In The Matter Of An Application For Annulment Of The Act No. 182/1993 Coll.

Original Language Title: ve věci návrhu na zrušení zákona č. 183/1993 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=42026&nr=131~2F1994~20Sb.&ft=txt

131/1994 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic decided on 24. May 1994 in plenary on

the design of a group of MPs on the repeal of the law no 183/1993 as follows:



Date of publication of this finding in the collection of laws, this shall be deleted;

the provisions of the Act No. 229/1991 regulating ownership of land

and other agricultural property as amended by law No 42/1992 Coll., Act

No. 93/1992 Coll., Act of the Czech National Council No. 39/1993 Coll. and Act No.

183/1993 Coll.:



1. the provisions expressed in § 8 para. 3 the words "the effective date of this

the law "



2. the provisions of § 8 para. 4,



3. the provisions expressed in § 8 para. 5 the words "the owner of a plot of land donated by

his land to an individual or is transferred free of charge in connection with the

the conclusion of a purchase contract for the building, to which the land belonged, "and an expression of

"If" and the words "the effective date of this Act",



4. the provisions of paragraph 1, expressed in section 20. 2 in the third and fourth sentences, the words:

"shall provide the compensation referred to in paragraph 1 a legal person who at the date of 24.

June 1991 land used by authorised persons. If you cannot follow these steps to determine the

liable person ",



5. the provisions of § 24 para. 1.



The remainder of the proposal is rejected.



Justification



(I).



Day 10. 9. in 1993, the Constitutional Court of the Czech Republic received a proposal from a group of 41

members of the Chamber of deputies of the Parliament of the United Kingdom to begin

the procedure for the cancellation of the law no 183/1993 Coll., which amends and supplements the

Act No. 229/1991 regulating ownership of land and other

agricultural property as amended by law No 42/1992 Coll., Act No. 93/1992

Coll. and Czech National Council Act No. 39/1993.



According to the provisions of § 42 para. 3 and section 69 of the Act sent by the constitutional

Court of the United States the present proposal to the representation of the Chamber of Deputies.

The President of the Chamber of Deputies, Dr. Milan Uhde confirmed the opinion of the

The Chamber of Deputies, expressed its vote on the draft law, and

the severity of the adopted amendment to the Act No. 229/1991 Coll. stated the following

argument: "the law on the adjustment of the ownership of land and other

agricultural property is the basic legislation governing the

restitution of agricultural property, adopted by the Federal Assembly.

Approved the law responds to the situation, which was created after the law

He began to be realized in practice, and some other laws have been adopted, as

for example, the law on the transformation of cooperatives, the law of the land.

The purpose of the modification is to accelerate the process of return of State agricultural

the property, with the major change is the solution of relations which arise between

natural persons when concluding contracts on buildings and in the context of

with the forced donation of land belonging to the buildings. This change is

the possibility to apply in the manner prescribed in the Act of returning the land,

where appropriate, the payment of the cost of land, which has been so donated. Further

the law provides for mandatory person in compensation to the beneficiaries there,

where has this obligation, a municipality or a State or land fund. Law

unifies to settlement of compensation for permanent stands in the forest

land, both when you return the rights of ownership and rights

the right of use. The law has prevented the introduction of Institute auctions slow

balancing the restitution claims of beneficiaries that occurs

especially when the transformation of the agricultural cooperatives pursuant to Act No. 42/1992

SB. and where is the undisputed legitimacy of restitution claims

beneficiaries. "



According to § 42 para. 2 Act No. 182/1993 Coll., on the Constitutional Court, the Constitutional

Court of the United States requested as documentary evidence from the

the House of the prints and the records of the House discussing the law No.

183/1993 Coll. and Act No. 229/1991 Coll. (the parliamentary printing FS No.

1047, printing FS # 928, printing FS # 1106, printing FS # 1104, printing FS # 393,

message # 547 print newsletters, print design committees no 643, print no.

108, the joint report to him no 109, print no 212, joint report printing

No. 344, těsnopisecká report on the meeting of the Chamber of Deputies, parliamentary

period 9. meeting, 18.-21. 5.1993) and from the Ministry of Justice and

The Ministry of agriculture "of the directive on the procedure for the registration of contracts for

public notary and in the granting of consent to the transfers and nájmům

certain types of real estate by District National Committees ", released on 15 November 2004.

5. The Ministry of Justice in 1964 and the Ministry of agriculture,

forest and water management (No. 61 516/64-MZ-rights.).



II.



II/a



In connection with the provision of § 8 para. 3 to 5 of the Act No. 229/1991 Coll., on

as amended, the appellants argue his conflict with the article. 11

paragraph. 4 of the Charter of fundamental rights and freedoms. In the opinion of the appellants

the cited provisions allow the "withdrawal of individual ownership and

restrictions on the exercise of property rights without compensation ", and not only to those who

"gain ownership rights on the basis of režimních benefits", but also to those

"that property rights acquired in good faith".



With regard to this claim, the Constitutional Court of the Czech Republic dealt with the

the question of whether the provisions of § 8 para. 3 to 5 of the Act No. 229/1991 Coll., on

as amended, regulates the Institute of expropriation and, therefore, the

conditions laid down in article 4(1). 11 (1) 4 of the Charter of fundamental

rights and freedoms.



The Constitution or legislation of the concept of expropriation expressly do not define. His

the contents can be defined inductively on the one hand, therefore, on the basis of a positive legal

editing Institute expropriation in different pieces of legislation and, secondly,

doktrinárně, IE. on the basis of the definitions submitted legal science.



