The Constitutional Court found No. 115 / 2015 Coll.
The Constitutional Court found of 31 March 2015 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
14.05.2015
115
FIND
The Constitutional Court
On behalf of the Republic
On 31 March 2015, the Constitutional Court decided under point Pl.
as follows:
Article LII, point 2, of Act No. 303 / 2013 Coll., amending certain laws in connection with the adoption of the recdification of private law, shall be deleted from the date of the publication of this finding in the Collection of Laws.
Reasons
Recital of the proposal
1. By a proposal of 30 January 2014, registered at the Constitutional Court on 3 February 2014, by the District Court in Karviné (hereinafter referred to as "the Enforcement Court" or "the appellant"), the President of the Chamber of Mgr. Jiří Ordelt, pursuant to the provisions of § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court") and under Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), the Constitutional Court proposed that the Constitutional Court of First Instance should abolish the transitional provision of Article LII (2) of Law No. 303 / 2013 Coll., amending certain laws in connection with the adoption of the rectification of private law.
2. In essence, the appellant's conviction was that there was a breach of the stated transitional provision with the constitutional order as a result of the inadmissible retroactivity which, from 1 January 2014 onwards, allowed - in proceedings initiated before 1 January 2013 - the sole property of the debtor's spouse to be penalised if the obligation arising during the marriage was enforced by only one spouse.
3. The applicant submitted his application during the execution procedure with him under sp. zn. 46 Nc 1689 / 2006 on the property of the debtor, including the property and assets belonging to the joint capital of the spouses, in the context of the decision on the proposal of the spouse to suspend the enforcement order by which the court executor decided to execute the execution by ordering all of his cash claims (even payable in the future), which he holds under the pension agreement.
Derogation of the contested provision
4. The contested transitional provision of Article LII (2) of Act No 303 / 2013 Coll., which amends certain laws in connection with the adoption of the recdification of private law, reads as follows:
'2. Enforcement order issued after the date of entry into force of Act No. 396 / 2012 Coll. in proceedings initiated before the entry into force of Act No. 396 / 2012 Coll. is governed by Act No. 120 / 2001 Coll., as effective after the date of entry into force of Act No. 396 / 2012 Coll. '
5. In other words, an execution order issued after 1 January 2013 in proceedings initiated before that date is governed by Act No. 120 / 2001 Coll., on judicial executors and enforcement activities (execution order) and on the amendment of other laws, as amended after 1 January 2013.
Circumstances of the case
6. The application and requested file of the execution court, sp. nr. 46 Nc 1689 / 2006, gives rise to the following elements.
7. On 21 September 2005, by order No 33 Ro 1373 / 2005-12 of the execution court in the legal case of the applicant of the Czech Insurance Corporation, a.s., based in Prague 1 (hereinafter referred to as "the entitled" or "the applicant") against the defendant Jiří Feber (hereinafter referred to as "the defendant" or "the compulsory"), the court ordered the defendant to pay a claim of CZK 6 196 with an extension of [statement (a)] and to pay the costs of CZK 600 [operative part (b)], or to submit an opposition to that order within 15 days of the date of receipt of the payment order before the court appointed. The payment order became final and enforceable on 17 January 2006. The defendant's amount of CZK 6 196 was the debt incurred by the defendant for the duration of the marriage.
8. On 21. 11. 2006, an application entitled to the execution order against the compulsory for an amount of CZK 6 196 with accessories and costs of the proceedings of CZK 600 was served. The execution title was the above mentioned payment order of the court appointed on 21.9.2005 No 33 Ro 1373 / 2005-12.
9. On 24 November 2006, by order No 46 Nc 1689 / 2006-3, which acquired legal power on 22 February 2007, the Enforcement Court, under the enforceable order of the same court of 21 September 2005, No 33 Ro 1373 / 2005-12, ordered the execution of the property of the debtor to satisfy a cash claim entitled CZK 6 196 with the accessories, the costs of the execution and the costs of the execution. The execution was commissioned by Mgr. David Koncz, the court executor of the Executive Office of Cheb ("the court executor ').
10. On 25.9.2013, the Executive Order No. 1, No. 074 EX 08280 / 06-024, pursuant to § 59 (1) of Act No. 120 / 2001 Coll., on the judicial execution and execution activities (execution order) and on the amendment of other laws, as amended, decided, inter alia, that the execution is to be carried out by ordering all cash claims (due in future) payable to the debtor of the compulsory: AXA Pension Fund, a. s., from 1.1.2013 to AXA Pension Society, a. s., with the registered office of Úzká 8 / 488, 602 Brno, under the legal title: Pension Agreement No 1602029576.
11. On 25 September 2013, by execution order No 2, No 074 EX 08280 / 06-025, the court executor decided, inter alia, that the execution would be carried out by ordering all claims payable in the future by the debtor's wife ING Pension Fund, a. s., based in Nádražní 25 / 344, 150 00 Praha 5, under the legal title of the pension insurance contract No 0070126514.
12. On 27 November 2013, the execution court received submissions from the same day by which the debtor and his wife proposed to suspend the execution order No 1 and No 2 in full. In the preamble, they agreed that (a) the common capital of spouses does not constitute one spouse under Section 143 of Act No. 40 / 1964 Coll., the Civil Code, as amended, (hereinafter referred to as "the Act.") the supplementary pension insurance belonging to the sole ownership of the spouse, (b) the acquisition of the pension insurance does not constitute the acquisition of the share of the other spouse; and (c) the supplementary pension insurance is not used and maintained under Section 145 of the Act.
