191/2010 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled on 27. April 2010 in plenary the composition of Stanislav Package

(Judge-Rapporteur), Francis Skinner, Vlasta Formankova, Turgut Güttler,

Vladimir Crust, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým,

Pavel Rychetský, Miloslav Výborný, Elisabeth Wagner and Michael April

on the proposal of the High Court in Olomouc, for which this is JUDr. Anna

The country, on the repeal of Article 12a para. 5 the first sentence of the law No.

328/1991 Coll., on bankruptcy and settlement, in the version applicable to 8. August 2007,

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

The Parliament of the United Kingdom as parties to proceedings



as follows:



The proposal is rejected.



Justification



(I).



Recap of the proposal and the arguments of the applicant



1. The Constitutional Court was on 8. August 2007 delivered proposal

The High Court in Olomouc (hereinafter referred to as "the applicant") in accordance with article 7(2). 95

paragraph. 2 of the Constitution of the Czech Republic seeks the annulment of the provision of section 12a of the sentence

the first, in paragraph 5 of the Act No. 328/1991 Coll., on bankruptcy and settlement, in

as amended, (hereinafter referred to as "the Act on bankruptcy and settlement"), i.e.,. in

the text of the to 8. August 2007. The text of the contested provision is worded: "against a resolution

to reject an application for a declaration of bankruptcy may appeal only

the rapporteur and draftsmen, who proceeded to the proceedings ".



2. in the application initiating proceedings the plaintiff in the High Court in Olomouc

He stated that after the previous proceedings initiated to design the věřitelky COOP

banks, a. s., in liquidation ("věřitelka") for a declaration of

bankruptcy dlužnice INTER BUSINESS CONSULTING, stock

the company, (hereinafter referred to as "dlužnice") by order No. 37 to 31/98-241

of 16 December 2002. December 2005, the regional court in Brno has rejected the proposal of the Bank on the

a declaration of bankruptcy for lack of assets dlužnice

dlužnice. When this decision came the bankruptcy court concluded that

due to dlužnici proposing the Bank's claim was documented and

final judgment of the regional court in Brno was recorded and payable

commitment to a further lender dlužnice Ing. In f. Court of first instance

He found the decline dlužnice for insolvency within the meaning of § 1 (1). 2

the Act on bankruptcy and settlement. On the basis of the communication from the dlužnice about her

property taken during the procedure, the response of those surveyed banks account

dlužnice, the Czech Office of land measurements and cadastral Office on

ownership of real estate and finding out that dlužnice is not registered as a

the owner of a road vehicle, the Court of first instance at the same time to

the conclusion that the property dlužnice is not sufficient to cover the costs of bankruptcy

because the remuneration of the receiver itself is designated under section 7

Decree No. 476/1991 Coll., which implements certain provisions of the Act

on bankruptcy and settlement, in the then, as amended, is no less than 50 000

CZK. Therefore, the design being rejected under section 12a paragraph 1. 4 of the law on bankruptcy and

settlement. Rejection of the application for this reason announced the Court of first instance

in the commercial bulletin, the municipal office Blansko, Labour Office Blansko

and the commercial register of the regional court of Brno. Decision of the regional

Court in Brno from 16 June. December 2005 was also published and delivered to the

the procedure foreseen in § 13 para. 4, 5 and 7 of the law on bankruptcy and

settlement.



3. the decision is appealed by filing dlužnice from 18. January

2006, received 19. January 2006 before the Court of first instance. The essence of the administered

the appeal is the defense of dlužnice, which still claims that the complainant, the Bank

not to dlužnici due to the alleged claim in the proposal, and not

Therefore, the right to submit a proposal. General courts first dealt with timeliness

filed appeal and the High Court in Olomouc, apart from the regional

Court in Brno, came to the conclusion that the appeal of the 18. January 2006 to be presented

in time, as decided by resolution No. 1 Ko-291 42/2006 of 29 March.

March 2006. The High Court in Olomouc, however, cannot appeal

discuss and decide about it, since the Act on bankruptcy and settlement

It is expressly excluded.



4. the applicant stated that, in his opinion, in terms of section 66a paragraph. 1

the law on bankruptcy for bankruptcy and settlement, mutatis mutandis,

the provisions of the code of civil procedure, unless otherwise provided by this Act.

