On The Proposal To Annul Part Of § 711 Of The Civil Code

Original Language Title: ve věci návrhu na zrušení části § 711 občanského zákoníku

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280/2006 Coll.

Constitutional Court
On behalf of the Czech Republic

Constitutional Court decided on 28 March 2006 in plenary in the composition
Stanislav Balik, Frantisek Duchon, Vlasta Formánková, Vojen Güttler, Pavel Holländer
, Ivana Janu, Vladimir Kurka, Dagmar Lastovecká, Jiri Mucha, || | Jan Musil, Jiri Nykodým, Pavel Rychetsky (rapporteur)
Miloslav Vyborny, Elizabeth Wagner and Michael Židlická on the proposal
District court for Prague 7 to annul § 711 par. 1 point. g) and the provisions of §
711 par. 1 point. h) of the Act no. 40/1964 Coll., Civil Code, as amended


The petition is denied.

Recap draft

First An application lodged by Art. 95 para. 2 of the Constitution of the Czech Republic (
"Constitution") and § 64 par. 3 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, the District court for Prague 7 (hereinafter
"petitioner") sought the issuance of a judgment that the provisions of § 711, paragraph
. Point 1. g) and § 711 par. 1 point. h) of the Act no. 40/1964
Coll., Civil Code, as amended, cancels, and it
day of its publication in the Collection of Laws.

Second The petitioner stated that the District Court for Prague 7 is conducting proceedings
sp. Ref. 26 C 386/2002 in the case of the plaintiff B. d. D. against the defendants TS and IS
plaintiff as a housing cooperative in this proceeding seeks consent
court for termination of renting an apartment in Prague 7 Holešovice. Both defendants
acquired lease rights to this cooperative flat under a
transfer of rights and obligations of membership in the cooperative in 1997.
into the apartment but never moved in, and do not use it;
, according to the prosecutor from 1988 to the present, lives in another apartment in Prague 6
denunciation plaintiff wants to give due under § 711 par. 1 point. d), g) and h)
Civil Code, ie. on the grounds that the defendants did not pay rent and
payment for services relating to the dwelling for a period of three months (
July 2001 to December 2001) and because of that both defendants have
more apartments and that the apartment in question without good reason or not taking it
used only occasionally.

Third According to the petitioner, the contested provision of the Civil Code
conflict with Art. 1 of the Constitution and Art. 1, Art. 4 paragraph. 2 and 4, Art. 10 paragraph. 2 and Article
. 14 paragraph. 1 of the Charter of Fundamental Rights and Freedoms (the "Charter").

Fourth Claimant admitted that in the case of the contested provision
legal standards with relatively indefinite hypothesis ( "he can not justly be required
" or. "If not use the apartment without serious reasons or
it without serious reasons He uses it only occasionally "), which allows the court to determine in each case
circle of competence standards.
Nevertheless reach the conclusion that as a whole the contested provisions are in conflict with the constitutional order
, since it is forced to deal with cases of contested provisions
applied to rent the flat.

Fifth Contradiction both contested provisions of Art. 1 of the Charter, first sentence, the petitioner sees
violation of the principle of equal rights, as in a number of cases
interpreted by the Constitutional Court (eg. Decision Ref. Nos. Pl. US 18 / 01
dated April 30, 2002, publ. no. 234/2002 Sb.). The legislature did not distinguish between
cooperative apartments and nedružstevními and set the same conditions for
termination of tenancy rights and cooperative nedružstevního.
So impermissibly discriminates against a tenant cooperative apartments compared to tenants of apartments
nedružstevních, thereby committing that on different circuits
cases, unreasonably determined the same rules. The result is a denial of sense
association in housing co-operatives. The petitioner pointed out that the
adjudicated case the plaintiff gave the defendant notice of lease cooperative apartment without
however there was any way to the termination of the membership of the defendants in

6th Conflict with Art. 4 paragraph. 2 and 4, of the Charter of the petitioner found in
fact that the rights of tenants cooperative housing
legislature impermissibly affected by the contested rules, it did not rule out their
application to rent housing cooperative.

7th The petitioner also pointed to the history of the contested provisions. Both
became part of the Civil Code called up.
Major amendment implemented by Act no. 509/1991 Coll., But this is not a new legislation.
Legislature amended the Civil Code in more or less took
legislation that contained the Civil Code, in its original version

- § 184 point. c) and d). Legislation of the reasons for dismissal
became part of the law under very different socio-economic
conditions at the time of the centrally run state, which claimed the right
determine the extent of housing construction and intervene in their management and | || their allocation (and withdrawal) to individual users. Legislation
these reasons for dismissal was related to the shift from the traditional aspects of a lease for an apartment
called. Personal use of the apartment. Indeed, the explanatory memorandum to the Civil Code
justify this shift, among other things, that "
hiring is particularly suitable for building flats housing cooperatives, where
usufruct right to the apartment is similar to the right to use an apartment on the basis of law || | ownership ". Specifically, it was justified by the need to prevent "negative
speculation and obtaining elusive and unearned income".

8th On the contrary, according to the petitioner at the time of today when the Czech Republic is a fully democratic state
who belong to the protection of human rights and
individual freedoms, the rule of law based on respect for the rights and freedoms
man and citizen (Art. 1 Constitution) can not be justified
such a legal norm that affects notice of termination because of the state where the
tenant within his party autonomy and freedom of contract decide, by letting
get the opportunity to enjoy more apartments, housing options, whether
tenant to lead any reason. It is only the will of the subjects
contract to rent an apartment if it is closed, under what conditions, and whether the tenant will be
really enjoy. There is no reason to force a tenant to have only one apartment, if
is within its powers to meet its obligations from the lease of several apartments.

9th The petitioner also explained the inconsistency which can be found between its arguments
changing socio-economic conditions and the arguments
based on the principle of equality, respectively.
unjustified differences between tenants of co-operative and nedružstevních. The petitioner believes that
just for the absence of a positive legal provisions vyjímajícího
cooperative apartments from the scope of § 711 par. 1 point. g) and h) of the Civil Code
is given a different kind of unconstitutionality of these standards (conflict with Art. 1 and 4
paragraph. 2 and 4 of the Charter), the only fact that both the contested provisions are included
the rule of law is in conflict with Art. 1 of the Constitution.

10th Finally, the contested provisions conflict with Article. 10 paragraph. 2 and Art. 14
paragraph. 1 Listinyshledává petitioner that the fact that the landlord
cooperative apartment has a law enabling the option to terminate the tenant
cooperative apartment lease because it has more dwellings (ie. The possibility
housing) or because the tenant cooperative apartment does not use, can hit
to private and family life tenant and his freedom of residence. Can
so while standing on the grounds, which enshrined in legislation merits
lost with the fall of the totalitarian regime.


The proceedings and the recapitulation of the observations of the parties

11th At the Constitutional Court filed pursuant to § 69 of the Act on the Constitutional Court
through its chairman, PhDr. Lubomir Zaoralek statement
Chamber of Deputies of the Czech Parliament. It stated that if the legislature
set the same reasons for the termination of the tenancy the landlord of the apartment with the consent of the court
tenant cooperative and nedružstevních flats
committed to impermissible discrimination by one group.
While referring to Art. 1, Art. 3. 2 and Art. 4 paragraph. 2 and 3 of the Charter and § 2.
2 of the Civil Code, one of which on the one hand to ban exceptions
privileges for certain categories of people or individuals or discriminatory measures
, on the other hand the principle of equality
subjects of civil relations.

