On The Proposal That Repeal § 36 Para. 2 Of The Act On Public Auctions

Original Language Title: on the proposal to repeal § 36 para. 2 of the Act on Public Auctions

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=60086&nr=181~2F2005~20Sb.&ft=txt

181/2005 Coll. CONSTITUTIONAL Court on behalf of the Czech Republic's Constitutional Court ruled on 8 March 2005 in:, composed of the President of the Court. Pavel Rychetsky, and judges. Stanislav Balik, Mgr. Frantisek Duchon, Mgr. Turgut Güttler, Mgr. Pavel Holländer, Mgr. Ivana Janu, Mgr. Dagmar Lastovecká, Mgr. Jiri Mucha, Mgr. Jan Musil, Mgr. George Nykodým and lawyer. Elizabeth Wagner on the draft District Court in Brno-the annulment of § 36 para. 2 of Law No. 26/2000 Coll., On public auctions, as amended, as follows: The provisions of § 36 para. 2 of Law No. 26/2000, on public auctions, as amended, is hereby repealed day this Judgment in the Official Gazette. REASONING AS WELL. On September 21 2004 the Constitutional Court received a petition from the District Court of Brno-Country ref. No. 6 C 720/2001-58 the annulment of § 36 para. 2 of Law No. 26/2000 Coll., On public auctions in as amended, that its conflict with Art. 1 of the Constitution of the Czech Republic (the "Constitution") and Art. 1 of the Charter of Fundamental Rights and Freedoms (the "Charter"). The District Court of Brno-Country (hereinafter "petitioner") filed a petition it annul § 36 par. 2 of Law No. 26/2000 Coll., On public auctions, as amended (the "Act on Public Auctions") in connection with its decision-making activities under Art. 95 para. 2 of the Constitution and § 64 par 3 of Act No. 182/1993 Coll., on the Constitutional Court, as amended (the "Act on the Constitutional Court"). The petitioner stated that the application in the present matter, the applicants seek judgment, to which it was addressed that the sale of collateral (the house and land claimants) based auction decree on holding and compulsory auction of 27 July 2001 is inadmissible. The task of the court is to consider in this case whether the conditions are met involuntary auction according to § 36 et seq. Law No. 26/2000 Coll., on public auctions, as amended. The petitioner stated that the case is not disputed that the defendant as a pledgee has an enforceable court decision (EEO), to the applicants as mortgage borrowers or to personal debtor (third party other than the parties). The condition of involuntary auctions in accordance with § 36 para. 1 of the Act on Public Auctions is not fulfilled. The defendant in the proceedings of the opinion that the conditions of Regulation involuntary auctions were met and the points section 36 para. 2 of the Act on Public Auctions. The petitioner also stated in its proposal that the adjudicated case the conditions cited provisions of the law on public auctions have been met and ordered involuntary auction is in accordance with the law on public auctions. The petitioner believes, however, that section 36 para. 2 of the Act would be inconsistent with the constitutional laws of the Czech Republic, for the following reasons: 1. The provisions of § 36 para. 1 and 2 of the Law on Public Auctions categorize creditor claims secured by mortgages rights into two groups. The first group includes lenders, who's his satisfaction, and realize the pledge need no standard of EEO (§ 36 para. 2 of the Act). The second group includes those creditors who have it undergo a lengthy and arduous judicial process that will lead to obtaining an enforceable title (§ 36 para. 1 of the Act). The difference in the realization of the rights of these two groups of creditors, the petitioner states, it is more than obvious as those "fortunate" the creditors whose lien established prior to the effective date of the law, their rights sees much easier and faster. The cited provision thus into our law by bringing the petitioner the inequality in rights, which could resist the rule of law. There is therefore, according to the petitioner possible conflict with Art. 1 of the Charter. 2. In the present case the defendant's claim as mortgagee depends on the security agreement, which the parties entered into on July 3, 1996, before the effect of the Act on Public Auctions. The contract was II under the then applicable provisions of section 299. 2 of the Commercial Code, which allowed the pledgee in exercising its lien it sell at public auction the mortgaged property. But at that time no other way the law did not make this auction (the exception was at that time still valid Act No. 174/1950 Coll., On auctioning off the execution, but its scope was limited to affluent things and whose realization was practically impossible). The prevailing legal experts and the provisions of section 299. 2 of the Commercial Code, as amended on April 30, 2000 deems sat. Legislative dud. From the above, according to the petitioner shows that when the applicant entered into a pledge agreement, there was no way they pledge that sell at public auction. If such a process were incorporated into law until the law on public auctions, according to the petitioner, the question arises whether it is the law retroactive effect (retroactivity), which is inadmissible. The definition signs law include the principle of legal certainty and the protection of participants of legal relations of trust in the law. Part of legal certainty, according to the petitioner also ban the right retroactive legislation, which can be inferred from the Constitution. This statutory provision, this could be in conflict with Art. 1 of the Constitution. Due to the above reasons, the Brno-Country District Court suggested that the Constitutional Court that § 36 para. 2 of the Act on Public Auctions canceled. II. petition annul it Analogous to § 36 para. 2 of the Act on Public Auctions submitted to the Constitutional Court on 24 February 2005 also the District Court for Prague 7 in a case which is with him conducted