13. In its observations of 14 January 2014 on the application for suspension of execution, the creditor stated that it insisted on the execution of the execution in a manner which the court executive had chosen to be the most appropriate in the light of the finding on the debtor and his property, unless the debtor had voluntarily paid the amount due.
14. Since the authorised executor was unable to comply with the proposals of the debtor and his wife for the cessation of the execution, he referred them in accordance with § 55 (2) of the Rules of Enforcement (as amended by 31.12.2012) to the decision of the Enforcement Court.
15. 31. 1. 2014 by Resolution No 46 Nc 1689 / 2006-27 Enforcement Court's application was ordered by order of the Enforcement Court of 24.11.2006 No 46 Nc 1689 / 2006-3 to be suspended (operative part I); in relation to the Enforcement Order of the Enforcement Court of 25.9.2013 No 2, No 074 EX 08280 / 06-025, by which he decided to execute the execution order of 24.11.2006 by order of the Enforcement Court of 24.11.2006 No 46 Nc 1689 / 2006-3 by ordering the debtor's wife's claim until the decision of the Constitutional Court on the application of the enforcement court to annul Article LII (2) of Law No 303 / 2013 Coll. postponed the application (operative part II).
Arguments of the appellant
16. The appellant stated that, after the entry into force of the so-called large enforcement amendment, as part of Act No. 396 / 2012 Coll., amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and other related laws, when deciding on similar proposals during 2013, it concluded that, in the execution proceedings initiated by 31 December 2012, the execution procedure carried out on the basis of the execution orders penalising the exclusive property of the spouses mandatory within the meaning of the provisions of Section 268 (1) (h) of Law No 99 / 1963 Coll., as amended by the Civil Code (hereinafter referred to as "CS ') had to be assessed as inadmissible and therefore the execution of that law had to be suspended not only on the application by the party, but also without such a proposal.
17. The same legal conclusions were also reached by the Regional Court in Ostrava, which, for example, already in its decision No 9 Co 431 / 2013-137 of 30 May 2013, expressed the view that the Regional Court in Karviné expressed its legal opinion as a majority in the judicial practice, which was the same decision as the Regional Court in Ostrava also in the subsequent period (see for example Resolution No 10 Co 371 / 2013-79 and No 66 Co 541 / 2013-37, issued on 30 October 2013).
18. The appellant further noted that Act No. 303 / 2013 Coll., which took effect on 1 January 2014, "in the context of the adoption of a recdification of private law ', inter alia, amended the execution order, which in point 2 of the transitional provisions of Article LII provided that the execution order issued after the date of the entry into force of Act No. 396 / 2012 Coll. in proceedings initiated before the entry into force of Law No. 396 / 2012 Coll. is to be governed by the execution order in the version effective after the date of entry into force of Act No. 396 / 2012 Coll.
19. In the view of the appellant, the transitional provision referred to infringes the principle of legal certainty of the obliged and their spouses in the execution proceedings initiated before 31 December 2012, if it is only after the year of the effectiveness of Act No. 396 / 2012 Coll., that the enforcement order issued following the amendment of the Enforcement Order by that Act is to be governed by the execution order in force after the date of entry into force of Act No. 396 / 2012 Coll. According to the appellant, this additional structure could shake trust in the rule of law, in particular in cases where the appointed executor after the entry into force of Act 303 / 2013 Coll. in one and the same case, it has re-ruled on the substance of the very same execution order in a manner which was found inadmissible by the execution court during 2013.
20. The appellant referred to Article 1 (1) of the Constitution, which states that the Czech Republic is a sovereign, united and democratic rule of law based on respect for the rights and freedoms of man and citizen, and that one of its fundamental pillars should be legal certainty. It pointed out that the case law of the Constitutional Court, which had already been established in its findings, had the effect that it was under that perspective that the content of the legislative acts (including implementing provisions) and the application of the legislation had to be assessed until the past or their influence on past legal facts, since their unclear and uncertain structures in their consequences could also lead to a breach of the protected right to a fair trial [see Article 36 (1) of the Charter of Fundamental Rights ("the Charter ') and any undue retroactivity is also contrary to the postulates of a democratic rule of law.
21. From the above, the appellant concluded that the transitional provision contained in point 2 of Article LII of Law 303 / 2013 Coll. has retroactive effect and as such it is contrary to the principles of the democratic rule of law, or the principle of protecting the citizen's trust in law and the principle of prohibiting genuine retroactivity, namely Article 1 of the Constitution. This provision amends the legal consequences that occurred before the date of application of the contested provisions, in addition to the situation in which the legislator complements the transitional provisions already contained in Act No 396 / 2012 Coll. If the legislator actually intended to address this issue with transitional provisions, it could and should have done so already in 2012, at the time when Law 396 / 2012 Coll. was adopted, and it cannot be ignored that since the adoption of this law Law No. 120 / 2001 Coll. was also amended by Act No. 45 / 2013 Coll., only after the year of application of Act No. 396 / 2012 Coll. is thus retroactively interfered with the transitional provisions of this amendment of the Enforcement Order.
22. In other words, the true retroactivity of the transitional provision in question, according to the appellant, is that it allows, from 1 January 2014 onwards, the sole property of one of the spouses to be reachable from 1 January 2013.
23. In addition to the above, it cannot be overlooked that the transitional provision was adopted by the Parliament of the Czech Republic in a legal standard, the reason for which it should have been necessary to respond to the basic provisions of the recdification of civil law, in particular the adoption of Act No. 89 / 2012 Coll., the Civil Code, Act No. 90 / 2012 Coll., on Commercial Companies and Cooperatives (Commercial Corporations Act), and Act No. 91 / 2012 Coll., on Private International Law, which formed the first stage of the recdification of the substantive private law in the Czech Republic.
