In The Matter Of The Application For Revocation Under The Social Security Act

Original Language Title: ve věci návrhu na zrušení části zákona o sociálním zabezpečení

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=74445&nr=177~2F2011~20Sb.&ft=txt

177/2006.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled under SP. zn. PL. ÚS 46/10 on 31 December 2004. May 2011 in

plenary in the composition of Stanislav Duchoň, Franz Package, Vlasta Formankova,

Turgut Güttler, Pavel Holländer, Vladimir Crust, Dagmar Lastovecká, Jiří

Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný,

Elisabeth Wagner and Michael April on the proposal of the Supreme Administrative

the Court for annulment of the provisions of § 104e (b). (b)) Law No 582/1991 Coll., on the

Organization and implementation of social security, as amended

regulations,



as follows:



(A) the provisions of § 104e. (b)) Law No 582/1991 Coll., on the organisation and

the implementation of social security, as subsequently amended,

repealed on the date of publication of this finding in the statute book.



Justification



(I).



The definition of things and a recap of the proposal



The Constitutional Court was on 8. November 2010 served the Supreme

Administrative Court (hereinafter referred to as "the applicant") for annulment of the provision of section

104e (b). (b)) Law No 582/1991 Coll., on the Organization and implementation of

social security, as subsequently amended.



The appellant did so according to § 64 para. 3 of Act No. 182/1993 Coll., on the

The Constitutional Court, as amended, (hereinafter referred to as "the law of

The Constitutional Court "), then what in the context of its decision-making

activities in accordance with art. 95 para. 2 of the Constitution of the United States and section 48 para.

1 (b). and) Act No. 150/2002 Coll., the administrative court rules, (hereinafter referred to as

"with the row with.") He came to the conclusion that the provisions of § 104e (b). b) of law No.

582/1991 Coll., on the Organization and implementation of social security, as amended by

amended to be in solving things SP. zn. 4 Ads 6/2010

used, it is in breach of article. paragraph 36. 2 of the Charter of fundamental rights and freedoms

(hereinafter referred to as "the Charter").



In that case, SP. zn. 4 Ads 6/2010 is the Supreme Administrative Court

decided on the appeal complaint against resolutions of the municipal court in Prague

of 14 July 1999. September 2009 No. 12 Cad 5/2009-1 to reject the action against

the decision of the social security administration District Prague-West of 19 May.

February 2009 No. 42010/220 9015 26.1.2009-1437/9/OM/3 on failure

requests for remission of penalty payments imposed pursuant to Act No. 586/1992 Coll., on the

social security and a contribution to State policy

employment, as subsequently amended.



At the outset, the appellant points to the basic argument of the odmítacího resolution

Municipal Court in Prague, which was a voucher to the provisions of § 104e (b). (b))

Law No. 582/1991 Coll., on the Organization and implementation of social

security, as amended, the exclusive judicial review in

cases of remission of penalty for non-payment of social

Security. In the next article for the assessment of the relevant

the provisions of podústavního rights, section 104ch of Act No. 582/1991 Coll., on

as amended, Decree No. 157/1998 Coll., on the remission of penalty

social security, as amended by Decree No 329/2007 Coll., section

70 (a). f) with a row with. and § 104e (b). (b)) Law No 582/1991 Coll., as amended by

amended. The Rapporteur draws attention to the development of the case-law

The Constitutional Court, when in the case law adopted before the effective date of the order

the administrative [resolution SP. zn. I. ÚS 287/2000 of 27 November. 9.2000 (35/19

SbNU 311)] took up the Constitutional Court reserved its opinion on the Court

review of administrative discretion in the cases of remission of penalty for non-payment

social security contributions. From the perspective of the Constitution then

He argues the current case-law of the Constitutional Court [find SP. zn. III. THE TC

2556/07 of 22 March. 7.2009 (N 164/54 SbNU 93), resolution SP. zn. III. THE TC

103/06 of 23 December 2003. 1.2007 (in the collection of the findings and resolutions of the Constitutional Court

not published; available at http://nalus.usoud.cz), resolution SP. zn. IV.

