Act No. 185 / 2013 Coll.
Act amending Act No. 312 / 2006 Coll., on Insolvency Managers, as amended, Act No. 182 / 2006 Coll., on Decrease and Methods of Solutions (Insolvency Act), as amended, and Act No. 634 / 2004 Coll., on Administrative Charges, as amended
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Effective from 01.08.2013
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01.08.2013
02.07.2013
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185
THE LAW
of 11 June 2013
amending Act No. 312 / 2006 Coll., on Insolvency Managers, as amended, Act No. 182 / 2006 Coll., on Decrease and Methods of Solutions (Insolvency Act), as amended, and Act No. 634 / 2004 Coll., on Administrative Charges, as amended
Parliament has decided on this law of the Czech Republic:
Amendment to the Insolvency Trustees Act
Act No. 312 / 2006 Coll., on Insolvency Managers, as amended by Act No. 108 / 2007 Coll., Act No. 296 / 2007 Coll., Act No. 124 / 2008 Coll., Act No. 41 / 2009 Coll., Act No. 223 / 2009 Coll., Act No. 227 / 2009 Coll., Act No. 420 / 2011 Coll. and Act No. 428 / 2011 Coll., is amended as follows:
1. In Article 1, at the end of point (c), the dot is replaced by a comma and the following point (d) is added:
"(d) supervision of the activities of the insolvency administrator and the visiting insolvency administrator."
2. Paragraph 2 (3) and (4), including footnote 10, read:
"(3) The visiting insolvency administrator shall be a national of a Member State of the European Union, of the Member States of the Agreement on the European Economic Area or of the Swiss Confederation (hereinafter referred to as" the Member State '), who carries out the activities of an insolvency administrator in another Member State and who has the right temporarily or occasionally: 10) carry out the activities of the insolvency administrator in the Czech Republic.
(4) In addition, the visiting insolvency administrator shall mean a foreign company which provides the same guarantees of liability for members as a public company and which carries out the activities of an insolvency administrator in another Member State and has the right to temporarily or occasionally carry out the activities of an insolvency administrator in the Czech Republic.
10) Act No. 222 / 2009 Coll., on the Free Movement of Services, as amended by Act No. 247 / 2011 Coll. Act No. 18 / 2004 Coll., on the recognition of professional qualifications and other competence of nationals of Member States of the European Union and of certain nationals of other States and amending certain laws (Act on the Recognition of Professional Qualifications), as amended. '.
3. The following Section 2a is inserted after Section 2, including the title:
Sensitive activity
The performance of the activities of the insolvency administrator of the debtor pursuant to § 3 (2) shall be deemed to be sensitive under the Act on the Protection of classified information and on security competence. ';
4. Paragraph 3 (1) reads as follows:
"(1) The right to pursue the activities of an insolvency administrator shall arise on the date of the acquisition of the legal power of authorisation to pursue the activities of an insolvency administrator (hereinafter referred to as the" authorisation ').'.
5. In Article 3 (2), the words "irrespective of the way in which the debtor is bankrupt 'shall be inserted after the words" Special Law No 3' and the words "or special authorisation of the visiting insolvency administrator 'shall be deleted.
(6) footnote 2 shall read:
"2) § 2 (k) of Act No. 182 / 2006 Coll., as amended by Act No. 139 / 2011 Coll. '.
7. In Article 3, the following paragraph 3 is added:
"(3) Public commercial companies not yet registered in the commercial register shall be subject to the law referred to in paragraphs 1 and 2 on the date of registration of the public commercial company which has been authorised or special authorisation in the commercial register. ';
8.
"Issue of authorisation and special authorisation
Draft natural person
(1) The proposal of a natural person for the issue of an authorisation or special authorisation shall include:
(a) her name and, where appropriate, her name and surname, permanent residence, and, if she is not a resident, habitual residence (hereinafter referred to as "permanent residence"), citizenship, place of birth, birth, birth number and, if she is not a native, date of birth,
(b) the address to be registered; and
(c) the registration number of the certificate of completion of the insolvency practitioner's examination or the insolvency administrator's special examination.
