The Constitutional Court found no 254 / 2022 Coll.
The Constitutional Court found of 28 June 2022 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
31.08.2022
254
FIND
The Constitutional Court
On behalf of the Republic
On 28 June 2022, the Constitutional Court decided, under point Pl.
as follows:
Motion denied.
Reasons
Definition of the case and recap of the course of the proceedings
1. By a proposal of 15 October 2020, registered at the Constitutional Court on the same day, the appellant (Supreme Court), 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 Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the "Law on the Constitutional Court"), seeks the annulment of Article 108 (1) of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended (hereinafter referred to as the "Insolvency Act."
2. The applicant, when submitting the proposal, came from the facts described below. The commercial company Orofa, s. r. o., located in Košice, Slovak Republic, (hereinafter referred to as the insolvency applicant), as a creditor of the insolvency proposal of 16 March 2020, requested the City Court of Prague (hereinafter referred to as the "Municipal Court ') to determine the bankruptcy of the commercial company Chrudim, s. r. o., (hereinafter referred to as the" debtor').
3. By order of 17 March 2020, MSPH 95 INS 7031 / 2020-A-4, the Municipal Court held that, pursuant to Paragraph 100a (1) of the Insolvency Act, no insolvency proposal or other documents would be published in the insolvency register. Subsequently, by order of 23 March 2020 No. MSPH 95 INS 7031 / 2020-A-5, the City Court rejected the insolvency application pursuant to § 128a (1) of the Insolvency Act for obvious unfounded reasons, since the insolvency practitioner, together with the insolvency proposal submitted, did not deposit an advance on the costs of insolvency proceedings of CZK 50 000 under § 108 (1) of the Insolvency Act.
4. In order to appeal the insolvency appellant and debtor of the Supreme Court in Prague ("the Supreme Court ') by order of 15 April 2020 No. MSPH 95 INS 7031 / 2020, 3 VSPH 408 / 2020-A -13 confirmed the order of the Municipal Court (operative part I), rejected the appeal of the debtor (operative part II) and determined that none of the parties had the right to pay the costs of the appeal proceedings. The Supreme Court attracted the City Court to the conclusion that the insolvency practitioner did not comply with the obligation to deposit an advance under Paragraph 108 (1) of the Insolvency Act.
5. Against the order of the Supreme Court, the insolvency practitioner lodged an early notice containing the required formalities. In its submissions, it argued that it complied with the procedure laid down in Paragraph 108 (1) of the Insolvency Act. The Supreme Court has submitted an unanswered question as to whether the advance on the costs of the insolvency proceedings lodged in the submission of its other insolvency application, which was not taken into account, can be taken into account (as already paid) when the new insolvency application is lodged. The case was challenged at the Supreme Court on 11 June 2020 and is conducted under the Sen.
Recap the content of the proposal
6. In the above-mentioned situation, the appellant makes an application for annulment of Paragraph 108 (1) of the Insolvency Act because it considers that it is contrary to the constitutional order of the Czech Republic, namely Article 36 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter).
7. The appellant first cites from his case law (cf. Resolution of 28 February 2018 sen. zn. 29 of the NCČR 172 / 2017) on the nature of the advance on the costs of insolvency proceedings, which, however, concerned § 108 (1) of the Insolvency Act in its version effective until 30 June 2017. One of the reasons for that resolution is that the advance on the costs of the proceedings is neither a legal fee nor a guarantee (bail), which should serve to satisfy, where appropriate, the damage or other damage caused to the insolvency debtor (where applicable, other persons) by an unreasonably initiated insolvency proceedings and measures taken in its course. This nature of the institution excludes, outside the statutory exclusions provided for in § 108 (1) of the Insolvency Act, the decision to grant an exemption from payment of the advance on the costs of insolvency proceedings, using the appropriate application of § 138 of the Civil Code (hereinafter referred to as "o.s. ') on exemption from and / or to waive its enforcement by means of one of the provisions of the Insolvency Act or of the Civil Code governing the" guarantee'.
8. The appellant further submits that Paragraph 108 (1) of the Insolvency Act, as amended, was inserted into the Insolvency Act by an amendment implemented by Act No. 64 / 2017 Coll., amending Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (Insolvency Act), as amended, and certain other laws ("Act No. 64 / 2017 Coll. '), from which the explanatory report highlights passages relating to the institution of the deposit. According to the explanatory memorandum, the advance on the costs of insolvency proceedings is intended to serve as an element (preventive) capable of preventing the abuse of insolvency proceedings as a means of competition. The financial burden of opening insolvency proceedings, combined with the prospect of measuring a cash penalty for a manifestly unfounded insolvency proposal (cf. Section 128a (3) of the insolvency law), is designed to discourage creditors who use insolvency proceedings as a form of pressure on the debtor or as a means of competitive combat. The seriousness of the creditor's intention in relation to insolvency proceedings is to be tested through the requirement for the deposit to be lodged, which is graduated according to the nature of the claim applied. Failure to pay the advance should raise doubts in the insolvency court as to the reasons for the insolvency application.
9. It is therefore stated from the explanatory memorandum from which the appellant quotes in detail that the regulation introduced by Law No 64 / 2017 Coll. to § 108 (1) of the Insolvency Act deviates from the nature of the institution's advance on the costs of insolvency proceedings as described in the abovementioned resolution. EN 172 / 2017. According to the legislature, it is not about securing funds for the further operation of insolvency proceedings, but about discouraging creditors who use insolvency proceedings as a form of pressure on the debtor, and about testing the seriousness of the creditor's intention in relation to insolvency proceedings. With the exception of those creditors who are excluded from the obligation to pay the advance pursuant to the second sentence of Article 108 (1), Article 368 (2) and Article 380 (2) of the Insolvency Act, the obligation to pay this "quasi-advance" is unexceptional, that is to say, without taking into account whether the advance is necessary for the further operation of the insolvency proceedings, without taking into account the quality of the creditor's claim, the actions which the creditor has taken to recover the claim in the execution proceedings, and without taking into account its property ratios which may make it objectively impossible.
