Found at the Constitutional Court of the Czech Republic No. 166 / 1995 Coll.

Paragraph 32 (3) of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended by Act No. 183 / 1993 Coll., amending and supplementing Act No. 229 / 1991 Coll., as amended by Act No. 42 / 1992 Coll., Act No. 93 / 1992 Coll. and Act No. 39 / 1993 Coll., is deleted from the date of the declaration of the finding in the Collection of Acts.

Senate 19 Ca of the Regional Court in Prague in an appeal proceedings against the decision of the District Office, the Land Office of Příbram and the District Office, the Land Office of Benešov in the case of the file mark 19 Ca 201 / 94 and 19 Ca 110 / 94, concluded that the provisions of § 32 (3) of Act No. 229 / 1991 Coll., as amended by Act No. 183 / 1993 Coll., to be applied in the resolution of these cases, are contrary to Article 11 (4) of the Charter of Fundamental Rights and Freedoms. As a result of the existence of the contested provision, the Land authorities decide to restore ownership of the original owners without the existing owners or their legal successors being deprived of the right to property acquired legally. Act No. 142 / 1947 Coll., on the revision of the first land reform, does not contain a specific provision on the transfer of ownership to allocated real estate into an allocation and therefore the ownership of real estate was transferred here to the allocation by decision of the competent authority on the allocation that became legal. These allocations became the owners of the assigned properties, although the transfer of ownership to the assigned properties was not entered in the land register. By decision pursuant to the contested provision § 32 (3) of Act No. 229 / 1991 Coll., as amended by Act No. 183 / 1993 Coll., the right of ownership of the transferred property to or at the place of the original owners would therefore be restored, which in consequence would be the disposal of the property to the existing owners, but without fulfilling the conditions laid down in Article 11 (4) of the Charter of Fundamental Rights and Freedoms. For these reasons, Senate 19 Ca of the Regional Court in Prague proposed that the Constitutional Court should abolish the provisions of § 32 paragraph 3 of Act No. 229 / 1991 Coll., as amended by Act No. 183 / 1993 Coll.,

The Chamber of Deputies of the Parliament of the Czech Republic stated in a letter of 2 March 1995 signed by its President PhDr. Milan Udem that the purpose of the legislation adopted was to distinguish the way in which property rights were transferred in land reforms. The Chamber of Deputies is not convinced of the correctness of the view of the Regional Court in Prague that in this case the principle of intabulation does not apply and that ownership has passed through an official statement if a decision has been taken on the allocation at the time of the general civil law of 1811. However, it can be accepted that the question of how to assess the legal consequences of the allocation certificate issued for the effectiveness of Civil Code No. 141 / 1950 Coll., which abolished the principle of intabulation, may be questionable. The law was passed by the necessary majority of Members of the Chamber of Deputies on 1 June 1993, signed by the relevant constitutional authorities and duly declared. The legislature acted in the belief that the law adopted was in conformity with the Constitution and our legal order, and it is up to the Constitutional Court to assess the constitutionality of the law and to give a decision in connection with the application for annulment of the provisions of Section 32 (3) of Act No. 229 / 1991 Coll., as amended by Act No. 183 / 1993 Coll..

It follows from the short-term report of the 9th meeting of the Chamber of Deputies of the Parliament of the Czech Republic on 15 to 17 May 1993 and 1 June 1993 that Act No. 183 / 1993 Coll., amending and supplementing Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended, containing the contested provisions of § 32 (3), was adopted on 1 June 1993 by the necessary majority, namely the votes of 98 Members (provisions § 39 (1) and (2) of the Constitution). As is apparent from House Press No. 212, the provision cited was not included in the government proposal, but was only included in the joint report of committees (House Press No. 344). This law was published in 46 Collection of Laws of the Czech Republic, sent out on 29 June 1993. It can therefore be considered that the law was adopted and issued within the limits of the Constitution established competence and in a constitutional manner (§ 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court).

