303/2006 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court decided on 4 April 2006. April 2006 plenary: Stanislav
Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel
Holländer, Ivana Janů, Vladimir Crust, Dagmar Lastovecká, Jiří Mucha,
Jan Musil, Jiří Nykodým, Miloslav Výborný, Elisabeth Wagner, and Michael
April decided to design the original proposer of the High Court in
Prague and the current applicant the municipal court in Prague, according to the article. 95
paragraph. 2 of the Constitution of the CZECH REPUBLIC to repeal § 23 para. 2, 3, and section 24 of Act No. 72/1994
Coll., to regulate certain co-ownership to buildings and
some matrimonial property regimes to flats and non-residential spaces complement
Some laws (the law on the ownership of flats), as amended
regulations,
as follows:
1) design of the High Court in Prague.
2) proposals of the municipal court in Prague are hereby rejected.
Justification
(I).
The applicant (Note: the Senate 15 as part of the High Court in Prague)
the design of 13.1.2005, received at the constitutional court day, 4.2.2005 sought
repeal the provisions of § 23 para. 2, 3, and section 24 of Act No. 72/1994 Coll.
adapting certain co-ownership to buildings and some
matrimonial property regimes to flats and non-residential spaces, and complement some of the
laws (the law on the ownership of flats), as amended.
In the proposal, said that, by judgment of 9 June. January 2004 REF. 20 Cm
262/2000-28 of the municipal court in Prague in case the plaintiff Ing. P. K.
Ing against the defendant. T. k., the administrators of the bankrupt Housing
team to row with, dismiss the action, so that from an inventory of the estate
the bankrupt housing association to row with excluded housing unit No.
1691/10 a co-ownership share 6935/179617 on the land the parc. number 2589
at (hereinafter referred to as "housing unit"). The Court did so with
on the grounds that the applicant, although he was invited to the bankruptcy court filing
the so-called. excindační the action within the meaning of § 19 para. 2 Act No. 328/1991 Coll. on
bankruptcy and settlement (hereinafter referred to as "Act No. 328/1991 Coll." or "the law of
bankruptcy and settlement "), and this even within the specified period, is not actively
open because of the bankruptcy of the úpadcův assets
occurred on 2 February 2005. October 1998 to interrupt the proceedings for the ownership of deposit
Prosecutor's Office, which has opened a 1. June 1998, and the owner of the things
He remained by the bankrupt.
The High Court in Prague as the Court of appeal (the appellant in the proceedings before the
The Constitutional Court) when assessing the merits test appeal found on
place to do pursuant to § 109 paragraph. 1 (b). (c)) code of civil procedure,
stay the proceedings and refer the matter to the Constitutional Court for decision.
The applicant stated that it is aware that in a type-almost identical
excindačním management, which was also a defendant in the case,
were the Constitutional Court finding of 6.5.2004 (SP. zn. III. TC 258/03,
A collection of findings and resolutions of the Constitutional Court of the CZECH REPUBLIC, Volume # 33, find no 66,
p. 155) cancelled in relation to another (natural person applicants
within the meaning of sections 23 and 24 of Act No. 72/1994 Coll.) negative judgments of the regional
the commercial court in Prague (now the Prague municipal court) No. 164/4 Cm
2000-15, the High Court in Prague No. 13 Cmo 50/2001-37 and the Supreme
Court No. 29 Odo 560/2001-64. From that decision the Constitutional Court
It was based on the Senate of the High Court in Prague again in almost the same things, led by
under the SP. zn Cmo 13 127/2001 when assessing the merits test appeal against
meritornímu judgment of the municipal court in Prague, dated December 5, 2000,
Cmo No. 184/2000-13. Mr. stuff 15 Cmo 108/2004 (note this thing
the High Court) and Cmo 13 50/2001 are said to be two of the more proceedings in which
the plaintiffs seek the exclusion of residential units, which according to them, the defendant
wrongly included on the inventory of the estate of the bankrupt-Housing
the cooperative to the row with the claimant (the Senate 15 as part of the High Court in Prague) is a
the reasons given below is of the opinion that, contrary to the principles of equal
the protection of property and the prohibition of abuse of rights contained in article 11 of
(the second sentence of the first paragraph and the second sentence of the third paragraph) Of the Charter
fundamental rights and freedoms are ust. § 23 para. 2.3, and section 24 of Act No.
72/1994; However, it does not consider to be unconstitutional diction of these provisions, but
(similarly as e.g. in Constitutional Court published under no.
403/2002 Coll.) the legislature created a gap in the law, consisting of the
the fact that-in the opinion of the applicant-was not taken into account the possibility
the decline of the cooperatives and the obligations have been defined for this družstevníků
case. The provisions allowing the debtor in bankruptcy for free
transfer assets-to the detriment of creditors-to members of the squad may have
in the opinion of the plaintiff result in constitutionally neakceptovatelnou
the inequality of the bankruptcy creditors.
The appellant stated that when a certain level of generalization to the extent necessary for the
the thing can be said, that the bankrupt has two groups of lenders-both external and
internal. In outer may be regarded as the bankruptcy creditors whose
the claims are of the normal contractual relations, tax etc, the internal
creditors are then družstevníci, who based their claims on the existence of
Member relation to the bankrupt, for example. just those in respect of which an obligation to úpadcova
meet follows from Act No. 72/1994 Coll. A lender he úpadcovy
Indeed, cooperatives and the Constitutional Court, as is apparent from its decision III.
