In The Matter Of The Application For Revocation Under § 153B Of The Civil Procedure

Original Language Title: ve věci návrhu na zrušení části § 153b občanského soudního řádu

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=81827&nr=44~2F2014~20Sb.&ft=txt

44/2014 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled under SP. zn. PL. ÚS 49/10 28 February. January 2014

plenary in the composition of Stanislav Package, Louis David, Norman F, Jan

Filip, Vlasta Formankova, Ivana Janů, Vladimir Crust, Jan Musil, Paul

Rychetský, Vladimir Sladecek, Radovan Suchánek, Catherine Simackova

(Judge Rapporteur), Milada Tomková, Jiří Zemánek and Michael

April on the proposal of the District Court in Děčín according to art. 95 para. 2 of the Constitution

The United States on cancellation of the § 153b of paragraph 1. 1, 4 and 5 of Act No 99/1963 Coll.,

Code of civil procedure, as amended, with the participation of the

the Chamber of deputies of the Parliament of the Czech Republic and the Czech Senate

as the parties,



as follows:



I. the proposal is rejected.



II. The interpretation of the word "may" in section 153b para. 1 of Act No 99/1963 Coll.,

Code of civil procedure, as amended by law No 7/2009 Coll., amending

Act No. 99/1963 Coll., the civil procedure code, as amended

regulations, and other related laws, must fulfill the purpose of the legislation

default judgment and respect the procedural equality of the parties;

This means, inter alia, take account of those principles, even if

assessment of the conditions for delivery pursuant to § 49 paragraph 1. 4 of Act No 99/1963

Coll., the civil procedure code, as amended by law No 7/2009 Coll., amending

Act No. 99/1963 Coll., the civil procedure code, as amended

regulations, and other related laws.



Justification:



(I).



The definition of things



1. The District Court in Děčín ordered on day 8. 10.2010 negotiations, to which the

call the plaintiff through his legal representative and the defendant

the procedure laid down in section delivery 45 et seq.. Act No. 99/1963 Coll.,

Code of civil procedure, as amended by later regulations (hereinafter referred to as "o. s.

ř.").



2. To conduct the District Court in Děčín is on 8. 10.2010 came

only the side of the plaintiff. The defendant without any apologies for the hearing

not appeared. The legal representative of the applicant, in accordance with the § 153b of paragraph 1. 1

o. s. l. suggested the release of the judgment by default ("by

the judgment "). The summons to the defendant's conduct has been delivered under section 49

paragraph. 4. (. alternate delivery or delivery of fiction).



3. The District Court in Děčín, however, by a judgment by default is not decided, although

in his opinion, met all the conditions laid down by law for the

its release, as it came to the conclusion that the § 153b of paragraph 1. 1, 4 and 5 of the row.

is in conflict with the constitutional order of the Czech Republic, and specifically with the

the principle of equality of the parties. For this reason, the District Court in

Decin proceedings and submitted to the Constitutional Court under art. 95

paragraph. 2 of the Constitution of the Czech Republic to repeal § 153b of paragraph 1. 1, 4 and 5.

row.



4. The Constitutional Court was lodged pursuant to article 4(1). 95 para. 2 of the Constitution of the United

the Republic to repeal § 153b of paragraph 1. 1, 4 and 5 of the 8-delivered on 16. 11.

2010.



II.



The arguments of the applicant



5. According to the applicant's section 153b of the row (or its paragraph 1, 4

and 5) contrary to the principle of equality of parties to the proceedings, enshrined in article.

paragraph 96. 1 of the Constitution of the Czech Republic (hereinafter "the Constitution"), art. 37 para. 3

The Charter of fundamental rights and freedoms ("the Charter"), art. 6 (1). 1 and

article. 14 to the Convention for the protection of human rights and fundamental freedoms (hereinafter also

"The European Convention on human rights", or just "the ECHR") and article. 14

The International Covenant on Civil and political rights.



6. The main argument for the repeal of § 153b of the appellant is

the fact that a default judgment may be issued only for the benefit of

the plaintiff, while the defendant does not enjoy this privilege. This means that if the

under the same conditions to the plaintiff fails to appear, the hearing ordered the defendant

the Court cannot propose the release of judgment by arguing that the claim

the defendant in his defence (or made at

the negotiations) on the facts relating to the dispute would have to be considered

undisputed. Party plaintiff is so process-an advantage, without this

advantage was in the management of the defendants compensated in any way. This is

According to the claimant the defendant built to substantially less favourable situation

than the plaintiff, which is contrary to the principle of the equality of the participants [District

the Court in Děčín here refers to the find SP. zn. PL. ÚS 15/01 of 31 July. 10.

2001 (N 164/24 SbNU 201; 424/2001 Coll.) and find SP. zn. III. TC 202/03

of 13 October. 11.2003 (N 134/31 SbNU 193)].



7. in support of its proposal, the applicant raised the historical argument.

According to him, a judgment by default is znovuzavedený in the form of § 153b of.

in the Czech legal order to 1. 9.1993, contrary to the traditional concept of

the judgment order in our territory. Already the Act No. 113/1895.,

court proceedings in civil law established graziers (order of the Court, civil), in

text of the provisions to changing and supplementing until 31 December 2006. 12.1947 (hereinafter

"c. r. s.") the Institute knew of an order by the judgment (judgment in

cases by default), which respects the equality of the parties,

Since both sides threatened the walkover. Specifically, § 396 c. l. s.

stated that: "where the claimant misses a defendant or the first year, to be

thought me dostavivší the parties about the recitation of fact

regarding the subject matter of the dispute, for the true, if not rebutted

presented by the evidence, and on this basis, the application of a party,

decide on the claim, request judgment by default "(emphasis

completion). The following § 397 c. l. s. then read as follows: "to a written

interpretations of the issue of the party, which has not appeared, don't be taken

...".



8. the appellant also drew on the Austrian and German editing judgment

for a default judgment. In Austria, although amended many times, it is still effective

the above mentioned civil order of the Court of the year 1895, including editing

judgment by default (§ 396-403 ÖZPO). Edit the default judgment of both parties

contains the German civil procedure code of procedure (Zivilprozessordnung, hereinafter referred to as

ÎZPO), in section 330-347; Therefore, the counts as the default of the defendant

(Säumnis des Beklagten, section 331 ZPO), which is adjusted as in

Czech o. s. l., so missed the plaintiff (Säumnis des Klägers, section 330

ZPO). Here's the difference compared to the Austrian, however, editing in that it does not appear to

the plaintiff, or if this is not the case (section 333 of the ZPO), though it has been duly

summoned, is his action without a substantive review of the rejected.



9. In its application the applicant has marked as the contested provisions only

the first, fourth and fifth paragraph of § 153b of the row, as only these three

paragraphs are, for the present case SP. zn. 22 C 128/2009

immediately applicable and also unconstitutional. The petitioner thus

He did not contest the second paragraph § 153b of the row, though even that is

unconstitutional, since this paragraph is not the present case

immediately applicable, as a condition of "imminent

applicability of "within the meaning of article. 95 para. the Constitutional Court interprets the Constitution

[here the appellant referred to resolution SP. zn. PL. ÚS 38/2000 of 23 October 2000.

10.2000 (in 39/20 SbNU 353) and resolution SP. zn. PL. ÚS 20/02 of 28 October 1999.

11.2002 (42/28 SbNU 477)]. With regard to the third paragraph of section 153b.

row, the applicant is of the view that this paragraph is constitutionally Conformal.



III.



Representation of the Chamber of Deputies and Senate of the Parliament of the Czech Republic



10. The Constitutional Court pursuant to the provisions of § 42 para. 4 and section 69 of Act No.

182/1993 Coll., on the Constitutional Court, as amended by later regulations (hereinafter referred to as

"the law on the Constitutional Court") posted by the annulment of the contested

the provisions of the Chamber of Deputies and Senate of the Parliament of the Czech Republic. In

accordance with point 3 of the notice of the Constitutional Court published under no. 469/2012

Coll., the Constitutional Court had not named to represent the Government of the United States or

of the Ombudsman within the meaning of § 69 para. 2 and 3 of the law on the constitutional

the Court.



III/a



Representation of the Chamber of deputies of the Parliament of the Czech Republic



11. The Chamber of deputies in its statement of 30 June. 6.2011

signed by Chairwoman Miroslava Němcová, zrekapitulovala process

the adoption of Act No. 171/1993 Coll., amending and supplementing the civil

the rules of court, which he introduced into the Czech legal order a judgment by default,

and its three amendments. Pointed in particular to the explanatory memorandum to the

Act No. 171/1993 Coll., according to which the then legislature gave in

the design of the default priority to a solution that is used to

Slovakia (which had a foothold in the Hungarian law), which permits release

judgment by default only in the case when the first act misses the defendant.

