94/2007 Sb.
FIND
THE CONSTITUTIONAL COURT
On behalf of the United States
The Constitutional Court decided today in plenary in the composition of the President Paul
Rychetského and Stanislav Bumpkin, František Duchoně, Vlasta
Formánkové, Vojena Güttlera, Paul Holländera, Ivana Janů, Vladimir
The Crust, Jiří Mucha, Jan Musil, Jiří Nykodýma, Miloslava Excellent,
Elizabeth Wagner and Jana Židlické, in the matter of the proposal and the Senate.
The Constitutional Court to repeal § 5 para. 1 second sentence search. No 330/2001
Coll., as amended and in the matter of design P. s. b. d.
annulment of article 1(2). II. 1 of Decree No. 235/2004 Coll., amending the
Decree No 330/2001 Coll. on remuneration and compensation of the bailiff
remuneration and the reimbursement of cash expenses and business manager of the conditions
liability insurance for damage caused by the bailiff,
as follows:
Operative part
I. the provisions of § 5 para. 1 second sentence search. No 330/2001 Coll. on remuneration and
refunds bailiff remuneration and the reimbursement of cash expenses
Business Manager and on the conditions of liability insurance
caused by a bailiff, as amended, is repealed on the date of
the publication of this finding in the statute book.
II. Provisions of article. II, point 1. duplicate search. No 233/2004 Coll., amending the
Decree No 330/2001 Coll. on remuneration and compensation of the bailiff
remuneration and the reimbursement of cash expenses and business manager of the conditions
liability insurance for damage caused by the bailiff, is repealed on the date of
the publication of this finding in the statute book.
III. The provisions of article. II, point 1. duplicate search. No 291/2006 Coll., amending the
Decree No 330/2001 Coll. on remuneration and compensation of the bailiff
remuneration and the reimbursement of cash expenses and business manager of the conditions
liability insurance for damage caused by a bailiff, as amended by Decree
No 233/2004 is hereby repealed on the date of publication of this finding in the collection
laws.
Justification
And.
1. a constitutional complaint to the Constitutional Court received delivery, 29.9.2004
the complainant, a trading company, Ltd., the annulment of the resolution
The District Court for Prague 3 of 20.7.2004, no. E-Nc 1895/2002-52,
which is confirmed by the statement to cover the costs of execution issued in enforcement
the proceedings in which he is acting in the capacity of a statutory body. She argued that
the contested resolution was a person's right, enshrined in article. 36 of the Charter of
fundamental rights and freedoms ("the Charter"), which have a description
the development of the enforcement proceedings, in particular its concluding stage regarding the
determining the cost of execution and their remuneration. The Court in particular criticised the
to have regard to the provisions of § 11 (1) 2 Decree No 330/2001 Coll. on remuneration
the bailiff, and compensation for remuneration and reimbursement of cash expenses
Business Manager and on the conditions of liability insurance
caused by a bailiff, as amended by Decree No. 235/2004 Coll., amending the
Decree No 330/2001 Coll. on remuneration and compensation of the bailiff
remuneration and the reimbursement of cash expenses and business manager of the conditions
liability insurance for damage caused by the bailiff. It inferred that when
the whole debt voluntarily paid without it should share the execution, there was
to the abandonment of the faggots, and thus the reward of an executor should be
determined in accordance with § 11 para. 1 (b). cit orders), i.e. only in the amount of 50
%. It provides that, for the case of entitlement to full remuneration according to section 11
paragraph. 2. Decree of the necessary conditions have not been fulfilled, or
not met the condition set out in section 11 (1) 2 (a). control is and).
conducted under SP. zn. I. ÚS 639/04.
2. From the file of the District Court for Prague 3, SP. zn. E-Nc entered/2002,
The Constitutional Court found that it was against the complainant filed for
distraint in accordance with Act No 120/2001 Coll., on judicial executors and
enforcement activities (execution order) and amending other acts (hereinafter referred to as
"enforcement order"), for the recovery of claims in the amount of CZK 2 303 588
accessories. By order of the 24.10.2002, no. E-Nc entered/2002-9,
the execution was ordered, and the execution was entrusted to the bailiff
The bailiff Office of Prague 4, Novodvorská 1010, Prague 4, JUDr. (D).
K. from the documents further revealed that the debtor was served by the downstream
the bailiff's commands to perform a execution commandments two claims from the account
the sale of real estate and the sale of movable property. The day issued the 10.12.2003
the bailiff command to cover the costs of execution no. Ex 236/02-59, in the
which provided their total amount of Czk 467.0-278 (276 $ 408.60
the remuneration of the bailiff's fee for the execution of the execution, the replacement of cash expenses 1 585.90
and the compensation for the delivery of $ 472.50) against which the complainant filed
objections based on the claim that the basis for determining the remuneration for the implementation
requiring the payment of an amount of execution is the amount of a bailiff;
vymoženého performance of the bailiff, however, only issued enforcement orders
affecting property values, however, the debtor has fulfilled completely
on a voluntary basis, in part, directly to the creditor, in part on account of the executor.