10. Doubt as to the veracity of the creditor's insolvency proposal and the resulting consequences (rejection of the insolvency proposal for unfounded reasons pursuant to § 128a (2) (b) or the threat of the imposition of a fine of up to CZK 500 000 under § 128a (3) of the insolvency law) constitutes the non-payment of a "quasi-advance" even if the creditor submits an insolvency application for a claim which has been granted by a final decision of the court, the successful recovery of which, in the absence of the debtor's assets, prevents the earlier execution procedure. Even where the debtor's bankruptcy is detected by a rebuttable presumption of bankruptcy under Paragraph 3 (2) (c) of the insolvency law, the creditor who is unable to pay an advance on the costs of insolvency proceedings is not entitled to access the court under the law. According to the appellant, the right of access to a court pursuant to Article 36 (1) of the Charter is thus denied. An attempt to file a bullying proposal cannot then be imported out of the mere inability to pay the advance.
11. If the legislation already in question is to protect the debtor against bullying creditor proposals, the applicant does not consider that the distinction between the debtors, on the one hand, on the one hand, a legal person, on the other hand an entrepreneur - a natural person or a legal person who is not an entrepreneur, is constitutionally justified. The division into these two groups is decisive for determining the amount of the advance (CZK 50,000 and CZK 10,000), but the assertion from the explanatory statement that the amount of the advance is "graduated according to the nature of the claim applied" does not support the text of the insolvency law. The amount of the advance on the frequency of the occurrence of bullying creditor insolvency proposals is also not further substantiated in the explanatory memorandum (e.g. by specific statistics). Moreover, according to the appellant, the criterion is questionable, since it is not clear why the protection of which debtor should be less protected from a bullying insolvency proposal simply because he belongs to a group of people who are bullied less often. In that the criterion for determining the amount of the advance depends on whether the debtor is in business and whether he is a legal person, the applicant finds that the principle of equality, which is generally referred to in the first sentence of Article 1 of the Charter and in the level of equality of the parties before the courts of Article 37 (3) of the Charter, is inconsistent with the principle of equality. The appellant then sees a discrepancy with Article 26 (1) of the Charter as the right of each debtor to do business in both cases has a different content depending on whether the insolvency law regime is to be subject to the debtor who does business as a legal person or the debtor who does business as a natural person.
12. According to the appellant, the exemption from the obligation to pay the advance provided for in Paragraph 108 (1) of the Insolvency Act for the benefit of employees (or former employees) of the debtor is justified also from the point of view of the Constitutional Court [cf. the finding of 25.6.2002 sp. zn. the decisions of the Constitutional Court are available at https: / / nalus.ujud.cz] by increasing the protection of their wage entitlements. However, in the case of an insolvency practitioner, which is a consumer whose claim consists of a claim arising from a consumer contract, it is not consistent with the intention of the legislator to remove creditors who use insolvency proceedings as a form of pressure on the debtor, possibly as a means of competitive struggle, or to test the seriousness of the creditor's intention in relation to insolvency proceedings.
Text of the contested provision
13. Paragraph 108 (1) of the Insolvency Act reads: "If a creditor's insolvency proposal is filed against a legal person who is an entrepreneur, the applicant is obliged to deposit an advance on the costs of insolvency proceedings of CZK 50 000, and if the insolvency proposal of the creditor is lodged against a legal person who is not an entrepreneur or against a natural person, an advance on the costs of insolvency proceedings of CZK 10 000; the deposit is due together with the insolvency proposal. This shall not apply if the insolvency practitioner is the employee or former employee of the debtor whose claim consists solely of employment claims, if the insolvency practitioner is a consumer whose claim consists of a claim arising from a consumer contract, and in the cases referred to in Article 107 (1). ';
Recital of the observations of the tenderer, the intervener and the reply of the applicant
14. Pursuant to Articles 42 (4) and 69 (1) of the Law on the Constitutional Court, the Constitutional Court sent an application for annulment of the contested provision to the Chamber of Deputies and the Senate, as chambers acting on behalf of a party, and to the Government and the Ombudsman, who are entitled to intervene as interveners.
Observation of the party and the intervener
15. The Chamber of Deputies, in its observations of 2 December 2020, limited itself only to a description of the course of the legislative process which led to the adoption of Act No. 64 / 2017 Coll., which includes a provision which is proposed for annulment. In order to do this, it states that the law was passed by the necessary majority of Members of the Chamber of Deputies, signed by the relevant constitutional authorities and duly declared. It leaves it to the Constitutional Court to examine its constitutionality and, where appropriate, to decide on its annulment.
16. In its observations of 24 November 2020, following a brief recap of the content of the proposal, the Senate is also concerned only with a description of the progress of the legislative process, with the fact that the draft Act No. 64 / 2017 Coll., which introduced the contested provision into the insolvency law, was adopted by the Senate within the limits of the Constitution of the established competence and the constitutional procedure. It also leaves the Constitutional Court to examine the constitutionality of the contested provision.
17. The Government has decided to intervene before the Constitutional Court, proposing the rejection of the application. First, it deals with the legislative history and grounds for introducing the contested legislation. First of all, one of the reasons for its introduction was the lack of protection of debtors against "bullying insolvency proposals." According to the Government, the amendment of Paragraph 108 (1) of the Insolvency Act pursues three main objectives: 1. the provision of funds for the conduct of insolvency proceedings, in particular where there are no funds, in substance, under the current investigation; 2. the protection of the debtor's rights against creditors seeking to misuse the purpose of insolvency proceedings in order to create pressure on the debtor or intervene in his reputation; 3. testing the seriousness of the creditor's intention to conduct insolvency proceedings.
18. The Government then refers to the applicant's specific objections. As regards the objection that the institution of the advance payment under Paragraph 108 (1) of the Insolvency Act distorts the right of access to the court, the Government states that this means that a legitimate objective is pursued, namely the protection of the debtor, which can be classified under the public interest. The Institute of Advance is not a new institution since it has existed since the effectiveness of Act No. 94 / 1996 Coll., amending and supplementing Act No. 328 / 1991 Coll., on bankruptcy and settlement, as amended, and Act No. 40 / 1964 Coll., on Commercial Business (Trade Act), as amended, Act No. 513 / 1991 Coll., Commercial Code, as amended, and Act No. 40 / 1964 Coll., Civil Code, as amended, and was also assessed in the context of judicial review (cf. Opinion of the Supreme Court of 17.6.1998 sp. The explanatory memorandum to Act No. 64 / 2017 Coll. then follows the case-law and previous legislation of the Institute of Advance, highlighting the three above mentioned objectives. It also points out that the publication of information on insolvency proceedings against the debtor interferes with the reputation of the debtor and may potentially cause him harm (either due to a decrease in turnover or loss of competitiveness). The advance is also used to ensure the functioning of the courts by enabling the insolvency administrator to perform his duties from the outset, while at the same time protecting the judiciary from overloading unfounded insolvency proposals. The Government does not agree with the appellant's objection that the advance deviates from the nature of the advance on the costs of insolvency proceedings pursuant to § 108 (2) of the Insolvency Act, as amended by Act No. 64 / 2017 Coll. According to the Government, both the advances (i.e. both the advance under § 108 (1) and the advance under § 108 (2) of the Insolvency Act) pursue the same objectives and differ only in implementation. This can also be done through a systematic interpretation (cf. Classification under the provision entitled "Advances on the costs of insolvency proceedings") or by applying the same rules on the financing of the activities of the insolvency administrator (cf. § 38 of the insolvency law) to the decision on the repayment of the advance (cf. § 146 (3) of the insolvency law, as amended by Act No. 334 / 2012 Coll.) or the application of compensation for it as a claim for property (cf. § 108 (5) of the insolvency law and § 168 (3) of the insolvency law).