(2) The proposal referred to in paragraph 1 shall be accompanied by:
(a) proof of compliance with the training conditions referred to in Article 6 (1) (b);
(b) proof of compliance with the condition of liability insurance referred to in Article 6 (1) (f); This does not apply if, at the same time as the application for authorisation or special authorisation of a natural person, a proposal by a public commercial company or a foreign company to which that natural person has attached a declaration pursuant to Article 5 (2) (a) is submitted,
(c) proof of compliance with the condition of integrity corresponding to a record of penalties or similar records issued by other States in which it has been continuously in the last 3 years for more than 3 months, which may not exceed 90 days; the recognition of the document issued by the competent authority of another Member State shall be subject to special legislation4),
(d) documents demonstrating compliance with the professional practice provided for in Article 6 (1) (e); and
(e) proof of payment of the administrative fee.
(3) The lawyer, tax advisor or auditor shall add to the proposal a statement from the relevant Chamber that he is included in the list of lawyers, the list of tax advisors, the list of auditors; the notary shall attach proof that he has been appointed notary.
(4) The design of the natural person for the issue of a special authorisation shall be accompanied by a certified copy of the evidence of the safety competence of the natural person or the certificate of the natural person. ';
9. In Article 5 (1) of the Introductory Part of the provision, the words "or special authorisation 'shall be inserted after the word" authorisation'.
10. in Article 5 (1), the words "where a public commercial company registered in a commercial register is proposed to issue an authorisation or special authorisation," shall be added at the end of point (c);
11. in Article 5 (1), at the end of point (d), the dot is replaced by a comma and the following point (e) is added:
"(e) the reference number of the registered member's authorisation or the special authorisation reference number of the registered member."
12. in Article 5 (2) and (3):
"(2) The proposal referred to in paragraph 1 shall be accompanied by:
(a) a declaration by the notified member that he will carry out the activities of the insolvency administrator pursuant to Article 3 (1) or the activities of the insolvency administrator of the debtor pursuant to Article 3 (2) only within a public company or a foreign company; the signature of the notified member must be officially verified,
(b) proof of compliance with the condition of liability insurance pursuant to Article 8 (1) (c); and
(c) proof of payment of the administrative fee.
(3) The proposal referred to in paragraph 1 shall be accompanied by a social contract where the issue of an authorisation or special authorisation by a public commercial company not yet registered in the commercial register is proposed. ';
13. in Article 6 (1) (c):
"(c) has passed the insolvency practitioner's examination, ';
14. in Article 6 (1) (e):
"(e) has for at least 3 years carried out professional experience in the field of the performance of the function of insolvency trustee, in particular in the fields of law, economics, tax advice, accounting, audit or corporate governance; and"
15. in Article 6 (2) (a), "a" is replaced by "(a), (b), (d), (e) and (f),"
16. in Article 6 (2), at the end of point (b), the dot is replaced by "a" and the following point (c) is added:
"(c) meets the conditions for carrying out sensitive activities under the Act on the Protection of classified information and on security competence."
17. in Article 6 (3) and (4):
"(3) The conditions referred to in paragraphs 1 and 2 shall also be deemed to be met if they have been recognised by the Ministry under a special legislature4).
(4) An authorisation or special authorisation may be issued by the Ministry to a natural person only if no more than 6 months have elapsed on the date of the application from the date of the examination or special examination of the insolvency administrator. ';
18. In Article 6, the following paragraphs 5 and 6 are inserted after paragraph 4:
"(5) The validity of the authorisation shall be limited to a period of 5 years from the date of acquisition of the authorisation. On application for an extension of the authorisation in which the insolvency practitioner provides proof of payment of the administrative fee, the period of validity of the authorisation shall be extended by 5 years. The administrative fee shall be paid no later than the last day of validity of the authorisation.
(6) The validity of the special authorisation shall be limited to a period of 5 years from the date on which the special authorisation is acquired. The period of validity of the special authorisation shall be extended by 5 years by the performance of the special test of the insolvency administrator during the last 12 months of the special authorisation. ';
Paragraph 5 shall become paragraph 7.
19. The following Section 6a is inserted after Section 6:
(1) The Ministry shall, on application of an authorisation, issue to a natural person who has ceased to exercise the right to exercise the activities of an insolvency administrator pursuant to Article 12 (2) under the conditions laid down in Article 6 (1) and (3), where the application for authorisation has been filed within 3 months of the date of termination of the right to pursue the activities of an insolvency administrator pursuant to Article 12 (2).
