In The Matter Of The Application For Revocation Under Section 394 And Section 93 Of The Insolvency Act

Original Language Title: ve věci návrhu na zrušení části § 394 a § 93 insolvenčního zákona

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=68760&nr=163~2F2009~20Sb.&ft=txt

163/2009 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled on 21 February 2006. April, 2009, as amended by an amending resolution of

27 June 2002. May 2009 in plenary in the composition of Stanislav Package, Franz

Duchoň, Vlasta Formankova, Turgut Güttler, Ivana Janů, Vladimir Crust,

Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský

(Judge-Rapporteur), Miloslav Výborný, Elisabeth Wagner and Michael

April on the proposal of the High Court in Olomouc, for which this is JUDr. Miroslav

Jansa, the President of the Chamber of the High Court in Olomouc, on the repeal of section

the provisions of § 394 in paragraph 2, the part of the sentence after the semicolon and section 93 para. 2

Act No. 182/2006 Coll., on bankruptcy and the ways of its solution (insolvency

the law) with the participation of the Chamber of Deputies and the Senate of the Czech

Republic,



as follows:



I. the provisions of § 394 in paragraph 2. part of the sentence after the semicolon to Act No.

182/2006 Coll., on bankruptcy and the ways of its solution (insolvency law),

which reads: "the appeal is not admissible against him" is cancelled on the day of its publication

This finding in the statute book.



II. Proposal to repeal provision of section 93 para. 2 Act No. 182/2006 Coll.

bankruptcy and ways of its solution (insolvency law) is dismissed.



Justification



(I).



Recap of the proposal



1. The design of the examination pursuant to article 3(4). 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to

"the Constitution") and § 64 para. 3 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the High Court in Olomouc (

"the complainant") sought the release of the award by which the provisions of § 394 in

paragraph 2, the part of the sentence after the semicolon to Act No. 182/2006 Coll., on bankruptcy and

the ways of its solution (insolvency law). The contested provision

does not allow for an appeal against the order by which the insolvency Court notes

Note that the proposal of the debtor for debt relief, and in the opinion of the high

the Court in Olomouc, so preventing the debtor to seek protection of his rights in the

the Court according to the provisions of article. paragraph 36. 1 and article. 38 para. 2 of the Charter of fundamental

rights and freedoms ("the Charter"). The High Court in Olomouc further adds that

process modification that determines the result of appeal proceedings in the case

the same is contrary to the principles of the rule of law within the meaning of article 87(1). 1 (1). 1 of the Constitution.



2. From the proposal shows that the High Court in Olomouc leads insolvency proceedings

the design of the debtor-initiated from the regional court in Ostrava, by order of the

14.8. 2008 no j. KSOS 8 INS 3110/2008-A-5 found bankrupt and

the solution has allowed bankruptcy phase and at the same time ordered a review of the negotiations

on day 30. 9.2008 at 10.30 am. and after convened a meeting of the

the lenders. At the meeting, to which the debtor has been duly summoned, the without

apologies. Court of first instance therefore decided at this meeting

in its resolution of 30 March 2004. 9.2008 No. KSOS 8 INS 3110/2008-B8, which in

accordance with the provisions of § 399 paragraph. 2 sentence in fine after the semicolon

Insolvency Act apply the legal fiction of the discontinuance of the debtor

to allow debt relief and bankruptcy on its property with

the fact that bankruptcy will be designed as a tiny (§ 314 et seq.. cit.). Of the day

1.10. 2008 was the General Court served notice whom the debtor

excused from the meeting of creditors due to incapacity for work, and their

incapacity for work was shown by confirmation of 30 November 2005. 9.2008. Against the

resolution of 30 March 2004. 9.2008 No. KSOS 8 INS 3110/2008-B8, which

the General Court took note of the discontinuance of the debtor to allow

debt relief and bankruptcy on its property that

audition will be designed as a tiny, the debtor filed a timely appeal, in

which argued that did not attend the meeting due to urgent deterioration

health status and cemented the fact showed. In appeal proceedings

calls to the High Court in Olomouc on the abolition of the one order of the Court of first

the degree.