TC 258/03, on whose grounds can be used for brevity in this direction refer to.
The applicant (the Senate 15 Cmo of the High Court) when the next consideration is based on
mainly from the fact that the claims of creditors are not internal "more legal"
than actually existing creditors ' claims and that, therefore, for the external scope and
order of satisfaction of individual receivables-in the absence of other legal
Edit-are crucial to the provisions of the Act on bankruptcy and settlement,
governing schedule (section 30 et seq. of the Act on bankruptcy and settlement).
The opposite opinion, that-according to the plaintiff-perhaps could be
dovozováno of decision III. TC 258/03, would necessarily have to lead
to the preference of this group of creditors (née družstevníků), a
that, objectively, could interfere with the conduct of the cooperative, even
immediately prior to the Declaration of bankruptcy, at a time when the cooperative was
already in decline.
In another analysis, the appellant outlines a solution based on-according to its
own words-from the decision of SP. zn. III. TC 258/03, which "materially
scope accepts ". Its basis is basically the existence of obligations
družstevníků to pay the difference between proportional satisfaction of their claims
and the price of housing units. Such solutions, however, in the opinion
the applicant, having regard to the conclusions expressed in finding SP. zn. III. THE TC
258/03 fully applicable only in relation to those družstevníkům,
the demands were not met before the bankruptcy; against the other only
provided that the provisions of § 23 para. 2, 3, and section 24 of the Act on
ownership of the flats will be cancelled as unconstitutional.
The appellant concluded that, in proceedings, the purpose of which is to make decisions about
whether on the inventory of the estate can include property which
team in decline prior to the Declaration of bankruptcy in cooperatives
under sections 23 and 24 of Act No. 72/1994 Coll., as according to him, under consideration
in principle, two solutions:
1. One method consistently builds on the principle of the priority of section 23 and 24 and the law
No. 72/1994 Coll., and with reference to decision III. TC 258/03 out of him came out and
the Senate 13 as part of the High Court in Prague, as deduced that if the
in accordance with these provisions, the assets of the following cooperatives
acquired is not subject to the bankruptcy and cannot be used to satisfy claims
bankruptcy creditors. Therefore, the judgment of SP. zn. Cmo 13 127/2001 ruling on the
the exclusion of things from an inventory of the estate.
2. The Senate 15 as part of the High Court in Prague (which made this proposal)
opinion about the necessity of preferential application section 23(1). 2, 3 and 24 of the Act
No. 72/1994 Coll. does not share and is considered an administrator in a particular case
may invoke the "ineffectiveness, or invalidity of section 265 of the commercial code".
If the administrator of a truly successful, which may not necessarily occur always,
družstevníku retained the right to remain on the transfer of assets, but not
completely free of charge, as this claim may be satisfied in principle
only in the extent to which it gets the performance of other creditors.
The implementation of this second approach is hampered by the opinion expressed
appeal to the Constitutional Court, in decision III. TC 258/03 explicitly
He stated that the application of § 15 para. 1 (b). (c)) of the Act on bankruptcy and settlement
It is to be rejected, since, for the free transfer of residential units pursuant to §
23 para. 2, 3 and 24 of Act No. 72/1994 Coll. is given free of charge transfer
ex lege and not the expression of the free will of the debtor. It was this conclusion,
If he had would be generally applicable to the assessment of the impact of article 23 para. 2, 3 and §
24 of the Act on ownership of the bankrupt, is for the Senate 15 Cmo expressly
the reason for filing for their abolition, because apparently "in such a
the interpretation of these provisions are in breach of the principles enshrined in article. 11 of the Charter
fundamental rights of freedoms ". If the route would, of course, the plenary of the constitutional
the Court in that direction from the opinion, III. the Chamber of the Constitutional Court (III. TC
258/03), has not been given a reason for the cancellation would likely § 23 para. 2, 3 and § 24
Act No. 72/1994 Coll.; in this case, the appellant would have-
-"without disturbing the constitutional principles", it was possible to choose the Charter
fundamental rights and freedoms, complying with the solution, for example. such that it is
mentioned above. On the contrary, if adopted by the plenary, with the arguments contained in the
finding SP. zn. III. TC 258/03 and also finds and the conditions for
repeal of § 23 para. 2, 3, and section 24 of Act No. 72/1994 Coll., on
place in a type-consistent matters proceed in a way that has chosen to the Senate
13 as part of the High Court in Prague.
II.
The Constitutional Court in accordance with the provisions of § 42 para. 3, 4 and § 69
Act No. 182/1993 Coll., on the Constitutional Court, as amended,
the present proposal to the representation of the Chamber of Deputies and the Senate of the
The United States and even the written opinion of the Ministry for
local development.
In the Chamber of deputies of the Czech Parliament States that it is necessary to
especially noted that the Parliament of the Czech Republic was in the meantime
adopted Act No. 179/2005 Coll., amending certain laws in the
connection with the adoption of the law on the abolition of the national property Fund of the Czech
of the Republic. This law in its part of the twenty-ninth and thirtieth contains
amendment to Act No. 328/1991 Coll., on bankruptcy and settlement law, respectively.
