101/2003 Coll.
Find
The Constitutional Court
On behalf of the Republic of
The Constitutional Court decided on 11 July. March 2003 in Parliament on the proposal of the high
the Court in Olomouc, on the repeal of § 24 para. 4 Act No. 328/1991 Coll., on the
bankruptcy and settlement, as amended,
as follows:
The provisions of § 24 para. 4 Act No. 328/1991 Coll., on bankruptcy and settlement,
as amended, is deleted.
Justification
(I).
The day the Constitutional Court received 15.8.2002 according to art. 95 para. 2 of the Constitution of the United
Republic (hereinafter referred to as "the Constitution") and § 64 para. 4 of law No. 182/1993 Coll., on the
The Constitutional Court, the High Court in Olomouc's proposal to repeal the provisions of §
24 paragraph 2. 4 Act No. 328/1991 Coll., on bankruptcy and settlement, as
the text of the.
The High Court in Olomouc are according to the provisions of Section 104a of the civil
Court (hereinafter referred to as "the row"), presented the decision in
where the parties to the proceedings, the county or district courts have considered that the
It is not determined by the substantive jurisdiction of bankruptcy court for a decision on the application
the lender on the determination of the claim or of the District Court for a decision on
the creditor's claim in the proceedings commenced in the District Court prior to the Declaration
bankruptcy. In these cases, should the Supreme Court decide in Olomouc
substantive jurisdiction according to the contested provisions of § 24 para. 4 of the law on
bankruptcy and settlement.
The applicant justifies its proposal by law No. 105/2000 Coll.
amending Act No. 328/1991 Coll., on bankruptcy and settlement, as amended by
amended, and certain other laws effective from 1.5.2000, was in
new test formulated provisions of section 24 of the Act on bankruptcy and settlement
embedded paragraph Fourth, which provides that if, before the
Declaration of bankruptcy proceedings of popřené receivable and
aborted [section 14, paragraph 1 (b), (c))], determining the popřené
accounts receivable in the already initiated proceedings; a new procedure for popřené to allocate the
not initiated [section 14, paragraph 1 (b), (d))]. A proposal for the continuation of a broken
the proceedings must be filed within the time limits specified by law (article 23, paragraph 4, and 5, and section
24 paragraph 2. 1 and 2); the parties are becoming those whom the law
the participants of the means (article 23, paragraph 2, and 3 and § 24 para. 1 and 2).
In the opinion of the appellant, the legislature offered enough circuit
the cases on which the disposition of this provision will turn out. The application of this
the provisions in the various procedural situations, bankruptcy creditors,
whose claims were unenforceable in the context of the review meeting
disclaimed, the unequal position. In some cases,
find themselves in an impossible situation of a procedural, in other cases, by contrast, are
compared to other bankruptcy creditors.
The High Court in Olomouc in its proposal further stated that the application
the provisions of § 24 para. 4 of the Act on bankruptcy and settlement occurs in
If the popřené claim proceedings have been initiated prior to the Declaration
bankruptcy and the bankruptcy Declaration, this procedure was discontinued. According to the
the claimant's opinion doesn't count § 24 para. 4 cases where the adjustment
proceedings in the Court of first instance has already been decided yet
was not in force and was not even challenged by appeal, resistance or
objections. In these cases, the Court decision is published by bound
in accordance with § 156 para. 3 and § 170 para. 1. with a row in a given situation cannot
in the opinion of the appellant no longer occur to change participants or to change the
the proposal when the matter has already been decided. On the other hand, however, contested
provisions which forbid to initiate a popřené claim a new procedure.
The rapporteur therefore considers that in this case, the creditor
unenforceable claims process to obtain the decision of its
popřenou dispute the claim in bankruptcy proceedings.
The rapporteur also considers that the provisions of § 24 para. 4 of the law on
bankruptcy, however, may lead to the infringement of the equality of the bankruptcy
the lenders not only to the detriment of the creditor whose claim has been conducted
proceedings before the Declaration of bankruptcy, but also its advantages compared to the
other bankruptcy creditors. The provisions of § 24 para. 4 of the law on
bankruptcy is clear obligation of the Court to modify the circuit
the parties and the operative part of the judgment without an application. Therefore, in cases where
bankruptcy creditor formulates a proposal for the continuation of the already initiated proceedings
inaccurately or incorrectly, it is explicitly the provisions of § 24 para. 4 of the law on
bankruptcy from creditors in a bankruptcy than others,
whose claims were supported also disclaimed.