3. The High Court in Olomouc in its proposal also States that the debtor would not be in the

a better position, even in the case that the Court did not find in time apologized and

There is a reasonable excuse. The fiction that the proposal would then not as

result of the inactivity of the debtor, but the reasoning of the Court on the basis of the evaluation

the first degree, and the Court against such a decision, which the Court

assessed the situation differently than 21st century process, the debtor, the debtor does not have

an ordinary appeal, despite having not only for the debtor

procedural but substantive existential implications. While the debtor is evidence

the right to lodge an appeal against the decision of the Court, which was

the solution of the debtor's bankruptcy decision on bankruptcy, due to the fact that

oppose I., in which the Court takes note of the withdrawal of the proposal on

debt relief is not the appeal is admissible, the Court of the debtor's appeal in part,

where would this statement against the refuse, without addressing the

evaluation of omluvitelnosti because of that debtor to avoid participation in the

a meeting of creditors. As a result of the rejection of the appeal intact statement

I. establishing a Court of first instance took note of the withdrawal of the proposal on

debt relief, and the Court of appeal has no option other than to confirm the decision of the

Court of first instance in the operative part II. on the solution of the debtor's bankruptcy

the audition, because the decision of the Court of first instance is completely in accordance with the

the provisions of § 396 of paragraph 1. 1 of the Insolvency Act. The debtor is so

procedural rules withdrawn right to his decline phase, which

He was a previous court decision allowed. The result of the appeal

the procedure is so circumscribed by the relationship between § 394 of paragraph 1. paragraph 2, § 396. 1 and

§ 399 paragraph. 2 the Insolvency Act so that the Declaration of bankruptcy

the debtor's assets must be confirmed. The appeal thus becomes

an empty formal ceremony.



4. When examining the appeal reached the High Court in Olomouc concluded that

the provisions of § 394 of paragraph 1. 2 the Insolvency Act in the part in which the

does not allow for an appeal against the order by which the insolvency Court notes

Note that the proposal for debt relief, the debtor is in breach of the above

those provisions of the Charter, and therefore handed to Constitutional Court

on its cancellation. The provisions adopted by Member States to prevent the debtor sought

protection of his rights in court in terms of article. paragraph 36. 1 and article. 38 para. 2

Of the Charter, since the procedural scheme, which predetermines the outcome of the appeal

proceedings is contrary to the principles of the rule of law within the meaning of article 87(1). 1

paragraph. 1 of the Constitution. Unconstitutional consequences resulting from this modification

the right of appeal can be avoided only by repealing the provisions of § 394 of paragraph 1.

2 sentence after the semicolon of the insolvency act as unambiguous wording

the legal standard is according to the article. 95 para. 1 of the Constitution, the Court of appeal is bound, when

This text does not give any possibility to appeal constitutionally consistent

the interpretation. The right to challenge the decision of the first instance of the Court of appeal is

procedural law that is given or excluded rules, but

the decision of the Court, which took note of the withdrawal of the proposal

the debtor to allow debt relief, according to the provisions of § 394 of paragraph 1. 2

Insolvency Act, cannot be considered a mere decision about leadership

the proceedings, which the Court was not bound. Mainly reflects the consequences of the

arising from § 399 paragraph. 2 the Insolvency Act and declares the legally

fiction resulting either from the debtor's idle or even evaluation

the reasoning of the Court. The entire legal structure, then with this decision

the insolvency court joins other irreversible decision on the merits of the case,

that has substantive implications for both the borrower and the lender, when for

the debtor as to the consequences of an existential.



5. In the second part of the examination pursuant to article 3(4) of the proposal. 95 para. 2 of the Constitution and section 64

paragraph. 3 of the law on the Constitutional Court, the High Court in Olomouc seeks release

the award, which is the provision of section 93 para. 2 Act No. 182/2006 Coll.

bankruptcy and ways of its solution (insolvency law). The contested

the provisions imposing the Court of appeal to decide on appeals against the way

the bankruptcy solution no later than two months after it was submitted to the

Court of first instance. When submitting the proposal to the Constitutional Court cannot be

deadline. The Court of appeal is aware that this is a period of riot and

protection of the constitutional order has before it the respect of the primacy, Supreme Court

Olomouc has, however, considered that the simple right should not create a formal

obstacles to the determination of compliance with procedural time limits, which would protect

the constitutional order, and therefore proposes that the Constitutional Court canceled

the provision of section 93 para. 2 the Insolvency Act, since its abolition

It will not speed the appeal proceedings in insolvency proceedings,

because it is ensured by the provisions of section 92 of the Insolvency Act, which would

remained unaffected.