TC 2323/07 of 13 March 2002. 11.2007 (11/47 SbNU 1047), resolution SP. zn.

IV. TC 1136/08 dated March 17. 4.2009 and resolution SP. zn. I. ÚS 398/09 from

17 May. 6.2009 (in the collection of the findings and resolutions of the Constitutional Court

nepublikována; both available at http://nalus.usoud.cz)], in which it repeatedly

He expressed the need for a judicial review of the decision on the remission of tax under section

55A of Act No. 337/1992 Coll., on administration of taxes and fees, as amended by

amended, (hereinafter referred to as "tax code"). The Supreme Administrative Court

considers that the procedure of the administrative authority in the remission of penalties under the

Act No. 582/1991 Coll., as amended, and pursuant to section 1 (1).

1 of Decree No 161/1998 Coll., on penalties cancellation of social

security, as amended by Decree No 329/2007 Coll., is no different from the procedure

administrative authority in the remission of taxes due to the removal of accessories

hardness. In both cases, constitutes the obligation to pay

Accessories, respectively. tax penalty hit to the realm of property of the participant,

until its ownership rights pursuant to art. 11 (1) 1 of the Charter, and at the same time

and interference with the right to peaceful use of property within the meaning of article 87(1). 1 Additional

Protocol to the Convention on the protection of human rights and fundamental freedoms, and

remission of the penalty, as is the remission of the tax means accessories

reverse this action. Compliance with the request for remission of tax (its

accessories), as well as the penalties for non-payment of social

security, according to the administrative discretion of the petitioner's administrative

the authority, which in both cases is the subject of the management the assessment of other

the facts (the hardness of the Act), that led to the assessment of the accessories

tax or social security contributions to the State

employment policy.



Of all the reasons proposed thus landed the Supreme Administrative Court

(a) the provisions of § 104e. (b)) Law No 582/1991 Coll., on the organisation and

the implementation of social security, as amended, for

conflict with the article. paragraph 36. 2 of the Charter to cancel.



II.



Recap the essential parts of the representation of a party to the proceedings



According to § 42 para. 4 and section 69 of Act No. 182/1993 Coll., on the Constitutional Court, in

as amended, posted by the Constitutional Court of the present proposal

The Chamber of Deputies. In its statement, delivered to the Constitutional Court of the day

December 22, 2010, President of the Chamber of deputies of the Czech Parliament

Republic Miroslava Němcová States that the provisions of § 104e was to act

No 582/1991 Coll. incorporated by Act No. 586/1992 Coll., amending and

supplementing Act of the Czech National Council No. 582/1991 Coll., on the organisation and

the implementation of social security, and some other laws, with

the current wording of the provision was inserted into the law No.

582/1991 Coll., the Act No. 151/2002 Coll., amending certain laws in the

connection with the adoption of the administrative judicial procedure. Act No. 151/2002 Coll.

the Chamber of Deputies was presented to the Government on 1 May 2004. October 2001 as

Assembly print # 1081. In the explanatory memorandum, the Government expressed the belief,

that the proposed adjustment is in line with the constitutional order of the Czech Republic and

international treaties by which the Czech Republic is bound. To the contested

the provisions of the Government in the explanatory memorandum that remission of penalty payment is

measures, which may, pursuant to section 104ch of Act No. 582/1991 Coll.

to make the Ministry of labour and Social Affairs due to the removal of

the hardness of the Act, and for the same reason it can waive the penalty whether or not United

the social security administration or the district administration

security to the extent and under the conditions laid down by Decree No 161/1998

Coll., is dated on the basis of the mandate contained in the abovementioned legal

provisions. The exclusion of judicial review of the legality of this decision on the

remission of penalties the Government has proposed, therefore, that this is a procedure which has

its material essence of an extraordinary character, since its content is

implementation of the authorization of the administrative authority to exceed the framework set out in General

substantive editing and its decision to get rid of someone buying performance

to him, the law of obligations. On the conception of the exclusion of judicial review

led Government just an anomaly of this type of control.