The former legislator to justify it, by admission of the judgment for

by default, the applicant and the defendant would create uneven position of the parties,

as if the defendant misses a meeting, it is known from the Inbox actions in advance

not only the subject of the proceedings, but also the applicant's line of argument and the evidence

It offers to the Court to prove their claims. If accepted, the judgment of the

by default, the plaintiff, missed the party, that the opinion of the defendant

ahead and did not have the opportunity to respond to the allegation that the defendant

It was only at the hearing, the Chairman shall refer. In addition, the explanatory memorandum to the Act No.

171/1993 Coll. in connection with § 153b of r. stressed that even in


provided that the transferee is properly the defendant fails to attend a hearing

and the applicant shall propose to the Court to decide by a judgment by default may not

the Court accepted this proposal.



12. in addition, the Chamber of Deputies indicated that as the legislature acted in

the belief that adopted laws are in accordance with the Constitution and our legal

regulations, however, it is up to the Constitutional Court to assess the constitutionality of § 153b

paragraph. 1, 4 and 5 of 5-the Chamber of deputies also agreed with the

abandonment of the oral proceedings.



III/b



Expression of the Czech Senate



13. The Senate in its statement of 27 November. 6.2011, signed by the Chairman of the

Milan Private, noted that the Senate was established in November 1996, and

Therefore, to Act No. 171/1993 Coll., which introduced into the Czech legal order

default judgment, he could not comment. Since then, although it was section 153b

amended three times, however, the basic principle has remained unchanged, and to

the issue of implied in the administration of the District Court in Decin is in Senate

under the approval of the above mentioned three amendments to § 153b of the row.

He expressed. According to the Senate so it is entirely up to the Constitutional Court to

to assess the constitutionality of the contested section 153b o. s. l. in paragraphs 1, 4 and 5.

The Senate also gave its assent to the abandonment of the oral proceedings.



IV.



The diction of the contested legislation



14. The provisions of § 153b of row reads as follows (paragraph appellant

expressly contested are highlighted in bold):



"the § 153b



(1) if the defendant Misses, which have been duly delivered to his own

hands (§ 49) the application and the summons to a hearing at least ten days prior to the

the date on which the meeting is to take place, and that was about the consequences of failure

instructed, without reasonable and timely apology the first Act, which, in case

held, and will propose it to the applicant, who came to the meeting, by

the plaintiff claims contained in the application on the facts about

the dispute, for the undisputed and, on this basis, the Court may rule on the action

the judgment by default.



(2) if there is one thing a few of the defendants, who have such a common

obligations, that judgment must apply to all (article 91, paragraph 2),

You can decide by a judgment in absentia only if he fails to

hearing all the defendants duly obeslaní.



(3) a default judgment cannot be issued in cases which cannot be closed

and approve the settlement (article 99, paragraphs 1 and 2), or if there would be such a judgment

to develop, modify or terminate the legal relationship between the participants.



(4) if the defendant misses a omluvitelných reasons of the first Act, in the case

which was handed down the default judgment, upon the motion of the defendant

This judgment by order and order cancels the meeting. Such a proposal may

a participant may submit, no later than the date of the judgment by default.



(5) if the defendant in addition to the application for annulment of the judgment of the Court of first

the degree of the reasons referred to in paragraph 4 of the judgment appealed against the appeal and

application for annulment of the judgment was upheld by a final resolution, to

the appeal shall be disregarded. "



15. As mentioned above, the appellant contests only paragraphs 1, 4 and 5

the provisions of § 153b of the row, on the grounds that only these three

paragraph § 153b of the row are immediately applicable to the thing it

led by under SP. zn. 22 C 128/2009 and also unconstitutional (see point

9).



16. The Constitutional Court based on the texts of the provisions of § 153b of row i of the

the provisions of § 49 paragraph 1. 4. with the (governing so-called substitute service

or fictitious), as introduced by law No 7/2009 Coll.

the amended Act No. 99/1963 Coll., the civil procedure code, as amended

regulations, and other related laws, since this Act No 7/2009 Sb.

with effect from 1 January. 7. these provisions were amended in 2009

last and so far charged in the same text. This is the same wording

valid as at the time of submission of the proposal by the District Court, at the time of decision making

Of the Constitutional Court.



In the.



Assessment of the competence of the Constitutional Court to hear the application and

locus standi of the applicant



17. The Constitutional Court had to first answer the question of whether he is entitled

discuss the merits brought by the proposal. Terms of locus standi in the

management of specific control standards the Constitutional Court summarized in its resolution sp.

Zn. PL. TC 37/10 of 18 February 2004. 12.2012 (available on the

http://nalus.usoud.cz):



16. before the Constitutional Court shall proceed to a factual assessment of the proposal by

article. 87 para. 1 (b). and) of the Constitution is obliged to examine whether it meets all the

the formalities required by law and that they are not at all dictated by the conditions of its

consultation as stipulated in Act No. 182/1993 Coll., on the Constitutional Court, in

as amended (hereinafter the ' law on the Constitutional Court '). According to the

the provisions of § 64 para. 3 of the law on the Constitutional Court to repeal of the law

or its individual provisions is also entitled to the Court in

with regard to its decision-making activities under art. 95 para. 2 of the Constitution.

According to the article. 95 para. 2 of the Constitution, if the Court concluded that the law,

to be used in solving the case, is in contradiction with the constitutional order,

refer the matter to the Constitutional Court.



17. the Constitutional Court must first address the question of whether it was populated

the condition laid down in article 95 para. 2 of the Constitution, i.e.. whether the plaintiff

the alleged conflict with the constitutional order refers to the law which should be applied to

When the solution matters initiated prior to the regional court in Hradec Králové, since

If it came to the conclusion that this condition has not been populated, it would not be

the appellant to his Administration actively open to, respectively, the petition was filed

' someone apparently unauthorized ' as normuje the provisions of § 43 para. 1 (b).

(c)) of the Act on the Constitutional Court.



18. pursuant to the conclusions of the resolution of the Constitutional Court, SP. zn. PL. ÚS 38/2000 of

on 23 December 2005. 10.2000 [resolution SP. zn. PL. ÚS 38/2000 of 23 October 2000. 10.2000

(U 39/20 SbNU 353), available at http://nalus.usoud.cz] the condition is

design of privilege of the Court expressed in the article. 95 para. 2 of the Constitution, to

request the cancellation of the law against ' to be in the solution of

things used ', true, ' If this is about the law or its individual

the provisions whose application has to be immediate ... ', or ' is

necessary its inevitable application and not just a hypothetical use,

or other broader context... ' [cf. also find SP. zn. PL. ÚS 20/05

of 28 June. 2.2006 (N 47/40 SbNU 389; 252/2006 Coll.), available at

http://nalus.usoud.cz]. Of the purpose and the meaning of (specific) checks

the constitutionality of the law, then it follows that the law, ' to be in the solution of

things used ', it is only because you (or its provisions), which gets in the way,

in order to achieve the desired (constitutionally consistent) results; If it was not

then removed, he would have been the result of the proceedings before him another.



19. is the applicant, both in order to withstand an adequate argument that

the contested act (its individual provisions) is in conflict with the constitutional

policy (which the appellant has made), but at the same time he pointed out and proved that

the application of the contested provisions is inevitable, and only the annulment of the contested

the provisions will result in the desired constitutionally consistent

the result; the assumption of such a claim is sufficiently straight

the facts. The last-mentioned requirement, however, has not been populated.



20. in addition to the above, the General Court, which proposes the repeal of the law

(its provisions), lies on the obligation of the contested provision, which has

be applied in the proceedings before him, lay out, and this interpretation is primarily

constitutionally compliant; The constitutional court deduced that the reason for the cancellation is not given

such a provision, if possible, where appropriate, among others-and interpretation,

that this requirement (i.e., constitutionally konformnímu interpretation) complies with the [cf.

find SP. zn. PL. ÚS 48/95 of 26 July 1995. 3.1996 (N 21/5 SbNU 171;

121/1996), finding SP. zn. PL. ÚS 20/05 of 28 June. 2.2006 (N 47/40

SbNU 389; 252/2006 Coll.), finding SP. zn. PL. ÚS 36/01 of 25 June. 6.2002

(N 80/26 SbNU 317; 403/2002 Coll.), all available also on

http://nalus.usoud.cz]. The fact that, in the present case was such a

constitutional interpretation available, then the possibility of implikoval

assessment of the draft as ' manifestly unfounded ', as this

the qualification expressed in the provisions of § 43 para. 2 (a). and) of the

The Constitutional Court.



Principles listed judikovalo the plenary Constitutional Court as well as in many other

resolutions (e.g., resolution SP. zn. PL. ÚS 23/08 of 14 July 2004. 8.2008, sp.