The issue of expropriation is in addition to the article. 11 (1) 4 of the Charter of fundamental

rights and freedoms concern in particular the provision of section 128 paragraph 1 also. 2 of the code of

code, § 25 of the commercial code, § 108 to 114 and § 141 para. 4

the building Act, section 25 of Act No. 40/1961 Coll. on the defense of the State, as amended by

amended. Of all the quoted provisions can be inferred that

the rule of law under the concept of eminent domain means forced withdrawal of title

law in the public interest, on the basis of the law, and for compensation (must be

Note that the rule of law and a different kind of knows the forced withdrawal of the

of property rights in the public interest and on the basis of the law, but not for

compensation, under the Criminal Law Institute of the confiscation, the

the admissibility of the article is fixed. 39 of the Charter of fundamental rights and freedoms).



In the theory of expropriation "usually defined as interference with property

rights, especially the rights of property, for the benefit of všeužitečného works,

establishing a law abrogating or limiting at the same time for different rights

based, normally in Exchange for compensation. The goal of expropriation is to be

established for entrepreneurs všeužitečného work law, which would allow him to

the implementation of this work. Of major importance is the finding of Boh. ADM. 14.224 that

the public interest is given by, where the work is taking in order to make it

met the needs of a broader whole, State, town and country,

social ap. " (J. Hoetzel, Expropriation. In: Dictionary of public law

Czechoslovak. SV. V., Brno, 1948, p. 487, 493).



From the comparison of § 8 para. 3 to 5 of the Act No. 229/1991 Coll., as amended by

amended, with positive legal induction, as well as with doktrinou

can be inferred that in the abovementioned provisions on expropriation of the Institute

This is not, and in particular of the following two reasons:



According to the preamble of the Act is "intended to mitigate the consequences of

some property-related injustices that have occurred against the owners of the agricultural

and forest assets in the years 1948-1989 ". Legal Institute, which

meet that purpose in the Act is the Institute of restitution, i.e..

Institute of removal of illegality in the transfer of ownership, or

the unlawful interference with the right of ownership, returning the case to the

the original legal relationship. This illegality is of two kinds.



The first kind of illegality, which is positively legally existed at the

the time of transfer of ownership (e.g. the conclusion of a purchase contract in need for

negotiated terms and conditions). Act No. 229/1991 Coll., as amended by

amended, in such cases constitutes a lex specialis in the

relating to the civil code. It can allow a claim of invalidity

transfer of ownership of, and then the release of things even if the expiry of the

prescription periods for the licensee (in the above example, also after expiry of the

the limitation period for withdrawal).



The other is illegality, caused by the legal order in force in the period

from 1948 to 1989, allowing the implementation of property-related injustices and laid down

Act No. 229/1991 Coll., as amended. In these

cases, it is once again a special provision to the civil code

specifying additional grounds of illegality in the application of the ownership claims on the

the release of things, as well as negative in these cases, the acquisition of property

rights of acquisitive prescription.



The legal consequence of the fulfillment of the conditions contained in the provisions of § 8 para. 3

Act No. 229/1991 Coll., as amended, is the ability to

authorized persons to seek judicial termination of the contract on the transfer of land.

From the term "cancellation" should be inferred by analogy to section 457 of the code of

code, that it is a declaratory ruling of the Court (the same as the opinion of the

in the interpretation of the term "cancellation" advocate and case law:


R 26/75).



The difference between restitution and expropriation can be generally defined as follows:



and is removing the illegality of restitution) when the transfer of ownership,

Alternatively, the unlawful interference with the right of ownership, and returning the

things to the original legal relationship having legal effects ex tunc.



(b)) expropriation is forced by the revocation of the ownership rights in the public

the interest, on the basis of the law, and for compensation and with legal effect ex nunc.



(c)) the reason is solely the illegality of restitution, while reason

eminent domain is the public interest, i.e.. the concept is different. The question in this

the context is whether removal of illegality may be public

interest in the case of expropriation. The very nature of expropriation follows the following

conclusion: the expropriated by the (expropriátem) are "all owners of rights

they are incomparable with the rights to be expropriací based, and therefore

the neb must be cancelled. It follows from this that all expropriáti should

should have a direct claim against the vyvlastniteli to compensation. " (J. Hoetzel,

op. cit., s. 497). To reject their removal options

illegality under the concept of public interest in eminent domain can be

an argument of reductio ad absurdum. From the requirement for compensation that is

the character of expropriation, therefore, follows that the reason for the expropriation

removal of illegality, since the granting of the refund

vyvlastněnému, whose legal position is associated with illegality, it would be

absurd.



d) legal effects of restitution arise ex tunc, the legal effects of the expropriation

ex nunc. Restitution is not compulsory, but the revocation of ownership

the obligation to restore the original legal status. Restitution law may

However, constitutionally justified to exclude reverse claims people

authorized to demand things. Referred to the adjustment is valid just in case

Act No. 229/1991 Coll., as amended. According to § 28 of the

of the Act by a person of that case was issued against

the person required to apply other claims related to the advertised goods, than

are listed in the Act (article 14, paragraph 3, article 15, paragraph 2 to 4). In this

the context necessary to examine whether this inequality-based to other

reivindikacím is in accordance with the Constitution of the Czech Republic. Because according to the article.

