The Constitutional Court found No 182 / 2017 Coll.
The Constitutional Court found of 23 May 2017 sp. zn.
Valid
182
FIND
The Constitutional Court
On behalf of the Republic
On 23 May 2017, the Constitutional Court decided under sp. zn. Pl. ÚS 10 / 16 in a plenary composed of the President of the Court of Paul Rychetský and the Judges Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Tomáš Lichovník, Jan Musil, Vladimir Sládeček, Catherine Šimáčková, Vojtěch Šimíček, Milady Tomková, David Uhíř and Jiří Zemánek (Judge of the Czech Republic) on the proposal of the Regional Court in Prague, for which Mgr. Šárka Hájková Šájková, on the cancellation of the Act No. 256 / 2013 Coll., on the Czech Parliament of Parliament of the Czech Republic as participants in the proceedings and in the Government of the Czech Republic as a party to the proceedings..., whether this decision is binding also for persons for whom the purpose of which the law is not yet registered. "
as follows:
The application for annulment of Article 17 (4) of Act No. 256 / 2013 Coll., on the Real Estate Register (cadastral law), in part... "whether this Decision is also binding on persons for whom the right is still registered in the cadastral register."
Reasons
Recap the content of the proposal and the progress of the procedure
1. By application of Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") in conjunction with Article 64 (3) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") in conjunction with Article 64 (3) of the Act No 182 / 1993 Coll., on the Constitutional Court (hereinafter referred to as "the Law on the Constitutional Court"), the appellant seeks the annulment of Article 17 (4) of the Act No. 256 / 2013 Coll., on the Real Estate Catalogue (Catastrological Act), in part... "whether this Decision is also binding on persons in favour of whom the Law is still registered in the Catastrophe."
2. The appellant submits that, in the context of his decision-making activities, an action has been brought pursuant to § 244 et seq., Act No. 99 / 1963 Coll., Civil Code, as amended, (hereinafter referred to as "o.s. '), which is brought before the Regional Court in Prague (hereinafter referred to as" Regional Court') under sp. zn. 37 C 35 / 2014 and which is the subject of a motion (the applicants) for annulment of the decision of the cadastral office on their application for a deposit (in the application specified) and its replacement by a decision of the court authorising the property right of the applicants to land which they were issued in the restitution proceedings on the basis of a judicial decision (also specified). The reason for the rejection of the application for authorisation of the deposit by the cadastral office was that the land issued to the claimants under Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural property, as amended, ("the Land Act ') interfered by its location in the land (in the grounds of the decision of the cadastral office also specified), which are owned by persons who were not parties to the legal proceedings in which the restitution entitlement of the applicants was decided. Thus, according to the cadastral office, the condition for authorising the transfer of ownership laid down in the second sentence of Section 17 (4) of Part Two of the cadastral law is not met, since the decision underlying the deposit is not binding on persons for whom the right is still registered in the cadastral. The appellant takes the view that the cadastral office seems to indirectly refer to § 159a a. s. s., but this cannot apply to the present case, since the applicants were granted land under the Land Act, which defines only the persons obliged and the persons entitled as participants in the restitution proceedings. Owners of real estate which have acquired ownership in breach of Article 5 (3) of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended by Act No. 93 / 1992 Coll., are excluded from the participation in the restitution proceedings.
3. The appellant sees a contradiction between § 17 (4) of the sentence of the second cadastral law and § 5 (3) of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended by Act No. 93 / 1992 Coll., since the first provision excludes compliance with the mandatory provisions of the Land Act. It is not possible to register in the property register the property rights of persons entitled to real estate issued to them by a decision of the Land Office or a court. Such a situation occurs in cases where the obliged person transferred the property to a third party in breach of Article 5 (3) of Act No. 229 / 1991 Coll., on the modification of ownership relations with land and other agricultural property, as amended by Act No. 93 / 1992 Coll., which may in practice mean that the restitution rights of the beneficiaries become a fiction. In addition, the beneficiaries would be disadvantaged against other groups of restituents whose claims were settled before the cadastral law was effective, or before the amended § 8 (1) of Act No. 265 / 1992 Coll., on the registration of property rights and other property rights, as amended, (amendment was carried out by Act No. 349 / 2011 Coll. effective as of 1 January 2012). The appellant concludes that there is a conflict between the two above-mentioned standards and the resolution of this conflict goes beyond the competence of the Regional Court in Prague and therefore requires the abolition under the heading of Section 17 (4) of the cadastral Act.