In the above mentioned facts the applicant sees reasons
neústavnosti the contested provisions of the Act on bankruptcy and settlement, and
He suggested, therefore, acceptance of the award, which will be the provisions of § 24 para. 4 of the law on
bankruptcy and settlement, as amended, repealed.
II.
The judge-rapporteur has requested, in accordance with the provisions of § 42 para. 4 and § 69
paragraph. 1 Act No. 182/1993 Coll., on the Constitutional Court, as amended
legislation, representation of both chambers of the Czech Parliament.
And)
Chairman of the Chamber of Deputies, represented by PhDr. Lubomír Zaorálkem, in
its observations dated 10.10.2002 stated that the motive of the legislator to
the inclusion of the provisions of § 24 para. 4 of the Act on bankruptcy and settlement on the determination
disputed claims within the framework of previously launched and the Declaration of bankruptcy
the broken procedure was to simplify and rationalise the way discussion
the disputed claim for the need for bankruptcy. This provision, in his
view allow reducing incidental disputes where it would be
otherwise, it must initiate a new procedure, a separate lawsuit on the determination of disputed
accounts receivable. As a general rule can be broken out of the existing procedure for the same
claim a number of evidence that have been interrupted proceedings
performed. The legislature when discussing the Act was based on the purpose of the law
and objectives of the bankruptcy proceedings and was in the belief that complies with the requirements
The Constitution and the Charter of fundamental rights and freedoms ("the Charter").
At the conclusion of his observations of the President of Parliament
The United States, that the law No 105/2000 Coll. amending and supplementing the
Act No. 328/1991 Coll., on bankruptcy and settlement, as amended
legislation, was approved by the Chamber of Deputies on 21. a meeting on
28.1.2000, while 128 voted for its adoption of the 152 present. The Senate
The Czech Parliament has approved a draft law submitted by the
The Chamber of deputies in the texts of amendments to its 16. a meeting of the
the date of 1.3.2000 and subsequently approved by the Chamber of Deputies a draft law on
the version approved by the Senate when the 98 of 181 present voted for and 81
against. The law was approved by the required majority of members
the legislature, was signed by the respective constitutional officials, and was
properly declared. In the opinion of the Chamber of Deputies acted as legislator
the choir, in the belief that the law is adopted in accordance with the Constitution and the constitutional
policy and it is up to the Constitutional Court, in the context of the examination of the
the proposal to assess the constitutionality of the contested provisions and issued the relevant
decision.
(B))
The Senate in its observations dated 16.10.2002, signed by the Chairman of the doc.
JUDr. Petr Pithart, stated that the Bill was submitted to the Senate of the day
the Senate proposal discussed 7.2.2000. on their 16. the meeting of the second term of Office
period June 1.3.2000 and its resolution No. 302 returned the Bill
The House of representatives with amendments. For the return of a Bill
of the 53 senators present voted 52 and 1 Senator abstained from the vote.
The Chamber of Deputies a draft law discussed again the day the 4.4.2000
its 24. meeting. The Bill as amended by the amendments approved
by resolution of the House of Commons no 902, when present, 181
Jos adoption 98 members and 81 votes against.
Senate committees was the issue of § 24 para. 4 the Act extensively
discussed in the context of the intention to make the so-called. incidental disputes always
the Court ruled, even if it is otherwise of the claims on which the Court does not have
jurisdiction, which does not correspond to the provisions. § 7 para. 1 of the code of
Code of civil procedure. The concept, according to which incidental disputes should decide
for example, as well as for the administrative and tax courts, bankruptcy claims
appeared in custody at § 24 para. 4 to amend the law as incoherent, since
According to some opinions, it was overlooked that, according to § 14 para. 1 (b). (c))
to interrupt not only judicial but also other proceedings. Continuation of proceedings should
It had happened not before the Court, but by authority (administrative, tax)
which the proceedings were initiated.
According to the observations of the Senate Committees came to the conclusion that the applicant apparently
the law was not taken into consideration, that any outcome of the dispute about the authenticity,
the amount of the claim does not constitute an obstacle or the order became final for
claims in the proceedings that the Declaration of bankruptcy.
