The Constitutional Court found No. 260 / 2010 Coll.

In Article 399 (2) of Act No 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), the part of the sentence of the second sentence, including the semicolon, which reads: '; if, without an apology, the insolvency court finds its apology justified, it shall be deemed to have withdrawn the application for repayment', shall be deleted from the date of the publication of this finding in the Collection of Laws.

1. On 3 July 2009, the Constitutional Court received a motion by the Supreme Court in Olomouc to abolish part of the provision of Paragraph 399 in paragraph 2 of the second sentence after the semicolon of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law). The contested provision provides for the legal fiction of the withdrawal of an application for debt relief in the event that the debtor does not appear at the creditors' meeting, without apology, to discuss the method of debt relief and to vote on its acceptance or apology, the insolvency court shall not find it justified. This provision is further followed by Article 394 (2) of the Insolvency Act, according to which the insolvency court will take note of the withdrawal of the application by a decision which will be served on the person who lodged the application, the debtor, the insolvency administrator and the creditor committee, and Article 396 (1) of the Insolvency Act, according to which the withdrawal of the application is a result of the insolvency proceedings. The Constitutional Court, finding sp. zn. This finding was announced in the Collection of Laws on 9 June 2009 under No 163 / 2009 Coll.

2. The appellant stated that it was conducting insolvency proceedings under sp. zn. The insolvency proceedings were opened at the Regional Court in Ostrava - a branch in Olomouc ("the Regional Court ') on 8 December 2008, with the debtor submitting, together with the insolvency proposal, an application for authorisation for debt relief. By order of 20 January 2009 No KSOS 16 INS 4988 / 2008-A-9, the Regional Court found the debtor to be bankrupt, appointed an insolvency administrator and authorised the resolution of the insolvency by default. At the same time, he ordered a review meeting to take place at 9: 00 a.m. at the seat of the Regional Court on 5 March 2009, and called a meeting of creditors at the same date and place, which was to take place immediately after the conclusion of the review hearing. Although the debtor was duly summoned, he did not appear at the creditors' meeting on 5 March 2009 without an apology. On the same day, the Regional Court issued Resolution No KSOS 16 INS 4988 / 2008-B-12, which it took note of the withdrawal of the application for the waiver, declared bankruptcy on the property of the debtor and decided that the bankruptcy would be dealt with as minor. This decision was challenged in full by the debtor's appeal, claiming that he had prevented him from taking part in the creditors' meeting, which was demonstrated by the confirmation of the practitioner of 10 March 2009. The debtor requested that the order on the declaration of bankruptcy in respect of his property be annulled and that the case be brought back to the Regional Court for further proceedings, or that the appellant itself decide on the rescheduling. The content of the official record, drawn up after the creditors' meeting by the insolvency judge, is not relevant according to the applicant, according to which on 5 March 2009 the debtor was present at the law firm Mgr. K. in Šumperk, where he stated that he considered that both the review and the creditors' meeting would take place at the District Court in Šumperk.

3. The appellant stated that the Constitutional Court, in its finding in sp. zn. The Constitutional Court pointed out in its cited finding that one of the fundamental principles governing the civil process is the disposing principle. Withdrawal of an application for a debt relief is a disposing act of the debtor and it follows from its nature that it cannot be the content of a legal fiction, i.e. it cannot be established that the debtor has withdrawn the application although it has not actually done so. The fiction of the withdrawal of a proposal designed by the provisions of § 399 (2) of the second sentence behind the semicolon of the insolvency law is therefore, according to the quoted finding, contrary to the nature of the civil process.

4. Article 89 (2) of the Constitution of the Czech Republic obliges the General Courts to take decisions in accordance with the legal opinion set out in the Constitutional Court's finding, not only in the specific case to which the finding relates, but also in cases in which questions similar or identical are dealt with. The obligation to follow up decisions on other cases of the same type "ratio decidendi," i.e. the laid-down and applied legal rules (decision-making grounds) contained in the finding, was accentuated by the Constitutional Court in the decision-making process sp. zn. III. ÚS 252 / 04 of 25.1.2005 (N 16 / 36 SbNU 173). The appellant therefore reflected the legal opinion of the parties to the fiction of the withdrawal of the application for the authorisation of debt relief expressed in the sp. zn. Pl. ÚS 42 / 08.