6. the applicant further contends that the Constitutional Court due to the argument

referred to under point 5. and with regard to the interruption of the insolvency

proceedings under section 84 is not a paragraph. 1 the Insolvency Act possible, and further

due to the fact that irrespective of the revoking of the debtor the consequences of the Declaration

bankruptcy already occurred by posting the decision on the Declaration of bankruptcy of the

Insolvency Register, discussed the proposal as an emergency within the meaning of § 39

the law on the Constitutional Court.



II.



The progress of the proceedings and the expression of the parties ' recap



7. The challenge to the Constitutional Court under section 69 of the Act filed on the Constitutional Court

through its President, Ing. Miloslav Vlcek observations


The Chamber of deputies of the Parliament of the Czech Republic. As he did so

through its President MUDr. Přemysl Sobotka-Senate

Of the Czech Republic.



8. The Chamber of deputies in its statement summarizes the progress of the consultation

the relevant provisions.



9. The Senate is expressed primarily during the consideration of the relevant

provisions. Also States that the napadaným provision was not conducted

No discussion. In connection with the debt relief was a debate

conducted only in the plane of the debt relief options of a legal person, that is not

an entrepreneur. In the upper Chamber of the Parliament of the so nezazněly beliefs, which

could be the claimant's allegations about the unconstitutionality of the provisions of § 394

paragraph. 2 in the part of the sentence after the semicolon and section 93 para. 2 the Insolvency Act

to support or refute.



10. the parties expressed explicitly or within a specified period

tacitly-consent to the abandonment of an oral hearing, and the Constitutional Court from

This meeting was dropped, given that it could not be expect from him

further clarification of the matter.



III.



The diction of the contested provisions of the legislation



11. the contested provisions of the Insolvency Act reads as follows:



§ 394



[...]



(2) the withdrawal of the proposal to allow debt relief takes the Court on

note of a decision which shall be served on the person who filed the proposal,

the debtor, the insolvency practitioner and the creditor Committee;



the appeal is not admissible against him

.



[...]



§ 93



[...]



(2) an appeal against a decision under paragraph 1, the Court of appeal shall consult and

decides about it not later than 2 months after it was submitted to the

Court of first instance; the provision of section 92 shall remain unaffected.



IV.



Locus standi of the applicant



12. Standing to the submission of the proposal under consideration in the policy

the petitioner from article. 95 para. 2 of the Constitution. If the Court, pursuant to this

provisions, concluded that the law, which is to be used in solving the case,

is in conflict with the constitutional order, refer the matter to the Constitutional Court. The right to

the Court is given in § 64 para. 3 of the law on the Constitutional Court as a

the right to submit a proposal for the repeal of the law or its individual provisions.

This means that the locus standi of the Court to request the cancellation of the law

or individual provisions of the Act depends on the subject-matter of the dispute and its

legal qualification. In other words, the Court may file a petition for annulment

only such law or its individual provisions that have

be applied in resolving a dispute pending before the ordinary court.

Consideration of such application must be justified, must be derived from the

the conditions of the procedure, including the factual evidence of the participants, and, in the case of

the substantive provision from an unequivocal finding that such a provision has

be applied [see find SP. zn. PL. ÚS 50/05 of 16 February. 10.2007

(promulgated under no. 2/2008 Coll.), section 11].



13. It follows from the foregoing that the contested provision is crucial for the

the success of one of the parties in the proceedings before the complainant. The petitioner thus

satisfies the conditions defined in the previous point to the locus standi of the Administration

the proposal in question to the Constitutional Court.



In the.



The constitutional conformity of the legislative process



14. Pursuant to § 68 para. 2 of the Act on the Constitutional Court, the Constitutional Court has, in addition to

assessment of compliance of the contested law with constitutional law, to determine whether

was adopted and issued within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner.