under file. REF. 26 C 149/2004. This proposal Constitutional Court decided, by order of 4 March 2005 sp.. PL US 8/05 so that the proposal was rejected under section 43 par. 1 point. (e)) of the Act on the Constitutional Court on grounds of inadmissibility pursuant this section 35 para. 2 of the Act, lis pendens. District Court for Prague 7 as a petitioner in proceedings under file. Nose. PL US 8/05 became according to § 35 para. 2 of the Law on the Constitutional Court intervened on the previously filed a petition under the file. Nose. PL US 47/04. III. The Constitutional Court under section 69, par. 1 of the Constitutional Court requested comments on the petition of the Chamber of Protect and the Senate of the Parliament of the Czech Republic, as parties to the proceedings. Chairman of the Parliament of the Czech Republic, PhDr. Lubomir Zaoralek in its response to the petition stated that the provisions of § 36 para. 2 of the Act on Public Auctions been part of the original government bill and it was situated in the bill on the basis of the draft resolution contained in the Constitutional Law Committee of Protect. The Senate ceded the bill concurred when, among other things. This § 36 para. 2 and pointed at its 12th meeting, on 8 December 1999 with its resolution No. 218 amendments passed. The reason for the adoption of the Law on Public Auctions, stated the Chairman of the Chamber of the Czech Parliament Protect of, was it strengthen the liquidity of the mortgage secured claims, which required tools to create an efficient procedure for the realization of collateral in cases where the borrower has ceased to perform its duties towards the pledgee. The legislation in force into force of the Act allow only satisfy creditors by selling real estate in court enforcement proceedings. Satisfaction of the creditor monetization of real estate auction conducted by the court is quite complicated and time consuming. In many cases, you can achieve the same result of public auction off judicial execution, which is also the owner of the mortgaged real estate burdened economically. Auctioning off the judicial execution, however, was not sufficiently covered by the law. Therefore, lenders, especially banks, which project grant mortgage loans as their business activity, they could carry out the liquidation of collateral at public auctions. House Speaker further stated that the legislature in debating and approving the law was based on the aims and objectives of the Act and was convinced that it is in accordance with the provisions of the Constitution and the Charter. Law on public auctions according to the parliamentary press 156 as amended by the amendments approved by the Chamber of the Czech Parliament Protect of approved at the 17th meeting, on 4 November 1999, it voted for its adoption of the 184 183 protect the present, and none against. The Chamber of the protect the approved bill in the wording of the amendments adopted by the Senate would protect the publication the Chamber of 156/6 at its 21st meeting, on 18 January 2000, when the 180 was 92 for protect present and 80 against. House Speaker II that the bill was approved by the necessary majority of protect of the Legislative Assembly, was signed by the appropriate constitutional authorities and was duly promulgated. Under this state of affairs, chairman of the Chamber of Protect expressed the opinion that the legislature acted in the belief that the law is in conformity with the Constitution, constitutional order and our legal order, and said it is up to the Constitutional Court, in connection with the petition it annul § 36 para. 2 of the Act on Public Auctions the assess the constitutionality of that provision and released appropriate decision. President of the Senate of the Parliament of the Czech Republic Assoc. Of JUDr. Petr Pithart, in its response to the petition stated that the bill was the Senate of the Czech Republic, submitted on 16 November 1999, and was assigned it to discuss the Constitutional Law Committee and the Committee on National Economy, Agriculture and Transport Committee as a guarantee. The Committee on National Economy, Agriculture and Transport at its 29th meeting, held on 25 November 1999, interrupted the discussion of the bill and continued the hearing on 1 December 1999, when it adopted a resolution No. 188, which recommended that the Senate approve the bill with amendments which were annexed to the resolution. It was a total of nine amendments, one of which is directly touching the contested provision. Constitutional committee discussed the bill on 2 December 1999 and did not accept it any resolution, while the adoption of the proposed amendments voted in four of the eight senators present. The Senate discussed the bill at its 12th meeting in the second term and took him that Resolution No. 218, in which it recommended that return the bill to the Chamber of Protect with proposed amendments. For this resolution to the vote of the 60 senators present, 39 senators were against, 16 senators and 5 senators abstained. On 13 December 1999, the proposal was returned to the Chamber of Protect. It discussed it again on 18 January 2000 and adopted the bill as amended by the Senate amendments. President of the Senate, in its statement also said that the Senate bill on public auctions discussed in situations where the valid version of the Commercial Code to allow the pledgee's exercise and lien it sell the mortgaged property by public auction, but none of the laws (except the Law No. 174/1950 Coll., on auctioning off execution), did not envisage way to conduct this auction. Therefore, the Senate among other things, welcomed the government submitted a draft law and its extension to other auction title of Protect. The Senate Amendment that § 36 para. 2 of the bill was then only legislative and technical refinement of the plan implemented by the Chamber of Protect. In connection with the draft law on public auctions it has also been submitted. Accompanying law, which included an amendment that section 299. 