24. The appellant pointed out that, from the explanatory note of 27 February 2013, signed by the then Prime Minister RNDr. Petr Netime and the Minister of Justice, JUDr. Pavel Blažk, the reason for the adoption of the proposed regulation was the need to respond to the fundamental rules of the recdification of civil law and to complete the entire recdification process, with one of the areas of the amendments being adopted being also changes in the legislation governing the status of professional chambers, i.e., in addition to the Act of the Czech National Council No 358 / 1992 Coll., on notaries and their activities (notarbals), in the version of the later laws, Act No 85 / 1996 Coll.
25. However, in relation to the proposed amendments to the execution order, it follows from the explanatory memorandum (see the content of the part entitled "To Part 44 - Amendment to the execution order ') that the proposed transitional provision only responds to the change in the insurance of the court executor for damage which he is obliged to make under the applicable legislation, to the insurance of liability for damages, with the change of insurance being made within one year from the date of entry into force of the proposal.
26. It is therefore clear from the above that, according to the appellant, the explanatory memorandum to the government proposal did not in any way foresee the adoption of a further transitional provision on the basis of which it is further regulated by law that the execution orders issued after the amendment of the enforcement order were issued by Act No 396 / 2012 Coll. in those proceedings which were initiated before the entry into force of the Act cited, they are also to be governed by the enforcement rules in force after the date of its entry into force.
27. The appellant took the view from these findings that the transitional provision in question had to be introduced into Act No. 303 / 2013 Coll., which amended certain laws in the context of the adoption of the recdification of private law, could, or had to, be obtained only on the basis of an amendment. The bill was distributed to Members on 5 March 2013, and its first reading took place on 19 March 2013 at the 52nd session of Parliament's Chamber of Deputies (5th term), at which it was ordered to discuss committees. The written amendment (which should be included in the minutes of the committee meeting - see section 43 (1) of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended by Act No. 265 / 2011 Coll.) was incorporated into the resolution adopted by the constitutional legal committee and the draft law passed a general debate at the 54th meeting held on 12 June 2013. The final third reading took place at the 57th meeting held on 8 August 2013, when the bill was approved.
28. According to the appellant, the possibility of submitting an amendment does not arise from the Constitution, but only from the Rules of Procedure of the Chamber of Deputies, which, in the provisions of Section 63 of Act No 90 / 1995 Coll., as amended, allows Members to submit (but only in the present case), inter alia, proposals which emit, extend or amend certain parts of the original proposal. The appellant recalls that the Constitutional Court, in its decision of 15 February 2007, sp. zn. However, it also follows that the amendment must relate to the same subject matter, unless this requirement is met, as a result of the fact that state power is applied in a manner which does not allow it to do so (and, more importantly, the Constitution), not only to negotiate a conflict with the principles of respect for democratic principles in the legislative process, but, above all, to conflict with the principles of predictability, clarity and internal inconsistencies of the law, which are undoubtedly among the fundamental preconditions of the rule of law.
29. By comparing the content and purpose of the original government bill submitted in the context of the adoption of the recdification of private law and its wording after the adoption of the amendment, the appellant concluded that the contents and the purposes of the two subjects examined differ substantially in this respect, and it is therefore considered appropriate to state that, in Article LII (2) of Law No 303 / 2013, the amendment submitted appeared to have been withdrawn from the restricted space reserved for amendments.
30. The appellant considers that if the adoption of Article LII (2) of Act No. 303 / 2013 Coll. was not due to the need to "respond to the basic provisions of the recmodification of civil law and to complete the entire recdification process', but taking into account the changes made earlier by Act No. 396 / 2012 Coll. of 19 September 2012, then the amendment thus tabled (for which the label" adhesive 'was incorporated in the Czech environment) exceeded the subject matter defined by the draft law. The appellant points out that the actual intention of the legislator, which led to the contested regulation, not only does it not result from the explanatory memorandum at all, but cannot be ascertained, given the above-mentioned purpose of adopting the whole law.
31. The appellant points out that the law is a legislative act which obliges an unspecified range of entities and regulates situations that will arise in the future. However, in the case of the contested provisions, the situations which occurred in the past and the specific entities concerned.
32. Therefore, the appellant considers that the contested provision of the law is contrary to the principle of division of power, that is to say, contrary to one of the fundamental rules of a democratic rule of law, as defined in Articles 1 (1) and 2 (1) and (3) of the Constitution, where it is established that the people exercise all the powers of state which serve all citizens and may be exercised only in cases, within the limits and in the manner laid down by the law, through the powers of legislative, executive and judicial authorities.
33. In this context, the appellant considers that it is appropriate to emphasise and state that, according to the findings in the ordinary judicial practice, no interpretative problems of the transitional provision contained in Part Two, Article IV (1) of Law No 396 / 2012 Coll. did not occur and therefore the "selective and subsequently accepted amendment transitional provision ', by which the contested regulation is in fact an exces from the point of view of legal theory.
34. The appellant considers that the regulation contained in Article LII (2) of Law 303 / 2013 Coll. is likely to give rise to obvious application difficulties, in particular in the light of an unreasonably different legal regime in the period from 1.1.2013 to 31.12.2013, on the one hand and after 1.1.2014, on the other hand, which would result in an advantage (and thus inequality) of one group of participants compared to others.
