The Constitutional Court found No 310 / 2010 Coll.
The Constitutional Court found of 29 September 2010 on the application for annulment of § 89 sentence of the Second Act No. 120 / 2001 Coll., on judicial executors and enforcement activities (Enforcement Order) and on the amendment of other laws, as amended by Act No. 347 / 2007 Coll.
Valid
The Constitutional Tribunal found
310
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 29 September 2010 in plenary of the President of the Constitutional Court of Pavel Rychetský and Judges Stanislav Balík (Judge-Rapporteur), František Duchona, Vlasta Formánková, Military Güttler, Pavel Holländer, Ivana Jana, Vladimir Krorka, Dagmar Lastovecký, Jiří Muchy, Jan Musil, Jiří Nykodma, Miloslav Excellent, Eliška Wagner and Michaela Židlická in the application of the District Court in Semilí, under which Mgr. Pavel Jandura acts, on the annulment of the provisions of the second Law No. 120 / 2001 Coll., on the judicial Executors and Execution Act (Execution Order) and on the amendment of other laws, as amended by Law No 347 / 2007 Coll.,
as follows:
I. Motion denied.
II. Paragraph 89 of the Second Act No. 120 / 2001 Coll., on judicial execution and enforcement activities (Enforcement Order) and on the amendment of other laws, as amended by Act No. 347 / 2007 Coll., amending Act No. 120 / 2001 Coll., on judicial enforcement and enforcement activities (Enforcement Order), and amending other laws, as amended, must be interpreted in a constitutional manner, following the provisions of § 89 of the First Enforcement Order, so that, in the event of the cessation of the execution of the execution order, the obligation to pay flat-rate or effectively incurred expenditure by the executor must be interpreted in accordance with the law.
Reasons
Recital of the proposal
1. On 10 April 2008, the Constitutional Court received a proposal from the District Court in Semilys seeking the issue of a finding which would annul the provisions of § 89 of the Second Law No. 120 / 2001 Coll., on the judicial execution and execution activities (the execution order) and on the amendment of other laws, as amended by Act No. 347 / 2007 Coll., as amended by: "In the event of the cessation of the execution of the debtor's lack of ownership, it shall pay flat-rate or effective expenses to the executor authorised."
2. The appellant stated that there was a proceeding in the Semilee District Court in case sp. nc 1741 / 2006, in which the order of the District Court in Semilos dated 17 July 2006 No. 0 Nc 1741 / 2006-7 was made in order to satisfy the claim of the legitimate part of Prague 1 in the amount of CZK 100 000 and the execution against the compulsory International Khel Com Service, 1st Czech-Senegal Commercial Company, spol. s., which was entrusted with the judicial executive officer JUDr Ingrid Švec. An obligation has been imposed on the executor to pay the costs of execution and to pay the costs effectively incurred in enforcing the claim in question. The resolution came into force on 19 October 2006. On the initiative of the executor to stop the proceedings, it is clear that the execution was completely without result. In the further proceedings, it is to be up to the court to proceed in accordance with § 268 (1) (e) of Act No. 99 / 1963 Coll., the Civil Code, as amended, by virtue of § 52 (2) of the Rules of Enforcement and to stop the procedure and, in the context of this decision, followed the second sentence of § 89 of the Rules of Enforcement.
3. The appellant refers to the Constitutional Court for an application to annul the contested provision § 89 of the second order of execution because, in its view, that provision is contrary to Article 36 of the Charter of Fundamental Rights and Freedoms. According to the appellant, that right is infringed in relation to the creditor, and it should be up to the State to ensure the enforceability of the law, without the creditor having to consider in advance whether or not the execution will be without result. The contested legislation provides that the costs are unreasonably passed on to the creditor, without prejudice to the fact that, according to the case law, the court executive is a person of "similar character to the entrepreneur under the Commercial Code." The appellant submits that the risk of non-recovery should be on the executor and compares the rules of execution with those of the Civil Code, where it considers that, in the event of non-recovery, it is decided on the basis of procedural fault. Thus, the amended provisions did not respect the caselaw of the courts, which "was undoubtedly in line with the Constitution '.
Proceedings and recap of the observations of the parties
4. In accordance with Section 69 of the Law on the Constitutional Court, the Constitutional Court invited the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic to comment on the proposal.
5. The Chamber of Deputies described the legislative history of the adoption of Act No. 120 / 2001 Coll. and Act No. 347 / 2007 Coll.
