In The Matter Of The Application For Revocation Of The Act On Bankruptcy And Settlement

Original Language Title: ve věci návrhu na zrušení části zákona o konkursu a vyrovnání

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=55728&nr=210~2F2003~20Sb.&ft=txt

210/2003 Coll.



FIND



The Constitutional Court



On behalf of the Czech Republic



The Constitutional Court decided on 24. in June 2003, the plenary on the proposal of the Supreme

the Court, represented by the President of the Senate 29 JUDr. Zdeněk Krčmářem, on

the cancellation provisions of section 12a paragraph. 5 the second sentence Act No. 328/1991 Coll., on the

bankruptcy and settlement, in the wording of later regulations,



as follows:



1. The provisions of section 12a paragraph. 5 the second sentence Act No. 328/1991 Coll., on the

bankruptcy and settlement, in the wording of later regulations, expressed by the word

"cash" is repealed on the date of the announcement of the award in the collection of laws.



2. In the remaining part of the proposal is rejected.



Justification



(I).



The day was the Constitutional Court delivered 2.12.2002 proposal 29. the Senate of the Supreme

the Court, in which the applicant seeks the annulment of the provisions of section 12a paragraph. 5 phrases

the second Act No. 328/1991 Coll., on bankruptcy and settlement, in the text of the Act

No 122/1993, no. 42/1994 Coll., no. 74/1994 Coll., no 117/1994 Coll. No.

156/1994 Coll. No. 224/1994 Coll., no. 84/1995 Coll., no 94/1996 Coll., no.

151/1997 Coll., no. 12/1998, no. 27/2000, no. 30/2000 Coll. No.

105/2000 SB., no. 214/2000 Coll., no 368/2000 Coll., no 370/2000 Coll., and no.

120/2001 Coll. (hereinafter the "law on bankruptcy and settlement"), expressed

the words "Against a resolution on rejection of the application for a declaration of bankruptcy, for

lack of assets can appeal and the creditor, which demonstrate that it has a

debtor financial claim. "



The appellant stated that under the SP. zn. 29 Odo 184/2001 hearing appeal

the lender against the resolution of the High Court in Prague of 26.1.2001 No 2

Co 172/2000-32 in case led by the regional court in Plzen under SP. zn. 26

To 72/2000 [the debtor's proposal (G). and C. C. a. s. in liquidation (hereinafter referred to as

"the debtor") on the Declaration of bankruptcy]. In consideration of this appeal

the appellant came to the conclusion that the law, which has to be in the solution of the matter

used, is in conflict with the Constitution of the Czech Republic (hereinafter referred to as "the Constitution").

The applicant seeks, therefore, in accordance with the provisions of article. paragraph 95. 2 of the Constitution and § 64 paragraph. 4

Act No. 182/1993 Coll., on the Constitutional Court, as amended,

its cancellation.



This proposal led the Supreme Court to the following reasons. The liquidator

the debtor filed at the regional court in Pilsen, the date of the proposal on 27.9.2000

the bankruptcy of the debtor's assets, saying that the company is

předlužena and does not have any assets. District Court by order dated

4.10.2000 No 26 to 72/2000-12 rejected the proposal for the Declaration of bankruptcy of the

the debtor's assets for lack of assets. The decision challenged

citing věřitelka no o. b., and the High Court in Prague by the resolution of the

the date of 26.1.2001 No. 2 Ko 172/2000-32 the Appeal rejected, bearing it

in accordance with the provisions of section 218, paragraph. 1 (a). (b)) of Act No 99/1963 Coll., the civil

the rules of court, in the version effective before 1.1.2001, (hereinafter referred to as ".")

a person who is not entitled to appeal.



The applicant submits that the provisions of section 12a paragraph. 5 of the law on bankruptcy and

the settlement admits the evidence to the appeal against the resolution on the

rejection of the application for a declaration of bankruptcy for lack of assets on the one hand

the current participants in the proceedings, if they are the proponent, and other

the appellants, both lenders, which demonstrate that the debtor has

financial debt. Based on the way from the standard interpretation of abetting in the

the first stage of the bankruptcy served the Court practice on the basis of

the opinions of the civil and commercial College of the Supreme Court,

published under Act No. 52/1998 Collection of judgments and opinions.

