The Constitutional Court found No 307 / 2007 Coll.

I. Motion denied.

II. Withdrawal from a contract under Paragraph 48 (2) of the Civil Code - unless otherwise agreed by law or by parties - shall be cancelled from the outset, but only with effects between its participants. The right of ownership of other purchasers, where they have acquired their right of ownership in good faith before the withdrawal of the contract, shall enjoy protection in accordance with Article 11 of the Charter of Fundamental Rights and Freedoms and with the constitutional principles of legal certainty and the protection of acquired rights arising from the concept of a democratic rule of law within the meaning of Article 1 (1) of the Constitution, and shall not cease.

1. On 20 October 2006, the Constitutional Court received an application under the provisions of § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court ') requesting the annulment of the provisions of § 48 (2) of Act No. 40 / 1964 Coll. The application has been lodged in connection with proceedings pending before the Supreme Court under point 22 of Cdo 3177 / 2005.

2. The text of the contested provision of the Civil Code is as follows:

(2) The withdrawal of the contract shall be cancelled from the outset unless otherwise agreed by law or by the parties.

3. The Supreme Court decides in the proceedings under sp. cdo. 22 Cdo. 3177 / 2005 on the appeal against the judgment of the Regional Court in Ústí nad Labem - Branch Office in Liberec ("Regional Court ') of 28.4.2005 No 29 Co. 312 / 2004-152, as amended by the amending order of 27.10.2005 No 29 Co. The point of the matter is that the plaintiff (seller) sold the property of the Desná Auto Club in the Jizera Mountains on 5 January 1993 (Buyer I). Buyer I, without paying the seller the purchase price of CZK 75,000, later with the consent of the seller, transferred these properties to the defendant (buyer II) on 4 May 1994 for the purchase price of CZK 142 096.20. However, the seller has withdrawn from the contract against Buyer I for the non-payment of the purchase price and claims that its ownership has been restored, regardless of the fact that the court dismissed the action by the judgment cited above when it came out of the legal opinion that the withdrawal from the real estate transfer agreement can only affect between the parties to the contract and cannot affect the well-acquired right of ownership of a third party. This legal opinion was also relied on by the Regional Court on the finding of the Constitutional Court of 23.1.2001 sp. zn. II. ÚS 77 / 2000 and on the judgment of the Supreme Court of 17.11.1999 sp. zn. 22 Cdo. 1186 / 98.

4. Against the judgment of the Regional Court of 28.4.2005, the seller lodged a notice declaring that he was the owner of the property at issue, questioning the view of the appellate court that the defendant had not been found to have acquired the property in good faith. Therefore, as an object of the appeal procedure, the question should be raised as to whether the proceedings revealed facts excluding the good faith of the defendants as property owners. In the meantime, however, the development of the case law made the question of the good faith of the acquirer irrelevant, as did the question of whether the acquirer - buyer II - had acquired proper ownership from the buyer I, whose legal predecessor later withdrew from the contract under the provisions of § 48 (1) of the Civil Code. In the present situation, the decision of the Court of Appeal to abolish, whether or not the defendants have acquired ownership of the right to property; As a result of the seller's withdrawal from the contract against Buyer I, their ownership rights would also cease. However, such an approach to the case would, in the view of the Supreme Court, be contrary to Articles 1 and 2 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution '), as it would bind the duration of the properly acquired right of ownership to legal acts of third parties to which the owner would have no influence. This would seriously undermine property security as part of legal certainty, which is a fundamental attribute to the democratic rule of law.