35. The applicant recalls that from Article 2 (3) of the Constitution and Article 2 (2) The Charter shows that the State is bound by the rules which it has laid down and that the legislator is obliged to comply with certain legislative rules when adopting laws. In the view of the appellant, Parliament of the Czech Republic exceeded its powers by its procedure when adopting the contested Article LII (2) of Act No. 303 / 2013 Coll. and by providing for its retroactivity (set out in the title of the second Constitution). The application of the contested provision in its consequences (in addition to the infringement already mentioned above in Articles 1 (1) and 2 (1) and (3) of the Constitution) may also lead to a breach of the protected right of the debtor and their spouses to a fair trial under Article 36 (1) of the Charter and to a violation of their property rights under Article 11 of the Charter.
Assessment of admissibility of the proposal
36. The Constitutional Court notes that the application was submitted by an authorised body pursuant to Article 95 (2) of the Constitution and Article 64 (3) of the Constitutional Court Act. The provisions of the law proposed for annulment are related to the appellant's decision-making activities and are to be applied immediately when the matter is resolved. The application thus fulfils the conditions for proceedings before the Constitutional Court for such a case.
37. The Constitutional Court has also considered positively whether it is at all entitled in the present case to examine (and, where appropriate, to abolish) the relevant part of the amendment to the Rules of Procedure, since it considers in its case law that the proposal to abolish the law or its individual provisions cannot in principle be opposed to an amending law. As a rule, such legislation does not have a separate legal existence, which it receives only as part of the legislative amendment. In the present case, however, the contested provision on a provision amending the enforcement order is not a transitional provision added to its amendment by Act 303 / 2013 Coll., which is why the Constitutional Court found that the derogatory proposal was negotiable and could have been reviewed by the contested transitional provision.
Observations of the parties and the intervener
38. The Chamber of Deputies of the Parliament of the Czech Republic, as a party to the proceedings, in the observations signed by its President Jan Hamakk in Parts I to III, summarised the content of the proposal and the argument of the appellant and described the method of adopting Act No. 303 / 2013 Coll. In Part IV, it expressed its view that the legislature acted in the belief that the law adopted was in line with the Constitution and our rule of law, and it is up to the Constitutional Court to assess the constitutionality to abolish the proposed provision.
39. The Senate of the Parliament of the Czech Republic, as a party to the proceedings, took note of the content of the proposal and the appellant's argument in the observations signed by its President Milan Štět and stated that the proposed repeal of this provision constituted a return to the regulation contained in the transitional provisions of Act No. 396 / 2012 Coll., valid and effective until 31 December 2013. The Senate acknowledged that, among other things, the report on Senate Press 173 pointed out that "in many cases, this law has been used as a medium for certain non-renationalisation matters." In Part V of its observations, the Senate stated that it was up to the Constitutional Court to assess the constitutionality of the contested provision.
40. The Ombudsman, as an intervener, stated in Part I of her observations on the application that the contested transitional provision was in fact the result of an attempt to resolve the dispute concerning the interpretation of another transitional provision enshrined in the amendment of the Civil Code - Act No 396 / 2012 Coll., under which "[the proceedings initiated before the date of the entry into force of this Law shall be completed in accordance with the existing legislation," and expressed the view that the possible annulment of the contested provision could restore uncertainty and encourage the disillusionment of all parties to the enforcement proceedings initiated before 1 January 2013.
41. In Part II, the Ombudsman stated that she did not question the moment when the execution proceedings (as a whole) began, nor did she doubt that any execution order of the court executor had the effect of imposing a judgment under the Civil Code. Therefore, each execution procedure consists practically of a quantity of "management 'comparable to the judicial execution of the decision.
42. Furthermore, the Ombudsman pointed to the unjustifiably unequal (worse) position of the beneficiaries who submitted the proposal for an execution regulation before 1 January 2013, as well as the generally unequal (worse) position of the mandatory with regard to the number of positive changes enshrined in the large execution amendment. However, spouses of obliged persons can actually consider the situation by changing the "rules of the game" which they envisaged at the time their spouses put themselves at risk of execution during the execution procedure as a whole.
43. At the end of that part of her statement, the Ombudsman stated that she was inclined to conclude that the execution procedure constituted a set of "judicial procedures'; Therefore, the" procedure 'under the former transitional provision in point 1 of Article II of Part One of Law No 396 / 2012 Coll. does not consider the execution procedure as a whole. It therefore provides for the possibility of a judicial executor to apply the Civil Procedure Code, as amended by a large enforcement amendment, even in the enforcement proceedings initiated before it is effective.
44. In Part III, the Ombudsman acknowledged that it was not common for a transitional clause to be anchored to the amendment until a year after its entry into force. However, it understands this as a solution to the dispute over the interpretation of earlier transitional provisions. He can also imagine that the legislature will doubt the formulation of transitional provisions and then correct the error by laying down a different rule at a later stage.
45. In Part IV, the Ombudsman stated that, for the purposes of her observations, she focused only on the direct impact of the amendment on the form of the disability of the property of the obliged persons and their spouses and thus on the level of satisfaction of the beneficiaries. With simplification, it can be said that the amendment improved the protection of the interests of all participants (both mandatory and legitimate). It removed the existing unjustifiable obstacles to the proper satisfaction of the beneficiaries, changed the long-term criticised rules on certain methods of enforcement of decisions (in particular to the extent of the monetization of the debtor in the housing cooperative) and supplemented new institutes to promote the effective recovery of claims (management of goods and values, electronic auction of movable goods, overheads and others).
