In The Matter Of The Application For Revocation Of Options. Provisions Of The Insolvency Law

Original Language Title: ve věci návrhu na zrušení někt. ustanovení insolvenčního zákona

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=71585&nr=241~2F2010~20Sb.&ft=txt

241/2010 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled on 1 May 2004. July 2010 in plenary in the composition of Stanislav

Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Ivana Janů,

Vladimir Crust, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým,

Pavel Rychetský, Miloslav Výborný, Elisabeth Wagner and Michael April

about the design of SCA Packaging, Czech Republic s. r. o., established Teplická

109, Clay, Central Bohemian gas, a. s., Reg. No.: 60193158, registered office:

Novodvorská 803/82, Prague 4, and RWE energy, Inc., headquartered in Usti nad

Labem, 940, Klíšská streets on the repeal of § 192 paragraph 2. 1, section 198 paragraph 1. 1, § 199

paragraph. 1 and § 201 paragraph. 1 of law No. 182/2006 Coll., on bankruptcy and how to

his solution (insolvency law),



as follows:



I. the provisions of § 192 paragraph 2. 1 the first sentence including the semicolon sentence law

No 182/2006 Coll., on bankruptcy and the ways of its solution (insolvency law),

as amended, is hereby repealed on 31 December. 3.2011.



II. The remainder of the draft.



Justification



(I).



Conduct of the procedure



1. The Constitutional Court has received the above-mentioned constitutional complaint

the appellants against the decisions of the insolvency administrator of the debtor and against

procedure, the municipal court in Prague under those insolvency proceedings,

associated with the proposal to repeal section 192 paragraph. 1, section 198 paragraph 1. 1, § 199 para.

1 and § 201 paragraph. 1 of law No. 182/2006 Coll., on bankruptcy and how his

the solution (insolvency law).



2. The plenary Constitutional Court brought together all three proposals, and the matter is conducted

under SP. zn. II. TC 1412/09.



3. the second Chamber of the Constitutional Court did not find the reason for the rejection of the constitutional

the appellants ' complaints pursuant to section 43 of Act No. 182/1993 Coll., on the constitutional

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

the Court "), since the application of the contested provisions has occurred, the fact

that is the subject of a constitutional complaint, the formal conditions are met

its consideration of paragraph 1 pursuant to § 43 1 of the law on the Constitutional Court and the constitutional

the complaint was found to be manifestly unfounded pursuant to § 43 para. 2 (a).

and, because of this Act) within the meaning of § 78 para. 1 of the law on the Constitutional Court

proceedings on constitutional complaints and a proposal to repeal the above-mentioned

provisions of the insolvency law to the plenum of the Constitutional Court stepped

decision under article 9(1). 87 para. 1 of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution").



II.



Recap of design and substantial portions of the observations of the parties



4. The appellant SCA Packaging, Czech Republic s. r. o., stated that with

other creditors, the insolvency practitioner presented a comprehensive legal analysis,

detailed legal reasoning indicative of the denial of the claims other

creditors and proposed evidence which would procure for the proper findings

accounts receivable. Suggestions on the taking of evidence, the insolvency practitioner did

and also consider the legal arguments set out in the legal

analysis. If the municipal court in Prague during insolvency

management learned that a significant proportion of creditors reasonably disputes

claims that interveners have a decisive influence on the

satisfaction of claims of other creditors, should save the insolvency

These initiatives address the Manager and make detailed enquiries about

at the time the claims. The City Court, however, in the context of its

Supervisory Board also observed activities totally idle. When you review the negotiations was limited

only the lessons according to § 192 paragraph 2. 1 the Insolvency Act and instructed

the creditors that do not have the right to deny the claims of other creditors.



5. The appellant Středočeská plynárenská, a. s., has stated that the insolvency

both the administrator and the Court did not pay much attention not only hardened

the facts and the legal objections to the appellant and other creditors

listed above, but in particular the proposed and even submitted

evidence in the form of "analysis of cash flows in the company of Bohemia

CrystalEX Trading, a. s., in 2001 ". On this evidence, there was no

the insolvency administrator or the Court decided.



6. The appellant RWE energy, Inc., stated that the review meeting

requested that the claim of Citibank was paid special attention,

doubts regarding this claim has been notified in writing in advance and

Court and in writing and orally to the insolvency practitioner. Nato told the Court

the appellant, that she was given the opportunity to make representations in writing to the

claims will not be accepted by Citibank and the denial of the claims to the creditor,

that the insolvency law does not allow. The appellant RWE energy, and s.

the Court proposed to save the insolvency practitioner, to his decision to

the claim of Citibank, and given the final read on the nature of the review

given the appellant's objections to the proper justification. The insolvency administrator

that it is not for the insolvency practitioner to deal with in the framework of the

review of claims by the claims of creditors, analysis of financial statements and

legal considerations, and this should belong solely to the Court. In the comments

insolvency administrator so publicly was not one argument, which would

the conclusions of the legal opinions conflicted with Joseph submitted by the appellant. Yet

the Court satisfied itself with it.



7. The appellants argue in relation to the contested provisions of the

Insolvency Act, that an incorrect login or recognition (uncontested)

specific claims of certain other creditors in insolvency proceedings

insolvency administrator means as a result of shortening of the satisfaction of their

claims, that is, prejudice their rights, especially the rights of ownership.

The decisions of the insolvency administrator for recognition or denial of claims namely

Specifies the hard right of the creditor to its relative satisfaction in the context of

insolvency proceedings (including other consequences). In the case of recognition of the

the lender's claims, therefore, consistently speaking (amongst other things) decides on the amount of

(proportional) to the satisfaction of the other registered creditors whose

competition with each other's claims. If the insolvency practitioner will deny

disputed claims, other creditors the opportunity to make a real

authenticity, above, and the claims were detected before an independent and

impartial tribunal, and not so populated with the fundamental right to request

judicial protection under article 5(2). paragraph 36. 1 of the Charter of fundamental rights and freedoms

(hereinafter referred to as "the Charter") and article. 6 Convention for the protection of human rights and

fundamental freedoms (hereinafter referred to as "the Convention"). The position of the insolvency administrator,

as provided for by insolvency law, certainly cannot be build on an equal footing

an independent and impartial judicial authority as it assumes the article. 36

paragraph. 1 of the Charter and article. 6 of the Convention. The essential attributes of independence and

the impartiality of the judicial authority is, in particular, non-repudiation,

nepřeložitelnost and provisions to function without a time limit.

