Communication from the Constitutional Court No 302 / 2023 Coll.
Communication from the Constitutional Court on the adoption of the Opinion of the plenary of the Constitutional Court of 13 September 2023 sp. zn.
Valid
Communication from the Constitutional Court
Text versions:
06.10.2023
302
COMMUNICATION
The Constitutional Court
The Plenum of the Constitutional Court was adopted on 13 September 2023 under sp. zn. Pl. ÚS-st. 59 / 23, composed of the President of the Court of Justice Josef Baxter and the Judge and the Judges of Jaromír Jirsa, Veronica Christian, Tomáš Lichovník, Jan Svátoný, Pavel Šámal, Vojtěch Šiměl (Judge Rapporteur), David Uhíř, Jan Wintr and Jiří Zemánek, on the proposal of the III Chamber of the Constitutional Court of the Constitutional Court under Article 23 of the Law No. 182 / 1993 Coll., on the Constitutional Court of 22 September 2011 (N 168 / 62 SbNNU 481) and on the Constitutional Court of the Constitutional Court of the Constitutional Court of the Constitutional Court of the Constitutional Tribunal of 10 / 6 June 2020 (N 122 / 100 Sbn44).
the following opinion:
In a joint ownership cancellation and settlement procedure having the character of iudicii duplicates, unless the action is dismissed, it is generally not possible to determine which party had full success in the matter (Section 142 (1) of the Civil Code). It is therefore a general starting point for decisions on costs which are consistent with the protection of property rights under Article 11 (1) and the right of judicial protection under Article 36 (1) of the Charter of Fundamental Rights and Freedoms, so that none of the parties has the right to pay costs against another party, unless specific reasons are given.
Reasons
Definition of the case
1. In the proceedings for a constitutional complaint brought under page III of the ÚS 1470 / 23, the complainant, the City of Hodonin, seeks annulment of the statement in the judgment of the Regional Court in Brno ("the Court of Appeal ') No 38 Co 176 / 2021-395 of 2 February 2023. By this statement, the Court of Appeal (in contrast to the court of the court of the court of the court of the Court of First Instance of Hodonín) was obliged to reimburse the costs incurred in the proceedings of the State as well as to the counterparty (other co-owners) before the court of appeal and the Court of Appeal (total amount of CZK 326 278). The Court of Appeal, in the statement of reasons for the contested decision, came out of the Supreme Court's decision-making practice and expressly referred to the finding of the Constitutional Court sp. zn. III. ÚS 186 / 20 of 10.6.2020 [(N 122 / 100 of the SbNU 344), all case-law of the present court is available at https: / / nalus.ujud.cz]. It stated that although it was a joint ownership cancellation and settlement procedure in which the decision is in the interests of all parties, the outcome of the proceedings and the fact that it was ultimately decided in accordance with the original application of the applicants, which the defendant (the complainant) refused to accept throughout the procedure, cannot be disregarded. It was therefore appropriate to apply the point of success in the proceedings and to grant the applicants, pursuant to Article 142 (1) of the Civil Code (hereinafter referred to as the" o.s.'), full reimbursement of the costs they have incurred effectively for the exercise of their rights.
2. The third Chamber of the Constitutional Court has concluded in the present case that the decision-making practice of the Constitutional Court is inconsistent with the constitutional context of the General Court in relation to decisions on the reimbursement of costs in respect of the cancellation and settlement of co-ownership in terms of the rules laid down by the Civil Code (§ 142 et seq.) (see the summary of caselaw below). In addition to a number of resolutions, six findings [sp. zn. I. ÚS 1441 / 11 of 22.9.2011 (N 168 / 62 SbNU 481), sp. zn. II. ÚS 572 / 19 of 12.12.2019 (N 211 / 97 SbNU 260), sp. zn. III. ÚS 186 / 20 of 10.6.2020, sp. zn. I. ÚS 262 / 20 of 10.11.2020 (N 208 / 103 SbNU 142), sp. zn. I. ÚS 3202 / 20 of 2.11.2021 and sp. IV. ÚS 404 / 22 of 5.4.2022], from which find sp.
3. Since the Third Chamber is of a different opinion from the opinion contained in the findings in recitals (i) and (ii) of the Rules of Procedure 1441 / 11 and (iii) of the Third Chamber, it suspended, in the interests of legal certainty and in order to eliminate the discrepancies in the case-law of the Constitutional Court, by means of a resolution (III). ÚS 1470 / 23 of 26.7.2023 proceedings on constitutional complaints and in accordance with the procedure laid down in § 23 of Act No. 182 / 1993 Coll., on the Constitutional Court, submitted a draft opinion to the plenary.
Existing practice of the Constitutional Court and General Courts
4. The General Courts are treated differently in the procedure for the abolition and settlement of co-ownership as a basic legal rule for determining the costs of the contested procedure (see Section 142 below). The judgment of the Court of Appeal is often amended by the Court of Appeal, without the parallel decisions of the appellate court and correcting the misguided (or incorrect) practice of courts located (see, for example, resolution sp. zn. In the case of cost decisions, two different approaches appear in procedures of this specific nature:
A. The Court of First Instance admits success in the case and full reimbursement of the costs of the proceedings to the claimant, as it complied with its application for the abolition of co-ownership and the manner of settlement (e.g. resolution sp. zn. III.
