Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=84091&nr=115~2F2015~20Sb.&ft=txt
On behalf of the Republic
Constitutional Court decided under ref. Nos. Pl. US 1/14 of 31 March 2015
plenary Court composed of the Chairman Pavel Rychetsky and judges
Louis David, Jaroslav FENYK, John Philip Vlasta Formánková, Vladimir
crust Musil (Rapporteur) Vladimir Sládečka, Radovan
Suchanek, Catherine Šimáčková, Adalbert Šimíček, Milady Tomková, David
Uhlíře and Jiri Zemanek on the draft District court in Karvina to cancel
Article LII section 2 of the Act no. 303/2013 Coll. amending
certain laws in connection with the adoption of recodification of private law
attended by the District court in Karvina, the Chamber of Deputies
Czech Republic and the Senate of the Czech Republic, as parties to the proceedings and
Mgr. Anna Šabatová, Ombudsman, as a secondary
Provisions of Article LII, Section 2 of the Act no. 303/2013 Coll. Amending
certain laws in connection with the adoption of recodification of private law
abolishing the day this judgment in the Official Gazette.
First By application dated 30. 1. 2014, delivered to the Constitutional Court on 3
2nd 2014, the District Court in Karvina (hereinafter referred to as "execution court" possibly
"petitioner"), President of the Chamber Mgr. George Ordelt, pursuant to the provisions
§ 64 par. 3 of Act no. 182/1993 Coll., On the Constitutional Court, as amended
amended (hereinafter the "Law on the Constitutional Court") and Article 95
Sec. 2 of the Constitution of the Czech Republic (hereinafter "Constitution") suggested that
Constitutional court judgment annulling the transitional provisions of Article LII, Section 2
Act no. 303/2013 Coll., amending certain laws in connection with
adoption recodification of private law.
Second The essence of the proposal was contrary to the belief of the petitioner cited
transitional provision with the constitutional order, as a result he founded
impermissible retroactivity, which, from 1 1st 2014 retroactively allows - in proceedings instituted before
1. 1. 2013 - sanction the exclusive property of the husband
mandatory, if enforced obligation that arose during the marriage
only one spouse.
Third The petitioner submitted its proposal in the course of the enforcement proceedings instituted by him under
sp. Ref. 46 Nc 1689/2006 on the assets of the debtor, including
real estate and property belonging to the joint property of spouses, in
connection with deciding on the proposal to stop wives mandatory
execution order, which the bailiff decided to
commandment to perform execution of its monetary claims (not payable in the future
), which has the title of supplementary pension insurance contract.
Text of the contested provision
Fourth The contested transitional provisions of Article LII, Section 2 of the Act no. 303/2013 Coll
. Amending some laws in connection with the adoption
recodification of private law, reads:
"Second warrant of execution issued after the effective date of the Act no. 396/2012 Coll
. In proceedings instituted before the entry into force of Law no. 396/2012 Coll.
Is governed by Act no. 120/2001 ., as amended, effective after the date of effectiveness
Act no. 396/2012 Coll. "
Fifth In other words, the writ of execution issued after 1. 1. 2013
proceedings instituted before that date are governed by Act no. 120/2001 Coll., On Court
Executors and Execution (Enforcement Procedure) and amending other laws | || (hereinafter referred to as "ex. r."), as amended, effective after 1. 1. 2013.
Circumstances of the case
6th The proposal and requested the court file Enforcement sp. Ref. 46 Nc 1689/2006
the following facts.
7th On 21. 9. 2005 order for payment ref. No. 33 Ro 1373 / 2005-12 execution
court in a legal case, the applicant Czech Insurance Company, based in Prague
1 (hereinafter referred to as "authorized" or " the applicant ") against defendant George
Feber (hereinafter" defendant "or" mandatory "), the payment amount 6
CZK 196 with accessories, defendant ordered to do 15 days of receipt of the payment order
paid applicant receivable in the amount of CZK 6,196
with accessories [statement a)], and to pay the costs of CZK 600
[verdict b)], or to appeal against that order for payment within a specified period from the date of
its delivery at the appointed court resistor.
Payment order has become final and enforceable on 17. 1. 2006. The amount claimed 6
196 CZK debt was incurred defendant during their marriage.
8th On 21. 11. 2006 was the warrant of the court received a petition entitled to
execution order against a debtor for the amount of CZK 6,196 with accessories and
costs of CZK 600. Executory title was mentioned above
payment order appointed by the Court of 21. 9. 2005, ref. No. 33
Ro 1373 / 2005-12.
III / 1 Regulation execution executory court
9th On 24 11. 2006 Resolution ref. No. 46 Nc 1689 / 2006-3, which came into force on
22. 2. 2007, the execution court, pursuant to an enforceable
payment order of that court of 21 9 . 2005 ref. no. 33
Ro 1373 / 2005-12, to satisfy the pecuniary claims authorized in the amount of CZK 6,196
with accessories, cost-justified and the costs of enforcement,
ordered the seizure of the assets of the debtor. Via execution was entrusted designed
Mgr. David Koncz, bailiff office Exekutorského Cheb (hereinafter
III / 2 execution order of a bailiff
10th On 25. 9. 2013 enforcement order no. 1 ref. No. 074 EX 08280 / 06-024
bailiff pursuant to § 59 para. 1 of the Act. no. 120/2001 Coll., on Court
Executors and Execution (Code of Execution), inter alia, that
execution is carried commandment of all monetary claims (and
payable in the future) to the compulsory debtor mandatory:
AXA pension fund, as from 1st 1, 2013 AXA retirement society Inc., based
narrow 8/488, 602 00 Brno, the legal title:
agreement on pension insurance no. 1602029576th
11th On 25. 9. 2013 enforcement order no. 2, ref. No. 074 EX 08280 / 06-025
bailiff pursuant to § 59 para. 1 of the Enforcement Code, inter alia, decided that
execution is carried commandment of all monetary claims (and
payable in the future) wife of the debtor against the debtor
ING pension Fund, Inc., based Nádražní 25/344, 150 00 Praha 5, from a legal title
supplementary pension insurance contract no. 0070126514 .