Insolvency administrator on does not meet the nesesaditelnosti, since the attributes

According to § 29 para. 1 insolvency law is revocable, and on the basis of

hlasováni a majority of the registered creditors by the above

claims. Whereas that, by denying the claim of other creditor

protects the creditor at the same time its assets-and thus the basic-law,

infringe the contested provisions and article. 4 of the Constitution, article. 13 of the Convention, and also article.

11 (1) 1 of the Charter and article. 1 of the additional protocol to the Convention. The reason for this

the adoption of the contested provisions appear to be abuse of the rights of the popěrného

some lenders and efforts up to speed up insolvency proceedings. This

certainly a legitimate aim, however, must be in accordance with the principle of proportionality

(proportionality), which is expressed in the article. 4 (4). 4 of the Charter, according to which

the Donington limitation of fundamental rights and freedoms must be preserved and

the meaning of. The contested provisions from the beliefs the appellants fully

vybočila the limits of proportionality, since the principle of unreasonably speed

preferred before the principle of the protection of the property rights of creditors.

The European Court of human rights (hereinafter referred to as "the ECHR") always in these

stresses the principle issues, a fair balance between the general interest

the Community (and society) and the right of the individual to protection of property and

in this context, always examines whether State intervention into economic rights

individuals are not too much for him and disproportionate burden.



8. in addition to the proposal of RWE Power, the appellant and, in particular,

that the absence of popěrného rights and the current form of the Insolvency Act

konvenuje the interests of the large and the nature of their business is always secured by

creditors-the banks and harms way other unsecured creditors, whose

the rate of satisfaction with the new Insolvency Act compared to the previously

applied Act No. 328/1991 Coll., on bankruptcy and settlement, reportedly (and

completely unjustifiably) decreased from average 9 to 4% (the data are

unverified). It is an open secret among insolvency practitioners that

claims of banks in the Czech Republic do not have to undergo a thorough

the review, as there is a strong belief that the banks represented

renowned law firms in the emergence of errors, administration and collection

In short, do not make their claims. Legal requirements per person

the insolvency administrator or the option to sue ex-post against insolvency

compensation Manager, cannot be perceived as adequate measures

balancing the rights of the creditor denied popěrného. According to the article. 13 of the Convention and


settled case-law of the European Court of human rights, however, is not

Institute of compensation is considered an effective remedy

the wrong decisions before a national authority, it is not a patch

a resource that would be truly effective and efficient, it is able to only

remedy (or mitigate) the adverse effects of a faulty decision in

the realm of property damaged. You can hardly imagine

However, the creditor is damaged in costly proceedings in the system

contemporary Czech justice was able to effectively be enforced within a reasonable time

the insolvency administrators for damages in the hundreds of millions of Crowns,

incurred as a result of the faulty examination of receivables insolvency

by the administrator.



9. in the next addition to the proposal of RWE Power, and the appellant, refers

some of the foreign legislation (Austria, Germany, United Kingdom

etc.), by which the creditors granted popěrné the right.



10. The Chamber of deputies in its observations on the draft indicated that law No.

182/2006 Coll. was commanded to hear constitutionally legal Committee, which

It has discussed at its meeting on 1 May 2004. December 2005 and 20 March. January

2006 and recommended it be approved in its version of the comprehensive amendment

the proposal, which was contained in the Committee's resolution No. 235 (1120/1). This

a comprehensive amendment edited by new provisions of § 192 paragraph 2. 1, §

paragraph 198. 1, § 199 para. 1 and § 201 paragraph. 1. the draft law was approved by the

in the third broken on 8. in February 2006, as amended by the comprehensive amendment

the proposal constitutionally legal Committee and other amendments, which are

already, however, did not concern those provisions.



11. The Senate said that, as in the committees of the Senate, as well as at the meeting of the Senate to

the provisions, which are proposed for abolition, were no

the discussion. In the light of the above, it can be stated that in the upper Chamber of the

Parliament nezazněly opinions, which would be able to claim

the appellants, on the unconstitutionality of the provisions of § 192 paragraph 2. 1, section 198 paragraph 1.

1, § 199 para. 1 and § 201 paragraph. 1 the Insolvency Act to support, or

on the contrary, to refute.



III.



The diction of the affected provisions of the Act



12. the contested provisions of § 192 paragraph 2. 1 the Insolvency Act reads as follows:

"The debtor and the insolvency practitioner may deny the authenticity, amount and order

all submitted claims; individual lenders do not have this right.

Is of the opinion that the official receiver has delivered to individual claims

in the list of registered claims, review meetings

change. ".



13. the contested provisions of section 198 paragraph 1. 1 the Insolvency Act reads as follows:

"Lenders unenforceable claims that have been refuted by the insolvency

an administrator can exercise its right to sue on the determination of the insolvency

Court within 30 days of the review meeting. However, this period will end no earlier

before the expiration of 15 days from receipt of notification pursuant to § 197 paragraph. 2. the action

serves always against an insolvency practitioner. If there is no action in the

the prescribed time limit, the Court on a claim to popřené

authenticity shall be disregarded; popřená the amount of the claim or the order is in

such a case is detected in the amount or the order specified when it is

denial. ".



14. the contested provisions of § 199 para. 1 the Insolvency Act reads as follows:

"The insolvency practitioner, who denied the enforceable claim, it shall within 30

days of the review hearing in bankruptcy court, that its

denial will apply against creditors that enforceable claim

signed up. The time limit is maintained, if the action occurs not later than the last

day of the period of the Court. ".