5. In its submission, the appellant points out that, in its decision of 17 November 1999, sp. zn. 22 Cdo 1186 / 98, the Supreme Court expressed its legal opinion that "If the transferor who owns the property transfers the property into the ownership of the acquirer, the additional loss of the legal basis on the basis of which the transferor became the owner of the property cannot result in the loss of ownership of the acquirer who acquired the property in good faith '. The Constitutional Court also considered this view to be correct as its finding of 23 January 2001 sp. zn. II. ÚS 77 / 2000 resulted. On 28 June 2000, however, the Civil and Commercial College of the Supreme Court adopted the opinion of the CPJn 38 / 98 on the interpretation of the provisions of Act No. 265 / 1992 Coll., on the registration of property rights and other property rights in kind, in which it stated that:" Withdrawal from the Treaty, unless otherwise provided for by law or by the parties, is hereby annulled (Paragraph 48 (2) of the Civil Code). With this unilateral legal act, the effects of the transfer of real estate to the acquirer cease to exist and the original situation is restored, i.e. by law the ownership of the transferor is restored. The subsequent registration of the property right into the property register of this fact, since the renewal of the ownership right of the transferor takes place by law, does not have a constitutional effect and is not carried out by deposit or deletion of the deposit, but only by declaratory effect and is carried out by record (§ 7 (1) of Act No. 265 / 1992 Coll.). This conclusion shall also apply if the acquirer transferred the property to another person before the contract was withdrawn and that person acquired the property in good faith.'

6. In the case-law of the Supreme Court, after the adoption of the above opinion, the latter's legal opinion became applicable. Senate 22 Cdo of the Supreme Court, which persists in its original legal opinion, confirmed by the Constitutional Court and prevalent in legal theory, submitted a case in which it intended to decide in accordance with this original legal opinion, the Grand Chamber of the Civil College of the Supreme Court. The latter proposed to the Civil and Commercial College the adoption of an opinion adopted and published under No 40 / 2006 of the Reports of Judgments and Opinions with a legal sentence: "Withdrawal from the Real Estate Transfer Contract shall cease to be the legal title on the basis of which the party to the contract acquired the right to property and shall be renewed even if the transferee has transferred the property to another person before the contract was withdrawn." Similarly, the Grand Chamber of the Civil College of the Supreme Court decided (cf. Judgment of 14.6.2006 sp. zn. 31 Cdo. 2808 / 2004, also available at www.njud.cz). In the view of the Supreme Court, therefore, as a result of the withdrawal from the contract between the legal predecessors of the owner, its duly acquired right of ownership ceases to exist.

7. In a situation where the Chamber of 22 Cdo of the Supreme Court has no other option of interpreting the provisions of § 48 (2) of the Civil Code than those based on the cited opinions of the Supreme Court, it has no choice but to propose to the Constitutional Court under the provisions of § 109 (1) (c) of Act No. 99 / 1963 Coll., the Civil Code, as amended, the repeal of the provisions of § 48 (2) of the Civil Code, with the legislature replacing it with a text corresponding to the Constitution, which does not give rise to the possibility of various interpretations.

8. On the invitation of the Constitutional Court, the Chamber of Deputies of the Parliament of the Czech Republic submitted observations by the mouth of its President, Ing. Miloslav Vlčka, in accordance with the provisions of Section 69 of the Law on the Constitutional Court. It follows from the observations that the contested provision was part of the Government's draft Civil Code, which was submitted to the National Assembly of the Czechoslovak Socialist Republic as Press No. 156. The bill was adopted at his 24th meeting on 26 February 1962. The stenographic record of the meeting states that 264 Members were present at the beginning of this meeting according to the attendance list. In the vote on the whole bill, no one was opposed and no one abstained. The solution to the question of renewing the ownership of the original real estate transferor, who resigned from the real estate transfer contract even if his legal successor had transferred the property to a third party before the contract was withdrawn, was gradually evolving. Recently, this very serious issue has become a permanent problem not only of legal theory and judicial practice, but also of the Supreme Court practice. Many different interpretations have already been written on the subject, so it is up to the Constitutional Court to resolve the stalemate in connection with the draft Senate 22 Cdo Supreme Court.

