsidiarity of law-partially

paraphrased by Cottage, r. Hedge the Bill of Exchange. Prague: Linde,

2009, s. 49-51 (189). It is therefore a distinction of commitments of causal

(referring to its economic purpose) and liabilities of abstract, when

the original purpose of the commitment is not decisive. The facts applicable to the design of

the complainant (appellant), which resulted in such proceedings before the constitutional

the Court, then, in the opinion of the Constitutional Court only reveals in the whole range

inadequacy with which the current legal regulation of relations

It reflects the ability of the Bills of Exchange Act in a way, with or without court orders;

even in the case of the appellant, the Bill clearly precautionary in nature (i.e.,

specifically a causal) has become almost indosací commitment (see restrictions in

the provisions of section 17 of article. 1 of the law on bills and cheques) "abstract".

On the way to the solution of the conflict while there might not be indicated-as is apparent even

the international comparison of the illustrated-bill making the property restrictions

of her attractive securities, but above all the introduction of effective mechanisms for

to prevent its abuse (see also to that below).



45. If, therefore, in accuracy the above cited case law of the Constitutional Court three

the basic point of view, on the basis of assessing the conformity of the legal

the prescription deadline-that is, whether the legislature has not defined

arbitrarily, that is not excessive and that the package does not disfavour one group

in comparison with other entities in the application of the law as a result of

additional changes to terms-then in accordance with the above findings outlining the

The Constitutional Court recapitulates that the opposition period has not been

established arbitrarily; based on the historical continuity of the concurrent with

previous legislation having its origins in the 19th century. of the century. Moreover, in the

the time of the code of civil procedure was used in comparison of Bill of Exchange

with today completely marginal, and that only significant power and

economic entities-for them was therefore reason to consider in a session

three days of excessiveness. However, this does not apply to today's reality of market

the farm bill of Exchange is applied between entities which fundamentally

they are not in an equal position and that they cannot be fair without it

expected-to perceive the Bills relationship in all its breadth and reflect

so any risk arising from it for them. The newly established legislature


reasonable period of time will help mitigate this disproportion described above,

at least in procedural terms. How the Bills, the Bills, the creditor, the debtor

they will have a fair opportunity to assert their rights before the Court, and

This in effect-even if the draw of the debtor-to protect your

ownership. He said if the Constitutional Court in its above-mentioned

the case-law that the purpose of the deadline is to limit the entropy, for example, when you

the application of rights and reducing uncertainty in legal relations, then the other

but these restrictions, for example, through the exercise of the rights

the time limit provided by the legislature certainly must not lead to the denial,

respectively to their empty, particularly with regard to fundamental rights and

freedom (cf. Article 4, paragraph 4, of the Charter)-in the present case

While the period examined the influence of the development of social relationships while avoiding

(in conflict with article 4, paragraph 4, of the Charter) limits referred to the possibility of

of the borrowers to defend their rights before the Court, and the Bills of Exchange

relations creates nothing unjustified inequality between směnečnými borrowers

and the creditor within the meaning of article směnečnými. 37 para. 3 of the Charter.



46. As regards the last criteria, therefore, the assessment of whether the said

the time limit does not deny a certain group of subjects to exercise their rights in the

as a result of additional changes to the terms, then this question, due to the

the character of the period under consideration, the question, as this period no

changing the terms of formally and effectively did nothing.



VII.



The wording of the operative part of the award derogačního and its legal consequences



47. Each award of the Constitutional Court, in which the Constitutional Court

comes to the conclusion that he studied law or its individual provisions

is in conflict with the constitutional order, is the determination of the date on which the Act or the

its individual provisions be deleted. He went to the Constitutional Court in the

just present the case for abolishing the time limit on the date of its publication in the

This finding in the statute book without further, there would be a situation where the

směneční (šekoví) the borrowers were not in the Administration Bill (cheque)

the opposition however time limitations, which would mean a violation of the legal

certainty of their creditors, and also as a result of the inability to realize the

any bills (checking) account. Therefore, the Constitutional Court held-

measure the tile real legislatively-technical options for the legislature,

in particular, the need to expand the space of the debtors for the application

an adequate defense in the form of deeds of the objections and legal certainty

Bill (cheque) of creditors-proceed to repeal § 175 paragraph. 1.

with a row in the words "within three days", and the word "within" the end of the day

April 30, 2013, and also due to the abovementioned draft law

(the print number 686-cf. paragraph 22 of this award)

amends the code of civil procedure and some other laws. The proposal, as already mentioned

It has been said, while mj. with the fact that the time limit in question will be

extended from three to eight days. It is possible for the legislature to

This Bill took effect, so that the three-day period in question

It was replaced by a new period of continuously.



