On The Proposal To Repeal § 48 Par. 2 Of The Civil Code

Original Language Title: ve věci návrhu na zrušení § 48 odst. 2 občanského zákoníku

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309/2007 Coll.

Constitutional Court
On behalf of the Czech Republic

Plenum of the Constitutional Court decided in the composition of Stanislav Balik, Frantisek
Duchon, Vlasta Formánková, Vojen Güttler, Ivana Janu, Vladimir Kurka, Dagmar
Lastovecká, Jan Musil, Jiri Nykodým, Pavel Rychetsky, Miloslav
Excellent , Elizabeth Wagner and Michael Židlická, on the proposal of the Supreme court
Czech Republic to annul § 48 par. 2 of Law no. 40/1964 Coll., Civil Code


I. The petition is denied.

II. Withdrawal from the contract pursuant to § 48 par. 2 of the Civil Code -
unless the law or the parties otherwise agreed -
contract since been void, but only with effect among its participants.
Ownership rights of other licensees if their property rights were acquired in good faith
before there was a withdrawal, is protected in accordance with Article.
11 of the Charter of Fundamental Rights and Freedoms and the constitutional principles of legal
certainty and protection of acquired rights spring out from the notion of a democratic
law within the meaning of Art. 1, paragraph. 1 of the Constitution, and does not expire.


First On 20. 10. 2006 the Constitutional Court received the petition under § 64 paragraph
. 3 of Act no. 182/1993 Coll., On the Constitutional Court, as amended
amended (hereinafter "the Constitutional Court Act"), which the Supreme Court
Czech Republic (hereinafter the "Supreme Court") , represented by JUDr. George
Spáčil, sought the annulment of § 48 par. 2 of Law no. 40/1964 Coll., Civil Code
. The petition was filed in connection with proceedings that
before the Supreme Court of the Czech Republic takes place under sp. Ref. 22 Cdo 3177/2005.

Second The wording of the contested provision of the Civil Code is as follows:

§ 48

(2) Withdrawal from the contract is canceled from the beginning, or, if a legal
provided by law or the parties agreed otherwise.

Third Supreme Court decisions in proceedings under file. Ref. 22 Cdo 3177/2005 of
appeal against the judgment of the Regional Court in Usti nad Labem - branch office in Liberec
(hereinafter "the Regional Court") dated 28. 4. 2005, Ref 29 What
312 / 2004-152, as amended by Amending Resolution dated 27. 10. 2005, Ref
29 Co 312 / 2004-165. The matter lies in the fact that the plaintiff (seller) sold on 5
1, 1993, real estate Autoclub Desna in the Jizera Mountains
(buyer I). Even buyers without the seller to pay the price
75.000, - CZK, later, with the consent of the seller transferred the day 4. 5. 1994
such property to the defendant (buyer II) for a purchase price 142,096.20 -
CZK. However, the seller to the buyer withdrew from the contract I
for non-payment of the purchase price, claiming that his property restored
no matter what the court decision cited above, dismissed the action as
came out of the legal opinion, according to which withdraw from the real estate transfer
can have effects only between the parties to the contract and can not affect
to lawfully acquired property right of a third party. This legal opinion
regional court also leaned on the Constitutional Court on 23 1st, 2001, sp.
Brand. II. US 77/2000, and the judgment of the Supreme Court dated 17. 11.
1999 sp. Ref. 22 Cdo 1186/1998.

Fourth Against the judgment of the Regional Court dated 28. 4. 2005 by selling
appeal, in which he declares that he owns the disputed property
while challenging the appellate court opinion, according to which it was not found
that the defendants have not acquired the relevant property in good faith.
Subject as appellate proceedings should therefore act the question of whether the proceedings
facts come to light exclusive of the good faith of the defendant as
purchasers of real estate. Meanwhile, developments in the case
did question the good faith of the acquirer irrelevant, just as the question of whether the transferee -
buyers II - duly acquired property from a buyer I, whose legal predecessor
later withdrew from the contract pursuant to § 48 paragraph. 1
civil Code. For the situation would rightly
appellate court decision to cancel regardless of whether the defendants properly
acquired ownership right or not; due to the withdrawal from the seller to the buyer of the contract
I would have terminated their ownership rights.
Such an approach to the matter, however, would in the opinion of the Supreme Court in
contrary to Art. 1, Art. 2 of the Constitution of the Czech Republic (the "Constitution")
because the tying of duly acquired property rights
legal acts of third parties to whom the owner had no effect. This would occur

Serious disturbances proprietary security as part of legal certainty, which
is a fundamental attribute of the democratic rule of law.