According to that opinion is not in bankruptcy proceedings or reasonably

applicable provisions of 90 o. s. l. The Act on bankruptcy and settlement has

separate provisions, which defines the parties to the proceedings, and the circuit

Parties to the proceedings is further defined, indicating the persons to submit a proposal

(additional design) on the Declaration of bankruptcy. Therefore, it is not appropriate

define participant bankruptcy proceedings otherwise. The provisions of section 12a

paragraph. 5 the second sentence of the Act on bankruptcy and settlement (hereinafter ' the contested

the sentence ") or by other provisions of the Act, however, in the context of the

do not provide an answer to some basic questions. In particular, you cannot

to find out, since the persons referred to in that provision implies submission

the appeal. The resolution, against which they have to submit an appeal, will not serve them.

There is also obvious when this deadline expires. You can also have doubts as to whether

the appellant pays for such State control at a time when their appeal

will the Court. About the other proposers but increasingly it lays down the law on bankruptcy and

in section 4, paragraph 4. 4 explicitly. This supposedly creates

space to the proceedings before the Court of appeal (in contrary to the

the principle of dvouinstančnosti management) management in the first instance. Law

namely, the right of appeal granted to anyone who claims that the lender

of the debtor, but only when a claim on the debtor showing. Is

clear that the filing of the appeal, the person becomes a participant in the

the appeal proceedings. At the same time, however, the absence of the other proposal (section 4, paragraph 4,

the Act on bankruptcy and settlement), it is not clear how and with what

the procedural rights and obligations will participate in the new proceedings before the

Court of first instance, if it succeeds, citing a negative decision

will be cancelled and returned to the Court of first instance for further proceedings.



The applicant therefore submits that the contested provisions are contrary to article. 1

Of the Constitution and article. paragraph 37. 3 of the Charter of fundamental rights and freedoms (hereinafter also

"The Charter"). The above doubts lead to the conclusion that the appellant's

the contested sentence is inconsistent with the principle of legal certainty. The principle of equality

participants is disturbed by the fact that the contested sentence leads in their

the consequences to the disparate treatment of participants in the bankruptcy proceedings.

Different treatment, however, is not supported by any legal aspect which

would justify. Finally, also claims that a person who, as a lender

with a financial claim on the borrower enters the proceedings up to the fact that in the

the meaning of the contested sentence lodges an appeal against the resolution on the rejection of the proposal on

bankruptcy for lack of assets, either to become a participant

bankruptcy proceedings only for his appellate stadium, or becomes

same as the other party to the proceedings the plaintiff under the provisions of section 4 of the

paragraph. 4 of the Act on bankruptcy and settlement (for the proceedings before the Court of first

After the decision of the cassation instance court of first instance, as a result of its

the appeal). In both cases, however, against the appellant, which is the

Another claimant, the appellant contested the sentence must, according to his evidence to the

the appeal document that "prove" (certifies) financial claim for

by the debtor. The Court of appeal, by getting at the same time the role of the Court of first

instance (jednoinstančně examines whether the appellant is a creditor of the debtor,

without losing sight of the fact that the only substantive argument, which can be

so in appeal proceedings brought about the rejection of the resolution on the

bankruptcy for lack of assets may consist in the rebuttal

the conclusion about the apparent inadequacy of the assets of the debtor). Unlike the appellant,

which is the other claimant, the appellant is not in accordance with the contested sentence is limited in

their procedural rights status of management at a time when his appeal was

the Court (the law does not impose this restriction for him, although his need can take

on the importance of resolution after the Corte di Cassazione Court of first instance the Court of appeal in

renewed proceedings before the Court of first instance).



II.



The Constitutional Court under section 69, paragraph. 1 of law No. 182/1993 Coll., as amended by

amended, requests from the Chamber of Deputies and the Senate of the Parliament

The Czech Republic, as a party to the proceedings representation to present

the proposal.