III / 3 Proposals to halt the execution
12th On 27. 11. 2013 was delivered to the execution court filing on the same day,
which obliged his wife suggested stopping the execution order no.
1, respectively. no. 2 in its entirety. The reasoning consistently stated that a)
joint assets do not form pursuant to the provisions. § 143 of the Act no. 40/1964 Coll.,
Civil Code (the "Civil Code. Act.") Pension scheme
belonging to the exclusive ownership of only one spouse, b) the acquisition
pension scheme does not constitute an acquisition of shares second husband c)
pension scheme is not used and maintained according to the provisions. § 145 of the Civil Code.
Act., Which also excludes the right, it is a common property of spouses
within the meaning of the Civil Code. disciple. and other legislation, which concluded that
pension schemes can not be burdened by foreclosures monetary claims
13th Justified in its observations of 14. 1. 2014 on the proposal for mandatory
halt executions stated that insists on carrying out the executions in a manner that
bailiff chosen as the most appropriate for finding a
statutory and his property, if mandatory amount due
not pay voluntarily.
14th As the authorized executor in respect to the legitimate
not compulsory draft and his wife to stop execution upheld
moved them according to the provisions. § 55. 2 ex. r. (as applicable and effective
till 31. 12. 2012) the warrant of the court decision.
15th On 31. 1. 2014 Resolution ref. No. 46 Nc 1689 / 2006-27 execution court
proposal for mandatory, in relation to the warrant of execution authorized by the court
executor of 25. 9. 2013, ref. No. 074 EX 08280 / 06-024
execution was ordered by an enforceable court resolution dated 24. 11. 2006, ref. no. 46 Nc
1689 / 2006-3 suspended, dismissed (statement I); in relation to the warrant of execution
bailiff in charge of 25. 9. 2013 no. 2, ref. no. 074 EX
08280 / 06-025, which decided on the implementation of execution ordered on 24. 11.
2006 Resolution Enforcement court dated 24. 11. 2006, ref. no. 46 Nc
1689 / 2006-3 seizures wives mandatory, until
Constitutional court decision on the petition Enforcement court for the annulment of Article LII
Section 2 of the Act no. 303/2013 Coll., postponed the proposal (verdict II).
16th The petitioner stated that after 1 1, 2013, which came into effect so.
Large Enforcement amendment as part of Act no. 396/2012 Coll., Which amends Act
no. 99/1963 Coll. rules of Civil procedure, as amended
amended, and other related laws when deciding on similar
Proposals during 2013 concluded that the enforcement proceedings initiated
31 12. 2012 execution was to be carried out on the basis
execution orders affecting the exclusive property of the spouses in mandatory
under § 268 paragraph. 1 point. h) of the Act no. 99/1963 Coll.
Civil Procedure, as amended (hereinafter the "axis of
.") evaluated as unacceptable, and therefore the execution of this statutory reason
pausing only for a party, but even without such
17th The same legal conclusions apparently arrived at the Regional Court in Ostrava, which also
example. Already in its decision ref. No. 9 Co 431 / 2013-137 dated
30th 5. 2013 expressed the belief that the District Court in Karvina
legal opinion expressed by the majority in judicial practice, while fully
identically, then the decision was made by the Regional Court in Ostrava also
subsequent period (see eg. Resolution no. j. 10 Co 371 / 2013-79 and ref. no. 66
Co 541 / 2013-37, issued both on 30. 10. 2013).
18th The petitioner further stated that on 1. 1. 2014 came into force
Act no. 303/2013 Coll., Which occurred "in connection with the adoption
recodification of private law" among other things, to change the Rules of Enforcement and
which, in paragraph 2 of the transitional provisions of Article LII stated that
execution order issued after the effective date of the Act no. 396/2012 Coll.
in proceedings instituted before the entry into force of Law no. 396/2012 Coll., should follow
Enforcement Code in the wording effective after the effective date of the Act no. 396/2012 Coll
19th In the opinion of the petitioner cited a transitional provision violates the principle of legal certainty
compulsory and their spouses in enforcement proceedings instituted before the date
31. 12. 2012, if present, and it is only after
force of Law no. 396 / 2012 Sb., later determined that the execution
order issued pursuant to the amended Enforcement Regulations made by this Act
to be in those proceedings that were commenced before its entry
efficiency, manage Enforcement Code as in force
after the date of effect of Act no. 396/2012 Coll. This additional construction would
petitioner could shake confidence in the rule of law, especially in
cases where the authorized executor after the entry into force of Law no. 303/2013 Coll
. at one and the same thing again decided to content entirely
same execution order on the implementation of the execution method, which was executory
court in the course of 2013 found unacceptable.
20th The petitioner pointed to Art. 1 paragraph. 1 of the Constitution, from which it follows that
Czech Republic is a sovereign, unitary and democratic state of law
based on respect for the rights and freedoms of man and citizen, and stated that
one of its basic pillars should be legal certainty.
Pointed to the jurisprudence of the Constitutional Court, who earlier in his findings concluded that
just below the angle of view must be considered and content
normative legal acts (including implementing legislation) and the application of legal rules to
past times, respectively. their impact on past legal
fact, because of their vague and indeterminate structures in their
consequences may lead to the violation of protected right to a fair trial
(see Article 36 para. 2 of the Charter) and possibly inadmissible
retroactivity is also inconsistent with the postulates of democratic rule
21st For that petitioner concluded that the transitional provision contained in paragraph 2 of Article
LII Act no. 303/2013 Coll. It has retroactive effect, and as such
is contrary to the principles of democratic rule of law, respectively.
the principle of protection of citizens confidence in the law and the principle of non-retroactivity
right, that Article 1 of the Constitution. That provision
changes the legal consequences under the law occurred before the effective date
contested provisions, moreover, as a state legislator when it completes
transitional provisions already contained in the Act no. 396/2012 Coll. Did
If legislators really the issue transitional provisions to deal, and could
should do so as early as 2012, at a time when the law no. 396/2012 Coll.