9. On behalf of the Senate of the Parliament of the Czech Republic, his President, MUDr. Přemysl Sobotka, stated that the problem of withdrawal had only become topical in the context of a change in the socio-economic environment. As regards the effects of the withdrawal from the ownership transfer contract, the post-mortem practice could not agree on the interpretation of the contested provision of Paragraph 48 (2) of the Civil Code. In cases where no transfer to a third party has taken place in connection with the application of the provisions of Paragraph 48 (2) of the Civil Code, the problem of sharpness does not arise; the legal status is reversible to the original position without major difficulties. On the other hand, where a third (and every other) person enters the game, the provision of Paragraph 48 (2) of the Civil Code is confronted in its normative purpose with the new dynamics of economic relations. The Senate of the Parliament of the Czech Republic outlined in its statement the model situation of the transfer of ownership rights to a third party, pointing out that a rational interpreter would undoubtedly be trapped if he were to combine the arguments with the idea of restoring ownership of the original owner at the expense of the third party. Such a thinking artist would have to live intimately with the idea that a third person had acquired a thing from the owner, who was actually a non-owner. Another aspect associated with the application of the provisions of Section 48 (2) of the Civil Code is seen in the definition of the heading of its addressees. The exercise of the right of withdrawal from the contract by the original owner gives rise to interference with the legal relationship of the parties established by the contract. The contract between the original acquirer and the original acquirer shall be terminated by unilaterally exercising the right of the original owner. However, this act cannot give rise to legal effects on the legal environment of a third person, in any way interested in the legal relationship. If this had been the case and the result had been to restore the ownership of the original owner to the detriment of a third party, the law would probably have found appropriate positive anchoring of the disposal of the ownership of the third party. In the dimensions of this interpretation, the provision of Section 48 (2) of the Civil Code grows the ownership right of a third party in a fearless node constant. If the right of ownership after the withdrawal of the original owner is attributed to a third party and if the withdrawal has legal scope for the ratio of the original parties to the contract, the effects of the withdrawal should also be identified. Paragraph 457 of the Civil Code, which states that the parties to the contract, i.e. the original owner and the original acquirer, creates an obligation to return all that they have received because of the cancelled contract, is offered for further action. Paragraph 457 of the Civil Code is standardized as a requirement for participants. In terms of established theory, one's duty corresponds to another's authority. Thus, as a result of the cancelled contract, the original transferor is entitled to reclaim the right of ownership from the original acquirer. If this is not possible enough, the participant is entitled to cash compensation under the provisions of Section 458 (1) of the Civil Code. It follows from the above that, in the event of withdrawal, the ownership of the original owner is not renewed. There is no "two-ownership conflict 'as the original owner is only entitled to claim or claim the acquisition of ownership, not ownership. In this light, the protection of property rights (freedoms) under Article 11 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) should also be viewed. Whereas the interpretation of Article 11 The Charter is the subject of a rich constitutional case-law, it can be noted: if a third party is the rightful owner, it is constitutionally protected in its right against all, and cannot compete with it" claim to acquire' the right of ownership of others. This conclusion seems all the more convincing that the Act does not foresee the termination of ownership of a third party in the event of the withdrawal of the original owner from the contract or the termination of ownership. In the next, the Senate of the Parliament of the Czech Republic states that the position presented on the issue covered by the provision of Paragraph 48 (2) of the Civil Code appears to be obvious, no need to confront matters such as the substantive title vs. good faith. With the question of good faith, civil law is working in various situations, and it is clear that good faith must remain a key instrument in terms of acquiring ownership from a non-owner.

10. The Constitutional Court first referred to the question whether the appellant, i.e. the Supreme Court, is entitled to bring an application for annulment of the contested provision. He came to a positive conclusion. The appellant stated that the contested provision had to be applied in civil proceedings, and is bound by the legal opinion of the Civil and Commercial College of the Supreme Court, which, according to his view, is contrary to the Constitution and the Charter. The proposal of the Supreme Court in question relates to its decision-making activities and is therefore a legitimate appellant under Article 95 (2) of the Constitution and Article 64 (3) of the Constitutional Court Act. The determination of the constitutionality of the contested provision of the law is a matter of abstract control of the standard, since, when assessing the constitutionality of that provision, the Constitutional Court decides without examining or examining the specific matter which is the subject of the proceedings before the general courts and which has forced the Supreme Court to request a decision by the Constitutional Court on the constitutionality of the provision to be applied in a particular case.

