Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=60237&nr=265~2F2005~20Sb.&ft=txt
The Constitutional Court
On behalf of the United States
The Constitutional Court decided on 4 April 2006. May 2005 in the composition of JUDr. Stanislav
Package, JUDr. Francis Skinner, JUDr. Turgut Güttler, JUDr. Pavel
Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří Mucha,
JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav Výborný,
JUDr. Elisabeth Wagner and JUDr. Michael April decided to design.
M. to repeal the provisions of § 442 paragraph 1. 1 and § 449 paragraph. 2 of law No.
40/1964 Coll., civil code,
The proposal to repeal the provisions of § 442 paragraph 1. 1 and § 449 paragraph. 2 of law No.
40/1964 Coll., the civil code, is rejected.
The definition of things and a recap of the proposal
The Constitutional Court was on 15. July 2003 delivered a constitutional complaint
the complainant, j. M., which was directed against the judgment of the District Court in
Brno No 13 What 338/99-91 of 5 February. October 2000, after indicating that
It was delivered to 29. September 2003, as well as against the judgment of the Supreme Court, no. 25
CDO 1409/2001-120, of 24 September. April 2003, and which in addition included a proposal for a
to cancel the provisions of § 442 paragraph 1. 1 and § 449 paragraph. 2 of the Act No. 40/1964
Coll., the civil code. The Fourth Chamber of the Constitutional Court, by order of the
March 22, 2004, SP. zn. IV. the TC 405/03 proceedings on constitutional complaints by
§ 78 para. 1 Act No. 182/1993 Coll., on the Constitutional Court, as amended by
amended (hereinafter referred to as the "law on the Constitutional Court"), and it
After finding that the proposal meets the conditions set out in the provisions of
§ 74 of this Act, i.e., that the provisions of the law is being challenged,
the application of the occurrence of the event which is the subject of the constitutional
the complaint, and that it's not about a draft is manifestly unfounded. Proposal to repeal
the provisions of § 442 paragraph 1. 1 and § 449 paragraph. 2 of the civil code advanced
the plenum of the Constitutional Court.
At trial, maintained by the municipal court in Brno under the SP. zn. 35 C 381/95
the appellant sought payment of the amount of CZK 2 000 000, with Prov. against P. M.,
and, for the reasons that the 17 November. in December 1993 he died his son, F. M., 3.
on June 22, 1979, by drowning after he slipped into the unprotected area under
Weir on the river Svratka in the cadastral authority of Pisárky, to the flow of the River in 48.17 km space
the recreation area of Riviera. Fault on the side of P. M., and s.
here according to the place where the accident happened, although in
the past there has been a series of drowning. Demanded the payment of a sum of 13
$510.60 on the cost of the funeral and the acquisition of epitafní boards, and in the rest of the
He sought compensation for non-material damage, for the emotional suffering caused by the
the sudden death of the son of the suffering and material damage due to that would be
his deceased son could in the future help in business, respectively, or
his mother to take care of and provide support in the event of illness or
The municipal court in Brno by judgment No. 35 C 381/95-68 of 28 June. January
1999 upheld only in the part concerning reimbursement of the costs of the funeral and
acquisition of epitafní plates and dismissed the action. The decision was motivated
so, the provisions of § 442 paragraph 1. 1, § 448 paragraph. 1 and § 449 paragraph. 2
of the Civil Code do not award damages arising from other
reasons other than listed here. The following provisions of the asserted claims
to respond only to claim for the cost of the funeral.
On the initiative of an appeal that both parties to the dispute, the subject of the dispute
Regional Court in Brno ruled that, in respect of a claimed
non-material damage, fully aligned with the municipal court in Brno.
This section, however, admitted in accordance with the then applicable arrangements the appeal that
justify your belief that the claimant should be given the option to
make use of all legal means to assess the merits of it
the claims put forward is intangible, whose compensation is not in
valid legislation rules, specifically the mental injury as a result of
bereavement and future obligation to survivors
The Supreme Court judgment of 24 July 2003. April 2003-No. 25 Cdo
1409/2001-120 the appeal dismissed. To associate himself with the opinion of the Court
first and second instance, in addition to the claims referred to in paragraph 448
and § 449 paragraph. 2 and 3 of the civil code the bereaved when the killing of the person
other claims were not giving, and stated that such a claim cannot be inferred either from the
the provisions of the Charter of fundamental rights and freedoms ("the Charter"). According to the
his conclusion is not the provision of section 448 of the civil code in violation of
respective constitutional requirements. Further stated that the entitlement to the refund counter help
the deceased, who would in the future could provide (or survivors.
