On The Proposal To Repeal Part Of The Act No. 513/1991 Coll. And 99/1963 Coll.

Original Language Title: ve věci návrhu na zrušení částí zákonů 513/1991 Sb. a 99/1963 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=68200&nr=62~2F2009~20Sb.&ft=txt

62/2009 Coll.
FINDINGS


Constitutional Court
On behalf of the Czech Republic


Constitutional Court Plenum, composed of Stanislav Balik, Frantisek Duchon, Vlasta
Formánková, Vojen Güttler, Pavel Holländer, Ivana Janu,
Vladimir Kurka, Dagmar Lastovecká, Jiri Mucha, Jan Musil, Jiri Nykodým, Pavel || | Rychetský, Miloslav Vyborny, Elizabeth Wagner and Michael Židlická
decided on a proposal by the Municipal court in Prague, in which case JUDr. Zuzana
Ciprýnová, the annulment of § 183i through § 183n Act no. 513/1991
Coll., The Commercial Code, as amended by Act no. 216/2005 Coll., And the provisions of § 200d
paragraph. 3 Law no. 99/1963 Coll., Civil procedure Code, as amended
Act no. 216/2005 Coll., with the participation of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic
as the parties and the Municipal court in Prague
for acting JUDr. Hana Albert, as the intervener
management

Follows:

I. The proposal to repeal the provisions of § 183i through § 183n Act no. 513/1991 Coll.,
Commercial Code, as amended by Act no. 216/2005 Coll., Refuses.

II. The proposal to annul § 200d paragraph. 3 of Law no. 99/1963 Coll.
Civil Procedure, as amended by Act no. 216/2005 Coll., Now
provisions of § 200d par. 4 Act no. 99 / 1963 Coll., the Civil Code, as amended
is rejected.

Reason:

I.

Definition matter and recapitulation draft

First On 4 October 2005 the Constitutional Court received a petition from the Municipal Court in Prague
for acting Judge JUDr. Zuzana Ciprýnová (hereinafter
"petitioner"), pursuant to § 64 par. 3 of Act no. 182/1993 Coll.
of the Constitutional Court, as amended (hereinafter the "Act on
Constitutional Court"), seeking annulment of § 183i through § 183n Act no.
513/1991 Coll., the Commercial Code (hereinafter "commercial Code"), as amended
Act no. 216/2005 Coll., which changed Act no. 513/1991 Coll., the commercial
Code, as amended, Act no. 99/1963 Coll., Civil
procedure Code, as amended, Act no. 189/1994 Coll., on
senior court officials, as amended, and Act no.
358/1992 Coll. notaries and their activities (notary Act), as amended
amended (hereinafter the "Act no. 216/2005 Coll."), and to repeal provisions
§ 200d paragraph. 3 of law no. 99/1963 ., Civil procedure
(hereinafter referred to as "CPC."), as amended by Act no. 216/2005 Coll.

Second The present application was filed by the petitioner in connection with decisions on
petition for change - resolution of the general meeting of the company business
Testing, Inc., on the transfer of the securities
minority shareholders of this company to the main shareholder in accordance with the provisions of §
183i et seq. Commercial Code, held on 9 September 2005
into the Commercial Register kept by the applicant under File No. B
1,563th

Third The petitioner believes that § 183i through § 183n
Commercial Code, as amended by Act no. 216/2005 Coll., Are in conflict with Art. 11 and Article
. 36 of the Charter of Fundamental Rights and Freedoms (the "Charter"), Article.
6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter
"the Convention") and Art. 1 of the Additional Protocol to the Convention. The provisions of § 200d
paragraph. 3 of the CPC., As amended by Act no. 216/2005 Coll., Then
alleged by the petitioner, is in conflict with the right to a fair trial under Art. 36
Charter and contrary to the principle of judicial independence enshrined in Article . Article 81 and
. 82 para. 1 of the Constitution of the Czech Republic (hereinafter "Constitution").

Fourth The petitioner filed a petition to annul § 183i through § 183n
Commercial Code, as amended by Act no. 216/2005 Coll., § 200d paragraph.
3 of the Civil Procedure Code., As amended by Act no. 216/2005 Coll ., because it is, in his opinion,
must apply and these provisions are contrary to the constitutional order.

Fifth On 8 December 2005, the Constitutional Court resolution file. Nos. Pl.
US 53/05, which rejected a proposal from a group of senators of the Senate of the Parliament of the Czech Republic
dated November 16, 2005, represented by attorney JUDr. Peter
Zima, the annulment of § 183i through § 183n of the Commercial Code, as
execution proceedings on the petition of a group of senators an obstacle
pendens. Given the fact that the petition was filed by an authorized
petitioner under § 64 para. 1 point. b)
Law on the Constitutional Court, the petitioner has a legitimate right under § 35

Paragraph. 2 in fine of the Constitutional Court participate in negotiations on the previously filed petition
intervening in the matter Pl. US 43/05.
Because the petition of a group of senators sought the annulment of § 183i through
§ 183n of the Commercial Code, as amended by Act no. 377/2005 Coll., On
supplementary supervision of banks, savings banks and credit cooperatives,
electronic money institutions, insurance companies and brokerage firms
in financial conglomerates and amending certain other laws
(hereinafter the "Act no. 377/2005 Coll."), effective from September 29, 2005, filed
a group of senators after the release of Constitutional court resolution file. Nos. Pl.
US 53/05 of 8 December 2005 again on 22 December 2005 a proposal to
annulment of the contested provisions of § 183i through § 183n of the Commercial Code, as amended by Act No.
. 377/2005 Coll., it is at the Constitutional court under file.
Brand. Pl. US 56/05. Constitutional Court resolution dated September 5, 2006 sp. Ref.
Pl. US 43/05 and Pl. US 56/05, the Constitutional Court proceedings conducted under file. Ref.
Pl. US 43/05 ruled out for separate discussion draft secondary
party - group of senators of the Senate of the Czech Republic
represented JUDr. PZ that excluded the intervener
joined the joint management proposal led still under sp. Nos. Pl. US
56/05 so that both proposals will be discussed below sp. Nos. Pl. US 56/05.

6th On 22 August 2006 and on 2 January 2007 the Constitutional Court issued a resolution
under file. Nos. Pl. US 53/06 and sp. Nos. Pl. US 93/06, which dismissed suggestions
Municipal Court in Prague, in which case the judge JUDr. Hana Albert,
delivered to the Constitutional Court on 18 July 2006 and 21 December 2006 on
annulment of § 183i through § 183n of the Commercial Code, as
execution proceedings relating to the proposals of the Municipal Court in Prague, for which
this JUDr. Hana Albert, an obstacle pendens.
Due to the fact that the proposals were submitted by an authorized petitioner sense
§ 64 par. 3 of the Constitutional Court, the petitioner has a legitimate right
according to § 35 para. 2 of the Act on
constitutional court participate in negotiations on the previously filed petition
as a secondary party in the matter Pl. US 43/05.

7th The Municipal Court in Prague, in which case JUDr. Zuzana Ciprýnová, delivered
Constitutional Court on 17 September 2007 a further proposal to repeal the provisions of §
183i through § 183n of the Commercial Code and § 200d paragraph. 3 of the CPC.
On 25 September 2007, three other proposals the annulment of the same provisions. The Constitutional Court
resolutions dated October 9, 2007 sp. Nos. Pl. US 20/07, dated 23 January 2008
sp. Nos. Pl. US 21/07, dated November 29, 2007 sp. Nos. Pl. US
22/07 dated April 24, 2008 sp. Nos. Pl. US 23/07
those proposals rejected by § 43 par. 2 point. b) in connection with the provision
§ 43 paragraph. 1 point. e) of the Constitutional Court as the claims are inadmissible.