12th Deputies also disagreed with the petitioner's claim that the Civil Code
contested provisions fail to respect freedom of movement and residence
. No provision of the Act does not prohibit the use of two or more apartments.
Contested legislation only reflects the needs of landlords and
makes him such a situation, it can not give notice other than
law reasons. It is up to the court to carefully considered proportions
landlord and tenant. Further pointed out that freedom of movement within the meaning of Article
. 14 paragraph. 1 of the Charter means any natural person authorized
move to the Czech Republic defined by its nationals
borders, ie. The possibility that a natural person can visit any

Place within national borders. Freedom of residence is freely
permission to reside and settle in any place in the Czech Republic, permission to freely
residence within the borders of the state.

13th Finally Chamber of Deputies stated that Act no. 509/1991 Coll.
Which was contested provisions added to the Civil Code
was approved by the necessary majority of deputies of the Federal Assembly on 5
November 1991 and Law No. 267/1994 Coll., which was to
civil Code § 711 par. 1 at the end point. h) adding the words "or if he
without serious reasons only occasionally used" was approved by the necessary majority
deputies of the House of Commons on 15 December 1994. Both these laws
were signed by the appropriate constitutional authorities and were duly promulgated .
Legislative assembly acted in the belief that the law is in line with
Constitution and our legal order. Assessment of its constitutionality in connection with the proposal
District Court for Prague 7, according to the Chamber of Deputies on
Constitutional Court.

14th Senate of the Czech Republic, through its then chairman
doc. JUDr. PP, in its statement of 15 March 2004
said earlier that the proposal concerned the provisions of the Civil Code
was approved at a time when the Senate has not yet voted.

15th On the merits, he said the Senate following. The termination of
renting a flat in § 711 par. 1 of the Civil Code should be interpreted in conjunction with
§ 685 par. 1, second sentence: "Rent an apartment is protected;
lessor may terminate the reasons set in the law. "
Notice reasons in § 711 par. 1 of the Civil Code are part of a broader package of measures
called theory and practice as tenant protection
respectively. to protect the weaker party (the second component of tenant protection
is regarded as rent control). The power
protective measures had their place if consolidation of social relationships,
respectively. avoid adverse economic and social consequences
there was a public interest in establishing stability in the region
social relations. Such a situation occurred in our country in the sphere of rental housing after
creation of Czechoslovakia, after both world wars, and again after 1989.

16th As the Senate further stated reasons for termination for "redundancy" or
"redundancy" in various formulations overlap our legal system
since 1920 (eg. Law no. 225/1922 Coll., On emergency measures || | residential care, a series of laws protecting tenants from the 20s of the last century
laws on managing apartments in the era of the planned economy, or
valid version of the civil Code). In this context, it seems
inadequate for the petitioner to give the likeness of texts concerned
reasons for dismissal in 1964 and 1991 in connection with their pre- and post-November
content or regulatory aim. The legal norm
expressed legal text must stand in confrontation with the values ​​of the rule of law
as declared in Art. 1, paragraph. 1 of the Constitution and can not be
interpretation of the legal standard adopted in 1991 to establish the explanatory
report of 1964. Such arguments can not in itself be
relevant for expressing an opinion that it is a violation of Art. 1, paragraph. 1

17th According to the Senate to protect the weaker party found support in the imperative
protection adequate standard of living of every individual, including housing
(cf. Constitutional Court judgment no. 231/2000 Coll.). To make
constitutional rights to sub-constitutional level can be useful conclusions of European case law, according
which gives states the right to pass such laws, which
deem necessary to control the use of property in accordance with the general interest
( " general interest "). Such laws are especially necessary and usual
in housing, which in modern societies
become a central issue of social and economic policy.
In order to implement such policies, the legislature must have a wide margin of discretion
(ratings) ( "margin of appreciation"), both in determining whether there
public interest justifying the application of regulative || | (control) measures, and as regards the choice
similar rules for implementing such measures.

18th § 711 par. 1 can also be understood by the Senate as an exception to the absolute prohibition
eviction. Thus seen is actually
positively expressed "protection" of the person and property of the landlord.

Eventual abolition of any reason for termination in § 711 par. 1
Civil Code would increase protection at the expense of the tenant
landlord - owner. The Senate, in this context referred to the principle
fair balance between the means employed and the aim pursued.

19th The Senate rejected the petitioner's account on the inadmissibility of legal norms
restricting freedom of contract, respectively. autonomy tenant in obtaining
possibility of using more apartments or limiting him in the decision not to use the apartment.
According to the Senate valid legal status in no way prohibits tenants
have two or more apartments event. Three or not to use at all times. The law does not mandate nor
landlord to get rid of these tenants, only
landlord gives the opportunity to terminate the tenancy competently and in addition
only with the consent of the court and if he provides at evacuation shelters.
In this case, the a priori is not a restriction on freedom of contract and autonomy

20th The petitioner's argument that the legislature impermissibly discriminates against
tenant cooperative apartments compared to tenants nedružstevních flats Senate
said that such applications require the exclusion of the positive
legislature, which the Constitutional Court is not. However, he recalled that the provisions
Part Eight, Chapter Seven, Division Four of the Civil Code are
tenancy provisions of a general nature that apply to the creation, rights and obligations
and termination of all types of rental relations to the flats, so it claims | || petitioner is a completely different circuit conditions governing the lease for cooperative housing
not appropriate. The emergence of a cooperative apartment lease is legally subordinated
under a single principle. Its difference lies in the fact that a candidate must be
meet and conditions associated with membership in a housing cooperative.
Exclusion of application of the contested provisions for cooperative apartments could
might appear discriminatory against tenants of other types of dwellings (including
company apartments, special-purpose flats and apartments in special designation
). It would thus strengthen protection of a tenant - a team member, thereby
was the effect of reducing the protection landlord - owner, which would
paradoxically co-operative housing from ownership rights delayed.

21st Regarding the conflict with the right to respect for private and family life
, he told the Senate that the contested legislation does not require the tenant to the landlord
obligation to disclose information about whether a redundant
apartment, nor does it allow landlords to penetrate into the apartment tenants
and interfere with his constitutional rights, including family life. Regarding
guarantee freedom of movement and residence, the Senate appears to be no doubt that this
directly applicable constitutional rights with the option to terminate the private relationship
(tenancy) collide. If that were so, would lose its constitutional
support the entire § 711 par. 1, not only contested the notice reasons.


Recap statements of other entities in accordance with § 49 of the Law on the Constitutional Court

22nd According to § 49 para. 1 of the Constitutional Court, the Constitutional Court also addressed
associations of persons representing the interests of owners of houses and flats, ie.
Interests of landlords, and associations representing the interests of tenants and provide them the opportunity to join
the proposal stated.