46. In Part V of her observations on the constitutional complaint, the Ombudsman concluded that the contested transitional provision of Article LII (2) of Law No 303 / 2013 Coll. was not a provision with inadmissible retroactive effects and therefore does not see the reason for its annulment.
Replication of the applicant
47. In a reply to the Ombudsman's observations, the appellant stated, inter alia, that it persists in its entirety as it considers that it has been submitted for good; debated the various claims and opinions of the Ombudsman and extended his argument in the proposal.
48. According to the appellant, it can be accepted that the contested provision is the result of an attempt to resolve the dispute over the interpretation of the earlier transitional provision already enshrined in Act No 396 / 2012 Coll., but this earlier transitional provision cannot be interpreted as it did in its observations on the Ombudsman's proposal.
49. In relation to the contested Article LII (2) of Law No 303 / 2013 Coll., the appellant added that this statutory provision does not mention that the provisions of the Civil Code concerning the penalty of the spouse's salary and account, as effective from 1 January 2013, should be applied in the enforcement proceedings initiated until 31 December 2012. The provisions of § 262a (3) o. s., which allow the execution of decisions by deductions from the salary or other income of the spouse of the debtor (and, in the light of the provisions of § 52 (1) of the Enforcement Regulation, the execution by that manner), were added by Act No. 396 / 2012 Coll., amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and other related laws, to the Civil Code and not to the Enforcement Order.
50. As the contested transitional provision should be interpreted, neither does the explanatory memorandum to Act No 303 / 2013 Coll., as it is a so-called adhesive to that law and to the recdification of private law appear to be related; In addition, it is atypical if it complements the transitional provisions of the Enforcement Order or the Civil Code, as previously mentioned in Act No 396 / 2012 Coll. Thus, there are two transitional provisions for the execution order, but the more recent one in the earlier transitional provision does not change anything, unless it provides that even in the execution proceedings initiated until 31 December 2012 the provisions of the Civil Code on the penalty of the spouse's salary and account should be applied, i.e. in the version effective from 1 January 2013.
51. The appellant did not agree with the Ombudsman's view on the unjustifiably unequal (worse) status of the beneficiaries who submitted the application for an execution regulation before 1 January 2013, and the generally unequal (worse) position of the mandatory "having regard to the number of positive changes laid down by the large execution amendment" if both the authorisation but, above all, the mandatory could reasonably and only expect the execution procedure to be carried out in accordance with the procedural rules in force and effective at the time of the start of the execution procedure. The appellant is convinced that, in view of the demand for legal certainty for citizens, it cannot be allowed that the pending execution should be carried out in a way that did not allow for legislation at the time the execution proceedings were initiated. For the same reasons, it is not in principle consistent with the legal opinion of the court executors who justify the issue of execution orders affecting the wages of spouses by reference to the provisions of Paragraph 47 (2) of the Rules of Enforcement.
52. The appellant further stated that, according to the findings in the ordinary judicial practice, no interpretative problems of the transitional provision contained in Part Two, Article IV (1) of Law No 396 / 2012 Coll. did not occur and therefore "selective and subsequently adopted amendment transitional provision 'constitutes, from the point of view of the legal theory of excesses. The transitional provision in Article LII (2) infringes the principle of legal certainty for obliged persons and their spouses in enforcement proceedings initiated before 31 December 2012, if, only after the year of application of Act No 396 / 2012 Coll., the enforcement order issued on the basis of the amendment of the Enforcement Order by that Act is to be governed by the enforcement order in force after the date of entry into force of Law No 396 / 2012 Coll.
53. In relation to the Ombudsman's argument that the authorisation may propose to suspend the execution and to initiate a new execution procedure in which the spouse's salary and account may already be affected, the appellant stated that, in such a case, the authorisation would no longer be entitled to reimbursement of the costs in the new procedure, since it would clearly not be possible to have costs that have been incurred effectively.
54. In conclusion, the appellant's reply to the Ombudsman's observations, in general, stated that the proposal was also addressed at a certain stage of social development of a very negative nature and, in its substance, the foundations of the rule of law threatening tendencies, showing that the legislator had accepted the purposeful amendments to the legislation advocated by interest groups (for example, the issue of arbitration, the amendment of the execution order, etc.), clearly going against the existing ("inconvenient") case-law of the courts, which also saw the wider public very sensitively. The fact that it is not a purely subjective feeling or an impression arises, for example, from the absence of a clearly and clearly formulated will of the legislator in the explanatory report, which is intended to guide the occurrence of application difficulties.
Abandonment of oral proceedings
55. The Constitutional Court did not expect further clarification of the case from the oral hearing, which is why it waived the first sentence of the Law on the Constitutional Court under § 44.
Assessment of the constitutional conformity of the legislative process
56. In the procedure for the control of standards, the Constitutional Court pursuant to the provisions of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., also ascertains whether the contested law was adopted and issued within the limits of the Constitution established competence and by the constitutional procedure.
57. The observations of the parties to the proceedings and of the House of Prints publicly available at http: / / www.psp.cz show that the Government submitted to the Chamber of Deputies on 5 March 2013 a draft law amending certain laws in connection with the adoption of the redification of private law; on the same day, the proposal was circulated to Members as Press 930 / 0.