Text of relevant legislation
4. Paragraph 17 (4) of the cadastral law: "If the court decides, the cadastral office shall examine the fulfilment of the conditions only in accordance with paragraph 2 (a) and, furthermore, whether the decision is binding on persons for whom the law is still registered."
5. Paragraph 5 (3) of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural assets, as amended by Act No. 93 / 1992 Coll., "The obliged person is obliged to treat the property until its issue to the entitled person with the care of the proper operator, from the date of the effective date of this Act he cannot transfer these items, their components and accessories to the property of another. Such legal acts shall be void. The right to compensation caused by the obliged person in breach of those obligations shall remain unaffected by Paragraph 28. '
Recital of the observations of the parties and the intervener
6. Pursuant to Articles 42 (4) and 69 (1) of the Law on the Constitutional Court, the Constitutional Court sent an application for annulment of part of the contested provision to the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic (hereinafter referred to as "the Chamber of Deputies' and" the Senate ') as parties to the proceedings and the Government of the Czech Republic (hereinafter referred to as "the Government') and to the Ombudsman who are entitled to intervene as interveners. The Constitutional Court also requested comments from the Czech Geographic and Catastral Office pursuant to § 48 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court.
7. In its observations of 18 May 2016, the Chamber of Deputies limited itself only to a description of the course of the legislative process which led to the adoption of the law, the provision of which is proposed for annulment. In its observations, it pointed out that Paragraph 17 (4) of the cadastral law was supplemented on the basis of a draft constitutional legal committee which discussed the draft law on 9 May 2013. In conclusion, it pointed out that Article 17 (4) of the cadastral law currently has only one sentence, so that the proposal of the Regional Court in Prague, which it had at its disposal, requesting the annulment of the sentence of the second is unclear (note that this ambiguity was rectified in the amendment of the proposal of 13 May 2016, where the appellant specified precisely the text of the legislation which it requested to repeal).
8. In its observations on the proposal, the Senate first summarised its content and also pointed out the ambiguity of the complaint petition (note above) and then addressed the legal outline of the draft cadastral law in the Senate bodies. In this context, he stated that while the Guarantee Committee recommended that the Senate approve the draft law as referred to by the Chamber of Deputies, the Committee on Territorial Development, Public Administration and the Environment and the Constitutional Legal Committee recommended that the Senate return the draft law to the Chamber of Deputies with 10 amendments. Subsequently, at the Senate meeting on 3 July 2013, a proposal was not adopted in the version referred to by the Chamber of Deputies and instead the 10 amendments were adopted by the Senate and the law was returned to the Chamber of Deputies. As regards the actual § 17 (4) of the cadastral law, that was not the subject of the discussion. The Senate has concluded that it has acted within the limits of the Constitution and in a constitutional manner in adopting the cadastral law.