The first of the questions in the present case is whether or not the general Civil Code of 1811, which also applied at the time of the Act No. 142 / 1947 Coll., on the revision of the first land reform, excluded or excluded the distinction between the transition and transfer of ownership. The authors of the Comments on the Czechoslovak General Civil Code have already taken the view that such distinction is justified (Comments on the Czechoslovak General Civil Code, Part Two, Prague 1935, p. 463 et seq.). Their argument is based on the fact that the transfer of ownership is in cases of authoritarian statements (whether by courts or by authorities), and the answer to the question whether and when the said transfer of ownership took place should be sought in the relevant provisions relating to those statements. Therefore, in their view, a library registration as a condition for the acquisition of real estate property is also required only where the relevant regulations expressly require it. Only when acquiring ownership of real estate is a transfer is the only title, given the provisions of § 424 of the General Civil Code, the Real Estate Transfer Contract and therefore, in this case, it is necessary under § 431 of the General Civil Code as a further condition for the acquisition of ownership of the establishment.

This opinion of the authors of this comment is shared by the Constitutional Court, as it supports a number of cases in which ownership of real estate was acquired without taking into account the implication principle. This was the case, for example, in the case of the acquisition of property auctioned by an auctioneer (§ 156, 237 ex.), the acquisition of property ownership and property rights by expropriation, once the payment has been made or a refund has been lodged before the court in the expropriation proceedings (§ 34 of the Law of 18.2.1878 No. 30), the acquisition of ownership by holding the land allocated (§ 5 (2) of Decree of the President of the Republic No. 28 / 1945 Coll.). These cases of transfer of ownership to real estate were therefore a matter of lex specialis and it was only possible to find an answer to the question already asked. Therefore, if, in the case of the transfer of ownership to real estate, the provision of ownership was foreseen as a condition for the acquisition of ownership, that condition had to be explicitly stated in the lex specialis. This also happened in the case of the replacement law of 8 April 1920 No 329, closely following the allocation law of 30 January 1920 No 81 and the entry law of 16 April 1919 No 215. If the provision of Section 5 of the Law of Laws states that the acquired property is acquired and allocated by the Czechoslovak Republic (§ 10, 11), and in § 27 of the Allocation Act, the final decisions of the Land Office and the agreement, provided by its approval clause, are based on equivalent deposit notes, it is clear from § 26 to 29 of the Replacement Act that both the State and the Allocation Act had acquired ownership of the acquired property or allocation only by writing in the Land Book. In a different interpretation, which would be based on the principle of non-cross-compliance of the implicit principle, as a general, no exception to the conditions for the acquisition of property ownership, those provisions would be superfluous, in view of the provisions of Paragraph 431 of the General Civil Code and that contained in the Intabulation Principle. In summary, if the provisions of § 26 to 29 of the Replacement Act required, as a condition for the acquisition of property property, an explicit transfer of ownership rights - by taking over properties acquired under § 5 of the Law, there was no understanding of the library contribution of ownership rights to the State - the explicit determination of this condition here could mean anything other than that there were also cases which were not based on the principle of establishment.

The Act of 11.7.1947 No 142, on the revision of the first land reform, which, as is apparent from its name, submitted to the revision of the land ownership arrangements made pursuant to the Law of 16.4.1919 No 215, as regards the assets referred to in § 1 of the Act, lacks more detailed arrangements in order to prevent the property subject to the revision and therefore, in this regard, it refers to the provisions of § 17 for the management of the Law of 16.4.1919 No 215, as regards the appropriate application of the Law, as well as the laws supplementing it. This means that, where Law 142 / 1947 Coll. does not provide for anything different or does not provide for anything at all, the abovementioned laws governing the first land reform shall apply, but, if expressly otherwise, this law shall apply. With regard to allocations and allocations, Act No. 142 / 1947 Coll. lacks a provision which would affect the principle of intabulation, since Article 8 (8) merely provides that the provisions of Part Four of Act No 90 Coll., of 8 May 1947 on the implementation of the library order of the parties to confiscated enemy property and of certain legal regimes relating to the allocated property apply mutatis mutandis to the adjustment of the legal ratios. In view of the provisions of § 17 of Act No. 142 / 1947 Coll., according to which for the procedure under that Act, including the expropriation of land pursuant to § 1 (3), the relevant provisions of the Code Act and the laws supplementing it were applicable - subject to the provisions of § 8 - to the extent that the requirement of insemination as a condition for the acquisition of ownership of the assigned properties, as enshrined in § 28 of the Replacement Act, applied even after the entry into force of Act No. 142 / 1947 Coll. This conclusion is also indicated by the classification of the provision of § 1 (9) of Act No. 46 / 1948 Coll., on a new land reform explicitly conditional on the completion of the transfer of ownership by library registration. Thus, the appellant's view that the property ownership allocated under Act No. 142 / 1947 Coll. was passed over during the period of validity of the general Civil Code by the decision of the competent authority on the allocation is no longer valid. In this context, it should be added that not only administrative acts in their own sense, but also measures of any kind made by the Land Authority in the implementation of land reform, i.e. the issue of an allocation note, need to be subsummed under the term "decision."