Zn. PL. ÚS 34/11 of 3 April. 4.2012 and SP. zn. PL. ÚS 30/09 dated March 2. 4.

2013), and can therefore be considered part of established case-law

Of the Constitutional Court.



18. in the present case, has filed a proposal to repeal § 153b of the civil

civil procedure law court in the situation where the defendant did not appear to

the first hearing and in response, the applicant proposed the judgment for

a default judgment. The question on which the Constitutional Court must now answer is

whether from the perspective of the principle of equality of the parties, the judge may General

the Court its proposal pursuant to article. 95 para. 2 of the Constitution of the relevantly make (1)

only in the case where the applicant does not attend the hearing and the respondent objected

While his absence could be a reason the judgment by default,

the Court cannot, by analogy, the process-simply respond to the non-participation of the applicant

(this situation in case the District Court in Děčín occurred),


or (2) even in the case when the first negotiations come only the plaintiff,

that release of the judgment subsequently declared (as happened in the case

the present District Court in Děčín). The first situation is only

obvious that any annulment of the contested provisions (assuming his

a controversy with the principle of equality of the parties) would open the path to the

the adoption of such legislation, which would result in the ability to

the plaintiff, the defendant achieved Decree judgment. The aim of the

equality of the participants, however, do not create the possibility of Decree

judgment in favor of both parties of the dispute-the principle of equality of the participants would

on the contrary, has been populated even if the legislature did not allow to achieve

Decree judgment or one of the parties. Similarly, it would be

the principle of equality of the participants filled in a situation where the legislature

drop anchor in case of failure by one of the parties to negotiate a different

penalty than judgment by default in favor of the dostavivší with the other side.

The equality of the parties is therefore neutral in what the parties are

equal, and fixes the only whether they are equal. In other words, it is the

legislators, whether to allow the issuance of an order by the judgment or not.

However, if it is anchored, must comply with the terms of the judgment by default

arising from the principle of equality of the parties; If this were not so,

The Constitutional Court is gifted with the powers of such a modification of an order by the judgment

Cancel and reopen the space for the legislature to decide whether

anchors the match to the query set aside by the equality of the participants

proceedings or decides to again nezakotvit or whether its entirely other,

an alternative solution [for example. cover the cost of zmařeného negotiations

nedostavivší with the party or the obligation of the judge (in the case of delivery

fiction) to decide on the date, according to the State of the file the following zmařeného negotiations].



19. the Constitutional Court also notes that in both cases outlined above

the position of the parties cannot be considered equivalent-in the first

the case, therefore, that the defendant does not have the same legal remedy

as the plaintiff (defendant cannot do what the Prosecutor); in the second case

Therefore, that the applicant has available procedural means that the defendant to

There does not have (the applicant may do what the defendant cannot). In both

the cases of § 153 paragraph is applied. 1. s. l., in both cases it is the

the immediate application of this provision (i.e., its application is

inevitable and not just hypothetical) and only the annulment of the contested

the provisions of constitutional interpretation or balancing position both

process the parties would lead to the desired constitutionally consistent

the result, as otherwise the District Court in Děčín was obliged to

give judgment by default, but you can play only in favour of

the applicant (see paragraphs 18-20 the resolution SP. zn. PL. ÚS 38/10 of 18 February 2004. 12.

2012, cited above).



20. the Constitutional Court when considering the locus standi of the General Court to

submission of the application for annulment of the Act or its provisions came from the article. 95

paragraph. 2 of the Constitution, which provides that if the Court concluded that the law,

to be used in solving the case, is in contradiction with the constitutional order,

refer the matter to the Constitutional Court, and from section 64 para. 3 of the law on the Constitutional Court,

which enshrines the permission of the Court to request the cancellation of the law or its

individual provisions in relation to its decision-making activities. In

now the case under consideration, it is undisputed that the use of the contested provisions

o. s. l. plaintiff has suggested, and the Court is using it in a particular case

had to deal with. The purpose of the privileges and obligations of General

the Court used the law to the Constitutional Court, if the Court

the conclusion that the law is in conflict with the constitutional order, is to preserve

the principles of internal unity and control of the legal system. How stresses i

komentářová literature, "[in] the case of the conclusion of conflict with constitutional law

Therefore, the general policy of the Court to stay the proceedings and to legal

the obligation of the thing (as a proposal for the abolition of the Act) to submit to the Constitutional Court "

(cf. Filip, j., Holländer, P., Prince, in the law on the Constitutional Court.

Comment. 2. the revised and expanded edition. Prague: c.h. Beck, 2007,

p. 365). Therefore, if there is doubt about the constitutionality of the provisions of the Act

and at the same time the General Court clears this doubt or considering

individual interpretation of the alternatives, or fails to submit to the decision of the matter

The Constitutional Court, violates article. 1 (1). 1, or article. 95 para. 2

Of the Constitution. On the contrary, the Constitutional Court would provide the General rejection of the Court

assistance to its decision on the constitutionality or unconstitutionality of the applicable

the law has violated their obligations arising out of the cited article. 95 para. 2 i of

article. 83 of the Constitution. Indeed, excessive secrecy, and exclusivity of the constitutional

the judiciary could be counterproductive, since it would limit the scope for

"constitutional cultivating general courts" (cf. Kühn, from the application of the law.

a judge in an era of Central European communism and the transformation. Analysis of the causes

post-Communist legal crisis. Prague: c.h. Beck, 2005, p. 146; to do this,

more also Wagnerová, e. et al. The law on the Constitutional Court commented.

Prague: ASPI, a.s., 2007, pp. 246 and 247).



21. On the basis of these considerations, the Constitutional Court came to the conclusion that brought

the proposal to assess the constitutionality of the existing editing judgment

by default, enshrined in section 153b o. s. l., from the point of view of equality of the participants

How to control a situation, when the first negotiations come only a defendant

that does not have the ability to design a judgment by default, so for

When the first negotiations come only plaintiff who

subsequently declared the issuance of such judgment (as was the case in the matter of

before the District Court in Děčín). In both cases, then, the Constitutional Court-

If found modify an order by the judgment is contrary to the principle of

the equality of the parties-had to cancel the contested provision. The constitutional

the Court itself under any circumstances cannot "call" the procedural rights of

the defendant, on the level of the Prosecutor and the defendant's right to judikatorně anchor

design issue of default judgment against nedostavivšího,

the plaintiff, because it is not positive by the legislator. The only way to

achieve a constitutionally compliant editing order judgment would therefore be

its cancellation and the reopening of the space for the adjustment of the legislature or constitutional

balancing both interpretation of procedural pages. How

However, it was pointed out above, such a system would not necessarily require

anchoring options to achieve an order of judgment for both parties;

such a solution is only one of the alternatives (see paragraph 18 of this finding



in fine

).



22. From the above it follows that the proposal of the District Court in Děčín meets

all the requirements of article. 95 para. 2 of the Constitution, including the requirement

locus standi of the petitioner for proceedings for review of the standards.



Vi.



The constitutional conformity of the legislative process of adoption of the contested provisions



23. the Constitutional Court stated that Act No. 171/1993 Coll., which was to

Code of civil procedure enshrined the judgment by default, the Institute was

adopted and published within the limits of constitutionally established competence and constitutionally

in the prescribed manner.



VII.



Content compliance of the contested statutory provisions with the constitutional order



24. before the Constitutional Court went to the meritornímu assessment, he had to

to deal with the scope of the proposal. The appellant attacked the only § 153b of paragraph 1. 1,

4 and 5 of the row, and explicitly stated that on the contrary, think of the second and third

paragraph of that provision. According to the appellant, the second paragraph is not

in the present case, it is immediately applicable and the third paragraph of

the appellant considered constitutionally Conformal.



25. The Constitutional Court, however, is of the view that § 153b of the row, setting out the

Edit the default judgment, make up a coherent and internally, so

a linked unit, that it cannot be broken down into individual components and

examine the souladnost with the constitutional order only for some of them

(i.e. paragraphs of the first, fourth and fifth). This is particularly true, that is

attacked by the first paragraph of § 153b of the row that is to specify the conditions

the application of the judgment by crucial. If the Constitutional Court

accept the scope of the proposal, as it defined the petitioner, and, where appropriate,

This proposal has passed, he would then be in the code of civil procedure "stump"

in the form of the second and third paragraphs of section 153b o. s. l., which did not give

itself makes no sense. Detached second paragraph (without

discontinuing the first paragraph) should the defendant even built into an even

less favourable position than the current edit, since no derogation after § 153b

paragraph. 1. with the row would, strictly speaking, there was no need for the judgment

by default meet the condition of due service of the summons to the Court and to the

own hands under section 49 of the row at least ten days in advance, or

the condition of the ordinary lessons learned by the defendant of the consequences of failure to appear and

the defendant would have no way to prevent the release of the judgment by default your

the excuse of the mandated negotiations. For this reason, the Constitutional Court shall be deemed to

necessary to assess the constitutionality of the entire section 153b o. s. l., and not only

its first, fourth and fifth paragraphs [cf. mutatis mutandis find

SP. zn. PL. ÚS 16/09 of 19 July. 1.2010 (N 8/56 69 SbNU; 48/2010 Sb.)

paragraph 35].