Accepted, while not overlook the fact that since the adoption of this law has already been
Act no. 120/2001 Coll. also amended by Act no. 45/2013 Coll., and
only after the Act no. 396/2012 Coll. so back
interfered with the transitional provisions of the amendment to the Enforcement Regulations.
22nd In other words, genuine retroactivity of the transitional provisions
According to the petitioner it is that it allows from 1 1st 2014 retroactively affect
(yet elusive) proprietary property of one spouse and
in proceedings instituted before the first 1, 2013.
23rd Besides the already mentioned not in the opinion of the petitioner nor
overlook the fact that the transitional provision was adopted by Parliament
Czech Republic in a legal norm, the reason whose adoption should be
need to respond to the basic law recodification of civil law, especially
adoption of law no. 89/2012 Coll., Civil Code, law no.
90/2012 Coll., on commercial companies and cooperatives (law of business corporations
), and Act no. 91/2012 Coll. on private international law
which formed the first phase of the recodification of private law
material in the Czech Republic.
24th The petitioner pointed out that the explanatory memorandum dated 27
second 2013 signed by then Prime Minister RNDr.
Petr Necas and Minister of Justice JUDr. Pavel Blazek, suggests that the reason
adoption of the proposed amendment was needed to respond to the basic rules
recodification of civil law, and to complete the whole process of recodification
that one area received changes are also changes in the laws || | regulations governing professional associations, ie next to the law
Czech national Council no. 358/1992 Coll., on notaries and their activities
(notary Act), as amended, Act no. 85/1996 Coll. about
advocacy, as amended, and no. 6/2002 Coll.
law on courts and judges, lay judges and state administration of courts and changing
some other laws (Act on courts and judges) also change
Enforcement Code, as amended.
25th In relation to the proposed amendments to the Enforcement Regulations however
explanatory report (see the contents of a part called "The Forty Second - change
Enforcement Regulations") that the proposed transitional provisions
responds only to change insurance bailiff for damage, which is obliged to conclude
under the current legislation on liability insurance for injury to
that change insurance should occur within one year of the effective date
effectiveness of this proposal.
26th From the above, therefore, according to the petitioner shows that the explanatory memorandum to the draft
government did not provide any way of adopting another
transitional provision whereby the law is subsequently adjusted to
execution orders issued after the amendment of Law Enforcement Regulations no. 396 / 2012 Sb
. to be in those proceedings which was initiated prior to the acquisition
efficiency sentiment. Law, manage Enforcement Code as in force after the date
27th The petitioner concluded from these findings might believe that the transitional provisions
to Act no. 303/2013 Coll., Changing some laws in connection with the adoption
recodification of private law, could respectively.
Had to get only on the basis of the amendment. The bill was
had sent deputies on 5. 3. 2013, while its first reading
took place on 19. 3. 2013 52nd session of the Parliament
(fifth term), which was assigned for hearing committees.
Written amendment (which should be included in the minutes of the meeting
Committee - see § 43 para. 1 of Law no. 90/1995 Coll., On Rules of Procedure
Chamber of Deputies, as amended) was incorporated into the
resolution adopted by the constitutional and legal Committee, and the bill passed
general debate at the 54th meeting on 12. 6. 2013. Final third reading
took place at the 57th meeting of 8. 8. 2013 when
bill was approved.
28th According to the petitioner the possibility of an amendment
does not stem from the Constitution, but only on the Rules of Procedure of the Chamber of Deputies, which
§ 63 of Act no. 90/1995 Coll. as amended, allows
deputies serving (but only for the present case) among others. also designs
which omit, expand or modify certain parts of the original proposal
. The petitioner recalls that the Constitutional Court in its judgment of 15. 2. 2007
sp. Nos. Pl. US 77/06 concluded that the amendment should actually
merely modify the submitted legal scheme, namely that it did not even have
fundamentally change or expand, and even less should it move beyond
subject of the legislative initiative, respectively. bill. It also
show that the proposed amendment must concern the same subject, the
Unless this requirement is met, it may be due to the fact that state power
is applied in a manner which the law (and a fortiori Constitution)
does not act not only a contradiction to the principles of respect
democratic principles in the legislative process, but mainly
contradiction with the principles of predictability, clarity and internal consistency
Act which are undoubtedly one of the basic prerequisites for the rule of law.
29th The petitioner comparing the content and purpose of the original government proposal
Act, administered in connection with the adoption
recodification of private law and its terms after the adoption of the amendment concluded that
contents and purposes of the two subjects examined in this respect differs fundamentally ,
and therefore it is supposed to be observed that in the case of Article LII section 2 of Act No.
. 303/2013 Coll. submitted an amendment of the limited space reserved
amendments, apparently swerved.
30th The petitioner believes that if the adoption of Article LII, Section 2
Act no. 303/2013 Coll. It was not because of the need "to respond to the basic rules
recodification of civil law, and to complete the entire
recodification process," but taking into account the changes made in earlier times already
Act no. 396/2012 Coll. dated September 19, 2012, then
thus submitted an amendment (for which the Czech milieu
designation, "limpet") exceeds the object defined by the bill.
The petitioner points out that the real intention of the legislature, which led to the adoption of the contested
adjustments, not only from the explanatory memorandum does not,
but it can not be identified, even given the already above-mentioned purpose
acceptance around Act.
31st The petitioner emphasizes that the law is a normative act that
binds an undetermined class of subjects and regulates situations which arise in the future
. In the case of the contested provision, however, regards
situation that occurred in the past, and on specific subjects.