In a special way regulated by the Act on bankruptcy and settlement in section 12a of the just

the right to appeal against the resolution on the Declaration of bankruptcy against

the resolution, which was a proposal for a declaration of bankruptcy is dismissed. Under section 12a

paragraph. 5 of the Act on bankruptcy and settlement against a decision to reject an application

on the Declaration of bankruptcy may appeal only to the applicant and

the plaintiffs, who have agreed to the procedure. Against the decision rejecting the

application for a declaration of bankruptcy for lack of assets can appeal and

the lender, which demonstrate that the debtor has a claim.



5. the Act on bankruptcy and settlement does not give the applicant the debtor according to

the right to appeal against any decision of the bankruptcy court, which was

rejected the proposal for the Declaration of bankruptcy of the debtor, 0, regardless of

whether the proceeding was initiated upon the proposal of the debtor or creditor, as well as

regardless of the reasons for the proposal for a declaration of bankruptcy

rejected. The hypothesis of law contained in the first sentence of Article 12a

paragraph. 5 of the Act on bankruptcy and settlement is clearly incorrect. Indeed, preventing the

the appeal as against the debtor in bankruptcy court decision, which

the proposal was rejected by the creditor on the debtor's Declaration of bankruptcy

because the borrower is your defense against the creditor's proposal succeeded, and

in the case where a creditor's proposal was found to be reason and on the borrower's

they fall similar to the substantive consequences, as if it was the creditor's

proposal accepted and declared bankrupt.



6. the appellant further stated that in the case of, if it was the bankruptcy of the assets

the borrower on a creditor's proposal was declared, the law on bankruptcy and

compensation under section 12a paragraph 1. 2 to make the debtor against such a decision

said. Then, of course, the debtor would not be deprived of his rights or to defend yourself

the proper remedy, therefore, against the decision of the

the bankruptcy court pursuant to section 12a paragraph 1. 4 of the Act on bankruptcy and settlement,

which the creditor on the debtor's Declaration of bankruptcy

dismissed only for lack of a debtor's assets. The rejection of the proposal on

a declaration of bankruptcy for lack of assets for the company from

in terms of substantive law, similar and comparable consequences as if it was

the bankruptcy of the assets of this company is declared. If the law in this

the case of an appeal of the debtor as an ordinary appeal is excreted, preventing

the debtor to seek protection of his rights in court in terms of article

paragraph 36. 1 of the Charter of fundamental rights and freedoms ("the Charter") and is in the

odds with the principle of equality of parties to the proceedings, enshrined in article. 37

paragraph. 3 of the Charter. Věřitelka could be against the rejection of its proposal by the Court

first instance to defend. The debtor's defences against the rejection of the proposal, however,

the law excludes, as the proposal was rejected in a way that cannot be

considered the substantive success of the debtor. In an unequal position of

in this case, the general terms, and the debtor finds himself in comparison with other

borrowers, on whose property was declared bankrupt on a proposal from the lender.

If the Court of first instance the Bank's proposal for a declaration of bankruptcy

the assets of dlužnice, could dlužnice against the conclusions of the Court of

first instance of the evidence of the appellant's claims and bankruptcy dlužnice

to defend. In rejecting the proposal for an audition for her lack of property law

This defence does not give the option.



7. An unequivocal wording of the statutory standards in the first sentence of section 12a paragraph 1. 5 of law

on bankruptcy and settlement is the applicant, in its opinion, pursuant to article. 95

paragraph. 1 of the Constitution of the Czech Republic is bound. Unambiguous wording of the law, then

does not give the applicant any constitutionally consistent interpretation. The right to

to challenge the decision of the Court of first instance or the appeal is procedural law,

that is given or excluded procedural rules. This right cannot be

interpretation of the substantive consequences inferred the contested decision.

The applicant should therefore, in its view, the appeal pursuant to section 218 dlužnice

(a). (c)) code of civil procedure to refuse. The legal power of the contested

the resolution, however, will lead to the deletion of the dlužnice from the commercial register. Dlužnice

so may be deprived of the opportunities to defend itself against court decision

of first instance of 16. December 2005, extraordinary remedies

According to the code of civil procedure or the constitutional complaint pursuant to section 72 of the Act

No. 182/1993 Coll., on the Constitutional Court, as amended. On

assessment of compliance procedural rules contained in the first sentence of section 12a paragraph 1. 5

the Act on bankruptcy and settlement with constitutional přádkem the United States cannot

affect the company's exceptional ability to restore deleted from the commercial

the register pursuant to § 75b para. 2 of the commercial code.