Fifth In its submission, the petitioner refers to the fact that the Supreme Court
Czech Republic in its decision dated 17. 11. 1999 sp. Ref. 22 Cdo 1186/2000,
legal opinion, according to which "Where the transferor who owns
property, this property is transferred to the ownership of the acquirer, not apostasy
additional legal grounds under which the transferor
became the owner of a thing void property acquirer that
property acquired in good faith. ". Also, the Constitutional Court then this
considered correct, as is apparent from the judgment of 23. 1. 2001 sp.
Brand. II. US 77/2000. On 28 6th 2000 has civil and commercial
Collegium of the Supreme Court adopted the opinion Cpjn
38/1998 on the interpretation of provisions of law no. 265/1992 Coll., On the registration of ownership and other
titles to real estate in which it stated that "
the withdrawal from the contract, unless statutory or otherwise agreed by the participants
, the contract is canceled from the beginning (§ 48 par. 2 of the civil Code).
Addressed this unilateral legal act, the effects
transfer the property to the buyer and restores the original state, that the law is
restores the right of ownership of the transferor. Subsequent registration of property rights in the Land Registry
about this fact, given that the
restore the property rights of the transferor is the law, not
constitutive effects and no deposit, respectively. deletion of the deposit, but
has only a declaratory effect and makes the record (§ 7 para. 1
Act no. 265/1992 Coll.). This conclusion applies even if the transferee
earlier than was withdrawing from the contract, the property transferred to another person, and this person
acquired property in good faith. "

6th In the case law of the Supreme Court after the adoption of the aforementioned
opinion began to apply the afore-mentioned legal opinion. Senate
22 Cdo Supreme Court, lingering on its original legal opinion
confirmed by the Constitutional Court and the prevailing legal theory presented
thing which was going to decide in accordance with the original
legal opinion the Grand Chamber of the civil Division of the Supreme court.
He suggested civil and commercial college take a position
adopted and published as no. 40/2006 Collections
judicial decisions and legal opinions with the sentence: "Withdrawal from the contract by
transfer of ownership of real estate terminates the legal title on the basis
became party to the treaty right of ownership, and restores the original state even in
where the purchaser, before undergoing withdrawal
property is transferred to another person. ". Well then i decided
Grand Chamber of the Civil Collegium of the Supreme Court (cf. Judgment of 14
6th 2006, Ref. No.. 31 Cdo 2808/2004, also available on www.nsoud.cz).
According to the opinion of the Supreme Court thereby to withdraw from the contract between
predecessors owner terminates its duly acquired
property rights.

7th In a situation where the senate 22 Cdo Supreme Court has no choice
interpretation of § 48 par. 2 of the Civil Code, than that which comes from
cited opinions of the Supreme Court, had no choice than to propose a Constitutional
court under § 109 para. 1 point. c)
Act no. 99/1963 Coll., Civil Procedure Code, as amended
amended (hereinafter the "Civil Code"), repeal of § 48 paragraph
. 2 of the Civil Code that the legislator would have the text
replace text corresponding to the Constitution, does not elicit the possibilities
different interpretations.