32nd Therefore, the appellant submits that the contested provision of the Act is
inconsistent with the principle of separation of powers, therefore, contrary to one of the basic rules
democratic rule of law, such as the Czech Republic
defined in Art. 1 paragraph. 1 and Art. 2 paragraph. 1 and 3 of the Constitution, where the
determined that the people exercise all state power that
serve all citizens and may be asserted only in cases, within limits and ways that
the law provides, through bodies of legislative, executive and judicial
33rd In this context, according to the petitioner should be pointed out and noted that
according to findings in the current judicial practice for any interpretation
problems of the transitional provisions contained in Part Two, Article IV, section 1
Act no. 396/2012 Coll. avoid, and therefore "selective and
time perspective subsequently adopted an amending transitional provisions", which
contested by the fact it represents in terms of legal theory
34th The petitioner believes that the provision in Article LII, Section 2
Act no. 303/2013 Coll., Seems obvious cause of application problems, and it
particularly conscious unjustifiably different legal regime for the period from 1 || | 1st 31. 12. 2013 to 2013 on the one hand, and after 1. 1. 2014 remain on
other hand, which would lead to benefits (and therefore inequality)
one group of participants over others.
35th The petitioner points out that Article 2, paragraph. 3 of the Constitution and Art. 2.
2 of the Charter indicates that the state is limited by rules that set and that
legislature is obliged to observe the law when adopting certain
legislative rules. According to the petitioner's view, Parliament Czech Republic
its own procedures when it adopted the contested article LII, Section 2
Act no. 303/2013 Coll., And determining its retroactivity, exceeded its powers
(set out in Chapter Two of the Constitution).
Application of the contested provision in its implications (except for the above mentioned violation of Art. 1
. 1 and Art. 2 paragraph. 1 and 3 of the Constitution) can lead to the violation of rights protected
mandatory and their spouses on fair trial under Article
. 36 para. 1 of the Charter, as well as a violation of their property rights under Article
. 11 of the Charter.
Assessment of the admissibility of
36th The Constitutional Court finds that the petition was filed by an authorized entity
pursuant to Art. 95 para. 2 of the Constitution and § 64 par. 3 of the Constitutional Court.
Provisions of the law designed to repeal related to the decision making process
Petitioner and should be immediately in resolving the matter.
Proposal thus fulfills the conditions for the proceedings before the Constitutional Court for such a case.
37th The Constitutional Court also positively assessed the question whether in this matter
not entitled to examine (and possibly also canceled)
appropriate part of amendments to the Enforcement Regulations, since in its case law considers that
proposal to repeal the law or its individual provisions
not fundamentally tackle the novelizujícímu legal rule.
Such legal regulation does not usually separate legal existence, he gets up
as part of the revised legislation. In the present matter, however
not the case under the provisions of the amending provisions
execution order, but a transitional provision into its
amendment by Act no. 303/2013 Coll., The Constitutional Court found therefore submitted
derogational proposal projednatelným and could conduct a review of the contested
Observations of the parties and the intervener
38th Chamber of Deputies of the Parliament of the Czech Republic, as a party
management, in a statement signed by its Chairman John Hamáček
in Parts I to III recapitulated the contents of the proposal and arguments
petitioner, and described the method of adoption of Act no. 303/2013 Coll. In Part IV
expressed the opinion that the legislative assembly acted in the belief that
adopted Act is consistent with the Constitution and our legal order, and is
Constitutional Court to evaluate the constitutionality of the proposed abolition
39th Czech Senate, as the party in
statement signed by its Chairman Milan Štěch recapitulated
contents of the proposal and the arguments of the petitioner and stated that the proposed
repeal this provision represents a return to the regulation contained in the transitional provisions
Act no. 396/2012 Coll., valid and effective until 31
12th 2013. The Senate admitted that the intelligence report to the Senate no
print. 173, among other things, sounded a warning that "in many cases
this law was used as a carrier for some things that are not related with the recodification
"; In the part of his statement, the Senate said it is up to the Constitutional
court to assess the constitutionality of the contested provision.
40th Ombudsman, as an intervener in Part I
its response to the petition also stated that the contested transitional provisions
actually represents the outcome of efforts to resolve a dispute over the interpretation
another transitional provision enshrined amendment to the Civil || | judicial Procedure Act no. 396/2012 Coll., under which "[t]
proceedings commenced before the effective date of this Act shall be completed pursuant to existing laws
.", and expressed the view that the annulment of the contested | || provision could restore insecurity and disillusionment encourage all participants
enforcement proceedings commenced before 1 January 2013.
41st In Part II of the Ombudsman stated that it does not point
start of enforcement proceedings (as a whole) Nor do I doubt that anyone
execution order of a bailiff has the effects of regulation enforcement
under the Civil Procedure Code. Each execution proceedings is therefore
practically consists of a number of "control" comparable with judicial powers
42nd Ombudsman referred to the unjustifiable inequality
(low) were eligible who have a proposal for an execution
filed before January 1, 2013, and also generally uneven (low)
mandatory position with regard to a number of positive changes anchored big
execution amendment. Spouses mandatory but can actually think about the situation
so that in the course of the enforcement proceedings as a whole has changed
"game rules" with which counted by the time their husbands exposed
risk of execution.
43rd At the end of this part of his statement Ombudsman said
they are inclined to conclude that the execution procedure is a set of individual
"judicial execution"; Therefore, for "managing" by
former transitional provisions in Section 1, Art. II, Part One
Law no. 396/2012 Coll. does not execution proceedings as a whole. It concludes
option bailiff to apply the Code of Civil Procedure in large
execution of the amendment in the enforcement proceedings instituted before taking effect.
44th In Part III of the Ombudsman acknowledged that there is no common ground
transitional provisions of the amendment until after the entry into force.
As a dispute over the interpretation of earlier transitional provisions, however, they understand.
It also can imagine that the legislature doubt when formulating
transitional provisions and will correct the mistake, then later anchoring
45th In Part IV of the Ombudsman stated that for the purposes of its
statement focused only on the direct impact of the amendment on the form
impairment of assets required and their spouses (wives), and thus to meet the legitimate
peace. The simplification it can be said that the amendment
improved protection of the interests of all participants (both required and justified).