2 of the Commercial Code. This provision complements the applicable version of § 151f of the Civil Code, according to which the pledgee may satisfy its shareholders claimed only by court action. Therefore, he had to obtain an enforcement order and then propose enforcement is to satisfy their claims from the pledge. This procedure appeared to be too lengthy. The amendment to the Commercial Code, therefore allow so. Direct sales collateral mortgage lender, without having to seek the exercise of their rights in court. Subsequently, however, in connection with the adoption of the above-cited provisions in legal theory, doubts emerged that this provision does not introduce into our legal system an inequality in rights is contrary to the principles of the rule of law. This conclusion was favored by the petitioner, according to which the law in its consequences "split" the creditor's claims secured by mortgages into two groups. The group of creditors, "fortunate" that to your satisfaction, and realize the pledge need no standard of EEO, and by the "less fortunate" who must complete and lengthy and arduous judicial process leading to an enforcement order. Finally, the chairman of the Senate stated that the Senate bill along with the amendments approved in the belief that the approved legislation is in line with the constitutional order, as it contributes it greater protection of property rights of creditors whose debt is payable secured by a lien. President of the Senate, concluding that it is only a matter of the Constitutional Court that assess whether the conviction of the Senate on the constitutionality of the contested Act was justified. The parties gave their consent to the Constitutional Court refrained from hearing pursuant this section 44 para. 2 of the Constitutional Court. The Constitutional Court also requested that pursuant to § 48 par. 2 and § 49 para. 1 of the Constitutional Court of the Ministry for Regional Development. Minister for Regional Development, Ing. Jiri Paroubek said in its statement on the petition stated that the Ministry of Regional Development believes that the opinion of the District Court in Brno-expressed with regard this § 36 para. 2 of the Act on Public Auctions, as well as the arguments concerning the possible inequality of rights between the two groups of creditors respectively. mortgage borrowers are justified. The current wording of the law on public auctions really in § 36 divides the auction creditor, respectively. mortgage borrowers and collateral into two different groups with unequal regimes, while the date for incorporation into one of these groups is the effective date of the Act on Public Auctions. The above-described phenomenon, says minister, is one of the many reasons for which the Ministry for Regional Development of legislative work plan for 2005 has undertaken it prepare and draft general principle of law that would regulate the issue of public auctions entirely new way. IV. The Constitutional Court first addressed the question whether the petitioner-and general court-authorized for the annulment of the contested provision it submit. The he II positive. It is not clear how the petitioner correctly stated that the general court of the contested provision must be applied to their actions in the court proceedings and that the current legislation directly affects the rights of applicants. Said proposal is related to the decision-making of the General Court, which is thus authorized petitioner (§ 64 par. 3 of the Constitutional Court Act). The Constitutional Court in accordance with § 68 para. 2 of the Constitutional Court examined whether a law whose provisions are assessed in terms of constitutionality, was adopted and issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner. From the statements of the Chairman of the Chamber of the Constitutional Court, Protect, found that the Chamber of approved and protect the bill on public auctions in the wording of the amendments adopted by the Senate would protect the publication the Chamber of 156/6 at its 21st meeting, on 18 January 2000 the required majority of votes of the protect of the Legislative Assembly when the 180 protect present voted for the adoption of the proposal and 92 against the adoption of the draft were 80 protect. Then the draft law on public auctions signed constitutional officials and duly promulgated in the Collection of Laws in part 10 distributed on 02/22/2000 under no. 26/2000 Coll. The Law on Public Auctions and was admitted constitutionally prescribed manner and within the bounds of constitutionally provided jurisdiction in compliance with the rules set out in Article. paragraph 39. 1 and 2 of the Constitution. The Constitutional Court notes that the proposal meets all the requirements stipulated by the Constitutional Court, and nothing prevents its discussion of the Plenum of the Constitutional Court. In The provisions of § 36 para. 2 of the Act on Public Auctions, the cancellation due to its conflict with Art. 1 of the Constitution and Art. 1 of the Charter of the petitioner seeks is: (2) If a mortgage entered or recorded in the Land before the effective date Realty of this Act, or created if and lien on movables before the effectivity of this Act on the basis of a valid pledge contract and has made only if the applicant affidavit in the form of a notarial deed that is enforceable against the debtor of the debt claim which is bottled and which is secured and lien is also an involuntary auction sale conducted on a proposal from the auction creditor whose claim is secured by a lien. For completeness, it should be noted that § 36 para. 1 of the Act reads: (1) an involuntary auction is the auction conducted on a proposal from the auction creditor whose claim is granted an enforceable court decision, enforceable arbitration award ^ 15) or enforceable notarial deed amply documented.6, which contains the requirements stipulated by special legislation. ^ 16) 15) of the Act No. 216/1994, Coll., on Arbitration Proceedings and Enforcement of Arbitral Awards. 