No. 72/1994 Coll. on ownership of housing, referred to the amendments was
effect from 30. April 2005 to Conformal with decision
The Constitutional Court of 6 May 1999. May 2004, SP. zn. (III) the TC 258/03 explicitly
legally adapted the principle of continuity of legal claims by natural people-members
cooperatives, resulting from the contested provisions of Act No. 72/1994 Coll.
as regards the duration of these legal rights and the method of their settlement
bankruptcy administrator. In this state of affairs cannot give
is of the opinion that the legislature when discussing this edit has acted in
the belief that the law is adopted in accordance with the Constitution, the constitutional order
and international treaties by which the Czech Republic is bound.
The Chamber of Deputies has concluded that it is the Constitutional Court that, in the
the context of the examination of the proposal to assess the constitutionality of the contested provisions
and issued the relevant decision.
The Senate of the Czech Parliament, reviewing the proposal in its observations on the initiation of the
management and to its essence, to refer to the ratio decidendi of constitutional
Court SP. zn. III. TC 258/03 and in particular the existence of Act No. 179/2005
Coll., amending certain laws in connection with the adoption of the law on
the cancellation of the national property Fund of the Czech Republic. The Court held that
the provisions concerned article 23 and 24 of the law on the ownership of the flats was from their
the emergence of changed four times, and this finding of the Constitutional Court No.
280/1996 Coll., Act No. 97/1999 Coll., Act No. 101/2000 Coll. and by the Act
No 179/2005 Coll., Only the last of those changes he touches
the issue under consideration. Further stated that under the Act No. 179/2005 Coll.
However, Parliament adopted modifications to the law on bankruptcy and settlement, and
law on ownership, which, with effect from 30 June 2005. April 2005
rozporovanou the issues reflected in the provisions rather than by the applicant
of the infected, but other, more specifically, to section 27 of the Act on bankruptcy and
compensation (article. XXIX, paragraph 2) and to section 30a of the Act on ownership (article. XXXI
section 2). For the precision is according to the observations of the Senate should be added that the cited
the amendment was also prejudice to § 24 of the law on ownership of housing, and
in the matter concerning relation to the settlement of funds between a cooperative
and a member of the. The newly clarified in section 24 para. 7, that it is a means of
rent and that the only positive balances are settled from the profit of the residential
economy. The Senate concluded that Parliament acted as
expected from responsible democratic legislator, as he realized the
generic thoughts, expressed in the Constitutional Court finding of III. TC
258/03. In the light of the above, consider the proposal to repeal section 23 paragraph 1.
2, 3, and section 24 of the Act on ownership of apartments for the gratuitous, leaving, however,
completely on the Constitutional Court to examine and rule on it.
In the opinion of the Ministry of regional development is also dependent on
Act No. 179/2005 Coll., amending certain laws in relation to
by adopting the law on the abolition of the national property Fund of the Czech Republic, which
They said the legislature issue, to which the applicant refers, already solved (§
27 para. 7 the revised version of the Act on bankruptcy and settlement, and section 30a
the revised version of the law on the ownership of flats). Furthermore, the Ministry of
stated that the abolition of § 23 para. 2, 3, and section 24 of Act No. 72/1994 Coll., on
ownership of the flats should have created a completely unequal conditions between those
who, in accordance with the relevant provisions of the law on ownership
They called on the squad to the conclusion of the contract on the transfer of the apartment and this agreement with
the team closed, and those who, in accordance with the law, called the cooperative
to conclude the contract on transfer of the apartment and also in accordance with the law (Amendment of
No 103/2000 Coll.-article. (II) transitional provisions) the conclusion of the Treaty on
the transfer of the apartment they had postponed for various reasons. By repealing the relevant provisions
-in the opinion of the Ministry-based far greater inequality
(in addition to the impact on the amount of housing cooperatives) than the one you are trying to
with its proposal to remove the High Court in Prague.
III.
1. The day the Constitutional Court was 27.5.2005 served in municipal court
Prague (the Senate 15 Cm), in which the appellant sought the annulment
the provisions of § 23 para. 2 and 3 and section 24 of the Act on ownership of the flats, that is,
the same provisions, which attacked the High Court in Prague. The case was the constitutional
the Court discussed under SP. zn. PL. ÚS 28/05 and the proposal was for an obstacle
lis pendens is rejected by order of 22.2.2006 as proposal
inadmissible [§ 43 para. 2 (b)), in conjunction with the provisions of § 43 para.
1 (b). e) of the Act on the Constitutional Court]. The Constitutional Court found that even
the argument of the draft municipal court in Prague, delivered by the Constitutional Court
the date of 27.5.2005, is fundamentally the same as the argument of the proposal of the High Court in
Prague of 13.1.2005 (PL. ÚS 5/05).
3 December 2004. 1.2006, the Constitutional Court delivered a further proposal of the municipal court
in Prague under SP. zn. 99 K 21/98, by which the applicant sought
repeal of the provisions of § 27 para. 7 of Act No. 328/1991 Coll., on bankruptcy and
the settlement, as amended, section 23 and section 24 of Act No. 72/1994
Coll. on ownership of apartments and section 22 paragraph 1. 1 and section 24 of Act No. 42/1992 Coll., on the
modify the property relations and the settlement of property claims in cooperatives,
in the wording of later regulations. The case was the Constitutional Court discussed under
SP. zn. PL. ÚS 1/06 and the proposal was rejected for an obstacle to the lis pendens
by order of 19.1.2006 as proposal inadmissible [§ 43 para. 2 (a).