48. Above and beyond just referred to the Constitutional Court, however, appeals to the legislature

in that direction, in order to take into account when determining the time limits not only need (albeit

Paramount) provide space for adequate procedural defenses (and protection)

ESP.. Bill of Exchange to borrowers, but to also consider the suitability of certain

souladnosti and the internal consistency of the code of civil procedure as

like that. Legislature-or more accurately, and more generally, the legislator-would

in the opinion of the Constitutional Court in its activities was looking not only at the

formal souladnost the newly created by legislation with

(existing) legal system, but it should also do so that it

He was actually an individual who represents the Centre of gravity of the existence of the company

arranged in a democratic rule of law. Therefore, in the light of

individuals, whether with a law degree or without it-the legislature

When you search for an adequate period had within the meaning of § 175 of the row come from already

the usual and the code of civil procedure used by the time-limits and avoid adding without

more reason to the legislation defining the new time, which are

civil legal proceedings. The tendency not to unnecessarily

the existing legislation is, moreover, so far unused solutions

the culture character of legislative drafting. With regard to the basis taken

the above is not, in this context to refer again to the Austrian uninteresting

the legislature, which at the recodification of the Austrian commercial code (with

effect from 1. 1.2007) not only to retain the content of the legal standards-if

possible-no change, but even tried to preserve to the greatest

to the extent possible and, secondly, the original legislation [indeed, this can be

the direction of ethical philosophy and offered a rental Josef Capek from his essays

Lame, when according to him, even the trees-even if each of them is and he wants to

be an individual, after all, keeps faithfully-characters of the species; compare CAP,

J. Lame Pilgrim: (what I saw). Prague: Dauphin, 1997,

p. 64 (152)].



49. Lastly, he would like to conclude the Constitutional Court also recap and

stressed-as has already been indicated, moreover, that the applicant itself-albeit

calls for repeal of § 175 of the row en bloc, making the defining principle

against the time limit. It can be inferred from the above replica paraphrased

the appellant, to the observations of the parties. The current wording of section 175 of the row.

While constitutionally by the Constitutional Court, in addition to the above

defined parts, acceptable. The legislature through him

enshrines into law a specific type of civil proceedings,

some of the special features (compared to other modalities in

Code of civil procedure) are acceptable just because it

purpose, and even the part involving in the reply explicitly

pointed concentration control. In this context, the Constitutional Court

in particular, points out that even in the case where the Court has jurisdiction to issue

Bill (cheque) payment order-see condition in the introductory sentence

paragraph 1 first sentence of § 175 of the: "If the plaintiff in the original

the Bill of Exchange or a cheque, on which the authenticity there is no reason to doubt, and more

documents necessary for the application of the law, the Court shall issue a bill of Exchange

(cheque) payment order ... ", respectively, if the Bills (cheques Act)

the debtor (defendant) objections, the concentration of proceedings shall also apply in this

the situation, however, under section 118b of the row so management Concentration occurs

Anyway, it is just a question – and here it is again, specifying the amount of the assessed

time limit-when. The provisions of § 175 of the row is a purely procedural

the provisions, which, quite apart from repeatedly referred to

the formal rigor of the substantive Bill editing, cannot take into account, for the

what circumstances specific bills relationship emerged. In addition, it defines the

the appellant in the context of its explicitly against the replica blankosměnkám, then

not entirely reflects that at the stage of the plaintiff's application for a Bill

There is already only a bill of exchange for payment, with the required legal formalities;

that came about, for example, the gradual replenishment of the Charter, the Bill of Exchange

have relevance in the context of the opposition Bill the borrower-defendant

(cf. paragraph 10 of article 1 of the law, promissory notes and cheques), not in the

the concentration of the control itself, whether in terms of § 175 o. s. l., or in the

the conditions of § 118b of row [to the concentration of proceedings within the meaning of § 175.

row, meanwhile, the Constitutional Court has already expressed, for example, in its award of 26.

3.2009, SP. zn. (III) the TC 3300/07 (N 69/52 SbNU 677) so that it refers to

of the opposition, but not the concentration of evidence proposals]. Alone

the Bills and cheques Act then requires that both foreign Bill of Exchange, a custom

include the designation of "promissory note", not as "blank Bill of Exchange". It is not

also the terms of the proposal on the issue of promissory notes for payment, to

from it (or from the Bill itself), why to issue bills of exchange occurred.