help him at work, at home or in care of his person), you cannot
construct or by comparing the adjustments resulting from the provisions of § § 448 and 449
paragraph. 2 and 3 of the civil code with the provisions of section 11 of the civil code
(a natural person has the right to protect their personality, life and, in particular,
health, civil honour and human dignity, as well as the privacy of their
the name and expression of a personal nature) and section 13 of the civil code [natural
in particular, the person has the right to claim to be waived from unauthorized
interference with the right to the protection of her personality in order to remedy the consequences of the
those interventions and to be given adequate compensation (paragraph 1),
and if there was sufficient compensation under paragraph 1. 1
especially because it was largely reduced the dignity of individuals,
or her esteem in society, the natural person has also the right to compensation
non-material damage in monetary terms, which give rise to claims for breach of rights
for protection of personality]. This provision give rise to the right to protection
personality, the purpose of which is to safeguard respect for the personality of the physical
of the person and its individual integrity as conditions for a dignified
the existence of the free development of the individual and total. It is therefore not out of the question,
that caused by the death of a loved one can due to cross a narrow and rigid
social, moral, emotional and cultural ties, featuring so much
serious injury to the developing and non-fulfilment of personality
surviving that may be classified as injury-reducing its
the dignity and esteem in society. It is, however, the claim is different from
claim for damages within the meaning of the provisions of § 448 and 449 of the civil
code, which has been the subject of proceedings in the case under consideration.
The claimant stated that in the proposal it is apparent that the current valid
legislation of compensation in the event of death, carried out the provisions of the
§ 448 and 449 paragraph. 2 of the civil code does not allow the provision of other
compensation than cash income on which the deceased survivors, nutrition nutrition
provided for or was obliged to provide, and the reasonable expenses of the funeral,
It considers, however, that this is in conflict with the Charter, in particular the
with the article. 6 the first sentence of which reads: "everyone has the right to life." and article. 30
paragraph. 1, which reads as follows: "citizens have the right to adequate material security
in old age and incapacity to work, as well as the loss of a breadwinner. ". In
the final consequences of disdain is the value of human life. Shall be deemed to
the adjustment for the remnant from the times of the formation of the Socialist rule of law
that favored the interests of the State of fiscal. This completely overlooks the principle that
the deceased, if they survived, they could arise in the future for more
maintenance obligations; the appellant points to the
In the procedure, the regional court in Brno, then later sees the infringement of article 81(1). 36
paragraph. 1 of the Charter, since in his opinion it was possible interpretation
"poor", the provisions of the civil code to extend. It, however,
follows up his suggestion that this provision should be repealed. It considers that
that it is in order to adapt the European standards in the Czech Republic
The appellant was a constitutional court challenge from 9. September 2003 is prompted to
remove the defects of administration, and specifically the remedies, and whether the proposal with regard to the
the Supreme Court decision does not intend to make any changes. Up to the challenge
responded only by the design of the petit proposal to repeal
the judgment of the Supreme Court of 24 September. April 2003-No. 25 Cdo
1409/2001-120. The proposal to repeal the provisions of § 442 paragraph 1. 1 and § 449 paragraph.
2 of the civil code left intact. Could not delete such a contradiction between
the content of the proposal, in which attacks the conflict with the constitutional order
the provisions of § 448 paragraph. 1 and § 449 paragraph. 2 of the civil code, while in
the remedies sought annulment of § 442 paragraph 1. 1 and § 449 paragraph. 2 of the code of
Recap the essential parts of the representation of the parties
The Constitutional Court has sent a proposal to initiate the procedure and a resolution on interruption
proceedings on constitutional complaints in accordance with the provisions of section 69 of the law on
The Constitutional Court on the parties-the Chamber of Deputies and the Senate
Parliament of the Czech Republic.
The Chamber of deputies after a brief recap of the content of the constitutional complaint
the claimant stated that the constitutional right of every human being to life,
enshrined in article. 6 (1). 1, first sentence of the Charter is formulated in General,
While paragraph 4 of the same article says that negotiations are not a violation of the
This law, and its constitutional bounds. The State then by acting must
to ensure that the right to life was protected against interference or attacks
anyone, which further clarifies the paragraph 2 of the article. 6 of the Charter. The penalties for
breach of such prohibition either intentionally or recklessly provides criminal
the law. The rapporteur considers that the protection of human life
the criminal law is not sufficient. In the opinion of the Chamber of Deputies, however,
stems from the fact that, in the investigation into the drowning of his son has to grow up
the competent investigating authority considers that there is a strange fault.