8. the applicant concludes that the unconstitutional consequences,

arising from the adjustment of the right to appeal against the decision of the bankruptcy

Court to reject an application for a declaration of bankruptcy in the first sentence of section 12a

paragraph. 5 of the Act on bankruptcy and settlement, can be avoided only by clearing the

This provision. There is no need to worry that this opening


debtors the possibility to file an appeal against the decision of the bankruptcy

the courts, which were rejected by the creditors ' proposals for a declaration of bankruptcy

for example, the assets of the debtor because the debtor's bankruptcy has not been certified. In

this case is sufficient to reject the appeal of the debtor's existing

interpretation, which by General editing of code of civil procedure

It concluded that the right to appeal against the decision of the Court of first

the degree does not have the interested party whose rights have not been a court decision

of first instance prejudice. On the basis of this interpretation are rejected

the appeal of the participants if it is lodged against a decision of the Court of first

the degree of the procedure before it.



9. the applicant stated that it is aware that, under the transitional

the provisions of § 432 Act No. 182/2006 Coll., on bankruptcy and how his

the solution (insolvency law) for bankruptcy and self-determination

initiated before the effective date of this Act shall use the existing legal

regulations, and also after 1. January 2008 bankruptcy courts will reject

proposals for the Declaration of bankruptcy borrowers pursuant to section 12a paragraph 1. 4

the Act on bankruptcy and settlement, if the proceedings initiated on the proposal to

December 31, 2007. The right to challenge such a decision citing will be

the Court of appeal assessed pursuant to section 12a paragraph 1. 5 of the law on

even after bankruptcy 1. January 2008.



10. the applicant has therefore decided to take advantage of the procedure under article 5(2). 95 para. 2

The Constitution of the United States, and § 64 para. 3 of Act No. 182/1993 Coll., on the

The Constitutional Court, as amended, and refer the matter to the constitutional

with the proposal that the Court ruled constitutional findings, in paragraph

12A paragraph 1. 5 of the Act No. 328/1991 Coll., on bankruptcy and settlement, shall be deleted;

the first sentence "against the decision rejecting the application for a declaration of bankruptcy of the

only the applicant can appeal, and the appellants, who have agreed to

control ", on a date to be determined in the award.



II.



Representation of the parties



11. 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,

(hereinafter referred to as the "law on the Constitutional Court") the present proposal to express

The Chamber of Deputies and the Senate of the Parliament of the Czech Republic.



12. The Chamber of deputies of the Parliament of the Czech Republic in its observations

She described the course of the legislative process for the adoption of Act No. 328/1991

Coll., on bankruptcy and settlement, and his an amendment made by Act No. 93/1996

SB. and amendment made by Act No 105/2000 Coll. indicated that law No.

328/1991 Coll., on bankruptcy and settlement, was approved by the Federal

the General Assembly on 11 July. July 1991 and the efficiency gained 1 June 2006. October 1991.

The provision of section 12a was incorporated into the law amendment made by Act No.

94/1996 Coll. and section 12a paragraph 1. 5 the amendment made by Act No.

105/2000 Coll. (219). Referred to house print was presented as a

Member of the Dundáčkové group of the proposal and referred the text to the eve of the provisions

has already been included in this proposal (219/0). First reading of the draft law

took place on 30. June 1999 and the proposal was referred for consideration of constitutional

the legal Committee and the Economic Committee. Constitutionally the legal Committee discussed

suggestion of the day 30. September 1999, when the hearing broke, and it

discuss on 25 April. January 2000 (resolution of the Committee-print 219/4) and recommended

The Chamber of Deputies approve the proposal as amended by the comprehensive amendment

the proposal. The provision of section 12a paragraph 1. 5 it was not this comprehensive amendment

compared with the original text of the proposal. The Economic Committee proposal

discuss on 17. January 2000 (resolution of the Committee-print 219/3). The second

reading of the Bill took place on 26 April. January 2000, amendments

have been processed as printing 219/5. The Bill was approved in the third

reading on 28. January 2000, as amended by the comprehensive amendment

constitutionally the legal Committee. The Senate Bill is returned back to the Chamber of Deputies

the House, with its amendments, which were amended by section 12a

paragraph 5. About the design of the Chamber of Deputies voted by the Senate returned the day

April 4, 2000 and agreed with the proposal of the act as adopted by the

Appeal pursuant to the printing house 219/7. The law was signed by the competent

constitutional officials, and declared in the collection of laws under no. 104/2000 Sb.