The bailiff of the Court which ceded the objections by order of 16.2.2004,
reference E-Nc/2002, entered the command in the statements, when
identified with the opinion of the complainant, that the basis for determining the remuneration is
the amount of the vymoženého performance, and will therefore need to make the executor in the grounds
order to cover the costs of execution, said what the amount was foreclosures
financial penalty (not enforced), and how then was subsequently resulting
the reward is calculated. The date issued, the bailiff 2.5.2004 new command to
cover the costs of execution no. E 236/02-89, which established the costs
execution for a total of 384 40.0,-Kč (Czk 382 796.50 reward
bailiff, 708.0-Eur compensation of cash expenses, 535.50 Eur replacement for
-delivery note. When determining the amount of the remuneration was based on the executor on the basis of the
the amount of 2 144 517.0), against which the complainant lodged an objection again. After
their referral, the court order for payment of costs confirmed finding
nedůvodnost-opposition. It was based on the revised version of § 5 para. 1
duplicate search. No 330/2001 Coll., which was applicable also to the enforcement
the proceedings initiated before the date of entry into force of the amendment (if in them
There was no final decision on the remuneration of the bailiff). Out of it
It follows that a recovered transaction which is the basis for determining the remuneration for the
perform a execution, was any transaction which was made after the
What was served on the debtor of a court decision on the regulation of execution.
Due to the fact that the amount to be recovered shall be paid after the date of the compulsory
service of the order of distraint, the Court found that the remuneration
bailiff and other required amounts are in accordance with the revised
diction of the Decree No 330/2001 Coll. of the judicial record, the Constitutional Court further
He found that true to query for Prague 3 District Court reported on the
during the recovery of a claim which occurred after distraint has been
to 1 819 975.0 21.1.2004 paid CZK, on 13.2. 2004 was paid
542.0-£ 324 (i.e. a total of 2 144 517.0-CZK), of which, through the
the sum of the bailiff 0.0 770,-CZK) and the day was 16.2.2004
forgiven penalties in the amount of Czk 71.0-159.
3. in the course of the proceedings on constitutional complaints as well as the Constitutional Court.
said that, in the present case, it was the application of § 5 para. 1 search.
No 330/2001 Coll. on remuneration and compensation bailiff remuneration and
the reimbursement of cash expenses and business manager on the conditions of insurance
liability for damages caused by the bailiff (hereinafter referred to as "the Ordinance"). This
Decree of the Ministry of Justice was issued on the basis of a mandate
listed in § 131 (b). a) to (c)) of the enforcement code and came into effect
18.9.2001. the provisions of § 5 para. 1 in its original form was: "except as provided in
further, the basis for determining the remuneration for faggots
requiring payment of an amount above executor vymoženého
performance. " Decree No. 235/2004 Coll., with effect from 30.04.2004, this
provision supplemented that his diction was "subject to further
otherwise, the basis for determining the remuneration for the faggots imposing
the payment of an amount above the bailiff vymoženého performance. For
the collected performance is considered to be any transaction which was made after the
the Court's decision has been served on the debtor by distraint, to meet
the obligations referred to in the resolution on regulation of execution, unless the performance of the
the obligation to cover the costs of execution, or to cover the costs
authorized. " Algorithm included in section 6 of the Ordinance shall be on the basis of
taxes calculated the reward the executor:
1) reward for faggots requiring payment of an amount of
makes
to 3 0000 0000 Czk base 15%,
of excess amounts up to Czk 40 0000 0000 base 10%,
excess amounts of up to $ 50 0000 0000 base 5%,
of excess amounts up to Czk 250 0000 0000 base 1%.
2 the amount of Eur 250 0000 0000) to the base not included.
3) the remuneration referred to in paragraph 1 shall be at least $ 3,000.
In the transitional provisions in Decree No. 235/2004 Coll., enshrined
This rule:
"1. the remuneration provided for in this Decree shall belong to the bailiff and the bailiff
the proceedings initiated before the date of entry into force of this order,
with the exception of the procedure in which it has already been definitively about the remuneration of the
bailiff decided. ".
4. the Decree in both versions at the same time take account of the "voluntary" compliance with
the obligations of the debtor in the first phase, i.e.. prior to its
by performing. In its original form according to § 11 para. 1 (b). and) belonged to the
executor remuneration if dropped from faggots (according to § 46 para.
3 enforcement code), in the case of imposing the payment of a cash execution
the amounts in the amount of 50% of the remuneration referred to in paragraph 6, that the basis for rewards
considered the amount of the claim, which should be enforced. According to the
the revised version of belong to the bailiff, who refrained from making
execution the remuneration in the amount of 50% of the remuneration referred to in paragraph 6, with respect to the execution of
requiring payment of an amount of money. At the same time was supplemented by a second
paragraph worded as follows:
"The bailiff remuneration in full, dropped from the implementation of
After the execution
and called upon the debtor in writing) to voluntary compliance, which
compulsory enforcement, stores and
(b) the debtor has fulfilled voluntarily it), he stores the enforcement order and pay
the cost of the execution only after a reasonable period of time set by the executor in
prompted by the letter a). "
5. Pursuant to § 46 para. 3 of the enforcement code, the bailiff shall refrain from
perform a execution only if the debtor voluntarily what he
stores the enforcement order and shall pay the costs of execution; According to § 87 para. 1
enforcement code execution costs, replacement of the executor's remuneration
cash expenses, compensation for loss of time in execution, the refund
for the service of documents, the reward and cost recovery firm Manager, and
If the executor or administrator of the business of the payer of value added tax, is
cargo execution also applicable value added tax.
