127/2001 Sb.
FIND
The Constitutional Court on behalf of the United States
The Constitutional Court ruled on 20 April. February 2001 in plenary on the draft Ing. J. j.
the cancellation of the provision of Section 250a of Act No. 140/1961 Coll., the criminal code, in the
as amended,
as follows:
The proposal is rejected.
Justification
(I).
On 4 April 2006. 1. The Constitutional Court has in time 2000 filed a constitutional complaint, Ing.
J. j., represented by JUDr. J. t., against the resolutions of the city
of the Court of 21 November 2002 in Prague. 9.1999, SP. zn. 9 345/99 and against the judgment
The District Court for Prague 5 of 6. 5.1999, SP. zn. 3 T 26/99 related
with the proposal to repeal section 250a of Act No. 140/1961 Coll., the criminal code, in the
as amended, (hereinafter referred to as "tr.").
Second Chamber of the Constitutional Court by a resolution of 15 March 2001. 2.2000, SP. zn. II. THE TC
4/2000 interrupted the proceedings and an application for revocation individual provisions
the plenum of the Constitutional Court Act ceded.
The claimant was a final resolution of the municipal court in Prague, dated
21.9. 1999, SP. zn. 9 345/99 rejected an appeal against the judgment of the
The District Court for Prague 5 of 6. 5.1999, SP. zn. 3 T 26/99. Court
It convicted of first degree attempted crime insurance
fraud under Section 250a of the tr code, for which he imposed a sentence of imprisonment in
the duration of one year, whose performance he put on just a long test
period of time.
General courts by giving effect to the provisions of § 250a tr., have infringed the Act.
in the opinion of the petitioner's constitutional right enshrined in article. 11 (1) 1
The Charter of fundamental rights and freedoms No. 2/1993 Coll. (hereinafter referred to as "the Charter")
According to which the right of ownership of all owners has the same statutory content and
the protection.
As the appellant points out, the law does not require intent to criminality
cause damage or enrich such dealings or, with
grammatical interpretation of how it caught the general courts, testifies to the conclusion that
This may be an indication of any false circumstances regardless of whether
is this the insurer misled or not, whether in the event of the insurance
filling in mistake acted or not and whether putting false information is
eligible when proper care on the part of the insurer to cause damage.
If the general courts are based on such an interpretation of paragraph 250a tr. Cust., then
It is clear, in the opinion of the applicant, that provision itself
contradicts the article. 11 (1) 1 of the Charter.
Unlike the General facts of the offence of fraud under section
250 tr. the contested provisions of insurance fraud is in the base
the merits (Section 250a, paragraphs 1 and 2) constructed. prematurely
offence, i.e. the execution as a special form of training, when that
misrepresentation, or does not require the use of an error, but it is enough already putting
a false or grossly distorted information. Compared to the fraud by
§ 250 tr. the insurance fraud does not require or intent to cause
damage or enrich himself or another. Damage is only
circumstances, contingent upon the use of higher penalties, if the damage in
the appropriate amount of really a [Section 250a, paragraph 3, paragraph 4 (b)) and
paragraph. 5].
It is clear that the subject of the attack, as it infers the applicant, an asset is
insurance companies and with regard to the construction of the facts of the criminal
responsibility is meeting, for which no harmful
result, as well as the hearing, when malicious results in only occurs as a result of
lack of care workers, who own the insurance companies does not specify the amount of the
the claims properly.
It is thus clear that the assets of one part of private entities, such as
insurance companies, is protected by a significantly different and considerably more strictly
bodies other than the property, whether they are business entities or
private citizens. Stand up here, the argument that assets of insurance companies is challenged by
more often than other assets, and as a result, community outreach
such attacks more severe and therefore deserve more severe punishment, and
in other legal systems (e.g. in German) are familiar with criminal laws
special cases of insurance fraud. The case of the Special
insurance fraud is not here, because it's not about more stringent penalties because of
more often the one subject of the attack, but it is a completely different design
the criminal protection of property insurance companies against fraud and against the
the hearing, which neither the characters of fraud (misrepresentation or mistake of usage)
It does not have.