(32).



13. in its observations the Senate said that the proposal is directed against the provisions,

that was the Act on bankruptcy and settlement inserted by the amendment made by

Law No. 105/2000 Coll., which the Senate has discussed in its second function

the period to 16. meeting on 1 May 2004. March 2000. The Senate Bill, which

the amended Act No. 328/1991 Coll., on bankruptcy and settlement, as amended by

amended, and some other laws, adopted resolution No 302,

that Bill got back the House of representatives with amendments,

that, however, did not cover the provisions concerned. The Senate Bill was

submitted 7. February 2000. He was commanded to hear constitutionally-legal

Committee and the Committee on economy, agriculture and transport. Constitutionally-legal

the Committee discussed the draft law on 23 December 2005. February 2000 and took to it

resolution No. 159 (stated in the press No 181/1), in which he recommended the Senate

return the Bill to the House of representatives with amendments. Also

Committee on economy, agriculture and transport at its meeting held of the day

23 February 2000 concluded recommend Senate return the draft Bill

The Chamber of Deputies with amendments (resolution No 247 stated in

print no. 181/2). Senate Bill discussed on their 16. the second meeting

term of Office. To return the Bill with amendments

voted in the ballot no 143 of 53 senators present, 52 senators and 1

Senator abstained from the vote. The Chamber of Deputies a bill again

discuss on 4 October. April 2000 at its 24. meeting. The Bill, as amended by

amendments adopted by the Senate approved resolution No. 902, when

vote for him in the serial number 32 from 181 present spoke 98

members and 81 votes against. Senate committees or to the plenary

The Senate was not the issue of the first sentence of section 12a paragraph 1. 5 of the Act on bankruptcy and

the settlement discussed. The Senate acted in the belief that the Bill is not

in conflict with the constitutional order, on the contrary, in terms of efficiency of process

his management of the entire paragraph 12a seemed rational.



III.



The conditions for the admissibility of evidence, the design of the active



14. the proposal filed in the High Court in Olomouc in connection with proceedings for

It takes place, and to the cancellation of the proposed provisions of the Bankruptcy Act

and the settlement is one of those that must be taken into account. Nothing

on it does not change the fact that in the intervening period between the filing of the proposal came into

the effectiveness of Act No. 182/2006 Coll., which abolished with effect from 1. January

2008, the Act on bankruptcy and settlement, since according to the provisions of section 432 of the law

No 182/2006 Coll., on bankruptcy and settlement proceedings commenced before

effect of this Act apply the existing legislation.



IV.



The constitutional conformity of the legislative process



15. The Constitutional Court, in accordance with the provisions of § 68 para. 2 of the Act on the constitutional

the Court examined whether the law, as well as its amendment, in respect of which the applicant

argues the unconstitutionality of their provisions were adopted and issued within the limits of

The Constitution of the United States set out competences and constitutionally prescribed

way.



16. From the observations of the Chamber of Deputies and the Senate of the Czech

States, as well as from the relevant Council publications and data on the progress of

the vote, the Constitutional Court found that the contested provision was adopted in

constitutionally Conformal legislative process.



In the.



Your own review



17. The Constitutional Court came to the conclusion that the merits of the application for revocation

the contested provisions of the Act on bankruptcy and settlement is not given, and therefore

rejected the proposal for the reasons that follow:



18. the Constitutional Court in its case-law is based on the principle of minimizing the

the intervention. It concluded that if the existing legislation still

to interpret so that it can be considered compatible with the

the fundamental right to a fair trial enshrined in article. 6 (1). 1

Convention for the protection of human rights and fundamental freedoms, is not given the reason for the

its cancellation [cf. e.g. award of the Constitutional Court dated April 26, 2006

SP. zn. PL. ÚS 38/04 (N 92/41 SbNU 173; 419/2006 Coll.)]. Unlike

the applicant, which in the draft concludes that the wording of the contested

the provisions of the first sentence of section 12a paragraph 1. 5 of the Act on bankruptcy and settlement does not give

no way, constitutionally consistent interpretation by the Constitutional Court on the contrary

to the conclusion that such a possibility offers a purposive interpretation of the contested

the provisions in the context of the whole of the Act on bankruptcy and settlement, and

also, secondarily, of Act No. 99/1963 Coll., the code of civil procedure, as amended by

amended.