6. the first Chamber of the Constitutional Court in assessing the constitutional merits test
the complaint came to the finding that applied the provisions of § 5 para. 1 sentence
the second search. No 330/2001 Coll., as amended by Decree. No 233/2004 Coll. in
contrary to the constitutional provisions, therefore, within the meaning of § 78 para. 2 of the Act. No.
182/1993 Coll., on the Constitutional Court, as amended by later regulations (hereinafter referred to as
"the law on the Constitutional Court"), decided by order of 8, ref. No. i. ÚS
639/04-12, the interruption of the proceedings and the submission of the proposal the plenum of the Constitutional Court
to assess its constitutionality.
7. The proposal sent to the Constitutional Court the day the complainant 30.11.2004-P.
s. b. d. sought the annulment after the resolution of the District Court of Prague 5
No. 733 13.9.2004, Nc/2003-134, and the order to pay the costs of execution
issued by JUDr. J. p., PhD., the Court executor of 29.1.2003, no.
EX 1651/03-247, as amended by an amending resolution of 29.3.2004, no.
1651/03-264, and at the same time filed an application for annulment of article 1(2). II. paragraph 1. 1 of Decree
No 233/2004 Coll., amending Decree No 330/2001 Coll. on remuneration and
refunds bailiff remuneration and the reimbursement of cash expenses
Business Manager and on the conditions of liability insurance
caused by the bailiff. He claimed that the contested decisions was violated
his constitutionally guaranteed rights enshrined in article. 1 of the Constitution and article. 2 (2). 2 and
article. 40 para. 6 of the Charter, therefore, proposed their abolition; proposal to repeal
the provisions of article. II. 1 of Decree justify prohibited retroactive
efficiency. Procedure is conducted under SP. zn. I. ÚS 752/04.
8. From the documents of the District Court for Prague 5, SP. zn. NC 740/2003, the constitutional
the Court found that it was against the complainant filed a proposal for a regulation of the
enforcement under the Act No 120/2001 Coll. for the recovery of claims in the amount of 5
261 $ 822.42 with accessories. By order of 21.5.2003, ref. Nc
733/2003-6, was mandated by the execution and execution was entrusted to
the bailiff Bailiff Office of Prague 5. J. p. from the file on
showed that the bailiff gave the date command on 19.8.2003 Regulation
execution sale of co-ownership of real estate, and that day
23.11.2003 delivered to the debtor of the claim of an enforcement order the commandments
account and at the same time command to cover the costs of the execution on the same day, EX-No.
1651/03-208, amounting to $ 1 016-493.0 (550.0-926 executor remuneration
CZK, costs $ 41 538.0-execution and VAT 405.0-48 €). The complainant
opponent against him, in which it warned that debt paid
on a voluntary basis. By order of the District Court on 16th, no. Nc
733/2003-60, command, to cover the costs set aside for nepřezkoumatelnost and
for the obscure nature. In the meantime, on 19.12.2003, delivered the
bailiff next statement to cover the costs of execution, the EX-No. 1651/03-230, in
which quantify the additional costs of execution of 2 496 $ 784.50
representing the costs associated with the management of the company, i.e.. the cost Manager
the company and its reward. Also, the complainant has filed against this command
the opposition, which expressed the opinion that the remuneration of the Manager of an undertaking is
unfounded, as an enforcement order on the sale of the undertaking was issued in
contrary to the enforcement regulations, because the previously selected method of execution-
sale of real property compulsory-was entirely sufficient for the recovery of outstanding
the amounts. By order of the District Court, no. 733 6.2.2004 Nc/2003-69
the command set aside for nepřezkoumatelnost. The day (with an incorrect date of 29.1.2004
"29.1.2003", by order of 29.3.2004, no. EX 1651/03-264 available,
to the correct date) issued by the bailiff payment order costs
the execution, number 1695/EX 03-248, in the amount of 1 173 $ 775.40 (of which reward
the executor was 926 550.0-$ 35 561.0-execution costs Czk, VAT in the amount of
22% of the remuneration of $ 841.0-203, a VAT rate of 22% from the cost of execution 7 823.0-
CZK). The complainant filed an objection against the order, because the reward was considered
to be unfounded and unsupported and unproven. In parallel,
District Court of Prague 5 by order of the expired on 5.3.2004, ref. NC
733/2003-102, execution stopped in the amount of $ 822.42 with interest 5 261 of
the delay and the cost of the previous management, he demonstrated that the
claim has been paid for by compulsory execution and by voluntarily outside the
ceased to exist; execution at the expense of execution continue to be conducted. Then
by order of 13.9.2004, no. 733/2003-Nc 134, District Court
cover the costs of execution has changed so that the amount of the costs has determined an amount of 1 119
the 944.60 came out of the revised version of § 5 para. 1 search. No.
330/2001 Coll., calculated in accordance with the reward of an executor of 917
830.0-VAT 922.60-$ 201 and cash outlays 60.0 VAT 132.0.