When it comes to conflict with article namítaný. 30 paragraph 2. 1 of the Charter,
The Chamber of Deputies, that in paragraph 3 of the article. 30 of the Charter shall be adopted,
This can be in the meaning of article 87(1). paragraph 41. 1 of the Charter applied
only within the limits of the law, which is to be carried out. Concludes that the
the texts of a more favourable interpretation cannot be bypassed for the claimant, as this
in its proposal, said, referring to how regional court in Brno.
The Chamber of Deputies then concludes that cannot identify with the opinion of the
the petitioner that he referred to the provisions of § 442 paragraph 1. 1 and § 449 paragraph. 2
of the civil code are unconstitutional.
In its statement, the Senate said that the provisions of § 442 paragraph 1. 1 was in
current form included in the civil code, the so-called. a major amendment
the civil code effective from 1. January 1992 [article. (I) section 109 (sic-
Editor's note. Red; correctly section 83) Act No. 509/1991 Coll., amending,
supplements and adjusts the civil code]. The provisions of § 449 paragraph. 2 has been added.
the existing wording indicated by adjusting the effective to 1. October 1995 (article. XXIV.
Act No. 118/1995 Coll., amending and supplementing certain laws in
connection with the adoption of the Act on State social support). Both
the provisions are brought into sections "common provisions on compensation
damages "and still more closely to the Group of sections (section 442-449) collectively, the
bearing the title "the way and the extent of the refund". Said that while
the provisions of § 442 paragraph 1. 1 in this new wording was modified by the system
a change in the determination of what a pity, or what kind of damage is to be covered, which
the problems connected with the transition to a market economy in 1989, § 449 paragraph. 2
remained practically constant rule already from the time of the General Civil Code
Civil and amendment of 1995 was technically affected, from the perspective of
application for annulment of trivially.
The Senate pointed out that with regard to the date of issue of laws containing
the provisions are proposed to repeal this is the regulations that have been
approved at a time when the Senate has not yet been established. Recalls, however, that the
The Senate is the issue of damages in the killing, and that when
discussion of the draft law, amending Act No. 168/1999 Coll., on the
liability insurance for damage caused by operation of the vehicle and amending
some related laws (Act on liability insurance
operation of the vehicle), as subsequently amended, Act No. 586/92 Coll., on
income tax Act, as amended, Act No. 200/1990 Coll., on
provincial offences Act, as amended, and Act No. 40/1964 Coll.,
the civil code, as amended.
Indeed, the draft act in its fourth section in the article. (VIII) contained two
thematically relevant changes of the civil code, which took the effectiveness
May 1, 2004 (Act No. 46/2004 Coll.). Specifically, it was a complement
§ 444 of the civil code a new paragraph 3 has been modified
one-time compensation to survivors of persons in the killing of a close person, and
Next, insert a new § 449a that enables future claims under the
the provision of section 445 of the civil code to compensate in one lump sum on the basis of
written agreement of its full and final settlement between authorized and
principal. This adjustment also applies to future claims arising from the
the provisions of § 446-449 of the civil code.
As regards the proposal to repeal the provisions of § 442 paragraph 1. 1 of the code of
code, the Senate said that, in the event of its dissolution, in law
missed positively defined the legal basis for the repair of the damage as well as
for traditional basic formal sort of damage to the actual damage and loss
profit. This would, in his opinion, the concept of the method and extent of broken
compensation for damage.
With regard to the provisions of § 449 paragraph. 2 of the civil code, this
provision of continuously builds on the obligation to pay costs associated with the
treatment (para. 449, paragraph 1, of the Civil Code), as it specifies that in the case of
death is also obliged to compensate the pest the reasonable costs associated with the
the funeral. In the opinion of the Senate, the legislature was never the reason this
the provisions vary, as it is a matter of traditional and at the same time the content
complying with the current social climate in the Czech Republic
in the European context. In the case of this provision, as well as in
the provisions of § 442 paragraph 1. 1 of the civil code, cannot be accepted
the claim of the claimant regarding the Socialist origins of both provisions.