B. The Court decides that the success of the parties in the case was the same and therefore does not admit the right to reimbursement of costs to any of the parties pursuant to Article 142 (2) (a) (ii) and (iii) of the Rules of Procedure 1637 / 09, sp. zn. III. An equivalent ratio of success in the case is based on a variety of grounds, it is generally not considered by the general courts to be due to the general nature of the iudicii duplicis (a contrario, for example, resolution sp. zn. II. ÚS 439 / 14), or that the court of co-ownership has, although it has taken into account other decisive facts - for example, they take into account that the defendant has agreed to cancel and settle the procedure (see resolution sp. zn. II. ÚS 439 / 14), or that the court has, although the Court of co-ownership has removed but settled otherwise than the applicant has been proposed (e.g. Resolution sp.
5. The case law of the Supreme Court as the Supreme Court's Supreme Judicial Body, unifying practice at the time when the claim against the cost statements was not ruled out by law (last before the application of § 238 (1) (h) o. s. s., as amended by Act No. 296 / 2017 Coll.), was based on premission that it was appropriate to proceed under § 142 (1) o. s., in justified cases possibly according to § 142 (2) o. s., based already on the Opinion of the Supreme Court in Sp. Cpj 8 / 72 of 8.3.1973, which is still applied in the light of unchanged legislation. In the context of the proceedings, this means that, if the Court of First Instance abolishes the application of the applicant for joint ownership and settles it in the manner proposed by the applicant, it is necessary, when deciding the costs of the proceedings, to conclude that the applicant has had a full procedural success in the case, regardless of the conduct of the parties before the initiation of the proceedings or that the other co-owner may also have brought an action for the annulment and settlement of the co-ownership, namely the so-called iudicium duplex (resolution of the Supreme Court in sp...... 22 Cdo 245 / 2014 of 26. 3. 2014; all case law of this court is available at www.njus.cz). The Supreme Court also urged the general courts to base their assessment of success in the case on the facts of the dispute concerning the evidence and how the dispute was dealt with in the decision (e.g. Resolution No 22 Cdo 1523 / 2017- 288 of 3.5.2017, sp. zn. 22 Cdo 935 / 2017 of 30.5.2017, sp. zn. 22 Cdo 2059 / 2015 of 27.10.2015 or Resolution No 22 Cdo 2767 / 2017 of 26.7.2017). Those grounds were, as is apparent from the previous summary, more or less respected, often referring to the individual circumstances of the case.
6. The Constitutional Court first disagreed from the described decision-making practice with the usual restraint on costs (see above the summary of the related resolutions) and the justification that the general courts did not deviate from general interpretative standards in the interpretation and application of the legal provisions (in particular Sections 142, 143 and 150) and that they did not have a prohibited and unforeseeable interpretation choice. In the period of its existence, the Court of Justice of the European Union has expressed itself meritantly on the costs of the procedure described above, with the nature of the iudicii duplicis, six times as far as it has already been found.
7. The underlying procedure prior to the issue of the finding, sp. zn. I. ÚS 1441 / 11 was the settlement of the joint capital of the spouses; However, its conclusions are also fully applicable to the joint ownership cancellation and settlement proceedings, as expressly stated in the finding. The Constitutional Court criticised the practice of the general courts, which established for the type of proceedings the rule that "successful 'participants do not grant the right to reimbursement of the costs pursuant to § 150 o. s. The Constitutional Court has clearly stated here that" the principle of success in the matter is a fundamental rule for deciding on the reimbursement of the costs of the joint venture settlement proceedings'. According to the Constitutional Court, the civil court order is built (and must be interpreted in this spirit) in such a way that the starting principle for cost-making in the contested proceedings is the rule of success in the case under § 142 ° S.), from which, in individual cases (not for certain types of proceedings), it is possible to make exceptions (e.g. resolution No. 22 Cdo 2860 / 2017-34 of 2.8.2017) in order to fulfil the legal conditions (§ 143; However, the relationship between exceptions and rules cannot be reversed.
8. After nearly ten years, the Constitutional Court issued the following notable idea: "The decision on the costs of the annulment and settlement of the joint ownership proceedings cannot depend solely on the court's discretion as to what was disputed between the parties and what solution was adopted by the court in this regard. On the contrary, in the present proceedings, in which it is an equal right of ownership of all the parties, in which all the parties (co-owners) have the same procedural position in the proceedings, both the applicants and the defendants, and in which they cannot foresee a specific decision of the court in advance, and on the contrary, each of the different proposals of each party may have a reasonable and convincing basis, it will normally appear as a fair basis for the decision on costs, that each party itself bears its own costs and is not obliged to bear the costs of another co-owner, unless specific reasons are given; such a starting point corresponds to the right of joint owners to protect property guaranteed by Article 11 (1) of the Charter. '; However, the Constitutional Court has, in its just cited finding, defined itself against the decision-making practice of the general courts from the point of view of constitutional law, the application of the legal regulation in accordance with the wording of the starting point left it to the general courts and did not provide any further guidance on the constitutional interpretation of the law, which continues to cause interpretation problems in the general court - (inter alia) the Constitutional Court therefore accepts this view.
9. Findings sp. zn. III. ÚS 186 / 20 The Constitutional Court rejected the constitutional complaint of the co-owner, who was obliged in similar proceedings to replace the "counterparty 'costs of the proceedings; The third Chamber relied on its reasoning for the conclusions of the findings of the judgment in paragraph I. ÚS 1441 / 11, which has not yet been overcome in accordance with the procedure laid down in paragraphs 13 or 23 of the Law on the Constitutional Court and is in line with the case law of the Supreme Court, to which the interpretation of the sub-constitutional rules primarily applies. According to the Third Chamber, it follows (paragraph 15) that" the principle of success in a case under Paragraph 142 of the Civil Code is the fundamental rule of decision on costs, including in proceedings of the nature of iudicii duplicis, including joint ownership proceedings. If, in this type of proceedings, the courts reflect its alleged specifics so that the imposition of compensation under Section 142 of the Civil Code will be an exception, they shall do so without any basis in the law and infringe the right of the parties to judicial protection under Article 36 (1) of the Charter. "
10. However, a finding of 10.11.2020 sp. zn. I. ÚS 262 / 20 (preceded by an unsuccessful attempt to adopt an opinion under Paragraph 23 of the Law on the Constitutional Court), in which the First Chamber pointed out the specific nature of the procedure for the abolition and settlement of co-ownership, and concluded that "the constitutional conformal starting point [considers the Constitutional Court] when deciding on the costs of the proceedings, which were settled by the annulled co-ownership, is to see, for both parties (for all co-owners), the partial success in the matter within the meaning of Section 142 (2) and (3), respectively, it is not necessary to rule that none of the parties has the right to seek full success in the case and to apply the procedure, as regards the second of alternatives to be modified in Section 142 (2).