The President of the Chamber of deputies of the Parliament of the Czech Republic (hereinafter also

"Chamber of Deputies"), PhDr. Lubomír Zaorálek draft stated that

the contested provisions of section 12a paragraph. 5 the second sentence of the law on bankruptcy and

the settlement was to act by virtue of the design of MEP Eva

Dundáčkové by law No 105/2000 Coll., which came into force on the date of 1.5.2000

(print no. 219). The reason for the inclusion of that provision was

the extension of the categories of persons entitled to lodge an appeal against the resolution on the

rejection of the application for a declaration of bankruptcy for lack of assets

the creditors, which have not been participants in bankruptcy proceedings. In cases,

When, for example, only the debtor proposes bankruptcy and his proposal is rejected

from the above reasons, not its lenders status of participants

management and, therefore, could not challenge the relevant resolution of the appeal. Lodge

the appeal and subsequently cancel the resolution on rejection of the application for an audition for the

lack of assets is appropriate when the lenders are able to

mark any property to which it is possible to declare bankruptcy. The amendment of the

the law, therefore, this appeal is brought. Authorized to submit

the appeal is a creditor who has a claim against the debtor financial. For

the same conditions as a lender that would bankruptcy myself

demanded, is obliged to certify it. The contested sentence was already part of the

of the proposal and the Committee and ústavněprávním

in the second reading, marketing or has changes. Also in the Senate

The Parliament of the Czech Republic, who had to draft law passed

Deputies of the amendments, which have been in the final
the vote of Deputies accepted, not to the provisions

the reservations. The legislature when discussing and approving the law arose from the

the purpose of the Act and the objectives of the bankruptcy proceedings and was in the belief that it complies with the

request compliance with the international conventions referred to in article. 10 of the Constitution,

The Constitution and the constitutional order of the Czech Republic, including the Charter of fundamental

rights and freedoms. The legislature has acted as President of the Chamber of Deputies

in the belief that the law is adopted in accordance with the Constitution, the constitutional

policy and law. Expression Optional for the Constitutional Court to

assess the constitutionality of that provision.



The President of the Senate of the Parliament of the Czech Republic (hereinafter "the Board").

JUDr. Petr Pithart in its opinion also first described the progress of the

the approval of law No. 105/2000 Coll. amending and supplementing Act No.

328/1991 Coll., on bankruptcy and settlement, in the wording of later regulations,

(hereinafter "Law No 105/2000 Sb." or "the Act"), and which was challenged

the phrase in the Act on bankruptcy and settlement. States that the amendment

the proposals of the Senate provisions to the extent, and can therefore be

noted that the Senate had acted in the belief that the impugned sentence is in

accordance with the Constitution and the Charter of fundamental rights and freedoms. With regard to the ius

naturale expresses the belief that the practice has shown the need to strengthen the

the principle of the equality of participants in the bankruptcy proceedings and the need to eliminate

differentiated approach to them. But the question remains whether the body that

agreed, should be entitled to appeal against the decision of the

rejection of the application for a declaration of bankruptcy appeal. Beyond design

expresses doubts as to whether, in a situation where the participants in bankruptcy proceedings

are just some of the creditors, the bankruptcy court is possible to find the so-called.

"fraudulent bankruptcy". In this respect, the applicant points out, in accordance with

the above opinion of the Supreme Court.



III.



The Constitutional Court as soon as possible in accordance with section 68, paragraph. 2 of the law on the Constitutional Court,

in the wording of later regulations, examined whether the Act for which the applicant

argues the unconstitutionality of its provisions, was accepted and published in the limits of the

The Constitution laid down the competence and the constitutionally prescribed way. From

representation of the Chamber of Deputies and the Senate, as well as of the sent

the relevant Council prints, and further data on the course of the vote

The Constitutional Court found that the Chamber of Deputies approved the draft law on the

its 21. the meeting day, when 28.1.2000 for him of 152

MPs and MEPs voted in favor and one against 128. The Senate discussed

the draft law on their 16. meeting day and returned it to the Chamber of 1.3.2000

in the text of the amendments. Of the 53 senators and

senátorek voted for 52. No one was against. The Chamber of deputies of the

the draft law again acted on their 24-day 4.4.2000. meeting. For

the draft law, in the version approved by the Senate vote of 181

MPs and MEPs for 98 and 81 against. The proposal was accepted. The President of the

The Czech Republic signed the law day 17.4.2000. The law was approved

delivered to the Prime Minister for signing day 19.4.2000. The law was promulgated in the

The collection of laws of the day in the amount of 32 25.4.2000 under no 105/2000 Coll. was so

accepted and issued a constitutionally prescribed manner and within the limits of the Constitution

established competence in compliance with the rules laid down in the article. paragraph 39. 1

and (2) of the Constitution.



Whereas, since the oral proceedings could not be expect more

clarification of the matter, the Court asked the parties to the proceedings, whether it agrees with the

dropping from it (article 44, paragraph 2, of Act No. 182/1993 Coll.) that if

fail to provide the Constitutional Court within the prescribed period, the representation of the explicit

the Court assumed that with the abandonment of the oral proceedings, agrees.