Had removed the existing unjustifiable obstacles to the proper
meet the legitimate changed long been criticized rules
some methods of enforcement (especially in a range monetization
mandatory participation in a housing cooperative) and added the new institutes that support effective enforcement
receivables (governance and values, an electronic auction
chattels, předražek and others).
46th In Part V of its statement on the constitutional complaint Public protector of rights
concluded that the contested transitional provisions of Article LII., Paragraph 2 of Law No.
. 303/2013 Coll. no provision in impermissible retroactive effect,
and therefore sees no reason for its withdrawal.
47th The petitioner, in its reply to the response of the public protector of rights, among other things
stated that its proposal in its entirety remains, as it considers that
was given reasonable; polemics with various assertions and opinions
Ombudsman and elaborated his arguments in the draft
48th According to the petitioner can agree that the contested provisions
is the result of efforts to resolve the dispute about the interpretation of past
transitional provisions already enshrined in Act no. 396/2012 Coll., But this
earlier transitional provision should not be interpreted as
it did in its response to the petition Ombudsman.
49th In relation to the contested Article LII., Paragraph 2 of Law no. 303/2013 Coll.
Petitioner added that this statutory provision does not say anything that would
in enforcement proceedings initiated in 31. 12. 2012 should or could be used
provisions of the Civil Procedure Code regarding punishment and wages account || | husband (wife) mandatory, as amended, effective from 1
1, 2013. the provisions of § 262a paragraph. 3 of the CPC., to exercise judgment
deductions from wages or other income spouse mandatory (and subject to | || provisions of § 52 paragraph. 1 ex. l. and then carrying out the executions indicated
way), it is the law no. 396/2012 Coll., amending Act no.
99/1963 Coll., Civil judicial order, added to the Code of civil Procedure
and not to the Enforcement Regulations.
50th About how it should be interpreted in the contested transitional provisions,
refers neither the explanatory memorandum to the Law no. 303/2013 Coll., As it is called.
Add-ons to that law, as recodification of private law does not appear to have a
connection; In addition, it is atypical when it refilled
transitional provisions of the Enforcement Regulations or the Code of Civil Procedure, mentioned already
earlier in Act no. 396/2012 Coll. Side by side are two
transitional provisions for the distraint order, but this newer to older
transitional provision does not change anything, unless you state that even in enforcement proceedings initiated
31 12. 2012 should apply the provisions
civil Procedure Code regarding punishment and wages account husband (wife) compulsory, ie
. the CPC. in the wording effective from 1 1, 2013.
51st The petitioner did not agree either with the opinion of the Ombudsman
unjustifiable unequal (worse) were eligible who
proposal for a regulation of execution filed before January 1, 2013, and generally uneven (worse)
mandatory position "with regard on a number of positive changes enshrined
great execution amendment "if both privileges, but primarily obligated,
could reasonably expect progress, and only ordered the execution process according
regulations valid and effective at the commencement of enforcement proceedings.
The petitioner believes that due to the requirement of legal certainty
citizens can not allow the ongoing execution was carried
way that at the time of commencement of the enforcement proceedings legal
Regulations do not permit. For those same reasons, the principle does not agree with the legal opinion
bailiffs, who are issuing execution orders affecting wages
wives justify the mandatory reference to the provisions
§ 47 paragraph. 2 Enforcement Regulations.
52nd The petitioner also stated that according to the findings in the current judicial practice
no problems of interpretation of the transitional provisions contained in
Part Two, Art. IV, section 1 of the Act no. 396/2012 Coll. avoid, and therefore
"selective and time perspective subsequently adopted an amending
transitional provision" represents in terms of legal theory excesses.
Transitional provision in Article LII., Section 2 violates the principle of legal certainty
compulsory and their spouses in enforcement proceedings instituted before the date
31st 12. 2012, if present, and it is only after the Act no. 396/2012 Coll
., Additionally setting the execution order issued on the basis of an amendment
Enforcement Regulations made under this Act, has the most
proceedings that were commenced before the effective date of the amendment, manage
Enforcement Code in the wording effective after the effective date of the Act no. 396/2012 Coll
53rd In relation to the Ombudsman's argument that the authority may propose
stop execution and start a new execution procedures, which already
wage bill and wives can affect, the petitioner stated that
permission in this case will no longer have the newly instituted proceedings
entitled to compensation for costs, it would obviously not be a cost
which were spent efficiently.
54th Finally, its reply to the response of the public protector of the rights of the petitioner
generally stated that the proposal is also addressed to a certain stage of social development
very negative and inherently foundations of the rule of law
threatening tendencies, manifested in the fact that
legislature were adopted amendments to the law of the purpose pursued by
interest groups (eg. the issue of arbitration, amendment of the Enforcement Regulations
etc.), apparently going against the current ( "uncomfortable")
jurisprudence of courts, said negative tendency to perceive also the wider public
very sensitively. The fact that it is not a purely subjective feeling or impression arises in
consideration such things. Absence of clearly and distinctly formulated will
legislator in the explanatory memorandum, and she aims to guide the occurrence
55th The Constitutional Court expected a hearing to clarify the matter, which is why
drop it in accordance with § 44 of the first sentence of the Constitutional Court
Assessment of the constitutionality of the legislative process
56th In proceedings on review of norms, the Constitutional Court, under § 68 para. 2
Law on the Constitutional Court also asks whether the contested statute was adopted and
issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner
57th From the observations of the parties and parliamentary publications on publicly available
http://www.psp.cz implies that the government of 5 3. 2013
submitted to the Chamber of Deputies a draft law amending some laws in
connection with the adoption of the recodification of private law; the same day it was
draft distributed to the deputies as print 930/0.
'58. Part of the government proposal was not designed to abolish
transitional provisions. It appeared as an amendment to the resolution
Constitutional Law Committee delivered deputies as print 930/2 (amendment proposals
). In the second reading amendments were prepared as Print
930/3, which was circulated to Members 13. 6. 2013. In the third reading of 8
8th 2013 57th meeting, the bill was approved by the House of Representatives resolution no.