9. The Government of the Czech Republic, in its observations of 17 May 2016, also pointed to the contradiction of the petition. It also points to the absence of a definition of the unconstitutional nature of the contested provision. In view of the above, it referred to the existing caselaw on the question of the scope of the application [e.g. the Constitutional Court's decision in case sp. zn. Pl. Pl. ÚS 16 / 94 of 21.7.1994 (U 14 / 2 SbNU 227), sp. zl. ÚS 8 / 95 of 13.12.1995 (N 83 / 4 SbNU 279; 29 / 1996 Sb.), sp. zn. Pl. ÚS 5 / 01 of 16.10.2001 (N 149 / 24 SbNU 79; 410 / 2001 Sb.) or sp. Pl. ÚS 7 / 03 of 18.8.2004 (N 113 / 34 SbNU 165; 512 / 2004 Coll.)]. It also pointed out the existence of a burden of claim which the appellant did not, in its view, comply with and therefore such a proposal should be considered as ineligible for a substantive hearing (cf. § 34 (1) of Act No 182 / 1993 Coll., on the Constitutional Court). It further notes that the appellant has completely resigned from its obligation to find a conformal interpretation of the contested provision. In this context, the Constitutional Court has repeatedly held that there is no reason to repeal the provisions of the law, if it is possible to have a constitutional conformal interpretation [for example, the finding of sp. zn. Pl. Pl. ÚS 48 / 95 of 26.3.1996 (N 21 / 5 SbNU 171; 121 / 1996 Sb.), the finding of sp. zn. Pl. ÚS 20 / 05 of 28.2.2006 (N 47 / 40 SbNU 389; 252 / 2006 Sb.), the finding of sp. zn. Pl. The Government believes that, in the present case, such a constitutional conformal interpretation is available, and the proposed collision is insurmountable with the application of the regulation enshrined in the Civil Code. In this context, it takes the view that the legal act on the basis of which the title of the property in question was registered for the benefit of third parties, which subsequently were not parties to the proceedings in which the restitution claim of the applicants in the present proceedings before the Regional Court in Prague was decided, could be considered to be absolutely invalid under Section 588 of Act No. 89 / 2012 Coll., Civil Code. In the present case, Section 986 of the Civil Code provides for the possibility for the claimants (restituents) to claim their property rights against persons registered in the Real Estate Register and also for the period up to the decision on the action in question to have a note of dispute in the Real Estate Register. The Government of the Czech Republic concluded that the contested legislation did not affect the right of judicial protection under Article 36 of the Charter of Fundamental Rights and Freedoms ("the Charter ') or the right to the protection of property within the meaning of Article 11 of the Charter.
10. The Ombudsman stated that, within the meaning of Article 69 (3) of the Law on the Constitutional Court, she did not intervene in the proceedings.
11. The Constitutional Court, pursuant to Article 48 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, also requested the opinion of the Czech Geometric and Catastral Office. In its observations, it first focuses on the considerations which led the legislator to insert Paragraph 17 (4) into the cadastral law. It then describes the situation that arises in the event of a collision of the Land Act and the cadastral Act. In this context, it takes the view that the source of the problem may be the exclusion of a person registered as the owner of the real estate register from participation in proceedings that are fundamentally affecting it. In this case, there is a contradiction with the first sentence of Article 38 (2) of the Charter. The person to whom the property was allegedly transferred in breach of Article 5 (3) of Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural property, as amended by Act No. 93 / 1992 Coll., has no opportunity to comment at all on the matter, even though the original administrative or later judicial decision essentially affects it. The proceedings will therefore be conducted without the participation of the person registered in the register, with the consequence that the result is not binding on him in the light of Article 159a (1) EC. Such a person cannot be treated by the cadastral office by erasing and entering someone else in its place on the basis of the applicable final judgment. This view is also held by the Supreme Court, for example, in the judgment of 20 May 2014 in Case 28 Cdo 333 / 2014, from which it is submitted, inter alia, that "neither the Land Office's decision to issue the property to a person allegedly entitled to restitution (where appropriate, the court's decision is replacing it, issued in proceedings under Part Five, p. § 250a (1) o. o. s.) cannot affect the existence of the right of ownership of the person who was not a party to the restitution proceedings'. This protects and respects the rights of a person who could not be a party to administrative or judicial proceedings in respect of Article 9 (8) of the Land Act.