9. in the course of the proceedings on constitutional complaints as well as the Constitutional Court.
said that also in this case it was the application of § 5 para. 1
the Decree (as well as in proceedings on constitutional complaints in case I TC
639/04), including the transitional provision whose annulment in this matter
suggested by the complainant-P. s. b. d., and from the identical reasons, the management
order of the day, no. I 2.11.2006. TC 752/04-26, and the proposal made by
the plenum of the Constitutional Court to assess the constitutionality of these provisions,
because it is convinced that they are in conflict with the constitutional provisions.
10. The two proposals on the abolition of the law relate to the legislation
the remuneration of the bailiff's fee, thus substantively identical control items, which
together the facts. In view of these findings, and in the interest of
economy, the Constitutional Court decided by resolution of 14.11.2006, no.
PL. ÚS 8/06-18, pl. ÚS 80/06, in accordance with the provisions. section 63 of the Act on the constitutional
the Court, for the use of § 112 para. 1. Code of civil procedure, the connection of these
things to the common control with the fact that this procedure will continue to be conducted under the
SP. zn. Pl. TC 8/06.
(B).
11. during the next stage of the proceedings, the Constitutional Court submitted a proposal in
case conducted under the SP. zn. I. ÚS 639/04 for an opinion to the Ministry of
of Justice and the Ombudsman (which at the same time asked for
whether entering the control). Whereas that, guided by the
under SP. zn. I. ÚS 752/04 it was substantively the same affair, based on
from the same line of argument, the Constitutional Court did not consider it necessary, for reasons of
process economics, sent the proposal to the parties concerned.
12. the Ministry of Justice, in the comments, signed by the former
the Czech Republic's Deputy Prime Minister and Minister of Justice.
Pavel German, first formulated by doubts about whether it is appropriate to
to appreciate the voluntary implementation of the mandatory under the enforcement proceeding otherwise,
than how it makes valid legislation; in that context, stressed that the
as a rule, the enforcement proceedings due to the fact that the debtor has not met
his obligation properly and in time of contract legal relationship and after the release of
the decision of the Court or of this decision. In the next section
zrekapitulovalo contents § 46 para. 3, § 87 para. 1 and § 88 para. 1
enforcement code and modelled the three situations that may arise in the
connection with the abandonment of faggots. First, can the mandatory
voluntarily fulfill what he imposes an enforceable title, on the basis of a written
challenges of the bailiff to voluntary compliance with an obligation within the time limit
set by the executor. In this case, the bailiff may join
order to cover the costs of execution with that challenge, and it has the reward
(in the case of the execution of imposing the payment of an amount of money) at the rate of 50%.
The amount of remuneration, in such a case the bailiff may draw from the
provided that the debtor on his challenge in a determined period voluntarily its
the obligation to fulfil. Another option is voluntary compliance with obligations without
previous written invitation bailiff; in this case, you may
executor after the obligation to issue an order for payment of costs of execution and
After the payment of these costs (it belongs back in the amount of 50%) shall refrain from
perform a execution. Finally, if the situation referred to in section 11 (1) 2
the Decree, i.e.. a mandatory obligation fulfilled voluntarily after expiry of the period
referred to in the written invitation, belongs to the bailiff remuneration in full
the amount, which the Ministry considers it appropriate.
13. the objection of a hidden increase the basis of calculation of the remuneration carried out
the Decree stated that it is necessary to rely on the authorisation to issue decrees,
that is contained in § 131 (b). and the enforcement of law, and) expressed the view,
that due to this fact and taking into account article. 4 (4). 1
Of the Charter, is not in violation of the decree or with the constitutional order or
by law, the implementation of which it was issued.
Editor's note. The relevant wording of § 131 (b). and) is as follows:
"The Ministry is empowered to lay down by Decree and) amount and method
the determination of the remuneration of the bailiff's fee, cash expenses, compensation for the delivery
of documents and compensation for loss of time, including a reasonable amount of the advance. "
14. The Ombudsman has advised that, in accordance with the provisions of § 69 para.
2 of the Act on the Constitutional Court shall enter into the control. To your own design said,
He cannot agree with the view of the first Chamber of the Constitutional Court
on the repeal of § 5 para. 1 second sentence search. No 330/2001 Coll., its
the arguments considered convincing and comprehensive and with a proposal for
cancellation is identified.
15. in the course of the proceedings on the proposal and the Senate the Constitutional Court took
the Ministry of Justice to further amend the incriminated
provisions, and with effect from the Office 1 August 2006 (see Decree No. 291/2006 Coll.
amending the Decree of the Ministry of justice no. 330/2001 Coll., on the
remuneration and compensation bailiff on remuneration and compensation of the finished
Business Manager, spending and the conditions of liability insurance
caused by a bailiff, as amended by Decree No. 232/2004 Sb.). From that
the date of the provisions of § 5 para. 1 reads as follows: "unless otherwise further
the basis for determining the remuneration for the faggots requiring payment
an amount above the bailiff vymoženého performance. For the collected performance
is considered to be any transaction which was made after the Court issued a
the decision under section 44 para. 2 of the law. ". At the same time to the transitional
the provisions of this rule included:
"1. the remuneration provided for in Decree No 330/2001 Coll., as amended by Decree No.