19. The Government is also concerned with the question of whether there is an appropriate balance between the advance institution under Paragraph 108 (1) of the Insolvency Act and the objectives pursued. In view of the objectives pursued, the manner in which they are implemented and the mitigating institutes of the insolvency law (e.g. exemptions from the obligation to deposit advances for certain groups of persons; the obligation to deposit an advance shall be imposed on only one creditor; the other creditors shall be exempt from that obligation; the priority status of the claim for reimbursement of the advance) is considered appropriate by the Government of the Institute. The legislation seeks to strike a fair balance between the objectives pursued and the interests of creditors. A similar design is also used to adjust the security in the case of interim measures, the constitutional consistency of which has been confirmed by the Constitutional Court (cf. Order of 16.5.2006 sp. zn. Pl. ÚS 46 / 05).
20. The Government also addresses the question of whether the Institute of Advance Intervenes in the substance of the right of access to the Court. According to the Government of the Institute, the advance does not undermine the substance of the right of access to the court pursuant to Article 36 (1) of the Charter. It complies with the requirement of predictability as it sets out a specific amount of the advance, defines the entities which are obliged to lodge it, and the legal arrangements guarantee judicial protection to the insolvency practitioner to an appropriate extent, taking into account the status of the debtor and the protection of his rights. The insolvency practitioner is only involved in the method of financing after the debtor, while other provisions of the insolvency law mitigate the risk that part of the advance will not be returned to the claimant. The method of financing the activities of the insolvency administrator through an advance on the costs of the insolvency proceedings has been assessed by the caselaw as constitutionally consistent (cf. the finding of the Constitutional Court sp. zn. Pl. ÚS 36 / 01). The Government adds that, if the insolvency practitioner has raised its proposal to initiate insolvency proceedings, it must also bear the risk of paying part of the newly incurred costs of the insolvency practitioner if the debtor's assets do not cover them. However, if the Constitutional Court considered that, under certain circumstances, Paragraph 108 (1) of the Insolvency Act could constitute an inexcusable obstacle to access to the Court, it would be necessary, according to the Government, to consider a constitutional conformal interpretation according to which, with reference to § 7 of the Insolvency Act, as amended by Act No 294 / 2013 Coll., a reasonable consideration of the Court under § 75b (3) (d) (d) (c) (c) and § 138 (s) (d) (d) (d) (c) (d) (d) (d) (d) (c) (d) (c) (i) (i) (i) (i) (i) (i) (i) (i) (i) (i) (i) (ii) (i) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii Since the new regulation does not leave the decision to impose an advance on the court but imposes this obligation directly by law, the abovementioned relief institutes could apply mutatis mutandis.
21. If the appellant objected to the unconstitutionality of the escalation of the amount of the advance according to the debtor's person (business versus non-business entities) and its forgiveness for certain groups of creditors in terms of general equality and equality before the courts, the Government points out that the criteria used to differentiate between groups are common in law and the legislator has wide discretion in applying them. The determination of the advance on a number of different amounts by group of persons is based on objective and rational criteria [cf. the findings of the Constitutional Court of 7.6.1995 sp. zn. Pl. ÚS 4 / 95 (N 29 / 3 SbNU 209; 168 / 1995 Sb.), of 21.1.2003 sp. zn. Pl. ÚS 15 / 02 (N 11 / 29 SbNU 79; 40 / 2003 Sb.) or of 15.3.2016 sp. zn. Pl. ÚS 30 / 15 (N 42 / 80 SbNU 517; 239 / 2016 Sb.), paragraph 25], which are based on the experience of abusive insolvency proposals. For the same reasons, the exclusion of certain groups of persons from the obligation to pay an advance cannot be regarded as discriminatory (cf. The test of constitutionality has also been followed by a different level of security (cf. § 75b (1) o. s. o.) in the case of a proposal for a preliminary measure regulation (e.g. resolution sp. zl. ÚS 46 / 05). The reason for the difference in the amount of the advance for the legal entities involved was the assumption that there are more people here for business purposes, resulting in often higher capital.
22. Finally, the Government does not agree with the appellant's claim that the determination of a different amount of advance according to the debtor's person (the individual undertaking versus the legal person undertaking) is contrary to the right to do business. The different amount of the advance shall be determined on the basis of reasonable considerations based in particular on the nature of the differences between the natural and legal persons involved and the experience of abuse of insolvency proposals. A higher advance on legal entities monitors the provision of material equality. The Government notes that the insolvency law contains, in addition to the advance provided for in Paragraph 108 (1) of the Insolvency Act, a number of other instruments to protect debtors from undue insolvency proposals (e.g. the failure to publish the insolvency proposal in the Insolvency Register for reasons of doubt (see Section 100a of the Insolvency Act) or the rejection of the insolvency proposal for obvious inadequacy (see Section 128a (2) of the Insolvency Act) and the associated possibility of imposing a fine).
23. The Government concludes that, in its view, the contested legislation has achieved both a legitimate objective and a reasonable balance between the regulation and the objectives pursued. The two objectives declared above (ensuring the functioning of insolvency justice and protecting debtors' rights against bullying proposals) are legitimate, as confirmed by the case law of both the Constitutional Court and the European Court of Human Rights. This institute should also be considered appropriate as it meets the objectives pursued more effectively than other instruments. The intervention in the creditors' rights is then mitigated by the interpretation of eligible exceptions as well as other mitigation institutes.
24. The Ombudsman stated that, pursuant to Paragraph 69 (3) of the Constitutional Court Act, she did not intervene in the proceedings.