President of the Chamber of Deputies stated further that the first reading of the House

printing took place 25.1081 October 2001, constitutionally the legal Committee then print

discuss on my 97. meeting on 18 July 2005. January 2002, and recommended

The Chamber of deputies that the Bill adopted in the wording of its comprehensive

the amendment, which took over the diction of the provisions of § 104e, as amended by

submitted to the Government. In the second reading, which took place from June 30. January

and 8. February 2002, was not subject to the provisions made no

amendment. The Chamber of Deputies adopted the Bill in the third

reading on 15 December. February 2002 the ratio of 159 149 votes to present

members of Parliament. Representation contains information about the course and

the legislative procedure, according to which the Senate approved the Bill on 21 February 2006.

in March 2002, the President signed it 26. March 2002, and the Prime Minister of the day 2.

April 2002; in the collection of laws, the law was published on 17. April 2002 under the

number 151/2002 Coll.



Finally, the statement notes that Act No. 151/2002 Coll. was adopted

After the completion of the legislative process, duly signed by the competent

constitutional officials, and declared in the collection of laws, as well as expresses


is of the opinion that the legislature acted in the belief that the adopted law

It is in accordance with the Constitution and the legal order of the Czech Republic, the

The Constitutional Court, in accordance with the examination of the proposal of the Supreme Administrative

the Court considered the constitutionality of the provisions of § 104e (b). b) of Act No. 582/1991

Coll. on the Organization and implementation of social security, as amended by

amended, and issued the decision.



According to § 42 para. 4 and section 69 of Act No. 182/1993 Coll., as amended

the rules, posted by the Constitutional Court of the present proposal and the Senate of the Czech

of the Republic. At the outset of his observations, delivered by the Constitutional Court on 15 December.

December 2010, its President Milan Štěch recapitulates the legislative

development of the provisions of § 104e Act No. 582/1991 Coll., on the organisation and

the implementation of social security. States that the provisions in question was

the first place to Act No. 582/1991 Coll. on his first amendment made

Act No. 586/1992 Coll., even at the time before the establishment of the Senate.

Law was in part six, regulating the control, a new

Chapter four (Section 104a to 104 h) relating to proceedings in matters relating to insurance

on social security and a contribution to the State employment policy. In

the provisions of § 104e, it was established that the decisions in matters of

insurance, which was released in appeal proceedings may give rise

to the courts (with reference to § 244 et seq. of the code of civil

zakotvovaly an exemption order, according to which the courts nepřezkoumávaly decisions

on applications for performance, for which it is not entitled, or requests for deletion

the hardness of the Act). In the next period-already following the establishment of the Senate-was

the provisions of § 104e of law changed in connection with the adoption of the

Act No. 150/2002 Coll., the administrative rules of court in which the answer

the fact that the Constitutional Court finding SP. zn. PL. ÚS 15/99 of 27 July. 6.2001 (N

96/22 SbNU 329; 276/2001 Coll.) set aside the part of the fifth code of civil

of the order. In the administrative judicial procedure was newly redesigned judicial

review of decisions of administrative authorities, including, according to which of the

judicial review of the acts of the administrative authority are excluded, the

review excludes the special law. That in a Court of law

the Administration reflected in substantive legal related

editing, and this within the framework of Act No. 151/2002 Coll., amending certain

laws in connection with the adoption of the administrative judicial procedure. Was in it

also included amendments to the law on the Organization and implementation of social

Security (part fifteen), which docked the situation when a particular

the decision of judicial review are excluded, one of these

cases (article. (XV) section 8) was the anchoring of the new wording of the provisions of § 104e

(a). (b)), which are excluded from judicial review decision

for remission of penalty (section 104ch). The Government referred to the concept of exclusion

judicial review citing "trouble-free traffic of this type of proceedings".