(2) The application for authorisation referred to in paragraph 1 shall contain the particulars referred to in Article 4 (1) and shall be accompanied by the document referred to in Article 4 (2) (b), (c) and (e).
(3) The authorisation referred to in paragraph 1 is limited in accordance with Article 6 (5). "
20.
integrity
(1) The condition of integrity referred to in Article 6 (1) (d) is not met by a natural person,
(a) which has been convicted of a criminal offence committed in connection with the performance of the office of insolvency practitioner or which has been convicted of another criminal offence in so far as such criminal activity endangers the trust in the proper performance of the function of insolvency practitioner, unless it is regarded as not being convicted;
(b) which the insolvency court has rejected in the last 5 years before the application for remission of the remainder of its debts,
(c) the bankruptcy of which has been final in insolvency proceedings;
(d) which has been a statutory body or a member of a statutory body of a legal person in the last five years whose insolvency proceedings have been final;
(e) for which an obstacle to the function of a statutory authority, a member of a statutory authority or another body of a legal person who is an entrepreneur still persists;
(f) which has been revoked in the last 5 years before the submission of the proposal in accordance with the procedure laid down in Article 13 (2), or which has ceased to have a right under the decision referred to in Article 34; or
(g) which has been a declared member of a public commercial company or a foreign company for the last 5 years, where that company's authorisation or special authorisation has been revoked in accordance with the procedure laid down in Article 13 (2), or the right has expired following a decision pursuant to Article 34.
(2) The condition of integrity laid down in Article 8 (1) (d) is not met by a public commercial company or a foreign company,
(a) which has been convicted of a criminal offence committed in connection with the performance of the duties of insolvency practitioner or which has been convicted of another intentional offence where such criminal activity endangers the trust in the proper performance of the duties of insolvency practitioner, unless it is regarded as not being convicted; or
(b) which has been revoked in the last five years prior to the submission of the proposal in accordance with the procedure laid down in Article 13 (2) or which has ceased to have a right under the decision referred to in Article 34. "
21.
Issue of authorisations and special authorisations of a public commercial company and a foreign company
(1) On a proposal from the Ministry, the public commercial company or foreign company shall be authorised,
(a) which has a notified partner authorised;
(b) whose notified partner has made a declaration pursuant to Article 5 (2);
(c) which has entered into a liability insurance contract for its cargo; and
(d) which is fair.
(2) On a proposal, the Ministry shall issue a special authorisation to a public commercial company or foreign company,
(a) which satisfies the conditions laid down in paragraph 1 (b) to (d); and
(b) which has a notified member of the special authorisation.
(3) In order to prove the integrity of a legal person, the Ministry shall, in accordance with the special legislation, request (4a) an extract from the Register of Penalties. An application for an extract from the Register of Penalties and an extract from the Register of Penalties shall be sent in electronic form in a way that allows remote access.
(4) The conditions referred to in paragraphs 1 and 2 shall also be deemed to be met if a public commercial company or a foreign company fulfils equivalent requirements for obtaining the right to pursue the business of an insolvency administrator in another Member State. This fact must be documented by a public commercial company or foreign company to the Ministry.
(5) The authorisation or special authorisation referred to in paragraphs 1 and 2 shall also include the designation of the notified member or members. ';
22. The following Section 8b is inserted after Section 8a, including the title:
Issue of a new authorisation and a new special authorisation of a public commercial company or a foreign company
(1) The Ministry shall issue a new permit or special permit to the insolvency administrator in the event of a change in the person declared by the member or in the number of members declared.
(2) The provisions of this Act relating to the particulars of the application for authorisation or special authorisation of a public commercial company or a foreign company relating to the notified partner shall apply mutatis mutandis to the proposal referred to in paragraph 1.
(3) The Ministry shall issue a new authorisation or special authorisation to the insolvency administrator where one of the notified members has ceased to be a member of the public commercial company or foreign company. ';
23. in Article 9 (1), the words "the performance of constitutional protective treatment or the performance of security detention" shall be added at the end of the text in point (c).
24. in Article 9 (1), the following point (e) is inserted after point (d):
"(e) on the date on which the decision imposing a prohibition on the activity of the insolvency practitioner is acquired,"
Points (e) to (g) shall be renumbered as points (f) to (h).