12. However, the Czech authorities point out that, in its view, the case has a constitutionally conformal solution, which is that the beneficiary is to file, in parallel with the restitution action, an action for designation against a third party registered in the register as the owner, in which they propose that the court should determine that the owner is a compulsory person within the meaning of the Land Act, since the transfer from the compulsory person to the third party is invalid. In this situation, a third party has the opportunity to defend its rights in court. If the court conforms to this decision-making action and also to the restitution proceedings, the contested part of Paragraph 17 (4) of the cadastral law will not prevent the authorisation of the transfer of the right of ownership to the beneficiary. In the event that the person entitled has not yet lodged the action, there is nothing to prevent him from bringing it now under Section 985 of the Civil Code. At the same time, it should ask the cadastral office to register a note of dispute under § 24 (1) of the first cadastral law. The Czech authorities also point out that the contested part of the provision is intended to prevent the rights of all persons who, contrary to Article 38 (2), have been removed from the register. The instruments were not involved in the proceedings in which their rights were decided (e.g. in a situation where the validity of the contract is assessed as a preliminary question). Finally, it points out that, before the current adjustment was effective, the situations thus created were dealt with by making so-called duplicate entries, which was an undesirable situation.
13. The Constitutional Court has also received, without requesting it, the letter of the legal representative of the claimants (persons entitled), in which it acts for the annulment of the relevant section of Paragraph 17 (4) of the cadastral law. It contends that beneficiaries are severely affected and discriminated against by that provision in the application of their restitution rights. It also recalls that the restitution procedure itself has been going on for more than 25 years and is not yet over.
14. The observations of the parties and interveners were sent by the Constitutional Court to the appellant by means of a note and a reply, if any, but the appellant did not make use of this possibility within the prescribed time limit.
Abandonment of oral proceedings
15. The Constitutional Court has noted that oral proceedings could not have brought a significant step forward in order to clarify the matter than results from written acts of the parties. In the light of Article 44 of the Law on the Constitutional Court, there is no need to question the parties to their position on this issue, so it was possible to rule on the matter without the oral hearing.
Assessment of the active legitimacy to submit a proposal
16. Pursuant to Article 95 (2) of the Constitution, if the court concludes that the law to be applied in the resolution of the case is contrary to constitutional order, it shall bring the matter before the Constitutional Court. It is further specified in Section 64 (3) of the Constitutional Court Act, according to which the Constitutional Court may file an application for annulment of the law or its individual provisions. The subject matter of a formal discussion of such a proposal shall be the fulfilment of Article 95 (2) The Constitution, in the sense that it must be a law to be applied in the resolution of the case, i.e. the law or its provision which is proposed for annulment, is to be applied directly by the appellant in the resolution of a particular dispute.
17. The Constitutional Court has found this condition fulfilled, since the Regional Court, in the proceedings on which its application is based, is discussing, in accordance with the fifth part of the case, the case on which the cadastral office has decided on the basis of Paragraph 17 (4) of the cadastral law by rejecting the authorisation of the transfer of title to the applicants.
Constitutional conformity of the legislative process of adopting the contested provision
18. The Constitutional Court is required, in accordance with Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., in the procedure for the control of standards, to assess whether the contested law (its individual provision) has been adopted and issued within the limits of the Constitution established competence and in a constitutional manner.
19. Given that the appellant did not object to the fault of the legislative process or to the breach of the legislature's statutory competence, it is not necessary to examine this issue further, in the light of the principles of the process economy, and it is sufficient to take into account, in addition to the observations submitted by the Chamber of Deputies and the Senate, the formal verification of the conduct of the legislative process from a publicly available source of information at http: / / www.psp.cz.