President of the Chamber in its statement also notes that the draft law in question

It was after the approval in the Chamber of Deputies sent to the Senate on 25 April. February

2002. In the Senate was then as Senate document No No 224 discussed in Committee

the legal and Constitutional Committee for territorial development, public administration and the

environment, both of which have recommended the Senate proposal of this so-called. the accompanying

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

Subsequently, a draft law discussed at their 15. meeting (3rd term)

on 21 February 2006. March 2002. Representative Bill promoters,

which the Minister for Justice, and the rapporteur for the Committee on legal and constitutional,

made by the joint report of the two committees already mentioned, neither

in one of these performances was not explicitly mentioned the issue of

related to the provisions of § 104e (b). (b)) of the Act. On the proposal to

The Senate has shown the will of the draft law is to dwell (on the grounds that after

approval of the draft of the Act on administrative judicial procedure it is necessary to approve and

the design of the so-called. the accompanying Act), the Senate decided to immediately vote

No. 95, in which the present 43 senátorek and senators in the 22 for quorum

the draft voted in favor, 38 against 1 to consideration of the Bill in the Senate

has ended.



In the comments, it is noted that when discussing the proposal of the

the Act nor in the Senate or in the previous stage of the legislative process

was the view that the wording of the provisions of § 104e could or should be

considered rozpornou with constitutional principles, because this may

interference with the fundamental rights and freedoms, against which there is no protection

by the power of the Court. In this connection, it refers also to

the case-law of the Constitutional Court of the year 2000, according to which it is constitutionally

accepted the exclusion of judicial review of decisions of administrative authorities

on the applications of the transactions to which it is not entitled, or the removal of hardness

the law.



In conclusion, the President of the Chamber notes that the Constitutional Court is to

the constitutionality of the proposal of the contested provisions of § 104e (b). b) of law No.

582/1991 Coll., on the Organization and implementation of social security, as amended by

amended, to examine and to decide. Moreover, in the

the observations noted that, if the design of the Supreme Administrative Court

should be granted, then it would be useful to take an unambiguous opinion to

other instances where certain decisions in the relevant laws

administrative bodies excluded from the administrative review (e.g. in adaptation

contained in the fifteenth, seventeenth, eighteenth, nineteenth, Act

amending certain laws in connection with the adoption of the code of civil procedure

administrative), with cases of decisions in matters relating to

hardness removal or filling, which is not a legal right.



III.



The abandonment of an oral hearing



According to the provisions of § 44 para. 2 Act No. 182/1993 Coll., the Constitutional Court may be

the consent of the participants of the oral proceedings, to refrain from it cannot be

expect further clarification of the matter. Due to the fact that, as the applicant in the

its proposal of 4 October 2005. November 2010, as well as parties to the proceedings in the note, the

President of the Chamber of deputies of the Parliament of the United Kingdom, delivered

The Constitutional Court on 20 April. May 2011, and President of the Senate of the Czech

the Constitutional Court of the Republic, registered as received on 18 July 2005. May 2011, expressed

its approval of the abandonment of the oral proceedings, whereas, Furthermore, that

The Constitutional Court considers that, since the meeting cannot be expected to further clarification

things were things from it in the abandoned.



IV.



The conditions of the locus standi of the applicant



The proposal to repeal the provisions of § 104e (b). (b)) Law No 582/1991 Coll., on the

Organization and implementation of social security, as amended

legislation was submitted to the Supreme Administrative Court according to the provisions of § 64 para.

3 of Act No. 182/1993 Coll., as amended.



As was already mentioned in naraci, SP. zn. 4 Ads 6/2010 is

Supreme Administrative Court decided the appeal complaint against

the resolution of the municipal court in Prague from 14 June. September 2009 No. 12 Cad

5/2009-1 to reject the action against the decision of the District Administration of social

Prague-West security of 19 December. February 11, 2009 # (j).

42010/220 -9015-26.1.2009-1437/9/OM/3 on non-compliance of an application for relief

periodic penalty payments imposed pursuant to Act No. 586/1992 Coll., on social

Security and contribution to the State employment policy, as amended by

amended.



The Supreme Administrative Court after its decision in the context of the

activities in accordance with art. 95 para. 2 of the Constitution of the United States came to the

the conclusion that the provisions of § 104e (b). (b)) Law No 582/1991 Coll., on the

Organization and implementation of social security, as amended

regulations to be in solving things SP. zn. 4 Ads 6/2010 used

contrary to the article. paragraph 36. 2 of the Charter, the tribal proceedings according to § 48 para. 1

(a). and) with row s. by order of 21 March 1997. September 2010 No. 4 Ads 6/2010-36

interrupted and the Constitutional Court submitted the present proposal on control standards.