The President of the Chamber of Deputies told the Constitutional Court has already, in its

comments on the proposal that agrees with this matter without an oral hearing,

the negotiations. The President also told the Senate he of 13.6.2003, that with

abandonment of an oral hearing, agrees. Due to the fact that prior to determining the

where applicable, the date of publication of this finding was not built for that

question to the Constitutional Court under the provisions of section 44, paragraph. 2 Act No. 182/1993

Coll., the claimant actually received, this fact was verified

Dial-up asking 24.6.2003 June. The Constitutional Court said the petitioner,

that with the abandonment of the oral proceedings (cf. the official record of the day

24.6.2003). Writing to the query.



Given the situation, the Constitutional Court had considered that the terms of the provisions of paragraph 44.

2 Act No. 182/1993 Coll. are populated, and from an oral hearing.



IV.



The applicant received the proposal seeks the annulment of the provisions of section 12a paragraph. 5

the second sentence of the Act on bankruptcy and settlement, according to which "Against a resolution on

rejection of the application for a declaration of bankruptcy for lack of assets may

refer the creditor, which demonstrate that the borrower has financial

claim. ".



In accordance with the provisions of section 1 (1). 1 of the Act on bankruptcy and settlement is to

This Act to organize the debtor's, which is in bankruptcy.

Arrangement of a debtor's assets shall be understood, in particular,

the settlement of the claims of the creditors of the debtor, under the conditions laid down by law.

Also, the amendment of the Act on bankruptcy and settlement (Act No 105/2000 Sb.)

directed according to the explanatory memorandum, inter alia, to strengthen the position of creditors.

Referred to legitimate objectives to provide enhanced protection of the property of the lenders

is it not even challenged the sentence, since it reinforces the procedural position of the

the creditors, who have not been participants in bankruptcy proceedings and could not

resolution on rejection of the application for lack of assets to challenge the dismissal.



The appellant first sees in the contested sentence contradiction with the provisions of the article. 37

paragraph. 3 of the Charter of fundamental rights and freedoms, which are all

the parties are equal. As expressed by the Constitutional Court in its recent

finding SP. zn. PL. ÚS 19/02 (find was declared the No. 101/2003 Coll. and

will be published in the collection of the findings and resolutions of the Constitutional Court, volume 29,

finding no. 33), in which issues of equality of participants in the bankruptcy

management also dealt with in other contexts, the provisions

Charter guarantee equal procedural rights and duties of the individual participants

in the particular proceedings. The applicant seeks, of course, by design

abstract control of contested norms, even if in the background of a particular case.

The Constitutional Court is known only through an intermediary and is not naturally his

the task in this procedure by any deal. The present proposal therefore

The Constitutional Court examined through the prism of article. paragraph 96. 1 of the Constitution, which provides for the

the general principle of the equality of the participants in the proceedings with the same procedure.



The Constitutional Court said finding SP. zn. PL. ÚS 19/02 applicant

complied with, because he found that the legislature makes various admitted

the procedural rights and obligations of the parties with the same subject

the proceedings. The Constitutional Court could not find even the possibility to overcome the unconstitutionality

the contested provision (section 24, paragraph 4, of the Act on bankruptcy and settlement)

such an interpretation, which would have been constitutionally Conformal.



The applicant claims that the contested sentence is both vague and violates

the principle of legal certainty and, in effect, leads to a different

the treatment of participants in the bankruptcy proceedings. Does not define the beginning of the period

for lodging an appeal against the resolution, in which the Court rejected the proposal on the

a declaration of bankruptcy for lack of assets, and does not specify what the status of the

they will have the persons entitled to appeal in proceedings after its cancellation.

Against the appellant, which is the other claimant, must the appellant under 12a

paragraph. 5 the second sentence of the Act on bankruptcy and settlement of their evidence to the

the appeal document that "prove" the financial claim for

by the debtor. The contested sentence is also no mention of whether and in which direction

the rights of these persons shall be limited to the fact that in the procedure to enter in this

part. By the petitioner are not the appellant pursuant to section 12a paragraph. 5 phrases

Second, the Act on bankruptcy and settlement limited in their procedural rights

the status of the proceedings at the time when their appeal was to the Court, since this

restrictions (unlike the other plaintiffs ") the law does not impose.