Replication of the applicant
25. The Constitutional Court sent the observations of the parties and the intervener to the applicant for a reply. The appellant limited his reply only to the Government's comments, since both the Chamber of Deputies and the Senate were devoted only to the legislative process, but the appellant did not question it. As regards the objectives pursued, the appellant disagrees, in particular, with the Government's assertion that the contested scheme monitors the provision of funds in the absence of assets. This objective is fully met by § 108 (2) and (3) of the Insolvency Act, as amended by Act No. 64 / 2017 Coll., or previously by § 108 (1) and (2) of the Insolvency Act as effective until 30 June 2017. The advance on the costs of insolvency proceedings under Section 108 (1) of the Insolvency Act may not be used to cover a claim under a fine imposed on an insolvent creditor under Section 128a (3) of the Insolvency Act. The appellant therefore considers that only the protection of the debtor's rights and a test of the seriousness of the creditor's intention can be regarded as genuine legitimate objectives. The Government admits that the obligation to pay an advance may mean an insurmountable barrier to access to the court for some creditors, but the intensity of such intervention is mitigated by some of the institutions contained in the insolvency law (e.g. the definition of groups of persons who need not make an advance; the obligation is imposed only on one of the creditors; the principle that it is the debtor who has to put on the insolvency proposal). The appellant disputes these mitigation institutes, pointing out that they are missing with the purpose and purpose of the advance.
26. The appellant's objection to the breach of the right of access to the court was challenged by the Government in its observations by the predictability of the legislation, which the appellant does not dispute, and by the need to cover the costs of the insolvency administrator, which according to the appellant is sufficiently addressed in § 108 (2) and (3) of the Insolvency Act, as amended by Act No 64 / 2017 Coll. If the Government referred to the constitutionally conformal interpretation of § 108 (1) of the Insolvency Act in the form of an adequate application of § 75b (3) (d) or § 138 (s), the appellant does not share this possibility of resolving problems arising from the application of § 108 (1) of the Insolvency Act. First, the Institute of Security according to § 75b o.s. CS serves other purposes (covering damage or other damage caused by the interim measures). If the legislature intended to use the insolvency guarantee institution, it did so explicitly [cf. paragraphs 82 (2) (c), 4, 182a and 202 (3) to 6 of the insolvency law]. Paragraph 182a of the Insolvency Act also deals with the certainty of the costs of insolvency proceedings. The appropriate application of § 138 o. s. is not appropriate because the court fee is of the nature of the tax and the consideration of its appropriate use would have to be preceded by a test of the assessment of the principles underlying insolvency proceedings (§ 7 of the Insolvency Act, as amended by Act No 294 / 2013 Coll.). Finally, the appellant points out that the same amount of the advance devalues one of the objectives of the adjustment (protection of the debtor's rights against creditors seeking to misuse the purpose of insolvency proceedings) and does not refute the reservation of unequal protection of debtors against possible bullying.
Abandonment of oral proceedings
27. 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
28. 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 substantive assessment of such a proposal shall be subject to compliance with the text of Article 95 (2). The Constitution, in the sense that it must be the law to be applied in the resolution of the case, i.e. the law or its provisions proposed for annulment, is to be applied directly by the appellant in the resolution of a particular dispute.
29. The Constitutional Court found this condition fulfilled when the issue pending before the General Court, including the Supreme Court, is the rejection of the insolvency application by the insolvency practitioner under § 128a (1) of the Insolvency Act for obvious unfounded reasons, due to the failure to deposit an advance under § 108 (1) of the same law on the costs of insolvency proceedings of CZK 50 000.
Constitutional conformity of the legislative process of adopting the contested provision
30. The Constitutional Court is obliged, in accordance with § 68 (2) of the Law 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 constitutionally prescribed manner.
31. In view of the fact that the appellant did not object to either the fault of the legislative process or the breach of the legislature's statutory competence, it is not necessary to examine this issue further and sufficient, in view of the principles of the procedural economy, in addition to taking into account the observations submitted by the Chamber of Deputies and the Senate, to verify the progress of the legislative process from a publicly available source at http: / / www.pspp.cz or http: / / www.senat.cz.
32. Bill No. 64 / 2017 Coll. was approved at the third reading on 9 December 2016 at the 53rd session of the Chamber of Deputies by a majority of 118 votes (vote No 375, resolution No 1482). On 20 December 2016, the Chamber of Deputies passed the Senate Bill as print 30. In the Senate, the proposal was discussed at the 4th meeting on 19 January 2017 and the Senate approved the proposal as referred to by the Chamber of Deputies (Resolution No 87). The Act was delivered to the President of the Republic for signature on 31 January 2017 and signed on 31 January 2017. The Act was published on 3 March 2017 in the Collection of Laws in the amount of 21 under the number 64 / 2017 Coll.
Self-assessment of the proposal
General considerations for the assessment of the proposal
33. The appellant seeks the annulment of Paragraph 108 (1) of the Insolvency Act, and its main objection is that the contested provision precludes access to the court (Article 36 (1) of the Charter) and violates the principle of equality between parties (Article 37 (3) of the Charter). Finally, there is also a contradiction with Article 26 (1) of the Charter, which lays down, inter alia, the right to do business.
34. The Constitutional Court states that a fundamental part of the right of an individual to judicial protection is the right of access to a court, guaranteed by both Article 36 (1) of the Charter and Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '). However, the right of access to a court is not absolute and is subject to certain restrictions which are incorporated into procedural rules in order to ensure the effectiveness of proceedings; However, none of these (legitimate) restrictions must be disproportionate and must not distort the substance of the protected fundamental right (see the judgment of the European Court of Human Rights of 23 June 2016 in Baka v Hungary (No 20261 / 12, § 120); the decisions of the European Court of Human Rights are available at https: / / hudoc.echr.coe.int]. From the point of view of the protection of fundamental rights and freedoms, it is therefore necessary that the individual conditions under which judicial protection can be sought should pursue a legitimate objective and be proportionate to that objective [cf. point 27 of the Opinion of 28 November 2017 in plenary, p.