16) section 274 point. e) Civil Procedure. The provisions of § 36 para. 2 of the Act, an additional "fourth" auction title [next enforceable judicial decision, enforceable arbitration award and enforceable notarial deed under section 274. e) the Code of Civil Procedure], which allows involuntary auction, where, and the mortgage was entered or recorded in the Land Register before the effective date of the Act on Public Auctions, possibly created when a lien on movables before the effectivity of this Act on the basis of a valid mortgage contract and made if petitioner public auction affidavit in the form of a notarial deed that is enforceable against the debtor of the debt claim which is bottled and which is secured by such a lien. The task of the Constitutional Court must therefore consider whether the contested provision, respectively. set the conditions covered by the contested provisions are capable of infringing the principle of equal rights, generally expressed in Art. 1 of the Constitution, according to which the Czech Republic is a sovereign, unitary and democratic state of law based on respect for the rights and freedoms of man and citizen, and in Art. 1 of the Charter, according to which the people are free and equal in dignity and rights. The principle of equal rights according to Art. 1 of the Charter and concretized in Art. 3 of this document is to be assessed in relation to Art. 26 of the International Covenant on Civil and Political Rights which stipulates that "everyone is equal before the law and are entitled that's equal protection of the law without any discrimination, and the law should be any discrimination and all persons equal and effective protection is guaranteed against discrimination on any ground such. as race, color, sex, language, religion, political or other opinion, national or social origin, property and gender. The constitutional principle of equal rights belong to those fundamental human rights which constitute the value system of modern democratic societies. The principle of equality is a legal-philosophical postulate, which is the level of positive rights guaranteed by the apart of discrimination. Equality is not an unchanging category, as it undergoes development that its content, particularly in the area of political and social rights significantly remarks. The Constitutional Court in a number of its decisions [especially in judgments in cases involving under file. Nose. PL US 16/93 (Collection of Decisions of the Constitutional Court judgment, Volume 1, no. 25, pp. 189, promulgated as well. 131/1994 Coll.), Sp.. PL US 36/93 (Collection of Decisions of the Constitutional Court judgment, Volume 1, no. 24, pp. 175, promulgated as well. 132/1994 Coll.), Sp.. PL US 4/95 (Collection of Decisions of the Constitutional Court, Volume 3, judgment No. 29, pp. 209, promulgated as well. 168/1995 Coll.), Sp.. PL US 5/95 (Collection of Decisions of the Constitutional Court, Volume 4, judgment No. 74, pp. 205, promulgated under no. 6/1996 Coll.), Sp.. PL US 9/95 (Collection of Decisions of the Constitutional Court, Volume 5, judgment no. 16, p. 107, promulgated as well. 107/1996 Coll.), Sp.. PL US 33/96 (Collection of Decisions of the Constitutional Court, Volume 8, judgment No. 67, pp. 163, promulgated as well. 185/1997 Coll.), Sp.. PL US 15/02 (Collection of Decisions of the Constitutional Court, volume 29, judgment No. 11, p. 79; promulgated under no. 40/2003 Coll.), Sp.. PL US 33/03 (Collection of Judgments and Rulings of the Constitutional Court, as yet unpublished, will be published in Volume 35, announced he was under no 584/2004 Coll.)] Explained the content of the constitutional principle of equality. When understanding of the constitutional principle of the equality of the Constitutional Court in particular, agreed with the conclusion expressed by the Constitutional Court of Czechoslovakia (CSFR Constitutional Court judgment in the matter file. Nose. PL US 22/92, Collection of Decisions of the Constitutional Court of Czechoslovakia, judgment No. 11, p. 37). The Court has in him understood equality as a relative category, which requires the removal of unjustified differences. The principle of equal rights must be understood such that legal differentiation in the approach to certain rights may not be a manifestation of arbitrariness, it does it, however, II that everyone must be granted every right: "It is a matter of law, in the interests of the security of their functions held that a certain group provide fewer benefits than others. However, it does not act arbitrarily. ... If the law benefits one group and at the same time it imposes disproportionate obligations on another, can be done only with reference to the public good. ". The Constitutional Court that rejected an absolute understanding of the principle of equality, and further stated: "the Equality of the citizens can not be understood as an abstract category, but as relative equality, as conceived by all modern constitutions" (see Constitutional Court judgment in the matter file. Nose. PL. US 36/93). The principle of equality that moved into the area of constitutionally acceptable factors for differentiating subjects and rights. Sees the first aspect exclusion of arbitrariness. The second factor follows the legal opinion expressed in the judgment under file. Nose. PL US 4/95: "Inequality in social relations, if it is to affect fundamental human rights, must reach an intensity, at least in a certain direction, the very essence of equality. This usually happens when, if the equality "of is connected to" of another fundamental right, eg. The right to own property under Art. 11 of the Charter, one of the political rights