8th At the Constitutional Court filed in accordance with § 69 of the Act on
Constitutional Court, through its chairman Ing. Miloslav Vlcek statement
Chamber of Deputies of the Parliament of the Czech Republic. From the observations that it
contested provision was part of the government's draft Civil Code
which was submitted to the National Assembly of the Czechoslovak Socialist Republic as
print no. 156. The draft law was adopted at its 24th meeting
on 26. 2. 1962. stenographic record of the meeting states that
beginning of the meeting, according to the attendance list 264 deputies present.
During the vote on the entire bill was none against and no votes abstained
. Tackling, when restoring property rights

Original transferor of property that the contract on the transfer of property
resign even if his legal successor before
withdrawal from the contract, this property is validly transferred to a third party, gradually evolved
. Recently, this very serious issue
become a permanent problem, not only legal theory and judicial practice, but also
practice of the Supreme Court. On this topic has been written and said already
many different interpretations, so it is up to the Constitutional Court, in connection with the petition
22 Cdo Chamber of the Supreme Court resolved the stalemate

9th On behalf of the Senate of the Parliament of the Czech Republic to the given draft
expressed its chairman, MD. Premysl Sobotka, who said that the problem
withdrawal became current only in connection with the change
socio-economic environment. Regarding the effects of withdrawal from
agreement on the transfer of ownership, unable to practice
post-November to agree on the interpretation of the contested provisions of § 48 para. 2 of the Civil Code
. In cases where, in connection with the application of § 48 paragraph
. 2 of the Civil Code to transfer to a third party there does not acquire
problem sharpness; the legal status of a return to the original position without much difficulty
. In contrast, where the game enters the third (and each other)
Person, § 48 par. 2 of the Civil Code
confronted in its normative purpose with the new dynamics of economic relations.
Senate of the Parliament of the Czech Republic in its statement outlined a model situation
transfer of ownership to a third party, by pointing to the fact that
rational interpreter would undoubtedly fell into a trap if it had to join
argument leads to the idea restoration of property rights of the original owner
to the detriment of third parties. Thus minded interpreter would have to get used internally
with the idea that a third party has acquired a thing from the owner
but it was actually a non-owner. Another aspect associated with the application
§ 48 par. 2 of the Civil Code is seen in defining
among his addressees. Exercising the right of withdrawal
original owner of an interference in the legal relations of the parties
contract bequeathed. Unilateral exercise of the rights of the original owner
a contract between him and the original acquirer canceled. This act can not
legal effect on the regulatory environment Third, the legal relationship
no way outsiders, people. If this were to be had, and the result should be
restoration of property rights at the expense of the original owner
third person, it would perhaps be found in the law of appropriate positive
anchoring disposals of property rights of a third party. The dimensions of this
interpretation of § 48 par. 2 of the Civil Code grows
property right of a third party in a constant knot fearless. If
ownership right after the withdrawal of the original owner from the contract
attributed to a third party and if the withdrawal of the legal effect of the ratio of the original participants
contract is entirely appropriate also the effects of withdrawal
identified. In argumentative chain for further advancement
provisions of § 457 of the Civil Code, which serves the participants
contract, ie. The original owner and the original purchaser, there is a reason for canceling the contract
obligation to return all that by what it got.
The provisions of § 457 of the Civil Code is the normatively modulated
obligation as participants. According to settled theory
obligation corresponds to one second authorization. Original transferors as a result of canceled contracts
's entitlement to reclaim ownership of things from
original purchaser. If this is not quite possible for the party
under § 458 paragraph. 1 BGB cash compensation.
From the foregoing, in the event that withdrawal is the right of ownership
original owner recovered. There was no "clash of two
property" does not occur because the original owner only arises
receivable or entitlement to recover property rights, not
property right itself. In this light, it should also be regarded
protection of property rights (freedom) under Art. 11 of the Charter of Fundamental Rights and
Freedoms (the "Charter"). Given that the interpretation of Art. 11
Charter is subject to extensive constitutional case law, it can be stated: If
third party rightful owner, then it is constitutionally protected in its

Law against everyone and it can not compete with the "entitlement to acquire" ownership
rights of others. This conclusion seems to be so convincing that the law
case for withdrawal of the original owner from the contract or termination of ownership
third party is not expected. In other then the Senate of the Parliament of the Czech Republic states that
presented stance on the issue covered under § 48 par. 2 of the Civil Code
seems obvious, needless case
confront questions such substantive legal title vs. good faith. The question of good faith
works in different situations, existing civil law, and it is obvious that
good faith must remain a key instrument in matters of acquisition
property rights of non-owner.