11. This view, taking into account certain specificities of the procedure for the abolition and settlement of co-ownership, which by its nature is iudicium duplex, was then also supported by the finding of 5.4.2022 sp. zn. IV. ÚS 404 / 22, which states that "the exception to the general application of § 142 (2) of the Civil Code to the iudicium duplex procedure should consist of cases where the obstructive behaviour of the co-owner is concerned, the party concerned is not interested in the constructive resolution of the case or the bullying exercise of the law. However, in this case, the court must be convincing as to why, in a particular case, it decided to order the party to pay the costs to the other party under Paragraph 142 (3) of the Civil Code." The finding, sp. zn. I. ÚS 3202 / 20 of 2.11.2021 also summarises that "given the exceptional position of the parties to the proceedings, it is not easy to decide on the reimbursement of the costs of the legal proceedings as it is not clear which party has actually 'won' and which has' lost '. In other words, in similar cases the principle of success in the matter cannot be applied without further action."
12. As can be seen, there is disunity in the decision to pay the costs of the proceedings in these types of disputes, which makes it impossible for the parties to predict how the court decides, which also has a strong constitutional dimension. Therefore, in view of the development of the case-law and the inconsistency of the case-law, the need is given by means of a plenary opinion adopted pursuant to Article 23 of the Constitutional Court law, which has contributed to the inconsistency of its case-law, to harmonise the interpretation of the decision-making process on costs which, by their nature, are specific and the legal theory refers to them as the management of iudicium duplex.
Own justification of the opinion
13. It is stated from the above that the approach of judicial practice to decision-making on the costs of the proceedings in which the Court of First Instance is dealing with actions for the abolition and settlement of co-ownership [Note to the Constitutional Court: Part Three, Title II, Section 4, of the Civil Code (hereinafter referred to as "o. z. ') also provides for a separation of ownership and therefore the conclusions contained in this Opinion apply mutatis mutandis to this legal institute, even though it was not the subject of a procedure prior to the submission of an opinion], is inconsistent; the application of the principle of success in a case makes it obvious for the particular type of procedure. Whereas the recap of the findings sp. zn. II. ÚS 572 / 19, sp. zn. I. ÚS 262 / 20, sp. zn. IV. ÚS 404 / 22 and sp. zn. I. ÚS 3202 / 20 are not fundamentally contradictory, the suggested solution requires overcoming the findings of sp. zn. I. ÚS 1441 / 11 and sp. zn. III. ÚS 186 / 20 and the settled case law of the Supreme Court, which the Third Chamber of the Constitutional Court did not find to be constitutional conformance.
14. The Constitutional Court is aware of the fact that it is not responsible for harmonising the interpretation of sub-constitutional law and, in the field of civil proceedings, this task primarily belongs to the Supreme Court [cf. § 14 of Act No. 6 / 2002 Coll., on Courts, Courts, Addresses and Government Administration of Courts and on the amendment of certain other laws (Law on Courts and Judges), as amended by Act No. 151 / 2002 Coll.]. In this case, however, he has agreed to unify the interpretation of sub-constitutional law for two reasons.
15. First of all, it cannot be expected that the Supreme Court in the near future will, in view of the current legislation [§ 238 (1) (h) o. s. s.), have a case-law on costs. In addition, in "disputes' concerning the abolition and settlement of joint ownership, the value of the subject-matter of the proceedings in the context of cost decisions is often a high amount which is liable to affect the ownership of the parties [Article 11 (1) of the Charter of Fundamental Rights and Freedoms (" the Charter ')]. In addition, the issue of costs may also be of great importance in a particular case in terms of the fundamental right to judicial protection (Article 36 (1) of the Charter), including in the apriorical sense, since a rational potential party to the proceedings will well consider the expected transaction costs associated with each proceeding and adapt its procedural procedures accordingly.
16. Moreover, it cannot be overlooked that "cost decision-making inconsistency 'in the procedures for the abolition and settlement of co-ownership (and not only in them) is largely due to the lack of activity of the Ministry of Justice, which in the long term infringes its legal obligation under § 374a (a) (b). (c) o. s. The so-called Adjudicature Order No. 484 / 2000 Coll., setting flat rates of remuneration for the representation of a participant by a lawyer or notary when deciding on reimbursement of costs in civil proceedings and amending Decree No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services (as amended, introduced into the civil procedure an important principle, the main purpose of which is to shorten the length of proceedings and simplify the calculation of the amount of compensation of costs, namely the principle of flat-rate of costs. The decision was annulled by the Constitutional Court by the decision of 17 April 2013 sp. zn. Pl. ÚS 25 / 12 (N 59 / 69 SbNU 123; 116 / 2013 Sb.), i.e. more than 10 years ago, but the Ministry still did not issue a new decree. However, the reason for the annulment was not the reservation of the Constitutional Court on the principle of flat-rate costs, but the contradiction between the intensity of the dispute and the amount of the flat-rate reimbursement of the costs of legal representation in so-called bagging disputes initiated by form actions. The parties to the proceedings are therefore found to be in the interim regime, if it is a cost decision in which it is used, in support of the complex calculations of Decree No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services (the legal tariff), as amended, which implies a discrepancy of judicial practice and uncertainty weakening the legitimate expectations of the parties. The principle of flat-rate costs is considered by the Constitutional Court to be beneficial and, as a result, have a positive effect on the prevention of delays in proceedings (Article 38 (2) of the Charter); Contrary to that provision and to the determination of the amount of the costs of the legal representation in accordance with an inappropriate provision and which depends on the number of acts performed by the legal service, which may, on the contrary, have a negative impact on the duration of the proceedings.
