The Constitutional Court found no 163 / 2009 Coll.

I. Paragraph 394 in paragraph 2 of the part of the sentence behind the semicolon of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), which reads: "; appeal against it is not admissible ', is deleted from the date of the publication of this finding in the Collection of Laws.

II. The proposal to abolish the provision of § 93 (2) of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law) is rejected.

1. By a proposal submitted pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Supreme Court in Olomouc (hereinafter referred to as "the appellant") sought the issue of a finding which annulled the provisions of Paragraph 394 in paragraph 2 of the sentence behind the semicolon of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law). The contested provision does not allow an appeal against the order by which the insolvency court takes note of the withdrawal of the debtor's application for debt relief and, in the view of the Supreme Court in Olomouc, thus prevents the debtor from seeking the protection of his rights in court under Articles 36 (1) and 38 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '). The Supreme Court in Olomouc further adds that the procedural arrangements which determine the outcome of the appeal proceedings in the substance of the case are contrary to the rule of law within the meaning of Article 1 (1) of the Constitution.

2. It follows from the application that the Supreme Court in Olomouc has initiated insolvency proceedings initiated by the application of the debtor Z.S. Regional Court in Ostrava by order of 14 August 2008 No. KSOS 8 INS 3110 / 2008-A-5 and authorised the resolution of the insolvency by debt relief and at the same time ordered review proceedings at 10.30 a.m. and called a meeting of creditors after its conclusion. At a meeting to which the debtor was duly summoned, he did not appear without an apology. The Court of First Instance therefore ruled, in accordance with Paragraph 399 (2) of the judgment in fine followed by the mediator of the insolvency law, by order of 30 September 2008 No KSOS 8 INS 3110 / 2008-B8, which, in accordance with the provisions of Paragraph 399 (2) of the judgment in fine, applied the legal fiction of the debtor's withdrawal of the debt authorisation and decided to declare bankruptcy on his property, with the bankruptcy being dealt with as a minor (§ 314 et seq.). On 1 October 2008 a communication was received to the General Court by which the debtor apologized from the meeting of creditors due to incapacity for work and supported his incapacity for work by a certificate dated 30 September 2008. Against the order of 30 September 2008 No KSOS 8 INS 3110 / 2008-B8, by which the General Court took note of the withdrawal of the debtor's application to authorise debt relief and decided to declare bankruptcy of his property, with the bankruptcy being dealt with as minor, the debtor lodged an early appeal in which he argued that he had not participated in the proceedings due to an urgent deterioration of the health situation, and supported the alleged fact. In the appeal proceedings, the Supreme Court of Olomouc requests the annulment of the contested order of the Court of First Instance.

3. In its proposal, the Supreme Court in Olomouc also states that the debtor would not be in a better position even if he apologized in time and the court found no justification. Thus, the fiction of the withdrawal of the application would occur not as a consequence of the debtor's inaction, but on the basis of the Court of First Instance's assessment, and against such a decision of the court, which the court has assessed the procedural situation other than the debtor, the debtor does not have a proper remedy, even though it has not only procedural but substantive existential consequences for the debtor. Although the debtor bears witness to the right to appeal against the decision of the insolvency court which decided to settle the debtor's bankruptcy by bankruptcy; Whereas an appeal is not admissible against the judgment of the First Court, which takes note of the withdrawal of the application for debt relief, the court must reject the appeal of the debtor in the part in which it is directed against that judgment without considering the justification of the reasons which prevented the debtor from attending the creditors' meeting. As a result of the refusal of the appeal, the operative part of I, which the Court of First Instance took note of the withdrawal of the application for debt, will remain unaffected and the appeal court has no choice but to confirm the decision of the Court of First Instance in judgment II on the resolution of the debtor's insolvency, since the decision of the Court of First Instance is in full compliance with the provisions of Paragraph 396 (1) of the Insolvency Act. The debtor is thus deprived of the right to deal with his insolvency by the debt granted to him by the previous court decision. The outcome of the appeal procedure is thus determined in advance by the relationship between § 394 (2), § 396 (1) and § 399 (2) of the insolvency law, so that the declaration of bankruptcy on the debtor's assets must be confirmed. The appeal procedure thus becomes an empty formal ceremony.