23rd Tenants' Association of the Czech Republic (hereinafter "the association tenants")
through its chairman in its statement for the annulment of the contested provision of the Civil Code
supported that argument found
possible. It said that both contested provisions were included in the Civil Code
conceived especially with regard to the existing state rent control
in 1992, where no doubt the intention of the legislature was to prevent the misuse
regulated rent tenants to use multiple dwellings | || possibly taking apartment, which at present currently do not need.
According to the Association of tenants is now the situation is completely different. For newly concluded contracts
has no rent control exists, and if it is concluded
new lease contract to another apartment, then has the original intention of the legislator
apparently not fulfilled, and this measure has lost its original meaning.
Tenants' Association recalled that both the reasons for termination are determined by case law
because the use of two flats in some cases
necessary and not reasonably be required, as the law
assumes that the lessee enjoyed only one apartment.
Apartment is not used is difficult to prove and it is equally difficult to prove use of the dwelling

A situation where the way of life of different people are different and can not be
explicitly specify the extent of use of the flats is or is not in compliance with the law
respectively. both high (eg. daily) use a flat
law will be tolerated or not.

24th Civic Association of Owners of houses, apartments and other real estate in the Czech Republic
(hereinafter "the Association of Owners") through its chairman
expressed the view that the Constitutional Court should reject the proposal. According to him, the application
contested provisions of the Civil Code on cooperative apartments, respectively.
apartments rented for free and for contractual rent would be contrary to good morals
under § 3 of the Civil Code, a court can evaluate and
testimony to this reason nepřivolit, in addition, the court has the option of
context of the contested provisions to assess those facts (arg. "... on
tenant can not justly be required ...", "... the tenant has serious reasons
for it to be enjoyed only occasionally." ). The case, which solves the petitioner can
according to the Association of Owners resolve these applications
contested provision of the Civil Code, merely their interpretation.
Can still say that after the tenants, who are also members of the team and who
spent a considerable amount on acquiring cooperative shares, which for
them only in connection with the lease cooperative apartment, can not justly
They are required to use only one apartment. Likewise, it can be argued parties
"serious reasons". In both cases, the court may conclude that
exercise ownership rights as the owner of the team against its member
would be contrary to morality and therefore with reference to § 3 para. 1 of the Civil Code, the notice

25th According to the Association of Owners is the problem only in the absence of more detailed
interpretation of the contested provision. The contested provisions are a
a transitional period will be integral as yet insufficiently transformed
tenancy rights, as established by Law no. 40/1964 Coll., Civil
Code and Law no. 41/1964 Coll. on the management of flats. Any changes
reasons for dismissal or withdrawal, according to the Association of Owners
must be accompanied by a systematic shift of lease relationships
classic tenancy relations characterized by the free will of both parties
this temporary relationship under conditions which covered both
parties freely accede.

26th Owners' Association reminded that the right to use an apartment, which was renamed
tenancy in § 871 of the Civil Code, lacks character
freely contract. He was then mothballed
situation before 1989, when the right to use an apartment had the character of social benefits.
Make this social benefit recipients could abuse its negative
speculation and obtaining elusive and unearned income and that
this dose was not excessive, socialist legislator has incorporated into
former Civil Code, the court authorized to decide on dissolution | || right of personal use of an apartment on the grounds that the user uses or owns
apartments or two that does not use the apartment without serious reasons at all or only occasionally [§
184 point. c) and d)]. For the same reason, it was after 1989 introduced to the Civil Code
limitations of those who would be part of their social benefits
in the form of rights to use the apartment for regulated rents could exploit this
benefits without needed it. Even today a lease relationship rather resembles
earlier right to permanent use of an apartment, while landlords of such apartments
remains a "bare ownership". The notice reason is because
must also be seen in the context of other institutes, which were taken from
modification of rights of use [passage of the lease without the landlord's consent
under § 706 et seq. (Formerly § 179 et seq.), Replacement dwelling without the consent of the lessor
under § 715 et seq. (Formerly § 188), the formation of a joint tenancy
flat spouses by law without the landlord's consent under § 703 et seq.
Civil Code (previously § 175)].

27th Owners association in this context also pointed to consideration of the Constitutional Court
expressed in findings announced under no. 231/2000 Coll. and in particular no.
528/2002 Coll. and no. 84/2003 Coll. It stated that if now
Constitutional Court granted the petition, it would deepen kvazivlastnického
nature of the lease and to further curtail utendi and jus jus disponendi as
basic components of property rights. Owners' Association admits that
contested provisions apply to the cooperative, ie. The de facto ownership

Housing is absurd, but in his opinion the Constitutional Court should not overlook
what effects would bring about satisfactory findings with other groups
tenancy relations, relationships arising under § 871 paragraph. 1
Civil Code; the result would be a violation of property rights
under Article. 11 of the Charter. Owners' Association recalled that the contested provisions
have a transformational significance: allow the transfer of lease
relationships to apartments from the sphere of the unconstitutional state rent control and
endlessness of this state into the realm of normal lease relationship without
kvazivlastnických elements tenant relationship the leased dwelling.

28th Possible infringement tenants by the Association of Owners
does not lie in the fact that there are contested reasons for termination of tenancy, but that
there is no positive provision of ordinary law precluded application of such
reasons for dismissal on cooperative apartments (or.
also on contractual lease relationships resulting free lease agreement after 1 January 1992, where
given the autonomy to apply these reasons for dismissal or


Wording of the contested provisions of the Act and its legislative history

29th The Constitutional Court finds that the contested provision § 711 par. 1
point. g) and h) of the Civil Code was, at the time of submission of the proposal and now

"§ 711

(1) The landlord may terminate the tenancy only with the consent of the court of
following reasons: ....

g) has if the tenant has two or more flats, except that he can not be
justly be required to use only one flat;

h) if the tenant does not use the apartment without serious reasons or if he no serious || | reasons, uses it only occasionally; ".

30th The provisions of § 711 par. 1 point. g) and h) of the Civil Code became
part of Act no. 509/1991 Coll., which amends, supplements and adjusts the Civil Code
, with effect from 1 January 1992. The original text of the contested provisions
under this Act was the following: "g) if
tenant has two or more flats, except that it is not justified
required to use only one flat; h) if the tenant does not use the apartment without || | serious reasons. ".

31st In the explanatory memorandum to the government draft of the Act (print 685 18
meeting of the Federal Assembly) states: "In the area of ​​contract law
returns and existing institutes personal use, especially
personal use of apartments. the legislation, use of apartments (henceforth no longer rent apartments)
however, are linked to some problems. First of all, the one that does not yet exist
housing market and in view of the situation will be his introduction - as evidenced by
experience law states our western neighbors -
longer process. ... Special provisions for apartment leases (§ 685
seq.) took over the existing regulation on personal use of the apartment with the changes
that reflect the new social situation.. .. the new law still on its own can not create
housing market, but may stimulate the creation and encourage
. it removes existing administrative interference in lease
relationships. ... the protection of tenancy, which is inherent in lawmaking
law states, is based on the fact that if there is no agreement, the landlord can terminate the lease
without giving reasons, but it can only apply to the court
proposal to consent to terminate the lease of an apartment on the grounds enumerated | || in § 711. the reasons for the amendment extends and respects while also needs
landlord. ... The amendment envisages that the tenancy arises even
cooperative apartments. Method signing of a lease, the lease and its contents
demise, however, is modified according to the conditions laid down in the statutes
housing cooperatives. ". The debates on the Government Bill
none of the deputies of the Federal Assembly for by that provision did not. | ||
32nd Act no. 267/1994 Coll., amending and supplementing the Civil Code
was in § 711 par. 1 point. h) with effect from 1 January 1995 to
end followed by the words "or it without serious reasons
uses it only occasionally;". the proposal to adjust the wording of this provision was not included
government bill. part of the bill became
based on the joint report of the constitutional Law, budgetary and economic
Chamber of deputies, the petitioner (Government Minister
economy) supported this amendment.
the joint report of the committees was not justified and in the course of the debate, none of the MPs

Amendment did not.