3 of the Constitution of the Czech Republic is the Charter of fundamental rights and freedoms, a part of the

its constitutional order, can be inferred from the above that the binding character of

decisions of the Constitutional Court of the Czech and Slovak Federal Republic,

which was released on that basis. In decision No. 11/1992 Collection

resolutions and of the findings of the Constitutional Court of the Czech and Slovak Federal Republic

He expressed his understanding of the principle of equality as follows: "it is for the State to

to ensure their functions, decided that a certain group will provide less

benefits than others. Even here, however, must not proceed completely arbitrarily. ...

If the law specifies the benefit of one group and at the same time lays down the

disproportionate to the duties of the other, can happen only with reference to the public

values. " In the present case, the reason for the limitation of rights must be a competent person

against the person required, contained in the cited provisions of § 28, consider

the purpose of the Act, in terms of easing (rather than deleting) some

(not all) injustices committed in the years 1948-1989.



e) legal effects of restitution are also different from the legal effects of

expropriation in terms of the content of the registration in the land register.



By comparing the expropriation and restitution of the institutes should be therefore refuse

the appellants ' objection, according to which the provisions of § 8 para. 3 to 5 of law No.

229/1991 Coll., as amended, governing the expropriation and are

contrary to the article. 11 (1) 4 of the Charter of fundamental rights and freedoms.



When assessing the compliance of the provisions of § 8 para. 3 to 5 of the Act No. 229/1991

Coll., as amended, with the Constitution of the Czech Republic, the constitutional

laws and international treaties under article. 10 of the Constitution of the Czech Republic

should be pointed out to the other connection.



The laws on property rehabilitation (restitution) are based on the idea that the

property wrongs committed far more State through their legal or

in fact, the measures and actions. Of immovable and movable property,

that the relevant period "passed" on the State. on "Enterprise

the Socialist sector ", which with the State effectively formed the economic

whole.



Obliged entities are therefore:



1. the State or a legal person, that thing stuck on the day when the individual

laws effect (article 4, paragraph 1, of Act No. 403/1990 Coll., as amended by

amended; § 3 and 6 of law No. 87/1991 Coll., as amended

legislation; § 4 and 6 of the Act No. 229/1991 Coll., as amended

regulations),



2. natural persons then only if the thing were acquired from the State (or.

other legal persons), which would otherwise be obliged to this thing, and it

legally or morally irregular conditions: contrary to the then

applicable laws and regulations, on the basis of an unlawful advantage, or.

at a price lower than the price in accordance with the then applicable rules (article 4, paragraph 2,

Law No. 403/1990 Coll., as amended; section 4, paragraph 4. 2

Act No. 87/1991 Coll., as amended; § 8 para. 1 of the law

No. 229/1991 Coll., as amended).



From this ideological concept of the contested provisions § 8 para. 3 to 5 of law No.

229/1991 Coll., as amended, and outside

restitution claims between individuals. It follows that the

that provision is in the Act the provisions of special and contained in it

the concepts are in relation to the general concepts of law the concepts of special. It comes

all about the concept of "eligible persons" under section 8 (2). 3 and 5, that is in the

relationship to the concept of "authorized person" under section 4 of the Act the term special.

The rights and obligations of the "authorized persons" under the law, therefore, apply to the

the generic term "beneficiaries" and not to the concept of special. Way

claims "beneficiaries" under § 8 para. 3 to 5 is modified.

directly in that provision, the time limit on their use in the article. II.

1 of law no 183/1993.



The extension of the concept of restitution laws, the legislature in the explanatory memorandum to the

the draft law no 183/1993 Coll. justifies it as follows: "amendment to the tackles

also a legal issue not transfer of land from one physical

person to another in connection with the conclusion of a purchase contract for the building, to

which the land belonged. Natural persons who bought the building, in the purchase

the Treaty of a clause on agricultural land donation. At the present time

the owners of these land claim rights on their release, although it is

acquired on the basis of an unlawful advantage and without remuneration. Referred to the legal

the practice was carried out on the basis of the "Directive on the procedure for the registration of

contracts for public notary and in the granting of consent to the transfers and nájmům

certain types of real estate by District National Committees ", released on 15 November 2004.

5. The Ministry of Justice in 1964 and the Ministry of agriculture,

forest and water management (No. 61 516/64-MZ-rights.). It is therefore

can be reasonably required to one who has taken the land, that another

donated in need and based on coercion, the land returned to the original

the owner or that paid for them. ... When you register the purchase contracts on

residential and commercial building owners was restrained (under sanctions

non-registration of the purchase contract) that was included in the purchase contract and

the donation of of land that belonged to buildings. It is proposed, therefore, that the Court

decided that the current owner (natural person) the following free of charge collected

the land has paid or has been cancelled that part of the contract that were

the land donated. "



According to the preamble of the Act is "intended to mitigate the consequences of

some property-related injustices that have occurred against the owners of the agricultural

and forest assets in the years 1948-1989 ". The nature of the period

(characterised by the legislature in the Act No. 480/1991 Coll. and in Act No.

198/1993 Coll.) could cause the property wrongs not only between physical

persons and the State, but also between individuals to each other.