Under these circumstances, it was the duty of the District Court for Prague 5
proceed in accordance with § 224 of paragraph 1. 5 of Act No. 141/1961 Coll. on criminal
judicial proceedings (code of criminal procedure), as amended, (hereinafter referred to as
"tr.") the prosecution discontinued and refer the matter to the Constitutional Court,
as the Court itself had come to the conclusion that the application of that provision
the criminal law that is decisive for deciding guilt and punishment, it is
contrary to the Charter.
In conclusion, the applicant notes that the application of Section 250a of the tr. in his
the criminal case favors the asset protection insurance against the protection of his
the property and assets of other bodies and it is therefore in itself, this provision in the
contrary to the Charter.
II.
From the observations of the parties on the draft, which the Constitutional Court pursuant to § 69 para. 1
Act No. 182/1993 Coll., on the Constitutional Court, (hereinafter referred to as the "Act") has requested from the
President of the Chamber of deputies of the Parliament of the Czech Republic (hereinafter referred to as
"Chamber of Deputies") and President of the Senate of the Parliament of the Czech Republic (hereinafter referred to as
"The Chamber"), revealed the following.
The President of the Chamber of Deputies on the draft, inter alia, stated that the provisions of Section 250a of the tr.
Cust. it applies to cases where they are in negotiating insurance contracts
or when a claim for payment from her contain false or grossly
distorted data or substantial information zamlčeny. Provided for the protection of
asset insurance takes into account that the performance of insurance companies
on the basis of the agreed insurance contract and under the conditions
referred to. In this context, the legislature expressed interest to protect these
relations, or to punish their violation. At the same time takes account of the fact
that the property of other owners, and assets of the applicant is not subject to
transactions arising from insurance contracts, and it is therefore not justified to
subject property in this way, the same or similar
the protection. For this reason, does not see any contradiction between article. 11 (1) 1 of the Charter
and Section 250a of the tr. In the wake of recalls the decision of the Constitutional Court
CSFR No 11/1992 and agrees with such an understanding of the constitutional principle of
equality, as was expressed. In such a State of affairs the participant
notes that the legislature acted in the belief that the adopted law
It is in accordance with the Constitution of the Czech Republic No. 1/1993 Coll. (hereinafter referred to as
"The Constitution"), the constitutional order of the Czech Republic and its legal system. Is
Therefore, the Constitutional Court, in the context of the examination of the proposal to assess the
the constitutionality of the contested legal provisions and decided.
President of the Chamber, in its opinion, among other things, that when
discussing the Government's proposal to amend the criminal code, in the framework of the General
part of the debate, was in one of the speeches suggested the effort to drain the
the provisions of § 250a and 250b tr. Cust., reasons shared
the complainant. In the Senate, however, already open step-by-step
debate to the submission of amendments as the Senate approved a proposal from the
the amendment to the criminal code, as amended by a transferred the House. He did so in the
the belief that the law is adopted in accordance with the constitutional law of the Czech
the Republic and the international treaties referred to in article. 10 of the Constitution. In this
the context may also be mentioned that the constitutional right to the same legal content
and the protection of property rights contained in the article. 11 (1) 1 of the Charter, which
According to the complainant's allegations should be severed applications Section 250a of the tr code.,
in its origin, mostly associated with the rejection of the system sortování
ownership of the species with the privileged status and protection and on the types of
merely tolerated (repressed), applied by the Socialist Constitution of the CZECHOSLOVAK SOCIALIST REPUBLIC
1960 and downstream legislation. The aim of the present constitutional law shall
Therefore, as suggested by the explanatory memorandum to article. 11 of the Charter, more ban
the principle of the differentiated ownership rights at the level of the arrangement
the company than at the level of outstanding examples, eg. just pragmatic
differences in the choice of the way of the protection of property rights. The completeness of the
the values of the sameness of legal content and the protection of ownership rights may be
relativizována other constitutional rules article. 11 of the Charter, which in
paragraph 3 also prohibits the abuse of property rights to the detriment of the rights of others
or in violation of the law protected personal interests. Recall is
also possible that the object of the offence under Section 250a of the tr. is
protection of the arrangement of insurance contracts and the performance of them, and therefore, in the final
as a result of foreign assets, IE. not only the assets of insurance companies. The offender
insurance fraud can be any of the parties to the insurance contract. Is
Thus the Constitutional Court to examine the constitutionality of the application for revocation
the contested provisions and decided about it.