4. In the hearing of the appeal, the Supreme Court of Olomouc concluded that the provisions of Paragraph 394 (2) of the Insolvency Act in the part in which it does not allow an appeal against a resolution which the Insolvency Court takes note of the withdrawal of the debtor's application for debt relief is contrary to the above provisions of the Charter and therefore submitted a motion for its annulment to the Constitutional Court. The contested provision prevents the debtor from seeking the protection of his rights in court in the light of Articles 36 (1) and 38 (2) of the Charter, since the procedural arrangements which determine the outcome of the appeal proceedings in the substance of the case are contrary to the rule of law within the meaning of Article 1 (1) of the Constitution. The anti-constitutional consequences resulting from such an adjustment to the right of appeal can only be avoided by deleting the provisions of Paragraph 394 (2) of the sentence behind the semicolon of the insolvency law, since the clear wording of the legal standard is in accordance with Article 95 (1) The Constitution of the Court of Appeal is bound by it, as this text does not give the Court of Appeal any possibility of a constitutional interpretation. The right to challenge the decision of the first instance court by appeal is a right of procedure which is given or excluded by procedural rules, but a decision of the insolvency court, which has taken note of the withdrawal of the debtor's application for the authorisation of debt in accordance with the provisions of Paragraph 394 (2) of the Insolvency Act, cannot be regarded as merely a decision to conduct proceedings which the court would not be bound by. First of all, it expresses the consequences of Paragraph 399 (2) of the Insolvency Act and declares the legal fiction resulting either from the debtor's inactivity or even the court's assessment. The entire legal structure then connects to this decision by the insolvency court another irreversible decision on the substance of the matter, which has material legal consequences for both the debtor and the creditor, where the debtor is subject to existential consequences.

5. In the second part of the proposal submitted pursuant to Article 95 (2) of the Constitution and Article 64 (3) of the Law on the Constitutional Court, the Supreme Court in Olomouc seeks the issue of the finding that the provisions of Section 93 (2) of Act No. 182 / 2006 Coll., on the bankruptcy and the methods of its resolution (insolvency law) are repealed. The contested provision requires the Court of Appeal to decide on an appeal against the way in which bankruptcy is dealt with not later than two months after it has been brought before the Court of First Instance. The time limit may not be observed when submitting an application to the Constitutional Court. The Court of Appeal is aware that the term of order and the protection of constitutional order takes precedence over its observance, but the Supreme Court of Olomouc considers that the simple right should not create formal obstacles to the establishment of procedural time limits, the observance of which would prevent the protection of constitutional order, and therefore proposes that the Constitutional Court annul the provisions of Paragraph 93 (2) of the Insolvency Act, as its abolition will not affect the speed of appeal proceedings in insolvency proceedings, since it is ensured by the provisions of Section 92 of the Insolvency Act, which would remain unaffected.

6. Furthermore, the appellant contends that the Constitutional Court, in view of the arguments set out in point 5 and the fact that the suspension of insolvency proceedings is not possible under Paragraph 84 (1) of the Insolvency Act, and furthermore that, notwithstanding the removal of the debtor, the consequences of the bankruptcy declaration have already occurred by publication of the decision on the bankruptcy declaration in the insolvency register, it will consider the proposal as urgent within the meaning of Article 39 of the Law on the Constitutional Court.

7. On the invitation of the Constitutional Court pursuant to Section 69 of the Law on the Constitutional Court, the Chamber of Deputies of the Parliament of the Czech Republic submitted observations via its President Ing. Miloslav Vlčka. The Senate of the Parliament of the Czech Republic did likewise through its President MUDr.

8. In its observations, the Chamber of Deputies summarises the course of the negotiation of the contested provisions.

9. The Senate shall express its views in particular on the negotiation of the contested provisions. It further states that no discussion has been held on the contested provisions. In the context of the deleveraging institute, the debate was conducted only in the context of the possibility of deleveraging a non-entrepreneur legal person. Thus, there were no views in the upper chamber of Parliament which could be supported or refuted by the appellant's assertion of the inconstitutionality of Article 394 (2) in the part of the sentence behind the semicolon and Article 93 (2) of the Insolvency Act.

10. The parties to the proceedings expressly - or within the prescribed time limit - gave their consent to the termination of the oral hearing and the Constitutional Court waived that hearing, given that further clarification could not be expected of the case.