The purpose of the specific control standards pursuant to art. 95 para. 2 of the Constitution of the United

the Republic's judicial control of the constitutionality of the Act, or of its individual

provisions to be applied when the court hearing and the

a decision in a particular case. It is also delimited by the space

the General Court of the procedure under article 5(2). 95 para. 2 of the Constitution of the Czech Republic,

which is limited only and exclusively in the case of the relevant material and

procedural law. A procedural condition for the locus standi of the General Court

According to § 64 para. 3 of Act No. 182/1993 Coll., on the Constitutional Court, as amended by

amended, is therefore such position of the Act. his

the individual provision whose annulment is sought, subject

equity management, which establishes for the adjudication of the matter by the General

the Court decision the reasons why.



As is apparent from the description of the proceedings before the General Court, can be on the side of the

the claimant stated fulfillment of its locus standi for

proceedings for review of the standards.



In the.



Petit design and wording of the contested legislation



According to the remedies the Supreme Administrative Court the proposal seeks to Constitutional Court

finding "the provisions of § 104e (b). (b)) Law No 582/1991 Coll., on the


Organization and implementation of social security, as amended

regulations ".



According to the provisions of § 104e (b). (b)) Law No 582/1991 Coll., on the organisation and

the implementation of social security, as amended from

of judicial review are excluded "remission of the penalty decision (§

104ch) ".



Vi.



Constitutional competence and conformity of the legislative process



The Constitutional Court in accordance with the provisions of § 68 para. 2 of the Act on the constitutional

the Court in proceedings for review of the standards required to assess whether the contested

the law, its individual provisions. other legislation or its

individual provisions have been adopted and issued within the limits of the Constitution of the United

the Republic established competence and constitutionally prescribed way.



Of Council publications and těsnopiseckých reports, as well as the representation of the

President of the Chamber of Deputies and the President of the Senate of the Czech

States, it was found that the Chamber of Deputies approved the proposal

of the Act, i.e. Act No. 151/2002 Coll., amending certain

laws in connection with the adoption of the code of civil procedure of the administrative, at 3. read on

its 46. meeting on 15 December. February 2002 vote no. 596 resolution No. 2106,

When the present 159 MPs and MEPs voted in favor for its adoption

149 MPs and MEPs. On 21 February 2006. in March 2002, a draft law discussed

at their 15. the meeting of the third term of the plenary Chamber and by resolution No.

327 the Senate has shown the will of Bill does not deal with. The resolution of the

the vote was taken at no. 95, in which 43 of the senátorek and

the Senators when the quorum for proposal 22 voted in favor, 38 against 1.



The law was signed by the respective constitutional officials, and was under the

No 151/2002 Coll., duly declared the amount of 61 laws, which was

circulated on 17. April 2002, and according to the article. XXVII took effect on January 1.

January 1, 2003.



On the basis of the above, the Constitutional Court notes that law No.

151/2002 Coll., amending certain laws in connection with the adoption of the

Code of civil procedure of the administrative, was adopted in accordance with the constitutional kautelami

concerning competency and the legislative process.



VII.



The content of the contested legal provisions compliance with the constitutional order



The legal Institute of remission of penalty for non-payment of social

Security was to Act No. 582/1991 Coll., on the Organization and implementation of

social security, as subsequently amended, embodied its

the amendment made by Act No. 241/1994 Coll., which amends and supplements the

the Czech National Council Act No. 589/1992 Coll., on social

Security and contribution to the State employment policy, as amended by

amended, Act No. 100/1988 Coll. on social security, in

as amended, Act No. 54/1956 Coll., on sickness

insurance, as subsequently amended, Act No. 88/1968

Coll., on the extension of maternity leave, on maternity and on

allowances for children from sickness insurance, as amended

law, the law of the Czech National Council No. 582/1991 Coll., on the organisation and

the implementation of social security, as amended, the law

The Czech National Council No. 550/1991 Coll., on the universal health insurance,

in the wording of later regulations, and act of the Czech National Council No. 592/1992