6. A group of Members submitted the draft Rules of Enforcement to the Chamber of Deputies on 20 September 2000 and was discussed as House Press No. 725 in the III parliamentary term. The House discussed the proposal for an execution order at first reading on 1 December 2000 and ordered it to be discussed by the Constitutional Law Committee, which discussed the draft law on 22 January 2001 and issued a resolution published under No 725 / 2. In the second reading, the Chamber of Deputies discussed the proposal for an execution order on 24 January 2001. The amendments to the draft law resulting from the current legislative process were drafted and published under No 725 / 3. At the third reading, the Chamber of Deputies discussed the proposal for an execution order on 26 January 2001 and agreed to the bill. In the final vote of 158 Members present, 130 Members voted in favour of the proposal, 3 Members voted against the proposal. The Chamber of Deputies referred the Senate proposal on 5 February 2001, the Senate gave its approval on 28 February 2001. The Act was delivered to the President of the Republic for signature on 8 March 2001, the President signed the Act on 22 March 2001. The Act was published in the Collection of Laws on 3 April 2001 under No. 120 / 2001 Coll.
7. The bill amending Act No. 120 / 2001 Coll., was submitted by the Government to the Chamber of Deputies on 29 March 2007 and was discussed as House Press No. 178 in the V. parliamentary term. The House discussed the government bill at first reading on 9 May 2007 and ordered it to be discussed by the Constitutional Law Committee, which discussed the bill on 23 August 2007 and issued a resolution published under No 178 / 1. At second reading, the Chamber of Deputies discussed the bill on 19 October 2007. The amendments to the draft law resulting from the current legislative process were drafted and published under No 178 / 2. The Chamber of Deputies considers the amendment under the heading B. 6 to be of particular importance, which amended the classification of the contested provision of Paragraph 89 of the Rules of Enforcement. At the third reading, the Chamber of Deputies discussed the draft law on 31 October 2007 and agreed to the government bill. The proposal under point B. 6 was adopted by the Chamber of Deputies when 118 Members voted in favour of its adoption from 149 Members present, 22 Members opposed the proposal. In the final vote, by which the Chamber of Deputies agreed to the Government Bill as amended by the approved amendments (vote No 383), of the 151 Members present voted in favour of 145, 1 Member voted against the proposal. The Chamber of Deputies passed the Senate proposal on 13 November 2007, the Senate approved the bill on 5 December 2007. The Act was delivered to the President of the Republic for signature on 6.12.2007, the President signed the Act on 13.12.2007. The Act was published in the Collection of Laws in the amount of 108 under the number 347 / 2007 Coll.
8. The Senate, through its President MUDr. On 28 November 2007, following the Ordonnance by the Organising Committee, the draft law was dealt with by the Constitutional Committee, which recommended the Senate to approve the draft law under consideration, as referred to by the Chamber of Deputies. The bill was approved in the version referred to by the Chamber of Deputies at the 10th meeting held in VI. by the votes of 55 senators from 60 senators present, against which no senators were opposed. The Senate concluded that, in its view, it approved the draft law within the limits of the Constitution of the Czech Republic, in a constitutional manner, with the fact that it is entirely up to the Constitutional Court to assess the constitutionality of the contested provision.
Active ID of the applicant
9. According to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), if the court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it will bring the matter before the Constitutional Court. This authorisation is further specified in § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, according to which the Constitutional Court may file an application for annulment of the Act or its individual provisions. The subject matter of a formal discussion of such a proposal shall be the fulfilment of Article 95 (2) The Constitution, in the sense that it must be a law to be applied in the resolution of the case, i.e. the law or its provision which is proposed for annulment, is to be applied directly by the appellant in the resolution of a particular dispute. The Constitutional Court found this condition fulfilled, as the appellant will follow the second sentence of § 89 when deciding pursuant to § 268 (1) (e) of the Civil Code, by virtue of § 52 (2) of the Rules of Enforcement, on the suspension of execution and on the costs of execution.
Constitutional conformity of the legislative process
10. According to the provisions of Paragraph 68 (2) of the Constitutional Court Act, the Constitutional Court, in addition to assessing the compliance of the contested law with the constitutional laws, ascertains whether it has been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure.
11. In the present case, the appellant did not object to a defect in the legislative process or to a breach of the legislature's constitutional competence. The Constitutional Court, after verifying the accuracy of the data resulting from the observations of the Chamber of Deputies and the Senate, concluded that the contested provision was adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure.