Adaptation of the traditional, historically documented, functional, and
interpretable product manufacturing and from the perspective of constitutionally guaranteed fundamental rights and
In its observations the Senate deals with the provisions of § 448 paragraph. 1
of the civil code, which is mentioned in the proposal, although the remedies are not
proposed its abolition. The provision establishes the obligation to
cover the cost of food to the survivors, to which the deceased food was provided
or was obliged to provide. Interpretation of this normative statement
It is in Czech law after a decade of consistent. The Senate refers to the
Comment the exiled Czechoslovak General Civil Code, the authors are concerned
F., Sedláček, j., volume V, Prague 1937, and by 926 quotes: "
compensation for persons at the time of death actually dependent, ... by contrast
There is no debit to pay persons who only perhaps in the future could have a
right to food, for example. the parents of a slain child. ".
The Senate also pointed out that if there is a violation of the argued
constitutional law, guaranteed in article. 6 (1). 1 of the Charter, then without a major
analysis, it is evident that this provision is passing with the provisions on
compensation to the survivors. The first sentence of the article. 6 (1). 1 of the Charter, the General
provisions for subsequent paragraphs 2-4, that it in the constitutional plane
they're divorcing. The entire article. 6 is inherent in the protection of the very essence of life.
Thus seen, the interpretation can not be other than that the aim of this
constitutional law is the protection of the individual against any arbitrary
deprivation of life. As regards article. 30 paragraph 2. 1 of the Charter, because it defines the
the obligation of the State to built through social
systems maintain a reasonable, decent and socially sustainable
the level of the citizens. It guarantees citizens a reasonable physical security. This
Article of the Charter therefore has no association with the provisions of the civil
code on compensation.
The diction of the contested provisions
The provisions of § 442 paragraph 1. 1 of the civil code reads as follows:
"(1) the actual damage is paid and what the victim missed (lost profit).".
The provisions of § 449 paragraph. 2 of the civil code reads as follows:
"(2) when the death is payable whether or not the reasonable costs associated with funeral expenses,
If you have not paid for death grants provided under the Act on State
social support. ".
The conditions of the locus standi of the applicant
The proposal to repeal the provisions of § 442 paragraph 1. 1 and § 449 paragraph. 2 of the code of
code was filed by the applicant s. M. in connection with the administration of the constitutional
the complaint against the rulings of the regional court in Brno of national and international sp.
Zn. 13 What 338/99, and the Supreme Court of 24 September. April 2003, SP. zn. 25
CDO 1409/2001. The constitutional complaint was filed within the time limit pursuant to § 72 para. 2
the law on the Constitutional Court. Pursuant to § 74 of this act together with the constitutional
complaints can be filed an application for annulment of the Act or of individual
provisions, if according to the complainant's allegations are inconsistent with the
the Constitutional Act. The provisions of § 78 para. 1 of the law on the Constitutional Court,
If the constitutional complaint has been filed together with the application for annulment of the legal
Regulation pursuant to section 74, the Senate of the Constitutional Court shall stay the proceedings and a proposal for
repeal legislation will advance the plenary for a decision under art. 87
paragraph. 1 (b). a) or b) of the Constitution. The Fourth Chamber of the Constitutional Court by a resolution
of 22 March. March 2004, SP. zn. IV. the TC 405/03 proceedings on constitutional complaints
interrupted and advanced a proposal to repeal the provisions of § 442 paragraph 1. 1 and § 449
paragraph. 2 of the civil code the plenum of the Constitutional Court. In the case of the
applicants can therefore fulfill the terms of the active
The constitutional conformity of the legislative process
The Constitutional Court is in accordance with the provisions of § 68 para. 1 of the law on the constitutional
the Court in proceedings for review of laws or other legislation obliged to
assess whether the contested act was adopted and issued by the constitutionally prescribed
The original text of the provisions of § 442 paragraph 1. 1 and § 449 paragraph. 2 of the code of
the code was the subject of the negotiations as a 3. paragraph 24. the meeting of the national
the Assembly of the Czechoslovak Republic, which was carried out on 26. February
1964. The contested provisions has not been the subject of debate, and the law was as
all accepted unanimously votes to 271 members. If the Constitutional Court within
assessing the constitutionality of the competency standards control the regulatory authority and the
the constitutionality of the regulatory process, is based on the provisions of section 66 paragraph 1. 2
the law on the Constitutional Court, according to which the proposal of cancellation laws
and other legislation inadmissible if the constitutional law or
an international agreement to which they are by design, examined the provisions in the
conflict, which expired before delivery to the Constitutional Court the validity of the proposal. From
It follows that the laws issued prior to the acquisition of
the effectiveness of the Constitution of the Czech Republic No. 1/1993 Coll., Constitutional Court
entitled to examine only their content compatibility with the current
the constitutional order, but not the constitutionality of the procedure of their creation and
compliance with regulatory competence. This also applies to the amendment to the provisions of § 442
paragraph. 1 made by Act No. 509/1991 Coll.