5. In support of the arguments set out in the present decision, the appellant referred to an amendment to the withdrawal of the proposal contained in Article 96 of Act No. 99 / 1963 Coll., the Civil Code, as amended, (hereinafter referred to as "the Civil Code '), in respect of which the case-law has established that the withdrawal of the application may take place only by means of an act from which there is no doubt as to its content and meaning, and it is therefore entirely without doubt that the party to the proceedings for the examination of its proposal, or part thereof, is not interested and is informed that it will not be decided by the court. While the civil court order foresees a clear and certain manifestation of will, free of any conditions, the insolvency law allows the effects of withdrawal to take place without the debtor's will to meet these conditions.

6. For reasons thus defined, the appellant concludes that the provisions of Paragraph 399 (2) of the second sentence of the Crescent of the Insolvency Act are contrary to Articles 36 (1) and 38 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '). Where a party's right to dispose is replaced by a legal instrument resulting in the failure to act of the party, or even only on the basis of the court's assessment of the termination of the proceedings, such a design, according to the appellant, is also contrary to Article 2 (3) of the Charter. Thus, in accordance with Article 95 (2) of the Constitution of the Czech Republic and 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'), the appellant submitted the case to the Constitutional Court in order to repeal, by its finding, the provisions of § 399 (2) of the second sentence after the semicolon of the Insolvency Act, the date on which it will determine the finding.

7. In conclusion, the appellant pointed out that the insolvency proceedings could not be interrupted and that the effects of the bankruptcy declaration on the debtor's assets were made public by publication of the relevant decision in the insolvency register, and suggested that the Constitutional Court should consider his application to be urgent within the meaning of Article 39 of the Law on the Constitutional Court, since further procedures in the context of the insolvency proceedings may result in changes which would make the debtor unable to pay the original debt. In addition, according to the appellant, the decision on this proposal, if granted, may also be relevant to the insolvency proceedings of other debtors.

8. In accordance with Section 69 of the Law on the Constitutional Court, the Constitutional Court invited the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic to comment on the proposal.

9. The Chamber of Deputies, through its President, Ing. Miloslav Vlček, stated that the draft insolvency law had been discussed at first reading on 26 October 2005 as printing 1120 and was subsequently directed to the constitutional legal committee which dealt with it at its meetings on 1 December 2005 and 20 January 2006, and recommended that it be approved in the text of the Comprehensive Amendment contained in the Resolution of the Committee No 235 (Press 1120 / 1), which also amended Article 399 (2) of the Insolvency Act. The second reading of the proposal took place on 27 January 2006 and the amendments made therein were processed as printing 1120 / 2. The draft law was approved at the third reading on 8 February 2006, as amended by the comprehensive amendment of the constitutionally legal committee and other amendments. The Act was subsequently signed by the relevant constitutional authorities and declared in the Collection of Laws under No 182 / 2006 Coll. The provision in question was not affected by subsequent amendments to this Regulation.

10. The Senate of the Parliament of the Czech Republic stated in this connection that the draft law, the provision of which was proposed for annulment, was referred to it on 28 February 2006 and the Organising Committee ordered it, as Press No. 288, to discuss the constitutional and legal committee and the Committee on Economic, Agricultural and Transport. The proposal was discussed by the two committees on 15 March 2006 and 22 March 2006 respectively, both of which have consistently recommended the adoption of a law as approved by the Chamber of Deputies. The bill was approved by the Senate at its 10th meeting as Resolution 416 of 30 March 2006, of 54 senators and senators present voted in favour of the adoption of Act 49, no one voted against and 5 abstentions. There was no discussion of the provision which is the subject of proceedings before the Constitutional Court; The institution of deleveraging concerned the debate only as far as possible in the case of a non-entrepreneur legal person. Therefore, in the context of the approval process, there was no opinion that the appellant's claim on the inconstitutionality of Paragraph 399 (2) of the insolvency law could be supported or, on the contrary, refuted. The Senate discussed the draft law within the limits of the Constitution of the Czech Republic in a constitutional manner, based on the majority belief that the law is in line with the constitutional order of the Czech Republic and its international obligations. It is now up to the Constitutional Court to examine the constitutionality of the provision in question.

11. All parties to the proceedings have agreed to waive the oral procedure within the meaning of Paragraph 44 (2) of the Constitutional Court Act.

12. The contested provision of the insolvency law reads:

[...]

(2) The debtor and the insolvency practitioner shall be served by the insolvency court at the creditors' meeting referred to in paragraph 1 in their own hands with instructions on the necessity of their participation. The debtor shall be obliged to attend such meetings in person and to answer the questions of the creditors present; If the insolvency court does not appear without an apology, or if the insolvency court finds that it is justified, it shall be deemed to have withdrawn the application.