11. The contested provision of the insolvency law reads:

[...]

(2) The insolvency court shall take note of the withdrawal of the application for the waiver by a decision to be served on the person making the application, the debtor, the insolvency administrator and the creditor committee; the appeal against him is not admissible.

[...]

[...]

(2) The appeal against a decision referred to in paragraph 1 shall be heard by the Court of Appeal and shall be decided on no later than 2 months after it has been brought before the Court of First Instance; Paragraph 92 is not affected.

12. The applicant imports the active legitimacy to submit the proposal under consideration from Article 95 (2) of the Constitution. If a court pursuant to this provision concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court. The law of the Court is laid down in Paragraph 64 (3) of the Law on the Constitutional Court as the right to file an application for annulment of the law or its individual provisions. This means that the Court's active legitimacy to file a motion for annulment of the law or individual provisions of the law depends on the subject matter of the dispute and its legal qualifications. In other words, the court may apply for annulment only of such a law, or of its individual provisions, to be applied in the dispute pending before the General Court. The consideration of such an application must be justified, must be derived from the fulfilment of the conditions of the procedure, including the substantive legitimacy of the participants and, if it is a substantive provision, from the unambiguous finding that such a regulation is to be applied [see sp. zn.

13. It follows from the foregoing that the contested provision is decisive for the success of one of the parties in the proceedings before the appellant. The appellant thus fulfils, at the previous point, the defined conditions of active legitimacy for the application to the Constitutional Court.

14. According to Article 68 (2) of the Law on the Constitutional Court, the Constitutional Court is to determine, in addition to assessing the compliance of the contested law with the constitutional laws, whether it has been adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure.

15. In the light of the principles of the process economy, it is not necessary to examine this issue further, and it is sufficient, in addition to taking into account the observations submitted by the Chamber of Deputies and the Senate (see paragraphs 8 and 9 above), to formally verify the progress of the legislative process from a publicly available source of information at http: / / www.psp.cz.

16. The Constitutional Court found out from it that the draft law, which was subsequently published under No. 182 / 2006 Coll. (House Press 1120 / 2 of the Chamber of Deputies 2002- 2006, 4th Election) was discussed by the Chamber of Deputies of Parliament as a copy of 1120 at first reading on 26 October 2005 and was ordered to discuss it at its meeting on 1 December 2005 and on 20 January 2006, and recommended it to be approved as a comprehensive amendment contained in the resolution of Committee No. 235 (Press 1120 / 1). This comprehensive amendment has also amended the new and contested provisions of Paragraph 394 (2). The second reading of the draft law took place on 27 January 2006, the amendments made at second reading were processed as print 1120 / 2. The bill was approved by the necessary majority of Members present at third reading on 8 February 2006, as amended by comprehensive amendments. The bill was passed on to the Senate on 28 February 2006 and was ordered by the Senate Organizing Committee as Press No. 288 (5th term of office) to discuss it to the Constitutional Committee. This committee discussed the draft law on 15 March 2006 and adopted Resolution No 93 (Senate Document No 228 / 1), in which it recommended that the Senate approve the draft law in the version referred to by the Chamber of Deputies. The Senate Plenum discussed the bill at its 10th meeting on 30 March 2006, when in vote No 199 on the bill by resolution No 416, the bill was approved in the version referred to by the Chamber of Deputies. 49 senators out of 54 were voted in favour, 5 senators abstained and no one was against it. The law was delivered to the President for signature on 7 April 2006 and signed on 14 April 2006. The approved Act was delivered to the Prime Minister for signature on 27 April 2006 and was published in the Collection of Laws on 9 May 2006 in an amount of 62 under the number 182 / 2006 Coll.

17. The Constitutional Court notes that Law No 182 / 2006 Coll. has been adopted and issued within the limits of the Constitution established competence and in the constitutionally prescribed manner, or that it has found nothing in the present proceedings to suggest otherwise.

18. The Constitutional Court first dealt with the compliance of Paragraph 394 (2) of the sentence behind the semicolon of the Insolvency Act with the provision of Article 36 (1) of the Charter, according to which anyone may seek the procedure laid down in his or her right to an independent and impartial court and, in specified cases, with another body, and with Article 38 (2) of the Charter, under which everyone has the right to have his or her case dealt with publicly, without undue delay and in his or her presence and to be able to comment on all the evidence carried out. The public may be excluded only in cases provided for by law.