The illegality leading to restitution (or replacement)

Therefore, should be interpreted exclusively in connection to the purpose of the Act. In

the case of § 8 para. 3 of the Act No. 229/1991 Coll., as amended

regulations, this means:



-interpret the concept of distress in connection with political pressure,

associated with the period of 1948 to 1989 (other interpretations based

the inequality of legal consequences in relation to the other, in need of a closed

legal capacity, and the conflict with the constitutional principle of equality),



-the reason of illegality in respect of the transfer of land in connection with the

the conclusion of a purchase contract for the building, to which the land belonged, in

the fact that upon registration of purchase contracts on residential and economic

the building was on the owners of the restrained (under sanctions, non-registration of the purchase

of the Treaty), in order to purchase agreement has been included as well as the donation of of land, which

the buildings were, thus limiting their freedom of contract.



In the amended provisions of the Act on land (§ 8 paragraph 3 to 5 of the article. I, point 11

Act No. 182/1993 Coll.) talking about "the effective date of this Act".

Because this expression is used in the provisions of the law of the land, this cannot

understand anything other than the day came into effect Act No. 229/1991 Coll.,


i.e.. June 24, 1991 (likewise referred to the conclusion and for the passage of

subjective time limits pursuant to § 13 para. 3 of the Act No. 229/1991 Coll., as amended by

amended, i.e.. According to the article. I, section 21 of Act No. 182/1993 Coll.).

This interpretation is confirmed by the provisions of article. II. 1 of law No.

183/1993 Coll., which provides for a time limit on the claims contained in the

Law No 183/1993 Coll. (i.e. in the article. (I) of the Act). Any intention to

the legislature this term to express that it is a day that took effect

Act No. 182/1993 Coll., i.e.. July 1, 1993, on the legal consequences of

editing does not change anything, because the key is actually used in the Act

formulation. Such intention to suggest for example. the provisions of article. I, point 54

Act No. 182/1993 Coll. on the new section 33 c of paragraph 1. 1 of the law of the land is

Specifies that the method of publication and sale determined by the Government, by regulation,

issued "within 30 days of the effectiveness of this law", which was probably

meant to be a time limit calculated from 1. July 1993.



It follows that the legislature contrary to the principles of legislative

techniques and at the same time contrary to the principles of clarity and certainty of the law,

that is part of the principle of legal certainty and, therefore, the principle of

the rule of law (article 1 of the Constitution of the Czech Republic), in two different ways

edited by the beginning of the passage of time limits to legal fact

based effect to Act No. 182/1993 Coll. did so partly in the

novelizujících provisions and, secondly, in the provisions of the nenovelizujícím,

forming part of a purely law no 183/1993 for the correct one can be

consider only the second procedure. The provision amending the provisions become

part of the amended law. For this reason, should be in Word

Joins "the effective date of this Act," contained the term "of this

the law "within the meaning of the amended Act, interpret and not

novelizujícího ("this Act" is an Act No. 229/1991 Coll., on

as amended, and not law no 183/1993 Coll.). In a given

the case, therefore, the interpretation leads to the conclusion of the retroaktivitě of the

provisions.



The question is whether the provisions of § 8 paragraph 1;. 3 to 5 of law No.

229/1991 Coll., as amended, is unconstitutional or not.



In the constitutional order of the Czech Republic the express prohibition of retroactive to

the area of the criminal law enshrines the article. 40 para. 6 of the Charter

fundamental rights and freedoms, a general prohibition of retroactive can be inferred from the

article. 1 of the Constitution of the Czech Republic, the Czech Republic, according to which the legal

by the State. The definition also includes the characteristics of law principle of legal

Security and protection of citizens ' confidence in the law, whose part is also the prohibition of

retroactive laws. By analogy to margo principle of retroactive

He said even the Constitutional Court of the Czech and Slovak Federal Republic in the

things SP. zn. PL. ÚS 79/9: "the principles of the rule of law, legal certainty,

that can be drawn from the requirement of a democratic disposition,

require each constitutionally possible case retroactive anchor expressis

as in the Constitution or the law, and resolve related cases so that the

acquired rights are properly protected. " (Constitutional Court of CZECHOSLOVAKIA, a collection of resolutions

and findings, 1992, no. 15). In the case of the provisions of § 8 para. 3 to 5 of law No.

229/1991 Coll., as amended, with retroactive effect

(i.e., from July 1, 1993, the effective date of Act No. 182/1993

Coll., to date the effective date of the Act No. 229/1991 Coll., 24. June

1991) all transfers of land, on which the cited provisions of the

apply. This is without prejudice to the acquired rights of the legal entities, which have already

do not stand in causal relation to the illegality, expressed in the purpose of the law

No. 229/1991 Coll., as amended. Works cited;

provision is therefore distort the acquired rights, beyond the purpose of Act No.

229/1991 Coll., as amended, and the disruption of the

the principle of the protection of the citizens ' confidence in the law and, as a result, the cited

provisions should be regarded as contradictory with the article. 1 of the Constitution of the Czech Republic.

That conclusion also follows from § 8 paragraph. 5, which excludes the direction

restitution claims against third parties and to cases of transfer of

ownership to third parties provides for a compulsory subject to pay "the price at

the parcels were transferred to a third person ".



Cancellation of a provision contained in § 8 para. 3 of the Act No. 229/1991 Coll., on

as amended, and expressed by the words "the effective date of this

the law "is eliminated any doubt regarding the possible retroactive.

The time limit on the exercise of the right of a competent person is determined by the provisions of article 8(1). (II)

Act No. 182/1993 Coll., and the condition of the existence of rights based

the provisions of § 8 para. 3 of the Act No. 229/1991 Coll., as amended

legislation, is the fact that the land at the time of application

the claim (as defined in article has already referred to the deadline. (II) Act No. 182/1993 Coll.)

in the property of the person from whom it was donated or transferred free of charge, or

owned by a person close to that person.