8th Constitutional Court was on 10 March 2006 on 10 April 2006 and
fourth September 2006 received a request JH, Ing. JN and Ing. J.Č..
Granting the status of interveners in accordance with § 63 respectively.
§ 76 paragraph. 3 of the Constitutional Court in connection with the application of the provisions of §
183i through § 183n of the Commercial Code, the transfer of equity securities
of their property to the ownership of the majority shareholder. On
22nd Then in June 2006 the Constitutional Court received a note
Municipal Prosecutor's Office in Prague sp. Ref. KZC 527/2006 which stated that
in the matter of the petitioner Testing, Inc., an application for registration
transfer of shares pursuant to § 183i of the Commercial Code, the Commercial
register, enter the proceedings under § 35 paragraph. 1 point.
I) of the CPC. The Constitutional Court states that the revocation proceedings
laws and other laws of the Constitutional Court Act, which, according to Article. 88
Constitution, the Constitutional Court is bound, with the exception of cases occurring
due process in accordance with § 35 para. 2 of the Constitutional court, secondary
abetting know. The Constitutional Court also notes that the provisions cited above
does not imply permission entry
Municipal State Attorney's Office in Prague to intervene as a party to the proceedings. If
Municipal Prosecutor's Office in Prague derives its authority to enter into
proceedings within the meaning of § 35 para. 1 point. i) of the CPC., would
such an entry to the proceedings before the Constitutional Court authorized only if

If the status of the participant, respectively. intervener belonged
business enterprise Testing, Inc. Such a fact not occurred.
The Constitutional Court concludes that a party to proceedings before the Constitutional Court
can be only one whom the Law on the Constitutional Court indicates (§ 28 para. 1
4).

II.

Formal prerequisites for discussion of the draft

9th The Constitutional Court first examined whether the formal preconditions
factual assessment of the proposal, and dealt with as well as the question whether the petitioner
in this case is entitled to bring this proposal.

10th The contested provisions into the Czech legal order
included with effect from 3 June 2005, respectively. July 1, 2005, Act no. 216/2005 Coll
. The approved amendment set of laws governing the management
commercial register and writes to him, brought in § 183i through
§ 183n of the Commercial Code, the institute is known in foreign jurisdictions such as the so-called
. Squeeze - out, ie. The withdrawal of shares against the owner.
Provisions of § 200d paragraph. 3 of the CPC. Was then modified procedure
Registration Court in examining the founding documents or
documents required to change the registration details of the company so that
this court is limited to a review of whether the data in the application for registration
correspond to those in the notarial deed without a court published
any decision.

11th According to Art. 95 para. 2 of the Constitution, on which the application is based, if there
court concludes that a statute which should be applied in resolving a matter is inconsistent with the constitutional order
submit the case to the Constitutional Court .
As the Constitutional Court stated in its resolution of 28 November 2002 sp. Nos. Pl.
US 20/02 [Collection of Decisions of the Constitutional Court (hereinafter "Collection
decision '), Volume 28, Resolution no. 42, p. 477]
crucial issue, therefore, is to look at the condition that there must be a law "which should be
in resolving the matter." There is no doubt that this condition is met
always negotiations if the law respectively. its individual provisions
whose application has to be immediate, and to be employed at
decision on the merits, ie. in this case the registration procedure for the resolution of the General Meeting
Testing, Inc., on the transfer of the securities
minority shareholders of the company to the principal shareholder pursuant to §
183i et seq. Commercial Code, as amended by Act no. 216/2005 Coll.
into the commercial register. The provisions of § 200d paragraph. 3 of the CPC., As amended
Act no. 216/2005 Coll., The Commercial Court imposes order
without issuing a decision, the registration of facts that are the basis
attached notarial deed, provided that
party is merely a businessman, and that the implementation of such registration
suggested. Court is not entitled factual review of notarial deeds that
about the facts, in particular concerning amendments to the founding documents
companies and other legal entities schedule.

12th In order for the court to challenge the constitutionality of legislation
enough just to use his hypothetical, respectively. Other broader context, it is necessary
but its inevitable application. Direct application of the provisions
§ 183i through § 183n of the Commercial Code, as amended by Act no. 216/2005 Coll., As
of the foregoing, it is not part of the judicial activity Registration
court. Admitting petitioner advocated a broad interpretation of the term
"law, which should be applied in resolving the matter" would in effect mean
right to court to challenge any provision that has been used since
always some chaining applied regulation and de
facto is always applied whether the legislation as a whole. Such an interpretation, however
Constitutional Court rejects (cf. Resolution of the Constitutional Court dated 23 October.
2000 sp. Nos. Pl. US 39/2000, Collection of Decisions, Volume 20, No. resolutions.
39 p. 353).

13th It follows that the proposal to annul § 183i through § 183n
Commercial Code, as amended by Act no. 216/2005 Coll., Was filed someone apparently unauthorized
[§ 43 para. 1 point. c) of the Constitutional Court
], which does not allow the Constitutional Court to address the merits of the petitioner's arguments
to the individual contested provisions of the Commercial Code
. The Constitutional Court finds that the contested provisions
Commercial Code has been repeatedly amended - with effect from 29 April.

September 2005 the provisions of § 46 of Part Nine of Act no. 377/2005 Coll., On
supplementary supervision of banks, credit unions,
electronic money institutions, insurance undertakings and investment firms in
financial conglomerates and amending certain other laws
(hereinafter the "Act. no. 377/2005 Coll."), with effect from 1 April 2006
Act no. 57/2006 Coll., amending certain acts in connection
with the unification of financial market supervision with effect from 1 April 2008 Act No.
104/2008 Coll., on takeover bids and amending certain other laws
(takeover bids Act). Compliance of the contested provisions of § 183i through § 183n
Commercial Code, as amended by Act no. 377/2005 Coll., With the constitutional order
was also subject to review by the Constitutional Court already made
file no. Nos. Pl. US 56/05 that finding sp. Nos. Pl.
US 56/05 of 27 March 2008 the application was rejected (in http://nalus.usoud.cz,
promulgated as no. 257/2008 Coll.).

14th Over the ensuing procedural situations like this, the Constitutional Court is not authorized to speak authoritatively
constitutional conformity to the provisions of § 183i through § 183n
Commercial Code, as amended by Act no. 216/2005 Coll., Even from the perspective views
expressed by the Constitutional court in its judgment of 10 January 2001
sp. Nos. Pl. US 33/2000 (Collection of Decisions, volume 21, judgment no. 5
p. 29, published as no. 78/2001 Coll.) Event. views on this finding
presented in the dissenting opinions of six judges of the Constitutional Court
(cf. Judgment dated 13 June 2006 sp. Nos. Pl. US 75/04, promulgated under
no. 452/2006 Coll .).

15th The Constitutional Court examined the part of the proposal, which
petitioner sought the annulment of § 200d paragraph. 3 of the CPC., As amended by Act no. 216/2005 Coll
.

III.

Text contested statutory provision

16th The provisions of § 200d paragraph. 3 of the CPC., As amended by Act no. 216/2005 Coll
., Added:

§ 200d paragraph. 3 of the CPC .:

Without issuing a ruling, the court also makes registration of
facts whose efficacy or validity does not occur by
special regulation to registration, or the record of
other facts that have a basis in the accompanying notarial registration
provided that the party is only a businessman and that
perform such registration suggested. Notarial deed is eligible
basis of this writing, although specific legislation in this form
legal act required.