(b)), in conjunction with the provisions of § 43 para. 1 (b). (e)) of the Constitutional
the Court], in part, in which the applicant sought the annulment of the provisions of §
23 para. 2 and 3 and section 24 of the Act on ownership of the flats, that is, the same provisions,
that attacked the High Court in Prague.
In this situation, won the municipal court in Prague, in accordance with the provisions. § 35 para.
2 of the Act on the Constitutional Court the right to participate in the negotiations on the previously filed
design of the High Court in Prague to repeal the provisions of § 23 para. 2 and 3 and
section 24 of the Act on ownership as intervener in proceedings
under SP. zn. PL. ÚS 5/05.
2. The day it was the Constitutional Court delivered 19.1.2006 Administration High Court in
Prague from 13 June 2005. 1.2006, marked as a "discontinuance", held at the
The Constitutional Court under the SP. zn. PL. ÚS 5/05. The High Court in Prague this
the Constitutional Court announced the filing and in annex showed that in case led by
before him under SP. zn. 15 Cmo 1058/2004, the action was withdrawn, so
you will need to set aside the judgment of the Court of first degree and stop control; drew,
that are not already subject to the conditions set out in the provisions. § 109 paragraph. 1 (b).
(c)) code of civil procedure, and therefore, "the High Court in Prague takes your
the proposal in case pl. ÚS 5/05 of 13 April. back in January 2005 ".
According to the provisions. § 68 para. 1 of the law on the Constitutional Court in proceedings relating to revocation
laws and other legal regulations, if the proposal was rejected and the
There will be in the course of the proceedings the reasons for terminating the proceedings is Constitutional
the Court is obliged to draft, discuss and decide about him even without the other proposals.
For this type of proceedings before the Constitutional Court therefore applies the principle of officials
and with the possibility of the withdrawal of the document instituting the proceedings by the applicant and
by stopping the proceedings because of this, the law doesn't count at all. Legally effective
taking the proposal back knows the law on the Constitutional Court only for a constitutional complaint (section
77.), and in the cases referred to in sections 110 and 123. This also corresponds to
the settled practice of the Constitutional Court.
As a result of the process of the development described above, however, the
The High Court in Prague has ceased to be authorized by the applicant, since the proposal
the contested provisions of the law on ownership in the context of its
the decision-making activities will no longer apply (cf. § 64, paragraph 3, of the law on
The Constitutional Court). It was therefore necessary to draft in relation to this applicant
rejected as a proposal made by someone apparently unauthorized [section 43 (2) of
(a). (b)), in conjunction with the provisions of § 43 para. 1 (b). (c)) of the
The Constitutional Court]. In the present case, however, there was a specific situation, as
on the basis of the above proposals on the abolition of the same provisions of the Act
about the ownership of flats has previously entered into the management of the municipal court in Prague
as an intervener pursuant to § 35 para. 2 of the Act on the Constitutional Court.
Then, what of the reason described above in relation to the municipal court in Prague
the aforementioned lis pendens has fallen off, became this Court
the plaintiff and the party to the proceedings in the case, conducted under the SP. zn. PL.
TC 5/05. According to the beliefs of the Constitutional Court is required, although this conclusion
have already been suggestions the two boards of the Prague municipal court rejected for
an obstacle to the lis pendens as inadmissible. Only such an interpretation
matches-in that specific situation-looking at the material
right, because from the Constitutional Court, the law expects of a fundamental dispute
the question that emerges from the proposals of the general courts (see e.g. p. 4 of this
the text), decides definitively factually.
The proposals the municipal court in Prague are its content and purpose-
as regards the contested provisions of the law on the ownership of flats-the same as the
the original proposal of the High Court in Prague. The Constitutional Court therefore
not sending these proposals to the municipal court in Prague, and the Chamber of Deputies
The Senate to comment, since it would be redundant.
For completeness, it is yet to be completed, that, as regards the provisions challenged
in the design of the municipal court in Prague, delivered by the Constitutional Court of the day
3.1.2006, over and above the provisions of § 23 para. 2 and 3 and section 24 of the Act on
ownership of the flats (that is, the provisions of § 27 para. 7 of Act No. 328/1991 Coll.,
on bankruptcy and settlement, as amended, § 23 para. 1
the law on the ownership of flats and § 22 para. 1 and section 24 of Act No. 42/1992 Coll.,
on the adjustment of property relations and the settlement of property claims in
cooperatives, as amended), the ústavností of these
the statutory provisions deal with the Constitutional Court in the proceedings conducted under the SP. zn.
PL. ÚS 1/06.
IV.
The relevant provisions of the law on ownership, which the appellant
attacks and calls to cancel, as follows:
Article 23 of the
(2) the cooperative is required to conclude a contract on the transfer of the apartment provided for in § 24
paragraph. 1 and 2 with a natural person-a member of the cooperative, which is the tenant of the apartment
and which called the cooperative pursuant to section 24 of Act No. 42/1992 Coll., on the adjustment of
property relations and the settlement of property claims in cooperatives, in
the text of the legal measures of the Bureau of the Federal Assembly no.
297/1992 Coll., or prompts the team to 30. June 1995 to the conclusion of the contract
on the transfer of ownership to this apartment. The contract shall be concluded
not later than 31 December 2006. December 1995, if not agreed otherwise. This does not
without prejudice to the provisions of the foreign exchange regulations.