330/2004 Coll. (note correctly has to be "no 233/2004 Coll.") and this Ordinance
It belongs to the bailiff in execution proceedings initiated before the date of
entry into force of this Decree, with the exception of the procedure in which it has already been
Finally the reward the bailiff decided. "
Further to this amendment to the executors filed a Constitutional
the Court complaint to stop the proceedings within the meaning of section 67 para. 1 of the law on
The Constitutional Court.
16. In this context, the Constitutional Court dealt with an assessment of whether there was
the reason for the termination of the proceeding under section 67 para. 1 of the law on the Constitutional Court.
It is true that it was formally the provisions of § 5 para. 1 second sentence revoked,
However, it was replaced by a provision that use exactly the same
the structure, the change is only in determining the beginning of the period, from which the
made of performance considered the collected performance; in essence, the new destination
the beginning of this period is based on even more in favour of an executor. First Chamber
The Constitutional Court therefore remained on its opinion that the provisions of section 5 of the
paragraph. 1 the second sentence to the search. No 330/2001 Coll., as subsequently amended,
is in conflict with the constitutional provisions and adds that the constitutional principles also
contrary to the above two transitional provisions.
17. An overview of the relevant provisions of the enforcement regulations of the
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Adjustment of § 46 para. 3 the first sentence of the bailiff shall refrain from performing the execution only
dropping enforcement code required to, voluntarily what it stores
from the execution enforcement order, and shall pay the costs of execution.
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Adjustment of § 87 para. 1 the cost of execution are the reward
the cost of enforcement code executor, replacement of finished
execution expenses, compensation for loss of time in
the implementation of the execution, the replacement for the
the service of documents, the reward and
reimbursement of the cost of the undertaking, and Manager
If the executor or administrator
company payer of value added tax
values, is a load of execution
also the appropriate value added tax
values according to a special legal
Regulation 20) (hereinafter referred to as "cost
the execution ").
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Section 5 (3). 1 unless otherwise further
the base of the Decree No. the basis for determining the remuneration for the
Rewards 330/2001 Coll., faggots imposing
the executor as the payment of an amount above
for cash 29. 4.2004 vymoženého executor implementation.
the amount of
§ 5 para. 1 unless otherwise further
Decree No. the basis for determining the remuneration for the
330/2001 Coll., faggots imposing
in the text of the Decree. no payment of an amount above
233/2004 Sb. vymoženého if the executor implementation. For
the collected performance is considered to be any
the performance, which was made after the
What was delivered to the debtor
the Court's decision on the regulation
execution, to fulfil the obligation
referred to in the resolution on regulation
execution, unless the performance of the
the obligation to pay the
the costs of execution, or to pay for
the cost of the entitled party.
§ 5 para. 1 unless otherwise further
Decree No. the basis for determining the remuneration for the
330/2001 Coll., faggots imposing
in the text of the Decree. no payment of an amount above
233/2004 Coll. and the bailiff vymoženého performance. For
duplicate search. No 291/2006 Sb. the collected performance is considered to be any
the performance, which was made after the
what the Court has issued a decision pursuant to
§ 44 para. 2 of the Act.
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Section 11 (1) 1 shall refrain from the implementation of the executor
the rewards of Decree No. execution (article 46, paragraph 3, of the Act),
bailiff 330/2001 Sb. It has the reward
in the case in the text of the to and) in the case of execution requiring
dropping 29. 4. the payment of an amount of 2004 in the amount of
in the case of 50% of the remuneration referred to in paragraph 6 of that for
execution basis is considered to be the amount of the remuneration
the claim, which is to be enforced,
(b)) in the case of execution requiring
other than the obligation to pay
an amount of 30%
remuneration under section 7 to 10.
§ 11 (1) 1 and 2 (1) unless otherwise further,
Decree No. It belongs to the bailiff, who dropped the
330/2001 Coll., from faggots (article 46, paragraph 3
in the text of the Decree. no law), reward
233/2004 Sb. and) amounting to 50% of the remuneration under section 6,
in the case of the execution of imposing
(Decree No. the payment of an amount of money,
291/2006 Sb. (b)) in the amount of 30% of the salary pursuant to
unaffected) § 7 to 10, in the case of the execution of
imposing another obligation than
the payment of an amount of money.
(2) the bailiff remuneration in
full, dropped from the implementation of
After the execution
and called upon the debtor in writing)
voluntary compliance with an obligation,
which stores the enforcement debtor
title, and
(b) the debtor has fulfilled voluntarily it),
He stores the enforcement order, and
pay the costs of the execution until after the
the expiry of the reasonable period set
the bailiff in the invitation referred to in subparagraph
and).
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(C).
18. The Constitutional Court is in proceedings for review of the standards in accordance with the provisions of section
paragraph 68. 2 of the Act on the Constitutional Court shall assess whether the contested
legislation was adopted and issued within the limits of the Constitution laid down the competence
and constitutionally prescribed way.