under Art. 17 et seq. Charter etc. "(Both also the Constitutional Court judgment in the matter file. Nose. PL. ÚS 5/95). Thus, equality generally requires the relation to other social values. "Of the principle of equality and expects the relationship to other fundamental rights, and thus the intensity of which is in the plane of fundamental human rights (Constitutional Court judgment inches in the matter file. Nose. PL. ÚS 4/95). The second aspect in evaluating the unconstitutionality of the legislation creates inequality is that it affects one of the fundamental rights and freedoms. In other words, the Constitutional Court in its case law interprets the constitutional principle of the equality in the sense of accessory and non-equality. Likewise, the international human rights instruments and many decisions of international supervisory bodies based on the fact that not every unequal treatment of various subjects can be classified as a "of the principle of equality, ie as unlawful discrimination of some subjects compared to other subjects. For the "occurred, should be subject to several conditions: With various entities that are in the same or comparable situations are treated in a different manner, without any objective and reasonable grounds to put forward a different approach. The International Covenant on Civil and Political Rights, the principle of equality would be a regulated Article. 2.1 and Art. 26th equality under the first of the cited provision has the character of an accessory, or applies only to equality enshrined in the Covenant rights, and the right to property is situated between them. Article. 26 embodies both the equality before the law and, secondly, the elimination of discrimination. Said excursion leads II and Constitutional Court that legal framework that favors one group or category of persons in comparison it others, can not be itself without further described as a breach of the principle of equality. The legislature has a certain discretion that decide whether such preferential treatment. It must see to it that the preferential approach is based on objective and reasonable grounds (and legitimate legislative aim) and that between this objective and the means it achieve it (legal advantages card), there is a proportional relationship (see eg. The judgments of the European Court of Human Rights in Abdulaziz, Cabales and matters Balkandali from 1985, section 72; Lithgow from 1986, § 177; Inze from 1987, § 41). In the case of a non-accessory considers the Constitutional Court equality for "of its extreme inequality, while the inequality, which lacks any meaningful purpose and meaning (sense of purpose and creates inequality subjects and rights at this point necessary to distinguish the causes causing such inequality). Proportionality can be described so that a higher level of intensity of public interest, respectively. protection of fundamental rights and freedoms and justifies higher rate of intervention in the principles of equality and the protection of the citizens confidence in the law. Pays the same time highs when ordering restrictions on a fundamental right, respectively. freedom to conserve its essence and meaning (Art 4, par. 4). The Constitutional Court, which is bound in its decision-making by the petition, not its reasoning, she first posed the question of whether to create different rules for debt secured by a lien in the time before the effect of the law on public auctions and debt secured by a lien after the entry into force of the said of the Act , and thus benefits the position of creditors whose claims are secured by a lien before the Act on Public Auctions (thus the disadvantages of these borrowers mortgage lenders), is based on objective and reasonable grounds and viewpoints. If the answer to the first question, the Constitutional Court could proceed to the assessment of other related issues, whether it is a legitimate legislative aim compensatory filled and executed in a manner that is proportional to that aim, therefore, could then proceed to the proportionality test. In assessing whether the adoption of the provisions of § 36 para. 2 of the Act on Public Auctions legislature was guided by rational and objective considerations into account, the Constitutional Court of the arguments that have been leveled during the legislative process. In the general part of the explanatory memorandum to the government bill on public auctions indicates that it create the necessary legal climate in which this function long-term mortgage loans were issued the Law No. 84/1995 Coll., amending and supplementing Law no 530/1990 Coll., on Bonds, as amended, Act No. 513/1991 Coll., the Commercial Code, as amended, Act No. 328/1991 Coll. , on Bankruptcy and Settlement, as amended, Act No. 99/1963 Coll., the Civil Procedure Code, as amended, and Act No. 21/1992 Coll., as amended. The aim of these five amendments is to create favorable conditions for the development of mortgage lending. According to the explanatory memorandum, another prerequisite is to strengthen the liquidity of the mortgage secured claims, which require tools to create an efficient procedure for the realization of collateral in cases where the borrower has ceased to perform its duties towards the pledgee, which is usually a bank. Existing legislation according to the explanatory report so far allowed only satisfy creditors by selling real estate in court enforcement proceedings. Satisfaction of the creditor monetization of real estate auction conducted by the court is quite complicated and time consuming. In many cases, you can achieve the same result of public auction off judicial execution, which, moreover, according to the explanatory memorandum economical for the owner of the mortgage-burdened property. Auctioning off the judicial execution has not yet been adequately regulated by law. Therefore, banking institutions, which project grant mortgage loans