15. given that the applicant did not defect to the legislative

process, or exceeding the Constitution laid down the competence of the legislature, is not

having regard to the principles of procedural economy to examine this question more closely

and it is sufficient, in addition to taking into account the observations submitted by the

the Chamber of Deputies and the Senate (see above, points 8 and 9 of this award), formal

verification during the legislative process of publicly available

information resource on http://www.psp.cz.



16. The Constitutional Court found that from the Bill that was eventually

promulgated under no. 182/2006 Coll. (print 1120/2 Chamber of Deputies

2002-2006, 4. the election period), was being discussed in the Chamber of Deputies

Parliament as printing 1120 on first reading on 26 April. October 2005 and referred to the

discussion of the constitutional legal Committee, which discussed at its

meeting on 1 May 2004. December 2005 and 20 March. January 2006 and recommended it

approve as a comprehensive amendment, which was included in

the Committee's resolution No. 235 (1120/1). This comprehensive amendment

edited by newly fallen paragraph 394 paragraph. 2. Second Reading of the draft

the Act took place on 27. in January 2006, the amendments in

second reading have been processed as printing 1120/2. The Bill was

required majority of members approved in the third reading on 8.

February 2006 in the text of the comprehensive amendments. The Bill was

The Senate referred to the 28 July. in February 2006, and the Organizing Committee of the Senate as it

print no. 288 (5th term) commanded to hear Constitutionally-legal

of the Committee. The Committee discussed the Bill on 15 December. March 2006 and adopted the

to him a resolution No 93 (Senate document No 228/1), in which it recommended that

The Senate approved the Bill as amended by the Chamber of Deputies transferred.

The plenary of the Senate discussed the Bill on its 10. meeting on 30 November. March

2006, when in a vote no. 199 to the draft law, resolution No. 416, the proposal was

approved as amended by the Chamber of Deputies transferred. For voted 49

Senators from the present 54, 5 Senators abstained and no one was

against. The law was delivered to the President to sign on 7 December. 4.2006 and the

to 14 June. 4.2006, he signed. The approved law was delivered to the Prime Minister

the signing on 27. 4.2006, and he was named in the statute book of the day 9. 5.2006

the amount under the number 62 182/2006 Coll.



17. The Constitutional Court notes that law No. 182/2006 Coll. was adopted and

issued within the limits of the Constitution laid down the competence and constitutionally prescribed

in a way, and that in this proceeding did not detect anything that suggested for

conclusion the opposite.



Vi.



Reviews of the Constitutional Court



18. The Constitutional Court first dealt with the compliance section 394 paragraph. Part 2

a semicolon insolvency law with the provisions of article. paragraph 36. 1 of the Charter,

According to which each can claim a set procedure, their rights in the

an independent and impartial court and in the cases provided for in other

authority and to the article. 38 para. 2 of the Charter, according to which everyone has the right to his

the matter has been discussed publicly, without undue delay, and in his

presence and to comment on all evidence.

The public may be excluded only in cases specified by law.



19. the Constitutional Court in its previous case-law clearly stated that if the

each pursuant to art. paragraph 36. 1 of the Charter, the right to seek protection of his rights in the

Court or other authority, with the conditions and rules for the implementation of this

the rights provided by law, then such law, issued on the basis of the constitutional

mandate, cannot claim each claim the protection of his rights in court or

another authority in the situation completely negate and thus constitutionally

guaranteed by the basic law, even if only in certain cases, to deny.

The provision of article. paragraph 36. 1 of the Charter, each constitutionally guaranteed

the option to seek protection of their rights in court or other authority in the

all situations its violation (there is no constitutional restrictions).

In other words, no person can not be completely excluded from the Act

options to seek protection of their rights, even if only in a particular case,

Since its right pursuant to art. paragraph 36. 1 of the Charter would be voided. The opposite

the interpretation would also be represented, that the entrenchment of the rights of every request the Court

and other authorities for the protection of their rights protection made ústavodárcem-

gifted the highest legal force-would essentially lose sense, since it would

could be for the situation will only be annulled by the legislature.

