195/2006 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court ruled on 25 April. October 2005 in plenary in the composition of Stanislav
Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel
Holländer, Ivana Janů, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří
Nykodým, Pavel Rychetský, Miloslav Výborný, Elisabeth Wagner and Michael
April on the proposal of the District Court in Ostrava on abolition of the provisions of §
338zo paragraph 1. 4 of Act No 99/1963 Coll., the code of civil procedure, as amended by
amended,
as follows:
The proposal is rejected.
Justification
(I).
The appellant, in accordance with article 7(2). 95 para. 2 of the Constitution of the Czech Republic
claims that the Constitutional Court has issued a finding that the provisions of § 338zo para. 4
Code of civil procedure (hereinafter also "the row."). He stated that during his
the decision-making activities in the matter of SP. zn. 90 E 1096/2002, concluded that the
the provision is in breach of article. 1 and article. 3 (2). 1 of the Charter
fundamental rights and freedoms ("the Charter"), and in particular of the
the following reasons:
By order of 7 November 2002. April 2003, no. 90 (E) 1096/2002-8 ordered the District
the Court in Ostrava, enforcement of compulsory sale of a business and an administrator
the company has appointed Mgr. of n. Submission of 14 July 2004. November 2003 brought an action
business court administrator report on the price of the company according to § 338m of the row.
This message belongs to the company statutory commitments for a total of 26 035
CZK. With regard to the debtor, it was found that the undertaking of the statutory
For more than 4 years in fact does not exist and the company does not belong to any
movables, real estate or accounts receivable. By order of 23 July. January 2004
No. 90 (E) 1096/2002-37 performance in Ostrava District Court decision according to §
338n paragraph 1. 6. r. stopped, as the price of things, rights and other
assets belonging to the enterprise does not exceed the amount of the payable
cash obligations belonging to the undertaking, the expected reward and Manager
compensation for his cash expenses. Submission of 11 May 1999. March 2004 administrator
the company according to § 338zo para. 4. row has accounted for the reward and cash outlays
an enterprise administrator. Cash outlays accounted in the amount of $106 for
shipping and has proposed that the remuneration for the performance of the Enterprise Manager feature set
the Court at its own discretion according to the time of the performance function; According to §
2 Decree No 485/2000 Coll., on the amount of the remuneration of managers of firm
its destination and determine compensation for their cash expenses, the basis for the
the determination of the remuneration of the administrator of the enterprise is the observed price of the enterprise according to § 338n
paragraph. 2. s. l., but in the present case as follows to determine Manager reward
You cannot, because the company does not own any property.
The appellant also pointed to section 338h paragraph. 1. s. l., according to which the Court
in its resolution on writ of sale of a business shall designate
Business Manager, which the law (e.g. § 338k o. s. l., 338m o. s. l.)
the fulfilment of the obligations of family stores and at the same time lays down the responsibility for
any damage caused by the violation of his duties due to a. By the administrator
the court appoints a person registered under the special provisions in the list
liquidators. According to section 338i paragraph. 4. with the row, the administrator has
entitled to remuneration and the reimbursement of cash expenses. The level of remuneration of the administrators
the method of determining the compensation and the determination of their cash expenditures is
made in the Ministry of Justice Decree No 485/2000 Sb.
The basis for determining the remuneration of the administrator of the observed price of the enterprise according to § 338n
paragraph. 2. (net worth). With the remuneration of the Manager of an undertaking in
the event of enforcement of a decision, for example. According to section 338n paragraph. 6 o. s. l.,
the said Decree does not count. The discrepancy between editing the cited
the provisions of § 338i para. 4 and referred to a decree by the Court
Bridge of the interpretation Act so that the Court determines the remuneration for its consideration with a
reliable to the scope of activities of the administrator.