Terms of locus standi of the petitioner

33rd The Constitutional Court first addressed the question whether the petitioner -
District Court for Prague 7 - is authorized for the annulment of the contested provisions
lodge. He concluded positive. The petitioner correctly stated
that the contested provisions must be applied in civil proceedings
consent to terminate the tenancy, because of the contested provisions
plaintiff in this proceeding based reason for termination. Draft District Court for Prague 7
therefore linked to its decision-making activities, and therefore this court
authorized petitioner under Art. 95 para. 2 of the Constitution and § 64 par. 3
Law on the Constitutional Court.


Constitutionality of the legislative process

34th According to § 68 para. 2 of the Constitutional Court, the Constitutional Court, except
assessment of the contested statute is consistent with constitutional laws, to determine whether
was adopted and issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner
. It is based on § 66 para. 2 of the
Constitutional Court, according to which a petition is impermissible if the constitutional
law with which it is designed by the reviewed regulations are inconsistent, lost
before delivery of the proposal to the Constitutional Court the validity . It follows that
with legal regulations issued before the Constitution (January 1
1993), the Constitutional Court is authorized to review only whether their content
with the existing constitutional order, but not the constitutionality of the procedure
created and observance of norm (see also Decision Ref. No..
Pl. ÚS 10/99, published as judgment no. 150, Vol. 16 Collection of Judgments and
resolution, pp. 115, 119).

35th In that case, the Constitutional Court did not examine whether the Act no. 509/1991
Coll., With effect from 1 January 1992 entered into the Civil Code
contested provision was adopted and issued within the then federal
constitutionally prescribed competence and her prescribed manner.

36th Act no. 267/1994 Coll., Which amended the contested provisions, however
already been accepted and published for the effectiveness of the Constitution, and therefore it must first
determine whether it was passed and issued within the bounds of constitutionally provided jurisdiction and || | constitutionally prescribed manner.

37th From the resolution of the Parliament of the Czech Republic no. 536 of
25th Meeting December 15, 1994, the Constitutional Court found that the government's proposal
Law amending and supplementing the Civil Code, according to the parliamentary press
112, as amended by the joint committee reports by the parliamentary press
1264 and approved the amendment was approved by the Chamber of Deputies.
From the stenographic record of this meeting, the Constitutional Court found that the bill
out of 163 deputies present voted 96 deputies, 32 deputies were
against and 33 deputies abstained, and two did not vote (399 votes). The Senate in
He was not elected. The Act was delivered to the president for signing
December 16, 1994, the president signed it
22nd December 1994. The Act was promulgated December 30, 1994 in the Collection of Laws in part 79
under No. 267/1994 Coll. The Constitutional Court states that Act no. 267/1994 Coll
. She was adopted and issued within the bounds of constitutionally provided competence and
constitutionally prescribed manner.

38th At this point the Constitutional Court notes that it is aware that
Chamber of Deputies of the Parliament of the Czech Republic has approved 14 March 2006
bill on unilateral increases in housing rent and amending
Law no. 40/1964. Civil Code, as amended,
in the version approved by the Senate, under which substantially changes also
determination of § 711 of the Civil Code with the expected effect from 31 March 2006.
However, given that the contested
provisions in the existing wording will have to be applied to legal relationships arising before
effect of the amendment of the civil Code, on which they can before the general court of
done many proceedings, the Constitutional court found no reason to await the publication
amendments to the civil Code in the Official Gazette and then
proceedings under § 67 para. 1 of the Constitutional court stopped (similarly progressed
Constitutional court judgment Pl. US 33/2000 of 10 January 2001, published
as judgment no. 5, Vol. 21 Collection of Decisions of the Constitutional court, pp.
29, in the Collection of laws under no. 78/2001 Coll.). Indeed, at the time of the decision of the Constitutional Court
contested provisions are still in effect, and therefore
conditions for stopping proceedings under § 67 para. 1 of the Constitutional Court
not met.


Rating Constitutional Court

39th Constitutional objections to the complainant contested provisions are
along two lines: one from the perspective of equality, both in terms of protecting
will. In the alternative, the appellant's arguments
interference in private and family life tenant and his freedom of residence.
Constitutional Court turned first to the assessment of the opposition protect the autonomy of the will,
private and family life and freedom of residence, as they relate
of all tenants, without distinguishing between tenants and cooperative
nedružstevních. Eventually he dealt with objections, which are based on peculiarities
tenancy of the flat.

40th Content of the first petitioner's objections are contested provisions conflict with the principles
protection of free will and freedom of contract, which derives from Article
. 1. 1 of the Constitution. According to the petitioner, it is for the tenant, if the option
take more apartments regardless of the reasons that lead him to it. It's just
entities will contract to rent an apartment if it is closed, under what conditions, and whether
tenant will be truly enjoying. There is no reason to force a tenant to have
only one apartment, if it is within its powers to meet its obligations
rent more apartments.

41st The Constitutional Court has recognized a number of its decisions
principle of autonomy of will and freedom of contract constitutional dimension. In the Constitutional Court
[see Judgments. Nos. Pl. US 24/99 dated 23 May 2000 (judgment no.
73, Vol. 18 Collection of Decisions of the Constitutional Court - hereinafter "SbNU"
p. 135), Pl. US 5/01 of 16 October 2001 (judgment no. 149, Vol. 24
SbNU, p. 79) and Pl. US 39/01 of 30 October 2002 (judgment no. 135, Vol. 28
SbNU, p. 151)] an essential part of the democratic rule of law is
protection of freedom of contract, which is a derivative of the constitutional protection of rights
property pursuant to Art. 11 Sec. 1 of the Charter (whose main component is ius
disponendi). Freedom of contract but not confined to the right
ownership, although it is precisely in this context that it is enshrined in constitutional law
strongest. In its judgment. . I. ÚS 113/04 dated 4 May 2004
(Judgment no. 63, Vol. 33 SbNU, p. 129) stated that respect
autonomous sphere of the individual's general condition for the functioning of the legal
State within the meaning of Art. 1, paragraph. 1 of the Constitution, respectively. Art. 2. 3 of the Charter.
Individual's right to autonomy, ie. The freedom of the individual, responsible
requirement for state power to recognize autonomous expressions of the will
individuals and corresponding conduct. If such conduct does not interfere
rights of third parties, it must state power manifestations of individuals solely
respect or approve of. The interference with the freedom of the individual to the state power
resort only in cases that are justified
certain public interest, if such interference is proportional
(reasonable) with respect to the objectives to be achieved.