11. Paragraph 68 (2) of the Law on the Constitutional Court shows that the Constitutional Court, in addition to examining the consistency of the contested law or part of it with the constitutional laws, is to ascertain whether that law has been adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure. Already in the Constitutional Court's finding of 27.10.1999 sp. zn. Pl. ÚS 10 / 99 [Collection of finds and orders of the Constitutional Court (hereinafter referred to as "the Reports of Decisions'), Volume 16, Found No. 150, published under No. 290 / 1999 Coll., also available at www.kongatura.cz] The Constitutional Court found that, for legislation issued before the entry into force of the Constitution of the Czech Republic No. 1 / 1993 Coll., the Constitutional Court is entitled to review only their content compliance with the existing constitutional order, not the constitutionality of the procedure of their formation and compliance with the standard competence. The contested provision of the Civil Code has not been amended since the entry into force, i.e. since 1 April 1964, and the Constitutional Court has thus limited itself to assessing the content of the contested legal provision with the constitutional order.

12. The Constitutional Court then reviewed the contested provision of Paragraph 48 (2) of the Civil Code in view of its compliance with the constitutional order, in particular with the rights and principles defined in Articles 1 and 2 of the Constitution and Articles 1, 4 and 11 of the Charter. After considering the proposal itself for the annulment of the provision of Paragraph 48 (2) of the Civil Code, the relevant opinions on the proposal and the consideration of the issue in question from the point of view of the plane of constitutional law, the Constitutional Court concluded that, despite all reservations concerning the current rules on withdrawal from the Treaty, the proposal for the annulment of that provision is not justified for its objected contradiction with the Constitution and the Charter.

13. Under Paragraph 44 (2) of the Law on the Constitutional Court, the Constitutional Court may, with the consent of the parties, refrain from oral proceedings if it cannot expect further clarification of the case. Since the parties to the proceedings have expressed their agreement to abandon the oral hearing and the Constitutional Court considers that further clarification of the case cannot be expected from the hearing, the oral hearing in the present case has been abandoned.

14. In its submission, the Constitutional Court draws attention to the ambiguity of the provisions of Paragraph 48 (2) of the Civil Code, or to the existence of two competing interpretative alternatives to the contested provision of the Civil Code, where that provision does not without doubt address the question of the effects of the withdrawal from the transfer agreement, whether movable or immovable, on the ownership of the third party who has acquired the case in the meantime. In addition, the appellant refers to the case law of the Supreme Court and the Constitutional Court, which shows inconsistency, concluding that Chamber 22 Cdo of the Supreme Court has no choice but to propose to the Constitutional Court the annulment of Paragraph 48 (2) of the Civil Code, whereby the legislator should replace its text with a text corresponding to the Constitution and does not give rise to the possibility of various interpretations. In the light of the foregoing considerations, the Constitutional Court must, however, state that if the General Court opts for a procedure within the meaning of Article 95 (2) of the Constitution and Article 64 (3) of the Constitutional Court Act, it is not the task of the Constitutional Court to deal with the status or finalisation of the text of the contested legislation, but only to determine whether the law of which the General Court is to be used in the hearing is, or is not, contrary to the constitutional order (cf. the Constitutional Court's finding of 3 February 1999 sp. When deciding pursuant to Article 87 (1) (a) of the Constitution, the Constitutional Court shall, in particular, base itself on the principle of constitutional conformity with the interpretation and application of the law, which results in the consequence that "In a situation where a provision of the law allows two different interpretations, one complying with the constitutional laws and international treaties referred to in Article 10 of the Constitution and the other is contrary to it, there is no reason to repeal that provision. In its application, it is the responsibility of all state authorities to interpret the provision in a constitutional manner." (cf. the finding of the Constitutional Court of 8.10.1996 sp. zn. Pl. ÚS 5 / 96, Reports of decisions, Volume 6, Found No. 98, published under No. 286 / 1996 Coll., also available at www.kordatura.cz).