The rapporteur also called the contested paragraph 338zo paragraph. 4. s. l., according to the
which the obligation to pay remuneration and reimbursement Manager, cash expenses when
stop the execution of a decision the Court saved to either the debtor or jointly and
severally liable to the creditor, to those who came in the proceedings as an additional
permissions, and creditors who register their claims (§ 338s and 338zn
o. s. l.), depending on the reason for stopping power
the decision (paragraph 338zo, paragraph 4, of the row). The legal construction
paragraph 338zo paragraph. 4. with the row, however, allows you to control the emergence of
a situation where the possibility of claims venture Manager is directly linked
the solvency of the participants of the proceedings. Because the creditor can save
the obligation to pay claims only in exceptional cases (usually the administrator where
Yet when filing the application for enforcement is required
diligence), is in most cases obliged to this obligation required.
Especially in a situation where the debtor is a company (§ overindebted 338n (6).
with row), it becomes clear that the claims are not met or an enterprise administrator
they will be satisfied only in part; If the administrator has not been undertaking established
bankruptcy by the administrator according to § 13b para. 3 of Act No. 328/1991 Coll., on the
bankruptcy and settlement, as amended, (hereinafter referred to as "the law of
bankruptcy and settlement "), there are only 2. non preferential Business Manager
Receivables from the bankrupt (section 31, paragraph 5, of the Act on bankruptcy and settlement).
If the application for a declaration of bankruptcy is dismissed, then Business Manager
run out to meet his demands or this option. The legal adjustment
the remuneration of the managers is causing in many cases, an enterprise administrator, even if
meet all of the obligations imposed by the law, for the performance of its functions
remuneration and expenses are not reimbursed to him ready to has made from its own
resources. Construction of the administrators ' compensation created enterprises not only
leads to the discontent of their legal entitlements, but also distorts the overall
the results of the performance of the sale of a business decision, since, for certain groups of
business managers absentuje motivational significance of rewards.
The appellant added that the Manager of the enterprise is to be regarded as a special
a public authority, as well as the receiver (see find
The Constitutional Court, SP. zn. PL. ÚS 36/01, promulgated under no. 403/2002 Coll.
also a collection of findings and resolutions of the Constitutional Court, Volume 26, finding no 80).
The above statutory construction decisions on remuneration and finished
administrative expenditure (paragraph 338zo, paragraph 4, of the row) causes a situation where you cannot
satisfy legal claims the company Manager on the reward and cash outlays,
without an alternative source is embedded the next (e.g., the obligation of the State to pay the
the claims administrator or the obligation to pay a deposit to the compensation and cash outlays
authorized) for payment of these claims. Paragraph 338zo paragraph. 4.
row cannot be used as an alternative source or any backup
composed according to § 270 of paragraph 1. 3. row, since this can only serve to
the enforcement costs paid by the State. According to the
the opinion of the applicant, in order to create inequality in the remuneration of the two categories
managers of the enterprise-the first group of managers of venture, which satisfy the
remuneration and expenses provided by law is done (in the schedule of
the proceeds from the sale of a business or in the schedule to the estate under section 31
paragraph. 5 of the Act on bankruptcy and settlement), and the second group company managers
without the ability to satisfy their claims or with the option of just satisfaction
negligible, although both the Enterprise Administrators group to meet all
the obligations imposed by the law.
II.
The constitutional court proceedings in accordance with the provisions of section
69 of Act No. 182/1993 Coll., on the Constitutional Court, as amended
Regulations (hereinafter referred to as the "law on the Constitutional Court") to the parties-
The Chamber of Deputies and Senate of the Parliament of the Czech Republic and also
the opinion of the Ministry of Justice of the Czech Republic.
In the Chamber of deputies of the Parliament of the Czech Republic is an introduction
rekapitulován the contents of the application for annulment of the contested statutory provisions and
Consequently, the legislative process leading to the adoption of this provision.
Adopted amendments to the contested provisions did not impact.
The legislature acted in the belief that the law is adopted in accordance with the
The Constitution and with our legal order and leaves it to the Constitutional Court, in order to
assess its constitutionality.