10th The Constitutional Court first addressed the question of whether the petitioner, ie.
Supreme Court, entitled annulment of the contested provisions
lodge. He reached a positive conclusion. The petitioner stated that he must
contested provisions apply in civil proceedings, where it is bound by the legal opinion
civil and commercial law cases at the Supreme Court, which
however, in his view inconsistent with the Constitution and the Charter.
The present proposal of the Supreme Court related to his decision
activity, and therefore this is an authorized petitioner under Art. 95 para. 2
Constitution and § 64 par. 3 of the Constitutional Court.
Detecting the constitutionality of the contested provision of the Act has the nature of abstract control standards because
when evaluating the constitutionality of this provision, the Constitutional Court decides without
be discussed and examined one specific thing, which is the subject of proceedings before the ordinary courts
and which prompted the Supreme court to request
Constitutional court decision on the constitutionality of legislation, which is to be
particular case.

11th In application of § 68 para. 2 of the Constitutional Court that
Constitutional Court has, in addition to the review of the harmony under the Act or its
part with constitutional laws, to determine whether this was passed and issued within the bounds of constitutionally
provided jurisdiction and in a constitutionally prescribed manner.
Already in Constitutional Court dated 27. 10. 1999 sp. Nos. Pl.
US 10/99 (Collection of Decisions of the Constitutional Court (hereinafter "Collection
decision '), volume 16, judgment no. 150, promulgated under no. 290/1999 Coll., Also available on
www.judikatura.cz), the Constitutional court stated that in
legal regulations issued before the Constitution of the Czech Republic
no. 1/1993 Coll., the Constitutional court is authorized to review only
their consistency with the existing constitutional order, but
constitutionality of the process of their creation and observance of norm.
Contested provision of the Civil Code was not from the entry into force, ie. From 1
4th, 1964, and amended the Constitutional Court is thus limited only to
compliance of the content of the contested statutory provision with the constitutional order


12th The Constitutional Court then proceeded to examine the contested provisions of § 48 paragraph
. 2 of the Civil Code in terms of its compliance with the constitutional
order, especially with the rights and principles set out in Art. 1, Art. 2
Constitution, Art. 1, Art. 4, paragraph. 4, Art. 11 of the Charter. After considering itself
petition to annul § 48 par. 2 of the Civil Code,
respective opinions on this proposal and consideration of the issues involved from the perspective of the plane
constitutional Constitutional Court came to the conclusion that despite any reservations
the current legislation withdrawal is not
proposal to repeal this provision for its alleged inconsistency with the Constitution and the Charter

13th According to § 44 par. 2 of the Constitutional Court, the Constitutional Court
consent of the parties waive a hearing, unless from him
expected to clarify the matter. As the parties have expressed their
agreement to waive a hearing and Constitutional Court has held that since
negotiations can not be expected to clarify the matter, a hearing in the matter was waived

14th The petitioner in his submission, the Constitutional Court draws attention to the ambiguity
§ 48 par. 2 of the Civil Code, respectively.
to the existence of two competing interpretive alternatives
contested provision of the Civil Code, which without doubt, this does not solve the issue
effects of the withdrawal of the transfer of property, whether movable or immovable,
on the property of a third party meanwhile thing acquired. This
petitioner Constitutional Court refers to case law of the Supreme Court and

Constitutional Court, which shows inconsistency, whereby concludes that
22 Cdo Chamber of the Supreme Court no choice but to propose the abolition of the Constitutional Court
§ 48 para. 2 of the Civil Code that the legislator should his
amended to replace the text of the Constitution and does not elicit adequate
possibility of different interpretations. With regard to the steps
The approach, however, the Constitutional Court must at the outset that selects if a general court procedure within the meaning of Article
. 95 para. 2 of the Constitution and § 64 par. 3 of the Constitutional Court, the Constitutional Court
task of dealing with propriety, respectively.
perfection wording of the contested legislation, but only to determine whether a statute which should be
general court when judging a matter of using, or not inconsistent with the constitutional order
(cf. Constitutional Court judgment of 3. 2nd 1999 sp.
Nos. Pl. US 19/98, Collection of decisions, volume 13, judgment no. 19
promulgated under no. 38/1999 Coll., also available on www.judikatura.cz ). When
decision under Article. 87 paragraph. 1 point. a) of the Constitution, the Constitutional Court
based mainly on the principle of constitutional interpretation and application of legal
legislation, which raises the consequence that "In a situation where certain
legislative provision allows two different interpretations, with
one is in accordance with the constitutional laws and international treaties under Article
. 10 of the Constitution and the other is inconsistent with them, there is no reason
repeal this provision. When the application is the responsibility of all state bodies
interpret that provision in a constitutional manner. "(Cf.
finding of the Constitutional Court dated 8. 10. 1996, Ref. Nos. Pl. ÚS 5/96, Collection
decision No. Vol. 6, judgment no. 98, promulgated as no. 286/1996 Coll .;
also available on www.judikatura.cz).