42nd The principle of protecting the rights of subjects will be widely reflected in
private law, which is characterized by the principle of equality of the parties
(in terms of the concept of equality is reflected in the internal structure of reciprocity
relations of private law, as compared with public law, for that is characterized by the predominance of the wearer
public sovereign power, not
concept of equality before the law in the sense discussed below sub VII./C).
Manifestation of autonomy of the will of subjects of law is a contractual autonomy, ie.
Liberty contracts. Even in private law, however, the objective law puts
autonomy, respectively. contractual freedom
certain limits (cf. § 2 para. 2 and 3 of the Civil Code). You can not overlook the fact that
just in terms of legal regulation of apartment leases the Civil Code contains
many standards mandatory character, whose common denominator is protection
lease, respectively. Tenant. These mandatory standards, limiting the autonomy
primarily on the other side of the lease relationship, ie.
To the lessor. Acknowledging that the landlord is typically the apartment owner
, it is obvious that the increased level of tenant protection is reflected in the restriction of property rights
landlord, specifically in limiting the right to dispose
subject property. Protecting the lease may thus come into conflict with
constitutional guarantee of property rights under Art. 11 of the Charter. ^ 1 At the same time,
as was noted in his unpublished judgment file. Nos. Pl.
US 20/05 of 28 February 2006, just the nature of the legal relationship, including hiring
flat renting a relationship bond presupposes
create maximum space for the exercise of free will and freedom of contract

Parties (subject arising from point 46 of the judgment).

43rd Based on the indicated bases of the Constitutional Court must agree with the argument
Senate of the Czech Republic that the contested provisions
respectively. All the reasons for termination of the lease of the apartment are part of a broader package of measures called
theory and practice as tenant protection,
respectively. to protect the weaker party (see also § 685 par. 1
Civil Code). This conclusion, moreover nedospívá first time. In its judgment. zn.
IV. US 524/03 dated 23 September 2004 (judgment no. 138, Vol. 34 SbNU, pp.
387), the Constitutional Court stated that the Czech right to lease the apartments are built on significant
protect tenants. This fact is reflected in particular in the
termination of tenancy, both precisely defined reasons for
that can legally give consent to the termination of the tenancy, secondly, to protect tenants
ensure that the tenant is not obliged to the vacate the flat,
until they have secured adequate substitute housing.

44th The Constitutional Court has repeatedly dealt with the other component protection
rent - rent control: see Constitutional Court decision. Nos. Pl. US
3/2000 dated 21 June 2000 (judgment no. 93, Vol. 18 SbNU, pp. 287,
231/2000 Coll., 130/2001 Coll.), Finding sp. Nos. Pl. US 8/02 of 20
November 2002 (judgment no. 142, Vol. 28 SbNU, pp. 237, 528/2002 Coll.) And
judgment Pl. US 2/03 of 19 March 2003 (judgment no. 41, Vol. 29 SbNU,
pp. 371, 84/2003 Sb.). In these judgments, the Constitutional Court stood behind
opinion that protection of tenants
permanent part of our legal system since the 20s of the last century, while in today
context it can be understood as control the use of property, So as
legitimate ownership restrictions within the meaning of Art. 1
Additional Protocol to the European Convention on human rights (promulgated along with
Convention under no. 209/1992 Coll., hereinafter "the Protocol" ).
According to this provision, states may adopt laws that deem
necessary to control the use of property in accordance with the general interest
secure the payment of taxes or other contributions or penalties. Similarly, Art. 11
paragraph. 3 of the Charter indicates that ownership is binding and can not be misused
to the detriment of the rights of others or in conflict with legally protected public interests

45th Under these provisions, the Constitutional Court, as well as the European Court of Human Rights
, briefly assesses whether restrictions on the use of property
(ownership rights) pursues a legitimate aim that is consistent with
national law and whether it is proportionate to the legitimate aim pursued
[see. eg. Constitutional Court decision. Ref. II. US
482/02 of 8 April 2004 (judgment no. 52, Vol. 33 SbNU, p. 39)]. Not
is no doubt that the protection of the lease based on legal norm with the force
Act. In all the above-cited judgments, the Constitutional Court did not doubt
that protect tenants, respectively. flat lease constitutes a legitimate aim
limitation of property rights, contributing to the realization of the right to an adequate standard of living
within the meaning of Article. 11 of the International Covenant on
Economic, Social and Cultural Rights (promulgated as no. 120
/ 1976 Sb.), the right of the family to social, legal and economic protection
within the meaning of Article. 16 of the European social Charter (promulgated under no. 14/2000
Sb.ms), respectively. within the meaning of Article. paragraph 4. 2 point. a)
Additional Protocol to the European Social Charter (promulgated under no. 15/2000 Sb.ms).
It is therefore necessary to proceed to the third part of the test and assess the contested rules
for adequacy constraints owner in relation to the objectives pursued

46th If the legitimate aim of protecting hiring motivated by social reasons
(cf. Above cited judgment file. Ref. IV. ÚS 524/03) - the requirement to provide
tenants adequate standard of living, which includes adequate housing as
fulfillment of basic needs to have a safe place where one can
lay your head - then it is clear that further limitation of the owner of the apartment above
beyond satisfying the basic housing needs of the tenant should test the adequacy
fallen through. If the law limited the owner in his disposition
law so that it would not permit him to terminate the tenancy
even in a situation where the basic housing needs of the tenant quite enough
saturated, for example, that itself has a range of housing options
at the appropriate level, such a limit would need to be assessed owner
disproportionate to the aim pursued. Tenant protection in this sense

Can not be misused to protect the tenant's business with leased apartments
or build housing at the expense of the real owners of apartments. It must be because
take into account the legitimate interest of the lessor on the proper use of the apartment [see
Constitutional Court decision. . I. ÚS 360/02 dated 10 June 2003
(Judgment no. 86, Vol. 30 SbNU, pp. 303, 306)]. If in addition to protection
hiring motivated by the state to regulate the rental market, and at
exceeding demand, to promote fair distribution of housing, then it would not be an appropriate measure
if the legislation limiting the owners of the flats allow accumulation
flats in the hands of one tenant or purposeless
dealing with housing stock so that apartments remained unused and unoccupied
. Now the contested provisions have to face such situations.
The abolition of the restrictions on the ownership rights of apartment owners
further deepened and given the situation would be stopped (if it has not already)
meet the criterion of proportionality in relation to the legitimate aim of protection

47th At this point it is worth recalling the considerations that
Constitutional Court did in its Judgment. Nos. Pl. US 8/02 cited above.
The Constitutional Court then noted that the rental rate according to the European standards
is usually temporary, while for us it is fundamentally closed indefinitely
and given that transitions right of personal use of an apartment is very
resembled the rights to inherited property, the right to personal apartment
factually based and lasting relationship has evolved into a sort quasivlastnictví.
The bulk of the lease relationships past were not created by a free contract, but an administrative order
often against the will of the owners in accordance with
concept of a gradual transfer of the entire housing stock in the so-called.
Higher socialist forms of ownership. Thus the so-called.
Housing law has become part of the public law and does not compare well with the European concept
classic private institute rent. In addition, this hybrid
legal relationship called for socialism as personal use and now only
renamed to rent also, in terms of civil law theory
moved from the area of ​​contractual rights between the kind of new substantive rights.
This transformation took place and it persists virtually in real life: people
rented apartments each buy and sell, often in disguised form
exchanges, but recently also openly called for. Compensation.
Range transfer usage rights to housing, respectively. the rights of tenants, is our inheritance
comparable to these dwellings, while in European law is limited.
The Constitutional Court had also held that the mutual correlation of price regulation
rent and lagging transformation of civil relations
regulating housing manifests itself in solving the basic contradiction of every modern home
policy, namely finding a balance between the principle of protection of tenants and
principle of protecting property.