Senate of the Parliament of the Czech Republic in their extensive observations on the merits
things stated that upon the sale of the company could not ignore the State legislature,
When in the course of enforcement of the decision ordering the sale of a business comes out
it clear that the company is in bankruptcy (overindebted). The only ways of process
the bankruptcy solution are in our law of bankruptcy and settlement; Therefore, it was appropriate to
to solve the detected decay by stopping the enforcement proceedings (section 338n (6).
s. r., § 338w para. 3. in the row), and that for the benefit of a dedicated
management of the bankruptcy (section 4b of the Act on bankruptcy and settlement). If the Court
enforcement stops, it saves under § 338zo para. 4. s. l.
the obligation to pay remuneration and compensation for business managers cash expenses
the debtor or jointly and severally liable to the bodies there.
Legislator left no eligible enterprises with legal support Manager-
even in the form of pecuniary claims. From the indicated context,
supported by other legal texts (paragraph 338i paragraph 4, o. s. l., § 338ze
paragraph. 7. s. l.), can be considered by the Senate concluded that legislators
cannot be attributed to the intention to invoke the law, the State of which the Enterprise Manager
implementation costs was rejected to the compensation and for the reimbursement
cash expenses. In this context, can be a legitimate (and constitutional)
be considered as a source of satisfaction cost an enterprise administrator who is found
especially for those people-freeholders, as a result of the behavior of costs
company Manager.
The Senate also refers to the provisions of § 338i para. 4. s. l., according to which
the administrator has right to remuneration and to the reimbursement of cash expenses. When you successfully
sale of the company is uspokojován of the distributed nature of the claim; If it is not
the very nature of claim paid in full, the Court shall grant the Enterprise Manager
the claim for the principal secured under section 338ze paragraph. 7. s. l.
However, if the sale of the company in civil court proceedings does not,
the Court-as already mentioned-the management stops and saves the obligation to
payment of the správcova claim the bodies referred to in paragraph 338zo paragraph. 4.
is a qualified ground for the "failed" sale of a business
lack of funds raised by the sale of the company to the extent that the
cover provided for commitments (the price of the goods, rights and other assets
belonging to the undertaking, together with the resources ... does not exceed the amount of the payable
cash obligations belonging to the company, claims, those
who in the management proceeded as additional permissions ... reward and Manager
compensation for his cash expenses, or that it exceeds only slightly), has
administrator the ability to realize his claim in the scheme of the Act on
bankruptcy and settlement. Further fate of the satisfaction of the claim depends on how
that became the administrator in bankruptcy in the case the same person
(Administrator of company, however, its function for the duration of the bankruptcy
does not exercise) or not.
In the opinion of the Chamber, it is possible to state that the claim to remuneration, and
on the reimbursement of cash expenses of the enterprise administrator-the administrator in bankruptcy
in bankruptcy proceedings, gets "advantageous position" than the "plain"
an enterprise administrator. Benefit claims lies in the fact that will satisfy a
the essence of the bankruptcy (section 31, paragraph 5, in conjunction with section 31, paragraph 2, of the law on
bankruptcy and settlement), at any time in the course of bankruptcy proceedings (section 31
paragraph. 1 of the Act on bankruptcy and settlement). In its submission the appellant
business managers ' claims "or" create two groups of administrators
"If the company builds against each other those whose satisfaction is
"provided in the schedule of the proceeds from the sale of the company or in the schedule
in bankruptcy, "against a group of managers of the company without the possibility
such satisfaction. According to the scheme, however, inequality is not-according to the
representation of the Chamber-"alleged" consistently. The appellant referred to
example, it would be possible to build another, such as when
the company administrator has not been fully satisfied from the proceeds of the sale of real estate or
He was unable to realize his claim against the guarantor (§ 338ze;
o. s. l.). This part of their observations because the Senate has concluded by stating
that should be achieved "perfect" (here said to be unable to literally use
the applicant expressed the requirement to ensure the same right to remuneration
and cash outlays, since this whole problem was unsolvable) equality in
business managers claim to remuneration, and cash outlays, it would
their claim to be satisfied with the enforcement by sale
of the business. In principle, this would mean that the claim had to be paid on the
(or completely paid) by the State. At this point it is possible-in the opinion of
Senate-to counter the claim of the plaintiff company administrators of demotivation
the argument that not the threat the discontent of their claims, but just
She is "100 percent" confidence could be the poor living factor.
