In The Matter Of A Proposal For The Repeal Of § 32 Paragraph. 3 Of The Act No. 229/1991 Coll.

Original Language Title: ve věci návrhu na zrušení § 32 odst. 3 zákona č. 229/1991 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=43100&nr=166~2F1995~20Sb.&ft=txt

166/1995 Sb.



FIND



The Constitutional Court of the Czech Republic



On behalf of the Czech Republic



The Constitutional Court of the Czech Republic held on 14 June 2004. in the plenary session in June 1995

draft regional court in Prague on the repeal of § 32 paragraph. 3 of Act No.

229/1991 Coll., on the adjustment of the ownership of land and other agricultural

assets, as amended by Act No. 182/1993 Coll.,



as follows:



The provisions of § 32 paragraph. 3 of the Act No. 229/1991 Coll., on the adjustment of ownership

relationship to the land and other agricultural property as amended by law No.

183/1993 Coll., amending and supplementing Act No. 229/1991 Coll., as amended by

Act No. 42/1992 Coll., Act No. 93/1992 Coll. and CZECH NATIONAL COUNCIL Act No. 39/1993

Coll., shall be repealed on the date of the announcement of the award in the collection of laws.



Justification:



The Senate 19 Ca regional court in Prague in proceedings on appeal

against the decision of the District Office, land Office in Příbram and District

the authority, the land Office Benešov in the matter of the filing of the brand Ca 19 201/94 and

19 Ca 110/94 came to the conclusion that the provisions of § 32 paragraph. 3 of Act No.

229/1991 Coll., as amended by Act No. 182/1993 Coll., which has to be in the solution

these things are used, is inconsistent with the provisions of article 11 (1). 4

The Charter of fundamental rights and freedoms. As a result of the existence of the contested

the provisions of the land authorities shall decide on the renewal of the ownership of the original

the owners, without the former owners or their legal successors were

ownership acquired lawfully deprived. Law No.

142/1946 Coll., on the revision of the first agrarian reform, does not contain specific

the provisions of the transition of ownership of the assigned property on

přídělce, and therefore ownership to real estate here was on přídělce

by decision of the competent authority, of the allocation, which has acquired power.

These přídělci have become owners of real estate, even if the allocated

the transition of ownership of the assigned property has not been entered in the

the land register. According to the contested decision, the provisions of § 32 paragraph. 3

Act No. 229/1991 Coll., as amended by Act No. 182/1993 Coll., should therefore

to restore ownership to the property assigned to the original

the owners or their authorised persons, which would restore

in its consequences was the expropriation of the property past

the owners, however, without fulfilling the conditions laid down in article 11 (2). 4

The Charter of fundamental rights and freedoms. For these reasons the Senate 19 Ca

The regional court in Prague has proposed that the Constitutional Court, the provisions of § 32 paragraph.

3 of the Act No. 229/1991 Coll., as amended by Act No. 182/1993 Coll., set aside.



The Chamber of deputies of the Parliament of the Czech Republic in a letter of 2 July 2002. 3.

1995, signed by its Chairman PhDr. Milan Uhdem, expressed so that the

the purpose of the legislation adopted was a resolution of how to transition

of ownership in land reforms. The Chamber of Deputies is not

convinced of the correctness of the opinion of the District Court in Prague, in that

the case does not apply the principle of intabulace and that the ownership of the passed statement

the official, if the decision on allocation at the time of the validity of the General

the civil law of the year 1811. However, it is possible to admit that controversial may

be a question of how to assess the legal implications of the allocation instrument issued under the

the efficiency of the Civil Code No. 141/1950 Coll., that the principle of intabulace

set aside. The law was approved by the required majority of the members of the

the Chamber of Deputies on 1 May 2004. 6. in 1993, he was signed by the respective constitutional actors and

has been duly declared. The legislature acted in the belief that the adopted

the law is in accordance with the Constitution and our legal order, and is on the Constitutional

the Court, in the context of the examination of the proposal to repeal the provisions of § 32

paragraph. 3 of the Act No. 229/1991 Coll., as amended by Act No. 182/1993 Coll.,

assess the constitutionality of this law and issued the appropriate decision.