Especially significant is this effect appeared to be in a situation where under section 45
paragraph. 2 of the Act on bankruptcy and settlement should not be claims which
for the purposes of bankruptcy be considered established, but that the bankrupt had denied after the
cancellation of bankruptcy, enforcement. The discussion then was also
highlighted the fact that the wording of § 23 para. 2 the last sentence may be in
contrary to § 24 para. 4 of law, since, according to the above opinions
the order claims in the proceedings, the Court should decide in which
continues, and that may not be the management of the Court.
As further stated in its observations, the President of the Senate, despite the above
discussions and proposals for the deletion of § 24 para. 4 of the draft law,
Subsequently, in the committees opinion keep that provision in the present
the text of the. Meetings of the Board, the issue has already been addressed.
III.
According to the provisions of § 44 para. 2 Act No. 182/1993 Coll., on the Constitutional Court,
the Constitutional Court may, with the agreement of the participants to refrain from oral proceedings,
If you cannot expect from this meeting the further clarification of the matter. The Constitutional Court
Therefore, in accordance with this provision, requested from the parties
a statement whether it agrees with the abandonment of the oral proceedings. The filing of the
the High Court in Olomouc 5.3.2003 and submissions of 4.3.2003 also
The Chamber of deputies of the Czech Parliament and the Senate of 7.3.2003
The Parliament of the United Kingdom in the present case have expressed their agreement with the
abandonment of the oral proceedings.
IV.
Before the Constitutional Court to assess the content of the contested
provisions of the law of the aspects set out the provisions of § 68 para. 2 of the Act
No. 182/1993 Coll., on the Constitutional Court, as amended, i.e.. from
for compliance the provisions of § 24 para. 4 of the Act on bankruptcy and settlement
with the constitutional law, the fulfilment of the formal requirements, the adoption of
the relevant legal standards.
The draft law, amending and supplementing Act No. 328/1991 Coll., on the
bankruptcy and settlement, as amended, has been submitted to the
The Chamber of Deputies as a group of 29.4.1999 suggestion of the day. From těsnopisecké
reports of 21. a meeting of the Chamber of Deputies, 3. the electoral period, the constitutional
the Court found that day, according to the Chamber of deputies in favour of 28.1.2000
Printing House 219, in the version approved amendments with
This proposal approval, when 152 members of Parliament present them for design
voted 128 and one Deputy voted against the proposal.
From těsnopisecké news on 16. a meeting of the Chamber, 2. the term was
demonstrated that the day was Bill 1.3.2000 adopted by the EP amendments,
proposals returned to the Chamber of Deputies, when from the present 53 Senators
52 voted for and one Senator abstained from the vote.
From těsnopisecké news on 24. a meeting of the Chamber of Deputies, 3. the electoral
period, the Constitutional Court found that the Chamber of Deputies adopted a of the day
4.4.2000 a bill amending Act No. 328/1991 Coll., on bankruptcy
and to compensate, as amended, and some other laws, in
the version approved by the Senate, and that of the 181 members
voted for and 81 against 98.
After the adoption of the law No. 105/2000 Coll., amending Act No. 328/1991
Coll., on bankruptcy and settlement, as amended, and some
other laws, signed by the competent constitutional officials, and published in the
the amount of 32 of the laws that has been circulated the day 25.4.2000. Law
acquired in accordance with its article. VIII. effect on 1.5.2000.
The Constitutional Court therefore, within the meaning of the provisions of § 68 para. 2 of the Act on the constitutional
the Court found that the Act No 105/2000 Coll., which was to act on the
bankruptcy and settlement inserted the provisions of § 24 para. 4, was accepted, and
issued within the limits of the Constitution laid down the legislative competence of Parliament
The United States and constitutionally prescribed way, as indeed already Constitutional
the Court stated in case SP. zn. PL. ÚS 36/01 (no 403/2002 Coll.).
V.A.
The provisions of § 24 para. 4 to the Act on bankruptcy and settlement inserted
his amendment in the form of Act No. 105/2000 Coll., amending Act No.