17th The Constitutional Court found that the law no. 79/2006 Coll., Amending
Law no. 85/1996, on the Legal Profession, as amended, and other related laws
(hereinafter "Law no. 79 / 2006 Coll. "), there was a change
contested provision, so that § 200d paragraph. 3 of the CPC. sounds from March 15, 2006 as follows
:

§ 200d paragraph. 3 of the CPC .:

The court shall register, without notification to the published decision, even if they have
proposed enrollee actually backing the accompanying notarial
registration; In such a case, the court besides finding pursuant to paragraph 1
examines only whether notarial meets the requirements imposed on him by a special
regulation. The procedure under the preceding sentence applies only
drove the petitioner and the only participant management business, which
registration relates. Notarial deed is eligible basis for registration, although
specific legislation this form of legal act required.

18th Although the implementation of the amendment was to change the wording of paragraph § 200d paragraph.
3 of the CPC. But, despite an amendment to the wording of the contested provision remained
essentially the same content as the decisive direction, what is this stuff
concerns, there was no change relevant. With the link to Part III, Art.
Paragraph VI. 1 of the transitional provisions of the Act no. 79/2006 Coll., By which
"-řízení in matters Commercial Register commenced before the effective date
force of this Act shall be completed in accordance with existing legislation"
the Prague Municipal Court to proceed the wording of § 200d paragraph. 3 os
row. valid on the date of application for registration of a resolution of the General Meeting, ie.
on 16 September 2005. The Constitutional Court in accordance with its previous case law
concluded his duty petition filed in accordance with the provisions of § 64
paragraph. 3 of the Constitutional court to decide.

19th Eventually legislator Act no. 126/2008 Coll., Amending certain
laws in connection with the adoption of the Act on Transformations

Companies and cooperatives, amended the provisions of § 200d, but only so that
inserted after paragraph 1 a new paragraph 2. Paragraph 3 of § 200d Civil Procedure.
To become paragraph 4. wording of § 200d paragraph. 3 of the CPC., now
paragraph. 4, remained consistent with the previous wording.

IV.

Constitutionality of the legislative procedure

20th The Constitutional Court is in accordance with § 68 para. 2 of the
Constitutional Court in proceedings to annul statutes and other laws
obliged to assess whether the contested statute, respectively. its part, was adopted and issued
constitutionally prescribed manner.

21st From the electronic library of the Chamber of Deputies of the Parliament of the Czech Republic
Constitutional Court found that the draft law submitted by the Chamber of Deputies deputy
JUDr. Jiri Pospisil on 21 January 2004. Members
proposal was circulated as print 566/0 on 21 January 2004 and sent to the government
opinion on 22 January 2004. The proposal was adopted at the 41st session
Chamber of deputies on February 9, 2005 Resolution no. 1457, when the
present, 185 deputies voted for the Bill 182.

22nd Chairman of the Senate of the Czech Republic in response to the petition of
16 November 2005 that the Senate proposal was submitted to the Chamber of Deputies
7 March 2005. The Senate debated the bill on 31 March 2005 at its 4
meeting in the fifth term in a vote no. 96 adopted a resolution
bill no. 104, which returned the bill
Chamber of Deputies with amendments. For the resolution Senators voted 64 out of 69
present, 5 senators abstained and none against.

23rd From the electronic library of the Chamber of Deputies of the Parliament of the Czech Republic
The Constitutional Court also found that the bill
Chamber of Deputies discussed again on 3 May 2005 at its 44th meeting.
House maintained its position and the draft law was approved by Resolution No.
. 1626, when for him to vote no. 25 of the 193 present voted in favor
135 and 2 were opposed.

24th President, Prime Minister and Speaker of the Parliament Act
signed and promulgated on 3 June 2005 in the Collection of Laws in part
77 under no. 216/2005 Coll.

25th We can conclude that the Act no. 216/2005 Coll. She was adopted and issued
constitutionally prescribed manner.

V.

Recap essential to the participants

26th The Constitutional Court requested in accordance with § 69 para. 1 of the Law on the Constitutional Court
observations of the parties -
Chamber of Deputies and the Senate of the Czech Republic and the intervener
Municipal Court in Prague, in which case JUDr . Hana Albert.

27th Chairman of the Chamber of Deputies of the Czech Parliament at
statement dated 16 November 2005 described the procedure for the adoption of Act no. 216/2005 Coll
. and he stated that the legislature acted in discussing
under the Act in accordance with legal procedure, and a vote
expressed his belief that the law is not in conflict with the constitutional order of the Czech Republic
. At the same time put the text of the amendment
deputy Dolezal, amendments - printing 566/4, approved the text of the Act
- printing 566/5, verbatim record of the third reading of 9 February 2004
Resolution Chamber of Deputies No. . 1457 and no. 1626

28th Chairman of the Senate of the Czech Republic in its statement dated 16 November 2005
described the procedure for consideration of the bill by the Senate. If
regards the contested provisions of the CPC., According to the content of the President's statement
Senate, the legislature when adopting its leadership changes the overall philosophy
changes, leading to accelerate and streamline the proceedings before the Commercial Registry
. The legislature proceeded on the assumption that the notarial act has the character
public document, its content is endowed with such regularity premise
instrument. Despite this fact, the registration courts reviewed
thus causing both to delays in the proceedings and, secondly clashes
different legal opinions on the content of such instrument. The amendment to the Civil Procedure Code.
Adjusted the judicial process by examining the founding documents or
documents required when changing the registration details of the company so that
court only verifies that these documents contain the particulars required by law
Annexes and whether they met the requirements regarding
individual facts entered in the register. If you meet the above mentioned requirements
shows notarial deed, registration court
be limited to examining whether the data in the application for registration of the corresponding data referred to in

Notarial record. Notary scheduling notarial responsible for the content it
verified legal act and its compliance with its constitutional documents
legal entity. The court conducts substantive examination only
constitutive registration in the Commercial Register, just in case
not a public document, which facts to be recorded
sufficiently corroborated, that means not accompanied by a notarial deed.

29th Intervener - Municipal Court in Prague, in which case
JUDr. Hana Albert, his response to the petition did not.

30th Observations of the parties was the petitioner and intervener
management sent note to file any reply.
Petitioner in his reply of 30 August 2006, which completed submission dated 10 November 2006
, insisted on their views included in the petition to annul the contested provisions
and also said that it is necessary to respect | || findings of the European court of human rights (hereinafter "the European court")
expressed regarding Credit and industrial Bank v Czech Republic, no. 29010/95
dated October 21, 2003, since it concerns a similar situation . Companies
General Meeting's resolution in the Commercial Register, in his opinion
direct, unavoidable reason for running ownership rights to shares
under § 183 liters Commercial Code (without such registration would prevent the transfer of ownership
). Therefore, the maximum spoken European Court, ie
. that would be about such matters to be decided in an adversarial and
public court proceedings, applies here in its entirety.

31st The Constitutional Court Petitioners dated August 30, 2006, including its
supplement dated November 10, 2006, he sent a note to participants
and the intervener. The petitioner then filing dated 8 January 2007
completed its draft of the argument in relation to the case
Constitutional Court, he specifically referred to the Constitutional Court resolution
25 March 2003 sp. Ref. IV. US 720/01 (http://nalus.usoud.cz) and
factor as conditions of a fair trial assessing the proportionality
tampering with the right of peaceful enjoyment of property. I supplement this proposal
Constitutional Court delivered participants and the intervener.
Participants nor the intervener filed a reply nor
delivered by supplementing proposal silent.