15. the contested provisions of § 201 paragraph. 1 the Insolvency Act reads as follows:

"The claim is determined to be Unenforceable and did not deny it)

the insolvency practitioner, b) if the insolvency practitioner, that had denied her,

take your denial of the back, or (c) by a decision of the insolvency court)

the dispute about how to determine its authenticity, or above the order. ".



IV.



The constitutional conformity of the legislative process



16. the draft insolvency law, which was promulgated under no.

182/2006 Coll. (print 1120/2 Chamber of Deputies 2002-2006, 4.

the election period), was being discussed in the Parliament of the Czech Chamber of Deputies

the Republic as printing 1120 on first reading on 26 April. October 2005 and referred to the

discussion of the constitutional legal Committee, which discussed at its

meeting on 1 May 2004. December 2005 and 20 March. January 2006 and recommended it

approve as a comprehensive amendment, which was included in the

the Committee's resolution No. 235 (1120/1). This comprehensive amendment

edited by newly targeted exploit provisions. Second reading of the Bill took place

27 June 2002. January 2006, amendments in second reading have been

treated as print 1120/2. The Bill was a necessary majority

MPs approved in the third reading on 8. in February 2006, as amended by

comprehensive amendments. The Bill was referred to the Senate the day

February 28, 2006, the Organizing Committee and the Senate as a print # 288 (5.

term of Office) ordered to discuss the constitutional legal Committee. This

the Committee discussed the Bill on 15 December. March 2006 and adopted it

resolution No. 93 (Senate document No 228/1), in which it recommended that the Senate

the draft law approved by the Chamber of deputies in the wording of a transferred.

The plenary of the Senate discussed the Bill on its 10. meeting on 30 November. March

2006, when in a vote no. 199 to the draft law, resolution No. 416 proposal was

approved as amended by the Chamber of Deputies transferred. For voted 49

Senators from the present 54, 5 Senators abstained and no one was

against. The law was delivered to the President to sign on 7 December. 4.2006 and the

to 14 June. 4.2006, he signed. The approved law was delivered to the Prime Minister

the signing on 27. 4.2006, and he was named in the statute book of the day 9. 5.2006

the amount under the number 62 182/2006 Coll.



17. The Constitutional Court notes that law No. 182/2006 Coll. was adopted and

issued within the limits of the Constitution laid down the competence and constitutionally prescribed

in a way, and that in this proceeding did not detect anything that suggested for

conclusion the opposite.



In the.



Reviews of the Constitutional Court



18. The Constitutional Court first dealt with the position of the insolvency administrator

in recognition of the claims of creditors in insolvency proceedings and evaluate it

as the position of a public authority, and not as a representative of the creditors.



19. The Constitution does not define the concept of public authority; because of its content-related

the border stepped up the Constitutional Court in its case law, in which the

He attached. power theory [cf. e.g. the decision of the constitutional

Court of the Czech and Slovak Federal Republic SP. zn. I. TC 191/92 of

on 9 April. 6.1992, collection of resolutions and of the findings of the Constitutional Court and the

Slovak Federal Republic, year 1992, decision No 3; the resolution of the

The Constitutional Court, SP. zn. II. TC 75/93 of 25 October. 11.1993 (for 3/2 SbNU

201) ^ *; and others].



20. the recognition of the claim of the creditor the insolvency administrator is regulated in §

188 et seq.. the Insolvency Act. The insolvency practitioner by

advertisement on the claim shall recognise (the peculiarity), specifies the binding on the creditor's right

his relative satisfaction in insolvency proceedings (including all

other consequences associated with the result of the review, i.e. voting and participation

creditor institutions. penalties and other procedural rights, and

obligations), and at the same time the binding specifies the right of all other

creditors on their relative satisfaction [the result of the recognition of the claim

the lender is also to determine the amount of (relative) meet other

registered creditors whose claims have competition with each other].

Recognition (uncontested) the insolvency administrator has resulted in

the findings of the claims in the insolvency proceedings with final

expired.



21. Although the Insolvency Act expressly does not state what the nature of the Act has

insolvency practitioner, which manifested the will to recognize logged-in

the claim, is the Act of the insolvency administrator naturally necessary to examine

based on a material point, i.e.. According to its true nature and effects of the

[cf. e.g. resolutions of the Constitutional Court, SP. zn. IV. TC 233/02 of 28 October 1999.

8.2002 (30/27 SbNU 337)].



22. On the issue is applicable and legal opinion in sentencing

finding the case-law of the Constitutional Court. The Constitutional Court. the sp in the award.

Zn. PL. ÚS 36/01 of 25 June. 6.2002 (N 80/26 SbNU 317; 403/2002 Coll.)

expressed legal opinion that the administrator in bankruptcy is not a participant

bankruptcy proceedings; as a special body has a separate process

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

be considered representative of the bankruptcy creditors or any representative of the bankrupt.

The Constitutional Court then added that "on the basis of considerations

defining the concept of public authority: public purpose,

tenure and jurisdiction. The public purpose of the institution of the receiver

the substance to be found in the acceptance of limited public intervention in

solution of property relations, which have fallen into a crisis situation. Way

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

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

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

nature (when the administrator cannot be considered representative of the bankruptcy creditors

or for a representative of the debtor in bankruptcy) is an exercise of authority (unlike


heteronomní nature of public acts, acts of private-legal

acts-autonomous nature). ".