for its business activity, demanding it allow the liquidation of collateral at public auctions. By amending the existing regulation yet auctioning off the execution was not possible to do so because this is like a whole obsolete and inadequate. The proposed adjustment, as the explanatory memorandum, it is especially important for banks dealing with mortgage transactions; benefits of the creation of conditions for development of mortgage lending. Then it can see its positive benefits, especially in the secondary corporate debt liquidation; This adjustment can be considered as one of the promoters of development credit relationships. The opportunity that realize the pledge of auctioning off the judicial execution is favorable for borrowers, because this form of auction usually results in a higher price in the liquidation of mortgage-burdened property. Those considerations contained in the general part of the explanatory memorandum to the draft law on public auctions, in a special section, the attack specifically the provisions of § 36 para. 2 of the bill, are examined in more detail. In the original government proposal that § 36 para. 2 of the Public auctions were not included. This provision was added to the bill classified under the amendment contained in the resolution of the Constitutional Law Committee of Protect. Protect the constitutional committee of the when designing and supplement this section 36 of the second paragraph is based on the fact that while the proposed amendment's section of the Civil Code 151f provides in paragraph 3 that the pledgee may exercise its lien at public auction that monetize the mortgaged property or other collateral, if on the intended performance of the pledge in writing notify the pledgor and the debtor that since then not be mortgaged to the subject collateral deal. Constitutional committee had considered that this new provision § 151f of the Civil Code should be followed in the law on public auctions such an adjustment that would allow it to monetize the public auction will not need a pledgee EEO. In the originally submitted the government bill on public auctions, such an arrangement included not because of section 35 of the Government Bill (now the provisions of § 36) remains thought it involuntary auction is conducted on the draft auction creditor whose claim is granted only enforceable court decision, enforceable arbitration award or enforceable notarial deed, that is always executory title. It should be noted that the above legislation 151f paragraph. 3 of the Civil Code were actually taken by Act No. 27/2000 Coll., Amending certain acts in connection with the adoption of the Act on Public Auctions, ie immediately after the adoption of the Law on Public auctions, and came into effect the same day as the Act No. 26/2000 Coll. Later, however, the provisions of § § 151 151a meters to the Civil Code, abolished (with effect from 1 January 2001) and the adjustment of the lien has been included in the new provisions of section 174 of the 152 's Civil Code (cf.. Art. I, points 3 and 6, and Art. (VI) of the Act No. 367/2000 Coll., amending Act No. 40/1964 Coll., the Civil Code, as amended, and certain other laws). The provisions of § 165 paragraph. 2 of the Civil Code, it was determined that the collateral can be cashed on a proposal from the pledgee in a public auction or the judicial sale of the pledge. Act No. 318/2001 Coll., Amending Act No. 40/1964 Coll., The Civil Code, as amended, and amending other laws, the rules of the Civil Code with effect from 1 January 2002 once again changed so that this paragraph pursuant to section 165a. 1 the first sentence can monetize the arrest "on a proposal from the pledgee in a public auction or the judicial sale of the pledge. When the draft law on kontext public auctions in the Chamber of Protect was taken into account also similar that section 299. 2 of the Commercial Code, entitling the mortgagee's exercise of its right of lien for sale at public auction and the direct sale of the collateral, but for real estate could be realized in the meantime, the absence of the law on the sale of the immovable collateral in a public auction. The Constitutional Court, however, not be overlooked that similar reasoning, reflecting the then adjust the Commercial Code, other legislative developments were soon overcome, because with effect from 1 January 2001, the Act No. 367/2000 Coll. (Part IV, Art. IV.), the entire section 1 and section 299 of the Commercial Code abolished. When dealing constitutional committee of Protect it was further pointed out that the proposal in its general part of the explanatory memorandum clearly declares that the proposed amendment is particularly important for banks that deal with the mortgage business, and this proposition is based on a substantial part of the design concept, This is particularly apparent from the provisions of § 60 , where the claims of the mortgage loans included in the second class, while general receivables, ie from credit transactions secured by a lien, up to grade three. However, the bank mainly implemented its lending policy in the traditional form of credit transactions secured by mortgages, rather than mortgage loans. Therefore, for them, the government's proposal extremely disadvantageous, particularly in the above-cited provisions of section 60. For the bank as a mortgage lender would be suitable arrangement that would satisfy a lien creditor only in the order of creation of the lien. From the above, during the discussions in the Parliament of the Czech Republic in the adoption of the Law on Public Auctions may be inferred that the adoption of the provisions of § 36 para. 2 of the Act on public auctions were conducted in order to fulfill the promise contained in the original text of section 299. 2 of the Commercial Code, enable the realization of the original section 151f paragraph. 3 of the Civil Code (as amended by Act No. 27/2000 Coll.) and later § 165 paragraph. 