From the těsnopisecké news about 9. a meeting of the Chamber of deputies of the Czech Parliament

in the days of 15. up to 17. May 1993 and on 1 May 2004. June 1993 shows

that law no 183/1993 Coll., amending and supplementing Act No. 229/1991

Coll., on the adjustment of the ownership of land and other agricultural property,

in the wording of later regulations, containing the disputed provisions of § 32 paragraph.

3, the day was 1. 6. the 1993 adopted by the necessary majority, the votes of 98

Members (§ 39 para 1 and 2 of the Constitution). How is the petition of

House print no 212, cited the provisions not included in the Government's

the proposal, but it was included only in the joint committees (House

print no. 344). This law was promulgated in the collection of laws of the Czech 46 amount

of the Republic, by 29 April 2004. June 1993. You can therefore be considered that the law

He was accepted and published in the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner (section 68, paragraph 2, of Act No. 182/1993 Coll., on the constitutional

the Court).



The first of the questions in the present case, the question is whether the generic code

citizen of the year 1811, which paid well at the time of the release of Act No. 142/1947

Coll., on the revision of the first agrarian reform, or do not exclude

the distinction between the transition and the transfer of ownership. Already the authors comments

The Czechoslovak General Civil Code took the view that the

such a distinction is justified (Czechoslovak general comment

Civil Code, part the second, Prague 1935, pp. 463 et seq.). Their

the argument is based on the fact that the transition in ownership

cases of authoritative statements (whether the courts or the authorities), and the answer

on the question of whether and when to transition of ownership, should be

Search in the relevant provisions relating to the statements.

Therefore, in their opinion, it is necessary to write the library as

the conditions for the acquisition of ownership to immovable property in these cases, there

where the relevant legislation expressly require. Only when the acquisition

the transfer of ownership to property is the only title, and due to the

the provisions of section 424 of the civil code, the General Agreement on the transfer of

real estate, and therefore in this case it is necessary pursuant to the provisions of § 431

the General Civil Code as an additional condition of acquisition of ownership

intabulace.



This view is shared by the authors of the said comments by the Constitutional Court, as it has

support in a number of cases in which there was the acquisition of the property to

real estate without consideration to the aforementioned intabulační principle. So it was

for example. with the acquisition of the ownership of the responsibility for granting real estate auctioned

switch (section 156, 237 ex. l.), the acquisition of the ownership and rights to the

real property expropriation, as soon as it has been paid, or to a court composed

the refund thus in expropriation proceedings (section 34 of the Act of 18. 2. no 1878.

30 l.), the acquisition of ownership by taking possession of the allotted land (§ 5 (3).

2 of the Decree of President of the Republic No. 28/1945 Coll.). In these cases the transition

the ownership of immovable property were therefore a matter for the lex specialis and the only

in it it was possible to search for the answer to the question already. If, therefore, in

cases, the transition of ownership to immovable property assumed as

a condition of the acquisition of the ownership of the said intabulace, had this condition

be expressly stated in the lex specialis. So also happened in the case of

redress Act of 8 May 2003. 4.1920 No. 329, closely follow-up on

the allocation law of 30 June. 1.1920 No. 81 and záborový the law of 16 June. 4.

1919 No. 215. If the provisions of section 5 of the Act mentioned, záborového

that forced referred to in section 1 of the Czechoslovak Republic the right takes engrossed

asset share and assign (§ 10), (11) and section 27 of the allocation and the law

the final decision of the authority and the agreement of the land, with its

the approval clause, put on a par with vkladným record, the provisions of §

26 to 29 of the redress law clearly shows that the State and the přídělce took

the ownership of the asset allocation to zabranému or just write in the land

the book. In another interpretation, which would be based on the principle of nepodmíněnosti

intabulačního, as a general principle, any exception nepřipouštějící

the conditions for the acquisition of ownership to immovable property, this provision

due to the provisions of § 431 of the General Civil Code, and

contained intabulačnímu principle, was redundant. Collectively,

required if the provisions of sections 26 to 29 redress Act, as a condition

the acquisition of ownership to immovable property ownership law-explicitly-

by taking the property seized under section 5 of the act here was záborového

understood the library deposit of ownership for the State--could not express

the determination of the conditions here mean anything other than that there were

cases, the principle of intabulace Miss.