The provisions of § 8 para. 4 the contested act, from the cases referred to in paragraph 1. 3

excludes donation in distress or free transfer in connection with

the conclusion of a purchase contract for the parties close to the building. The legislature hereby

at a disadvantage one group of legal entities, with neither of the

provision or from the General provisions of the Act for such inequality cannot be

infer no cause. As a result of that finding should be mark

the provisions for conflicting with the constitutional principle of equality

expressed in the article. 11 (1) 1 of the Charter of fundamental rights and freedoms.



In addition to the foregoing the special constitutional analysis requires the provisions of § 8

paragraph. 5 of the Act No. 229/1991 Coll., as amended.



By the legislature in the diction of § 8 paragraph. 5 of the Act, as a condition

embark upon a public sanction "reimbursement of the price at which the parcels were

transferred to a third person "missed when donating the land crunch

constructed a confusing provisions: claim arising out of the cited

the provisions may apply each landowner who donated their "

the land of a natural person ", and only" If the land owned.

persons other than the persons referred to in paragraph 3 ", where a person referred to in

paragraph 3 is merely a person that the parcels were donated in distress.

Such a person, therefore, may be the person who have the land

donated. The provisions thus constructs public sanction for perfect

legal act without any clarification of the reason for such a procedure. Occurs

the retroaktivnímu recourse to the legitimate negotiations. This fact

is again in violation of the principles of the protection of the citizens ' confidence in the law, the prohibition of

retroactive and thus in breach of article. 1 of the Constitution of the Czech Republic.

Those arguments is justified the conclusion on the cancellation of part of the provisions of section 8

paragraph. 5 of the Act No. 229/1991 Coll., as amended.



II/b



In connection with the provisions of section 11 (1) 7 of the Act No. 229/1991 Coll., on

as amended, the appellants argue his conflict with the article. 11

paragraph. 1 of the Charter of fundamental rights and freedoms: "the contradiction lies in the benefits

the owner of the land against the owner of the buildings standing on the lot by

the law allows you to issue the land and building. The owner of the land, therefore, shall enjoy

greater legal protection than the owner of the building. " The appellants in support of the

its opinion shall state the citation of the decision, the High Court in

Prague SP. zn. 3 Cdo 45/92: "the Equal Protection of all forms of

property does not allow you to inspect the thing under consideration as if they

the plaintiff, as owner of the land, had more rights and as if the defendant

as a cooperative, the owner of the buildings standing on such land, had to

defer to the notion of ownership to the land. The former principle ' superficies solo

CEdit ' is not part of our legal order, since the effectiveness of the so-called

the middle of the civil code (Act No. 141/1950 Coll.), plus mode

the opposite is now explicitly expressed in the provisions of § 120 paragraph 1. 2

of the civil code. "



In the assessment of the appellants ' argument must once again point out the contents of the

of the concept of expropriation, as has already been interpreted in the preamble in paragraph

II. By comparing the provisions in question with that interpretation,

defining the concept of expropriation, must therefore be concluded that the

the provisions of § 11 (1) 7 of the Act No. 229/1991 Coll., as amended

regulations, establishes the expropriation of the Institute, in accordance with the conditions

laid down in article 4(1). 11 (1) 4 of the Charter of fundamental rights and freedoms.

Všeužitečným work or public interest pursued by the provision

It is one of the purposes enshrined in the preamble of the Act No. 229/1991 Coll., on

as amended: "Edit ownership relationships to the land, in accordance

with the interests of the rural economic development ". The structure contained in the

the provisions of § 11 (1) 7 of the Act No. 229/1991 Coll., as amended

regulations, allows you to achieve the purpose of the law forced the revocation of ownership

on the basis of the law, and for compensation. This construct should be therefore described as

expropriation and, therefore, consider that it is in accordance with the conditions

laid down in article 4(1). 11 (1) 4 of the Charter of fundamental rights and freedoms.



The argument of the High Court in Prague SP. zn. 3 Cdo 45/92

refers to the application of the provisions of § § 126 and 135 c of paragraph 1. 1 of the code of


the code, therefore, is based on a different legal basis:

Institute of restitution. As has already been stated, the provisions of § 11 (1) 7

Act No. 229/1991 Coll., as amended, should be considered as

not for the provision of restitution, but the provisions dealing with

conditions for expropriation. It follows that the plaintiff claimed

the decision of the High Court in Prague is not meant to apply to the provision of section

11 (1) 7 of the Act No. 229/1991 Coll., as amended.



In terms of the alleged inequality between the market price and the price of building construction

According to the regulation contained in the explanatory notes # 13a) (Decree No 182/1988

Coll., on prices of buildings, land, permanent crops, the share for the establishment of a

the rights of land use rights and personal compensation for the temporary use of the land,

as amended by Decree No 316/1990 Coll.), it should be noted that the explanatory notes

is not part of the law, and therefore cannot constitute as your

the result of the legal inequality. For these reasons, the Constitutional Court did not

The United States a contradiction of the cited provision with the Constitution of the Czech Republic.



II/c



With the provisions of article 15, paragraph 2. 1 and 4, and article 24 of Act No. 229/1991 Coll., as amended by

amended, the appellants argue their conflict with the article. 11 (1)

4 of the Charter of fundamental rights and freedoms: "this affects

ameliorating devices located below the surface of the land that are propagated

the ownership of the beneficiaries without a refund has been fixed for them (§

15 paragraph 1. 1 of the law), and the obligations of the obliged entities to reforest the land on your

costs under the conditions laid down in article 15, paragraph 2. 4. the same applies to both permanent

buildings and ameliorating devices that pass into the ownership of the

the owner of the land under the new wording of section 24 of the law. "



Explanatory memorandum to draft Act No. 182/1993 Coll. to the provisions of § 15 para.