A minor amendment to the provisions of § 449 paragraph. 2 of the civil code was
made by Act No. 118/1995 Coll., amending and supplementing certain
laws in connection with the adoption of the Act on State social support, when
were the words "regulations on sickness insurance" replaced by "law on
State social support ". This adjustment, the present on 31. a meeting of the
the first term of Office of deputies of the Czech Parliament
the Republic was adopted on 26 April. May 1995. Voted for the proposal of 173
100 MPs, against 67, and 6 were members of the abstentions
Act No. 118/1995 Coll. was signed by the respective constitutional officials, and was
The Constitutional Court notes that Act No. 118/1995 Coll. was adopted by the constitutional
in the prescribed manner.
The content of the contested provisions compliance with the constitutional order
The rapporteur proposes to repeal the provisions of § 442 paragraph 1. 1, and the provisions of § 449
paragraph. 1 of the civil code. In both cases, due to the fact that they are in
contrary to the article. 6 (1). 1, the first sentence of the Charter, which reads: "everyone has the
the right to life. "and article. 30 paragraph 2. 1 of the Charter, which reads as follows: "citizens have the
the right to adequate material security in old age and disability
work, as well as the loss of a breadwinner. ". Argues that the adaptation from the times
the formation of a socialist legal system, which preferred the fiscal interests of the
The provisions of § 442 paragraph 1. 1 of the civil code is the leading provisions of the
the marginal heading "the way and the extent of the refund". Provides that they shall be borne by
actual damage and lost profit. This is a provision which is virtually
as enshrined in the Czech legal environment already 200 years old.
The General Civil Code § 1323 edited reimbursement
as follows: "to refund the damage caused was given, must be given all the
the previous state, or if this is not possible, replaced with the appraised price.
If a refund is only damage suffered, actually called a remedy.
If, however, also refers to the loss of profit and the shlazení caused by
the offense, it's called full satisfaction. ". The Civil Code of 1950
the provisions of § 354 regulate the issue as follows: "the damage
be replaced by the indication of the previous state, and if this is not possible, in the
the money. Replaces not only the damage actual, but also what the victim
missed. ". The provisions of § 442 paragraph 1. 1 of the civil code, as amended
the amendment made by Act No. 509/91 Coll. sounded as follows: "there is only
the actual loss by indicating in the previous state; If this is not possible
or expedient, payable in cash. ".
Therefore, you cannot accept the view that the existing wording of the provisions of § 442 paragraph 1.
1 is a relic of the "socialist legal system".
By itself, the fact that this adjustment in the Czech legal environment has many years of
the tradition may not, of course, mean that it is not in conflict with the constitutional
policy. Therefore, it is necessary to assess the appellant's objection that the
first submits that it is contrary to article. 6 (1). 1 the first sentence of the Charter.