35. Right of access to court (judicial protection) pursuant to Article 36 (1) The Charter guarantees everyone that they can claim their right in court under the "procedure ', the" conditions and details being governed by the law' (see Article 36 (4) of the Charter). The legislator is limited in its competence, inter alia, in that the "implementing 'adopted by it must not be denied the substance and meaning of the fundamental right in question (Article 4 (4) of the Charter). This means that judicial or other legal protection must be" achievable "in reality and, in its outcome, sufficiently effective, which in the end also means that the level of such protection should be adequate in relation to the position that the person concerned has in the relevant legal relationship [paragraph 49 of the decision of 2 July 2019 sp. zn. The procedural rules implementing the provisions of the Charter in question must then be interpreted and applied by the General Courts and the Constitutional Court in such a way that the parties are not unduly treated, i.e. beyond the meaning and purpose of the rules applicable, the requirements, and this does not effectively preclude the exercise of the right of judicial protection (point 27 of the judgment of 16 June 2020, sp. zn. IV, ÚS 410 / 20).
36. Article 37 (3) of the Charter reads: "All parties are equal in the proceedings." The Constitutional Court has repeatedly held in its caselaw that the principle of equality between the parties is part of the right to a fair trial in the wider sense. The principle of equality of participants is understood by the Constitutional Court as meaning "equality of arms, virtually equality of opportunity '[cf. the finding of 31.10.2001 sp. zn. ÚS 15 / 01 (N 164 / 24 CollNU 201; 424 / 2001 Coll.]]. This means that each procedural party should be given a reasonable opportunity to present its case under conditions which do not put it in a substantially less favourable situation than that in which its counterparty is [the finding of 13.11.2003 sp. zn. III. ÚS 202 / 03 (N 134 / 31 SbNU 193)]. Article 6 (1) of the Convention, which deals with a similar issue of the right to a fair trial, does not explicitly mention the equality of the parties to the proceedings, but the European Court of Human Rights stated in its case-law that the principle of equality of" arms' is part of the right to a fair hearing (cf. Kmek, J., Košák, D., Kratochčul, J., Bobek, M. European Convention on Human Rights. Comment. Praha: C. H. Beck, 2012, p. 737-740; and Molek, P. Right to a fair trial. Praha: Wolters Kluwer, 2012, p. 236-253).
37. The principle of the equality of participants is not absolute either, according to the Constitutional Court. Procedural equality cannot be interpreted in such a way that the legislator could not determine the different scope of procedural rights and obligations for different types of proceedings. However, it must respect the same scope of procedural rights and obligations in the same proceedings [cf. ÚS 657 / 05 (N 146 / 50 SbNU 291) or of 19.1.2010 sp. zn. ÚS 16 / 09 (N 8 / 56 SbNU 69; 48 / 2010 Coll.]. The Constitutional Court is also aware that absolute equality of the parties in the wider sense cannot even be achieved. Thus, some of the acts of the applicant having the subject-matter of the civil dispute proceedings, such as the withdrawal of the action, cannot be taken by the defendant out of the nature of the case. On the contrary, the court fee must be paid in principle only by the claimant and not by the defendant (the generalities of this rule do not change the exceptions set out in Section 2 (3) of Act No 549 / 1991 Coll., on judicial fees, as amended, which are very closely formulated).
38. The Constitutional Court, in its decision of 28 January 2014, sp. zn. 2. Are they treated differently? 3. Is the difference in treatment of the party concerned liable (by imposing a burden or by denying good)? 4. Is this different treatment justified, i.e. (a) is pursuing a legitimate interest and (b) is appropriate?
39. It can be summarised that neither the Constitutional Court nor the European Court of Human Rights require absolute equality between the parties. That right is therefore limited, since the different treatment of the parties is, in certain circumstances, constitutional in conformity with the Convention.
40. The appellant also objected to the contested § 108 (1) of the Insolvency Act with Article 26 (1) of the Charter, guaranteeing, in addition to the freedom to choose the profession, the right to engage in other economic activities, which is mainly aimed at the appellant's complaints. Article 26 (2) The Charter expressly allows the possibility of setting conditions and restrictions for the pursuit of certain professions or activities by law, without expressly restricting the reasons for which it may be so. However, the limit of respect for the democratic will of the legislator is laid down in Article 4 (4) of the Charter, according to which when applying the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be investigated. The right to undertake and operate an economic activity is enshrined as a separate fundamental right. Therefore, the right to pursue a self-employed activity is hereby protected, and this right can only be restricted by law, and such restriction must be proportionate and conserve the substance and purpose of this fundamental right. Article 26 of the Charter, in addition to specific public subjective rights to the State, also provides for an objective constitutional principle requiring the protection of free enterprise.
41. Space for legal restrictions by a democratic political decision of the legislator under Article 26 (2) However, the Charter is quite wide. The Constitutional Court explicitly recognises the legislature's wide discretion over the limits of the right to conduct business [cf. sp. zn. Pl. ÚS 39 / 01 of 30.10.2002 (N 135 / 28 SbNU 153; 499 / 2002 Coll.)]. In the finding of sp. zn. Pl. ÚS 83 / 06 of 12.3.2008 [(N 55 / 48 SbNU 629; 116 2008 Coll.), the Labour Code] developed this argument by "dealing only with the constitutional aspects of the contested provisions and does not express their suitability and effectiveness, for example in terms of the existence of a free market and so on; it is not called upon to assess the economic aspects of the necessity and necessity of, for example, the various business adjustments due to the need to safeguard individual, often side by side or even against (alleged) public interests. The choice of restrictive control instruments and their level of application are primarily the responsibility of the legislator. Only Parliament, as a representative body, can take such action in our constitutional system. His responsibility for identifying problems that require regulation, the choice of instruments and their effects, which may sometimes be negative, is primarily political; In this case, the Constitutional Court can only intervene in its legislative activities if it finds it unconstitutional... The so-called" Rational Basis test ', which is a cursory verification of whether the measures in place can lead to the objective pursued, will suffice to assess the legislation.'
The introduction of general considerations on the matter now under consideration
42. The Constitutional Court has applied the above-mentioned bases to the present case and has concluded that the application for annulment of Paragraph 108 (1) of the Insolvency Act, which provides for the obligation of the creditor to pay an advance on the costs of insolvency proceedings, is not justified. The Constitutional Court carried out the above mentioned testing of the contested provision, in which it focused mainly on the proportionality, legitimacy and rationality of that provision.