25. in Article 9 (1), the comma at the end of point (g) shall be replaced by a dot and point (h) shall be deleted;
26. Paragraph 9 (3) is deleted.
27. in Paragraph 10 (1):
"(1) The Ministry may decide to suspend the right to exercise the activities of the insolvency administrator to the insolvency administrator,
(a) against which criminal prosecution is conducted for an offence committed in connection with the performance of the activities of an insolvency administrator or for any other intentional offence, where such criminal activity endangers the trust in the proper performance of the function of insolvency administrator, at the latest until the date on which the decision terminating the proceedings takes effect; where the insolvency administrator is subject to a penalty, protective treatment or security detention for that offence, the suspension of the right to pursue the activities of the insolvency administrator to the insolvency administrator shall end on the date on which the decision of the Ministry to revoke the authorisation to pursue the activities of the insolvency administrator becomes final,
(b) where insolvency proceedings are pending in which its bankruptcy or imminent bankruptcy is resolved, and at the latest until the date of the final decision giving rise to legal power; where the insolvency administrator is decided to default, the suspension of the right to exercise the activities of the insolvency administrator shall end on the date on which the decision of the Ministry to revoke the authorisation to pursue the activities of the insolvency administrator becomes final; or
(c) where proceedings for its legal capacity have been initiated, at the latest until the date on which the decision terminating the procedure is taken. "
28. In Section 12 of the introductory part of the provision, the words "to the insolvency administrator" shall be inserted after the word "to the administrator."
29. In Article 12, point (f) is replaced by the dot and point (g) is deleted.
30. In Article 12, the current text becomes paragraph 1 and the following paragraphs 2 and 3 are added:
"(2) The right to pursue the activities of an insolvency administrator under Paragraph 3 (1) shall also cease to exist to the insolvency administrator 5 years after the date of the acquisition of the legal power of authorisation to carry out the activities of an insolvency administrator, unless the authorisation has been extended in accordance with the procedure laid down in Article 6 (5).
(3) The right to pursue the activities of the insolvency administrator of the debtor pursuant to Article 3 (2) shall also cease to exist to the insolvency administrator 5 years after the date of the acquisition of the special authorisation to pursue the activities of the insolvency administrator, unless the special authorisation has been extended in accordance with the procedure laid down in Article 6 (6). '
31. Paragraph 13, including the title, reads:
Repeal of authorisation or special authorisation
(1) The Ministry shall abolish:
(a) an authorisation to an insolvency administrator which does not fulfil any of the conditions laid down in Article 6 (1) or Article 8 (1); or
(b) a special authorisation to an insolvency administrator which does not fulfil any of the conditions set out in Article 6 (2) or Article 8 (2).
(2) The Ministry may revoke the authorisation or special authorisation of the insolvency administrator to which it was
(a) the Ministry has repeatedly granted a penalty pursuant to Paragraph 36b; the Ministry shall take into account, in particular, the nature of the infringements, the number and nature of the penalties granted by the Ministry and the time elapsed between the infringements of each obligation; or
(b) the insolvency court has repeatedly granted penalties under the insolvency law; In particular, the Ministry shall take into account the nature of the infringements, the number and the nature of the penalties granted by the insolvency court and the time elapsed between the infringements of each obligation. ';
32. Paragraph 14, including the title, reads:
Information obligation of the insolvency practitioner
(1) The insolvency administrator shall inform the Ministry of any facts which may result in the suspension of a right under § 9 or § 10, the termination of a right under § 12 or the revocation of a permit or special permit under § 13 (1); immediately and no later than 15 days from the date on which the operative event occurred.
(2) The insolvency administrator shall inform the Ministry of the change in the data entered in the list if the change in the data is not known to the Ministry from its own activities and provide evidence of the change in that data; immediately and no later than 15 days from the date on which the operative event occurred.
(3) The insolvency administrator shall submit to the Ministry once a year a document demonstrating compliance with the conditions for the conclusion of the indemnity insurance contract. ';
33. Paragraph 17, including the title, reads:
Breakdown and content of the list
(1) The list is to be broken down into the general part and the special part.
(2) The general part of the list shall separately include natural persons, public companies and foreign companies who have acquired the right to pursue the activities of the insolvency administrator, as well as visiting insolvency administrators who have the right to temporarily or occasionally pursue the activities of the insolvency administrator.
