In The Matter Of An Application For Annulment Of Certain Provisions Of The Civil Code

Original Language Title: ve věci návrhu na zrušení některých ustanovení občanského zákoníku

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=60237&nr=265~2F2005~20Sb.&ft=txt

265/2005 Sb.



FIND



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,



as follows:



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.



Justification



(I).



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

of helplessness.



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

persons.



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

situation.



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 community.



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

code.



II.



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

freedoms.



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.



III.



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. ".



IV.



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 evidence.



In the.



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

way.



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

the vote.



Act No. 118/1995 Coll. was signed by the respective constitutional officials, and was

properly declared.



The Constitutional Court notes that Act No. 118/1995 Coll. was adopted by the constitutional

in the prescribed manner.



Vi.



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

State.



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

damage.



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

Petit design.



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

code.



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.