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.