(3) Similarly, even for non-residential premises, for which the
Finance participated in our member share only a natural person-a member of the
the cooperative, which is the tenant, or its legal predecessor.
section 24
(1) if the converted apartments, garages and studios in the buildings in
ownership or joint ownership of cooperatives on the construction
were given financial credit and other assistance under the Special
regulations, 18), to the ownership of members of these cooperatives, natural persons,
the lease to the apartment, garage and of repayment was
a member of the share cooperative the following members or their legal predecessors,
These transfers are free.
(2) the provisions of paragraph 1 also applies to conversions of apartments, garages and atelierů in
buildings, to the effective date of this Act, have been in the possession of,
where appropriate, the joint ownership of cooperatives known as earlier
as people's housing cooperatives, 19) are transferred from
ownership, or ownership referred to cooperatives to
ownership of members-individuals, whose lease to the apartment,
garage and of the facts was provided for by law. 20)
(3) the provisions of paragraph 1 shall also apply to transfers of non-residential spaces
incurred on the basis of the decision to change the use of the stavby21),
garages and atelierů referred to in paragraphs 1 and 2.
(4) if in a building owned or co-owned
cooperative commercial space formed on the basis of the decision to change the use of the
stavby7) from the common areas of the building, converts the cooperative on the basis of
contract this commercial space when you convert the units referred to in paragraphs 1 and
2 to mutual ownership owners free of charge. The size of the
co-ownership is governed by the relative size of the floor
desktop units to the total floor area of all units in the House,
account to the floor area of non-residential premises referred to
in the first sentence. Similarly, as mentioned in the preceding two sentences,
are the procedures for non-residential premises, for which the financing involved
Member shares only the tenant units within the building or House, or
their legal predecessors. The provisions of paragraph 1 shall also apply to these
transfers of ownership of non-residential spaces.
(5) the contract of transfer of units closed pursuant to paragraph 1 or
2 is the obligation on the licensee to pay the cooperative the amount that corresponds to the
outstanding loans with the accessories provided by the cooperative, or so
to convert an apartment or commercial space (garage, atelier) at the date of
the regular half-yearly instalments of the loan within the meaning of paragraph 6 and the commitment
the acquirer and the cooperative deal each other in relation to obligations of the transferee
team. The ownership of the unit is transferred to the sp lnění this
the commitment.
(6) the cooperative is obliged to use the funds raised in the relevant
half of the purchasers of units to repay the credit věřiteli23) (hereinafter referred to as
"the Bank") along with regular installment credit attributable to the same
half of its intended purpose, which is an extraordinary instalment of units refers to.
An integral annex to the Treaty on the transfer of ownership of the unit is to confirm
Bank about the repayment of the corresponding part of the loan by specifying which units
installment loan is concerned.
(7) part of the contract on the transfer of the property ownership of the
the cooperative is the netting of the rent resource designed to
funding for the maintenance and repair of the building or House and drives, and further
positive balances of resources from profit housing
(hereinafter referred to as "the means for the settlement of"), attributable to the
Enter the unit. Mutual settlement involves leveling
unspent balances, such as the settlement of arrears on the part of
the acquirer. Unused funds intended for the settlement of the converts, the cooperative
the legal entity managing the House assurance (§ 9 to 11). For the use of
transferred funds the provisions of §§ 15, mutatis mutandis. In the case that
the House Administration is carried out by a legal person, it converts the cooperative
unused funds intended for the settlement of the owner of the unit.
(8) if the transfer of ownership of the units of the cooperative ownership
Member, before the effective date of this Act, the squad and the unit owner
obliged to deal means for the settlement of, attributable to the
Similarly, the converted unit referred to in paragraph 7, and within six months from the
the effective date of this Act.
(9) the transfer referred to in paragraphs 1 to 8 shall cease membership of the transferee
in the team without the right to reimbursement of shares issued by the
Unit, or of capital if it has been the source of
financing of the House with the transferred units. Membership in the team, however,
does not arise if the participation of a member in the team after the conversion
the unit achieves at least the amount of capital.
(10) the settlement amount acquirer units which were transferred
the unit referred to in paragraphs 1 to 5 and has been terminated membership in the cooperative, the
determined in accordance with section 233 of the commercial code.
In the.
The Constitutional Court in accordance with § 68 para. 2 of the Act on the Constitutional Court
examined whether the unconstitutionality of a law whose provisions the appellant argues
was adopted and issued within the limits of the Constitution laid down the competence and constitutionally
in the prescribed manner.
It should be noted that the question of the so-called. the constitutionality of the law on formal
ownership of the flats have already dealt with the Constitutional Court in the proceedings, kept under the sp.
Zn. PL. ÚS 51/2000 (a compilation of findings and resolutions of the Constitutional Court of the CZECH REPUBLIC, volume
21, finding no 42, declared under no 128/2001 Coll.). From the observations of the
the Chamber of Deputies and Senate of the Parliament of the Czech Republic, as well as of the sent
Council papers, těsnopiseckých reports, the relevant resolutions and information on the
during the vote of both Chambers found that Act No. 72/1994 Coll. (Act on
ownership of the flats) was adopted and the Constitution was issued in the prescribed manner and in the
the limits of the Constitution laid down the competence, while observing the quorums set out in
article. paragraph 39. 1 and 2 of the Constitution of the CZECH REPUBLIC. A draft law later declared under no.