1 States: "when returning agricultural land often required of the Organization

require beneficiaries to pay for land drainage and land reclamation

construction, for example. building drainage. Beneficiaries then argue that

divert ground water has changed the original biosystém so much so that this is more

about spoilage. A unique opinion have no soil experts. New

the legislation stems from the fact that taking care of the land, including amelioration, if

were made, was carried out as the care and diligence and that, therefore,

It is not an evaluation, if the improvement of the construction, for example. irrigation

systems, are not above the level of the soil, but the normal care of land, even if it was

costly. "



The appellants argue again the nature of the cited provision with

the constitutional terms of expropriation. In terms of the arguments submitted to the

(II)/and such a conflict came only in that case, if the

would the "ameliorative device located below the surface of the land"

considered a part of the case (the land), but as a separate thing.



Such an interpretation would be able to rely on a Decree No 34/1960 Coll.

obligations of owners (users) reclaimed land during operation and

maintaining the distribution of irrigation network and drainage, drainage and small

waste network: construction cancelled water cooperatives and

operation and maintenance of these parts of the amelioration projects. According to § 2 (2). 1

(a). and order parts quoted) amelioration construction also means the

"systematic network of tube and Mole drainage". According to the provisions of § 38 paragraph 1(a). 1

(a). (e)) of the Water Act (No. 138/1973 Coll.) between the water works

include buildings intended for drainage of the land. According to § 1 (1). 1 (b). and)

Decree No. 85/1976 Coll., on the more detailed land-use management and editing

building code, the building shall be considered as an underground leadership.



In the solution of the questions should be answered in the first place, whether they are concepts

building and immovable thing equivalents, and therefore the construction of drainage and land reclamation is

a separate immovable things, which is not part of the land.



Pursuant to section 119 paragraph 1. 2 of the civil code "real estate land and

construction of the associated with the country's Foundation. " From the above can be inferred that no

each building is an immovable things, but only that which is associated with

ground Foundation. "Ameliorative device located below the surface

"should be regarded as building that is not associated with a country

Foundation, and is therefore not an immovable things.



The provisions of § 119 of the civil code shows that all ... things

that could not be accommodated under the concept of real estate, movable nature "

(J. Bičovský, m. Habib, the civil code. Prague 1991, p. 91).

"Ameliorative device located below the surface of the land" would therefore be

in the case of movable things, if it is not possible to define, as a matter of

immovable or part of the immovable property (land).



Pursuant to § 120 paragraph 1. 1 of the civil code "part of things is everything to her,

by its nature it belongs and cannot be separated without this thing

to eat ". The case-law cited provisions in the context of the

interprets as follows: "a legal prerequisite components things is her

coherence without current depreciation of the case; It is

undecided whether to separate a damaged component. The depreciation of the things

However, you cannot be understood only in the narrow sense of the word, IE as the destruction or

at least substantial damage to things the main separate components;

by separating the components of the land plot as a matter of principal usually physically

does not harm the (wasted), but reduces its price; devaluation can thus be

understood also in terms of the reduction in value and, therefore, as a rule, and prices of things.

Write-down may mean that a case will be at a lower level to meet

their function (functional depreciation), and finally, you can consider

depreciation in terms of the appearance of things (a "debasement of aesthetic).

... part of the land within the meaning of the provisions of § 120 of the civil code are

also outdoor modifications (retaining walls, paving and edgings, water and

sewer connections, floral ponds, outdoor stairs, submitted

fences of a height of less than 100 cm, and others). " (R 4/1992). Cited

the decision was issued at a time when there was no doubt about the fact that

the principle of superficies solo cedit in civil law does not apply (see for example.

of the decision of the High Court in Prague SP. zn. 3 Cdo

45/92: "the former principle ' superficies solo cedit ' is not part of our

the rule of law since the effectiveness of the so-called middle of the civil code

(Act No 141/1950 Coll.), moreover, completely the opposite mode is now explicitly

expressed in the provisions of § 120 paragraph 1. 2 of the civil code. "



The essential components of the regular characters of the case is its functional and physical

connection with the Affairs of the principal, and the impossibility of its Department, without a thing

debased. "Ameliorative device located below the surface of the land"

characteristics: it is functionally and physically connected with the land and pay for them

the impossibility of his Department, without prevent the deterioration of the land, and thus

It must be understood within the meaning of part-land.



Therefore, from the above it follows that the provisions of § 120 paragraph 1. 2 of the code of

code, according to which "the building is not part of the land", should be

interpret the following paragraph 1, thus the building is not part of

the plot, if it comes to the construction, which is a matter of an immovable, or

If it is a construction that is things movable and which is not functionally or

physically connected with the plot and can be separated from him, without

depreciation of the property. Ameliorative devices placed under the surface of the land

whether you are building within the meaning of § 120 paragraph 1. 2 of the civil code, but

part of the land according to § 120 paragraph 1. 1 of the civil code.



For the indicated conclusion can indicate a legal argument: a sense of the principle, according to the

the ownership of the building ownership of the land does not follow automatically,

mainly applies to buildings, which are real estate. These represent the

legally a separate thing, the transfer of ownership which is required

the fulfillment of specific conditions (the written form, the deposit in the land register).