[...]

13. According to Article 95 (2) of the Constitution of the Czech Republic, if the court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it will bring the matter before the Constitutional Court. This authorisation is further specified in § 64 (3) of the Law on the Constitutional Court, according to which the Constitutional Court may apply for annulment of the law or its individual provisions. It is a condition of a substantive discussion of such a proposal that the classification of Article 95 (2) of the Constitution of the Czech Republic be fulfilled in the sense that it must be a law to be applied in the resolution of a case, i.e. the law or its provision which is proposed for annulment, should be applied directly by the appellant in the resolution of a particular dispute. The Constitutional Court found this condition to be fulfilled, as the appellant will assess the merits of the debtor's appeal against the decision of the insolvency court given precisely because of the effects of the legal fiction of the withdrawal of the application contained in the contested provision. The Constitutional Court verified the facts relating to the insolvency proceedings in the KSOS 16 INS 4988 / 2008 regional court file, available electronically at https: / / isir.justice.cz (insolvency register).

14. For the sake of completeness, the Constitutional Court notes that the conclusion that the appellant is justified is not contrary to the opinion expressed in the decision of the sp. zn. Pl. ÚS 42 / 08, in which the Constitutional Court found that the same appellant was not actively legitimised to file an application for annulment of Section 399 (2) of the Insolvency Act (point 22 of the decision). The legal opinion cited was based on a specific procedural situation where the annulment of the provision in question was not included in the petition and, above all, when the question of whether the appellant's competence to make a substantive appeal was assessed by the Constitutional Court. In other words, with regard to the finding of Sp. zn. However, in the present case, as has already been explained, the situation was different.

15. In the context of the procedure for the application for annulment of a law or part of a law, the Constitutional Court examines whether the contested legislation has been adopted and issued within the limits of the Constitution of the Czech Republic in a constitutional manner (Section 68 (2) of the Law on the Constitutional Court). Since the constitutionality of the adoption of the contested part of the insolvency law was not contested by any party to the proceedings, the Constitutional Court verified the constitutional conformity of the legislative process only formally from publicly available sources (http: / / www.psp.cz), and found that all the procedures laid down were followed when the contested legislation was adopted. As regards the course of the legislative process, reference may be made in full to the recap by the parties (paragraphs 9 and 10).

16. Paragraph 399 (2) of the Insolvency Act imposes an obligation on the debtor who has been granted debt relief to attend the creditors' meeting and answer their questions; The law combines the penalty in the form of the introduction of the effects of the fiction of the withdrawal of the proposal with the unagreed failure of the debtor. As a result of the application of the fiction, the debtor loses the opportunity to deal with the insolvency by default and is declared bankrupt (Section 396 (1) of the insolvency law). The withdrawal of the application will be taken into account by the insolvency court by a resolution (Section 394 (2) of the insolvency law).

17. The Constitutional Court has already dealt with a complex of provisions governing the consequences of the failure of the creditors' meeting by the debtor who was authorised to be defaulted, in the decision sp. pl. ÚS 42 / 08, published under No 163 / 2009 Coll., by which he annulled the provision of § 394 in paragraph 2 of the sentence behind the semicolon of the insolvency law, which excluded the appeal against the order by which the court's withdrawal of the application was taken into account. The Constitutional Court stated in the cited finding that, in order to preserve the right of an insolvency debtor to a fair trial, an appeal appeared necessary against a decision of a court given on the basis of a fiction of the withdrawal of an application under Paragraph 399 (2) of the Insolvency Act, both in order to remedy the apparent overviews which may arise in the course of the proceedings (the debtor's apology is placed in another file) and because of the possible affiliation of the effects of the fiction on the assessment of the judgment of the insolvency court (unless the insolvency court finds an apology).