328/1991 Coll., on bankruptcy and settlement, as amended, and
some other laws, with effect from 1.5.2000. The contested provisions of § 24
paragraph. 4 turns out to situations where a liquidator or bankruptcy creditor
in the context of the review of the negotiations denied unenforceable the creditor's claim
arising from claims that are logged on to the bankruptcy proceedings. In the case of
the bankruptcy creditor applied prior to the Declaration of bankruptcy of any part of the
This claim in the proceedings by declaring bankruptcy is interrupted, it is
not permitted to initiate a new indirect control, but the procedure for determining the
authenticity, above, or the order of the claims should be carried out before the
the Court, which led to the proceedings, which was a declaration of bankruptcy by law
broken.
As is apparent from the explanatory memorandum to the Act No 105/2000 Coll., in the
If the intention of the legislature to streamline and rationalise the cross
you call up the receiver control procedures. The aim of the legislature was
to reduce the current number of incidental proceedings so that the law
allow the use of the results of the management of broken as a result of the Declaration
bankruptcy, and establish the procedure for the claim that went on before the
a declaration of bankruptcy.
From the explanatory memorandum to the law and the observations of the parties to the proceedings is also
evident that the legislature, the provisions of § 24 para. 4 of the law on
bankruptcy in the belief that in the future it will not be necessary
be initiated on the determination of popřené claims the new management, but that in the original
proceedings will continue on their current status, and, in particular, to exercise the
all factual and other findings.
The Constitutional Court agrees with the applicant that the legislature sufficiently
appreciated the circuit all procedural situations on which the provisions of the
turn out, the practical implications of such a concept, but also its itself
no constitutional dimension.
(B) IN THE.
Article. paragraph 96. the Constitution enshrines as one of the key principles of the functioning of the
and implementation of judicial power in the Czech Republic the procedural principle of equality rights
Parties to the proceedings before the Court. This constitutional principle guaranteeing equal so
procedural status of participants of legal proceedings as to the rights, which the participants
a specific type of proceedings confers on the rule of law. This principle can be
inferred that for a particular control type, the only jurisdiction must be given
the Court stricto sensu in the dimension of the physical and functional, such adjustment shall
be carried out by the law.
Constitutional provisions guarantee equality Institute in its procedural
the form, which, however, has the impact of substantive. The role of the ordinary laws, and
This procedural requirement, is protected in the Constitution and thus understood the Institute
convert to equality of procedural safeguards that populate this way understood
ensure equality.
It is clear that for different control types differing in their subject
the legislature may provide a different range of procedural rights and obligations.
In other words, equality of the parties is to be interpreted as meaning that must
be respected the same range of procedural rights and obligations, in the proceedings
consistent with the same subject. However, it is not permitted to
the distinguishing criterion was the subject of the proceedings instead of participant-albeit
for example, defined their procedural position in any previous
control.
From this interpretation of the provisions of article. paragraph 96. the Constitution is based on (i) the interpretation of the
article. 38 para. 1 of the Charter, since the determination of the legal judge must precede the
constitutionally the legal determination of the jurisdiction of the Court-compliant. The principle
which is the law of jurisdiction reserved to law, includes
not only a postulate, which States that only the law may provide for the authority and
jurisdiction of the Court to hear a particular case, but also the requirement that
the law of such jurisdiction and jurisdiction is defined for all type-identical
cases as well, and probably not an unjustified difference in jurisdiction of courts
understood, materially and functionally.
Substantive jurisdiction of the courts to disputes raised by the bankruptcy or
compensation is regulated in the provisions of § 9 para. 3. in the row so that it is
entrusted to the regional courts as the courts of first instance. These disputes are
among other things, disputes about authenticity, above, and the order of the registered
the claims, which were not contested during the bankruptcy proceedings. In such
situations, it is the bankruptcy lender forced to your claim within the prescribed
the time limits and in compliance with other formalities in the Special
(interim) management, which had been initiated bankruptcy. In such
cases pursuant to the above provisions of § 9 para. 3. row and section
23 para. 2 of the Act on bankruptcy and settlement of substantive jurisdiction in bankruptcy
the Court, IE. in principle, the regional court.