19. the power ministries to legislate for the implementation of the law is
based article. paragraph 79. 3 of the Constitution, and it provided a reason express
legal authorization. The constitutionality of the legal authorization, as well as to
the interpretation of the statutory limit for podzákonnou is normotvorbu
The Constitutional Court has already expressed in its findings (e.g., SP. zn. Pl. ÚS
45/2000, a collection of findings and resolutions of the Constitutional Court (hereinafter referred to as "collection
the decision "), volume 21, finding no. 30; promulgated under no. 96/2001 Coll.).
The implementing legislation must be primarily issued to authorized
entity. The State authority that is authorized to issue podzákonného
legislation, must proceed on the basis of the law and within the limits
Secundum et intra legem), rather than outside the law (praeter legem).
To put it simply, if according to the law, it is for this to be X
to provide that the authority has to be X 1, x 2, X 3, not whether or not that should be
Y. Before the excesses of the Executive then protects the barrier of things dedicated to
regulate only the laws (the so-called "reservation); the State authority may
determine the primary rights and obligations. From a theoretical perspective, it is also
on podzákonný (implementing) legislation required to
generic and therefore fell for an indeterminate group of addressees, as the Constitution
empowering legislation, rather than to the issue of individual administrative
of the Act.
20. The authorization to issue the decree is in this case the provisions of § 131
(a). and enforcement code), according to which the Ministry of Justice
empowered to lay down by Decree the amount and method of determining the remuneration of
the bailiff's fee, cash expenses, compensation for the service of documents and compensation for
loss of time, including a reasonable amount of the advance.
21. Decree No 330/2001 Coll., the Ministry of Justice has been released
the date of 5.9.2001, published in the amount of 128/2001 of the laws on 18 July 2005. 9.
2001 and in its section 28 became effective on the date of publication. The amendment Ordinance
carried out by Decree No 233/2004 the Ministry of Justice has been released
on 20 April. 4.2004, published in the amount of 77/2004 of the laws of the day
30.04.2004 and, in its article. (III) became effective day of its publication.
Decree No 291/2006 Coll., amending Decree of the Ministry of
justice no 330/2001 Coll. on remuneration and compensation bailiff
the remuneration and the reimbursement of cash expenses and business manager of the conditions
liability insurance for damage caused by a bailiff, as amended by Decree
No 233/2004 Coll., the Ministry of Justice was released on June 2, 2006,
published in the amount of 92/2006 of the laws of the day, and in its 19.6.2006
article. (III) acquisition of its effectiveness was determined on the day of Office 1 August 2006.
22. The Constitutional Court notes that the contested provisions has been released
The Ministry of Justice, as the law expressly and specifically
(competent) legitimate State authority, and its content, relating to the
determining the amount of the remuneration of executor, nevybočila from the limits set by the empowering
the provisions of § 131 (b). and enforcement code). In light of this
The Constitutional Court concluded that the contested Decree was adopted and
within the limits of the Constitution provided for released competency. Also found out that the
has not been received constitutionally prescribed way.
(D).
23. After weighing those arguments and opinions, particularly opinions
The Ministry of Justice formulated in the final draft, it took the
The Constitutional Court concluded that the provisions of § 5 para. 1 second sentence search. No.
330/2001 Coll. and transitional provisions to novelizujícím edit is necessary
Cancel. In doing so, he conducted the following considerations.
24. The Constitutional Court judge (also in the sense of the first raised objections
The Ministry of Justice), whether there was a reason for the termination of the proceeding
pursuant to section 67 para. 1 of the law on the Constitutional Court. It is true that formally
were the provisions of § 5 para. 1 second sentence cleared, however, it was replaced by the
the provisions using exactly the same structure. In this context,
Notes on its case-law, the Constitutional Court, which responded to a similar
the situation (in case finding SP. zn. PL. ÚS 50/04, in particular, part VI.
published under no. 154/2006 Coll.).
25. The Ministry of Justice proposed in eventum denial
draft submitted by the Senate for the loss I locus standi by
the amendment of the contested provisions has eliminated link the subject of the constitutional
complaints to the wording of § 5 para. 1 second sentence search. No 330/2001 Coll.;
The Constitutional Court nor this objection does not share, because locus standi
the petitioner is examined at the beginning of the procedure.
26. the substantive objections of the Justice Department concentrated to
Emphasizing the position of the debtor (disciplinary or discount is not
individual right, it is only about suitability, rather than constitutional law) and
the relationship between the executors (non-linear link between reward and work, inability to
quantifying) the Constitutional Court adds: according to art. 1 (1). the Constitution is a Czech
Republic a sovereign, unitary and democratic State based on law
respect for the rights and freedoms of man and citizen. One of the basic pillars of the
the rule of law is legal certainty and under this angle must be
considered the content of the normative legal acts, including implementing
regulations. Vague and indeterminate structures in legislation
are also violations of the right to a fair trial is protected in article.
paragraph 36. 1 of the Charter. The action of the law in the past, respectively.
their influence on past legal facts, should also be considered under the
viewing angle of the principles of rule of law, and it may be possible;
from this perspective, in breach of article. 1 (1). 1 of the Constitution.