1746, while the present 128 deputies for its acceptance
favor of 67 deputies and 43 were against.
Senate of the Parliament of the Czech Republic the bill in the version passed the Chamber of Deputies
approved Resolution no. 330 from the 13th meeting on 12 September 2013. The Act
president signed on 17. 9. 2013. The Act was promulgated on
30th 9th 2013 in the Collection of Laws in part 116 under No. 303/2013 Coll., And
came into effect on 1. 1. 2014.
59th The competence of the Parliament of the Czech Republic's Constitutional Court had no doubt
and therefore decided to review the procedure for adopting the contested provisions
60th The Claimant in its proposal, questioned the way the adoption of the contested
Transitional provision, arguing that it is "add-ons", adopted
constitutionally unacceptable manner.
IX / 1 General principles of constitutional review of legislative procedure for amendments
61st § 68 par. 2 of the Constitutional Court imposed in proceedings to annul statutes
consider not only the content of the law in terms of its compliance with
constitutional law, and whether it was passed and issued within the bounds set by
competence, but also examine whether it was passed and issued in a constitutionally prescribed manner
. The rationale cited provision requires first examine
competence, then the procedure and finally the content of the contested provision
[see. Constitutional Court dated 15. 2. 2007 sp. Nos. Pl. US 77/06,
paragraph 61 (N 30/44 SbNU 349; 37/2007 Coll.)].
Cited provision does not distinguish between the various entities with standing to file
draft, which apparently follows that that survey is scheduled
part of any proceedings to cancel the law or other legal regulation.
62nd An undesirable phenomenon, not corresponding to the purpose and principles
legislative process, the Constitutional Court ruled a situation where one
Act are amended by mutual content immediately
unrelated to occur, eg. Due to acceleration of legislative procedures
and part in the form submitted proposed amendments.
Such a procedure does not correspond to the basic principles of the rule of law, including the principle of predictability
law, its clarity and its principle
internal consistency. If a single statute (in the formal sense
) is interfered into the matter regulated in several other laws, and these laws together
not substantively and systematically linked arises
quite murky legal situation that principle
predictability, clarity and internal consistency does not respect the law already
. The requirement of foreseeability of the law as part
principle of the rule of law ceases to be fulfilled when the amendment
Act is part of another bill in the formal sense, the content of which
amended law is unrelated to the Constitutional Court declared in | || judgment of 15. 2. 2007 sp. Nos. Pl. US 77/06, paragraph 39 (N 30/44 SbNU
349; 37/2007 Coll.).
63rd In paragraph 50 et seq. cited judgment file. Nos. Pl. US 77/06, the Constitutional Court distinguished
"deviation" from the limited space reserved
amendment proposal (which should really only modify the submitted legal
treatment, therefore it should not be fundamentally changed or fundamentally expand, and | || that less should it move beyond the subject of legislative initiatives respectively.
bill), which, although considered undesirable, but not for
unconstitutional, on the one hand - from the case where the technique
amendment to the draft law attaches finish completely different
Act of unconnected legislative pattern. For the latter case
in the Czech milieu, been given the designation. "Limpet", which is subject
"test close relationship," whose application is assessed whether or not the technique
amendment to the bill joined
finish entirely different statute, the legislative proposal unconnected
(paragraph 51 cit. finding).
64th In paragraph 66 of the judgment the Constitutional Court stated that the evaluation
constitutionality of the legislative procedure for the adoption of the contested provisions of the Act
is crucial to assess whether the proposed amendment
it really in the substantive sense, ie. assess whether the amendment
strays from the restricted area reserved
amendment proposals, ie. whether it was an impermissible extension in interpreting what is
amendment, while respecting called. Rules of closeness.
65th The refusal judgment of 31. 1. 2008 sp. Nos. Pl. US 24/07, in part
X / c (N 26/48 SbNU 303 88/2008 Coll.) The Constitutional Court with reference to judgment sp.
Brand. Pl. US 77/06 repeatedly stressed "condition of a close relationship between
subject of a proposal which is in the legislative process, and
amendment submitted in the second reading of the bill."
Arrived at the same time, however, concluded that "? M? Á If the maxim substantive consistency
law declared in Judgment. Nos. Pl. US 77/06, according to which" statute in the formal sense
not a substantive law of the state understood as a mere carrier
various changes made throughout the legal order ", understood in a derogatory sense
reason, then only in an extreme situation ''. in this
Ruling, the Constitutional Court concluded that "[t] he case
such a departure from the framework outlined by the original draft of the bill in the case is not adjudicated
" and that "[p] as amendment did not deviate from the framework of the present || | original bill, which was an amendment to Act on income
IX / 2 Application of general principles to the present case
66th As has already been stated above, the contested transitional provision
became part of Act no. 303/2013 Coll. not as part of a government
proposal, but accepted as an amendment to the Constitutional Law Committee
government bill amending some laws in connection with the adoption
recodification of private law.
67th Regarding the "test of closeness" of the amendment to
government bill, the Constitutional Court is of the opinion that the amendment can
Although called a "deviation" from the limited space reserved
amendments, since misses the government pursued
purpose of the transitional provision, but the transitional provisions can not be described
unconstitutional, "limpet" inconsistent with the requirement of closeness to
revised statute, because the government's proposal - as
amendment - related to the same law, ie. the Enforcement Regulations and the requirement
"close relationship" and the draft legislative amendment
in the case was clearly met. In other words, substantive link
amendment and legislative patterns here have been given.
68th For these reasons, the Constitutional Court does not share the petitioner's conviction,
that the relevant transitional provision is constitutionally impermissible "add-ons"
which would be necessary for that reason to cancel.
The objection impermissible retroactivity
69th The bulk of his petition, the petitioner alleged contradiction
transitional provision with the constitutional order, as a result he founded
impermissible genuine retroactivity, which, from 1 1st 2014 allows back -
in enforcement proceedings instituted before the first first 2013 -
punishment yet intangible exclusive property of the husband compulsory, if enforced
obligation that arose during the marriage only one spouse.