72/1994 Coll., the Government submitted to the Chamber of deputies of the Czech Republic. Law
was adopted by the deputies of the Parliament of the Czech Republic on its 17.
meeting of 24 April 2001. 3. The Chamber of deputies in 1994 (resolution No. 355, House
prints no 599 and no 724) in the text of the approved amendments. Law
He was then signed by the President of the Chamber of Deputies, the President of the Republic
and the Prime Minister in accordance with art. 51 of the Constitution of the CZECH REPUBLIC and has been declared in the collection
the amount of 22 laws, year 1994. Efficiency gained the day 1.5.1994. Also
Amendment of the Act, which partly affected the design of the contested
provisions (Law No. 97/1997 Coll. and Act No. 101/2000 Coll.) was adopted
and issued by the Constitution in the prescribed manner and within the limits laid down in the Constitution
competence (note prior to the filing of the proposal).
Vi.
The Constitutional Court after the formal findings checked again, after
examination of the merits of the case, concluded that the proposal is not justified.
1. In the present case, it is clear that the applicant does not agree in particular with the
the opinion of the Constitutional Court, as expressed already in the cited Award (SP. zn.
III. TC 258/03), that the application of article 15, paragraph 2. 1 (b). (c)) the Bankruptcy Act
the settlement is to be (in the respective case) refuse, since, for
free residential units pursuant to § 23 para. 2, 3 and 24 of the Act
No. 72/1994 Coll. is required that the transfer given the ex lege and not a manifestation of
the free will of the debtor. As already mentioned above, this conclusion,
If he had would be generally applicable to the assessment of the impact of article 23 para. 2, 3 and §
24 of the Act on ownership of apartments at the audition, for the appellant "explicitly"
the reason for filing the application for annulment of the contested provisions of the law on
ownership of the flats, because-in his opinion-"when this interpretation
These provisions are in breach of the principles enshrined in article. 11 of the Charter of fundamental
rights of freedoms ".
At the outset, it can therefore be stated that the essence of the navrhovatelových objections in
the principle of concentrated in its disagreement with the interpretation of the relevant provisions
the law on the ownership of flats, made by the Constitutional Court, which was also
(according to the claim of the plaintiff) accepted another appeal of the High Court in
Prague (the Senate 13 Cmo). The proposal therefore effectively taken-do-right against the
the contested provisions of the law on the ownership of flats, respectively. does not dispute-
without further their constitutionality, but their interpretation and
In addition, in relation to the provision of another, albeit closely related law
(the Act on bankruptcy and settlement).
(At this point, it can be recalled that the Constitutional Court in proceedings relating to revocation
the laws referred to in article. 87 para. 1 (b). and assess the consistency of the contested Constitution)
provisions with the constitutional order of the Czech Republic on the basis of the proposal
the General Court, without at the same time dealing with a specific case,
respect of which the filing occurred, and without directly expressed to
a different interpretation of those provisions, carried out a variety of general courts.
Its mission is to unite, but authoritatively assess
whether the contested provisions stands in terms of constitutionality, or whether it is
maybe their ústavněkonformní interpretation. For all the institutions and persons
However, they are in the meaning of article 87(1). 89 para. 2 binding supporting reasons – resulting from the
constitutional analysis of case-finding, contained in the preamble even
rejecting the application for annulment of the contested provisions of a legal
prescription. Any argument that the Constitution does not recognize the right of the Constitutional Court
to submit a binding interpretation of the Constitution, cannot be accepted. The Constitutional Court is not
entitled to submit a binding interpretation of the Constitution in General, at any time and to anyone
However, where it is on the basis of their competence, not its activity
After all, the content is nothing more than just a binding interpretation of the Constitution.
Therefore, deals with the initiative of the General Court of the ústavností of the Act, deals with the
even the interpretation of the Constitution. The Constitutional Court therefore subjected to the provisions of the law on
ownership-challenged duly lodged formally and content
a reasoned proposal of the High Court in Prague-checking their compliance with the
the constitutional order of the Czech Republic.)
2. In this regard, it is especially to be noted that neither the plenary Constitutional
the Court does not see any reason to deviate from the already previously expressed
the findings, contained in the preamble to the Senate findings SP. zn. III. THE TC
258/03, even though the Senate ruled on specific constitutional complaints. It is therefore on the
place again the basic proposition that the findings of the award
built.
In general terms, the Constitutional Court. He recalled that the meaning and purpose of
the Act on bankruptcy and settlement (section 1) is the arrangement of the matrimonial property regime
a debtor who is bankrupt, so if multiple creditors and if it is not able to
After a longer period of time to meet its debts; This is true even if
a natural person who is a businessman, a legal person is předlužena.
In doing so, shall be subject to particular assets of bankruptcy (bankruptcy)
He belonged to the debtor on the date of the bankruptcy, and it also assets other
people, in particular those which it acquired on the basis of ineffective laws
the acts of the debtor (section 6 of the Act on bankruptcy and settlement). Under § 222 para. 1
the commercial code for the breach of obligations corresponding to the whole team
of his property. It follows that it also includes residential
the units, which are in the ownership of the cooperative, however members
the cooperative entitled according to section 23 and section 24 of the Act on ownership.