15th In the case now under consideration, the Constitutional Court focused on examining whether
§ 48 par. 2 of the Civil Code can be interpreted and applied
constitutional manner, which would indicate that its abolition
not necessary. Otherwise, if his constitutionally consistent interpretation and application
maybe not, if the Constitutional Court had no choice but
contested provision of the Civil Code repealed.

16th Purchase agreement, as one of the acquisition titles within the meaning of § 132
Civil Code has a legally dogmatic basis in Roman law.
Emptio - venditio here as synallagmatically liability whose
scandal is the transfer of uninterrupted tenure (habere Licerata). Transfer of ownership then followed
comes up positive prescription. The mutual rights and obligations of the parties
obligations are defined by two personal actions (actiones in personam) and
tend to settle various claims, which belongs
payment of the purchase price, delivering the object of purchase, liability for defects and a range of | || others. Creates a legal right on the part of the buyer is then connected with the Institute

17th On the basis římskoprávní conception took place in modern times
extensive scientific debate, which in the 19th century resulted in doctrinal teaching.
Original property of the Roman emptio - venditio when the transition occurs right in rem
usucaption up on the side of buyers, has been overcome, the awareness of both layers
purchase agreement was reflected in the doctrine of the title and mode.
Is so distinguished legal ground (Iustus titulus) and legal method of acquiring property
(modus adquirendi dominii) (cf. Comment on the provisions of §
380, 424 and 425 of the Civil Code, Rouček / Sedlacek).
Within this concept, then, unless the law provides otherwise or unless otherwise agreed by the Parties
something else, a contract to transfer ownership
law is the legal reason for his transfer. The Treaty itself (titulus)
however, does not transfer rights, this must still proceed legally relevant
way acquisition, which is dependent on the nature of the subject of the transfer.
Contract on transfer of ownership and shall not effect the conversion (translation), but only
debenture, since it obliges the transferor to our property to the purchaser
another act that is legally recognized way
transfer of ownership, He transferred. In principle, so be distinguished debenture and translational effects
ownership transfer.

18th The purchase contract is therefore essentially based on two-step approach
translational bonds individually panelists dual legal conduct,
contract and transfer of ownership, the prerequisite
acquisition of ownership is cumulative fulfillment of both the competent
title and a corresponding mode. If the seller is converted to

Basis of valid title and ownership to the buyer mode Even without this transfer
conditional legal instruments věcněprávní nature, I
buyer becomes the owner of the transferred thing that is gifted to exercise all rights
arising from the nature of property rights - ius utendi,
fruendi, possidendi, abutendi, disponendi. If you derive from the law or from the contract
věcněprávní nature of something else, is completely on the buyer
I to ownership freely and fully transferred to another
entity, therefore the buyer II. Buyer II, who became the owner of
from the previous owner, the buyer I, can successfully invoke
protect its property rights under Art. 11 paragraph. 1 of the Charter, erga omnes
. Any subsequent legal actions of previous owners, and therefore
withdrawal, can not affect his property, since the time of the transfer
I was a buyer beneficial owner nevymínil If you
this otherwise transferred to the buyer II ownership rights in all its breadth
. No provision of the Civil Code, moreover, one could conclude that
if withdrawal is occurring to the extinction of all contracts related

19th The approach above considerations are also supported by the fact that when
withdrawal seller must also adapt to this negotiation
way to protect their rights. Appropriate claim based provisions of § 457 of the Civil Code
is entitled only bond, rather than substantive.
For this reason, it can not be performed according to § 126 of the Civil Code
and used proprietary action, but action for performance. The provisions of § 458 of the Civil Code
anticipates just those situations where the buyer
I is not objectively able to return the performance provided and imposes mandatory
provide monetary compensation. If there is a smooth transfer of ownership rights to the buyer
II, not the seller nor the buyer
I put no legal title on which they could rely on extradition proceedings.