This objection is justified.
X / 1 Generally on retroactivity of laws
70th Constitutional right context and false retroactivity
Legislature accepted norms the Constitutional Court dealt in a row
its decision, which stated, inter alia in the judgment of 12. 11. 2013
sp. Nos. Pl. US 22/13, paragraph 22 et seq. (22/2014 Coll.), And the judgment of 19
4. 2011 sp. Nos. Pl. US 53/10, paragraph 144 et seq. (N 75/61 SbNU
137; 119/2011 Coll.), Which referred mainly to the findings of 4. 2. 1997
sp. Nos. Pl. US 21/96 (N 13/7 SbNU 87; 63/1997 Coll.).
71st Legal theory recognizes retroactive effect (retroactivity)
right and wrong. The true retroactive effect (retroactivity) if
with new legislation intended to govern the creation of legal relations and claims
participants of this relationship also in cases where the legal relationship or claims arising from it
arose before the effective the new legislation.
72nd False retroactive effect (retroactivity) means that the new legal regulation
Although they govern the legal relationships arising before its
efficiency, but until the date of its effectiveness;
very existence of such legal relations and claims arising from these relationships, incurred prior to the effectiveness of the new
legislation to manage the existing legislation.
73rd The Constitutional Court in the above-cited judgments in the definition of true and false retroactivity
referred to the definition of the legal doctrine contained in the publication
Tilsch E .: Civil Law. General Section, Prague 1925, pp. 75-78,
according to which "True retroactivity of the new law is the only
when acting for a time now past ... False retroactivity ... there he was, | || when the new law dictates that it should be used on the old legal situation
already established, but only since the scope of the new law begins, since
or even later. " The Constitutional Court also pointed to Article
Quiet, L .: The temporal scope of the amendments to the Civil Code, published in the journal Lawyer
no. 12, year 1984, pp. 1104 and stressed that the right
then retroactivity " It involves essentially two different situations ", for the first
'condition, that the new legislation gave rise (the new law)
relationship before it becomes effective under conditions that only subsequently set", and
Second "amendment may alter legal relationships under the old legislation
modifications, before the effect of the new law." For true
retroactivity, therefore, the lex posterior canceled (not recognized)
legal effect existing at the time of effectiveness legis prioris, or causes or combines
rights and obligations of the elements such that at the time of effectiveness
legis prioris not the nature of legal facts.
In the case of false retroactivity "While the new law does not create legal consequences for
past but either elevates past facts
condition for future legal consequence (free exclusivity)
modifies or future legal consequences under earlier laws
based ... False feedback to the law, only means that the new law
captures (legally qualifies) past facts or affecting
(modifies, cancels) the existing legal consequences, ie. the factual
založivší nature is bound to the future of other rights and obligations other than
existing legislation. it is therefore an intervention by the new law on the one hand
to the foregoing, and also do so. acquired rights. " (Walk,
A .: The retroactivity of laws. In: Dictionary of Public Law. Vol. III, Brno
1934, p. 800).
74th The above findings also follows that the Constitutional Court has the right
retroactivity generally considered unconstitutional, with limited exceptions, and
false retroactivity is generally admitted, also with limited exceptions.
X / 2 Right retroactivity and interpretation
75th In proceedings for annulment of a statute for a constitutionally impermissible genuine retroactivity
(in civil cases, mostly for interference with the legal certainty
resp. To acquired rights) The Constitutional Court primarily examines whether compliance
legislative provision with the constitutional order
ensure its constitutionally conforming interpretation, and which do not, and it is therefore necessary
proceed to its cancellation. The Court is not absolutely bound by the literal wording
statutory provisions, but from it can and must depart
when it requires serious reasons purpose of the Act, the history of its creation
, systematic nexus or any of the principles,
which have their basis in a constitutional legal order as a meaningful whole (cf.
above cit. finding sp. Nos. Pl. US 22/13, paragraph 22).
X / 3 application of general principles to the present case
76th In this case, the Constitutional Court, according to a petitioner
concluded that a transitional provision is constitutionally
interpret, especially with regard to the fact that his side
already exists transitional provisions in Art. IV section 1 of the Act no. 396/2012 Coll
77th The contested transitional provision raises retroactive effect, which can be described as
effects of true retroactivity, in relation to the execution proceedings initiated
31 12. 2012, as (from 1 1st 2014) are covered || | writ of execution legislation effective from 1st 1, 2013, and despite a
express wording of the transitional provisions of the Act no. 396/2012 Coll
., according to which the proceedings initiated prior to 1 1, 2013 to complete
by existing legislation (Art. IV, section 1 of the Act no. 396/2012 Coll.).
78th Complementing the provisions of § 262a of the CPC. A new paragraph 3, which
with effect from 1 1st 2015 Act no. 293/2013 Coll. (See Art. I point
187), were allowed to affect the execution of her husband and property of the debtor, who
still not punishable because it was interpreted as a "still" not
joint marital property, for example. Typically husband's salary and -
well as in the present case - monetary claim
wives mandatory by virtue of supplementary pension insurance contract.
79th Transitional provisions of the Act no. 396/2012 Coll. Article. II-1
however, stated that "proceedings commenced before the effective date of this Act shall be completed
according to existing regulations." This means that the new wording
§ 262a paragraph. 3 of the CPC. Could not be used in proceedings for judicial enforcement of the decision
, where a proposal for a writ of execution to the court before 1
1, 2013 (as just that opens the procedure).
80th The new wording of § 262a paragraph. 3 of the CPC. Through
subsidiarity General of Civil Procedure must be applied also in edit mode
Enforcement Code, particularly with regard to the general provisions of § 52.
1 and the provisions special towards various ways of carrying out the executions in
§ 58 et seq. ex. Regulations.