The legal representative of the applicant in its reply to the comments of both participants
first of all notes that the substance of the proposal is not in the fact that it would be more strictly
punished negotiations seeking to property insurance companies. Such an adjustment would
was with regard to the allegations contained in the representation of the Chamber of deputies of the permissible
just because the need to penalize hard-to-detect and frequent attacks
the assets of insurance companies. The essence of the proposal is to the contrary, that the property
insurance companies is protected against a wider range of criminal acts than
assets of other entities. The provisions of § paragraph 250a. 1 tr. It is not just
a special form of preparation for a crime which is to be at the property
insurance companies suffered damage, as can be inferred from the opinion of the Chamber of Deputies.
If that were so, it would have to include the merits of the intention of the
cause damage or enrich himself or another, as is the case with a criminal
crime of fraud under section 250 tr. Thanks to the fact that such an intention is not
the assumption that, under Section 250a of the tr. affect the
negotiations which do not lead to damages. If the character is "causing
damages in other paragraphs of the cited provisions.
harder, therefore, as a result of the fact, contingent upon the use of higher criminal
rates, it is sufficient to cause such damage and negligence of the offender [§ 6
(a). and) tr.]. In summary, it can be said that the provisions of Section 250a of the tr.
Cust. the asset is protected even against the insurance companies negotiation by which škoda arises
from mere negligence, while the assets of other operators against such
conduct is not protected. Asset protection insurance therefore covers a wider
circuit criminal injustice, when otherwise causing harm through negligence
the basic facts of the other crimes under title nine
a special section of the market. they do not contain. In it's inequality, in which the
the applicant considers that there is a violation of constitutional rights to the same statutory content and
protection of property rights. With regard to the objection of the Senate, putting
misrepresentation within the meaning of § paragraph 250a. 1 tr. You may commit
any party to the contract in respect of an objection unfounded. From the observations of
The Chamber of Deputies is clear, that the provision is primarily intended to protect the
the assets of insurance companies. In practice, it is also used in this way. Even if it
It was not, then the fact that the insured person (we mean is probably the "insured") is
from, does not alter the fact that the scope of protection thus defined
the asset is wider than protection of property of other bodies. The reason for this
such an extension, then it cannot be that the negotiations, which bears the characters
insurance fraud is "offences under existing arrangements, but as a rule
can't ", as stated in the opinion of the Chamber of Deputies. Such an interpretation would be
in conflict and with the principle of innocence under article prezumpce. 40 para. 2 of the Charter.
III.
In the context of the examination of the process conditions of the procedure for the constitutional proposal submitted
the Court dealt with the question of the validity of the contested paragraph 250a tr. Cust. in
the time of service of the Constitutional Court. He found, therefore, how it stores section
paragraph 68. 2 of the Act, that Act No. 253/1997 Coll., which amends and supplements the
Act No. 140/1961 Coll., the criminal act, as amended,
that with effect from 1. 1.1998 draft the contested provision of the criminal
the Act enshrined, was accepted and published within the limits of the Constitution laid down
competency and constitutionally prescribed way. For that purpose, requested from the
The House and Senate těsnopisecké reports from their meetings, at which it was
the amendment in question tr. Cust. discussed and adopted.
In the Chamber of deputies of the present 186 ahead for resolutions
to adopt the amendment to the market. a total of 154 members and MEP were against 3
members and member of. In the Senate of the 62 senators and senátorek
voted for the amendment, as amended by a transferred the House a total of 33 Senators
and Senator, when the adoption of the draft were needed at least 32 voices.
Act No. 253/1997 was due to the article. paragraph 39. 1 and 2 of the Constitution
validly adopted and subsequently signed by the respective constitutional actors and
promulgated in the collection of laws.