23. the purpose of the institution of the insolvency administrator should also be seen as a

in the acceptance of limited public intervention in the solution of property relations,

which were in a crisis situation. Its permissions, which are enshrined in the

a number of the provisions of the Insolvency Act, due to their heteronomní

nature (when the insolvency practitioner cannot be considered representative of the creditors of the

or for a representative of the debtor), then represent the exercise of authority (cf. e.g..

just the power to recognise claims about an issue

It is also, in this case). The method of its establishment is determined by the decision of the State

Authority (Court), according to § 25 of the Insolvency Act (cf. para. 1 sentence

the first: "the insolvency administrator for the insolvency proceedings establishes

the insolvency court. ")



24. nothing on it does not change the fact that in the process of alignment

the insolvency practitioner may-or may not-play a role whether or not participation

lenders on the selection of an administrator. The person of the insolvency administrator, creditors may

only change, they can proceed only after the completion of the review meeting

(section 29 (1) of the Insolvency Act), when it is no longer possible to assess

the accuracy of the claims by the individual applications of the claims (according to the

§ 192 paragraph 2. 1 the Insolvency Act insolvency practitioner may your

opinion on the claims of the change not later than on logged-in review

meeting).



25. Indeed, the explanatory memorandum to the draft law stated explicitly that

the insolvency practitioner is a special procedural undertaking that is neither

representative or a representative of the debtor's creditors. The intent of the legislature that

the insolvency practitioner is not a representative of creditors, not when

discussion of the draft law and called into question was declared just in

connection with the creditors ' options to replace the person of the insolvency administrator.



26. The proposition that the insolvency administrator when you mention (authenticity, above and the order)

registered claims is acting as a representative of the creditors, it is, of course,

also excluded by the nature of things, in insolvency proceedings as a general rule stands out

more creditors, whose claims but in competition with each other. In addition, i

According to section 24 of the insolvency law, the grounds of bias of the insolvency

the administrator may also relate to the parties; thus not only the debtor, but also

his creditors. How could he be an insolvency practitioner podjatý due to

his own relation to the persons creditors (fairness in this direction requires

section 24 of the Insolvency Act), though at the same time apply the proposition that

the insolvency practitioner is a representative of creditors.



27. the insolvency practitioner so authoritatively decided on the rights and

obligations of creditors, who are not in an equal position with

the insolvency administrator, the decision does not depend on their will. For

the decisions of the insolvency administrator so can be considered the opinion of the

the insolvency administrator of the claim of a creditor on the review hearing, the

that is expressed in the list of registered claims, which is annexed to the

the review of the Protocol negotiations.



28. The appellants claim by reason of unconstitutionality notably

the provisions of § 192 paragraph 2. 1 the first sentence including the sentence with a semicolon

Insolvency Act, according to which: "the debtor and the insolvency practitioner may

denying the authenticity, amount and order of all registered claims;

individual lenders do not have this right. "



29. The contested provision contains an exhaustive list of categories of persons that

they have the right to deny the claim. In addition, this standard is Seznatelnost

strengthened by explicitly specifying that individual lenders (that is, i

the appellants do not have this right).



30. The basic purpose of insolvency law in an undecorated insolvency law

the solution is property of a debtor who is bankrupt, and satisfaction

the claims of creditors of the debtor of the estate of the debtor. For example, the

According to § 1 (b). a) Insolvency Act, "this Act regulates

solution to the impending bankruptcy of the debtor's bankruptcy and court proceedings of any of the

set out ways so that there was an arrangement of property relations to

persons affected the debtor's bankruptcy and to what the highest and

the relative satisfaction of the debtor's creditors. ". More creditors claims

the right to the satisfaction of their claims from one of the estate of the debtor.

Incorrect login or recognition (uncontested) the insolvency administrator

that claim (its authenticity, above, the order) of one lender may

therefore have resulted (among other things) the satisfaction of the claim of the second

the creditor to a lesser degree, than would be possible provided that

the findings of the accounts receivable. Can consistently speaking signpost them prejudice

property rights of creditors and other parties concerned of his rights (cf. further

consequences associated with the result of the review, i.e. voting and participation in the

creditor institutions. penalties and other procedural rights, and

the obligations). We agree that the decisions of the appellants '

the insolvency practitioner that compared the claim or

denies (or to what extent), specifies the creditor's right to its binding

the relative satisfaction in insolvency proceedings (including any other

consequences associated with the result of the review), and at the same time binding

decide on the right of all other creditors on their pro-rata

satisfaction. As reported by the scientific literature, not infrequently occurs that in

insolvency proceedings are trying to promote their influence of the person claiming

they are creditors, although they in fact are not, or will the whole series

creditors trying to intentionally overcharge (overestimate) the amount of their claims,

to gain more influence in this proceeding, before they deservedly belongs (cf..

for example. Taranda, p.: over some of the context, the penalties for nadsazenou

application in insolvency proceedings, taxes, 2008, no. 6, p. 53).



31. the contested provision excludes the possibility of one creditor

call into question the claims of other creditors, through any

cause of action, e.g.,. on the basis of a reasonable application of the civil

Code of civil procedure. The standard legal instrument to

disputing claims of a creditor of the debtor is being called. popěrné right.

If the § 192 paragraph 2. 1 the first sentence and the sentence after the semicolon

insolvency law denied the right to deny the claims of creditors of the other

the creditors, the legislature showed that lenders will have the option to pursue

the disputing claims to not only act within the framework of the review popěrným

negotiations, but neither any legal Institute the application of law (such as the

for example. an action to determine the claim of other creditor or an appeal against a

the decisions of the insolvency administrator). With respect to all other procedural

resources for authors ' rights is, therefore, § 192 paragraph 2. 1 the first sentence and the sentence for

a semicolon insolvency law lex specialis. Otherwise, it would

There were circumventing the will of the legislature, the provisions of § 192 paragraph 2.

1 the first sentence and the sentence after the semicolon Insolvency Act would lose

reasonable sense.



32. the problems with the methodology outlined in its finding the Constitutional Court case law

already dealt with.



33. In finding SP. zn. PL. ÚS 73/06 of 29 April. 1.2008 (N 23/48 SbNU 263;

297/2008 Coll.) the Constitutional Court examined the constitutional legal konformitou

the scheme, which was limited by the fact that the circuit was a tax guarantor

entitled to argue in an appeal against the "surety" challenge.