The proposal for the contested provisions of § 24 para. 4 of the Act on bankruptcy and settlement
However, a special definition of the substantive jurisdiction of the Court, if at all
prevents the management of the special proceedings, the proceedings in the bankruptcy court and
constructed for a given type of disputes, i.e.. disputes about authenticity, above and
the order claims a special jurisdiction of the Court, which previously led
to the application of the current proceedings brought by creditors, whose claims popřené
the subject was related to the popřenou unenforceable a claim.
The result of the provisions of § 24 para. 4 is the fact that it constructs
the double mode of substantive jurisdiction of the courts. It can be said that the relationship between
the provisions of § 9 para. 3. s. l., § 23 para. 2 and § 24 para. 4 of the law on
bankruptcy is the relationship between the general law (lex generalis)
and a special law (lex specialis), taking account of the constitutional
the requirement of the legal establishment of the jurisdiction of the Court. However, as previously
stated, it cannot be accepted that the law amounted to an unjustified difference in
the definition of substantive jurisdiction for cases which are the subject of
the same. The concept of the legislation, § 24 para. 4 of the law on bankruptcy and
the settlement creates a duality of substantive jurisdiction in disputes relating to the determination of
authenticity, above, and the ranking of claims in the bankruptcy popřených
control. In doing so, it comes to the subject of proceedings concerning the same dispute. Application
the provisions of § 24 para. 4 of the Act on bankruptcy and settlement causes
the difference in kind and, where appropriate, the functional jurisdiction, where in one case
shall be decided by a regional court in interim proceedings as the Court of bankruptcy, in the
another case, then the Court district, where he led the proceedings brought by the action
the current popřené of the claim, the creditor whose subject was related to the
popřenou claim and that it was a declaration of bankruptcy is interrupted. In
this case, then deciding to determine the authenticity, above or order
popřené concentrates in the Court of claims, which was factually and locally
appropriate to the original interrupted the proceedings, i.e. in a court which is not
Court of bankruptcy. Substantive and territorial jurisdiction established pursuant to § 24 para.
4 of the Act on bankruptcy and settlement thus depends on the factual, local and
where appropriate, the functional jurisdiction of the Court in the previous proceedings, which was
Declaration of bankruptcy pursuant to § 14 para. 1 (b). (c)) the Bankruptcy Act
the settlement discontinued; in fact, however, depends on the position of the
the lender as the plaintiff in the main proceedings.
Such an approach raises as a result of the inequality in the process
the position of individual creditors who legally applied their popřenou
unenforceable debt in various procedural modes.
This is because § 24 para. 4 of the Act on bankruptcy and settlement provides circuit
Parties ex lege (i.e. the parties become those
the law for the participants indicates), and the Court produce the obligation to
the newly described the proceedings to remedy defects of the proposal on
the continuation of the proceedings, unless the relevant requirements (e.g., designation
participants, petit, etc.), even in a situation where the original proposal to begin
proceedings on a claim that was related to the popřenou claim he suffered from disabilities,
that the plaintiff did not remove it. In particular, the creditor has
the obligation pursuant to § 23 of the Act on bankruptcy and settlement in the defined period of time
accurately identify the parties and specify exactly the entire claim. Out of it
It is therefore clear that any interested party (lender) who submitted the proposal for the
the continuation of the proceedings according to § 24 para. 4 of the Act on bankruptcy and settlement,
finds himself in the position of the beneficiary compared to the party to the proceedings
(creditor) who files a motion to begin the special (proceedings)
proceedings in the bankruptcy court pursuant to § 23 para. 2 of the Act on bankruptcy and
settlement.
Procedural inequality of creditors, who exercise their popřenou
unenforceable debt in various procedural modes, is also given and
different fee arrangements. In the event that the original procedure was
suspended in circumstances where a creditor as a party to the proceedings has not yet
legal fee obligation, and then filed for its continuation,
According to § 24 para. 4 of the Act on bankruptcy and settlement, will be compared to the creditor,
the claim is commenced proceedings incidental unjustifiably
preferential treatment. A proposal for the continuation of a broken control namely party
does not arise pursuant to Act No. 549/1991 Coll., on court fees, as
amended, and the court fee, even though the fee
has not been paid either in the main proceedings, it will be obliged to decide the matter.
The consequence of non-payment of the court fee in particular will
on the contrary, stop this procedure. In a situation where a participant in the original
management paid a higher court fee than would be required to pay in
interim management, you cannot delete this discrepancy, which results from the
the inability to do the acts in the proceeding which is legally interrupted.