Here it must be said that this provision of the Charter must be seen in
context of the whole article, in particular with paragraph 2, which reads, "no person shall
be deprived of his life ", and with paragraph 4, which reads as follows" the violation of the rights under the
This article is not, if someone was deprived of his life in the context of the
conduct under the Act is not punishable. ". The purpose of this provision,
is the protection of life. It is the guaranteed constitutional right of every human
beings that cannot be arbitrarily killed. It cannot be inferred from it no
constitutional guarantees in relation to legislation to the extent of the refund method
damage. The protection of life from arbitrary killing is not in the legal plane
left of the adaptation of individual liability, but solely on the criminal law
responsibility for the killing. This corresponds to the citovanému article. 6 of the Charter, which
Another protection of human life nekonstruuje. So even if you can in General
plane admit liability plays an important role in
the prevention of conduct leading to the killing of cannot be inferred from this that the
the plaintiff cited the first sentence of the article. 6 of the Charter and the legal
liability adjustment. Such an interpretation of article
It cannot be based on any of the interpretative methods used in
application of the law. It can be concluded that the provisions of § 442 paragraph 1. 1 is not
contrary to the article. 6 (1). 1, the first sentence of the Charter because it guaranteed
the right to life has no relationship to legislation to liability for
In second place, the applicant claims that the provisions of the civil
the code is inconsistent with the constitutional law enshrined in article. 30 paragraph 2. 1
Of the Charter. This Constitution guaranteed the right of a citizen in the law, however, is
relation to the State. Has no impact in the area of legal provisions,
liability for damage, which concerns the relations of private bodies,
in not applying the established position of the State. The Constitution of this
guarantees every citizen in relation to the State and not to the other
citizen, or other private entities, adequate material
Security no matter what was the cause of State assistance. (I)
Here it can be concluded that the provisions of § 442 paragraph 1. 2 of the civil code is not in the
conflict with the constitutional right guaranteed in article. 30 paragraph 2. 1 of the Charter.
The essence of the scheme, which is the content of the provisions of § 449 paragraph. 2 of the code of
code, also in the legal order of the Czech Republic many years
tradition as well as understanding the adjustments resulting from the provisions of § 442
paragraph. 1 of the civil code. The General Civil Code section 1327 stated
that: "If there is a body of death, must be replaced with not only
all the losses, but also survivors, whose nutrition was killed
under the law, worry, everything they missed. " The Civil Code valid
from 1950 to 1964, in paragraph 356 provided: "Originates from the
damage to the death, is obliged to compensate the cost of pest treatment and funeral
to the one who is, and people left their nutrition on usmrceného,
what they missed. "
Even for this provision therefore does not apply, that if it were a relic of the Socialist
the era of making law.
Regarding the relationship of this provision to the article. 6 (1). 1 first sentence and article.
30 paragraph 2. 1 of the Charter, then fully charged here, everything has been said in the
the context of the provisions of § 442 paragraph 1. 1 of the civil code.
The contents of the text box portion of the proposal of the applicant are his reservations about
the provisions of § 448 paragraph. 1 of the civil code. These statutory provisions
It considers unconstitutional, although the remedies the draft proposes
the provisions of § 442, para. 1 of the civil code, and not the provisions of §
448 paragraph. 1 of the civil code. This apparent discrepancy between the content of
the design and the applicant does not explain the petite and in spite of the Constitutional Court
This administration did not remove it. Because it is a question that has a considerable
-the legal dimension, to her opinion of the Constitutional Court, although
It is to be noted, again, that i edit, which is the content of the provisions of § 448
paragraph. 1 of the civil code is in our legal system tradition.
It is clear from the above quoted provisions of section 1327 of the General Civil Code
the civic and from section 356 of the Civil Code of 1950. Valid to modify,
as well as the previous edit, admits in the event of death, a claim for
damage in the form of annuities only to persons actually dependent or persons to which
the deceased had this obligation, and not persons might in the future
such claim arose. In fact, the appellant being lodged with the Rails
particularly against this provision. To objections to its non-compliance with article 4(1). 6
paragraph. 1 the first sentence, and article. 30 paragraph 2. 1 of the Charter is meant to refer to the
the previous interpretation, from which showed that both of these provisions
The instrument completely pass with the issue of damages, and therefore cannot be used in
any way inferred that this provision was in conflict with them.
Proposals to repeal the provisions of § 442 paragraph 1. 1 and § 449 paragraph. 2 of the code of
the code does not address the substance of the objections the applicant in doing so, in which sees the
the unconstitutionality. Nor would any did not address the proposal to repeal the provisions of the
§ 448 paragraph. 1 of the civil code. From the perspective of what is alleged to have done, is not
the problem, what is the content of these provisions, but in what in them
It is not. The appellant feels the imperfection of the current edit mode and scope
compensation that does not recognise the right to compensation for non-material damage. In that
only you can see the logic of its application for annulment of the provisions of § 442
paragraph. 1 of the civil code, which defines the scope of the compensation so that the
paid by the actual damage and lost profit. Our civil code does not contain
the legal definition of the damages. The provisions of § 442 paragraph 1. 1 of the civil code
damage defines only indirectly by modifying what is replaced by. In doing so,
This is the introductory provisions, the following additional provisions which
in particular, the extent they modify significantly. They indicate that, for example.