34. In this award [as well as subsequently in the findings, SP. zn. PL. ÚS 12/07 from

on 20 April. 5.2008 (N 90/49 SbNU 247; 355/2008 Coll.) or PL. ÚS 42/08

21.4. 2009 (163/2009 Sb.); both available at http://nalus.usoud.cz]

the Constitutional Court of law expressed the view that article 36 para. 1 of the Charter

establishes the right of everyone to seek protection of his rights in court or other

authority. Meaning and purpose of this provision is to define the obligations of the

State to provide protection of the rights of everyone, as in the rule of law cannot

exist situations in which the holder of rights could not enforce its protection

(in court or another authority). It is generally from the fact that the State

There is, therefore, that its citizens, but also the visitors on its territory,

protect to provide guarantees that their rights will be protected.

Paragraph 4 of the article. 36 of the Charter (which basically referred to in paragraph 1 of the article.

36 of the Charter of textací "in") refers to the law that

modifies the "conditions and details" in relationship to all the previous

paragraphs in the article. 36 of the Charter, however, such a law, issued on the basis of the

the constitutional mandate is the provision of article. 36 of the Charter, bound, since its content

therefore cannot depart. The sense and purpose of the "ordinary" law pursuant to art.

paragraph 36. 4 of the Charter is only to lay down the conditions and details of implementation

as to their content (already) in the ústavodárcem article. 36 of the Charter enshrined

rights, i.e., the conditions and details of a purely procedural nature (rather than

"materiálněprávní"). The Constitutional Court also stated that "it is so

irrelevant argumentation, that the key consideration for the constitutional conformity

such a law is on the rise. the rate of these constitutional rights denied

legislature, etc., as argued for example. The Supreme Administrative Court in

judgment SP. zn. 2 Afs 51/2004: "... the constitutional kautely resulting from the article.

paragraph 36. 1 of the Charter of fundamental rights and freedoms and from article. 1 (1). 1 of the Constitution


However, it does not allow them to tax the guarantor was so extensive.

denied the right to effective defence of his subjective public rights

...". To each according to the article. paragraph 36. 1 of the Charter, the right to seek the protection of the

their rights in court or other authority, with the conditions and rules

the realization of this right are determined by law, then such law, issued on

the basis of the constitutional mandate, cannot claim any claim of protection

their rights in court or other authority in a situation completely negate, and

Thus, constitutionally guaranteed fundamental right to deny. The provisions of article 36

paragraph. 1 of the Charter is constitutionally guaranteed to everyone the opportunity to pursue

the protection of their rights in court or other authority for all situations.



35. It follows, moreover, from the axioms of rational ústavodárce. With it would

conflict the idea of ústavodárce, in which legislators left

the competence of the fundamental constitutional values to anchor in the form of basic

rights and freedoms (contained in the list) at the same time, however, distrusted (therefore it is

it anchors itself), in principle, the free space for the embedding of custom content

one of the fundamental principles of the rule of law in the form of guarantees

judicial protection of public rights, i.e. the subjective. When

the individual may claim the protection of their rights and when not. In such a

a hypothetical case, so ústavodárce in the substantial part of the downgraded

This key principle of the rule of law principle on virtually only

legal [with regard to its content (in principle) the determination of the will

"ordinary" legislator].



36. Not so than inferred that the legislature in the contested provisions

restricted, even nullify the right of a creditor to seek protection of his rights in the

Court or other authority, and thus the fundamental right pursuant to art. paragraph 36. 1

Of the Charter in these cases, denied. The contested provisions of § 192 paragraph 2. 1

the first sentence, including the sentence with a semicolon Insolvency Act is in violation of

with the article. paragraph 36. 1 of the Charter. In addition, according to the article. 4 (4). 4 of the Charter must be

investigated the nature and meaning of the basic law, that is, the basic law cannot be

deny, which, however, the contested provision has made. The contrary view would be in

contrary to the top-cited finding from the case-law of the Constitutional Court

where, however, the Constitutional Court did not find reason to deviate.



37. Indeed, the previous edit in the section 21 para. 2 of the Act on bankruptcy and

the settlement, which-unlike the current editing. popěrné right

other creditors acknowledged his proving that constitutionally Conformal status

granted right of creditors to deny the claims of other creditors is

possible.



38. You cannot regard the Prague municipal court argument referred to in

the answer to the constitutional complaints that the intervention in the article. paragraph 36. 1 of the Charter is

justified effort to arrest the head of the popěrného rights e.g. abuse. to

delays in the proceedings. And it already because it anticipates the intention of lender abuse

right though the cause (the denial of the claim of other creditor) may be

objective (especially incorrect claims another

the creditor). Access to the Court cannot be subject to speculative reflection type

the presumption of guilt [as follows after all, argued the Constitutional Court already in the award

SP. zn. II. TC 217/98 of 22 December 1998. 6.1999 (N 95/14 SbNU 283)]. It is necessary to

find other ways to prevent the abuse of rights in the

insolvency proceedings (which, moreover, insolvency law in other aspects of the

meets-cf. for example. prevention against abuse of the right login

claims under section 178 of the Insolvency Act). Indeed, the exploit can be

any right, which would have taken ad absurdum criticized the logic of

mean that no right could be granted to any operator,

because it can be exploited.



39. Speed control can be considered only in the context of a specific-

the fairness of the process. The process, even if it was guaranteed as the "fast"

would not a reasonable meaning, if it is not fair, negarantoval

just the result, hence (inter alia) if it did not have any possibility

to seek protection of their rights (as to the conceptual part of the process).

Fundamental right pursuant to art. paragraph 36. 1 of the Charter, each to protect their

rights can be realized in the proceedings, the nature of matters precedes speed

This control is how it obligatorním the starting point. Otherwise the process and in

his speed almost became samoúčelem.