19. In its previous case-law, the Constitutional Court has made it clear that everyone has: The Charter of the right to seek the protection of its rights in a court or other body, with the conditions and rules governing the exercise of that right laid down by law, such a law, issued on the basis of a constitutional mandate, cannot deny anyone's right to seek the protection of their rights in a court or other body in which the situation is completely negligent and thus a constitutionally guaranteed fundamental right, even in certain cases. Article 36 (1) Each Charter is constitutionally guaranteed the possibility of seeking protection of its right in a court or other body in all situations of infringement (there is no constitutional restriction). In other words, no person can be completely excluded by law from the possibility of seeking protection of his right, even if only in a specific case, since his right under Article 36 (1) of the Charter would be annulled. The opposite interpretation would also indicate that the laying of everyone's rights to appeal to judicial and other bodies of protection for the protection of their rights conferred by the Constitution - given by the highest legal power - would in fact make sense, since the situation could be annulled by the will of the legislator only [finding sp. zn.

20. The civil process is based, inter alia, on two basic principles - the disposing and negotiating principles. The close relationship between private law of substantive and public civil law is best expressed by the principle of disposition. The purpose and purpose of civil procedural law is to provide protection for subjective private rights, i.e. public civil procedural law serves a substantive private law, and if it fails to fulfil its task, it loses its meaning. The functional links between private substantive law, which is based on the autonomy of the parties to private legal relations, and public civil law of procedure, are reflected in the area of procedural law primarily through the disposition principle which controls the civil process. The Disposition Principle represents a specific projection of the private-law autonomy of the will in the civil process. The parties must freely, in accordance with the principle of disposition, treat both the proceedings and the subject matter. The procedural rights derived from the principle of disposition shall be reserved exclusively to the rightholders in the form of disposition procedural acts; It follows from the nature of these available procedural acts that they cannot be the content of legal fiction, i.e. it cannot be established that someone has withdrawn the proposal, although they have not. The legal structure of the fiction of debt relief is contrary to the nature of the civil process, which applies not only to the civil litigation process, but to any kind of civil procedure, i.e. also to insolvency proceedings. Dispository legal action cannot be the content of legal fiction without violating the principle of disposition on the basis of which the civil process is built and ultimately the principle of autonomy of will. As stated by the Constitutional Court, for example, in the finding of page I. ÚS 167 / 04 of 12.5.2004 (N 70 / 33 of the SbNU 197) *, "The autonomy of the will and free individual conduct is guaranteed by Article 2 (3) of the Charter of Fundamental Rights and Freedoms at constitutional level. Article 2 (3) The documents must be understood in a dual sense. In its first dimension, it is a structural principle according to which state power can only be exercised against an individual and its autonomous sphere (including autonomous expressions of freedom) where the conduct of an individual violates the expressly formulated prohibition provided for by the law. However, such a ban must reflect only the requirement to prevent an individual from intervening in third parties' rights and to promote the public interest, if it is legitimate and proportionate to such a restriction on the autonomous conduct of an individual. Such a principle must then be understood as an essential requirement of every democratic rule of law (Article 1 (1) of the Constitution of the Czech Republic). The provisions of Article 2 (4) of the Constitution also have similar content. Article 2 (3) then operates in its second dimension The Charter as a subjective right of an individual to respect the autonomous manifestations of his personality, including those of his or her freedom, which reflect his or her particular conduct, unless such conduct is expressly prohibited by law. Article 2 (3) of the Charter in its second dimension, in which it acts as a fundamental right of the individual, shall then apply immediately and directly. In this dimension, it is not just a simple right to radiate, but a subjective right that acts directly against state power. State authorities are therefore obliged to apply a simple law simultaneously to the standards of that law, reflecting Article 2 (3) of the Charter and Article 2 (4) The Constitution as an objective constitutional principle shall also be interpreted in such a way as not to interfere with the subjective right of the individual to the autonomy of the will, which is also guaranteed by Article 2 (3) of the Charter in its second dimension. '. The obligation to respect the autonomy of the will applies not only to bodies that interpret and apply the law, but undoubtedly also to legislators. The attempt to expedite proceedings is therefore desirable on the one hand, but on the other hand it cannot take such a form that, by faking the procedural act of a participant, it actually takes away the possibility of its free conduct. Therefore, in all advanced legal systems, for example, conjecture institutes are used exclusively in determining the facts, i.e. in clarifying and establishing the relevant facts. Accelerating institutes (such as the Consumation Judgment or the Predictive Time-limits) are thus used exclusively in an area affected by the principle of negotiation, and it is not possible to use such means for access to proceedings and subject matter in order to expedite proceedings. The function of legal fiction is not the likelihood of certain relevant facts, the less likely the fiction may not apply to the fundamental right of the procedural party to dispose of the procedure and the subject-matter of the procedure (cf. Macur, J. Judgment on the basis of the fiction of the recognition of a claim under the provisions of § 114b o.s. of the Bulletin of Advocate, No 2 / 2002, p. 28-36).