IV.
In proceedings for the annulment of the laws or their individual provisions examines
The Constitutional Court the content of these legal acts in terms of their compliance with the
constitutional acts and international treaties under article. 10 of the Constitution, as he
It stores § 68 para. 2 of the Act.
In this context, the Constitutional Court focused first and foremost on the genesis and Sam
trestněpolitickou the essence of the proposal of the contested provisions of Section 250a of the tr.
Cust. and notes that the proposal for deletion is not justified.
To cancel the proposed statutory provisions read as follows:
"sec. 250a
Insurance fraud
(1) Whoever in concluding the insurance contract or a claim for
the performance of such a contract shall indicate false or grossly distorted information
or substantial data length, shall be punished by imprisonment for up to two
years or prohibition of activity or financial penalty or forfeiture
things.
(2) the same shall be punished who intentionally invokes the claim, or
who maintains the status of an insurance event invoked intend to increase resulting from the
damage.
(3) imprisonment for six months to three years or financial penalty
the offender will be punished, if he causes offence referred to in paragraph 1 or 2
on the foreign assets of the loss not small.
(4) imprisonment of two years to eight years, the offender will be punished,
and if the offense commits a) referred to in paragraph 1 or 2, as a member of an organized
the group,
(b)) if he causes such a crime on the foreign assets of considerable damage or other
a particularly serious consequence.
(5) by imprisonment for five to twelve years of age the offender will be punished,
If the offence referred to in paragraph 1 or 2 on the foreign property damage
a large scale. "
From documentary evidence, that the Constitutional Court in the case gathered, it is
must first and foremost be based on the explanatory memorandum to the Act No. 253/1997.
In connection with Section 250a of the tr. notes that by adding provisions
of the crime of fraud shall be monitored for the next extension of the criminal penalty
forms of fraud, which is punishable according to the current
the legislation, but it usually fails.
Present the facts of the offence of fraud requires that the
the offender had a fraudulent intent at the time when he starts to fulfill the objective
page of this offence. Why the head of the ninth special
part of the market. insurance fraud is not just about the fact that, in particular,
property insurance is lately abused by unlawful obtaining
insurance benefits.
It turns out that to penalize all forms of infringement is not sufficient
"General" facts of the offence of fraud under section 250, tr.
that includes only the meeting where it was founded already in property damage. No
in all cases where the perpetrator commits a fraudulent act which
enrichment only, can affect such as developmental stages of
crime of fraud. Not only in the interest of insurance companies, which carry the risk of arising
the nature of insurance, but also in the interest of those that measure this risk in
the form of insurance premiums, and in the interest of all turns out asset protection and health
his intentional tampering is justified by the requirement that such cases
the offence was punishable with the intentional infliction of the aftermath
characteristic of the insurance event. Even in this case, you will need
the result was the perpetrator caused intentionally. The criminalization of
such actions will not be subject to the condition that, on the contrary, the offender it intentionally
caused by the insured event the insurance company has already announced plans to
unlawfully obtain indemnity or even such a transaction.
For the same reasons, it is proposed as an offence to sanction the execution
negotiations, where the insured event occurs not as a result of intentional
the hearing of the offender, but the only situation avails itself in that direction that the
the situation keeps intends to increase the damage suffered. Similarly, as
It is the facts of the offence of fraud under section 250 tr., Cust.
proposes to penalise cases where the perpetrator of the insurance fraud
will cause higher damage or other serious consequence.
Těsnopisecké report of the Chamber of deputies to the point of the amendment to the market.
containing the contested provision, the Constitutional Court found that in the second
He was heard reading the proposal leading to the deletion of Section 250a of the tr. From
the constitutional point of view is important that part of the reasoning, which States: "..."
the reasons for their (Section 250a, 250b tr § Cust.) deletion is more. For example. in
These two paragraphs as to the reversal of the burden of proof to the discreet ...
it comes in about the introduction of the unconstitutional inequality of protection of property. One
the assets to be protected differently than other property... " The latter proposal was
backed by another Member of the, which was limited only to the arguments
trestněpolitické (kriminalizační), not on other reasons
constitutional law. When voting on the amendments was not mentioned
the proposal is accepted (out of a total of 140 against the present 188 a majority of 17).