In the.



The objection related to the uncertainty of the text of the contested sentence is related to the

the requirement of predictability of the law. In general it can be stated that

the uncertainty of any provisions of law to be considered

rozpornou with the requirement of legal certainty and, therefore, the rule of law (article 1

paragraph. 1 of the Constitution), only if the intensity of this uncertainty

excludes the possibility of determination of its normative content using the usual

the interpretative practices [cf. Constitutional Court SP. zn. Pl. ÚS

9/95 (the award was declared under no 107/1996 and published in the collection of

the findings and resolutions of the Constitutional Court, volume 5, finding no 16)]. Other

words, a certain degree of uncertainty is the logical consequence of the legislation

the nature of the legal standards as a general scaling behavior of the control law

bodies. The Constitutional Court recalled the case-law of the European Court established

for human rights (hereinafter "ECHR"), according to which the required degree of accuracy

the Act depends mainly on the nature of the relationship, which regulates, but also

on the number and nature of its mailing. It is considered a natural, that the courts
"the finishing touches" legal norms, which cannot explicitly take into account the richness

relationships and situations, which are to be used. The degree of accuracy and

predictability of the law must be significantly higher, however, where the law

specifically allows ingerovat the public authority to the rights and freedoms of the individual

and opens up the space to her impermissible arbitrariness, and especially where there is a

public power applied, without the supervision of the public (see find the ECTHR

in the matter of Kruslin against France, 1990, section 30).



The broader scope of the contested sentences (the progress of proceedings on bankruptcy) not from the

the above considerations on the degree of accuracy of the text of any increased demands, and

so the Court can legitimately expect that the possible ambiguities removed his

the interpretation.



The Constitutional Court considers that the applicant's objections can be largely

overcome the constitutionally Conformal interpretation. A prerequisite for its interpretative

the following account has been the starting point. You cannot a priori be based on

provided, that the legislature, in adopting the provisions of section 12a paragraph. 5 phrases

Second, the Act on bankruptcy and settlement had the intention to violate the provisions of the article. 96

paragraph. 1 of the Constitution. Therefore, you cannot assume that the protection

asset group of creditors who submit on the basis of an appeal against a

resolution on the refusal of bankruptcy for lack of assets and evidence that they have

for the borrower in financial debt, intended at the same time to grant her the

unjustifiably different procedural position compared with the other group

creditors-participants. This constitutionally Conformal believe suggests even

another part of the text of the law. For example. and the creditor, who serves on the proposal

bankruptcy, must demonstrate that it has against the debtor (payable)

the claim (section 4, paragraph 2, of the Act on bankruptcy and settlement). The same

the condition must meet the other projector accesses the control and

attaching a debtor's Declaration of bankruptcy on the same before

the Court shall decide on the Declaration of bankruptcy (section 4, paragraph 4, in conjunction with article 4, paragraph 4.

2 of the Act on bankruptcy and settlement).



It cannot therefore, without further agree with the appellant's assertion, based on the

the logical argument and the other interpretative, according to which the unconstitutionality

the contested sentence consists, inter alia, in the fact that it does not specify the position of the person

entitled to appeal in proceedings after the cancellation of the resolution, in which the Court

dismiss the application for a declaration of bankruptcy for lack of assets, and does not specify

in what direction are the rights of these persons shall be limited to the fact that, in the management

Enter at this stage, and it's unlike explicit adjustments referred to

questions in relation to the "other promoters." The argument cannot

to succeed in competition with legitimate assumption, according to which the legislature

intended to legiferovat nonkonformně and duties constitutionally, the courts

to achieve within the constitutionally consistent interpretation. The Constitutional Court in the

the past has repeatedly judikoval that in the situation when certain provisions of

the law allows for different interpretations, one of which is in

accordance with the constitutional law of the Czech Republic, while the others are with them in the

contrary, there is reason for the repeal of this provision. The task of all

State authorities in a given situation is to interpret the provisions of the

constitutionally Conformal manner [cf. find SP. zn. PL. ÚS 5/96 (the award was

promulgated under no. 286/1996 and published in the collection of the findings and resolutions of the

The Constitutional Court, volume 6, finding no. 98)]. Although the law in the contested sentence

explicitly provides that the lender using the right of appeal is restricted

the status of the proceedings at the time of its accession, not just to conclude,

that this status is not limited. In accordance with the requirement of constitutionally consistent

the interpretation, however, is a must have for that lender, who served the appeal

pursuant to section 12a paragraph. 5 the second sentence of the law on bankruptcy and

the settlement, the filing of the appeal to the already ongoing bankruptcy

management as "other petitioners", who are also in the management of

After entering his beginning. It is therefore appropriate to apply by analogy also

the provisions of section 4, paragraph 4. 4 part of the sentence for a semicolon, which for

the next petitioner pays the State of the proceedings at the time of its accession.