17. Finally, the Constitutional Court also sees the need to adopt a unifying position because, as pointed out above, it was its own inconsistent finding case-law that led to the divergence of the decision-making practice of certain general courts. It is therefore desirable, in the interests of legal certainty, the predictability of judicial decision-making and the protection of the legitimate expectations of the parties to the procedure [Article 1 (1) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution)], to adopt a plenary opinion on the question referred and to outline a constitutionally conformal interpretation of the principle of success in the case under Article 142 (1) (b) of the Charter in this specific type of procedure, in order to fully respect the courts contained in Articles 11 (1) and 36 (1) of the Charter.
Deciding on costs in civil proceedings
18. When deciding on costs, two basic rules apply in the civil procedure at issue: the first rule of success in the case (§ 142 o. s. s.); 2. the rule of the procedural fault for the termination of proceedings (§ 146 (2) o. s. s.). The first applies in the case of a final decision and the law also provides for exceptions (e.g. § 143 o. s.); the second applies in cases where the procedure is terminated by a decision terminating the proceedings, so that the court does not deal with the substance of the case and does not decide in accordance with § 146 (1) o. s.), so that none of the parties has the right to pay the costs (conciliation, termination of proceedings in a situation where no procedural fault can be established). The two rules may then be invoked by the moderation law of the court provided for in § 150 o. s. s., which allows, in exceptional cases, a participant who has acquired the right to reimbursement of costs not to admit such compensation. However, the procedure laid down in § 150 o. s. s.) must be exceptional, which is repeatedly accentuated in its caselaw by the Constitutional Court [of the first findings, for example, sp. zn. III. ÚS 727 / 2000 of 17.5.2001 (N 75 / 22 SbNU 145) or by the Court of First Instance 305 / 03 of 12.7.2005 (N 136 / 38 SbNU 3)]. The modulation of costs is an exception to the rule and must, as such, be treated by the courts (see also the judgment in paragraph I. ÚS 1441 / 11).
19. After hearing the subject matter of the proceedings (substance of the case), the principle of success in a case which is set out in § 142 CS CS, the first three paragraphs of which are worded as follows:
"(1) A participant who has been fully successful in the case shall be admitted by the court to pay the costs necessary for the effective application or defence of the right against a participant who has not been successful in the case.
(2) If the party had only partial success in the case, the court shall apportion the costs and, where appropriate, state that none of the participants has the right to pay the costs.
(3) Even if the party has had only partial success, the court may grant it full reimbursement of the costs, if the failure was in a relatively small part or if the decision on the amount of the performance depends on the expert opinion or the consideration of the court. '
20. The first paragraph of that provision sets out how the court decides in the event of the full success of the party in the dispute. The second paragraph and the third paragraph follow with the assumption of partial success; In such a case, it is required to determine the degree of success of individual participants (after deduction of the degree of failure from success), or to state that the success of both parties was (in principle) the same, from which the relevant cost statement (proportional allocation of costs or the right to be reimbursed by any of the parties, exceptionally granting full compensation) depends. Exceptionally, it is possible to derogate from the principle currently laid down if the court finds that the conditions laid down by the Law for such exemptions are met (again, § 150 o. s.).
21. The Constitutional Court, despite the stated restraint on cost issues, regularly refers to the practice of general courts. For example, in the judgment in page III of the Court of Justice of 9 June 2009 (N 133 / 53 of the SbNU 669), the principle of success in the case was worded as follows (paragraph 18): "The fundamental principle governing the decision to compensate for the costs of the civil dispute process is the principle of success in the case, expressed in Section 142 (1) (a) of the EC Treaty. In this principle, the idea is projected that anyone who has reasonably defended his subjective right or his rightly protected interest should have the right to reimbursement of the costs he has effectively incurred in this process against a participant who has intervened in his legal sphere for no reason. The right of a successful procedural party to a unsuccessful party to reimbursement of costs is based on the basic structural principle applied in the civil dispute procedure, i.e. the system of two parties in a contradictory position, in which the parties act as mutual opponents applying conflicting interests in proceedings. At the same time, the success of one procedural party is a failure of its procedural opponent, with each party seeking, within the limits of the civil order of the court, to achieve its own victory and loss by means of admissible means. If a procedural party is successful, its opponent should compensate it for the costs it has incurred effectively, as it would be contrary to the protection function of civil procedural law if the civil process would not allow the reduction of the participant's property sphere to be eliminated only by being forced to defend for a reason the rights that someone else intervened in. Such a concept of a civil process would be contrary to the requirement of full and effective judicial protection and hence to Article 90 of the Constitution. '
22. According to the case-law of the Supreme Court and the Constitutional Court, the measure of success or failure in the case cannot only be measured as decided on a particular proposal, but must be assessed in a broader context and taken into account the specific circumstances of the case [see, for example, the finding of sp. zn. II. ÚS 228 / 04 of 9.12.2004 (N 189 / 35 of SbNU 479), the finding of sp. zn. I. ÚS 1441 / 11, again for example the resolution of the Supreme Court of Sp. zn. 22 Cdo 2059 / 2015 and resolution sp. 23 Cdo 2585 / 2015 of 3.12.2015, sp. That idea expresses an attempt to take into account the specificities of the types of proceedings other than those initiated on the basis of claims for payment of cash in which the degree of success in the case is most easily measured; It was formulated by the Constitutional Court, for example, in the proceedings for an action for the removal of an apartment or for the determination of ownership [cf. sp. zn. IV. ÚS 2374 / 19 of 7.7.2020 (N 144 / 101 CollNU 9)], which was widely used by the Supreme Court to deal with claims against cost statements in insolvency proceedings (see below).