It also said it is not without significance that the full satisfaction of management rights in the
mode of the enforcement procedure for předluženého of the enterprise has led to adverse
exempci receivables from the scheme of the Act on bankruptcy and settlement.
In its observations the Senate relies on finding no 403/2002 Coll., which
the Constitutional Court held to similar issues of remuneration and reimbursement
the receiver in bankruptcy proceedings. For a key
the issue of distinguishing between two groups of administrators of the company (with unequal
possibility of satisfaction), although both groups shall perform all the duties of the
saved by law, will be considered by the Senate of the basal expression of the constitutional
the Court: "If the purpose of the constitutionally legal provisions allowing compliant audition
even in the case when in bankruptcy proceedings is not liquidated any assets of the
bankruptcy and advance on the costs of bankruptcy has not been composed ...
(Note: it was not, therefore, a different source) ... should then be considered,
a violation of the constitutional principle of the equality of status of the neakcesorické, which is the
created in legal reimbursement of cash expenses and plane rewards administrators ".
Through the prism of diction, however, mentioned-in the opinion of the Senate-was easy
"succumb to the impression of a clear solution in the case of cancellation of the § 338zo
paragraph. 4. ". However, you need to consider is said to be next circumstances. How it was
shown, entitled Enterprise Manager is uspokojován of (section 338ze of the
l.), respectively. from other sources. In addition to the compulsory they are guarantors pursuant to §
338ze paragraph 1. 7. s. l., or permissions or creditors pursuant to § 338zo para. 4
of the row For the specific case of over-indebtedness of the enterprise, however, is to look for
the satisfying of claims venture Manager source within the bankruptcy proceedings.
Another source from the perspective of the code of civil procedure for the Enterprise Manager
Although it does not exist, but the code of civil procedure does not prevent (on the contrary, it creates
the necessary conditions) the use of resources to provide a special
(over-indebtedness) standard and adequate legislation; (to do this
He left the Senate on the part of their observations, already cited above). Otherwise, the
However, according to the Senate, it appears the whole thing from the perspective of the Act on bankruptcy and settlement.
In this way is said to be able to share concerns about uneven
access to the satisfaction of the claim, the administrator of the company (see top-
claims with a "more favourable" position). Any solution, however, according to the Senate
already out mode, the code of civil procedure, and therefore is not subject to
This detailed observations, which the Senate has concluded by stating that it is
entirely up to the Constitutional Court to examine the constitutionality of the contested provisions.
In simple opinion of the Justice Department, which drafted the proposal
oppose, it is in particular noted that the cancellation of the contested provisions would
on the contrary, to create inequality because "the Court should not act
the provisions of the "whereby administrators could admit a reward and compensation
cash expenses.
III.
The Constitutional Court, in accordance with the provisions of § 68 para. 2 of the Act on the constitutional
the Court dealt with the question of whether the law, which has raised the unconstitutionality of
the contested provision was adopted and issued within the limits of the Constitution laid down
competency and constitutionally prescribed way.
This is the law No 30/2000 Coll., amending Act No 99/1963 Coll.,
Code of civil procedure, as amended, and certain other
laws. In this respect, the relevant Council prints, těsnopiseckých
reports and data on the progress of the vote, the Constitutional Court found that the House
the Chamber of deputies of the Czech Parliament approved the draft of this law properly
at its meeting held on 9 April. December 1999 and the Senate of the Parliament of the Czech
the Republic has approved the proposal as amended by the Chamber of Deputies on a transferred
meeting held on 12 June 2006. January 1, 2000. After the signature of the President of the Republic and the
the Prime Minister has been promulgated in the collection of laws in the amount of 11 under
the number 30/2000 Coll., The law was adopted and issued within the limits of
The Constitution laid down the competence and constitutionally prescribed way.