VII/a




The General principles of



26. the applicant considers § 153b of the row in breach of article. paragraph 96. 1

The Constitution of the United States, art. 37 para. 3 the Charter of rights and

freedoms, article. 6 (1). 1 and article. 14 of the Convention for the protection of human rights and

fundamental freedoms and article. 14 of the International Covenant on Civil and

political rights.



27. The provisions of article 96 paragraph 2. 1 of the Constitution of the Czech Republic provides that

"[in] all parties to proceedings have equal rights before the Court". The provisions of the

Article 37 paragraph 2. 3 of the Charter of fundamental rights and freedoms has a similar

formulation: "all participants in the proceedings are equal." The provisions of the

Article 6 (1). 1 of the ECHR does not mention explicitly the equality of the parties,

However, the European Court of human rights (hereinafter "ECHR") in its

case-law the Court held that the principle of equality of arms is part of the right to

a fair consideration of the case (cf.. Ranjit K, J., Mike K., D., Kratochvíl, J.,

Bobek, m. European Convention on human rights. Comment. Prague: C. H.

Beck, 2012, with 737-740; and Molek, P. the right to a fair trial. Prague:

Wolters Kluwer, 2012, pp. 236-253). The provisions of article 14 of the ECHR then

enshrines the incidental non-discrimination. Finally, article. 14. 1

The International Covenant on Civil and political rights provides that the

"[a] ll persons are equal before the Court."



28. the Constitutional Court in its case-law, repeatedly found that the principle of

the equality of the parties is part of the right to a fair trial in

the broader sense of the word. The principle of equality of the participants while the Constitutional Court

means "equality of arms, and equality of opportunity" [find SP. zn. PL.

ÚS 15/01 of 31 July. 10.2001 (N 164/24 SbNU 201; 424/2001 Coll.)]. It

means that each process should be given a reasonable opportunity to

refer your matter under conditions that do not build it into a significantly

less favourable situation than that of its counterparty [find SP. zn.

III. TC 202/03 of 13 May. 11.2003 (N 134/31 SbNU 193)].



29. in a similar vein, the European Court of human rights found that the

the principle of equality of arms is one element of a wider concept of fair

process; and equality of arms, the ECTHR means the requirement that each of the

Parties to the proceedings to defend his case under conditions that, from the perspective of

the proceedings as a whole, significantly due to the neznevýhodňují

the opposing party (judgment in case Nideröst-Huber against Switzerland of 18 May.

2.1997 no 18990/91, paragraph 23). This applies to civil proceedings (cf.

the cited case Nideröst-Huber against Switzerland, § 23; or

judgement in the case of Foucher against France on 18 July 2005. 3.1997 no 22209/93,

§ 34) as well as criminal proceedings (see the judgment in case against Brandstetter

Austria of 28 June. 8.1991 No. 11170/84 and others, paragraph 66; judgment in case

Zahirović against Croatia of 25 June. 4. no 58590 2013/11, section 42). The aim of the

the principle of equality of arms is the achievement of "fair balance" between

the parties to the dispute (judgment in case Dombo Beheer B. V. against the Netherlands from

27 June 2002. 10.1993 # 14448/88, paragraph 33).



30. The principle of equality of the participants but by the Constitutional Court is not absolute.

Procedural equality cannot be interpreted as meaning that the legislature could not establish

a different range of procedural rights and obligations for different types of proceedings;

However, it must respect the same range of procedural rights and obligations in

proceedings with the same subject of proceedings [find SP. zn. III. TC 202/03 of

on 13 November. 11.2003 (N 134/31 SbNU 193), find SP. zn. II. TC 657/05 of

on 21 February 2006. 8.2008 (N 146/50 SbNU 291) or find SP. zn. PL. ÚS 16/09 from

on 19 December. 1.2010 (N 8/56 69 SbNU; 48/2010 Sb.)]. The Constitutional Court is

also aware that the absolute equality of the parties in the broader

the meaning of or cannot be reached. So some of the acts held

the plaintiff with the subject of civil proceedings the contested process, such as

for example, the withdrawal of the action, the defendant from the nature of things it cannot do. On the contrary,

a court fee is required to pay only the plaintiff substantially, and not

the defendant (the universality of this rule does not change anything or exemptions referred to in

§ 2 (2). 3 of Act No. 553/1991 Coll. on court fees, as amended by

amended, which are worded very closely).



31. Furthermore, the European Court of human rights is of the opinion that both

Parties to the dispute must be situated in a completely identical position, or

in criminal proceedings (see for example the decision of the Oyston v United

Kingdom on 22 March. 1.2002 No. 42011/98), even in civil proceedings

(see the judgment in case Kenedy v United Kingdom of 18 May. 5.

2010 # 26839/05, § 184



in fine

; or the judgment in case Batsanina against Russia from July 26. 5.2009 No.

3932/02, paragraph 27). The European Court of human rights, for example, has accepted the

different time limits for the performance of certain procedural acts for each party

proceedings, if such a difference had no effect on the position of the

the complainant (see e.g. the judgment in the matter and the SGEN-CFDT Guigue against

France of 6 April 2005. 1.2004 No. 59821/00; judgement in the case against Ewert

Luxembourg of 22 March. 7.2010 No. 50010/07, § 98), exemption from the

the court fee for only one of the parties (the partial decision in the case

Gouveia Gomes Fernandes and Freitas e Costa against Portugal of 26 March.

5.2009, no 1529/08) or the initiation of civil proceedings the Prosecutor in order to

counterparty (top-cited the judgment in case Batsanina against Russia, §

25-28).



32. Consequently, the Constitutional Court or the European Court of human

rights do not require absolute equality between the parties. This right is

Therefore, the law of omezitelným, because the different treatment for the parties is

under certain circumstances (see below) constitutionally conformal, respectively

concurrent with the European Convention on human rights.



33. the appellant considers a judgment by default also unconstitutional for

infringement of article 81(1). 14 of the ECHR, which enshrines the incidental non-discrimination.

In this context, the Constitutional Court notes that the principle of equality

the parties enshrined in article. 37 para. 3 of the Charter represents the

free-standing fundamental right, for which there is no need to distinguish between

akcesoritou and neakcesoritou of equality of arms to the general prohibition of

discrimination. The link between equality of arms and the prohibition of discrimination

However there are. The Constitutional Court is of the opinion that the principle of equality

Parties to the proceedings is



lex specialis

to non-discrimination, and therefore can also be used to apply this policy, after

the appropriate modification of the corresponding specificities of postulátu equality in

trial, test of direct discrimination. As stated by the Constitutional Court already in

finding SP. zn. PL. ÚS 38/04 of 26 March. 4.2006 (N 92/41 SbNU 173;

419/2006 Sb.):



60. the right to a fair hearing of the case cannot be separated from the General

the requirement of equality and non-discrimination. In this context, however, such

the importance of equality concerning the equality of participants in proceedings before the Court,

situated in different, opposing, procedural

capacities, usually referred to as the ' equality of arms ' ... In a practical

life as a rule not an absolute, mathematical equality; as to the concept of

the relative, in particular in the sense that it cannot completely wipe off the difference in

in particular, the procedural and factual position of the parties resulting from their

the different options. This inequality can be to a certain extent

offset by the additional guarantees for the weaker party. favor

defensionis, which is the manifestation of the eg. adjustment of the burden of proof. "



34. Direct discrimination consists of the following steps, which can be

comment in the form of questions: (1) it is the equivalent of an individual or

Group?; (2) these are treated differently on the basis of one of the

prohibited reasons?; (3) the different treatment to the complainant to bear

(saving a burden or denial of goodness)?; (4) the different treatment

justified, IE. (a) pursues a legitimate interest and (b) is reasonable?

[cf. find SP. zn. PL. ÚS 53/04 of 16 June. 10.2007 (N 160/47 SbNU

111; 341/2007 Coll.), paragraph 29; find SP. zn. II. TC 4377/07 of 30 November 2005. 4.

2009 (N 105/53 SbNU 313); find SP. zn. PL. ÚS 4/07 of 1 July. 12.2009

(N 249/55 SbNU 397; 10/2010 Sb.); the ECTHR Grand Chamber judgment in case

D.h. against Czech Republic of 13 October. 11.2007 No. 57325/00, § 175;

the ECTHR Grand Chamber judgment in case Carson v United Kingdom

of 16 December 2002. 3.2010 no 42184/05, § 61; Wagner, e. et al. The Charter

fundamental rights and freedoms. Comment. Prague: Wolters Kluwer ČR, 2012, with.