Specifications of the joint ownership cancellation and settlement procedure
23. With regard to the case sp. zn. I. ÚS 1441 / 11 (in fact it was the settlement of the joint capital of spouses) and in particular the case sp. zn. I. ÚS 262 / 20 (here it was already, as in the case at hand, on the abolition and settlement of the joint ownership), from which the draft opinion was now under discussion, the Constitutional Court considers it appropriate to illustrate the specifics of the iudicii duplicate on a particular example of the procedure for the abolition and settlement of the joint ownership, which, together with the joint management of the spouses, constitute the most frequent cases of that type of procedure (the latter conclusions therefore apply mutatis mutandis to the second of the cases mentioned above).
24. The procedure with the nature of the iudicii duplicis may be initiated on the proposal of any of the future participants and, despite the formal designation, corresponding to the dictation of the law, all the participants are in a position of equal procedural position of both the applicant and the defendant at the same time, regardless of who brought the action. Proceedings relating to the settlement of joint ownership are referred to as contentious only because they are not covered by the Act on Special Proceedings of the Court, but rather by the Civil Code, which regulates different types of proceedings, including those which, for their material nature, are difficult to identify, or show, for example, the specifics for which the contested nature of proceedings is lost - e.g., if a party is seen to be weaker, it weakens the equal status of parties and the passive role of the court [typically minor child, a person with a disability, consumer or employee - e.g. the finding sp. zn. 112 / 77 SbNU 651 of 4.12.2014 (N 217 / 75 SbNU 431), find sp.
25. "Dispute" concerning the abolition and settlement of joint ownership may be initiated on the basis of an action by any co-owner who feels he or she is unsatisfied and does not wish to remain in it; as such, the procedure must be seen as a prospect of a fundamental right to the protection of property guaranteed by Article 11 (1) of the Charter. The right of ownership includes the right to stop being the owner (leave the case, lose it); in the case of co-ownership, the principle that no one can be fairly forced to remain co-owned (cf. Resolution sp. zn. I. ÚS 174 / 05 of 12.4.2006) applies. In the event that the co-owners themselves do not agree on a joint ownership separation or on the abolition and settlement of the joint ownership, each of them has the right to apply to the court for a motion to revoke and settle the joint ownership (cf. Sections 1140 and 1143 o. z.). The decision not to remain in a co-ownership relationship is a free decision of a co-owner whose right of ownership is protected by Article 11 (1) of the Charter, but to the same extent as that of anyone else, i.e. other co-owners. On the other hand, in addition to the fact that no one must be forced to remain co-owned, no one can be forced to enter into an out-of-court agreement (whether it is prevented for objective or subjective reasons), although the amicable resolution of the matter, and in particular on the abolition and settlement of the co-ownership, is more than welcome and appropriate.
26. The Court of First Instance shall give a constitutional decision in the proceedings for the abolition and settlement of co-ownership; the participants' proposals are not bound, they are only bound by the legal order of the various settlement arrangements in accordance with § 1144 et seq. (division of the case, commandment to one or more joint owners for compensation, order of sale of the case in public auction). The choice of a particular settlement method is ultimately based on the court's reasoning; the party to the proceedings does not effectively have control over the way in which the court has annulled the joint ownership, propose the method of settlement or is not obliged to do so, does not have the subject-matter of the proceedings freely, as in the case of, for example, an action for execution (see, by analogy, the judgment of the Court of First Instance, paragraph 22). Thus, the co-owner, who turns to the court, does not fully have the fate of the proceedings in his hands and thus has significantly weakened the disposing principle governing the other proceedings.
Decision-making on costs of winding up and settlement of co-ownership
27. The details of the procedure for the cancellation and settlement of the co-ownership should also be kept in mind when deciding on the costs of such a procedure.
28. While the co-owner may call for legal proceedings, the Civil Code (substantive law) subsequently provides clear instructions on how the court is to proceed. From the point of view of the constitutionally consistent interpretation of the principle of success in the matter within the meaning of § 142 o. s., it is necessary to distinguish two moments in the procedure for the abolition and settlement of co-ownership - decisions on the abolition of co-ownership and decisions on the settlement of cancelled ownership; such moments may be compared to some extent to the decision on the basis of the claim and its amount in the procedure for a classic action for performance. The application for joint ownership shall either be accepted by the court and the proceedings shall be continued by deciding on the method of settlement or rejected and the proceedings shall be terminated.