32nd On 13 May 2008 the Constitutional Court received a complete proposal
petitioner dated 7 May 2008. The petitioner pointed it at the two
legislative changes, which it believes it necessary to respond.
These are the changes that have occurred as a result of the entry into force of Law no. 377/2005 Coll
. (In addition to the proposal incorrectly stated the number 577/2005 Sb.)
On the supplementary supervision of banks, credit unions,
electronic money institutions, insurance companies and brokerage
Firms in Financial Conglomerates and amendments to some
other laws (Act on financial Conglomerates), and as a result of the new law
no. 104/2008 Coll. (In addition to the proposal incorrectly stated
number 208/2008 Coll.), On takeover bids and amending certain other Acts (the Takeover
). The petitioner in his extensive filing very closely analyzed
justification, including the reasons for rejecting the proposal of Senators
finding of the Constitutional Court. Nos. Pl. US 56/05, and proposes that the Constitutional Court
question the constitutionality of the contested provisions of § 183i et seq.
Commercial Code returned regardless of the decision in the case file. Nos. Pl. US 56/05 and
question the constitutionality of the right to purchase owing to the defaulting again
criticized.

33rd The Constitutional Court delivered supplement the petition, dated 7 May 2008
delivered to participants as well as an intervener. To complement its
draft statement delivered to the Constitutional Court on 11 June 2008 only
Senate of the Czech Republic, which described the procedure for adoption of the Act on Financial Conglomerates
and the Takeover Law.

34th Filing dated July 21, 2008 delivered a petition with the Constitutional Court
copy of the article author Marie Bartl at the European University Institute
, which was published in the journal Jurisprudence no. 3/2008 on
p. 4-14 and in response to the Constitutional Court dated 27 March 2008
sp. Nos. Pl. US 56/05. As the petitioner stated objective
article sent to the Constitutional Court for the promotion of existing arguments and
as an independent expert opinion. Even this submission to the parties and

An intervener delivered.

VI.

Course of negotiations

35th On January 10, 2007 held a public hearing Plenum of the Constitutional Court, which
petitioner gave a short journey to the President of the plenum in written form
supplement its proposal on 8 January 2007. Given that the Constitutional Court
or the parties may not have been
provide sufficient time for familiarization with the supplemented petitioner's arguments
was forced to adjourn the public.

36th The Constitutional Court order dated March 20, 2007, ref. No. Pl. US
43 / 05-242 proceedings in the matter of the petition interrupted.
Reason was the fact that the Constitutional Court under file concurrently. Nos. Pl. US 56/05
conducted further proceedings on the proposal to annul § 183i through § 183n
Commercial Code, which addressed the question of who could have
importance for decision under file. Nos. Pl. US 43/05. Therefore
Plenum of the Constitutional Court, guided by an interest in maintaining the correctness and fairness
management, management found an obstacle in plenary case file. Ref.
Pl. US 43/05. Given that in the case file. Nos. Pl. US 56/05 was the day
27th March 2008 decided fallen off obstacle for which the proceedings were conducted under
sp. Nos. Pl. US 43/05 interrupted. The Constitutional Court therefore
resolution of 2 April 2008 ref. No. Pl. US 43 / 05-255 ruled that the proceedings
continues.

Constitutional Court in accordance with the provisions of § 44 para. 2 of the Constitutional
Court asked the parties and the intervener, whether
agree to waive a hearing in a situation where the conduct of
We can not be expected to clarify the matter. With waive oral hearing
expressed written consent of Deputies and the Senate of the Parliament of the Czech Republic
and the intervener.
Petitioner at the hearing lasted regulation. Therefore, the Constitutional Court ordered a hearing
on the day of December 2, 2008. At this hearing the arguments
no more was heard because of Deputies and the Senate of the Parliament of the Czech Republic
his absence from the meeting in writing apologized intervener || | proceedings without any excuse and the petitioner without any further justification
apologized for his absence shortly before the hearing.

VII.

Consistency of the contested provision with the constitutional order

37th The petitioner in its proposal specifically argues that the contested provision
§ 200d paragraph. 3 of the CPC., As amended by Act no. 216/2005 Coll., Received
registry court in a position that even if he totally hands
convincing evidence that the content of the notarial deed is incorrect, incomplete or false
, this evidence can not be made and evaluated, but this shall
done, even without issuing any formal decision on this
registration. The contested provision, then in the opinion of the petitioner
conflict with the Constitution because if its application can not talk about
decision of an independent court.

38th The Constitutional Court of the general part of the explanatory memorandum to the draft law no. 216/2005 Coll
. We find that the basic aim of the proposed amendment was
total transformation of substantive and procedural law
Commercial Register. The existing concept of the commercial register link it
venerable modification and extension to before 1918
valid Austrian Commercial Code and related regulations, but also to new experiences
Germany and Austria. This concept is repeatedly justified the necessity
implementation of European directives and increasing the protection of third parties.
The proposed amendment to the law's emphasis on procedural change
editing entries in the Commercial Register, which is mostly
contained in the CPC. It was abandoned factual review and introduced the principle
registration (similar to Italy, Spain , United Kingdom, etc.)
registration court is entitled to examine the formal prerequisites
draft and partial cases also substantive, if they had not been submitted
notarial deed. A breach of legal certainty, not because the review
Forms of completeness and consistency between the documents and draft
guarantees the safety and accuracy of legal relations. Because of the tradition prevailing in the
Czech Republic, to unnecessary increase in transformation costs and
due to the overall design of the Czech legal order
standing on a public verification of legality, to keep the bill as court

Entity managing the entire agenda. New, albeit in Czech law
already used in European countries and a common method was the introduction of mandatory forms
with mandatory schedules. Management is essentially starts at the design and
positive decision of a commercial court makes a specific decision, but
ipso facto. In contrast, the proceedings initiated ex officio specific
decision requires. The decisive role was transferred to entrepreneurs
who, having access to all relevant resources and information
should be able to formulate a design that fully meets the requirements of the Act.
The adoption of the amendment should be accelerating the process of registration in the commercial register
, eliminating any additional management and overall
improve the business environment for Czech and foreign individuals and thus better
fulfillment of the rights guaranteed by the Charter.

39th In a separate section of the explanatory memorandum to the draft law no. 216/2005 Coll.
States that the registration court for clarity of the whole system,
protection of legality and to prevent misleading the public, formal proposal
examine whether it meets the requirements of the Act, whether the proposed company is not
confused or misleading under the Commercial Code and whether it is subject
business in accordance with the authorizations issued. In addition to the law expressly designated points
court is not authorized to carry out another inspection of incoming
draft, with the exception of § 200 db of the CPC. Registration court so
determine whether the application is made in accordance with the law to form as
the documents required and whether there is consistency between them. Helpful, albeit in a
a whole was also a strong argument wording of Article. 10
First Council Directive 68/151 / EEC of 9 March 1968 on the coordination of provisions to protect
interests of members and third parties laid down in Member States for
trading company within the meaning of Art. 58 of the Treaty on European
communities that a substantive review does nothing. In principle
Czech legislation could be formulated that would materially legal review
left entirely and would suffice only by notarial deed and
another intrusion of a notary who knows the existing legal order.
Unless it is possible to leave the substantive legal review altogether, then its partial preservation
there is nothing that would violate the principles or that would undermine legal certainty.
The proposed law may be based on a partial and conditional preservation
substantive examination because they continue recognizes fictitious legal entity and therefore
increased need to protect third parties, but the main reason is elsewhere.
This is the current conception of the Commercial Code and paradigmatic approach to doctrine
business law, which offset the trade register (register)
closer to the evidentiary preview of things more complex changes in business law.