58. Part of the government proposal was not to abolish the proposed transitional provision. This appeared only as an amendment in the resolution of the constitutionally legal committee delivered to Members as press 930 / 2 (amendments). At second reading, the amendments were drafted as press 930 / 3, which was circulated to Members on 13 June 2013. At its third reading on 8 August 2013 at the 57th meeting, the draft law was passed by the Chamber of Deputies No 1746, with 67 Members and 43 against the 128 Members present in favour of its adoption. The Senate of the Parliament of the Czech Republic approved the draft law as referred to by the Chamber of Deputies by Resolution No 330 of the 13th meeting of 12 September 2013. The President of the Republic signed the Act on 17 September 2013. The Act was published on 30 September 2013 in the Collection of Laws in the amount of 116 under number 303 / 2013 Coll. and became effective on 1 January 2014.
59. The Constitutional Court had no doubt about the competence of the Parliament of the Czech Republic and therefore went to review the procedure for adopting the contested provision.
60. In its proposal, the appellant questioned the way in which the contested transitional provision was adopted and argued that it was a "sticker 'adopted by a constitutionally unacceptable procedure.
61. Paragraph 68 (2) of the Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., requires, in proceedings for the annulment of laws, to examine not only the content of the Act in terms of its compliance with constitutional laws, and whether it was adopted and issued within the limits of the constitutional competence provided for, but also to examine whether it was adopted and issued in a constitutional manner. The logical interpretation of the provision requires first examination of the competence, then the procedure and finally the content of the contested provision [cf. the finding of the Constitutional Court of 15 February 2007 sp. zn. In so doing, the provision cited does not distinguish between the various bodies actively authorised to submit a proposal, which seems to imply that the survey is a regular part of any action to abolish a law or other legislation.
62. As an undesirable phenomenon, which is not consistent with the meaning and principles of the legislative process, the Constitutional Court has identified a situation in which one law is amended by laws which are directly unrelated to each other, for example in order to speed up the legislative procedure, and often in the form of amendments tabled. Such a procedure does not comply with the fundamental principles of the rule of law, which include the principle of the predictability of the law, its clarity and the principle of internal inconsistencies. In fact, if one law (in the formal sense) is interfered with the material governed by several other laws, and these laws are not connected in substance and in a systematic manner, there is often a very unclear legal situation that no longer respects the principle of predictability, clarity and internal inconsistencies of the law. The requirement of predictability of the law, as part of the principle of the rule of law, ceases to be fulfilled when the amendment of the law is part of another law in a formal sense, the content of which is not related to the amended law, as the Constitutional Court stated in the judgment of 15 February 2007 in the sp. zn.
63.In points 50 et seq. of the quoted finding sp. zn. Pl. ÚS 77 / 06 The Constitutional Court has distinguished the "departure" from a restricted area reserved for an amendment (which should indeed only amend the legislation presented, i.e. should not change it substantially, or extend it substantially, and, more or less, should be outside the subject of a legislative initiative, or a draft law), which is considered undesirable, but not unconstitutional, on the one hand, since the technical amendment to the draft law adds an amendment to a completely different law, with a non-related legislative proposal. In the latter case, the term "appendices', which is the subject of the" close relationship test ', was used in the Czech environment, which is assessed whether or not the technique of the amendment to the draft law attached an amendment to a completely different law, with a non-related legislative proposal (point 51 of the cited finding).
64. In paragraph 66 of the same finding, the Constitutional Court stated that, when assessing the constitutionality of the legislative procedure for the adoption of the contested provisions of the law, it is crucial to assess whether the amendment in question was actually material in its sense, i.e. whether the amendment in question was excluded from the restricted scope reserved for amendments, i.e. whether it was an inadmissible extension in interpreting what the amendment is, while respecting the so-called "narrow relationship 'rule.
65. In the negative finding of 31.1.2008 sp. zn. However, it also concluded that "if the maximum content consistency of the law is to be considered as a mere carrier of the various changes made across the rule of law ', which is stated in the opinion of Mr Pl. ÚS 77 / 06, according to which, in the formal sense, the law cannot be understood as a mere carrier of the various changes made across the rule of law', in the sense of the derogatory reason, only for extreme situations. 'In this regard, the Constitutional Court therefore concluded that" the case of such a departure from the scope of the original draft law in the case at hand is not possible', and that "[p] the amendment did not go beyond the scope of the original draft law, which was to amend the Income Tax Act. '
66. As stated above, the contested transitional provision became part of Act No 303 / 2013 Coll. not as part of a government proposal, but as an accepted amendment to the Constitutional Legal Committee of the Chamber of Deputies to a government bill amending certain laws in connection with the adoption of the recdification of private law.
67. As regards the "close relationship test 'of the amendment in question to the Government's draft law, the Constitutional Court considers that, although the amendment can be described as a" stay' from the restricted area reserved for amendments, since it is missing with the government pursued the purpose of the transitional provision, but the transitional provision cannot be described as an unconstitutional "encroachment 'with the requirement of a close relationship to the amended legislation, since the government proposal, like the amendment, concerned the same law, i.e. the executive order, and the requirement of a" close relationship' of legislative proposals and amendment was clearly fulfilled in the present case. In other words, the substantive link between the amendment and the legislative proposals has been made here.
68. For those reasons, the Constitutional Court does not share the appellant's belief that the transitional provision in question is a constitutionally inadmissible "adhesive ', which would therefore have to be deleted.
Inadmissible retroactivity
69. In a substantial part of its proposal, the appellant argued that a transitional provision with a constitutional order was inconsistent as a result of an inadmissible genuine retroactivity, which, from 1 January 2014 onwards, allows - in the execution proceedings initiated before 1 January 2013 - a penalty for the husband's still untouchable exclusive property if the obligation arising during the marriage is enforced by only one spouse. This objection is substantiated.