Substantively the same as the amendment to the amendment to the outline of the Government market.
There was also discussion in the Senate when it, as documented in the relevant
těsnopisecká report, where it was justified as follows: "... the introduction of these (section
250a, 250b tr § Cust.) the provisions we are getting into conflict with legal
the principles of the Constitution. Within the meaning of article 87(1). 11 (1) 1 of the Charter is the position of all
participants clearly equal obligations. Draft Section 250a of the tr.
... is in contradiction with this principle, favours insurance ... relationships
in respect of other provisions of the relationship-that is, the introduction of the unconstitutional
inequality. " Even in the Senate referred the amendment did not pass.
Merits of the crime of insurance fraud, as amended by Section 250a
paragraph. 2. the Act. they know in a comparable form of criminal codes and other
countries, namely in Germany and Austria. The provisions of § paragraph 250a. 1 tr.
Cust. However, there does not have a corresponding equivalent.
According to the German criminal law edit (StGB, to 26. 1.1998), the
one of the types "especially heavy case of fraud" within the meaning of § 263 para. 3
point 5, which assumes a general rule, if the perpetrator pretends to be
insured event, if he or anyone else in this plan to the thing
significant value on fire or otherwise totally or partially destroyed by a fire
or sink or causes of the wreck.
In addition to offering this treatment even abuse insurance "in section 265 para.
1, which lies in the fact that the perpetrator of the thing insured against destruction,
damage, limit the usability of, damaged, lost or stolen
destroy, its usability is restricted, and thus creates the possibility or another
allow him or someone else in the discharge of the insurance has provided.
About the misuse of insurance referred to in the Austrian legislature also in § 151
paragraph. 1 (StGB, to 1. 3.1997). According to the literature of preparatory negotiations
to insurance fraud (Foregger, r.: StGB, Wien, Manz Verlag 1997, s.
150).
The Constitutional Court in a number of its earlier decision of its opinion on the
understanding and interpretation of the constitutional principle of equality before the law, citizen
which, in this case plays a key role.
Already in its decision No. 11/1992 collection of resolutions and of the findings of the constitutional
the Court said the former CSFR Federal Constitutional Court that equality of
of citizens before the law was not perceived as abstract and absolute
category, but has always been attributed to specific legal standard, understood in the
ratio between the different actors, etc., it was the relative equality,
not absolute. The relative inequality means only deleting
unjustified differences. Logically, and conversely, the differences are not justified
unconstitutional, based on criteria to be objective and rational. It is for the
the State, in order to ensure its functions, decided that a certain group of
provide fewer benefits than others. Shall not proceed arbitrarily.
If the law specifies the benefit of one group and at the same time lays down the
disproportionate to the duties of the other, can happen only with reference to the public
the value (in the public interest and for the public good, see find SP. zn. PL.
TC 9/95, in: TC, sv. 5, p. 107) and not in the manner to which it relates for example.
find SP. zn. IV. TC 15/94, in: TC, sv. 2, p. 115. Equality as a
the relative category is presented in finding SP. zn. PL. ÚS 4/95, in:
TC, sv. 3, p. 209.
Look at the Section 250a of the tr. in terms of editing, cited by foreign
as well as the findings of the results in the following conclusions.
The Constitutional Court considers that the facts of the construction insurance
fraud as tort prematurely dokonaného fraud in the form of its
training, IE. at the same time as the crime of ohrožovacího (which is the case in particular for section
paragraph 250a. 1 tr. and partly for its paragraph 2, in relation to section
250 paragraph. 1 and 2 tr. Cust.), represents in terms of trestněpolitického,
i.e.. in search of answers to the question, what does criminalize, standard
the procedure of the legislature. It documented examples from abroad, as they are
listed above. The legislator thus begins wherever the current
the criminal law does not allow an effective adjustment penalty offences, after the material
the quality, which is not enough for other instruments, i.e..
mimotrestních legal (criminal law as an "ultima ratio").