21. The contested provision of § 394 (2) of the sentence behind the semicolon of the insolvency law precludes the debtor's right to deal with its insolvency by default, although it was authorised by the previous decision. As a result of the introduction of legal fiction, which applies not only to the failure of the debtor, but also to the value judgment of the court, without allowing the debtor to defend itself against the decision of the general court by a proper remedy, his right to a fair trial is limited, which does not allow him or her to correct an error which may occur (e.g. the debtor will apologize, but the apology is accidentally placed in another file, etc.) in the activity of the court. Moreover, the fiction of the withdrawal of the debt relief proposal is not merely a procedural act at the disposal of the participant, but has fundamental substantive consequences for both the debtor and the creditor (subsequent bankruptcy declaration, etc.).

22. For the reasons set out above, the Constitutional Court therefore concludes that the contested provision of Paragraph 394 in paragraph 2 of the part of the sentence behind the semicolon of Act No 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law) is contrary to Articles 36 (1) and 38 (2) of the Charter and is therefore annulled by the date of the publication of that finding in the Collection of Acts. In this context, the Constitutional Court notes that the fundamental cause of the unconstitutional nature of the annulled provision lies in its application link to the manifestly unconstitutional part of the provision of Paragraph 399 (2) of the sentence behind the semicolon, which reads: "if, without an apology, the insolvency court finds its apology justified, it shall be deemed to have withdrawn the application for debt relief." However, this provision establishing the legal fiction of the withdrawal of the debt application was no longer directly applied in the context of its decision-making activities (appeal proceedings) and therefore no longer had the active legitimacy to file an application for annulment. Although it undoubtedly testified to the Regional Court in Ostrava as a first-degree court, it did not use it. It is thus also excluded from the scope of the review before the Constitutional Court, which is bound by the proposal of the Supreme Court in Olomouc.

23. The Constitutional Court also dealt with Article 93 (2) of Act No. 182 / 2006 Coll., on the bankruptcy and the methods of its resolution (insolvency law), with the provision of Article 36 (1) of the Charter, according to which everyone may seek his or her right by an independent and impartial court and, in specified cases, by another authority.

24. The contested provision provides for a two-month period within which the appeal court is to decide on the appeal. If the time limit were to be forfeited, i.e. if the law had expired, or if other fundamental legal consequences (e.g. fiction or conjecture) had been associated with the expiry, such a period would have to be considered unconstitutional, i.e. contrary to the principle of a fair process. On the other hand, it should be pointed out that the introduction of timetables for court decisions cannot be prejudiced by the fact that it is based on substantive relations and subjective rights. The legal period laid down in Paragraph 93 (2) of the Insolvency Act concerns a decision on an appeal against an interim measure regulation, a decision on bankruptcy and a decision on how to deal with bankruptcy, i.e. an initial resolution of the debtor's situation, in which it is necessary to avoid any delays and, since it is an order period, its definition is not contrary to the right to a fair trial.

25. For the reasons set out above, the Constitutional Court therefore concludes that the contested provision of § 93 (2) of Act No 182 / 2006 Coll., on the bankruptcy and the methods of its resolution (insolvency law) is not contrary to Article 36 (1) of the Charter and therefore rejected the application for its annulment.

26. The Constitutional Court complied with the proposal of the Supreme Court in Olomouc and discussed the proposal as urgent within the meaning of Article 39 of the Law on the Constitutional Court.