IV.
After this discovery went up the Constitutional Court to assess the content of the contested
provisions of the Act in terms of its compliance with the constitutional order of the Czech
the Republic [article 87, paragraph 1 (a)) of the Constitution of the Czech Republic].
The provisions, which the appellant attacks and calls to cancel, as follows:
"The obligation to pay remuneration and reimbursement Manager, cash expenses Court stores
either the debtor or jointly and severally liable to the creditor, to those who
the proceedings came as additional privileges, and creditors who signed up
their claims (§ 338s and 338zn), depending on the reason for the
stopping power of decision occurred. ".
The introduction to the Constitutional Court the question of the position of Manager with enterprise and
its definition in relation to the administrators. Activity and
the position of the Enterprise Manager is similar to the status and activities of the administrator
in bankruptcy under the Bankruptcy Act and the settlement. As with the
the bankruptcy proceeding is an obligate, conceptual part of enforcement
sale of a business establishment, the administrator of the enterprise (section 338i of the row). As already
It has been said in the Constitutional Court, SP. zn. PL. ÚS 36/01,
teaching the receiver the specific public authorities,
its mission is to ensure the proper course of bankruptcy (see to.
Elias, Audition. Lawyer, no. 2/1995, p. 123; H. Hafiz, R., Tomanek
Some of the basic questions of the Act on bankruptcy and settlement. The right and the
business, no. 10/1994, p. 27 et seq.; Fr. Štajgr, bankruptcy law.
Prague, 1947, p. 71).
The definition of doktrinárním in relation to the administrators, the
The Constitutional Court endorses and has no reservations or to its use in relation to
managers of the enterprise. Doktrinární the definition based on the aspects
defining the concept of a public body, namely the public purpose,
tenure and jurisdiction. The public purpose of the institution of the receiver
nature, as well as the Manager of an undertaking, it is to be found in the acceptance of
limited public intervention in the solution of property relations. Way
the establishment of the business administrator is given by a decision of a public body-Court (section
338i paragraph 1. 1. s. l.). Its permissions and obligations enshrined
in a number of the provisions of s. r., then represent the exercise of authority.
The Court shall appoint an administrator of the company the person registered under the Bankruptcy Act and
settlements in the list of administrators of the bankrupt estate. To the list of administrators can be
write only an individual person that is fully eligible for legal
capacity, has the appropriate qualifications and are written consents,
Alternatively, a public trading company, which will be the activity Manager
through its shareholders, which demonstrates that they meet the
the conditions for inclusion in the list. Exceptionally, the Court may appoint an administrator
(I) the person recorded to this list, if it satisfies the conditions for registration
to the list, if an administrator agrees with the provision.
The Constitutional Court as well as in his previous cited Award (SP. zn.
PL 36/01), which in this context refers, is based on the fact that
the performance of the functions of the Enterprise Manager set up a court cannot be accommodated from the
the view of the constitutional law under the framework of the work or service imposed by law for the
protection of the rights of others pursuant to art. 9. 2 (a). (d)) of the Charter. It is apparent from the
the fact that the company is fundamentally Manager selects from the list of administrators of the bankrupt
(section 338i, paragraph 1, of the row), which leads the court competent for the proceedings
and the list of administrators can be written to a physical person or a public
a company only if the registration agreement. Person
already included in the list of its establishment the company administrator can refuse,
only if there are important reasons for it. Exceptionally, the Court may establish
by the administrator and the person recorded in the list of administrators, unless of course, with the establishment of
agrees. The said mechanism is provided either implicit, in advance of the
General consent to the exercise of the function, or consent to a specific administrator for
the case in question. For the performance of this function does not meet the character of absence
consent, as a condition for the performance of work or services within the meaning of article 87(1). 9.