81st Act no. 396/2012 Coll. was also amended Enforcement Regulations, and by
transitional provision in Article. VI, Section 1, "Proceedings initiated prior
effective date of this Act shall be completed pursuant to existing legal regulations
82nd According to § 35 para. 2 ex. Regulations applies (now even before the effect
Act no. 396/2012 Coll.) that the execution procedure is initiated on the date of execution
proposal came executor.
83rd If the execution proposal is out of the bailiff before Act no. 396/2012 Coll
. (Ie. Before Jan. 1, 2013), then to the enforcement proceedings
had to be applied as Civil Procedure and Enforcement Procedure in effect until
31. 12. 2013, and therefore "new" instrumentation according to §
262a paragraph. 3 of the CPC. Can not be used. In other words, it could not be extradited
execution order, which would have affected other proprietary rights of spouses
mandatory, as in this case happened. In the present case would have
court execution by the execution order of 25. 9. 2013 (paragraph 11)
stop accordance with § 268 para. 1 point. h) of the CPC., if they were to do, however
given time, ie. to 31. 12. 2013, which he apparently failed.
84th After the date 31. 12. 2013, the situation complicated, and it is the wording
under the transitional provisions of Article LII, Section 2 of the Act no. 303/2013 Coll
. If by 31. 12. 2013 execution court could stop
execution, then from 1 1st 2014 it has been unable to do so because it intervened in question
article LII, section 2, which was an execution order against husband compulsory
by 262a paragraph. 2 of the CPC. declared - retrospectively - legal.
That is the essence of true retroactivity under Article LII Section 2
Act no. 303/2013 Coll.
85th Since 1. 1. 2014, after the amendment of the Act no. 293/2013 Coll., Amending
Act no. 99/1963 Coll., Civil Procedure Code, as amended
amended, and certain other laws the existing
third paragraph of § 262a of the CPC. became the second paragraph.
To the infringement of the right to property under Art. 11 of the Charter
respectively. to peaceful enjoyment of possessions within the meaning of Art. 1
Additional Protocol to the Convention for the Protection of Human Rights and Freedoms
86th Right retroactivity of the contested transitional provisions allowing
application of § 262a paragraph. 2 of the CPC. Executory capture still
intangible assets husband compulsory, potentially
constitutes an unconstitutional infringement of the fundamental rights of the wife of compulsory protection under the ownership
Art. 11 of the Charter, respectively. to peaceful enjoyment of possessions within the meaning of Article
. 1 Protocol to the Convention.
87th To this question, the Supreme Court in a resolution dated 18. 4. 2006 sp. zn.
20 Cdo 2892/2005, said: "The Court of Appeals for the claim that
to compulsory execution can not make deductions from the salary of her husband, is
consistent with the established judicial practice alleging that
includes wage for their work employees, and he also paid (§ 111 paragraph. 1
§ 120 para. 1, first sentence, of the Labour Code, § 4 para. 1 of Law no. 1/1992
Coll., on wages, remuneration for work readiness and on average earnings).
right to wage must - in order to be affected by foreclosures - belong
mandatory, opposes EEO. The joint property of spouses belong only
paid and taken over wages; the method of execution
deductions from wages, however, precludes such a payment and receipt of payroll employees was
(cf. Regional court in Hradec Králové of
on 24. 11. 2003, file no. Ref. 17 Co 46/2003 or the Supreme court resolution dated 29
6. 2005, Ref. No.. 20 Cdo 1642/2004, published in the court jurisprudence
Nos. 9, year 2005 under no. 148) .
In accordance with the established judicial practice, and the conclusion that the claim against mandatory
can not perform enjoining account receivables
her husband. Given that this method of execution concerns receivables
by the owner of the account based on the account agreement to the financial institution,
it is completely immaterial, whose funds were to be deposited into the account
; The only thing is essential, who is the owner of the account, because only he has
receivable on bank accounts, which can be punishable by execution
. Receivable from an account owned by one of the spouses,
while not part of the common property; can they belong only
cash from the account already selected (cf. Supreme Court resolution dated
14th 4th 2000, Ref. No.. 21 Cdo 1774/99, published in the Collection of court decisions and
opinions Nos. 1, year 2001 under no. 4, or judgment
Supreme Court dated 14. 3. 2002, sp. Ref. 20 Cdo 681/2001,
published in the Collection of judgments and opinions, no. 10, edition
2002 under no. 75). This is true even if the account receivable from the
(incorrectly) affected by the assignment of other monetary claims. "
88th view of that standard case law of the general courts wife
mandatory at the commencement of enforcement proceedings could reasonably be expected
that - in accordance with the then settled case-law of the general courts -
her claim against the pension fund can not be subject to execution in the form
commandments monetary claims against the debtor by virtue of his contract of
pension scheme. | ||
89th retroactive changes to the applicable methods of execution and scope
executory punishable by a mandatory property of her husband and ultimately
may lead to the exclusion of the statutory exception of marital property according
ust. § 143 par. 1 point. a) of the civil Code no. 40/1964 Coll., respectively.
according to the provisions. § 711 of the civil Code no. 89/2012 Coll., which
potentially constitutes a breach of the constitutionally guaranteed fundamental rights || | compulsory husband own and peaceful enjoyment of property pursuant to Article 11 of the Charter
respectively. Article 1 of the Protocol to the Convention on the Protection
human rights and freedoms, as the Constitutional Court in another context
expressed in the judgment of 2 11. 2010 sp. Ref. IV. US 362/10 (N 217/59 SbNU 151).
90th The Constitutional Court concluded that the transitional provisions contained in Article
LII, Section 2 of the Act no. 303/2013 Coll., Is contrary to the principle
ban on true retroactivity resulting from the principle of the democratic rule of law
contained in Article 1 para. 1 of the Constitution. Therefore complied
draft and contested provision pursuant to § 70 para. 1 of the Constitutional Court annulled
day of its publication in the Collection of Laws.
Chairman of the Constitutional Court:
JUDr. own hand
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