50. According to the Constitutional Court, therefore no additional component of the cited

provisions (or the concentration of proceedings) at least for the time being does not show characters

indicating the need for its cancellation by the Constitutional Court.



51. the Constitutional Court in the previous paragraphs of this finding

sufficiently declared-and in particular on the basis of a reasonable

international comparison-that the current tension associated with bills of Exchange is

mainly due to their inappropriate use (abuse) in particular

to require, after which no knowledge of specific and rigid

Bill of Exchange adjustments justified by demand. In this context, can be

for their designation used from above mentioned repeatedly, and the laws of the

used a legislative shortcut "consumer". Act No. 634/1992 Coll., on the

consumer protection, as amended, (hereinafter referred to as "the law of

consumer protection ") means a natural person by the consumer

not acting in the course of his business or in the framework of the

separate the performance of your business. The provisions of § 1 above quoted

When you define a consumer law against wrongful dismissal is based on its negative definition

to the counterparty – i.e. entrepreneurs. The consumer in the framework of the Austrian


the rule of law is thus defined (or derived) from a businessman, and it

so, the definition of a consumer reflects a specific legal relationship between

and an entrepreneur-cf. to do this, Rummel, p. (Hrsg.), Kommentar zum

Allgemeinen bürgerlichen Gesetzbuch mit EheG, law against wrongful dismissal, MRG, WGG, WEG

2002, BTVG, HeizKG, IPRG, LAW. 2. Band, 4. Teil, 3. Aufl. Wien: Manz,

2002. s. 175-178 (481). So hereafter every mj. that applies to

legal acts, in which on the one hand involved in the person for whom the legal

the Act is related to the operation of its business-that is, for the purposes of the protection of

the consumer, entrepreneur, and on the other side of the body involved,

for which of the above-mentioned does not apply (just words law "... jemand, für den dies

nicht zutrifft ... ")-that is, the consumer. Referred to the emphasis on this session

then in section 11 law against wrongful dismissal (i.e. in that provisions for a bill of exchange relationships

between business and consumer establishes a condition of conformity between

entrepreneur and Bill of Exchange by the creditor and a mandatory clause ' not on the series "

-CF. above) not only the impossibility of such a bill of Exchange

endorse, but also by the Bills, the creditor is the entrepreneur, from which

the consumer is derived. Does not include a promissory note to the said

rektadoložku or if the entrepreneur does not match with the person to whom it is to be

paid (cf. in the Czech article 1 § 1 section 6, respectively, article 1, section 75

section 5 of the Act, promissory notes and cheques), it does not mean the nullity of such

Bills, but the consumer arises, except as expressly provided for in the law against wrongful dismissal,

to entrepreneurs claim. regressive



52. this in brief parafrázovaná Austrian legislation is

According to the Constitutional Court, inspiring not only for fitting the definition of

the consumer (which by its nature does not conflict with its definition in section 2 of the

the law on consumer protection, and can thus serve as an interpretative

the widget), but also by the fact that the consumer retains the respect of entrepreneurs

the opposition in its entirety and in addition, it maintains the parity of the relationship, if any,

"clear", as it is predictable in principle from whom and to whom will the

paid. All of this is in a way that amounts to a bill of exchange arising out of relationship

between a consumer and an entrepreneur, in principle, by the parties of its

property as security. It is then a question of whether, in accordance with the

the necessity of the introduction of the above mentioned mechanisms to prevent abuse

in particular, in relation to bills consumers had a Czech legislator

Choose a similar solution, especially if the substantive editing

Exchange Law of Austria of the Geneva Conventions (cited above)

as United.



53. the Constitutional Court thus concluded that the § 175 paragraph. 1. in the words of "to

three days "and in the words" at the same time "is in violation of, in particular, with article. 4 (4).

4, with art. paragraph 36. 1 and article. 37 para. 3 of the Charter, since the particular Bill of Exchange

borrowers unjustifiably restricts their ability to defend their rights before the

an impartial and independent court, and between směnečnými borrowers and směnečnými

the lender by neakceptovatelnou introduces inequality. Therefore, the Constitutional Court

held pursuant to section 70 para. 1 of the law on the Constitutional Court, that this part of the

provisions repeals the expiration of 30 June. April 2013. In other parts of the proposal

on cancellation of the § 175 ZPO has rejected as manifestly

unfounded [§ 43 para. 2 (a)) in conjunction with the provisions of § 43

paragraph. 2 (a). (b)) of the Act on the Constitutional Court].



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, a decision of the plenary, the judges adopted a

Stanislav Package and Jiří Nykodým.