101; or Ranjit K, j., Mike K., d., Kratochvíl, j., Bobek, m. European Convention

on human rights. Comment. Prague: c. h. Beck, 2012, s. 1214). From

the case-law of the European Court of human rights to non-discrimination, then

It is also apparent that the different treatment is based on and from

because of this different treatment. For different treatment on grounds of race

or ethnic origin, gender, sexual orientation, nationality or origin

the child is then required to present a very strong justification [cf. for example.

judgment in case Ponomaryov and others against Bulgaria from 21 June. 6.2011

# 5335/05 (nationality); top-cited judgment of the Grand Chamber in the case

D. h. against the Czech Republic, section 176 (race); or judgment in Ünal

Tekeli against Turkey from 16 June 2003. 11.2004 No. 29865/96, § 53 (gender)],

While for other reasons, the different treatment is a review by the

The European Court of human rights, is less intense. You can distinguish between (i)

the fifth step in direct discrimination test, in which he plays the role of a measure


"podezřelosti" the reason for the different treatment, from which depends on

the intensity of the review by the Court.



35. In the application of that test of direct discrimination on the assessment of the

equality of participants in court proceedings is, however, necessary to take into account the

the specificities of the principle of equality of parties to the proceedings and direct discrimination test

to modify. First of all, it is not necessary to examine in the second step, zakázanost

the reason (and thus his "podezřelost" in step 5), since that is the

expressly enshrined in article. 37 para. 3 of the Charter: any different treatment

with the parties to the proceedings is



a priori

suspicious. Then, the first step to reduce the assessment of the question whether the

the parties to the proceedings. The modified test direct discrimination will continue for

clarity referred to as a test of equal treatment. Test of equal

treatment consists of the following steps, assessing: (1)

the comparable individuals or groups (i.e., for the parties to the proceedings)?;

(2) is treated differently?; (3) the different treatment of the concerned

party to the dispute to the debit (saving the burden or denial of goodness)?; (4)

This different treatment is justified, IE. (a) pursues a legitimate

interest and (b) is reasonable?



VII/b



Application of general principles to the present case



36. in the present case, the equality of the participants need to understand

the procedural equality of the parties in civil procedure.



37. A judgment by default is a special kind of judgment; It is a typical

Institute of classical civil process at issue, in which they are issued

the decision on the rights and obligations which the parties may freely

mimoprocesně Dispose (Winterová, judgment by default, the judgment of the

for recognition. Legal practice, 1993, no. 10, p. 594).



38. the General Court may decide by a judgment in absentia in accordance with § 153b of.

with the row, if the following conditions are met: (1) the defendant was

the Court delivered the action into their own hands; (2) the defendant has been served

into your own hands the summons to a hearing at least 10 calendar days

before the date of the hearing; (3) the defendant was advised that he will be

decided against a judgment by default, if the negotiations,

to which he had been summoned, misses no reasonable and timely apology; (4) the defendant

the meeting, which was the first negotiations on the matter, without apology,

where appropriate, its apology, which ran out of court before the start of the negotiations, it is

unfounded; (5) the applicant to attend a hearing on the matter came and suggested

that was decided by the judgment for the judgment of the defendant; (6) on the basis of

claims in the lawsuit about the facts of the dispute, it is possible

decide against the defendant, as to the legal assessment of those

the alleged facts justify a conclusion that the action is

well founded; (7) a judgment by default is permissible; and (8) are not

conditions for the issuing of the judgment for the recognition (Bureš, j., Clawed, l.,

The Inkeeper, of the code of civil procedure.-a comment. 7. the issue. Prague: C. H.

Beck, 2006, p. 703-704).



39. A judgment by the General Court may, but need not. The law so

It leaves to the discretion of the Court whether and where they are met by the law

set assumptions, it is appropriate to decide on the matter kontumačním

judgment, the opposite interpretation, i.e.. that the Court must a judgment by default when

evidence that the conditions specified in § 153b of the row, the doctrine and

the case law has already been completely abandoned.



40. the judgment in default is among the institutes used to accelerate the

proceedings to which the Constitutional Court has previously expressed. The General principles of

related to these institutes has defined in its award SP. zn. I. ÚS

329/08 of 20 May. 6.2011 (N 118/61 SbNU 717) where in connection with

judgment judgment stated:



"14. the courts are article 90 of the Constitution of the United States called upon in particular to

to the law laid down by way of providing protection to the rights. It

generally applies to any kind of judicial proceedings, even for the judiciary

civil. In accordance with the definition in the civil jurisdiction can be of

of the cited article of the Constitution, that the purpose of the civil proceedings of the Court of

is the provision of protection for endangered or impaired subjective private

the rights of ...



15. On the protection can be in the truest sense only if

civil process allows you to enforce the actually existing, and not

fictional subjective private rights and obligations. The extent to which

civil procedural law is moving away from this goal, is denied not only

protective function of the civil procedural law, but also a sense of

private control; in the final analysis is then significantly impaired by

legal certainty. In other words, the civil procedural law is effective only in the

the extent to which it is eligible to provide protection to the actual subjective

the substantive rights of the ...



16. that the request is generic, and can therefore be applied to all

the institutes used to accelerate civil proceedings of a court, including the

judgments, which respond to the judgment of the participant. Features of an order

the judgment is not any way to speed up the proceedings, but speed up the procedure for assistance

the application of factual presumption of adverse, against whom the judgment is for the

default judgment handed down. By default, the judgments are based on the fact that the procedural

the party in control of defending their rights, even though she had the opportunity to do so (eg.

Rosenberg, L.-Schwab, K. H.-P., Zivilprozessrecht, Gottwald. 16.

release. München: c. h. Beck, 2004, pp. 704), and despite the fact that it is a

inter partes dispute dominated projednací principle in which the party itself

in their own interests to contribute to the clarification of the facts, if they are

claims of the counterparty is untrue, incomplete or otherwise deviate from

fact. Judgment by default in this view, as it indicates

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

the provision of Section 114b of the row advocacy Bulletin, 2002, no. 2, p. 32),

' is not based on some ' fikcích ' or the mere effort to end

negotiations at any cost, but is based on long term proven factual

the presumption according to which it is highly likely that a party that any

in a way the other procedural claims does not dispute, though it has tents to

all of the options, do not take any factual claims or proposals and evidence to

ordered to the first oral court hearing, does not appear in the

fact no arguments or evidence against the correctness of the facts

the second claim process by ... In all modern civil judicial

orders are carefully excluded all unhealthy influences,

that could adversely, thus conflicts with the objective

the facts affect the application of the presumptions of fact or experience

the sentence ... The result of the application of the presumption is highly probable conclusion

bordering on certainty that decisive factual claims process of the party

to which the other party had not contradicted, are true. It's not about the application of fiction,

but the use of presumptions of fact, about which it can be assumed that corresponds to the

given that before the process of objectively and independently

occurred. The first conclusion of the judgment must be based on it. This is not a

judgment for recognition, but on the judgment issued on the basis of the facts,

that is in accordance with the internal conviction the judge, since it derives from the

in General, applying the factual presumption (experiential). '. '



41. On the basis of these general principles, the Constitutional Court stated that the

Institute a judgment by default is not in itself contrary to the

a fair trial [resolution SP. zn. III. TC 370/98 of 28 April. 1. the 1999

(On 7/13 SbNU 405)], however, its application must be in accordance with the purpose of

order the judgment (cf. e.g. the above quoted find SP. zn. I. ÚS

329/08, paragraph 17).



42. The application of the judgment by the Constitutional Court expressed

several times, while the basic principles in the report clearly summarized SP. zn.

I. ÚS 2656/12 of 7 November. 5.2013:



"14. the Constitutional Court has already in many of the findings [cf.. for example. the discovery of 10 June. 3.

2005, SP. zn. III. TC 428/04 N 53/56 SbNU 563), the discovery of 23 December 2003. 8.

2005, SP. zn. IV. TC 63/05 (N 163/38 SbNU 301), the discovery of 15 July 1.

2009, SP. zn. IV. TC 2785/07 (N 10/52 SbNU 103)], in particular,

the following legal opinions.



15. when deciding on the possible release of the judgment by default or when

design decisions of the defendant to set aside the default judgment should

the Court should also take into account the previous procedural activity of the defendant,

so that comment on the submitted application, whether the proposed evidence to defend ourselves

etc.



