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In The Matter Of The Application For Revocation Under The Enforcement Regulations

Original Language Title: ve věci návrhu na zrušení části exekučního řádu

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310/2010 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided on 29. September 2010 in Parliament consisting of the President of the

Paul Rychetského of the Constitutional Court and judges Stanislav Bumpkin (judge

the Rapporteur), František Duchoně, Vlasta Formánkové, Vojena Güttlera,

Paul Holländera, Ivana Janů, Vladimir Crust, Dagmar Lastovecké,

Jiří Mucha, Jan Musil, Jiří Nykodýma, Miloslava Excellent, Eliška

Wagner and Michael Židlické in the matter of the proposal of the District Court in

Semily, for which it is Mgr. Pavel Jandura, for annulment of the provisions of § 89

the second sentence of the Act No 120/2001 Coll., on bailiffs and enforcement

activities (procedure) and amending other laws, as amended by Act No.

347/2007 Coll., as follows:



I. the proposal is rejected.



II. the provisions of the second sentence of section 89 of the Act No 120/2001 Coll. on Court

the court bailiffs and enforcement activities (execution procedure), and to modify other

laws, as amended by Act No. 347/2007 Coll., amending Act No.

120/2001 Coll., on the activities of bailiffs and enforcement (enforcement procedure)

and amending other laws, as amended, should be constitutionally

conformally to interpret further to the provisions of section 89 of the first sentence

enforcement code so that, in the case of stop the execution for nemajetnost

the statutory obligation to pay the flat-rate basis is authorized specified or reasonably

incurred by the bailiff expenses depends on assessing the rate of its fault

to stop the execution.



Justification



(I).



Recap of the proposal



1. June 10. April 2008 the Constitutional Court was served with the District Court

in semily, which the applicant seeks the release of the findings, which would set aside

the provisions of § 89 the second sentence of the Act No 120/2001 Coll. on Court

the court bailiffs and enforcement activities (execution procedure), and to modify other

laws, as amended by Act No. 347/2007 Coll., as amended by: "in the case of

stop the execution debtor pays a flat rate for the nemajetnost specified or

reasonably incurred expenses to the bailiff to be true. ".



2. the applicant stated that at the District Court in semily is proceeding

in the matter of SP. zn. 0 Nc 1741/2006, in which it has been made to the District Court in

Semily of 17 December July 2006 no. 0 Nc 1741/2006-7, to satisfy

claims authorized City District Prague 1 in the amount of 100 EUR is mandated by the

execution against mandatory International Service, Com 1 Khel.

Czech-Senegalese company, spol. s r. o., the performing

was responsible for judicial exekutorka JUDr. Ingrid Švecová. The debtor was

obliged to pay the bailiff charges execution and authorized

reimbursement of expenses reasonably incurred with the recovery of the claim in question.

The resolution took on 19 December. October 2006 legal power. On the initiative of the executor on

termination of the proceeding, it is clear that the execution was completely fruitless. In the next

control should be on the Court, pursuant to section 268 to paragraph 1. 1 (b). (e))

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

regulations for the use of section 52 para. 2 enforcement code and proceedings and in

the framework of this decision when making a decision on the costs of the execution proceeded

According to § 89 the second sentence enforcement code.



3. the appellant appeals to the Constitutional Court for cancellation of the

the contested provisions of § 89 the second sentence enforcement code because according to

his opinion is contrary to the provisions of this article. 36 of the Charter of fundamental

rights and freedoms. According to the appellant, this right is violated in relation to

the creditor, and should be on the State to ensure the enforceability of the

rights, without true in advance, he had to consider whether the execution will be

or will not be fruitless. The contested legislation is the cost of nedůvodně

transferred to the creditor, while does not look at it, that according to the case-law

the bailiff is a person "of a similar nature by entrepreneurs

the commercial code ". The applicant States that the risk of nevymožení

the claim should be the executor, and compares the adjustment enforcement

order with editing in the code of civil procedure, where, according to him, in the case of

non-results of the proceedings shall be decided by the fault. Adopted

the provisions of the case law of courts has not been respected so that "no doubt

in accordance with the ústavností ".



II.



The progress of the proceedings and the expression of the parties ' recap



4. in accordance with section 69 of the Act on the Constitutional Court called on the Constitutional Court

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

The United States, to comment on the proposal.



5. The Chamber of deputies by its Chairwoman, Miroslava

Němcová described the legislative history of the adoption of law No 120/2001 Coll. and

Act No. 347/2007 Sb.



6. the draft enforcement code submitted to the Chamber of Deputies group

members of the 20 July. 9.2000 and was debated as parliamentary print No 725 in

III. the electoral period. The Chamber of Deputies discussed the draft enforcement code in the first

read on 1 May 2004. 12.2000 and ordered it to discuss ústavněprávnímu

the Committee discussed the draft of the Act of 22 May. 1.2001 and issued a resolution

which was published under no. 725/2. In the second reading House of Commons

discussed the draft enforcement code on 24. 1.2001. Amendments to the

the draft law resulting from the existing legislative process have been

processed and published under no. 725/3. In the third reading discussed

The Chamber of Deputies the draft enforcement code on 26 April. 1. in 2001, and with the proposal

law agreed. In the final vote of 158

members of Parliament for the proposal voted 130 members, voted against the proposal 3

MEPs. The Chamber of Deputies referred the proposal to the Senate on 5 July 2004. 2.2001,

The Senate gave its proposal on 28. 2. the 2001 agreement. The law was the President of the

the Republic delivered for signature on 8. 3. in 2001, the President of the law of 22 May. 3.