19. the operative part of the resolution I regional court in Brno from 16 June. December 2005

No. 37 to 31/98-241 reads as follows: "the application for a declaration of bankruptcy assets

the debtor, INTER BUSINESS CONSULTING, joint-stock company, Doubravice nad

Svitavou, 28. October, 239, corporate ID: 15548431 is rejected for lack of assets

debtor. ". Although it would be from the perspective of grammatical could seem that it is one

the sentence, it is the two statements, the first of which is the rejection of a proposal to


a declaration of bankruptcy, the second statement the determining reason for the rejection of the proposal

for a declaration of bankruptcy, which would separately could be: "Specifies that the

the reason for rejection of the application for a declaration of bankruptcy is the lack of assets

debtor. ".



20. The Constitutional Court overlooked that along the lines of the contemporary case-statements

the two previous resolutions in the matter before a commercial court-led

in Brno, respectively. The regional court in Brno, under SP. zn. 37 to 31/98 of 24 September 1998.

July 2000, respectively, 20. June 2003, were only on the rejection of the application

on the Declaration of bankruptcy of the debtor, without contained opinion on

because of the rejection of the proposal. Up to the third resolution regional court

responded to the opinion of the Supreme Court, SP. zn. RC 52/98 (cf. Collection

judicial decisions and opinions of the Supreme Court, 1998, 7, p. 358),

According to which "If the Court rejects the application for a declaration of bankruptcy by

the provision of section 12a paragraph 1. 3 (now 4) of the Act, expressed as a reason for rejecting

also in the operative part of the resolution. " Komentářová literature then concludes that

"the rejection of the application for bankruptcy due to lack of assets has, in contrast to

from other reasons, important substantive implications "(cf. J. Disc,

The Act on bankruptcy and settlement. Comment. Prague: c. h. Beck, 2002, page.

139).



21. the provisions of section 12a paragraph 1. 5 first sentence of the Act on bankruptcy and settlement

excludes an appeal of the debtor to a resolution on rejection of the application for a declaration of

bankruptcy. This provision, according to the Constitutional Court regarding only

variants of the rejection of the application on the bankruptcy of the debtor's assets without the

because of the rejection of the application, is not devoid of your logic, because it is completely in

accordance with the interpretative practice to which the applicant itself points out that the

"the right to appeal against the decision of the Court of first instance does not have the

the party whose rights have not been by decision of the Court of first instance

prejudice. ". Indeed, the rights of the debtor shall not prejudice simply by

the refusal of an application for a declaration of bankruptcy of the debtor, but only

and exclusively about the reason for rejection of the statement on the Declaration of bankruptcy.



22. the provisions of section 12a paragraph 1. 5 the second sentence of the Act on bankruptcy and settlement

assume that in addition to the "resolution on the rejection of the application for a declaration of

bankruptcy "is the possibility of the type of the decision and the" resolution on the rejection of the proposal on

a declaration of bankruptcy for lack of assets. " On the circuit

potential odvolatelů lists the provisions of section 12a paragraph 1. 5 the second sentence

only the extension of this circuit in favor of the lender, which demonstrate that it has

the claim against the debtor. Narrowing the circle of odvolatelů paying for case

"plain" resolution on rejection of the application for a declaration of bankruptcy of the

case resolution on rejection of the application for a declaration of bankruptcy for

lack of assets does not apply. Next to all the participants in the proceedings may submit a

the appeal and the creditor shall provide evidence that the debtor claim. Is

clearly, therefore, the debtor may reach a substantive examination of the appeal

consideration of the case in the section of the operative part, in the version "for lack of assets."



23. The Constitutional Court finally noted that the debtor was in a resolution

Regional Court in Brno from 16 June. December 2005 No. 37 to 31/98-241 of

options to appeal duly advised. The lessons of the cited decision

the General Court does not contain anything that would indicate that the debtor's

possibility to appeal is excluded.



24. the Constitutional Court is beyond the scope of the above adds that this constitutionally

Conformal interpretation of the contested provisions will be achieved the same objective,

out the way the appellant wanted to accomplish could annul the contested

provision or declaration of its unconstitutionality, IE. venue options

discuss the appeal to part of the operative part sounding "for lack of assets."



25. the Constitutional Court, on the basis of all the above,

the proposal for the consent of the parties to the proceedings without oral proceedings with regulation

referring to the provisions of § 70 para. 2 of the Act on the Constitutional Court rejected.



The President of the Constitutional Court:



JUDr. Rychetský in r.