16. To issue a default judgment, the Court should be approached with discretion and had

Choose this Institute, in particular in cases in which the lack of interest on the part of

the defendant is obvious, when the defendant is truly idle (which is apparent

for example. from the content and frequency of the previously made procedural acts), and

he refuses to actively participate in the judicial process, or deliberately court proceedings

flexing.



17. This is because the default judgment is a formal institution, which

significantly reduces the possibility of the application of the procedural rights of the defendant. Each

has the right to seek protection in a Court of law, which has been threatened or

infringed. The provisions of article. 90 of the Constitution states that the courts are called upon

primarily to the law laid down by the way provide protection

rights. According to the article. paragraph 36. 1 of the Charter, any claim laid down


the procedure of their rights before an independent and impartial court and in specified

cases at another institution.



18. In cases where otherwise active participant unintentionally for their error

misses the first court hearing, but it is clear his interest to participate in the

the court proceedings and to defend itself, not the release of the judgment by default.

Priority in court proceedings in this case must remain the protection of the rights of

the participants of the trial (of the defendants), who in a judicial proceeding they want

actively participate. The main mission of the legal proceedings is to ensure the

fair protection of rights and legitimate interests of the parties (§ 1, § 3.

r.). terms of Decree of the judgment must be assessed carefully

and with restraint, in a controversial and borderline cases is not the issue

no need to answer.



19. The opposite of this procedure is precise formalism, the effect of which is

sophisticated reasoning an obvious injustice and the violation of

the meaning of § 1 and § 3 of the row. 90 of the Constitution and article. paragraph 36. 1 of the Charter

fundamental rights and freedoms.



20. If the Court of first instance has already chosen such a procedure (i.e. slated

If a judgment by default), it is for the Court of appeal to provide

protection to the rights of the participant. In this case, it is necessary to take

account primarily for the purpose of legal proceedings, which is the protection of the rights of

the parties (the courts are called upon to ensure that the law laid down by the

way to provide protection to the rights). "



43. In the award IV. TC 2785/07 of 15 December 1999. 1.2009 (N 10/52 SbNU 103) then

The Constitutional Court stressed that the Court must examine not only the reason

by default, but also a time range by default:



"The Court must, therefore, in each case before proceeding to

the release of the judgment by default, or the decision on the application for revocation

default judgment, carefully consider whether the reason for default judgment, as well as

as the time range of a default judgment to the defendant at the first hearing, are

excusable. When deciding on the possible release of a judgment by default,

or when deciding on the design of the defendant to set aside for

a default judgment, the Court should also take into account the previous procedural activity

the defendant, namely whether the submitted application, whether the proposed evidence to

their defense, etc. The Court should be taken into account in each case

also the nature of the subject-matter of the dispute. "



This means that in the case where otherwise active defendant misses a hearing about

five minutes, there is no issue of default judgment must be [cf. find sp.

Zn. III. TC 428/04 of 10 March. 3.2005 (N 53/36 SbNU 563)].



44. the Constitutional Court also commented on the application delivery in fiction

the context of the judgment by default, and in finding SP. zn. II. THE TC

451/03 of 16 June. 9.2004 (N 131/34 SbNU 325), where he stated:



"The basic requirements the provisions of section 46 paragraph 2. 4. s. l.,

that the addressee at the point of delivery in the time when this

delivery is to be made. Conversely, if a participant in the place

delivery delay, the delivery cannot take. fiction Expressly

formulated a rule does not allow modification, the Court has already done,

When examined and considered the relevant reasons for which the applicant

in the place of residence did not bother. Having regard to the provisions of § 46 para. 5.

with the round was on the complainant, in order to refute that at the point of delivery

During her stay. It is completely irrelevant, for what reasons this has happened.

If it is proved, then it cannot be effectively

delivery (could not get in fiction). The Constitutional Court is forced to

held that the interpretation of the provisions of § 46 para. 4 and 5 of general courts

in the present case was so extreme that it cannot be regarded as

constitutionally Conformal. As a result of this interpretation was the complainant

impossible to claim their rights in an independent and

impartial tribunal (article 36, paragraph 1, of the Charter). General courts also

act outside the limits of the law, which has also been a violation of article 6(1).

2 (2). 3 of the Constitution, or article. 2 (2). 2 of the Charter. "



It follows from this that, if the Court is considering the judgment for

default judgment in cases where an action or the summons to a hearing

delivered on the basis of the so-called. the fiction of delivery, must be extremely

carefully and examine whether they were truly exhausted all options, as

the defendant's reach.



45. From the above analysis of the existing case-law of the Constitutional Court

It is clear that the Constitutional Court has in the past dealt with the souladnost judgment for

in absentia the right to a fair trial (cf. resolution quoted above

SP. zn. III. TC 370/98), precise formalism in the application of the judgment for

default judgment (cf. e.g. the above quoted find i. ÚS 2656/12), the soundness and

the timeliness of the apologies of the party or the legal representative of the meeting, when the

decided by the judgment in absentia [cf. e.g. find sp.

Zn. I. ÚS 1084/08 of 18 May. 6.2008 (N 111/49 SbNU 599)], the obligation to

the Court of appeal to give the defendant the opportunity to comment on the merits test apologies

(see e.g. above quoted find SP. zn. IV. TC 2785/07) or the difference between the

missed and delayed (see e.g. above quoted find SP. zn. III. THE TC

428/04) and the obligation to interpret "first act" constitutionally Conformal

(see the above quoted find SP. zn. I. ÚS 326/08; to the General

assumptions for the issue of a judgment by default there defined see section

38 the current award).



46. In the present case, however, applied the new argument, and it

through the argument based on the principle of equality of the participants

proceedings, enshrined in article. paragraph 96. 1 of the Constitution, article. 37 para. 3 of the Charter, article.

6 (1). 1 of the ECHR and article. 14 of the International Covenant on Civil and political

rights. The Constitutional Court therefore proceeded to test application of equal

treatment as defined in section 35 of this finding.



47. with regard to the first step of the test set out above, equal treatment,

i.e.. the issue of the comparability of the situation compared to individuals, the constitutional

the Court finds that the plaintiff and the defendant are in civil procedure

the parties to the dispute. Therefore, they are parties to the proceedings, as required by the first step.



48. as regards the second step of the test of equal treatment, the judgment for

judgment pursuant to § 153b of the 5th issue in favour of the plaintiff, the only

While the defendant cannot take advantage of an order by the judgment of the Institute. Out of it

It follows that the applicant on the one hand, and the respondent on the other hand is

treated differently.



49. In the third step, then, the Constitutional Court assessed whether the alleged different

treatment to the detriment of the party in whose favour he launched a General Court

management of specific control standards referred to in article 14(2). 95 para. 2 of the Constitution. In

the present case is in Děčín District Court considers that it has suffered is

the defendant. The Constitutional Court agrees with this conclusion. The fact that the defendant

cannot design a judgment by default against the

nedostavivšího the Prosecutor, he is denied the opportunity that you want to

available to the applicant. Different treatment, therefore, to the detriment of the defendant, and

the Constitutional Court therefore proceeded to the final step of the test of equal

treatment.



50. In the last, fourth step, the Constitutional Court assessed whether it is different

treatment of the plaintiff and defendant in relation to the possibility to propose the release of

order of the judgment is justified. Ospravedlnitelnosti assessment

is breaking up into two parts: (a) assessment of the legitimate interests of the different

treatment; and (b) the adequacy of the different treatment. In other words,

The Constitutional Court had to consider whether a legitimate interest is given on how to

the release of the judgment by default design only the plaintiff, and if such

a legitimate interest exists whether this different treatment is reasonable.



51. In the identification of legitimate interest was based on the Constitutional Court of the explanatory memorandum

the message to Act No. 171/1993 Coll., the code of civil procedure

Institute an order by judgment. One of the main principles of the

This amendment was to accelerate civil proceedings (see General section

explanatory memorandum to the Act No. 171/1993 Coll.). To this end, to

Code of civil procedure introduced by the institutes default judgment and

judgments of recognition. As regards the judgment in default, the explanatory memorandum

States that the concept of the default judgment in the § 153b of the row while

follows the Edit contained in the civil code (Act No. 113/1895

.), which, according to the legislature's long-term applications have proved their

justification, however, "[n] and the difference from this edit that in Czech

countries allow a default judgment as a judgment to decide when

failed to attend a hearing duly transferee the defendant, so even if the

If you missed the first meeting of the Prosecutor's Office, it is proposed to modify similar edit

Hungarian law which were in force in the Slovak Republic, and which admits the release

judgment by default only in the case when the first act misses the defendant "

(see the explanatory memorandum to the Act No. 171/1993 Coll. to point 18). To a different

treatment has led the legislature "the fact that the admission of the judgment for

by default, the applicant and the defendant would create uneven position of the parties.