Assessment of Article 108 (1) of the Insolvency Act from the point of view of the right of access to court pursuant to Article 36 (1) of the Charter and the equality of parties pursuant to Article 37 (3) of the Charter
43. The obligation to pay an advance on the costs of insolvency proceedings may be included in the "procedure laid down," as referred to in Article 36 (1) of the Charter, the regulation of which falls within the meaning of Article 36 (4) of the Charter by the legislator. However, it is clear that, both from the point of view of the right of access to the court and from the point of view of the right to equal treatment, Paragraph 108 (1) of the Insolvency Act shows the characteristics that can disqualify it in certain circumstances in the level of constitutional law in the testing carried out. Indeed, the obligation to pay the advance on the costs of insolvency proceedings undoubtedly limits access to the court (Article 36 (1) of the Charter), in addition to creating inequality within one group of persons - insolvency practitioners from creditors (Article 37 (3) of the Charter), which is treated differently (various amounts of the advance provided for, and certain groups of persons are exempt from payment thereof), and is liable to [failure to pay the advance immediately upon submission of the insolvency proceedings]. Therefore, it remains to be assessed whether that legislation is justified, namely whether it pursues a legitimate objective (purpose, interest) and is proportionate to that objective (purpose, interest).
44. Thus, the Constitutional Court was primarily concerned with whether the obligation to pay the advance on the costs of insolvency proceedings fulfilled a legitimate objective. It is clear that the legislator's efforts, as pointed out by the appellant and also from the explanatory memorandum to draft Act No. 64 / 2017 Coll., were to significantly strengthen the protective elements preventing the submission of so-called bullying creditor insolvency proposals, which are intended in particular to harm other competitors' reputation, credibility, the possibility of applying for public contracts or obtaining credit, etc., which, on the contrary, may lead to a competitive advantage on the part of the insolvency promoter. The incentive of the insolvency practitioner to submit an insolvency proposal for which a possible bullying intention is hidden can also be the creation of a pressure on the debtor to settle the contested claim, an attempt to circumvent the contested finding of proceedings (lower costs of insolvency proceedings) or to thwart a transaction negotiated by the debtor [cf. § 109 (1) (b) of the insolvency law]. Nor can it be overlooked that the opening of insolvency proceedings itself limits the debtor's right of disposal with his property (cf. § 111 of the insolvency law, as amended by Act No. 294 / 2013 Coll.). The mere information about the opening of insolvency proceedings is then viewed very negatively by business partners, banks or other stakeholders.
45. Therefore, the submission of a bullying insolvency proposal can and usually also cause serious problems for the debtor - especially for the entrepreneur - as the insolvency plan and information on the opening of insolvency proceedings are immediately available to the general public through the insolvency register as an information system for the public administration where the insolvency proceedings are recorded. While the so-called up-to-date extract of a public register only captures the data entered there on the date on which the extract is made, the so-called full extract captures not only the current data of the registered entity, but also all data ever entered and subsequently deleted. Therefore, the legal person does not have the possibility to obtain the deletion of information on insolvency proceedings, even if it is initiated by a bullying insolvency proposal, from the history of the entries from the register (e.g. resolution of the Supreme Court of 23 January 2008 sp. zn. 29 Odo 625 / 2006).
46. The analysis of the Ministry of Justice showed that the number of clearly unfounded proposals to initiate insolvency proceedings was around 120 in 2010. Following the adoption of the so-called anti-bullying amendment of Act No. 334 / 2012 Coll., amending Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended, and Act No. 99 / 1963 Coll., Civil Code, as amended, it was established in the framework of the analysis prepared by the Working Group at the Ministry of Justice that during the calendar year between 12 and 15 bullying proposals were submitted (Mgr. Stanislav, A., Ph. D. The problem of bullying insolvency proposals, in: Private Law, Wolters Kluwer, No. 7 / 2018, p. 4, or mentioned analysis, the conclusions of which were published in: Smrček, L., Špička, J. Insolvenka, J. Insolvence 2015: Grey zones and failure in insolvency practice. University of Economics in Prague, Publishing Oeconomica, 2015). That number, even knowing that not every creditor proposal that has been rejected for obvious unfounded reasons under § 128a of the insolvency law, for example, because of the incapacity to pay an advance, must necessarily be bullying, does not appear to be high, but still has the potential to intervene in competition, especially if it concerns large corporations. This can only be illustrated by the case where information on the opening of insolvency proceedings has been published in the insolvency register for one of the largest commercial insurance companies, which then had to deal with a significant reputational impact, and the insolvency practitioner was the dissatisfied recipient of the pension in the order of several thousand crowns a month.
47. Although a person who has suffered damage or other damage from the initiation of insolvency proceedings and measures taken in the course of insolvency proceedings and who has been subject to insolvency proceedings rejected by the insolvency practitioner's guilt, has the right to compensation [e.g. adequate satisfaction for the non-property damage caused by interference with her reputation, which can also be provided in cash (cf. § 147 (1) of the Insolvency Act, as amended by Act No. 334 / 2012 Coll.)], this possibility does not appear sufficient from the perspective of the Constitutional Court. Satisfaction is to be proportionate to the extent of the damage caused by the non-property damage and all the circumstances of the case must be taken into account, which makes it difficult to define firm criteria for determining the amount of reasonable satisfaction. The circumstances to be taken into account in determining the level of satisfaction may include, in particular, the market position of the entity concerned (its importance, the number of employees), the meditation of insolvency proceedings, the behaviour of the insolvency practitioner in insolvency proceedings (the submission of appeals). In particular, in the case of "planted 'insolvency practitioners, recovery of damages will be highly problematic.
48. Similarly, the possibility of imposing a fine on the insolvency practitioner in the event of a rejection of the insolvency proposal for obvious unjustifiability of up to CZK 500,000 (up to now acceptable CZK 50,000) does not appear to be entirely adequate in a situation where there is irreversible damage to the reputation and disruption of business relations. Neither the right to adequate satisfaction nor the possibility of imposing a fine has a preventive effect which could discourage creditors from making bullying proposals. The Constitutional Court is aware that even the advance on the costs of insolvency proceedings set by the legislator of CZK 10 000 or CZK 50 000 will not often be able to compensate for the damage suffered, but from the point of view of preventive action it has its undeniable significance.
49. The legislation contained in the Insolvency Act provided protection against bullying insolvency proposals before the amendment of Act No. 64 / 2017 Coll. In the insolvency law these elements were enshrined in Act No. 334 / 2012 Coll. In particular, it introduced the possibility to reject a proposal for obvious unfounded (§ 128a of the Insolvency Act), to impose a penalty for the submission of a manifestly unfounded proposal (§ 128a (3) of the Insolvency Act), to provide for an obligation to lodge a security for damages or other damage resulting from the unfounded initiation of insolvency proceedings [§ 82 (2) (c) of the Insolvency Act], or to eliminate any of the effects associated with the initiation of insolvency proceedings referred to in § 109 (1) (b) and (c) of the Insolvency Act, if they do not oppose the joint interest of creditors [§ 82 (2) (b) of the Insolvency Act].