29. The application for the annulment of the co-ownership shall be rejected by the court (in practice very exceptionally) for the reasons set out in the second sentence of Paragraph 1140 (2) (c), that is because the cancellation of the co-ownership is required "at an inappropriate time 'or" only to harm one of the co-owners', possibly for other reasons. Only in such cases can the Constitutional Court speak of full success and failure in the matter. Although the co-owner cannot be forced to remain co-owned on an voluntary basis, his ownership rights must be balanced against the same rights of the other co-owners, which must also be protected from undue interference. Therefore, if it is provided by law that the joint owner must not seek the abolition of the joint ownership at an inappropriate time or merely to harm another co-owner, and he will still do so and the court will dismiss his action (thus terminating the proceedings), there is no reason not to regard him as a unsuccessful applicant within the meaning of Section 142 (1) (c) (ii) of the Rules of Procedure 2108 / 10 of 25.11.2010 or the Resolution of Section III (3) (18) of the Rules of Procedure of the Court of First Instance, also in these cases, with the application of Section 150 (2) (c) of the Law of Chartering of the Court.
30. However, the rejection of an action for the abolition of co-ownership is in practice rather unique; It is the duty of the court to allow the dissatisfied co-owner not to continue to be jointly owned. In most cases, the general courts shall comply with an action brought by one of the co-owners in respect of the requirement to abolish co-ownership.
31. The Constitutional Court concludes that it is precisely because the Court of First Instance will comply almost always (except in the cases described above) with the fact that the application is a manifestation of the exercise of a constitutionally protected property right which can be exercised at any time by any of the co-owners, without being fair to penalise it for such an act, and also because, by complying with the application for the annulment of the co-ownership procedure, the Court of First Instance does not end, but also acts on the way in which it is settled (not bound by the proposals of the parties but by a legal sequence), it cannot be deduced from the fact that the application for the joint ownership was granted without further procedural success of the appellant, or the failure of other co-owners within the meaning of Article 142 (1) (1) (1) (1) (1) (1).
32. Therefore, the nature of the iudicii duplicis procedure, the specificity of which does not correspond to the characteristics of a civil dispute under the Civil Code, is fully apparent at the stage of the decision on the settlement of the annulled joint ownership - the court must no longer see the parties as a prosecutor and defendant stricto sense, even though the law so indicates them. There is, in the first place, a lack of an originator to initiate proceedings by his infringement; of the nature of the case, there is no participant who would intervene without cause in the legal sphere of the other party. Therefore, in order to find a "victim and culprit" or "winner and loser" (i.e. to establish the success of one interested party on the other), there is no key conceptual sign of the alleged interference in the rights of the plaintiff against which the plaintiff would defend himself against the defendant. It cannot therefore be held that, by not admitting the right to pay the costs, the courts would not be protected by rights within the meaning of Article 90 of the Constitution, since there is no presumption that the applicant's property is reduced by issuing the costs incurred to him only because he "was forced to defend his rights in which someone else intervened" (see again point 18 of the Opinion in sp. zn. III of the ÚS 292 / 07). In other words, although, of course, in these cases, too, the parties to the proceedings seek to have the courts comply with their procedural proposals, the proceedings are very atypical (special) for the reasons described above.
33. It is no longer important to decide which parties initiated the proceedings - both (all) are at the same time in a similar procedural position as both the applicant and the defendant, and their claims for settlement are not bound by the court. The final settlement method results from a legal sequence (§ 1143 et seq. o. z.); The courts are required to examine whether a real division of a common matter is not considered, which is by law a priority (but in practice exceptional) way of settlement of the annulled ownership (§ 1144 o. z.). The majority general courts shall rule by abolishing the co-ownership and ordering the joint ownership of one of the co-owners; decide at the same time on the financial compensation for the co-owner to whom the case is not assigned. Usually, it is possible to find that the matter requires the order of each of the co-owners to their sole ownership, only rarely does any of them want it (see § 1147.). The courts then examine who, for example, was more involved in obtaining a common cause, such as the financial situation of the individual co-owners for the purposes of the care of the ordered cause, examine the family (the parties are often siblings or other heirs who become joint owners as a result of the death of the deceased, or, for example, the restituents who recovered the family property), social, moral context, etc. The search for a successful and unsuccessful tenderer is already excluded from the nature of the case at that stage of the procedure; It does not matter what way of settlement individual co-owners proposed and which of them the court opted towards in the final decision because it better correlated legal sequences.
34. However, if the court is not bound by the pleas of the parties (which do not have the subject matter of the proceedings entirely in their possession), it is not possible, according to the Constitutional Court, to establish a strict sense of success in the matter - that is to say, it is not based on what was disputed between the parties and on what was the taking of evidence (see the case-law of the Supreme Court summarised above), since the Court of First Instance is seeking to prove the facts necessary for the legal means of settlement under consideration; It may or may not come out of the parties' proposals. In this respect, the convincing conclusions contained in the finding of page I of the ÚS 1441 / 11 and, in particular, the finding of page III of the judgment of the Supreme Court, which confirm the case-law described, are not valid. It cannot, of course, be concluded from the above that the parties should not bear the burden of the claim and suggest to the court the evidence needed to prove their claims. However, since the method of settlement proposed by them does not constitute an unlawful interference in the legal sphere of another participant (co-owner), but the exercise of ownership law, success in the case cannot be taken from the subject of the evidence carried out.
35. If the court decides to settle the co-ownership by law, the procedural parties shall, in principle, withdraw from the proceedings with the same property value that they have entered it with (whether voluntarily or compulsively). Their success in the case is therefore comparable from an asset point of view; Therefore, each party shall suffer an asset loss in the costs incurred. The Constitutional Court is aware of the fact that there are often considerable amounts, but it is not possible to place any of the co-owners on the issue. The call for action is a free choice of the appellant (the plaintiff), whose property sphere had no need to be interfered with or forced to bring an action. Similarly, it is the free choice of another co-owner ("defendant") not to conclude the proposed out-of-court agreement and to require a certain method of settlement, since the exercise of the constitutionally guaranteed property right is also on his side; If its procedural defence has a reasonable and convincing basis (and thus does not fall within the category of abuse of law or obstructive conduct), its application cannot be placed on such a participant (co-owner) and reduced by imposing a cost obligation on its property in favour of a co-owner who has made a joint ownership choice no longer persist.