If the defendant misses a meeting, he's out of action known not only received in advance

the subject of the proceedings, but also the applicant's line of argument, and what evidence it offers

Court to prove their claims. If accepted, the judgment for


by default, the plaintiff, missed the party, that the opinion of the defendant

ahead and did not have the opportunity to respond to the allegation that the defendant

It was only at the hearing, the Chairman shall refer "(ibid.).



52. Consequently, the aim (again) the anchoring of an order by the judgment

the Czech civil process was to streamline the activities of the general courts

and the acceleration of the proceedings. Different treatment of the plaintiff and defendant

the legislature was motivated by the fact that the defendant is before the first hearing in

more favourable situation, since he knows the subject of the proceedings and the arguments of the Prosecutor,

While the applicant does not know the opinion of the respondent before the hearing (or not

to know if the defendant has not sent the Court a replica to the application).



53. this concept of default judgment therefore comes from the fact that the plaintiff

already their interest in the activity and the things he showed, and had to meet all other

procedural requirements. The reason for the different treatment of the plaintiff on the

the one hand, and the respondent on the other hand considers the Constitutional Court

legitimate. Also access to the background to the adoption of

Act No. 171/1993 Coll., which the court proceedings unnecessarily prepared

primarily by the defendants (e.g. borrowers). The threat of a plot

default judgment should lead to a "disciplined" the defendants, who are

dodging, whether due to their inertia, or deliberately, participation in court

negotiations and thus very complicate the exercise of justice. On the contrary, the applicant usually

on the date of the judgment, and hastened to the Court contended the regulation rather

the negotiations, to boycott. This de facto status continues to this day.

It is true that-as noted by the District Court in Děčín-in practice in the

limited cases occurred and the situations in which the first

the applicant does not appear at the hearing. The Constitutional Court is but from official activities

known that these cases were and are rarer than a no-show

the defendant or the plaintiff, and not be presented in its submission that no

empirical data to the contrary. There is therefore nothing to indicate that there would be a

significant change in the social conditions of the effectiveness of Act No. 171/1993

Coll., which cast doubt on the legitimacy of the existing solution that

allows you to issue a default judgment in favor of plaintiff only.



54. at the conclusion of legitimacy because of the different treatment as referred to in

cited the explanatory memorandum does not alter or historical considerations of the petitioner.

The legislature was the adoption of Act No. 171/1993 Coll. aware of different

the concept enshrined in § 396-397 c. l. s. that threatened the walkover

the two parties, and deliberately deviated from it (see paragraph 51 of this award)

the benefit of the Hungarian concept, used to this day, for example, in Slovakia

(cf. § 153b of Act No 99/1963 Zb., Občiansky súdny poriadok;

(again), enshrined by law No. 232/1995 Coll.). In doing so, as

stated in the preceding paragraph, the legislature provided a reason for the different

treatment of the plaintiff and defendant of the Constitutional Court considers it legitimate.

Different adjustment in civil procedure code the Court so cannot of itself lead to

the conclusion on the unconstitutionality of the existing editing in § 153b of the row.



55. The same is true also for comparative argument. The fact that in

other countries have different editing, without further does not mean that United

the adjustment does not pursue a legitimate public interest. Moreover, the applicant does not

no example where the concept of the default judgment similar to that of the Czech,

i.e.. allowing to demand judgment by default only for the benefit of

the plaintiff was found to be unconstitutional. In other words, German, Austrian, or

the Czechoslovak first Republic the concept of an order by the judgment are

Perhaps de lege ferenda, preferable, however this does not mean that the existing

Czech concept in § 153b of the row does not pursue a legitimate public interest, and is

unconstitutional.



56. The Constitutional Court so proceeded to the assessment of the adequacy of a different

treatment of the plaintiff and the defendant, which is payable by the defendant. In this

the criterion is necessary to assess whether the requirement of equality of arms is populated in the

her integrity, IE. If each of the parties to the proceedings may plead my cause

under the terms of which, from the perspective of management as a whole, significantly

neznevýhodňují due to the counterparty (see paragraphs 28-32 this finding).

The Constitutional Court in this step also took into account the fact that the judgment of the

a default judgment is a procedural penalties, which affects their attention on side

its procedural interests, and not the direct sanctions, so the application should

This sanctions the Institute civil proceedings the Court should not be in the

contrary to its function, i.e. It should not be directed to issue judgments,

which are in conflict with the actual substantive status (Stavinohová,

J., Mr L, P. Sanctions in civil procedural law. Legal forum, 2008,

No. 9, p. 374). Or, order by judgment is not any function

to speed up the proceedings, but speed up the procedure with the help of the application of factual

the presumption according to which you can with a high probability bordering on certainty

be considered as true decisive factual claims process the parties to whom

counterparty did not contradict, though had an opportunity to [find SP. zn. (I).

TC 329/08 of 20 May. 6.2011 (N 118/61 SbNU 717)].



57. The key starting point for Constitutional Court is then how to Institute

default judgment applied the general courts, and should be taken into

account both the formal prerequisites for the application of the Institute

expressly referred to in § 153b of the row, so the material conditions for its

application resulting from its purpose.



58. A disadvantage of the defendant is first and foremost the pre-moderated formal

the conditions for the issue of a judgment by default, referred to in § 153b of.

(see paragraph 38 of this finding), of which the most important in terms of

the equality of the parties, are two: a review of the claims put forward by the applicant

the Court and the possibility of additional excuses. These two conditions are

default judgment differs from the judgments of recognition under section 153a of the.

with (see SMID, of the Institute of the preparatory meeting.. Legal forum,

2011, no. 1, p. 17). As regards the first condition, IE. a review of the

the merits of the action, this means that the Court does not issue a judgment for

by default automatically just after the applicant's proposal, but the factual allegations

the plaintiff must lead to the conclusion that the claim, which seeks, is true.

If the Tribunal considers that these claims are incomplete and cannot be one of them

to draw a conclusion about the validity of the plaintiff's claim, then it is not possible

decide by a judgment by default (see also the judgment of the Supreme

of the Court of 28 June. 12.1998, SP. zn. 15 What 437/94). Similarly, that

the incompleteness of the factual allegations could not be for the purposes of the judgment for

by default remedied during the first session, as it cannot be taken into account to supplement the

factual assertions and evidence during the first session (cf. judgment of the

The Supreme Court of 30 June. 3.2001, SP. zn. 20 Cdo 2498/99). The second

by limiting the inequalities between the plaintiff and the defendant is then the possibility of apologies from

defendant (acceptable reasons for failure to appear at the hearing.

Spáčil, j. adjournment of court hearing and excuse the participant or his

representative. Advocacy newsletter, 2004, no. 3, p. 12).



59. Above and beyond the formal conditions laid down in § 153b of r. then

The Constitutional Court adds that the judgment by default applicable only in

simpler matters; in more complex matters, it is necessary to prepare

negotiations within the meaning of § 114c of the row for which the code of civil procedure counts

not only are the sanctions in case of failure by the defendant (see § 114c para.

6 o. s. l.), but also in case of failure by the applicant (see paragraph 114c paragraph.

7. s. l.). Also this fact thus moderated the inequality between

the plaintiff and defendant in the application of the judgment by default.



60. The material conditions for the issue of a judgment by then

result from the use of the verb "may" in section 153b para. 1. s. l.,

provides that the "[from] mešká if the defendant ... the first hearing in the case

held, ... the Court may rule on the action by a judgment in absentia. " It

means that the Court, in compliance with the formal conditions laid down in § 153b of.

with row may or may not issue a judgment by default. General courts therefore

have a default judgment when using a diskreci, aimed at

is mj. just to prevent the infringement of the principle of equality of parties to the proceedings (respectively.

to preserve the equality of their weapons).



61. the first and most important material condition of an order by the judgment

is the absence of the procedural activities of the defendant. The General Court judgment for

a default judgment shall not issue, if the negotiations failed otherwise procedurally

Active defendant (find SP. zn. I. ÚS 2656/12 of 7 November. 5.2013; closer

see paragraphs 42-45 of this finding). Just as the principle of equality is made

Parties to the proceedings. As was pointed out above, features

order the judgment is not in any way to speed up the proceedings, but speed up

control with the help of the application of factual presumption which can be high

probability bordering on certainty be considered true decisive

factual claims process the parties to whom the counterparty did not contradict, although to

It had the opportunity. Just the previous procedural activity of the defendant,

who have failed to attend a hearing, therefore, may in a particular case

the application of this factual presumption excluded (cf. Constitutional Court

SP. zn. I. ÚS 326/01 of 20 December. 6.2011).




62. the second substantive condition lies in the distinction between the default and

with just a delay. Thus, if the defendant arrived at the hearing only with the

a delay of a few minutes, do not use the default judgment must be

[find SP. zn. III. TC 428/04 of 10 March. 3.2005 (N 53/36 SbNU 563)].