Law of 11 June 2002. 7.1947 No. 142, on the revision of the first agrarian reform,

which, as follows from its name, submit to a review of the editing of the land

ownership of carried out pursuant to záborového of the Act of 16 July. 4.1919 No.

215, with respect to assets referred to in the provisions of section 1 of the Act, it lacks the

for detailed adjustment of practices in the real estate subject to revision, prevents

and therefore, in this respect, reference is made in the provisions of section 17 for proceedings under the

This Act on the appropriate use of záborového of the Act, as well as the laws of the

It is complementary. This means that where the law No 142/1946 Sb.

does not provide for something different, or does not provide for anything at all, the amount of the

the said laws governing the first land reform, where, however, the

explicitly otherwise, shall apply to this Act. As regards the allocation and
allocation management, devoid of law No 142/1946 Sb. provisions which should

touching the principle of intabulace, as in the provisions of § 8 paragraph. 8 only

provides that for the adjustment of the legal conditions relating to assigned

the land shall apply mutatis mutandis to the provisions of part four of the law of 8 June. may

1947 no 90 Coll., on the implementation of the library right parties konfiskovaného

enemy assets and for the adaptation of certain legal conditions related

the allocated assets. Due to the provisions of section 17 of the Act No. 142/1947

Coll., according to which the proceedings under this Act, including the expropriation of

land under section 1 (1). 3-apply-subject to the provisions of section 8-

mutatis mutandis, the relevant provisions of the Act and the laws it záborového

additional, it also means that the requirement of intabulace as

the conditions for the acquisition of ownership to the given property embodied in

the provisions of section 28 of the Act, redress paid even after the entry into force of

the cited law No. 142/1946 Sb. This conclusion suggests even

the diction of the provisions of section 1 (1). 9 of law No 46/1948 Coll., on new land

reform, specifically podmiňujícího the completion of the transfer of ownership of the library

the notation. In so far as the appellant's opinion, therefore, that the ownership of immovable property

assigned pursuant to Act No. 142/1946 Coll. was, at the time of validity of the

the General Civil Code has already referred to the decision of the competent

on the allocation of authority, does not hold water. In this context, it should be added that, under the

the term "decision" should be subsumovat not only administrative acts in their

their own sense of the word, but also measures of any kind made by

the land Office in the implementation of agrarian reform, including the issue of

allocation of the Charter.



Different situation occurred only the efficiency of the Civil Code No.

141/1950 Coll. permitting in the provisions of § 111 paragraph. 1 the acquisition of ownership of the

things individually designated, to property, no longer the same agreement.

Similarly, here the provisions of § 114 ceased to write in the land register

constitutive nature, even in cases of the transition of ownership of the statement of the Court,

Office or public authority. The Constitutional Court therefore considers that the

because of these provisions was in our legislation, on the date of effectiveness of the

the Civil Code of 1950, i.e.. on 1 January 2005. 1.1951, expressly abandoned

intabulační principle. After the effectiveness of the aforementioned Civil Code remained

the only condition for the acquisition of ownership to the given real estate

with the release of the allocation procedure allocation instruments, so přídělci

According to law No. 142/1946 Coll., for which the ownership rights to the

land was not until 31 December 2006. 12.1950 executed, acquired ownership

the rights to them on 1 July. 1.1951, i.e.. the date of the effectiveness of the Civil Code No.

141/1950 Coll., due to the provisions of § 111 paragraph. 1, § 114.

the civil code was already a condition of the acquisition of the property to

real property, whether by transfer or gradient, taking over the repossession-condition

submission of necessary for the transfer of ownership was established only for the things

specified by type--which means that allocations under the Act No.

46/1948 Coll. passed ownership to the allocated property on přídělce already

on the basis of the rightful allocation of the Charter.