Constitutionally Conformal interpretation can also remove the doubts of the parties the time limits

to the filing of the appeal. Management should be seen as a whole, including the management of

the appeal. If you can come to the conclusion that the constitutionally konformnímu appellant

Enter the proceedings as party thereto in progress with equal rights,

He must be a time limit for filing an appeal only to the time when the proceedings for

application for a declaration of bankruptcy still lasts. An appeal can only submit

in the period calculated from the delivery of the decision of the Court of first instance

(the last) of the participant. Indeed, reaching the same conclusions in principle

as the Inkeeper in your comments. the Act on bankruptcy and settlement

(IFEC Prague, 2000, p. 38), as well as the authors of the comments. Ing. Jaroslav

Zelenka, Ph.d. and JUDr. Carole M (the Act on bankruptcy and settlement,

comment Prague, LINDE, s., 2002, p. 316).



The applicant further States that creditors, who proceeded to the proceedings, may

According to the provisions of the first sentence of section 12a paragraph. 5 of the Act on bankruptcy and settlement

lodge an appeal without losing sight of the fact that they have a claim established. If

the applicant this argument seeks to substantiate its conclusions concerning the

unconstitutional disadvantage creditors who did not subscribe to the management and

on the contrary, their claims must be substantiated in the notice of appeal (section 12a paragraph 5

the second sentence), unable to agree with him. Duty to substantiate his claim

every creditor who has lodged a proposal for a declaration of bankruptcy (section 4, paragraph 4.

2 of the Act on bankruptcy and settlement). If the same obligation

the specific category of creditors and challenged the sentence, it's not about proof

inequality, but on the contrary of equality within the categories of creditors. The objection

the appellant clearly refers not to the contested provisions of the second sentence

section 12a paragraph. 5, but the first sentence of the same section, and the same paragraph, that

prima facie, admits that the "other appellant" within the meaning of section 4, paragraph 4. 4

the Act on bankruptcy and settlement, which bases its participation in bankruptcy

the procedure at a time after the release of the relevant resolution, could lodge an appeal

against him, without his claim showed. The appellant, however, this

the first sentence was not contested, and the Constitutional Court has no reason to its interpretation of the

specifically addressed.



VI.



The Constitutional Court therefore with the arguments of the applicant, in předestřenými

the present proposal, Fowles did not. Notes, however, that according to their

settled case-law, only bound to the petitem proposal. It is not

However, bound his reasoning. It is therefore not in conflict with its mission, when

examine the contested provisions from other aspects [cf. eg. find I.

TC 89/94 (the find was published in the collection of the findings and resolutions of the constitutional

the Court, volume 2, finding no. 58)]. Beyond the arguments referred to in

the present proposal is therefore dealt with the case of sentence and,

that the creditor has at the same time with reference to substantiate his claim, which must

be a financial claim. Take account of the

ratified and proclaimed international agreements on human rights and

freedoms, which the Czech Republic is bound. As already had, inter alia,

deduced in its award sp.. PL. ÚS 36/01 (the find was declared under the No.

403/2002 Coll. and published in the collection of the findings and resolutions of the Constitutional Court

Volume 26, finding no. 80), the constitutional entrenchment of the General inkorporační

standards, and thus overcome the dualistic conception of the relation of international law

and national law (Constitutional Act No. 395/2001 Coll.), cannot be

interpret in the sense that it would be unable to delete the reference

in terms of the international conventions ratified and proclaimed human

rights and fundamental freedoms for the assessment of national law

The Constitutional Court, with possible derogačními consequences. The scope of the concept of

the constitutional order cannot be interpreted only in the light of the provisions of the

article. paragraph 112. 1 of the Constitution, but also due to the provisions of the article. 1 (1). 2

Of the Constitution. The Constitutional Court confirmed its conclusion in its

decision-making practice [cf. find SP. zn. I. ÚS 752/02 (find will be

published in the collection of the findings and resolutions of the Constitutional Court, volume 30)].