When damage to health is painful and aggravating social compensation
the application, which is certainly not in one case is not actual damage.
The deletion of the provisions of § 442 paragraph 1. 1 of the civil code would be nothing
did not fix, just complete the mosaic of the statutory provisions
defining what is compensation and thus indirectly what the law considers it
the damage provisions, whose absence dropped would not necessarily lead to
malfunction of other provisions, and, consequently, to the demise of entire functional
legal provisions, the scope and method of compensation.
The abolition of the provision of section 449 paragraph. 2 of the civil code would have not reached
anything other than that would be out of the range of provided refunds dropped replacement
the costs associated with a funeral. The same analogy applies to case
He was given a proposal to repeal the provisions of § 448 paragraph. 1 of the code of
It can therefore be concluded that the problem raised by the complainant in its proposal on the
repeal the provisions of § 442 paragraph 1. 1 and § 449 paragraph. 2 of the civil code,
It's not that those provisions were contrary to the Constitution, but rather in the
What in the provisions governing compensation for damage is not explicitly
expressed. The essence of the complainant's objections is that in these provisions
lacking the adjustment of damages for non-material injury, except where
that are in the law exhaustively calculated (painful, making it
social application and newly effective from 1st single
substitute in the bereavement). Entitlement to the refund counter help
the deceased, who would in the future could provide, the surviving
You cannot construct or by comparing the adjustments resulting from the provisions of § 448 and
§ 449 paragraph. 2 and 3 of the civil code with the provisions of articles 11 and 13
of the civil code, which give rise to the right to protection of personality, which
the purpose of the protection is respect for the personality of a natural person and its
individual integrity as conditions for a dignified existence and total
free development of the individual.
The Constitutional Court in its award dated 1.3.2000 SP. zn. II. the TC 522/99
(Collection of the findings and resolutions of the Constitutional Court, volume 17, finding no. 32)
expressed the view that the part of the private life is undoubtedly also a family
life, including relations between close relatives; respect for the
private and family life must include the right to a certain extent
on establishing and developing relationships with other human beings in order to
It was meant to, inter alia, to develop and fulfill their own personality.
Due to the death of a loved one, therefore, can narrow due to the mutual and
fixed social, moral, emotional and cultural ties, featuring
a serious enough injury for developing and non-fulfilment of personality
surviving that may be classified as injury-reducing its
the dignity and esteem in society. From this perspective, the civil code
It gives the conditions for the application of financial satisfaction for the injuries of
interference in moral rights as a result of the death of a loved one. In terms of the
existing legislation, however, it is a different claim than the
compensation for damages.
The Constitutional Court assessed whether the use of interpretative rules
to interpret the provisions of the civil code defining the compensation so that the
It would be possible under this provision even qualify as a claim for
imateriální damage of the loss of a loved one. Here he could not
disregard that in the period between the filing of a constitutional complaint has been to act
integrated adjustment of compensation to survivors, adopted the provisions of § 444
of the civil code, to which new paragraph 3 was inserted, that this
the issue resolves performance.-once This provision the legislature
modified the way and extent of compensation for this kind of imateriální damage. This
the adjustment does not allow your explicitly no space for different
the interpretation. However, it is flat enough that it cannot be regarded as
a comprehensive solution to the problem. Therefore, it does not preclude, if
one-time compensation is not sufficient satisfaction for the damage to the
moral rights to the persons concerned sought further satisfaction
According to the provisions on the protection of the personality.
The Constitutional Court in this connection feels the need to point out that from the
the legislative point of view, it would be more correct to leave the existing concept
damages as material damage and considered the damage and injury caused by the action of
of physical and spiritual integrity of the injured party. Such a concept is
Indeed, the report and the principles of European tort law, which define the
damage as the material or non-material damage the law protected interest.
These principles, even if they have a basis in private initiative, have a significant
impact on the legislation of European States, which gradually this conception
adapting, as an example. the forthcoming amendment of the civil
code in Austria.
Having regard to all the foregoing, therefore, the Constitutional Court the application for annulment
the provisions of § 442 paragraph 1. 1 of the civil code and the provisions of § 449 paragraph. 2
civil code in accordance with § 70 para. 2 of the Act on the Constitutional Court rejected.
The President of the Constitutional Court:
JUDr. Rychetský v.r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, the decision of the plenum have been judges.
Stanislav Balík, JUDr. Miloslav Výborný and JUDr. Elisabeth Wagner.
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