40. The fulfillment of the requirement of speed control is guaranteed in other

instruments of the Insolvency Act. For example, the explanatory memorandum to the draft

Insolvency Act-which, vice versa, from the contested provisions,

the construction popěrné the right of creditors-sets out explicitly that the "goal is to

to achieve the speed and efficiency of the management. Achieve speed and

the aim of the efficiency of the management and the goal of perhaps every procedural adjustments. Practice

certified by the fact remains, however, that this objective cannot be almost never

achieve just by introducing formal by the deadlines. A proposal from the

Insolvency Act establishes a formal time limit on the number of places the riot (in the

compared with the existing editing more often), but it relies on the concept, according to

that these time limits will push through only in conjunction with other measures

(other legal provisions), which allow the riot

actually comply with the time limit. Following this intent creates an outline

scope for differentiated approaches, simplifies management by

removes its stage and removes some of the institutes, which allowed

stretching control. This is for example. on leaving the Institute to the withdrawal period in the

the current concept, which suggests that the malfunction in the years 1998 to 2003

including was only allowed 8 withdrawal periods. The proposal also allows you to

abridged proceedings and procedures and creating the conditions for a real application of the

procedural sanctions and for pecuniary liability of the persons in the management

shall act in a manner that is contrary to its purpose. Of considerable importance from the

This perspective has the inclusion of incidental disputes within the framework of

the insolvency proceedings. In General, though, there is no procedural law (albeit

would be perfect) does not ensure the speed and efficiency of the procedure from

(that there is), but that such a standard only provides (it has

provide tools which process) operators can be used for effective and

Quick protection of rights. In this context, it should be noted that a number of

the shortcomings of today's bankruptcy proceedings lies in the particular application practice

courts and administrators who do not benefit from or only partially use the possibilities,

They even today's modification. The proposed adjustment to trying these

avoid the shortcomings and the fact that puts the emphasis on the highest possible level of

the predictability of the steps of all the bodies involved in the running of the

insolvency proceedings and to the highest possible degree of transparency, so that the

for all subjects was detectable, what rights and obligations in that

which stage of insolvency proceedings have. ". After all, the originator of the proposal

Insolvency Act argued in the first reading in the Chamber of Deputies

in support of its adoption: "another important element of the draft insolvency

the law is the emphasis on the unity of the insolvency proceedings and minimize

the time complexity of the entire process. ".



41. in the first reading the draft insolvency law still contained

the provisions of the contested provisions of the opposite, IE. construction popěrné

law and creditors. After all, the Insolvency Act insolvency policy

procedure dictates that insolvency proceedings must be conducted so as to

rapid satisfaction of the creditors [cf. section 5 (a))].



42. In a similar sense, moreover, the contested provisions in breach of article. 6

paragraph. 1 of the Convention, since it is not a requirement that each of the civil

rights or obligations are involved, must be guaranteed the right to access to court

(cf. find SP. zn. PL. ÚS 73/06-see above).



43. that finding is especially true in situations where the

the creditor, by denying the claim of other creditor seeks the protection of not only

"ordinary" law, but the basic law. From the case law of the European

Court of human rights and of the Constitutional Court, it is clear that the concept of "property"

contained in the first part of article 1 of the additional protocol to the Convention has

autonomous scope, which is not limited to the ownership of tangible assets and

does not depend on formal qualifications in national law. May include

how ' existing assets, "so the assets, including accounts receivable, the

the basis of which the individual may claim that their fulfilment is

at least the "legitimate expectations" (ésperance légitime/control

a positive expectation). Such a legitimate expectation is according to the case-law

The European Court of human rights, as well as the Constitutional Court [e.g.,

findings in matters SP. zn. PL. ÚS 2/02 of 9 June. 3.2004 (N 35/32 SbNU

331; 278/2004 Coll.), IV. TC 525/02 of 11 March. 11.2003 (N 131/31 SbNU

173) i. ÚS 287/04 of 22 December 2004. 11.2004 (N 172/35 SbNU 331), i. ÚS

344/04 of 15 January. 12.2004 (191/35 N SbNU 497), i. ÚS 353/04 of 16 June.

6.2005 (N 124/37 SbNU 563)] an integral part of the protection of property

rights. The contested provision is therefore strictly speaking, contrary to article 1

The additional protocol to the Convention and article. 11 (1) 1 of the Charter (see find

SP. zn. PL. ÚS 73/06-see above).



44. with regard to the fact that the creditor, by denying the claim of other creditor

seeks the protection of the basic rights, the contested provision is also in the


contrary to the article. 4 of the Constitution, according to which the fundamental rights and freedoms under the

the protection of the judiciary.



45. the contested provisions of the Constitutional Court considers unconstitutional even in

the context of the article. 13 of the Convention, according to which "everyone whose rights and freedoms

granted by this Convention are violated shall have an effective legal remedies

remedy before a national authority, even if the infringement committed by persons in the

performance of official duties. " The contested provision precludes the effective

remedy the decision on recognition of the claim of another

the lender, which can intervene in the implications of the right to protection of property

another creditor ["therefore be held that the contested provisions of the

the third sentence is also in conflict with the cited article of the Convention "(see find

SP. zn. PL. ÚS 73/06-see above)].



46. the Constitutional Court notes as well as to an adequate application of the judgment of the Senate

(the 5th section) The European Court of human rights in the case and Kohlhofer

Minarik against the Czech Republic (No. 32921/03, 28464/04 and

5344/05). In this decision, the ECTHR dealt with the three complaints.