Coll., on premiums for general health insurance, as amended

regulations. Explanatory memorandum the governmental draft amendment to the law on the

Organization and implementation of social security in favour of the introduction of

the legal Institute of the remission of penalty for non-payment of premiums

social security, argued as follows: "Introduces an option because of the

the removal of the hardness of the individual payers finance charge premiums remitted on

social security. This is based on a similar Institute of

(remission of tax, accessories), which by the rules of the administration of taxes and

fees. The principles governing this Institute in the field of taxation will take

even in the area of social security. ".



The Constitutional Court in the resolutions SP. zn. IV. the TC 226/09 of 23 December 2003. 10.2009,

IV. TC 2323/07 of 13 March 2002. 11.2007 (11/47 SbNU 1047), III. TC 102/06

of 23 December 2003. 1.2007, IV. CS 1136/08 dated March 17. 4.2009, i. ÚS 398/09 from

17 May. 6.2009, III. TC 963/09 of 14 July 2004. 7.2009 (resolution are

available at http://nalus.usoud.cz) came to the conclusion, according to which,

admitted to the Supreme Administrative Court, whose ruling is decisive

contribution to the unification of the decision-making practice of administrative justice,

in cases based on the administrative discretion of the possibility of judicial review,

to which end the Constitutional Court does not have the konstitucionalistických aspects of

the reason for the oppose, should be regarded as a procedural means of protecting

rights, even those that establishes the rules of the Board. In other words,

in cases based on the administrative discretion is to be regarded as a procedural

means to protect rights under the provisions of section 75 para. 1 of the law on the constitutional

the Court, which establishes the rules of the Board.



Case-law in question resulted in the finding of SP. zn. III. TC 2556/07 (see

above), in which the Constitutional Court to the provision of section 55a of Act No. 337/1992 Coll.

(valid until 31 December 2006. 12.2010) found that the tax code provides for the possibility

brought against decisions of the tax administration of the proper remedies (part

Fourth, paragraph 48 et seq.). and the so-called. "extraordinary remedies" (part five,

section 54 et seq.), which ranked the law and tax exemption pursuant to section 55a

This Act, while not decisive, it is not a typical tax exemption

an extraordinary remedy. In this proceeding the Ministry may tax

fully or partially waived on grounds of irregularities arising from the

the application of the tax laws, or for reasons of removal accessories

hardness. The subject of the present proceedings is therefore the assessment of the facts of other,

that led to a tax assessment, and you cannot say that it

repeatedly has been assessed the accuracy of the tax assessment, and that it was

Open the path to repeated the same facts, judicial review

as have been or may be investigated to the application against the decision on the assessment of the

the tax. At the same time then set out certain new conditions under which can be

with the request. This is not about the benefits of the determining authority,

that would be on his unlimited discretion of anything. The provision of section 55a

therefore modifies the tax exemption or its accessories, and the combination of

indeterminate legal concept and administrative discretion; a vague legal concept,

here represented by the "reasons for the discrepancies resulting from the application of

tax laws "and" reason for deletion "hardness cannot be substantively

sufficiently precise and its application depends on the assessment in each

case by case basis. The legislature created the space by the public administration,

in order to evaluate whether a particular situation is a vague legal concept of

podřaditelná or not, and with the existence of certain facts

It is not clearly linked to the only possible legal consequences; It is then just the

the discretion of the administrative authority-in the limits-such a result

determine whether the application of the tax debtor, namely to meet and the tax or its

Accessories waived. Compliance with these limits-just the administrative discretion

or their misuse in administrative justice-however, reviewable according to the

the legal opinion of the Constitutional Court as follows explicitly from

the provisions of § 78 para. 1 with row s.; It is the participant's permissions here

proceedings request that the administrative authority's decision was issued in a proper

management of the established norms of substantive as well as procedural ("tax") rights and with

the exclusion of any arbitrariness. The right to due process is, therefore, the

public procedural law a subjective, which could be affected, respectively.

violated, and whose protection can be invoked in court, although there

subjective right to obtain relief under consideration is not.