48th The Constitutional Court recalls that the cited judgment was adopted more than
three years ago, and it is evident that the situation in the housing market will not change much
. Instead, the legislature, in cooperation with the Government
respond flexibly to judgments in which the Constitutional Court strongly criticized the legislation then
tough rent control law that denies ownership
apartment owners and poorly thought out transformation of rental relationships
done for a long time nothing. The consequence of this inactivity was a de facto freeze
controlled rent, which further deepened
violation of property rights of owners of apartments, which are covered by the regulation.
Inaction lawmaker strongly criticized by the Constitutional Court in its most recent
finding concerning the issue of rent sp. Nos. Pl.
US 20/05 of 28 February 2006.

49th Thus, as regards the alleged violation of the autonomy of the will of the tenant, respectively.
His freedom of contract from the previous interpretation is clear that the contested provisions
not affected. The legislation in force does not prohibit
tenants have two or more apartments event. Three or not to use at all times.
The law only gives the landlord a limited opportunity tenancy
qualified to quit, and only with the consent of the court and if he provides when
evacuation shelter. You can not rip autonomy tenant
respectively. the contractual freedom of the context in which it operates. It is contrary
landlord, whose autonomy will is at the end of the lease
significantly reduced in comparison with the tenant. If not protected tenancy,

Would apply a standard adjustment tenancy agreed to an indefinite period
in which both Contracting Parties may, under equal conditions, to achieve
lease termination notice unilaterally when
cease to be interested in its further duration (cf. § 677 paragraph. 1
civil Code).

50th The repeal of the contested provisions would therefore been even greater
restrictions on the rights of landlords in favor of tenants, thereby
Constitutional Court went against the spirit of its previous judgments. De lege lata, every other restrictions
landlord rights to unilaterally terminate the lease would
right tenant to the apartment could actually become that quasivlastnickým law
to the detriment of real property rights lessor, which survived only as
bare ownership, despite the constitutionally proclaimed principle
its protection. Any further reduction of the exhaustive catalog of reasons for which
landlord can terminate the lease goes against the spirit of private law
because it deepens the inequality between the parties to a private law relationship.
Contrast to the current state of the abolition of the contested provisions were at the expense of the lessor
further enhanced unfair imbalance between used
funds (the extent of restriction of property rights provisions of the Civil Code
to rent a flat) and pursued a legitimate aim (protection of the lease,
respectively. tenant), which in our legal environment becomes common knowledge, even though
Constitutional court has not yet had occasion to specific provisions on apartment leases
(§§ 685-716 and § 719 of the civil Code) comprehensively,
terms of their compliance with the constitutional order, deal. The Constitutional Court
this place again declares (cf.. Cited judgment file. Ref. IV.
US 524/03), it is not permissible to transfer social burden of one group of people
(tenants) to another group (landlords ), which applies not only to
legislation rents and increasing, but also comprehensively
legal regulation of the mutual rights and obligations between landlord and tenant.

51st The argument in favor of annulling the contested provisions can not be
difficulties associated with proving that the tenant does not use
apartment or uses it only occasionally, which argued also addressed
Association of Tenants of the Czech Republic. The Constitutional Court next observes that
burden of proof in this case the lessor, not the lessee, which
follows from settled case law of the general courts. ^ 2

52nd Even with another petitioner's claim that the contested provisions in abstracto
represent an unconstitutional infringement of the fundamental right to protection
private and family life, the Constitutional Court does not concur.
In the abstract the reasons for termination are contested
justifiable in terms of protecting the rights and freedoms of others (cf. Art. 8, paragraph. 2 of the Convention,
respectively. Art. 12 Sec. 3 of the Charter), specifically property rights.
The Constitutional Court agrees with the Senate that the contested legislation imposes
landlord tenant an obligation to disclose information about whether a flat
unnecessary nor allow the landlord to enter the apartment and
interfere with the constitutional rights of tenants including his family life.
The Constitutional Court does not exclude that the interference with the right to private and family life in a particular case may
when applying infected reasons for dismissal
occur, eg. Their arbitrary interpretations or by faulty or insufficient factual
finding. In such cases, however, affected
provide procedural means of protection, including a constitutional
complaint. The Constitutional Court recalls that the mere possibility that it will be some
statutory provisions applied in conflict with the constitutional order,
alone is not enough to disqualify it.

53rd Regarding the guarantee of freedom of movement and residence, it seems
Constitutional Court as well as the Chamber of Deputies and the Senate absolutely no doubt that this
directly applicable constitutional rights with the option to terminate
private relationship (tenancy) in any way collide. Like
freedom of movement and residence does the subjective right
against the owner of the apartment that he rented an apartment, it does not even have the right to make
lease could not be terminated for legal reasons.

54th Finally, the petitioner argues that the contested provisions constitute
inequality between tenants of co-operative on the one hand and tenants
nedružstevních on the other hand, the fact that the first category of tenants compared
second category of tenants unduly disadvantage. tenants cooperative

Flats will be disadvantaged by the petitioner that the legislature them
applied the same rules termination of the lease, without taking into account the specific nature of the lease
cooperative apartment, which according to the petitioner
quasivlastnický character. The petitioner argues that in fact that
legislature created the legal regulation of termination of tenancy
gap unconstitutional because it did not remember specific legislation on termination of tenancy

55th The Constitutional Court must first answer the question whether the contested
provisions of the Civil Code can not constitute a breach
constitutionally protected principle of equality respectively. the right to equal treatment within the meaning of Article
. 1 of the Constitution, according to which the Czech Republic is a sovereign, unified and democratic
rule of law based on respect for the rights and freedoms
man and citizen, Art. 1 of the Charter, under which
people are free and equal in dignity and rights, Art. 3. 1 of the Charter, which enshrines equality
in relation to the guarantees of fundamental rights and freedoms, and
Art. 4, paragraph. 3 of the Charter, according to which legal restrictions of fundamental rights and freedoms
apply equally to all cases which meet the specified conditions
. The principle of equal rights is yet to be seen in
relation to Art. 26 of the International Covenant on Civil and Political Rights
(promulgated as no. 120/1976 Coll.), According to which all before the law
equal and entitled to equal protection of the law without any discrimination
, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any grounds
eg. as race, color, sex, language, religion,
political or other opinion, national or social
origin, property, birth.

56th In its case law, the Constitutional Court holds and the concept of equality
accessory, ie. equality in relation to another fundamental right or freedom
, and the concept of equality, ie.
general equality before the law. He perceives equality rather than absolute terms, but relative:
principle of equal rights is to be understood that the legal distinction between
operators' access to certain rights shall not be an expression of arbitrariness;
See. Constitutional Court judgments file. Nos. Pl. US 16/93 [judgment no. 25, Vol. 1
SbNU, p. 189], sp. Nos. Pl. US 36/93 (SbNU, Vol. 1, judgment no. 24, p. 175
) sp. Nos. Pl. US 4/95 (SbNU, Vol. 3, judgment no. 29, p. 209), sp. Ref.
Pl. US 5/95 (SbNU, Vol. 4, judgment no. 74, p. 205), sp. Nos. Pl. US 9/95
95 (SbNU, Vol. 5, judgment no. 16, p. 107), sp. Nos. Pl. US 33/96 (SbNU,
Vol. 8, judgment no. 67, p. 163), sp. Nos. Pl. US 15/02 (SbNU, Vol. 29,
judgment no. 11, p. 79). Identically understood the principle of equality and the Constitutional Court
ČSFR. In its judgment. Nos. Pl. US 22/92 (Collection of Decisions of the Constitutional Court finds
CSFR, judgment no. 11, p. 37) cited the memoir
J. Prazak, Austrian constitutional law, Prague 1902, pp. 42-43, which reached | || concluded that the expression "all citizens are equal before the law" is not
told they belonged to all citizens the same rights, but down here
only directive that, firstly, the way in which the already acquired rights | || implemented and, secondly, the conditions for acquiring individual rights must be for all citizens
same. This concept of equality is
The Court has had volunteered, and since its inception has been endorsed by the Constitutional Court of the Czech Republic