(3) A separate list shall be entered in a separate part of the list by natural persons, public companies and foreign companies who have acquired the right to pursue the activities of the insolvency administrator of the debtor pursuant to Article 3 (2), as well as visiting insolvency administrators who have the right to temporarily or occasionally pursue the activities of the insolvency administrator of the debtor pursuant to Article 3 (2).
(4) In each part of the list, the persons concerned shall be entered in alphabetical order. ';
34. in Paragraph 19 (1):
"(1) The information identifying the insolvency administrator shall be entered in the list,
(a) if it is a natural person, his or her name and surname, permanent residence, date of birth, registered office, if different from his or her place of residence, identification number provided by the administrator of the basic register of persons (4b), educational record and professional experience completed,
(b) if there is a public company or a foreign company, its company, its registered office or, where appropriate, the location of the organisational unit, the identification number, the name and, where appropriate, the names and surnames, the date of birth of its registered partner. "
35. in Article 24 (1) (a), the words "and (e)" shall be inserted after the words "(b)."
36. In the second sentence of Paragraph 24 (2), the words "the applicant who has paid the Ministry a fee to allow a repetition of this test of CZK 7,000 shall be inserted after the words" the insolvency administrator's examinations. "
37. In Article 24, paragraphs 4 and 5 are added, including footnotes 11 and 12:
"(4) Those who do not attend the insolvency practitioner's examination may, within 5 days of the date of its performance, request the Ministry in writing to allow it to be carried out by another deadline. The Ministry will allow the Insolvency Trustee to perform the exam at another time, which properly and in a timely manner has shown the serious reasons for its failure 11), and has paid the Ministry a fee for allowing the exam to be carried out at another time of CZK 7,000.
(5) Any person who does not attend the insolvency practitioner's examination within a different time limit may, within 5 days of the date of its performance, ask the Ministry in writing to allow it to be carried out within a different time limit. The Ministry will allow the exam of the insolvency administrator to be carried out in another replacement period, which properly and in a timely manner excused the applicant, showed the reasons for the special consideration due to his non-availability (12) and paid the Ministry a fee for allowing the examination to be carried out in another replacement period of CZK 10,000.
11) Paragraph 11 (2) of Decree No. 312 / 2007 Coll., on the content and other requirements of insolvency practitioners' examinations, as amended.
12) Paragraph 11 (3) of Decree No. 312 / 2007 Coll., as amended. '
38. Paragraph 25, including the title and footnotes 5 to 8, shall be deleted.
39. in Paragraph 26 (1) of the introductory part of the provision, "3" is replaced by "6."
40. in Article 26 (1) (a), the words "or the insolvency practitioner's differential examination" shall be deleted;
41. in Paragraph 26 (2), "and 3" shall be replaced by "up to 5."
42. The fifth title, including the title and footnote 13, reads as follows:
ENTERTAINING INSOLVENTION MANAGERS
(1) On the basis of the notification provided for in Article 36a of the Act on the recognition of professional qualifications, the Ministry shall immediately enter a national of a Member State in the general section of the list.
(2) On the basis of the notification provided for in Article 36a of the Act on the recognition of professional qualifications and the presentation of a document of security competence under the Act on the Protection of classified information and on the security competence, the Ministry shall immediately enter a national of a Member State in a specific part of the list.
(3) The notification referred to in paragraphs 1 and 2 shall also indicate the address for service in the Czech Republic.
(4) A national of a Member State whose law has ceased to exist in the last 5 years by decision pursuant to § 34 shall not be included in the list.
(1) Paragraph 27 (1) and (3) of the Act on the Recognition of Professional Qualifications shall apply mutatis mutandis to the entry of a foreign company in the general part of the list.
(2) Paragraph 27 (2) and (3) of the Act on the recognition of professional qualifications shall apply mutatis mutandis to the entry of a foreign company in a specific part of the list.
(3) The list shall not include a foreign company which has ceased to exist in the last 5 years on the basis of a decision under Paragraph 34.
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Regulation Information
| Citation | Act No. 185 / 2013 Coll., amending Act No. 312 / 2006 Coll., on Insolvency Managers, as amended, Act No. 182 / 2006 Coll., on Decrease and Methods of Resolution (Insolvency Act), as amended, and Act No. 634 / 2004 Coll., on Administrative Charges, as amended |
|---|---|
| Regulation Type | Law |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 02.07.2013 |
|---|---|
| Effective from | 01.08.2013 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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