The Constitutional Court again reminds one of the main objectives of the law on bankruptcy and

the settlement, which lies in the protection of the rights of the creditors of the debtor, which is

becomes insolvent. In accordance with the provisions of the section 4, paragraph 4. 1 of the law on bankruptcy and

the settlement is entitled to submit a proposal for a declaration of bankruptcy of the debtor or

any of the creditors. The creation of a situation of bankruptcy (section 1 (2)) go

with the obligations of the debtor in undistinguished way, respectively. claims of creditors of the part

or share. Requires only that the liabilities/receivables

"payable". With the use of teleologického, but also the systematic interpretation

the Act on bankruptcy and settlement (article 1, paragraph 2, is included in its "initial

the provisions ") is the condition of" maturity "of its receivables subject to and

the Group of creditors within the meaning of the contested sentences.



Any natural or legal person has the right to peacefully enjoy your property

(article 1 (1) of the additional protocol to the Convention on the protection of human rights and

fundamental freedoms, hereinafter "Additional Protocol"). The use of rights and

the freedoms granted by the Convention for the protection of human rights and fundamental freedoms

must be ensured without discrimination on any ground, such as
gender, race, skin color, language, religion, political or other

opinion, national or social origin, membership of a national

minority, property, or other status (article 14 of the Convention on the protection of

human rights and fundamental freedoms).



"Payable receivable" is the value of the property within the meaning of article. 1 Additional

the log, as it satisfies the conditions of the case law of the ECTHR, to the concept of

"legitimate expectations" that the creditor must have, that his claim

against the debtor will be implemented and transforms in the effective performance of the

ownership of the claim (quite particularized, current and

enforceable) (see eg. the decision on admissibility in matters Malhous

against the CZECH REPUBLIC of 13.12.2000, part B; Gratzinger and Gratzingerová against the Czech Republic from

10.7.2002, section 68 and 72).



With regard to the guarantees provided for the use of property rights and its protection

rights without the enjoyment of the right to peacefully enjoy your property

discriminated against is not possible to admit the conclusion that the creditors would be authorized in the

the meaning of the Act on bankruptcy and settlement could be only lenders

due to the "part" claims. Creditors with claims

share cannot be confined to the stage of the proceedings after the announced

bankruptcy, as it contends, without more explanation. Zelenka and

JUDr. M in his already mentioned comments, p. 18. Their

the position would be in proportion to the part of the creditors with claims it was

discriminatory, since it would unjustifiably favouring the protection of financial

assets compared with the nepeněžitému property. The relevant provisions of the law on

bankruptcy and settlement is to be interpreted in accordance with the rights guaranteed by the

all of the creditors. The contested sentence admits the right of appeal against the

resolution on rejection of the application for a declaration of bankruptcy for lack of

the property expressly only to creditors with a claim of a monetary nature,

at a disadvantage the creditors, who are able to demonstrate only the claim

non-pecuniary. This introduces between creditors within the meaning of the contested

the provisions of the inequality, which is not reasonably justified and has a discriminatory

nature. Because of the financial nature of the condition is explicitly referred

claims there is no space to its constitutionally konformnímu interpretation. To

a similar view of the parties, the discriminatory nature of the contested sentences in a given

Regardless, indeed, came from. in his commentary to the Inkeeper this law,

Although it has not exercised in the present proposal (the Inkeeper, Z.:

bankruptcy and settlement, IFEC Prague, 2000, p. 38).



The Constitutional Court because of the above reasons for inconsistency with the provisions of

article. 1 of the additional protocol to the Convention on the protection of human rights and

fundamental freedoms and article. 14 of the Convention for the protection of human rights and fundamental

freedoms, the contested provisions of section 12a paragraph. 5 the second sentence of the law on bankruptcy and

the settlement expressed by the word "cash" under section 70, paragraph. 1 of the law on

The Constitutional Court, as amended, on the day of the announcement of the award in

The collection of laws be repealed. In the remaining part of the proposal with regard to the above

referred to the reasons for the rejected (article 70, paragraph 2, of the Act).



The President of the Constitutional Court:



JUDr. Haboob in r.



Under section 14 of Act No. 182/1993 Coll., on the Constitutional Court, as amended by

amended, adopted a different opinion to the decision of the judge

JUDr. Elisabeth Wagner.