In other words, if the legislator punishes violations of reporting obligations
at the conclusion of the insurance contract and amendment [section 793 of the Act No. 40/1964 Coll.,
the civil code, as amended, (hereinafter referred to as "identity. Cust. ")]
primarily by a reduction in the performance of such a contract (section 798 CIVC.), then in the
cases providing false or grossly distorted data or withholding
essential information, in these circumstances, secondarily, penalties
criminal law (Section 250a 1 tr.); same situation here is on the
the level of section 799 and 809. Cust. and Section 250a of paragraph 1. 2. the Act.
Consider just this question, i.e. the width of the border of the criminal law
the criminalization of certain types of conduct, however, the Constitutional Court itself, in principle,
on its own it does not duplicate or replace the constitutional role
the legislative authority. However, should deal with this issue only in
the context of the criminalization of such criteria, such as being
public values or interests, on which rested the criminalization of the legislature in
given, IE. The Constitutional Court considered, width.
The reason for the criminalization of insurance fraud under Section 250a tr, as stated in the Act.
cited in the explanatory memorandum, it is mainly the extension of criminal penalties on
other forms of fraud, which is punishable by
the existing law, but it usually fails. Further, it is
the fact that, in particular, property insurance is lately abused
to obtain a subsequent indemnity, i.e. the need to
to criminalize an act of execution, even as delinquencies in the early stage of Katherine
preparation.
This way justified extending the criminal law protection of the foreign
asset is abut constitutionally acceptable public value, i.e..
contained in the article. 11 (1) 1 of the Charter in so far as the legislature
intensifies ahead of criminal-law protection, which means in
Basically, the abuse of the Institute of property insurance, as is the case elsewhere in the
abroad. As a result of any such legislation based
the inequality of the criminal law protection of the assets of certain entities would then be
in accordance with the Constitution, because it would counteract the real
inequality in the protection.
However, if the legislator justifies the breadth of the criminalization of "field"
property fraud, referring to difficulties in the course of criminal evidence
the prosecution of persons accused of these scams may be constitutional weight of this
public interest (criminal penalties) problematic. On the mentioned fact
in its reply, the applicant points out, when it states that such an interpretation,
and the justification of the legislation would be contrary to the principle of the presumption of
innocence according to art. 40 para. 2 of the Charter. Construction facts
offence to ensure that proving the fulfillment of its features was
law enforcement authorities what the smallest problem, means that the range of
the subject of evidence actually shrinks. This will also extend the reach of,
shot of the merits of such an offence. In no case shall the
but the obligation to carefully clarify the circumstances and evidence, in particular in the
the benefit of the accused burdensome authorities active in criminal proceedings
It doesn't move on the accused. Only in such a case, if the
the move took place, the principle of the presumption of innocence has been affected. So it
However, it is not. Although the extent of the taking of evidence and moving questions referred
the duties are closely related, they are not one and the same. Taper cut
taking of evidence conducted by the authority of law enforcement does not mean
automatically migrate the abovementioned obligations, that this body has in
due to the presumption of innocence, to the person accused.
Therefore, when a deeper perspective on the matter, nor the reason for the criminalization of the insurance
fraud in order to minimize the burden of the distress of law
in criminal proceedings, even if it could be called into question, perhaps trestněpoliticky,
It is not constitutionally-conformist, because with the presumption of innocence does not conflict, how to
lists.
As regards individual primary object of the crime of insurance
fraud under Section 250a of the tr code, conforming to comment on this provision
(Samal p., Púry f., Rizman with.: the criminal code, comment, 3. vyd., Prague,
C. h. Beck, 1998, p. 1154) with explanatory memorandum, in the fact that it
It is not only the protection of negotiating insurance contracts and the performance of them, thus
property insurance companies themselves, but also, ultimately, foreign assets
at all. That is, in the opinion of the Constitutional Court and property operators
different from the insurers (as a rule, insurance companies); thinking there are other
the participants of the insurance, that is, policy-holders or persons insured, i.e.. After all,
even the appellant covered by the insurance fraud committed by other insured
the property affects the fact that objectively narrows the possibility of generating surpluses
insurance in which the insurance otherwise according to certain principles
involved in.