15. In the present case, the Constitutional Court has therefore focused on examining whether the provisions of Paragraph 48 (2) of the Civil Code can be interpreted and applied in a constitutional manner, which would indicate that its abolition is not necessary. Otherwise, if its constitutionally conformal interpretation and application is not possible, the Constitutional Court would have no choice but to abolish the contested provision of the Civil Code.

16. The Purchase Agreement, as one of the acquiring titles within the meaning of § 132 of the Civil Code, has its legal dogmatic basis in Roman law. Emptio - venditio acts here as a synallagmatic commitment whose causation is the transfer of undisturbed possession (habere licere). The transfer of ownership is then followed by a follow-up. The mutual rights and obligations of the parties to the undertaking are defined by two personal actions (actions in personam) and are aimed at settling various claims, including payment of the purchase price, transfer of the object of the purchase, liability for defects and a number of others. The creation of the right in rem on the part of the buyer is then linked to the institution usucapio.

17. On the basis of the Roman legal concept, there was an extensive scientific discussion in the New Testament, which resulted in doctrine in the 19th century. The original property of Roman emptio - venditio, when the transition of the right in rem occurs only by staying on the part of the buyer, was overcome, with the knowledge of both layers of the purchase contract reflected in the teaching of title and modem. A distinction is thus made between the legal reason (iustus titulus) and the legal way of acquiring ownership (modus acquirendi dominii) (cf. Comments on the provisions of § 380, 424 and 425 of the General Civil Code, Rouček / Sedláček). In the context of this concept, unless the law provides otherwise, or if the Contracting Parties fail to assess otherwise, the contract for the transfer of ownership is the legal reason for the transfer. However, the contract itself (titulus) does not have any effect on the transfer of the right, and this must be done by a legally relevant method of acquisition which depends on the nature of the object of the transfer. Thus, the transfer of ownership agreement does not bear the effect of the transfer (translation) but merely the obligation of the transferee to transfer ownership of the property to the transferee by another act which is legally recognised as a transfer of ownership. In principle, the bond and translation effects of the transfer of ownership should be distinguished.

18. The purchase contract is therefore based on a two-stage concept of a translation bond individually assessing the conclusion of a contract and the transfer of ownership, where the cumulative fulfilment of both the title and the relevant modem is the necessary precondition for the acquisition of ownership. If the seller transfers ownership of the buyer I on the basis of a valid title and modem, without making such transfer subject to legal instruments of a substantive nature, the buyer I becomes the owner of the transferred item which is entitled to exercise all rights arising from the nature of ownership rights - ius utendi, fruendi, presidendi, abutendi, abutendi, disposnendi. Unless otherwise provided by law or by contract of a substantive nature, it is entirely within the scope of the Buyer I to transfer its property right freely and fully to another entity, i.e. the Buyer II. The Buyer II, which acquired the right of ownership from the previous owner, Buyer I, can thus successfully rely on the protection of its right of ownership under Article 11 (1) of the Charter, namely erga omnes. Any subsequent legal acts of the previous owners, and hence the withdrawal of the contract, cannot affect its ownership, since at the time of the transfer, the buyer was also the beneficial owner and, unless otherwise stated, transferred to the buyer II the right of ownership in its entirety. Moreover, it cannot be concluded from any provision of the Civil Code that, in the event of withdrawal of the contract, all subsequent contracts are also terminated.