The different situation arose only with the effect of Civil Code No. 141 / 1950 Coll. allowing in Clause 111 (1) the acquisition of ownership of items individually determined, i.e. also property, by the same contract. Similarly, by virtue of § 114, the Land Register's registration has ceased to be of a constitutional nature even in cases of transfer of ownership by the court, authority or public authority. Therefore, the Constitutional Court considers that, in view of these provisions, in our legal order, the date of application of the Civil Code of 1950, i.e. on 1 January 1951, was explicitly abandoned by the intabulation principle. Following the effectiveness of that civil code, the only condition for the acquisition of ownership of the property allocated remained the allocation procedure completed by the issue of the charter, so that the allocation under Act No. 142 / 1947 Coll., where the transfer of ownership rights to land books was not carried out by 31 December 1950, acquired ownership rights on them on 1 January 1951, i.e. the effective date of Civil Code No. 141 / 1950 Coll. In view of the provisions of § 111 (1), § 114 of the Civil Code, the acquisition of property by transfer or transfer was no longer a condition for the acquisition of property, whether by transfer or transfer, to take possession - the condition for the transfer of ownership was established only for items determined by type - which means that even for allocations under Law No. 46 / 1948 Coll. the property transferred to the allotment on the basis of a valid allocation.

Paragraph 32 (3) of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended, therefore corresponds, as regards the allocations under Act No. 142 / 1947 Coll., to the legal status that existed until the effective date of Act No. 141 / 1950 Coll., and in this respect only notes this legal status. By completely ignoring the amendment of the property acquisition regime after 1 January 1951, the provision in question also ignores the fact that, in addition to the group of owners who acquired ownership of the property allocated pursuant to Act No. 142 / 1947 Coll. there is also a group that has ownership of the property allocated by citation. the law became effective in the Civil Code of 1950. Both the allocation according to Act No. 142 / 1947 Coll., as well as the allocation according to Act No. 46 / 1948 Coll., which was envisaged as a condition for the transfer of ownership of possession in the civil code of 1950.

However, in the view of the Constitutional Court, such a procedure is contrary to the principle of equality contained in Article 1 of the Charter of Fundamental Rights and Freedoms. The Constitutional Court of the Czech Republic has identified itself in a number of findings (in particular No 3 and 9 of the Collection of Finals and Resolutions of the Constitutional Court of the Czech Republic, Volume 1) with an understanding of the constitutional principle of equality, as expressed by the Constitutional Court of the CSFR in Decision No 11 / 1992 of the Reports of the Resolutions and Resolutions of the Constitutional Court of the Czech Republic: "It is certainly a matter of the State to decide, in order to ensure its functions, that a group will provide less benefits than others. But even here, they can't go any further. If the law determines the benefit of one group and thereby imposes disproportionate obligations on another, it may do so only by referring to public values. 'In the present case, the legislature did not give any justification for the practice of establishing the inequality and could hardly have done so by pointing out that, in principle, no more than the effectiveness of the Civil Code of 1950 in the acquisition of ownership of real estate allocated under Act No. 142 / 1947 Coll., or Act No. 46 / 1948 Coll., as well as to real estate at all, was already in force in a different way, in the establishment or holding of a non-scheme.

The Constitutional Court has therefore ruled, for the reasons set out above, that the provisions of Paragraph 32 (3) of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended by Act No. 183 / 1993 Coll., are deleted from the date of the declaration of the finding in the Collection of Laws, for its contradiction with Article 1 of the Charter of Fundamental Rights and Freedoms.