57th Equality is the definition of the categories relative in another sense:
considered in the category of gender in the relationship between at least two people in the same
respectively. comparable positions (cf. also cited
Constitutional Court of Czechoslovakia sp. Nos. Pl. US 22/92). Identifying groups of people who can
terms of preserving the principle of equality comparisons include
while most difficult tasks when applying this argument [.
Constitutional Court decision. Nos. Pl. US 47/95 (Judgment no. 25, Vol. 5 SbNU,
pp. 209, 122/1996 Coll.)]. The basic guideline is objectified
list of attributes on which it is impermissible
any distinction or different treatment (cf. Art. 3. 1 of the Charter and
similar anti-discrimination provisions in many international human rights instruments

'58. From another perspective, the fundamental constitutional principle of equality
conceived at two levels - as formal equality as well as de facto equality.
There is no doubt that the role of the legislature is to ensure the creation
rule of law to all the addressees of legal norms of formal equality, but

View of the fact that in the real world of nature and society
there are a number of reasons actual inequality, the legislature must consider
justified cases and cases of normative anchoring
inequality that, for example, removes the de facto inequality or else | || handicap. It is obvious that, for example, did not contradict the constitutional requirement of equality
normative advantage physically disabled person before
healthy person in a concrete situation (eg in the field
employment of people with difficult working application, privileged access to so-called
. wheelchair flats, etc.). Even where the legislature has not given way
willful advantage "weak" in order for a specific life situation
prefer factual equality before the formal retains authority
which positive law is applied, a space for resolving tensions between || | incompleteness of written law and the nature of the particular case through
application of constitutional principles in the substantive conception of law (
judicial discretion).

59th The Constitutional Court notes that the petitioner is confusing the category of equality
in the aforementioned concepts related to subjects consistently
rights for "equality" among legal institutions. It argues
provided that the lease between the so-called. Cooperative apartment and the lease
nedružstevního apartment are differences that would deserve different treatment
even as regards termination of tenancy notice from the landlord.
Comparing tenancy nedružstevního on one side and tenancy
cooperative on the other side and derive from differences in these legal institutes
constitutional requirement on their different rules on
level civil law but in the context of the principle of
equality inappropriate.

60th The Constitutional Court was guided by the following considerations.
In terms of sub-constitutional law is renting a cooperative flat in terms of the character of a lease agreement
identical to tenancy nedružstevního. Even tenant -
team member is a party to the lease relationship with all rights and obligations
like any other tenant, unless the law provides otherwise.
Practical difference between these leases arises from the fact that the tenancy cooperative
is derived primarily from equity team member on the purchase of a flat and
his membership in a housing cooperative. The specificity of cooperative housing
therefore not given the subject of the lease, but legally separate relationship team member
(lessee) the team (landlord). In this relationship is the tenant -
team member greater degree of stability of the lease, which is approaching stability
which provides use of an apartment in the property. Therefore, the Civil Code
§ 714 ties the termination of membership in a housing cooperative and termination of the lease
apartment. Cooperative apartment tenant, who is also member of housing association is in a more favorable position
that is organized in a housing cooperative, and that
in accordance with the statutes involved in the activities of housing cooperatives, their
landlord, including the creation of his will . With membership in a housing cooperative
are in addition connected and effective instruments of legal defense against a team
decisions that are contrary to law or the Articles
team. The fact that the tenant cooperative apartment is a member of the team
which is his landlord, that in some ways really based
its distinct position in relation to tenants' apartment nedružstevního "
especially in the conditions for the emergence of tenancy , different structures
rent (excluding profit component as direct equity participation
team member on the maintenance and repair of the house), and in particular totally
exclusive right of disposition of the rental relationship and membership in the cooperative form of claim
on the unrestricted transfer of membership under § 230 of the Commercial Code
. These differences are, however, given the differences of a legal relationship, which entered into

61st From these arguments clearly show that the contested provisions
not constitute interference in the constitutionally protected principle of equality, since it is not
distinction between rights and responsibilities of tenants or due to
traditionally banished criteria (see Art. 3. 1 of the Charter) nor
relative to another position, but in terms of comparing the legal institutions
lease cooperative and nedružstevního apartment, which constitutionally protected
principle of equality does not apply. "Can not argue inequality where the law provides
for all subjects that can be included in the personal scope
regulation, claim the same conditions." (See above cited judgment

Pl. US 47/95). The creation, content and no lease rights are for all people
same. In terms of the principle of equality, it is essential that all
persons are legally equal conditions for it to enter into a legal status
tenant cooperative apartment, or that they have the same
conditions for it to become tenants of the apartment nedružstevního and simultaneously
all cooperative housing tenants have under the civil Code
same rights and obligations regardless of their sex, race, color, language,
faith and religion, political or other opinion, national or || | social origin, association with a national or ethnic minority,
property, birth or other similar status.

62nd The Constitutional Court in its Judgment. Ref. III. US 258/03 dated May 6
2004 (judgment no. 66, Vol. 33 SbNU, pp. 156, 167) stated, inter alia, that the jurisdiction
democratic legislature in statutory regulation of private
law includes the regulation of contractual types. No provision
constitutional order does not imply a binding order for the legislature to lease
relationships to apartments modified in some way. There is no provision
Charter that would (for example, the same way as property)
established that the lease and the rent guarantee all tenants has the same content
enjoy the same legal protection, or that are under specified conditions | || admits various legislation by subject lease agreement. It is therefore in
available to lawmakers whether to adjust the rent generally for all conceivable subjects
lease contract or whether the special provisions
respond to the specifics of the lease of agricultural land, the residential premises or
flats, or whether it will civil law further differentiate and distinguish
rents apartments and cooperative nedružstevních, service apartments, flats
special purpose entities or other dwellings according to the currently pursued goals
legislation. If such arrangements adopted within the limits of the constitutional order and
leaves the court, which it applies, space
constitutionally conforming interpretation of the standards in question, it is not desirable for the Constitutional Court
as a body for protection of constitutionality and also its negative legislator || | derogative intervention alleged constitutional gap still widened.