20. From the observations of the parties to the proceedings as well as from the House of Prints, it was found that Act No. 256 / 2013 Coll., on the Land Register (cadastral law), was discussed in the Chamber of Deputies in the sixth parliamentary term as House Press 778 (Government proposal) at first reading on 15 February 2013 and was ordered to discuss the Agricultural Committee and the Constitutional Law Committee. The Committee on Agriculture discussed the draft law on 9 April 2013 and in its resolution (Press 778 / 4) recommended that the Chamber of Deputies approve the proposal as amended. The Constitutional Law Committee discussed the draft law on 9 May 2013 and in its resolution (Press 778 / 6) recommended to the Chamber of Deputies to approve the proposal as amended. One of the amendments was precisely the addition of Section 17 of the cadastral Act on the new paragraph 4, part of which is the subject of a proposal for annulment. The second reading of the draft law took place on 14 May 2013 and the amendments were processed as 778 / 7. The third reading of the draft law took place on 17 May 2013. The bill was approved by the Chamber of Deputies as amended, including the addition of Section 17 of the cadastral Act on the new paragraph 4.
21. The Senate returned the bill to the Chamber of Deputies with amendments. None of them concerned the contested provision. By vote on 8 August 2013, the House adopted a law, as approved by the Senate. After signature by the relevant constitutional authorities, the law was declared on 23 August 2013 in the Collection of Laws.
22. The Constitutional Court has verified that the law and its subsequent amendments have been adopted by a constitutional procedure, signed by the relevant constitutional authorities and duly declared.
Self-assessment of the proposal
23. With its proposal, the appellant seeks the annulment of Section 17 (4) of the cadastral Act, as it sees a conflict with the cogent § 5 (3) of Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural property, as amended by Act No. 93 / 1992 Coll., since the contested part of the provisions of the cadastral Act excludes compliance with the cogent provision of the Soil Act. In principle, the appellant does not object to a contradiction of the contested provision with the constitutional rules; it is much more about resolving the conflict between the provisions of the cadastral law and the Land Act.
24. First of all, the appellant has to be criticised for proposing the repeal of the legislation, but it completely resigns from the constitutional legal argument, so that, in addition to the inconsistency between the cadastral law and the soil law, the proposal does not contain essentially any arguments that could trace the possible unconstitutionality of the contested section of Section 17 (4) of the cadastral law. It is thus not entirely clear, the contradiction with which the plaintiff sees the concrete constitutional courts. Nor does the proposal result in an attempt to find a constitutional conformal solution to the issue.
25. However, it is possible to give the appellant the truth that the solution to the problem raised is not entirely easy. On the one hand, it is certainly not possible to question the consequences of a breach of the obligation of the obliged entity to treat real estate with the care of a proper operator and the infringement of the prohibition on the transfer of such property to the property of another person under the sanction of absolute invalidity of legal conduct (cf. § 5 (3) of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended by Act No. 93 / 1992 Coll.). On the other hand, however, the system of transfers of ownership rights from the compulsory entity to the extent that it is contrary to § 5 (3) of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural assets, as amended by Act No. 93 / 1992 Coll., registered to owners based on acquisition titles, whether due or not; the ownership rights of the acquirer have also been registered in the Real Estate Register on the basis of supporting documents or documents linked to the protection of the good faith of the parties. There is therefore a need to find a solution that will bring these two conflicting principles into line.
26. The Constitutional Court has repeatedly interpreted in its caselaw [cf. ÚS 16 / 08 (N 203 / 58 SbNU 801; 310 / 2010 Sb.), the finding of 16 October 2007 sp. zn. Pl. Pl. ÚS 78 / 06 (N 162 / 47 SbNU 145; 307 / 2007 Sb.), the finding of 15 / 12 (N 13 / 68 SbNU 191; 82 / 2013 Sb.), the finding of 12 July 2010 Sb. IV. Therefore, from many conceivable interpretations of the law, only an interpretation that respects constitutional principles (if such an interpretation is possible) must be used and the repeal of the provisions of the law on non-constitutionality should not be allowed to apply the provision in question unless it is infringed (the principle of minimising interference with the powers of other public authorities). However, those conclusions may not only be based on a constitutional conformal interpretation of a particular provision, but, in a broader context, a constitutionally conformal solution to the whole issue can be sought. The Constitutional Court has therefore assessed whether the contested legislation can be interpreted in a constitutional manner in order to meet the requirements guaranteed by the Charter. It concluded that there was no need to abolish the contested provision, since a constitutional solution to the issue could be found.
