Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=71585&nr=241~2F2010~20Sb.&ft=txt
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),
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as amended, is hereby repealed on 31 December. 3.2011.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.
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
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.
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
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
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. ".
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.
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
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
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
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
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
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
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
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
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