2 of the Civil Code (as amended by Act No. 367/2000 Coll.) and then section paragraph 165a. 1 Civil Code (as amended by Act No. 317/2001 Coll.). The intention of the legislature to allow easier monetization liens registered in the land register at public auctions would be possible to assess the level of constitutionality as reasonable only if the provisions contained in § 36 para. 2 of the Act on Public Auctions not apply only to a limited number of legal relationships (he liens created before the Act on Public Auctions). This irrational narrowing the original intention of the legislator was mainly the fact that under the amendment, the Senate was the Chamber of protect the proposed wording of § 36 para. 2 amended so that in § 36 para. 2 of the Act was the beginning of the word "if" is replaced by: "If there was," and the words "the cadastre" was inserted before the words "the effectivity of this Act." The Constitutional Court is forced it to conclude that unequal access to various categories of mortgage lenders and borrowers, who was employed by the legislature in adopting the regulation of § 36 para. 2 of the Act on Public Auctions, it was not based on objective and reasonable grounds and is not a legitimate aim of the legislature. The provisions of § 36 para. 2 of the Act on Public Auctions has introduced another auction title that pledgee provides a new opportunity to the pledge that allows him this involuntarily bid even if it were a mortgage entered or recorded in the Land Registry Act before the public auctions or created if a lien on movables before the effective cited the Act on the basis of a valid pledge contract and has made only if the applicant affidavit in the form of a notarial deed that is enforceable against the debtor of the debt claim which is bottled and which is secured by a lien-without the claim had to be granted an enforceable court order or other the title which would order the execution of the decision. The original legislation in force until the coming into effect of the Act on Public Auctions allow the satisfaction of the creditor only selling real estate in court enforcement proceedings (public sale of movables edited it April 30, 2000 Act No. 174/1950 Coll., On auctioning off the execution, as amended by the Act No. 513/1991 Sb.). The original law, new legislation, contained in § 36 para. 2 of the Act on Public Auctions, significantly worsened the legal status of the owners pledged assets things, mortgage borrowers and borrowers in the event that a mortgage has been entered or recorded in the Land Registry Act before he public auctions, since these are a result of the adoption of that new regulation clearly weakened opportunity it seek judicial protection-unlike owners , mortgage borrowers and debtors in the case of claims secured by a lien after the entry into force of the Law on Public Auctions. The possibility.MP3 of selling mortgaged property without the owner's consent necessitated the creation of special legal protection to the interests of owners of mortgaged goods, borrowers, eventually. mortgage borrowers. These persons is when the petitioner was not entitled, it propose the implementation of involuntary auction, given the opportunity to ask the court to be invalid auction (§ 24 par. 3 of the Act on Public Auctions). However, this is a follow-up measure that can not always prevent damage neodčinitelnému mortgage borrowers, which occurred unlawfully performing a public auction. Owners of pledged assets things, borrowers, eventually. mortgage borrowers are also entitled it to seek and preliminary injunction, which the court prohibits the petitioner to file for an auction, an auctioneer or auction bidder wondered dispose of auctioned goods in accordance with § 74 et seq Code of Civil Procedure, as well as from Jan. 1, 2001 are those persons entitled to bring an action in court against the pledgee determine the admissibility the sale of collateral (section 166, paragraph 1 of the Civil Code). Neither of these measures, however, do not provide sufficient guarantees comparable in intensity to a rights protection with the protection of mortgage borrowers who have and the thing it stop after the effective date of the Act on Public Auctions. The explanatory memorandum on this issue states that in the event of involuntary auction, the owner has the opportunity to request that the court issue and preliminary injunction under § 74 et seq. Rules of Civil Procedure, whereby the court forbade deal with certain things or rights. This option has the receipt of the notice on the petition for an auction, during the preparation of the auction until the auction. Precautionary measures can be implemented in a relatively short period. Implementation of the voluntary involuntary auctions, auctions of real estate and transferable intellectual property rights required to ensure a certain standard of quality natural or legal person for whom the subject of auctions business. Verify that these assumptions model in the explanatory memorandum suggests that before granting a license to perform involuntary auctions and auction of immovable property and the undertaking would require the opinion of the central authority and the Ministry for Regional Development. Involuntary, forced auction (execution) in accordance with § 36 para. 2 of the Act on public auctions conducted on the basis of mere allegations lender that has matured the claim against the debtor from which is bottled and which is secured by a lien. Notarial only confirms the fact that the lender actually said, but the truthfulness of the state of affairs, respectively. prohlašovaných facts creditor in any way endorse or validated. The form of a notarial deed (certificate of statements of persons under section 80 of the Notarial Code) obviously has the character and strength of a public document, but only in relation to "a statement of the