The Constitutional Court referred to the case-law of the Supreme Administrative Court,

especially on the legal opinion of the Court in sentencing the Supreme Administrative

judgment No. 6 and 69/2000-55, according to which the decision depending on the

diskreci of the administrative body (a decision on the remission of tax under section

55A of the tax code) is reviewable as to compliance with the prescribed

the progress and compliance with the limits of administrative discretion.



The opposite interpretation of the tax code and the judicial code administrative would then according

The Constitutional Court has established the State of restriction (exclusion) of law to the Court of

protection within the meaning of article 87(1). paragraph 36. 2 of the Charter.



The Constitutional Court notes that the legal conclusions from the

case-law and the current fully hit legislation, contained in section

259 and 260 of the Act No. 280/2009 Coll., the tax code.



The base for the assessment of the case is the question of whether the said legal

opinion turns out by the judicial review of a decision on the remission of

penalties for non-payment of social security contributions.



Since neither the tax code or the administrative court rules do not contain an explicit

specific adaptation of the exclusion of judicial review of a decision of the tax

remission of tax or its accessories according to section 55a of the tax code, the legal

the conclusion of the Constitutional Court in favour of such a review, as outlined in the

the case-law (in particular in finding SP. zn. III. TC 2556/07) resulted in


the interpretation of the relevant provisions of constitutionally conformable to the tax code and

Code of civil procedure of the administrative-law was therefore

adopted in proceedings for review of the standards, but in the constitutional

the complaints.



In comparison the tax decision on institutes of remission of tax or

its accessories, and the decisions of the organs of social security

remission of penalties for non-payment of social security contributions

The Constitutional Court, the legislature's opinion about their přisvědčuje the analogue

the nature of the. This analogous nature is given by two characters: the first is

the similarity of the penalties for non-payment of taxes and penalties for non-payment of premiums

social security-in both cases is the defining character of both

part of the more general category of institutes (genus proximum)-both of these

institutes constitute a legal effect of non-payment, payment of public

nature, payment of which is provided for by law and whose purpose (in different

extent) is to provide public benefits (goods) the public authorities.

The second character is comparable to the similar purpose of remission of penalties in both

cases, which is a removal of hardness in individual cases and for

specific circumstances which are not generally predictable in its entirety

the law and the assessment is subject to administrative discretion.



If the legal Institute of the remission of penalty for non-payment of premiums

social security-unlike the situation of the Law Institute

remission of tax and its accessories-in the case of the provisions of § 104e

(a). (b)) Law No 582/1991 Coll., on the Organization and implementation of social

security, as amended by later regulations, given the explicit statutory

an obstacle to judicial review, as implied by analogy-unlike

the procedure contained in the award SP. zn. III. TC 2556/07-can not only lead

to interpret the relevant constitutionally Conformal simple law, but

necessarily leads to the derogatory conclusion as a result of violation of the provisions of § 104e (b).

(b)) Law No 582/1991 Coll., as amended, with art. paragraph 36.

2 of the Charter.



The Constitutional Court in this regard, stresses that the subject

judicial review of the decision on the remission of penalty for non-payment

social security is not considering the matter; It is the only

compliance with the limits of administrative discretion, it is the protection of due process, and

exclusion of arbitrariness in decision-making, or the guarantee of the right to due process, and

When the material in these cases the subjective right to obtain

relief under consideration (remission of penalty) is not given.



To request the party to declare an unequivocal opinion even to

another exclusion decisions of administrative authorities in matters of

on the removal of hardness or transactions is not legal

the claim of an administrative review, the Constitutional Court notes that the assessment of the

the constitutional conformity of any such legal provisions necessarily requires a specific

review of the application of the legal conditions read the conclusions of the

resulting from the relevant case-law of the Constitutional Court, in particular from the

finding SP. zn. III. TC 2556/07.



The President of the Constitutional Court:



JUDr. Rychetský in r.