[find SP. zn. PL. ÚS 12/07 of 20 December. 5.2008 (competition no.

355/2008 Coll.), finding SP. zn. PL. ÚS 73/06 of 29 April. 1.2008 (announced

under no 291/2008 Coll.), both available at http://nalus.usoud.cz].



20. civil process consists, inter alia, on two basic principles-

the principle of the disposition and the principle of projednací. The close interrelationship between the private

law and public civil procedural law is best

expressed just the principle of disposition. Meaning and purpose of civil law

the process is to provide protection of subjective rights, i.e. private.

public civil procedural law is used by private law material, and

If this fails to fulfill its task, loses its meaning. The reciprocal function

substantive private law, binding, which is based on the autonomy of the will

participants in the private, public and civil law

the process is reflected in the area of procedural law in particular

through the disposition of the policy that controls the civil process.

The disposition principle constitutes a specific projection of private law

autonomy of the will in the field of civil process. Parties is due to

freely, in accordance with the principle of disposition, ' as the management and

the subject of the proceedings. The procedural rights that are derived from the principle of

disposition, are reserved exclusively to the holders of these rights in the form of

disposition of procedural acts; the nature of these options

procedural acts shows that the content may not be legal fiction, IE.


It cannot be established that someone took the proposal, although to do so.

Legal construction of the fiction that the proposal on debt relief is inconsistent with the

the nature of the civil process, which applies not only to the civil process, the questionable

but for any kind of civil court proceedings, i.e.. also for insolvency

control. Disposition the Act cannot be a legal fiction content, without

This has been infringed the principle under which the disposition is a civil

the process of being built, and ultimately also the principle of autonomy of the will. How

for example, the Constitutional Court said. in finding SP. zn. I. ÚS 167/04 dated

12.5.2004 (N 70/33 SbNU 197) ^ *, "the autonomy of the will and the free

individual is guaranteed at the level of the constitutional article. 2 (2). 3

The Charter of fundamental rights and freedoms. Article. 2 (2). 3 of the Charter must be understood

in two senses. In its first dimension represents the structural

the principle, according to which the State power against an individual and autonomous

sphere (including autonomous expressions of voluntary) should apply only in the

cases where the conduct of an individual violates the expressly formulated ban

the modified law. Also, such a prohibition must, however, reflect only

the requirement of preventing individuals in the intervention in the rights of the

third parties and promote the public interest, it is a legitimate and

proportional limit of the autonomous conduct of such individuals. Such

the principle is to be understood as an essential part of each

democratic rule of law (article 1, paragraph 1, of the Constitution of the Czech Republic).

Similar content has also provisions of article. 2 (2). 4 of the Constitution. In his second

dimension then acts article. 2 (2). 3 of the Charter as a subjective right

individuals that public authorities respect the autonomous manifestations of his

personalities, including voluntary, to the reflection in its particular

the negotiations, if such conduct is not specifically prohibited by law. Article. 2

paragraph. 3 of the Charter in its second dimension in which it operates as a fundamental right

individuals should then be applied immediately and directly. In this

the dimension is not just a simple law, Radioscopy but

subjective right, which act directly against State power. The authorities of the

State power are, therefore, required in the application of a simple rights at the same time

standards of this right, which is reflected in the article. 2 (2). 3 of the Charter and article. 2

paragraph. 4 of the Constitution as an objective of constitutional principle, interpret also

to chose the subjective right of the individual to the autonomy of the

the will, which also guarantees the article. 2 (2). 3 of the Charter in its other dimension. "

The obligation to respect the autonomy of the will is true not only for the authorities that

the right to interpret and apply, but also for the legislature.

The effort to accelerate the proceedings, it is therefore desirable, on the one hand, on the other

side, however, cannot take such a form, that by communicating well process

the Act of the participant, he actually took the opportunity of its free

the negotiations. Therefore, in all developed legal systems used.

exclusively at the discovery institutes presumptions of facts, IE. When

Discovery and investigation of relevant facts. Accelerator

institutes (e.g. the judgment by default or the preclusive time limit)

used exclusively in an area which turns out projednací, and policy is not

possible in order to accelerate the proceedings to take these means of available

management and the subject of the proceedings. Functions of the legal fiction is not zpravděpodobnění

certain facts, the less fiction cannot apply to

the basic procedural law the parties dispose of the proceedings and subject to a procedure

(cf. closer Macur, j. Judgment on the basis of entitlement referred to in fiction

the provision of Section 114b of the row Advocacy, Bulletin No. 2/2002, p. 28-

36).