40th From a comparative viewpoint, it should be noted that in the countries of the European Union
states have some legislation in the commercial register
separate law building on Civil Procedure, others are editing the code
business and others in the Civil Code.
Permitting entry in the register is also based entirely individual, both on principle
licensing and registration on principle. The procedure is conducted courts
recorders, administrative authorities or patent offices.
For example, in the Netherlands is registered at the Chamber of Commerce, which in the case
doubts about the legality of the desired entry turns to
(cantonal) court. In Germany, commercial register
always leads locally relevant register court according to the company headquarters.
Registration performs a higher court clerk or the judge. Judges are reserved
example the following tasks: the first registration, registration of changes in statutes that affect only the wording
statutes, change in social contracts erasure of defined grounds etc.
Commercial Register is kept electronically courts, is also important
role of notaries in certifying the facts relating to the processes
companies. In matters relating to squeeze-out the minority shareholders
given a specific type of procedure called. Spruchverfahren, which although
initiated the proposal, but the obligation of the petitioner's claim is limited to the circumstances
detectable from the report of the Board, the petitioner may not
quantify the specific amount and the like. In Switzerland, business register kept by
relevant commercial register (Handelsregisteramt)
each Swiss canton has its own office, where locally relevant companies
register. In Austria, the guidance system similar to the Commercial Register

As in Germany. Commercial register leads the appropriate provincial court and where it is headed
business index, is always set up a special court for
trade disputes. Even here, some acts carried a higher court clerk,
severe belongs judges. In the case of squeeze-out is secured by specific procedural institution
review adequate compensation in non-contentious proceedings,
in which the court shall proceed ex officio. In France and Spain
lead relatively independent commercial register a liberal profession
- registrars. In the UK leading commercial register
state office called. Companies House. Sweden leads the commercial register
so. Bolagsverket, which is the registration office of the Swedish company,
independently operating since mid-2004 (separated from the Office
patents). This institution is publicly funded and therefore
charge fees for their services. Performs substantially all acts
associated with management companies, such as writing, deleting, income
balance sheets, the decision to liquidate the like. In Finland, the leading business index
National Office of Patents and Registration of Finland. Business
index is based on the principle of publicity, the announcement
changes or new data sent to that office either by companies themselves or the courts.
As is evident from the above summary, business registers can be managed both entities
judicial, and others. If such a
a variety of reasons, the courts, in terms of performance atypical
extrajudicial powers.

41st As regards the case concerning the registration courts, the European Court
Justice ( "ECJ") in several of its decisions
comment on their character. For example, in HSB-Wohnbau GmbH (C-86/00) or in
Job Centre (C- 111/94), the ECJ refused to deal with the questions referred
raised by the district court in Heidelberg (Germany)
because it did not like the registry court for trial within the meaning of Art. 234 of the Treaty establishing the European Community
arguing that before it is fed
no dispute and called his office, which decides on the proposal for registration.
The ECJ has also refused to deal with questions raised by national courts
acting as administrative, not judicial organ - eg. In addressing the issue
cadastre (Doris Salzman, C-178/99) or
assessment of the issues raised in the dispute solved by private arbitrator
(Nordsee Deutsche Hochseefisherei GmbH Reederei Mond, C-102/81).
From the foregoing, the ECJ incorporation as
deposit in the Land Registry does not consider a decision resolving the issues
before an independent court, but the registration is deemed to be an administrative decision that
not lead to a decision, which has the character of a judicial decision.

42nd European Union standards regulate only commercial register itself, rather than
way of his leadership, which leave entirely to national
treatment. Generally, we can say that it was entirely up to the will of the legislature, for
such legislation for the Czech Republic also decided that kept
maintaining the register, even in the form of mainly administrative tasks on
courts. When leaving, the Czech legislator substantive rules in
Commercial Code and the procedural aspects of the CPC. And chose when to
registration introduction of. Registration principle, this can not be
legislation as such can be considered unconstitutional .

43rd Proceedings in matters of the commercial register is a special kind
non-contentious proceedings. Substantive rights, which are subject to such proceedings
governed mainly to § 27 to § 38 l of the Commercial Code.
Proceedings in matters of the commercial register is then governed by the provisions of § 200a et seq and
. the CPC. Commercial Register is a public list which entered
statutory data on entrepreneurs, foreign
persons and other persons for whom it provides law. This list includes
data, which are exhaustively listed in § 35 of the Commercial Code
, as well as other information specified in the law.
Amendment implemented by Act no. 216/2005 Coll. brought about a fundamental change in the way
initiate proceedings in the way of leadership and management in the manner and content
court decision. It was mainly to simplify the management itself
before the court, and refraining from substantive (material)
review a proposal to initiate registration proceedings. The transferral of responsibility for
correctness of the entries in the registered person has been weakened role of the court as

Guarantor of compliance with the laws of the minutes introducing formal review only
design assumptions.

44th Under the legislation referred to in the Act. No. 358/1992 Coll., On notaries and their activities
(Notary Act), as amended, in
provisions of § 80a paragraph. 1: "The notary writes at the request of a notarial deed
a decision of a legal entity, unless special legislation
acquisition of such an act requires registration, or if it is decided
of facts entered in the public directories, although specific legislation
acquisition of such an act does not require registration. "
According to § 80e paragraph. 1 notarial order," Where notary during
meeting of the legal entity which takes the decisions, which should be
notarial deed, that the conditions for acceptance | || decisions required by legislation or constitutional documents,
learn about the chairman and this fact in a notarial
registration. The same applies if the contents of the proposed resolution or resolutions adopted
contrary to law or the founding documents
. "As the Constitutional Court found a notarial deed dated September 9
2005 sp. Ref. NZ 214/2005, N 219/2005, in Art. III, Sec. 2, which is based on the file
Municipal Court in Prague under file. Ref. Rg. B 1563
notary JUDr. JK in the present case proved that at the General Meeting
business firms Testing, Inc., which was present
the formalities to which the company and its authorities are obliged
.

45th It is clear that the contested provisions of § 200d paragraph. 3 os
l., As amended by Act no. 216/2005 Coll., Significantly strengthening
responsibilities of notaries, who guarantee the legality of the negotiations preceding the adoption of the decision
of a legal entity. Notary scheduling
notarial record, which has the character of a public document (§ 134 of the CPC.)
Responsible for the legality of it verified legal act and its compliance with
founding documents of the legal entity. The provisions of § 200d Civil Procedure.,
Amended by Act no. 216/2005 Coll., Defines the range of cases in which
court decision allowing registration and which allows registration so that it performs
and so it provides when writing is performed without issuing
decision and the court decision authorizing registration shall be issued. The Court is therefore obliged
based on notarial deed, its substantive content
registration proceedings not examine if the content of its shows that
finding substantive conditions for the creation, modification or termination
recorded facts made the notary ( § 200d paragraph. 3 of the CPC., in
amended by Act no. 216/2005 Coll.), in the case of the petitioner and
sole party to proceedings is a businessman, whom the registration relates.

