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"cash" is repealed on the date of the announcement of the award in the collection of laws.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