person" (section 80 of the Notarial Code), ie. Only in relation to the fact that the lender actually Statement within the meaning of § 36 para. 2 of the Act on Public Auctions has made; However, poor-facts alleged by the creditor. Said can serve as notarial records that the lender such statement was made, eg. in civil proceedings for damages against the creditor caused by unauthorized auction proposal that implement a compulsory auction due to strict liability for creditor auction damages (§ 63 para. 2 of the Act on Public Auctions). Due to the nature of the forms by the declaration as public documents, then it follows that the fact that the creditor has made such a statement is deemed true, unless proven otherwise. The notarial deed of declaration lender is not writing attesting to the fact or state of affairs hardened lender said in a statement (and conversely that section 79 par. 1 of the Notarial Regulations). The actual state of affairs (or the existence, truth or completeness of the status quo), the notary when drafting notarised statement does not convince all creditor (see Vesely, j.; Rakovský, A.; Miksovsky, P.; Simkova, r.: The law on public auctions. Commentary. 1st edition, CH Beck, 2001, p. 277 et seq.). The existence, accuracy and completeness of the facts or the state of affairs of the alleged creditor of that declaration will eventually examine the court that ex-post proceedings brought an action for annulment of the auction (or. In an action against the pledgee to determine the admissibility of sales of collateral). Regulation contained in § 36 para. 2 of the Act on Public Auctions are not in accordance with the constitutional aspects, especially does not provide sufficient guarantees of a fair trial and protection of the rights of third parties. The law had been admitted to the possibility.MP3 of the forced sale of assets, without the claim was granted an enforceable court order or other qualified act and guarantee affording of credibility and controllability. The Act leaves it largely on an assessment of whether the auctioneer and the claim is secured by a lien exists, how much and whether it is due. Questions that the rule of law must answer the court or must be verified consent of the creditors and the debtor and made before the notary, and this provision is entrusted to "and" decision "the tradesman-Auctioneer. Such treatment is not in accordance with the principles of the rule of law. Generally speaking, the "inequality", ie. A different legal regime for the participants already existing legal relations on the one hand and the other participants of relations emerging on the other hand, almost always occurs when change the legislation. Abolition of the old and the adoption of new legislation is not necessarily linked this interference with the principles of equality and the protection of the citizens confidence in the law. This action is authorized if, in the case of protection of other public interests or fundamental rights and freedoms. Assessment of the conflict must abide by the terms of proportionality. The regulations contained in § 36 para. 2 of the Act introduced a different legal regime for mortgage borrowers, as mortgage borrowers, who gave thing to pledge even before the Act on Public Auctions, do not enjoy such an intensity of legal protection for mortgage borrowers who have a thing to stop until after acquisition of the effectiveness of the new legislation. Different legal regime is obviously reflected in the side of the creditors, since lien creditors whose claims are secured by a lien even before the Act on Public Auctions, his satisfaction, and realize the pledge need no standard of EEO, while mortgage creditors whose claims are secured by a lien right after the entry into force of the new legislation, must undergo lengthy and difficult trial , leading to an enforcement order. Such a differentiation is not rationally justifiable and contradicts the principle of equality and the principle of proportionality. The contested provision and mortgage borrowers (and mortgage lender) at the same time and in the same factual situation produces two different legal regimes, respectively. creates two categories of mortgage borrowers (and mortgage lenders), of which one group is favored over the other, without this procedure was given an objective and rational reason that justify the procedure. The only criterion for distinguishing these two groups of creditors, namely the time point at which the lien. They are taken into account as in the past, the resulting from the fact that subjects of the legal relationship can no longer ex post control. Regarding the petitioner in the proposal outlined possible objection genuine retroactivity (retroactivity) of § 36 para. 2 of the Act on Public Auctions, the Constitutional Court and the true retroactivity not found. Given the above arguments, the Constitutional Court held that the contested provisions of § 36 para. 2 of the Act on Public Auctions is incompatible with the principles of the rule of law, and is also contrary it Art. 1 of the Constitution, Art. 1 and Art. 3.1 Charter, Art. 26 of the International Covenant on Civil and Political Rights and also with Art. 1 of the Additional Protocol to the European Convention on Human Rights. From the perspective of the constitutional standards outlined appears for the annulment of § 36 para. 2 of Law No. 26/2000 Coll., On public auctions, as amended, well-founded. Therefore, the Constitutional Court of § 36 para. 2 of the Act on public auction pursuant this section 70 para. 1 of the Constitutional Court. The legal issues and facts of the case were sufficiently clear from the documents, and because the oral hearing could not be expected that clarify the matter, the Constitutional Court from it with the consent of the participants dropped according to § 44 para. 2 of the Constitutional Court. Constitutional Court chairman: JUDr. Own hand