2 of the Charter, or article. 4 (4). 3 of the Convention for the protection of human rights and
fundamental freedoms. This conclusion is in conformity with the legal opinion
expressed by the European Court of human rights in the case Van der Mussele
against Belgium (judgment of 23 November 1983). Means a person registered in the
the list of administrators in bankruptcy with its proposal on the writing and performing
write to the list, gave preliminary approval to help establish the functions and
This entails risks, and the risk to which they belong, not in all cases
Business Manager, comfort your baby reaches its statutory claims. The fact that the
the enterprise administrator might not achieve the satisfaction of their claims, even
in bankruptcy proceedings, if the procedure in the framework of enforcement fails, it is
risk, in which are all administrators of the company and not
inequality in their position. Indeed, not only the Manager but also
everyone who performs similar functions on behalf of the State (e.g. notary)
located in a similar situation.
The performance of the Enterprise Manager feature is not even part of the employment relationship and
Therefore, in terms of content, as well as the purpose and sense of him showing up at all the provisions
article. 26 of the Charter. There is no further business, even when he's the nature of the activities,
that is carried out for profit, and is not even
the operation of other economic activities and cannot be from
the constitutional framework as defined by their perspective article. 26 of the Charter.
In addition to the above the same characters, to which you can assign responsibility
Business Manager and administrator in bankruptcy for the culpable breach of
the obligations, however, there are also substantial differences between the two functions.
In doing so, it must be presumed that, above all, how to edit the administrator
bankruptcy in the Act on bankruptcy and settlement, as well as edit
Enterprise Administrator in the code of civil procedure, are editing different
comprehensive and independent. While the activity of the Enterprise Manager
is directed only to the sale of the company, the activities of the receiver is
focused on the realisation of the entire estate, with the main purpose of
is the relative satisfaction of all creditors of the bankruptcy assets forming the
the essence of. For the enforcement of the compulsory sale of a business does not occur
mostly to the business activity itself, as is often the case with
bankruptcy, but only change its owner forced (the replacement of the original
owner-the owner of the new debtor-the successful bidder).
The main and essential difference between the two procedures, however, lies in the fact
that while bankruptcy proceedings are initiated, if the debtor is insolvent, the
the basis of the proposal for the Declaration of bankruptcy filed by debtor respectively.
the lender (the initiation of proceedings is therefore not a single person in there), it is
enforcement of a sale of a business consistently controlled the disposition principle.
It is therefore fundamentally proceedings which are initiated only on the proposal of the entitled party.
It entails the specifics of enforcement proceedings. True has mainly
choice of the method of enforcement of the decision and is only on it, whether
proceeding to enforcement, sale of a business, for which there may be a
for example. the risk of over-indebtedness. Therefore, the bears and the increased responsibility for their
decision. Authorized shall, before submitting a proposal for the implementation of the performance
the decision to consider carefully how they will proceed. A legitimate
Moreover, quite a very effective means to determine matrimonial property regimes
principal. This is primarily the Institute statement of assets
embodied in § 260a et seq.. o. s. l., according to which the creditor who has
enforceable decision granted financial claim, before the
filing of the application for enforcement, the Court suggest that the summoning
mandatory and called him to the Declaration of assets. The one next to section 260 of the row.
(assistance to the Court in determining the financial possibilities of compulsory) represents the
another form of assistance, which the Court provides creditors, so that they can on the way
enforcement successfully enforce their claims. In addition, the Court should
to assess the suitability of the proposed manner of enforcement and, if it
considered inappropriate, he should probably order the execution of the decision to other
in an appropriate manner (section 264 (1) o. s. l.).