20th In legal dogmatic and theoretical, while discretionary
current legislation, the Constitutional Court confirms the interpretation of § 48 paragraph
. 2 of the Civil Code, as it carried the Supreme Court in
decision dated 17. 11. 1999 sp. Ref. 22 Cdo 1186/2000, and
Constitutional Court judgment of 23. 1. 2001 sp. Ref. II. US 77/2000 (Collection
decision, volume 21, judgment no. 14), under which the withdrawal of the transfer
things can cause effects only between the parties hereto and
not affect lawfully acquired property third party's right.
Well as comparative perspective brings Constitutional Court has come to an identical conclusion
because Dutch legislation (cf. Art. 271 of the Dutch Civil Code
), the German legal right (cf. § 892 paragraph. 1, § 929
BGB) and the Austrian legislation (cf. § 367 of the Code of civil
) protects both the rights of transferees of property rights.

21st The Constitutional Court, however, which is presently adjudicated matter entirely crucial,
further notes that, just the interpretation of § 48 par. 2 of the Civil Code
, advocated by the Czech Supreme Court in its decision of 17
11th 1999 sp. Ref. 22 Cdo 1186/2000, and the Constitutional Court in its judgment of 23
1, 2001, sp. Ref. II. US 77/2000, the interpretation of a constitutional
conformal, said ratings for the interpretation of the contested provision of the Civil Code
how this Supreme Court stepped in
judgment of 14. 6. 2006, sp. Ref. 31 Cdo 2808/2004, apparently does not apply.

22nd Constitutional assessment collision interpretive alternatives
relevant ordinary law, which were previously presented,
Constitutional Court based on the application of the principle of proportionality or reasonableness
in the wider sense which may also be called a ban on excessive interference
rights and freedoms. This principle is among
standard tools that democratic constitutional courts are used for solving the conflict
fundamental rights or constitutional protected
public goods, in norm control proceedings, as well as the management of
constitutional complaints. In to the matter, this concerns
collision ownership to a buyer II on the one hand, on the other hand,
legitimate expectations of the seller and the buyer I.

23rd The principle of proportionality is built on a three-step methodology.
The first step is to evaluate the suitability of simple law aspect,

Whose content is considering selected normative measure in terms
possible fulfillment of the aim pursued. Unless the normative measure
capable of achieving the objective pursued, it is the legislature of
manifestation of arbitrariness, which is considered inconsistent with the principle of the rule of law
. The second step is the application of the principle of proportionality assessment
simple law criterion of necessity, which involves an analysis of pluralism
possible normative means in relation to the intended purpose and their
subsidiarity in terms of restricting constitutionally protected values ​​- fundamental rights or public
farm. If it can be pursued by the legislature purpose
attained by alternative normative measures, then
constitutionally consistent one, which limits the constitutionally protected value to the smallest extent
. Pursues a simple law under review the protection of certain
constitutionally protected values, but simultaneously limits another
third aspect of the principle of proportionality, balancing, is the methodology
weighing these conflicting constitutional values. To draw a conclusion
collision of fundamental rights or the public good, as principles,
unlike the case of conflict of norms of ordinary law, the Constitutional Court
guided by the optimization, ie. Postulate of minimizing the restrictions on the basic
rights and freedoms, respectively. public good. Its content is
maxim that, under the circumstances of making a finding on the merits priority
one over another of two colliding fundamental rights or
public goods is a necessary condition for the final decision also
use all possibilities to minimize interference in one of them.
Command to optimize can be normatively derived from Art. 4 par. 4,
according to which fundamental rights and freedoms must be preserved when using
provisions on the limits of fundamental rights and freedoms, so, analogously also || | if they are limited as a result of their mutual collisions.