27. The Constitutional Court in its case law repeatedly and persistently reminds
connectedness principle of predictability of the consequences of the law with
the principles of the rule of law. The predictability of the legal regulation is
undoubtedly be assessed from the viewpoint of the dynamic, IE. the legislature
When you change must take into account the existing legal regulation of the legal status,
including the State of development of legal relations, and changes must be carried out sensitively and
only to the extent necessary to achieve regulatory objectives. To insist on such a
the behavior of the legislature is necessary, as it guarantees the stability of the realm
free negotiations and legal certainty of the participants (in the legal relationship
see details in case SP. zn. PL. ÚS 38/04-see below). It is not
no doubt, that these requirements shall also apply within the realm of the derived
standardisation, thus their fulfillment may be required after all the bodies
involved in the extradition legislation.
28. According to settled case-law of the Constitutional Court provides a solution to collision
fundamental rights or constitutional order of protected public
goods, the principle of proportionality. This principle is reflected in both the
the proceedings on constitutional complaints, as in the present case, now
Thus, when the abstract control standards. In the abovementioned finding of 20.6.2006
SP. zn. PL. ÚS 38/04 (promulgated under no 409/2006 Coll.) or in the award of the day
on 13 August 2002, SP. zn. PL. ÚS 3/02 (ECR, Volume 27, no.
105; promulgated under no. 405/2002 Coll.) The Constitutional Court held that
cases of conflicts of fundamental rights and freedoms with the public interest, respectively.
other fundamental rights or freedoms, "-should be assessed. the purpose of the (target)
such an intervention in relation to the resources used, with a yardstick for
This assessment is the principle of proportionality (the proportionality in the wider
the meaning of), which can also be called the prohibition of interference with the rights of more than
and freedoms. This general principle involves three criteria for assessing the
the admissibility of the intervention. The first is the principle of competence fulfillment
purpose (or fitness), according to which the relevant measures must be
ever able to achieve the intended objective of the protection of another
the basic law or the public good. Second, it is a principle of
the need, which is allowed to use only the most environmentally-friendly-in
relation to the fundamental rights and freedoms-of more possible
resources. The third principle is the principle of proportionality (in the strict sense)
According to which the injury on the basic law must not be disproportionate in relation to the
to the intended destination, i.e.. measures restricting fundamental human rights and
freedom must not, in the case of the collision of a fundamental right or freedom with the public
interested in, its negative consequences extend beyond the positives, which
represents the public interest in these measures. " The obligation to respect
the principle of proportionality applies not only to public authorities in
their decision-making activities, but also to the legislature, in a broader matter
the legislature, which the Ministry of Justice, with regard to the podzákonnou
normotvorbu, undoubtedly is.
29. The Constitutional Court, would deny the right to executors without on fair
a reward for performing enforcement activities, it considers the fact that in the
the base of the executor of the will includes the remuneration amount a compulsory without
the direct participation of the executor on faggots for the unjustified advantage
to those off the brokers who actually carry out the execution (since such
differentiation is not rationally defensible). In addition, in the received
the design lacks the Constitutional Court and the "educational" element, when de jure is not
given the opportunity to "appreciate" that required debtor fulfils his obligation to myself
(no direct execution), albeit at the last possible moment. The provisions of the Decree
suggests that, in this case belongs to executor remuneration in the amount of
50%, but only if the bailiff has waived implementation of execution,
While the bailiff's order allows him to do so only if they have been
paid and the costs of execution, to which also belongs the executor's remuneration. Out of it
It follows that if the debtor does not pay the remuneration of executor in full, according to the
the literal wording of the law cannot refrain from execution, albeit enforced
claim has been paid, the executor, and therefore has the right to remuneration in full
the amount of (the movement in a circle). Referred to the construction of the Constitutional Court shall be deemed to
for rozpornou with the article. 1 (1). 1 of the Constitution, since the creation of the impossible
the conditions for applying reduced rates of remuneration is contrary to the principles of
the rule of law (see the mentioned award in case pl. ÚS 38/04). In the final
the consequences of such legislation constitutes interference with the fundamental rights
mandatory asset protection enshrined in article. 11 (1) 1 of the Charter (see
also one of the basic principles of execution-the principle of legal protection
the debtor whose meaning lies in the fact that the execution can only serve to
the satisfaction of the rights of the creditor and the enforcement proceeding costs,
including adequate remuneration of executor. However, the debtor may not cause
disproportionate harm because it does not reflect a certain degree of due
"a voluntary basis" in fulfilment of obligations, if enforced to the regulation
execution, but before its forced execution. Under consideration
Edit disputes as a means of execution, the preventive function, whose purpose
is not subject to compulsory liquidation of the property (see also sense
insolvency proceedings). For the equivalent of a corresponding effort
the executor can therefore be considered a reward in the lower range, which is in the
accordance with the principle of proportionality the proportionality of the intervention of the spray
to the debtor's assets in order to protect the assets of authorized (recovery
his claims). The Constitutional Court concluded that the constitutionally Conformal edit
the remuneration of the bailiff's fee should not be based on a direct dependency on the amount of remuneration
vymoženého performance, but reflect the complexity, responsibility and effort
enforcement activities under each of the species and methods of execution performance. To
the adoption of such legislation will be on the general courts, when
deciding on the remuneration of the bailiff bailiff interpreted "
vymoženého performance "in accordance with outlining the principles.