19. The above-mentioned considerations are also supported by the fact that when withdrawing from the contract, the seller must also adapt the method of protecting his rights. The relevant claim based on the provision of Section 457 of the Civil Code is a claim only for bonds, not in substance. For this reason, it is not possible to proceed in accordance with § 126 of the Civil Code and to use actions of ownership, but of enforcement. Paragraph 458 of the Civil Code foresees precisely those situations where Buyer I is not objectively able to repay the performance provided and imposes a compulsory payment of cash. If there has been a proper transfer of ownership to Buyer II, no legal title is given to the Seller or Buyer I for which they could rely the extradition proceedings.

20. In the level of legal dogmatic and theoretical, taking into account the legislation in force, the Constitutional Court confirms the interpretation of the provisions of Paragraph 48 (2) of the Civil Code, as implemented by the Supreme Court in its decision of 17.11.1999 sp. zn. 22 Cdo. 1186 / 98 and the Constitutional Court in its judgment of 23.1.2001 sp. zn. II. ÚS 77 / 2000 (ECR 21, p. 14), according to which the withdrawal from the transfer agreement can have effects exclusively between the parties of this Treaty and cannot have an effect on the legally acquired right of a third party. Similarly, the comparative aspect of the Constitutional Court leads to the same conclusion as the Dutch legislation (cf. Article 271 of the Dutch Civil Code), the German legislation (cf. § 892 (1), § 929 BGB) and the Austrian legislation (cf. § 367 of the Civil Code) equally protect the acquirer of property law.

21. The Constitutional Court, of course, which is quite cruel for the case currently under trial, finds that it is precisely the interpretation of the provisions of Paragraph 48 (2) of the Civil Code, which the Supreme Court held in its decision of 17.11.1999, sp. zn. 22 Cdo 1186 / 98 and the Constitutional Court in its decision of 23.1.2001, sp. zn. II. The ÚS 77 / 2000 is an interpretation of constitutional conformity, which clearly does not apply to the assessment for the interpretation of the contested provision of the Civil Code, as the Supreme Court did in Case C-2808 / 2004 [2006] ECR 31.

22. The Constitutional Court based its assessment of the conflict of interpretation alternatives to the relevant simple law, which was previously presented, on the application of the principle of proportionality or proportionality in a broader sense, which may also be called a ban on excessive interference with rights and freedoms. This principle is one of the standard instruments used by democratic constitutional courts to resolve the conflict of fundamental rights and, where appropriate, the constitutional order of protected public goods, in the procedure for the control of standards, as well as in the procedure for constitutional complaints. In the present case, this is a conflict of ownership of Buyer II on the one hand, on the other hand, the legitimate expectations of the seller and buyer I.

23. The principle of proportionality is built methodologically on three steps. The first step is an assessment of the simple right of suitability, which includes consideration of the chosen normative device in view of the possible fulfilment of the intended purpose. If the legislative instrument is not capable of achieving the intended purpose, the legislature is a manifestation of insolence, which is considered contradictory to the rule of law. The second step in the application of the principle of proportionality is the assessment of simple law by the criterion of necessity, which monitors the analysis of the pluralism of possible normative means in relation to the intended purpose and their subsidiarity in terms of the limitation of constitutional protection of value - fundamental law or public good. If the legislature of the intended purpose is to achieve alternative normative means, the constitutionally conformist is the one who limits the constitutional value to the minimum. The third aspect of the principle of proportionality, which is the measurement, is the methodology of weighing those in a conflict of standing constitutional values, if it follows the simple right of protection which is examined, but also limits another. In order to draw a conclusion in the conflict of fundamental rights or public good, such as principles, as opposed to the case of the conflict of the standards of simple law, the Constitutional Court follows the order for optimisation, i.e. by postulating the minimisation of restrictions on fundamental law and freedom or public good. Its content is a maximum, according to which, in the circumstances of the adoption of a conclusion on the merits of the priority of one of the two in a collision of standing fundamental rights or public goods, the use of all possibilities of minimising intervention in one of them is a necessary condition for a final decision. The order for optimisation can normally be derived from the provisions of Article 4 (4) of the Charter, according to which fundamental rights and freedoms must be investigated in the application of the provisions on the limits of fundamental rights and freedoms, thus also analogous in the case of restrictions on them as a result of their mutual conflict.