Buildings that are movable things, should be distinguished in terms of their

purpose, i.e.. whether they meet the characters, accessories or parts of the land.

Part of things, unlike the accessories, it is functionally and physically

an integral part of the things which it is not possible to separate from this, without

debased. Such an integral part of the land may also be construction,

that is a matter of a movable, whose land would be destroyed by the Department (e.g..

ameliorative devices, retaining walls, etc.).



The adoption of objections concerning compensation for built-in installations and, where appropriate,

unjust enrichment (under section 451 et seq. of the Civil Code)

would lead to legal disputes about the nature of the device in terms of:

appreciation or depreciation of the land. At the same time determine the obligations of the

a beneficiary to provide compensation for embedded devices would be based

its permissions to require mandatory of the person putting the land to its original

State. Both of these possible consequences would lead to thwarting the purpose of the law:

"to mitigate the consequences of certain property injustices that have occurred against

the owners of agricultural and forest property in the period from 1948 to 1989,

to improve the care of agricultural and forestry land by restoring the original

the ownership of land and adjust the ownership relationships to the land, in accordance

with the interests of economic and rural development in accordance with the requirements of the

creation of the landscape and the environment ".




In the already cited decision No. 11/1992 collection of resolutions and of the findings of the constitutional

Court of the Czech and Slovak Federal Republic expressed its understanding of the

the principle of equality: "it is for the State to ensure its functions

decided that a certain group will provide fewer benefits than others. Even here, however,

shall 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. " In the case in question is this

"public value" expressed the purpose of Act No. 229/1991 Coll., as amended by

amended, enshrined in its preamble.



In article 15, paragraph 2. 4 of the Act No. 229/1991 Coll., as amended, is

the purpose of the restitution law is fully respected, and that the fact that the law allows,

that the beneficiary has received a plot of land, together with what was his

accessories at the time of his withdrawal. in order for a securities

the settlement resolves a claim of the injured party (i § 442 paragraph 2 of the civil

Code).



Those arguments applies mutatis mutandis in the case of section 24 of the Act No. 229/1991

Coll., as amended.



A comparison of article 15, paragraph 2. 1 and § 24 para. 1 of the law

the inequality of the definition of a drainage device that is the subject of legal

editing in the cited provisions. Under § 15 para. 1 is subject to the

release simultaneously with land drainage and land reclamation facilities also located under the

the surface of the land, with the exception of the main device, amelioration according to § 24

paragraph. 1 are subject to the release of all ameliorative device located under the

the surface of the Earth (thus including the main).



For a given inequality relating to the same right to release

land, or from the General or specific provisions of the Act cannot be inferred

no reason. Should be therefore a contradiction of this adjustment with the constitutional

the principle of equality as expressed in the article. 11 (1) 1 of the Charter of fundamental rights

and freedoms.



When assessing the compliance of, or contrary to the law, and its provisions with

The Constitution of the Czech Republic and the constitutional law is the Constitutional Court of the Czech

Kingdom bound only Petite, but not its reasoning. Of § 68

paragraph. 2 Act No. 182/1993 Coll. on the contested court passes

provisions to deal with and other circumstances important for the assessment of

its constitutionality.



The provisions of § 24 para. 1 of the Act No. 229/1991 Coll., as amended

legislation, including Act No. 182/1993 Coll., there has been a significant change in the original

the legislation contained in the amended by Act No. 229/1991 Coll., the original

the provisions of the Act came the transition of ownership of the

the Czech Republic with the term extinction of the permanent exploitation of relationships to land by

the preceding regulations. In contrast, the revised provisions has changed

ownership for the permanent in the sense that for parcels

returned to the original owners, where the rent was set up with

the current user, the ownership passes to the permanent to the Czech

the torque of a termination of the lease (and also improvement of the device below the surface

land and buildings related with permanent crops). The legislature hereby

contrary to the conditions laid down in article 4(1). 11 (1) 4 of the Charter of fundamental

rights and freedoms, forcibly withdrawn ownership of permanent Czech

persons who have such a right was based on the original text of § 24 para.

1 of the Act No. 229/1991 Coll. the reasons lead to the conclusion of the cancellation

the provisions of § 24 para. 1 of the Act No. 229/1991 Coll., as amended

regulations.



The abolition of that provision with the proprietary rights to permanent Czech

also, in the cases of rent under section 22 of the Act No. 229/1991 Coll., as amended by

amended, governed by the provisions of section 2 (2). 2 of the Act.

The moment of the transition of ownership rights to the melioračním device in case of

the owners of the land on which the property rights shall cease under section 22

paragraph. 1 of the Act No. 229/1991 Coll., as amended, given by

the provisions of § 22 para. 1 and § 1 (1). 1 (b). (c)) of the Act, i.e.

the date of the acquisition of its efficiency; the range of devices that must be:

be considered as part of the land, as defined in article 15, paragraph 2. 1 of law No.

229/1991 Coll., as amended.



To permanent ownership arising from the lease period the Czech Republic is governed by the

the provisions of the civil code.



II/d



Under section 20 (2). 2 third sentence of the Act No. 229/1991 Coll., as amended by

amended, if you cannot determine the legal entity that things (IE.

alive and dead inventory and supplies, that the original owner had brought to the

agricultural cooperatives or have been withdrawn, or is otherwise free of charge

converted), or its legal successor or if this

legal person ceasing to exist, provide compensation for these things legal person

that at the date of 24. June 1991 land used by authorised persons.