Legal evaluation of the Constitutional Court
12. The Constitutional Court concluded that the application was not justified.
13. The Constitutional Court has repeatedly stated in its case-law that, when it considers the possibility of a constitutional interpretation of the contested provision, it takes precedence over the appeal of the contested provision. This procedure, based on the principle of minimisation of the intervention, was followed by the Constitutional Court even this time, even though it was fully aware of how the legislature deliberately acted when adopting the contested legislation in order to circumvent the case law of the Constitutional Court and to try to enforce its will into the legislation adopted, regardless of the high level of risk that this legislation would not be constitutional. However, even in this case, the Constitutional Court does not intend to have a discussion with the legislator; it is only responsible for checking the constitutionality of the standards proposed to it by the legitimate appellants. In this regard, the Constitutional Court considers that the interpretative statement will enable the appellant to decide in the constitutional context of the proceedings before him, which he describes in his proposal. Similarly, other general courts will be able to decide in similar situations.
14. In plenary of the Constitutional Court sp. zn. Pl. ÚS-st. 23 / 06 of 12 September 2006 (ST 23 / 42 SbNU 545) *) The Constitutional Court has explained why the Constitutional Court considers that the interpretation of the provisions of § 87 to 89 of the Rules of Enforcement cannot be interpreted without the context resulting from the general regulation of the enforcement costs (i.e. from the provisions of § 270 and 271 of the Rules of Procedure), since they clearly only reflect the particularities of the Enforcement Procedure, with the effect that the general subsidiarity of the Civil Code will otherwise apply (§ 52 (1) of the Rules of Procedure).
15. The Constitutional Court then referred to the question whether the pleas in law of the Second Enforcement Order, which was brought into the law by Act No 347 / 2007 Coll., effective after the opinion cited by the Constitutional Court, are affected by the contested version of Paragraph 89 of the Second Enforcement Order.
16. The Constitutional Court in the present case accepts the argument that "The Constitutional Court, in its case-law, in the event of tension between the constitutionally conformal and the original (subjective) interpretation, has given priority to the first of them [finding sp. zn. It is based on that maximum in the present case. The second sentence of Article 89 of the Rules of Procedure must therefore be interpreted in the light of the sentence of the first provision in question, i.e., in the event of the cessation of the execution of the insolvency proceedings, it is the obligation of the creditor to pay flat-rate or effectively incurred expenses to the executor which are dependent on the assessment of the extent of his involvement in the cessation of execution." (cf. Obiter dictum of the Constitutional Court sp. zn. IV. ÚS 314 / 09 of 5 May 2009).
17. The Constitutional Court thus also notes in this case that "in such an interpretation, all the courts which the Constitutional Court has set out in its previous case-law" (cf.
18. in the sp. zn. The Constitutional Court stated that "the intention of the legislator, unless expressed in a reasonable form and scope in a separate legal standard (law) as a motive for the legislator's conduct, its content and its validity (effectiveness), does not affect... '. The Constitutional Court is aware of the opinion delivered on 19 October 2007 at the 22nd meeting of the Chamber of Deputies in the context of the second reading of the Government Bill amending Act No. 120 / 2001 Coll., on the Enforcement and Enforcement Proceedings Act and on the amendment of other laws, as amended, by the Minister of Justice, Jiří Pospíšil, on the issue of the remuneration of the executor in the event of the debtor's lack of ownership (cf. http: / / www.psp.cz / eknih / 2006ps / stenprot / 022schuz / s022131.htm). If this opinion were also a relevant expression of the original intention of the legislature, the Constitutional Court accepts the argument that" it is clear that it deviates from the... "mandinels" contained in the case-law of the Constitutional Court' (cf. Obiter dictum of the Constitutional Court's finding sp. zn. IV. ÚS 314 / 09 of 5 May 2009).
19. The Constitutional Court then concluded that the appellant would not, moreover, interpret and apply the contested provision in isolation from the other provisions of the Enforcement and Civil Code.
20. The Constitutional Court concluded that it did not find the grounds for the annulment of the provisions of § 89 sentence of the Second Act No. 120 / 2001 Coll., on judicial executors and enforcement activities (Enforcement Regulations) and on the amendment of other laws, as amended by Act No. 347 / 2007 Coll., and therefore rejected the proposal under the provisions of § 70 (2) of the Law on the Constitutional Court.
President of the Constitutional Court:
JUDr. Rychetský v. r.
*) NB: Collection of finds and orders of the Constitutional Court, Volume 42, Opinion No 23, p. 545
* *) NB: Collection of finds and orders of the Constitutional Court, Volume 26, Found No. 80, p. 317, published under No. 403 / 2002 Coll.
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Regulation Information
| Citation | The Constitutional Court found no 310 / 2010 Coll., on the application for annulment of § 89 sentence of the Second Act No. 120 / 2001 Coll., on judicial executors and enforcement activities (execution order) and on the amendment of other laws, as amended by Act No. 347 / 2007 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 15.11.2010 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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