24. In accordance with the above, the Constitutional Court first examined the appropriateness of the various interpretations of the provisions of Paragraph 48 (2) of the Civil Code, which were made by the Supreme Court in its decision of 17.11.1999 sp. zn. 22 Cdo. 1186 / 98 and the Constitutional Court in its decision of 23.1.2001 sp. zn. II. ÚS 77 / 2000 (cf. paragraph 5 of this decision of the Constitutional Court; hereinafter referred to as "Interpretation A '), and the Supreme Court in Case C-2808 / 2004 [2006] ECR 31, paragraph 6; hereinafter referred to as" Interpretation B'), in that regard, whether the interpretation of Paragraph 48 (2) of the Civil Code, so specified, which limits a fundamental right or a constitutionally protected value, enables the purpose pursued, namely the protection of another fundamental right or a constitutionally protected value. According to the Constitutional Court, interpretation And it acts as an effective means of protecting the right of ownership of buyer II, while interpretation B is an effective means of protecting legitimate expectations of seller and buyer I.

25. As part of the application of the criterion of necessity, the Constitutional Court compared the interpretations in Article 48 (2) of the Civil Code with other measures to achieve the same objective, but without prejudice to fundamental rights and constitutionally protected values, and only such interpretation, which is most respectful of the fundamental rights and constitutionally protected values concerned, can be seen in line with the principle of proportionality, by more than one possible means. For Interpretation A, the post office of need is fulfilled, which results from the very need to preserve and protect the well-acquired ownership right of buyer II. On the contrary, interpretation B does not stand up to the criterion of necessity, that is, from the point of view of subsidiarity of possible alternative instruments to ensure the purpose. This interpretation is not a proportionate means of protecting legitimate expectations of the seller and buyer I by means of sub-instruments which do not affect or restrict the ownership of the buyer II. In particular, the Constitutional Court considers the legal remedies of a material nature which the seller and buyer I, as parties to the contract determining its content, may include in the contract negotiated by them. The guarantee of the transfer of ownership only at the time of receipt of the consideration by the seller, together with a side contract in the form of a pre-purchase right by the seller, shall be capable of ensuring that the legitimate expectations of the seller and buyer I are protected, without prejudice to the ownership of the buyer II.

26. Finally, when carrying out the test by the principle of proportionality, the Constitutional Court applied the criterion of proportionality in the narrowest sense to the interpretation of the provisions of Paragraph 48 (2) of the Civil Code, which states that the damage to fundamental law or constitutional protection value must not be disproportionate to the intended objective, i.e. the interpretation limiting fundamental human rights and freedoms must not exceed, by its negative consequences, the positives which constitute the protection of other fundamental rights and of constitutionally protected values. The Constitutional Court, which has assessed the seriousness of the two protected values, the right of ownership of buyer II and the legitimate expectations of the seller and buyer I, does not appear to be disproportionate in substance and cannot be rejected in the context given. This interpretation thus respects the constitutional order for optimization. The Constitutional Court then found a measure disproportionate to its purpose, which is to protect the legitimate expectations of the seller and buyer I, which must be based on the fact that the damage to the owner's right of buyer II, which may be associated with the interpretation of B, is significant. If the right of ownership of the owner, the buyer II, were allowed to be affected by the withdrawal from the contract between the legal predecessors of the owner, i.e. between the seller and the buyer I, this would be a breach of the principle of legal certainty, which is one of the fundamental attributes of the democratic rule of law. Under the visual angle of this pillar of the rule of law, the provisions of Paragraph 48 (2) of the Civil Code must therefore be interpreted, while the interpretation of the provision in question, according to which the relationship between the contracting entities can only be manifested between the contracting parties again, is the only one providing ownership security as an important element of legal certainty. The interpretation, contrary to the fact that the additional loss of legal justification on the basis of which it acquired ownership of any of the legal predecessors of the owner, renounces the right to property, although in contrast to Article 11 of the Charter and Article 123 of the Civil Code provide protection for the owner, violates the whole concept of legal certainty and protection of acquired rights, but of course only those rights which have been acquired in good faith, when good faith acts as a remedy generally applicable to civil law. In the case of acceptance of the interpretation of Paragraph 48 (2) of the Civil Code, as declared by the Civil College of the Supreme Court, the owner who acquired ownership could never be certain of his ownership, which clearly does not correspond to the concept of a material rule of law.