24th In accordance with the above Constitutional Court first examined the suitability
individual interpretations of § 48 par. 2 of the Civil Code, which made
Supreme Court in its decision dated 17. 11. 1999 sp. zn.
22 Cdo 1186/2000, and the Constitutional Court in its judgment dated 23. 1. 2001 sp.
Brand. II. US 77/2000 (cf. Paragraph 5 of the decision of the Constitutional Court
; hereinafter "interpretation A"), and the Supreme Court in its judgment of
14th 6. 2006, sp. Ref. 31 Cdo 2808/2004 (cf. paragraph 6 of this
decision of the Constitutional Court; hereinafter also referred to as "interpretation B"), in the direction
if so specified interpretation of § 48 para. 2 of the Civil | || Code that restrict certain fundamental right and constitutionally protected
value possible to achieve the objective pursued, namely the protection of different fundamental rights
or constitutionally protected values. According to the belief
Constitutional Court's interpretation and acts as an effective means of protecting the property rights of the buyer
II, the interpretation
B represents an effective means to protect the legitimate expectations of the seller and the buyer

25th Within the application criteria of necessity, the Constitutional Court interpretations of the subject compared
§ 48 par. 2 of the Civil Code
with other measures which permit achieving the same aim, but not affecting
fundamental rights and constitutionally protected values, while considered satisfactory | || principle of proportionality can be perceived only an interpretation that is more
least intrusive means possible in relation to the affected fundamental rights and
constitutionally protected values. For interpretation and postulate the need
filled, which itself stems from the need to preserve and protect
lawfully acquired property right buyer II. On the contrary interpretation B in terms of the criteria
necessity, from the viewpoint of subsidiarity possible alternative instruments
assurance that purpose, does not hold water. This interpretation is not
proportionate means which protect the legitimate expectations of the seller and the buyer
I can achieve sub-instruments that do not change ownership to a buyer
II and the non-limiting. Here
Constitutional Court considers mainly legal means věcněprávní nature that
sellers and buyers can I, as the parties to the treaty determines its
content into their negotiated contracts include.
Ensure the transfer of ownership to the point of receipt of the consideration by the seller along with
secondary contractual arrangements in the form of pre-emption suggestive

Seller is eligible to secure the protection of legitimate expectations
seller and buyer Even without being affected by the ownership rights of the purchaser

26th The Constitutional Court in the implementation of the principle of proportionality test ultimately
submitted to the above interpretation of § 48 par. 2 of the Civil Code
put forth the criterion of proportionality in the narrower sense, according to which the damage to
fundamental rights or constitutionally protected value must not be disproportionate | || intended destination, ie. an interpretation restricting fundamental human rights and freedoms
not have negative effects exceed the positive, which represents
protection of other fundamental rights and constitutionally protected values.
Constitutional Court, which assessed the severity of both protected values, ownership rights of the buyer
II and legitimate expectations of the seller and buyer
I do not seem to interpretation and content and disproportionate in light
generally acceptable hierarchy of values ​​and shared it not in the given context
reject. Interpretation that respects the constitutional order to optimize
. Interpretation B, the Constitutional Court found
measure disproportionate to its purpose, which is to protect the legitimate expectations of the seller and the buyer
Even when it is necessary to proceed from the fact that damage to the property rights of the buyer
II, that interpretation can B be linked,
is considerable. If it were allowed to be termination of the contract between the owner
predecessors, ie between seller and buyer I
was hit lawfully acquired ownership rights of the owner, a buyer
II, it would be a violation here the principle of legal certainty, which is
one of the basic attributes of a democratic legal state.
Viewing angle under this pillar of the rule of law is thus necessary to § 48 par. 2 of the Civil Code
interpreted, with the interpretation of the provisions
according to which the relationship between smluvci may occur again only between
smluvci , the only ensures ownership security as an important element
legal certainty. The opposite interpretation, according to which additional apostasy
legal grounds under which it acquired ownership either of
legal predecessors of the owner, the owner loses the right to property
although in contrast with this Article. 11 of the Charter and § 123 of the Civil Code
provide protection to the owner, undermines the whole concept of legal certainty and protection of acquired rights
, of course, but only those rights that have been
acquired in good faith, good faith when acting as a corrective
generally valid for civil law . In the event of acceptance of the interpretation of § 48 para. 2
Civil Code, as was declared civil
College of the Supreme Court, would the owner who acquired the property
derivative, could never be sure of his ownership, which concept || | substantive law clearly does not.