According to section 23 and section 24 of the Act on ownership while team members, and
under certain conditions, have the right to a free transfer
housing units of the cooperative ownership of their ownership. For
the conditions contained in section 20 of the Act on bankruptcy and settlement are bankruptcy
lenders permission to exercise their claims and bankruptcy
the lender is according to § 7 of the Act, every person who applies to
the bankrupt is entitled to. The subject of the claim may be a thing, IE. (I)
the apartment, with the Act on bankruptcy and settlement assumes the possibility of
satisfaction of the bankruptcy creditors in relation to the matter to which the
binds to ensure its receivables (§ 28 para. 1). Person bankruptcy
the creditors of the bankrupt-housing cooperatives, if his claim is properly
apply, is therefore a member of the cooperative, which befits a claim arising from the
the provisions of § 23 para. 2 and § 24 para. 1 of the law on ownership.
The award in question, the Constitutional Court also noted that the jurisdiction of the
the democratic legislature in the field of legal provisions of private law
the adjustment of the types. For such a contract should be considered as type, and
After the legally specified conditions, as well as free transfer
housing units of the cooperative's member cooperatives, which is the tenant
the apartment (article 23, paragraph 2, and article 24, paragraph 1, of the law on the ownership of flats).
The Constitutional Court also considered-in proceedings under the SP. zn. III. THE TC
258/03-necessary to analyze even the arguments of General Court, according to which the
in the case decided by the application is reasonable provisions of § 15 para. 1 (b). (c))
the Act on bankruptcy and settlement. According to the legal provisions
If declared bankrupt, are ineffective as against creditors of the legal
acts of the debtor, made in the last six months prior to
application for a declaration of bankruptcy, or after the filing of the proposal to
a declaration of bankruptcy, which converts things, rights and other property
the value of his assets to others free of charge. The Constitutional Court
He said that the purpose of the statutory provisions have been incorporated
the Institute on family and the ineffectiveness of the legal act to prevent
transfer assets of the debtor to a third person at the expense of creditors in the case of
doubts about his good faith. The Constitutional Court, however, stressed that the
such a situation is for the free transfer of housing units according to § 23 para.
2 and § 24 para. 1 of the law on the ownership of apartments it is not. In the present case is
Indeed, given the required conversion rather than the expression of the free will of the debtor,
but given the ex lege. The application of the provisions of article 15, paragraph 2. 1 (b). (c)) of the Act
on bankruptcy and settlement, therefore, in the case in question was found with nesouladnou
its purpose and meaning, and as such, it refused. On the issue of tension between
the literal and purposive interpretation of the Act while the Constitutional Court-with
referring to its constant case-law-reiterated that unsustainable
torque application of the law is its application, coming only from the
language interpretation; language interpretation represents only the initial
approach to applied the legal standard, is the starting point for clarification and
clarifying its meaning and purpose (which is also used by a number of other
procedures, as a logical and systematic interpretation, interpretation (e) ratione legis
etc.). The Constitutional Court reminded as the principle that the Court is not absolutely bound
the literal wording of the statutory provisions, but it can and must
waived when it requires serious grounds for the purpose of the Act,
the history of its creation, systematic link or any of the principles,
which have their basis in law as a constitutionally Conformal významovém
the whole. However, in so doing, avoid arbitrariness; the Court's decision is
must be based on rational argument.
The Constitutional Court and now lingers on the legal conclusions, expressed as follows
as regards the interpretation and application of the contested provisions of the proposal
the law on the ownership of flats, because these conclusions are in on things
applicable. In that award under SP. zn. III. TC 258/03 the Constitutional Court
expressed, which is ústavněkonformní the interpretation of even these provisions; opinion
the plaintiff alleged unjustified preference of one group of creditors (and
discriminatory effects of such an interpretation against the second group)
The Constitutional Court did not admit to relevance. If, in such cases
the rule that the members of the cooperative for the fulfillment of certain conditions, have
the legal entitlement to a free transfer of ownership of the housing unit
cooperatives in their ownership, and that the service of such a conversion is not
the expression of the free will of the debtor, but rather is given ex lege, then is
the interpretation, which has delivered a Constitutional Court in case III. TC 258/03 as a whole
(leading to, in effect, in conclusion, that the acquired assets cannot be taken
to meet the claims of other creditors ' bankruptcy) basically given
the nature of the substance of the matter (argumentum intrinsecum). From the constitutional point of view
in General, the of the many conceivable interpretations of the law should always be
use the one that respects the constitutional principles and the repeal of the law
for unconstitutionality to proceed only if the provision in question
use, without violating the constitutionality. However, in Mr. stuff
does not occur.
3. (a) However, there) could be a different argument, or mention other circumstances
for the benefit of the above conclusions. The case is under consideration-as
clear also from the observations of the parties-a specific fact that after filing
application for annulment of the contested provisions of the law on ownership of apartments was
to the legislative development, if the legislature-according to its own
words-(see the observations of both chambers of Parliament) "in a manner fully Conformal
with the decision of the Constitutional Court of 6 May 1999. May 2004, SP. zn. (III) TC
258/03, expressly legally edited by the principle of continuity of legal claims
natural persons-members of the cooperative, resulting from the contested provisions
Act No. 72/1994 Coll., as regards the duration of the legal rights and
the method of their settlement of the bankruptcy administrator "(cf. the observations of
The Chamber of Deputies), and "was realized by generally applicable ideas
The Constitutional Court expressed in the report III. TC 258/03 "(representation of the Chamber).