27. Paragraph 17 (4) of the cadastral law was not originally part of the government proposal. It was only included in the draft on the basis of an amendment to the constitutional legal committee of the Chamber of Deputies of the Parliament of the Czech Republic. The intention was to limit the scope of the review of judicial decisions by the cadastral office to a minimum, compared with that of other documents. According to Article 17 (4) of the cadastral law, the cadastral office only examines whether the court decision fulfils the requirements of the instruments of registration in the cadastral [see Section 17 (2) (a) of the cadastral law] and whether the decision is binding on persons for whom the law is still registered in the cadastral. The contested part of Paragraph 17 (4) of the cadastral law was adopted in order to avoid the removal of the rights of all persons who did not participate in the proceedings which resulted in a decision but which has implications for the legal status of those non-parties. The purpose of this regulation is thus quite clear, as it is thus prevented from being deprived of ownership without being able to oppose it in any way. From this point of view, the contested provision fulfils the constitutionally guaranteed right enshrined in Article 38 (2) of the Charter.
28. In the case which was the basis for the application for annulment of Section 17 (4) of the cadastral law, it is clear that the parties to the proceedings before the Regional Court (i.e. the applicants in the proceedings before the Regional Court or the applicants in the proceedings for the authorisation of the deposit before the cadastral office) have already become the owners of the land office's decision in restitution of the properties issued. The acquisition of ownership by a decision of a public authority (or a public authority) is one of the legal (and traditional) reasons for the acquisition of ownership. Thus, the acquisition of ownership was regulated by § 132 (1) of Act No. 40 / 1964 Coll., Civil Code, as amended by Act No. 509 / 1991 Coll., and is also regulated by the current effective § 1114 of the Civil Code. The acquisition of ownership of the case is effective, unless otherwise provided for in the decision, by the legal power of the decision (cf. § 132 (2) of the "old" Civil Code and § 1114 of the "new" Civil Code). In the present case, however, it is clear that the parties to these proceedings are in a difficult situation where, on the one hand, the administrative authority and, on the other hand, the court determined their right to property, on the other hand, the status of the register does not correspond to that fact or, on the basis of the interpretation made by the cadastral office, it cannot be brought into line with the facts. The beneficiaries thus appear to have only formal ownership, since they are legally recognised as owners of real estate, but cannot be treated at the moment, since they are neither (nor can be) registered as owners in the real estate register. The appellant considers that this contradiction can only be resolved by cancelling Section 17 (4) of the cadastral law.
29. However, in the view of the Constitutional Court, there is a constitutionally consistent solution to that contradiction, although it may be rather lengthy and inconvenient for the parties to the restitution proceedings. It should be assumed that, if the transfer of property rights to real estate which were subsequently issued in restitution proceedings to the entitled persons was carried out, for the benefit of persons who were not parties to the restitution proceedings, the transfer to such persons is deemed to be an absolutely invalid legal act within the meaning of Section 588 of the Civil Code, since the mandatory provision of Section 5 (3) of Act No. 229 / 1991 Coll., on the modification of property relations with the land and other agricultural property, as amended by Act No. 93 / 1992 Coll., which contains, inter alia, a prohibition on the disposal of the assets concerned by the restitution in question. The Constitutional Court has repeatedly stated [cf. The finding of 11 December 1997 sp. zn. IV. ÚS 195 / 97 (N 161 / 9 SbNU 389)] that, in view of the meaning of the Land Act, which is to atone for at least some property injustices, restitution claims should be considered as primary claims, even at the cost of intervening in existing property transfers. Any other interpretation would make Paragraph 5 (3) of this Act worthless.