The complainants as minority shareholders argued that after writing a resolution

dissolution and transfer of assets to the majority shareholder in the commercial

the register do not have the possibility of challenging this decision nor the Treaty

transfer of assets. In that judgment the ECTHR held that the restrictions

access to justice was legal in the sense that it has been adjusted

national law, and it was legitimate to the reference of the public

the objectives of the (interest), which is the promotion of "stability in business circles by avoiding

abuse of the appeals against the resolutions "(cf. section 102 in

fine). However, at the same time, concluded that such a restriction on access to

the courts is disproportionate in relation to the pursued legitimate aim pursued. The ECTHR

also noted that legal action for compensation or to provide

adequate reparation for the violation of the fundamental rights of a shareholder is not

can therefore be regarded as a means to mitigate the effects of the provisions of §

paragraph 131. 3 (b). (c)) of the commercial code in connection with the main

the subject of the proceedings [cf. e.g. following the text of the cited judgment:

"101. As regards the argument of the Government, that the complainants have the possibility to defend their

interests in some other way, such as to seek separate Court

review of the settlement of a major shareholder or bring an action for

damage compensation or provide adequate reparation for violations of the

fundamental rights of a partner, the Court notes that these procedures have a different target

and deal with the separate question of the monetary compensation. In addition, the

reasonable compensation may be required only for a breach of

fundamental rights of the shareholder. The Government has not demonstrated that these legal

resources could lead to a discussion of the question of the validity of the resolution

circumstances comparable with the review in the context of proceedings for the vote

of invalidity. It is therefore not possible to be considered as a means to alleviate

the effects of the provisions of § 131 paragraph. 3 (b). (c)). Cust. in connection with the

the main subject of the proceedings. Similarly, it is not considered an effective

means of redress to the complainant the obligation to exhaust (see § 74

above), which is a question that merits Court teamed up with assessment

(see paragraph 80 above). 105. as regards the proportionality of this restriction, the Court

States that, as in the case of a complaint No. 32921/03 argues the Government

the existence of alternative remedies, which is a limitation of

compatible with the Convention. The Court further notes that, in its aforementioned

view these paths were not remedy that it was necessary to exhaust the

within the meaning of article 35 paragraph 1. 1 of the Convention, as well as those resources

could not sufficiently mitigate the harm to the rights of minority shareholders

due to this limitation (see paragraph 101 above). If the law of a third

the complainant, on access to the Court was limited as a result of the action of the § 220h

paragraph. 4. Cust. in a similar way as in the case of complaint No.

32921/03, the Court notes that the availability of alternative means of

remedy in the case of the complaints could not meet the requirements of article 6

paragraph. 1 of the Convention. "].



47. the Constitutional Court also in the context of comparative literature States that up to the present. and according to the

the Austrian or German legislation may claim of other creditor

to deny the creditor (cf. for example. § 105 Konkursordnung, § 178

The insolvenzordnung). On the komparatistickou page of this problematic

extensively referenced and the addition to the proposal by the appellant RWE energy, and s.

of 24 July 2003. 6.2010, in which it concluded that the "here to předestřená comparison

shows that countries where the economic view of the legal institutions of the far

a longer tradition than in the Czech Republic, have not worked out that way, because as a country "Rule of

Law "respecting the constitutional dimension of creditors ' rights, the principle of full

the jurisdiction of the decision of the public authorities, and they want to avoid a possible

"hidden pressures" of some creditors to disputed claims on

administrator. While these traditional democracy can find other effective

ways to prevent the excessive length of the insolvency proceedings, without

creditor's rights were limited. "



48. The above-cited conclusion of unconstitutionality of the contested provisions

does not alter the fact that damage to the incorrect login creditors respectively.

recognition (nepopřením) claims that the insolvency administrator (her

authenticity, above, the order of) another creditor have the option to seek after

insolvency administrators for damages or other harm (on the basis of § 37

insolvency law).



49. It is of a different legal structure, i.e. in the framework of the

liability [cf. find SP. zn. I. ÚS 2219/07 of 2 February. 4.2008 (N

63/49 SbNU 3)], moreover, pointing to another entity. Right and duty to

are with a matching ' concept, the right of one entity corresponds to the obligation of the second

entity. In the contested provisions, the legislature has denied the right one

creditors deny the claim of the other creditors, even if this popěrným law

the claim of the second creditor creditor protection of its tracks (not only)

property rights. Addressee of the denial of the claim is the second lender.

In the protection of rights (especially property) one creditor before

wrong claim (the incorrectness of its authenticity, above, order)

the second lender. Action for compensation for damage caused by insolvency

the administrator is but a means to protect the rights of the process aiming at

exclusively to the insolvency practitioner. Hypothetically successful exhaustion

Action for compensation for damage caused by the insolvency administrator so the creditor

could not delete the incorrectly logged-in status of the claim of other creditor [which

can consistently speaking mean (relative) satisfaction of his claim in the

to a lesser extent and means prejudice and other of his rights (cf. other consequences

associated with the result of the review)].



50. Despite the fact that, despite the hypothetical future compensation would not be

removed the legal sphere of the creditor all the negative consequences

arising from uncontested second lender improperly registered claims

(cf. e.g., strengthening the influence of these creditors at the meeting of creditors and in the

creditor institutions, cf. for example. § 49 paragraph 1. 1 the Insolvency Act,

According to which "subject to this Act, requires the validity

the resolution of the creditors ' meeting a simple majority of votes of members present or duly

represented creditors, calculated according to the amount of their claims; in doing so,

that applies to every $ 1 the claim falls one vote. "). The creditor would

so he could later apply to the insolvency practitioner requirements

emerging from a modification of the insolvency administrator's liability for the damage, that

However, it does not alter the fact that, even if he was upheld in this respect,

auctioned should reverse their removal only material damage, but not

the injury on the other (procedural) rights.