46th The issue of the registration proceedings, the Constitutional Court dealt in a row
its decisions. For example, in its resolutions of 24 January 2000, file no. zn.
III. US 360/99 and dated May 29, 2001 sp. Ref. II. US 361/99
(http://nalus.usoud.cz), the Constitutional Court concluded that in
registration proceedings are not decided about rights or obligations
shareholders, but only on the rights or obligations of the business
entity registered or enrollee in the commercial register;
shareholders of the company and are not parties to the registration proceedings.

47th Petitioner's objections are directed essentially to the fact that
according to the wording of the contested provision, § 200d paragraph. 3 of the CPC., As amended
Act no. 216/2005 Coll., The court is entitled to register only the facts stated
the notarial deed, is not objectively examine and decide
them. The grounds of the filed petition to annul the provisions of §
200d paragraph. 3 of the CPC., As amended by Act no. 216/2005 Coll., It may be inferred that the petitioner
quite subjectively "not accept" an established principle and registration
continues from the position of "judge" remains on the requirement
substantive examination of an application, including the implementation of evaluation of evidence.
Its argument the petitioner actually trying to eliminate or change
impact of existing legislation on the issue and she puts
Constitutional Court in the role of a positive legislature, which he, however, as follows from Article.
87 of the Constitution, which exhaustively defines its powers, it does not belong.

48th The petitioner's objection that it is necessary to respect the conclusions arrived at by
European Court in its judgment of 21 October 2003 in Case

Credit and Industrial Bank v Czech Republic, the Constitutional Court states that
in this case it was the introduction of receivership in the bank at the time
from 30 September 1993 to 31 March 1994. The Bank at the time of introduction
forced administration ceased to exist and the bank represented the forced administrator, who
was entered into the commercial register. The alleged breach of Article. 6 of the Convention
Bank argued that it had appealed to an administrative decision
Czech National Bank imposed receivership or subsequent administrative and judicial decisions
. The Court in that judgment pointed out that
"-There where (as in the present case)
decisions taken by administrative authorities which decide on civil rights and obligations, she
satisfy the requirements of Art. 6 of the Convention, necessary that such decisions are subject to subsequent control
judicial body with full jurisdiction, which
provides warranty protection for this article (see eg. Albert and Le Compte v Belgium
1983, Ortenberg against Austria, in 1994, against Bryan
United Kingdom, 1995). " The essence of the case was the lack of an effective
appeal against an administrative decision on imposing forced administration
. In this case, compared to a decision in the case
Credit and Industrial Bank is an entirely different case that can not be
on the matter apply. In the case of proceedings relating to the commercial register
namely, the petition and the application of the contested provision
§ 200d, par. 3 of the CPC., As amended by Act no. 216/2005 Coll., The court will assess
the proposal in terms of formal requirements.
Finds no obstacles when the judgment in the case, make an entry in the register
without issuing a decision. The registration proceedings with regard to the substantive law
notarial deed as a public deed is not review (§ 134 o.
S. R.) Unless its content implies that the findings of substantive law
conditions for the creation, modification or termination of the recorded facts made a notary (§
200d paragraph. 3 of the CPC., as amended by Act no. 216/2005 Coll.).
Design registration may not therefore indicate a decision is merely an act of the court (§ 36 and
seq. Of the Civil Procedure.). The nature of this operation, the court follows that
against him is not subject to appeal (there's no statement, with which he could
party dissent). Thing Credit and Industrial Bank v
Czech Republic to the present case therefore does not apply and link to it
Constitutional Court does not consider possible.

49th In addition to the proposal dated January 8, 2007
petitioner referred to the Constitutional Court resolution dated March 23, 2003 sp. Ref. IV. US 720/01
(http://nalus.usoud.cz), in which the Constitutional Court, in the opinion of the petitioner
undoubtedly considered the possibility of assessing the validity of the resolutions of the General Meeting
register proceedings in one of the procedural safeguards. This
Constitutional Court states that in the present case involved a dispute to determine
invalidity of the General Meeting resolution on transfer of assets to the "main shareholder
". The complainants were in proceedings before the Commercial Register
excluded (§ 200c of the CPC., In the version before the amendment by Act no.
216/2005 Coll.) And that, according to their statements, they were also effectively excluded from
nalézacího management, as their opponents struck off the Companies register
disappeared. The Constitutional Court in this case concluded that the decision of the Commercial Court
not be considered as any other public authority intervention
within the meaning of Article. 87 paragraph. 1 letter d) of the Constitution on the rights of complainants and stated that
"Filing an action for annulment of the resolutions of the General Meeting is not without further
automatic reason for interrupting proceedings, but is
registry court, respectively. in accordance with the then applicable legislation was that
reconsider whether, having regard to the reasons for the nullification of the resolution
contended, was appropriate proceedings. Court procedure chosen and was
accordance with applicable law, corresponded to the meaning and purpose
other related legislation, concerning the transformation of companies, aimed
without delay to allow the entry of these changes that || | occurs on a contractual basis of their companions, and with regard to the fact that
process of transformation of society, which is a serious intervention into existence
society is at a given moment with regard to its legal, economic and technical
zvratitelným difficult aspects of the process. Said
suggests § 131 paragraph. 4 and finally § 220h
Commercial Code, which since its registration in the Commercial Register is considered

Arisen situation as conclusive, even taking into account the interests of third parties,
which are preferred over the interests of their own shareholders.
Now with regard to this legislation, the Constitutional Court does not agree with
complainant that § 131 Sec. 8 of the Commercial Code that
complainant in general terms the alleged need for succession management
first issue and only on it undisputed control. The Constitutional Court does not find that
would be a transfer of assets to a single shareholder in relation to its
registration in the commercial register and the possibility of adversarial proceedings regarding
invalidity of the resolution of the general meeting discussed the situation is so different from other
transformation of society that in this case would take a different opinion
than in its previous decisions involving the same
issue, as well as in other cases, that from the moment
company registration in the Commercial register of the court has been expressed void
resolution of the General Meeting, even if it found ".

50th The Constitutional Court in the aforementioned resolution file. Ref. IV. US 720/01
further stated that: "The right to judicial and other legal protection guarantees
everyone to have their rights legally prescribed procedure for
independent and impartial court or, in specified cases, before another || | authority. It can not therefore be considered a violation or restriction cited
right to judicial protection in case the legislation, shareholders equity
companies are not parties to the registration proceedings, in a situation where
right to judicial and other legal protection they have been denied the right
with regard to § 131 in conjunction with § 220h, § 220k, §
220 liters and § 220p of the Commercial Code. Shareholders of joint stock company
can therefore assert their rights in an impartial and independent court of
different way than sympathy in registration proceedings (including the ability to apply
objections against the other parties subsequently also
Constitutional Court.) According to the Constitutional court's decision of the Commercial court
not unconstitutional restriction of property rights of complainants as
shareholders, since the possibilities of legal protection of their property rights associated with ownership
share them remain adequately maintained, despite
that alone share ownership does not guarantee shareholders
unchanging position, or absolute equality of shareholders, as the extent of shareholder rights
is derived from the number of shares of the same nominal value and the nature
nature implies the possibility of joint stock company "risk" changes the status of their associates
especially minority shareholders. The Constitutional Court has so
considers that the thus constructed legislation, ie. Inability to participate
shareholder register proceedings with reference to these other options
exercising his rights in different separate proceedings from the perspective of a
proportionality in the competition standing and ownership of them eventually
derived other rights of majority and minority shareholders, as well as their
nature of things arising different interests, their
constitutionally acceptable justification. In other words, it is possible in this direction in the context outlined
state mutatis mutandis
conclusions expressed in the resolution of the case file. Ref. IV. US 324/97 (Collection of Decisions, Volume 10,
resolution no. 8, p. 363), under rationis decidendi if someone
owns shares of a nominal value, this carries a certain risk status
consisting in a possible restriction or interference with property rights
. Measures that are directed to this state, but must
lead to a fair balance between the general interest and
imperatives to protect the fundamental rights of the individual.
So there must be a reasonable relationship of proportionality between the means employed and the
order (judgment of the European Court in the case Mellachen et al., 1989
A-169). "The Constitutional Court finds that the findings in the cited
resolution is no reason to deviate even in the present case, although in both cases
it is a somewhat different legal basis. Both proposals, however
joins effort petitioners addressed within the registration proceedings
their substantive rights provided by the Commercial Code.