2001. The law was January 3. 4.2001 declared in the collection of laws in

the amount of 48 under the number 120/2001 Sb.



7. A draft law amending the Act No 120/2001 Coll., on

The Chamber of Deputies, the Government of the day 29. 3. in 2007, and has been discussed as a House

print no. 178 in legislature. The Chamber of Deputies discussed the Government's proposal

the law in the first reading on 9. 5.2007 and ordered it to discuss

ústavněprávnímu Committee, which discussed the draft law on 23 December 2005. 8.2007 and

issued a resolution, which was published under no. 178/1. In the second reading

The Chamber of Deputies discussed the draft law on 19 December. 10.2007.

Amendments to the draft law resulting from the existing legislative

the process has been processed and published under no. 178/2. A particularly significant

the Chamber of Deputies considers the amendment referred to under (B).

6. which have been modified by the provisions of § 89 of the contested

the enforcement of the order. In the third reading of the Chamber of Deputies discussed the proposal

the law on 31 December 2004. 10.2007, and with the Government's draft law agreed.

The proposal referred to under point (B). 6. He was adopted by the Chamber of Deputies, when in

vote no. 380 for its adoption from the present 149 votes

118 members, against the proposal was 22 members. In the final vote,

in which the Chamber of Deputies agreed with the Government's draft law on

the text of the approved amendments (vote no. 389), from the present

151 members voted for 145 members, voted against the proposal 1

Member of Parliament. The Chamber of Deputies referred the proposal to the Senate on 13 November. 11.2007

The Senate approved the Bill on 5 July 2004. 12.2007. The law was the President of the

the Republic delivered for signature on 6. 12.2007, the President of the law of 13 October.

12.2007. The law was on 21. 12.2007 announced in the collection of laws

the amount of the 108 under the number 347/2007 Sb.



8. The Senate through its President MUDr. Premysl Sobotka said,

that standard, whose cancellation is proposed, is part of Act No. 347/2007

Coll., whose proposal was after the approval in the Chamber of Deputies delivered to Senate

on 13 November. 11.2007 and the Senate record of VI. his term of office he was

Print number 133. The draft of the Act of 28 January. 11.2007 after his

commandments of the Organising Committee of the Constitutional Committee, which dealt with

resolution No. 37 recommended the Senate approve the proposal of the law on

the text of a transferred the Chamber of Deputies. The draft law has been approved in

the text of the Chamber of Deputies on a transferred 10. meeting held in VI.

term of Office of senators from 55 votes 60 senators present, against

None of the senators. The Senate concluded that according to his opinion, approved the

the draft law within the limits of the Constitution of the United States set out competences and

constitutionally prescribed manner that is entirely up to the Constitutional Court, in order to

to assess the constitutionality of the contested provisions.



III.



Locus standi of the applicant



9. According to the article. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution")

If the Court concluded that the law, which is to be used in solving the case,

is in conflict with the constitutional order, refer the matter to the Constitutional Court. This

permission is also given in § 64 para. 3 of Act No. 182/1993 Coll.

on the Constitutional Court, as amended, under which the Court may, at the

The Constitutional Court to abolish the law or its individual

provisions. The condition of the litigation consulting such a proposal is

populate the diction of the article. 95 para. 2 of the Constitution, in the sense that it must be a

the law, which is to be used in solving the case, IE. the law or its

provision, which is proposed to be cancelled by the applicant directly to the

applied to address a specific dispute. The Constitutional Court found this


condition, as the claimant will be filled when making a decision pursuant to section 268

paragraph. 1 (b). (e)) code of civil procedure § 52 paragraph for use. 2

enforcement code to stop execution and about the costs of execution to proceed

According to § 89 the second sentence enforcement code.



IV.



The constitutional conformity of the legislative process



10. According to the provisions of § 68 para. 2 of the Act on the Constitutional Court, the Constitutional Court,

In addition to the assessment of compliance of the contested act to the constitutional laws, figuring out

whether it has been adopted and published within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner.



11. In the present case the appellant did not defect to the legislative

the process exceeded the Constitution laid down the competence or the legislature.

The Constitutional Court after verifying the accuracy of the information resulting from the observations

The Chamber of Deputies and the Senate come to the conclusion that the contested provisions of the

adopted and published within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner.



In the.