51. in the case of liability for damage is an Institute of secondary

nature. Individuals, however, are primarily guaranteed rights and freedoms,

and to their effective protection and the enforcement of the State is obliged to provide for

efficient means. Primarily it is therefore entitled to sue the creditor

the protection of his rights and freedoms as such and cannot be obliged to settle for

the only remedy for the violation and followed his rights and freedoms on

the basis of the realization of the right to damages. This would be contrary to the meaning of article 87(1).

paragraph 36. 1 of the Charter. Otherwise, the violation of the legal order of the aproboval

the rights and freedoms of such creditors. Also in finding SP. zn. PL. ÚS 73/06

(see above) The Constitutional Court arguing a violation of a fundamental right

a tax guarantor to seek protection of their rights because of the legal

limitations of the facts namítatelných guarantor in an appeal against an escrow

the challenge, though not to argue by analogy, i.e.. the guarantor

can be applied directly against the debtor (the analogy with the possibility to apply

a claim for damages against an insolvency practitioner). Also in finding

the case law of the Constitutional Court expressed legal opinion about the requirement of subsidiarity

the application of the compensation for damages against the State after the exhaustion of effective procedural

the means to protect the rights of tenants to help make (cf. for example.

findings SP. zn. I. ÚS 1180/07 of 12 October. 2.2009, or IV. TC 1253/08 from

3 December 2004. 12.2008; both available at http://nalus.usoud.cz). This legal

the view can be reasonably applied on the issue.




52. In respect of insolvency proceedings is undoubtedly interested participants

(thus the lender) a fair protection of their rights and

legitimate interests (cf. § 1 of the code of civil procedure). The right of the participant

is the primary concern of the fulfillment of meaning and purpose (inter alia) of the insolvency proceedings,

which is to provide protection of rights according to art. 90 of the Constitution,

his expression in the request, so that none of the parties has not been unfairly

damaged or illegally from [cf. Indeed, the fundamental principle of

insolvency proceedings specifically enshrined in section 5 (b). a) insolvency

the law]. This interest had been cleared cannot be a substitute for the damage, as the

the priority here is not at all prevent a State where one of the parties will be

unfairly damaged or illegally obtains an advantage that was not needed

compensation. Party to the proceedings (including the creditor) so it can later

to apply to an insolvency practitioner requirements stemming from the adjustment

liability of the insolvency administrator for damage, however, this does not alter the fact

that, even if he was in this direction, it does not comply with the previous state of

violation of his rights (only would be compensated, in addition, not the full-

CF.. the text from the top). Creditor in respect of insolvency proceedings

seeks to the effective protection of their rights, must be able to ask about

protection within the meaning of article 87(1). paragraph 36. 1 of the Charter. [Indeed, similarly argues

The Constitutional Court in finding case law (cf. e.g. find SP. zn. IV. TC

391/07 of 7 November. 8.2007, N 122/46 SbNU 151) in relation to the constitutional

complaints to delays in proceedings before the ongoing proceedings before the General

courts-not opposed to the constitutional complaint as inadmissible, arguing that may

even during the proceedings to apply to the State the requirements stemming from the adjustment

State liability for delay within the meaning of Act No. 82/1998 Coll., on

liability for damage caused in the performance of public authority by a decision

or incorrect official procedure and on the amendment of the Act of the Czech National Council.

358/1992 Coll., on the notarial profession and their activities (notarial regulations), as amended by

amended]



53. that is all the more that the insolvency administrator may

liability to exempt (under the conditions referred to in section 37

insolvency law). This instrument therefore does not offer an absolute guarantee

the payment of damages, the insolvency administrator and therefore cannot be

on the effective means of protecting the rights of the creditor.



54. The content of the right to a fair trial is also supplying the Court of

protection, but for more control (entitlement to damages, aiming to

the insolvency practitioner), designed as necessary would lead to a breach of the

This principle. Indeed, he argued, by analogy, the Constitutional Court in finding sp.

Zn. I. ÚS 2219/07 (see above), in which he reviewed the merits of the constitutional

the complaint, even if the contested decision were the complainants appeal

the Court referred to the need to claim their rights to compensation

costs incurred along the way a separate action for damages. In this

the finding of the Constitutional Court expressed the opinion that further legal proceedings would

has led to the violation of the principle that timely judicial protection.



55. If the Constitutional Court of the constitutional aspects of the aproboval contested

the provisions with reference to the appellants on possible compensation from the

insolvency practitioner, aproboval would state leadership of the insolvency proceedings

so that some of the participants were unfairly harmed and some

illegally. Although the injury could be participants in property

then, he would not have compensated for this in no way removed the status of illegal

Another participant in the recognition of a privilege of his claim in the higher amount,

than the actual situation, which would be translated into higher

the relative satisfaction of his claim, before he actually belongs in its own right.

The public authority must interpret legislation so that this

the irrational and especially unfair to eliminate status. The purpose of the

insolvency proceedings-as each civil process-is to achieve

fair protection of rights and legitimate interests of the participants, as well as education

to observe the laws, to the top performance of the obligations and to respect for the rights

other people (cf. § 1 of the code of civil procedure).



56. The Constitutional Court for the above reasons to annul the provisions of § 192

paragraph. 1 the first sentence including the sentence after the semicolon the Insolvency Act,

that means a space in the form of unconstitutional protiústavního narrowing of the circuit

the bodies authorized to deny the authenticity of, the amount of and the order entered

claims. The Constitutional Court considered it necessary to provide a time

area lawmakers to eliminate the constitutional and legal provisions, deficit

Therefore, he put the enforceability of the award.



57. In the remaining part of the proposal to repeal the provisions of § 192 paragraph 2. 1 sentence

the last section 198 paragraph 1. 1, § 199 para. 1 and § 201 paragraph. 1 of the insolvency

the law, the Constitutional Court rejected as manifestly unfounded, mainly from

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

the legislature (which is governed by the Constitutional Court in its established case-law). This

the other challenged provisions govern only the procedure for implementation

popěrného rights, although for unconstitutionally reduced circuit operators. Then,

what the legislature removes the space extending above the unconstitutional

popěrného rights holders, the circuit will be at its discretion, how

anchored to the realization of the rights of creditors popěrného (whether the statutory

Edit match the procedure according to the current legislation or it is selected

Another solution); The Constitutional Court in its decision cannot solve this

the issue of anticipate.



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

Vladimír Jiří Nykodým Crust, and Miloslav Výborný.



* Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 2,

resolution No. 3, p. 201