27th The Constitutional Court therefore naznal, on the basis of the proportionality test
carried out in paragraphs 24 to 26 that decision that interpretation B, thus
interpretation of § 48 par. 2 of the Civil Code made by the Supreme Court
Czech Republic in its judgment of 14. 6. 2006, sp. Ref. 31 Cdo 2808/2004,
interpretation is constitutionally unacceptable, since it does not meet the criteria
necessity and proportionality in the narrower sense. And the interpretation according to which
withdraw from the contract on the transfer of things can cause effects
solely between the parties to this agreement and can not affect the lawfully acquired ownership
third party's right, that interpretation of § 48 par. 2 of the Civil | || Code, as to that joined the Supreme court in a decision dated
17th 11. 1999, sp. Ref. 22 Cdo 1186/2000, and the Constitutional Court in its judgment dated
23rd 1, 2001, sp. Ref. II. US 77/2000, that the principle of proportionality
fully complies with the Constitutional Court assessed as conforming interpretation constitutionally


28th It may be accepted that the proposed repeal of § 48 par. 2
Civil Code would probably allow new legislation to formulate
perhaps even so, it would be removed ambiguity of this provision in relation to the now
examined issues. The Constitutional Court, however, in this context
must emphasize that the reason of unconstitutionality on which
basis it would be possible to revoke the contested provision of the Civil Code
fundamentally not possible interpretational difficulties
interpretation of the law. If the legal standard in some situations
does not provide a clear answer, it does not mean by itself that such a

Uncertainty was not necessarily unconstitutional. It is the general courts, which
are required to find the law, which means not only direct search,
specific and explicit instructions in the statutory text, but also identifying and formulating
what a specific law even where the a
interpreting abstract norms, constitutional principles and provisions of the Charter
obligations arising from international agreements. The space that interpretation and
its significance is undoubtedly greater where it comes to applying the statutory
regulations that are not entirely satisfactory, but not in its essence
nor unconstitutional. The Constitutional Court then, while respecting the principle
minimizing interference, can only repeat what has already ruled in its judgment of
3. 2. 1999 sp. Nos. Pl. US 19/98 that "
Of the many possible interpretations of the law is necessary in any case apply only
one that respects constitutional principles (if such an interpretation
possible), and to repeal provisions of the law unconstitutional
proceed only, unless the provision in question applied without violating
constitutionality (principle of minimizing interference). "(cf. Constitutional court of
3. 2. 1999, Ref. Nos. Pl . US 19/98, Collection of decisions, volume no.
13, judgment no. 19, published as no. 38/1999 Coll .; available also

29th The Constitutional Court therefore concludes that, in his opinion, which explained
Part V / b of this decision, there is a possibility
constitutionally consistent interpretation of the contested provision of the Civil Code, which the Constitutional Court
further notes that its case-law, namely the Constitutional court dated 23
1, 2001, sp. Ref. II. US 77/2000, from which conclusions
no reason to deviate even in the case now under consideration, provides sufficient guidance
to achieve a constitutional interpretation of § 48 par. 2
Civil Code. To ensure legal certainty
participants of civil relations, including their legitimate expectations, as well as
protection of property rights, the current wording of the statutory provision
suffice. From the perspective of de lege ferenda would be appropriate unambiguous wording
contested statutory provision, the Constitutional Court, however, can not be overlooked
decided that de lege lata, which is why he had to find that the provisions
§ 48 par. 2 of the Civil Code
not characterized as unconstitutional if its wording does not preclude the interpretation of the Constitution
fully conforming.

30th In light of the above circumstances the Constitutional Court found
proposal to annul § 48 par. 2 of the Civil Code justified, because it
according to § 82 para. 1 of the Constitutional Court.
Chairman of the Constitutional Court

JUDr. own hand

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