Legal assessment of the Constitutional Court



12. On the substance of the Constitutional Court came to the conclusion that the proposal is not justified.



13. The Constitutional Court in its case law has repeatedly explained that it comes in

account the possibility of interpreting the contested provisions, constitutionally, has

This takes precedence over the SERENADES the contested provisions. To this procedure

the principle of minimizing alleging intervention by the Constitutional Court came up and

This time, despite the fact that he was fully aware of how the legislature when

the adoption of the contested legislation proceeded deliberately to bypass

the case-law of the Constitutional Court and tried to receive legislation

to enforce his will, regardless of the high level of risk, that this legal

the adjustment will not be constitutionally Conformal. The Constitutional Court, or in this case, however,

does not intend to lead a discussion with the legislature, he was merely checking

the constitutionality of the standards that are to him such inspections by authorized

the applicant suggested. In this case, the Constitutional Court has considered that the

interpretative statement allowing a petitioner in a proceeding that is before him

be conducted to decide in terms of standard-compliant, which constitutionally describes in

its proposal. Similarly, in analogous situations will be able to make decisions and

other general courts.



14. In the opinion of the Constitutional Court plenum SP. zn. PL. ÚS-St. 23/06 dated

September 12, 2006 (Wed 23/42 SbNU 545) ^ * the Constitutional Court explained why

such an interpretation is considered constitutionally compliant provisions of § 87 to 89

the enforcement of the order, in which "the provisions of section 87 to 89 enforcement code cannot be

to interpret without context arising from General editing costs

the procedure for enforcement (i.e. the provisions of § 271 270 and about s. l.),

because obviously, just describe the peculiarities of enforcement proceedings with the fact that

otherwise, the consequences of General subsidiarity is applicable code of civil procedure

(section 52 (1) of the enforcement code) ".



15. the Constitutional Court then dealt with the question of whether a firm Constitutional kautely

Court for the determination of the remuneration of executor in the plenum of the Constitutional Court's opinion

SP. zn. PL. ÚS-St. 23/06 fall to the contested the wording of § 89 the second sentence

enforcement code, which has been in the legal order of the poliovirus "Act No. 347/2007

Coll., effective after the abovementioned opinion of the full Court of the Constitutional Court.



16. the Constitutional Court is now on the case accepts the argument that "the constitutional

the Court in its case-law in the event of tension between constitutionally Conformal and

the original (subjective) interpretation of admitted priority of the first of them

[find SP. zn. PL. ÚS 36/01 of 25 June. 6.2002 (N 80/26 SbNU 317;

403/2002 Coll.) ^**]. From the maxims is also in the present case. The sentence

the second section 89 enforcement code should be therefore interpreted following the

the first sentence of the provision, i.e.,. in the case of stop the execution for

nemajetnost is the statutory obligation of the authorized pay flat rate specified

or reasonably incurred expenses to the bailiff depends on assessing the rate of its

the fault to stop the execution. " (see obiter dictum award by the constitutional

Court SP. zn. IV. TC 314/09 of 5 November. May 2009).



17. The Constitutional Court and in this case, concludes that "when such

the interpretation of all the kautely are preserved by the Constitutional Court for

the determination of the remuneration of the bailiff's fee in its previous case-law had set "(cf.

and obiter dictum Constitutional Court SP. zn. IV. TC 314/09 of 5 November.

May 2009).



18. in finding SP. zn. PL. ÚS 5/02 of 2 July. October 2002 (N 117/28 SbNU

25; 476/2002 Coll.) The Constitutional Court held that "the intentions of the legislator, if

are expressed in an appropriate form and the range in a separate legal standard

(the Act) as themes zákonodárcova negotiations, on its content and validity

(efficiency) have no effect ... ". The Constitutional Court is known to be the opinion of the

raised on 19 December. 10.2007, at 22. a meeting of the Chamber of Deputies within the

the second reading of the Government's draft law amending the Act No 120/2001

Coll. on judicial executors and enforcement activities (execution procedure) and

change other laws, as amended, (the printing of 178)

the Minister of Justice Jiří POSPÍŠIL, to the question of the remuneration of the bailiff

in the case of a debtor's means test (cf.

http://www.psp.cz/eknih/2006ps/stenprot/022schuz/s022131.htm). If

and this opinion is relevant expression of the intentions of the original

the legislature accepts the Constitutional Court in case Mr. now argue that

"it is obvious that this departs from the ... "constraints" contained in the

the case-law of the Constitutional Court "(see obiter dictum award of the Constitutional Court

SP. zn. IV. TC 314/09 of 5 November. May 2009).



19. the Constitutional Court then concluded that the applicant is

the contested provision to interpret and apply in isolation from other

the provisions of the enforcement and the code of civil procedure.



20. The Constitutional Court concluded that did not find reasons to cancel the provisions of §

89 the second sentence of the Act No 120/2001 Coll., on bailiffs and enforcement

activities (procedure) and amending other laws, as amended by Act No.

347/2007 Coll., and therefore the proposal referred to in the provisions of § 70 para. 2 of the law on

The Constitutional Court has rejected.



The President of the Constitutional Court:



JUDr. Rychetský in r.



* Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 42,

opinion No. 23, p. 545



** Note. Red: a collection of findings and resolutions of the Constitutional Court, Volume 26,

find no 80, p. 317, promulgated under no. 403/2002 Sb.