In that case, the grieving resolves in a way that is legal

the person of the obligation to provide compensation for the injury and this injury

itself did not cause, nor is the legal successor of a legal entity, that it

has caused.



Article. 1, art. 3 (2). 1, art. 11 (1) 1 of the Charter of fundamental rights and freedoms

enshrining the constitutional principle of equality. According to the article. 4 (4). 1 of the Charter

fundamental rights and freedoms obligations may be stored only on the

under the law and within the limits of, and only, while maintaining the fundamental rights and

freedoms. It follows that the obligation founded § 20 para. 2 sentence

the third Act No. 229/1991 Coll., as amended, it must also

fundamental rights arising from the constitutional principle of equality in the

relation to the bodies referred to in paragraph § 18a. 1 of the Act. As has already been

stated "If the law specifies the benefit of one group and at the same time

provides a disproportionate obligations, can happen only on the basis of the

the appeal to public value "(decision No 11/1992 Collection resolution

and the findings of the Constitutional Court of CZECHOSLOVAKIA). In the case of section 20 (2). 2 third sentence

Act No. 229/1991 Coll., as amended, the legislature

such an appeal to the public values in relation to the bodies referred to in

that provision would not comment, and such an appeal can not be inferred

or from other provisions of the Act, in particular from the preamble, the words of

because the statutory obligation in the present case is not directed against

entities associated with application of the purpose of the Act.



Therefore, the Constitutional Court of the Czech Republic, as decided in the operative part

mentioned in relation to section 20 (2). 2 of the Act No. 229/1991 Coll., as amended by

amended.



II/e



In connection with the provision of § 33a of the Act No. 229/1991 Coll., as amended by

amended, the appellants argue his conflict with the article. 11 (1) 1

The Charter of fundamental rights and freedoms: "its contents are very rough way

favours a particular group of beneficiaries (those persons who associate

for the purpose of enforcing their claims) over other beneficiaries. "



Of the appellants ' argument can be inferred that it was maintaining the inequality

the Group of eligible persons who have banded together in accordance with § 33a paragraph 1. 3 of the law

No. 229/1991 Coll., as amended, in relation both to

other beneficiaries and beneficiaries under law No.

42/1992 Coll., on the adjustment of property relations and settlement of property

entitlements in cooperatives, as amended.



If the plaintiffs argue that "it is not at all respected the fact that

the approval of the transformation project has been the property of the cooperative is divided into

interests of the beneficiaries "should be pointed out, the provisions of section 7 of the

paragraph. 1 and 2 of Act No. 42/1992 Coll., as amended, by

which the net assets of the cooperative is not included in the assets, on which he was

claim pursuant to Act No. 229/1991 Coll., as well as the deposit,

laying down, pursuant to section 16 (a). (b)) Law No 42/1992 Coll., as amended by

amended, means movable and immovable property, brought in a member.

Furthermore, the net assets shall be deducted from the amount to be used for

meet other restitution claims after the effectiveness of Act No. 42/1992

Coll. pursuant to § 7 para. 4 of law No. 42/1992 Coll., as amended

legislation, holding an authorized person on the transformed cooperative

make up the sum of the basic share and other share in the assets of the cooperative.

The base also forms, as defined above, share deposit (§ 7 paragraph 3

of the cited Act).



It follows that an authorized person pursuant to Act No. 42/1992 Coll., on

as amended, is not considered to be at a disadvantage in

relation to eligible persons under the Act No. 229/1991 Coll., as amended by

amended. The two groups of beneficiaries are entitled to a

the return of the assets. The decision about the expedience of the procedure according to the law No.

229/1991 Coll., as amended, or pursuant to the Act No.

42/1992 Coll., as amended, the legislator confers on the

the authorized body (if it is an entitled person under both cited

laws). The diversity of legal consequences is determined by the purpose of both acts. This

the diversity is not to be considered a violation of article 6(1). 11 (1) 1 of the Charter

fundamental rights and freedoms, because the legislature person authorised under

both cited laws provides the option, IE. personal assessment

advantages one of the two possible legal provisions.



Even the Association of lenders in accordance with § 33a paragraph 1. 3 of the Act No. 229/1991 Coll., on


as amended, is not meant to be considered as a benefit in respect of

to other creditors. The content and scope of the following combined claims, secondly,

corresponds to the sum of the individual claims of creditors, and the ability to bring together

allows you to meet the claims of creditors ' rights by issuing the things higher

values, which would not be possible to satisfy the claim of a creditor.



II/f



In support of its proposal, the appellants argue the unconstitutionality

the provisions of § 8 para. 3-5, § 11 (1) 7, § 15 para. 1 and 4, section 20 (2).

2, section 24 and 33a of Act No. 229/1991 Coll., as amended,

While "due to the fact that the only provisions of the Act cited interference

a failure in its purpose thanks to various internal trips in the Act "

asking the plaintiffs in all the remedies of law no 183/1993 Coll.



Due to the fact that the appellants referred to the "inner building"

with children, as well as due to the fact that the Constitutional Court of the Czech Republic

protiústavními only part of the provisions found § 8 para. 3,

the provisions of § 8 para. 4, part of the provisions of § 8 para. the provisions of § 5, section

20 (2). 2 and the provisions of § 24 para. 1 of the Act No. 229/1991 Coll., as amended by

amended, the proposal was dismissed as to the remainder.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.