18. At the same time, the Constitutional Court criticised the construction of the legal fiction contained in Section 399 (2) of the Insolvency Act: "The civil process is based, among other things, on two basic principles - the disposing and negotiating principles. The close relationship between private law of substantive and public civil law is best expressed by the principle of disposition. The purpose and purpose of civil procedural law is to provide protection for subjective private rights, i.e. public civil procedural law serves a substantive private law, and if it fails to fulfil its task, it loses its meaning. The functional links between private substantive law, which is based on the autonomy of the parties to private legal relations, and public civil law of procedure, are reflected in the area of procedural law primarily through the disposition principle which controls the civil process. The Disposition Principle represents a specific projection of the private-law autonomy of the will in the civil process. The parties must freely, in accordance with the principle of disposition, treat both the proceedings and the subject matter. The procedural rights derived from the principle of disposition shall be reserved exclusively to the rightholders in the form of disposition procedural acts; It follows from the nature of these available procedural acts that they cannot be the content of legal fiction, i.e. it cannot be established that someone has withdrawn the proposal, although they have not. The legal structure of the fiction of debt relief is contrary to the nature of the civil process, which applies not only to the civil litigation process, but to any kind of civil procedure, i.e. also to insolvency proceedings. Dispository legal action cannot be the content of legal fiction without violating the principle of disposition on the basis of which the civil process is built and ultimately the principle of autonomy of will. As stated by the Constitutional Court, for example, in the finding of page I of the ÚS 167 / 04 of 12.5.2004 (N 70 / 33 of the SbNU 197 *)," The autonomy of the will and free individual conduct is guaranteed by Article 2 (3) of the Charter of Fundamental Rights and Freedoms at constitutional level. Article 2 (3) The documents must be understood in a dual sense. In its first dimension, it is a structural principle according to which state power can only be exercised against an individual and its autonomous sphere (including autonomous expressions of freedom) where the conduct of an individual violates the expressly formulated prohibition provided for by the law. However, such a ban must reflect only the requirement to prevent an individual from intervening in third parties' rights and to promote the public interest, if it is legitimate and proportionate to such a restriction on the autonomous conduct of an individual. Such a principle must then be understood as an essential requirement of every democratic rule of law (Article 1 (1) of the Constitution of the Czech Republic). The provisions of Article 2 (4) of the Constitution also have similar content. Article 2 (3) then operates in its second dimension The Charter as a subjective right of an individual to respect the autonomous manifestations of his personality, including those of his or her freedom, which reflect his or her particular conduct, unless such conduct is expressly prohibited by law. Article 2 (3) of the Charter in its second dimension, in which it acts as a fundamental right of the individual, shall then apply immediately and directly. In this dimension, it is not just a simple right to radiate, but a subjective right that acts directly against state power. State authorities are therefore obliged to apply a simple law simultaneously to the standards of that law, reflecting Article 2 (3) of the Charter and Article 2 (4) The Constitution as an objective constitutional principle shall also be interpreted in such a way as not to interfere with the subjective right of the individual to the autonomy of the will, which is also guaranteed by Article 2 (3) of the Charter in its second dimension. '. The obligation to respect the autonomy of the will applies not only to bodies that interpret and apply the law, but undoubtedly also to legislators. The attempt to expedite proceedings is therefore desirable on the one hand, but on the other hand it cannot take such a form that, by faking the procedural act of a participant, it actually takes away the possibility of its free conduct. Therefore, in all advanced legal systems, for example, conjecture institutes are used exclusively in determining the facts, i.e. in clarifying and establishing the relevant facts. Accelerating institutes (such as the Consumation Judgment or the Predictive Time-limits) are thus used exclusively in an area affected by the principle of negotiation, and it is not possible to use such means for access to proceedings and subject matter in order to expedite proceedings. The function of legal fiction is not the likelihood of certain decisive facts, the less likely the fiction may not apply to the fundamental right of a procedural party to have proceedings and the subject-matter of proceedings (cf. Macur, J. Judgment on the basis of the fiction of the recognition of a claim under the provisions of § 114b o. s.

19. The Constitutional Court also pointed out that the fiction of the withdrawal of the debt relief proposal is all the more unacceptable from a constitutional legal point of view because it is not a mere procedural act to which the participant has proceedings but has fundamental material legal consequences for both the debtor and the creditor (subsequent declaration of bankruptcy). Only the lack of active legitimacy of the appellant in the proceedings under the sp. zn.

20. The Constitutional Court had no reason to deviate from the above conclusions, therefore it stated that the provision of Paragraph 399 in the second sentence of paragraph 2 of the part of the sentence behind the semicolon of the Insolvency Act, which, by means of the fiction of the withdrawal of the insolvency proceedings, removed the possibility of the insolvency proceedings by the participant in the insolvency proceedings, was contrary to Article 2 (3) of the Charter and Article 2 (4) of the Constitution of the Czech Republic, as well as Article 36 (1) of the Charter, and therefore decided, pursuant to Article 70 (1) of the Law on the Constitutional Court, that that provision is to be repealed on the date of the publication of that finding in the Collection of Acts.