In this case, it is proposed to abolish the § 338zo para. 4. s. l., as
in the opinion of the applicant in the Act set out how payment Manager
the company does not need to meet his statutory claims (claim for
reimbursement of cash expenses and remuneration). The legal construction
allows the creation of a situation where you cannot satisfy legal claims administrator
business is embedded the next alternative source of payment
claims. This, in the opinion of the applicant, first, distorts the overall results
enforcement, sale of a business, as a group of administrators
Enterprise absentuje importance of motivation and rewards determined by an inequality in
the pay gap between the administrator of the estate, whose claim on the
reward and cash outlays is ensured by the Act on bankruptcy and settlement (§
31 para. 5 of the Act on bankruptcy and settlement) and between the administrator of the company according to the
Code of civil procedure, which does not have the ability to satisfy their claims
or its ability to meet is just negligible. With this view, the
The Constitutional Court does not completely. In so doing, it must be assumed, as
mentioned above, that the enforcement of the decision is to allow the procedure. Out of it
It is based on (i) the adjustment of the row an enterprise administrator has under section 338i paragraph. 4.
row entitled to remuneration and the reimbursement of cash expenses. In a successful sale
the company is the claim of the distributed nature of uspokojován. The claim
Enterprise Manager on the remuneration and the expenditure must be finished and satisfied
If it would not have been sufficient to split the essence. If
Therefore, it is not inherently a claim paid in full, the Court shall grant the administrators
the company claim for compulsory, for whose fulfilment shall be held jointly and
severally liable to the creditor, who proceeded as the next control
permissions and lenders who register their claims (§ 338ze;
o. s. l.). It is primarily an obligation to satisfy the claims administrator
to the debtor. In the interest of genuine satisfaction enterprise administrator is provided
that true, those who in the management proceeded as additional privileges, and
lenders who register their claims (§ 338s o. s. l.), for completion of the
This obligation jointly and severally liable. This adjustment is provided,
the enterprise administrator did not get into a situation where it will not be paid
his legal rights.
When selling business in the code of civil procedure does not occur,
Court stops and saves the obligation to pay správcových claims
the bodies referred to in paragraph 338zo paragraph. 4 of the 5-Those are either mandatory
or jointly and severally, those who came in the proceedings
as additional privileges, and creditors who register their claims (§
338s o. s. l., and § 338zn of the row). It does not have enough resources if required
Business Manager to pay claims, it is perfectly legitimate to require their
after lawful remuneration or other creditors, since, as was said
above, the creditor has the responsibility for the choice of the method of enforcement of decisions and
carries with it the risk of non-payment of any related claims administrator
undertaking on the part of the debtor. Are entitled to payment of his business manager
remuneration and expenses so it is not entirely without legal support. In this context, it is
should be noted that the enterprise administrator can request backup on the finished
expenses, as is apparent from paragraph 338i paragraph. 5. r. advance on cash outlays
the Court administrator shall provide, on the basis of his application. Even if the quoted
provisions mainly talking about the expenditure in connection with the inclusion of an expert,
It is possible that the administrator has requested an advance on the other costs that it
upon the sale of the preparation of the sale of a business. Therefore, if in
during the implementation of the enforcement of judgments need to cover the cost of replacing
cash expenses, nothing to prevent the court order the creditor to
He passed on their payment of the deposit. This also applies to a situation where it is clear
It will not be possible to meet the cost of the company from selling a business manager.
Such action, the Court may do so as well in advance e.g.. When ordering performance
decision. It is therefore for the enterprise administrators to consistently use all
options and mechanisms for him about row with provides. Cash outlays
borne from this advance shall be considered as the cost of selling a business. Cannot
therefore be a situation, which was based on the amount of the judgment relating to
the administrator in bankruptcy, in which the point was that the administrators of the bankrupt
the substance of the incurred expenses which have to be borne from his. The only problem may
arise at the time when the creditor has satisfied the conditions for
exemption from court fees. Such a person cannot save to the Court
has passed an advance on the costs of implementation of the enforcement of decisions (article 270 (3)
the second sentence of the row). If from the sale of the company realizes some
the proceeds, of course, will pay the statutory business manager claims this
the proceeds. If not, you must bear the costs of enforcement
Business Manager from your. However, if the prior regulation performance
the decision of the obvious that the profit from the sale of the undertaking will not be sufficient even to
payment of claims venture and Manager might be a situation, if it was
meet the statutory claims Manager at risk, in particular, on the
the Court, prior to the regulation enforcement carefully assessed the
the material situation of the debtor. If it is evident that the property
It will not be sufficient, or the debtor to cover the costs, it should not exercise
the decision at all. Such a procedure the court ordering and wording of § 264
paragraph. 2. s. l., according to which the Court rejects the proposal for enforcement,
If it is already clear from the application that the proceeds, which would have been achieved,
nepostačil or to cover the costs of enforcement. A properly functioning
system options and mechanisms enshrined in o. s. l., together with a careful
activities considering the situation both by the creditor, as well as by the
the Court should prevent the situation that is the starting point for the design of
on cancellation of the § 338zo para. 4. s. l. It can therefore be concluded that the contested
paragraph 338zo paragraph. 4. row does not constitute infringement
the constitutional principle of equality.