50. However beneficial these instruments were not clearly able to avoid the negative effects that occurred after the opening of insolvency proceedings or after publication of the order in the insolvency register. According to the explanatory memorandum of practice, it has shown that even if the insolvency proposal is rejected or rejected within 10 days, it is sufficient (as a result of the discrediting of the alleged debtor in the eyes of the commercial or contractual partners) to put a properly functioning company into bankruptcy.
51. As regards the advance on the costs of insolvency proceedings, the insolvency law knew this institute even before its amendment by Act No. 64 / 2017 Coll. However, it was an optional institute and the deposit of the advance depended on the court's reasoning. However, this possibility was used on a flat-rate basis by insolvency courts, often up to CZK 50,000. However, the disadvantage was that the insolvency practitioner could have achieved his bullying intention even by filing the insolvency application and failing to fulfil any obligation to deposit the advance. Therefore, even if the insolvency court stopped the proceedings, the insolvency creditor could have complicated the situation for the debtor. The advance on the costs of insolvency proceedings is thus another safeguard element intended to prevent insolvency proposals which may not be clearly justified.
52. In its observations, the Government compared the Institute's advances to judicial fees. This is different from the rapporteur for the enforcement of the conclusions expressed in the resolution. Ref. 29 of the NSČR 172 / 2017, according to which the advance is neither a legal fee, nor a guarantee, which should be used to compensate for any damage or other damage. The legislature may be accused of being inept at the term "advance" when another designation (e.g. certainty) was offered, but it is not yet possible to import an illegality from the mere insuitability of the designation. However, although the advance on the costs of the insolvency proceedings cannot be entirely attributed to the legal fee (see above for differences), it cannot be overlooked that the application for the opening of insolvency proceedings is not linked to the payment of the legal fees. The advance can therefore also be regarded as a "hidden 'form of the judicial fee (even if it is subject to a possible repayment) in some sense. Although the advance on the costs of insolvency proceedings is of a different nature than, for example, the judicial fee or the security on the costs of interim measures, the Constitutional Court (contrary to the view of the Supreme Court expressed in the resolution of the Court of First Instance in Decree 172 / 2017) does not consider that it would be completely impossible to use the institutions which mitigate the effects of obstacles to access to the court (e.g. in the form of exemption from the obligation to pay the judicial fee or lodge a guarantee) contained in the civil court order. The Constitutional Court leads to that conclusion, on the one hand, the subsidiary application of the Civil Code enshrined in Section 7 of the Insolvency Act, as amended by Act No 294 / 2013 Coll., and, on the other hand, the introduction of an optional possibility of deposit in other cases, provided for in Section 108 (2) of the Insolvency Act, as amended by Act No 64 / 2017 Coll. According to Section 7 of the Insolvency Act, as amended by Act No. 294 / 2013 Coll., the provisions of the Civil Code relating to the contested procedure shall apply mutatis mutandis to insolvency proceedings and to incident disputes, unless otherwise provided for by that Act or unless such a procedure is contrary to the principles on which insolvency proceedings are based. The exemption from payment of the advance would undoubtedly constitute a benefit for the party (insolvency practitioner) who, from the point of view of constitutional law, stands. However, the Constitutional Court does not consider that the use of this institute on the basis of a simple analogy with § 138 CS would be appropriate, unless duly substantiated reasons are given in a very exceptional case to mitigate the impact of the obligation to deposit an advance on the costs of insolvency proceedings. Otherwise, there could be a conflict with the principles of insolvency proceedings as set out in Section 5 of the insolvency law, i.e. that any participant would be unfairly and illegally disadvantaged or the equality of creditors would be undermined. On the other hand, however, it should be noted that this benefit cannot be claimed in any way.
53. In addition, it can be noted that the advance is different from the court fees, inter alia, by not having the conditions for the use of such advance (e.g. to compensate for damage caused or not to refuse the application for unfounded reasons), the advance will be refunded to the person who lodged it. Thus, the burden associated with this obligation lies mainly in the fact that the party who paid the advance will not be able to dispose of this amount for at least a certain period of time. In this context, it cannot be overlooked that insolvency proceedings are conducted primarily in the interests of creditors seeking to recover their assets. It should then be in their interest that insolvency proceedings be properly conducted. The risk of a possible non-refoulement is a risk that can be eliminated at an acceptable level at appropriate vigilance. Although the institution of the advance payment on the costs of insolvency proceedings has been presented primarily by the legislator as an institution which discourages the submission of bullying proposals, it is impossible to overlook its potential reparation function. If there is any damage to the entity to which the insolvency claim has been made, such damage may also be covered by this advance. However, the deposit will be primarily used for the remuneration and final expenses of the insolvency administrator, so the insolvency practitioners must be more than responsible for submitting insolvency proposals.
54. In the light of the legitimate objectives and the declared purpose of the regulation (provision of funds for the management of insolvency proceedings even if, on the basis of the present investigation, there are essentially no funds; the protection of the debtor's rights against bullying insolvency proposals; to test the seriousness of the creditor's intention to conduct insolvency proceedings), the Institute represents an advance payment on the costs of insolvency proceedings pursuant to Article 108 (1) of the Insolvency Act, even in view of the legislator's determination of the amount (10 000 CZK and 50 000 CZK), from the point of view of the Constitutional Court an acceptable restriction on the right of access to the court under Article 36 (1) of the Charter.
Assessment of the determination of the advance under Article 108 (1) of the Insolvency Act from the point of view of the distinction between entrepreneurs and non-entrepreneurs and from the point of view of the right to do business under Article 26 (1) of the Charter
55. In the next part, the Constitutional Court dealt with the setting of an advance on the costs of insolvency proceedings, depending on whether the debtor is a legal person, or a person not legal or natural. In § 108 (1) of the Insolvency Act, the legislator determined the amount of the advance for the amount of CZK 10 000 if the insolvency application of the creditor was filed against a legal person who is not an entrepreneur or against a natural person and CZK 50 000 if it is filed against a legal person who is an entrepreneur.