36. It can thus be summarised that the degree of success of the parties to the co-ownership settlement proceedings is comparable from a property point of view, since there is no winner or loser in the proceedings in this respect objectively. In other words, the common case is either divided and parts of it are assigned to the sole ownership of the individual owners, or the whole case is ordered to the exclusive ownership of only one of them, and then the court determines to the other joint owners the appropriate financial compensation, or the case is sold in public auction and the financial compensation is distributed among the joint owners. In the words of the Law, it is therefore necessary to decide on both sides (for all joint owners) on the partial success of the case within the meaning of Article 142 (2) and (3) of the Treaty.
37. The Constitutional Court concludes that the measure of success (according to the criteria of the "classical" contested procedure) of the parties to the proceedings for the settlement of the annulled ownership is not appropriate and does not correspond to its constitutional, substantive or procedural specifications. In order to decide on the costs of this type of procedure, it appears therefore most appropriate to follow the procedure laid down in Paragraph 142 (2) CS.: General courts should, as a rule, assess the success of each of the participants as essentially partial and state that none of them is entitled to reimbursement of costs. In fact, the above-mentioned nature of these "contentious proceedings" is much closer to the regulation contained in Section 23 of Act No. 292 / 2013 Coll., on special legal proceedings concerning non-contentious proceedings, under which "none of the parties has the right to pay the costs according to the outcome of the proceedings. The costs may be recovered where the circumstances of the case so justify."
38. In justified - and rather exceptional - cases the right to reimbursement of costs may be granted to one of the participants in accordance with § 142 (3) (c), since the method of settling the co-ownership depends on the court's reasoning. The particular circumstances of a particular case may include, for example, the obstructive behaviour of one of the co-owners, the lack of interest in the constructive resolution of the case or the bullying exercise of the law; the court may also take into account whether it is a finding or appeal procedure. However, it is not in itself a misleading act that one (or each) of the co-owners proposes the commandment of the co-owned property to its exclusive ownership.
39. As the Constitutional Court stated in the finding in point II.II of the ÚS 572 / 19 (paragraphs 26 and 27), it is for the courts to rule on disputes between the parties and to bring them fair decisions, not to provoke further disagreements between them or their mutual sense of injustice, all the more so in the context of decisions on costs which do not constitute the substance of the proceedings. It is therefore in the general courts that, in a specific procedure with the nature of the iudicii duplicis, it is necessary to assess on the basis of which legal provision the costs must be determined in order to reach a fair and constitutionally acceptable decision (in the event of non-divestment of the co-ownership of § 142 (1) and (2) and (3)) respectively. In a particular case, it may also be necessary to take into account its wider circumstances, including, for example, that the parties have at least partially agreed on the subject-matter of the proceedings, what the procedural procedure and the views of the parties during the proceedings were or what their conduct was before the initiation of the procedure in order to abolish co-ownership by agreement.
40. The Supreme Court formulated the auxiliary criteria of the individual assessment of the right to reimbursement of costs (e.g. order No 22 Cdo 2816 / 2017- 1276 of 5 October 2017) as follows: "The individual circumstances of a particular case to be considered by the Court include the procedural activity of the parties in the course of the proceedings as well as their positions and efforts, or their absence, to have a constructive approach to the rapid and economic discussion and decision of the case, i.e. the willingness or unwillingness to resolve the case amicably during the proceedings. 'Although the Constitutional Court finds the opinion adopted that the constitutionally conformal interpretation of § 142 CS requires that the success of the participants in the settlement of the divestment of the divestment of ownership be seen in principle as partial, and that none of the participants have generally been granted the costs of the proceedings at the expense of another party, those aspects affecting the decision-making of the judge in a particular case remain reasonably applicable from the perspective of the Constitutional Court.
Settlement of the existing case law of the Constitutional Court
41. The Constitutional Court notes, first of all, that it continues to accept the relationship between the rule of law (§ 142 o s. s.) and the exceptions (§ 150 o................................................................. However, this is not reflected in the exclusion of the possibility of application of § 142 o.s., but in the way in which to determine success in the matter. 'There are two significant points in the citation: first, in the decision sp. zn. I. ÚS 1441 / 11 it is not specified, according to which paragraph 142 (c) above, that the courts should proceed primarily in proceedings for the abolition and settlement of joint ownership (and similar); It is therefore not necessary to seek full success at all costs at the expense of the other party. Secondly, the fact that the court is not bound by the participants' proposals and decides on the method of settlement independently of them is of relevance to the way in which to determine success in the matter, or whether success in the matter can be discussed at all.
42. The opinion now adopted, however, deviates from the legal opinion contained in the decision of page I of the ÚS 1441 / 11 and the decision of page III of the judgment of the General Court. The Constitutional Court therefore overcomes, in particular, the conclusion of the finding in point III of the ÚS 186 / 20, according to which "[in] the cost factor is not a participant, sanctioned 'for not wanting to be the owner. The purpose of decision-making on costs is not to sanction, but to reflect the fact that the judgment costs the participants and the State money. Moreover, co-ownership needs not only be divided by the court, but also by agreement. The court is elected if the joint owners cannot agree on the division. It is consistent with both the law and the constitutional order if, in this situation, the costs of the proceedings are essentially borne by those who have failed in the proceedings, and it is primarily up to the general courts to assess which of the parties to the procedural success actually achieved. Moreover, such a solution seems more reasonable than the situation in which the co-owner could have been dragged by the other party for several years in court without the right to pay the costs, even though he had long advocated a solution which the court also found most appropriate and to which it was not out of court only for the opposition of the opposing party" (paragraph 24). The demonstratively indicated situation in which the co-owner spends several years in court because of the lack of the will of another co-owner to agree is an extreme that the court should be able to prevent. If the court is not bound by the parties' proposals when deciding on the method of settlement, the subject matter of the proceedings is purely in the hands of procedural parties and it is up to the court to determine the decisive facts of the evidence so that it can decide on the settlement of the joint ownership in accordance with the legal sequence, the principle of procedural economics and in real time.