If despite all the above situations arise when the administrator is
the company was forced to bear the costs of enforcement of his, has the option of
to exercise against the debtor of the debt claim otherwise performance
decision, or the way the bankruptcy proceedings. Another significant difference
between enforcement and bankruptcy in fact lies in the fact that, in the
the end of the bankruptcy, it is evident that, after the bankrupt left only property
that is part of the bankrupt estate, respectively, that there was no property
No. When you perform an enforcement sale of a business is not.
When the failed sale of the company in the framework of enforcement of court cannot
the documentation which is available, determine the overall equity situation
principal. You can only speculate about that, but a reliable conclusion make
cannot, because enforcement is not a sale of a business management
about the assets, but only parts of it. Therefore, the company Manager,
If the above options fail and mechanisms in the performance
According to the decision of the (liability of the creditor, the advance on costs
, etc.), always apply the option granted to the claims for remuneration and finished
expenditure by other means of enforcement and in the worst case on the way
bankruptcy proceedings.
Finally, the Constitutional Court notes that the mere fact that in the final
as a result you may experience a condition where will not be met by claims administrator
the undertaking is not unconstitutional. This fact should also be seen in the light of
the above-cited decision of the European Court of human rights (Van der
Mussele against Belgium) in which it was stressed that risks performed in
connection with the exercise of a profession (in that case a lawyer), where
the risk of non-payment of remuneration for work performed, are calibrated
the benefits associated with this profession (in that case the professional
monopoly in the obhajovaní and representation). These findings can be used without further
applied to the activity and the position of the Manager of the enterprise, in which case
the risk of the discontent of the statutory entitlements, however, is quite miniscule, has
consideration essentially in its monopoly position on the implementation of the
the activities of the administrator.
It is true that from the perspective of the Act on bankruptcy and settlement, it is possible to
přitakat concerns the applicant about the uneven access to satisfy claims
Business Manager, who then became the administrator in bankruptcy proceedings
in bankruptcy, and the company Manager, who does not become it. This
the question, of course, already exceeds the mode of the code of civil procedure and is therefore not
or subject in the preamble of this finding.
Based on the above considerations the Constitutional Court concluded that it is not
the reason for the constitutional complaint, and there is no need to disturb the § 338zo para. 4
o. s. l., because the satisfaction of statutory claims the company administrator can be
in the vast majority of cases achieved by using instruments contained in s.
the properly functioning mechanisms and proper use of the procedural
Edit enforcement should not lead to the situation that the administrator
the company has not obtained satisfaction in their claims. If the Constitutional Court annulled the
that provision, for example, would the Court at the same time about the possibility of
undertake a mandatory payment order claims the company Manager in a situation where it was
the claim to be recovered shall meet a required from other resources, and the Court
enforcement stopped.
In the light of the above, the conclusions of the Constitutional Court did not find the proposal to
repeal section 338zo paragraph. 4. r. reason. Therefore, pursuant to section 82 para. 1
the law on the Constitutional Court rejected.
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinion referred to in section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, a decision of the plenary, the judges adopted a crisis management
Güttler, Ivana Janů, Dagmar Lastovecká, Miloslav Výborný and Eliška
Wagner