30. The conviction of the Justice Department (see paragraph 12), the executor
can be calculated with the expectation that the obligation will be fulfilled, and remit to the
a reduced fee is based on the "willingness" of the executor and not responding
legal text (or the procedure of judicial officers in practice). Indeed, § 46 para. 3
the first sentence enforcement code allows the executor to refrain from performing
execution only if the debtor voluntarily what it stores
enforcement order, and shall pay the costs of execution (whose part is also the reward
the executor), and reduced the reward to an executor belongs, only if the
refrain from performing the execution (§ 11 (1) of the Ordinance). It is so obvious that
the executor can not, or may not, from the execution waived, if not paid
the reward, and by the time the Bill rewards cannot be a reward to pay voluntarily,
because its amount is not known.
31. in this context, the Constitutional Court notes that current adjustment
the amount of the remuneration of officers of the Court cannot be justified by pointing out that the executor
cannot refuse to perform a execution, and that costs them
can be awarded against the debtor, even if the execution is stopped
of the assets on the part of the debtor (see the opinion of the constitutional
Court SP. zn. PL. ÚS-St. 23/06). In this sense, the compensation
"fall behind" the position of the bailiff is to be found in the benefits of the United
directly with his professions, for example. in its almost exclusive position in the exercise of
enforcement orders, at which he can compete only in part, the Court of
bailiffs. Unable to accept that the remuneration granted to one
the compulsory could be significantly increased for the sole reason that in the case of
other mandatory, with which the first group of mandatory does not have any functional
binding (therefore their debts and nemajetnost cannot assume any
responsibility), the execution had to be stopped for lack of assets.
Therefore, the Constitutional Court cancels the § 5 para. 1 sentence the second search. No 330/2001 Coll.
as amended (statement I).
32. The principle of legal certainty, breach and transitional provisions which
unconstitutional policy making the base of the executor's remuneration without any
taking into account the State of enforcement proceedings apply to proceedings commenced before
effect of the change. It is notorietou that the jurisprudence recognizes the so-called. right
the retroactive effect, which covers cases where the legal standard and reglementuje
the formation of the legal relationship arising out of him and demands before its efficacy and
the retroactive effect of a non-genuine, in that the legal relationships that
incurred for the validity of the old law, are managed by that right up to the time
the effectiveness of the new law, but governed by this new law. The emergence of
the legal relationships, existing before the entry into force of the new legal
editing, legal claims, which of these relationships were formed and carried out legal
acts is governed by the repealed law. In both adjudicated cases
have emerged to satisfy the claim to be recovered even in the effectiveness
the previous edit, bailiffs are also still at this time cost
execution (including remuneration) vyúčtovali, their statements, however, were cancelled.
New commands, however, already have been assessed in terms of the revised regulation,
Thus the objections put forward with regard to the previous adjustment to the courts found
unfounded. Such a design is undoubtedly shaken confidence in
the rule of law, because the reward was governed by legislation effective at a time when
the bailiff did not do any of the already legal acts aimed at the satisfaction of the
to be recovered. Because of the Constitutional Court of the transitional provisions
(statement II. and III.).
33. For the purposes of these rules, appeals to the Department of Constitutional Court
Justice, in the context of legal authorization to issue implementing
comply with the code when determining the amount of the basic principles of
Justice and the rule of law, including the principle of proportionality, as
modern constitutional rules (which according to the constant case law of the constitutional
the Court also applied-see. find in case pl. TC 33/97 (collection
the decision, Volume 9, finding no 163; promulgated under no. 30/1998 Coll.), and
calls on the legislator to its application also in the creation of law-
CF.. find in case Pl. TC 61/04 (promulgated under no. 16/2007 Sb.)). To
inspiration can serve even Department of standardisation in the development overview
determining the amount of the remuneration of lawyers and notaries.
34. Legal certainty does not inconsistent judicial practice in the so-called.
the abandonment of the execution (article 46, paragraph 3, first sentence Act No. 120/12001 Sb.).
The language of this provision indicates that it is an informal Act of an executor,
which cannot be regarded as admissible. You need to clearly determine the time
their enforcement of the controlled (whether or not in relation to third parties, e.g. for
deletion of comments from the real estate register). While in the proceedings for
The District Court for Prague 5 by order of the Court expired on 5.3.2004, ref. Nc
733/2003-102, execution stopped, in proceedings in the District Court for
Threshold 3 no similar action was taken. The Constitutional Court considered
appropriate, to the general courts of enforcement proceedings consistently progressed
in accordance with § 268 paragraph. 1 (b). (g)). Code of civil procedure and the proceedings were halted by the i
If the termination of the recovered debt by meeting in the course of enforcement
control.
35. for these reasons decided by the plenary of the Constitutional Court on the basis of § 70
paragraph. 1 of the law on the Constitutional Court repealing the provisions of § 5 para. 1 sentence
the second search. No 330/2001 Coll., as amended, the provisions of
article. II., section 1 of Decree No. 235/2004 Coll., and the provisions of article. II, point I
Decree No. 291/2006 Coll., on the date of publication of the finding in the collection
laws.
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinion referred to in section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, has delivered to the decisions of the full judge Vladimir
The crust.