43. However, the Constitutional Court does not rule out that, in an exceptional case where one of the parties is obstructing and does not advance constructively in the light of the economic outcome of the proceedings, it is appropriate to apply Paragraph 142 (3) (a) and to impose an obligation on that party to pay the costs; the opinion adopted does not prevent the court from taking into account the decisive facts in the individual assessment of the case. However, from the point of view of the constitutional legal protection of the free exercise of the right of ownership of each individual - and of each co-owner - within the meaning of Article 11 (1) of the Charter, the Constitutional Court considers that such an approach, in a given type of procedure, is an exception and the imposition of the burden of its own costs by the rule (§ 142 (2) o. s. s.). In connection with the application of Article 11 (1) It should also be taken into account that the amount of the costs of legal representation in the procedures for the abolition and settlement of co-ownership depends on the value of the real estate and is often in hundreds of thousands of crowns. In fact, such a large amount would be reduced by the amount of the share of the share of the joint-ownership to which the property was not assigned to the exclusive ownership if the courts were to proceed strictly in the future according to the principle of success in the case (§ 142 (1) o. s.). In fact, this would not be about protecting the exercise of property rights, but about the punishment for its implementation.
44. The general rule under which each party bears his or her costs and is not obliged to pay the costs of another party unless specific reasons are given which justify the specific circumstances of the case.
45. These "special reasons" are cases indicated above and will include, for example, situations in which one of the participants is involved in obstructive proceedings during the proceedings; be unwilling to agree on a long-term basis, even if there are no reasonable reasons against it; The Court of Justice of the European Union shall have jurisdiction over the Court of Justice. Moreover, taking into account the "grounds of special consideration 'is quite common in the decision-making practice of the general courts and expressly remembers them, for example, § 150 ° S. C.
46. The Constitutional Court states, for the sake of completeness, that, however much as the procedure prior to the adoption of this Opinion involved the abolition and settlement of joint ownership, it is clear that the legal conclusions in the opinion contained also apply to the joint-equity proceedings of spouses. Therefore, the legal conclusion that "in the joint-equity proceedings of spouses, the decision on reimbursement of costs is governed by the principle of success in the matter (§ 142 o. s. s.) is no longer valid. The different procedure is an exception which is subject to grounds of particular concern and must be duly justified" and on which the findings of the sp. zn. I. ÚS 1441 / 11 and sp. zn. III. ÚS 186 / 20 are based.
47. In other words, contrary to the case-law of the Court of First Instance, according to which the general rule contained in Section 142 (1) (c) of the Rules of Procedure, which could be derogated in exceptional cases, the general rule of the contrary, i.e. if there are no compelling reasons, does not have the right of any of the parties to pay the costs (§ 142 (2) (c)).
Intertemporal effects
48. The opinion of the plenary shall cover all pending proceedings before the general courts, as well as the constitutional complaints already lodged and pending before the Constitutional Court, since, in view of the discrepancy of the decision-making practice, it cannot be concluded that the applicants in their proceedings for the abolition and settlement of the co-ownership (iudicio duplicate) would have established a legitimate expectation that they would be entitled (and will be granted) to pay the costs of the proceedings should their application be granted.
Conclusion
49. The Constitutional Court, acting in accordance with the procedure laid down in Article 23 of the Law on the Constitutional Court, derogates from the findings of Sections I and III of the ÚS 1441 / 11 and III of the ÚS 186 / 20, the interpretation adopted by them and their follow-up to the case-law of the Supreme Court, against which the plenary of the Constitutional Court is defined in this Opinion in that manner.
50. The rule of success of the case, which controls the decision on the costs of the proceedings under Part Three of the Civil Code, as laid down in Section 142 of the Rules of Procedure, is in the procedure for the abolition and settlement of co-ownership in the light of Articles 11 (1) and 36 (1). The Charter should be interpreted in such a way that the full success and failure of procedural parties can only be measured if the court rejects the application for the abolition of ownership. Otherwise, if the application for the revocation of the co-ownership and if it decides on the method of settlement, the procedural success of individual participants having the same status as both the applicant and the defendant in proceedings with the nature of the iudicii must be regarded as partial (the same) and, as a rule, not to grant reimbursement of the costs to any of the parties pursuant to § 142 (2) (b), does not justify the fact that the particular circumstances of the case, exceptionally, of the procedure provided for in § 142 (3) (c) (d) above; in the decision on the method of settling the co-ownership, there is a full success in the case of any of any of the participants (and therefore also of the application of § 142 (1) (1) (d).
President of the Constitutional Court:
JUDr.
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Regulation Information
| Citation | Communication from the Constitutional Court No 302 / 2023 Coll., on the adoption of the Opinion of the plenary of the Constitutional Court of 13 September 2023 sp. zn. Pl. ÚSN. 59 / 23 on the decision on the costs of proceedings under § 142 of the Civil Code in proceedings having the character of iudicii duplicis |
|---|---|
| Regulation Type | Communication from the Constitutional Court |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 06.10.2023 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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