63. A judgment by default is associated with other material

limits. It is clear that the Institute cannot be applied even in situations

When is the General Court known to the defendant at the hearing from the failed

because of a natural disaster or other inevitable events (on the situation

the civil procedure code also explicitly remember the Court; see § 402 paragraph 2. c. r. s.).

The Constitutional Court also considered unconstitutional application of the judgment for

default judgment in cases where the respondent submitted tens or hundreds of

actions that, in their cumulative effect to constitute a vexatious filing,

and the defendant misses a hearing just at one of them; in such cases, the

exceptionally, could account feels and concept of abuse of rights.



64. General courts must carefully consider the particular application of the judgment

default judgment in cases where the defendant was served the lawsuit and

summons to a hearing pursuant to § 49 paragraph 1. 4 of the code of civil procedure, that is,

on the basis of the so-called. substitute service or fiction; So how to do this

Indeed, even in the present case the appellant SP. zn. 22 C 128/2009

(the summons to a hearing here, the defendant was delivered on the basis of the so-called fiction

delivery according to § 49 paragraph 1. 4. s. l.). The Constitutional Court to the fiction

in connection with the delivery of the judgment by default already expressed in the above

the cited award SP. zn. II. TC 451/03 (see section 44 of this finding). From

It follows that if the Court issued a default judgment in cases where

have been an action or the summons to a hearing at the. fiction

delivery, must proceed extremely carefully and examine whether they have been

truly exhausted all options, as the defendant.

A judgment by default is not built on a fiction nespornosti

the facts, but on the assumption that the defendant very likely does not have

no arguments against the accuracy of factual claims of the plaintiff, with whom

could meet. However, if the defendant could not realistically with the arguments of the applicant

meet, this presumption is significantly eroded (see above quoted find

SP. zn. II. CS 455/03). It does not change the fact that it is

above all things the addressee (the defendant) to (properly) were taken over by the Court

the document at the address for service.



65. The Constitutional Court notes that however you cannot anticipate all the possible

a situation where the General Court shall refrain from issuing a judgment by default,

Although the formal conditions are met as set out in § 153b of the row Above

enumeration type referred to cases where the issue of a judgment by default in

contrary to the principle of equality of parties to the proceedings, it is therefore only

demonstrative. In other cases, the general courts must follow the General

citations, by the Constitutional Court in this award, or

in finding SP. zn. III. TC 428/04 of 10 March. 3.2005 (N 53/36 SbNU 563):



"The priority in court proceedings in this case must remain the protection of the rights of

the participants of the trial (of the defendants), who in a judicial proceeding they want

actively participate. The main mission of the legal proceedings is to ensure the

fair protection of rights and legitimate interests of the parties (sections 1 and 3.

r.). Conditions for the Decree of the judgment must be assessed

wisely and with restraint, in a controversial and borderline cases is not his

release order. "



66. with regard to the above-described formal and material conditions for the issue of

default judgment and on available remedies against Microsoft

This process of the Institute, the Constitutional Court is of the opinion that from the point of view

civil procedure as a whole is not a defendant to the existence of the investigation

the Institute has suffered substantially against the plaintiffs. In particular, the

the material conditions for the application of the judgment by formulated

The Constitutional Court and the Supreme Court, and later adopted by the lower General

the courts are a sufficient tool to prevent or correct the leader called.

"false judgments" (consistently see Bezouška, P. Short reflection on

judgments of recognition and default judgments. Právní rozhledy, 2004, č. 1, s.

34.) different treatment by the respondent in the application of the judgment by default

Therefore, it is reasonable, and therefore this process in a test of the constitutionality of the Institute

He has prevailed.



67. The provisions of § 153b of the row can be interpreted to be constitutionally Conformal

way. The Constitutional Court then put in accordance with the principle of judicial

restraint (judicial self-restraint) take precedence over constitutionally konformnímu

the interpretation of legal provisions before the contested and from above

the proposal for the reasons given by the District Court in Děčín on cancellation of the Institute

default judgment enshrined in § 153b of the row failed. However, this

It cannot be excluded, if this finding, and it laid out a constitutionally compliant

the interpretation of the general courts will not be followed or it is established that there has been a

material change in circumstances since the introduction of the Institute of social sciences

an order by the judgment in 1993 (for example will be demonstrated in the increased number of

nedostavivších the appellants to Act), the Constitutional Court in the future to

repeal of existing forms of an order by the judgment will not proceed.



68. At the conclusion of the Constitutional Court emphasises that although arguments

The District Court in Děčín did not persuade the unconstitutionality of the existing

editing an order by the judgment in § 153b of the row, because the different treatment

the plaintiff and the defendants according to the Constitutional Court does not reach the intensity of the

unconstitutionality, the Constitutional Court considers that the arguments put forward by the District

a court in Decin as legitimate, which is confirmed by the views of the many Czech

civilians, also plédují for the introduction of modifications to a judgment by default

the applicant (cf. for example. Winterová, a. et al. Civil procedural law. 1.

release. Prague: Linde, 1999, p. 268; or Bezouška, P. Short reflection

above the judgments of recognition and default judgments. Právní rozhledy, 2004, č. 1, s.

34). But it is rather about the initiative to consider the amendment of an order

the judgment; such a change, however, is not the competent constitutional court, but

The Parliament of the United Kingdom, as the Constitutional Court is not positive

by the legislator.



VIII.



A summary of the



69. the Constitutional Court of the District Court in Děčín on cancellation of the Institute

default judgment enshrined in § 153b of the row for the lack of

the principle of equality of parties to the proceedings, enshrined in article. paragraph 96. 1 of the Constitution

The United States, art. 37 para. 3 of the Charter of fundamental rights and freedoms, article. 6

paragraph. 1 of the ECHR and article. 14 of the International Covenant on Civil and political

rights, has not complied with, since the Court concluded that section 153b of the row can be

lay out so that is contrary to the principle of equality of parties to proceedings

did not occur. Therefore, the Constitutional Court gave priority to constitutionally konformnímu interpretation

before the cancellation of the contested provisions and in accordance with the principle of judicial

austerity proposal from the District Court in Děčín.



70. the Constitutional Court in its case-law, namely repeatedly [find SP. zn. PL.

TC 41/02 of 28 October 1999. 1.2004 (N 10/32 SbNU 61; 98/2004 Coll.), find sp.

Zn. PL. ÚS 16/08 of 29 May. 9.2010 (N 203/58 SbNU 801; 310/2010 Sb.)

find SP. zn. PL. ÚS 79/06 of 16 June. 10.2007 (N 162/47 SbNU 145;

307/2007), finding SP. zn. PL. ÚS 15/12 of 15 April. 1.2013 (82/Sb.)

find SP. zn. IV. TC 3102/08 of 12 October. 7.2010 (N 144/58 SbNU 183)]

He explained that if the possibility of constitutionally consistent interpretation

the contested provisions, this has priority over the SERENADES of the contested

provisions. To this procedure, alleging the principle of minimizing the

the intervention of the Constitutional Court came up this time, and, by analogy, as in

the previous cases cited above, the said interpretative statement

which the general courts and lawmakers suggested way of interpreting

the contested provisions constitutionally Conformal procedure. The Constitutional Court has already in

the cited award SP. zn. PL. ÚS 41/02, concluded that: "Different

the interpretation of the article. 89 para. 2 of the Constitution, for the findings, suggestions to zamítajících

the abolition of legislation on grounds of constitutional priorities Conformal

interpretation of decisions of the Constitutional Court was legally bezobsažnými,

possibly confusing, and at the same time urged the Constitutional Court to the procedure

appears to be, in effect, an absurd and unsustainable: rather than relying on

the possibility of constitutional interpretation, abandoned compliant judicial self

restraint and in the case of the slightest possibility of conflicting interpretations of constitutional

the contested regulation cancel it. For referred to in proceedings for review of the standards in the

the case of the adoption of a negative statement with interpretative argument to the constitutional

the Court reasons arising from a set of load-bearing basic constitutional principle ranked

in the framework of part of the award. "



On the basis of its sustained practice and for the above reasons, therefore, the constitutional

the reasons of this Court bearing to generalise its award on the constitutionally

Conformal interpretation of the provisions under consideration and said it is in the

interpretativním of the operative part of the award.



IX.



The conclusion of the



71. On the basis of all the foregoing, the Constitutional Court

The District Court in Děčín rejected (article 70, paragraph 2, of Act No. 182/1993 Coll.) and

defined the terms of constitutional provisions under consideration of conforming interpretation

the law.



The President of the Constitutional Court:




JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, a decision of the plenary, the judges adopted a

Stanislav Balík, Jan Filip, Vlasta Formankova, Vladimir Crust, Vladimir

Sládeček and Radovan Suchánek.