21. the provisions of § 394 paragraph was taken. 2 part of the sentence after the semicolon

Insolvency Act prevents the realization of debtor's rights deal with your

the decline phase, although he was a previous decision allowed.

As a result of the introduction of the legal fiction that not only is applied when

inactivity of the debtor, but also the value judgment of the Court, without the

to the debtor against the decision of the General Court prevented the proper

remedy shall be limited to the right to a fair trial and

does not allow or correct an error that can (e.g. the debtor shall apologise for it,

but the apology is accidentally embedded in another file, etc.) in the activities of the Court

occur. The fiction that the proposal on debt relief is not just

the procedural act whereby the participant has control, but has a major

substantive consequences for both the borrower and the lender (the subsequent declaration

bankruptcy, etc.).



22. For the above reasons, therefore, the Constitutional Court concluded that the

the contested provisions of § 394 in paragraph 2 after the semicolon sentence law

No 182/2006 Coll., on bankruptcy and the ways of its solution (insolvency law)

It is in breach of article. paragraph 36. 1 and article. 38 para. 2 of the Charter, and is therefore

set aside the date of publication of this finding in the statute book. In this

the context of the Constitutional Court notes that the underlying cause of

the unconstitutionality of the provisions of zrušovaného lies in its application

the link to the clearly unconstitutional part of the provisions of § 399 paragraph. 2 sentence for

a semicolon is added: "If, without justification or

If the Court finds his apology substantiated, it shall be deemed that took

proposal for debt relief back. " This provision establishing the legal fiction

discontinuance for debt relief, however, the High Court in Olomouc in the context of its

the decision-making activities of the (appeal) directly

did not apply and therefore had no standing to request the

its cancellation. This undoubtedly testify to the regional court in Ostrava

as the Court of first instance, however, because it did not use. As well as losing

the scope of the review before the Constitutional Court, which is bound by the proposal of the high

the Court in Olomouc, Czech Republic.



23. the Constitutional Court also dealt with the compliance of section 93 para. 2 of law No.

182/2006 Coll., on bankruptcy and the ways of its solution (insolvency law)

the provision of article. paragraph 36. 1 of the Charter, according to which each can claim

the prescribed procedure their rights before an independent and impartial court and in

specific cases at another institution.



24. Fallen provisions set out the riot period of two months, in which

has the Court of appeal on the appeal decision. If the period

will be forfeited, i.e.. If the right drowned out, or with the end of were

associated other essential legal consequences (e.g., fiction or presumption)

such a deadline would have to be considered as unconstitutional, i.e.. contrary to the

the principle of a fair trial. On the other hand, it is necessary to emphasize,

the introduction by the time-limits for the Court's decision cannot be hurt

real facts that lie at the base of the substantive

relations and the subjective rights. By law, the time limit in paragraph 93

paragraph. 2 the Insolvency Act refers to the decision on the appeal against the

an interim measure against bankruptcy decision and against the

the decision about how to resolve the bankruptcy of, i.e.. as for the initial resolution of the

the situation of the debtor, where it is necessary to prevent any delays, and

due to the fact that it is a period, not her definition of riot in

contrary to the right to a fair trial.



25. For the above reasons, therefore, the Constitutional Court concluded that the

the contested provision of section 93 para. 2 Act No. 182/2006 Coll., on bankruptcy and

the ways of its solution (insolvency law) is not in breach of article. paragraph 36.

1, and therefore rejected the proposal on its cancellation.



26. The Constitutional Court granted the High Court in Olomouc and discussed

proposal as urgent in the sense of § 39 of the law on the Constitutional Court.



The President of the Constitutional Court:



JUDr. Rychetský in r.



* URpozn.red: collection of findings and usneseni of the Constitutional Court, Volume 33, find

No 70, p. 197