Every one of the bodies of the insurance contract may be how the offender
insurance fraud, as well as the victims of this criminal offence, if it is
This offender to another body of the said Treaty. There's a need to put in
the truth of the opinion of the Senate. Claims in the wake of a replica
the petitioner, that even this fact cannot exclude constitutionally uneven
asset protection entities contracting the insurance on the one hand, and assets
entities outside the insurance contract on the other hand, is not entirely
well founded. Therefore, no, that in addition to the basic participants
insurance entities of insurance contracts, there are other parties to the
insurance, namely the so-called. "beneficiaries", respectively. damage insurance
(the intruder) event.
Threats to the property or its failure caused by insurance fraud are
Therefore, in its real due to the typically more severe than the disorders caused by
General fraud (section 250 tr.), where the coherence of the different actors
insurance, of course, is missing. It is therefore desirable, and trestněpoliticky
must have an existing objective inequality in General and the implications
insurance fraud applied the criminal law. It is this
to rise to the task so that criminalise not only equity problems, such as
for general fraud, but also mentioned their "clearway", IE.
criminalize acts only threatened by such disorders. As follows
justified by wider and in this sense, the function of criminal "inequality" is
necessary to ensure total protection from fraud of various types has become
According to the law.
Despite the fact that the legislation does not define the concept of insurance, can be particularly
from § 788 para. 1. Cust. "... infer that the insurance represents
an obligation to provide in return for payment within the agreed range of performance, if the
predetermined incident relating to the insured risk. As to the
synallagmatický securities contractual legal relationship characterized by
equality of the participants, who are bearers of rights and obligations with
This legal relationship linking legal regulations, or which have taken
the insurance contract and reciprocity of such rights, as well as
mutual cross-compliance performance. " (Jehlička, Plum j. a kol.:
The civil code, comment, 3. vyd., Prague, c. h. Beck, 1996, p. 725). From
It follows that, in the framework of the legal regime, in particular the contractual
insurance that is running, its participants are all equal at
the level of the law (CIVC.). In this their equality is tr. on the way
their Section 250a "settles" deliberately unequally in relation to other persons
injured General fraud (article 4, paragraph 3, of the Charter, SP. zn. Pl. ÚS
47/95, in: TC, sv. 5, p. 209).
Trestněpolitické (kriminalizační) "the environment", from which the contested legal
the provisions were based on, and also through the effect of
in terms of the Constitution, in particular from the perspective of the principle of equality in the sense of
article. 11 (1) 1 of the Charter, does not raise any doubt, thus
the contested provision market. itself. The conclusion is to some extent
supported and a brief reference to the legal comparison with foreign
modifications are similar to the issues listed earlier.
Brought the proposal to repeal section 250a of the tr. He handed the petitioner in connection with the
its constitutional complaints, therefore, that in the proceedings before the General Court was not
proceeded according to § 224 of paragraph 1. 5 tr (article 95 of the Constitution). The applicant is
of the opinion that the General Court had an obligation to discontinue criminal prosecution and
thing problematic the constitutionality of Section 250a of the tr. submit to the Constitutional Court,
for he had come to the conclusion that the contested provisions of the tr. applicable to the
making a decision on his guilt is contrary to the Charter.
This view cannot be fully regard, as the Constitutional Court has already in
your award SP. zn. II. TC 87/95, in: TC, sv. 5, s. 503 noted that
"... the only requirement for the general courts of the article. 95 para. 2 of the Constitution
It is that they cannot themselves assess the constitutionality of legislation, but
must refer the matter to the Constitutional Court in this case, when they run out to the conclusion
that law ... is unconstitutional. "
In the.
Taking into account the results of the legal and constitutional analysis
the provisions of § 250a tr. Cust. in relation to the article. 11 (1) 1 of the Charter
carried out in the preceding paragraphs of the preamble to the Constitution chose
the Court, as is stated in the operative part of the award.
The President of the Constitutional Court:
JUDr. Kessler v. r.