27. The Constitutional Court therefore recognised, on the basis of the proportionality test carried out in paragraphs 24 to 26 of this Decision, that the interpretation of Article 48 (2) of the Civil Code made by the Supreme Court in its judgment of 14.6.2006 sp. zn. 31 Cdo. 2808 / 2004 is an interpretation of constitutionally unacceptable as it does not meet the criteria of necessity and proportionality in the narrow sense. Interpretation A, according to which the withdrawal from the transfer agreement can have effects exclusively between the parties to the contract and cannot affect the well-acquired right of ownership of a third party, that is to say the interpretation of the provisions of Paragraph 48 (2) of the Civil Code, as the Supreme Court acceded to it in its judgment of 17 November 1999 in Case 22 Cdo 1186 / 98 and the Constitutional Court in its judgment of 23 January 2001 in Case 77 / 2000, which fully complies with the principle of proportionality, considers the Constitutional Court to be an interpretation of constitutional conformity.

28. It may be accepted that the proposed repeal of Paragraph 48 (2) of the Civil Code would perhaps allow the new legislation to be formulated even in such a way as to eliminate the ambiguity of that provision in relation to the issue currently under examination. In this context, however, the Constitutional Court must stress that the reason for the unconstitutional nature under which the contested provision of the Civil Code could be abolished is not, in principle, an interpretative difficulty in interpreting the law. If the rule of law does not provide a clear answer in certain situations, this does not in itself mean that such uncertainty is necessarily unconstitutional. It is the general courts that are obliged to find the law, which means not only seeking direct, concrete and explicit instructions in the legal text, but also identifying and formulating what is a specific law, even where it is the interpretation of abstract standards, constitutional principles, the provisions of the Charter and the obligations arising from international treaties. The scope of such interpretation and its importance is undoubtedly greater where the application of legal regulations is concerned, which are no longer entirely satisfactory, but are not in principle even unconstitutional. The Constitutional Court can then, while respecting the principle of minimisation of interventions, only repeat what it has already judged in its finding of 3 February 1999 sp. zn. Pl. ÚS 19 / 98, that "Of the many conceivable interpretations of the law, only one must be used which respects constitutional principles (if such an interpretation is possible) and that the provisions of the law on non-constitutionality can only be repealed, if the provision in question cannot be applied, without the breach of constitutionality (principle of minimisation of intervention)." (cf.

29. The Constitutional Court therefore concludes that, according to its opinion as set out in Part V. / b of this Decision, there is the possibility of a constitutional interpretation of the contested provision of the Civil Code, to which the Constitutional Court further notes that its caselaw, namely the finding of the Constitutional Court of 23 January 2001 sp. zn. II. ÚS 77 / 2000, whose conclusions have no reason to deviate even in the present case, provides sufficient guidance to achieve a constitutional interpretation of the provisions of Article 48 (2) of the Civil Code. It is sufficient to ensure legal certainty for participants in civil relations, including their legitimate expectations, as well as for the protection of property rights, the present wording of this legal provision. From the point of view of de lehferend, a clear wording of the contested legal provision would be appropriate, but the Constitutional Court cannot, however, ignore the fact that de lehferend decides, which leaves it to discover that Paragraph 48 (2) of the Civil Code cannot be characterised as unconstitutional unless its wording excludes a fully constitutional interpretation.

30. In the light of the above, the Constitutional Court found that the application for annulment of the provisions of Paragraph 48 (2) of the Civil Code was not justified and therefore rejected.