The provisions of § 32 paragraph. 3 of the Act No. 229/1991 Coll., on the adjustment of ownership

relationship to the land and other agricultural property as amended

the regulations, therefore, corresponds to, as far as the allocations referred to in Act No. 142/1947

Coll., legal status, which existed until the date of the effectiveness of Act No. 141/1950

Coll., and in this respect this legal status only notes. By

the provisions cited it entirely fails to change the mode of acquisition

the ownership of immovable property after the 1. 1.1951, sidesteps the fact that next to the

group owners, who acquired ownership of the assigned property

According to law No. 142/1946 Coll. intabulací, there is also a group,

that ownership to immovable property assigned by the cit Act came into

the efficiency of the Civil Code of 1950. This group can include

How to přídělce according to law No. 142/1946 Coll., and přídělce according to the law

No 46/1948 Coll., on which the efficacy of the Civil Code of 1950

It was assumed as a condition of the transition of ownership of the takeover.



Such a procedure is, however, in the opinion of the Constitutional Court in conflict with

the principle of equality contained in article 1 of the Charter of fundamental rights and

freedoms. The Constitutional Court of the Czech Republic in a number of the findings (in particular No 3 and 9

Collections of the findings and resolutions of the Constitutional Court of the Czech Republic, volume 1)

aligned with the understanding of the constitutional principle of equality, as was expressed

The Constitutional Court of the CSFR in decision No 11/1992 collection of resolutions and findings

The Constitutional Court of CZECHOSLOVAKIA: "it is certainly the stuff of the State, in order to ensure their

features decided that a certain group will provide fewer benefits than others. Or here

do not, however, completely arbitrarily. If the law specifies the benefit

one group and at the same time lays down the obligations of the other, may be disproportionate to

so only with reference to public value. ". In the present case

the legislature referred a procedure establishing inequality nothing without any explanation and

hardly, so could make possible by pointing out that, since the

the efficiency of the Civil Code of 1950 on the acquisition of ownership to

property allocated in accordance with Act No. 142/1946 Coll., or according to the

Act No. 46/1948 Coll., as well as to property at all, paid in

the principle is already different, intabulaci or possession of maintenance mode.



The Constitutional Court therefore for these reasons decided that the provisions of § 32

paragraph. 3 of the Act No. 229/1991 Coll., on the adjustment of the ownership of the soil and

other agricultural property as amended by Act No. 182/1993 Coll.,

repealed on the date of publication of the award in the collection of laws, for his conflict with

the provisions of article 1 of the Charter of fundamental rights and freedoms.



The President of the Constitutional Court of the Czech Republic:



in the z.. Haboob in r.



Vice-Chairman of the



Different views



A different opinion of the judge. Ivy Brozova



While it is true that the Civil Code No. 141/1950 Coll. departure should be

from traditional legislation, represented by the General Civil Code of

r. 1811, that counts with intabulací, however since it actually myself

do not, as in § 114 of the Act. No 141/1950 Coll., States that only in

cases in which the law so provides, the ownership passes directly from the

the law and or the official verdict, and because it was a qualitative

moving away, as evidenced by the recent edit contained in § 133 paragraph. 2

the civil code a new principle of intabulační, misleading

the reason why it should be section 32, paragraph. 3 of the Act. No. 229/1991 Coll. abolished, when

on law No. 142/1946 Coll. can be seen as a lex specialis, which

the condition intabulace. On the latter, does not change that. No.

22/1964 Coll. the land set aside, thus effectively blocked intabulaci

as in 1964, he was already a Cust. No 142/1947 Coll. volcano in the standard

the meaning of that, imagine its application after 1964 and is

no doubt, in the event that the legislature intends to land reform has issued a

a new standard. In short, the Cust. No 142/1946 Sb. I consider lex

specialis, tying the formation of ownership to intabulaci even after the effectiveness of the Act.

No 141/1950 Coll., which contested the provisions of § 32 paragraph. 3 of the Act. No. 229/1991

Coll. honors the fact that makes the difference between the přídělci.