70. The Constitutional Court dealt with the constitutional legal context of the genuine and incorrect retroactivity of the legislature of the legislature of the laws adopted in a number of its decisions, which was also stated in the finding of 12.11.2013 in the Pl. ÚS 22 / 13, paragraph 22 et seq. (22 / 2014 Coll.), and the finding of 19.4.2011 sp. zn. Pl. ÚS 53 / 10, paragraph 144 et seq. (N 75 / 61 SbNU 137; 119 / 2011 Coll.), in which it referred mainly to the finding of 4.2. 1997 sp. Pl. ÚS 21 / 96 (N 13 / 7 SbNU 87; 63 / 1997 Coll.).
71. Legal theory recognises retroactivity from the right and wrong. It is about genuine retroactivity if the new legislation is to govern the establishment of a legal relationship and the rights of participants in that relationship also where the legal relationship or claims arising therefrom arose before the new legislation is effective.
72. Incorrect retroactivity means that, although legal relationships arising before its effectiveness are to be governed by the new legislation, but only from the date of its effectiveness; The very creation of such legal relations and the claims arising from such relations before the new legislation is effective shall be governed by the existing legislation.
73. The Constitutional Court referred to the definitions of the legal doctrine contained in Tilsch, E. Civil law in the above mentioned findings in defining genuine and false retroactivity. General section. Prague, 1925, p. 75-78, according to which "The true retroactive effect of the new law is only there when it works for the past period... Incorrect feedback... is here when a new law dictates that it should also be used in the old legal conditions already established, but only since the new law began or even later." The Constitutional Court also referred to the article Silent, L. On the temporal scope of the amendment to the Civil Code, published in the journal Lawyer No 12, 1984, p. 1104, and stressed that the true retroactivity then "involves essentially two distinct situations', namely" the condition that the new legislation created relations before its entry into force under the conditions which it had only set out subsequently, 'and, secondly, "the amendment may change the legal relations arising under the old legislation, even before the new law.' Therefore, for genuine retroactivity, lex posterior abolishes (does not recognise) the legal effects existing at the time of the Legis priority effectiveness, possibly inducing or combining the rights and obligations of entities with facts that were not legal in nature at the time of the Legis priority effectiveness. In the case of retroactive improper" new law does not create legal consequences for the past, but either elevates past facts as a condition for future legal consequences (simple exclusivity) or modifies legal consequences for the future according to earlier laws based... The incorrect retroactivity of the law merely means that the new law captures (legally qualified) past facts or that it touches (modifies, cancels) existing legal consequences, i.e. the fact that the founder of the law attaches to the future other rights and obligations than the existing legislation. This is therefore an intervention of the new law, both in previous facts and in so-called rights acquired. '(Walk, A. Retroactivity laws. In: Dictionary of public law. St. III, Brno, 1934, p. 800).
74. It is also clear from the above findings that the Constitutional Court generally considers genuine retroactivity to be unconstitutional, with limited exceptions, and generally admits false retroactivity, even with limited exceptions.
75. In proceedings for the annulment of the law for its constitutionally inadmissible genuine retroactivity (in civil matters mainly for interference with legal certainty or acquired rights) In particular, the Constitutional Court examines whether the compliance of the provisions of the law with the constitutional order can be ensured by its constitutionally conformal interpretation and when this cannot be done and should therefore be abolished. The Court of First Instance is absolutely not bound by the verbatim wording of the legal provision, but may and must derogate from it where, for serious reasons, the purpose of the law, the history of its formation, the systematic link or any of the principles underlying it in a constitutionally consistent legal order as a significant whole (cf.
76. In the present case, the Constitutional Court, in agreement with the appellant, concluded that the transitional provision was not constitutionally conformable, taking into account in particular the fact that there is already a transitional provision in Article IV (1) of Act No 396 / 2012 Coll.
77. The contested transitional provision gives rise to retroactive effects that can be described as the effects of genuine retroactivity, in relation to the execution proceedings initiated until 31.12.2012, since (from 1.1.2014) they are subject to the enforcement order's legislation effective only from 1.1.2013, despite the explicit wording of the transitional provisions to Act No. 396 / 2012 Coll., according to which the proceedings initiated before 1.1.2013 will be completed under the existing legislation (Article IV (1) of Act No. 396 / 2012 Coll.).
78. In addition to the provisions of Section 262a (3), which took place with effect from 1 January 2013 by Act No 396 / 2012 Coll. (see Article I (14)), it was possible to penalise both the execution and the property of the debtor's spouse, who had not yet been able to do so, because it was interpreted as "not yet" by the common wealth of the spouses, for example, typically his spouse's salary, as well as his "account," or, as in the present case, the cash claim of the spouse under the pension insurance contract.
79. However, the transitional provision of Law No 396 / 2012 Coll. in Article II (1) stated: "Proceedings initiated before the date of entry into force of the Act shall be completed in accordance with existing legislation." This means that the new version of § 262a (3) o. s.) could not be used in the enforcement proceedings of a judgment where the application for enforcement procedure had reached the court before 1 January 2013 (as this is the case).
80. The new version of § 262a (3) o. s., through the general subsidiarity of the Code of Civil Procedure, had to be applied also in the rules governing the Rules of Enforcement, in particular in the light of its general provisions § 52 (1) and the provisions specific to the various procedures for execution in § 58 et seq.
81. Act No 396 / 2012 Coll. also amended the Enforcement Order and pursuant to the transitional provision in Article VI (1) "Proceedings initiated before the date of entry into force of this Act shall be completed in accordance with existing legislation..."