56. The appellant sees a contradiction with Article 26 (1) of the Charter in the distinction between an entrepreneur per person legal or natural, since the right of each debtor to do business, in both cases, has different content in the appellant's view depending on whether the insolvency law scheme is to be subject to a debtor who carries on as a legal person or a debtor who carries on as a natural person. From this point of view, it is not clear to the Constitutional Court exactly how the appellant finds infringement of Article 26 (1) of the Charter in the present case, since the creditor, as an insolvency practitioner, is not affected by his right to engage in business. Thus, the appellant probably meant that debtors (legal entities of entrepreneurs) would be more favoured than other debtors (legal persons of non-entrepreneurs and non-business natural persons) by being exposed to less risk of filing an insolvency proposal, as the insolvency practitioner would have to deposit a higher advance on the costs of insolvency proceedings (CZK 50,000 in the case of legal persons of entrepreneurs compared to CZK 10,000 in the case of non-entrepreneurs). However, in view of the reasonable general interpretation of the admissibility of the legal limitation of rights under Article 26 (1) of the Charter, the Constitutional Court also bases itself on a similar scheme used for social law.
57. The Constitutional Court summarised the starting points for the assessment of the issue in the decision of 12 May 2015 sp. zn. Pl. ÚS 55 / 13 (N 93 / 77 CollNU 339; 170 / 2015 Coll.) so that "having regard to the wording of Article 41 (1) The Charter is given more scope to review the constitutionality of the laws containing the regulation of social rights than for the first generation [and also for the rights contained in Titles III and V of the Charter - cf. the finding of sp. zn. Pl. ÚS 8 / 07 of 23.3.2010 (N 61 / 56 of the SbNU 653; 135 / 2010 Coll.), and the establishment of their existence in the Charter means (taking into account Article 4 (4) of the Charter) that a minimum standard (i.e. there is a certain lower limit to the limitation, essential content) of social rights must be maintained when the legislation is adopted '.
58. Otherwise, the specific balance of the liberal and social aspect is laid down in principle by the parliamentary majority [Constitutional Court therefore, in point 45 of the judgment of 24 April 2012 sp. zn. Pl. ÚS 54 / 10 (N 84 / 65 CollNU 121; 186 / 2012 Coll.), stated that "Article 41 (1) of the Charter... states that the Constitution believes that the regulation of social rights is a legitimate subject of political engagement (i.e. it is primarily in the hands of the legislator) and that only secondary and to a limited extent, the constitutional guarantee of social rights can be regarded as a judicial issue '. Deciding on the extent of social rights is one of the major political issues that are primarily the subject of political competition, and in the end, elected representatives in the legislature decide on them. In fact, social rights can be classified as so-called inherently disputed or debatable concepts, the deepest importance of which is being pursued across society by a stormy public debate and political debate. In their review, the Constitutional Court is bound by Article 41 (1) of the Charter and therefore is also more restrained from the democratic majority of the legislator, which should reflect the current will of the company.
59. The Constitutional Court thus applies a strict test of proportionality to the legal limitation of the fundamental right of business, as set out in Article 41 (1) of the Charter. For example, he regarded as an intervention in the minimum standard (essential content) of the fundamental right to engage in business, for example, a de facto withdrawal of the right to engage in business in a conviction as a criminal offence not related to the subject of the business, and therefore carried out a proportionality test for such an intervention, since more serious interference with the right to do business than its de facto withdrawal could hardly be imagined. In the present case, however, there is no such fundamental restriction or even withdrawal of the right to do business. It should be maintained that the legislator has a relatively broad power to establish such conditions and restrictions (cf. the already cited finding sp. zn. Pl. ÚS 39 / 01). However, these conditions and restrictions must not be discriminatory (see Articles 1 and 3 (1) of the Charter). In the light of the proposal, it could appear at first sight that the distinction between business and non-business and legal and natural persons when determining the amount of the advance on costs constitutes discriminatory treatment. However, this view is not shared by the Constitutional Court. The determination of the advance on a number of different amounts by group of persons is based on objective and rational criteria [cf. the findings of the Constitutional Court of 7.6.1995 sp. zn. Pl. ÚS 4 / 95 (N 29 / 3 SbNU 209; 168 / 1995 Sb.), of 21.1.2003 sp. zn. Pl. ÚS 15 / 02 (N 11 / 29 SbNU 79; 40 / 2003 Sb.) or of 15.3.2016 sp. zn. Pl. ÚS 30 / 15 (N 42 / 80 SbNU 517; 239 / 2016 Sb.), paragraph 25], which are based on the experience of abusive insolvency proposals. It is clear, as has already been mentioned above, that the impact of the insolvency proceedings initiated, if the intervention in the reputation and reputation that can be felt by each subjectively completely different, will be different with the entrepreneur and with the non-entrepreneur.
Consideration of § 108 (1) of the Insolvency Act from the point of view of the exemption of certain entities from payment of the advance
60. Finally, the appellant points out that certain groups of creditors (employees and consumers) are excluded from the payment of the advance on the costs of insolvency proceedings. As regards staff, the Constitutional Court has no reason to deviate from the conclusion set out in the above-mentioned finding, sp. zn. Pl. ÚS 36 / 01, according to which the exemption from payment of the advance on the costs of bankruptcy, where the claimant's claim is based on wage claims (with the exception of the senior staff of the debtor and those close to them), follows the purpose pursued by the legislator (the protection of the weaker party) and is not contrary to the constitutional order (in particular Articles 26 (1) and 28 of the Charter).
61. In the case of consumers, the Constitutional Court relies on a similar premise to that of employees, that it is a weaker party that deserves increased protection. If consumer protection is one of the main objectives of Czech legislation (based on European Union rules), the Constitutional Court also has no reservations against the projection of this protection into exemption from payment of the advance on the costs of insolvency proceedings from a constitutional point of view. Of course, the possible abuse of the exemption from the advance payment by consumers, who act as entrepreneurs by coincidence, is not excluded, as the appellant suggests, but is rather speculative. After all, every exception is, in its own way, misused. In view of the wording of Paragraph 108 (1) of the Insolvency Act, according to which the exemption concerns only the consumer whose claim lies in the claim arising from the consumer contract, it cannot be expected that, for example, claims arising from consumer contracts should be referred to other persons for the purpose of submitting bullying insolvency proposals.
62. On the basis of the above, the Constitutional Court concluded that there were no grounds for the annulment of the contested provision of the insolvency law and therefore rejected the proposal under Paragraph 70 (2) of the Constitutional Court Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 254 / 2022 Coll., on the application for annulment of Article 108 (1) of Act No 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 31.08.2022 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Legal Areas:
Civil law
Civil law substantive
The regulation text is for informational purposes only.
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