It was the law of 28 June. April 2005, no. 179/2005 Coll., which
changing some laws in connection with the adoption of the law on the abolition of the Fund
National Property Fund of the Czech Republic (hereinafter referred to as the "Law No. 179/2005 Coll.).
In the twenty-ninth of this law is amended, the law on bankruptcy and
the settlement that in section 27, the following paragraph 7, including notes
footnote # 8 (voucher for section 22, article 23, paragraphs 1 and 3 and section 27 of the Act on the
ownership of the flats), no. 9 (voucher for section 23 to 28 of the law on ownership
apartments) and no. 10 (voucher for section 22 of the Act on ownership of apartments) now reads:
"Předkupními Rights Manager is not bound. The administrator is in the
the realisation of the nature of the legal rights law-bound and the rights of tenants
According to a special zákona8). Flats and non-residential premises owned by the
housing cooperatives, the management of which is restricted to natural persons-law
team members that are tenants of apartments and non-residential premises,
the exclusive acquisition of ownership of apartments and non-residential premises pursuant to § 23
paragraph. 1 and 3 and section 24 of Act No. 72/1994 Coll. on ownership of apartments, as amended by
amended, the administrator must first offer to free
the transfer of persons authorized for the exclusive acquisition of ownership under the conditions
stipulated by special zákonem9). The administrator is obliged to perform all of the
acts that are to transfer these flats and non-residential premises required.
For this he from the persons authorized for the exclusive acquisition of ownership belongs to
reimbursement of the costs necessarily incurred in carrying out all the necessary
and the remuneration set out under a special legal regulation.
Unless the person entitled to the exclusive acquisition of ownership of such
the offer within three months of its delivery, the administrator shall proceed to
monetization, whereby the provisions of a special law on the protection of the rights of
nájemců10) in these cases, already, of course. "
In general it can be said that this amendment means the legislative trend which
against the correctness of navrhovatelova opinion apparently is going. After all, the
If the insolvency administrator is-according to that amendment-must
offer the competent bodies free transfer of the apartment, the more can be
that would not be included in the bankruptcy estate even you
flats, for which the free transfer to the members of the cooperative agreement between
bankrupt (cooperative) and a member of the cooperative.
(b)) in the thirtieth of the Act No. 179/2005 Coll., then there was a change
the very act of ownership, since the existing section 30 was
added new section 30a that, including footnote 27a (voucher for
the Act on bankruptcy and settlement):
"The provisions of this Act relating to the owner of the buildings, units or
land, or co-ownership on the land, or
housing cooperatives, also applies to the liquidator in accordance with a special law
on bankruptcy and vyrovnání27a), including the provisions on the transfer of ownership
buildings, units, and land, or co-ownership share on
of the land. "
Finally, there has been in the same part of the Act No. 179/2005 Coll. to change so that in
the contested provisions of § 24 para. 7 the first sentence of the law on ownership
No. 72/1994 Coll. was the words "mutual settlement funds" is inserted
the words "of" and the words "and on" the word "positive".
The part of the Act No. 179/2005 Coll., while no longer the date of effect
its publication, i.e.. on the day of 30.4.2005. So, while the Constitutional Court found that the
the provisions of the contested application for commencement of proceedings, was cited
law later amended, but only slightly (four words), in
a single paragraph comprehensive provisions (§ 24 para. 7 of the first sentence of the law on
ownership of the flats). It should be noted that the amendment did not change nor
content, or sense of the contested provisions and thus slightly
the amended texts are semantically different from the former, as it is
of their refinement. The Constitutional Court therefore concludes that, in this
There are no grounds to stop State proceedings pursuant to section 67 of the Act on the constitutional
the Court since the challenged provisions of the Act on ownership by law No.
179/2005 Coll. (with the minor exception that is described above in this paragraph)
without prejudice to the validity and before the end of the proceedings before the Constitutional Court
remain. Essentially comparable to the opinion expressed by the Constitutional Court in case
PL. ÚS 15/01, in part VII/c in the last paragraph.
When it comes to the essence of things is from above-without extensive
comment-clearly enough that even the legislature found the relevant
the views expressed in the abovementioned finding of the Constitutional Court SP. zn. (III) TC
258/03. Legislation on the issue, which has to be assessed
comprehensively, so she was Act No. 179/2005 Coll. merely legislated
specified within the meaning of the interpretation by the previously cited findings
The Constitutional Court, without being as to their content and purpose of any
without prejudice to the.
Of all the listed reasons, the Constitutional Court came to the conclusion that the contested
provisions, i.e.. § 23 para. 2, 3, and section 24 of Act No. 72/1994 Coll., as amended by
amended, are not in conflict with article 11 of the Charter of fundamental
rights and freedoms, which the appellant alleges, nor for other reasons
they are not unconstitutional.
The Constitutional Court therefore notes that the cancellation reasons § 23 para. 2, 3 and § 24
Act No. 72/1994 Coll., to regulate certain co-ownership
relationships to buildings and certain ownership to apartments-residential
spaces and the following certain laws (the law on the ownership of flats) are not
Danes.
Therefore, the proposal was the municipal court in Prague, in accordance with the provisions. § 70 para. 2
Act No. 182/1993 Coll., on the Constitutional Court, as amended,
rejected.
The Constitutional Court-with the consent of the participants-from the oral is dropped, as
from this he concluded that the hearing could not be expect further clarification of the matter.
The President of the Constitutional Court:
v.z. JUDr. Holländer, v.r.
Vice Chairman