51st The petitioner in the draft supplement dated January 8, 2007 also stated that
factor is the condition of a fair trial assessing the proportionality
tampering with the right of peaceful enjoyment of property, and therefore can not tear apart
substantive and procedural aspects of the right to purchase. According to

Petitioner's opinion assessing the validity of a resolution of the General Meeting in
registration proceedings has its own unique significance and is the only existing (and
effective, even if half-hearted) the possibility of reviewing the measures in the
due to an interference in property right. The Constitutional Court
states that that statement petitioner quite clearly that
himself petitioner is aware of the fact that the change itself
relevant provisions governing the procedure for the registration court while writing the changes to the business
register so that would be anchored mandatory judicial review
recorded facts, not able to remove the petitioner alleged deficiencies
treatment enshrined in the provisions of § 183i through § 183n
Commercial Code, as amended by Act no. 216/2005 Coll. From this one can conclude that
petitioner clearly goes under the guise of alleged unconstitutionality
contested § 200d paragraph. 3 of the CPC., As amended by Act no. 216/2005 Coll
., Regardless of its consistency with substantive editing
contained in the commercial Code, to change the provisions of § 183i through § 183n
commercial Code, as amended by Act no. 216/2005 Coll., regulating
right to purchase the securities. The Constitutional Court therefore considers
petitioner's claim of unconstitutionality of the contested provisions of § 200d paragraph.
3 of the CPC., As amended by Act no. 216/2005 Coll., Just because
substantive rules of squeeze-out is it seems
unconstitutional, misleading. Of the registration in the commercial register
not by the Constitutional Court in an appropriate or sufficient
tool capable of protecting the alleged affected the rights of shareholders.
The Constitutional Court has already, in its resolution file. . I. ÚS 185/98 (Collection of Decisions, Vol
no. 14 Resolution no. 35, p. 331) stated that: "In proceedings before
register court will not decide on the rights or duties || | shareholders, but only on the rights or obligations of a business entity registered or
enrollee in the commercial register. In case
that shareholder rights could be affected illegality of the decision
the basis of the relevant company registration occurs
law provides protection of these rights where it deems necessary, another
way. "

52nd The text of § 200d paragraph. 3 of the CPC., As amended by Act no. 216/2005 Coll
., Unequivocally, that after the adoption of the contested provisions
courts in cases stipulated by law has not examine the substantive legal requirements
applications for registration, but only assumptions formal
precisely defined by law and is thus an activity largely registration. The whole thing
Constitutional Court considers necessary to note that according to the existing legal arrangements
entities applicant for registration (hereinafter
"Participants") pays the notary fee for drafting a notarial act (Decree
no. 196/2001 Coll., on remuneration and compensations of notaries and administrators of the succession, in
amended). They also have obliged to pay even
competent court fee to initiate proceedings in matters
Commercial Register (Act no. 549/1991 Coll., On Court Fees,
amended). This is therefore paid operations, without whose fulfillment can not be
registration done. Participants then
legitimately expect that if all the statutory conditions for
design registration, including the connection to the relevant notarial deed
certifying compliance with the resolutions of the General Meeting
relevant legal provisions can be no doubt that the set conditions to registration
been fulfilled and registration can be made.

53rd The standard legal instruments as the European constitutional courts and international courts
respectively. multinational (cf.
numerous rulings of the European Court and the ECJ), belongs to a proportionality test which courts
used, among other things. when assessing a conflict with the public interest
individual rights or freedoms. In its judgment of 13 August 2002 sp. Nos. Pl.
US 3/02 (Collection of Decisions, volume 27, judgment no. 105, pp. 177, promulgated under no.
405/2002 Coll.) The Constitutional Court with reference to the preamble and the first article of the Constitution stated
that in cases of conflict between fundamental rights and freedoms with
public interest, respectively. with other fundamental rights or freedoms "-is
necessary to evaluate the purpose (aim) of such interference in relation to used
resources, the measure for this evaluation is the principle

Proportionality (in the wider sense), which can also be
called a ban on excessive interference with rights and freedoms.
This general principle contains three criteria for assessing the admissibility of interference.
The first of these is the principle of the capability of meeting the purpose (or suitability)
according to which the relevant measure must be capable of achieving the intended
objective of protecting another fundamental right or public good.
Next is the criterion of necessity, under which it is permitted to use only the least intrusive
- in relation to the affected fundamental rights and freedoms
- of several possible means. The third criterion is
principle of proportionality (in the narrower sense) under which detriment in a fundamental right
must not be disproportionate to the intended objective, ie.
Measures restricting fundamental human rights and freedoms may not, in the case of
collision fundamental right or freedom with the public interest, the negative consequences
exceed the positive, which represents the public interest in these measures
".

54th The Constitutional Court has considered that the design registration without issuing
decision, provided that the registered fact, have a basis in
attached notarial deed and provided that the party is only
entrepreneur and that the implementation of such registration designed, as is apparent from
already cited the general part of the explanatory memorandum to the draft law no. 216/2005 Coll
., certainly a legitimate aim, as the basis for the proposed amendment was just
total transformation of substantive and procedural law | || Commercial register and the result of the amendment to be acceleration
process of incorporation, the elimination of any other
management and improve the overall environment for business
Czech and foreign individuals and thus better fulfillment of the rights guaranteed by the Charter.
Performing direct writing in the registration principle and honor demands
eligibility criteria of meeting the purpose (or suitability)
according to which the relevant measure must be capable of achieving the intended
objective of protecting another fundamental right or the public interest.
Contested provision is capable of living up to Art. 36 para. 2 of the Charter
and ensure judicial protection of rights, which could be related to
affected by registration. This objective can be achieved without judicial review
because the mandatory form of a notarial deed attached
guarantees the accuracy of the facts recorded in the register. A goal that the contested provisions
monitors therefore appears legitimate.

55th However, further examine the necessity must be the chosen means of
terms of its sustainability in relation to fundamental rights, which, in the opinion of the petitioner violated
ie. The right to a fair trial and
principle of judicial independence. In this context the Constitutional Court recalls that the basic purpose
business register is to ensure transparency
business life, accessible to everyone interested all data
trader, which are important for the credibility of the terms of its ability
and will meet existing and future obligations.
The Commercial Register essentially seeks to register persons acting in
business relations. The European Union is built around the idea while
free competition and the rule of law. In line with evolving
to legislation and case law in the European Union in connection with the management
Commercial Register seen a shift to fulfill its functions in
mere registration of business entities, the substantive examination should be
abandoned a decisive role should be transferred to
entrepreneur who should be able to formulate a design that meets the requirements of the Act
. In light of the foregoing fully stand up to the second scale
principle of proportionality, it is a necessity of the means chosen.