63rd Although the co-operative housing provides tenants - member team
greater degree of stability than traditional lease rental housing, it does not entitle
not conclude that the relationship tenant a cooperative apartment falls under the category
ownership, respectively. quasivlastnictví. The owner of a cooperative apartment is not
cooperator, but the team and this organization enjoys the protection of property rights
propped up by Art. 11 of the Charter [cf.. Constitutional Court decision. Ref. IV.
US 8/93 of 13 February 1995 (judgment no. 8, Vol. 3 SbNU, p. 35): According to this finding
decision on exclusion of the complainant from a housing cooperative
not "interfere in law enshrined in Art. 11 of the Charter, despite the fact that
Art. 11 of the Charter is protected existing property, while
present cooperative apartment owned by the complainant was not and is not a
in its possession was not a membership share, when its value
representing an ownership interest in a member of the team was also
for the duration of the complainants in the cooperative property management team. "]. ^ 3

64th Although the Constitutional Court did not agree with the reasons put forward
unconstitutionality of the contested provisions, the petitioner affirmed that the application of the contested
reasons for dismissal to be owned by a housing cooperative
against a tenant who is a member of the housing cooperative, raises
doubts. It would undoubtedly be desirable and appropriate that the next
special provisions for the conclusion of the lease contract for the lease
cooperative apartment or on minor repairs and reimbursement of costs associated with routine maintenance
(§ 685 par. 2, § 687 paragraph. 3 of the civil Code), a joint tenancy
cooperative apartment spouses (§ 700, paragraph. 3, § 703, paragraph. 2, § 704, paragraph. 2
§ 705 paragraph. 2 of the civil Code) or transfer the lease cooperative apartment | || (§ 706 para. 2, § 707 paragraph. 2 of the civil Code) was enacted and
provisions that would respect the specificities of cooperative housing
appropriately regulate the disappearance of a cooperative apartment lease termination.
Constitutional Court even admits that the regime is not a lease for use
cooperative apartment the most appropriate solution and that the transformation of the Institute
personal use of an apartment for rent cooperative apartment was in many aspects

Ill-conceived. Doubts about the suitability of the legislation is not enough to
Constitutional Court to reach a conclusion about its unconstitutionality.
Had repeatedly in its case law favors constitutional interpretation
contested provisions before they are abolished.

65th Where, therefore, the petitioner, and the Constitutional Court shares this belief, that the differences
Institute cooperative apartment lease would
with respect to general principles of justice, deserve a restrictive interpretation of the contested
reasons for dismissal in relation to cooperative dwellings valid
legislation provides him with such an interpretation sufficient space.
General Court may take the peculiarities of cooperative apartment lease into account in the implementation of the disposition
reasons for dismissal by the contested provisions, ie
. when evaluating whether the tenant can not justly be required to use only one
apartment [§ 711 par. 1 point. g) of the Civil Code]
respectively. in assessing the serious, respectively. serious reasons for which the tenant does not use
apartment or uses it only occasionally [§ 711 par. 1 point. h)
Civil Code]. Consideration must also take the provisions of § 3 para. 1
Civil Code, under which the rights and obligations arising from
law relationship may not, without legal grounds, interfere with the rights and legitimate interests
others and must not be in conflict with good manners.

66th The Constitutional Court recalls in this respect that "
moment unsustainable use of the law is its application based solely on
language interpretation, linguistic interpretation represents merely an initial approach to
applied a legal standard is a basis for clarifying and || | explaining its meaning and purpose (which is also served
number of other processes, such as logical and systematic interpretation, interpretation e ratione legis,
etc.); cf. above cited judgment file. Ref. III. CC 258 / 03. And in judgment.
Nos. Pl. ÚS 21/96 dated February 4, 1997 (judgment no. 13, Vol. 7 SbNU, pp.
87, 96) the Constitutional court in another context he said: "the court ... is not absolutely bound by the express wording
statutory provisions, but from it can and must
deviate when it requires serious reasons purpose of the Act,
history of its formation, systematic context or any of the principles
which have their basis in a constitutional legal order as a meaningful
whole. It is necessary to eschew arbitrariness; court decisions must
based on rational arguments. ". These conclusions can undoubtedly
extended to the interpretation of infected reasons for dismissal in relation to the cooperative flat

67th Constitutional Court, after conducting proceedings notes that there are no grounds
to annul § 711 par. 1 point. g) and § 711 par. 1
point. h) of the civil Code, because these provisions in abstracto and especially in context
special provisions on lease of an apartment (§ 685 et seq.
civil Code), which were not contested and whose constitutionality had
Constitutional court to assess comprehensively, not in conflict with Art. 1 paragraph.
1 of the Constitution and Article . 1, Art. 3, paragraph. 1, Art. 4 paragraph. 2 and 4, Art. 10 paragraph. 2 and
Article. 14 paragraph. 1 of the Charter, and therefore the proposal of the District court for Prague 7 by
§ 70 para. 2 of the Constitutional court dismissed. the Constitutional court, however, considers
important at this point to stress that this conclusion does not preclude
constitutionality of the contested provision in a different context, especially when
comprehensive assessment of constitutionality the provisions of part VIII. Title VII.
Section IV. Civil Code could not be evaluated differently.
Chairman of the Constitutional Court

JUDr. Own hand

Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, took to the plenary decision
judge Stanislav Balik, Frantisek Duchon, Vlasta Formánková and Pavel Holländer || | and his reasoning judges Dagmar Lastovecká, George and Elizabeth Nykodým

1 See, eg., Judgment file. Ref. III. US 114/94 (judgment no. 9, Vol. 3 SbNU, pp.
45): "The provision of a law limiting the right of ownership, must be considered as well
provisions of § 712 paragraph. 2 of the Civil Code. Code. .. .
in his interpretation of the cited provisions of the Civil Code. Code. Brno Regional court rejected the "extensive
interpretation" of the term 'substantial' equivalence and an adequate alternate
vyklizovaného apartment. He came to the conclusion that if the | || local conditions "difficult" or impossible for such a reasonable substitute
be ensured, then it is precluded application of the owner's right to give notice

(In this case under § 711 par. 1 point. A) of the Civil Code. disciple.). This interpretation
§ 712 paragraph. 2 of the Civil Code. disciple. led to the elimination of the owner's disposition
rights (which includes the possibility of dismissal) and therefore spared
essence and meaning of one of the constitutionally guaranteed fundamental rights.
Resulted in the violation of Art. 4 par. 4 of fundamental rights and freedoms. ".

2 Supreme Court decision 26 Cdo 1900/99 of 7 March 2001:" The testimony may
Indeed the court give consent only under the assumption that ...
landlord (and nobody else) in proceedings on consent to terminate its assertions
about the facts, which is a testimony (in this case contained in the application)
justified also demonstrate, ie. the burden of proof is also in this case
landlord - the same conclusion reached by the Supreme court of the Czech Republic
in the judgments of 8 June 1999, sp. Ref. 26 Cdo 2259/98, from February 24
2000 sp. Ref. 20 Cdo 1456/99. ".

3 Likewise also resolution file. Ref. III.ÚS 445/04 of 16 December 2004.
The constitutional complaint, the complainants - briefly summarized - railed against the fact that although
properly and timely team to transfer the apartment appealed to them not to
personal property transferred, and are thus in conflict with the law
forced to remain in the rental relation to the cooperative. also disagreed with
facts that were not settled ownership rights to the land on which
a building is built. the team asked after the complainants
payment of rent, although they should be converted into private ownership.
the Constitutional court held that the plea of ​​infringement of Article . 11 of the Charter is not justified.
"settled case-law of the Constitutional court within the intentions of Art. 11 paragraph. 1 of the Charter
protects only property already acquired, existing, and not only
alleged claim on them (to see. eg . judgment in the matter I. US 115/94 in
Constitutional court of the Czech Republic: Collection of Decisions - volume 3., no.
41, Praha 1995). ".

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