82. According to the provisions of § 35 (2) of the Rules of Enforcement (now even before the Act No. 396 / 2012 Coll.), the execution procedure is started on the date on which the execution proposal reached the executor.
83. If the execution proposal had reached the executor before the application of Act No. 396 / 2012 Coll. (i.e. before 1 January 2013), then both the Civil Code and the Enforcement Order had to be applied for this execution procedure in the version effective until 31 December 2013 and therefore the "new 'instrumentarium according to § 262a (3) (c) could not be used. In other words, an execution order could not be issued that would affect the other property rights of the debtor's husband, as has happened in the case at hand. In the case at hand, the court would have had to stop execution under the execution order of 25 September 2013 (paragraph 11) in accordance with § 268 (1) (h) o. s. o., if it had, however, reached it in time, i.e. by 31 December 2013, which it probably failed to do.
84. After 31 December 2013, the situation became complicated by the wording of the contested transitional provision of Article LII (2) in Act No 303 / 2013 Coll. If, until 31 December 2013, the execution court could have stopped execution, it could no longer have done so from 1 January 2014, since it intervened in Article LII (2), which was the execution order against the spouse of the debtor under 262a (2) a. s., declared retroactively - legal. This is the essence of the genuine retroactivity of the contested Article LII point 2 of Act No. 303 / 2013 Coll.
85. Since 1 January 2014, following the amendment of Act No. 293 / 2013 Coll. (see Article I (187) amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and certain other laws, the third paragraph of the provision of § 262a o. s.
Intervention into the fundamental right to the protection of property pursuant to Article 11 of the Charter or the peaceful use of property within the meaning of Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms
86. The real retroactivity of the contested transitional provision, which allows the application of the provisions of Article 262a (2) (a) of the Act of Accession to the effect that the property of the debtor's husband is not yet in any way susceptible, potentially constitutes an unconstitutional interference in the fundamental right of the spouse to protect his property pursuant to Article 11 of the Charter or the peaceful use of property within the meaning of Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms.
87. On this question, the Supreme Court, in its resolution of 18.4.2006 in Case 20 Cdo 2892 / 2005, stated: "The conclusion of the Court of Appeal that, for a claim against the compulsory nature of a claim, it is not possible to carry out a deduction from the salary of its spouse, is in line with the established judicial practice based on the fact that the wage is paid for the work performed by the employee and is paid to him (§ 111 (1) and § 120 (1) of the First Labour Code, § 4 (1) of Act No. 1 / 1992 Coll., on wages, remuneration for the duty and on average earnings). The right to pay must - in order to be affected by the execution - lie with the debtor against whom the enforcement title is directed. The share capital of the spouses shall be limited to the wage paid and taken over; However, the method of execution by wage cuts excludes such payment and take-over of the salary by employees (cf. Order of the Regional Court in Hradec Králové of 24.11.2003 sp. zn. 17 Co. 46 / 2003 or order of the Supreme Court of 29.6.2005 sp. v. 20 Cdo. 1642 / 2004, published in Judicial case-law No 9, 2005, under No 148).
In accordance with established judicial practice, it is also concluded that a claim against the debtor cannot be enforceable by ordering a claim from her husband's account. Given that this method of execution relates to a claim by the account holder under an account contract against a money institution, it is entirely irrelevant whose funds were deposited into the account; Only the fact that the account holder is the one that matters is that it is the only one who has a claim from the money institution that can be affected by the execution. A claim from an account held by one of the spouses is not part of a joint asset; it may include only funds from an account already collected (cf. Resolution of the Supreme Court of 14.4.2000 sp. zn. 21 Cdo. 1774 / 99, published in the Collection of Judgments and Opinions No 1, 2001, under No 4, or judgment of the Supreme Court of 14.3.2002 sp. v. 20 Cdo. 681 / 2001, published in the Collection of Judgments and Opinions No 10, 2002, under No 75). This is true even if the claim from the account has been (wrongly) affected by another cash claim. '
88. In view of the standard case-law of the General Court, the spouse of the debtor at the time of the initiation of the enforcement proceedings could reasonably have expected that, in accordance with the settled case-law of the General Court, her claim against the Pension Fund could not be the subject of execution in the form of an order of claims against her debtor under the supplementary pension agreement.
89. A retroactive change in the applicable methods of execution and the scope of the enforceable property of the husband of the debtor, as a result, may result in the exclusion of the statutory exclusion from the common assets of the spouses pursuant to § 143 (1) (a) of the Civil Code (Act No. 40 / 1964 Coll., Civil Code, as amended) or § 711 of the new Civil Code (Act No. 89 / 2012 Coll., Civil Code), which potentially constitutes an intervention into the constitutionally guaranteed fundamental right of the spouse required to own and use property in accordance with Article 11 of the Charter, or Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms, as the Constitutional Court of the Constitutional Court of the Constitutional Tribunal of 2 / 11 / 2010.
90. The Constitutional Court concludes that the transitional provision contained in Article LII (2) of Law No 303 / 2013 Coll. is contrary to the principle of the prohibition of genuine retroactivity resulting from the principle of democratic rule of law contained in Article 1 (1) of the Constitution. He therefore complied with the proposal and the contested provision under Paragraph 70 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., annulled the date of the declaration of the finding in the Collection of Laws.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 115 / 2015 Coll., on the application for annulment of Article LII (2) of Act No. 303 / 2013 Coll., amending certain laws in connection with the adoption of the recdification of private law |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 14.05.2015 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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