30. In the present case, therefore, the procedure indicated by the parties or interveners in their observations is offered. As a public list, the real estate catalogue is based on the principle of material publicity on the basis of which protection is granted to a person who has conducted legal acts in confidence in the facts confirmed by public registration data [to this effect, for example, the finding of the Constitutional Court of 1 August 2006 sp. zn. II. ÚS 349 / 03 (N 148 / 42 CollNU 199) or the finding of 11 May 2011 sp. zn. II. ÚS 165 / 11 (N 88 / 61 SbNU 359)]. However, if there is a situation, as in the present case, where there is a discrepancy between the registered situation and the actual legal situation, the legislation knows the means of redress. These funds are provided for in Sections 985 and 986 of the Civil Code. The principle of protection of a person who is demonstrated by the actual legal situation (contradictory to the state on the public list) is therefore brought into conflict with the principle of material publicity, according to which a person who has conducted legal negotiations with confidence in the facts confirmed by the public registration data must be protected in the material legal state. In this context, it can be pointed out again that the above-mentioned finding of the Constitutional Court, sp. zn. II. ÚS 165 / 11, in which it was stated that, given that the principle of the protection of the good faith of the new acquirer is contrary to the principle of the protection of the right of ownership of the original owner, it is necessary to find practical consistency between the two opposing principles in such a way as to preserve the maximum of both, and if it is not possible for the result to be compatible with the general concept of justice.
31. In accordance with Section 985 of the Civil Code, if the status entered in the public register is not in accordance with the actual legal situation, the person whose right in kind is thereby affected may seek the removal of that inconsistency as well as a record of the fact that he has exercised that right (note of the dispute). Paragraph 986 of the Civil Code then provides for a specific case where a person claims to be affected in his rights by the entry in the public register, which was carried out for the benefit of another and without legal justification. The exercise of a claim under Section 985 or Section 986 of the Civil Code is then subject to the provisions of Section 24 of the cadastral law on the basis of which it may be required that the person who maintains the public register enter a reference to the dispute in the register, if the condition entered in the register in accordance with the actual legal status and the removal of the non-compliance is sought by the person whose right is affected if he proves that he has exercised his right in court or if someone claims that he is affected in his law by the entry made in the register without legal justification for another. Where doubts as to the correctness of the registration have not been removed by a statement of the person still registered in the register and by persons seeking registration [Paragraph 66 of Decree No 357 / 2013 Coll., on the property register (the cadastral decree)], the cadastral office shall register a note of the dispute of the registration which acts against the registration made on the basis of the contested legal act and the subsequent registration thereof, also on the basis of a notification by the court of the action brought by the applicant or on the basis of a substantiated application for a determination that the legal act on which is to be registered in the register is invalid, apparent or annulled.
32. If we apply that legislation to a case from which the present application of the Regional Court in Prague has arisen, a procedure is offered whereby the question of ownership of the land issued will be raised by the beneficiaries (i.e. the claimants or the applicants in proceedings before the cadastral office) before the competent general court by an action for the determination of ownership, which in consequence may lead to a desirable situation, namely the deletion of the right of ownership of persons who have acquired ownership in breach of Article 5 (3) of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended by Act No 93 / 1992 Coll., for the benefit of the law acquired by beneficiaries.
33. It is clear from the above that the application itself of the contested part of Section 17 (4) of the cadastral law does not have negative constitutional provisions for beneficiaries. They are not deprived of their right to property, only that their path to an optimal legal situation is extended. On the contrary, if the contested provision were to be annulled by the Constitutional Court, the rights of those persons who were not parties to the proceedings resulting from the decision which is the basis for registration in the property register would be jeopardised. Even from this point of view, § 17 (4) of the cadastral law has a wider scope than § 5 (3) of Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural assets, as amended by Act No. 93 / 1992 Coll.
34. On the basis of the above reasons, the Constitutional Court concluded that there were no grounds for the annulment of the contested § 17 (4) of the cadastral law in the words... "whether this decision is binding on the persons for whom the law is still registered in the register."
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 182 / 2017 Coll., on the proposal of the Regional Court in Prague to abolish section § 17 (4) of Act No. 256 / 2013 Coll., on the cadastral property (cadastral law) |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 26.06.2017 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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