56th As regards the third criterion, ie the criterion of proportionality (in the narrower sense
), the Constitutional Court found that the contested provisions of § 200d
paragraph. 3 of the CPC., As amended by Act no. 216/2005 Coll., In comparison with other
measures which permit achieving the same aim, unconstitutional procedure
restricting the right of the petitioner or the parties to the registration proceedings
fair trial or was contrary to the principle of judicial independence.
Legislature had obviously discretion to decide whether the docks direct entry into the commercial register
and was yet obliged to ensure that the chosen

Approach was based on objective and reasonable grounds (a legitimate aim
legislature) and that between that aim and the means of achieving
(legal advantages) there is a proportional relationship. The Constitutional Court recognizes that
recodification of the Civil Procedure Act no. 216/2005 Coll.
meant a substantial change in the concept of keeping the commercial register, these changes
relation to the contested provision does not in any way conflict with
adequacy of the resources used. According to settled case law of the European Court
not under Art. 6 Sec. 1 of the Convention to create new substantive rights
lacking a legal basis in the state, but
provide procedural protection to the rights recognized by national law, while the article itself
itself, not the rights and obligations hedged
law of the Contracting States is no specific substantive content.

57th The Constitutional Court did not find that the provisions of § 200d paragraph. 3 of the CPC.,
Amended by Act no. 216/2005 Coll., The principle of proportionality in relation to the investigation
all three components violated, or that would result in his
application constituted an abuse of rights protected under the constitution.

'58. With regard to the petitioner's claim on violation of the principle of independence of the judiciary
contested provisions of § 200d paragraph. 3 of the CPC., As amended
Act no. 216/2005 Coll., The Constitutional Court states that the principle of judicial independence
it is one of the fundamental constitutional principles. In the Czech Republic
judicial power exercised in the name of the Republic by independent courts and
according to the express wording of Art. 81 of the Constitution. In Art. 82 para. 1
Constitution also guarantees the independence and impartiality of judges in the exercise of judicial
mandates. The basic principles of judicial proceedings are then governed by the Constitution and the Charter
which in its provisions defining the powers of the judiciary
(see Art. 4 and Art. 81-96 of the Constitution) and the minimum standards of compliance
fundamental rights and freedoms of participants judicial proceedings, including
constitutional right of everyone to judicial and other legal regulations and due process
(see pp. 36-40 of the Charter). All parties to judicial proceedings shall have equal rights
court (see Art. 96 para. 1 of the Constitution), and regardless
their form and position in society. Making independence
general courts will then take place in the constitutional and legal procedural and substantive framework
. The procedural framework are primarily
principles of due and fair process, as set out in Art. 36
Charter, Art. 6 Sec. 1 of the Convention as well as Art. 1 of the Constitution.
Right to a fair trial under Art. 36 of the Charter is an expression of one of
fundamental principles upon which the democratic state of law based on
respect for the rights and freedoms of man and citizen (Art. 1 of the Constitution).
Protection of these rights is constitutionally entrusted primarily to general courts (Art. 90 of the Constitution
), while exercising their jurisdictional powers are bound by law
(Art. 95 para. 1 of the Constitution), both in tangible as well as procedural
law whose provisions (for efforts to protect the rights)
define a set procedure, which is not bound by the party to the court proceedings, but also the general court of
himself. The application of these procedural rules by the ordinary courts, or their interpretation
as formal (procedural)
presumption of legality of the decision must therefore always be with the constitutional principles in concert.

59th The fact that the court examining the conditions for the entry is made only from
formal terms, it is not contrary to the principle of judicial independence (Art.
81 and 82 para. 1 of the Constitution) does not violate the right to a fair trial under Article
. 36 of the Charter. The Charter provides the court (procedural)
protection only to the law that the parties law (substantive law)
guarantees. The purpose of this provision is to provide the right to a fair trial
to exercise its right, a right which the legislature
participants as a subjective right guarantees.
According to settled case law of the Constitutional Court would be a violation of the right to a fair trial
under Art. 36 of the Charter occurred if anyone would be denied the opportunity
seek their rights before an independent and impartial court. Within the meaning of Art. 6
paragraph. 1 of the Convention would breach the right to a fair trial occurred
if it would violate the right to discuss the matter of the party
fair and public hearing within a reasonable time. The Constitutional Court did not reach a
conclusion that the contested provisions of § 200d paragraph. 3 of the CPC., As amended
Act no. 216/2005 Coll., Thus declared in violation of the right to

Fair trial guarantees every legal and constitutional order
adequate assessment of the law and with full respect
provisions of § 95 para. 1 of the Constitution, according to which a judge is deciding
bound by the law and international agreement which is part of the law.

60th The Constitutional Court is of the opinion that the contested provisions of § 200d paragraph. 3 o.
S. r., as amended by Act no. 216/2005 Coll., does not conflict with the requirement
so. full judicial jurisdiction as alleged by the Claimant.
Protection of entrepreneurs against unwanted entries in the Register because
adjusted in case of fiction writing in § 200 db paragraph. 4 of the CPC.,
Amended by Act no. 216/2005 Coll., On whose diction is
entrepreneur and those who are under a special regulation entered in the register within
enrollment entrepreneurs may, within one month from the entry of the claim in the Commercial court
deletion or modification of the registration.

61st Appellant submitted his proposal to annul § 200d paragraph. 3 os
l., As amended by Act no. 216/2005 Coll. justified by claiming that the contested
provisions of the Code of Civil Procedure is in his opinion inconsistent with
right to a fair trial and contravene the principle of judicial independence
enshrined in Art. 81 and Art. 82 para. 1 of the Constitution. The Constitutional Court contradiction
contested provision with the constitutional system not found.
Beyond the petitioner's arguments, the Constitutional Court considered whether the legislation at issue
unconstitutional way interfere with property
rights and concluded that minority and majority owners have
available means of legal protection
guaranteed substantive provisions of the Commercial Code (provisions of § 183k paragraph.
1 of the Commercial Code) and therefore property rights of owners of equity securities
not affected. The protection of property rights in connection with
application of the provisions of § 183i through § 183n of the Commercial Code, the Constitutional Court
detail expressed in Judgment file. Nos. Pl. US 56/05
(http://nalus.usoud.cz).

62nd If the contested § 200d paragraph. 3 of the CPC., As amended by Act No.
. 216/2005 Coll., Court imposes upon fulfillment of conditions stipulated by law
registration in the commercial register in the context of non-contentious proceedings and
Constitutional Court found in connection with the application of this provision
its conflict with the constitutional order, not in the light abovementioned than conclude that
there are no grounds for the annulment of the contested provisions.

63rd The Constitutional Court therefore a proposal for repeal of § 183i through § 183n
Commercial Code, as amended by Act no. 216/2005 Coll., Pursuant to the provisions
§ 43 paragraph. 2 point. b) in connection with § 43 paragraph. 1 point. c)
Act, the Constitutional Court rejected a petition filed by someone apparently unauthorized
a proposal to annul § 200d paragraph. 3 of the CPC., in
amended by Act no. 216/2005 Coll., now of § 200d par. 4 Act no.
99/1963 Coll., Civil procedure Code, as amended,
according to § 70 par. 2 of the Constitutional court.

Chairman of the Constitutional Court:

JUDr. own hand