Referred to the concept of the consequences of unequal rights and obligations of the participants
procedures for determining the authenticity of the above and the order of the popřené of the claim is in violation of the
with the article. paragraph 96. 1 of the Constitution, whose contents to the extent of its impact was
laid out above. The legislature makes various procedural rights and grants
the obligations of the parties with the same subject, which leads
sometimes to the advantage, and sometimes to the disadvantage of those which participants
control. Different procedural mode is determined only from a procedural
the position of a creditor in the previous procedure, the subject only has been linked to
popřenou claim.
The current practice of the courts in the application of § 24 para. 4 of the law on
bankruptcy and settlement shows that the unconstitutionality of that provision cannot be
to overcome such interpretation, which would have been constitutionally Conformal.
Indeed, the consequences of editing does not eliminate the unconstitutional nor the interpretation of the shares of the
some of the general courts (see, for example, the resolution of the High Court in
Olomouc of 10.9.2002 SP. zn. 4 Cmo 305/2002), by which the
the provisions of § 24 para. 4 of the law on bankruptcy and settlements determined by special
the type of the so-called. "the management of the proceedings", i.e.. control, which is different from the original
control to their subject and circle of participants and that is with the original proceedings
only the ex lege United, taking the contents of the previous management, the management of the
According to § 24 para. 4 of the Act on bankruptcy and settlement of not eating, and is
be in it after their bankruptcy continue. This interpretation from above
described by the discrepancy in the rights and obligations of the participants in the control "
control "and incidental proceedings.
IN THE C
The provisions of article. 37 para. 3 of the Charter provides that all participants are
the proceedings are equal. This provision of the Charter is to be interpreted so that the
It is a principle of guaranteeing equal procedural rights and responsibilities of specific
participants in the particular proceeding. By this provision of the Charter distinguishes
from the provisions of article. paragraph 96. 1 of the Constitution, which generally predicts equal
the participants in the proceedings with the same subject, as explained
from the top.
The application of the provisions of § 24 para. 4 compared with the application of § 23 para. 2
the Act on bankruptcy and settlement (indirect control), ultimately
determined by the unequal position of creditors falling within these two procedural
modes in the satisfaction of their claims in the context of proceedings (section rozvrhového
30 of the law on bankruptcy and settlement). If the cross controversy seen
as a formalised evidence whose outcome is bankruptcy court
a binding, then it is obvious that the original statutory procedural duality has
the impact of the procedural status of the creditors in the bankruptcy proceedings of the
for equality.
Vi.
The plenary of the Constitutional Court, therefore, with regard to the above
decided in accordance with § 70 para. 1 Act No. 182/1993 Coll., on the Constitutional Court,
as amended, repealing section 24 para. 4 of the law on bankruptcy
and to compensate, as amended, and that conflict with the article. paragraph 96. 1 of the Constitution
and article. 37 para. 3 of the Charter, and this finding becomes enforceable
on the day of its publication in the journal of laws.
In this regard, however, the Constitutional Court had to deal also with the question of
What effect will have a derogation to this provision in the management led by the courts,
whose jurisdiction was established by the contested provision.
If the control has already been initiated, led by courts whose jurisdiction was
founded by the contested provisions, continued in the current mode even after
enforceability of a Constitutional Court, whereby the provisions of § 24 para. 4
the Act on bankruptcy and settlement, would so to continue
unconstitutional disparities raised this provision. The Constitutional Court therefore
notes that the enforceability of the award ceases to be a law based on
substantive jurisdiction of the courts established the provisions of § 24 para. 4 of the law on
bankruptcy and settlement.
However, at the same time, the Constitutional Court emphasises that the ordinary courts when the solution's
the procedural situation must act so that your procedure
not committed denial of Justice (denegationis iustitiae). The procedure,
that would prevent a party, the court proceedings in the options
to claim their rights before an independent and impartial tribunal, as
guarantees the article. paragraph 36. 1 of the Charter, would mean a violation of the rights of the participant
proceedings to a fair trial and as a result would undermine the principles of the
the rule of law (article 1, paragraph 1, of the Constitution). Such a procedure would lead to the
another institutional consequences.
Vice-President of the Constitutional Court:
JUDr. Haboob in r.
